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Volume 1, continued - State's Voir Dire Witness 66 (Mr. Lloyd handed documents to the Court.) THE COURT: What matters do you have to take care of, gentlemen? MR. PANOSH: The last matter is the motion for the State, the competency motion, and we'd call our first witness, Mr. Whidden. THE COURT: Come around and be sworn, please. MR. PANOSH: Would you please approach the bailiff. LOUIE MITCHELL WHIDDEN, JR., being first duly sworn, testified as follows during VOIR DIRE EXAMINATION by MR. PANOSH: Q Would you please state your name. A Louie Mitchell Whidden, Jr. Q And you are an ordained minister of the Baptist faith? is that correct? A Yes, sir. Q And you have a congregation that is not in the state of North Carolina; is that correct? A Yes, sir. Q And I believe you told me that you were ordained by that church, which is not in the state of North Carolina, on May the 17th of 1998; is that correct? A Yes, sir, it is. Q Prior to occupying your position, reverend, where -- 67 MR. HATFIELD: Object to him calling him a reverend. THE COURT: Well, he's an ordained minister. Is that -- Do you have the title of reverend, sir? THE WITNESS: Yes, sir, I do. THE COURT: Overruled. Q Where did you -- where were you, sir? Let me restate that. Prior to working where you are now a minister, where were you living? A In Lynchburg, Virginia. Q And what period of time were you living in Lynchburg, Virginia? A I was living in Lynchburg from the 19th of August, in '96, I believe. Then I left, went down to Florida for a period of about six months. Q Okay. A And then came back to Lynchburg, Virginia, until about four months ago. Q And you were going through a training in Lynchburg, Virginia; is that right? A Yes, sir. Q And what facility or institution was that? A Liberty Bible Institute. Q And your specific area of study was? 68 A Pastoral studies. Q Now, going back before August of '96, when you moved to Lynchburg, where were you living? A I was living in Jacksonville, North Carolina. Q And what were your -- were you employed there? A Yes, sir. Q And where were you employed? A I was employed at the U.S. Marines, Camp Lejeune. Q Now, what was your specialty in the Marine Corps? A I was in the infantry. Q And you had a four-year commitment; is that correct? A Yes, sir. Q Did there come a time near the end of your four-year commitment when you changed your specialty or you were transferred to another unit? A Yes, sir. I was transferred to another unit, at my request, to learn more about the chaplain program, as a chaplain's assistant. Q And I believe you stated the last six months in the Marine Corps, you were a chaplain's assistant? A Yes, sir. Q Were you assigned to a specific facility as a chaplain's assistant? A Yes, sir, I was. I was assigned to Courthouse Bay. Q Courthouse Bay? What is Courthouse Bay? 69 A It is a section on Camp Lejeune devoted to the training of young Marines at a chapel. Q And you were actually assigned to work in the chapel? A Yes, sir. Q And what were your duties there at the chapel? A Mostly clerical. Q Now, during the period of time that you were in the - acting as an assistant in the chaplain's corps, did you meet Ronnie Kimble? A Yes, sir, I did, shortly after I was there. Q Would you explain how you came in contact with Mr. Kimble. A He would deliver supplies to Courthouse Bay, because he was the supply clerk. Q Was he also an enlisted Marine? A Yes, sir. Q And how frequently did you see Mr. Ronnie Kimble? A On the average, once to twice a week. Q And that would have been for the full four or five months that you knew him? A Yes, sir. Q Did you and Mr. Ronnie Kimble develop a friendship? A Yes, sir. Q Could you explain the nature of your friendship. A He would come out to Courthouse Bay, and we had extra 70 time, because it was a long drive out there for him, so we would sit down and talk. And occasionally, we would shoot pool in the back room, while we were waiting, because it was about lunchtime when he would normally come out. Q So there was a pool table in the chapel facilities? A Yes, sir. In the back room, there was a recreational facility in the back of the chapel. Q During the period of time that you knew him as a friend in the Marine Corps, did he ever discuss with you the fact that his sister-in-law, Patricia Kimble, had been killed? A Yes, sir, he did. Q And what did he tell you? A Told me that his sister-in-law had been brutally murdered. Q Did he give you any further facts? A Yes, sir. He told me that his brother was under investigation, that his brother did not do it, and that the police were pressuring him, to get to his brother. Q Did he give you specific facts about the crime itself? A Yes, sir, he did. He told me that there was some sort of tool chest moved during the crime. He told me this, to -- he expressed that he was trying to figure out who did