Are they bringing in the defendant, Mark?

THE BAILIFF: Yes, sir.

(Defendant present)

(Jury present)

THE COURT: At this point, members of the jury, Mr. Lloyd will have the opening argument on behalf of the defendant. Please extend to him the same courtesy that you extended Mr. Panosh.

You may address the jury on behalf of the defendant, Mr. Lloyd.

MR. LLOYD: Thank you, Your Honor.

Ladies and gentlemen of the jury, legally, this case couldn't be any simpler. And despite all

Mr. Panosh's efforts to explain to you the law in this case, it simply boils down to one thing, and that is has the State convinced you beyond a reasonable doubt that Ronnie Kimble killed his sister-in-law Patricia Kimble?

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And  that is the legal essence of this case.

Now, I don't have any fancy phrases. I'm not as articulate as Johnny Cochran or someone like that. And you won't hear anything from me like if it doesn't fit, you must acquit. But I am going to tell you this. With every fiber of my being, I am going to convince you that Ronnie Kimble is innocent. And when I say innocent, I don't mean as pure as the driven snow. When I say innocent, I don't mean that he's perfect. But what I do mean is that he is innocent purely and simply because he did not commit this terrible crime.

Now, some of what I say may surprise you. I only ask that you listen to what I have to say to you and you think about it.

Now, you all promised that you would follow the law. And I know you will. Because I saw you on Friday as you sifted through all the evidence and all the exhibits in this case and how diligently you did that. And you took an oath at the start of these proceedings to do exactly that. And I will now hold you to that oath. And once again, I say to you that this case is simple. And the only real issue for you is has the State convinced you beyond a reasonable doubt that Ronnie Kimble killed Patricia Kimble?

Now, that statement, though it is simple, it is

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acceptably complex. And remember this. It is the State who must prove to you. We bear no burden of proof in this case. And Judge Cornelius will instruct you on that. It is the State who bears the burden of proof here. And the standard is beyond a reasonable doubt.

Now, Judge Cornelius is going to instruct you fully on what beyond a reasonable doubt is. But he's going to tell you. And if his instruction differs from what I say or from what Mr. Panosh has told you, you take his instruction. But he will tell you that a reasonable doubt is one based on reason and common sense. It is one that fully satisfies and entirely convinces you. Proof beyond a reasonable doubt is proof that fully satisfies and entirely convinces you. And only you will ultimately be able to determine what that means in the context of this case.

Now, let's look just a minute at the presentation that the State has made in this case that Mr. Church and Mr. Panosh have presented to you. Now, the first thing I want to talk to you about is the conspiracy. Now, they have made a presentation and you have heard Mr. Panosh talk to you about the conspiracy that supposedly existed between Ted and Ronnie Kimble. But let's take that down. Let's look at the actual evidence of that in this case.

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Now, the first thing that comes to my mind, and probably yours, is there's some phone calls that Mr. Panosh introduced late in the case that supposedly were from Lyles Building Supplies down there to Camp LeJeune to several numbers that Ronnie identified on the witness stand. But you'll remember the important thing about that is that Ronnie told you his father and his mother frequently called him down at Lyles. And that we have no knowledge -- there is no evidence that Ted made those calls. There's absolutely no scintilla of evidence that Ted made those calls. Any number of people could have made those calls. Those calls were from a cell phone account that was billed to Lyles Building Supplies. Any number of people could have had phone -- phones that were attached to that account. Any number of people -- including Ronnie's father, Ronnie's mother -- could have had phone calls or phones that were attached to that account.

Now, if you believe Joy Dyer, then -- there's been some testimony about the fact that Ronnie and Ted at some point years ago went out shooting together. I suppose, in the light most favorable to the State of North Carolina, that that is some sort of evidence of something between Ted and Ronnie. There's some evidence that Ronnie came to Ted's wedding. That Ronnie was in

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Ted's wedding. But, folks, ask yourself this: These two young men are brothers. You can't choose your relatives. You may be able to choose your friends, but you can't choose your relatives. And the fact of the matter is they were brothers. They did live together under the same roof. They went to school together, basically. They went to church together. They did any number of things that any normal family does together, and certainly there is going to be contact. And I know with the collective wisdom of this jury that all 12 of you have -- there's someone on this panel who has siblings that he or she is close to and siblings that you're not so close to. And we all know about that from our experiences in life.

And certainly there's some evidence that Ronnie on occasion worked for Ted. We're not denying that. But I'll say this to you. There was certainly no partnership here. Ronnie was working for Ted.

Now, what I found far more telling than anything else on the issue of conspiracy was this little receipt here from Atlantic Mobile Home. And this, you'll recall, is what Ronnie identified as the receipt for the underpinning. It comes to $328.98, October 9, 1995, the very day Patricia was murdered, as Ronnie testified. It's billed to Lyles Building Materials and Salvage,

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Incorporated.

Well, you might say that certainly supports Mr. Panosh's theory that there was something going on between these two brothers. But you'll recall Ronnie's testimony how he frequently got things at Lyles. Certainly, he admitted that he got the pickets for installing the underpinning at his house from Lyles. He got that treated wood.

But here's the real point. Remember that Ronnie told you that he made subtractions as he paid off the bill. You'll see down here there's another writing in another hand, made in a black pen, minus $90.50, bringing the account to this. Minus fifty, and so forth, down that way.

