Then I want to deal with the issues of these tape recordings, and I have -- when I get to it, I have listened to the tapes and looked at the transcript, so I have already done that.

And then I want to deal with the issue of the other-act evidence, this lifestyle situation that we started to talk about the other day.

I think, Mr. Fry, there was some potential evidence that would be hearsay but for the co-conspirator exception, and my sense is it may be agreed-upon evidence, but we may want to address that very briefly if we could.

I just want to make sure we're on all fours for tomorrow in terms of logistics. Are there other issues we need to talk about?

No, Your Honor.

I believe that's it.

I have reviewed the records. Without really -- I don't want to waive any privileges or really descend into the particulars of the records. I think the vast majority of the contents of these records are completely uneventful for these proceedings.

I find nothing -- I didn't find anything in the records that were particularly -- that struck me as being consistent with the phrases that were alleged in the motions. And I didn't see anything in the records that I would suggest that, without some kind of very exceptional showing, would be relevant in either in direct or any kind of substantive evidence or in cross examination.

And from what I know about the case, I just see nothing in the records that is particularly relevant.

So I'm going to show -- we're going to keep the records under seal and mark them as Court's Exhibit A, and I'm going to indicate that at this point in time, I don't expect either side to get into the issues of any speculation as to what are in the records, and I don't really see the necessity of even cross examination -- I think it would be irrelevant to cross-examine Ms. Moffett about the fact that she has received psychological counseling, because I don't see anything in these records that relate to this case in that regard. So that would be my intention, but I'll be glad to address it further.

Judge, since we're making a record, is it my understanding then there is no discussion in those records of the nights of the event of the homicide?

I did not see any direct discussions of that, no. I did not. Did you all expect there to be such or were you hoping there was?

Well, like I said last week, she has told more than one story. I thought it would have been very curious if --

Hold on. I marked the wrong -- instead of marking her records, I marked my cafeteria plan records. So let me go find them. The Court of Appeals would wonder why all these Walgreen records were relevant. Hold on a moment.

Again, Mr. Lance, I don't want to in any way waive what's in them, but I believe -- virtually everything in these records are very generic in nature. Okay?

Now, for whatever it's worth, these records are in cursive writing, so I can't tell you that I can decipher everything that's said in these records. But I found nothing that directly even relates to comments about this situation.

Oh.

By this situation, I mean the homicide.

Your Honor, could I ask for some clarification?

Sure.

I think in the course of the trial that in particular, Ms. Moffett, the fact is really not disputed that she did get counselling, not only just for drugs, but for emotional-psychological concerns of hers. And to some extent, I think that it's relevant to explain like a three-year delay in reporting.

So to some extent we believe that that should come out, the fact that she did have counseling, and we would bring that out.

Now, we still are of the position that details that are contained in this report, the lack of diagnosis and the lack of facts that are given to this particular counselor about the murder, you know, that's not coming in in the specifics in these particular records.

What was the date of the homicide; do we know?

October 22nd or 23rd of 1997. She did not come forward until 2000. To give you some perspective on this, in that course of three years, she is going through drug counseling and she is going through psychological counseling.

I would concede that some of that is relevant to inquire by the defense as to the nature of her ability to remember things like that.

It seems to me it's fair game for you to -- my understanding is that one of these things that this young woman would say is that she grappled with drug abuse, as I understand it, and I'm not playing this out, but conceivably that could have some relevance to her credibility, I suppose.

Justin Bruton is a young man who was present during the homicide, and according to the testimony that we expect from Kelly Moffett, our main witness, that he was conspiring with the defendant prior to the homicide for the homicide being committed.

We expect Kelly to testify to statements that Justin made to her and to Mr. Case during the period shortly before the homicide regarding the plans and who was going to do the shooting and how they were going to do it.

There will also, we expect, testimony from Francesca WitbolsFeugen who is the sister of the victim who received at least two telephone calls ftom Justin Bruton, one before and one after the homicide.

We believe that those are relevant and should be ruled as co-conspirator statements, allowed to overcome the hearsay objection because they go in furtherance of the conspiracy.

So our position -- and there is law to support -- that anything that shows the plan of the conspiracy, the event that occurs as a result of the conspiracy, and anything said by Justin Bruton to further the conspiracy all become relevant and admissible over the hearsay objection.

At this moment I can't think of anybody else, other than those two witnesses, who would be testifying about what Justin Bruton said.

Okay. Are you familiar with these statements?

Yeah. We're not going to argue against that.

Either of those statements?

Right. Just so you know where the defense is coming from, I haven't analyzed that all through the hearsay objection and all that. Defense is simply taking the position they have a right to explain their side of the story and give the jury the full picture of what they claimed happened that evening. If that includes Justin said so-and-so, I don't plan to object to that. It leads right up to the homicide.

Since there is not an in limine motion, I'm not going to prospectively rule on it. But it seems to me there is not going to be a bone to pick about it.

The tapes reference the date of the conversation, and they are attached to the transcripts that I reviewed.

I reviewed both of them, and my impressions -- let me give you my impressions and we can figure out what kind of record we need to make. Okay?

Obviously, in terms of typical evidentiary foundation, like chain of custody, the magic words "is a machine capable of recording a conversation," you know, has it been unaltered, I don't know the answer to those questions because I haven't heard any testimony about it.

First of all, I found the transcripts to be accurate -- to be exceptionally accurate. I also would suggest that -- when I listened to it, it was on this device that Mr. Fry had given me. It's basically, for lack of a better term, what I would call a quality -- I was going to say ghetto-blaster -- but a quality, you know, the thing you plug in -- the thing you listen to for both radio and for tapes and CDs and things.

Sony tries to call them "portable stereo systems."

Okay.

I did comply with your wish to bring the system we intend to use in court.

When I heard it, I was right next to it, so that might have some bearing on it. When I heard it obviously, I suspect it's because the recording device was on Ms. Moffett's phone I assume. Ms. Moffett's voice is very clear and distinct. Mr. Case's voice is not as clear, is much softer and harder to understand, although I was able, with the aid of the transcript, I was able to understand what he said.

I also found that, as I said, the transcript was accurate. It would be my belief any trial such as this, the transcripts themselves are not evidence. They are to aid the jury in listening to the evidence, which is the tapes. I believe that's the proper way to deal with it. That's my experience how it's been done. If, in fact, they were used, I would gladly give an instruction to that effect.

It's obvious from these tapes -- it appears to me from these tapes that Ms. Moffett on both occasions is calling Mr. Case desiring to talk to Mr. Case. And the drift I get of it is that she is being approached by law enforcement or other folks to want to ask further questions about this matter and it's causing her a great deal of emotional distress over it and that she wants to talk to Mr. Case about it.

The transcripts themselves in the context of all the evidence, I suspect, could be considered an admission against interests to Mr. Case, although I don't find any smoking guns or anything that's directly -- I don't find any direct admissions. But the posture of what's said by Mr. Case on these tapes in the context of all the evidence I think theoretically would be an admission or at least might well be admissible once Ms. Moffett is examined to demonstrate contact she has and concern that she has.