it, and that he was going over the facts in his mind, that there was some large tool chest that was moved, and that his -that his car was seen near the crime scene, but that he had 71 a gas receipt for getting gas at a gas station across town. Q And on how many occasions approximately did you and he discuss this? A Estimated three to four. Q You then left the Marine Corps in, I believe you said, August of 1996? A Yes, sir. Q And you moved to Lynchburg? A Yes, sir. Q After you left the Marine Corps and moved to Lynchburg, did you have any further contact with Ronnie Kimble? A Yes, sir, I did. He called me sometime later and expressed interest in going into the ministry, and interest in the school that I was attending at that time. Q And did you speak to him on the telephone? A Yes, sir, I did. Q What did you speak to him about on the telephone? A His coming up to visit the facilities at Liberty University and to visit us, to see if he wanted to attend that school. Q When you say "visit us," who are you referring to? A My wife and I. Q Did your wife know Ronnie Kimble? A No. Q Did your wife know who Ronnie Kimble was? 72 A Yes, sir. Q Did you know Ronnie Kimble's wife? A Not at that time. Q What, if any, plans were made on the telephone for him to come and visit you? A He planned to come up and visit at a later date, when he would have time of leave from the Marine Corps. Q And on January the 24th, did he -- of 1997, did he in fact come to visit you? A Yes, he did. Q Had you supplied him with your address and directions to get to your home on the telephone? A Yes, sir, I had. Actually, I met him at the campus, because it was easier to find. Q And was that meeting arranged on the telephone? A Yes, sir, it was. Q And do you remember where you met him at the campus? A Yes, sir. I met him in the parking lot entering the campus. Q And after you met him, did you then -- or where did you take him? A He followed us to our house. MR. LLOYD: Excuse me. I didn't hear the last part of that answer. THE WITNESS: He followed us to our house. 73 Q And when you say "us," again, you're referring to you and your wife? A Yes. Q And who was with him? A His wife. Q And what was the purpose of their visit there in Lynchburg? A To investigate the school, to see if he would want to attend it. Q Now, on January the 24th, and going into the 25th of 1997, did he stay at your home? A Yes, sir, he did. Q And did you have dinner there at home? A No, sir. We went out to eat. Q And when you went out to dinner, what was the --Well, let me ask you this. When you went to dinner, did the conversation turn to Ronnie coming to Liberty University? A Yes, it did. Q Would you tell the Court about that conversation. A He had expressed interest in coming to Liberty University and expressed interest in being in the ministry. I then told him that he should come and sit through a class with me, to see how he liked the school. And then he said he wanted to, but his past was haunting him, and he had some things in his past that may prevent him from being in the 74 ministry. Q Where were you, when he said these things about his past haunting him? A Sitting at the dinner table. Q Who else was present? A My wife and his wife. Q After dinner, did you have a further conversation with him? A Yes, I did. Q Where did that take place? A In the car on the way home. Q Would you tell the Court about that, please. A In the car on the way home, he told me that he needed to talk to me when we got home, he had some things he needed to discuss with me, and that he had had some struggles in, the past. Q When he said "struggles," did he elaborate on what that meant? A Yes. He said that he had struggled with pornography in the past, and that he also had other things he wanted to talk to me about. Q And all this was in the context of whether or not he should come to train as a minister? A Yes, sir. Q Did the conversation continue? 75 A Yes, sir, it did. Q And where did it continue? A At my house. Q And who was present at that continued conversation? A Ronnie Kimble and I. Q And what, if anything, did Ronnie tell you? A Ronnie then told me that he had killed his sister-in-law. Q Do you remember what he told you about that? A He told me that he had killed his sister-in-law. I then asked him why he did it. He expressed to me that he did it purely out of greed, and that his brother was going to pay him to do it. Q Did he say anything else to you? A It's hard to recollect the entire conversation. That was the basic thought of it. Q After he told you this, what, if anything, did you say to him? A He told me that he was -- he told me that he was thinking of killing his self, and he asked me if a person would go to hell for killing their selves. I told him that I did not think a person would go to hell for killing their self, but that he should not have thoughts like that and he should not think of