MR. PANOSH: Not for the State.

THE COURT: Defense?

MR. LLOYD: No, Your Honor.

THE COURT: All right. The second phase, sentencing phase, will the State be in a position to present evidence at 2 o'clock?

MR. PANOSH: We will submit the evidence in the first phase only.

THE COURT: That will be the only evidence you'll be submitting?

MR. PANOSH: Yes, sir.

THE COURT: Aggravating factors you intend to submit?

MR. PANOSH: Your Honor, I'd like to consult my other folks before I finalize that, but I would submit at this point, I believe there is certainly pecuniary gain under 15A-2000. Under paragraph (e)(5) capital felony was committed while the defendant was engaged in an arson. And under (e)(10) defendant knowingly created a risk to more than one person by means of a weapon or device which would normally be hazardous to the lives of

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more than one person. By that, I'm referring to the arson and the fire fighters.

THE COURT: At this point, the Court is not going to rule on that. I'll give you a chance to submit those at 2:00 when we begin the sentencing phase.

MR. PANOSH: Yes, sir.

THE COURT: Will the defense attorneys,

Mr. Lloyd and Mr. Hatfield, be in a position to present your evidence at 2:00?

MR. LLOYD: Yes, sir. I think we'll be in a position to begin.

THE COURT: Do you have any projection of how long the evidence might take? I know we're getting close to the Labor Day weekend.

MR. LLOYD: Yes, sir.

THE COURT: The jurors have some concern.

MR. LLOYD: It's difficult to say, Your Honor.

It just depends so much on the witnesses, Your Honor.

THE COURT: All right, sir.

MR. LLOYD: I just -- I can't predict at this point.

THE COURT: All right, sir. Be ready to go at 2:00. You may take the defendant in custody.

THE DEFENDANT: I love you-all.

MR. PANOSH: Your Honor, we will -- if counsel

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is agreeable, I'll meet with them to see if we can stipulate to mitigating factors.

THE COURT: All right, sir.

MR. PANOSH: If that will assist.

THE COURT: I want to thank those of you who are here watching this trial. I appreciate very much you following the Court's instructions. You may now show any emotions you'd like to show. And court is in recess until 2:00.

(Luncheon recess)

AFTERNOON SESSION

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

MR. LLOYD: Yes, sir, Your Honor. If we may approach -‑

THE  COURT: Yes.

MR. LLOYD: -- with the court reporter?

(The following side-bar conference was held out of the hearing and presence of the jury:)

MR. LLOYD: Judge, it would be my intention to call the defendant's father, Ronnie, Sr., to the stand. I understand Mr. Panosh has a number of witnesses, Pardee and Nichols, whom I think would say that basically Ron, Sr., knew that

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Ted was dealing in stolen property at the business. Now, it is our very strong contention that has absolutely no relevance to this sentencing hearing. But out of an abundance of caution, I wanted to bring that to the Court's attention. And basically if we could get a prior ruling on that. I mean I just don't see what conceivable relevance it might have to Ronnie Kimble.

THE COURT: I thought there was evidence already in the record the father asked someone to bring one of those generators -‑

MR. PANOSH: That's my recollection. In addition to that, I think the record is very clear that there was a basic insurance fraud here that Mr. and Mrs. Kimble submitted that they had moved out of their home and into Ronnie's trailer and thereby collected sixteen thousand odd dollars. And the defense's own witnesses, specifically Kimberly and Ms. Wilson, said that never happened. So I think those two issues go to his

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credibility.

THE COURT: If he testifies, I think his credibility is at issue and he'll be allowed to cross-examine.

MR. LLOYD: Well, let me ask you this, Your Honor. My impression -- correct me if I'm wrong. I thought the rules of evidence -- if you attack the witness' credibility, the way you do it, the rules are clear on this, then I thought collateral matters on prior conduct when you bring up somebody else, it says in my opinion this person is not honest, his reputation in the community is one of dishonesty.

THE COURT: Goes to character evidence. Yes.

MR. LLOYD: Yes, sir.

MR. PANOSH: Under impeachment, though, I can ask him about prior acts of misconduct as long as I have good faith testimony.

THE COURT: He's correct about that too.

