THE COURT: Be rebuttal evidence for the State?

3034

MR. PANOSH: May we approach?

THE COURT: Yes, sir.

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

MR. PANOSH: A few minutes ago, we heard for the first time about this psychologist Kevin Meyers. I'd like a chance to at least interview him. I've sent somebody to try to locate him. I don't know if that's -‑

THE COURT: Is that the only rebuttal witness you'll have?

MR. PANOSH: The only thing I can think of, Your Honor.

MR. LLOYD: The only thing I asked was whether he went to see a counselor. He said yes. And that was it. We didn't call the counselor. I mean there's nothing -‑

MR. PANOSH: My notes indicate he said he went to see a counselor Kevin Meyers, there was a diagnosis, and that he went on to say that in his opinion Ronnie had a mental disability. Now, certainly that

3035

charge on that, and the State is certainly entitled to find out if there's any truth to that, what the basis -‑

THE COURT: Depends on what the defendant is going to offer.

MR. LLOYD: We're not going to offer any mitigating factor on that subject, Your Honor.

MR. PANOSH: No mitigating factor on mental disability?

MR. LLOYD: We're going to ask -- the testimony was he was learning disabled. He was in learning disabled classes. We're going to put that up, and that's it.

MR. PANOSH: Learning disabled?

MR. LLOYD: Yeah.

THE COURT: Sleep disorder? Any evidence of that?

MR. LLOYD: I don't know that we'll put that in as a mitigator or not.

MR. PANOSH: If they're not going to put up the mental disability, there's no need for me to find that psychologist.

MR. LLOYD: No. Not to that extent.

3036

THE COURT: Any other rebuttal evidence other than that?

MR. PANOSH: No, sir.

THE COURT: How long do you think it's going to take us to get these -- how long is your argument going to be?

MR. LLOYD: Well, I don't know.

MR. PANOSH: I would hope that we could perhaps conclude our jury conference today. My argument would be less than an hour.

THE COURT: It's going to take a while to type all this stuff up.

MR. PANOSH: Your Honor, I've got something on the computer.

THE COURT: Why don't we have the jury come in at 10:30? Is that okay? That would give us time to get the arguments in and do some tomorrow if we have to.

MR. LLOYD: Judge, to be perfectly frank with you, I don't know if we're in a position to name all our mitigating factors at this point. I mean I need to go back and look at my notes.

THE COURT: We're not at that portion.

3037

Tomorrow morning I expect to have a list and look at them.

MR. LLOYD: Yes. Yes. I've got some of them, but I don't have -‑

MR. PANOSH: Your Honor, if it suits everybody, if you've got -- without staking himself out and give the ones he's got, I can work with the court reporter and use the computer. They're all up there. Include them or exclude them.

I'll show you what I can show you after the jury is gone.

THE COURT: The ones I see are no prior criminal activity; defendant acted under domination of another person.

MR. LLOYD: Yes, sir. We'd ask for that.

THE COURT: Those are the only -- those are the only two statutory ones I see.

MR. PANOSH: My only suggestion is after the jury is gone we can probably get a lot of it done before the end of the day.

MR. HATFIELD: Why are we starting so late?

THE COURT: I assume it's going to take a

3038

while to get all this stuff typed up.

MR. LLOYD: Judge Cornelius, suggest we come in at 9:00?

THE COURT: We come in at 9:30. The jury comes in 10, 10:30.

MR. LLOYD: We're going to type up all our -‑

MR. HATFIELD: There's only two.

MR. LLOYD: We've got the nonstatutory.

MR. HATFIELD: Well -‑

MR. PANOSH: Can we discuss this after the jury is gone?

THE COURT: What I want to know is when we need to bring the jury back.

MR. HATFIELD: Bring them back at 10, and we should start at 9 or 9:30.

MR. PANOSH: I don't oppose starting at 9 and bringing them in at 10. That's fine.

MR. LLOYD: I'm not opposed to that.

