FOURTEENTH DAY

August 31, 1998

(Met, pursuant to evening recess of August 28, 1998, at 9:47 a.m.)

THE COURT: Have the attorneys had an opportunity to look at the verdict sheets?

MR. PANOSH: Yes, Your Honor.

MR. LLOYD: Yes, Your Honor.

THE COURT: Any problems or anything -- any corrections that need to be made on those sheets?

MR. PANOSH: Your Honor, over the weekend, I gave it some thought, and I'm of the opinion that in regard to the arson that one of the things the jury has to find is that the arson and the murder were a part of a continuous transaction. If in fact they found that it was not part of a continuous transaction, then it should be submitted as second. And I believe it would be appropriate to submit it as first and second in order for there to be a correct charge to the jury.

Your Honor, I have prepared and given counsel a request for special instructions which does that, and I've got a copy there for Your Honor. I've also given you a request for a special instruction as to the murder, and that incorporates the information that we discussed in chambers Friday, specifically that was the

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footnotes. The peremptory instruction that a .45-caliber weapon is a deadly weapon, and the information -- the case law that comes out of State v. Jaynes in reference to a continuous transaction.

THE COURT: Defense wish to be heard?

MR. LLOYD: Your Honor, I don't necessarily disagree with Mr. Panosh's interpretation of what the law says in this State v. Jaynes case. My only concern would be that it may unnecessarily complicate matters in this case. And I don't have a -- basically, Your Honor, I don't have a position on it one way or the other.

THE COURT: I'm not sure the Jaynes case is referring to arson.

MR. PANOSH: It does, Your Honor.

THE COURT: Sir?                                                                                      

MR. PANOSH: It does. I can hand it up.

THE COURT: I'm not talking about that. I'm talking about whether it refers to arson in regards to the arson charge. I understand the felony murder rule that it would have to be occupied at the time, but I'm not sure that the second-degree arson would be a proper charge.

MR. LLOYD: That was something that crossed my mind when I read it, Your Honor. If this case were just being tried for arson, I mean if that was the only thing

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before the jury, but that there was some evidence of this murder, would it be proper under the Jaynes case to use it in this transaction. I just don't know, Your Honor. I tend to feel the same way you do.

MR. PANOSH: Your Honor, I think Jaynes  specifically refers to arson. They say at page 274 -­this is 342 N.C. Our arson statute provides in pertinent part that there should be two degrees of arson as defined by common law. They go on to state for the purpose of arson, if one is occupied; if the interval between the mortal blow and the arson is short and the murder and arson constitute part of a continuous transaction; then they go on to give the facts of this particular case.

THE COURT: There's a three-and-a-half-hour delay between the death and arson in the Jaynes case, as I read it.

MR. PANOSH: Yes.

THE COURT: Certainly no three-and-a-half-hour delay in this case.

MR. PANOSH: No, Your Honor. There is -- all the evidence will indicate it was substantially less than that.

THE COURT: Out of an abundance of caution, I'll submit second-degree arson.

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Have we agreed upon the -- where is Marsha? She needs to retype these verdict sheets as to arson.

MR. PANOSH: Your Honor, as to the murder charge, I note that I've left out a couple of words on the third full page. When it says returning to the elements of felony murder rule, you must find, second, that while committing arson, the defendant killed the victim as part of a continuous transaction. In other words, "with a deadly weapon" should be in there, according to the pattern.

THE COURT: Read it again.

MR. PANOSH: It says, second, while committing the arson, the defendant killed the victim as part of a continuous transaction with a deadly weapon.

THE COURT: Any other changes?

MR. PANOSH: Not that I'm aware of.

THE COURT: All right. Any pattern jury instructions requested by the State?

MR. PANOSH: There are no others. Is that what Your Honor asked?

THE COURT: Sir?

MR. PANOSH: Did you ask if there are others?

THE COURT: Yes, sir.

MR. PANOSH: There are no other requests.

chambers Friday, but for the benefit of the defendant I want to go over them again to make sure he understands exactly what instructions are to be given.

MR. PANOSH: Yes, sir.

THE COURT: Any other than the standard pattern jury instructions requested by the State other than the ones you submitted this morning?

