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Q    Did you have subsequent contact with Theodore Kimble? A Yes, sir. I had a message when I got home that Mr. Kimble had called me, and wanted me to call him if I got in before 5:30. But it was after 5:30 when I got home. But I called him the next morning. He was interested in buying life insurance. I was asked, "How much would $300,000 --"

MR. LLOYD: Well, objection, Your Honor.

THE COURT: Sustained at this point.

Q    This is a conversation you had with Theodore Kimble; is that right?

A    Yes, sir.

Q    And this was on the telephone?

A    Yes, sir.

Q    And as a result of your conversation with Theodore Kimble, did you set up an appointment?

A    Yes, sir.

Q    And where was that appointment?

A    The appointment was maybe the next day. I think it was the next day.

Q    Again, was this at Lyles?

A    Yes, sir. As a matter of fact, I offered to come to their home, and I was told that it would be better to do -­MR. LLOYD: Well, objection.

THE COURT: Sustained.

Q    As a result of the conversation you had with Theodore

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Kimble, you did not go to their home, you went to Lyles; is that correct?

A    Yes, sir.

Q    And when you went to Lyles, who did you meet with?

A    Ted Kimble.

Q    And what was discussed?

A    Life insurance for Patricia Kimble first, in the amount of $300,000.

MR. LLOYD: Well, objection, Your Honor. This is just a clever way of getting around hearsay and

confrontation.

THE COURT: Sustained.

Q    What was the next thing that was discussed?

A    The next thing was $200,000.

MR. LLOYD: Well, objection, Your Honor. It's the same thing over and over again.

THE COURT: Sustained.

MR. PANOSH: Your Honor, we'd like to be heard briefly.

THE COURT: Members of the jury, step in the jury room a moment, please.

(The jury left the courtroom at 3:40 p.m.)

THE COURT: All right, sir.

MR. PANOSH: Your Honor, we would submit that these are hearsay statements of Ted Kimble that fall under

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803(1), present sense impression. These are statements describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. These are statements made to the life insurance agent, while he is discussing the policy and statements that -- in response to what Mr. Jarrell said to him.

In addition to that, Your Honor, this falls under the exception of hearsay statements by a co-conspirator. We've established prima facie evidence, through the testimony of Mitch Whidden, that there was a conspiracy, that the conspiracy was between Ted and Ronnie, and the conspiracy was to get money. And this is statements of Ted Kimble in the course of that conspiracy and in furtherance of that conspiracy, in an attempt to set up the insurance money, which was going to be obtained as a result of her death.

You have to bear in mind, Your Honor, that this is on September the 12th through the 14th of '95, just a few weeks before she was killed.

THE COURT: Well, is Ted Kimble here, present?

MR. PANOSH: He is here, but whether or not he is available -‑

Is he in the courthouse?

THE BAILIFF: Yes, sir.

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MR. PANOSH: I believe he is. But whether or not he is available is not a requirement to the hearsay exception. If you look at Rule 801, the exception to the hearsay for conspirators, co-conspirators, falls under 801(D) and 801-- excuse me (E), and it has nothing to do whether he is available or not available.

THE COURT: Mr. Lloyd, do you wish to be heard? MR. LLOYD: Yes, sir, Your Honor.

First of all, Your Honor, if what Mr. Panosh says, in terms of present sense impression exception, is correct, that -- you could apply that to anything. What that exception talks about is, if you describe, for example, a wreck, just after it's happened, you are describing an event, when you have no motivation to lie. And that doesn't apply to this situation at all. It simply doesn't apply, Your Honor. I think -- and I'm not going to waste a bunch of time on that. I think it's obvious to everyone that it doesn't. Mr. Panosh is just grasping at straws, as far as that's concerned.

MR. PANOSH: Well, we would object, please.

MR. LLOYD: Well, I apologize for the reference to that. I just don't think it applies, Your Honor.

Insofar as the co-conspirator exception goes, first of all, Your Honor, as far as the jury is concerned, they've heard no evidence from Mitch Whidden. The

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conspiracy is not before the jury in this case. The evidence is not here in this situation.

