SEVENTEENTH DAY

September 3, 1998

(Met, pursuant to evening recess of September 2, 1998, at 9:15 a.m.)

MR. PANOSH: Your Honor, I -‑

THE COURT: Need to get the defendant in here first.

MR. LLOYD: Your Honor, if I may approach?

THE COURT: Yes.

(Defendant present)

THE COURT: Okay. At this point, let the record show the defendant is present with counsel and the State is represented by Mr. Panosh. And the Court at this point is involved in the formulation of issues that should be submitted to the jury at the sentencing phase.

I believe we agreed that there are two statutory aggravating factors the State would be submitting to the jury. Is that correct for the State?

MR. PANOSH: Yes.

THE COURT: The defendant; is that correct? Does the defendant understand what the State proposes?

MR. LLOYD: Yes, sir, Your Honor. We understand.

THE COURT: I believe there's no objection to those two being submitted; is that correct?

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MR. LLOYD: Well, Your Honor, I raised a formal objection but did not ask to be heard. I don't have any case law of anything.

THE COURT: The defendant has submitted what the Court is going to mark as Court Exhibit number -- what is this? 4?

THE CLERK: 5, Your Honor.

THE COURT: 5. Proposed mitigating factors. Defendant is proposing three statutory mitigating factors: Ronnie Kimble has no significant history of prior criminal activity. And I believe the Court has indicated it would grant that statutory mitigating factor and would in fact give a peremptory instruction that the jurors should answer that issue "yes" in his favor. There's no evidence to the contrary of that. The second statutory mitigating factor is Ronnie Kimble acted under the domination of his brother Ted. And the third statutory mitigating factor that Ronnie Kimble's age at the time he committed this crime was 23. That this is a mitigating factor. That being the statutory mitigating factors (f)(1), (f)(5), and (f)(7).

State wish to be heard on those statutory mitigating factors?

MR. PANOSH: No, Your Honor.

THE COURT: The defendant has also submitted

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mitigating factors of a nonstatutory nature but which the evidence would show could be submitted to the jury.

No. 4, Ronnie Kimble served his country as a corporal in the United States Marine Corps and was an active marine.

State wish to be heard on that? I think the evidence shows that.

MR. PANOSH: Do not wish to be heard, Your Honor.

THE COURT: Ronnie Kimble taught Sunday school at his father's church on Monnett Road and was a positive influence on younger children in the church.

State wish to be heard on that?

MR. PANOSH: No, Your Honor.

THE COURT: Court will submit that one.

Ronnie Kimble showed initiative in his youth by starting his own lawn care business. State wish to be heard?

MR. PANOSH: No, Your Honor.

THE COURT: Court will submit that.

Ronnie Kimble showed diligence as a good and hard worker from an early age.

State wish to be heard on that?

MR. PANOSH: No, Your Honor.

THE COURT: Court will submit that.

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No. 8, Ronnie Kimble did a good job in the chaplain's office in the Marine Corps. State wish to be heard?

MR. PANOSH: No, Your Honor.

THE COURT: Court will submit that as a mitigating factor.

No. 9, Ronnie Kimble was responsible for James -- how does he pronounce that?

MR. HATFIELD: Dziadaszek?

THE COURT: Dziadaszek.

MR. HATFIELD: Starts with a J in pronouncing it.

THE COURT: Ronnie Kimble was responsible for James Dziadaszek quitting drinking and becoming more active in the church.

State wish to be heard?

MR. PANOSH: No, Your Honor.

THE COURT: Court will grant that request.

No. 10, Ronnie Kimble was deprived of an active and normal father in his formative years due to his father's alcoholism and absence from the home.

State wish to be heard?

MR. PANOSH: No, Your Honor.

THE COURT: Court will grant the request.

No. 11, Ronnie Kimble had learning problems and

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was placed in learning disabled classes in school. State wish to be heard?

MR. PANOSH: I don't remember any evidence of that. I remember evidence that he was held back on at least one occasion, perhaps two.

THE COURT: Court will submit that one. I think there is some evidence of that.

Ronnie Kimble's mother was 18 and his father 20 when he was born and their youth made his upbringing not as effective as it would have been had his parents been older and more mature.

State wish to be heard?

MR. PANOSH: Pure speculation. We submit it should not go to the jury.

THE COURT: I think there's evidence of that. The Court is going to allow it.

Ronnie Kimble was an active and willing participant in his church.

State wish to be heard?

MR. PANOSH: No. Thank you.

THE COURT: Granted.

Ronnie Kimble was honest in his work dealings with those he worked for.

State wish to be heard?

MR. PANOSH: I think there should be a time

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frame placed on that.

No, Your Honor. We don't want to be heard. Thank you.

