6

MR. PANOSH: Your Honor, that is hearsay, by any stretch of the imagination. I can see how the contents of the tape might be admissible to corroborate or impeach the witness Whidden, but how -‑

THE COURT: Well, if you're going to offer the label, you're going to have to let them have the tape, to see what's on there. The Court's going to order that you turn the tape over that you intend to offer, even just the cassette with the name on it. They're entitled to that.

MR. PANOSH: We would like that done now, so we can -- since the deadline is substantially passed.

THE COURT: All right, sir.

You need to make that available to counsel. You need to.

MR. HATFIELD: I don't have it with me.

THE COURT: Who has custody of it?

MR. HATFIELD: It's in my office.

THE COURT: During the break period, see if you can get it over here.

MR. HATFIELD: Can I bring it back this afternoon?

MR. PANOSH: Your Honor, we would like to be able to prepare over lunch.

MR. HATFIELD: There's nothing to prepare. He just doesn't get it, that we are not offering the contents of the tape. All it is is a commercial tape. We are

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showing the relationship between the two parties, by virtue of the name printed on the outside of the tape.

THE COURT: Well, I think they're entitled to see what's on it. It may be material, it may not. Turn it over to them before the lunch break.  All right. Next motion?

MR. PANOSH: Your Honor, the next motion for the State is a motion for pretrial determination of competency of the witness Whidden. He's flying in from Florida. He'll be available after lunch. And we ask that be heard right after lunch.

THE COURT: All right, sir.

MR. PANOSH: There are a number of motions filed by the defense. And I'm going to bring them to Your Honor's attention in the order that the certificate of service lists them, unless counsel feels that it should be done otherwise.

MR. LLOYD: Your Honor, I don't know that it should be done otherwise. There are a number of these, Judge Cornelius, that I would characterize as sort of standard death penalty motions, which we will stand on, we won't ask to be heard on.

THE COURT: All right, sir.

MR. PANOSH: The first of those is the motion to strike the death penalty as unconstitutional.

THE COURT: Well, let's go through them and just

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Conviction for First-Degree Murder.

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

MR. LLOYD: I do note that, Your Honor, since we have agreed to joinder on the first-degree arson case, that obviously that would provide a vehicle for felony murder.

THE COURT: Yeah.

MR. LLOYD: We don't know at this time whether Mr. Panosh's theory of his case, as far as first-degree murder is concerned, rests on felony murder, rests on premeditation and deliberation, or some combination thereof.

MR. PANOSH: Your Honor, we're not required to disclose that, but I'll disclose. We submit it's premeditated, deliberated and lying in wait, and that it was in the course of the commission of an arson.

THE COURT: He's listed the theory of the State's case for you.

MR. LLOYD: Thank you, Your Honor.

Thank you, Mr. Panosh.

The next one is Motion to Allow Defense Counsel to Question Jurors, Subsequent to Challenge for Cause by the State. I think the case law pretty much supports our position, at least insofar as a blanket ruling by Your Honor is concerned, and we'd simply ask that Your Honor follow the case law on that case.

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

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burned beyond recognition.

THE COURT: Is the -‑

MR. LLOYD: We are not -‑

THE COURT: -- coroner going to use any of those photographs in their testimony -‑

MR. PANOSH: Yes, Your Honor.

THE COURT: -- medical examiner?

MR. PANOSH: We have black and white and color photographs. The color photographs necessarily show details that are not available in the black and white photographs. And we would ask Your Honor not to -- first of all, the motion to limit the black and whites was never made, that I know of, but we'd ask that be denied. This appears to me to be a blanket motion to limit, to say we can't introduce photographs, and I'm sure you're aware of -‑

THE  COURT: The Court's going to allow the introduction of photographs, so long as they illustrate the witness' testimony or are used by the medical examiner or coroner to illustrate their testimony. And the Court will not allow an excessive number of them. As to the color or black or white or in color, the Court will individually look -at the photographs and rule on them.

MR. LLOYD: Thank you, Your Honor. That's all we would ask for.

MR. PANOSH: Your Honor, on that point, we have

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given counsel copies of most of the photographs, and they've had an opportunity to review the rest of them. There's also some slides, that they were at least given an opportunity to view, I don't know if they did, and some videotapes that they have reviewed.

Is that correct?

MR. LLOYD: We have not -- I don't think -- I'm not sure about the slides, Mr. Panosh. We may have to get up with you about the slides.

MR. PANOSH: The slides are in the possession of the Guilford County Sheriff's Department. If they want to see them, they can see them at any time, Your Honor.

THE COURT: The State has made the slides available to counsel.

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

MR. LLOYD: Your Honor, the next motion is, motion to permit voir dire examination of potential jurors regarding their conception of parole eligibility and a life sentence. Your Honor, this is a rather long motion. I'll put it in a nutshell.

MR. PANOSH: I think I handed up the wrong one, Your Honor. May I approach?

MR. LLOYD: I'll be glad to hand up mine, Your Honor.

THE COURT: He's got one here.

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(Mr. Panosh handed a document to the Court, and the Court handed a document to Mr. Panosh.)