Secondly, even assuming that if you -- if you put any validity in that, what Mr. Jarrell has testified to is that the first thing that -- the first contact he had with Ted Kimble was when Ted Kimble ordered dental insurance for both himself and his wife. Now -- and according to the testimony here, that was just a very short period of time before this. We've heard no evidence, at least not that's before the jury, Your Honor, that establishes any sort of conspiracy. You know, I guess Mr. Panosh is entitled to put on -- of course, he is entitled, if he has that evidence, to put it on later. I think at the very least -‑

THE COURT: Of course, we're taking this witness out of sequence, due to the fact that he has a --

MR. LLOYD: Well, I understand that, Your Honor. And --

THE COURT: With both the consent of -‑

MR. LLOYD: -- I think there's a latitude -‑

THE COURT: -- the State and the defense.

MR. LLOYD: I guess, is Your Honor giving some indication that if Mr. Panosh can prove up the conspiracy at some later point, then you would be inclined to admit these statements as the statements of a co-conspirator? If that's the case, if Your Honor is intending to do that, then I

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would request that you instructed the jury that these -- at this point, there's been no evidence of a conspiracy. And as far as the jury is concerned, I think even Mr. Panosh would have to concede that. And therefore, they are to consider these statements only in the event that Mr. Panosh proves to them beyond a reasonable doubt that a conspiracy exists at some later time.

My problem with that, Judge Cornelius, is, we're asking the jury to do a lot of mental gymnastics when we ask them to do something like that, and I just don't see how they can do it. I don't see how they can sort of compartmentalize in their minds, "Well, we've got to keep this stuff separate, until we hear later on some sort of proof." And I think at this point, it's mere conjecture that Mr. Panosh is going to establish some sort of proof. And we would ask that these statements of Ted Kimble not come in. I mean, he's certainly entitled to testify to the events surrounding the insurance, but to wholesale let in these statements is a whole different issue.

Finally -- and I'll try to make this brief, Judge Cornelius -- we still have the problem of confrontation. We still -- we don't get to cross-examine anybody about these statements that Ted Kimble made. He's not here. And I realize, I think the first thing out of Mr. Panosh's mouth is going to be that, well, you don't have a confrontation

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problem if they're basically rooted in some firmly-rooted hearsay exception. I just question, based on the evidence that we have before this jury now, whether or not that's the case, Your Honor. And I think quite simply at this point, they're not admissible.

THE COURT: Mr. Panosh -‑

MR. LLOYD: Thank you.

THE COURT: -- do you wish to be heard?

MR. PANOSH: Your Honor, it is not for the jury to determine whether there's been a prima facie case of conspiracy. It's for Your Honor to determine. Your Honor has heard that evidence. This is a ruling made by the Court, not by the jury. And if it becomes necessary, we have the transcript. We can pass that to the jury, and they can read it, if Your Honor feels that's necessary. But I think it's very clear that it is for Your Honor to make the-ruling and determine whether or not there has been a prima facie case and we've made it.

His statements about present sense impression are not the way I understand the law. What he's referring to is an excited utterance. It's true it needs a startling event for an excited utterance exception. But this is present sense impression. He is discussing an insurance policy with this man, and based upon his present sense impressions of that conversation, he is making statements. There is

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absolutely no motivation here for Ted Kimble to deceive this man or to say anything but the truth. He's talking about taking a life insurance policy on himself, a dental policy on himself, a dental policy on his wife, and a dental policy -- and a life insurance policy on his wife. And we just feel that it's clearly part of the conspiracy and it also falls within the present sense impression.

THE COURT: Objection's overruled. The Court will allow in the hearsay exception to a conspiracy.

Bring them back.

(The jury entered the courtroom at 3:49 p.m.)

THE COURT: You may proceed.

MR. LLOYD: Your Honor, if you'd just note my objection to it -‑

THE COURT: Okay. Noted.

MR. LLOYD: -- a continued line. Thank you, Your Honor.

CONTINUED DIRECT EXAMINATION by MR. PANOSH:

Q    Would you describe your conversation with Theodore Kimble in reference to the life insurance that he discussed with you.