And let's -- ask yourselves this, ladies and gentlemen of the jury: If Ronnie Kimble really conspired with Ted Kimble and carried out this murder of Ted's wife for him, and that the agreement was that he was going to get $20,000, Ronnie was supposed to get $20,000, or whatever it was, for killing Patricia Kimble, why in the world would he worry about paying off a debt of $328.98 if Ted owed him $20,000? A debt that was incurred on the very day that Patricia died. Does that make any sense? Does that raise a reasonable doubt?

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When you think about this, when you think about the conspiracy, and the fact that Mr. Panosh bears the burden of proof to prove to you a conspiracy in this case, are you fully satisfied? Are you entirely convinced? Or would, in fact, if you had owed someone or if someone had owed you $20,000 and you had a debt for $300, don't you think you would have said, Well, I'm not going to pay you that back. You owe me $20,000. Why am I going to worry about $300?

But the fact of the matter is, ladies and gentlemen, there is no evidence, there is not one scintilla of evidence, that Ted ever paid Ronnie anything; that there was any money exchanged in this case.

And why is that significant?

Now, Mr. Panosh has said, Well, Ted never collected on the insurance. There was two hundred thousand dollars worth of insurance, but it wasn't in effect, because Patricia hadn't had the physical.

Well, that's true. But remember this: First of all, Ted goes out and buys a very expensive motorcycle shortly after Patricia's death. And secondly, he does collect.

Remember the testimony about how he collected some $50,000 -- there was a fifty-thousand-dollar

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pay-out on the belongings in the house. And that money went to Ted.

Now, don't you think that if Ronnie had been the one to do the dirty work in this case, had been the one that killed Patricia, don't you think he would have stepped forward and demanded some of that money? It may not have been the whole twenty thousand. And if that was the case, don't you think there would have been some evidence of that exchange of money between Ted and Ronnie? And even -- even -- if there wasn't any evidence of a direct exchange of money, don't you think there would have been some evidence of Ronnie having done something with this large sum of cash that he got?

And when you think about all that, when you think about that conspiracy element of this case, are you fully satisfied? Are you entirely convinced?

Now, let's look at another part of the whole conspiracy argument that Mr. Panosh and Mr. Church have put forward here.

And remember, part of this, part of this whole conspiracy plan, the grand plan here, is that Ted has an alibi at Precision Fabrics. Indeed, all the evidence in this case would suggest that Ted Kimble in fact got this job at Precision Fabrics for the sole purpose -- you heard the testimony of Pardee or Nichols. I can't

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remember which. But got this job at Precision Fabrics to afford him an alibi, to give him an alibi, so that when Patricia died -- and this is the very same thing that Mr. Panosh just got through arguing to you. When Patricia was killed, he would have an iron clad alibi. And the significant thing about this was remember he got the job somewhere in early September, or whatever it was, very shortly before Patricia was killed, and then -- and then he never went back, basically. That was all the evidence in the case. He never went back after October the 9th. And if his sole purpose was to do that -- remember, when he started to work on his new job, the three-to-eleven shift, so he would be covered from three in the afternoon until eleven. And if that's the case, and Ronnie is his man, then you've heard all the evidence that's been presented by the State. They maintain that the murder happened at four, which dissolves Ted's alibi. Why in the world, if Ronnie is the man to do this for Ted, does Ted ruin his own alibi?

It just doesn't make sense. It raises a reasonable doubt. And I'll have more to say on that later on. And Mr. Hatfield will have some more to say about it.

But the bottom line here is why in the world would Ted have Ronnie kill Patricia at four in the

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afternoon when the sole purpose of getting the job at Precision was to give him an alibi and he didn't have it? Remember, he didn't go to work at Precision until 6 that night, or 6:15, or 6:20, whenever it was. But at any rate, he wasn't covered at 4 in the afternoon. And if Ronnie Kimble had been Ted's agent in this case, he never would have had Ronnie kill Patricia at somewhere around 4:00.

Now, there are real conspiracies in this case. And you've seen them. You've seen Patrick Pardee and Rob Nichols. They testified to you from that witness stand. And they told you about a real conspiracy here. They told you about going out and robbing people, stealing from them, going out to these houses and everything. And I won't go into that in detail. Mr. Hatfield is going to cover that for us. But the point is that's the way conspiracies work. And you saw all about that. And you also saw -- remember the testimony that Rob Nichols told how he was paid $300. There's evidence in these real conspiracies that not only was he paid $300, but there's a whole trailer full of stolen goods. And that's the real hard evidence of a real conspiracy.

What did Mr. Panosh and Mr. Church -- what have they presented to you as far as real physical evidence

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of any sort of conspiracy in this case? The only thing that comes to my mind are these possible phone calls. There is absolutely no evidence of any money changing hands between Ted and Ronnie or any evidence that Ronnie came into money. Certainly, Ronnie sold plasma, gathered cans, and went out on the firing range, as Mr. Panosh went to great lengths to point out, claiming that it was some sort of federal offense.

And I'm going to tell you something, ladies and gentlemen of the jury. I think any corporal in the Marine Corps who has a wife who lives off of base is going to need some extra money. Was Ronnie any exception to that? Certainly not. We could all use some extra money. But the important thing to compare it to, did Ronnie and Kim go out and buy a boat like Ted and Patricia had? Did they buy a brand new Jeep to pull that boat? Did they live -- did they buy a condominium in Virginia? Did they live well beyond their means or live any kind of extravagant lifestyle? The fact of the matter is they didn't. And when you think about it, does it have any significance as to whether or not Ronnie sold plasma, gathered up cans, and gathered up brass shell casings? No.