MR. PANOSH: Your Honor, as to 206.18, conspiracy to commit murder, we would ask that the footnote there be incorporated: An agreement may be all written or established by certain acts.

THE COURT: Granted. Any others, sir?

MR. PANOSH: Not for the State, Your Honor.

THE COURT: On behalf of the defendant?

MR. LLOYD: Your Honor, I don't have my sheet where I marked, but basically -‑

THE COURT: I think motive; interested witnesses; immunity; photos; impeachment by prior statement; impeachment of a witness by prior record, Nichols; expert witnesses are the ones you gave me on Friday. Alibi.

MR. LLOYD: Alibi.

THE COURT: Others, sir?

MR. LLOYD: Burden of proof and reasonable doubt.

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THE COURT: Granted. Credibility and the weight of the witness, weight of the evidence, and concluding instructions.

Any others, sir?

MR. LLOYD: And Your Honor indicated that it would be impeachment or corroboration by prior statement?

THE COURT: Yes, sir.

MR. LLOYD: You would give that 105 point –­

THE COURT: Yes, sir.

MR. LLOYD: All right. I think that's all we talked about on Friday. That's all we request, Your Honor.-

THE COURT: Mr. Panosh going to have the opening argument?

MR. PANOSH: Yes, sir.

THE COURT: Who is going to have the second argument?

MR. LLOYD: I will, Your Honor.

THE COURT: Then Mr. Hatfield. And then Mr. Panosh will have the final argument. Do two of them before lunch and the other two after lunch.

MR. LLOYD: Yes, sir.

THE COURT: I don't want to split them up is what I'm saying.

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MR. LLOYD: Your Honor, there is one matter. Your Honor instructed Mr. Panosh and I to try and see if we could redact the statements of Mr. Nichols. And Your Honor, I wanted to make it clear for purposes of the record we're not waiving any of our previous objections, Your Honor. As Your Honor well understands, we objected. But given the Court has indicated it's going to admit these statements, then to make the best that we possibly could in a situation, we, of course, entered into an agreement with Mr. Panosh that certain items would be redacted. Basically, Your Honor, Mr. Panosh and I were able to agree on everything with the exception of one statement. And this is in Rob Nichols' statement on April 18, 1997. It reads on page 4 of 6, Ted carried a Glock pistol with him all the time.

My notes -- may not sound like a big thing to Your Honor, but my notes indicate that what Mr. Nichols testified to was Ted carried a Glock pistol and a .22-caliber pistol. And there was nothing about with him all the time. But .22-caliber pistol came in there as well.

THE COURT: That's the 18th of April statement?

MR. LLOYD: Yes, sir. Page 4 of 6.

And my concern for that, Judge Cornelius, to put it in perspective, I would anticipate that one of the

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arguments that Mr. Panosh makes is that this has significance, the fact that Ted carried the Glock with him all the time, that he would not have left it at home, and that he would have to have given that to Ronnie to commit the crime. So that's an important issue for us, Your Honor.

I'm not just picking hairs here. In the spirit of compromise, I think I did let in some of -- some statements that I wasn't at all sure that there had been any corroboration in the direct testimony. So that's why it's important to us, Judge.

And my notes directly indicate that. I have that written entry in my notes. That he carried the .22-caliber pistol as well, and there was nothing about with him all the time.

MR. PANOSH: Your Honor, whatever information Mr. Nichols had was in 1997, subsequent to the murder, therefore it cannot be argued that that is the Glock pistol that he had in his possession all the time prior to her murder. My notes specifically say that he said that Ted carried a Glock pistol all the time. At another point, he indicated he carried a .25 and a -- I believe it was a 9mm Glock at all times.

But in any event, that statement is consistent with the evidence as a whole. If you remember,

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Ms. Murray also testified that the defendant -­codefendant Ted carried the pistol at all times. And he always kept it loaded.

MR. LLOYD: Well, if that's -‑

MR. PANOSH: And that was prior to the murder.

MR. LLOYD: If that's what the evidence says, Your Honor, Mr. Panosh is welcome to argue that Ms. Murray said that.

THE COURT: I don't have that statement in my notes where he carried it all the time. I think one of the witnesses did make the statement.

