THE COURT: Next witness, please.

MR. PANOSH: Ms. Cherry, please.

LINDA CHERRY, being first duly sworn, testified as follows during DIRECT EXAMINATION by MR. PANOSH:

Q    Would you state your name, please.

A    Linda Cherry.

MR. PANOSH: Your Honor, this witness's testimony would go to one of the motions in limine. I wanted to alert counsel.

THE COURT: All right, sir.

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MR. LLOYD: If that's the case, Your Honor, I think it would be appropriate that we find out what the witness would say outside the presence of the jury.

THE COURT: All right.

Members of the jury, if you'd step in the jury room, please.

(The jury left the courtroom at 2:14 p.m.)

THE COURT: All right, sir.

VOIR DIRE EXAMINATION by MR. PANOSH:

Q    Did you know Patricia Kimble prior to her death?

A    Yes.

Q    And what was the nature of your acquaintanceship?

A We were good friends from church. We were in the same Sunday school class, and became pretty close several months before the death.

Q    Okay. And shortly before her death, did you have conversations with her in regards to her marriage?

A    Yes, I did.

Q    Would you relate those to the Court, please.

THE COURT: Well, how soon in the relationship were they, Mr. Panosh?

Q    Would you -- could you tell when these conversations occurred.

A    Probably -- it was between two to three weeks before her death.

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Q    And was there one conversation or more than one?

A    There was more than one, but one really that more stood out to be what alarmed me.

Q    Would you tell the Court what you remember of those conversations.

A    She had called. We had spoke on the phone for quite a long time. As anybody that knows Patricia knows, she loves to speak on the phone. She was very concerned about the state of her marriage. And we talked at some length. And she was very emotional on the phone. And she stated that she didn't understand what was happening in their marriage. She felt that Ted didn't want to spend time with her anymore. And she had made the statement to me that she had asked him one night, "Well, Ted, why did you even marry me?" And his comment was, "So that I could share a bed with you."

Q    Did she give you other specific examples of what was concerning her about her marriage?

A    Yes. She had stated that he would -- that he had been acting differently, that he -- he didn't want to spend time anymore, that there was -- the time that he spent with her was with other couples and other people, as well, that she really missed having one-on-one with him, that even when they would go to the lake, it was with other people, she couldn't really have time with just him. And she didn't understand why he didn't want to spend time with her

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anymore.

She stated that his attitudes and mannerisms had changed, that he -- that there were times where he would get agitated very easily. She commented that he had used language that she had not heard him use, mentioning profanity. Things of that nature.

Q    Did she make specific references to their financial condition?

A    She stated -- she stated that their finances were such that he did not need a second job. She made it very clear to me that she absolutely did not like the fact that he had a second job. One of which, it took away time from their time together, and that he -- that every time she wanted -­she had asked him to quit, and he said, "Well, no. I'm making a lot of extra money, and this is good. I want this extra money." And she -- to her, she didn't understand that, because Patricia was the kind of person, she was content with what God had already blessed her with, and she didn't seem -- she didn't feel that he was.

Q    Did she make specific reference to a motorcycle?

A    She said that she absolutely didn't want him to have one, and that he really wanted one. But that -- she really only mentioned that on that one occasion.

Q    Did she make references to other expenditures that she felt were unnecessary or inappropriate?

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A    She mentioned the Jeep that had been purchased. She said they already had automobiles and didn't understand why they needed another one. There again, she didn't say that she didn't enjoy that, she just -- there again, she was content with what she had then, and she just didn't understand why he wanted to have more and have more.

She also made reference to the boat, and she did very much enjoy the boat that they had. She enjoyed that very much. But at the same time, again, it was a -- it was not a necessity, and it took away time that she could have with him alone. Because the boat brought about -- she commented that they were at the lake constantly, which she again loved, but that there were so many other people around, that she just didn't have any time with him.

Q    When she had this conversation with you about the boat, what was her demeanor or attitude?

A    She wasn't overly upset about the boat.

Q    Did she speak to you in regard to the fact that her home had been broken into?