If you're talking about a motive such as Ted had, then you've seen the evidence of that kind of

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thing. You've seen how someone like Ted over extends himself, buys all these things, very materialistic, and has to have money. Ronnie doesn't fall into that category. He's just like most of all of us when we were starting out in life. Sure, he needed some money. But don't we all at that stage in our lives?

Now, let me talk to you just for a minute about Mr. Mitch Whidden, because you will remember the next part of Mr. Panosh's -- Mr. Church's presentation to you, as far as Ronnie Kimble was concerned, was basically the testimony of Mitch Whidden. And it's pretty obvious what their presentation here is. That Ronnie confessed to Mitch Whidden. And as soon as you say that, it just jumps out at you.

Mr. Panosh tried to address it to you just a few moments ago. Why in the world does Ronnie confess to Mitch Whidden? Because let's look at the real facts in this case, ladies and gentlemen of the jury. Let's look at what it was really like. What the relationship between Ronnie and Mitch Whidden was. The fact of the matter, Mr. Panosh characterized it as a friendship. I don't think that's accurate. They were buddies in the Marine Corps. That's all they were. Pure and simple.

You heard the testimony. There's no disputing the fact that Mitch Whidden knew Ronnie for some four to

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five months. That they shot pool together. These two young men were in the Marine Corps. They had some minor shared interests. But these weren't bosom buddies. Even these weren't just buddies. They were casual buddies.

About once a week, maybe twice a week during the course of this time, Ronnie would run into Mitch Whidden. They would shoot pool. Neither one had ever met the other one's wife. I mean what kind of deep friendship is this? These were just two kids who were thrown together in the Marine Corps, and they kind of hit it off for want of somebody else being around. And that's basically all it is.

And so you've got to ask yourself why in the world does Ronnie pick Mitch Whidden to confess to? And the big thing that jumps out at me is why not Father Soutiere. Here is a man that Ronnie obviously admired. Here is an ordained Catholic priest. One of the head chaplains in the division where Ronnie worked. Ronnie knew that everything he said to Father Soutiere was absolutely privileged. Here's a man that Ronnie went in to see on a regular basis; that he prayed with. Here's a man that he certainly talked to about things that were troubling him.

If you've got this burning desire that you have

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to unburden yourself, that you have to confess, why not do it to Father Soutiere? Isn't he the perfect one? Whatever you tell him is absolutely privileged. It will go with him to his grave.

And yet, that never happened. There wasn't even a hint of that. And what Mr. Panosh and Mr. Church want you to believe is that Ronnie Kimble picked Mitch Whidden over Father Soutiere.

Now, Ronnie said on the stand, when Mr. Panosh asked him a question about why Mitch Whidden would come down here, he said, Well, I'm not going to call Mitch Whidden a liar. Maybe he did it because he was too proud to admit that he had made a mistake.

I don't know that I would be so charitable about Mitch Whidden as Ronnie was. But I am going to tell you this: Mitch Whidden was absolutely and irrevocably wrong about what he told you happened on that night in January between him and Ronnie.

Now, I will grant you that getting to the heart of what motivates Mitch Whidden is complex. And the truth is we may never, never, entirely know what motivates Mitch Whidden. But Mitch, in essence, made a moral judgment and a moral commitment, early on, while Ronnie was still at Camp LeJeune. And that was that he determined at that time that Ronnie Kimble was guilty.

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And you'll remember that Mitch admitted that Ronnie had talked to him about the case down at Camp LeJeune. And Mitch, the way he -- and the reason we know that he made this moral commitment and moral

judgment on Ronnie, that Ronnie was guilty at Camp LeJeune, the reason we know that, is not by what Mitch says, because he denied that on the witness stand, he categorically denied it, but by his actions.

And one of the most important things, one of the first things that comes to mind is that when he talks about this gas receipt. Remember, Mitch Whidden told you about the gas receipt that Ronnie had. He told you that Ronnie told him -- this was down at Camp LeJeune -­that Ronnie had a gas receipt that showed he was across town. And what does Mitch conclude from that? Mitch Whidden concludes from that, Well, that didn't convince me very much, because anybody could get a gas receipt.

Now, that shows two things about Mitch's thinking. And this is all down at Camp LeJeune. First of all, he got the facts hopelessly balled up. Because Ronnie Kimble never told anybody that he had a gas receipt that showed he was on the other side of town at the time of the murder. And you know that because of the facts of this case. I don't need to go into detail on that. Ronnie was indeed concerned about the gas

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receipt. And as he admitted on the stand, he talked about the gas receipt at times to people down at Camp LeJeune. He was concerned because the gas receipt -- he had left the gas receipt in the box truck. And he was concerned, first of all, because the investigators had not come down and questioned him about it. But he was concerned that it had his signature on it. And that somehow the investigators, as indeed they did, would twist that around and use it against him. Make him a suspect with it.

But first of all, the important thing here is Mitch Whidden gets the facts balled up, but it shows something else. It shows something even more important. It shows that indeed Mitch had already made -- before he ever left Camp LeJeune, had already made this moral commitment and moral judgment that in fact Ronnie was guilty.

You'll recall that Mitch told you basically that after he heard the story from Ronnie Kimble down at Camp LeJeune, he told you that he felt like Ted Kimble was guilty, but he didn't think that Ronnie Kimble was guilty. And the fact of the matter is, I submit to you, ladies and gentlemen of the jury, he thought they were both guilty. Because in Mitch's way of looking -- his moralistic way of looking at the universe, good people

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don't have brothers who murder their wives, shoot them in the head and burn up the dwelling in order to collect the insurance money. And that just shows you how Mitch was thinking at this time.

