I'm Kelly Moffett.

How old are you, Kelly?

I'm 19.

Do you know the Defendant in this case, Byron Case?

Yes.

How do you know him?

He was my boyfriend for about a year and a half.

Do you see Byron Case in the courtroom today?

Yes.

And where is he sitting?

He's sitting right there.

For the record, can you please briefly describe what you see him wearing?

Black tie, black suit, blue dress shirt.

I ask the record reflect the witness has identified the Defendant,Byron Case.

The record will show Ms. Moffett has identified Mr. Case.

Q.

Kelly, did you know Justin Bruton?

Yes. I met him I think spring of '97 in Westport.

Do you know where he lived at the time that you met him?

Yeah. He had a condo off the Plaza, and he went to UMKC. I don't think he had a job though. His parents had a lot of money, and they would send him money for school and such.

Okay. Do you know about how old he was when you met him?

About 19 or 20, 1 believe.

Were you ever involved with Justin Bruton, other than just being a friend?

No.

Yeah. He was eighteen.

Do you know whether he was still in high school or not?

No. I believe he dropped out earlier.

So did Byron know how old you were?

Yes.

How do you know that he knew? Did you tell him?

I told him. And he also picked me up from my last day of school in eighth grade. He picked me up from Trailridge Middle School.

I want to show you a photograph. While we're getting that photograph, let me ask you, regarding your relationship with Byron, how did your parents feel about it?

At first they -- I didn't even tell them about him, because the whole age difference thing, and my dad never liked him. They basically -- one time he was at my house, and my dad caught him. 1 snuck him in. My dad threw him out. Told him he could never come back. They had a talk with me, and I said -- I agreed to not see him again, so I would just see him in private.

Okay. So let me stop you for a second, because we're talking about Justin Bruton. I want to show you State's Exhibit Number 13. Do you recognize who that is a photograph of?

Yes, that's Justin.

Is that how he looked when you knew him in the summer of 1997?

Yeah. He basically wore that same outfit every day. That's exactly how he looked.

I move to admit State's Exhibit Number 13 into evidence, Your Honor.

No objection.

State's 13 shall be admitted.

(State's Exhibit Number 13 received into evidence.)

Judge, I object to the relevancy of the cutting the hair off and dying it black. I think we're starting to get into this "goth" area I'm objecting to.

And I'm not asking her anything more about the Defendant's appearance. It's about her knowing it was with the Defendant's assistance she cut her hair, and her mother is going to testify her appearance was altered with short hair. I'm not going to get Into it any further than we just did.

Okay.

I'll withdraw my objection.

All right. Obviously, if she cut her hair and he assisted in cutting her hair, had something to do with her wanting to avoid detection or whatever during this interlude period, I think it has some relevance for that. Just be careful with it. I assume Ms. Moffett is being --

Oh, yes, she knows.

Anything further?

No.

All right.

(The proceedings returned to open court.)

Q.

So after you were -- after you left home without telling your parents and were living for a week in the apartment that Justin was in with Byron and with Byron's assistance cut your hair, dyed it black, and did your parents find you?

Yes. My dad found -- came and found me there.

And you said it's after that that your parents reluctantly agreed to let you see Byron; is that correct?

Yes. Because they were just afraid I was going to keep running away over and over again.

And this is just after you got out of eighth grade?

Yes. It was that summer, I remember, because I missed a couple softball games. I had run away, and my dad was upset about that.

How often did you see Byron Case during the course of that summer?

Practically every day. After school started it was less, but just about every day.

And when you would see him, was there anybody else that you hung out with?

Yeah. Justin and Anastasia. They had already been dating at that point. In fact, she was living at the condo when both me and Byron were also staying there. It was all four of us staying there.

Were there other friends of Byron's that you would hang out with as well?

Yeah. I met Tara and Abraham quite a few times.

With Byron did you ever hang out with your friends that you were going to be in high school with?

Occasionally my friend, Carol, but no, for the most part, it was his friends and people down in Westport.

Once you were -- you said that you saw him more often when you were -- during the summertime, but with once school started, how often did you think you would see him?

About a lot of the time, four to five times a week. He would pick me up from school or he would be at my house when I got out of school about every day.

Where was Byron Case living at the time that you were dating him that summer?

He was living with his mom sort of off and on, but they didn't get along that well. So most of the time he was with Justin.

At Justin's condo off the Plaza?

Yeah.

Did you know Anastasia WitbolsFeugen then very well throughout that summer?

Yeah. I saw her just about every day.

And how would you describe her relationship with Justin Bruton?

At first it was really -- it was a mutual relationship where they were just totally infatuated with each other. He asked her to marry him. They hadn't even been dating that long until she like immediately moved in there.

After awhile, they started kind of fighting. She would move in, move out of there over and over again.

Do you know what the fighting was about?

I think Justin kind of wanted to spend more time with Byron and things like that. Anastasia and Byron would also fight about that, about how it kind of messed up like their little clique so to speak.

Justin just wasn't very committal and was madly in love with her one second, and the next minute would be apathetic towards her.

You said everything was going well in the early part of the summer. When was it they started going back and forth and not getting along as you have just described?

I don't think it helped when we moved in there. Almost probably the end of the summer, around September, something like that.

I'm going to show you what's been marked as State's Exhibit Number 14. Do you recognize who this is?

Yeah. That's Anastasia.

And is this how Anastasia looked the summer that you guys were all hanging around before she was killed?

Well, she altered her appearance. She also dyed her hair.

So her hair was lighter or darker?

Darker.

A little darker than this. But other than that, is this a fair representation?

Yeah, that looks like her.

I move to admit State's Exhibit Number 14.

No objection.

Exhibit 14 shall be admitted into evidence.

(State's Exhibit 14 received into evidence.)

I think finally he actually had a pager message like, "Leave a message if this is anybody but Anastasia, because we don't want to talk to you." I remember talking to her about that. She was pretty upset.

Now, so of the group of the four of you, did anybody have a cell phone?

No, not that I know of, no.

And who had a pager other than Byron? Anybody that you know of?

No, nobody did.

So is it fair to say, when you guys were all trying to get a hold of each other, if no one was home, someone used Byron's pager?

Yeah. Like I said, that also annoyed Byron, because Anastasia, when she was trying to find Justin, would page him.

Okay. And who was part -- how did you know about this?

Because Justin, Byron, and Anastasia would talk about it in front of me.

So were you around when these plans were being devised?

No, not really. I heard like bits and pieces of it, but I wasn't there for through the most part of it.

At this time, when you're hearing all these plans, who is living together?

Justin, Byron and Anastasia.

Justin, Byron and Anastasia?

Yes.

They're all living in Justin's condo?

Yes.

Where were you living at that time?

At my house. I was still in school.

At home with your parents?

Yeah.

Where is that, by the way? What part of Kansas is that in?

Lenexa, Kansas.

Now, Other than they were going to go down and commit this armed robbery against Justin's parents in Oklahoma to get money, was there anything else that you heard them talk about?

Yeah. They had another scheme about they were going to put plastic explosives in some church in Independence for ransom money. They were also looking for money so they could run off to Europe. But none of it -- they never did any of it.

I remember one time. In fact, Byron went with them to go supposedly rob Justin's parents. They turned around like 30 minutes later and got doughnuts instead.

So they actually got in the car to go?

Yeah.

This is what you've been told?

This is what I've been told. I wasn't with them.

Who told you this?

Byron.

And in October of 1997, were you in school then?

I was a freshman in high school.

What time did you normally get out of school at that time?

2:40. That's when school let out.

How would you get home? Were you driving then?

No. I was 15 and couldn't drive.

And when you would get out of school, how would you get home?

My mom would pick me up or Byron would pick me up.

Now, you know we're here to talk about what happened on October 22, 1997?

Yes.

Now, I want to talk about -- you and I talked about this on several occasions, have we not?

Yes.

And you've talked to Mr. Lance as well. He had your deposition taken and talked about the events of that day leading up to that day; is that right?

Yes, that's correct.

On Wednesday, October 22, 1997, did you go to school that day?

Yes.

And did you come home at the normal time?

Yes.

What did you do?

I didn't feel very well so I watched TV and laid down. I ended up falling asleep.

Did you have any contact with the Defendant, Byron Case?

Yes. He called me.

What happened after he called you?

He woke me up from a nap and said that him and Justin were going to be in the area and wanted to know if I wanted to do anything, that they were going to come get me.

What happened?

They came to my house, picked me up --

Now, whose car were they driving; do you recall?

Justin Bruton's car.

I'm going to show you what's been marked as State's Exhibit Number eight and Number nine and ask you totake a look at those and tell me if you recognize what they're photographs of.

That's Justin's car.

And would you agree with me it was a two-door Honda, green-blue color?

Yes.

Do these accurately show what Justin's car looked like in October of '97 when they picked you up?

Yes.

What's the only difference between State's Exhibit Number 8 and 9?

On that one the trunk is open.

So State's Exhibit Number 9 shows the tunk open?

Uh-huh.

I move to admit State's Exhibit Number 8 and 9.

No objection.

Eight and nine shall be admitted.

(State's Exhibit Number 8 and 9 was received into evidence.)

Q.

So you said Byron and Justin showed up, and they were in Justin's car?

Yes.

Do you recall who was driving?

Justin.

And where was Byron sitting?

Front passenger seat.

And where did you sit?

In the back seat.

Shortly after I got in the car, Justin was telling me, "You know, I've been upset recently, and me and Anastasia aren't getting along anymore." He said, "Well, who is the biggest problem in my life right now?" I said, "Your parents?" I figured this had something to do with his parents and all these another schemes he came up with. He said, "No. I'm talking about Anastasia," He said, "Wouldn't it just be better, easier, if she was gone?" I thought he was just talking about breaking up with her again.

Now, at the time that this is happening, Justin is driving the car, and Byron Case is sitting in the front passenger seat?

Uh-huh.

is that a yes?

Yes. Sorry.

Then Justin said Byron was going to kill her. He goes, "Well, I can't do it, so Byron is going to do it."

I said, "Well, if you're the one that wants her dead in the first place, why aren't you going to do it?" He didn't think he was going to be capable of it, and Byron always had a weird fascination with death and wanted to kill somebody anyway.

I was just, "This is ridiculous. I can't believe you guys are actually going to do this. Why are you even taking me?"

And they said they wanted me to go to Phillips 66 and make a phone call; that Anastasia was supposed to meet up with them.

When you went to the Phillips 66 gas station, where was that?

It's right off the street from my house on 87th Street.

And when you went and made that -- what did you do when you got to the gas station?

I got out and made the phone call. I didn't have Anastasia's number or anything, so they gave me a number. I think maybe Justin dialed it for me. I'm not sure.

So you're not sure what number was put in, either you were given it or someone else dialed it, but once it was dialed, did you have a conversation with anybody on the other end?

Yes.

Who?

Anastasia.

How did you know it was her?

Because she answered the phone. She recognized my voice.

And you recognized her voice?

Yes.

And tell us briefly about that conversation?

I said, "Hi. I'm with Justin and Byron. You know we're supposed to meet." She said, "Well, yeah, you're running a little bit late, but Dairy Queen." I guess the original -- I don't know what the deal was. I guess the original plan was to meet at Mount Washington, but it got changed to Dairy Queen.

Did it seem to you like Anastasia knew about meeting up?

Yes, yes.

Now, while you are in the car and the conversation you just described to the jury, who is participating in that conversation?

Justin and Byron.

And you?

Well, I was just asking them questions about it, yeah.

But Justin and Byron both were responding to your questions?

Yeah.

Okay.

No time of day or anything. I said, "This is ridiculous. It's broad daylight. Why are you doing this in the first place? And also, you don't just pull somebody out into broad daylight and shoot them for no reason."

What was their response?

Just -- they had had it with her. Justin was acting really weird. He wasn't participating in the conversation very much. Just basically, you know, we always wanted to do something like this, and we're going to do it.

And did you believe that they were going to?

No.

Why not?

Because they always had plans like this. Byron even had some plan where he was going to call his dad out into the middle of nowhere and shoot him, because his dad had AIDS, and he thought he would, like, stop his suffering, and that never happened. It was like they were all talking like they had seen too many movies or something.

After you stopped and made the phone call and spoke to Anastasia -- let me ask you. Was there any drinking or drugs going on at that time?

Drinking. I was drinking.

What?

Jack Daniels. I think it was Byron's.

Why do you think it was Byron's?

Because he was the one that had it, and he offered it to me.

So after you made this phone call is when you remember starting to have some drinks?

Yes.

And how much do think you drank at that time and when you actually met up with Anastasia?

Not much. I had a mixed drink or so. I wasn't drunk. They weren't acting drunk either. I wasn't sure if they had been drinking or not.

Do you recall stopping anywhere between making the phone call at the 66 gas station and meeting up with Anastasia at the Dairy Queen?

No, but I'm not sure.

You just don't recall?

I just don't recall if we did or not.

We pulled up and we could see her sitting in there. We got out of the car to go get her. I believe Justin and Byron did. Because Byron had to get out of the front seat to come around and get in the back seat so Anastasia could be in the front seat to talk to Justin.

