THE COURT:

We'll go on the record in the case that's been styled State of Missouri vs. Byron C. Case, cause number CR2001-03527. Record should reflect Mr. Case is here in person represented by his counsel, Mr. Lance, and that Mr. Fry is here on behalf of the people of the State of Missouri.

The case comes before the Court for the purpose of dealing with a motion for judgment of acquittal not withstanding the verdict of the jury or, in the alternative, for a new trial; and also, should that motion be denied, the Court intends to take up the issue of sentencing at this time.

So with that being said, the first matter I wish to address, Mr. Lance, do you want to make any other additional record on your motion, other than the written document that's been placed before the Court?

MR. LANCE:

No additional record, Judge. I believe the matters -- the issues raised were thoroughly discussed at the trial. I don't think it would benefit anyone to reargue all the issues today.

During the course of my trial, some people made my attorney, Mr. Lance, aware that they witnessed Your Honor repeatedly nodding off to sleep. Mr. Lance never said a word of this to me until I later confronted him about it.

THE COURT:

Excuse me. Who nodded off to sleep?

THE DEFENDANT:

You did, sir.

THE COURT:

Okay.

THE DEFENDANT:

By that point, the trial was already over, however. Then, to compound the matter, he never mentioned this as either an amended version of his motion for new trial or as an addendum to that document.

I feel this is one of the examples of my counsel's, frankly, ham-handed way of dealing with my defense and of what I feel is a blatant disregard for my right to fair trial. I don't think it's any excuse of professional embarrassment that can possibly be acceptable when dealing with the issue of deciding people's lives.

The only viable resolution that I see, and I hope that you see as well, sir, is that at this point I think the best thing would be to overthrow the jury's verdict and declare a mistrial.

THE COURT:

Okay. Anything else that you want to say?

THE DEFENDANT:

No, Your Honor.

THE COURT:

All right. Do you want to address the issue either of Mr. Lance's motion or the comments made by Mr. Case?

MR. FRY:

I'll do both, Your Honor. I do agree with Mr. Lance. The issues raised in the motion for new trial presented by Mr. Lance are timely and ruled upon by the Court were thoroughly litigated, very aggressively litigated by defense counsel and aggressively litigated by the State. We have no further argument to make.

We think the Court made the right rulings, obviously, during the case, except for those rulings where you kept evidence that the State had that we wanted to get in out, and that's not an issue anymore.

In regard to the last remark made by the Defendant, I think the record should reflect that I was here present the entire time, and I don't think the record is reflecting any insinuation that I fell asleep at the switch at any time. I was alert, and I noticed that the Court was totally at all times aware and not nodding off. And if needed to testify, would testify as such. I think any insinuation that you were not attentive at all is incorrect.

THE COURT:

All right. I'm just sitting here pondering the issue of -- my distinct recollection is I'm very confident that I didn't nod off at all during this trial, because I recall this trial very well. And I recall, among other things, that I thought it was an extremely well-tried case by both sides. The only hesitation that I have is I'm trying to decide what -- it's sort of a novel -- it's a novel position for a defendant to take, and I'm sitting here trying to think if there is any other way I should respond to it. So that's my hesitation.

MR. LANCE:

Judge, if I may.

THE COURT:

Yes, Mr. Lance.

MR. LANCE:

The reason I allowed my Defendant to raise that, even though I never raised it, he views it as an additional point that should have been in my motion for new trial. He's concerned that, if the Court was nodding off at various times, how could proper rulings have been made on evidentiary objections.

He views it as a concern that I should have put in the motion for new trial. That's why I allowed him to raise it.

Now it's just an additional point we would argue today for granting him a new trial. That's our only belief or only ruling that we're asking.

THE COURT:

Well, I hate to put you in this position, Mr. Lance, but are you suggesting that you witnessed the fact that I was nodding off or sleeping during the trial?

MR. LANCE:

I personally did not observe that, but I understand other people in the courtroom claim they did see this happen.

THE COURT:

Okay.

MR. FRY:

Do you want to hear evidence on it?