And maybe when you saw Mitch Whidden on the stand, maybe you thought he was earnest. Certainly, you thought he was moral. Remember when he talks about how Leviticus backs him up. He goes back to the Bible to justify his thinking in this case.

But I submit to you, ladies and gentlemen of the jury, that history is littered with people who think that way. That, in fact, people, when they make a moral judgment and commitment, that it is much stronger than just making any kind of commitment based on objective facts without a moral component. And that when you think about back in the time of Galileo and Copernicus and how they were persecuted because they had the audacity to suggest that the scientific and religious community was wrong because in fact the earth was not the center of the universe; that the sun and the stars did not revolve around the earth.

And why were they persecuted for those -- those beliefs? Not because it upset the status quo in the scientific community, but because it upset the church and their moral commitment to the fact that God has put

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us at the center of the universe. And that's why they were persecuted. And those, doubtless, were earnest, moral people.

And if you stop and think about it, have you ever wondered how in this day and age it is so difficult for us to believe that the Salem witchcraft trials are a part of our history of this great country. And I submit to you because of the same kind of earnest, moral commitment and judgment, which once you make that commitment and it leads down that path, there is no turning back.

And I ask you, ladies and gentlemen of the jury, do not let Mr. Church who's made a rush to judgment on a professional level, do not let Mitch Whidden who has made a rush to judgment on a moral level, do not let Mr. Panosh who has made a rush to judgment on a professional level -‑

MR. PANOSH: Object, Your Honor.

THE COURT: Sustained. Disregard that, members of the jury.

MR. LLOYD: Do not let them usurp your duty in this case. You are the 12 members. You -- Mr. Panosh is the prosecution; Mr. Church is the prosecution; Mitch Whidden is the prosecution. But you are in fact the judges in this case; the jury in this case. Do not let

2778

them take that away from you.

Now, let me talk to you -- I touched on the fact that Mitch Whidden had already made his conclusion concerning Ronnie's guilt before he ever left Camp LeJeune, before he ever came up to Liberty Bible College when he still knew Ronnie Kimble down at Camp LeJeune.

And there's another way we know that. And that is through the testimony of Mitch's wife Debra Whidden. And you remember, she got up on the stand, Debra was very emotional. And she told you how that morning when Ronnie Kimble and his wife Kim left, that Saturday morning, she was not up to see them off, but she noticed that Mitch was all out of sorts. And she asked him, you know, what's wrong. Well, she didn't -- let me take that back. She didn't ask him what's wrong. She said, first of all, is Ronnie coming to school up here? Do you think Ronnie is coming to school up here? And Mitch's response was no. And don't ask me anything more about it. And she says to you -- remember how I asked her on cross-examination, there was some long period of time, she told you how well she knew Mitch Whidden, how well she knew her husband, but at some point without any further conversation on this issue, without anything else transpiring between the two of them, she told you that she simply divined that Ronnie Kimble had killed

2779

his sister-in-law, and said to Mitch, I know what's bothering you. Ronnie admitted to you, he confessed to you that he killed his sister-in-law. And supposedly it went from there.

And why is that important? Because it shows that Debra Whidden already thought Ronnie Kimble was guilty of killing his sister-in-law. And where does she get all of her knowledge about this case, about the circumstances surrounding Debra Whidden's death -- I mean, excuse me, Patricia Kimble's death? She gets it from her husband Mitch.

She talked about yes, they had talked about it. Mitch would come home and talk to her when they were down at Camp LeJeune. That's where she gets it all. And any opinion on the guilt of Ronnie Kimble has to come from Mitch Whidden, her husband. That's how she <­ get it -- she got it, and that's how we know that before Mitch ever left Camp LeJeune he had formed that opinion. And once he looks through those guilt-colored glasses, if you will, everything he sees in this case is twisted and contorted into what he ultimately testifies to here.

Now, remember Debra Whidden, before I forget it, she does testify to some other things. And I'm sure Mr. Panosh will talk to you about this. She says that

2780

Ronnie told -- during the dinner that Ronnie talked about a haunted past. You recall Kim Kimble didn't -- Ronnie's wife didn't remember anything about that statement. And maybe a statement like that sort of goes past, past you and you miss it, but would she have missed what Debra Whidden told you next? Which was that she said that Ronnie told Mitch, I want to talk to you alone. Without -- outside the presence of the two wives.

Now, Kim Kimble would have remembered that. But she definitely does not remember that. You heard her testimony. She didn't hear any such statement.

Now, let's look a little more closely at Mitch Whidden's testimony here. You remember Mr. Hatfield asked him, Did you and Ronnie Kimble talk about dreams when you went upstairs to do your Bible study? And remember what his response was? Oh, no. We didn't talk about any dreams. Started off talking about the Bible and then Ronnie confessed to me, but we didn't talk about any dreams.

But remember what he does have to admit to

Mr. Hatfield. And that is, when Mr. Hatfield asked him about that very unusual dream that Mitch Whidden had, he says, Yes, in fact, I had that. Remember the dream was about Mitch thinking that -- dreaming that a man had

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molested some little girl, I believe he said. And there was more to it, but you take your own memories of that. But it affected him a great deal. It woke him up. He was very upset about it. Didn't sleep for the rest of the night.

How does Mr. Hatfield know about that? He knows about it because, in fact, Mitch Whidden did talk to Ronnie Kimble about that dream. And he talked to him about that dream that night when they were upstairs. And you can almost see -- it's almost as if we can go back and reconstruct everything, because they started talking about the Bible. There was some talk of the Apocrypha. And the Bible is literally littered with dream interpretation. There are all sorts of talk about how dreams foretell the future. How they foretell the personalities or sort of the biography of people. And  we all know that. And I'm sure you-all know it better than I do.