A    Yes, sir. He was interested in taking out a policy on Patricia and also himself. First one he asked me about was one on Patricia. And he first asked for 300 -- about $300,000. I ran it on the computer, sitting in front of

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him, and told him what -- he was interested in the price, and I let him know what the price is. I was told then by him to see what $200,000 would cost. That was the amount that he settled on.

On himself, he said that -- well, I was told that he wanted a $25,000 policy, because he owed that to his father, on the purchase of that lumber company, that Lyles lumber company. And he was interested in his father being paid back, should something happen to Ted. I ran that on the computer and told him what that would be. And that was agreeable.

I was then asked, what would $150,000 of term insurance on him would run, on Ted. And I gave him that price. And that was agreeable.

So I wrote the policies up on Ted. And then I asked, "Should I go to Patricia's office at Cinnamon Ridge?" I was told, "No. She'll be here shortly." And that appointment was about -- I started that appointment about 4:00 in the afternoon, was interrupted several times with people coming in, I guess that worked for him, and he would pay them money and they would leave, so I assume that he worked for them (sic).

And so, it was about dusk dark and -- by that time, and so, I filled out the front portion on Patricia's policy, which was her name, her Social Security number, her date of

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birth, which was all in my computer already, since she was a current client.

At one point, I was asked -- oh, also, he -- I talked with him, while we were waiting, about a cancer policy, and it was very reasonable, and it was a million dollar cancer policy. It was something like $15 to $20 a month. And he said, "I'll take that." And I had told him the benefits. And so, I filled out that application. And on that particular application, only one person has to sign of the couple. The insurance was on both of them, but only one has to sign that application.

And so, we set there and talked, and he said, "Do you have a brochure on that cancer policy?" And I said, "Yes. I'm sorry." I said, "I'll get one." So I went out to my car. And as I went out the door, Patricia was coming in, and spoke to me, "Hi, Mr. Jarrell." And I, of course, spoke back to her and went on to my car. And I've got a file in my trunk, where I keep brochures and forms, application forms. And so, it was dusk dark and I could hardly see in there, but I finally found that brochure. And as I closed the trunk and started around my car, I heard the door slam on that office, and Patricia came out and went right straight to her vehicle. And I hollered to her and said, "Patricia, you're not leaving, are you?" And she didn't recognize me, didn't say anything, didn't look at me, and

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got in her vehicle and left.

So I walked in and asked Ted if she was coming back, and he said, "No." And I said, "I got to get her to sign the application, her life insurance application." And he pushed it over to me and he said, "She signed it." So, everything fit in my mind. And I said, "Well, there's some things I need to ask her," which were health questions, and I said -- but I just said, "There's some things I needed to ask her, but I'll take care of that."

And so, at that time, I said, "Now, you both have to have a blood profile, because of the amount of insurance." And I was told that she could not do that, because she fainted if she was stuck with a needle. I told him it would have to be done, that's a prerequisite, that's part of the application. I told Mr. Kimble that I would have it set up at Porta-Medic, that they would be prepared, should she faint while they're taking blood from her. And he agreed then.

He asked me about the $25,000 policy. He said, "Should --" "If something happens to me before I get the policy back, am I insured?" Well, on the -- on the application, on the conditional receipt, it states three criterias for when that policy is effective. And those are, that the person has qualified medically for that application, under the -­under the rules of the insurance company. And at that

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amount, he needed no physical, no blood profile. And that money is placed at least for the first month. And that the application has been completed. And I said, I told Ted that "If that application is received by the home office, they have found you insurable, and something happens to you, then yes, it will pay off. If it is your death of natural causes, that they may require an autopsy," before making payment to his father.

So, we left the office that we were in and went to another little building there. And he walked behind, I think it was a big desk, and there was an area there that had marked off, and I asked -- he said, "Excuse the place." He said, "This is where Mom keeps her dog when she comes," or something. I don't know. And so, he pulls the drawer out of the desk, opens the drawer, and pulls out a handful of money and pays me in cash. And I give him a receipt, and I leave.

And that's my dealings with the insurance with him.

