As the parties are aware, I think the circumstance we find ourselves in is this case has been pending for a period of time and I think I got with counsel, and we agreed to attempt to ty this case the week of April 29th, but because of certain scheduling issues that I had, we agreed to pick the jury on Friday, the 26th, and commence evidence, I believe, on the 29th of April, which is the following Monday.

And the purpose of this proceeding is to flush out any pretrial issues that exist so that we can go straight into jury selection on the 26th and hear evidence on the 29th.

I think the first issue is previously I think there was a short hearing in the recent past in which Mr. Lance filed two motions requesting, in effect, that I utilize my powers under the Uniform Attendance of Witness Act to secure the attendance of two witnesses.

One was Debbie Moffett, and I believe Debbie Moffett is likely going to be witness for the State also. So I assume that issue is in hand and resolved; is that right?

That's right.

And Ms. Moffett's daughter is Kelly Moffett who is a key witness to the State; is that true?

Yes, Your Honor.

Yes, Your Honor. Ms. Eaves is going to deliver them to your law clerk at 3 o'clock this afternoon.

First of all, at this point in time, I'm going to direct both sides not to get into anything about these mental health records without prior court approval.

Secondly, I will review those health records, and I'll make a definitive ruling whether I think they're relevant or not. When I make such a definitive ruling, each side will be able to make any additional record.

If I find them to be irrelevant, I will take those records and place them in a sealed fashion for review for any court of higher jurisdiction. If I think tliey're for some reason relevant, we'll have a more extended hearing on the extent of their relevance.

Is that procedure agreeable, Mr. Lance?

Yes.

In essence, in fairness to you, I haven't read the records, and I'm not sure what posture you would want to use them, but the issue of whether you can even cross examine Ms. Moffett about it, I'll be glad to rule on those things, but at this point in time, the issue of her having a psychologist and what that relationship was and what these records say, I am excluding that line of inquiry at the present time, subject to reevaluation once I review the records. I'll allow you to make any additional record you wish at the appropriate time. Is that agreeable?

Yes.

Likely what we'll do, if we don't get to it today, at jury selection I'll make my tidings first thing Monday morning so we can define that issue.

You might want to do it before.

If you want to get here first thing Friday morning, we could do it then.

Okay.

I'm in trial next week so I'm not sure when we'll get to it.

Do you have any thought, Mr. Fry?

At some point in time on Friday we'll have recess and be able to talk about it. Our evidence won't start until Monday. Friday sometime there will be plenty of time.

I think that's well thought. At some appropriate time, out of the hearing of the jury panel, we'll deal with this issue next Friday. Is that agreeable?

Yes. The only other thing, we had some discussions earlier and we're actually in agreement.

To the extent that you're reviewing these psychological records, for the privacy of Kelly Moffett, but some relevancy for cross examination or inquiry by the defense in terms of the diagnosis that the defendant had put in its petition, that's one line of inquiry.

But we also agreed prior to coming to court today, you may find there and we don't know, some discussion that is recorded as to the facts of this case, in terms of the homicide and subsequent suicide of one of the other parties involved.

We would suggest to you, if you keep your eye open for that, that may be a line of relevancy that may be subject to inquiry that you find in there, as well as the diagnoses that may be relevant to inquiry here of Ms. Moffett.

There would be those two lines reviewing these records. We just want to make you aware of that, that prior statements as to the homicide or how it happened may or may not be inconsistent, but would be relevant and should be provided to the defense.

Well, let me review the records first. Go ahead, Mr. Lance. I can give you my thoughts, bat go ahead.

So you better understand why the defense is requesting them, the State's main witness, Kelly Moffett, we believe is on record with three different statements of what happened.

Her first statement, she agrees with the Defendant and didn't see the murder.

Right.