A    Yeah, she had mentioned that.

Q    What, if anything, did she say in regard to that?

A    Just basically that it did concern her, and that it scared her. But she didn't go into any details or any length about that.

Q    Did she indicate what, if any, action had been taken in

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regard to the breaking and entries?

A    I'm sorry. Excuse me?

Q    Did she indicate what they had done after the breaking and entries, in that regard?

A    She had stated that Ted had installed this major big dead bolt that nobody could break into. But aside from that, that was it. That was all she said to me personally.

Q    Did you have an occasion to talk to Ted Kimble after Patricia's death?

A    A couple of -- very briefly.

Q    Okay. In regard -- do you recall a specific conversation at the Rock-Ola?

A    Yes.

Q    Would you tell the Court about that.

A    The -- it was pretty much a tradition in our Sunday school class that generally on the last Sunday night of the month, sometimes it was the Sunday night before that, we would go out to eat. Most of the time, it was Rock-Ola. And at that -- at that point, it was Rock-Ola. It was -- basically what we did is, we celebrated the birthdays of the people in that class who had a birthday that month.

And it was two to three weeks after her death when we had this particular dinner, and he came. He sat right beside my husband, which was sitting to my right. And he was very openly talking about his plans for building another

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house. My husband is a designer draftsman, and he start--he -- Ted took a Rock-Ola napkin, turned it over on the back, and started drawing a sketch of this rather large two-story house, of what he wanted. And he told my husband that he wanted -- he might call him sometime to help him -- help him with the design, which he in fact did not call. He did not follow up with that.

But I felt it was very strange that he was drawing -­you know, why this person who was now single would need such a grand home. I mean, he -- it was -- he was talking about, he -- the different features that he wanted and so forth. And it was just odd for that to take place so soon after his wife's death.

MR. PANOSH: Your Honor, that would be the substance of her testimony. Thank you.

THE COURT: Do you wish to be heard, or do you wish --

MR. LLOYD: Yes, Your Honor.

THE COURT: -- to examine the witness?

MR. LLOYD: Well, I don't know that examination of the witness is necessary in this case, Your Honor. I think to save time, I'll just forgo that. I think we'll accept what she said at face value.

I note that throughout, the only thing the witness has said concerning Patricia Kimble's then existing mental

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or emotional condition is, that she said at some point -­well, she said she wasn't overly upset. My notes don't indicate outside of that, that there was anything. Now, maybe there was something. But the rest of this concerns this phone conversation, where Patricia is relating concerns, beliefs she has about why her marriage is not to her satisfaction at this time.

And once again, Judge Cornelius, I have a very hard time, first of all, seeing how that is relevant to Ronnie Kimble's case. It is obviously hearsay. The fact that she feels like her marriage is strained or is not going the way she wants it, basically what the witness has related is that Ted is not spending enough time with her.

This comment about -- Ted's comment about "So I could share a bed with you," in response to her question, "Well, why did you marry me?" Judge, that has absolutely nothing to do with any alleged conspiracy in this case, and it is simply not relevant in Ronnie Kimble's case. The only thing it does is show, if Ted -- if the jury believes that Ted made the statement, he's a cad or a bad individual, a bad person, but it doesn't go to show any sort of conspiracy between Ted and Ronnie Kimble to kill Patricia Kimble.

I just think the relevancy here is tenuous at best. I mean, even if you accept relevancy as a fact having any tendency to prove the matter at issue, it's got to fail

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under a 403 test, Your Honor. I mean, how is that statement -- if we look at it from the co-conspirator's exception, how is it in the course of and in the furtherance of the conspiracy? It just fails on all grounds, Judge. It just doesn't work.

And the rest of the statements that Patricia is supposed to have made in all these -- in this phone conversation is basically just talking about specifically what the rule itself, the rule on then existing mental or emotional condition, rules out. It's a recitation basically about her beliefs. It's statements about her beliefs. And the rule is clear on that. It says that's not admissible.

