MR. PANOSH: The Court's indulgence. (Time was allowed for Mr. Panosh.)

MR. PANOSH: Mr. Gary Reilly, please. Mr. (Gary Reilly was sworn.)

MR. PANOSH: Your Honor, we've had a short witness arrive. If we could take him before this witness, it would make things easier to --

THE COURT: You may step down, sir. (Gary Reilly left the witness stand.)

MR. PANOSH: Corporal Dziadaszek, please.

JAMES ALLEN DZIADASZEK, II, being first duly sworn, testified as follows during DIRECT EXAMINATION by MR. PANOSH:

870

Q    Would you state your name, sir.

A    James Allen Dziadaszek, II.

Q    And for the court reporter, would you mind spelling your last name.

A    D-z-i-a-d-a-s-z-e-k.

Q    And where are you presently working, sir?

A    I'm unemployed.

Q    Okay. What was your last source of employment?

A    United States Marine Corps.

Q    And when did you leave the U.S. Marine Corps?

A    I left the United States Marine Corps the 14th of this month.

Q    And you had served a four-year term; is that correct?

A    Three years.

Q    And in the three years that you were in the United States Marine Corps, what was your assignment?

A    My original assignment was 0311, rifleman. Then I moved to an 0151, administrative clerk. And then I was a 4615. That is a reproduction specialist. Then a 3621, which is a motor mechanic.

Q    But your basic training was as an infantryman; is that correct?

A    Yes.

Q    And were you last stationed at Camp Lejeune?

A    Yes.

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Q    In the course of your duties, there come a time when you met the defendant, Ronnie Kimble?

A    Yes, I have.

Q    And how did you know Ronnie Kimble?

A    He was my coworker at the base chaplain's office.

Q    And for what period of time were you coworkers with him at the base chaplain's office?

A    For -- I was stationed at the chaplain's office from about the 6th of December of '96 to April 22nd of '97.

Q    And during that period of time, did you consider yourself to be a friend of Ronnie Kimble's?

A    Yes, I did.

Q    And during that period of time, did it come to your attention that his sister-in-law had been murdered?

A    Yes.

Q    And in the course of that, did there come a time when-_- you and he had a discussion in reference to that murder?

A    Yes.

Q    And what, if anything, did he tell you?

A    He told me that she -- that she was murdered, and there was times that he didn't know why he -- why he was being questioned, and -- Maybe if you asked me direct questions, mabye I could answer. But I --

Q    All right.

A    -- don't really know something off --

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Q    Now, in the course of your friendship with him, you came to Greensboro from time to time?

A    Yes.

Q    Was that before or after the murder?

A    That was after.

Q    And in the course of coming to Greensboro, you got to be friends with both he and his wife; is that correct?

A    Yes.

Q    And in fact, did there come a time when you met a young lady from Greensboro?

A    Yes.

Q    And you still have an acquaintanceship with her; is --

A    Yes.

Q    -- that correct? Now, drawing your attention to October the 9th of 1995 itself, you were not visiting in Greensboro during that time frame; is that correct?

A    No.

Q    Did there come a time after the death of Patricia Kimble when Ronnie Kimble told you about his activities on the day of October the 9th of 1995?

A    Yes.

Q    What did he tell you?

A    He said that he was -- he was doing construction job for his brother. When he was done, he dropped off a vehicle at Ted's business, and he picked up his vehicle. And he had

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many questions -- that there was -- Excuse me.

Q    Let's go back to the first time he told you about this.

A    Yes.

Q    Prior to the time that you were interviewed by the Naval Intelligence officers and the members of the State Bureau of Investigation, what did he tell you about the events of his day on October the 9th?

A    Okay. First time I talked to them, I asked -- I told them that Ronnie dropped off his vehicle at his brother's house.

Q    And what time?

A    Around 1600.

Q    And what time is that, in civilian time, please?

A    Civilian time, that's 4:00 in the afternoon.

Q    And when you were first interviewed, do you remember if that was March the 4th of 1997?

A    Yes.

Q    And thereafter, did you have an occasion to speak to Ronnie Kimble?

A    Yes.

Q And did you tell him that you had related to the Naval Intelligence investigator that you told them Ronnie dropped his brother's truck off at Ted's house at 4:00 p.m.?

A    Yes.

Q    And what did Ronnie say to you at that time?

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A    At that time, Ronnie was -- said, "What are you trying to do? Are you trying to get me convicted" or "the chamber," or something of that sort, "for I didn't drop it off at the house, I dropped it off at his business."

Q    Now, you were interviewed then on March -- the following day, March the 5th; is that correct?

A    Yes.

Q    And on March the 5th of 1997, did you relate to officers of the Naval Criminal Investigation Service and the State Bureau of Investigation that Ronnie had -- what Ronnie had told you on March the 4th?

A    Yes.

Q    And what did you tell them?

A    I told them that -- the NCIS agents asked me how -- what happened, and I told them that I told Ronnie that -- I told Ronnie that I told the NCIS agents that he put the vehicle in­-- that he dropped the vehicle off at his brother's house.

And then when I told them that, Ronnie said his statement, and then he said, "No. I dropped it off at the business." And that's just what I told the NCIS agents.

Q    When Ronnie said, "No. I dropped it off at his business," what was he saying? What did he drop off?

A    The truck, and he picked up his Camaro.

Q    And if you know, when he said, "No. I dropped the truck off at his business," what business was he referring

875

to?

A    Lyles -- the Lyles construction resale place, whatever it's called.

Q    So after you explained to Ronnie what you had told the investigative services, he changed what he had told you and said that he had dropped the truck off at Lyles; is that correct?