Can we approach the bench for a second?

(Counsel approached the bench and the following proceedings were had:)

We're about to get into where they went and what happened in the cemetery, and I think this might be a big chunk, so this might be a good place.

Is that okay with you?

Yeah.

I mean if you --

If I can just wrap up with her that last question and tell her we're going to take a break.

That's fine.

(The proceedings returned to open court.)

Q.

So, Kelly, what you're telling us is that you and Justin and Byron all pulled up to the Dairy Queen. Where is that located?

It's right across the street from Mount Washington Cemetery. I don't know the street or anything.

But it's across from Mount Washington Cemetery?

Yes.

And you guys all make contact with Anastasia, right?

Yes.

Before we go any further, I think the Court wants to break for lunch. So before we get into anything more, I think we're going to let the judge give the jury a chance to go to lunch, and we'll come back and continue.

All right. Ladies and gentlemen, what I would like to do is we'll take a recess and I'll ask that you be back in the jury room, say, about 1:20, if that's agreeable or thereabouts. We'll try to start between 1:20 and 1:30.

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.

We'll break for lunch, and we'll resume shortly before 1:30. All rise, please.

(A noon recess was taken.)

(The following proceedings were held when the Court reconvened.)

Everybody, please be seated.

Ms. Moffet, as I'm sure you're aware, the oath I gave you at the beginning of the trial still applies.

Yes, I'm aware of that.

With that being said, Ms. Crayon, you may resume your direct examination of Ms. Moffett.

Thank you, Your Honor.

Q.

Kelly, before we broke for lunch, you talked about you met at the Dairy Queen and you met up with Anastasia. When you arrived at Dairy Queen and Anastasia got to the car, how would you describe how Anastasia was behaving?

She was pissed at Justin for being late and such. She was being nice to me. But she and Byron weren't getting along very well. I think she thought he was the reason that Justin was late, and she wasn't too happy about us being there, because they wanted to talk about their relationship, not have us be sitting there.

By us, you mean you and Byron?

Yes.

And just to review, how was everybody sitting in the car at this time that you remember?

Justin was driving. Anastasia got into the front passenger seat. I was in the back passenger seat and Byron got in behind Justin.

Once you picked her up at the Dairy Queen and you were seated in Justin's car in that fashion, where do you go?

We went across the street to Mount Washington Cemetery.

When you go into Mount Washington Cemetery, had you been there before?

No, I don't believe so. Maybe once or twice. I knew where it was, but I hadn't been there.

When you got into Mount Washington Cemetery, what happened?

Drove around for a little bit, I guess looking for a spot for Justin and Anastasia to get out and talk. We eventually ended up at a big mausoleum-type thing.

Justin and Anastasia got out of the car for few minutes. They were talking. Then there was, like, headlights flashed at us from behind us, and I thought that would be the grounds keeper trying to get us out of there. So they got back in the car.

What did you do?

Left the cemetery.

Did you get out of the car at any point at that time?

No.

Was Byron out of the car that you recall?

So Justin and Anastasia had gotten out, but you said very briefly?

Yes.

And when you leave, how do you leave out of the cemetery? Do you know? Do you go out the same way or different way?

I believe the same way. Onto a busy street.

And when you left the cemetery and you went out to this busy street, where did you go? Did you know?

We drove around. It was pretty quick. We drove around past, like, the side of the cemetery.

Down Truman Road. Because I remember we passed Erotic City and all that, and then we saw a little dirt road that went up to just into the woods. They said, "Oh, well, let's see where that leads."

Now, who is "they"?

I don't remember if it was Byron or Justin.

One of them suggested let's see where that leads?

Yeah. Because they needed a place to talk.

Then what happened?

We drove up there past a little stone building of sorts. It was like a park-type thing with a circle drive. We pulled up in there. Justin and Anastasia got out of the car to talk.

Let me stop you for a second. Do you have any idea what time it is at this point?

No. It was like -- it was dark enough to where cars had headlights.

Okay. So it wasn't the middle of the afternoon?

No.

Okay. And after you drove up there, where did Justin drive to?

(There was no response.)

Do you remember what it looked like?

Yeah. It looked like a little park, and there was a circle drive; and he drove up like into the circle drive thing.

Okay.

It was like with gravel.

And what did he do? Did he park the car?

Yes.

And who, if anybody, got out at that point?

Him and Anastatia.

Now, you're calling it a park. Could you tell it was a cemetery at that time?

No. It was dark enough to where I couldn't tell. It just looked like a little park to me.

And after they get out, tell me -- they were getting out for what purpose?

To talk about their relationship supposedly, I guess.

And what happened?

They got out of the car. They were only out of the car for a little bit. They were kind of bickering back and forth and talking.

What side of the car were they on? Do you remember?

They were on the driver's side of the car.

Okay.

Kind of towards the back a little bit.

Where were you?

I was sitting in the back passenger seat.

And where was Byron?

He was in the back driver's seat.

Were the two of you talking back there while Anastasia and Justin were outside?

Yeah. I was still questioning him as to why this -- like how long had they been planning this. Why on earth were they going to do something about this. They seemed so calm about this. It didn't seem really planned and it just seemed ridiculous.

What, if anything, did the Defendant say to you while you were sitting in the car there?

He said, "We have been talking about it all day, and Justin asked me to do it. And I want to do it, so I'm going to."

Then what happened next?

When Byron got out of the car, I looked over, and I could see Justin standing there kind of waving his arms. He was saying Byron's name, and he was saying something in German. I could see Anastasia, but she wasn't reacting. She was like standing there looking at Justin.

Where is Justin standing in relation to the car?

He was standing pretty close to the driver's door.

And where was Anastasia?

She was back a little bit further. Probably about the second window on the driver's side.

Yeah.

Did you see where Byron got the gun?

I --

How do you know where he got the gun from?

Because the trunk popped.

I'm sorry if I missed that. You said he got out of the car, and what did you see?

And I heard the trunk pop before he lifted it.

Did you see him take the gun out of the trunk?

No. But I heard the trunk pop, and I saw him

Where? Which way did he step? Explain how that happened.

He stepped towards Anastasia away from the back of the trunk, like closer to where she was.

Now, once you see her laying back, what did you do?

I started crying. They got back into the car and --

How did that happen?

And Justin was saying, "Didn't you hear me? Didn't you hear me saying stop?"

And Byron said something like, "I already had the gun out. I already had it in her face. What was I supposed to do? You asked me to do this."

And Justin kept saying, "I didn't actually think that you were going to do this. I can't believe you did this."

Then what happened?

Since it was over, Byron said they needed to go get rid of the gun. So we drove to some industrial-looking type park with train tracks and such. Byron got out of the car and threw the gun, and him and Justin switched drivers because Justin was too upset to drive.

Do you know where that industrial area is?

No.

When you came forward and told the truth in September of 2000, were you interviewed by Sergeant Kilgore again?

Yes.

And at that time, did he ask you to try to show him where it was the gun was thrown?

Yes.

Tell the jury about that.

Well, he took me on a drive to all these, like, different industrial places, because -- right off of Truman Road it looks like that. We just drove around and around. He kept asking me if this place looked familiar, that place looked familiar. Basically, it all just looked familiar to me. He wasn't very nice about asking me where was, either.

Okay. And did any of the places look familiar?

Like they all looked familiar. Finally he would say, "Well, is this the spot? Is this the spot?"

And did he ask you anything about if any spot looked more likely than another?

Yeah.

Tell us about that.

Yeah. Well, it was a -- it was a place -- he asked if this place looked familiar, because it was pretty far away from my house. We had been driving for so long, I wasn't really sure where we were.

He said something like, "If I brought people back here to like search this area, do you think they would find anything?" And I said, "Well, maybe."

Is it fair to say you don't know where the gun -- exactly where the gun was disposed of?

No. Because, when it was disposed of, it was dark, and I stayed in the car. I didn't know. I had like a kind of a vague idea of it.

All right. Back to after the gun is thrown and you observe Byron Case throw it, and he gets in the driver's side and drives, where do you guys drive to?

We drove back to the condo, Justin's condo.

On that drive from when the gun is disposed of until the condo, is there any conversation about what happened?

Yeah. Well, of course. Once again, Justin just couldn't believe that he had actually done it. He was freaked out about it. Byron was just basically like, "Well, you asked me to do it. Now we have to deal with this. What are we going to tell the police?"

Did Byron Case ever say anything that night about you or Justin's role in this?

Yes.

Tell us about that.

Justin kept saying things like, "This isn't right. This isn't right." And he said, "Well, you asked me to do this and, Kelly, you were here too. I wasn't the only one doing this." Basically, it was like stick to this story, and now what"s done is done. We have to get past all this.

And who came up with the story or how did that come about?

The basic story was that same thing had happened. We picked her up at Dairy Queen so that she could talk to Justin about their relationship. She wasn't happy that me and Byron were there, and that, after them fighting for awhile, she like threw a ring at him in the car and that she got out at an intersection like right by Erotic City and stuff. And since I don't know Independence, they said it was a bad neighborhood, so they believed something might have happened to her.

What about the actual conversation right before she gets out and what's being said between the two of them? Was there an agreement on what was going to be told?

Yeah. Just -- well, not specifically. I don't think. Just basically, "Fuck you. I'm getting out."

Justin saying, "I'm not going to chase you down. Just go ahead and get out."

Had you seen Justin and Anastasia argue in that manner before?

Oh, yeah.

You said already I believe you've seen Anastasia stomp off and walk away in a fit of anger?

Uh-huh. And Justin would ask her to move out and stuff. They got to where they fought a lot. Everybody knew she kept trying to get in touch with him, and they were bickering back and forth, so I guess it kind of made sense.

And after you went to Justin's condo, what happened when you were at the condo?

Going over and over this story again trying to collect ourselves, and Byron is like, "Come on, Justin. You have to act normal."

What was he telling you?

Same thing.

And what were you doing?

Trying to get myself together. I was just completely -- didn't even seem like it actually happened. It seemed like some sick movie or something, it all happened so fast.

And I should ask you that. About how long did it take for all of this to happen? Was it a matter of seconds or minutes?

The actual shooting? Just minutes.

So the whole thing happened pretty quickly?

Uh-huh. The whole thing, and when he got out of the car, it was like door shut, bam, and no time at all.

After the condo, do you recall where you went?

No. I believe I went back to my parents' house.

And you don't recall making any stops between the condo and your parents' home?

No.

Do you recall when you gave a statement the day after the Friday -- I should say two days after, Friday morning, the 24th, when you first talked to Sergeant Kilgore about this and you have given this story that you have made up, do you recall telling him you made a stop at Abraham Kneisley's house?

Yes.

Was it true?

It's possible, I don't remember. The whole night was such a blur.

So you think it's possible that you stopped at Abraham Kneisley's house?

Possible.

Do you specifically have a memory of stopping there?

No.

What was the reason for getting you home? Why did you have to go home?

Because it was a school night, and it would have looked weird if I was really late.

What was your curfew?

About 9, 9:30.

And I remember it was really creepy, because right after he got off the phone with her he said, "Oh, great," like her sister said something to the effect of, "Well, thanks a lot. If anything happened to my sister, it's your fault." I remember Justin was really upset about it, because he said it was really ironic. It was like she already knew something bad had happened.

After Justin makes that phone call, were you present for that phone call?

I don't think I was. I didn't hear exactly what he said to her, but I remember I was there when he hung up the phone, because right when he hung up the phone, he told me that.

Was Byron there when he was making the phone call?

I don't know. But he did hear him say that and part of it.

Okay. Did the boys stay longer at your house after that phone call?

No, they left.

Did you ever see or talk to Justin Bruton again?

No.

Did you ever talk to Byron Case again?

Yeah. I talked to him later that night.

Do you remember who called or about when it was?

No. I think it was pretty late. 11, 11:30, something like that. I was talking to him about what had happened. He just seemed like so calm about it. I was saying I don't know if I could sleep. I was supposed to go to my grandparents' house with my mom the next day. I didn't know how I was going to act.

I told him, 'Justin seemed really shaken up. Do you think he's going to be okay?"

And he said, "Well, yeah, he should be okay.

So after you talked to Byron late that night, the next morning when you get up, what do you do?

I went down to Lockwood, Missouri, with my mom to see my grandma.

And did you spend most of the day there?

Yeah. I spent the entire day there.

When you got home, did you have any contact with anybody?

Yes.

Who?

Byron. I don't remember who called who, but he told me to turn on a news station, and I saw the newscast that Anastasia's body had been found.

And what happened?

I got really upset and freaked out. Of course, the whole thing was horrible. I didn't know if the police were going to try to come talk to me, and I got my mom to give me a ride over to Byron's house.

Did you and Byron, prior to you going over there when you talked to him on the phone after you found out, did you talk about Justin?

Yeah.

Tell me about that. Tell the jury about that.

He had talked to Justin earlier that morning, and I forget what time it was, but I remember it was weird. He said Justin had called him and talked to him and had told him he was having trouble sleeping.

Justin told Byron that Justin was having a hard time sleeping?