MR. LLOYD: Basically, Your Honor, with the change in the law, we're all well aware that the jury will be instructed that life means life. The problem, Judge Cornelius, from a practical standpoint, it has been my experience and most of the other capital trial lawyers that I have talked to, is, jurors still harbor misconceptions concerning what a life sentence means. And for so long, we instructed them with sort of a wink and a promise, you're not to consider that thought, it's not to enter into your jury deliberations. And we all know, Your Honor, that that was not followed, that that was simply not humanly possible for a jury to follow.

And the aftermath of all of that, Judge Cornelius, is that a lot of people still harbor these misconceptions that a life sentence means parole in five, six, seven years, maybe nine years, and that's simply not the case. And the law is clear now, as to what the Court must instruct. And all we are asking for in this motion, Your Honor, is simply to ask the jurors a few questions in voir dire, concerning whether or not their conceptions about parole eligibility would interfere with their ability to render a fair and impartial verdict in this case. And that's all we're asking for, Judge Cornelius.

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THE COURT: The State wish to be heard?

MR. PANOSH: Your Honor, in State v. Neal, the court said that could not be done. In State v. Smith, which is a 1998 case, and it passes on the current sentencing life without parole structure, they specifically said it was improper for counsel to inquire as to the jury's conception of life without parole.

THE COURT: Unless you have a later case, Mr. Lloyd, I'm going to deny your request.

MR. LLOYD: Well, let me ask you this, Your Honor, because I think this would be a different situation. Would we be able to allow -- I would contend we would be able to ask the jury, under current case law, whether or not they could follow the law with respect to Your Honor's instructions.

THE COURT: That's a proper question.

MR. LLOYD: All right. With respect to Your Honor's instruction that a life sentence means life without parole.

MR. PANOSH: Your Honor, I think the instruction should come from the Court.

THE COURT: Well, if that's the question, I don't see any problem with it -‑

MR. LLOYD: Okay.

THE COURT: -- because that's what the Court will

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be telling them.

MR. LLOYD: Okay. Thank you, Your Honor.

THE COURT: If that's the extent of your question.

MR. LLOYD: And maybe that's a shorthand way of getting straight to that, Your Honor.

THE COURT: The motion is denied, other than what I've just agreed to let you ask the jury.

MR. LLOYD: Thank you, Your Honor.

Next motion, Judge Cornelius, is, motion for immediate production of statements of State's witnesses. This is basically an early Jencks motion, Your Honor. As everyone here is well aware -‑

THE COURT: Once they testify, I think you're entitled to it.

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

MR. LLOYD: Yes, sir. And we just -‑

THE COURT: Not until that time.

MR. LLOYD: And this is going to be a long and tedious trial. It's going to be difficult for all of us, Your Honor. It's going to be difficult for the members of the jury. In an effort to speed things up, rather than have us move for some kind of recess, to obtain the statements right after they've done their direct, we would ask for them at this time.

THE COURT: The State wish to comply, or do you

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wish to follow the usual procedure?

MR. PANOSH: Your Honor, there are seven discovery memorandums in there. I've provided, I would guess, 80 to 90 percent of the statements. I don't intend to hold this up, but I believe that I have more than complied with the discovery statute.

THE COURT: Well, the Court would deny your motion for immediate, other than what the State has complied with voluntarily.

While we're on this subject, we need, as best we can, some determination, because it's going to be a real hardship in picking jurors, as to how long they're going to be here on this case. What's the State's projection as to the time frame of this case?

MR. PANOSH: Your Honor, if the jury selection takes a week, the State's evidence will take a week to 10 days thereafter. I am not in a position to predict the length of defense witnesses.

THE COURT: Assuming that the State's going to take two and a half to three weeks, what's the defense projection, Mr. Hatfield, Mr. Lloyd?

(Mr. Hatfield and Mr. Lloyd conferred.)

MR. LLOYD: Judge Cornelius, after a brief conference with Mr. Hatfield, I don't see any problems with our being able to put our case on in a week or possibly

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less. I think where we may go into some real time problems is, rebuttal, after we put on our case. And I don't know how we go about predicting that at this point, but I would expect that there would be rebuttal by Mr. Panosh. After that, I don't -- you know, obviously he doesn't know what -­exactly what we plan to do, and we won't know what he plans to do.

THE COURT: So we're looking maybe five to six weeks outside?

MR. PANOSH: My estimation for rebuttal would be one to two days at the very most. I don't think I've ever had more than half a day of rebuttal. I would say four weeks would be closer, but whatever Your Honor feels is appropriate.

THE COURT: Four to five, somewhere in that range?

MR. LLOYD: I think that's about right.

THE COURT: Thank you.

MR. LLOYD: The next motion, Your Honor, is a motion for individual voir dire and sequestration of jurors during voir dire. My concern basically, as laid out in the motion, Judge Cornelius, has been -‑

THE COURT: I think that's basically discretionary with the judge.

MR. LLOYD: Yes, it is, Your Honor. And I'm not

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THE COURT: I've done it both ways, and my experience has been that it seems to move along better when we keep the box full, so to speak, so I'm going to follow that procedure.