Her second statement is she says a guy name Justin did the murder. Then her third statement is Byron Case did the murder. So I'm curious -- or I think it may be relevant any description she gives of this homicide or what she claims, if it's in there, I would be curious to know if she says again in there the other guy, Justin, did it or if she describes the murder, she may give different details than what she is on record. So you any discussion of this homicide I think is a --

My understanding is your interest in the records include any discussion -- I'm not saying you have a right to look at this, but your interest includes any discussion of the homicide, plus any diagnoses that might affect her credibility?

Right. Exactly. And I may have -- in my typewritten motion, at the time I may have been too strong with the word diagnosis. I think State's attorney pointed out that compulsive liar is probably not in the DSM.

But if it says this person has a real problem being a chronic liar or words to that effect --

I understand. I understand that. So I'll look at it. There is a whole host of potential issues here. Not host, but one issue is she waiving the privilege or not waiving the privilege. Okay?

Then the other issue is -- so theoretically, in other words, if there is stuff in those records that's good for the State and you want to use them, for example, I don't think she can selectively waive her privilege. If you want to use them and he gets the records and everybody gets to look at them, what's relevant comes in then; do you follow?

The next issue or other issue that could arise is, in this kind of situation, since it is a murder in the first degree case, since she is a very key witness to the case, theoretically -- and I emphasize theoretically -- potentially there could be some semi-Brady issues in terms of things she might say that could be used for cross examination, if it constitutes impeachment evidence that is so critical that it might actually be defined as exculpatory evidence. Okay?

But that's kind of a novel theory and I think I'm going to have to see something pretty powerful to reach that conclusion. Okay? Those are the inquiries that I'm going to suggest.

But, basically, one of the things that -- to give you an example. Let's assume she talks about the homicide. I guess one of the issues is, as I understand it, State has not seen the records; is that right?

That's correct, Your Honor.

One of the issues is whether you guys want to see the records with a protective order so we're all coming from the same position. I don't have a problem with that, if you guys -- I'm not necessarily opposed to doing that.

There is one of two ways to do it. I can let you guys review the records with a protective order, it can not be disclosed to anyone; that includes -- I suppose you could discuss it with your client, but you can't disclose it to anyone else. And you all can't disclose it to anyone else other than Ms. Moffett.

The other way is I just look at the records and see if I think they're relevant, and then I make a ruling and then the Court of Appeals looks at it and nobody sees the records but me, unless I ifind something that I need to alert you all to.

I think the case law, Your Honor, set up the format for the in camera review by the Court.

I think it contemplates me reviewing the records and you guys staying out of it.

Us too, and -that would be our position.

I know, obviously, you would like to look at them, and I understand that, Mr. Lance. My initial position is I'm going to review the records and go from there. If it becomes something thzlt's unduly problematic, I'll alert you; otherwise, we'll take it up Friday.

I don't know what those statements are. I don't know whether it's necessary that I do. But I assume what we're talking about is a typical suppression of those statements. Obviously, you cannot use them in your case in chief. If he were to testify inconsistent with those statements, it would seem to me, under a normal suppression order, those potentially could be used to cross examine him.

Is that the intention -- in terms of your position, is that the State's position?

Our position is that we agree that we will not get into them at all, basically. I think.

It's beyond that normal, Judge. The letter that was authored by an assistant by our office to, not Mr. Lance, but an attorney that was representing the Defendant at an earlier time during the investigation, could be reviewed to say we're not going to use it.

Secondly, there are two comments made by the deputy during the course of the interrogation that I think take this beyond the scope of normal stuff, and we don't want that process even complicating the appellate section.

If we do get a conviction on this, we don't want it to be involved. We're not going to use it at all.

I do understand Mr. Lance's point. There are motions in there that are very muffled and you can't understand what's being said,but that is listed as inaudible. The transcripts don't try to put forth anything that you can't hear on the tapes with the aid of the transcript.

So I think probably prior to actually ruling on this, in fairness, I just ask you to listen to the tapes along with the transcripts, because we will be asking to introduce them.