A    Yes.

Q    As a result of that, were you interviewed again on March 19th of 1997?

A    Yes.

Q    And did you then speak to Special Agent Munroe from the Naval Intelligence Service and give him a statement in reference to what you've related?

A    Yes.

Q    And subsequently to that, did you have an occasion to talk to Special Agents Childrey of the State Bureau of Investigation and Sibert and relate the same information?

A    Yes.

Q    Now, how long have you been in Greensboro, sir?

A    For this weekend? I really don't understand the question.

Q    When did you arrive in Greensboro for this trial?

A    I arrived in Greensboro on Saturday.

Q    Okay. And where have you been staying during that

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period of time?

A    With the Wilsons.

Q    And who are the Wilsons?

A    Homer Wilson, Peggy Wilson and their daughter, Sherry Wilson.

Q    And what is Ms. Wilson's relationship to the Kimbles?

A    Friends of the family.

Q    And during the period of time that you've been here waiting to testify, have you come into contact with anyone else?

A    Mr. Hatfield, the defense -- the defendant's lawyer, and the defendant's parents.

Q    Now, drawing your attention to that occasion on March the 4th of 1997, when you told Ronnie what you had told the investigators, is that the first time that he said to you that he had taken the truck to his brother's business at approximately 4:00 p.m.?

A    I believe so.

Q    Prior to that, when you discussed this situation, what did he tell you of his activities around 4:00 p.m. on October the 9th?

A    That he dropped the vehicle off at the house and picked up his car, and that was it.

Q    And that was at what time?

A    At 4:00 p.m.

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MR. PANOSH: No further questions. Thank you, sir.

CROSS-EXAMINATION by MR. HATFIELD:

Q    Mr. Dziadaszek, do you still consider yourself to be a friend of Ronnie Kimble's?

A    Yes.

Q    And do you consider yourself to be a very good friend of Sherry Wilson's?

A    Yes.

Q    And is it your observation and understanding that Sherry Wilson and her family are very good friends of Ronnie Kimble and the Stumps?

A    Yes.

Q    This is one of the hardest things you've ever had to do, isn't it?

A    Close to it.

Q    Now, the reason that you left the Marine Corps after three years is because you sustained a serious injury that hasn't quite healed; is that right?

A    Yes.

Q    And is that what you told me about the last time we talked?

A    Yes.

Q    And was that a broken ankle, that the Marine Corps was just not satisfied with the healing of it?

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A    Yes.

Q    What is your long-term intention with regard to the military?

A    I'm going to go to school, and hopefully in about five years, I can go to officer candidate school for either the Air Force or the Coast Guard.

Q    So you're going to get a college education and go right back in the military; is that right?

A    Try to, at least.

Q    And if you can't get in the Marine Corps, you're going to go in some other branch?

A    Yes.

Q    Now, have you at any time ever made any notes about anything Ronnie Kimble said to you?

A    No.

Q    When you knew Ronnie, did you understand that his family, the members of his family, were being investigated for the death of Patricia?

A    Yes.

Q    Did Ronnie at any time in any way suggest to you that he had any involvement in that?

A    No.

Q    Did he at any time suggest to you that he did not have any involvement in it?

A    No.

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Q    He just didn't comment on it; is that right?

A    Right.

Q    Now, what happened on March 4, 1997 down at Camp Lejeune, as far as Ronnie Kimble was concerned?

A    I was interviewed by Naval Criminal Investigation Service.

Q    And every other person that knew him was interviewed that day, too, weren't they?

A    Yes.

Q    Dozens of people were called out, weren't they?

A    Yes.

Q    And it was general knowledge in that chaplain's office, wasn't it?

A    Yes.

MR. PANOSH: We'd object.

Q    You knew it and --

THE COURT: Sustained.

Q    You knew it and Ronnie Kimble knew it, didn't you?

A    Yes.

Q    Now, did you go to Ronnie and tell him that the Marine investigators and the other investigators from Guilford County were calling out all of his friends?

A    Yes. Which he already knew.

Q    And he already knew that. Now, did he actually ask you what you told the investigators?

880

A    No.

Q    Did you volunteer to him what you told the investigators?

A    Yes.

Q    And tell us again, what is it that you told Ronnie that you had told the investigators?

A    I told Ronnie that evening, we were by the chow hall, and we were inside his truck, and I told him that I was interviewed by NCIS and then we went -- did an interview. I told them that he went to -- when he dropped off the vehicle, he dropped the vehicle off at Ted's house. And when I said that, Ronnie said no, it was at Ted's business, that's when he dropped it off.

Q    All right. Now, what he was saying to you is that –­

MR. PANOSH: We object, please.

THE COURT: Sustained.

Q    Isn't it a fact --

THE COURT: Sustained as to form.

Q    -- that he explained to you what he meant when he said "Ted's"?

A    Yes.

Q    What does he mean when he says "Ted's"?

MR. PANOSH: Object, please.

THE COURT: Sustained.

MR. HATFIELD: He's just testified to it, Your

881

Honor.

THE COURT: Sustained.

Q    Did he explain to you what he means by "Ted's"?

A    No, he didn't. Not at the time he didn't.

Q    Do you now understand what he means by "Ted's"?

A    Yes.

MR. PANOSH: Objection, please.

Q    What does Ronnie --

THE COURT: Well, overruled.

Q    What does Ronnie Kimble mean --

MR. PANOSH: We object, please.

THE COURT: Well, sustained as to form.

Q    What is your understanding --

MR. PANOSH: Objection. Calls for hearsay.

THE COURT: Overruled.