And I suspect that, again, her own testimony talking about what happened -- or at least her version of what happened, and the events combined with the tapes, I would suspect in an evidentiary sense these statements by Mr. Case qualify as admissions against interests.

The transcripts are very accurate. I mean, there is no admission, "Yeah, I killed somebody" or anything like that on these tapes. So that's what I get from the tapes themselves.

So, Mr. Lance, I think you're the one that had the concerns about them and wanted to address them. So I can tell you my homework is what I have just said. That's what I believe these tapes demonstrate. But you have some concerns, so feel free to address them, and I'll make any pretrial rulings I can.

Judge, I think you're addressing my point. In paragraph two, I'm talking about it can be argued they're irrelevant. I think you're already discussing that. In paragraph three I talked about the quality, but you're about to make a finding they're fairly good quality for these tapes. So I don't know what else I could add.

There is other foundationals that someone has to make. I assume someone is going to make that. I believe the foundation is something like this, the person would have to testify that this was a tape recording; that it was made on a machine capable of recording voices; that the tape was unaltered; and the tape has been kept in some kind of chain of custody. Am I pretty close to that being the foundation?

Yeah. The only thing I would add to that, Judge, in the cases Mr. Lance even cited, it shows the State is not required to show a hand-to-hand custody; that the State must only prove reasonable assurance that the evidence was not tampered with and we can do that.

The reason I bring that up is because there was an attempt, as I have explained to Mr. Lance, to enhance the tape so that the quality was a little bit better. So it was sent to a person down in Springfield who does that sort of work, and it was sent back. And you've been presented with those. It really didn't help. I mean, we are left with the same thing we had before. They weren't able to enhance them.

So the tapes themselves had been moved from place to place, and we do have the chain of custody document, but I would suggest that we don't need to bring the person in from Springfield to testify about the condition of the tapes and how he got them, et cetera; that, if we can show they have not been tampered with, and we are prepared to have Kelly Moffett listen to the whole thing, say if it's a fair and accurate representation, it hasn't been adjusted, this is exactly what we said when we said it when the tape was made.

I suspect that gets over the hurdle. Now, the one thing -- in fairness to Mr. Lance, the one thing I didn't do -- I don't know that this would affect the legal ruling I would make. As I said, I was sitting at a table with -- so whether or not -- if you want me to listen to them and have them on the box and me sit in the jury box to get some sense of what the jury would -- I mean, Ms. Moffett's voice is very clear.

Mr. Case's voice is somewhat faint -- and sometimes very faint, okay? But I find it audible, and it seemed to me it was audible.

Judge, I don't have any additional requests. I think you bent over backwards with the work you're already doing.

Well, all right. I'm going to allow you to make any objection at the time, and I expect them to lay a foundation, but in terms of an in limine motion, I do not intend at this time to exclude the tapes.

Judge, if I might be able to withdraw the exhibits for purposes of our record here. I put exhibit stickers on these and did not put a number. But for our record, in regard to tape number one, I'm going to make that Exhibit Number Ten. I'll mark that regard to the tape that was marked tape two, I'm going to identify that as State's Exhibit No. Eleven. And we'll just have those initialed and marked later, assuming we get the proper foundation.

Now, the issue -- what sometimes does happen is the issue comes up as to can they re-listen to the taped conversations. Like in deliberations. That's an issue that comes up and, basically, I would approach it in one of two ways, and I haven't gotten there yet.

One way would be to say, no, you can't. You need to listen to it now, and that's the deal. Or secondarily, if they listen to it, it would be in a controlled setting. In other words, I would bring them back down. We would pass out the transcripts. They would listen to it in our presence. All right?

And then we would then -- when they're done, we would take the transcripts back from them. I'm not going to leave transcripts and a recording device up there for them to listen to it. I'll bring them back down and let them listen to it.

The issue, basically is this: Whether or not you consider this evidence to be an exhibit that can be analyzed by the jury or whether it's testimonial in nature, if it's testimonial in nature, then you cannot -- I don't believe you can have them listen to it again. If it's considered to be an exhibit like a confession, for example, then I think you can.

And I suspect these would be capable of being re-listened to. But I haven't looked at the cases, and I haven't crossed that bridge.

But I can assure you, if there is a request to replay them, I'll allow you to make any record you want to make. I'm not just going to send the tapes up with transcripts. We'll bring them back down, and we'll listen to it with the door locked and all of as being present.

In an abundance of caution, Judge, I think I should go ahead and mark the transcripts that we provided to the Court for your review on this issue.

That's fine.

And what I'll do is, when we conclude, I'm going to mark the transcript for tape one as 10A and the transcript for Exhibit 11 as 11A, and I'll do that after we get a break here.

All right. Do you have some sense, Mir. Fry or Ms. Crayon, as to the total number of exhibits you intend to put forth?

A lot of it will have to do with some rulings you're about to make.

- when we get done, because Nancy and virtually everyone in this courthouse uses a sequential system, we assign you a certain set of numbers. Say like, if we assign you, for example, one through 40, that means Mr. Lance's first exhibit will be Defendant's 41. We'll do that when we get done. Okay?

All right. Other than talk about logistical issues and other act evidence, have we covered everything?

I think so.

I think I have a sense of it, but describe the evidence to me, from the State's point of view, so I understand fully your theory of the case and what happened, and then we'll talk individually about the various things you want into evidence. But I don't think I can do this in a vacuum.

I understand Ms. Moffett was an acquaintance and friend and associate of Mr. Case. That's what I've been told from these hearings, and that this fellow that committed suicide was -- this Justin fellow that committed suicide, I understand to also to have been an associate of theirs, and this young lady who died, who was killed, I believe to be an associate of theirs also.

She was found dead and the crime was unsolved for a period of time. And then, substantially after the fact, authorities had contact with Ms. Moffett. Ms. Moffett gave statements which formed the thrust of the case before the Court.

Mr. Case, much after the fact, was arrested for the homicide and that I believe it's been stated that Mr. Case and some of his associates followed what's been described as a goth-like lifestyle, which I have almost no understanding of what that means.

So that's about the gist of what I know about this lawsuit.

So I think before we get into the evidence I'm going to let in and what I'm not going to let in, if you could give me a flavor of -- I don't want to say a mini opening statement, but a beginning-to-end of what we got and your theory of the case, that would be helpful for me to deal individually with each one of these items.

The other thing is clearly there is another factor here, is that, on some of these things, I'm just throwing this out, the factors that I don't have before me is what Ms. Moffett will say on direct, what's asked of her on cross examination, whether the defendant is going to testify and, if he does what he says.

Because all those, obviously, are factors that could be pretty critical in any evidentiary issue. So, if you could lay that out, the State's theory of the case so to speak, in some kind of sequential fashion, and we'll jump into this other-act stuff, if that works.

I'll do the best I can here. I think one place to start would be to give you an idea of the relationship between these associates.

Essentially what we're talking about is two young women and two young men. One of them is the victim, Anastasia WitbolsFeugen. She is the girlfriend of Justin Bruton who ends up committing suicide the day after this murder occurs.

What's Justin's last name?