that. He then told me that he wanted -- he wanted to know 76 what to do with the money, and he asked me if I would do something with it, if I would put it to use in God's work. I told him that it was blood money and that he should not tell me anything any further, but that he should turn his self in. Q When he mentioned the money, did he indicate where the money was coming from? A His brother. Q And did he indicate where his brother was getting the money from? A No, he didn't. Q Did he indicate whether or not he had received the money? A Yes, sir. He said he hadn't received it yet. Q Did you have any discussion about whether or not he would remain in your home? A Yes, sir, we did. He asked me if I thought any less of him. I told him I did not know what to think. And then he asked me if he -- if I wanted him to leave. I told him that I thought it would be best if he left. We then agreed -- I did not want to upset him any further, so we agreed that he - could stay the night, as long as he left first thing in the morning. Q You said you didn't want to upset who, please? A Ronnie Kimble. 77 Q And why was that? A I didn't feel he was upset with me at that time, but in light of the fact that he was a murderer, I was afraid for my life and the life of my family. That's why I didn't want to upset him. Q Did you have a discussion about whether he should leave and when he should leave? A Yes, sir, we did. Q Do you remember what was said? A Yes, sir. We discussed him leaving that night, but that he would need a good excuse, so that his wife would not get suspicious as to why they were leaving. So we then looked at the weather, and the-weather did not look like there was any reason where he would have to leave that night, so we decided that he could stay till the morning, provided he left in the morning. Q And the reason that he didn't want to leave at that time was, he didn't want to explain the leaving to his wife? A Yes, sir. Q The next day -- Or excuse me. What happened after that? A After that, we all went to bed. And I laid awake all night. The next morning, Ronnie Kimble left, and my wife knew something was wrong with me, because of the way I was acting. It made me literally sick. She then asked me if he 78 killed his sister-in-law, and I told her yes, and that I would have to turn him in. Q After you -- Excuse me. After Ronnie Kimble left your house, what did you do? A I called a relative that I knew had a handgun, and asked them if they would bring that to me, if I had to defend myself, because I was very shook up. I then went and talked with a close confidant, that was my pastor at the time, and he advised me to speak with a lawyer, in regards to my legal obligations when someone tells you something of that nature. Q And did you in fact speak to a lawyer or lawyers in Lynchburg, Virginia? A Yes, sir, I did. Q And based upon their advice, did you at a later time contact the Greensboro Police Department? A Yes, sir, I did. I'm sorry. The Guilford County Sheriff's Department? A Yes, sir, I did. Q And did there come a time when you were interviewed by Special Agent Pendergrass of the State Bureau of Investigation, and by Detective Church of the Guilford County Sheriff's Department? A Yes, sir. 79 A That took place in the lawyer's office. Q Now, before actually being interviewed by Pendergrass and Church, did you have further contact with the defendant, Ronnie Kimble? A No, I did not, before the first interview. Q Okay. Did there come a time when you went to Camp Lejeune? A Yes, sir, I did. Q Would you explain how and when you went to Camp Lejeune. A After I spoke with the lawyers, I went down to Camp Lejeune to try to convince Ronnie Kimble to turn his self in one more time. Q And did you meet him in Camp Lejeune? A Yes, sir, I did. Q And I believe that you have saved a parking sticker from your trip there; is that correct? A Yes, sir. Q And that would have been dated on the 28th of January; is that correct? A Yes, sir. Q When you spoke to Ronnie Kimble on or about the 28th of January, what did he say to you? A He told me that he's not sure if he even did it, and that maybe it was just a bad dream. 80 Q Did he say anything else? A He told me that he believed that it was his sister-in-law's time to go, because he believed that no one could die before their time, no matter who did it. Q And did you say anything to him? A I let him know that I had talked with lawyers about my legal obligation. Q Did you say that to him before or after he said it might have just been a bad dream? A After. Q Did you say anything else to him? A Yes. I tried to convince him to turn his self in one more time, and tried to convince him not to consider killing his self anymore. Q Do you remember what he told you? A He told me that he would die before he went to jail, because he didn't want to get the electric chair. Q Did there come a time when you offered to have further conversations with him? A He expressed interest that he might want to call me. I suggested that he not. Q And what did you say to him and what did he respond? A I don't recall. MR. HATFIELD: I couldn't hear what you said. THE COURT: He doesn't recall. 