THE COURT:

Well, I'm going to be very candid with everyone. I'm very much aware of what happened in this trial. I basically find the allegations -- to be charitable, I find them frivolous. But at the same token it's a murder case, and I want to make sure that if someone wants to put forth the evidence, I'm trying to figure out exactly how we should deal with it on the record. I don't want this record in any way to suggest that I take any credence in those statements, because it is just simply not true.

MR. FRY:

I would make the suggestion, Your Honor, to go ahead and rule on it. It sounds like it would be inappropriate for you to make a ruling on any kind of accusation against yourself and that it's properly preserved for review by another court at this time.

THE COURT:

Well, I think what I'm going to do is, first of all, I'm going to consider the motion for judgment of acquittal, and for a new trial.

I'm going to consider it in two separate fashions. I'm going to consider first the motion filed by Mr. Lance in its entirety. Then I'm going to consider the motion filed by Mr. Case.

As relates to the motion filed by Mr. Lance, I have reviewed the motion, and I believe that the motion recites issues that were, in fact, raised at the trial and deals with evidentiary issues that were properly presented and ruled upon.

I think that the new trial motion does, in fact, renew those objections, and, in fact preserves those issues. The objections that are raised in the new trial motion, my rulings on them would be the same, and I believe that they were correct legal rulings at the time.

I also believe that, under the standard of Jackson vs. Virginia, in which, in order for me to submit a case to the jury, I am to do two things. I am to, one, give all due deference to the State as relates to the posture of the case; and then, with that standard I am to then ask the following question:

Could a reasonable juror under the circumstances find the Defendant guilty beyond a reasonable doubt. And I find that the State did, in fact, meet that burden and it was properly submitted.

So, for those reasons, I find that the motion filed by Mr. Lance, motion for judgment of acquittal notwithstanding the verdict of the jury or, in the alternative, for a new trial, I find that motion -- I do hereby overrule that motion.

As relates to Mr. Case's motion, I further make the following comments that those -- the issues that are suggested by Mr. Case I find not supported by evidence. I find that they are untimely made and not properly before the Court, and further, I find that they are without merit.

It seems to me that, if I were to allow a Defendant, independent of counsel, after the time of filing a new trial motion, to raise issues of judicial misconduct that I would open the floodgates to all kinds of problems, especially considering that postsentence Mr. Case, as would any Defendant, would have the opportunity to proceed in a postconviction motion, and he could litigate these issues and present evidence on those issues.

And further, for the benefit of Mr. Case, at this point in time, if such issue is raised in a postconviction motion, I would likely recuse myself on postconviction motion and make myself available to testify.

I just think that logistically, for me to treat it in any other way, would create a serious dilemma and a very bad precedent. Considering the fact that I consider the position absolutely and completely meritless,and I also find that it was raised at a point in time beyond the time for filing a new trial motion, and thus, I don't have jurisdiction to hear it, it is untimely filed, for all of those reasons, I'm going to deny Mr. Case's motion.

With that being said, we'll now proceed to the issue of sentencing. Here is how I intend to proceed.

If there is evidence -- testimonial evidence the State wishes to present, I will allow the State to present that evidence.

Once the State has concluded with any testimonial evidence, if there is testimonial evidence the Defendant wishes to present, I'll listen to that evidence.

I will, in that realm, couple of things to be noted. One, Mr. Case, as does every Defendant that appears in front of me, has a right to make a statement -- an uncross examined statement in Litigation, which I will allow him to make.

And secondarily, I have had the benefit of correspondence that has been submitted to me that I have reviewed and will make part of the record. But, if there is additional testimonial evidence the Defendant wishes to present, I'll allow that to be presented.

Then, thereafter, I will discuss with counsel any issues that may result from the presentence investigation, which I suspect not to be substantial. And then I will hear any argument from the State, any argument from the Defendant, and then I intend to impose sentence.

Q.

What is your relationship to the witness in this case?

A.

She is my sister.

Q.

Do you have remarks for the Court regarding the sentencing today?

A.

Yes, I have something prepared. I would just like to thank the Court for its invaluable service to the community and my family. The wait, no matter how difficult, proved to be worth it. Justice served in this way is better than any act of personal vengeance. We know the truth, no matter how difficult it is to accept, and punishment will be given to the murderer.