So I just -- I think once again, it is -- what it boils down to is a character smear on Ted Kimble that somehow Mr. Panosh hopes to -- will rub off on our client, because he's Ted Kimble's brother. And that's the only relevancy that I can see to any of this, Your Honor. I just -- I don't think any of it qualifies.

THE COURT: All right. How is it relevant to the conspiracy theory, Mr. Panosh?

MR. PANOSH: Your Honor, we don't submit that it's relevant to the conspiracy theory. This is -- these are statements of the deceased. And we're relying upon 803(3), the exception providing for statements of declarant's then existing state of mind, and as stated in State v.

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Westbrooks, at --

THE COURT: I'll grant you that's to emotional state or feelings about her marriage, but how in the world does it fit in about building a new home?

MR. PANOSH: Well, I put that in, in case Your Honor wanted to exclude it, and if that's your ruling, I don't have any problem with that. But it is certainly inconsistent with a person who is grieving and looking to live by himself.

I think that the statements of the declarant -- or the deceased are admissible under the Westbrooks decision. In that case, they said that the defendant contended that statements were facts, rather than a state of mind, and the defendant contends that the state of mind is not relevant under the Hardy test, which I believe is the case that counsel has cited. And they went on to hold, the victim's statement to his sister that he was depressed, lonely and upset about his finances were statements indicating his mental condition. Similarly, the victim's statements to his father about feelings toward his marriage and to the defendant expressed his state of mind.

They went on to cite Stager. And in Stager, they introduced evidence of telephone bills and other specific things that were concerning the victim. The victim's statements about telephone calls and bills from creditors he

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knew nothing about, and the defendant's role in his financial situation were admissible.

And then they -- lastly, they go on and say, in addition, statements concerning the status of the marriage between the victim and defendant were admissible to contradict the defendant's contention at trial that she and the victim had no marital problems.

Your Honor, I think you've seen from cross-examination that the defense is trying to paint this as a harmonious marriage, and I would submit that it is admissible both as statements of the deceased under Westbrooks and also to rebut their contention that it is -­that it's a harmonious marriage. If you'd like --

THE COURT: I've got Westbrooks.

MR. PANOSH: All right.

THE COURT: I tried the case.

MR. LLOYD: Your Honor, if I can just address the part about rebutting that it's a harmonious marriage.

THE COURT: Well, I think that's a rule of evidence, if it was -- if you do present evidence that it was --

MR. LLOYD: Well, we haven't presented evidence.

THE COURT: That's what I'm saying. It's not –

MR. LLOYD: Thank you --

THE COURT: -- relevant at this point.

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MR. LLOYD: -- Your Honor.

MR. PANOSH: Your Honor, I know that they have. Through at least two witnesses on cross-examination, they brought out that it was a harmonious marriage, that these two people were touching each other, to the point where it was embarrassing to those witnesses, that it was a very affectionate marriage. And since they brought it out on cross-examination, we should be able to bring it out at this point and not have to wait for rebuttal. Thank you.

THE COURT: Well --

MR. LLOYD: Your Honor, I would point out once again, we didn't call those witnesses. We were merely seeking to cross-examine them, based on statements they made on direct examination.

THE COURT: The Court's going to rule that certain statements made to this witness will be admissible under the 802 -- 803 hearsay rule, under the number 3, existing mental or emotional state, that she may testify as to the victim's emotional state or her feelings or her perceptions about the marriage, but that she may not testify as to "Why did you marry me?" or any testimony about him wanting to build a new house after the death. The Court will exclude those. Allow the others. Will find that their probative value would outweigh any prejudicial aspect it might have and -- again, to this defendant. Some of these may be relevant to the

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trial of Ted Kimble, but not as to this defendant.

MR. PANOSH: May I approach the witness and explain your ruling, so that we won't have a --

THE COURT: Yes, you may do that.

MR. HATFIELD: Your Honor, I think you've explained it.

THE COURT: He can talk to the witness and –

MR. HATFIELD: While she's on the stand?

MR. PANOSH: I'll do it in open court, if that helps counsel.

