MR. PANOSH: Mr. Nicholes, please.

MR. LLOYD: Your Honor, Mr. Nicholes was the subject of a motion that we had in this case, and we'd ask that we be heard on that outside the presence of the jury.

THE COURT: All right.

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

(The jury left the courtroom at 3:42 p.m.)

MR. LLOYD: Judge Cornelius, if Your Honor will recall, Mr. Nicholes and Mr. Pardee were specifically named in a motion in limine that we filed. Basically, though I can't actually forecast what Mr. Nicholes is going to say, he's going to testify as to statements that Ted Kimble made to him.

Now, just to give Your Honor a little bit of background here, Mr. Nicholes, Mr. Pardee and Ted Kimble were involved in a theft ring, Your Honor, where they stole building materials from house sites that were under construction. If I'm not mistaken, they stole items from

1009

Home Depot and Northern Hydraulics. These items were in some cases later resold through Ted Kimble's business.

Mr. Nicholes is testifying under an agreement with the State. So is Mr. Pardee. If -- well, Ted Kimble has already pled guilty to the bulk of these charges, I think to all of them, as far as I know, though there may be a couple that he didn't plead to, but I'm not sure about that.

One of the things that concerns me, Your Honor, is, first of all, we've got the whole backdrop of this theft ring that pretty much has to come out, in terms of any sort of cross-examination we might do on either one of these witnesses. I just don't think we can not get into that area. And that's a problem in and of itself.

But the big problem we go back to once again is that Ted Kimble has, as Your Honor well knows, has asserted the Fifth Amendment. We don't have any basis for cross-examining him. And we've got what we feel like is a very difficult confrontation issue here. Both of these witnesses, as I understand it, are going to testify to some damaging alleged admissions that Ted Kimble gave to them, but also concerned Ronnie Kimble. In the case of Patrick Pardee, I don't have my -- all my notes in front of me, but in the case of Patrick Pardee, a sort of companion witness to Mr. Nicholes here, he makes a statement to the effect that Ted Kimble says to Patrick Pardee something along the

1010

lines of "I had an alibi. I got the job at Precision Fabrics as an alibi." He then goes on to say that -- some statement sort of where he doesn't really admit that he was directly responsible for Patricia's death, but basically puts it off onto his brother, Ronnie, says that Ronnie was the one that killed her, shot her and poured gasoline on her body and burned her up.

Now, the problem I have with that, Your Honor, is at least in part that that statement Mr. Pardee makes is a very self-serving statement. And I know that Mr. Panosh is going to argue that -- he's already advanced his theory before when we talked about this, that this comes in under, if not co-conspirator admissions, then under some hearsay exception. And the problem I have with it, Judge, is that, we've got to -- it's at least in part a self-serving statement. He's putting the blame for the actual death of his wife onto his brother, Ronnie. And I think we have to scrutinize those kinds of statements very closely. They don't bear any sort of indicia of reliability that you would normally consider in a "confession." So that's a -- I think that's what -- that's what distinguishes our fact situation from the cases that Mr. Panosh has cited in the past, the Westbrooks case and any others.

That and the fact, Judge, that we're not trying Ted Kimble here. We're trying Ronnie Kimble. And we cannot

1011

lose sight of that. And we're the ones -- Ronnie Kimble is the one with the confrontation rights. And I think with respect to Mr. Nicholes and Mr. Pardee, that we're simply being denied confrontation. I don't see how these statements can be in furtherance of the conspiracy. Even if Mr. Panosh is able to argue successfully that they're during the course of the conspiracy, they're certainly not in furtherance of the conspiracy, Your Honor.

Mr. Panosh at one point advanced the theory that went something along the lines of the fact that he was telling -- he was -- Ted Kimble was telling Rob Nicholes and Patrick Pardee these facts about Patricia's death to make them afraid of him, so that they would not give any damaging information against him. Well, of course, the problem with that, Your Honor, is, I think that goes to a whole different conspiracy. You got to remember that there's no question that Rob Nicholes and Patrick Pardee and Ted Kimble were involved in a conspiracy to steal items from residences, building materials, and these other items. So that just -­I think that is a -- while a very creative argument, it just doesn't go to the point here, Your Honor.

These statements are not in any way in furtherance of the conspiracy. So they don't qualify under a co-conspirator exception, and they don't qualify under any other exception. An admission against penal interest, as

1012

Your Honor well knows, you have to find that the declarant is unavailable.

Now, I will concede that based on the case law, when somebody asserts the Fifth Amendment privilege, that's enough to qualify as being unavailable. The problem is, that particular exception, Your Honor, there's a caveat in criminal cases, and that particular exception it's 804(b)(3), if I'm not mistaken. And if Your Honor will bear with me, since my memory is not as good as it ought to be. (Time was allowed for Mr. Lloyd.)

MR. LLOYD: It's contained under the statement against interest. And it says, "A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability ... A statement tending to expose declarant to criminal liability is not admissible in a criminal case unless corroborating circumstances clearly indicate the trustworthiness of the statement." And I think that's exactly what we don't have here, Your Honor. I think we have self-serving statements by Ted Kimble which essentially implicates his brother, Ronnie Kimble.

And I think the exception itself specifies that we've got to have this indicia of reliability, which we don't have. The confrontation clause itself, when it talks

1013

about a firmly-rooted hearsay exception, what it's basically talking about is reliability, Your Honor. And that's exactly what we do not have in this situation. It doesn't qualify, at least as far as the confrontation clause is concerned, under the catchall. The last one, where they talk about guarantees of trustworthiness, which is the same thing.

And of course, Your Honor needs to take -- keep in mind that the catchall exceptions under 803 and 804, neither one of them are considered firmly-rooted hearsay exceptions. But that doesn't end the inquiry, Judge Cornelius. What we

have to do is, we have to determine whether or not these statements are reliable, and they are anything but reliable. I mean, even granted, if you assume in the light most favorable to the State, you've got basically two codefendants here, one not on trial with the other, making a self-serving statement, where he lays off the blame on his -- on the defendant at trial. And that's precisely the kind of situation that the rules and all the case law seeks to avoid.

I would cite Your Honor to a U.S. Supreme Court case. The case preceded the Bruton case. It is Alabama v.  Douglas. And in that case, Your Honor, you had what I think is an analogous situation to ours. You had a codefendant who had already been tried, but his case was pending on

1014

appeal. And he had made a statement to investigators, wherein he admitted his guilt, just as -- in part just as Ted Kimble is, but he also said that the codefendant was the one who shot the guard. This wasn't a death case, this was an armed robbery case. And in that case, the court said, even though Alabama said that they were concerned about the confrontation issue, even in Alabama, Your Honor, but how they got around it, the Alabama court got around it by saying that the lawyers had waived the objection when they didn't object specifically to each and every comment as the district attorney read his statement to him.

So you've got the defendant who's already been convicted up on the stand. He reads -- he pleads the Fifth. The DA starts, "Isn't it a fact, Mr. Witness, that you said such and such?" And he gets it in that way. Of course, after each statement that the DA read to him, the defendant-takes the Fifth, the earlier defendant. And the U.S. Supreme Court said that you can't do that. There is no confrontation. They analyzed it on confrontation grounds, and that's how they excluded it.

And if you would, Your Honor, I have that case here, and if you'll just bear with me for a minute, I will hand it up.

(Mr. Lloyd handed documents to the Court, and time was allowed for the Court.)

1015

THE COURT: Mr. Panosh?

MR. PANOSH: Your Honor, Mr. Lloyd's statement of the facts are essentially correct. After the death of Patricia Kimble, the codefendant, Theodore Kimble, entered into a conspiracy with Mr. Nicholes and a separate but overlapping conspiracy with Mr. Pardee to go out and steal property. As a result of that, he was charged with approximately 30 breaking and entries and larcenies. Most of these were from homes under construction and businesses under construction. And that is the nature of the relationship of this witness to Mr. Theodore Kimble. We don't intend to get into great detail about that. I would agree that at some point in cross-examination, counsel would have the right to inquire as to the details of that, if they feel it's appropriate for impeachment of this particular individual.

We need to establish that he had a relationship with Theodore Kimble, because, among other things, Theodore Kimble told this witness that if this witness went to the police about the activities they were involved in, he would kill him. That this witness will testify that Ted always carried a Glock pistol; that this witness can testify that he saw some media account of the death on the one-year anniversary, and thereafter, he approached Ted and confronted him and asked him if he had anything to do with

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it, and he said, "Yes, I did. Now are you happy?" And the witness later asked him how it was accomplished. He said, "Ask me no questions and I'll tell you no lies."

He went on to say at a later time he had forged his wife's signature on the insurance policy, that he was angry about not getting the money. He elaborated that it was because she hadn't taken the physical. He bragged about the fact that law-enforcement officers can't arrest him. If they had anything on him, they would have arrested him already, that the law was too dumb to figure out what had happened, because he reported some jewelry taken, but in reality, none had been taken.

On another occasion, he did admit that he had -­he was responsible for the death of his wife, but again told the witness not to ask any more, and thereafter threatened that if he told, he would kill this witness, and he said, "As you already know, I won't get caught."

At one point, he was -- in admitting what he had done, he admitted that he was involved in his wife's murder. He said that the witness didn't understand, and he started crying and said that when he was a little boy, that his father had beat him and his mother.

The witness also told -- Ted also told the witness that he wouldn't make a very good criminal, because he opened his mouth too much. And there were similar threats

1017

to the witness, if in fact he revealed the information. May I approach?

(Mr. Panosh handed a book to the Court.)

MR. PANOSH: In State v. Barnes, Your Honor, this same issue came up. In that particular case, one of the codefendants made a statement to a witness, or made a series of statements to the witness that said it was a three-person secret. And Your Honor, I'm reading now from the decision at Page -- I believe it's the bottom of 215, where they start saying, "With respect to Blakney's statements, he said that it was a three-person secret, and we F blank, blank, blank upped the police." They found that these statements did fall within the 804(b)(3) exception, which is a statement against penal interest.

Now, Your Honor, we would submit that the statements of Theodore Kimble are definitely statements against penal interest. He is admitting that he is responsible for the death of his wife. I can't imagine any statement that is more clearly against penal interest.

And then, Your Honor, we have a lot of evidence which you've heard over the past ten days. First of all, we have the statement of Mitch Whidden, which clearly tells Your Honor what the scope of the conspiracy was, that Ronnie and Ted entered into this conspiracy to kill her for insurance money. And we have all this insurance

1018

information, that he tried to file a $200,000 application on her just before her death, that there was $100,000 in effect on her, that she made all these statements to her friends that she didn't understand why he was acting this way, why he wanted all this money. There was ample insurance coverage, she didn't understand why he wanted more insurance coverage. And the court -- those are the corroborating circumstances that we show that this is clearly under 803 -­804(3) -- excuse me, (b)(3), a statement which tends to expose the declarant to criminal liability and which has indications of trustworthiness through the other evidence the State has presented.

I've held these statements to toward the end of our case, so Your Honor could see the whole picture here, and that we would submit this is ample indications of trustworthiness.

In Barnes, they went on to hold that those statements were also admissible in the course of the conspiracy. So we would ask Your Honor to consider and rule that they're admissible, not only as a declaration against penal interest, but also a statement in the course of the conspiracy.

Now, the North Carolina law is not real -- there's not a great deal of law in North Carolina about conspiracy, but when you find a case, as in the decision I've handed up

1019

before you, the Barnes, they always refer back to the federal decisions. And as you start to research the federal decisions, you found that they continually say that the scope of a conspiracy should be broadly interpreted.

In a 1994 decision called U.S. v. McMauney, it's before the Eighth Circuit, they specifically said that this type of statement should be allowed and that the exception should be broadly interpreted.