THE COURT: I'm going to grant that one also. Are there any other mitigating factors other than catch-all?

MR. LLOYD: Other than catch-all, no, sir, Your Honor.

THE COURT: Okay. Court will submit those as -­have each of you had an opportunity to review the Issues and Recommendation as to Punishment sheet?

MR. LLOYD: Yes, sir, Your Honor.

THE COURT: Did you find any errors or corrections that need to be made?

MR. LLOYD: Your Honor, I didn't find any. must admit that I -- Mr. Panosh's format is different. I noticed he does his issues and answers off a computer and I'm going by the old pattern jury typewritten instructions. But I'm assuming that insofar as these track, they're the same as the ones in the notebook. I don't -- nothing jumps out at me, Your Honor.

THE COURT: Okay. Are there any other matters we need to take care of in regard to the proposed instructions the Court will be submitting to the jury?

MR. PANOSH: Your Honor, at -- unfortunately

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it's not numbered. On the fifth full page of the paragraph that deals with the defendant acted in an -­under dominance of another person, the pattern requires that the dominance be described. And the pattern suggested, for example, that the defendant was in love with another person.

THE COURT: Right.

MR. PANOSH: I think Your Honor has to come up with some appropriate language to fit this specific case.

THE COURT: Well, let's see if we can agree upon that language at this time so there won't be any question about it.

MR. LLOYD: Your Honor, this just -- well, it's just my suggestion. I think the simpler we make it, probably the better. I thought of something along the lines: Defendant was dominated by his older brother Ted.

Throughout his life, I think Mr. Hatfield -­

THE COURT: What, sir?

MR. LLOYD: Defendant was dominated by his older brother Ted throughout his life.

THE COURT: Is that the instruction you would request the Court to define for dominance?

MR. LLOYD: Yes, sir.

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THE COURT: State have any objection to that?

MR. PANOSH: No, Your Honor. We just need to make it clear so the court reporter can get it typed in there.

THE COURT: That would read as follows: You will find this mitigating circumstance if you find that the defendant was dominated by his older brother Ted throughout his life. And would do anything to -- and that -- strike that. Throughout his life. And that as a result, the defendant was under the domination of another person when he killed the victim.

MR. LLOYD: Yes, sir.

THE COURT: Ted. Any problem with that?

MR. LLOYD: No, sir, Your Honor.

THE COURT: For the State?

MR. PANOSH: No, Your Honor.

THE COURT: Okay. Any other questions about the instructions the Court will give to the jury?

MR. PANOSH: Your Honor, on that same page, A. First, I put in there the fact that his father abused him. I take it they are not submitting that?

THE COURT: Wait a minute. Which one, sir?

MR. PANOSH: That same page, last paragraph begins with A. First, consider whether the defendant was abused by his father.

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MR. LLOYD: We're not maintaining that, Your Honor.

THE COURT: You're not asking for that?

MR. LLOYD: No, sir.

THE COURT: Then we will insert the nonstatutory mitigating factors at that point; is that correct? MR. PANOSH: Yes, sir.

MR. LLOYD: Yes, sir, Your Honor.

THE COURT: I believe there are 11 in number, nonstatutory; is that right?

MR. LLOYD: Yes, sir.

THE COURT: Any other questions about the instruction the Court will give to the jury?

Your arguments -- have you decided how you intend to do those, Gentlemen?

MR. LLOYD: Yes, sir, Your Honor. I will tell the Court I don't think my argument will be over thirty minutes. And we'd like for Mr. Panosh to go first and then Mr. Hatfield and then I will go.

THE COURT: Okay. So the State would have the opening.

MR. PANOSH: Yes, sir. I'd like to have the finalized factors in front of me when I argue.

THE COURT: Okay. If we can let the -- who's going to do that? The court reporter or the clerk?

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MR. PANOSH: I believe --

THE COURT: She's familiar with your -‑

MR. PANOSH: Your Honor, the last thing that we have is a motion in limine the State filed. I believe it's on your calendar there.

THE COURT: Gentlemen, do you have a copy of it? I think that's correct. I think that is the law. The jury has spoken. I think you have to honor that in your arguments.

MR. HATFIELD: May I address the Court?

THE COURT: Yes, sir.

MR. HATFIELD: Your Honor, we understand that it will not be submitted as a nonstatutory mitigating factor, but we are in a delicate position, because we do have a duty to talk about the evidence in the case and to try to draw from the evidence the inferences that would favor life as opposed to the alternative. And while I would not quarrel with the jury's verdict, I still think that we should be free of unnecessary interruptions as we try to make a good faith effort to draw the inferences that we think are appropriate. I can assure the Court that both Mr. Lloyd and I have thought a great deal about what we have to do today ever since we left court yesterday afternoon, and we know that the jury's decision of yesterday is not subject to

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review at this time, but this is a complex case in which there's still ways of looking at various significant pieces of evidence.