MR. HATFIELD: Are we just going to have --

THE COURT: Overruled.

MR. HATFIELD: -- incessant interruptions?

THE COURT: Overruled.

MR. HATFIELD: It's his witness.

THE COURT: Overruled. You may ask the question.

Q    What is meant by Ronnie when he refers to "Ted's"?

THE COURT: No. Sustained as to that. That's not the question.

Q    Do you understand what Ronnie means --

882

THE COURT: Sustained.

Q    --to--

THE COURT: You may ask him what his understanding is, not what Ronnie's understanding is.

Q    What is your understanding of what Ronnie means when he says "Ted's"?

A    The business.

Q    Now, who owned the house that Patricia Kimble died in?

A    I do not know.

Q    Do you know whether Ted had any ownership interest in that house?

A    No, I didn't.

Q    What is your understanding that Ronnie Kimble and his -- other members of his family mean when they say "Ted's and Patricia's"?

MR. PANOSH: Objection, please.

THE COURT: Sustained.

Q    When Ronnie spoke to you on the evening of March 4th, did -- and he told you "What are you trying to do, get me convicted?" did he say -- what was his demeanor when he said that?

A    I don't understand the question.

Q    Well, how did he look? Was he happy or joking?

A    Not really.

Q    Was he alarmed?

883

A    I'd say alarmed.

Q    Didn't he say it in a joking way?

MR. PANOSH: Objection.

THE COURT: Sustained.

Q    Can you characterize how he said it?

A    The best way to describe, I believe, would be more of a shock. It was just something that he didn't expect to hear. And when he said it, it just came out, without even thinking it.

Q    Now, do you know of your own knowledge where Ronnie Kimble was at 4:00 p.m. on October 9, 1995?

A    Not for sure I don't.

Q    Now, do you know whether or not and at what time this truck that -- Withdraw that question. Was it your understanding from things Ronnie told you that he was using his brother's truck that day?

A    Yes.

Q    Based on what Ronnie told you, what was he doing with the truck?

A    If I recall correctly, I believe he was picking up building materials or something to do with a construction job that day.

Q    Do you know what kind of building materials they were?

A    No, I don't.

Q    Because you'd never seen them, have you?

884

A    No.

Q    Now, do you know when Ronnie Kimble picked up the building materials?

A    No, I don't.

Q    Do you know what he did with the building materials?

A    No, I don't.

Q    Was his purpose to use those building materials at his mobile home?

A    I don't know.

MR. PANOSH: Objection. He said he didn't know.

THE COURT: Sustained.

Q    You don't know? So you have no idea where those building materials were gotten from or where they were delivered to?

A    Correct.

Q    And you also don't know what time they were delivered, do you?

A    No, I don't.

Q    Now, do you know where Patricia Kimble was at 1:45 p.m. on October 9, 1995?

A    No, I don't.

Q    Do you know whether Ronnie Kimble had already gotten rid of the truck and gotten back his own vehicle by 1:45 p.m. on --

A    No, I don't.

885

Q    -- October 9, 1995?

A    No, I don't.

Q    Now, after you talked to Ronnie on March 4th, after you talked with the investigators and then proceeded to talk to Ronnie later on, on March 4th, the investigators came back and talked to you on March 5th, didn't they?

A    Yes, they did.

Q    And did you tell them that you did not tell Ronnie that various of his coworkers were being interviewed by law enforcement?

A    I don't understand the question.

Q    Did you deny to the investigators that you had contacted Ronnie Kimble on March 4th, to advise him that Kimble's coworkers were interviewed by NIS?

A    No, I didn't.

Q    You did not deny that to them? Or which is it, did you deny it to them or did you -- what is it that you told them, when they saw you on March 5th? Did you tell them that you had told Ronnie that the investigators were interviewing all

A    Yes --

Q    -- his friends?

A    -- I told them that.

Q    You did tell them that? Did you tell the investigators on March 5th that Ronnie did not ask you about being

886

interviewed?

A    Yes, sir, I told them that.

Q    You did?

A    That --

Q    Was that a true statement when you made it?

A    Yes, that Ronnie didn't ask.

Q    Did not ask you about being interviewed?

A    Right.

Q    So, even though you indicated to Ronnie that you had told the investigators something about his activities that he didn't agree with --

A    Right.

Q    he didn't ask you anything else about the interview; is that right?

A    Right.

Q    But you told the investigators that you felt obligated to tell Ronnie what was going on behind his back; is that right?

A    Right.

Q    Now, the fact is, when you think about it now, and without looking at reports written by investigators on March 4th or March 5th or March 19th, you're really not sure what Ronnie told you, are you?

A    Correct.

Q    I'm correct that you're not sure, when you try to use

887

your own memory right now, what he told you? Aren't I correct?

A    Yes.

Q    Now, the investigators have talked to you quite a bit about this in the last few days, haven't they?

A    Yes.

Q    And they have asked you whether you've met with me, haven't they?

A    Yes.

Q    And they've asked you every word that I said, haven't they?

A    Yes.

Q    And they've tried to get you to say what my position is on Ronnie Kimble's case, haven't they?

MR. PANOSH: Object, please.

MR. HATFIELD: Well, it's simply true, Your Honor. 

THE COURT: Sustained.

MR. HATFIELD: It's just a question.

THE COURT: Rephrase it.

Q    What have they asked you about my activities in this case?

A    They asked if -- who I've -- who I contacted with, and I told them that I was -- that I contacted with you. They asked what you said, and I said I really don't remember much of the conversation.

888

Q    Most of it was just small talk, wasn't it?