Bruton, B-R-U-T-O-N. The other two young people involved are the defendant, Byron Case, and Kelly Moffett, who is the State's main witness.

In October of '97, Kelly Moffett and Byron Case were dating and had been for approximately six months. Kelly was 14 years of age at the beginning of their dating and turned 15 one week before the homicide.

Byron Case was 18 at the time they started to date and 19 approximately a month after the homicide.

Anastasia WitbolsFeugen --

That's in '97?

That's in '97, correct. Kelly Moffett is now 19 years old. Anastasia, the victim, was 18 years old at the time she was killed. She and Justin Bruton had been dating for approximately six months as well.

Anastasia and Justin had lived together over the course of the summer before. Anastasia had just graduated high school in May or June and moved in with Justin. They lived together in the condo on the Plaza that Justin had from his parents.

Justin's parents provided all of his financial needs: his car, his tuition to school, his condominium, and the condition was that he stay in school.

Towards the end of Justin and Anastasia's relationship, which is just prior to the murder, I'm going to say probably end of August, early September, there is break up. Get back together. Break up. Get back together. And I expect there is going to be testimony throughout the trial that was the course of their relationship at the end.

Anastasia was very much interested in keeping the relationship going and pursued it constantly and did some of that through this defendant. Called him constantly. Wanted to talk to him. Wanted to know what Justin was doing.

Your evidence Mr. Case and Justin were good friends also?

Yes. And the relationship with Mr. Case and Mr. Bruton was close. Mr. Case stayed at the condominium quite a bit and over the summer these four kids spent lots of time together. So they all knew one another fairly well.

Briefly touching on this goth lifestyle situation, all of them hung out in, these coffee houses down in Westport. Of the four, I expect testimony to be that Mr. Case is the one who subscribes to this goth-like lifestyle more than any of the others.

Justin Bruton, as far as appearances we planned to introduce to the Court, proposed an exhibit of just a photograph of Justin Bruton. And the testimony from other people, Kelly Moffett, Anastasia WitbolsFeugen's sister, the rest of her family members that may testify, khaki pants.

She would testify that Byron Case's interest in music, in books, literature, things, were very dark. He was extremely judgmental towards anybody who had any kind of religious belief whatsoever, no matter what it was.

What do you mean by dark?

That's how she describes it. To be honest with you, Judge, she has given me names of books and types of music that I don't identify with. I don't know. But very into like -- well, I don't want to say.

You mean dark as in the color dark or dark could also mean evil.

Dark, evil, is where she is going with it. She is the one who told us about his screen saver that's an autopsy, and he thought that was a really cool thing.

He would go to web sites of people who were murdered or killed and was interested in looking at that stuff. Thought it was neat. They liked to shock people. They liked to confront and argue with people over things that went towards your belief system if it was not the same as theirs.

When I say they, he had a friend named Abraham Kneisley who may be coming in to testify. He's been endorsed by the defense. Ms. Moffett says those two together, both, exuded that kind of attitude.

When they were in Westport, for example, she would say the attitudes were that certain people mattered and other people didn't. Certain people deserved to live and others didn't. Those were the expressions that they would use and the way they treated people with such contempt.

They would walk around in Westport with priest collars on and act in certain ways to shock people. That's what Kelly Moffett would testify to.

Like what would they do to shock people?

I didn't ask her the specifics. If we intended to get that --

Okay.

A lot of it was just in the appearance, to walk around like that and make antireligious type comments is kind of where she went with it.

I didn't ask her for the specific comments, which leads us into some of the other things we showed you photographs of that we did have, which were photographs of the Defendant's cars that he drove at the time and the license plates that he had for his cars were MORBID and ATHEIST.

The bumper stickers, some of them were shocking to certain different types of people. The "Honk If You Need An Abortion." "If you can't feed them, don't breed them." "Got mine, up yours."

And the Sisters of Mercy, which was another one, which was apparently a band, which kind of subscribes to this goth thing, as I understand it.

There is one on there that says, "Evil." There is one on there that says, "I am God." Some of these we understand probably are a little bit more probative than others.

"Ich bin Ich," which was the German saying that was on there as well. We have talked a little bit about that earlier and how that may be relevant as well.

At any rate, that's the relationship of those four people and how they all came to be friends and got to know each other.

It's important I think too to give kind of some perspective to Kelly's position in this whole thing. I mean, her age, which she'll be testifying to that. When she began to see Mr. Case, her parents didn't want her to. I mean, forbade it.

Her testimony would be that on the day that it was forbidden, he came and picked her up in the middle of the night out of her house, took her to Justin Bruton's condo where they hid out for a week while Kelly's parents, who we think they may be testifying too, the mother; that they had to hire a private investigator to try to find Kelly. And when they did, she was with him in Justin Bruton's apartment, and the Defendant had cut all her hair off and dyed it black. Again, this is at age 14, and Kelly was allowing him to do that as well. So it wasn't like he was holding her against her will and all of that.

But all these things and the fact that he wanted to change her appearance to make her look more in the goth-like situation.

Okay.

We're trying to get it in to give context to Kelly's testimony, which is going to be that he is the one that was the shooter that night, and the reason he was the shooter was because, I expect her testimony to be, Justin said, "I can't do it," so Byron has agreed to do it.

And during the course of the evening as well as prior to, he had made comments to Kelly that he wondered what it would feel like to kill somebody. She is going to testify he says that in the car right before the murder actually happens. Because she says that she is sitting there going, "You're really not going to do this. This is stupid. It's broad daylight. It's Justin's girlfriend."

And he just says, "I would like to know what it would feel like to kill someone." Something along those lines. That's not a quote.

So we're not trying to show he is the type of person that would commit the murder based on his appearance or religious belief or lack of religious believe; instead, it supports his state of mind at the time he's doing this and why he's the person who pulls the trigger according to Kelly.

I understand why you want to get it in, but tell me the facts of what happened. What is she going to say?

Describe the --

How it happened?

Yes. Describe the events that both led up to and the homicide from Ms. Moffett's point of view and the State's point of view.

On that day, she comes home from school. Justin Bruton and the Defendant pick her up at home, and they're going to go hang out.

After she gets --

Stop for a second. Is Justin Bruton into this goth lifestyle also?

No. Justin dresses like he's from The Gap; however, I have asked her what attracts these two to be such good friends.

She says, well, Justin had a morbid sense of humor, and they kind of liked the same weird kind of movies. This is the specifics Kelly is giving me, but they don't share the dress and how they express it.

Okay.

And Kelly said they would talk about stuff like that and then they would never do it, which again, those things would explain why she is in this car during the day, and I'm going to tell you the events, but Kelly says, while they're talking about this homicide, she just doesn't believe they're going to do it. They used to talk about doing wild fliings and never followed through.

So we're going to be seeking to get those things in which would be considered prior bad acts; it's not criminal activity.

Okay.

That day they pick her up After she is in the car a few minutes, they start talking, and the conversation she says is initiated by Justin Bruton. And Justin makes some comment about "Kelly, what do you think would make my life easier if they weren't around" or something like that.

And she says, "Your parents?" And Justin says, "No."

And then she guesses Anastasia because of all the relationship trouble that has been going on.