In U.S. v. Carr, another Eighth Circuit decision from 1995, they said simply the description of the crime could be admitted. The defendant in the case said, "This is just a narrative. The co-conspirator was just talking about what happened. It wasn't in furtherance of the conspiracy." And in Carr, they said a description of the crime is admissible.

In U.S. v. Shores, a First Circuit decision from -- 1994, they said that statements made to a third party are in furtherance of the conspiracy if they seek to involve a third party, or in any way cause the third party to assist in the conspiracy. And when Ted tells this witness, "If you go to the police with what you know, I'll kill you," those are statements intended to assist in the conspiracy and intended to cover up the conspiracy.

In U.S. v. Escobedo, a 1994 decision from the Eighth Circuit, any statements which tend to identify a

1020

co-conspirator is admissible.

In U.S. v. Powers, from the Seventh Circuit in 1996, they said the statement need not be made exclusively or even primarily in furtherance of the conspiracy. Statements made in an attempt to get more information about the government's conduct and seizing the guns and the narcotics in this particular case were statements that should be admissible as part of the conspiracy.

And also in that case, they said statements made to co-conspirators to frighten them and keep them in line were also admissible.

In Bazemore, which is the Eleventh Circuit, from 1994, that's Georgia, they again say there has to be a liberal standard applied to determine whether statements are made in furtherance of the conspiracy. And in that particular case, one of the co-conspirators said that the other co-conspirator had committed the murder. And his statements were, "Jimbo had gotten down. Jimbo had graduated." And they held that that was within the course of the conspiracy, because it was intended -- tended to identify Jimbo, that is, the defendant, as being the person who had committed the murder.

In State v. Walls, which is from our D.C. circuit, 1995, statements of a witness simply giving background information about other co-conspirators was admissible.

1021

And in that case, they have a long discussion, in which they talk about the course of the conspiracy. They say, "The conspiracy exists until each of the co-conspirators has withdrawn and shown their affirmative attempts to withdraw, or until all the co-conspirators are in custody and there can no longer be a conspiracy." And I believe that is the law as adopted in North Carolina. As long as there is one or more conspirators at large who can act in furtherance of the conspiracy, it is still in the course of the conspiracy.

There are more decisions from the Eighth Circuit and the Tenth Circuit, and I could go on through all of those, but Your Honor, we submit that the case that we handed you, Barnes, clearly shows that these are admissible, because they are declarations against penal interest, he's admitting a murder, and they're corroborated by every other piece of evidence we've put before Your Honor.

MR. LLOYD: Judge, if I could just address a couple of things that Mr. Panosh said very briefly. First of all, Your Honor, the real test here is not in the course of the conspiracy, it's whether or not these statements are in furtherance of the conspiracy. And that's the test that Mr. Panosh can't pass. And he said something about these threats that Ted Kimble allegedly made to the witness, but Your Honor, those go to the theft conspiracy. They don't go to the murder conspiracy. He wasn't telling Mr. Nicholes or

1022

Mr. Pardee "I'm going to kill you if you say anything about the murder conspiracy." He's saying, "I'm going to kill you if you go to the police with any evidence on this theft conspiracy." And that's borne out completely by their statements.

So that's the real sticking point, as far as the admission of these statements go.

And I would say, Your Honor, finally in closing, just to make it clear to the Court, Mr. Pardee, at least given his statement that Mr. Panosh has given to us, would say this: He would say that he was talking to Ted Kimble, and he said Ted said he -- said that he thought that law enforcement was closing in on him. He said that he had gotten a part-time job at Precision Fabrics so he would have an alibi. "I asked him" -- this is Mr. Pardee -- "I asked him, 'An alibi for what?' He answered, 'For Patricia 's death.' I asked him if he killed Patricia and he said, 'No. Ronnie did it.'" And Your Honor, that's a very difficult statement for us. I mean, we don't have any confrontation against Ted Kimble. He's asserted his Fifth Amendment privilege, as he has every right to do. And we're simply left out in the cold, when it comes to exposing to the jury the nature and why he would make such a statement, if in fact he did.

So I would ask Your Honor to consider all that and

1023

rule the evidence of both Mr. Nicholes and Mr. Pardee inadmissible.

THE COURT: The prejudicial aspects, the probative versus prejudicial, would not apply to this defendant, it would apply to Ted Kimble, the statements that are being made, so it's a weighing process that --

MR. LLOYD: Well, Your Honor, we did raise that in our original motion in limine, and we're not abandoning that. I haven't argued it. But I think certainly there's -- all evidence has to be filtered through that sieve. I don't think it's our strongest argument here, because I don't think this evidence is --

THE COURT: Is your argument based on confrontation? Is that what you're basing it on?

MR. LLOYD: Yes, sir, primarily on the confrontation, and the fact that it's hearsay. We don't think that it qualifies under any exception to the hearsay rule. We don't think it qualifies under the co-conspirator. We don't think it qualifies as an admission against penal interest, not under the standards set. And then finally, Your Honor, under confrontation. And then we think it fails on a 403 analysis.

Thank you.

THE COURT: What other statements did he make in regards to Ronnie Kimble? Any?

1024

MR. PANOSH: The statements made by Theodore Kimble to this witness did not involve Ronnie.

THE COURT: None at all?

MR. PANOSH: Well, there was one about Ronnie had an alibi, but I don't seek to introduce that.

THE COURT: And the limit of your examination of this witness as to the conspiracy that he and Ted had with regards to stealing property with a third party?

MR. PANOSH: I'm going to make that very brief, just to establish the relationship.

THE COURT: Is that the extent of how far you intend to go with that?

MR. PANOSH: I'll ask him whether he --

THE COURT: You're not contending that Ronnie was a co-conspirator in that theft ring, are you?

MR. PANOSH: No, Your Honor. I think that's totally separate. I think that simply shows the relationship of this witness to Theodore Kimble and why he would take -- undertake to trust him or undertake to tell him these things.

MR. LLOYD: And Your Honor, of course, as we've stated earlier, we feel like we have to get into that, in terms of cross-examination, because he is testifying pursuant to a plea agreement, and the plea agreement encompasses those charges that he incurred as a result of

1025

being in the theft ring with Ted Kimble.

THE COURT: You will cross-examine him on that, I'm sure, as to credibility.

MR. PANOSH: But, Your Honor, we refer you back to the Shores, the 1994 decision, when they say what is in furtherance of conspiracy, and they say if it seeks to involve a third party, or in any way to assist in the conspiracy. And by telling him not to go to the police with the information he has about the murder, that is soliciting him not to -- that is soliciting him to assist in the conspiracy. And as the decisions have said, it doesn't have to be strictly in furtherance of the conspiracy, it's any conduct which is intended to promote the conspiratorial objectives. And that certainly is -- keeping it from the police would be intending to promote the conspiratorial

 objectives. But I think our strongest exception is here

definitely a declaration against penal interest and definitely corroborated by other evidence.

THE COURT: Okay.  The Court's going to find that based upon the statements made to the Court, without the Court having heard the evidence -- and I don't know what the synopsis of the evidence will be as regards to this particular witness -- would find that these statements are being admitted as exception to the hearsay rule under the 804(b)(3) exception, statements against interest, that at

1026

the time the statement was made, that it tended to subject the declarant, Ted Kimble, to criminal liability, and that there is -- the State has presented corroborating evidence or circumstances indicating the trustworthiness of this particular statement, that it would also come under another exception, that the statement is offered as evidence of a material fact in regards to conspiracy, and the statement is more probative on the point which is offered in other evidence which the proponent can't procure through reasonable efforts, in that the defendant Ted Kimble has exercised his Fifth Amendment rights. The general purpose of these rules and the interest of justice will best be served by the admission of this statement into evidence.

The Court will also admit it under the conspirator theory, in that these statements tended to assist and promote the furtherance of the conspiracy through conduct and words.

The Court'll allow the admission.

Bring them back.

(The jury entered the courtroom at 4:17 p.m.)

THE COURT: You may proceed.

ROBERT H. NICHOLES, being first duly sworn, testified as follows during DIRECT EXAMINATION by MR. PANOSH:

Q    Would you state your name for the ladies and gentlemen of the jury, please.

A    Robert H. Nicholes.

1027

Q    And Mr. Nicholes, do you know Theodore Kimble?

A    Yes, I do.

Q    How do you know Theodore Kimble?

A    He was my employer at Lyles Building Materials.

Q    Would you keep your voice up when you speak, please.

A    Yes, sir.

Q    When did you start to work for Ted Kimble?

A    I believe it was September. It was in correlation to me starting with school.

Q    And this was subsequent to the death of Patricia Kimble?

A    Yes.

Q    In addition to working with him -- or describe your duties at your place of employment, Lyles.

A    Stacking of lumber, building dog houses, storage buildings, assisting customers with loading of lumber, shingles, building materials, etc.

Q   And how long did you work at Lyles for Ted Kimble?

A    I worked there from the beginning of September, till April 1, 1997.

Q    So September of '96 through April of '97?

A    Yes, sir.

Q    And were you a full-time employee?

A    No, I was not. I was a part-time employee. I was -­one of the reasons I worked there, Ted had given me the

1028

opportunity to be able to come and work in between classes. I was in my last semester at UNCG. And it was, you know, within two blocks of the school, so I could come up there and work.

Q    Now, did there come a time when your relationship with Theodore Kimble went on to other matters?

A    Yes, there was.

Q    Would you briefly describe that for the ladies and gentlemen of the jury.

A    We just -- we became closer and confided in each other certain things that had happened in our lives. And we began stealing lumber and materials from job sites.

Q    And when this lumber -- how was this lumber or materials from job sites stolen?

A    It was loaded up into trailers and trucks and vans of -- that were Ted's.

Q    And who participated in that?

A    Myself, Ted and Patrick Pardee.

Q    And was Pardee with you on all these occasions or some of them?

A    No, sir, he was -- just some of them. There's some where we were all together, some maybe where they were all together, some where Ted was alone.

Q    What was -- what happened to the building materials and lumber that was stolen?

1029

A    A lot of the building materials were resold on the premises. Others, there was a storage trailer across the street that was rented by Ted, and he had had the blueprints for a home that he was going to build, and was taking the materials in order to build a home. He was filling up the trailer with the materials he needed.

Q    Were there any of the materials that were sold from Lyles?

A    That were stolen that were resold?

Q    Yes.

A    Yes, sir.

Q    And as a result of your conduct, you have been charged; is that correct?

A    Yes, I have.

Q    And you've been charged with multiple counts of breaking and entry and larceny; is that correct?

A    Yes, 28, 30.

(Mr. Panosh showed an exhibit to Mr. Lloyd.)

Q    And did there come a time when you reached an agreement with the State of North Carolina?

A    Yes.

MR. PANOSH: May I approach the witness?

THE COURT: You may.

Q    I show you Number 115. Would you look at that, please.

A    Yes.

1030

Q    What is 115? First of all, do you recognize your signature on the second page?

A    Yes, I do.

Q    Is 115 an agreement to testify in this case?

A    Yes, it is.

Q    And did you have an attorney to prepare that agreement?

A    Yes, I did.

MR. PANOSH: Your Honor, we'd seek to introduce into evidence 115.

THE COURT: The Court'll allow the introduction of Exhibit 115.

Q    What is the date of that agreement?

A    April 18, 1997.

Q    On April the 18th and subsequent to that date, did you -- were you interviewed by officers of the Guilford County Sheriff's Department?

A    Yes, I was.

Q    And also the State Bureau of Investigation?

A    Yes.

Q    And did you give them information pertaining to the theft that you were involved in?

A    Yes, I did.

Q    In the course of the time that you knew Theodore Kimble, did there come a time when you became aware of the fact that his wife had been killed?

1031

A    Yes.

Q    Would you explain that to the jury.