A    Yes. Just what I'm going to do when I get out of the service and what are my plans on basically for the future.

Q    We talked very little about Ronnie Kimble's case, didn't we?

A    Yes, we did.

Q    Now, did you come in my office and sit in my den, with -- on the couches and chairs --

A    Yes.

Q    -- and talk to me for a little while? Did I at any time tell you what to say?

A    No.

Q    Has anybody for the prosecution's office told you what to say?

A    No.

Q    But they have reminded you repeatedly of your prior statements, haven't they?

A    Yes.

Q    Now, would it be fair to say that you felt pressured by them?

Not really.

Q    Now, Mr. Dziadaszek, did there come a time just a few days ago that you received notification from the State of North Carolina that you were under subpoena?

A    That was about a month and a half ago, I believe,

889

roughly.

Q    All right. And in connection with your subpoena, have you been contacted by a certain Mr. Siwinski in the District Attorney's Office?

A    Yes.

Q    Did Mr. Siwinski call you with reference to your subpoena and offer to --

MR. PANOSH: Object, please.

Q    Tell the members of the jury what Mr. Siwinski said to you when he called you.

MR. PANOSH: Object, please.

THE COURT: Overruled.

A    I really don't remember much that he told me. Just basically read off my statements, the ones I made, and told me -- told me to contact him when I come in Greensboro.

Q    So Mr. Siwinski called you up and read you all your statements?

A    Correct.

Q    Did he promise to do anything with those statements?

A    No.

Q    Did he say he was going to send them to you?

A    He said he was going to send them to me.

Q    Did he ever send them to you?

A    I haven't received them.

Q    Did you give him an accurate address?

890

A    Yes, I did.

Q    Has your address been a problem in any of your other people that correspond with you?

A    No, they haven't.

Q    So did Mr. Siwinski tell you he would send you those written statements?

A    Correct.

Q    And he never did, did he?

A    Correct.

Q    Now, did he also tell you that he tried to telephone you?

A    Yes.

Q    Do you have any --

MR. PANOSH: We object. Relevance.

Q    Of your own knowledge, has Mr. Siwin--

THE COURT: Sustained.

Q    Did you receive telephone calls, other than the one you're talking about from Mr. Siwinski?

A    Not from my personal phone.

Q    Now, when Mr. Siwinski read you --

MR. PANOSH: We object, please.

THE COURT: Overruled.

Q    When Mr. Siwinski read your statement of March 19, 1997, did he come to a paragraph that you notified him had no bearing on this case?

891

MR. PANOSH: Object, please.

THE COURT: Well, sustained.

Let me see the statement. Let me see the statement, Mr. Hatfield.

(Mr. Hatfield handed a document to the Court and indicated. Time was allowed for the Court.)

(The Court handed the document to Mr. Hatfield.)

THE COURT: Do you wish to question him, sir?

MR. HATFIELD: I'd like to show it to him and let him see if it refreshes his recollection.

MR. PANOSH: Your Honor, we don't object to the entire statements going in. We object to them coming in piecemeal.

Q    Would you like to read this, please, to yourself. (Mr. Hatfield handed a document to the witness. Time was allowed for the witness.)

A    Yeah.

(The witness handed the document to Mr. Hatfield.)

Q    Do you remember that statement?

A    Yes, I do.

Q    Now that you remember it, what do you remember about it?

A    That --

MR. PANOSH: We object.

THE COURT: Sustained as to that particular

892

question.

Q    Did Mr. Siwinski read you that paragraph?

MR. PANOSH: Object, please.

THE COURT: Sustained.

A    Not that I recall.

THE COURT: Don't answer.

THE WITNESS: Oh.

MR. HATFIELD: Like to be heard outside the presence of the jury.

THE COURT: Well, unless you're going to put the entire statement in, I'm not going to let you piecemeal it. Objection sustained.

MR. HATFIELD: I'm not piecemealing it.

THE COURT: Well --

MR. HATFIELD: I'd like to have a voir dire on this point.

THE COURT: There's no voir dire on this point. It's irrelevant.

Next question.

Q    Did you -- have you ever seen that statement before?

A    No, I haven't, not until I seen it here. And I haven't heard that statement read -- they read it off to me.

Q    Did I show you -- have you seen this statement that I showed you just now this morning in this courthouse, in the preparation of your testimony?

893

A    No, I haven't.

Q    At any time since you were subpoenaed, has anyone in the District Attorney's Office actually shown you your purported statement of March 21, 1997?

A    No.

Q    Is it your testimony that your only familiarity with this statement is Mr. Siwinski reading it to you over the telephone?

A    Correct.

Q    Based on your examination of this statement at the bench, is this the statement Mr. Siwinski read you over the telephone?

MR. PANOSH: We object, please.

THE COURT: Overruled.

A    No, it's not.

Q    Sir?

A    No, it's not.

Q    This is not the statement that Mr. Siwinski read you over the telephone?

A    No.

Q    Did you at some point in time tell investigators that you had been to Ronnie Kimble's residence on March 15, 1997?

MR. PANOSH: We object, please.

THE COURT: Overruled.

Q    Did you tell them that?

894

A    I really don't --

Q    Sir?

A    -- remember offhand.

Q    I beg your pardon?

A    Don't remember offhand if I did or didn't.

Q    Did you go and see Sherry Wilson on March 15, 1997?

A    If I was down here, I certainly did.

Q    Sir?

A    If I was down here, I did.

Q    Did you tell the investigators that you had some conversation with --

MR. PANOSH: We object, please.

THE COURT: Well, what statement is it, Mr. Hatfield? Have you got it marked? Is it marked? Is it an exhibit number?