Yeah. Justin told Byron that he was having a hard time sleeping, and I remember Byron had said something like, "Well, do you even realize what time it is? I'll talk to you when I wake up later." Like he only talked to him for a few minutes, and he was like, "Oh, you'll be fine. Go back to bed." As far as I know, Byron never talked to him again after that.

Once you saw the news and had the conversation you have just talked about with Byron, you mentioned that you bad your mom take you somewhere. Tell us about that.

Yeah. I was obviously freaked out and went over to Byron's house, because I just knew somehow I was never going to see Justin again with how he was acting. And I didn't know when the police wanted to talk to me. I couldn't hardly remember the story anymore. It was just I was trying to go over there to talk to him about it like what should we do? Should we go to the police? Should we do anything?

Where was Byron staying that day or that night?

He was at his mom's apartment in Westport.

Okay. So your mother took you over there?

Yes.

How long did you stay?

I spent the night there.

Was that unusual?

For my mom to allow me to, yeah.

And when you spent the night that night, did you talk about the story anymore?

Yeah.

is there anything further unusual that Byron next did in the next 24 hours that sticks out in your mind?

Yeah. Well, we basically quit talking about the story after awhile because, you know, "Just get over it. Act normal." And I remember he had a job interview that night at Crown Center, and I couldn't believe he was going to a job interview after all this.

I mean, all this horrible -- he was worried about going to a job interview and he can't find his supposed best friend, and he's going to a job interview. And I asked him why and he said, "Well, we have to make everything look normal."

This we're talking about is Thursday night, right?

Uh-huh.

You have to say yes or no.

Oh.

She has to record it down. And Thursday night, did either of the two of you make a phone call looking for Justin?

I didn't. I believe Byron might have.

Okay. Do you know if anybody ever called his parents in Oklahoma?

Yeah. Byron called I think and talked to his stepdad -- I'm not sure -- and told him that Anastasia was dead and that they couldn't find Justin.

When did you talk to the police?

I believe it was that Friday.

So the next morning, after you spent the night at Byron's house?

Yes. My mom picked us up, and we went and talked to the police.

When you say "us" who is that?

Picked me and Byron up, my mom did, and drove us out.

Is that when you met Sergeant Kilgore with the Jackson County Sheriff's Department?

Yes.

When you met with Sergeant Kilgore, did he talk to you and Byron separately?

Yes.

And what did you tell Sergeant Kilgore?

A story we made up.

And is that the one that Anastasia had walked out of the car?

Yes, exactly.

Did he ask you where she had gotten out of the car?

Yes.

What did you tell him?

Told him I didn't know the area very well. Intersection somewhere down by Erotic City and such. And he asked me if he could take me there to show where she had gotten out, because when he showed me a map, I really didn't have any idea.

And did you go that day with him to the area?

No.

All right. What happened? Did you ever go out there with him to try to show him?

That we -- well, he told me, I never seen Justin with it, but yeah, added that he, like, owned a gun or got some gun at Wal-Mart or something that we had seen him with.

And who told you that Justin had had a gun and bought it at Wal-Mart?

Byron.

And so whose suggestion was it to add that to the story?

It was Byron's to make it more believe -- the police were already talking to us like they just assumed Justin did it anyway.

And you had never seen Justin with a gun?

No.

Didn't know anything about the purchase of one at Wal-Mart?

No, not until Byron told me that.

When did you find out that Justin was dead?

I don't remember the exact date.

But it was after you initially talked to the police; is that right?

Yes.

And let me back you up for a second. Did you ever go over and talk to Justin's stepfather who was in town?

Yes, I did.

Where was that?

At Justin's condo.

Do you remember what night that was?

No.

Was it before or after Justin was found?

I believe it was before.

And who went over there to talk to him?

Me and Byron.

And what happened when you went to see Justin's stepfather at the condo?

Justin's stepdad was talking about how Justin had ajways been really depressed.

Okay. Did you talk with Justin's stepfather what the story was?

Yes.

Who did? Tell the jury how that conversation went.

Byron -- I was pretty nervous and upset, because I basically had a feeling Justin was dead. Byron talked to him most of the time. I just kind of sat there.

After you talked to Justin's stepfather that night before he was found, did you go back and see Justin's stepfather again after Justin was found?

Yeah, I believe so. I'm not sure.

So you don't recall whether or not?

I don't recall. I remember going to the funeral. That's about it.

Okay. Then that's my next question. Did you go to Justin's funeral?

Yes.

Where was it?

Tulsa, Oklahoma.

How did you get there?

My mom and me and Byron drove up there.

And why did you go?

I wanted to go because his whole thing just wasn't -- didn't -- it was just so awful that Justin was dead, because it was just such a situation and that wasn't like him. That wasn't his personality and --

So what happened when you got down there to the funeral?

We went in, but it was a really creepy, awful situation. His sister -- I just felt so horrible even just being there. His little sister kept crying. His parents were obviously upset, and I was only in the church for a few minutes before we left, because it wasn't the type of service that seemed like Justin would have wanted.

Didn't seem like any of his f11ends were there. I thought it would help losing him and it didn't.

Did you attend Anastasia's funeral?

Yes.

Tell the jury about that.

Objection. Relevancy.

Your Honor.

Come on up.

(Counsel approached the bench and the following proceedings were had:)

Go ahead.

What I'm getting at, she is going to testify that she didn't want to go; that Byron insisted they go, because it would look abnormal if they didn't. I can lead her through this if you want me to. I'm not expecting her to get through a lot of specifics with the funeral and what kind of service it was or anything like that, if that's what you're thinking is irrelevant.

Well, I think based on what Ms. Crayon expects her to say, I think it is relevant testimony, so I'll overrule the objection.

My life just completely changed. I quit hanging out with like hardly anybody I had been. I quit playing sports. I couldn't -- I tried to kill myself I went from just being, like, you know some normal girl in high school to all I did was do drugs and try to -- I tried to talk to Byron several times about what had happened and he's just like, "It's in the past. Let's not talk about it."

My life just got destroyed. My parents always knew something more had happened with this, but I wouldn't talk about it. Everything got -- I had gone from being like an A student honor roll to I quit going to school.

It got so bad finally my parents wouldn't even allow me back in my house, because they said I wasn't actually dealing with the real problem, and I was just doing drugs. It was awful. I went from like living in Johnson County with my family to like staying in crack houses. I didn't hang out with -- my own friends wouldn't even hang out with me.

I was in and out of rehab, and I had never been in any type of rehab or anything before that. I had never been in like a Charter type facility or anything. After that it just got worse and worse. And I kept thinking maybe something like it would get better, and it just never did.

All I did was have nightmares about this. It just completely destroyed my life, it seemed like. I'm sure it destroyed Anastasia's family's life and Justin's family's life too.

Tell us about what you observed in that continuing -- now, how long did you continue to see Byron Case after this happened?

I would say about a year or so.

And during that year you're describing, is that part of the time frame when all this was happening?

Yes. It got more so after that though, but yeah. It was getting -- downward spiral, I guess, was already starting.

One night in particular, when I was upset, my parents had to take me to Charter because I was going to kill myself, and I was telling him I wanted to go to the police with what happened. And he said, "Nobody else's lives needs to be ruined over this. It will be all right. You were involved with it just as much as I. What are your friends and family going to think? What is your mom going to think?"

And this is what the Defendant would say to you?

Yes.

Did you guys ever have a conversation about his particular role in this?

Yes.

Did you ever confront him?

Yes. That particular night I asked him, I said, "Well, how can you not feel bad about this? You're a murderer."

And he said, "No, a murderer is someone who doesn't feel bad about what they did. I feel bad about what I did, but it's over so..."

You said you dated for about a year after this happened?

Yes.

During that time frame that you continued to date, did you spend holidays together or anything like that?

Yeah. He really wasn't getting along with his mom very well. His dad was always gone. So he was always -- he was at my house for Christmas and such.

So you did spend holidays togetherand hung out with him; is there a reason that you continued to hang out with him?

Yeah. Well, he was -- I was so young when I started dating him, it was like the only -- you know, anything I could ever known and everybody else involved with this was dead. I didn't feel normal around like other people or anything.

And I wasn't trying to solicit it.

what do you want to do? It's his ox that got gored. So what do you want me to do?

My first request for relief -- I wasn't planning to do this on cross, because we agreed I wouldn't go there, but I could add in my cross that you took a stress or lie detector when you were going with the first story that you didn't know who did it and you passed.

I will add this, in the report it says that the machine -- the results were not -- couldn't be considered valid because there was a malfunction in the machine. That's what the report says. So 1 think Kelly was told that she passed, but it was not a valid result. So I mean --

what exactly did she take? Polygraph and stress test?

No. She only took a voice stress test in the report that Kilgore writes.

I would be disinclined to let you get into it. I'll be glad to tell the jury to dis-- or instruct the jury to disregard that statement if you want me to.

Well, now she is created an impression she took a test. I think I should be able to point out she took the test and passed it when she was giving the other story when Anastasia --

The concern I have is just the whole issue is just for either side to rely to any degree is -- I think the better thing for me to do, I could give a very strong and loaded instruction to disregard.

Loaded instruction of what?

To disregard.

I mean, it's kind of how you want to do it. I could basically indicate that -- I don't know. In this regard, I could tell them there is no evidence -- the jury should consider no evidence regarding this voice stress test whatsoever. I could certainly do that. That has no place to this case. Etcetera. Et cetera.

I don't request that. I think it's just drawing emphasis to it, and she has bolstered herself with it is what I think has happened.

what relief are you asking?

I'm asking on cross to be able to point out when she took the test and passed it, it was when she was telling the first story that Anastasia got out of the car and walked away, since she injected it.

Go ahead.

Well, if he's allowed to do that -- she was left with the impression that she had passed it. However, the machine wasn't operating, and that's what the report says, so that's what ultimately would come out.

I would suspect that when you get down to the nub of this situation, is that they have this; that this machine is not particularly scientifically reliable under evidentiary standards; and candidly, I suspect this machine is an interrogation tool used by the police much more so than it is by the prosecutors. That's my attitude towards it.

Yeah.

You do it, and it helps in an interrogation context. So once we open the door to this situation, you know, once you let the genie out of the bottle, it's a very difficult situation.

She jumped right into an area that was agreed to by the State that you weren't going to get into. To leave the impression that she passed the test is not particularly fair to the Defendant. That's for sure.

Judge, if I could ask for a recess, maybe I could discuss with my client whether he would be interested in seeking a mistrial at this point. I don't know if 1 want to do that until I talk to the Defendant.

We could do that. Otherthing he could do is finish the direct examination, take a recess and deal with this issue out of the hearing of the jury. If you want to take a recess, now I'll do that.

I would ask for a recess now. If we decide we're not moving for mistrial, then there is no problem.

I'll let you discuss with him the options. Sounds good. And then what we'll do is both sides can discuss various options, and if there is a police report in this area, I need to see it.

Okay.

We'll just make a full and complete record. Take all the time you need.

(The proceedings returned to open court.)

Ladies and gentlemen, we're going to take a recess.

During the recess, 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, we'll be in recess. All rise, please.

(Court was recessed.)

(Following the recess, he following proceedings were had in the courtroom out of the presence and hearing of the jury.)

First order of business, my understanding, from talking to Ms. Carter, there was a gentleman attempting to mouth testimony talkng to the witness. Who was that gentleman? (The individual was pointed out to the court.) Sir, you need to leave.

I wasn't.

I'm telling you, you're gone.

Yes, Sir.

(The individual was escorted from the court.)

She mentioned the fact in a narrative statement -- Ms. Moffett mentioned the fact that one of the things that happened was that she took a stress test, and there may have been mention even of a lie detector test. There was no discussion of any results of that test.

And it was in response -- clearly the question by the State did not elicit that response. I think it was a narrative, and I think it was an innocent response. But clearly there was no -- the State was not attempting to elicit that response, at least that's certainly my view from the questioning.

Now, with that being said, we took a recess, because I wanted to make sure both sides could make any record they wished to make.

So, Mr. Lance, I'll begin with you. Is there a request? Do you desire to request a mistrial at this time?

No, Your Honor.

Do you require additional -- do you request anything additionally at this time?

Yes, Judge, our first request would be to allow me to -- during my cross examination, cover that topic with Kelly Moffett, go into further detail, since they opened the door.

If that request would be denied, I would at least ask a cautionary instruction be given to the jury.

Based upon the fact that this evidence is so clearly inadmissible, I think, once you get into it, it's a tar baby; and to explain it back and forth I think would just be unfair to both sides.

I'll give you one of three options or one of three things I'll do, Mr. Lance. If you want me to say nothing, I'll say nothing.

If you want me to give a traditional motion to disregard and nothing else, I will do that.

If you want me to inform the jury that there is no witness in this case who took any test regarding their truthfulness or untruthfulness that was conclusive in any way whatsoever, and further, tell them that these tests are not admissible and it would be the height of unfairness for them to consider anything about such tests, it would be unfair to consider it in any way against either side, I'll be glad to give that kind of cautionary instruction if you would like for me to do that.

I'll allow you -- if you want to suggest some language, I'll even let you suggest some language.

Defense would ask for option number 3.

All right. Do you want to suggest some language or do you want me to just handle it? You've heard the version that I intend to give pretty close.