But you can almost see how the conversation goes from the Apocrypha to dreams, and the logical impression is in fact Ronnie makes what Mitch interprets to be this very damaging admission. That, on top of what Mitch

already believes, which is Ronnie is guilty of murder. That belief that he formed way back then when he was still at Camp LeJeune.

2782

Now, I'd like to just sort of ask you a question. Mitch's testimony about the actual events that Ronnie supposedly told him in confession to him about Patricia's death simply lacks detail. And when it did, when it did supply detail, it was wrong. You will recall what Mitch said that Ronnie told him. He said Ronnie told him that he didn't know where the gun was.

Well, think about that statement for a second. Clearly, all the evidence in this case shows that that's the murder weapon right there. I'm not going to dispute that. Mr. Hatfield is not going to dispute that. The question is who used it. But that was virtually common knowledge in this case. And why would Ronnie Kimble have told him -- if he was going to confess to murder, why does he tell him something that's simply not true? I don't know where the murder weapon is.

Of course, if Ronnie had done it, he would know exactly where the murder weapon was. In fact, most of Julian probably knew where the murder weapon was. It was found in the house. And that was the murder weapon.

So, you see, Mitch doesn't get it right. Ronnie never said that to him. He supplied that detail himself to justify what he was saying to you.

Now, let's look at the February 3rd statement that Mitch Whidden gave to all of these people. This is

2783

it right here. State's Exhibit No. 130. Very recognizable because it's blue. And this is the one that he gave at the lawyer's offices in Lynchburg on February 3rd, not long after Ronnie had supposedly confessed to him up there in the upstairs of the apartment and very shortly after he had gone down to Camp LeJeune.

Now, let's talk about just some of the things that Mitch says in there that don't square with what he told you on the witness stand.

Now, he says -- in the February 3rd statement, he says that when I went down to see Ronnie at Camp LeJeune, he says, I told him to give me a call. And it's right here in this statement. I won't read it word for word, but it's in there. I told -- I told Ronnie to give me a call if he needed to talk to me further.

Remember what he said on the witness stand when Mr. Hatfield asked him about that? He denied it. Oh, no. I never told him that when I went down to Camp LeJeune.

Why does he deny it? Because it shows that he didn't go down there -- well, it shows, first of all, it's inconsistent with Mitch's whole explanation, which was that he was afraid of Ronnie, and he was going down there to get Ronnie to turn himself in. It's

2784

inconsistent with that. You don't tell somebody, Give me a call, if you're concerned.

In fact, remember what he said then -- and look at the detail in this statement. It's not -- it's not like just it was a mistake on the part of Agent Pendergrass. He told you he was the only one taking notes and that was his only job. There's detail in there too. Because Mitch claims that Ronnie says, No, I can't -- I can't give you a call because my phone is bugged. He puts this kind of detail in. That's the kind of corroborating detail that shows you that what he said on February 3rd, doesn't square with what he told you on the witness stand. And that's important because he can't get his story straight. Because now what he's telling you on the witness stand, what he said earlier, doesn't square. It doesn't add up. You don't have this fear element.

And before I forget it, one of the first things that jumps out at me when we're talking about what happened when Mitch Whidden went down to see Ronnie Kimble at Camp LeJeune, remember what Mitch's response was? Mitch said that when he came down and he basically confronted Ronnie down there at Camp LeJeune, and Ronnie said to him, Well, it was a -- it must have been a dream, because I don't remember it now.

2785

And what's significant about that, ladies and gentlemen of the jury? It's significant because Mitch doesn't confront Ronnie at that point. I mean, if you believe Mitch's testimony and if he's telling you the truth, I submit to you that the first thing he would have said to Ronnie Kimble at that time was, You weren't telling me about some dream up there in Lynchburg. You were telling me -- you admitted to me that you murdered your sister-in-law. You told me that flat out. We weren't talking about some sort of dream.

Mitch doesn't say that. Remember? Mitch says, Well, you'll know it's not a dream if your brother pays you some money.

Now, why would he say that? Why would he give Ronnie that response if, in fact, there wasn't a dream component to this whole thing? And why does he go down there? Why does he go down to Camp LeJeune to talk to Ronnie in the first place?

He says -- at one point, he says in his February 3rd statement -- of course, he denies it later on -- he went down there to get Ronnie to turn himself in. But in the February 3rd statement, he says, I went down there to try to talk him out of committing suicide. I was concerned that he was going to commit suicide. Well, he can't get his story straight.

2786

But I submit to you, ladies and gentlemen of the jury, he went down there to nail this thing down in his own mind. Was Ronnie talking about a dream or was he telling him the truth? Or was he telling him fact? And he went down there one last time to confirm it. And even though Ronnie doesn't confirm it, even by Mitch Whidden's testimony, Mitch has still made this moral commitment, this moral judgment, and it doesn't make any difference.

Now, I want to just touch briefly on it because I know Mr. Panosh is going to mention it again. You heard the testimony of Jerry Falwell and Mitch's wife. Dr. Falwell comes in here. Of course, he has that marvelous charismatic presence. That beautiful voice. And I just ask you to remember this: Jerry Falwell doesn't have any independent knowledge of anything that happened in this case. All he is giving you is what Mitch Whidden related to him. And just remember that when you think about it -- about him.