THE COURT: That's fine.

(Open court resumed)

THE COURT: Members of the jury, this will complete the evidence at the sentencing phase. Tomorrow morning when we return, the Court will -- the attorneys will make their final arguments to you in regard to the

3039

sentencing phase, and then the Court will give you instructions, and then you'll begin to deliberate the sentencing phase of this case.

It's very important that you remember again do not discuss this case among yourselves or with your family or friends, or do any investigation or research on your own. Keep an open mind about it. And do not read, watch, listen to any news media accounts of the trial if such are available to you.

Now, you'll need to be back in the morning at 10, I believe is what we discussed?

MR. LLOYD: Yes, sir.

THE COURT: 10:00. Report to the jury room at 10. And then hopefully at that time we'll be able to bring you in the courtroom and the attorneys will make their final arguments, and then the Court will give you-the instructions, and then you will begin the second phase of this trial.

Please remember those instructions. Have a nice evening. I'll see you in the morning at 10.

(Jury absent)

THE COURT: Okay. At this point, the Court will conduct the instruction conference with the attorneys. Defendant being present.

State's contentions as to aggravating factors

3040

that it will request the Court to submit to the jury?

MR. PANOSH: Your Honor, we're going to limit them to two: And the first is pecuniary gain, and the second is the arson. And I'll give you the paragraph numbers.

THE COURT: I've got it here.

MR. PANOSH: Paragraph (e)(5) and (e)(6). May I approach?

THE COURT: Yes.

MR. PANOSH: I've done a substantial amount of work, Your Honor, and I don't mind working with defense counsel and just incorporate their mitigating factors in there. I think we can probably get it done by the end of the day.

THE COURT: Does the defense wish to be heard on those two aggravating factors?

MR. LLOYD: No, Your Honor. Since we're in a death penalty situation, we object for the record, but would not ask to be heard.

THE COURT: All right, sir. Court will submit two aggravating factors, the two that the district attorney has indicated, 5 and 6 in the statute. And I've got those for the court reporter marked.

Okay. Mitigating factors on behalf of the defendant? Statutory ones first.

3041

MR. LLOYD: The statutory, as Your Honor has already indicated, Your Honor, that the defendant was under the influence or the domination (f)(5), I believe.

THE COURT: Yes, sir.

MR. LLOYD: And (f)(1), defendant has no significant history of prior criminal activity.

THE COURT: All right, sir.

MR. LLOYD: (f)(7) is one that I had thought about, Your Honor. The age of the defendant.  I know the case law speaks -- there are cases that say it's not directly related to chronological age. I don't know if there's any direct evidence that the defendant's chronological age would be less than what his actual age is, Your Honor. But I don't know that the age -- he would have been 23 at the time Patricia Kimble was killed in this case. And I don't -- I don't-know where that -- where it stops being a factor, Your Honor, to be honest with you.

THE COURT: The Court will grant your request with regards to the mitigating factor No. 1, the defendant has no significant history of prior criminal activity, and No. 5, the defendant acted under duress or under the domination of another person. And out of abundance of caution, the Court will grant your request for the age of the defendant at the time of the crime.

3042

Any others, sir?

MR. LLOYD: Statutory?

THE COURT: Yes, sir.

MR. LLOYD: No, Your Honor. Your Honor, we would ask that the Court consider giving peremptory instructions on those.

THE COURT: I'll give the standard pattern on the statutory ones.

MR. LLOYD: All right.

THE COURT: Mitigating ones, if you'll submit me a list of those you intend to call.  Mr. Panosh, you submitted other mitigating ones that you feel -- you want to be heard on those?

MR. PANOSH: I didn't submit those, Your Honor. I just typed that before we had this hearing. I wasn't sure if they would be in there or not. I agree with Your Honor's evaluation. I think that they are entitled to a peremptory on No. 1, that he has no significant criminal history. I don't -- I believe they are not entitled to a peremptory on the other two statutories.