Q    On the next day, or thereafter, did you call Patricia in reference to those medical questions?

A    The next morning, I called Patricia, because the health questions had not been answered. I asked the health questions. And some are kind of personal. And when I finished, I was asked, "Why --"

MR. LLOYD: Well, objection to what he was asked,

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Your Honor.

THE COURT: Overruled.

A    I was asked, "Why do you need this information for a cancer insurance?" I said, "This is not on your cancer insurance. This is on your life insurance." She said, "How much life insurance?" I said, "200 --"

MR. LLOYD: Objection, Your Honor.

THE COURT: Overruled.

A    I said, "$200,000." She slammed the phone down.

Well, I didn't know what was going on, and so I thought, I'll call Ted. So I called Ted and was told -- and told what happened, and was told that she was mad at him for some reason. He didn't explain. And I said, "Is everything all right, Ted?" And I was told that it was.

I told him that the paramedic office, Porta-Medic, would be calling him, to set up the appointment for the blood profile on each one of them.

I notified Porta-Medic, and they told me -- and I requested that they notify me when that appointment would be, just to follow up. The manager there called me back later that day and told me that he had set up the

appointment. And I don't remember what day it was. And so, I had reiterated my statement to him that she fainted when she was stuck with a needle, and they needed to be prepared. I was concerned about that.

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So, Monday night, my wife and I were watching television, and a report -- Oh, I'm sorry. That was later on. The night before the blood profile was -- appointment, about 9:30, I got a call from Ted Kimble and was told that they could not make that appointment the next day. And I stated that they needed to be contacted, the Porta-Medic needed to be contacted, and that appointment rescheduled.

When I got to my office the next morning, I called Porta-Medic myself, to see if he had done so, had rescheduled. And they told me that he had.

So, then, on a Monday night, after that, my wife and I were watching television news, and on a channel we were watching, there were no pictures, it was just stated that a Pleasant Garden resident, Pat Kimble, was burned in a -­found dead in a burned home. And -- but I just assumed that it was not her, because she did not like to be called Pat, is what she told me. So -‑

Q    You had a number of dealings with Patricia?

A    Sir?

Q    You had a number of dealings with Patricia?

A    Yes, sir.

Q    And what was her general demeanor?

A    She was a strong Christian girl.

MR. LLOYD: Objection, Your Honor.

THE COURT: Overruled.

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A    She had told me she loved the Lord. And -‑

Q    Was she -‑

A    And she was -- she was -- she was very business and -­you know. And her demeanor was fine. I mean, it -‑

Q    Based upon your prior contact with her on those other occasions, would you describe her slamming the phone down as being in character or out of character?

A    Oh, that was -‑

MR. LLOYD: Well, objection to leading, Your Honor. Calls for a -‑

THE COURT: Sustained.

Don't answer, sir.

THE WITNESS: Yes, sir.

Q    In the course of your dealings with her, your other conversations, did she ever exhibit any similar conduct, in slamming down the phone?

A    No, sir. I was quite shocked when that happened.

MR. LLOYD: Well, objection to what the witness was shocked about, Your Honor.

THE COURT: Overruled.

Q    Now, there came a time when you were notified that it was Patricia Kimble that was killed?

A    The next -- Let's see. On Monday night, we saw that, and I told my wife that I had written an application on a Patricia Kimble.

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MR. LLOYD: Well, objection to what the witness told his wife.

THE COURT: Sustained.

Q    Without going into that conversation -‑

A    Okay.

Q    -- did there come a time when you learned that she was killed?

A    Yes, sir. The next night.

Q    Okay.

A    And on the news, it showed her picture. And -‑

Q    All right. Without going into what was said on the news, did you have any subsequent contact with Ted Kimble? A Yes, sir. I believe it was the following morning. Well, actually, the following morning, as soon as I got to the office, I notified our legal department in Atlanta what was going on there, that the lady had been murdered. And I -- later on, I received a phone call from Mr. Kimble, and I -- because I didn't know what was going on. And so, I did not state that I knew anything at all, even that Patricia was murdered. And I was told that she was killed. And I said, "In an automobile accident?" And I was told, "No. Shot." I was also told that it was -- that they believed that she walked in on a burglar.