And basically the same thing is true of Mitch Whidden's wife Debra. She was very emotional. She doesn't have any independent knowledge of anything that's happened in this case with the exception of what she told you -- what she claimed had transpired at dinner or on the way back home. She gets everything

2787

she's gotten in this case from Mitch Whidden.

And there are other witnesses that fall in that category. You'll remember Ms. Cato Jackson. She's the one that works down there at Camp LeJeune. I believe she was Navy personnel. But at any rate, she's in the military. And she told you that what Ronnie Kimble had said that time in Natalie Kelly's office was that he was the last person to see Patricia Kimble alive.

Well, I'm going to tell you something, ladies and gentlemen of the jury, there's only one person in this courtroom who has ever made that statement that Ronnie Kimble was the last one to see Patricia Kimble alive. And he sits right over here: Detective Jim Church. And he was the one who went down there to Camp LeJeune and sowed those poisonous seeds to reap this rotten fruit. Because you heard the testimony of Natalie Kelly. And she told you that statement didn't come from Ronnie Kimble.

And if you think about it just for a second, ladies and gentlemen of the jury, that is an admission of guilt. Pure and simple. And why in the world would Ronnie Kimble be running around Camp LeJeune -- it's a stretch to believe he goes up there and confesses to Mitch Whidden, but why in the world would he be running around Camp LeJeune saying, I'm the last person to see

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my sister-in-law alive, because that says right there, I'm the one who killed her. He never said that.

You heard Natalie Kelly set the record straight on that. She told you Detective Church was the one that told that to her at the very end of the interview with her. He was trying to sow those poisonous seeds. And this is what you get when you do that. And it's rotten. Because you get somebody like Ms. Jackson who doesn't know any better, who's allowed after a while to come back, and what she thinks she heard, and she gets up there and tells that from the witness stand. But that is nothing more than the rotten fruit that Detective Church has reaped in this case.

And you'll remember Natalie Kelly telling you about all the other things. And thank God, ladies and gentlemen of the jury, she had the foresight, or maybe it's just luck, to take her husband's advice and write this stuff down. Shortly after the interview, she wrote down what she had told Detective Church and the other investigators in this case. And you'll remember those things. You'll remember how, among other things, that they said that Ronnie had -- she had told them that Ronnie had shot -- that the victim had been shot in the head in this case. She never said that. And that's important because that was -- that was not common

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knowledge. That was knowledge only to the police in this case. And rest assured if Ms. Kelly had not had the foresight to take those notes and be sure of that, that you would have -- and she could have been twisted around and made to say what Mr. Church wanted her to say, you would have heard some testimony from her, well, yeah, I think Ronnie Kimble said that the victim was shot in the head in this case. And that would have been important, because that knowledge was discerned only to the police officers in this case. And there were other comments that they mangled and twisted around. There was something about the tool chest. And you'll recall how she set the record straight on all of that.

Now, I don't make any apologies for Ronnie Kimble. I'm going to tell you right now he's not perfect. He got up on that witness stand, and he spent basically a day and a half up there. And his life was scrutinized in detail that I think few of our lives will ever be, at least in a public place like that. And just like Ronnie Kimble, our alibi in this case is not perfect, and I'm going to be the first one to admit it to you. But let me ask you this, ladies and gentlemen of the jury: If Ronnie Kimble was going to make up an alibi, was just going to make it up out of whole cloth to cover himself, don't you think he could have done a

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little bit better job? I mean how hard would it have been for James Stump to come in here, for Judy Stump, Kim Kimble to come in here and lie for the one that they love --

MR. PANOSH: Objection.

THE COURT: Sustained.

MR. LLOYD: -- to lie for Ronnie Kimble? MR. PANOSH: Ask that be stricken.

THE COURT: Disregard it, members of the jury.

MR. LLOYD: All that James Stump has to say, ladies and gentlemen of the jury, if you want a perfect alibi in this case, instead of seeing Ronnie Kimble at ten minutes till five, as he testified that he did, all he's got to say to you is well -‑

MR. PANOSH: We object to this argument. THE COURT: Sustained.

MR. LLOYD: Because ladies and gentlemen of the jury, we didn't present a perfect alibi. And James Stump told you the truth, and Kim Kimble told you the truth, and Judy Stump told you the truth, and Ronnie Kimble told you the truth. And it's not perfect. I'll be the first one to admit it. But don't you think that given the fact that you saw Ronnie Kimble -- and you saw how emotional he was on that stand. You saw the first day when he started talking about minor things such as

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when his family moved when he was ten years old, when his dad got the call to the ministry, he got all choked up and teary.

Now, do you honestly think that Ronnie Kimble could have shot his sister-in-law in the head at 4 or 4:15 or 4:30, or whatever it's supposed to be, driven back to his house, taken off his shirt and started

putting up underpinning when James Stump shows up and not show one scintilla of emotion about all those terrible things that he had done? Do you think he's that kind of individual? You saw him on the stand. You had a chance to judge him.

I submit to you there's -- there's just simply no way. And you heard James Stump's testimony about that.

Now, I ask you to think about something else when you're considering the fact that our alibi isn't perfect here. If you had a holiday on Columbus Day, some holiday that's not observed by everyone, and your spouse was basically at work, do you think you could account for your total whereabouts for the entire day? I submit to you that's consistent with what really happened with the truth. No, Ronnie -- we didn't try to enter a whole bunch of witnesses here to tell you all about that. But Ronnie told you about it. He told you

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where it was. You had a chance to judge him. You had a chance to judge his credibility in this case.