A    As Ted and I during this theft ring, I guess, for lack of better words, we became very close. We were with each other from, you know, 7:00 o'clock at night until 3:00, 4:00, 5:00 in the morning sometimes. He would say that he was spending the night at Patrick's, tell his parents that, and then we'd really all be out at night. We -- I guess we got to a point where we had confided enough, and I'm -- I mean, I've done a lot of things that I'm not really proud of. I've made some mistakes. But we began to get to a point where Ted really confided in me and I guess began to trust me or needed someone to talk to.

And October -- my birthday is October 8, so I can recollect the day pretty well, the -- it was near the anniversary of Patricia's death, and the news crews came around. And that was the first time I learned of it, was about a month after I started working there. And as the months progressed, when we got closer, more towards November, December, I was interested and heard more about it, and had asked questions, just for my own well-being, and I'd become close with Ted. And I hindered him and asked him a lot of questions. And at first, you know, "I have an alibi. No, I didn't," and --

MR. LLOYD: Well, object for the record, Your

1032

Honor, as to what Ted Kimble said on those occasions.
THE COURT: Objection's overruled.

Again, members of the jury, the Court would caution and admonish you that you should not -- that this evidence is being offered for the purpose of statements that Ted Kimble may have made. They may not be considered against Ronnie Kimble, unless you find that he was part of a conspiracy and was a co-conspirator with Ted Kimble, and only under those circumstances or under that finding by you beyond a reasonable doubt there was a conspiracy would they be admissible and be considered against this defendant, Ronnie Kimble.

Proceed.

A    The evening in particular, it was actually late evening, night, Ted and I were in his white box truck, heading out to a job site, to get some materials. And I flat out asked him "Did you have anything to do with -- or did you kill Patricia, or kill your wife?" And he said no. And then I asked if he had anything to do with it, and he said yes, he did. And it's -- a lot happened that night, as far as that, but he said yes, he did. He -- I continued to ask questions, and he kind of danced around it, but said, you know, "Ask me no questions and I'll tell you no lies." And I continued to ask. And then I was threatened to be quiet about it, and I would be killed if I ever said

1033

anything.

He then began to -- he was very upset and hysterical and crying, saying I didn't understand, and went on to a 20-minute discussion on Ted as a child. His father drank a lot, and that's one reason he didn't want me to drink -- me to drink at all. His father drank a lot and would hit him and his brother and his mom. And told me, you know, the stories like that. And then it just kind of ended.

Q    In the course of discussing the situation, did you ever make reference to the life insurance policy?

A    Yes, we had -- we had discussed it.

Q    What did he tell you?

A    He -- in regards to the insurance policy, he said something to the effect of, that he was mad because he wasn't getting any money, because she hadn't taken a physical.

Q    Did he ever discuss or make reference to the life insurance application?

A    In reference to, he had forged an application signature.

Q    What do you mean?

A    He had signed his wife's name.

Q    When you said he threatened you, specifically what did he say?

A    Specifically, he told me that if I ever went and told

1034

everyone, that he would kill me, and that I should know that he could get away with it.

Q    What did he say about that?

A    He just -- I mean, if -- he just told me -- I mean, he could -- he'd get away with it. If the law hadn't caught him now, you know, they're obviously not going to come after him. It was a good year later.

Q    During the period of time that you were with him, did you ever see him carrying a gun?

A    At all times. He carried either a Glock pistol, or he had a small, I believe it was a .25-caliber that he would carry. One of the two were with him I'd say 90 percent of the time. Whenever we went out at night or anything like that, he carried it.

Q    Did he make any statements to you in reference to law enforcement's ability to apprehend him?

A    He said that they couldn't. If they had anything on him, that they would have picked him up already.

Q    Did he make any statements to you in reference to what, if anything, was taken at the time of her death?

A    He had -- he had talked about, this was in the same -­along the same conversation as how stupid the law was, that they had -- no one even realized that stuff that was put down as stolen was never even taken.

Q    Did you know James Ogburn?

1035

A    Yes.

Q    Who is James Ogburn?

A    James Ogburn is another one of Ted's employees, my coworker.

Q    Did you discuss this matter with James Ogburn?

A    Yes, I did.

Q    Did he make any statements to you about keeping your mouth shut?

A    Is that Ted Kimble you're --

Q    Yes.

A    -- referring to? Yes.

Q    What did he say?

A    I was -- again, I was told to keep my mouth shut, or I was -- my life was threatened.

Q    When you say your life was threatened, what do you mean?

A    That he would kill me. And it was on -- it was on several occasions, and that was in -- you know, in correlation with always having the gun around.

Q    Besides the gun, did he have any other objects that he showed you?

A    A silencer, miscellaneous rifles, I mean, several guns, rifles, his Glock, the small gun, the silencer, small explosives and whatnot.

Q    In your presence, did he make threats toward any other

1036

person?

A    Mr. Church.

Q    Who's that?

A    Jim Church sitting next to you, the investigating officer.

Q    Detective Church?

A    Yes, Detective Church.

Q    What, if anything, did he say about Detective Church?

A    It was -- when we are talking, it was -- Ted had told me that Mr. Church was following him around everywhere, going around, talking bad about him, had gone to his girlfriend's house, who was Rhonda, and told her parents that she was dating a murderer, and was very upset about it, and said that if he kept it up, that he was going to kill him.

Q    He was going to do what?

A    That he was going to kill Detective Church.

Q    Now, on this occasion, when you got in trouble, was this the first time that you've been involved in criminal activity?

A    No, it's not.

Q    Have you been convicted of other criminal matters?

A    Yes, I have.

Q    Would you tell the jury about that, please.

A    I have been convicted of, in California, knowledge of

1037

stolen property, and fighting in public. And here, in Greensboro, solicitation to commit embezzlement, and I have a larceny charge.

Q    And all those are misdemeanors?

A    Yes.

Q    Now, have you ever been convicted of a felony?

A    I have not been convicted of a felony.

Q    Now, prior to reaching the information -- the agreement that is State's Exhibit Number 15 (sic), what have you done in reference to law-enforcement officers, and specifically, Detective Church?

A    I'm not following.

Q    Well, let me ask you this. Just read the State's -­the agreement, please.

A    Starting with "That the defendant," or --

Q    "The parties agree." The very first line, please.

A    "The parties to this criminal action hereby stipulate and agree to the following facts:

"That the defendant is charged with several counts of breaking and entry and larceny, may be charged with related offenses, which are also property crimes.

"That the defendant has offered and agreed to testify in regard to the death of Patricia Kimble and to the involvement of Theodore Kimble in various crimes related to breaking and entry and larcenies. That the defendant has

1038

been interviewed by his attorney and stated that he has information to offer in these cases, and that said information directly points to the guilt of Theodore Kimble, Ronnie Kimble or Patrick Pardee and is direct and personal knowledge of the type that North Carolina can use in its prosecution of Theodore Kimble, Ronnie Kimble or Patrick Pardee.

"Based upon the aforegoing facts, the State of North Carolina hereby agrees that in the event that the defendant, Robert H. Nicholes, agrees to cooperate with officers of the Guilford County Sheriff's Department and the Greensboro Police Department and testifies, if called upon, in a truthful manner, consistent with previous statements to the Guilford County Sheriff's Department and the Greensboro Police Department, the State of North Carolina will recommend that he receive a probationary sentence.

"In return, the defendant agrees, Robert H. Nicholes, that he will voluntarily appear and testify in any trial related to the death of Patricia Kimble.

"That he will voluntarily appear and testify in any trial related to the breaking and entry and larceny crimes involving Theodore Kimble or Patrick Roy Pardee.

"That said testimony shall be truthful, complete, and not inconsistent with prior statements of the defendant to the Greensboro Police Department.

1039

"The defendant, Robert H. Nicholes, understands that if he fails to cooperate as set forth in his (sic) agreement by (sic) the State of North Carolina shall have the option of moving to set aside this plea agreement and prosecute the defendant to the fullest extent allowed by the law. That the defendant consents and agrees that the State of North Carolina shall have the right to move to set aside his plea agreement and sentence, in the event that the defendant willfully fails to comply with this agreement.

"Further, the defendant, Robert H. Nicholes, agrees to take a polygraph or participate in other law-enforcement activities designed to corroborate his testimony.

"The defendant, Robert H. Nicholes, understands that he must be totally truthful in his cooperation with the State of North Carolina, that if the defendant, Robert H. Nicholes, lies or intentionally omits or mistates the facts of the death of Patricia Kimble, or his knowledge of the facts leading up to the death of Patricia Kimble, or if he refuses to testify or intentionally submits false testimony, the State of North Carolina will not be bound by this agreement, and that the State of North Carolina will use his statements to prosecute him to the fullest extent of the law.

"The defendant understands that this agreement is limited to property crimes, and that if in the course of the

1040

investigation, it is determined that he has participated as a principal or an accessory in any crime against a person, this agreement does not protect the defendant from prosecution for that crime against a person. Further, if in the course of the investigation it is determined that he has participated as a principal or an accessory in any crime against a person, his statements and any information gained or uncovered as a result of this (sic) statement can be used to prosecute him to the fullest extent of the law.

"Further, this agreement only binds the District Attorney's Office of Guiford County and is not intended to bind or affect or hinder the decision of any other prosecutorial agency, state or federal, to indict and prosecute the defendant, Robert H. Nicholes, and that this agreement does not prohibit said prosecution.

"This 18th day of April, 1997," and signed --

Q    Now --

A    Yes.

Q    -- in there, it's made reference to your cooperation with the Greensboro Police Department. What was that in regard to?

A    The Greensboro Police Department in regards to the materials that were taken.

Q    Did some of those offenses occur in the city of Greensboro?

1041

A    Yes.

Q    As a result of that, did you meet with Detective Kasey of the Greensboro Police Department?

A    Yes, I did.

Q    And did you show her the locations?

A    I did.

Q    As a result of your efforts, was there certain property recovered?

A    Yes, there was a lot of it recovered.

MR. PANOSH: No further questions.

THE COURT: You may cross-examine the witness.

MR. LLOYD: Thank you, Your Honor.

CROSS-EXAMINATION by MR. LLOYD:

Q    Now, Mr. Pardee --

THE COURT: Mr. Nicholes.

Q    Excuse me. Mr. Nicholes. You've just gone over the deal that you and your attorney worked out with the State of North Carolina, in exchange for your testimony; is that correct?

A    Yes.

Q    And basically -- Well, let me ask you this, Mr. Pardee (sic). You were charged with how many counts of theft or larceny or breaking or entering? How many felonies as a result of the theft conspiracy ring involving you and Ted Kimble and Patrick Pardee?

1042

A    To my count, it's 25 total.

Q    25?

A    19 B&E, six larceny.

Q    All right. And had you not -- and those are all felony charges, are they not?

A    Those are felony charges.

Q    All right. And had you not worked out a deal, you were aware that those are all Class H felonies and you could have gotten at least, depending on your record, but assuming the very best, that none of your record came in, you could have gotten at least five to six months for each one of those felonies, could you not?

A    Yes, I could have.

Q And if you had been convicted of all 28 of them or however many it was, the judge could have given you six months on each one, to run consecutively, one after another?

A    Yes, sir.

Q    So, conservatively, Mr. Nicholes, you were facing possibility of some 14 years in prison for your actions in the theft ring with Ted Kimble and Patrick Pardee, were you not?

A    It was a possibility.

Q    All right. And you talked to your lawyer?

A    Yes.

Q    All right. And you and your lawyer negotiated this

1043

deal, the one you've just referred to, with the State of North Carolina, didn't you?

A    Yes.

Q    All right. And the fact of the matter is, Mr. Pardee -- Mr. Nicholes. Excuse me. I apologize. -- Mr. Nicholes, that if Mr. Panosh is satisfied with your testimony, you will get probation in these offenses, and you will not serve one single day of time; is that correct?

A    According to the agreement, that is correct.

Q    All right. And in terms of the agreement and what you must do, you have to testify consistent with your previous statements; is that correct?

A    Correct.