And so, I was asked if -- about the insurance on that policy, on that application that I had just written on her.

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Q    Now, again, you're speaking to Theodore Kimble?

A    Yes, sir.

Q    And what did he ask you?

A    He asked me if the 200-- said, "Well, the insurance will pay off, won't it?" And I said, "Did you have the blood -- Did you all have the blood profile done?" I was told, "No." I said, "It will not pay off, because that's part of the application."

And he stated that, "You told me that if my -- if something happened to me, that my father would get that $25,000." I said, "That's true." But that policy did not require a blood profile, and that application was complete. There was no question asked at the purchase of that insurance about her policy paying off in that same circumstance -- under the same circumstances. So I told him, "No."

And then I was -- he said he was -- he seemed -- well, he seemed concerned about that. And I -- he said, "Well, now, the policies that she's got on her, the other two policies, are double indemnity policies, and it'll pay double, won't it?" And I said, "Ted, I'm going to get the home office phone number for you, and you need to call and find out." Because at that point, I was getting a little afraid. And so, I gave him that phone number.

And -- but he still called me back several times, and I

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-- and he stated, when could he get the money, and I was told -- I told him, when he got the death certificate, to call me, and that I would come over to his office and file the claim, which I did when he called me back, which was probably two weeks later.

Q    So, two weeks later approximately, you filed the claim in reference to the -‑

A    Yes, sir.

Q    -- $25,000?

A    When I went over to -- when I went to his office, and I asked him how things were going. And he said, "The police are bothering me." And so, he said -- I said, "Oh, really?" And -- because Ted was a -- was a -- is a likable -- was a likable guy. I mean, I -- the first time I met him, you know, the gentleman seemed fine to me.

And then, I asked him how things were going. He told me the police were giving him a tough time. And so -- but I saw that he had -- I saw a motorcycle over there, and I said, "Is that your motorcycle?" And was told, yes, that it is. And gosh, I think I'll get in the lumber business, because he had a Grand -‑

MR. LLOYD: Well, objection to whether he's in the right business -‑

A    -- Cherokee.

MR. LLOYD: -- or the wrong business, Your Honor.

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THE COURT: Sustained.

Q    All right. During that conversation, did you file a claim on the two insurance policies -‑

A    Yes, sir, I did.

Q    -- that were in effect -‑

A    I sent --

Q    -- on Patricia?

A    -- those to Atlanta. And -- but the rules and regulations of the insurance industry is that they do not pay claims to a beneficiary that is a suspect. And so, that claim's never been paid.

Q    Did you have further contact with him?

A    Yes, sir. He called me several times, concerning payment of the two -- the first two policies that she had.

And then, I received phone calls from an attorney, don't remember his name, but he sent me a booklet, a letter, and I read the first -- part of the first page, and then turned around and sent it to our legal office in Atlanta. And it was stating that who the beneficiary was that should be paid, and it should pay double, because it was double indemnity.

MR. LLOYD: Well, objection to what the letter stated, Your Honor.

THE COURT: Sustained.

MR. LLOYD: Ask for an instruction.

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THE COURT: Members of the jury, disregard the last response by the witness, as to what any letter may have said.

(Mr. Panosh showed exhibits to Mr. Lloyd and Mr. Hatfield.)

MR. PANOSH: May I approach the witness?

THE COURT: You may.

Q    I show you now what's been marked for identification as State's Exhibit Number 1. Do you recognize that, sir?

A    Yes, sir.

Q    And who is that?

A    That's Patricia Kimble.

Q    And I'm going to show you now a series of documents which have been marked as State's Exhibit Number 2. Do you know what State's Exhibit Number 2 is? And just identify it for the record, please. Is this the application for insurance?

A    Yes, it is.

Q    Okay. And that's a two-‑

A    On Patricia Kimble, yes.

Q    Okay. And 2-A is actually the application form; is that correct?

A    That's correct.

Q    2-B, what is that, sir?

A    That is the -‑

Q    Is that --