And he says, "Yeah, wouldn't it be better if she wasn't around anymore."

Justin says this?

Justin says this. Which is the co-conspirator statement. And she says, "Well, I guess." And her interpretation is he is going to break up with her for good.

She is not able to tell you exactly because she says both of them participate in conversations who says what, but one or both of them participating in the conversation tell her, "We're going to kill her," and Justin at that time says --

Mr. Case and Justin say this.

Yes. To Kelly in the car. That they're going to kill her. When she says, "What are you talking about? You're acting crazy. Of course this is never going to happen. You're full of it. Like all other plans you have made, you won't do it."

And Justin says, "Well, I can't actually do it, but Byron said he's going to do it for me.

And Byron agrees, "Yeah, I am going to do it."

Kelly asks, "You don't even have a gun. How are you going to do it?"

"We're going to shoot her."

"You don't have a gun. What are you talking about?"

"Yeah, we do. It's in the trunk."

"You don't even know how to shoot a gun, Byron," according to Kelly.

Byron says, "Yeah, I used to go hunting with my dad. I know how to use a gun." And Kelly says she never saw Byron Case with a gun before. She never saw Justin Bruton with a gun before.

So they have this conversation back and forth. "We're going to meet her. We want you to call her and meet us at the Dairy Queen." They're going back and forth.

She is saying, "It's broad daylight. You guys are never going to do this."

She does call Anastasia and her testimony is she spoke to her and agreed to meet at the Dairy Queen, which is across from Mount Washington Cemetery.

On Truman Road.

On Truman Road. Kelly's testimony will be they did drive out there together. They did pick Anastasia up from the Dairy Queen. They did go into Mount Washington Cemetery.

Prior to picking Anastasia up, they talked about taking her to a secluded spot to do this. They stopped in front of the Nelson Mausoleum in the cemetery, and that Justin and Anastasia get out but the caretaker comes up, starting to get dark, puts his lights on. They get back in the car and leave the cemetery, all four kids. And the caretaker is able to corroborate and identify Justin Bruton's car by his license plate, et cetera.

Kelly's testimony --

At this point in time no one has been shot?

No one has be shot. Everybody is back in the car.

No one has seen any guns and no more conversation of it once Anastasia has gotten in the car.

They drive around, and according to Kelly, "Let's go up this road. This is going interesting here." Because they're looking for a quiet place for Justin and Anastasia to have a talk about their relationship.

They go up into what turns out to be Lincoln Cemetery. Kelly doesn't recognize it as a cemetery for reasons that are pretty obvious once you see photographs of the area. All the headstones are down into the ground; it looks like a park.

Is Lincoln Cemetery part of Washington?

No. It's adjacent down the street and up hill.

Okay.

They go up in there and that's where the homicide occurs. And Kelly's testimony is going to be this. Anastasia and Justin get out of the car. They're standing on one side of the car and that her and Byron are sitting in the back seat, kind of having the same kind of conversation. And he says, "I'll be right back."

She is going to say that Byron got out of the car, popped the drunk, got the rifle out or the shotgun, whatever it is, and pulls it out and points it at Anastasia's head and shoots.

She says, just prior to that, Justin tries to stop it. He's yelling and that's where this "Stop, don't do it," and the German words are being exchanged.

And then Byron yells for Justin to get back in the car. And she is going to describe the emotional state of Justin and, in contrast, the Defendant was extremely calm and collected and wanted to make up this story about how --

And then they spend some time together talking about what they're going to say. And she is going to testify the Defendant got rid of gun. Doesn't know exactly where. She is going to give a description of what she remembers.

The Defendant and Justin both sort of come up with this story and they're running it past her. "Do you think you would believe this about Anastasia getting out of the car after she is mad at Justin Bruton?" Which is the story that's delivered to the police the day after the body is found.

When you say it's delivered to the police, do the police just naturally go talk to these kids because they know they were associates of Anastasia?

Anastasia's body is found at 3 o'clock in the morning. She is killed in the early evening of the 22nd. Her body is not found until about 3 or 4 o'clock in the morning on the 23rd. She has no identification on her. Nobody knows what's going on.

There has been some phone calls between -- as I explained earlier, Justin Bruton and Anastasia's sister, because once the story is made up, they take Kelly home, because she has school the next day.

So they're taking her home and they're giving this story to the mother, Kelly's mother, and Justin Bruton gets on the phone and gives the story to Francesca WitbolsFeugen that, "Anastasia got mad. Got out of the car. I haven't seen her. Has she come home yet?" In furtherance of this conspiracy.

They actually initiate the contact with these folks?

Yeah. Justin and --

They as in Justin and Kelly. I don't know if Mr. Case does or not, but knowing that Anastasia is going to be missing, they contact members of her family and/or other folks to sort of start covering their tracks. At least that's your theory.

Exactly. The story has been given. So once Anastasia does not come home, her family is reporting her missing. Then the conversations with Justin come out through the sister, and that's how the police end up realizing who Anastasia was with last.

And they start looking for Justin Bruton. They can't find him. By now they found he went over to The Bullet Hole in Overland Park, purchased a shotgun and put himself against a building in De Soto, Kansas, and killed himself.

Shortly after this event?

Yeah. He's not discovered until, actually, Saturday morning, and her body is discovered early Thursday morning. However, there are some things that the Johnson County Sheriff's Department is going to be able to testify to that lead them to believe he's been there a day or two.

Okay.

And the purchase of the shotgun that he uses that is found with him at the suicide site and the receipt for purchase of that gun, all of those things are found in his car which is the car that the caretaker sees them in and Kelly says they're driving around in at the time of the homicide, they're all there.

That gives me a flavor. Let me ask you a couple things, and I'll hear from Mr. Lance. I want to do this in an organized fashion.

The gist of what Ms. Moffett -- first of all, this discussion about killing Anastasia, did it begin in this car ride? Was there discussion about it prior to that time?

Ms. Moffett is going to say they said they had been talking about it all day. But her hearing of the conversations starts in the car. She can say I heard them starting to speak of it in the car, but their conversations included comments like, "We've been discussing this all day."

So when they're in the car, and they say they've been discussing this all day, that's the first time Ms. Moffett knew of this plan?

That's correct.

And Ms. Moffett is going to say that, in the context of -- potentially the context of the lifestyle that Mr. Case was somewhat involved with, is that this idea of shocking people and discussing violent acts, morbid things at length, and then never doing it, was common occurrence?

Yes.

So her thinking that they were talking about it, going out someplace, acting as they were going to do it, and false start and then assuming they were going to false start what turned out to be this homicide would be consistent with prior events she witnessed with Mr. Case?

Yeah. I want to make sure it's clear for you, I don't think Kelly would be able to testify she has heard them talk about wanting to murder other people.

I understand. Now, what I would like for you to do, Mr. Lance, in a sequential fashion, the next thing I'm going to ask them is what they want to get in, specifically.

What I might ask from you in terms of -- without ruling on anything as to what the jury is going to hear, is her rendition of the -- from your understanding of discovery is, Ms. Crayon's rendition of what her evidence and what her theory is, is that how you understand it?

Yes, sir.