I think you can cover it fine.

Okay.

But I think we have to give some type of instruction. I'm concerned the witness brought it up in an attempt to bolster her own testimony, and to just leave it hanging lets the jury think that she passed the test.

I understand that. So I'll be glad to -- do you want me to write something out so that you know verbatim what I'm going to say?

Yeah.

Here is what I have so far. Basically I would tell the jury this:

"No witness in this cause ever took any test with conclusive results regarding their truthfulness or untruthfulness.

"Furthermore, such tests are deemed inadmissible and incompetent as evidence in state and federal courts throughout this country.

"To consider this evidence in any way would be extremely unfair. You should disregard any testimony."

Then, if you. want me to get specific about it, I can, or I can say, "Any such testimony or any testimony regarding a stress test or a lie detector test," I'll be specific if you want me to be, or I can say any such testimony."

Just say "any such testimony" would be my --"

Okay. All right. We'll show your desire to cross examine about it. You've made that request. I have overruled it. Im giving instead this limiting instruction with input from you; is that agreeable?

That's the best we can do, Your Honor.

But I mean, I have denied your first request. I'm telling you, if you want me to work on the language, it's your --

No, if that's the instruction, I agree with that language.

I fully understand you're not waiving the right to cross examine Ms. Moffett about it, that's what you want to do, and as far as I'm concerned, I denied your first request; is that right?

Yes, sir.

And as far as I'm concerned, you have preserved any confrontational or Sixth Amendment type issues that relate to that request. Anything further?

No, Your Honor.

All right. I think it's only appropriate that I give such instruction with Ms. Moffett in the chair when the jury is here. So let's get her in the chair, and we'll go ahead.

To consider any such evidence in this case for or against either side would be horribly unfair. For that reason, you should disregard any testimony regarding such evidence.

With that being said, you may continue with your direct examination.

Thank you, Judge.

Q.

Kelly, I think you testified you talked to the police several times after the initial contact with them two days after the homicide; is that right?

Yes.

And each time that you were asked to come in and talk to the Sheriff's Department, would you make contact with the Defendant, Byron Case?

Yes, I would.

And what was his reaction when you would tell him they had called to ask you to come in and talk to them again?

He would tell me that it wasn't necessary; that they were just harassing us. "Just say you don't remember. You don't have to do it. don't do it. There is no reason to."

Now, after the two of you stopped seeing each other in a dating relationship, I think you've December of '98?

Yes.

In December of '98, between then and when you came forward to tell the authorities what really happened that night in September of 2000, did you have any contact with the Defendant, Byron Case, in that ensuing almost two years?

Yes. I had seen him in Westport. Tried to contact him on occasion when I would be real messed up and really upset about what had happened, but it didn't do any good. He didn't want to talk about it.

Yeah. I heard that he was going to move to St. Louis.

And where did you hear that?

I don't quite recall. Probably just people down in Westport and such.

Okay. So you heard that he was going to move to St. Louis, and that's what caused you to make a phone call and then eventually go to his apartment?

Yes. Because he was just leaving. I didn't have that option. I was trying to talk to him about everything, because I was thinking about coming forward, and it's like it didn't do any good. He was just running way from the whole situation, leaving me to deal with it.

Sorry?

He was just leaving me to deal with it.

And that's how you felt?

Yes, a friend of mine named Angie, and some girl was at his apartment.

And when you got to the apartment, did you try to have a conversation with those two people present?

No, not really. I talked to him about him leaving, and he knew what I was talking about. But I talked to him in private about the actual murder and everything, not in front of them, no.

Okay. But you talked about you didn't want him to leave or why he was leaving. Did you ask him why he was leavmg for St. Louis?

Yes. He said lots of bad memories and things to get away from.

Did you ask him if you would be able to contact him in St. Louis?

Yes.

Tell us about that.

I go, "Well, great. I'm just left here with this." I go, "What if the police try to get in touch with me? What if something more happens?" How am I going to get in touch with him? And he wouldn't give me a way to get in touch with him.

And when did you come forward with the truth after that conversation about how much time passed; do you know?

I'm not really sure.

Was it the next day or weeks?

No. It was longer than that. I believe it was in September of 2000.

All right. Did you ever tell either one of your parents what you had witnessed?

So I started crying and I told him that Byron had been the one that shot her and I witnessed it.

Now, after you told your father, what time of day was that?

That was the night before I went into rehab. It was pretty late at night.

And when you went into rehab, at any point -- when you first get into rehab, who do you meet with?

Maggie.

Who is Maggie?

Maggie is the drug counselor out there. I had been in there before, and she knew me. She was my main counselor that I had sessions with.

So finally, in one of our sessions, she took me upstairs, and she said, "Look, you're going to kill yourself with drugs and alcohol. You're just going to kill yourself if you don't deal with this. This isn't fair. You have to come forward. It's not fair to people's families. You really need to say something."

So I told her that I would. I said, "Okay, I know who killed her. I saw it, and I'll tell you. Well, then she kind of freaked me out. She said, "You do realize by law that I have to get in touch with the police right now," and all this. "I have to report this."

And I was like I thought maybe I could just confidentially tell her, but I couldn't.

And what was your reaction when she said that?

I freaked out. I started crying and I told her that Justin had done it.

Once you told Maggie that you were going to tell her it was the truth and that it was Justin, what did Maggie do?

Maggie called my mom.

And did your mom come?

Yes.

How quickly?

Really quickly, within about 30 minutes or so.

And tell us what happened when your mom got there?

Maggie told my mom, "We've already gotten in touch with authorities, and Kelly is going to tell us, you know, what happened with the murder and" --

Did Maggie suggest to your mom that you already told her it was Justin?

Yes. And my mom looked at me, and she said, "Kelly, last night you told your dad that Byron did it." And immediately I broke down crying and told her that was the truth, that I was worried about the whole police thing and everything.

I was also worried, obviously, about what my parents would think. That's one of the reasons I was scared.

How So?

Well, because like I said earlier, it was like Byron was like, "What are your friends or family going to think that you didn't say anything for this long?" I already screwed up so much by being a drug addict.

What did Maggie do at that time?

She -- I got in touch with a friend of hers, John O'Connor, who is a lawyer, and I went and met with him with my parents.

And after you met with Mr. O'Connor, what did you do?

Me and Mr. O'Connor went to go see Bob Beaird.

Who is Bob Beaird?

The prosecutor.

And did you have a meeting with him?

Yes, I did.

What was that regarding?

That was regarding that I wouldn't be charged with -- I would get immunity, and I wouldn't be charged with anything. I also wouldn't be charged with lying to the police if I agreed to tell the truth now.

Okay. And it was after that then that you met with Bob Beaird and you told him the story that you have told the jury here today, the truth about what happened; is that right?

Yes, that's correct.

And what did they do then? Who did they put you in touch with?

I don't believe --

Who did you talk to after you talked to the prosecutor's office?

Oh, Sergeant Kilgore.

Okay. And were you asked to give a statement to him?

Yes.

And did you do that?

Yes, I did.

And it was then that you went and tried to help him locate where the gun was, and we talked about that already; is that right?

Yes.

Yes.

And how long ago was that?

It was just a couple days ago. I believe it was last week.

I want to talk to you, Kelly, about some attempted telephone contact that you had made with the Defendant, both while he was in St. Louis, and here in Kansas City after you --

Your Honor, may counsel approach the bench.

Sure.

(Counsel approached the bench and the following proceedings were had:)

Judge, since we're going into the topic of the audiotaping, I wanted to renew my pretrial motion at this time and my motion to exclude the audio tapes. There were two aspects of that motion.

One is objection to the quality of the tapes, but I'm also objecting to the idea that these are, in fact, tacit admissions or that they should be ruled tacit admissions and the case law in Missouri is wrong on that issue.

All right. Both the areas that I think you previously suggested, that the audibility of such, that it shouldn't be admitted, and secondarily, you believe that you've raised the relevance grounds, tacit admission issue and also those objections reasserted; and my ruling is the same, and I will allow you, if you so desire, to have a continuing objection during the entirety of the future testimony in this regard.

Yes. Just so I don't have to approach the bench at every question.

Obviously, assuming the other foundation is laid, we're going to get into some testimony about the tapes, and we're going to play the tapes in front of the jury. And during that entire procedure, as far as I'm concerned, you're objecting to all of that?

Yes. You're showing I have a continuing objection to both audiotapes?

Absolutely. Now, obviously, Mr. Lance, I can't predict to you where the Court of Appeals is coming from. But from my point of view, from whatever jurisdictionalpower I have, you have such a continuing objection throughout the entirety of this trial and testimony regarding these tapes.

All right.

(The proceedings returned to open court.)

Q.

We're going to talk now about some phone contact that you tried to make with Byron Case after coming forward with the information that you have testified to that the Defendant was the person who killed Anastasia WitbolsFeugen.

Yes.

First, you've already testified that he moved to St. Louis. Did you know how to reach him in St. Louis?

No, I did not.

And how did you find out how to reach him in St. Louis?

From law enforcement. Okay. So after you came forward, you were given telephone number for him?

Yes.

And tell us what happened just before you were tying to make these contacts with him in St. Louis? Who came out to your house? What did they do?

Sergeant Kilgore came out to my house and installed on his own phone this little recording device where you had to be on that phone to record it.

It was a phone he provided?

Yeah. He provided. It was hooked up to, like, a little machine.

And where was that phone located?

It was on our downstairs living room.

And you said -- did he show you how to use it?

Yeah. In order for to get an incoming call, you had to be on that specific phone, and to record anything going out, you had to press record to make a tape or in order for it to record it.

And he left that attached to your telephone; is that correct?

Yes.

And after he had done that and after you were provided the telephone number to make contact with Byron Case in St. Louis, did you try to call him?

Yes.

What happened when you attempted to do that?

I never got a hold of him. I talked to some roommate of his or something a couple times, but I never talked to him when he was in St. Louis.

Could you tell whether that roommate was a man or woman?

No. It was a female.

Did you leave messages for Byron with her?

Yes.

When you spoke to her, were you told that he either wasn't there or didn't live there?

Yes.

And how often did you try that?

A couple of times, but it seemed pointless, so I just quit trying for awhile.

Did Byron ever call you back after you left a message?

No, I don't believe so.

Yes. They said he was living with his mom.

Were you given a telephone number?

Yes.

And what happened once you were given that information?

I tried to call a couple times until finally I got a hold of him pretty late at night.

All right. And was it close to the time of his arrest?

Yes.

It was prior to his arrest though?

Yes, prior.

And did you talk to him when you got a hold of him?

Yes.

And did you record the call on the machine that you have talked'about that Sergeant Kilgore put in your home by pushing the record button when you were attempting the phone call?

Yes.

Kelly, last week when you came in when we talked to you about testifying here in Court, did we show you any tapes?

Yes, you did.

Did we show you any transcripts?

Yes, you did.

I'm going to show you what's been marked as State's Exhibit Number 10 and 10A, and I want you to take a look at especially 10A. Do those look familiar to you?

Yes.

And did we ask you to listen to State's Exhibit Number 10, the tape?

Yes.

And did we ask you to review 10A? Is that a transcript of the tape?

Yeah, that's a transcript. You had me read it.

And did we have you read the transcript as the tape was playing?

Yes.

Did that transcript accurately reflect what was on the tape that you were listening to?

Yes, it did.

And did you recognize the voices of who was on the tape?

Yes.

Who were they?

Well, my voice, obviously, and Byron's voice.

Do the tape and the transcript, State's Exhibit Number 10A and 10, fairly and accurately represent the first conversation that you recorded with Byron Case in early June of 2001?

Yes.

At this time, Your Honor, I move to admit State's Exhibit Number 10 and 10A.

Do you want to come up, Mr. Lance?

(Counsel approached the bench and the following proceedings were had:)

Same objection.

Do you have any objections other than the objections you previously raised?

No additional objections.

I'm going to show it overruled. Now, what I'm going to do, so we're clear about this, I'm admitting 10. I'm admitting 10A for the sole purpose of aiding the jury in listening to 10. I intend to give an instruction. Do you have any objection to that?

No, no objection.

In other words, telling them the transcript is being admitted for the sole purpose of aiding their ability to listen to the tape and the evidence is the tape if there is a conflict between the two, they should rely upon what they hear on the tape.

That's fine.

(State's Exhibit Nos. 10 and 10A were received into evidence.)

Are you going to play it now?

No. I'm also going to do 11 and 11A.

I'll make the instruction at the time you play it.

All right.

(The proceedings returned to open court.)

Q.

Would you agree with me that State's Exhibit Number 11 is an audiotape?

Eleven, yes.

And 11A is a transcript; is that correct?

Yes, that's correct.

While you were in the office last week and we asked you to listen to State's Exhibit Number 11 and we asked you to read along in State's Exhibit Number 11A, can you testify whether or not 11A is an accurate reflection of what you heard on State's Exhibit Number 11?

Yes.

Again, can you identify who the voices are on State's Exhibit Number 11?

Yes. My voice and Byron's voice.

Does 11, the audiotape, and 11A, the transcript, fairly and accurately represent the second conversation that you had with Byron Case?