Q    And that's set out in the agreement as you read, that if you're called upon to testify, you must testify consistent with your earlier statements?

A    Correct.

Q    Now, when you were arrested in this case, Mr. Nicholes, did you post a bond?

A    I don't recall.

Q    All right. Well, let me ask you this, Mr. Nicholes. You're not in jail awaiting trial or the disposition of these 28 felonies that you've referred to earlier, are you?

A    No, I'm not.

Q    All right. So you're out of jail?

1044

A    Yes.

Q    All right. So at some point, you were arrested; is that right?

A    Yes.

Q    And how long did you spend in jail, before you were released?

A    I didn't spend any time.

Q    You did not spend any time?

A    No, sir.

Q    So was that because the magistrate didn't set a bond in your case, even though you were charged with 28 felonies?

A    No. I believe the agreement came with -- the original charge was three felonies, and I agreed to tell everything I knew. It didn't go in the order you're referring to.

Q    All right.

A    I was charged with three, and then I admitted to the rest of it and everything else I knew, because until Ted was put in jail, I didn't have a chance.

Q    So you actually worked out your deal before you were even arrested; is that right?

A    No. I had -- I had told additional -- had told additional -- yeah, I'd agreed to disclose information that I knew before I'd actually signed an agreement. And that was stuff I had discussed with Detective Church.

Q    All right. So you talked to Detective Church about

1045

that; is that right?

A    Yes, it is.

Q    And he assured you that if you told him what he wanted to hear, you wouldn't spend any time in jail, you wouldn't be arrested on this charge?

A    That's not true. I did not -- I was not offered any agreement in regards to me not serving any time until I had talked to Mr. Panosh.

Q    All right. Well, Detective Church told you that he'd help you out, didn't he?

A    Yes.

Q    All right. And he didn't serve an arrest warrant on you and take you across the street and bring you before the magistrate at that time, before he took you over to talk to Mr. Panosh, did he?

A    No. It wasn't his case.

Q    Well, the police officers in charge of the case didn't serve a warrant on you and take you across the street to the magistrate?

A    Yes, they did.

Q    All right. But you were not required to post a bond; is that right?

A    No, I wasn't.

Q    All right. And Mr. Nicholes, isn't it true that Detective Church talked to the magistrate, in terms of your

1046

bond?

A    I don't know.

Q    All right.

A    I did not have much relation with Mr. Church.

Q    But at any rate, you were not -- even though you were arrested on three felonies --

A    Uh-huh.

Q    -- you were not put in jail, and you were not required to post a bond at that time; is that right?

A    No, I wasn't. No, I wasn't.

Q    Now, you indicated earlier that -- Well, let me ask you this, Mr. Nicholes. When you talked to Detective Church, did you have a lawyer at that time?

A    No.

Q    All right. So this was something that you and Detective Church worked out; is that right?

A    We didn't work out anything. I told him what I knew.

Q    Okay.

A    I was in a situation where I couldn't just come out and announce this to the world.

Q    All right. So you talked to Detective Church at that time, and he told you that he would help you out; is that right?

A    It's his job. Yes.

Q    His job is not --

1047

A    His job is --

Q    -- to arrest people --

MR. PANOSH: We'd object to his arguing with the witness, please.

THE COURT: Overruled. He's clarifying his answer.

Q    Is his job not to arrest people and bring them to justice?

A    That was not his case. It was his job to find the murderer of Patricia Kimble, and that's what he was doing, through me.

Q    All right. So even though this wasn't his case, he talked to you?

A    Yes.

Q    And he told you he'd help you, right?

A    Yes. I came to them, though. It was before any of this, before any of this. The 20-- the 25 additional larcenies came because I told where the materials were. I didn't want part of it anymore, as of Ted being arrested on April 1. I came to the police. I'm the one that told them what was going on. It was not --

Q    Okay.

A    -- vice versa.

Q    So -- and Mr. Nicholes, the reason you came to the police at this time and told them about the 28 -- to some 28

1048

break-ins and larcenies is because you were a good citizen?

A    No. It was because Ted had been arrested, and I didn't have to worry about him killing me.

Q    Well, Mr. Nicholes, if you had gone to Detective Church prior to that time, and told him what you knew, don't you think that Detective Church would have offered you protection at that time?

MR. PANOSH: Object to speculation.

THE COURT: Sustained to the form.

MR. LLOYD: All right.

Q    Well, Detective Church would have offered you protection at that time, wouldn't he?

A    I don't know that. It had been a year, and there hadn't been an arrest. I'm not willing to risk my family's life or my life on speculation, whether Detective Church can help me.

Q    Well, you certainly could have gone to Detective Church prior to that time and told him what you knew, and asked him if he would offer you protection at that time, or if he would arrest Ted Kimble and put him in jail, so you wouldn't have to worry about it; couldn't you have done that, Mr. Nicholes?

A    I was in fear.

Q    But you could have done that, you could have gone to Detective Church. Were you worried that Detective Church

1049

was going to run to Ted Kimble and say that "Rob Nicholes is ratting on you"? Is that what you were worried about, Mr. Nicholes?

A    Not at all. I feared for my life.

Q    All right. But you certainly could have done that, and asked Detective Church if he would offer you protection, or arrest Ted Kimble and put him in jail?

MR. PANOSH: Object. I believe he's answered.

THE COURT: Overruled.

You may answer that.

A    Not without knowing 100 percent that something would be done. Like I said, I'm not willing to gamble my life on that. I know what I knew. I know what was told to me. And I wasn't willing to go and risk my life on that. I was threatened. I wasn't going to do that.

Q    Well, you certainly didn't think that when you gave that information to Detective Church, that he was going to turn around and run to Ted Kimble and tell him that "Rob Nicholes had given me this information," did you?

A    No.

Q    Now, you indicated on direct examination that you had convictions in California for what you referred to as knowledge of stolen property?

A    Yes.

Q    Is that basically, Mr. Nicholes, that you received

1050

stolen property, knowing that it was stolen?

A    Yes.

Q    All right. And did you work out a deal on that case, with the District Attorney's Office there?

A    No, sir. I served 90 days.

Q    All right. Did you plead guilty to that charge --

A    Yes, I did.

Q    -- or did you --

A    I've made mistakes, and I feel bad about it, but I tell the truth.

Q    Well, in connection with your 90-day plea, what I'm

asking you, Mr. Nicholes, is –­

MR. PANOSH: We object.

MR. LLOYD: Well --

MR. PANOSH: He's answered --

THE COURT: Overruled.

MR. PANOSH: -- about his prior criminal history.

THE COURT: Finish your question, sir.

MR. LLOYD: Thank you, Your Honor.

Q    In connection with this knowledge of stolen property that you pled guilty to in California, my question to you, Mr. Nicholes, you said you did a 90-day sentence upon a guilty plea. State of California give you anything in exchange for your guilty plea?

MR. PANOSH: We object.

1051

THE COURT: Overruled.

A    No.

Q    Were you represented by a lawyer in that case?

MR. PANOSH: We object. Details of this prior conviction are not appropriate.

THE COURT: Overruled.

A    The question --

Q    Did you have a lawyer in the California case?

A    Yes, I did.

Q    All right. So is what you're telling the members of the jury is that your lawyer didn't do anything for you, that you just pled guilty and you got 90 days?

MR. PANOSH: Object, please.

THE COURT: Sustained.

Q    Mr. Nicholes, isn't it a fact that that charge was reduced from a felony charge to a misdemeanor charge?

MR. PANOSH: We object, please.

THE COURT: Overruled. You may answer.

A    I don't remember what the original charge I was arrested for was.

Q    Well, you got something from the state of California, in exchange for your guilty plea; your lawyer did something for you in that case, didn't he?

A    I'm sure.

1052

Q    All right.

A    I was 19 years old.

Q    All right.

A    I mean, it's hard to -- it was something to that effect, when the actual charge or the actual situation arose. It's hard to remember. It's, you know, going on eight, nine years ago.

Q    Okay. And your lawyer got the charge reduced from a felony down to a misdemeanor?

MR. PANOSH: Objection.

THE COURT: Overruled, if he knows.

A    I've answered that. Yeah, that's his job.

Q    All right. So that is in fact what happened?

A    It's in fact what happened.

Q    All right. Now, this charge of solicitation to commit embezzlement, was that here in Greensboro or was that in California?

A    That was here --

MR. PANOSH: We object.

A    -- in Greensboro.

MR. PANOSH: Rule 609.

THE COURT: Overruled.

Q    You can answer the question.

A    That was here in Greensboro.

Q    All right. Did you have a lawyer in that situation?

1053

A    Yes, I did.

Q    All right. And in that situation, Mr. Nicholes, did you work out an agreement with the State of North Carolina?

A    Yes, I did.

Q    All right. And was that charge reduced from a felony charge down to a misdemeanor charge?

A    Yes, it was.

Q    So, Mr. Nicholes, you're well-versed in how to make deals with the State, aren't you?

A    No. I'm well-versed on how to tell the truth, when I've done something wrong. That's what I'm well-versed on. It's not being versed, it's telling the truth. I said I've made mistakes and I'm not proud of it --

Q    Well --

A    -- but admit it and deal with it.

Q    You certainly had this information for a considerable period of time that you've testified to, haven't you, Mr. Nicholes?

A    Not really. In the whole scheme of things, no, it's not a long time.

Q    Well, you -- I believe you indicated to Mr. Panosh that as far as the thefts were concerned, you got started in December of 1996 --

A    Yes.

Q    -- is that right?

1054

A    Uh-huh.

Q    All right. And the thefts were ongoing through January and February?

A    Yes.

Q    All right.

A    That's three months.

Q    Okay. So you had that knowledge at that time?

A    Yes.

Q    You could have come forward with that knowledge at that time?

A    Not when a man had told me he had had his wife killed, and my life was threatened, no, I couldn't. What don't you understand about that? I couldn't. I was -- I was threatened. My life was threatened. I had nowhere to go. If he wasn't arrested, what would make me think that what I say is going to change anything? Nothing.

Q    You could have gone to Detective Church or whoever was the -- you found out was the lead investigator in the case. You'd researched this case, didn't you?

A    Sure.

Q    All right. You could have gone to the lead investigator, which you knew to be Detective Church --

A    Sure.

Q    -- given him this information, and he could have arrested Ted Kimble?

1055

A    I didn't know that, and it wasn't worth -- I mean, it wasn't worth it to me to find out. The minute -- the morning that Ted was arrested, I told everything that I knew about everything, because I knew that I was covered. I wasn't going to risk my life. I've got two little girls and a wife that I've got to protect, too.

Q    In fact, Mr. Nicholes, you knew -- you had figured out the system here, and you knew you could parlay information to save your own skin --

A    That's not true.

Q    -- as long as you told the authorities what they wanted to hear; isn't that right, Mr. Nicholes?

A    That's not true. I came to them. Before I was offered an agreement, I offered information. That was the whole reason the truck and all the goods were found, was before I signed anything on April 1. This agreement is April 18th. Everything was taken care of before this agreement was even signed, and that was when I knew I was going to probably serve 10 years in jail.

Q    So you knew early on that you were looking at a whole

A    Sure.

Q    -- armload of time here, didn't you?

A    Uh-huh. Sure did.

Q    Now, Mr. Nicholes, going back to your activities in the

1056

theft ring, you -- what did you get out of the theft ring?

A    A ruined life. I mean, look where I am.

Q    Well, let me ask you this, Mr. Nicholes. Did you get anything else out of it besides a ruined life, such as money or goods or --

A    I was compensated for my time.

Q    Well, what was your pay rate at Lyles Building Supply?

A    $6.50 an hour.

Q    Are you saying that Ted Kimble paid you at the rate of $6.50 per hour when you went out on these theft excursions?

A    I don't recall what it was.

Q    Well, you told investigators that the first time you went out with Ted Kimble, that he paid you $300?