Next I want to find out what they want to get in. But, if you want to say something, go ahead.

I would like to respond to it so you understand what the defense will be.

That's a good idea.

And the guy says something generally like, "I don't love you. I don't know why, but I don't love you."

At the stoplight she then gets out of the car in a fit and walks off, heading the opposite direction back towards Independence where her home is.

That's Anastasia?

Yes, the victim.

This is roughly at the intersection of Truman Road and I-435?

Yes. Exactly. There is a stoplight there.

Which is less than a mile east of Washington Cemetery?

Right. Less than a mile from the spot where she is found dead later.

The defense will be the other three teenagers drive off in the car, and they have never seen her since and don't know what happened to her. And it's basically an unsolved homicide. They never saw her again after she stormed away from the car.

Okay.

Why don't you enlighten me as to what a goth is or can you help me?

To me the gothic refers to either 17th or 18th century. There is gothic architecture, for example, has that name, It's a very dark mood, vampire story. The literature to me would imply stories about vampires or Frankenstein or terrible tragic love stories like Wuthering Heights and poetry, stories from that time, 17th, 18th century, when gothic architecture was popular.

I think the State is conceding Justin Bruton dressed in khaki pants and Izod shirt and didn't act like he was into it, and the people that are here still living saying he wasn't really a goth either. So I don't think we have anybody saying they were a goth.

I just think the reason I think they're going into it is to paint the Defendant in a bad light because otherwise I think they're just flat concerned the witness won't be believable.

I don't want to cut you off. Did you have something else you wanted to say?

I tried last night to find some cases. I couldn't find anything good on point, but there are some general cases that talk about we don't like to generally go into the character of the Defendant.

I brought one, just a short blip out of the book called Missouri Evidence Restated. It mentions the general prohibition on --

Let me ask you about something in the generic. I'm going to reveal my thinking, and this will sound disjointed, but I think it will get us someplace, maybe.

Let's assume that I were to accept the fact that for them to just put on evidence that Mr. Case acted what some people would describe as strange or weird and listened to different music and wore black and had offensive bumper stickers and all these kinds of things, that this would be -- this is character evidence and shouldn't be injected into the case by the State.

Assuming I buy that argument, they'll put on Ms. Moffett She'll testify as to what happened. I mean, all this stuff about them getting together, Byron killing her, all this kind of stuff. That's going to happen.

Then, clearly, since, as I understand it, she is the linchpin of their case, I think they have as much as said that, if I'm not mistaken. So knowing the skill of your advocacy, you have and will continue to think of ways to effectively cross examine this witness, and one of the things -- it seems to me, her credibility will be challenged.

One of the things that could conceivably be challenged is this story sounds too crazy. Okay?

Then at that point in time, the idea of driving around in a car and thinking of weird, bizarre, violent, awful things to do is that one could suggest 14-year-old kids don't do this. The fact they have done those things before without culmination might well become relevant after you cross examine this young lady.

Judge, I don't plan to object to that topic. But I think that can be mentioned without calling somebody a goth or talking about their religious preferences.

Okay. Well, you understand the generic thing I'm saying. Much of what they're telling me, it seems to me, if I kept it out, it would come in immediately after you cross exwnine this young lady, it seems to me.

I guess I disagree with the characterization of much of it. If she wants to say they had these crazy stories about blowing up a church, and I guess that's her story, and I'll ask the Defendant if he wants to testify and deny it, but I think much of what they're going into is way off topic. Religious preference, that's really offensive as a defense attorney to hear about that.

This is the last case I'll give you. This isn't any means on point, because this was a child sex case. This was a reversal where they locked out character evidence. The quote, what I put the yellow tab on, stated another way, "A jury is likely to penalize the Defendant because he's quote/unquote a bad guy." I think that's where we're headed with this character evidence; he's an atheist or bad guy.

I already told you the last week about Dr. Friedlander, who is a pathologist. Maybe people think he is weird too. He's fascinated with death. He studies pathology. I think there is a huge leap, someone with religious beliefs to he's a bad guy, so he must be guilty.

Rather than respond to his argument, do you have some enumeration of the things you want to get in and through whom and what they are?

We do.

Let's cover that next.

(A recess was taken.)

I think we were at the point where we were going to ask the State to enumerate this various evidence; is that where we are?

I'm going to do that the best we can. One is the Defendant's appearance itself, the pictures of what he did look like at the time that this happened, which would include the face makeup and the dark hair and the dark clothing, et cetera.

I anticipate that, if we're allowed to get into that, not only would Kelly be able to testify to that's how he looked then, but Francesca WitbolsFeugen would be able to. If we call Justin Bruton's father, he has contact with the Defendant and Kelly Moffett Friday and her body is found on Thursday, and Justin Bruton's father had contact on Friday and he is taken aback by his appearance, but he ---

Do you have a picture with you?

We plan to have it today by 10, but I don't think we do.

I got it. White face with makeup?

Black clothes, white face, black eyeliner. Some of it may have red eyeliner. That's essentially what it is. Which those are things -- and Debbie Moffett, the mother of Kelly Moffett, obviously is familiar with what he looks like. Those are the people I anticipate we could elicit that information on.

The license plate MORBID we were talking about. That was not only in the photographs that we had, but Kelly and Debbie Moffett both can testify to that as well.

"MORBID" on one, "ATHEIST" on the other?

Yeah.

Are we going to argue?

I want to find out what they are first.

Yeah. One license plate. Mr. Fry and I were just talking about it. It seems like the concern of the defense has been the use of the word "goth." It seems to, even amongst us, lack some definition, and I anticipate it probably would to the jury too. We can agree not to use that word itself if Mr. Lance's concern is that it conjures up --

To me the word "Goth" isn't as bad as putting in a bumper sticker that says: "Honk if You Want an Abortion."

We're getting to those.

Saying someone is a goth is fairly nondescript, but go ahead.

I anticipate Kelly could give some description of that. I don't think anybody is saying that any of these kids, including Mr. Case, was so far into this goth thing to the extreme that I think it can be , rituals with animals and killings and all those things. No one is saying that.

But the dark imaging and things like that that Mr. Lance also talked about, I think that is true.

Okay. What's next?

So if we're allowed to describe it and not use the word, I think that might help some.

The bumper stickers. I think the ones that probably have the most relevance to what the State's theory is this "Ich bin Ich," which we talked about. I hope I'm pronouncing that right, at any rate.

And the ones that say "evil" or "I am God," I think those things lend itself to some understanding of his belief in a couple of things that he enumerates to Kelly and that can be tied into his attitude about why he's the one who does the shooting itself.

I mean, Kelly is going to testify that he on several occasions, along with some of his friends, had this attitude that certain people matter. Certain people didn't.Certain people didn't have a right to be around. Other people did.

She is going to testify that Anastasia was in that grouping towards the end of people who didn't matter anymore. He had a pager, the Defendant did.

Kelly would testify that he had a voicemail system on there and that his voicemail system was something along the lines of, "If anybody is calling, you can leave a message, unless it's you, Anastasia. No one cares about you anyway, so don't bother." Something like that. And the idea she is fitting now into this thing of --

It's before the homicide that that's actually on the tape. Very close to the time of the homicide, actually.