MR. LLOYD: As long as they're relevant. But those go to show motive, opportunity,

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intent, something other than character witness, Your Honor. Character, the rule is clear. Character evidence –­

THE COURT: If he asks him something for impeachment purposes, just -‑

MR. LLOYD: I understand that, Judge. But the way you impeach a witness on credibility -- the rules are very specific on that -- is through another witness who says you -- you know, he's not truthful. His reputation in the community is not truthful. You are not allowed to ask that witness what he bases that on. You can't go to prior specific acts of untruthfulness. And if you're talking about 404(b) evidence, that goes to show something other than character evidence. That's the clear rule.

THE COURT: What did you find out during the conference? Anything?

MR. HATFIELD: Uh-uh.

MR. PANOSH: I think it's absolutely clear that he can be asked about prior acts of misconduct as long as they relate to credibility. His credibility. Not

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Ronnie's. And I think that acts of fraud and larceny, specifically, and any acts of perjury, which is what you had in that false statement, are relevant to his credibility. If your Honor needs me to, I can find case law on that.

MR. LLOYD: Well, that may have been the rule 30 years ago before the federal rules.

THE COURT: I think the State can certainly argue in evidence there was a question about him -- question was the generator a stolen piece of property. think again it's been testified –­

MR. HATFIELD: All right. Let's talk about the rental of the trailer. There is no evidence that any request was made of Ronnie Kimble or anybody that had any ownership interest in that trailer to participate in that scheme.

THE COURT: I think you're right. As to Ronnie.

MR. HATFIELD: Or as to Ronnie, Sr. And that's not insurance fraud anyway. You know. If you can persuade -- if I have a

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right to per diem allowance because of a casualty claim, and I tell them that I need -- even though I'm a single man, I have a three-bedroom house with a two-car garage, which is essentially what Ted said to them, it's up to them to protect themselves to say you don't need that. There was no fraud. Was consummated just because one -- just because one person thinks that a two-hundred-dollar-a-night hotel is appropriate and another person thinks an eighty-nine-dollar hotel is appropriate, that doesn't mean you're committing fraud when you ask for the two-hundred-dollars-a-night one. This stuff is calculated to shed this young man's right to have his parents talk to the jury about whether to impose the death penalty upon him. And these promises of impeachment which are coldly calculated to dissuade these people who love their child from taking the witness stand are not in good faith. There's nothing about insurance fraud that Ron, Sr., is involved in. If he's involved in

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insurance fraud, they should have charged him a long time ago. And as far as whether or not he knew that a generator that he observed those young men in possession of -‑

THE COURT: The evidence -- the jury has already heard that.

MR. HATFIELD: Well, fine. We don't know that it was stolen.

THE COURT: Probably was.

MR. HATFIELD: We don't know. Every day of the week decisions are made by law enforcement officers and assistant DA's concerning whether or not an item that is stolen was known to have been stolen by somebody who possessed it.

THE COURT: I'm probably not going to let it in. I won't jeopardize the trial on this basis.

MR. PANOSH: I understand your ruling. THE COURT: I'm going to at this time keep it out. I think you've got a good trial at this point. Don't jeopardize it.

MR. PANOSH: We'd only say it's

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admissible under 608(b), specific instances of conduct of a witness, for the purpose of attacking his credibility, other than conviction of a crime may -­and then it goes on to say may not be proved by extrinsic evidence, which is accurate. We cannot bring up someone to rebut it.

THE COURT: I think he ought to be able to say what he wants to say about his son at this point of the evidence.

MR. PANOSH: Yes, sir.

MR. LLOYD: Yes, sir. 608 covers the situation, Your Honor.

THE COURT: Denied.

MR. HATFIELD: I need to talk to him for 30 seconds.

(Open court resumed)

THE COURT: All right. Bring them in.

MR. LLOYD: We're ready, Your Honor.

THE COURT: All right. They're bringing the

alternates down to the courtroom.

(Three alternates present)

THE COURT: Ms. Caldwell, how is the foot?

JUROR CALDWELL: It's fine.

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THE COURT: Did they find a fracture?

JUROR CALDWELL: Yes, they did.

THE COURT: Okay. You got it in a cast? Immobilize it?

JUROR CALDWELL: Yes.

THE COURT: Okay. I've got some information about the county's policy with regard to that. I'll be glad to get that to you.

JUROR CALDWELL: okay. Thank you.

(Jury present)

THE COURT: Very pleased to have the jury panel back. Anyone having any problems this afternoon I should know about, if you'd raise your hand, I'll be glad to talk to you about that.

Okay. We're about to begin the sentencing phase. State wish to present any evidence?