MR. PANOSH: Your Honor, the next matter is, that the State intends to introduce in its case in chief next week statements of the defendant -- the codefendant, Theodore Kimble. And those would include declarations against penal interest through at least two witnesses.

Your Honor's aware that for them to be admissible under the hearsay exception, the declarations against penal-interest, the Court has to make a determination as to whether the defendant -- the codefendant, Ted Kimble, is available or unavailable, that is, whether he is exercising his privilege or not. At this time, we'd ask you to conduct a hearing, to determine whether or not Theodore Kimble is exercising his privilege. And I believe his counsel are present.

THE COURT: Counsel for the defendant present? (Mr. Robert McClellan of Greensboro and Mr. John Bryson of

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High Point came forward.)

MR. McCLELLAN: Yes, Your Honor. May we approach the bench?

THE COURT: Yes, sir.

MR. PANOSH: Your Honor, it has to be on the record, so --

MR. McCLELLAN: That's fine.

MR. PANOSH: Is there a reason that we need to approach?

MR. McCLELLAN: I would prefer to start that, since we've not been part of this case.

THE COURT: Well, we're going to do it in open court, for the record.  Bring him in.  The defendant's got to be here.

Okay. This defendant, Mr. Panosh, and --

Excuse me. Mr. Hatfield and Mr. Lloyd, if you'll kindly move back with your client --

MR. LLOYD: Yes, sir.

THE COURT: -- back. Let the other counsels have the table for the time being, please.

MR. HATFIELD: Yes.

(Mr. Hatfield, Mr. Lloyd and the defendant complied.)

THE COURT: You'll need another chair over here for the defendant.

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Are they bringing some other officers down from the bailiffs' station?

THE BAILIFF: They're coming.

THE COURT: All right.

(The codefendant, Ted Kimble, entered the courtroom at 11:59 a.m.)

THE COURT: Ready to proceed?

MR. PANOSH: Yes, Your Honor.

THE COURT: Call your witness.

MR. PANOSH: Theodore Kimble, please.

MR. McCLELLAN: May I stand with the witness, Your Honor?

THE COURT: Sir?

MR. McCLELLAN: May I stand beside the witness chair at this time?

THE COURT: You may stay where you're at.

THEODORE MEAD KIMBLE, being first duly sworn, testified as follows during VOIR DIRE EXAMINATION by MR. PANOSH:

Q    Would you state your name, please, sir.

A    Theodore Mead Kimble.

Q    And you are also charged in this matter?

A    Yes, sir.

Q    Do you intend to testify?

A    No, sir.

Q    Do you intend to invoke your Fifth Amendment privilege?

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(The witness took a piece of paper out of his pocket.)

A    Yes, sir. Upon the advice of my counsel, I must respectfully decline to answer any questions, based upon the rights guaranteed to me by the United States and North Carolina Constitutions relating to the privilege against self-incrimination.

MR. PANOSH: No further.

THE COURT: Questions, counsel?

MR. McCLELLAN: No questions, Your Honor.

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

THE COURT: Anything else for the State at this point?

MR. PANOSH: Your Honor, we would ask that you find that this witness is unavailable, in that he has exercised his privilege as defined under 804(a)(1).

THE COURT: Counsel, you wish to be heard?

MR. McCLELLAN: If Your Honor please, I don't know that -- if that's the case, I believe counsel would be arguing perhaps on behalf of Ronnie Kimble, or should I argue? We're not raising any issues with that.

THE COURT: Do you wish to be heard on his invoking the Fifth?

MR. McCLELLAN: No, Your Honor.

THE COURT: All right. The Court would find that

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the witness Ted Kimble was brought to the witness stand, placed under oath, and in response to questions by the district attorney, invoked his right against self-incrimination, by invoking the Fifth Amendment. And the Court, based upon this, would find that the -- conclude that the witness Ted Kimble is unavailable as a witness, and is exempted on the ground of privilege from testifying in this matter, based upon his invocation of the Fifth Amendment right. And the Court would find this exception to the hearsay rule.

You may take him back.

MR. McCLELLAN: Thank you, Your Honor.

(The codefendant, Ted Kimble, left the courtroom at 12:02 p.m.)

THE COURT: Is that it, sir? Do you have another witness?

MR. PANOSH: Excuse me?

THE COURT: Is that it?

MR. PANOSH: That's all for this week, Your Honor.

THE COURT: All right.

Court will stand in recess until 10:00 a.m. on Monday, sheriff.

(A recess was taken at 12:03 p.m., until 10:00 o'clock a.m. Monday, August 17, 1998.)