Okay.

Now, Anastasia is fitting into this group the Defendant defines as people who matter or people who don't.

What else?

The other bumper stickers that are on there that I didn't mention, the "Honk if You Need an Abortion"; "Can't Feed Them, Don't Breed Them"; "Got Mine, Up Yours", I think they probably give us a picture of his attitudes and how he likes to shock people and how he would be involved in something that other people might not do. We'll concede that we don't need to get into those. I think there are some that are probably more relevant.

What's Ich bin Ich" mean in German?

My understanding is "I am I." It's not anything that's really offensive.

Do you know, Mr. Lance?

Our opinion is, "I am myself " I am myself, meaning I'm an individual.

Okay. All right.

And I don't necessarily argue with that.

Okay.

The autopsy screen saver, we talked about why we thought that was relevant, and Kelly would be the one that would talk about that.

The thing about, you know, the pin that Mr. Fry enlightened you about last time we were here --

The what?

The pin that he and his friend, Abraham Kneisley, wore.

What is it?

The one with Jesus Christ upside down on the cross saying, "I ass-raped your Savior."

What?

"I ass-raped your Savior." And the fact that Abram Kneisley and he would wear these priest collars around at Westport I talked about earlier, those are things that may be relevant more in a cross examination sense.

Okay.

His web site, same thing.

What's his web site?

I've forgotten what the name of it is, Judge, but we have the printout off of the web site, some sections of it.

I can't represent to the Court that this is a complete one. But he maintained a web site. His sign-on -name was "Savior."

It's got all sorts of different things in here about Church of Euthanasia, Suicide, Abortion, Cannibalism, and there are several references throughout his web site as to the death of Anastasia, the death of Justin, his relationship with his mother, with Abraham Kneisley, comments about all those things that at this point we're not seeking to introduce as our case in chief.

If we decided we wanted to do that, we certainly would approach the bench and talk about it before we did that.

Okay.

The license plate with "ATHEIST", that would just be testimony. We don't even have a photograph of that. We're willing to let that one go as well. I don't know anything that describes the fact that he's an atheist. He doesn't believe in God.

I think the thrust of what we think is important is, from Kelly's standpoint in her testimony is, anybody who did not have the same feelings that he did, the same outlook on life, the same opinions, he had utter contempt for, he didn't like, and he made fun openly, was very judgmental of --

Was Anastasia not fond of his lifestyle?

No, I wouldn't say that. I would call Anastasia more of an agnostic probably than an atheist and was exploring other religions.

What about all this goth stuff Was she dressed in black?

Anastasia was just acting very annoying and wasn't acting the way he thought she should and his judgment of that is more important. So we don't need to get into he's an atheist.

Is there any flavor -- does this goth lifestyle, does this have any -- I'm certainly not attributing this to Mr. Case or anyone else, but is there, to say in the generic, is there an Aryan nature to this kind of existence?

There may be, but I don't know it, and I don't know that we have any -- we wouldn't be offering any testimony that he was of that flavor, no.

All right.

Mr. Case's mother is from Germany, and I think that explains some of his knowledge of the German language. So I don't think it's anything like that.

All right. When I ask that I didn't know some of these things. Again, this whole gothic, this lifestyle we're talking about still escapes precise definition in my mind.

But I just didn't know -- I mean, this very generically, not to cast aspersions on anyone, but kind of right-wing skinhead kind of thing, I didn't know if those were actually related or not.

They may cross at some levels, but I don't think there is anything that we would have that we would present in any way or form that that's what's happening here.

All right.

Although, I make note the way that Mr. Lance has described it with the 17th, 18th century, the dark mood, the vampire stories, I think he did ascribe to that. He took Anastasia, the victim to prom, and he showed up dressed like a vampire. I think that he very much was interested in all of those things. And the things that he read -- and again, I don't have the titles and all that, but I think he did. But, if we can, you know, avoid this umbrella thing we're trying to put him under with goth and being more specific with what we would like to get into, that's what we're trying to do.

Let me ask you this. If you just say that he was -- if you were to say that Mr. Case or anyone else was fascinated with gothic culture or gothic lifestyle and say no more than that, is that something that's going to be -- is that a negative thing? Folks younger than me, would they understand what that means and would that be offensive?

I don't know how much younger I am than you, but to me --

Not a lot.

But I think, if it was just left to that, I don't think it's going to do anything. I think it's just going to be out there and no one is going to understand what that means. The idea these kids are going to these cemeteries too, is that a normal place for young kids to go sit around and hang out, how odd is that? I'm not saying that they were there all the time, but Kelly says they she and Byron used to go to cemeteries and take photographs of each other in the cemeteries.

Things like that, if a jury doesn't have a sense that this is something that they're into, it's all sounds extremely strange. I think to put Kelly's testimony in context -- I think Mr. Fry and I can agree that we're not going to get up there and say, because this guy dressed this way and because he likes cemeteries, that makes him the killer, that explains Kelly's testimony. I think it does explain why he's the one who ends up doing the shooting.

Do you want to generically respond or do you want to descend into some particulars or do you want me to give you some advance thoughts I have or what do you want?

Why don't we just go through the particulars.

All right. Let me just give you a flavor of some things and see what you think about this. Is that okay?

Yes.

The idea that -- do you have any objection to them putting forth evidence if they were to suggest that he was -- evidence to the effect that he was fascinated by or was very knowledgeable of gothic culture and that he tended to be kind of an individualist and do that kind of thing, and that one of the things he did -- well, first of all, to that extent, what do you think about that?

I object to that. I think the goth name and that reference will have a negative connotation. I go back to what I started with when we were here last Thursday. When I make a motion in limine, what I'm saying is this: Is this probative and is it prejudicial and which outweighs the most?

And I think it's an unfair character attack to say Byron Case is a goth. He's fascinated with the goth lifestyle. I don't see the relevance to that to what happened on the night of the homicide.

I'm trying to decide how to make this record. Well, of the things that they listed, I can give you some thoughts and this is a fluid situation, because this is a fairly undefined kind of thing. It's not like deciding whether or not the jury can hear that Susie said that, you know, this event occurred at some other time. It's a little different.

The idea that -- I think this "Ich bin Ich" thing, if there was German spoken at the at the time of the homicide and, obviously, again, I'm assuming -- I think it's obvious this Kelly is going to be cross examined. The fact that he knows German and that there is "Ich bin Ich" on a bumper sticker that demonstrates that, I would suggest that would be relevant.

I'll concede that one.

The fact that he was at least judgmental in that there were people that he specifically liked and didn't like and that was kind of his style and the fact he had a pager that said, "Leave me your message unless it's you, Anastasia," I think, if he's accused of shooting this young lady, I think that would be relevant.

Judge, I'm sorry, but I see those as two separate points.

Tell me what they are.

I think, if that was on his voicemail, they claim that's on there, they have the, right to put that on.

If the Defendant wants to testify, I think he would testify in response that he sort of got caught in the middle of this on-again-off-again relationship between Justin and Anastasia, and she kept calling him.