THE COURT: Wish to be heard on it, Mr. Lloyd?

MR. LLOYD: Not any further than -- I think the evidence speaks for itself on this.

THE COURT: Court will submit those three mitigating -- statutory mitigating factors, and as I've

3043

indicated will give a peremptory instruction on number one. The other two will be the standard pattern.

MR. LLOYD: All right. And Your Honor, just to maybe save us some argument, if Your Honor could just briefly list the ones Mr. Panosh had listed.

THE COURT: He listed all of them. He just took all of them and put them in there.

MR. LLOYD: Oh, I see. He just took all the ones out of the statute.

THE COURT: Right.

MR. LLOYD: All right.

And we will have our list on --

THE COURT: You have any idea how many there might be?

MR. LLOYD: Well, Your Honor, at lunchtime and earlier, prior to that, I think I had gotten about seven-others. I'm not one of these -- I'm not a lawyer who presents, you know, a laundry list of 25 or 30. I think Mr. Hatfield and I discussed that if we could come up with what we feel are 12 solid -‑

THE COURT: The reason I ask you that, it's going to be necessary that the court reporter or clerk or someone type up that issue sheet. As you know, it will be a long sheet. And have to make at least 15 copies.

3044

MR. LLOYD: Yes, sir. In the past, I generally settle somewhere around 12. Something like that. I don't believe in putting everything.

THE COURT: All right, sir. Arguments. Of course, the defendant is going to have the closing argument. Mr. Panosh, are you going to have one argument?

MR. PANOSH: I'll have one argument. I don't know if they've indicated whether they're going to have opening.

THE COURT: Are you going to have two or one?

MR. LLOYD: We'll have two. Mr. Hatfield and I will each give one, Your Honor. And I don't -- we hadn't discussed it in detail, but we may go after Mr. Panosh back to back. I just don't know at this point.

THE COURT: He probably needs to have some idea of what you intend to do.

MR. LLOYD: Well, I don't know. I think what Mr. Hatfield said to me, we were walking back from the bench, was he sort of contemplated both of us coming after Mr. Panosh, but I'm not going to stake myself out on that at this time.

THE COURT: You may do that if you wish. Of course, that's courtesy to him to know.

3045

MR. LLOYD: All right. I don't have any problems with that, Your Honor. I will anticipate I will give the last argument for the defense. But I would argue just that one time.

THE COURT: All right, sir.

MR. LLOYD: I don't anticipate my argument going over 35, 40 minutes. At the most. May not be that long, Your Honor.

THE COURT: All right. Court will begin tomorrow -- we need to be here at 9:00 tomorrow morning to get everything finalized. And the jurors are coming in at ten, so you should be in a position to give your arguments sometime around ten.

MR. LLOYD: Yes, sir.

MR. PANOSH: Did Your Honor want me to prepare anything before the morning?

THE COURT: In what manner are you referring to, sir?

MR. PANOSH: Do you want to try to refine the charge or not?

THE COURT: I think you've got it pretty well down. I think you can go back and redo it to eliminate all those other things other than the ones we've talked here about and agreed upon as far as statutory aggravating and mitigating factors. Of course, they

3046

will be adding nonstatutory tomorrow morning that will be placed in the charge.

MR. PANOSH: Yes, sir.

THE COURT: Leave a space for that. And may save some time.

MR. PANOSH: Yes, sir.

MR. LLOYD: Your Honor, because it may have some bearing on the order which Mr. Hatfield and I argue, if I could inquire of Mr. Panosh approximately how long he intends to argue?

MR. PANOSH: Less than an hour.

THE COURT: Well, I think -- okay. He says less than an hour. You're talking about ten to eleven. So you've got 11:30 -- 11 to 12:30. Can you do both in that period of time or -‑

MR. LLOYD: Well, we may, Your Honor. I don't know.

THE COURT: Okay. Any other matters before we recess for the evening?

9:00 in the morning, Sheriff. Nine.