MR. LLOYD: There may be one thing, one factor that Your Honor should be aware of, before you make your ruling and set it in stone, Judge Cornelius. There was a front-page article on this case in today's Greensboro News  and Record. I'm always amazed at how many jurors don't read the papers, but there are substantial number who do. And I think anybody who picked up the paper this morning probably saw the article and probably read the article, especially if they were coming to court. So I -‑

THE COURT: I think our courts have ruled that it's not improper to read about it, if they have knowledge of it, but can they set that aside and follow the law.

MR. LLOYD: Well, and you're exactly right, Your Honor. My concern is, I guess one of the big things is, especially when you tell the jury that it's going to be a long case, it's going to be, you know, four to five weeks, you start running into jurors who pick up on the magic words on how to get off.

THE COURT: Well -‑

MR. LLOYD: And that's always a problem, Your Honor. So --

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be heard on that.

THE COURT: All right, sir.

MR. LLOYD: Our next motion, Judge Cornelius -­

MR. PANOSH: Did Your Honor rule on that?

THE COURT: He's waiving that right.

MR. PANOSH: Thank you.

THE COURT: He does not wish to pursue it.

The motion is denied for the record.

MR. LLOYD: All right. Thank you, Judge.

Motion to prohibit the prosecutor from peremptorily challenging Blacks. That just sets out the basis for Batson and the progeny.

THE COURT: Is this a Batson case or -‑

MR. PANOSH: No, Your Honor.

THE COURT: -- have the potential -‑

MR. LLOYD: Well, it's not Batson, Your Honor, but as Your Honor is well aware of, Batson --the principle of Batson has been extended to when there is a white defendant, as well. And we simply put that on the record. I don't ask to be heard.

MR. PANOSH: Your Honor, we'd ask that be denied.

THE COURT: I'm going to deny the motion.

MR. LLOYD: All right.

And the last one, what I have termed standard death penalty motions, Your Honor, is the motion for

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everybody that's been working on this case. Ronnie Kimble was married when the alleged crime occurred, and he was married when he was placed in the jail. Whether he is still married may be subject to some doubt, because we have been told that his wife is currently seeking an absolute divorce, based on one-year separation from him.

Your Honor, we do not believe that it is possible for an inmate to violate any North Carolina law by the conduct that was involved between these two people. The only people who would have violated North Carolina law was the custodial officer.

Your Honor, we are absolutely convinced, beyond any doubt whatever, that no sexual relationship took place. So what we have here is a situation where the prosecution and the officer working for the prosecution have attempted to project an issue into the public arena to hurt the defendant and to hurt his relationship with some of his closest relatives, when they know perfectly well that no sexual relationship took place.

Janet Smith is represented by a lawyer, one of the best lawyers in Greensboro, Percy Wall. He has told us unequivocally that no sexual act took place. Our client equally contends that no sexual act took place. All pretrial disclosure militates against a sexual act. A mere kiss is the only thing that they have disclosed, and that's

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that you've been asked to do in the Mitch Whidden case, and that is, to go ahead and have a voir dire this afternoon on this issue, so that we can know once and for all whether the Court feels that this matter has any bearing whatsoever, rather than to make us wait.

It is very likely that the defendant will take the witness stand. He may not elect to put his character into issue, but he certainly will, if he takes the witness stand, put the facts of the case -‑

THE COURT: Well, if this evidence comes, it comes as rebuttal evidence, Mr. Panosh?

MR. PANOSH: Yes, sir.

THE COURT: All right. Let's reserve a ruling on it until that point. The Court will withhold ruling on this until that point in time.

MR. LLOYD: Your Honor, of course, my problem with that -- I respect Your Honor's ruling, but we've got to make the decision on how to advise our client, what to do in this case, whether or not to take the witness stand or not. And I think this is a critical piece of evidence that we have to advise him of. And obviously the decision to take the witness stand or not take the witness stand is our client's and our client's alone. But this is a -‑

THE COURT: Well, when he takes the witness stand, his credibility is at issue. What he testifies to will

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And Your Honor, since I just got this motion this morning, I haven't had a chance to bring any cases to the Court. I do remember from memory that -- I believe it's State v. Smith, and I'm sure Mr. Panosh has some sort of authority, but there are about five points on the trustworthiness exceptions that the Court needs to look at.

I would just say in general, to those -- to these comments, Your Honor, first of all, you've got the first statement that Ted made to this Dominic Harris, Ted alleged to have been made to Dominic Harris, "I didn't do it, and they are fixing to go and get my brother, and they'll find out who killed my wife," well, that's the classic self-serving statement by a codefendant. And there is no indicia of reliability in any case that you'll find in a statement of that sort.

And I think you have sort of the same situation with respect to the statements that Patrick Pardee made, in question -- in his basic answer to the question, did he kill his wife, "No. Ronnie did it." Now, there are some -- and I'll be candid with the Court, there are some incriminating parts to that statement. That's not the whole statement. And Ted Kimble does say at some point, yes, he has -- he basically admits that he had something to do with his wife's death, when he's talking -- allegedly, when he's talking to Patrick Pardee. Rob Nicholes, I think you have basically

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the same sort of situation.