So the fact he had a pager and the pager said -- without getting into what his attitude towards lifestyle, but the fact he had a pager that said, "Leave a message unless it's Anastasia," you would not object to that?

Yeah. Because he can explain how he was being badgered, when Justin wouldn't take her calls, she would call him.

I think that would be relevant.

He can explain that. But the other issue of, "I have people I like or dislike or these other people just don't count," I don't see that as character.

I'm not there yet. I think also I got to think, the fact that him and Justin would commiserate with each other and talk about doing strange things and never pull them off, this idea of --

I'm not going to object to that.

Let's go, you know --

I have no objection to that testimony.

I mean those kind of things like -- well, the two examples that I heard was the church and the robbing Justin's parents. Those kinds of things, the fact that they would want to do -- at least say things that were outrageous, I guess would be a good term to put it, and then they got into -- that that's something they did among each other and then never pulled it off, okay? I think that would be -- I can't conceive of that, once this witness is cross examine in any fashion not to be relevant.

Judge, I never had any plans to object to that.

And I think even, although with maybe not describing it as a gothic lifestyle, the idea that he and Justin, one of the things when they were together is that they -- I don't know, this idea of wanting to, as was described to me, as trying to be offensive I guess was the term, I don't know, if that's --

Or provocative.

Justin and he, when they were together, frequently did things to offend other folks, I don't know.

Judge, I want to clarify too.

That's a little hard to -- but certainly the fact they talked about doing outrageous deeds and didn't do them, I think that's relevant. All of the other stuff I could easily see doors being opened to this stuff, but I need some guidance on why this other stuff out the door is relevant.

To me you're painting him as a weirdo and that's because he did strange things and that Is what I get from it.

I'm trying to understand -- again, in the context of this trial, based upon Ms. Moffett's cross examination and/or when he testifies, I can conceive of a lot of this stuff maybe coming into evidence based upon the flow of the testimony, but just to basically get up in opening statement and say Byron Case is a guy who used to dress like Dracula and had autopsy photos and this, that, and the other, I'm not getting there.

If there are particular things here like this idea "Honk if You Want an Abortion" that is so offemsive, that's just beyond -- I mean, to some people that is -- to a large group of people that is as offensive as it could be.

And there is all ldnds of people that may be kind of radical pro-choice people, for example, that might endorse that bumper sticker and committing homicide is the farthest thing from their minds.

If I wasn't clear, I need to be more so. That was one of the ones that we said we can see where that's not something that needs to come in. There were others that -- the "I am God" and the "evil" ones that I tried to refer to in my comments that I thought were more something along the lines of the State's theory of the case in his judgment of other people and why he's the one that does the shooting instead of Justin.

Justin can't get himself to do it. And the fact how does this person look at the time they're doing it and how does that fit in with why he's the one that's doing it, they're going to be sitting here looking at Byron Case dressed for trial this way. It's like showing an arrest of a photograph of somebody when they're arrested.

The difference between the way somebody appears and presents themselves and attitude, as well as appearance, all that together, I think they're being allowed to show something that wasn't the me in October of 1997. It wasn't that way in '97 when he committed the homicide.

Why is that relevant though? Other than to suggest because he looked weird in '97 that he's going to kill people?

The judgmental attitude, the wanting to shock people. The person who was willing to step up to the plate and do something when it needed to get done, to either shock or hurt or bother people, he was the person. Okay?

And I don't know, I guess I feel like I'm going over the same things. I do agree, "Honk if You Need an Abortion", is not something that sheds light on why he's the person who did it. That doesn't have anything to do with it.

So that is an example -- we agree with the Court.

In terms of trying to deal with this record in a motion in limine context I guess I've got to start off with -- the first thing I've got to start off with is just what's admissible before there is even cross examination. Okay?

And then, for example, I could conceive of cross examination opening the door to some of these things, but just to come off with -- I don't understand why it's important to show that he dressed with whit6 -- I just don't understand that.

Now, the idea, for example, and I am not trying to preview this for anybody, but, if there was any kind of cross examination to suggest this is just ludicrous that these people would start -- these teenagers start driving around in the car and talk about killing people and then basically bring up the fact that Mr. Case -- one of the things he liked to do was shock people and say and do outrageous things, I think that would be very relevant, especially after cross examination.

But autopsy screen savers, "Honk if you're going to have an abortion", how he dresses, "I was the one that raped your Savior" --

They're all quite relevant, we believe so.

I understand. This God thing, I've got enough problems. I don't want to buy more. I'm not suggesting that I am endorsing either atheism or -- the concept of being agnostic or atheist is foreign to me, but by the same concept, someone can be atheist or agnostic and not be evil. I think there are people who are atheists or agnostics who are not evil people.

I agree.

I think an atheist is someone who is going to be evil and kill people -- some people may draw that conclusion, but I don't think it's a fair one.

Let me direct the Court to this. Kelly's testimony would include that he's expressed a desire to know what it was like to kill somebody.

I'm not going to object to that if that's her claim. I don't object to that.

And then from that is where I say some of this becomes more conceivably relevant. He wants to know what it's like to kill somebody. That he is God. That he's this individual person. That he wants to shock or --

Well, let me give you a scenario. Let me give you this scenario. She is allowed to say he is the one that says he's often thought about I wonder what it would be like to kill someone. He testifies and he denies saying that on the stand. Well, to then put out the fact, isn't it true, then I think at that point in time, well, don't you have autopsy screen savers?

Don't you talk about this? I think all of that stuff would likely be relevant then. He may not even testify in the case. I don't know whether he's going to testify or not.

I guess what I'm saying is much of this stuff between the necessary cross examination of Ms. Moffett and potential of Mr. Case testifying, much of this stuff could well be relevant, but Ijust don't --

I mean, if the defense wants to be blunt about it, I'm confident anything I say is not going to affect Mr. Lance's strategy, but, if the strategy in the case -- and I don't know what it is -- is to do a tight cross examination and have his guy not testify, I got to be honest with you, I think a lot of this stuff is inadmissible.

Well, what about this very judgmental attitude that some people matter, others don't? That's something that Kelly says that he talks about, a lot. He started to talk about that when you were saying when she was okay, then that got split from the pager message.

Yeah, I was the one that objected and said those are two separate issues.

Right. I don't think we went back to that. If we did, I don't think I noted it. The pager message is relevant. The schemes were relevant. And that's all I've got. Then I've got this very judgmental attitude that some people matter and others don't.

Do you want to speak to that, Mr. Lance?

Yeah, that was the part I objected to. If they have a pager message, fine, but I think it goes right back into the character assassination I'm talking about, saying he's very judgmental, so this makes him a bad guy. That's the way I take it. I understand they have a different spin on it, but that's just a character attack to me, she thought he was very judgmental. There are a lot of judgmental people in the world.

If all she was going to say is he's judgmental, period, that's open to interpretation, but when she illustrates what do you mean by that.

Well, he would say there are some people around here that deserve to stick around and some people don't. There are some people who matter and some people better off dead. Those kind of things illustrate the judgmental attitude and make it relevant in this situation.