Anastasia can now rest in peace. We can stop mourning her loss, and instead remember all the wonderful times we had together without the grief of her crime unsolved.

That is all I have.

THE COURT:

All right. Is that all the questions you have, Mr. Fry?

MR. FRY:

No further questions.

THE COURT:

Mr. Lance, do you wish inquiry of this witness?

MR. LANCE:

No, Your Honor.

THE COURT:

Thank you very much, ma'am. Appreciate your testimony.

We have faith that you will be guided by higher powers to address the crime that has been committed and find justice as it is permitted in this world.

I am pleased that I do not have the power or the authority to make that decision, for that decision should be made in a calm and orderly fashion. My life has been anything but that these past years without my daughter.

I felt anger, I felt pain, and much frustration. I tried to address that in the venues provided, and they were wholly inadequate in addressing what I was feeling or what I thought should happen.

This Court was able to put into perspective by bringing the truth to light and I now feel that I can live with the decision of this Court. My friends, my family, have been pulled apart and reassembled so many different times and so many different ways, that it's difficult to express exactly what we are today.

We do know that the Defendant here today has set in motion many terrible things, many difficult things that will last for a lifetime to deal with.

Anastasia's life is no more. Our memories are intact. However, she will not be able to live beyond the 18 years which she was given.

Byron's life will most certainly be behind bars and in a very controlled situation. The victim's family, much of which were separated from our past memories, our present is in turmoil, and our futures are uncertain, but they will be better today because of the decision that this Court will be able to make based upon the evidence that was presented in this court.

There was much unsaid, much silence, much of the truth probably would never come out. Justin, another young man, lost his life. Witnesses that came forward, not knowing the entire truth. Witnesses that came forward knowing the truth and not telling it. And still others that never had a chance to speak. We'll all go our separate ways and deal with the decision of this Court.

But I can tell you, that I have faith in your decision, and your proclamation, and I will welcome that today.

Thank you.

THE COURT:

All right. Any inquiry you wish to make, Mr. Lance?

MR. LANCE:

No, Sir.

THE COURT:

All right. Thank you very much.

(The witness was excused.)

MR. FRY:

Those are all the testimonial witnesses the State has, Your Honor.

THE COURT:

No further evidence from the State, testimonial evidence?

MR. FRY:

No, Sir.

THE COURT:

It's come to my attention that someone may have a recording device on in the courtroom. Candidly, if they do, that's fine. I really don't care.

Obviously, I'm going to make available -- I'm going to order a transcript of these proceedings just so if there is any question about it in the future litigation. I think clearly what occurred in this courtroom is -- there is nothing that has occurred in this courtroom that's not been a matter of transcript Ms. Fox has taken down. So, if someone here wants to record what I have said or what goes on, that's fine with me in an audio kind of situation.

A.

Friend of the family.

Q.

How long have you known Byron?

A.

Since he was seven.

Q.

On behalf of Byron Case, do you wish to address the Court?

A.

Yes.

Q.

Go right ahead.

A.

Your Honor, my name is Mike Myers. I have known Byron Case since he was seven years old. He is very intelligent, passive, and completely nonviolent. He is always well-mannered, soft-spoken and well liked. During the four day trial, only one person had anything bad to say about him.

Byron has never been a threat to society, nor to his friends or family. I believe he is innocent, and I am very concerned for his safety in our prison system.

Also, I'm horrified that his life depends on the dramatic performance of the prosecutors and the testimony of a crack addict.

I beg the Court to overturn the jury's verdict against this wrongfully accused young man whom we all love. Thank you.

THE COURT:

All right. Anything further, Mr. Lance?

THE COURT:

Good afternoon.

THE WITNESS:

I wish we could stop meeting like this. However, this tragedy has been overwhelming on our mental balance. Life has been totally unfair, and we all, the WitbolsFeugens, the Brutons, are living proof of this.

So as we take the next unfamiliar steps, I have the moral courage to speak up on behalf of my only son.

He has been dealt a bad hand in this game of life on pure speculations and made a scapegoat. A lot of people had a strong emotional interest in seeing Byron convicted. He had no motive to falsify and has been telling the truth from the beginning.