And before I leave this subject, let me say to you once again, in fact, we have presented evidence of alibi in this case. You've heard the testimony of Ronnie Kimble. You've heard the testimony of James Stump and Judy and his wife Kim. But that doesn't relieve the State of North Carolina of their burden in this case. They still have the burden. Even though we presented evidence of where Ronnie was throughout the course of the day, they still have the burden to show you, to prove to you beyond a reasonable doubt that Ronnie was where they say he was at the time they say he was. And Judge Cornelius will instruct you on that.

Now, I submit to you, ladies and gentlemen o the jury, Ronnie is not perfect. And our defense in this case is not perfect. But you've had a chance to judge him. You've had a chance to judge our presentation here. And Ronnie is innocent. And we have shown through our defense that Ronnie is innocent.

Now, logically, there are four possible scenarios here. Just strip it down and look at the facts of this case and consider it logically. And that is, number one, that Ted killed Patricia himself; number two, that Ted got somebody else other than Ronnie to

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kill Patricia; number three, that Patricia came into the house and surprised someone who was burglarizing it and was killed as a result of that; and number four, that Ted hired Ronnie to kill Patricia and in fact Ronnie did it.

Now, the most likely of those scenarios, I submit to you, is that Ted killed Patricia himself. He certainly had the means. Mr. Panosh has expended a week proving that he had the motive. Mr. Hatfield will talk to you at greater length. And I submit the critical factor here is that he had the opportunity, and in fact he did have the opportunity. That he could have easily left Lyles, driven to Patricia's house, to his own house, and killed her there, and come back to Lyles, closed up shop, and gone on to his job at Precision Fabrics.

And one of the things that I want you to consider in this whole thing, go back to the fact that Ted established the job at Precision Fabrics for one reason alone. It was not to make extra money. We all know that. It was to establish his alibi. But that alibi doesn't hold until six o'clock only. And so something happened. Things didn't go as Ted wanted them to go. And, in fact, he had to carry out the murder here.

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Now, I won't say anything about that anymore. The one thing that I would like to talk to you about is Rodney Woodberry. And I'm just going to touch briefly on this. I see my time is running short.

One thing, Mr. Woodberry -- and you'll see it in this affidavit here, unless you believe that everything Mr. Woodberry said in his affidavit. He says in here that he left -- on or about August 4, 1995, I ended my full-time employment with Lyles Building Materials.

So, in fact, it wasn't in June, as Mr. Panosh told you. At least if you believe that affidavit. He left in August.

And I want you to think, ladies and gentlemen of the jury, I want you to think about the evidence we've presented on Rodney Woodberry. Look at that affidavit.- For someone who really didn't have anything to do with Patricia's death, at least according to him, he writes in here -- the affidavit is typed out beforehand, but on the day that he obviously signed it, and he initials it, he writes in here, On the day of Patricia Kimble's death, October 9, 1995, I was at my residence in Graham. No. 24: At approximately 6:30 p.m., I went to Carolina Careers on Maple Avenue.

Well, for someone who doesn't have anything at all to do with Patricia's death, who really doesn't know

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anything about it, he sure goes to a lot of trouble to establish his alibi. Even way back then when that affidavit was done. And that was done months and months before -- I believe, if I'm not mistaken, it was done in March of 1996, long before he ever came in and testified in this case.

And think about what Laura Shepard told you. That Rodney Woodberry woke her up, crying, early in the morning. She's got the details. About 5 a.m. That Woodberry was crying. That he said, I've done something that I may get the death penalty for. And remember there's this whole conversation -- this is not something that Laura Shepard made up about a whole cloth. He asked her would you come to visit me in prison. She tells him no. I don't imagine he expected that response. But he holds out the final carrot to her: Well, I'm going to be coming into some money. Even though I'm in prison, I'm going to be coming into some money.

And I ask you to think about that. Doesn't that have the ring of truth? That whole scenario? All those details? Think about that when you consider this case.

Now, Mr. Panosh's witnesses almost -- he talks about establishing an alibi for Rodney Woodberry. Well, correct me if I'm wrong, ladies and gentlemen of the

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jury, and by all means, you take your recollection of the evidence, but I remember -- one of the witnesses that I remember that came in here for Rodney Woodberry to establish his alibi was Mrs. Heath, his neighbor. And after she got through testifying on direct examination, I thought her testimony was basically yes, Rodney Woodberry was with me that whole afternoon of October 9th. But you remember when I cross-examined her, she said no, no, that's not true. I didn't say that. I said, Well, he came out and he normally met his children, at whatever time it was. 3 o'clock, or whatever. But I'm not saying that I saw him on that afternoon.

So now you've got the alibi for Rodney Woodberry is his girlfriend. I've even forgotten what her name was. But you'll remember the first words out of Rodney Woodberry's mouth virtually was that Laura Shepard is a liar. Just not true. And you remember in the course of that, he told you about well, she made up this pregnancy. And it had been such an elaborate ruse with her, that she even made me go to the doctor for her pregnancy.

Now, on the surface of that statement, that sounds a little bit odd to me in the first place. Why would the father have to go with the mother to the

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doctor? The fact of the matter is it was exactly what Laura Shepard told you. Rodney Woodberry had given her a sexually-transmitted disease, and that's why she made him go to the doctor. And they can -- they can parade every single disgruntled family member for Rodney Woodberry up here to say that Laura Shepard is not worthy of your belief just as Rodney Shepard's girlfriend did -- I mean Rodney Woodberry's girlfriend did. But it doesn't alter the fact that she got up there and she gave you sufficient corroborating details to show you that she was telling the truth.