Not necessarily it's dispositive, but did he say there are some people that matter or some people don't or did he say there are, some people who should die? Do you follow what I mean? You can think people don't matter and not want to kill them.

My recollection, Judge, is the context is that the Defendant stated a belief some people matter, some people don't. And some people die, and they don't matter, so what. So the death of the people that don't matter are irrelevant and not important.

So once he categorizes somebody that way, take for instance, Anastasia falls into that category, the, fact she is killed doesn't matter. It's almost as if --

It's different than him doing the killing.

If it's not a motive, it's like certainly the conduit where he psychologically gets to the point where he's able to do this. In all our murder cases, that's a process by which you form the intent we're required during deliberation that we're required to prove.

Now, if that's a stated belief, and we have a witness that will come in and say he gave me that stated belief --

That witness is Kelly Moffett?

Yes. And then you look at us and you say, well, you have the burden, State, to prove either deliberation or intent. You say, well, we have this statement; in the context of that statement, is that Defendant's belief system that, if she didn't matter, whatever happened to you didn't matter. And, if you died, it didn't matter. So, if I kill somebody that didn't matter, it's not a big deal.

And Kelly is going to testify his attitude following the homicide was very much like that. This is over and done with. I don't want to talk about it anymore. Can't be changed. Forget it. There are two people dead now. Why ruin anybody else's life over this whole thing?

Would the testimony be that one of the people that he indicated that didn't matter was -- would the testimony be he lumped Anastasia in the category of people that didn't matter?

Kelly has never told us that, but the conversation -- it's never reported to us in that specific context.

We haven't asked her does Anastasia fit in that category. Let me put it this way. She gave that in talking to us while we were talking in context of why he killed Anastasia. Because we're talking about why would he do this.

She says -- I think she said in the depo. She said, "I don't even know."

Obviously, she is going to testify she had an ongoing boyfriend-girlfriend relationship with Mr. Case, correct?

They saw each other practically every day.

Judge, I think it's unfair to characterize -- to say that shows intent or deliberation. Kelly Moffett is going to be clearly -- when she got in the car, the two boys were already in the car. They were talking about what a pain Anastasia had been and how her relationship was messing up Justin's life.

The two boys were saying we're going to straighten out Justin's life, get rid of this girl, and Justin didn't really have the spine or guts to do it and asked Byron as a favor to do it. If the jury believes all this, they have an intent in deliberation before the jury. They still don't need to go into this thing about Byron is a very judgmental person. He liked some people. Some people he intensely disliked. To me that's too much belief.

Mr. Lance can argue that. We shouldn't be limited in how we prove our case given the burden we have.

You have to be limited by the law of evidence.

Agreed. But the argument they have these four things, they don't need this fifth thing --

Whether you need it or don't need it, my question is the relevance of it.

I was only responding to the State's argwnent. They can have ample deliberation if the jury believed that witness.

Well, I don't know what she would say. I guess I would suggest this, consistent with the -- I'm just thinking out loud now. Consistent with the message on the pager, if there was testimony that -- when you're describing these outrageous or unfulfilled bizarre things, shock value, I describe this as kind of shock value things. There are a lot of people that like to --

Rap music is kind of like that. I have some firsthand experience with that from a son point of view, not from this level point of view, but from a -raising children point of view.

I suppose, if she has a relationship with Mr. Case, an ongoing relationship, and for her to suggest that Mr. Case tended to basically either care a lot for people or not care a lot for people and thought people mattered or didn't matter and that he reached the conclusion one of the people he didn't particularly care for was Anastasia, I think probably to that extent I think that would probably be relevant to that extent, not relating it to some Dracula-like person. I think to that extent I would be inclined to allow that to that extent.

But everything on the bumper sticker except the "Ich bin Ich," I would exclude. I think his appearance, that stuff at this point in time, I would exclude that. The MORBID and ATHEIST at this point in time I would exclude. The autopsy screen saver I would exclude. "I raped your Savior" I would exclude. Web site stuff, not knowing more about it, I would exclude that.

Now, with that being said, what I have included is stuff that I think, based on what I know you can use in an opening statement, I really think this is a fluid situation.

I think, based upon the nature of the cross examination of Ms. Moffett and if Mr. Case testifies and what he says, I think that this is an extremely fluid situation. I really do.

With that being said, that's where I'm inclined. Now, if there are particular things you want to reraise, that's why I had the hearing.

I'm not clear on will they be allowed to mention goth, goth lifestyle, in their opening, which I do object.

Do you think the goth lifestyle -- I don't know enough about it, but is goth lifestyle going to have a negative connotation to some people, do you think?

That's my concern, yes. I think it will.

What's your view of that, other than, "Gee, I would sure like to do it"?

What I'm thinking is, if you get to say in opening statement that Mr. Case was friends with Justin, whatever his name is, and that they were together and they tended -- you that were unusual or different, they liked to shock people, they liked to offend people, they often talked about committing outrageous acts and that was common, I mean, they talked about blowing up churches and robbing people and stuff ae that, if you get to say all that, I don't know why you need to say that he was, you know -- I don't know [dz?] goth things becomes -- I don't know why you need to say that.

But again, this is a very fluid situation. I'm not telling you guys anything you don't know. So especially if this Defendant testifies, it becomes an extremely fluid situation.

Well, to be honest with you, Judge, what I'm looking at, what you're okaying at this point to come in, I don't know how it helps anything to be able to say it. I mean, you're saying we can get into the schemes. I don't think the schemes are necessarily the goth lifestyle. I don't see those as necessarily being that connected.

I'm not going to try your case for you-

No, I think those are relevant.

I think they're pretty relevant when he cross examines Kelly Moffet and wants to argue to the jury, well, so this 15-year-old or 18-year-old just comes in and says we're going to kill somebody and you just didn't think anything of it, the fact he did this stuff all the time and then, bingo, he happens to deliver this time, I think it's pretty helpful evidence.

We want it in, and I intend to introduce that. I'm just saying I don't think that saying anything about goth enhances the prior schemes. So I agree.

Okay.

I think for us to be able to say, well, they used to go to cemeteries. They liked to hang out in there. Does that mean they had this goth-like interest and that sent them to cemeteries. No, I can just say they liked to go to cemeteries. So that's fine.

Okay. Does define the parameters of the situation enough for everybody's needs?

Yes.

Anybody else want to say anything or make any other record?

No, Your Honor.

Okay. Again, if there are specific areas that you deem excluded that you think the door is opened, come to the bench, and I'll be glad to --

I emphasize again, if there is one thing I want to say, I think it's a very fluid situation.

Anything else other than tomorrow we need to talk about?

Judge, something came up -- the Defendant just mentioned they pulled him out at 7 a.m. I think the jail policy is they don't have razors or anything. Have you been asked this question before?

No.

The Defendant is concerned having access to a razor early so he can shave before jury selection.

We can make provisions for that.

Would you make sure that happens?

Yes.

Do I need to call anybody, because we're going to start jury selection pretty early tomorrow?

What time?

Well, let's talk about that. They can have a full panel of jurors at 8:30. Let's go off the record.

(A discussion was had off the record.)

(Court was adjourned until April 26, 2002.)