I just -- I don't think any of these statements would pass those five-- that five-test -- five-point test that's set out in Smith and whatever the other case is that covers 804, instead of 803, but it's the same test, Your Honor, when you're talking about a sufficient indicia of reliability. It just strikes me that all of these statements, not only from the declarant, but also from the person who's making -- or who will be testifying in open court, all of these statements are very suspect. There's not -- they're not the kind of statements that we would put sufficient indicia of reliability into. I mean, this is the same problem that you get into where you've got a Bruton  situation. You've got a codefendant who brings in somebody else. And that's not the kind of statement that we consider reliable, Your Honor. That's the kind of statement that has to go through the test of cross-examination.

And that brings me to the final point I want to make to Your Honor, which is that it is my understanding, Your Honor, that Ted Kimble -- and I've talked to both his lawyers and they're present, and I'm sure they'll correct me - if I'm making a misstatement -- Ted Kimble will deny that he ever made these statements to Patrick Pardee, to Rob Nicholes, to whoever Mr. Panosh puts up, that he never made any statements concerning his guilt or concerning -- or

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admitting his guilt or admitting Ronnie Kimble's guilt. And if that is the case, Judge Cornelius, and Mr. Panosh says that he will -- he's assumed that Ted Kimble is unavailable, because he will assert his Fifth Amendment privilege. I don't know with respect to these statements what Ted Kimble will do, in terms of asserting his Fifth Amendment privilege, but his lawyers tell me that his position is that he never made these statements. And if that is the position, Judge Cornelius, then we have a case that covers that, and that goes back to State v. Hunt, Hunt 1, the Darryl Hunt case that was tried in Forsyth County. And if Your Honor will recall the facts of that case -‑

THE COURT: I tried that case.

MR. LLOYD: Well, I'm sure that I'm -- I'm preaching to the choir, Judge Cornelius. I know you're familiar with it, and you're familiar with the situation. You're familiar with the Supreme Court's ruling on that.

And I think we have a Hunt situation. There are a couple of cases that follow Hunt on that, as I know Your Honor is well aware of. And I think somewhere in my materials, I made a copy of the applicable part of Hunt and those other cases. -But I think we get directly into that situation, if Mr. Panosh calls Mr. Ted Kimble to the stand, in order to make him unavailable, and Mr. Kimble, instead of blanketly asserting his Fifth Amendment privilege, he says, "No, I

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never made those statements." And then, you try to impeach him, and it's not -- you know, in Darryl Hunt, it's a little bit different, because you had a statement, a written statement, that the young prostitute had made to the detectives. But there's a case that follows right after Hunt, where they talk about -- not a written statement, but just some sort of oral statement being given by somebody on the witness stand. Directly analogous to our situation.

So I think we open up a real can of worms, first of all, if we assume, as Mr. Panosh has done, that Mr. Ted Kimble will assert his Fifth Amendment privilege and thereby be unavailable. And secondly, my indication is, that he's going to deny that he ever made these statements. And if that's the case, then I think Hunt and that progeny control, and Mr. Panosh is not going to be allowed -- should not under those cases be allowed to get these statements in. If you can't get it in through the front door, if you can't put Ted Kimble up there and say, "Isn't a fact, Mr. Kimble, that you said" blah, blah, blah, and Mr. Kimble says -- Ted Kimble says, "Yes, I did say that," then you can't bring it in, because it defeats the whole purpose of what we have the -Rules of Evidence for cross-examination for hearsay. And if you can't do it up front about it, you can't go behind the back and through it -- do it through the back door.

I'll be happy to hand up those cases following

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Hunt. I know Your Honor doesn't need to reread Hunt, but I'll find the others while Mr. Panosh is talking.

MR. PANOSH: Your Honor, you have to take this case in the light that it came to trial. When it came to trial, the State wanted to join these two defendants for trial. Both counsel filed motions, requesting to sever, the reason being, they don't want their two clients to be in court and you have the statement to use against each other. So now, they want to have the same reason not to allow the State to use the existing hearsay rules.

You have to look at this case. A conspiracy was formed on or about October the 9th of 1995, and that conspiracy was to kill Patricia Kimble, to collect her insurance money, and to avoid detection. That conspiracy goes on until April the 1st of 1997, when the two defendants, Ronnie and Ted, are apprehended.

Statements of a co-conspirator made in the course of that conspiracy are admissible as an exception to the hearsay rule. We would submit most of Theodore Kimble's statements are under that exception. And of course, Your Honor has to hear the witness, hear what the witness actually says, the circumstances of the conversation, and rule upon that.

Secondly, there's exceptions -- and I don't know whether he's going to say he's unavailable or not, but there

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are exceptions, whether he is available or unavailable, for statements made against penal interest. And in each of these statements, he said, "I took part in the murder of my wife. I caused her to be killed. Ronnie actually shot her and burned her body in the house." Now, that's not in every statement, but those pieces fall into each of them. Those are definitely declarations against penal interest. And if for some reason the co-conspirator exception doesn't apply, then we would say declarations against penal interest would apply. But again, Your Honor has to hear the witness, hear the statements, and the context in which they're offered.

And counsel for Ted Kimble is here. Can you come up, please.