MR. LLOYD: What did Your Honor say?

THE COURT: I don't have Nichols saying he carried it all the time. Carried the Glock all the time. I think he carried the weapons and used them.

MR. LLOYD: Yes, sir.

THE COURT: Is that in the statement? Have we redacted that part?

MR. LLOYD: We've not redacted that one portion of the sentence. We redacted -- there's the rest of the sentence that we had in there that's been redacted, so we would have to redact that portion, Your Honor.

THE COURT: Redact that portion.

MR. PANOSH: Your Honor, I would suggest if we just redact the word "Glock," it would be consistent

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with your notes that he carried a pistol all the time.

THE COURT: Mr. Lloyd?

MR. LLOYD: Well -‑

MR. PANOSH: And the clerk can do that.

MR. LLOYD: -- see, that's -- part of my argument was, Judge, number one, that there was this other pistol involved and there was nothing he testified to about all the time. That Rob Nichols testified about all the time. And we've got this same problem. What are we offering as evidence here? The testimony from the witness stand or these prior statements not sworn to and not subject to cross-examination? And obviously that's the problem.

THE COURT: Leave it out. Leave it out.

MR. PANOSH: Would you like the clerk to do it so we don't have any delay?

THE COURT: Yes. Please.

MR. PANOSH: Your Honor, the other matter that came to our attention on Friday is that there are certain photographs that are missing. Specifically, they are -‑

THE COURT: What do you mean missing?

MR. PANOSH: They're not here.

THE COURT: Where are they?

MR. PANOSH: State's Exhibits 68 through 71, the

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autopsy photographs. I've sent someone to Chapel Hill to get copies. And as soon as we can get them here, I'd like the Court's permission to put them into the evidence.

THE COURT: Granted.

MR. HATFIELD: I think they should have to explain what happened to them, Your Honor.

THE COURT: If we could do that, we wouldn't be here asking about them.

THE CLERK: Ms. Chancellor took them off the witness stand with her and put them in a portfolio she had up there and I did not catch them.

MR. HATFIELD: So their witness took them away.

THE COURT: Which witness?

THE CLERK: Ms. Chancellor, the medical examiner.

MR. PANOSH: We don't know that. That's the most likely set of events.

THE COURT: Has she been contacted?

MR. PANOSH: I believe the photographs are on their way here now. I sent someone there first thing this morning.

THE COURT: All right.

MR. HATFIELD: Well, presumably, they'll establish that they're the very same photographs with

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the identification.

THE COURT: You can look at them and tell. We're all aware of which ones were the ones she testified from. I'll be glad to conduct a hearing if it becomes necessary to do that. But she can resolve it.

Any other matters we need to take care of?

The jury is all here?

MR. PANOSH: Could we take two minutes before we start?

THE COURT: Sure.

What kind of sign is on the back door?

We need to change it that nobody enters during argument when the arguments start.

If anyone needs to leave -- if you think you might have to go to the bathroom within the next hour,-you need to leave now because you won't be allowed to leave once we start the arguments.

(Recess)

THE COURT: Most everyone back. All the jurors here?

THE BAILIFF: Yes, sir.

THE COURT: Any more bathroom people still outside?

Got one more coming in. One more outside coming

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Okay. Lock the door. Bring them back. (Jury present)

THE COURT: Very pleased to have the panel back.

I hope each of you had a nice weekend and is feeling okay. Anyone on the panel experiencing any problems today that I should know about, if you'll raise your hand, I'll be glad to talk with you about that.

As indicated to you on Friday, members of the jury, we're at the point in the trial where the attorneys are going to make their final arguments to you. You need to give them your full and complete attention as they make these final arguments. Please remember that the final arguments are not evidence in the case. It's merely contentions of things the attorneys contend that you should deliberate once you begin your deliberations. Please remember that they will not intentionally mislead you. They will simply be trying to recall the evidence.

Lock that door.

THE BAILIFF: It was locked. He unlocked it to get out.

THE COURT: They will not intentionally mislead you. If by chance they misstate something, members of the jury, or if your recollection of the evidence is different from theirs, the Court will instruct you that

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