The relevancy of them, just so you know, is they are recordings of conversations between the key witness of Kelly Moffett for the State and the Defendant, and what is being discussed on the tapes is the actual crime itself and questioning by -- past questioning and possible future questioning of the witness. And so I think that the content of that is extremely relevant and Defendant's responses to State's witness.

Okay. This is the procedure I intend to utilize in this regard.

First of all, I will listen to the tapes to determine their relevance. We'll deal with the issue of relevancy and the like.

Obviously, I will require -- there is a foundation you got to lay for the tapes which I suspect are defined in these cases that he cited. So, obviously, if you want to put the tapes in, you got to lay a proper foundation. We'll deal with it.

The proper foundation, if I'm not mistaken is basically there has to be a chain of custody. Show the tape is unaltered. Those kinds of things. I suspect these cases will define that foundation for me.

The State should be in a position to make sure that you have some law that tells me what the foundation is.

All right.

And then, if they are relevant and, if there is a foundation, okay? I will listen to the tapes with the transcript. And, if I use the transcripts, I would probably allow the State to use the transcripts, and I would also -- likely what I would do at the Defendant's request is give a jury instruction or a lirniting instruction, and tell them that the evidence is the tapes.

The evidence is not the transcripts, and the transcripts are only used to help you understand What's on the tapes. And I would be glad to give such an instruction to the jury.

That may be where we were headed anyway.

And I suspect that that would be my inclination. Okay?

And then other thing is, when we reach this issue, what I would suggest the State does, when I'm dealing with the issue of foundation, the equipment you're going to use to play it before the jury, that's the same equipment I need to hear when I hear it.

So, if it's so muffled the foundation is not properly laid, I need to hear on the same equipment that you're going to use in trial.

Yes. Judge, the verbal motions in limine, I had four areas. I'll take them one at a time.

That's great.

In the course of this trial, certain lifestyle or characteristics of the Defendant that Kelly Moffett, the main witness is aware of because of their close relationship, it kind of borders along the lines of -- that's been referred to often as a goth type lifestyle or approach. I'm not really too sure of the exact definition of that, but there are certain characteristics we think are quite relevant to understand what Kelly says when she is explaining the situation as it develops.

For instance, we expect her to testify that it was the Defendant that shot Justin -- the other boy's -- girlfriend. Why was it actually did the shooting.

Kelly would be able to explain that because it was more consistent with the Defendant's lifestyle. Other characteristics of that lifestyle are the Defendant's prior statements to her that he would like to know what it's like to kill somebody and his desire to express he wants to know what it would be like to do that.

The Defendant's appearance, goth lifestyle, and the Defendant in particular would wear black pretty much predominantly. Would wear white makeup, the pale look, with black lipstick. That appearance is consistent with that kind of propensity of the Defendant to be caught up in this.

Another example would be the Defendant with a friend walking around Westport wearing a priest collar.

The bumper stickers, and I'll give you an idea. We've got a couple of -- we've got photos of one of the two automobiles we'll be referring to in the course of trial.

Am I to understand that all these areas, they're going to be -- the same kind of general motion in limine may apply to all of these things?

what we wanted to do is bring them up today, not only in terms of the motion in limine to keep this out, we intended to come to court today and say, Judge, we want you to be aware of this because we intend to go into it and we think it's fair for you to be prepared to make a ruling, let you know what's going on, where we're trying to go, why we're going there and why we believe it's relevant.

This includes, even some evidence in this would be through Debbie Moffett, the mother of Kelly, who, when the Defendant is a visitor in her house, can come in and tell the jury that the Defendant would wear a pin, like a little, oh, some kind of button type of thing, that has a picture of Christ hung upside down on a cross saying: "We raped your savior."

"We ass-raped your savior."