Yes.

And again, that is in early June of 2001; is that correct?

Yes.

Again, can you identify who the voices are on State's Exhibit Number 11?

Yes. My voice and Byron's voice.

Does 11, the audiotape, and 11A, the transcript, fairly and accurately represent the second conversation that you had with Byron Case?

Yes.

And again, that is in early June of 2001; is that correct?

Yes.

Your Honor, at this time I would move to admit State's Exhibit Number 11 and 11A.

Same objection.

We will show the same objections reasserted and same ruling, and I will admit 11 into evidence, 11A for the sole purpose of assisting the jury in listening to Exhibit 11.

(State's Exhibit Nos. 11 and 11A were received into evidence.)

Q.

Very briefly, Kelly, I'm going to ask you on the first telephone call, State's Exhibit Number 10 that we have talked about, can you tell the jury, generally speaking, what your conversation with the Defendant was about? This is the first call you made in the late evening.

I was trying to talk to him about what happened. I had told him that I was still having, like, a really hard time with it. I was telling him that police were trying to get in touch with me, and what should I say to them? And he said, "Just tell them you don't remember."

Did you talk about whether or not you should meet?

Yes.

Tell us about that.

Yeah. He didn't want to talk about it on the phone, so I decided it would be a better idea to ask him to meet in person at Loose Park where we could talk about this.

Did you ever meet him at Loose Park?

No. I was told not to.

Why?

Because the guys just didn't feel like --

Objection.

Just a moment, Ms. Moffett. Come on up.

(Counsel approached the bench and the following proceedings were had:)

Objection, I think it calls for hearsay.

That's fine. I'll withdraw the question.

She was instructed not to meet is sufficient.

(The proceedings returned to open court.)

Q.

You were instructed not to meet him at Loose Park; is that correct?

Yes.

And the second tape, which is State's Exhibit Number 11, is another conversation that you have just testified that you had a transcript and a tape of a conversation you had with the Defendant. Again, can you very briefly tell the jury the context of that conversation.

That was me calling him saying I've been trying to get in touch with him and saying that I couldn't meet him and trying to set up another meeting with him.

And did you try to talk to him over the telephone?

Yes.

What happened?

He didn't want to. And he said he didn't want to meet because he had been sick.

At this time, Your Honor, I would seek permission to play both State's Exhibit Numbers 10 and 11 to the jury with them being allowed to have a copy of 10A and 11A for their assistance in listening to the tapes.

Let's do it one at a time. Let's pass out 10A. When we play these tapes, Mr. Lance, if you want to try to move so you're in a better position, you may do so, and your client is welcome to move with you if you so desire.

Ladies and gentlemen, as you're being passed out these transcripts for this tape, let me give you an instruction if I might.

The sole purpose for these transcripts is to aid you in listening to what's on the tape. The transcripts themselves are not evidence. They're only given to you to aid you to listen to what is on the tape. The tape is the evidence. If you feel that there is a conflict between the tape and the transcript, you should rely upon your memory of what the tape said. AR right? Everybody got a transcript?

They do now.

Judge, I have one more question to ask Ms. Moffett before we start to set this up.

Q.

Moffet, you have heard this tape; is that right?

Yes.

Is it very difficult to hear either you or Mr. Case?

Yes. It's difficult to hear him.

And you were using the recording device that was on your phone; is that right?

Yeah. It was on the phone he provided for me.

Right. So the phone that was at your house?

Yes.

And you come through very clearly, do you not?

Yes.

And it's very difficult to hear Mr. Case; is that fair?

Yes, that's fair.

But with the aid of the transcript, were you able to hear what he was saying with the transcript helping you along?

Oh, yeah. It was the conversation.

Okay.

All right. Do. you wish to play this now?

Yes, Judge.

Let's play 10.

MR. Fry, if you would collect 10A first, and once you collect 10A, you may distribute 11A.

Ladies and gentlemen, as he's passing out 11A, the same instruction applies to 11A. It is not evidence itself. It is only to be considered by you to assist you in listening to what the evidence actually is, which is the tape, which is Exhibit 11. If it conflicts between 11 and 11A, it should be resolved by you relying on what the tape says as opposed to the transcript.

unless I have counted wrong here, Judge, I may be one short.

You can take this one. I've listened to it before. Do you have one, Mr. Lance?

Yes.

Q.

Before we start playing the tape, Kelly, I ask you the same questions regarding State's Exhibit Number 10 regarding the volume of voices. Again, are you able to be heard much more clearly on the tape than Mr. Case?

Yes.

But your review of the transcript, is that an accurate reflect as best can be from the tape?

Yes.

And as far as you're aware, Byron Case didn't know that she was present?

Yeah. He didn't know, huh-uh.

Just to clear that up, also, the first tape you were there by yourself with your friend, Angie, initially and made the tape using the recording device that Sergeant Kilgore had, right?

Yes.

That he brought to your house. The second tape, State's Exhibit Number 11, was made in the presence of other officers from the Jackson County Drug Task Force; is that right?

Yes.

They were assisting in you trying to make contact with the Defendant; is that right?

Yes.

And after this conversation that the jury just heard played for them, were you ever able to contact and speak to the Defendant again?

No.

And you attempted to; is that correct?

Yes.

But he never called you, did he?

No.

Now, did you ever meet the Defendant anywhere?

No.

After, Kelly, after Byron Case had left Kansas City for St. Louis in September of 2000 and you came forward with the truth about what had happened, did you ever make any attempt to contact him beyond the direction of law enforcement?

No.

Have you talked to Byron Case since he's been arrested on this charge?

No.

He was saying he was going to kill himself He was upset about us breaking up. And he went into -- I don't know if he had been drinking or not. He sounded like he had been. And he went into great detail how he was going to kill himself He said he had a weapon, and he wanted me to come over, but I didn't want to.

And I was like, "So you're really going to kill yourself?" And he said, "Yes."

I didn't want any part to go over there and talk to him, but I was like, "Okay, if you're really going to kill yourself, I'm going to call the police."

Was he angry? Was he crying? What was his mood on the phone?

He was more depressed. He wasn't angry.

Was he really calm?

No. He was crying and kind of hysterical.

So when you told him that you were going to call the police, what happened?

Hung up on each other. And like I said, I warned him. I go, "I'm going to call the police. I'm not going to come over there, but I'll call the police," so I did. I called 911 and they went over there.

Okay. Did you make a report regarding the fact that you thought he was going to kill himself?

Yes.

Did you receive a call from Western Missouri Mental Health?

Yes.

And was the real purpose of that call was to confirm the information?

Yeah. Confirm what I told the 911 person.

I wanted to ask you regarding Justin Bruton -- I know I'm jumping around on you a little bit.

Okay.

Regarding Justin Bruton, just prior to the homicide, like the month or so prior to the homicide, do you know if Justin Bruton was doing any drugs?

Yes.

Tell us about that.

Prior to it. I hadn't been with him when he was doing it, but he was telling me he was doing acid and mescaline. He seemed really weird after that. I think he overdosed on mescaline or something, because he was talking about hearing voices and hearing people under the floor and just not feeling right about everything and kind of being scared to leave his house and such.

How close was that to the homicide?

Pretty close.

How close?

Pretty close. Probably within a couple weeks beforehand or so.

On the night of the homicide that you have described when you were there and saw what you did was anybody doing any drugs that night?

No. Well, aside from the alcohol that I drank, no.

Your Honor, at this time I don't think I have any further questions for Ms. Moffett.

All right. Can I see counsel briefly?

(Counsel approached the bench and the following proceedings were had:)

Do you want to start? How long do you think you'll be?

I was going to request a break, just because I think it may go for awhile.

Okay. If you want to do that, I'll give you a short 10-minute break.

(The proceedings returned to open court.)

Let's take about a 10 minute break before we commence cross examination,ladies and gentlemen. With that being said we're going to be in recess.

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.

My present plan is for us not to go much past 5 o'clock. Let's try to keep this recess down to 10 minutes or a little more, but approximately 10 minutes, or not much more than that. We will try to start shortly after 4 o'clock.

(A recess was taken.)<

(Court resumed shortly after 4 PM.)

(The following proceedings were had in the courtroom in the presence and hearing of the jury:)

Mr. Lance, you may commence your cross examination on behalf of Mr. Case.

Yes.

Do you remember telling the jury about that?

Yes.

So you agree that you lied to the police?

Yes, I did.

I just want to make sure I have this straight. You lied to your mother and you lied to the police, but you're here today to tell the jury the truth?

Yes.

Do you recall the date it was when you and your attorney, Mr. O'Connor, approached the prosecutor's office?

No.

If I brought up the time frame of September of 2000, does September of 2000 sound accurate to you?

Yeah I guess. I know it was September.

And you believe it was during the calendar year 2000?

Yes.

I'm talking about the day you approached the prosecutor's office and you were told you could have immunity?

Uh-huh.

Just want to make sure we're talking about the same date. If I threw out the date September 19th 2000, do you disagree with that date?

No. I don't recall the exact date.

You're sure it was in September?

I believe it was.

All right. And you agree that was -- well, if it was September 19th of 2000, it was one month shy of three years later?

Yeah.

Okay. I need to ask you about October 24th of 1997. 1 believe that's the day you first met with Sergeant Gary Kilgore?

It was the following Friday.

And that was the day you told Officer Kilgore you said Anastasia got out of the car at Truman Road and I-435 and walked away from the car?

Yes.

Do you recall that you met with Sergeant Gary Kilgore again on November 20th of that year?

Yeah.

It was a day that you actually got into a vehicle with Mr. Kilgore and you drive around Mount Washington cemetery?

Yes.

So this would have been November 20th 1997, a second meeting with Gary Kilgore. At this second meeting, you're still going with the story that Anastasia got out of the car and walked away?

Yes.

Do you recall on December 10th, 1997 you spoke on the phone with Officer Gary Kilgore?

I don't really recall the date. I talked to him so many different times.

Sometimes it was in person; sometimes it was over the phone?

Yes.

If I, for example, produced a police report of the date of December 10th '97 and a phone call, do you disagree with that?

No.

So by December 10th of '97, you would have spoken to the police at least three times?

Yes.

And up to that date you're consistent with Anastasia got out of the car at the stoplight and walked away?

Yes.

Do you recall that, on August 22nd of 1998, you met with Mr. Gary Kilgore again in person?

Yes.

And they took another tape recorded statement of you?

Yes.

And this was at least the fourth contact with Kilgore, right?

Yes.

And at that point, August 22nd of '98, you're still telling everyone, "Anastasia got out of the car and walked away. I don't know who killed her"?

Yeah, because that was the story the police already assumed that is what actually happened.

So the police -- you had the impression the police believed you?

Yes.

And shortly after this face-to-face meeting with Mr. Kilgore, then 'three days later, on August 25th, you spoke on the telephone with Mr. Kilgore again?

I don't know the date, but yeah, I talked to him on the phone quite a few different times.

So, if I'm counting correctly, that's at least five times you spoke with the police, right?

Yes.

And maintained that you did not know who killed Anastasia?

Yes.

And I think you're telling the jury there are probably other phone calls not documented in the police reports where you spoke with Kilgore?

I don't recall. I met up with him a bunch of times, and we would talk on the phone, too.

But you would agree from the dates I listed it was at least five times you spoke to the police?

Yes.

And at least five times you told the police that Byron Case is telling the truth; Anastasia got out of the car and walked away?

Yes. I don't think they ever specifically asked me if Byron was telling the truth, but I just stuck with the story that was made up.

For almost three years?

Yes.

During those three years, was it made clear to you that no one had ever been arrested for the homicide of Anastasia WitbolsFeugen?

Yes.

Did it appear clear to you that there were no suspects in the case?

Yes.

Let me follow-up on your drug usage that was mentioned earlier today. Did you ever use illegal drugs before the death of Anastasia?

Yes.

And did you ever drink alcohol before the death Anastasia?

Yes, but not to the extent --

All right. That's what I'm trying to clear up. So you had used drugs and alcohol before she died?

Yes.

You're just saying it got a lot worse after she died?

Yes.

Now, later after Anastasia's death, you agree at one point in your life you suffered from an addiction to crack cocaine?

Yes.

And at one point your drug addiction was so bad that you were, basically, homeless?

Yes.

And it's true you had been kicked out of your parents' home?

Yes.

And for a time you had to live at a crack house or this other crack house, had to move around?

Yes.

Completely homeless?

Yes. Well, I had friends I would stay with and such, but yeah.

Yes.

Do you recall if that was September 21st of 2000?

I don't know the specific date, but I remember him coming out there.

You remember Mr. Kilgore visiting you at the rehab center?

Yes.

And you remember it was an important day, because this was the first time you were telling truth to Detective Kilgore?

Yes.

And you don't remember if -- do you disagree the date was September 21st of 2000?

I don't disagree, but I don't recall the exact date.

All right. Do you agree he tape recorded your statement that day?

Yes.

And you're coming clean. You're telling the detective you saw this homicide. You're telling this person everything you know about the homicide, right?

I was telling him the best of my recollection what I could.