81 Repeat your answer again, please. THE WITNESS: I do not recall. (Mr. Panosh showed an exhibit to Mr. Lloyd. Mr. Panosh and Mr. Lloyd conferred.) MR. PANOSH: May I approach? (Mr. Panosh showed an exhibit to the Court.) Q I'm going to show you now what's been marked as Voir Dire Number 1. Do you recall giving that statement to Agents Pendergrass and Church while you were in your attorney's office in Lynchburg, Virginia? A Yes, sir, I do. Q And have you had a chance to read that and review it? A Yes, sir, I have. Q And is that accurate? A Yes, sir, it is. Q Drawing your attention to Page 2, at the bottom paragraph there, I believe you said that Ronnie asked you if you would take the money, and asked if it could be used for God's work; is that correct? A Yes, sir. Q And do you remember what you told him? A Yes, sir. I told him that it was blood money, and that that idea was crazy, and that he needed to turn his self in. Q And then drawing your attention to Page 4, when he told you that he thought it might have been a bad dream, 82 there in the first paragraph, do you remember what you told him? A Yes, sir. I told him that if his brother gave him some money, that he would know that he did it and that it was not a bad dream. Q And going back to the very first page there -- or excuse me, the second page, in the third paragraph, you indicated that once upstairs, Mr. Kimble made certain statements to you, and about his demeanor. What was his demeanor at that time? A He was crying. Q After your conversation with Ronnie Kimble at Camp Lejeune, did you then return to Lynchburg and give the statement which has been marked as Voir Dire Number 1? A Yes, sir, I did. Q Have you had any further contact with Ronnie Kimble? A No, I haven't. Q Did you maintain your residence there in Lynchburg after January the 25th of 1997? A No, sir, I did not. Q Where did you go that night, after he told you these things and he left your house? A To a hotel. Q And why did you go to a hotel? A Because I was concerned for the life of my family and 83 I. Q And after that, you went to Camp Lejeune; is that correct? A After that, if I'm not mistaken, the sequence of events was that I went and stayed at a relative's house for a couple of days out of this city, and then to Camp Lejeune. Q And after that, where did you go? A Back to my residence, to pack up my belongings and go to another state. Q And why did you leave the state? A For fear for my family's life. MR. PANOSH: No further questions. Thank you. MR. LLOYD: May we approach, Your Honor? THE COURT: Yes, you may. (Counsel conferred with the Court at the bench.) (Mr. Lloyd left the courtroom at 2:36 p.m.) MR. PANOSH: Your Honor, in counsel's absence, I believe you need to clarify -‑ THE COURT: Mark the record there was a personal request from the attorney to step out for a moment. MR. PANOSH: -- whether there has been a motion for complete recordation and your ruling. THE COURT: The motion -- I'm sure you make that motion, Mr. Hatfield; is that correct? 84 The Court's going to grant it anyway, complete recordation of all the testimony. Which is easier for you, Marsha, to come up here, or what? THE COURT REPORTER: As opposed to what, going back in the back room, maybe, or -‑ THE COURT: Well, most of them -‑ THE COURT REPORTER: Excuse me? THE COURT: Most of them would be here at the bench. MR. HATFIELD: Your Honor, I did not make that motion. I think it's too time consuming, and I'm sure the Court would make sure that any serious matters would be -‑ THE COURT: In the past, we've kind of summarily -- one attorney summarily would give the court reporter a list of what the conference is about, discussed at the bench. (Mr. Lloyd returned to the courtroom at 2:41 p.m.) MR. PANOSH: Your Honor, with your permission, I have one further question. THE COURT: All right, sir. MR. PANOSH: May I approach? (Mr. Panosh handed a cassette tape to the witness.) FURTHER VOIR DIRE EXAMINATION by MR. PANOSH: Q Do you recognize that item, sir? 85 A Yes, sir, I do. Q What is that? A That is a tape that I gave to Ronnie Kimble, with my name and phone number on it. MR. HATFIELD: I object to its being marked. It's our property. We're not offering it. We gave it to Panosh for a limited purpose, and that was, for him to verify it. It's our property. He now seeks to mark it for identification, and that's highly improper. THE COURT: He's just having him identify it. MR. HATFIELD: Well, Your Honor, if it's identified, it may be admitted as an exhibit, and it belongs to the defense. THE COURT: He has not admitted it. He's simply asked him to identify it. MR. PANOSH: Your Honor, to