"We ass-raped your savior." To the extent that that would be so provocative and prejudicial, we think we're not going to bring that in. But where these other things are not so provocative and not so overwhelmingly prejudicial, but consistent with Kelly being able to describe the Defendant's lifestyle so that, when she does testify, this Defendant shooting the victim was so much more consistent with what she knew him to be rather than just all those other observations from the clothing, to the computer, to the clothing, the walking around with priest, the "MORBID", the "ATHEIST", the other bumper stickers that you see on the car we believe are relevant in her giving that context, her observations giving that context to her statement that an explanation as to why this Defendant --

Let me so.- if I understand. So, in essence, what you're suggesting she could give testimony to suggest -- I'm not sure what a goth lifestyle is. I'm trying to think if I've actually heard that term before you just mentioned it.

But from these photos, there are photos before me that show a bumper sticker that -- well, it shows the license plate "MORBID". I assume there is another license plate that says "ATHEIST", I assume. Here is a bumper sticker that says: "Honk if you need an abortion." Another bumper sticker says: "Can't feed them, don't breed them." An bumper that says: "Got mine. Up yours."

And you've also got --

There will be testimony from Kelly Moffett that this Defendant and Justin Bruton, just prior to the homicide, that they were conversing in German in the car and that Justin Bruton was yelling in German to him at the time of the shooting and that, after he got back into the car, Justin Bruton says, "Did you hear me telling you not to do that?" That is what..we expect her testimony to be. And Kelly, not understanding German, is going to testify that that's what she then assumes was being said in German outside of the car at the time of the shooting.

So those kind of things, not only with Kelly Moffett, but, if Justin Bruton's father is to testify, he would talk about meeting Kelly and this Defendant the day after Anastasia is found.

Is Anastasia the person that was killed?

I'm sorry, yes, the victim. And Justin Bruton is the one who comniitted suicide right thereafter.

Justin Bruton's father may be a witness at some point and part of his testimony would include this. And Justin Bruton does not -- by anybody's testimony or any pictures that we have of him -- doesn'lt show this extreme black clothing, the makeup, the black eye liner and all of that like the Defendant does.

So when Justin Bruton's father meets this Defendant, he notes that. It's something that strikes him. So it's not just Kelly. It's also other people who may be testifying. Debbie Moffett, as Mr. Fry has said too.

So I think it's going to give context to a lot of other people involved in the case besides Kelly, but mainly Kelly.

what's "Ich bin Ich" mean? Does that mean something in German?

I think it's "I am I", I think. I'm not positive of that, though.

I'm not sure I understand. This "Ich bin Ich", if there was testimony he was speaking in German before the homicide, I can understand the relevance of that sticker but -- I'm not questioning the State's position, I'm trying to understand the State's position.

Why does all this sort of things that probably, to the average person, seem either strange or even offensive, okay? And/or kind of at least, for lack of a better term, on the dark side, if I can coin a phrase, why is that stuff relevant?

It's relevant to the extent that Kelly will be able to tell from testifying to the jury a lifestyle chosen by the Defendant and his assimilation to this type of behavior, which is expressed not only --

What type of behavior are we talking about? Are you saying somebody -- see, the problem I have is I could certainly understand there might be things that, in the context of her story, where her credibility is at issue, some of these things might be relevant. But to say a guy acts weird and has offensive stickers; therefore, he's likely to commit homicide, I think that's ahnost like character evidence that's presumptively inadmissible, if that's what you're trying to do.

No, it's really not that, but what it's going to do is things that people see and associate with him, for instance, this -- I'm not sure the goth lifestyle is ever going to be fully defined or understood here in the course of this trial. But there is like this fascination with morbid death, and I'm not sure what other context it reaches. Okay?

But it is expressed by this Defendant, we say, to give this case context by the way he will &ess, the way he will wear makeup, the way he will use these autopsy type pictures for his web site, for his screen saver.

It all gives context to the fact that, when Kelly tells the jury why is this Defendant that is the one that shoots Justin's girlfriend, Anastasia, why is this Defendant that said in the past that he desired to know what it would be like to kill somebody, not an expression you hear from most people, but she is capable of saying that. We expect to try to get that out. And unless ordered by the Court not to, that's what we intend to do. These things give that expression. context as well.