(Mr. John Bryson and Mr. Robert McClellan came forward.)

MR. PANOSH: Your Honor, we did not put Ted Kimble on the witness list, because I think it's inappropriate to list as a witness someone who we know is going to exercise Fifth Amendment privilege. We need to get on the record now if he's going to do it. If he's not going to do it, I'll add him to the witness list.

MR. McCLELLAN: If Your Honor please, we're not going to make a declaration today as to what our client will do. Obviously we're not in the context of this particular trial on the question we're asked yet. Until we know what the correct situation is, in terms of what stage of the

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trial it might be offered or tendered for and what the evidence might be asked for, we're not going to make a statement today as to whether our client will do something now or two weeks from now in response.

MR. PANOSH: I respect that, and I would ask Your Honor to defer ruling until we know whether their position is that they'll allow him to testify.

THE COURT: The Court will defer ruling, until there is declaration of intent to testify or not to testify.

MR. LLOYD: Your Honor, if I could just address one thing that Mr. Panosh said, I don't want there to be any misconception on. I didn't address it very well. The co­conspirator exception requires two things. Mr. Panosh touched on one of them. And that is, that it's in the course of the conspiracy. Now, our contention would be the . conspiracy ended with Patricia Kimble's death. But be that as it may, Your Honor, the most important hurdle is the second prong of that, and that is, that the statement has to be in furtherance of the conspiracy. And despite the fertile and very brilliant mind of Mr. Panosh, I challenge him to come up with a reason why any of these statements that he is suggesting are in furtherance of the conspiracy. And that's where it falls, Your Honor. It's not like we've got a situation here where you've got a couple of drug dealers and they're talking about -- and one of them calls

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up Joe Blow and talks about his next shipment that's coming in. Well, that's during the course of the conspiracy. Okay? And that's in furtherance of the conspiracy, because he's talking to Joe Blow about when the next shipment is coming in. And that's admissible, because that passes the test. That falls under the co-conspirator exception. But specifically, that factor of in furtherance of the conspiracy is what we do not have here, which is what is totally lacking in any of these statements.

So I just wish Your Honor would keep that in the forefront of your mind, in making these rulings, Your Honor. I didn't want to let that pass unchallenged, especially since I had not done a good job in addressing it in the first place, Your Honor.

THE COURT: Mr. Panosh, wish to respond?

MR. PANOSH: Your Honor, you have -- in each of these, you have to understand that during this period of time, Theodore Kimble was conspiring with Pardee and Nicholes, to go out and do these 50 odd breaking and entries that they were charged with, not each one, but separately and sometimes together. And he was keeping Nicholes and Pardee in line, and he was saying things like "I killed my wife. You go to the police, I got away with that one and I'll get away with killing you, too."

Now, there are a number of cases that say

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statements of reassurance by one of the co-conspirators is admissible, and this is in that vein. He's telling these people, "I did it. I got away with it. If you rat on me, I'll kill you, too, and you know I will get away with it." We would submit that it is part of the conspiracy.

And some of the statements, he's talking about the difficulties he's encountering in obtaining the proceeds from the life insurance policies. There was a life insurance policy the defendant -- codefendant Ted Kimble took out on the victim within two weeks of her death, for $200,000, in which he forged her signature. And he discusses that. That's certainly part of the conspiracy to kill her and part of the conspiracy to take her insurance money.

And Your Honor, we just submit that you have to hear each witness before you make an appropriate ruling on their competency.

THE COURT: Okay. The Court will withhold ruling till that point in time when it becomes necessary to rule.

MR. HATFIELD: Your Honor, may I just ask a point of clarification?

THE COURT: You may.

MR. HATFIELD: Do you intend to have a voir dire of each of these individuals outside the presence of the jury at that time, in order to determine whether we move

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forward?

THE COURT: How many of them are there?

MR. HATFIELD: There are three.

THE COURT: At some point, I suppose that will be necessary.

MR. HATFIELD: Thank you.

THE COURT: But I'd like to keep it as brief as we possibly can, and not have the jury sitting and waiting for an unreasonable length of time.

MR. LLOYD: Thank you, Your Honor.

The last motion, Judge Cornelius, is a motion in limine titled Re: Statements of the Deceased. And if I could, Your Honor, let me just go ahead and hand you up my motion. I have included what Mr. Panosh furnished us with in discovery, in terms of the motion.

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

THE COURT: All right.

MR. LLOYD: Judge Cornelius, I think the motion is basically self-explanatory. There are -- as Your Honor just read, there are a number of statements that come from the deceased in this case, that Mr. Panosh intends to introduce.

I would concede to the Court that there is case law supporting admission of those statements that come under the hearsay exception of then existing mental or emotional

50

condition. And specifically, Your Honor, there are statements, I think, that Mr. Panosh has given us, that -­where Patricia Kimble says something about being in fear. think those statements -- I don't have any case law to support the proposition that they are inadmissible. But as Your Honor is aware, having just read those statements, there are a whole bunch of other factual matters that are contained in those statements, as well. And if I could, Judge Cornelius, if I may approach and hand up to the Court State v. Hardy. It's a 1994 case. And I think it is the leading case on victims' statements under then existing mental or emotional condition.