A    Right. But if you also read the first time I went out, I was told it was legitimate. Ted told me that we were going up -- going to pick up materials that were his. He called me at 3:00 in the morning, to go help him, when it was snowing. That was before there was any knowledge that any of these materials were stolen.

Q    Okay. So your testimony is, the first time you went out with Ted Kimble, that you thought it was legitimate?

A    There was a number of times before I figured out what was going on, yes.

Q    All right. And Mr. Nicholes, Ted Kimble called you at 3:00 a.m.; is that right?

1057

A    Approximately, yes.

Q    All right. And he told you -- what did he tell you at that time?

A    Asked me to -- or asked -- said he needed some help and to meet him at the shop.

Q    Okay. Did you not think it was a little odd that you were meeting at 3:00 o'clock in the morning?

A    Sure. But at the time, he was my boss and he was my friend.

Q    Okay. And --

A    Wasn't an -- I mean, it wasn't an odd request. Ted, you know, liked people to do favors for him and help him out. And he treated me well.

Q    All right. Well, prior to this time, had he ever called you up at 3:00 o'clock in the morning and asked you to come down to the shop and help him out?

A    No.

Q    Was Patrick Pardee down at the shop at that -- on that occasion?

A    No.

Q    All right. So it was just you and Ted?

A    Yes.

Q    And what did Ted -- when you got down to Lyles, what did Ted say to you?

A    I don't remember exactly. Something to the effect, we

1058

needed to go pick up some doors and windows.

Q    Okay. Did you say something to Ted at that time about the fact that it was 3:00 o'clock in the morning, and you thought that was a little bit odd time to go to be picking up doors and windows?

A    No.

Q    Didn't say anything to him?

A    Huh-uh.

Q    Did you in fact go and pick up doors and windows?

A    I drove there. I didn't pick up anything.

Q    All right.

A    I had to actually study for a Spanish test that night, while in the car, while we was up there.

Q    Okay. So you just drove the truck?

A    Yeah. I mean, I helped him -- what the situation was, and I guess I -- I mean, he went up there and had to take out some screws and whatnot. I helped him load the windows afterwards into the truck.

Q    Okay.

A    That's what I was there for. He couldn't carry them by himself.

Q    All right. So they were too heavy to be carried by themselves?

A    Sure. Right.

Q    But before he got the windows to the truck, he had to

1059

remove some screws, to get the windows out of the house; is that right?

A    Uh-huh.

Q    And what about the doors, Mr. Nicholes? Did he have to remove any screws or any hinge pins or anything like that, to get the doors?

A    Yes.

Q    All right. So, while you were studying for your Spanish test real hard at that time, you noticed him moving the -- removing the screws and the hinge pins?

A    No. When I picked up the windows -- if you know anything about windows, you have a replacement window and you have windows with nailing fins. When we got them into the car, they had obviously been nailed into the house.

Q    Okay.

A    And that's how I know that. That's what I do for a living. I'm in home improvements.

Q    Okay.

A    I mean, I knew that. I was working at Lyles Building Material.

Q    So you were well-versed in construction techniques, and you knew all about installing windows and how to frame a house basically --

A    No.

Q    -- and that sort of thing?

1060

A    Well, well-versed isn't it. It's not -- doesn't take rocket science to know that a nail's been put in a window and whether it's a brand new window from Home Depot.

Q    Okay.

A    That's not being well-versed.

Q    So you were sitting out in front of some residential section. Where was this, Mr. Nicholes?

A    It's off of Brassfield Street --

Q    Okay.

A    -- Brassfield Road.

Q    Was this near Bryan Boulevard?

A    Close to.

Q    Okay. Was it an upscale residential section?

A    Yes.

Q    All right. And there were a number of houses under construction in that section?

A    Several.

Q    All right. And since you know about home improvements, Mr. Nicholes, what would you estimate the value of these doors and windows was?

A    Several thousand dollars.

Q    So they were expensive doors and windows --

A    Uh-huh.

Q    -- is that right? Did you question Ted Kimble about the nails that had been removed?

1061

A    No, not that night, I didn't.

Q    All right.

A    He just said that it was -- that what had come up was, on the first several occasions, you know, knowing builders and whatnot. And there was some stuff, there was some lumber that was legitimately acquired through these means. Sometimes builders will purchase special-order items that aren't right or aren't correct, and they're already paid for, they need to get the other items, so they would sell them. And oftentimes, people would come in and sell, you know, brand new windows to Ted. And, you know, there is -­I mean, at the time, I didn't know anything, in regards to anything different. I mean, there -- sure, there was new windows, and people would bring in lumber that was left over from a building site and whatnot to Lyles. That's what Lyles is about --

Q    All right. Did you --

A    -- selling materials.

Q    I didn't mean to cut you off, Mr. Nicholes. Do you need to say anything more in your answer?

A    No. I'm fine.

Q    But had you ever been out to a residential site with Ted Kimble, to pick up any building materials from a residential site?

A    Yes. We had -- we had picked up two-by-fours before,

1062

and had a billed receipt for them for that.

Q    Was somebody present then?

A    Yes. I mean, we had receipts and everything. And we had showed Ted's dad everything, because he was concerned about it, at first.

Q    So on those occasions, you went out to a residential site, and Ted actually paid for the materials, he paid the job superintendent or the foreman --

A    Right.

Q    -- whoever it was?

A    Correct.

Q    But on this occasion, Mr. Nicholes, this was at 3:00 o'clock in the morning; is that right?

A    Approximately 3:00 o'clock in the morning, yes.

Q    All right. And after you got these items loaded up in the truck, Ted -- did Ted Kimble pay you the $300 when you got back to Lyles, or did he pay you then?

A    I don't remember. It may have been within the next couple days. I'm really --

Q    All right.

A    -- not sure. I don't recall.

Q    And how long did that take, Mr. Nicholes?

A    What, to load the doors and windows.

Q    Yes, sir. Well, the whole thing, the trip from Lyles and back to Lyles.

1063

A    Three and a half, four hours.

Q    Okay. But if you'd gotten paid at your normal rate, you would have gotten a little bit under $30; is that right?

A    Correct.

Q    Okay. Now, you said earlier that you did this several times, before you realized that Ted Kimble was stealing these items; is that right?

A    I don't remember the amount of times or anything like that, but it was -- it was all in -- I mean, everything was so where, you know, when we were out doing this stuff and we became closer, and he was inviting, you know, my wife and child and myself out to dinner and everything, just became close, and then, you know, I was told about Patricia, and I mean, everything just came into line at one time. I mean, I feel I was manipulated. I feel that it was all set up to be like this.

Q    Well, do you feel like Ted Kimble tricked you, by telling you that, when you went out that first time, and any subsequent times, that this was a legitimate trip, where he was just going to get some doors and windows that he'd already paid you -- that he had already paid for?

A    I don't know what I was feeling at the time. I mean, -- I mean, I don't -- I don't know how to address that.

THE COURT: I hate to interrupt you at this point. How much longer are you going to be with this witness?

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MR. LLOYD: Awhile, Your Honor.

THE COURT: You may step down, sir. You may step down, Mr. Nicholes.

THE WITNESS: Me?

THE COURT: Yes.

(The witness left the witness stand.)

THE COURT: Members of the jury, we'll take our evening recess. You'll need to be back in the morning at 9:30. Please report to the jury room. Again, remember your jury responsibility sheets.

Have a nice evening. I'll see you in the morning. (The jury left the courtroom at 5:03 p.m.)

THE COURT: Any other matters before the evening recess?

MR. PANOSH: No.

MR. LLOYD: No, Your Honor.

THE COURT: 9:30 in the morning, sheriff.

(A recess was taken at 5:04 p.m., until 9:30 a.m. Tuesday, August 18, 1998.)

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TUESDAY, AUGUST 18, 1998

(Court convened at 9:34 a.m. The defendant was present. The jury was not present.)

THE COURT: Any matters we need to take care of before we bring the jury in?

MR. PANOSH: No, Your Honor.

MR. LLOYD: Your Honor, just briefly. In light of Your Honor's ruling yesterday, Judge, we would simply ask, the Court's done this for us before, if we could just interpose a line objection when the next witness -- I don't know that he's going to be the next witness, but the one that we talked about, Patrick Pardee, in the hearing, if we could just interpose a line objection to the first objection that we had.

THE COURT: The Court will allow that.

MR. LLOYD: Thank you, Your Honor.

THE COURT: Bring them in.

Mr. Nicholes, if you'll return to the witness stand, please, sir.

(The witness Robert H. Nicholes returned to the witness stand.)

(The jury entered the courtroom at 9:36 a.m.)

THE COURT: I'm pleased to have the jury panel back. I hope each of you had a nice evening and feeling okay. Anyone on the jury panel experiencing any problems

1069

this morning that I should know about, if you'll raise your hand, I'll be glad to talk with you about that.

Okay. I believe -- you may continue with the examination of the witness, cross-examination, Mr. Lloyd.

MR. LLOYD: Thank you, Your Honor.

ROBERT H. NICHOLES, having been previously duly sworn, testified as follows during CONTINUED CROSS-EXAMINATION by MR. LLOYD:

Q    Now, Mr. Nicholes, you told us yesterday that the first several trips, first several stealing trips that you went on with Ted Kimble, where you were stealing building materials from home sites --

A    Yes, sir.

Q    -- you thought those were legitimate excursions, didn't you?

A    Better put, I wanted to believe they were legitimate. Ted was a friend of mine and -- I mean, of course, 3:00 o'clock in the morning, it would cross my mind that maybe it wasn't legitimate. Ted was a friend. I mean, I -- my better judgment, I knew it was wrong. I was there to -- for the money. When he said $300, I was there for the money.

Q    Well, I thought you told us yesterday, Mr. Nicholes, that certainly with respect to that first trip, the one at 3:00 o'clock in the morning, you thought that was a legitimate enterprise?

1070

A    I thought it was -- it was legitimate. I mean, it crossed my mind, but at first -- I mean, you believe in a friend, you don't know any different. You go with your judgment at the time. Sure, it crossed my mind.

Q    And you told investigators that the first several occasions when you went with Ted to steal these building materials, that you thought that those times were legitimate; is that right?

A    Wanted to believe they were legitimate, yes.

Q    And you told investigators that you thought they were legitimate?

A    That I wanted to believe they were legitimate, yes, I did.

Q    When was the first time, Mr. Nicholes, that you realized conclusively that these late-night excursions to people's homes, where you took windows and doors and other-building materials, were not legitimate?

A    Soon thereafter the first couple I believe -- I knew --

Q    Now --

A    -- that it was wrong.

Q    I didn't mean to cut you off. Are you through with your answer?

A    That's okay.

Q    Did Ted Kimble pay you the same way he had for the first one at 3:00 a.m. in the morning?

1071

A    No.

Q    All right. Did he pay you in cash?

A    Yes.

Q    All right. When you say "No," did he just not pay you

A    It was -- it was --

Q    -- as much?

A    Yes, sir, it was not as much.

Q    Was that because what you were stealing was not as valuable as the valuable doors and windows that you stole that first time, at 3:00 a.m. in the morning?

A    I'm not sure how he came up with his method of payment

Q    All right.

A    -- but it was not $300.

Q    All right. But at any rate, you were satisfied with -- that, were you not?

A    Yes.

Q    And at some point, Mr. Nicholes, Ted Kimble actually wrote you checks from the business for the building materials supplies that you had stolen; is that right?

A    No, that's not. He had written me checks for building materials that we had stolen.

Q    All right.

A    It was not checks that I had -- it was -- when we are

1072

out and -- as I had said yesterday, when we were out going to steal stuff, and he told me that he was responsible for the death of Patricia, he told me that everything was there, and if I ever went to the police, that I would be in trouble, and that's why the checks were there, to -- so he would be able to pin it on me. He asked myself and my wife to get the trailer in our name, so it could not come back to him. He's a very smart man. He was not stupid.