All right. And on this date, September 21st of 2000, did you tell Mr. Kilgore that it's true that Justin and Anastasia were fighting all the time?

Yes.

Shortly before her death?

Yes.

And Justin Bruton was doing acid in the time frame shortly before her death?

Yes.

And you told the detective that day that Justin and Anastasia had come up with this wild plan to go rob Justin's parents in Oklahoma; is that what you told him?

I dod't recall exactly what I told him.

Have you had a chance to review any transcripts of your tape recorded statements?

No, not really.

Would it help refresh your memory to look at the transcript of that recorded statement?

Yes.

Ms. Moffett, I'm handing you a document -- I'm not going to have you read it out loud, but read quietly to yourself.

Which part?

Page 2, answer 6, where it says "A" for answer. I'm talking about page 2, answer 6.

Okay.

Have you had a chance to review that document?

Yes.

Now, again, I prefaced this, this is the day you're talking to the police the first time telling them the whole truth, the whole story, right?

Yes.

And you told the police it was Justin and Anastasia that came up with this wild plan to go rob Justin's parents, right?

Yeah. I was telling them from the best of my recollection.

But at least on this tape recorded statement, there is no mention of Byron being in on this wild plan, is there?

No. But I know for a fact that he left with them to go down there and deal with it. He talked with me about it later.

They all three talked about it in front of you, right?

Yeah.

But nobody took it seriously, right?

I didn't take it seriously.

All right. And when you first mentioned it to Kilgore, you said it was Justin and Anastasia's plan; isn't that what you said?

Yes, that is what I said.

Now, leading up to the date of Anastasia's homicide, that October, is it fair to say during that last month, Justin Bruton had some odd plans about hurting people?

Justin, yes, so did Byron though.

Let me ask you about Justin. We've already discussed this wild plan to either rob or hurt his parents. Do you agree that Justin Bruton was the main instigator of that plan?

Yeah, because he knew his parents had money, and he knew their schedule and everything.

Let's see. The other wild scheme was to put explosives in a church?

Yes.

All right. And threaten to get ransom money; was that the idea?

Yes.

Now, in the weeks just before Anastasia's death, did it appear to you that Justin Bruton seemed to be extremely depressed?

Yes.

Is that fair to say, extremely depressed?

Yes, very depressed. He wasn't like himself

And I believe-- correct me if I'm wrong -- your testimony today was that, within two weeks before the shooting, Justin Bruton heard voices talking to him?

Yes.

He told you this himself?

Yes.

And these voices' apparently were coming up out of the floor talking to him?

Yes.

Now, earlier today you said that Byron Case had made a comment that he wanted to know what it felt like to kill somebody?

Yeah.

Is it true that Justin Bruton had also made a similar comment?

To some degree. Not as much and as often as Byron had. The music that they would listen to is real --

I'll object to that as unresponsive.

Sorry.

Is it fair to say that Justin Bruton had also made this comment that he wanted to know what it was like to kill somebody?

Yes. But not to the degree that Byron had.

I'm sorry if I'm skipping around. I'm sure it seems like I'm skipping around.

I want to talk about your meeting with Mr. Kilgore on September 21st of 2000, the date that you came clean so to speak. You told Mr. Kilgore your version of the truth for the first time, September 21st 2000?

Yes.

Now, did you tell Mr. Kilgore that the two boys, Justin and Byron, needed you as part of the plot for you to call Anastasia and set up a meeting?

Yes.

And you told Kilgore that you were supposed to be the one to call Anastasia and you were to ask her to meet at Dairy Queen?

Yeah. Well, she already knew they were going to meet up, but they wanted me to ask for her.

All right. But when you first told Kilgore about it, did you say you were supposed to call Anastasia and you were to ask her to meet at Dairy Queen?

Yes.

And did you say that you did, in fact, call Anastasia from a gas station that day?

Yes.

And you told Kilgore that you yourself spoke with Anastasia on the phone?

Yes.

And when asked where to meet, you told Anastasia meet at the Dairy Queen?

Yes.

Now, back in October and November of '97 at that time you had given the police a different story, right? That she walked away from the car?

Yes.

In your 1997 statements,you said Justin Bruton made the only phone call from that gas station; do you remember saying that?

Yes.

In '97 you said Justin made the only phone call from that gas station; the only person he spoke with was Anastasia's sister, Francesca?

Yes.

And that Anastasia had already left for Mount Washington Cemetery?

Yes.

Do you remember telling all of that in November 1997?

Yes.

Did that take place? Did Justin Bruton call from the gas station and only reach Francesca?

No.

That --

I believe he talked to her earlier that day.

So you made that up when you talked to the police?

Yes. I mean, the whole story was made up.

The whole story was made up?

The story that we initially told the police.

So, if Francesca says Justin Bruton did call her, that was made up?

No. Are you talking about -- what part are you talking about? Which statement?

November of '97. You said Justin made the only phone call from that gas station and the only person he spoke with was Francesca.

I'm sure he spoke to her, but that's what I had been filled in with later, because I don't recall him using the phone at Phillips 66.

So that was just another lie you told the police in November of 97?

Yes.

Now, after you left that gas station and you're on the way out to Dairy Queen over in Missouri, are you claiming that the three of you in the car were drinking?

Yes.

And what were the three of you drinking?

Jack Daniels.

Hard liquor, right?

Yes.

How much did you have to drink?

I don't know. Couple drinks. But I wasn't drunk. I don't think they were drunk either.

You had a couple of drinks?

Yeah.

Did you ever tell the police that Byron Case was acting drunk that night?

I might. I don't recall.

Did you ever-state that Byron smelled of alcohol when he first picked you up at your home?

I don't recall if he was drinking before or when.

Did you ever make such a statement at your sworn deposition, that Byron smelled of alcohol when he picked you up?

I don't recall.

Would it help refresh your memory to look at your transcript?

Yes.

Again, this is not something I'm asking you to read out loud, but it's page 68, line 15.

What line did you say?

Line 15, page 68.

Okay.

You've already had a chance to review that?

Yes.

Well, first let me back up and ask, do you tell the truth?

Yes.

Do you remember the day of the deposition?

Yes.

You were sworn to tell the tuth?

Yes.

Did you tell us the truth?Yes.

Yes. Well, as to the best of my memory, yes.

When you were asked the question at the date of the deposition, did you say Byron smelled of alcohol when he picked you up at your home?

Yes.

That would have been before you ever went to the gas station or drove to Dairy Queen?

Yes.

And now-- correct me if I'm wrong -- but earlier today, when the prosecutor was asking you questions, did you say earlier today that Byron was not drinking that day?

I don't recall exactly if he was drinking or not. I'm trying to answer to the best of my knowledge. There was like drinking going on when I got in the car. Part of it was down.

When you first talked to Kilgore, you made special note that the bottle was half empty and that people smelled of liquor. Do you remember making those comment?

Yes.

And, in fact, you went so far in the deposition to say Byron was acting drunk? Did you say that?

Yes.

You said Byron was acting drunk?

Yes.

Did you go so far as to say that Byron had been drinking quite a bit?

Yes. I must have. Yes.

All right, which I just need to clarify what you're going with then. What you said at the depo was that he had been drinking quite a bit or what you said earlier today was that he wasn't even drinking?

I'm trying to answer it to the best of my knowledge. I know they had alcohol with them and that quite a bit of it was gone.

All right. When you made this statement at the depo, Byron had been drinking quite a bit of it, do you still stand by that statement?

There was drinking going on.

All right. Let's skip ahead to DQ. You told Officer Kilgore that when you got to DQ, Byron Case ran inside to get Anastasia; is that what you told him?

I guess. I don't recall exactly what I said.

All right.

Somebody got out to go get her. I know that.

Again, I'm going to ask you to quietly read on page 7. 1 believe it's the second page.

Page 7, where?

Page 7, the second answer. I'm on September 21st of 2000.

Yeah. I said I think maybe they did, but I said I'm not sure.

You understand this is tape recorded so it's on tape?

Yes.

You said, "I think Byron ran inside to get Anastasia."

Yes, I said, "But I'm not sure."

You didn't say they ran inside.

I don't get what you mean.

All right. Let's go back to my original question. Did you tell Detective Kilgore that Byron Case went inside the DQ to get Anastasia?

In this thing?

Yeah.

Yes, but I didn't say I was positive of it.

And this is on September 21st of 2000?

Uh-huh.

This is when you're first coming clean with Detective Kilgore, right?

Yes.

And you said, "I think Byron went in and got Anastasia." You couched it in those terms. "I think Byron went in there." That's what you told him?

Yes.

Okay. Even though this was Justin's girlfhend, you thought Byron went inside to get her?

Well, it didn't seem like that important of a thing. He was just going in to get her. Somebody went in to get her.

It's not important unless you're pointing at Byron doing everything wrong, including going in to get her out Of DQ.

Your Honor, I object. That's argumentative. That's not a question.

Well, I think it was responded to by the witness' answer, so I'm going to overrule the objection.

Q.

After you left the DQ, no matter who went in and got her, after you leave the DQ, you're all four in the car now, right?

Yes.

Just before the shooting, did you try to warn Anastasia in any way?

No, I didn't.

And after the Dairy Queen and just before this shooting, do you still allow that Anastasia was arguing with Justin Bruton?

Yes.

In fact, that evening she took off a ring in the car and threw it at him, didn't she?

Yes.

Inside the car she threw the ring at him, was yelling at him?

Yes.

So you don't dispute that Anastasia was angry at Justin that night?

Yeah, she was angry.

Angry enough to get out of the car, slam the door and walk away?

I don't see how that -- she used to get mad and leave the condo, but I didn't know her well enough to know she was going to get out.

I just want to be clear. You agree they were arguing and Anastasia was very angy?

Yes.

You just now disagree she was angry enough to get out of the car and walk away?

No, I don't disagree. I don't know. She was angry. They were fighting.

Prior to the evening of this homicide, did you ever see Byron Case fire a gun?

No.

Had you ever known Byron Case to own any gun?

No.

Your Honor, I object.

What's your objection?

My objection this calls for speculation.

Sustained as to the form of the question.

Q.

Do you recall at the deposition I asked you if you had ever seen the gun before? Do you recall that question?

Yes.

What was your answer?

No. Because I wasn't sure if that was the same. I couldn't be positive if that was the same gun or not. He told me that, but that would have just been me guessing.

So your honest answer would have been, "I don't know if I had seen the gun before"?

Yes. That's probably what I should have said.

What you should have said. But I said, "Have you seen the gun?" And you said, "No." Today you're agreeing you had seen the gun on the wall?

Yes, but I didn't know if it was that gun.

So your honest or better answer would have been, "I don't know if that was the gun I saw"?

Yes.

Not very far.

And, in fact, that's what you told Mr. Kilgore when you came clean with him in this statement; you said where was this gun was ditched is not very far away from where Anastasia was killed. That's what you told him that night too?

Yes.

?So you're saying Mr. Kilgore sort of bullied you into agreeing this was the spot?

Yes. He wasn't questioning me very nicely. Put it that way. He seemed annoyed with the whole thing.

Would you agree it's fair to say Mr. Kilgore left that meeting with the understanding that you had pointed out the spot at Lake Quivira?

Yes. Well, he said, "If I have people come out here and look, will we find anything?"

And I said, "Maybe."

Are you aware he actually went back to that spot, took photographs, they thought that's the spot where the gun was?

I'm not sure.

But that was the last spot you went, right?

I believe so.

It was out by Lake Quivira which is over in Kansas?

Yes.

And would you agree that that spot by Lake Quivira is not near the cemetery where Anastasia was?

Yes, I would agree.

Now, in this same statement again, where you're telling the police the total truth here, September 21st 2000, did you tell Kilgore that, when Byron fired the gun, he was 5 feet away from Anastasia?

Yeah. Probably made a guesstimate.

Your guesstimate was Byron was 5 feet away from Anastasia when he fired the gun?

I guess.

And you mean that's what it says on the tape?

Okay.

Or do you --

Is it in here? Or on the tape?

This is a transcript of the tape.

Okay. Yeah, I probably said that. I think he asked me something like, "Well, do you think it was from here to here?" "Well, how far away would you say that was?"

"I don't know, five feet. Something like that."

I am on page 19, answer 6 if you need to refresh your memory. Page 19, answer 6.

Yeah. He probably said here to that wall. Well, he showed me an approximate he said, "Would you say that?"

And I said, "Yeah. Maybe that."

And the figure mentioned as you're reading there is 5 feet, right?

Yes.

And, in fact, you said or maybe a little more; isn't that what you said on that page?

Yes.

So it was 5 feet or maybe even a little more, right?

Yes.

At least that's what you told Mr. Kilgore, right?

All right. Now, I want to ask you about what you saw at Lincoln Cemetery that night. First of all, did you see what position Anastasia fell to the ground in? What position? I'm not sure.

Yes.

You're saying yes, you saw that now?

Well, I saw how she fell back. I saw how she landed.

You saw her on the ground then?

Yes.

Do you recall when you were telling Mr. Kilgore everything you know in this statement here, that you said -- he asked how she fell and you said, "I don't know. I think she was on her back." Did you say that?

Did you say that?

Yes.