THE COURT: What do you have in mind, Mr. Hatfield? What do you have in mind that you'd like to talk to the jury about?

MR. HATFIELD: Well -‑

THE COURT: From that standpoint?

MR. HATFIELD: -- I think that some of the events of the visit to Lynchburg, Virginia, have a bearing on sentencing. I think that quite a bit of the statements and comments of Ted Kimble which came into evidence without cross-examination but were obviously considered by the jury are subject to some review. We were forced by the circumstances of our defense of this case to pursue the fact that we did not believe based on everything that we had heard about the boys that there was a close relationship to the brothers. On the other hand, we are fully satisfied that there is adequate evidence to talk about this domination factor. And I don't think -‑

THE COURT: You certainly may talk about that.

MR. HATFIELD: Yes, sir. And I don't think there's anything exclusive -‑

THE COURT: I think what the motion says is that

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you can't comment on there being any doubt about the jury's verdict. The jury has spoken. Found that he is in fact the killer of Patricia. And you can't second-guess anyone. You may talk about the dominance and Ted is more guilty than this defendant, stuff like that, then that's proper. That is a dominance issue to be submitted to the jury.

MR. HATFIELD: Well, there's also the question of the meaning of the occurrences in Lynchburg.

THE COURT: The what?

MR. HATFIELD: The meaning of what happened in Lynchburg without -- without challenging the jury's conclusion on that point. I think it's important to allow us to talk about it. I have always understood -‑

THE COURT: You may talk about his state of mind and that type stuff.

MR. HATFIELD: I just always understood that -­

THE COURT: At this point -- excuse me.

MR. HATFIELD: I'm sorry. I didn't mean to talk through the Court either but -‑

THE COURT: No. Go ahead.

MR. HATFIELD: Well, I thought that in the penalty phase that the defense lawyers could virtually argue anything that was not disrespectful of the jury and the Court and that was reasonably relevant.

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THE COURT: You can do that. But what I'm saying is you can't cast doubt on the jury's verdict. They've spoken that he is in fact guilty at this point of the event and can't second-guess them.

MR. HATFIELD: Well, I would ask the Court to give some latitude in that area and not -‑

THE COURT: I'm not going to let you speculate about the jury's verdict or second-guess them.

MR. HATFIELD: Right. But I think I should be able to complete a few sentences and a few thoughts without the pattern of excessive interruption that has taken place in the rest of this trial. I think we ought to be allowed to talk about this case. It's hard enough -‑

THE COURT: That's what I'm asking. What are you going to be saying, so we don't get into that having to be interrupted and stopped?

MR. HATFIELD: Well -‑

motion. But you can't second-guess this jury as to what they've already found.

MR. HATFIELD: The way I read the motion in limine is it says that residual doubt is not a nonstatutory mitigating factor. To that proposition we concur. But if the motion in limine is intended as some sort of warning shot over the bow that we can't talk about this case -‑

THE COURT: Well, don't retry the case in the sentencing phase is what I'm saying to you. Guilt phase -- I mean guilt/innocence in the sentencing phase. That's basically what the cases are saying.

MR. HATFIELD: Well, I just -- I agree with the basic time frame that the Court is looking for today. But I think it would be better for all concerned if we had a minimum of interruptions and if we could give --

THE COURT: I hope you all would do that. I think in fairness of the arguments that you be allowed to make your argument without interruption. But of course you have a responsibility to protect the record, make sure that nothing goes to the jury that shouldn't go there, and that's your obligation and duty to make sure that doesn't happen. And the Court is here to rule on it. But what I'm saying to you is don't try to -- in

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your arguments to cast doubt about the jury's verdict or to point a finger at someone else, and this type stuff, at this stage. You can't retry the guilt phase in the sentencing phase. They've spoken. They found that he's guilty of first-degree murder, and that's a finding that shouldn't be contested at this point before this jury. But you certainly may talk about the dominance and other people involved and how they affected this defendant.

MR. HATFIELD: And about his state of mind -‑

THE COURT: I think you can talk about that.

MR. HATFIELD: -- at various times?

THE COURT: I think you can talk about his state of mind. There is evidence -- the jury can judge his state of mind by his own statements and his own actions.

Anything else?

Well, this jury is due in at ten, and the court reporter is going to have to get these 15 verdict sheets or 15 recommendation sheets, instruction sheets, available so they can be passed out. Hopefully, we'll be in a position to begin at 10 a.m. for the jury arguments.

We'll stand at ease until then.

(Court at ease)

THE COURT: Got 15?

THE CLERK: Yes, sir.

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THE COURT: Okay. Now, ready to bring the jury in?