Q    Well, Mr. Nicholes, did you get the trailer in your name?

A    No, I did not.

Q    All right. But you accepted the checks, nevertheless?

A    Yeah. That was included in my paychecks, for the most part. There was -- then -- when you're talking about receiving checks, you're maybe talking about one or two, and usually, that was put right into my weekly pay at $6.50 an-hour.

Q    So you're saying that Ted inflated your hours there at the business, and included that in your paycheck, when he paid you for these building supplies.

A    Sometimes. There were checks that were given to me that said "For building materials." And Ted had explained that that was if anything ever came about, it was -- it was -- he had the proof on paper that I brought him the building materials.

1073

Q    Okay. So on these checks that were separate from your pay, that said "building materials," you accepted those checks, didn't you?

A    Yes, I did.

Q    And you cashed them and you negotiated them?

A    Yes, I did.

Q    All right. Even though you say that Ted Kimble's motive in doing that was to get something on you; is that right? A    To help -- partially, yes. I mean, of course -- I needed the money. I mean, I'll be -- I needed the money. I was a student. Ted had helped me out a lot. He was a friend. But I had gotten into a situation where, you know, when we became friends, that I just knew too much. And he knew. I mean, the reason, you know, that I did this stuff, I was -- that's why I believe precisely why he told me everything he did.

Q    Now, Mr. Nicholes, prior to the 3:00 a.m. excursion, when you and Ted stole the windows and doors, had you ever sold any building materials --

A    No.

Q    -- to Ted Kimble --

A    No.

Q    -- before that time?

A    Huh-uh.

Q    Now, over the course of the time that you and Ted were

1074

involved in these thefts, this stealing, as you indicated yesterday in your testimony, this is when this, as you described it, closeness between you and Ted transpired; is that right?

A    That's correct.

Q    And as this closeness developed, it was at some point when, after that closeness between you and Ted became established, that Ted made this admission to you that you've testified to in court yesterday; is that right?

A    That is correct.

Q    Now, how long had you known Ted before you got this 3:00 a.m. call and he came over and picked you up and you went out on this first theft excursion?

A    Approximately two and a half months.

Q    All right.

A    It was whenever the first snowfall was. That's how I--remember. I don't remember the date.

Q    All right. So you -- do you recall telling investigators that it was about three months after you'd known him --

A    Yeah. That would put --

Q    -- that that occurred?

A    -- it in the December --

Q    All right.

A    -- area.

1075

Q    So that would have been sometime in December –-

A    Correct.

Q    -- sometime before the first of the year? And the stealing escalated with time; is that right?

Q    And you told police that there were at least 20 occasions when you and Ted went out to steal, by yourselves; is that right?

A    Yes.

Q    And that there were another, say, three to five times when Patrick Pardee went with you two to steal?

A    Correct.

Q    Now, when was the first time that Patrick Pardee was involved?

A    I don't recall.

Q    Well, with relation, starting with the 3:00 a.m. theft-as the first actual theft --

A    Right.

Q    -- involving you and Ted, can you pinpoint a time when Patrick became involved after that?

A    I really can't, no.

Q    Now, if you know, Mr. Nicholes, was Patrick Pardee and Ted Kimble involved in stealing building materials before you and Ted became involved in stealing building materials?

A    I don't believe so.

1076

Q    And when you first -- when Patrick Pardee first became a member of your conspiracy, what did you tell -- you and Ted tell him was the purpose of going out late at night and taking these building supplies from homes?

A    I never discussed it with Patrick. They were -- they had been best friends. Patrick just came along.

Q    All right. So it was obvious to you that Patrick knew exactly what you and Ted were doing; is that correct?

A    Yes.

Q    All right. I mean, you were going out late at night. Did you have the scanners operating at that time, Mr. Nicholes?

A    There were police scanners.

Q    And the purpose of the scanners was, that one of you would listen in on the scanners, to see if the police had any report of a theft going on?

A    That is correct.

Q    And if they -- if you did hear something on the police scanner concerning a theft in your area, then you would know to leave; is that correct?

A    Yes.

Q Now, you told police officers that you were basically a reluctant participant in these thefts involving Ted; is that right?

A    As time went on, yes, I was reluctant.

1077

Q    All right. And you told police officers that at times, you told Ted that you would not participate --

A    That is --

Q    -- in the thefts?

A    That is correct.

Q    And that -- and you told police officers at that time that Ted should -- told you you were going to participate? A    That is true.

Q    And showed you his gun?

A    Right. And came to my home at 3:00, 4:00, 4:30 in the morning --

Q    All right.

A    -- several occasions.

Q    And you were intimidated?

A    Yes, I was intimidated.

Q    And you were scared?

A    I was very scared.

Q    All right. And you went ahead and went on these theft excursions because you were afraid of Ted; is that right?

A    On -- I got out of what I could. I would -- there's many times when he'd call or come over and I'd hide, and my wife would tell him I wasn't there. But yes, I mean, I did go on some, for fear. I mean, I had -- it was -- he was my sole source of income. He was threatening me with, you know, my life and my family's well-being, because of the

1078

things I knew, because of the things he told me.

Q    So basically, at this time, you were participating almost solely because you were afraid of Ted?

A    As the time went on, yes. And I mean, for the first couple months, I'd done it for the money.

Q    Now, Mr. Pardee (sic), during that period of time when you say you participated, not for the money, but out of fear for Ted, did you look for another job at that time?

A    Yes, I looked for other jobs. It's -- I mean, I was senior year, last semester. There were certain courses I had to take, you know. Many employers are not going to hire you for two hours in the morning and then three in the afternoon. It was -- there was no way I could do it. Plus, I was -- I was told that I could not leave.

Q    Did you go to your parents, and tell them that you were in a real bind, and that you only needed enough money to finish up your last semester, and could they please help you out?

A    No, I didn't.

Q    But you could have, couldn't you, Mr. Nicholes?

A    Sure. But why involve even more people, is the way I was thinking. I mean, yeah, I was -- I was -- I was scared, I was frightened. I'm not going to bring in my -- the rest of my family. I didn't know what I was dealing with.

Q    Well, Ted wouldn't have known if you'd gone to your

1079

family, would he?

A    Sure, if I come up with the money and quit. He told me I was not going to quit, that I was staying there. I was staying there. I mean, the man brought a Glock 19 to my wedding reception. That's how -- that's how it was. That's how the relationship was. And left it at my house. My father made me return it to him that night. That was the kind of situation I was in. This is my wedding reception, and the man brings a gun to intimidate me, inside my home and my parents' home.

Q    And this same man who brought the gun to intimidate you, left the gun at your house; is that correct?

A    Yes, he did, by accident.

Q    All right. But you returned the gun to him; is that correct?

A    I returned it. My father told me it could not be at our house.

Q    Now, during the time that you worked for Ted Kimble, you developed curiosity about his probable involvement in his wife's death; is that correct?

A    Yes.

Q    And you even went to the trouble of looking up old news articles on the school's computer; is that correct --

A    Yes, I did.

Q    -- Mr. Nicholes?

1080

A    I did that, I believe, the day after the anniversary.

Q    All right. And you read those articles?

A    Yes.

Q    And you learned something about the facts, at least what was known in the news articles, about -- surrounding Patricia's death; is that right?

A    There -- in those articles, there wasn't many facts, because it was still part of a pending investigation. It just said that she was shot and burned, and it looked like an apparent, someone was trying to rob them. There weren't any details.

Q    But at any rate, you started essentially badgering Ted, about whether or not he had anything to do with his wife's death?

A    Inquiring, yes.

Q    All right. So you asked him on a number of occasions?

A    A number of occasions.

Q    And you told investigators that the response you got from him was usually just no response at all; is that right?

A    No response, or he had an alibi.

Q    All right. But you persisted?

A    Yes.

Q    You kept asking him again and again?

A    To an extent, yes.

Q    All right.

1081

A    I mean, it wasn't like daily 30 times, but yes --

Q    All right.

A    -- I kept on asking him.

Q    And according to your testimony here yesterday, finally one night, he basically admitted having involvement in his wife's death --

A    Yes.

Q    -- is that correct? And Mr. Nicholes, this was the same man that you were very much afraid of; is that right?

A    Yes.

Q    This was the man that you were too afraid to even quit your job?

A    Yes.

Q    Too afraid to turn him down on any of these stealing excursions?

A    I turned him down on some. I told you that. I did. On most of them I went, though, yes. Yes, I was very afraid.

Q    All right. Too afraid to involve your parents?

A    Correct.

Q    Too afraid to even go to the police; is that right, Mr. Nicholes?

A    Yes.

Q    Now, on some of these stealing excursions, Mr. Nicholes, when you were with Ted, he spoke to you about your

1082

drinking; is that right?

A    Not on the -- on the trips themselves, but he had talked to me about going out and drinking, yes.

Q    And basically, he didn't approve of your drinking; is that right?

A    No, he did not.

Q    All right.

A    That was one thing he was -- he did not like drinking.

Q    Now, Mr. Nicholes, at that time, did you have a drinking problem?

A    Not a drinking problem. I was a senior in college and I would go out and drink, just like -- yes -- I mean, I would not have a drinking problem, I went out and socially drank, yes.

Q    Well, have you been convicted of DWI?

A    No.

Q    All right. Had you been arrested for that?

MR. PANOSH: Object.

THE COURT: Overruled.

A    Yes.

Q    And had you been arrested more than once, Mr. Nicholes? A    At that time, no. Yes, I have been arrested more than once for that.

Q    And Mr. Nicholes, as a result of those DWI arrests, have you had a substance abuse assessment?

1083

A    No.

Q    Do you feel like, Mr. Nicholes, that you have a drinking problem?

A    No.

Q    That's despite the fact that you had at least two arrests for DWI; is that right?

A    Two arrests, one dismissal.

Q    All right. And was that dismissal as a result of your cooperation in this case?

A    No.

Q    And have the police or prosecution or anyone made you any promises concerning your other DWI arrests, in exchange for your testimony here against Ted Kimble?

A    No. I read yesterday on this, it clearly states that it has nothing to do with anything else but the larcenies and B&E's with Ted Kimble. Everything else is not part of this agreement.

Q    Do you expect any help from the prosecution concerning your DWI, even though it's not stated on your written plea agreement?

A    Not at all.

Q    Did you talk to your lawyer concerning that?

A    I don't have a lawyer.

Q    All right. In fact, Mr. Nicholes, you don't need a lawyer, do you?

1084

A    That's not it at all. There's, I mean, situations that has nothing to do with this really. I mean, if you want the answer, I blew a .07 and was taken in. That's -- I should have been let go at the time, and that's why it's going to go to trial and be dismissed. I was drinking, yes, but I was legally not intoxicated.

Q    All right.

A    And that's why I don't need an attorney.

Q    Well, did the police officer cite you for being intoxicated with some other intoxicants, such as marijuana or some drug?

A    No, sir.

Q    Now, Mr. Nicholes, were you drinking when you were out with Ted Kimble on these incidences when you were stealing from people's homes?

A    Rarely. Rarely.

Q    Was that because Ted didn't approve of it?

A    Yes.

Q    Now, Mr. Nicholes, you and Ted Kimble didn't steal just from people's homes, did you?

A    No.

Q    You stole from Home Depot --

A    Uh-huh.

Q    -- is that right?

A    That's right. Ted rented a forklift and brought all

1085

his equipment down, and we stole material from Home Depot, with Patrick.

Q    All right. So Patrick Pardee was involved in that one?

A    Yes, sir.

Q    All right. And there was another occasion when Northern Hydraulics was broken into --

A    Yeah.

Q    -- and items stolen from that? Were you involved in that, Mr. Nicholes?

A    Yes.

Q    All right. Was Patrick Pardee involved in that one?

A    Yes, he was.