One of our favorite quotes by Mary Brown, "The elegance of honesty needs no adormment." I implore you to please read the statements of supporters, if you haven't yet, for a positive look for a change before you decide his future.

I personally not give up our journey to justice until his good and all his foot soldiers will name is cleared.

Thank you for listening.

THE COURT:

All right. Thank you, ma'am. Just a moment, if I might.

Did you have any questions, Mr. Fry?

MR. FRY:

No, Your Honor.

THE COURT:

Thank you, ma'am. Appreciate your testimony.

(The witness was excused.)

MR. LANCE:

That's the only testimonial witnesses we have.

THE COURT:

All right. Mr. Fry, have you had an opportunity to review the presentence investigation in this cause?

MR. FRY:

I have, Your Honor.

THE COURT:

Keeping in mind, if there are matters in the document you wish to bring to my attention during the course of any statement you may make, you're certainly welcome to do so. But in a factual sense, do you believe the document in any fashion is inaccurate?

MR. FRY:

The State believes it's accurate. We know nothing that's inaccurate.

THE COURT:

Mr. Lance, have you had a chance to review the document with your client?

MR. LANCE:

Yes.

THE COURT:

Have you reviewed it yourself also?

MR. LANCE:

Yes.

THE COURT:

And, obviously, I'm aware of the fact from the pleadings and the statements that have been made, obviously, the version of the offenses as recited in the State's case, I understand that is in agreement. That's why we had the trial.

I understand to that extent. But other than that, in terms of background information and other information in the presentence investigation, do you wish to make any record regarding the factual accuracy of this document?

MR. LANCE:

No, Your Honor.

THE COURT:

All right. Mr. Fry, do you wish to be heard on the issue of sentencing?

MR. FRY:

I do, Your Honor.

THE COURT:

All right. You may proceed.

MR. FRY:

There really is only one sentence that's provided for murder in the first degree, the State, having not sought the death penalty, and that is life without parole. And I know that's just the plain fact.

You do have an armed criminal action charge that you have to address, and I think the armed criminal action charge can be used by the Court to express the gravity of this crime and the depth of the harm that was done and the jury to the family.

Quite frankly, I see or sense a tone that there is always some degree of mistrust in the criminal justice system, be it from the Defendant who wants to continue to claim that he's not guilty, but from the family of the victim who feels like sometimes it doesn't work and the truth doesn't come out and verdicts aren't right.

The distrust that I think could be remedied is to have you give a life sentence on armed criminal action. And in the event that somebody in the future somehow says, well, life without parole is now cruel and unusual, that you express some depth on this case by running these sentences consecutive so that, if there is ever any future consideration for mitigating the life without parole sentence, that the significance and consequences of the Defendant's actions that flow from this murder are reflected in your sentence and allowed to be reflected by any parole board consideration in the future.

My final report is I would remind the Court of the many, many letters of support that the Defendant's attorney provided to the Court. Basically, there were two packets of letters that were provided to the Court.

One basically in the form of a petition for everyone to sign the same form letter, but also numerous letters in the other packet, very personalized letters, asking for, basically, the letters as a whole are talking as a plea for innocence, actual innocence.But if a plea for innocence can be regarded as also a plea for leniency, we would ask you to consider those many numerous letters in that regard.

I believe that's all I had to say.

THE COURT:

Mr. Case, do you wish to address the Court before the imposition of sentence?

THE DEFENDANT:

No, Your Honor.

THE COURT:

All right. Is there any reason why sentence should not now be imposed?

MR. FRY:

Not from the State, Your Honor.

MR. LANCE:

No legal reason, Your Honor.

THE COURT:

All right. Give me a moment, if you would. I did grant allocution, did I not?

MR. FRY:

Yes, you did, Judge.

THE COURT:

Well, obviously, I had the opportunity to preside over the trial, which includes some pretrial matters where we discussed the evidence to some substantial extent.

In fact, as the record will reflect in the pretrial matters there was evidence that was sought to be excluded by both sides. And although some of the evidence I allowed, substantial amounts of the evidence the State wished to put on I excluded. I was aware of all those circumstances.