So it started off with, "I don't know. I think she was" --

I was trying to remember.

Well, today you seem very certain that she fell on her back.

Yes.

Has someone shown you these photographs?

No.

I believe today you made the comment that, when she fell, you even saw her feet or something like that?

I looked back and I could see her feet like she was laying on her back.

And are you aware that that cemetery at that time of day doesn't have any lighting?

It was light enough for me to be able to see that.

So, if an officer said it would have been pitch black in a cemetery, would you agree with that statement?

No, I don't.

After you say you saw the shooting at Lincoln Cemetery, after that did you see any blood on Justin Bruton?

No.

Did you see any blood on Byron Case?

No.

According to your testimony today, after the shooting, you claimed that Justin freaked out was that your words? Justin freaked out?

Yes.

Do you claim, as he freaked out over the shooting, Justin Bruton even started crying?

Yes.

You remember seeing that?

Yeah.

Justin Bruton was crying?

Yes. I was crying too.

So you and Justin Bruton are both crying and --

Then after that, he got real calm and like incoherent acting.

So he had a crying jag and then he calmed down?

No. He just -- the whole night was such a -- he was going in and out of either not speaking at all or being extremely upset.

Did you ever see him after the shooting joking around?

No.

So he wasn't his normal self at all?

No.

He was incoherent. What do you mean by incoherent?

Just he was just sitting there like all shaken up. His hands were shaking. He was just sitting there.

So anybody that came in contact with him that night would have seen how shaken up he was?

No, because I also had to -- we all had to like pull ourselves together at this condo because I had to go talk to*my parents.

You told Mr. Kilgore that Justin Bruton was pale. Pale and all shaken up; is that true?

Yes.

And you mentioned we had to pull ourselves together; do you claim that happened at Justin Bruton's condo?

Yes.

And you're claiming that the two boys started coming up with this story about the car stopping at a stoplight?

Yes.

You're claiming Justin and Byron made that up?

Yes.

Did you help make up that story?

No. They asked me if it would be believable.

And according to your testimony, they went with that story. They thought it would be believable, because Anastasia was "notorious for throwing fits"?

Yes.

And they asked you if they thought it would work.

Did you agree you thought it would work, because she was notorious for throwing fits?

Yes.

You had seen her -- had you ever seen her storm out of the car and walk away like that?

No. But I seen her get mad at the apartment and yell at him over the phone and such.

Storm out of the apartment?

Yes.

Leave for awhile and come back later?

Yeah, but she would usually go on a walk and come right back.

I'm trying to go a litfle bit chronologically.

So after this so-called story is made up at the condo, eventually the boys took you home, right?

Yes.

Everybody was in Justin's car?

Yes.

That night, after the shooting, after you got home, did you speak with anyone at your home?

Yes.

Who did you speak with?

My mom.

Did you tell her you had just seen a brutal shooting?

No.

What about when the two boys left, Byron and Justin left, right?

Yes.

They went on about their business. Did you tell your mother then that you had just seen some horrible shooting?

No, because I was scared. I just talked to her for a tittle bit and went in my room and tried to go to sleep.

What did you do the next day?

I went down to my grandma's house with my mother.

What town is that in?

Lockwood, Missouri.

I'm sorry?

Lockwood, Missouri.

Is that near any big cities?

No.

All right. But you're out of the Kansas City area, right?

Yes.

So you and your mom are going to go visit your grandmother; you're clear out of this area in Lockwood, Missouri, way out of the City, way away from Byron and Justin, right?

Yes.

That day, when you're out of the City, did you tell your mother the next day that you had seen this horrific murder?

No. I was scared. I was scared of how my mom was going to deal with me. The whole thing had just shaken me up. They told me I was going to get in just as much trouble as they were. I mean, the whole thing was just horrible. I didn't want anybody to know about it, much less my mom.

Had you stepped forward in October of '97, how would you have gotten in trouble like they did?

Because I didn't do anything to stop it. I took the whole thing as a big joke and all of a sudden this girl is dead.

What about when you returned from Lockwood later that week, did you tell anybody in your family what had happened?

No.

Now, you've been in fairly frequent contact with the prosecutor's office about this case, right?

Yes.

You've talked to Theresa Crayon several times?

Yes.

Are you aware that Justin Bruton had purchased shotguns on two separate dates, or is that news to you?

Yes, I'm aware 6f that.

I'm sorry?

I'm aware of that.

So you're aware Justin purchased shotguns on two separate dates. Let's talk about the first shotgun. Did you ever see Justin Bruton with the first shotgun be purchased?

No. After the fact Byron told me about it, because it would make it more believable that he had supposedly done it. Because it seemed like the police were believing that anyway.

So that was just part of the story that you made up to look like maybe Justin could have done it?

I didn't make it up by myself. Me and Byron talked about it.

Let me rephrase the question. That was just part of the story that had been made up to make it look like maybe Justin had done it?

I didn't know if he had gotten it or not. Byron told me he thought bought one, that Justin had.

All right. I don't know if I have a clear answer or not. Are you saying that was just part of the story that was made up, because it could look like Justin could have done it?

That was added in later, yeah.

How much later? After you had already talked to Kilgore?

I believe so. Not sure.

Well, I need to pursue that a little bit, because I think that's what you said to the jury earlier today.

Yes.

You said you talked to Kilgore, gave a statement then later you and Byron decide to add in this part about, "Hey, you know Justin had bought a shotgun"?

Yes.

You agree that the first time you talked to Mr. Kilgore would have been October 24th of 1997?

Yes.

Do you recall that, in your very first statement to the police, you mentioned that Justin had bought this shotgun?

Yes.

You do recall now that you said that in your first statement?

Yes.

So it couldn't have been something added in later?

Well, added in later as to the original story that night before. Then we basically knew that Justin -- would probably never going to see Justin again after he had disappeared and the police were asking just like, basically, like they thought it was one of those things where a guy kills his girlfriend and then kills himself.

I'm sorry?

I said so that's how that came.

You realize that Justin Bruton -- his body wasn't found until October 25th?

We just assumed that, because it wasn't like him just to take off and just disappear and be acting so weird on the phone when he talked to Byron and everything.

So on October 24th, you already assumed Justin had killed himself?

Yes, because he just disappeared.

You agree he wasn't found until October 25th?

Yes.

And do you agree now it was in your very first statement to the police, on October 24th, that you said Justin had bought a shotgun at Wal-Mart?

Yes.

All right. So it wasn't added in later, was it?

I mean, it was added in after the initial story that we came up with at the condo, all three of us, because, of course, that wasn't going to be part of the story with Justin present, because that would incriminate him.

All right. So you just added -- the story gets even more added to the story later on, right?

Yes.

Well, then, when you come clean with Kilgore September 21st of 2000, do you remember what you said about Justin's shotgun that day?

I'm not really sure. I would have to read it.

You said that you had made up the story about Justin buying a gun at Wal-Mart?

Yes.

Now, you agree that now today Justin Bruton had bought a gun at Wal-Mart?

I didn't know for a fact. Byron is the one that told me that.

You do not know for a fact that Justin Bruton had bought a shotgun at Wal-Mart that fall?

No.

Did you tell Detective Kilgore you had seen the gun once? You had seen Justin's gun once? Did you say that?

Yes.

Now you're confusing me. You just said you don't know for a fact if Justin Bruton had bought a shotgun?

That was all --

Is that what you just said?

I was trying to answer the best I could recall, because everything got so confusing.

Did you tell Detective Kilgore that you had even seen that gun once?

Yes.

You made two audiotaped phone calls to Byron Case in June of 2001; do you remember doing that?

Yes.

We listened to those tapes today, correct?

Yes.

It was shortly after that that Byron got arrested; is that right?

Yes.

No.

Now, isn't it true at the time that you phoned Evelyn Case, you were still into your heavy drug usage period?

Yes.

And when I previously asked you about this phone call, you said it was a bit foggy; do you remember saying that?

Yes.

And, in fact, if you were still using drugs, you can't be sure what you told Evelyn case on the phone, can you?

I remember specifics of it, but I don't remember the entire thing, no.

So you can't be sure what you told Evelyn Case on the phone, can you?

I know I did not tell her they were on mescaline. I know that. And I said there was drinking. I didn't say anything about two fifths.

Did you say Justin had been pressuring Byron all day to do the shooting for him?

No. I said they were talking about it all day.

It was all a big favor, Byron would do this for Justin Bruton?

No, I don't recall that.

Okay. Well, is that what you're telling the jury today? Byron did this all as a big favor for his friend?

No.

Did you ever go back to the Lincoln Cemetery and try to point out the spot where Anastasia was shot?

Yes.

Did you point to a spot for Officer Kilgore and say, "I think this is the spot where Anastasia was shot dead"?

Yes.

Is it true that, after Anastasia's death, but prior to going back out there with Mr. Kilgore, is it true you had been out to Lincoln Cemetery?

Yes.

In fact, you had been out there. You saw also the memorial thing that had been set up. Anastasia's friends had put up like a wreath or flowers or something and cards, pictures?

Uh-huh.

So this was this little memorial at Lincoln Cemetery, right?

Yes.

And you had been out there and you had seen this little memorial at Lincoln Cemetery?

Yes.

And you had seen that way before you went with Officer Kilgore out to the cemetery?

Yes.

And that made it very easy for you to point to a spot in the cemetery --

How would it make it easier?

Well, you went right to the spot where you remember the memorial was; you said, "I think she was shot in that area"?

I didn't know that's where the memorial was.

You assumed they would put the memorial at some other spot somewhere in Lincoln Cemetery?

I didn't know where they would put it. It was just out there.

Well, in one of your statements --

I didn't think that was the exact location.

Okay. In one of your statements, did you tell Detective Kilgore, "I actually found out, you know, where the place where she was found was at." So that would have been in August of '98. Do you recall saying that on tape?

I don't recall.

Would it help refresh your memory to look at a transcript of that statement? I'm referring to August 22, 1998, page 6, in the middle of the page.

Okay.

That's something I want you to read quietly to yourself.

Yeah. I meant I found out like where Lincoln Cemetery was and stuff, where she was found, that general area.

Okay. Well, before we jump to that answer of yours, this is in August of '98, you don't dispute that?

Yes.

So it's two years before you come clean to Detective Kilgore?

Yes.

It's two years before that, and you're saying "I actually found out, you know, where the place where she was found was at," and what is your explanation again?

That that was the cemetery that she was found at.

I didn't even know it was a cemetery before that.

But I don't remember assuming that the memorial was right exactly the place where her body was found.

All right. You just agree you saw the little memorial?

Yes.

May counsel approach the bench, Your Honor.

Sure.

(Counsel approached the bench and the following proceedings were had:)

Judge, I had reached a point where I had planned to ask about the psychiatric counseling, and I think we agreed pretrial we would approach the bench.

Okay.

I understand it's basically off limits. The only topic I think you said you might allow would be were you in psychiatric counseling with a Dr. Eaves, and is it true that during that entire time you never told her that you had witnessed a shooting, a murder.

Well, I'm not going -- well, go ahead.

We object. There has --

I'm not going to let you ask that. If you want, I think even the State indicated that -- I mean, the fact she has been in counseling, I think she as much said that, and I think you can ask that, but what she said or didn't say to a counselor, I'm not going to let you ask that.

I object to Dr. Eaves. Nobody mentioned her in jury selection. I don't want to run into somebody knowing who she is. I mean, you can say have you been in counseling.

I think that's a good point.

Just for the record, I reached a point where I was going to ask that at this point.

At this point in time, you would. I understand this is a time, if you were allowed, you would use Dr. Eaves' name specifically and ask if, in fact, she said something about the homicide in these records. I understand that's what you would like to ask at this point in time and maintain the same position.

I'm sustaining the objection. I will allow you to establish she was in counseling, if you would like to do that, in the generic. That's as far as I'll let you go. That's what I'm telling you.

I'll move to a different topic. I won't even mention counseling.

Here is the deal. We really don't object to him pointing out the counselling. Obviously, we brought it up and there were a number of occasions. And he can even ask for more than what we brought out.

I understand.

We particularly oppose any of the record coming in absent their existence. We do not -- we really are not objecting to him asking if she never disclosed it to anybody else, because we don't think she did, and we think that's quite relevant. We just didn't want the record coming in without any kind of support, Your Honor.

As well as any specific questions about what she told the counselor. If you just want to ask in cross examination you never did, in fact, tell anybody that you sought counseling with the truth of this story, she is going to say no, you know. That we're okay with. It's just anything beyond that.

So I think the State is conceding that I can ask her if she was in counseling and, further, she never told any of her psychiatric counselors that she saw a murder.

We don't object to that, Your Honor. What we were objecting to if you remember --

Let's put it that way. If he wants to ask a question, you're not going to object to it. I'm going to let him ask the question. But I will tell you this: There is no way we're getting into these records. I've reviewed the records. We're not getting into the records. Okay? That's the main issue. And I think it's also appropriate, and I think Ms. Crayon's point about mentioning specific doctors is a point well-taken, because conceivably somebody in the jury could know Dr. Eaves.

Okay. Well-taken.

I think your question is going to have to be very pointed; otherwise, it's going to open. I've told her we're not getting into anything.