Q    And what did you all steal from Northern Hydraulics?

A    Go-carts.

Q    Okay. Anything else that you can recall --

A    Yeah.

Q    -- Mr. Nicholes?

A    There's -- my direct involvement was go-carts. There was just -- some generators taken, a lawn mower taken.

Q    And out of that theft, did you get one or some of the go-carts?

A    I received a go-cart.

Q    Now, Mr. Nicholes, you indicated in your testimony that at some point, Ted Kimble left his Glock pistol at your house; is that right?

1086

A    Uh-huh.

Q    That was your folks' house at that time; is that right? A    Correct.

Q    All right. And your dad was well -- was aware of the fact that the gun was not yours and was Ted's?

A    Right.

Q    All right. And you told him that, didn't you?

A    Yes.

Q    And he told you at that time that he wanted you to take it back to Ted, that he didn't want any guns in his house; is that right?

A    Yes.

Q    Mr. Nicholes, wasn't that the perfect opportunity to bring up to your father the mess you were in, and talk to him about it?

A    I believe not. My dad is in a very prominent position -_- in the -- in the city. It's already -- this has brought him a bunch of embarrassment. I knew that bringing him into it at that time would be even worse. I mean, I could not afford to bring my family into that situation. And I didn't know -- you know, I didn't know what I was getting into. Like I said, I was very, very terrified of the situation.

Q    Well, you stated that at this time, you feared for your life --

A    I sure did.

1087

Q    -- did you not? And you thought that that was -­despite the fact that you feared for your life, you could not bring your father into this situation?

A    Correct, for fear of his.

Q    Now, before you talked to police officers, when you were arrested, did you tell anyone that you were scared to death of Ted Kimble?

A    Yes.

Q    Did you tell anybody in authority?

A    Not at the time, no.

Q    All right. You certainly didn't tell your father?

A    My father knew before I -- before Ted was arrested, when everything was kind of coming to a head, so to speak.

Q    All right. But you didn't tell him on this occasion, when the gun was in the house, did you?

A    No, I didn't. That was early February.

Q    While you and Ted were still stealing things --

A    Yes.

Q    -- is that right?

A    Yes.

Q    Now, you indicated in your testimony earlier, Mr. Nicholes, that you had read the newspaper articles off the Internet, the old newspaper articles; is that right?

A    It's not the Internet. It's a microfiche file that has

1088

Q    Okay.

A    -- the Greensboro paper on it, yes.

Q    All right. So these -- but these at any rate were the old newspaper articles that covered the course of the investigation of Patricia's death; is that right?

A    It was the -- it was the original -- the original article --

Q    All right.

A    -- is what I had read.

Q    So you would have known as much as anybody in the general public knew, at least at that time; is that right?

A    That she was shot in the head and burned to death, yes.

Q    Okay. So you were certainly armed with enough facts, and you knew that Detective Church was the lead investigator in the case, based on your review of the newspaper articles, that you could have gone to Detective Church and told him about Ted Kimble, and asked for his protection, couldn't you?

A    I was in fear of myself, and Ted had all that other stuff. I'm a senior in college, graduating, you know, great grades, have a great future in front of me, Ted's sitting there with -- you know, I mean, I had been in trouble before. I had told you that. At the time, I knew I was doing wrong, and I had been manipulated to the point where I was in between a rock and a hard place. That's precisely

1089

the reason why I was -- why Ted told me those things.

Q    But as far as your participation in the theft ring, Mr. Nicholes, some of this was, according to your testimony, was done based on Ted's coercion of you, you were virtually doing these thefts at gunpoint on some occasions; is that right?

A    Not at gunpoint, with -- not -- I mean, reference to showing me his pistol, yeah. It wasn't at gunpoint, though.

Q    But as far as you were concerned, it was life-threatening intimidation; that's what you've testified to, isn't it?

A    That I was afraid for my life, yes.

Q    And that's why you did at least some of these thefts; is that correct? That's what you've testified to before, isn't it?

A    Some of them, yes.

Q    All right. Now, Mr. Nicholes, when was it that you and Ted and Patrick Pardee stole the go-carts from Northern Hydraulics?

A    I really don't remember the date. Generally late January, perhaps.

Q    Okay. Was it after your wedding, right about your wedding?

A    No. It was before.

Q    Okay. In terms of when Ted was intimidating you, was

1090

this before or after the intimidation? Was this -- this was after Ted had come to your house on several occasions and shown you his gun and said that you were going out with him; is that right?

A    Correct.

Q    All right. And isn't it a fact, Mr. Nicholes, that after y'all got the go-carts, that you went out riding on the go-carts?

A No, I actually did not go ride the go-carts. Patrick and Ted rode the go-carts. I had the one at my house, but as far as going and taking them around the shop and taking them out, they did that. Ted had taken them out with his

girlfriend a couple times.

Q    Well, you certainly drove your go-cart, didn't you?

A    I drove my go-cart, yeah.

Q    All right.

MR. LLOYD: That's all I have, Your Honor.

REDIRECT EXAMINATION by MR. PANOSH:

Q    You indicated that you cooperated with the police and the sheriff's department prior to making your agreement. Would you give the ladies and gentlemen of the jury the details of that, please.

A    The details of that were, upon April 1st, when it was brought up about the -- when Ted was arrested, I had worked with the Greensboro Police Department, to show them -- drove

1091

around with them in the car, to show them where items had been stolen. I took them to -- what's the name of that? -­there's a place where trucks -- where you can put stuff inside trucks, and I took them across the street and pointed out everything that was taken there. This is before any agreement or anything. I done this as soon as I knew that Ted was arrested. I felt I had to. And worked with the Greensboro Police Department and then everything out of the city. I had worked with John Davis of the sheriff's department, the Guilford County sheriff, and went through much of the same thing, showing him what stuff on Lyles Building Material property was stolen and what stuff over in the truck had been stolen, and the different job sites where the stuff had come from.

Q    What day was it that you showed John Davis the items that were in possession of Lyles Building Supply that were stolen?

A    That was the day of the arrest, April 1st.

Q    At that time, had you been charged?

A    I hadn't been charged.

Q    Did you tell Detective Davis of your involvement on that day?

A    Yes, I did.

Q    Drawing your attention to the agreement, State's Number 115 I believe it is, do you see that in front of you?

1092

A    Yes.

Q    How many case numbers are on it? Would be –­

MR. PANOSH: May I approach the witness?

THE COURT: You may.

A    I don't have that one --

(Mr. Panosh indicated on the exhibit.)

Q    Do you see that portion of the agreement that makes reference to the case numbers?

A    Yes, I do.

Q    How many cases were you charged with at the time you made the agreement?

A    I was charged with three.

Q    And because of your statements, were there subsequent charges that you made reference to, totaling how many?

A    Yeah. I was -- I was charged after -- I was charged with additional 25, 26.

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

MR. LLOYD: Your Honor, I'd like to be heard outside the presence of the jury.

THE COURT: All right.

Members of the jury, if you'll step in the jury room a moment, please.

(The jury left the courtroom at 10:10 a.m.)

THE COURT: All right, sir.

MR. LLOYD: Judge Cornelius, Mr. Panosh has handed

1093

us a number of exhibits. They are mainly books or pamphlets. Here's one called "Homemade Detonators, How to Make Them, How to Salvage Them, How to Detonate Them." "Two-Component High-Explosive Mixtures." "Snipers." "Ultimate Sniper, the Video." "Homemade C-4, Closer Look." "Dispensable Silencers." Must be another one called "Silencers" in this. I don't know what it is. Here's another item on silencers.

Your Honor, I would assume that he intends at this time to introduce these items through the testimony of Mr. Nicholes. I would first point out that he certainly had a chance to do that on direct. We've now been through cross-examination, and now he seeks to introduce these.

Obviously, our position on this stuff, Your Honor, is, it's very damaging, from the standpoint of simply smear. I don't know whether it would be admissible against Ted in his trial, under some sort of 404(b) rationale. I think it goes basically to character, Your Honor. And the problem that we have with it, although none of this -- I don't expect Mr. Nicholes to testify that Ronnie Kimble had anything to do with this. It's once again trial by innuendo, trial by character assassination, character assassination on Ted Kimble, and therefore, character assassination on Ronnie Kimble, by virtue of the fact that he is Ted Kimble's brother. And that's why I think it is so

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objectionable, Your Honor. If there was ever a body of evidence that failed under whatever else you want to consider, Your Honor, this has to fail under a 403 balancing test. The potential and the danger for unfair prejudice so far outweighs any possible probative value on this, that it just cannot be admissible. And I ask Your Honor to exclude it.

THE COURT: Mr. Panosh?

MR. PANOSH: May I ask questions?

THE COURT: Sir?

MR. PANOSH: May I ask the witness questions?

THE COURT: Yes, you may.

VOIR DIRE EXAMINATION by MR. PANOSH:

Q    Drawing your attention to the exhibits that I'm placing before you, are you familiar with these items from working at Lyles Building Supply?

A    Yes, I am.

Q    And referring to the red sticker number, would you tell the Court for the record what they are.

A    State's Exhibit 117 is "How to Build Silencers, an Illustrated Manual." Ted had showed me this, on how to go to Lowe's or Home Depot and build a silencer.

Do you want me to go through them all, Mr. Panosh?

Q    Yes. If you can keep them in numerical order, it would be appreciated.

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A    Okay.

Q    If you can find 115 and start with that.

A    Start with this, 116, perhaps?

Q    All right. Start with 116.

Q    Is there more than one book in there?

A    Yes, there is.

Q    And in the course of dealing with Theodore Kimble, did he show you or discuss those books, which are State's Exhibit 116?

A    Yes. I'd seen them all. He was proud of being able to do this and handiwork with guns and whatnot. He would -- we -- a couple times, Patrick and myself and he were at the shop and he'd shoot animals or shoot at billboards and whatnot.

Q    Drawing your attention to Number 117, what is that?

A    That was the -- 117 was how to build the silencers. And this is where you can go down to Home Depot or Lowe's and buy the materials, in order to not hear the gunshot.

Q    Number 118, what is that, please?

A    118 is "Homemade C-4."

Q    What is C-4, if you know?

A    C-4 is an explosive.

Q    Did you discuss that with Theodore Kimble?

A    Yes, on -- Yes. He had told me how to -- how to do it

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at one point.

Q    Number 119?

A    119 is "Ultimate Sniper, the Video."

Q    Did he discuss the fact that he considered himself to be a sniper?

A He did not use the word "sniper," but yes, how he could -- often, he had a -- one rifle that you could shoot someone at a half a mile away, and he frequently talked about seeing people on utility poles and whatnot down on Lee Street and

how he could shoot them and no one would ever know.

Q    120?

A    "Improvised Radio Detonation Techniques."

Q    What's that about?

A    Again, with explosives, how to, you know, with radio control, how to be able to detonate explosive devices.

Q    Did Theodore Kimble discuss with you his ability to make bombs?

A    Yes, mailbox bombs, how to put them under a pylon, and when the pylon was moved, the person would be killed.

Q    121?

A    "Detonators, How to Make Them, How to Salvage Them, How to Detonate Them."

Q    Again, is that referring to his ability to make bombs?

A    It is.

Q    122?

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A    "Two-Component High-Explosive Mixtures."

Q    Did you see that in Ted Kimble or did he -- Ted Kimble's presence or did he discuss it with you?

A    We discussed this, and he had -- he had made some mixtures on Lyles' premises before.

Q    123?

A    "Never Say Lie."

Q    What is that?

A    It's a book on how to beat a polygraph test, how to act truthful when you're in interviews and whatnot.

Q    Did he discuss that with you?

A    Yes, in detail. I was taking sociology classes when I started working there, and that's when he disclosed that he had failed a polygraph test in regards to this, and did I know how he could pass it.

Q    If you testify in that regard, you're not to mention that he took a polygraph.