In your answers, would you please not refer to the fact that she stated to you that she wanted -- that he married her only to share her bed. And would you not -­please not refer to the house plans that occurred at the Rock-Ola.

THE WITNESS: All right.

THE COURT: Bring them back.

(The jury entered the courtroom at 2:32 p.m.)

THE COURT: You may continue with the examination, Mr. Panosh.

CONTINUED DIRECT EXAMINATION by MR. PANOSH:

Q    Ms. Cherry, would you please -- you indicated that you knew Patricia Kimble; is that correct?

A    Yes.

Q    How did you know Patricia?

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A    I knew her from South Elm Street Baptist Church. We were in the same Sunday school class. We had become very close several months before her death.

Q    And so, you knew her in the period of time basically 1995 up to her death?

A    Well, prior -- we basically met each -- we met each other years before that, but we became close -- well, we became close the summer of -- we were at a beach retreat and became very close several months before her death. We were friends before that, but we became very close friends several months before her death.

Q    And in the nature of your friendship, did she call you from time to time and discuss personal matters?

A    Yes. Often.

Q    Drawing your attention then to the two or three weeks preceding her death, did she contact you in reference -- and - speak to you on the telephone?

A    Yes, she did.

Q    And what, if anything, did she tell you in reference to the status of her marriage at that time?

MR. LLOYD: Object for the record, Your Honor.

THE COURT: Overruled.

Proceed.

A    She was very concerned about the state of her marriage and very concerned of the lack of time that Ted wanted to

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spend with her, private time with just the two of them, one-on-one time. Was very concerned about things that she had seen change in him, attitude change, temperament change, being very agitated and very easily testy, as you could say, started changing -- his language started changing, started using words such as profanity that she had never heard him use before. And it really concerned her that she felt her husband was basically changing. And she didn't understand that -- you know, he was not -- changing in a way that she didn't know -- I don't know what word that -- that she was -- he was not what he used to be.

Q    Did she make statements to you in regard to their financial condition?

A    Yes.

Q    What did she tell you?

A    She felt that financially, they were fine, and they did not -- she was very adamant about the second job that he was currently working. She did not want him working a second job. They did -- she told me specifically they didn't need the extra money. They -- she told me that she wanted him home at night, that she wanted to spend time with him, as any newlywed would, but that he was determined he wanted to make that extra money. And he wanted that second -- he wanted to keep that second job, you know, regardless of the fact that he wasn't with his wife, he wanted to keep that

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second job, to make that money.

Q    Did she discuss with you plans on the part of Theodore Kimble to buy a motorcycle?

A    She did.

Q    What did she say?

A    She just stated very adamantly that she did not want him to own a motorcycle, that she -- I mean, basically because it was dangerous and because it was just absolutely not a necessity.

Q    And at the conclusion of that conversation, what, if anything, did she ask you to do?

A    I'm sorry? Excuse me?

Q    At the conclusion of that conversation, what did she ask you to do?

A    What did she ask me to do?

Q    Uh-huh.

A    I don't understand the question.

Q    Did there come a time when she asked you to pray for her marriage?

A    Oh, yes.

MR. LLOYD: Well, objection --

A    I thought you --

MR. LLOYD: -- Your Honor.

A    -- meant actions. I'm sorry.

THE COURT: Sustained.

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MR. LLOYD: Ask the jury to disregard the question and any answer.

THE COURT: Disregard the question, members of the jury.

Q    In the course of your conversations with her prior to her death, did she discuss the breaking and entries that occurred at her home?

A    Yes, she did.

Q    What did she tell you?

A    She was very concerned about that, but that Ted had purchased a, she described it as just a huge dead bolt that nobody could break into.

Q    Did she make any further statements to you in that regard?

A    No, sir. No, sir.

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

MR. PANOSH: No further questions. Thank you, ma'am.

THE COURT: Do you wish to cross-examine the witness?

MR. HATFIELD: No, thank you, Your Honor.

THE COURT: Step down, ma'am.

(The witness left the witness stand.)

THE COURT: You may stand and stretch, if you'd

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like, members of the jury.