(Mr. Lloyd handed a document to Mr. Panosh and to the Court.)

MR. LLOYD: And I would direct your attention, Judge Cornelius, down to the last paragraph on the first page, right before it says Page 228. The court says in that case, "We now receive from some prior holdings and take this opportunity to clarify this area of the law." And then it goes on down, without reading verbatim from the case, it simply holds that these statements which are of a factual nature, Judge Cornelius, are not admissible. That's specifically exempted by the rule itself.

Now, the rule in my opinion doesn't do a very good job of stating that, in terms, it makes a rather obscure

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statement, where it says, "but not including statements of memory or belief to prove a fact remembered or believed." That's sort of a law school statement that leaves many general practitioners or actual trial practitioners scratching their heads. But the Supreme Court has interpreted that for us, Your Honor. And down at the middle of the page, the last paragraph, the court states, "The statements in the diary are not statements of Karen's state of mind, but are merely a recitation of facts which describe various events."

Then they go on to say, in the last line -- or the last sentence on that page, "Statements of the declarant's state of mind are, for example, 'I'm frightened' or 'I'm angry.'" They cite State v. Locklear. And then they go on to give an exposition on why statements of fact don't have that sufficient indicia of reliability that we put into statements of fear. And they talk about that at some length in the case.

Then finally, Your Honor, on the last page of the excerpt that I've handed up, they say, in the middle paragraph, right after the cite to State v. Cummings, "We find in this case that the statements in the diary as they bear on Karen's relationship with the defendant should have been excluded, since any probative value they may have would substantially outweigh the danger of unfair prejudice."

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And they're just -- they're saying, first of all, they're not admissible under 803, then existing mental or emotional condition, and secondly, they don't pass a 403 balancing test. And so, they're just saying that they were doubly inadmissible there, Your Honor. And that being one of the stronger statements with respect to a 403 balancing test, I wanted to bring that to the Court's attention here.

But I think clearly, the bulk of these statements from -- that Mr. Panosh has indicated attributed to Patricia Kimble, the deceased in this case, are simply recitations of facts, and are therefore not admissible under any of the hearsay exceptions, and specifically under then existing mental or emotional conditions. So they're simply not admissible, Your Honor.

MR. PANOSH: Your Honor is aware of the Westbrooks case, since you tried it. That occurred -- the case was in '95, went to the Supreme Court in '96. If you'll recall in the Westbrooks case, the deceased was Jimmy Westbrooks. His sister and his father testified. His sister and father testified about the fact that his wife, before she hired someone to have him killed, had been amassing these credit card bills, these unpaid telephone bills, about the fact that he was considering a divorce, about the fact that his marriage was unhappy, about the fact that she was coming home late at night, without explanation, a lot of facts.

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And Your Honor allowed those facts to come into evidence. And the Supreme Court affirmed you, at 345 -- excuse me, 345 N.C. 43. And at Page 58, they distinguished Hardy and they explained Hardy.

May I approach?

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

MR. PANOSH: And they basically said, we didn't let the stuff in from the diary in Hardy because it just wasn't clear what it meant. They said the State failed to clarify the meanings of the diary. They went on to say the statements -- the victim's statements about the telephone calls, bills from creditors that he knew nothing about, the defendant's role in his financial situation, were admissible. Also, statements about his concern for his marriage, the wife's handling of finances, they tend to. corroborate the motive for murder. And the fact that the defendant was in debt and could not repay her obligations was admitted. And they, of course, cite Stager. And Stager was, I'm sure Your Honor's aware of, there was tape recordings of the victim. He voiced his concerns about his marriage on tape recordings, and then he put them in a safety deposit box, and they were found subsequent to his death, and all those were admitted.

Your Honor, these statements of the deceased are incredibly predicted. The week before she was killed, she

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called her friend Cara Dudley and tells about Ted taking out this $200,000 insurance policy on her and forging her name. And she said, "If anything strange happens to me, I just wanted somebody to know about this." And murder is something strange, Your Honor.

This is appropriate. These are the then existing feelings and thoughts of the murder victim, and under Stager  and under Westbrooks, they're admissible. And Hardy has been distinguished in Westbrooks.

MR. LLOYD: Well, Judge Cornelius, of course, I didn't have the -- I don't have the advantage of having been present for all of Westbrooks, but as Your Honor might remember, I had some familiarity with that case. Mr. Panosh and I on that occasion, Your Honor, were basically on the same side.                                                   -

I would just say, Judge Cornelius, I don't -­obviously I don't know the Westbrooks case like you do, like Mr. Panosh does, but I think the situation here is clearly distinguishable. We're not talking about a sort of litany of factual matters that are put forth in the discovery materials that Mr. Panosh has put forth in this case. And I think the rule in 803 clearly -- well, maybe I shouldn't say clearly, but has a prohibition against that, and that's contained, "but not including statements of memory or belief to prove the fact remembered or believed." And the rule

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itself, while I still contend to the Court inartfully stated, the meaning is clear when you think about it in terms of the way the Hardy court analyzed it. I think Mr. Panosh is entitled to get in statements such as "I am afraid," those kinds of statements, Your Honor. But when you start talking about getting in factual material, through a witness that cannot be cross-examined, I think you clearly run into confrontation problems. I think it's in violation of the rule itself, but obviously it's in violation of confrontation, if it is not allowed by a firmly-rooted hearsay exception. And that's simply not a firmly-rooted hearsay exception.