I then was the trial judge that heard the evidence in the case, not only in terms of the statements and arguments of counsel and lawyers, but I heard the witnesses, and I saw the demeanor of the witnesses.

I have had the opportunity to review the pre-sentence investigation, motion for judgment of acquittal; and I have had the opportunity to review the presentence investigation, obviously.

I've had the opportunity to review two separate sets of documents that have been provided to me by Mr. Case or by Mr. Lance on behalf of Mr. Case, one of which is a set of documents that I consider to be, as I think was described and I consider it to be the equivalent of a petition signed by many members and friends talking about Mr. Case and suggesting that I, if at all possible, consider leniency as best that I can.

I have reviewed the -- they are signed by a number of different people.

The substance of those letters are identical, but I have reviewed those.

There is also a series of letters by different individuals that have been presented to me by Mr. Case or by Mr. Lance on behalf of Mr. Case. And I have considered those letters also.

Those letters to a degree -- at least to some degree talk about the fact that -- the dismay with the verdict and the fact that Mr. Case is mild mannered, loving kind of person, saying good things about Mr. Case.

And I don't have any reason to question the veracity of those letters from the folks that said those things.The letters also contain a variety of comments regarding the trial itself.

And everyone, not only in a legal sense, but in a First Amendment sense, has a right to judge what occurred in this courtroom. it's a public courtroom and anyone who saw the trial or witnessed it or sees a transcript of it has every right to take any attitude they wish and to make any appraisal of the trial that they wish to make.

Included in this appraisal is criticism of Defendant's counsel and also criticism of the prosecutor. And although it has no bearing on this sentence that I intend to impose today, I will tell you that, in the short time that I have been on the bench, which will be in two months six years, I would suggest that this is, if not the best as good as any case that's been tried in front of me.

The lawyers were professional. They were to the point. They understood the law.

They were persuasive. They were excellent, excellent advocates. And whatever the result of this verdict if the verdict had been not guilty, I would be saying the same thing.

I think, in an objective sense, it's unfair to characterize the conduct of these lawyers on either side as anything but exemplary. In particular, in cases such as this where there is substantial emotion and much at stake, it's often easy to second-guess the side that loses.

And I will tell you, in my opinion, that Mr. Lance tried an excellent case for this young man and he did nothing but reaffirm my extremely high regard for him.

And so while those of you who wrote these letters have a First Amendment right to say what your appraisal of the trial, and I respect that, I ask that you respect my statement; that from a professional who has been involved in the criminal justice system now for over 20 years, this was an extremely well-tried case, and the performance of these lawyers was truly excellent.

We are uncertain of what Mr. Bruton's version of what happened that night is because he committed suicide shortly after the death of Anastasia WitbolsFeugen.

From the outset, Mr. Case and Ms. Moffett initially claimed no knowledge of the events that led to the death of this young lady, and the case remained unsolved for I believe over three years, if memory serves me correctly.

The evidence then changed when Ms. Moffett came forward and gave a detailed version of what she said happened in the cemetery that night, which included her version of the facts which was that Mr. Case shot Anastasia WitbolsFeugen to death.

Mr. Case testified in trial and denied those allegations and denied that that happened.

Ms. Moffett had made a variety of statements previously contrary to her testimony at trial. And she had readily admitted that from the time of this event, when she was approximately 15 years old, until now that she has certainly traveled a rough and tortuous road. She has admitted to drug abuse, being involved in a variety of rehab type programs, and being addicted to narcotics, being a runaway, and all those kinds of things.

It's an imperfect system, and my job is not to judge or prejudge the jury except in a legal context. I find that the jury's evidence is supported by the verdict, and the evidence presented by the State presents evidence of a very methodical and cold-blooded homicide and close to execution style.

For that reason, as to Count 1, as required by law, I hereby sentence the Defendant to life in the penitentiary without the possibility of probation or parole.

As to Count 2, 1 hereby sentence the Defendant to life in prison for the crime of armed criminal action.

I hereby order that those sentences shall run concurrently with each other.

Can I have an acknowledgment form, please. Mr. Lance, would you pass this to your client if you would.