So just warning you to be very --

While we're here, I think there is no way we're getting to this other witness, right?

No.

So I don't need to deal with that?

No.

Done with this witness, we're done for the day, correct?

Correct.

I've got five or six more pages, but some of them are one topic.

All right, You may proceed.

Do you have redirect?

Very brief.

Okay.

(The proceedings returned to open Court.)

Q.

Ms. Moffett, you mentioned today and you have attended drug rehab?

Yes.

And is it true that you also have attended some psychiatric counseling?

Yes.

In all the time that you attended psychiatric counseling, did you ever tell any psychiatric counselor that you had witnessed a murder?

No.

Ms. Moffet, at one point in time you believe that you were in love with Byron Case, true?

Yes.

And you told Byron Case that you loved him?

Yes.

And even after the death of Anastasia, you continued to tell Byron Case that you loved him?

Yes.

You testified today that you are aware Byron Case moved to St. Louis in September of the year 2000?

Yes.

And are you aware that, when Byron moved to St. Louis in September of 2000, he attempted to end all contact with you?

Yes.

He wouldn't give you his address, his phone number, any of that?

Yes.

And for the record, how did that make you feel,the guy you once loved has broken off all contact with you?

I was upset, but it wasn't for that reason. It was just that he was leaving everything behind, leaving me this mess to deal with, and it didn't affect him whatsoever.

Did it make you angry that he was no longer in love with you?

No.

Did it disappoint you that your first true love, you couldn't even have his phone number to call him up?

No. I already had a new set of friends and a different boyfriend.

Is it true you tracked him down in St. Louis and called him anyway?

Yes. But only way I got the phone number was in St. Louis was through the police.

You never tried to call his family and trick them into giving the phone number out?

That was my mom called his mom, but that was also at the urging of the police.

Now, the jury has heard the two audiotapes. You were present when the two audiotapes were played, right?

Yes.

Yet he agreed to meet you over at Loose Park?

Yes.

Also on the audiotape you said that you were freaking out at that time?

Yes.

You said Anastasia's father had even contacted you?

Yes.

And on the audiotape you're saying I don't know how Anastasia's father got my phone number, but he got my phone number; do you remember saying that on the tape?

Yes, but that was all just to get him to try to talk to me about it, because any other time I tried to talk to him about the murder or what happened, he would just say, "Just tell them you don't remember." Me and the police came up with that. The police actually told me to tell him that people keep trying to get in touch with me, and I don't know what to say.

Had you been in touch with Anastasia WitbolsFeugen's father?

No.

Did you ever try to send a computer message?

Yes, I believe I did. I don't think I ever talked to him on the phone, but I sent him an e-mail, I believe.

And he e-mailed you back, I believe?

I believe so. I don't have copies of them.

All right. Do you dispute that that computer e-mail would have been in May of 1998?

I don't recall.

Would it help refresh your memory to look at it?

Yes.

Again, this is something to read quietly to yourself. Ms. Moffett, have you had a chance to quietly review that document to yourself?

Yes, I have.

Is it fair to say, in May of ' 98, you sent a computer message to the victim's father?

Yes.

And you testified today he e-mailed you back?

I said I didn't recall if he e-mailed me back or not.

Oh, you don't recall. Well, this would have been in May of '98. You agree you sent the e-mail or the contact began when you sent the e-mail?

Yes.

And at this time you were still apparently playing this charade that Anastasia had gotten out of a car and walked away, nobody saw her alive again?

Yes.

And so you say you don't remember if you got a response to this e-mail?

No, I don't remember.

I was basically trying to talk to him, because I felt so horrible about the whole thing, and he was trying so hard to figure out what had happened.

Who?

Anastasia's father and Byron, and he kept e-mailing Byron repeatedly, and I kind of wanted him to get the gist that I didn't feel the same way about the whole thing that Byron did, because him and Byron were going back and forth with e-mails and Byron was saying, "This is harassment."

Judge, I object.

That's a narrative response. I'll sustain the ob ection in that regard.

Q.

At any rate, you got hold of this murdered girl's dad and you said, "Let's get together and swap stories"; is that what you said?

Yes.

So, if he would have contacted you to swap stories, you would have continued to play this same charade?

I wasn't necessarily talking to him about that. I just wanted to talk to him and let him know how sorry I was that Anastasia was dead and everything.

You just wanted to tell him that you were sorry?

I just felt like he --

Go ahead.

I also didn't want him to think that I felt the same way about everything as Byron did.

But you agree, if you had met him, you would have played the same charade you were playing with the police?

Yes.

Toyed with emotions of this dead girl's father?

No, not to play. Just to -- I knew eventually I was going to come forward with all of this.

You testified that at the moment of the murder, Justin and Anastasia were arguing outside the vehicle?

Yes.

You and Byron were in the back seat just before the murder?

Yes.

Can you remember the last few words between Justin and Anastasia right before the shooting?

No, not really.

Can you remember the last thing you and Byron were talking about in the car just before the shooting?

Just that I couldn't believe he was going to do it, and he just said, "I'll be right back."

Do you recall the depo, I asked what was the last thing you talked about with Byron, and you said, "I don't remember"?

Yeah, I don't remember.

Can you name the type of gun used in this shooting?

No.

Can you point out the exact spot in the cemetery where the shooting took place?

Not the exact spot.

Can you point out the spot in the cemetery where Anastasia was murdered?

Not exactly, but I know where I saw her body laying.

Can you point out the exact spot in the cemetery where Anastasia was murdered?

No.

Can you point out for sure the location where the gun was supposedly dumped after the shooting?

No. But I don't see how that's something I'm supposed to be -- I mean, I didn't get out of the car and run over to her body when it was laying there. I didn't get out of the car.

objection, nonresponsive.

Sustained.

Yes.

Now, when you decided to tell Maggie Jenkins all about the night of the shooting, you first told Maggie Jenkins that Justin Bruton fired the gun; is that correct?

Yes. But that's because I was scared because she immediately was getting on the phone with the authorities.

All right. When you first decided to tell her about the shooting, you said Justin Bruton fired the fatal shot?

Yes.

So you lied to your friend and counselor also?

I was scared. But then I immediately -- when my mom got there -- told her what had actually happened.

Your mom. When your mom got there?

Yes.

Your mom that you had lied to also?

No further questions.

Redirect examination?

Very briefly, Judge.

Yes.

And there are a couple of times he's pointed, and I'm going to cover the few things -- the few things that he's asked you about with that statement. One has to do with the Dairy Queen, who got out. On that specific thing, he referred you to page 7. And in page 7, I'm going to direct you to this, because I want you to be able to tell the jury what your full answer was. Mr. Lance asked you whether or not Mr. Case was the one who went up to get Anastasia, and he limited you to telling them that you had said it was Byron Case.

Uh-huh.

I'm going to ask you to look at this and the question that's posed to you is: Did any of the three of you get out of your car? What is your full answer to that question?

"I can't remember. I didn't. I think maybe -- I think Byron ran in to get her out of the Dairy Queen, but I'm not sure. We just pulled up, and she was sitting inside. I think maybe he did, but I don't remember."

So you don't tell Detective Kilgore you're positive of who went in and got her, right?

Right.

All you do is say: "I think it was Byron. I'm not sure." That was your full answer when you were trying to be truthful to Detective Kilgore when you came forward almost three years after the homicide, right?

Yes.

"Well, I don't think I heard that little -- because I could -- they were talking so much. I don't think he did the little chink chink thing, but I don't know. I don't think he did it. I just saw him messing with it."

And then the follow-up question is: "What you're describing to me is like a pump shotgun." That's the question that's posed to you by Detective Kilgore, is it not?

Yes.

What is your full answer to that question?

"No, I'm not sure if he did that. I just kind of saw him fiddling for a couple seconds, but he just grabbed it out and walked on the side of the car. I think it was double-barreled though, because it looked like an old gun."

So are you sure of what the gun looked like?

No.

Okay. But it's not a small?

No.

A small gun?

No.

"Yeah, maybe that or a little bit over. He was close to her though, really close to her."

Kelly, how far is 5 feet to you?

I --

When you're describing to Detective Kilgore how close Byron Case was to Anastasia when he shot her, I want you to stop me when you have an idea of how close he was to her. Can you do that?

Yeah.

If I come this close to you --

About -- you mean from me to you?

Yes.

Come a little bit closer. I would say probably about -- yeah, about like this.

Okay,

That's 5 feet.

So you say this is about 5 feet?

Yeah.

And you have described for the jury how long the gun is; is that correct?

Yes. But I --

I know you're not for sure. You're giving an estimate. But you're describing a long gun and not a handgun?

Yes.

And during your direct testimony -- and I want you to show the jury with your own actions with your testimony, because in here you talk a little bit later, it says:

"How did he hold the shotgun up? At the end of his shoulder? How did he hold it? Do you remember?"

Yes.

Tell them what you remember seeing Byron Case do when the long gun.

He lifted it up like that.

Did he put it up against his shoulder? Is that what you're showing us?

Yeah. I'm not sure. It was lifted up like this, but he had on dark clothes, and the gun was dark.

And Anastasia was about as far as I am right here from you when he did that; is that correct?

Yes.

And finally, the only other thing in this statement that you gave to Detective Kilgore he really asked you about --

Judge, I object to that characterization.

Sustained as an argumentative question.

That's fine, Judge. I'll withdraw that.

He asked you also to look at this statement when he was asking you about the position of the victim's body. Do you remember that question?

Yes.

And asking you, "Did you see her on the ground, or not?"

And again, I'm going to have you tell the jury what your complete answers were to this. When they're asking you about where she was shot at, the question is: "Did you see her fall to the ground?" What is your complete answer?

"Yes."

"How did she fall?"

"She fell back. It was kind of like an explosion, you know."

And he asks, "What do you mean?" And what is your full answer to that?

"It just -- I mean, it just knocked her backward. The whole thing did."

And what did you then add?

"And really quickly Byron just threw the thing, the gun in the trunk, you know, like opened it up, threw it in there."

"Did you see her fall to the ground?" What did you tell Detective Kilgore in September of 2000 when you came forward?

"Yes. That she fell backwards."

And then the full -- I'm sorry. I started earlier than I should have. "At what position did she fall in?" That's the question. What is the full answer that you give right following that question?

"I don't know, because I remember I looked at that, and then just kind of, you know, obviously, shocked. I looked and screamed. I screamed and looked away. Then I looked back, and I couldn't really -- I think she was on her back just like that. I'm pretty sure it knocked her backwards, because I remember kind of seeing her body on the ground like that."

So you are in there, "I'm seeing her body like that." Are you using those words to describe actions of your own when you're trying to tell Kilgore?

Yes.

What is it that you recall doing in your actions to accompany these words when Kilgore is asking you what you saw?

I went like that (indicating).

So that was what your statement was in September of 2000?

Yes.

You did see her fall to the ground?

Yes.

And your testimony is this occurred around dusk and you were able to see; is that correct?

Yes.

Has anybody ever shown you a picture of the body of Anastasia WitbolsFeugen?

No.

I just have a couple of brief questions, Kelly.

Okay.

This murder happened in October of '97, and you have already testified to the jury that you continued to date Byron Case for a little more than a year after that; is that right?

Yes.

And you have already testified that it's very soon after that that you made that phone call to 911 about his threat to kill himself, and we have established already that that is like in December of '98, January of '99, in that time period?

Yes.

And Mr. Lance has asked you if, in September of 2000, you found out that Byron was going to be moving to St. Louis?

Yeah.

Yes.

Have you looked at this whole e-mail?

Yes. I just read it.

In this, is it not true that, in addition to at the end, when you suggest that you could get together, you also say that you've tried to block everything out for some time and that you have severed all ties with that portion of your life?

Yes.

And that you're having a really difficult time dealing with the loss of Anastasia?

Yes.

And that every time you try to talk to Byron Case about it, he either ignores you or refuses to talk about it; is that true?

Yes.

Kelly, why did you send this to Mr. WitbolsFeugen?

I don't maybe have someone to talk to about the whole thing?

Did you plan on telling him the truth?

I don't know what I planned on doing. I knew I was going to come forward with what actually happened eventually. I just didn't --it just wasn't right for him to be trying to get in touch with people about staff and having like people be rude and such.

Was this another attempt for you to deal with this?

Yes.

I don't have anything further.

Mr. Lance?

No recross.

Okay. You may step down, Ms. Moffett.

(The witness was excused.)

In order that we keep pace, I would like to, if at all possible, forewarn you we may well want to go until 5:30 or so tomorrow because, again, our desire is to make sure you get this case no later than Thursday morning.

With that as a preface, let's get in the jury room shortly before 9, and we may go as late as 5:30. We may even shave lunch a little bit to make sure we're keeping pace. The Court again reminds you of what youwere 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. As I said, I think it's an obvious situation, but the area of Mount Washington and Lincoln Cemetery, those are areas that none of you should be around until this case is over with. I think that goes without saying. With that being said, have a great evening. If you would be in the jury room shortly before 9 o'clock tomorrow morning. All rise, please. Jury is free to go.

(Court was adjourned until April 30, 2002.)