(Time was allowed for the Court.)

THE COURT: It's been over five years since I tried the Westbrooks case. I don't remember all that much of it. There's been so many cases. That's one I remember somewhat.

There are a number of statements here that the State has indicated that the deceased made shortly before her death. How many different witnesses are going to be testifying to those different statements?

MR. PANOSH: Your Honor, these statements are made to her father and her brother, Richard Blakley and Reuben Blakley, and they specifically talked about her concern for a life insurance policy that was taken out by Ted shortly

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before her death. She made -- she called a witness by the name of Gary Lyles about 10 days before her death and spoke to Gary Lyles and to his wife, Rose Lyles, and she expressed -- was in tears, and she expressed that she was very much afraid, based upon the fact that Ted had taken out this life insurance policy.

She spoke to Cara Dudley the week before her death and again went over this life insurance policy, the fact that he had forged her name, and said, "If anything strange happens to me, I just wanted someone to know," and talked about the strains on their marital relationship.

In regards to the, not this life insurance policy, but another life insurance policy that Theodore Kimble tried to take out in March of '95, the approach-- she was approached by the insurance agent, she looked at it and said, "I'm not signing anything," in reference to that insurance policy.

She made statements to her brother, Reuben Blakley, about the finances, the fact that she doesn't trust Theodore Kimble with her money, that instead of putting money in the bank, she makes extra payments on her mortgage each month, because if Ted gets the money, he'll spend it.

She made statements about Ted wanting to buy certain items, specifically a motorcycle that they could not afford, and having bought specific items, a Jeep and

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accessories, that they could not afford.

She made statements to Linda Cherry, that she was concerned about her marriage. Again, this is immediately prior to her death. At one point, she asked him why he had married her, and she said that he said it was to share his -- to have a woman to share his bed, and she was very upset, because she was -- she felt that he was not joking about it.

So in answer to your question, it's Cara Dudley, Linda Cherry, Gary and Rose Lyles, her mother, father and her brother.

MR. LLOYD: Judge Cornelius, I think one of the things that distinguishes our situation here -- and I don't mean to belabor the obvious -- but we're not -- none of these statements talk about Ronnie Kimble. I haven't heard his name mentioned yet. And that's who's on trial, Judge Cornelius. So now we've got, on top of everything else, all the problems you would have in evaluating these statements, as to whether they're fact or whether they're expression of fear, we've also got the situation in which, what is the relevance to Ronnie Kimble?

And on top of it all, it's not our job to defend Ted Kimble, Your Honor. We obviously have our hands full defending Ronnie Kimble. But statements such as this comment, "Why did you marry me?" and Ted supposedly saying, to share his bed, well, to me, Your Honor, that is character

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evidence, pure and simple. That just goes to show that -­so Mr. Panosh can argue that Ted Kimble is a cad. And it doesn't -- but the overriding principle here is, it doesn't have anything to do with Ronnie Kimble. It's just character assassination to Ted. It's hearsay concerning factual statements. But they don't even concern Ronnie Kimble. It's once again part of the overall plan to get a conviction through, not guilt by association in this case, Your Honor, it's basically guilt by kinship. And I think that's what makes our case special and what makes it distinguishable from the Westbrooks case or any other case. Because you don't have this special relationship. You don't have this stuff coming in about somebody else, not about the defendant in this case.

And I think now we're just talking about, it's -- all of this evidence, every single bit of evidence still has to pass through the 403 balancing sieve, Your Honor. And certainly this -- even if -- assuming arguendo that it passes under Mr. Panosh's theory on -- by the Westbrooks case or something like that, it still doesn't pass the 403 balancing test. It's simply character assassination on Ronnie Kimble's brother, and therefore, Ronnie Kimble must be guilty, because his brother is a cad, Your Honor. And that's what it boils down to.

MR. PANOSH: You have to bear in mind, this is a

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conspiracy. He's also charged with conspiracy with his brother. The motive, if there was a motive, is that of his brother. Now, if they want to withdraw their motion to sever, we'll try the two of them together and there'll be no problem whatsoever. But assuming that they want these cases severed, the State has to be able to allow -- be allowed to put on evidence of conspiracy. If we don't do it, if we don't show that this was not a wonderful marriage and that she was happy in it, I guarantee you the defense will put on evidence that this is a wonderful marriage. We've seen it plastered all over the newspaper this morning.

We're entitled to show the motive for the brother. And Your Honor, we'd ask you to allow the statements of the deceased to do that.

THE COURT: I think that's under the change of the way the court looks at it at some point, the fact that it is a conspiracy, and some of these things will certainly be prejudicial, had the conspiracy not been at issue in this case. And the balancing test is going to be somewhat difficult, in that they were talking about motive, and I think the State's entitled to show that.