A    Do not mention that?

Q    Do not mention it.

A    Okay.

Q    124?

A    "How Big Brother Investigates You."

Q    Is there a 125?

A    I do not have a 125.

Q    Did there come a time when you became aware of the fact

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that he had a silencer?

A    Yes.

Q    I show you now 125. Do you recognize that item? A    Yes.

Q    Is that -- what is that item?

A    That is a silencer.

Q    Is that the one that Ted Kimble showed you, or one of the ones he showed you?

A    This is one of the ones he showed me. I've seen them made out of plastic, too, or PVC.

Q    I show you now 126. What is that?

A    Video, "Deathtrap, the Video." It's --

Q    And what does -- does that refer to booby traps?

A    It's booby trap devices.

Q    Did you and Ted discuss that?

A    We discussed not the video per se, but yes, we had discussed different booby traps and whatnot, how to rig up certain things.

Q    Based upon your experience at Lyles, did you know he had that in his possession, that videotape?

A    No, I did not.

MR. PANOSH: We'd withdraw that one.

Q    When you testified to the jury earlier that you were afraid of Theodore Kimble and his ability to harm you, did you know about all these materials?

1099

A    Yes. It was made very evident to me at all times.

MR. PANOSH: No further on voir dire.

MR. LLOYD: I don't have any questions, Your Honor.

THE COURT: Do you wish to be heard, gentlemen?

MR. PANOSH: Your Honor, we agree that on direct examination, these items were not relevant, and we would agree with some of counsel's arguments. However, on cross-examination, they spent 20 minutes trying to stake this man out to say how his fears were unreasonable. They specifically pointed out that at one point, he had Ted Kimble's gun, and at that point, he could have gone to the police. But now, in light of that, Your Honor, we're entitled to show why this man had a real, substantial fear of Ted Kimble. He didn't need a gun to kill him. He knew that he knew how to make bombs, remote-control detonating devices. He knew that he was -- considered himself to be a sniper. He had a book on sniping. And he could kill people from a half mile away.

These are the things that went into this man's consideration, when he decided not to go to the police. And we wouldn't have brought it out on direct, but now that they've spent all this time trying to show that his fears were unreasonable, they have opened the door and it should come in.

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MR. LLOYD: Judge, in terms of our opening the door, I don't see how my cross-examination opened the door. He'd already testified that he was very afraid of Ted Kimble, scared to death of him, were his words on direct examination. And he went into the reason for that. He told him that, according to his testimony, was that Ted had threatened to kill him if he ever went to the police. Now, certainly we're entitled to probe that.

It doesn't make any difference, Your Honor, in terms of the legal analysis of this -- whether this evidence is admissible. We're certainly entitled to sift him on cross-examination, based on what he said on direct examination, which is what we did.

And, Your Honor, regardless of what Mr. Panosh says about our opening the door on this matter through our cross-examination, you still have to pass this evidence through the final sieve of 403. You've got to determine whether the danger for unfair prejudice substantially outweighs any probative value this might have. And we're not -- from Mr. Panosh's standpoint, the witness has never said, "Well, maybe I wasn't afraid of Ted Kimble." He has been steadfast throughout all my cross-examination that he was very much afraid of Ted Kimble, and that's why he never went to the police or anyone else.

So this is just a subterfuge to gain admission for

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this evidence, which wasn't admissible in the first place. Mr. Panosh even admits that. And it's not admissible now, Your Honor.

THE COURT: Do you have any evidence at any point that a silencer was used in this offense?

MR. PANOSH: The silencer was not used in this offense. That silencer was seized on April the 1st at Lyles Building Supply from the desk of Ted Kimble.

THE COURT: The Court's going to exclude the evidence and would find that the probative value -- the prejudicial value -- prejudicial aspects of this evidence would outweigh any probative value it might have to this defendant.

Other questions for this witness?

MR. PANOSH: Your Honor, does your ruling preclude me from asking him the basis of his fear?

MR. LLOYD: It's already been covered, Your Honor. It's gone over.

THE COURT: What is the basis for his fear? What's the question you intend to ask him, sir?

FURTHER VOIR DIRE EXAMINATION by MR. PANOSH:

Q    Let me ask you, sir, specifically, in regard to the time that you had possession of Ted Kimble's gun, were you still afraid of him?

A    Yes.

1102

Q    Why?

A    Because he was capable of hurting me, regardless of a gun. He had many other guns. He had taught me how to -- or showed me how -- you know, how to explode things through mailboxes. Or I had gotten in an argument at school once, and he told me to get rid of the guy by putting a bomb under a pylon at the end of his driveway, and when he lifted it up, he would be killed.

MR. PANOSH: Your Honor, that would be the substance of what I'm trying to get in.

MR. LLOYD: We'd raise the same arguments as before, Your Honor. I think now we've got evidence of Ted Kimble supposedly telling this witness that you need to get rid of this -- somebody who's done you wrong at school or whatever, by putting a bomb on his property.

MR. PANOSH: We wouldn't seek to introduce the statements of that in regard to that. We want to introduce the fact that he was afraid at the time that he had possession of Ted's gun, and the reasons being that he knew that Ted Kimble had the ability to use a sniper rifle or use a bomb or use other weapons in his possession to kill him, even though he had possession of his 9mm Glock.

MR. LLOYD: Well, his testimony, Your Honor, has been entirely consistent with that. He's never backed up on that. When I cross-examined him about it, he said he was

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still afraid of Ted, regardless of whether he had his gun or not. So I don't even see what the relevance of that is.

MR. PANOSH: The relevance is, they went into it on cross-examination. They asked him again and again and again if it wasn't a reasonable thing for him to do at the time he had Mr. Kimble's gun, was just go turn himself in. They implied, if they didn't state it, there would be no reason for him to be afraid of Mr. Kimble at the time he had Kimble's gun.

THE COURT: The Court'll allow very limited questions in that area, not any specific instance of blowing up someone's -- dealing with this witness, but you may establish the witness's knowledge of Ted's capabilities as to ability to do certain things.

MR. PANOSH: May I instruct the witness, so he doesn't --

THE COURT: Yes, make sure he understands. (Mr. Panosh conferred with the witness.)

(The jury entered the courtroom at 10:28 a.m.)

THE COURT: Proceed.

CONTINUED REDIRECT EXAMINATION by MR. PANOSH:

Q    Drawing your attention to that period of time when you were in possession of Mr. Kimble's gun, Mr. Ted Kimble's gun, were you still afraid of him?

A    Yes, very much so.

1104

Q    Would you explain to the ladies and gentlemen of the jury why you were still afraid of him.

A    Over the period of months working for Ted Kimble, he had shown me that he was capable of being a sniper and proclaimed, you know, being very proud of that, had showed me silencers, how to make C-4 explosives. We had made explosives at work. He made it very evident to me that he was able to take someone out and able to get away with it, and that's why I feared. I could have his gun, I could have two of them, but he had three more and explosives, silencers, everything else, how to get away with it, he knew how. I feared for myself and my family. I couldn't go to anyone else.

MR. PANOSH: No further.

THE COURT: Mr. Lloyd?

MR. LLOYD: Just a few questions, Your Honor.

RECROSS-EXAMINATION by MR. LLOYD:

Q    Mr. Nicholes, you testified just a moment ago that you were afraid of Ted Kimble because he had shown you silencers and talked to you about how to make C-4. When Ted Kimble talked to you about -- discussed with you how to make silencers and that sort of thing, this was a give-and-take situation, where you discussed back with him, didn't you?

A    No, I did not. I was shown. I was told. He was -- at the time, you know, I'd be working, he was my employer. I

1105

would go in and he would show me this stuff. It was, as far as I feel, just straight intimidation. I have no interest in guns. I've never owned one. I've never had any interest in that whatsoever.

Q    So is it your testimony, Mr. Nicholes, that during these -- would you characterize them as lectures then?

A    Conversations. They weren't lectures. I mean -- I don't know.

Q    So there was some response on your part; is that correct?

A    Sure there was response. I didn't say there -- sit there and just, you know, not say anything. I'm sure there was a conversation involved, yes.

Q    Well, let me ask you this, Mr. Nicholes. Did you ever tell Ted Kimble that you weren't interested in that sort of thing and that you didn't care about it, and, you know, why not let's talk about basketball?

A    Yes, I did. I did. Myself and when Patrick Pardee was there, when he would bring out guns and silencers, I did not like them around. He would shoot Michael Jordan's picture off a billboard across the street, and I didn't like that. I do not like guns.

Q    All right. Now, this was at Lyles Building Supply?

A    Uh-huh.

Q    All right. And this was basically, what you're

1106

testifying to was target practice from Lyles across the street? Was this across Lee Street?

A    The sign was actually on this side of Lee Street, on the same side, but down the street.

Q    Okay. And what kind of gun was this that Mr. Kimble had?

A    At the time what we were using was simply a .22.

Q    Now, did you fire the gun on these occasions --

A    No, I --

Q    -- Mr. Nicholes?

A    did not.

Q    Okay. You indicated that Patrick Pardee was there. Did he fire the gun on these occasions?

A    No, Patrick didn't fire any guns. Patrick really didn't -- I mean -- No, I don't want to get into that. Never mind. I withdraw that.

Q    All right. Well, what is your testimony regarding Patrick Pardee?

A    He was a friend of Ted's. I really was -- besides just "Hi, bye" and being around, there's really -- I really don't know anything about Patrick.

Q    All right. But did he fire the gun on these occasions, is my question?

A    No, he did not fire the gun.

Q    All right. Now, you've indicated that there was some

1107

discussion from Ted Kimble involving C-4 explosives; is that right?

A    I didn't mention C-4, but explosives, yes.

Q    Explosives?

A    Uh-huh.

Q    And is it your testimony, Mr. Nicholes, that you didn't participate in those discussions with Ted Kimble?

A    On -- I was there when he had blown some stuff up. But as I -- as I stated, I believe this was all methods of intimidation, to keep me in line.

Q    Did it occur to you at that time, Mr. Nicholes, to go to Detective Church and tell him about this activity?

A    No, it didn't, because all I could think about is going home and having my door blow up, or my wife going in her car and having her car blow up. It was made very clear to me that, you know, a gun was a moot point. I mean, it was mean, he had many methods of hurting me. I was very scared for myself and my family.

Q    You knew from your research of the death of Patricia Kimble, and you knew from what Ted Kimble had told you, that he was a suspect in his wife's murder; is that correct?

A    That is correct.

Q    All right. And it didn't occur to you, Mr. Nicholes, to go to Detective Church or some other law-enforcement official and say, "This is the situation. I'm scared to

1108

death. I'm scared to death that this man is going to kill me. Whatever you do in this situation, you cannot let him know that I've been to see you"? It didn't occur to you to do that?

A    No, it didn't.

Q    Now, when Ted Kimble was talking to you about all these silencer things and explosive things, did you ever tell Kimble that -- Mr. Ted Kimble that you had fought somebody and ripped out somebody's eye?

A    No.

Q    And that it cost your insurance company a great deal of money, as a result of that?

A    No.

Q    You never told him anything?

A    No, sir.

Q    Did that in fact happen, Mr. Nicholes?

A    No, sir.

Q    You weren't involved in a fight, under those circumstances?

A    Not under those circumstances, no.

Q    Were you involved in a fight when there was a serious injury?

MR. PANOSH: Objection. He's answered that, please.

THE COURT: Overruled.

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A    Not when there was a serious injury, no.

Q    Did you tell Ted Kimble about that fight?

A    What fight? I just said no, that I -- I wasn't involved with a fight with a serious injury.

MR. LLOYD: That's all I have, Your Honor.

MR. PANOSH: We'd renew our motion in reference to 116 to 124, based upon the cross-examination.

THE COURT: The motion is denied.

You may step down, Mr. Nicholes.

You may stand and stretch, if you'd like, members of the jury.