Let me just talk to you generally about this, then I'll hear from Mr. Lance. It seems to me each of these things -- some of these things might be relevant. Others might not be.

Like, for example, if you're saying she is going to say that he killed this person because he said to her, his admission to her, "I have a fascination for death and I always wanted to kill somebody." Okay?

Well, the fact that he uses autopsy photos as a screen saver, that might have some relevance. Okay? I can understand that. "Honk If You Need an Abortion", I'm not sure that makes that relevant. Or "Can't Feed Them, Don't Breed Them", each one of these things has a different -- this idea I'm just going to let you carte blanche march into this stuff without a little more, I'm not saying I'm not going to let you do it, but I'm not tracking.

May I have a chance?

Go ahead, Mr. Lance.

I want to respond somewhat to what Mr. Fry was saying and explain a little bit more why we believe it's not relevant.

The example, first one I want to latch onto is an autopsy photo being used as a screen saver on the computer. I have hired an expert pathologist in the case, Dr. Friedlander, just to review the entire file and see if he could find anything to help me.

In conferring with Dr. Friedlander and he commented, "Well, what do they really have on your guy?"

And I said," I think the State is coming forward with this theory be was fascinated with death. He has a screen saver of autopsy photos."

And Dr. Friedlander's response was: "So what? I'm fascinated with death. I've made a career out of autopsies, teaching pathology to medical students on what causes death. I'm fascinated with death too. Does that make it relevant that I'm a homicidal killer?" He pointed out the farcical nature of what the State is trying to say there.

So the Defendant is going back again to preceptive most basic motions in limine, which is, this could be viewed as very prejudicial in the eyes of some members of the jury, but yet is it probative that a person is a killer because they're interested in that type of thing? I guess one thing I totally agree with the Court on, probably to take each item one by one.

Let's go off the record a second.

(A discussion was had off the record.)

And Mr. Lance has not endorsed either of those people on his witness list, and I am under the assumption they are not going to be called. If they were going to be called, we would ask their testimony would be struck from the record as being hearsay. They didn't have any foundation. It could have been anybody.

I'll concede that motion.

Okay. Tbat's fine.

Regarding that particular shotgun itself, we have a motion in limine that, should the Defendant testify as part of his prior statements that we think are admissible, not the one from July 29th, but there was statements that he made that be had heard either from Justin or someone else that that particular shotgun that was purchased almost a month earlier had been sold by Justin Bruton sometime -- week or two before the homicide.

And we are objecting to or doing a motion in limine that he be able to testify to that based on the fact there is no foundation for him to know that. He was not present for the sale. Just something you heard of.

There is testimony Mr. Case had heard that?

Right.

Yes. That's, if Mr. Case decided to testify, that I would ask the Court to keep him from being able to testify that Justin Bruton had sold that gun prior to the homicide.

We'll concede that motion.

Okay. That's good.

There is lots of discussion from the dad, and I don't know that -- I think it's clearly hearsay, that anything that the dad says about what he thinks may have happened should not be able to be elicited from Deputy Epperson. So we're going to object to anything like that.

Mr. Lance.

I'll concede that, as long as we're limiting it to things the dad is theorizing could have happened or hearsay he heard maybe --

Okay. Start again. You lost me on that.

Okay. Deputy Epperson is the one who discovers the victim's body. She is found at 3:45 in the morning of the 23rd. The morning of the 24th, after the family has been notified it's Anastasia WitbolsFeugen, the father has come out --

Father of the victim?

-- Father of the victim has come out trying to find the place where his daughter was killed. And he speaks to Deputy Epperson. They have a string of conversation.

Everything from -- anything the father says to the deputy is hearsay is our position. So anything dad says to the deputy, whether it be about his theories --

From the deputy's mouth?

Absolutely. That's what we're asking to make sure, none of that is attempted to get in through Deputy Epperson.