The only thing I know is, I've just got to rule on them as they come in. I can't -- without knowing the context of how it's all going to fit in, it's going to be difficult to rule on voir dire at this particular point,

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without seeing how it's going to fit together, who's going to testify and what the relationship they have with the different parties. And then at that point, the Court's going to have to make a determination whether or not it is prejudicial or relevant or whether it goes to conspiracy or whether it goes to something else.

So I'm going to withhold ruling on it at this particular point. There's no way the Court can do that, without seeing how it's going to fit in together, the context of it.

MR. HATFIELD: Your Honor, could I say one more word?

THE COURT: Yes, sir.

MR. HATFIELD: Your Honor, some of these items really create a problem. For example, if the victim, Patricia, were making double mortgage payments because she felt her husband was a spendthrift, she owned the house exclusively herself. For her to make double mortgage payments would have been for her to apply their joint earnings to her sole benefit, because she was the only owner of record of that property, it was owned prior to the marriage, and he was not obligated on any of those loans. And there are a number of things like this, where you really get into a situation where, to cross-examine Patricia would probably reveal that the meaning of these statements was

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quite different than what the reporters of these statements believe that they mean now. And that is precisely the kind of thing which shouldn't come in.

I don't want to concede my partner's point, but I think if Patricia had reason to believe that an insurance policy was being taken out on her life without her consent and full knowledge and approval by her husband, that that probably is material. And to some extent, probably things she said indicating her concern probably are admissible.

But we're going to go beyond that into a gray area, where it really would be prejudicial, and it has no bearing on Ronnie Kimble. There are all kinds of -- that she didn't want him to buy a motorcycle.

Let me give you one more example. A few weeks before she died, they went up to Williamsburg, Virginia, and. bought a timeshare, and spent some 15 or $18,000 on this timeshare. This -- you know, we need -- God forbid, I don't mean to be offensive, but to allow Patricia to talk about some of these things, when we can't ask her the rest of the questions and to tell the rest of the story, is really prejudicial. And that doesn't have anything to do with conspiracy. If somehow, these feelings that she had that she related to her friends and relatives had some bearing on Ronnie Kimble or upon some bad relationship between the two brothers that would tend to indicate a conspiracy, yes, it

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should come in. But we don't know of her ever having said anything about Ronnie Kimble, good or bad. We hope that there simply was nothing ever said.

So, at some point, the Court probably should, I respectfully submit, set some kind of time frame, in which statements that were closely in proximity to the day she died might be given more consideration, and statements that had something to do with her present sense -- her apprehension of death or problems stemming from her husband's behavior. But value judgments, after her life has ended, concerning property acquisitions that they made, seems to me to be just highly prejudicial. And I would ask the Court to try to formulate a time frame within which to work.

THE COURT: Mr. Panosh -- how -- I noticed that one of the statements to her father was three weeks before her death. Is that as far down as it goes? The others say shortly before her death. I don't know how -- are we talking about a month, three weeks or -‑

MR. PANOSH: I need to -‑

THE COURT: -- six months?

MR. PANOSH: -- consult my notes here, and I'll tell you in a minute, Your Honor.

THE COURT: What was the date of the day of the death?

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MR. PANOSH: The date of death was October the 9th of 1995.

(Time was allowed for Mr. Panosh.)

MR. PANOSH: The date of the insurance application was September the 12th of 1995. I believe all of the statements occurred on or after -- or there was some discussion just prior to that about insurance. So I would say all the statements occurred in September, and the vast majority is after the application on the 12th of September.

THE COURT: All right. That gives you some idea, Mr. Panosh -- I mean, Mr. Hatfield, as to where we're talking about, the time span.

It's going to be a -- the Court's going to have to take it piece by piece. There's just no way to rule on these matters, without knowing the context of where they're coming in. To just arbitrarily exclude some at this point would be a foolish effort on the part of the Court at this point. I think we'll have to just wait and see what the evidence shows, and then as we get to that point, we may have to take voir dires to clear it up. But at this particular point, the Court's not going to rule, because I think you've got too many statements here, too much -- too many different people making statements, and it's going to be difficult, with the conspiracy theory and the fact that there are two brothers involved, the interrelationships and

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the -- it's just not an easy case to rule on at this particular point.

So the Court's going to withhold ruling on these matters, until they come in in the context of evidence. Any other matters before we -‑

MR. LLOYD: No, Your Honor.

MR. PANOSH: Your Honor, there is the motion to join -- sever, rather.

MR. LLOYD: Yes, sir. Excuse me. There is a motion to sever, Your Honor. Mr. Panosh has informed me that he will not oppose that motion.

THE COURT: Sever what?

MR. LLOYD: To sever Mr. Ronnie Kimble's case from Mr. Ted Kimble's case.

THE COURT: I thought that had already been taken care of. It has not?

MR. LLOYD: It's not been formally ruled on, Your Honor.

MR. PANOSH: It has not been ruled on.

THE COURT: Okay. The Court will grant your motion to sever.

MR. LLOYD: Thank you, Your Honor.

MR. PANOSH: And the other motions that we haven't made reference to are abandoned?

MR. LLOYD: Well, I'm not so sure that I'd go out

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