MR. HATFIELD: Yes. This is the statement of March 21, 19--

THE COURT: Well, is it marked with an exhibit number?

MR. HATFIELD: No.

THE COURT: Mark it.

(Mr. Hatfield complied.)

MR. HATFIELD: If I could confer with counsel momentarily.

THE COURT: All right, sir. What's the number you

895

placed on it?

MR. HATFIELD: Exhibit 1.

(Mr. Hatfield and Mr. Lloyd conferred.)

MR. HATFIELD: I'm ready to proceed, Your Honor. THE COURT: All right, sir.

Q    Mr. Dziadaszek, I showed you a minute ago what's now been marked for identification as Defendant's Exhibit 1. Did you see it?

A    Yes.

Q    And is this the first time you have ever laid eyes on this statement?

A    No, it's not.

Q    When did you previously see it?

A    When I was in your office last weekend.

Q    So you saw it in my office?

A    Yes.

Q    Will you tell the ladies and gentlemen of the jury the circumstances in which you saw this last week in my office. MR. PANOSH: Object, please.

THE COURT: Overruled.

A    That you -- we were talking, and you pulled out the statement. You read it off -- you started reading it off to me. And then when you got to the --

MR. PANOSH: We object. This calls for hearsay of counsel. It's inappropriate.

896

MR. HATFIELD: It's not about what I said. It's about the statement.

THE WITNESS: He read it off to me.

THE COURT: Wait a minute, sir.

Let me see both of the attorneys at the bench -­all three attorneys.

(The following proceedings were had by the Court and all three counsel at the bench, out of the hearing of the jury.) (Mr. Hatfield handed an exhibit to the Court, and Mr. Panosh handed an exhibit to the Court. Time was allowed for the Court.)

THE COURT: Are these the same statements, State's 107 and Defendant's 1?

MR. PANOSH: Yes, sir.

THE COURT: All right. What's the problem?

MR. PANOSH: Your Honor, we have two problems. Number 1, Mr. Hatfield's trying to elicit hearsay statements of himself.

MR. HATFIELD: I'm not.

MR. PANOSH: Number 2, we feel that the statements -- each of the statements is admissible to corroborate or to impeach the witness for whichever reasons, and we don't object to any one of the three or all three of them being admitted, as long as they're admitted in whole, not piecemeal. And we certainly don't think it's appropriate

897

for Mr. Hatfield to be able to elicit what his statements or what his interpretation of the exhibit was to this witness in his office.

MR. HATFIELD: I can assure the Court that I have no intention of offering through this witness any statement that I made concerning this statement. That was not my purpose. The witness was trying to tell the circumstances of reading this. And I would like --

THE COURT: You can't have it both ways. There's damaging stuff in this first part here, about the gasoline receipt. And then you come over here and try to skip that paragraph.

MR. HATFIELD: I'm not trying to slip it in. The witness told me that he never said those things in that paragraph. Never, ever --

THE COURT: This paragraph --

MR. HATFIELD: -- at any time in life did he say those things, and yet, they're in his statement, which he did not write. That's all I want to prove, is that he didn't say those things. And I don't see why I have to be interrupted constantly and come up here to the bench --

THE COURT: Wait a minute.

MR. HATFIELD: -- and explain my tactics in cross-examination. This is just totally to the advantage of the other side.

898

THE COURT: Well, you're trying to prove a portion of the statement.

MR. HATFIELD: No. I'm trying to show that he never said that and that he was astonished when he heard it. But now I've totally given away my position.

THE COURT: Well, the statement itself, is a lot of damaging stuff in there. I can understand why you want to keep it out, but --

MR. HATFIELD: I don't --

THE COURT: -- I don't think you're able to put in portions of it, without putting the whole statement in.

MR. HATFIELD: The defendant has no burden of proof. The defendant has no burden of production. This is the State's case. I'm just trying to cross-examine their witness.

MR. PANOSH: Your Honor, our position is, Rule 106 specifically says if they get in part of it, we're going to move to admit the entire thing.

MR. HATFIELD: I'm not getting it in, I'm getting it out.

MR. LLOYD: Judge, let me clarify something. We're not trying to introduce this as an exhibit to go back for the jury, which is what Mr. Panosh seems to think. We're entitled to cross-examination -- to cross-examine him on portions of the statement. "Isn't it a fact, Mr.

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Witness, that you told the investigators such and such?" Now, as I said earlier, Mr. Panosh is entitled, if he needs to refresh the witness's recollection, and the witness says he doesn't remember, he can show him the statement and refresh his recollection and get it out of him that way.

But the wholesale introduction of the statements is entirely wrong. There is no hearsay statement -- hearsay exception that would cover that. And that would be entirely improper. If we were trying to get in the statement into evidence, yes, Mr. Panosh is right, then he would be allowed to get in the whole statement. If we just wanted to excerpt part of it. But that's not what we're -- we're doing this for purposes of impeachment. And if the -- Judge, if you want to--

THE COURT: How far do you want to go with it? What are you going to ask him?

MR. HATFIELD: Well, with all due respect, why do I have to describe my cross-examination, just because this guy enters objections?

THE COURT: We're at the bench, and I want to know, before I let it in -- rule it in or out.

MR. HATFIELD: Your Honor, it is this. There were two typewritten versions of that statement given in pretrial discovery. I gave one to Mr. Dziadaszek and I kept the other, in an effort to determine if we were looking at the

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same document. I said, "I will read this to you. You track along and read the one that you have in your hand, and we'll see if they're the same." When we got to that paragraph, he said, "I never said that. That must be from somebody else's report." This is what I want to show by this line of cross-examination. And I do not -- I am not offering that

statement into evidence in whole. I want to show the investigative techniques of where -- that we're dealing with and the attempt to put words in his mouth.