MR. LANCE:

Yes, Your Honor.

THE COURT:

Mr. Case, this is what's called an acknowledgment form. It sets forth what are called your postconviction rights.

I'm going to allow you to keep this form so you can have it for your use. I'm going to explain to you what the form says. If you have some questions, you can ask me, or you can confer with Mr. Lance also.

Any Defendant that is sentenced to a term of imprisonment in the Missouri Division of Adult Institutions has what are called postconviction rights.

I feel obliged to advise you of those rights as dictated by the Missouri Supreme Court. I'm not necessarily suggesting you do or say anything. I'm merely telling you what your rights are.

You, as a convicted person going to prison, once you arrive at prison, you have 90 days to file a motion in order to set aside your judgment and conviction in this case.

Since you went to trial, that motion would be governed by what is called Rule 29.15 of the Missouri Supreme Court rules.

That rule provides that, within the first 90 days, you may file a pro se motion on what's called a Form 40. Once you file such a motion, a lawyer will be appointed to represent you, and that lawyer will have the ability to modify or amend that motion.

That lawyer will be required to do so within strict time limits as set forth by the rule itself.

Failure by you to follow the time constraints of the rule or failure for the lawyer to follow those time constraints will likely result in you giving up the ability to ever raise this issue in state court or in federal court.

I should correct myself. Since you were convicted, Mr. Case, by trial, actually the 90 days runs -- you're required to -- you have appellate rights first. And once the appeal has been -- if the appeal is, in fact, denied, and the appellate court issues what's called a mandate, the 90 days runs from what's called the mandate of the appellate court. I stand corrected.

Since you went to trial, it's different than if you had pled guilty. It's 90 days from the mandate of the appellate court.

You can raise basically one of four general grounds. You can suggest that the sentence that I gave you or allege is beyond the excess of that allowed by law.

You can further suggest that the sentence I gave you, that I did not have the jurisdiction to enter such a sentence.

And lastly, you can claim that your sentence was contrary to the law of the State of Missouri or of the United States. That can include constitutional claims touching, among other things, including allegations of ineffective assistance of counsel.

I'm sure Mr. Lance can advise you further of these rights. Do you have any questions you wish to ask me about your postconviction rights?

THE DEFENDANT:

No, Your Honor.

THE COURT:

I'm going to show that you've been duly advised. Do you need to deal with an issue of a lien, Mr. Lance?

MR. LANCE:

Yes, Your Honor.

THE COURT:

Do you want to present that?

MR. LANCE:

In every case I'm required to file for attorney fees.

THE COURT:

All right. Due to the posture of this case, I'm going to exercise my discretion and deny the lien.

MR. LANCE:

Yes, sir.

THE COURT:

Okay. Anything further?

MR. FRY:

Not from the State, Your Honor.

THE COURT:

Mr. Lance?

MR. LANCE:

Will there be an appeal bond in this matter?

THE COURT:

By statute, once he's been sentenced to murder in the first degree, I am without discretion to allow an appeal bond is the way I read the statute. I denied it on my own discretion pending appeal, but I believe the statute is quite clear, that I can pull the statute if you want me to, Mr. Lance.

MR. LANCE:

No. I just want it in the record if it's being set or denied.

THE COURT:

I will tell you this, that I would likely not set a bond if I had the discretion to do so, but I believe under the provisions of Chapter 544, it is clear that I do not have the discretion to set a bond in certain cases, and murder in the first degree is one of those cases. So there shall be no appeal bond.

MR. LANCE:

Judge, do you need the signed acknowledgment form?

THE COURT:

No, you can keep that. I have an acknowledgment form that shows he was advised in open Court.

MR. LANCE:

Final motion is file an appeal as a poor person.

THE COURT:

All right. That will be sustained.

MR. LANCE:

I can pick that up later.

THE COURT:

I'll enter it right now, and we'll send it to you. How is that?

MR. LANCE:

That's fine.

THE COURT:

Anything else?

MR. FRY:

Nothing from the State, Your Honor.

THE COURT:

It was a well-tried case, gentlemen. We'll be in recess.

(The case was concluded.)