And if Rodney Woodberry wasn't Ted's man in this case, certainly there were calls. There were a lot of calls. Now, Mr. Panosh has already implied to you he was looking for him; he couldn't find him. But he was looking for him after Patricia's death. He needed to clear up some things. There's no evidence that he couldn't find him at all. He just came by looking for him. Maybe he had seen him on other occasions. In fact, maybe Rodney Woodberry was not the triggerman in this case. Maybe, in fact, he got someone for Ted Kimble, and that's his significance in this case.

Now, as I said, Mr. Hatfield is going to cover some of this material. I'm not going to dwell on it. I'm not going to dwell further on that. But I do want

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to talk to you for just a moment -- I told you where I stand on this. I do want to talk to you about Patricia surprising someone. Surprising a burglar, if you will. Because let's just look at what happens here.

First of all, Patricia comes home. Now,

Mr. Church and Mr. Panosh want you to believe that it's 4:00 or shortly thereafter. The fact of the matter is, ladies and gentlemen of the jury, we don't know when it was. And we'll just never know that fact. But she comes back. Now, she leaves her keys and her purse in the car. Leaves the key in the ignition. Leaves her purse in the car.

And Mr. Panosh made a big to-do about the fact that the burglar did not get her money out of the purse. I submit to you there's a good reason for that. Because the burglar was surprised in what he was doing. And then he had to commit this terrible crime. And once he did that, burglary was the furthest thing from his mind. Once he did that, once he killed her, then he's got -­he knows he's got to get out of there. He's got to set fire to this place and get the hell out of there. He's not worried about sticking around to get a few little odds and ends that he can on this break-in. He's got something much more serious to deal with. He's got murder to deal with.

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But at any rate, let's go back to Patricia. She left her keys -- key in the car, left her purse in the car. Now, what does that show? Maybe she's just coming in, and she's getting ready to go out again. We don't know. But she does take her own keys, her own house keys up to the door. And maybe it's at that time that she realizes that the dead bolt is unlocked. And we know she took her own keys because they were found inside on the kitchen floor. She thinks to herself, Well, I thought I locked the dead bolt this morning, but maybe I didn't. And she's concerned. But she's not really worried. She doesn't really suspect a break-in is taking place. But she's got some concerns. This has just sort of raised a little red flag. So to assure herself, she goes over and she gets this knife. Comes in, sets her keys down, gets this knife right here. She walks down the hallway, or whatever it is, with the knife just to assure herself. She doesn't really think there's going to be any problem but, you know, just because I thought that I locked the door, the dead bolt. I've forgotten to lock it before and this is probably the same thing, but I'll just pick up this knife and that will protect me. She goes down the hall. Maybe -­as Mr. Panosh has already suggested to you, maybe the shot was fired from the bathroom. We don't know. Maybe

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she confronted the burglar.

Because you'll remember the testimony of the medical examiner in this case was that you couldn't tell what the angle of the shot was. It all had to do with how her head was. And so we don't know. But at any rate, she gets shot. She's there in the hall. And the knife falls down and she falls on top of it. Burglar doesn't even notice it. He grabs the gasoline that's handy out there. He pours gas on the body, he makes that trail that you've seen up there, he sets fire to it, and he just leaves pronto.

Now, as far as this looking like a staged break-in and why wasn't there -- wasn't there -- weren't there items pulled out in the other part of the house, I submit to you that it would be perfectly logical for the burglar to go to the back bedrooms and start back there.

And why didn't he take the things in the drawers and everything?

Well, I submit to you because he was interrupted. He didn't get to do what he wanted to do. Because Patricia came back. And that's why he had to leave. And he had to leave it all then. I mean he wasn't -- he wasn't -- the last thing on his mind was getting loot out of this job. What he wanted to do was

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get away from here as fast as he could.

Now, finally, Mr. Panosh will argue again to you after Mr. Hatfield has argued. We will have no chance to give you any further argument after that. And it will be your duty at that time to scrutinize the evidence, to scrutinize the arguments, to consider everything. And I ask only of you this: That for every argument Mr. Panosh puts forth that you ask yourself am I fully satisfied, am I entirely convinced, or does this evidence or this argument, the arguments made by me or Mr. Hatfield, raise a reasonable doubt in this case?

If there's something that makes you hesitate, some evidence, some lack of evidence that makes you pause or makes you hesitate, that raises a reasonable doubt. And do not -- do not -- let Mr. Church,

Mr. Panosh, whose role in this case is to prosecute, do not let them usurp your duty in this case. You are the judges in this case. You are the jury in this case.

Now, each of you promised me in jury selection that if the State failed to convince you beyond a reasonable doubt, you would come back into this courtroom and announce your verdict of not guilty. And I now hold you to that oath and ask you to do just that.

Thank you.

THE COURT: Again, please remember, ladies and

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gentlemen of the jury, that the arguments of the two attorneys that you've heard are not evidence in the case. They're merely contentions of things the attorneys contend you should discuss and deliberate once you begin deliberations.

We're going to take our luncheon recess at this point. You'll need to be back at 2:00. Please report back to the jury room. Be very careful that you remember the Court's instructions. Do not discuss this case among yourselves, with your family or friends, or allow anyone to talk to you about the case or talk about the case in your presence. Do not read, listen, or watch any news media accounts of the trial, if such will be available to you. Please remember the instructions on your responsibility sheet.

Have a nice lunch. I'll see you at two. (Jury absent)

THE COURT: As soon as an officer notifies the Court that they've cleared the elevators, I'll let you take your lunch break also, but everyone remain seated until that happens.