I think that's valid. I guess I was saying I think you're trying to limit to the father rambling on speculating different ways the homicide occurred. So I don't want to ask those questions.

That is a chunk of it, the father gives theories of what he thinks may have happened, but anything the father is saying really is hearsay. If Deputy Epperson wants to get up and testify --

My position is, I suspect what you're saying is exactly the truth, but I can't totally understand it until I hear the questions and the context of the testimony.

Okay.

It seems to me, if he's not going to agree to it -- I'll tell what you I'll do, to simplify this, I'll direct Mr. Lance not to get into the issue of what this father may have said to Detective Epperson without first approaching the bench and suggesting to me why there is some exception to the hearsay rule.

Okay.

And then I think the final one had to do with asking Kelly if she was diagnosed or treated or told to be a pathological or chronic liar.

Those are issues I'll deal with when I review the records.

Right. I will for the record say that we've kind of talked about the fact that anything post the homicide date, the fact Kelly, actually, sought counseling for either drug abuse or emotional issues, I think that's relevant and, in fact, the State intends to get into some of that, but the specifies of diagnoses or claims of whether or not someone was lying about certain things I don't think is. That really isn't in the form of a motion. That's information more than anything.

We're going to object to all these computer e-mails as not being relevant.

Okay.

And then the Defendant had his own web site on the web which, I guess that goes into the goth lifestyle topic, but there are certain topics --

What about the e-mails? Let's stop for a second.

(A discussion was had off the record.)

I can finish in five seconds. We will agree to most of this stuff. I think it might be best that, should we believe it becomes relevant, that we both agree to approach the bench prior to inquiry of any of the web site stuff or e-mails, and we would agree to do that. It may be something relevant or not, but we will agree to approach the bench prior to any inquiry. We would ask the same.

Same thing as the Epperson stuff, you're not going to get into it without approaching the bench first,regarding e-mails or web sites?

Right. It's hard to talk about foundation and relevancy in the obscure. We'll just agree to that.

Do we have any other issues other than the lifestyle stuff?

Not that I can think of at this point.

Okay. How many different things are we talking about lifestyle things?

Judge, I tell you what, we'll sit down and try to make a mutual list and then go over them all one at a time. I won't present anything to you then, but after being given to the defense attorney, we'll be able to --

These are all the things that, A, all this evidence would come from Kelly Moffett, correct?

The mother as well and Justin Bruton's father.

But all of this evidence would be oral testimony from witnesses that Mr. Lance is aware of, the issue is just whether it's relevant or not.

Correct.

I'm concerned they would go beyond oral testimony to bring in photocopies of the web site that were printed on his web site.

There are things in the web site that discuss the homicide. So I don't know that that's something we're going to get into, but I'm saying it's just not a web site talking about antireligious things, but there is discussions of Justin's death and Anastasia's death and the crime itself and the Jackson County Sheriff's investigation. Those things are talked about on the web site.

One of the things that is pretty key is the State needs to determine what of this you want to put in as your case in chief and what is it you want to put in based upon whether someone testifies the door is opened. You need to define this area of evidence in those regards, because my analysis is very different based on how you intend to use it.

So what I think you need to do is define that and define if there are exhibits other than oral testimony, define that. So I think you want to define with specificity, not only what the evidence is, both oral testimony -- what oral testimony, from whom, what exhibits and is it going to be offered in the case in chief or potentially being held back based on whether the door is opened.

Okay.

And I think -- what I would like for you guys to do is get together and define that, and I'll find some time -next week to deal with these issues. Is that fair?

Yes, sir.

So why don't you guys define that, and then I'm picking a jury Monday in another case. Come see me Monday at a break and say, "We've got it defined." Once I buy some time Monday, I'll figure out either early in the day or late at night or something, we'll get together and resolve this issue on the record before Friday. Does that work?

Yes.

That works.

Thanks a lot.

I will also get the recording device we plan on using which is going to be kind of big.

That's good. Thanks.

(Court was adjourned until April 25, 2002.)