THE COURT: You may ask him those type of questions.

MR. HATFIELD: Well, I need to show -- I -- every time I open my mouth in this courtroom --

THE COURT: Well, there's --

MR. HATFIELD: -- there's an objection from the other side.

THE COURT: Don't get -- Jack, pace yourself. Don't get all bent out of shape here on Monday morning. What questions do you want to ask him?

MR. HATFIELD: Just what I told you. I said I want to demonstrate that he is -- that in reviewing that statement a week or so ago in my office, he notified me that the particular paragraph in question was never in any statement that he had ever given previously. That's what he told me.

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(Time was allowed for the Court.)

MR. PANOSH: Your Honor, most of that paragraph that he's referring to calls for alleged hearsay statements of an attorney, not saying who it was, who advised someone, apparently this witness, that he didn't have to answer questions. It's just --

MR. HATFIELD: We are not doing this --

MR. PANOSH: It's all --

MR. HATFIELD: -- to prove the contents of the statement. We are doing this to prove that he never said those things. This is his statement and he never said them. I don't care what they are. He never said them.

MR. PANOSH: Well, the only way he's going to do that is by commenting on the truth or falsity of the statements of this attorney.

MR. HATFIELD: Then why don't we just fold our tent. Why should we cross-examine anybody?

MR. LLOYD: What Jack's saying is, it doesn't -­we're not trying to prove the truth of the matter asserted, that the attorney ever said that or didn't say that. We're saying that the witness never said it to investigators, investigators made it up whole cart and put in the statement. Either that or they got confused.

THE COURT: You may ask him if there's a portion of the statement that he did not make to the officers, and

902

he may answer that.

MR. HATFIELD: Thank you.

THE COURT: That's about as far as I'm going to let you go with it.

(Proceedings continued in open court.)

THE COURT: You may continue.

(The Court handed an exhibit to Mr. Hatfield and an exhibit to Mr. Panosh.)

MR. HATFIELD: I'm approaching the witness with -­

THE COURT: All right.

MR. HATFIELD: -- Exhibit 1 defense.

Q    Ask you to read every single word on this piece of paper to yourself.

(Time was allowed for the witness.)

Q    Have you read the statement?

A    Yes, I have.

Q Are you satisfied that you've had an opportunity to look at all of the printed material on both pages of the exhibit?

A    Yes.

Q    Have you ever seen that printed material before?

A    Yes, I have.

Q    When did you see it before?

A    A couple minutes ago, when you gave it to me prior, and then in your office, about two or three weeks ago.

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Q    At whose office?

A    Your office.

Q    At my office?

A    Yes.

Q    So that statement was never given to you by the people who prepared it?

A    No.

Q    First time you ever saw it was when I showed it to you?

A    Yes.

Q    Now, when I showed it to you, did you, as you have just done in this courtroom, read every word?

A    Yes.

Q    What did you tell me after you read every word? MR. PANOSH: Object.

THE COURT: Overruled.

A    That there was a paragraph that I do not recall saying.

Q    And which paragraph is that?

A    Am I supposed to read it or --

Q    Can you just tell the jury basically the contents of it?

A    That I was at Kimble's residence this past weekend, 15 March, '97. I was with my girlfriend, Sherry. And that --

MR. PANOSH: We object to the hearsay portion, Your Honor.

THE COURT: Overruled.

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A    And that Kimble's father brought him and his wife to visit a lawyer regarding this case. And then the attorney advised that no one involved in the investigation had to answer questions that were irrelevant to the case. I was able -- I was unable to explain what that meant, but anyone questioned by investigators. I reported this to have an effect on his decision -- I reported that this did not affect my decision to talk with investigators and was willing to cooperate with the law-enforcement officials.

Q    All right. Now, so you realized when you were sitting in my office and read this statement for the first time, that that paragraph was something that you had not said; is that right?

A    Right.

Q    Now, did you tell me then that this same document had been read to you by Mr. Siwinski --

MR. PANOSH: Object, please.

Q    -- earlier?

THE COURT: Overruled.

A    I -- it was -- contents were basically the same, but when Mr. Siwinski read me the document, I was on the phone for about five minutes listening to the document, and that paragraph did not sound familiar, what he read to me prior.

Q    So when you -- so you had heard the paragraph a few days before you talked to me, when Mr. Siwinski talked to

905

you by phone; is that right?

A    I heard the -- I heard all the statements, but that paragraph did not sound familiar.

Q    Did you tell Mr. Siwinski that there was a paragraph in what he was reading you that didn't sound familiar?

A    He didn't -- I didn't -- I don't recall being told that paragraph.

Q    At any time since you received your subpoena, have you told any of these people on behalf of the prosecution that there was a paragraph in your alleged statement that was not yours?

A    I didn't become -- I did not become aware of the statement until I was in your office --

Q    And that --

A    -- because I didn't see any of the -- because I didn't see any of the statements I made.

Q    So at no time before you went to my office did you ever have a chance to review any of this?

A    Right.

Q    And even though Mr. Siwinski told you he was going to mail it to you, you never got it; is that right?

A    That's correct.

Q    Now, when you were in here this morning talking to investigators, did you tell them that there was a statement in there that you had never said?

906

A    No, I didn't.

Q    Now, did the investigators talk to you about perjury?

A    Yes.

Q    What did they say to you? Who spoke --

MR. PANOSH: Object.

Q    -- to you about perjury?

THE COURT: Overruled.

MR. PANOSH: Object, please.

THE COURT: Overruled.

Q    Who spoke to you about perjury, sir?

A    I don't remember who told me this morning, but --

Q    Was it Mr. Panosh?

A    I believe all of them said it at one time or another just real briefly.

Q    They were all talking to you about perjury; is that right?

A    At one time or another, they did.

Q    At one time or another on this day, in this building, representatives of the DA's Office talked to you about perjury; is that right?

A    That's right.

Q    Now, do you have any intention of committing perjury?

MR. PANOSH: Object.

THE COURT: Sustained.

Q    Sir, you understand your responsibility, don't you?

907

MR. PANOSH: Object. THE COURT: Sustained.

Q    You understand your duty to testify truthfully, don't you?

MR. PANOSH: Objection, please.

THE COURT: Overruled.

A    Yes.

Q    So what precisely was said to you about perjury?

MR. PANOSH: Objection.

THE COURT: Sustained. Been over it.

Q    You met Ronnie Kimble in December of what year?

A    Of '96.

Q    Now, do you know that that was more than a year after Patricia Kimble had died in October of 1995?

A    Yes.

Q    And the first time you ever met Ronnie Kimble was in December of 1996; is that right?

A    Yes.

Q    And you continued to know Ronnie Kimble until early April of 1997; is that right?

A    Correct.

Q    And then, he was arrested, and you and he went your separate ways; is that correct?

A    Correct.

Q    So you knew him, including the three months of January,

908

February and March and December, a total of a little less than four months; is that right?

A    Yes.

Q    Now, would it be fair to say that you and he became very good friends?

A    Yes.

Q    Did he do anything for you of a unique nature during that period?

MR. PANOSH: Object, please.

THE COURT: Overruled.

Q    Did he?

A    Yes.

MR. PANOSH: I'd like to be heard.

Q    What did he --

THE COURT: Well --

Q    -- do for you?

THE COURT: -- approach the bench.

MR. HATFIELD: One objection after another.

THE COURT: Wait a minute.

(The following proceedings were had by the Court and all three counsel at the bench, out of the hearing of the jury.)

THE COURT: I don't know what he's going to say. I don't want to move the jury in and out of the courtroom. What's he going to say?

What's the objection?

909

MR. PANOSH: Your Honor, the objection is, this is going for a specific instance to prove good character.

MR. HATFIELD: No, it isn't.

MR. PANOSH: And I believe what they're –­

THE COURT: What's your question?

MR. HATFIELD: "What did he do for you?"

THE COURT: Well, what did he do? What's he alleged to do?

MR. HATFIELD: He got him to accept Jesus as his personal savior and quit drinking. It doesn't have anything to do with Ronnie's character. It has to do with his character.

MR. PANOSH: Your Honor, the rules specifically state you can't go into specific instance to prove good character.

MR. HATFIELD: Huh-uh.

MR. PANOSH: And the only thing it could possibly be is to prove --

THE COURT: Well, I'm not going to let you get that in, if that's all he's going to say. I thought he was

MR. HATFIELD: Your Honor, this is cross-examination. This is not --

THE COURT: Well, I'm not letting it in.

MR. HATFIELD: You have allowed every kind of

910

impression --

THE COURT: Well, I'm not letting that in. You can argue all you want to. I'm not going to let that in, because that's not what I thought you were going to say. I thought it was some deed he'd done for him.

MR. HATFIELD: It was. It was. He helped him the way most people never get a chance to help anybody.

THE COURT: Your client's a minister's son. was thinking about going to the seminary.

MR. HATFIELD: He helped him quit drinking. He helped him quit drinking.

THE COURT: You may get that in.

MR. HATFIELD: Thank you.

MR. PANOSH: Your Honor, that would be a specific instance to prove good character. And there's a motion in limine as to character in this case. And if they're allowed to put in specific instances of good character like that --

THE COURT: You all opened the door.

MR. PANOSH: -- the State would be doing rebuttal.

MR. HATFIELD: That's not --

THE COURT: That's not --

MR. HATFIELD: That doesn't have to do with Ronnie Kimble's character. It has to do with his character.

MR. LLOYD: Well, we would argue that it shows a relationship between the two.

911

THE COURT: If you offer it for that purpose, I'll let you get it in. But otherwise, I'm not.

MR. HATFIELD: All right. Thank you.

MR. LLOYD: We'll be glad to have the Court instruct on that, but we're not offering it as to character evidence.

THE COURT: Proceed.

(Proceedings continued in open court.)

THE COURT: Members of the jury, this next question and answer will deal with the relationship between this witness and this defendant. It has absolutely nothing to do with character. It is not evidence of good or bad character.

Proceed.

MR. HATFIELD: Thank you, Your Honor.

Q    When you were acquainted with Ronnie Kimble during this four-month period, did you have a drinking habit?

A    Yes.

Q    Briefly state to the jury what that was.

A    Basically, I drank every almost every single day. And that was it.

Q    And as a result of your friendship with Ronnie Kimble, did you change that habit?

A    Yes, I did.

Q    What did you do?

912

A    I stopped drinking, and it was extremely easy.

Q    Did you attribute your stopping drinking solely to your friendship with Ronnie?

A    Pretty much.

Q    Now, how long after you met Ronnie did you learn that his sister-in-law had been tragically murdered?

A    I would say it was probably a month and a half after I met him.

Q    So that would have been sometime in the middle of January of 1997?

A    Yes.

Q    And did you learn about it from Ronnie or from some other source?

A    Through Ronnie.

Q    And can you remember, based upon your recollections today, in this courtroom, while you're under oath, what he said to you about that?

A    Not really.

Q    Did he tell you whether or not he was a suspect?

A    He said that he was -- he said that he was just being questioned a lot. And he felt that he was being a -- he felt he was being a suspect.

Q    Because he was being questioned a lot?

A    Yes.

Q    Did he tell you any individual facts about Ms. Kimble's

913

murder that he knew?

A    Facts that -- of the murder, just she was shot in the head and burned. That was basically all that he told me.

Q    Did you -- did it come to your attention that any of your coworkers in the Marine Corps during that period of time also knew that Ronnie was under investigation?

A    I really didn't pay attention if they knew it or if they didn't.

Q    Did you know whether in January of 1997, whether Ronnie Kimble had already given detailed statements to investigative agents previous?

A    I didn't know.

Q    Did he tell you whether he had or not?

A    No, he didn't.

Q So you do not know whether Mr. Kimble had already told investigators when he'd put a box truck a certain place and-when he'd gone to a certain other place, do you?

A    No.

Q    Now, when the investigators came and spoke to you on March 4th, is that the first time that anyone other than Ronnie Kimble ever spoke to you about Patricia's death?

A    That was the first time.

Q    And did you understand that a whole bunch of people were being investigated that day?

A    Yes.

914

Q    Did you tell the investigators whether or not you had knowledge that might be of use to them, when they first began their interview of you?

A    No.

Q    Did the investigators tell you anything about their knowledge of the state of the investigation at that point in time?

A    No.

Q    Were you shown any pictures of Patricia's body?

A    No.

Q    Do you remember whether Detective Church participated in the interview?

A    Not offhand.

Q    Do you remember whether a man named Gregory Munroe participated in the --

A    Yes, he did.

Q    Huh?

A    Yes.

Q    He did?

A    Yes.

Q    Had you ever talked to Mr. Munroe before?

A    Not before I --

Q    When you --

A    -- was questioned.

Q    When you talked to Mr. Munroe on the 4th of March, how

915

many investigators were present?

A    I believe there was two investigators and Mr. Munroe was present.

Q    So there were two outside investigators and Mr. Munroe, who you knew to be a local naval man --

A    Yes.

Q    -- is that right?

A    Yes.

Q    Do you know the names of the two other investigators?

A    Not offhand.

Q    Now, when they came back to see you the following day, was it the same group?

A    Not offhand, I don't remember.

Q    Sir?

A    Not offhand, I don't remember.

Q    At that point in time, did anyone -- any of the investigators say anything to you about perjury?

A    No.

Q    Now, again, when they came to see you on March 19th of 1997, was it Mr. Munroe again?

A    I don't remember.

Q    Do you remember who else was there?

A    No, I don't.

MR. HATFIELD: Thank you, Your Honor.

MR. PANOSH: May I --

916

THE COURT: Any additional --

MR. PANOSH: -- approach the witness?

THE COURT: -- questions, Mr. Panosh?

MR. PANOSH: Yes, please.

REDIRECT EXAMINATION by MR. PANOSH:

Q    I show you now two pages which I've marked as Number 105. Would you review that, please.

A    Yes, sir.

(Time was allowed for the witness.)

MR. HATFIELD: Could we have that identified for us?

MR. HATFIELD: Yeah. March 5.

(Further time was allowed for the witness.) MR. PANOSH: May I approach?

Q    Is the information in there accurate, sir?

A    Sounds familiar. Reads familiar.

Q    Is the --

MR. HATFIELD: I can't hear his answer.

A    Yes.

Q    Is the information in here accurate?

A    Yes.

Q    All right. I'm going to show you now State's Exhibit Number 106, which is the same as Defense Number 1. Do you want to review that, to make sure it's the same? Just compare them, please.

917

(Time was allowed for the witness.)

A    Yes.

Q    Okay. Now, I believe you said that there is information in here that is -- you don't recall saying?

A    Right. This paragraph right here. (Indicated.)

Q    Would you take this red pen and X through the information you don't recall saying.

(The witness complied.)

A    Okay.

Q    I believe you --

A    Yeah.

(The witness complied further.)

Q    All right.

A    All right. This top one.

Q    Okay. Wait a minute. Put your initials by the one you want to X out.

(The witness complied.)

Q    And then put down "Not crossed out" there, please, so there's no issue.

(The witness complied.)

Q    Thank you. Now, other than the paragraph that you've X'ed out, is the information in 106, which was previously Defendant's Number 1, is it accurate?

A    Yes.

MR. HATFIELD: Objection.

918

THE COURT: Overruled.

MR. PANOSH: Seek to introduce 105 and 106.

MR. HATFIELD: Objection.

MR. LLOYD: Objection, Your Honor. Ask to be heard outside of the --

THE COURT: Sustained.

Q    When you were being interviewed by the agents back in March and again today, did anybody ever ask you to tell anything but the truth?

A    No. Just said, "Say the truth."

MR. PANOSH: No further questions.

RECROSS-EXAMINATION by MR. HATFIELD:

Q    Same thing for me, right?

A    Yes.

MR. HATFIELD: Thank you. No questions.

THE COURT: Step down, sir.

(The witness left the witness stand.)

MR. PANOSH: Your Honor, may he be excused or –­

THE COURT: Any objection?

MR. HATFIELD: No objection.

MR. LLOYD: No objection.

THE COURT: Excused, sir. Members of the jury, we'll take our morning

recess. It'll be a 15-minute recess. At the end of the 15

minutes, please report to the jury room. Please remember

919

the jury responsibility sheet.

(The jury left the courtroom at 11:23 a.m.)