address Mr. Hatfield's concerns, I'm going to label the copy that he provided me as Voir Dire Number 2. And if the record could reflect that he's identifying a cassette tape, which has been labeled as Voir Dire Number 2. Q I'm sorry, sir. I didn't hear your response. That's-a tape that what? A That's a tape that I gave to Ronnie Kimble, with my name and address on it and phone number. Q And when did you give him that? 86 A Before I got out of the service. MR. PANOSH: No further questions. Thank you. THE COURT: Cross-examination? MR. LLOYD: Thank you, Your Honor. VOIR DIRE EXAMINATION by MR. LLOYD: Q Reverend Whidden, you indicated that you are an ordained Baptist minister now; is that correct? A Yes, sir, it is. Q And when did that take place? A May 17th. Q And let me ask you this, Reverend Whidden. Do you -you were -- before that time, you were active in the church, were you not? A Yes, sir. Q Okay. Have you always been of the Baptist faith? A Yes, sir. Q All right. And before you ever went into the Marine Corps, you were active in the Baptist church, were you not? A Yes, sir. Q All right. And while you were in the Marine Corps, were you active in the church at that time? A Yes, sir. Q And there came a time in the Marine Corps when you decided to pursue a calling as a minister; is that right? 87 A Yes, sir, it is. Q Now, was that early in your Marine Corps career, or was that towards the latter part, or when? A About a quarter into it, about a year, approximately, after I'd entered the Marine Corps. Q Okay. So you signed up for a four-year tour of duty; is that right? A Yes, sir. Q But by the end of your first year, you pretty much decided that you were not going to make the Marine Corps a career, and instead, you were going to go into the ministry; is that right? A No, sir, not exactly. Q All right. Well, tell me, what did you decide, Reverend Whidden? A I decided that I would go into the ministry, whether it be ministry in the service or ministry outside of the service. Q All right. So, in your mind, there was some possibility, as far as you were concerned, that you might have remained in the service, but it would be in the chaplain's service; is that right? A Yes, sir. Q All right. Now, Reverend Whidden, was that decision influenced by your past activity in your church? 88 A Yes, sir, it was. Q All right. And were there other members in your family that are in the ministry? A No, sir. Q All right. What about your wife's family? Does she have family members that are in the ministry? A Yes, sir. Her father is. Q Okay. Is her father an ordained Baptist minister? A No, sir. Q Okay. But is he -‑ MR. PANOSH: We object, please. MR. LLOYD: All right. THE COURT: Overruled. Q But he is active in the Baptist ministry, or is he active in some other faith? A He's active in the Methodist ministry. Q Okay. And is an ordained Methodist minister? A Yes, sir. Q All right. And did he play a part in your decision to go into the ministry? A No, sir. Q You had indicated that there was a pastor that you had talked to, after Ronnie made these alleged statements to you? A Yes, sir. 89 Q Who was that, Reverend Whidden? A That was Pastor Jerry Falwell. Q All right. And he was the -- he is the -- let me get his title correct. He is the head of Liberty Bible College; is that right? A Yes, sir, he is. Q Now, when you were active in the church, did you hold any positions in the church at that time? A No, sir, I did not. Q Okay. But you nevertheless were active, you went to services and participated in all the church activities? A Yes. Q All right. And that was during your -- even during the time that you were in the Marine Corps? A Yes, sir. Q All right. So, you actually went to a church in Jacksonville or somewhere in the vicinity of Camp Lejeune? A Yes, sir, I did. Q All right. Now, you indicated to Mr. Panosh that when you decided to pursue a career in the ministry, you did two things, as far as your military service was concerned; first, you put in for a tour of duty in the chaplain's service; is that right? A Yes, sir, I did. Q All right. And Reverend Whidden, did you also ask for 90 a -- at some point, did you ask the Marine Corps for an early discharge, so you could pursue your career in the ministry? A Yes, sir, I did. Q All right. And were you granted that? A Yes, sir, I was. Q All right. So, by that time, you had become very serious about becoming a minister? A Yes, sir. Q And you were going to do that? A Yes, sir. Q All right. And you felt like that was your calling? A Yes, sir. Q All right. Now, when -- as far as your duties were concerned with the Marine Corps, you indicated that you were assigned to a chaplain's office, and I did not catch the name, Reverend Whidden. What was the name of that? A Courthouse Bay Chapel. Q Courthouse Bay Chapel? A Yes, sir. Q All right. And as far as your duties were concerned, you were an assistant -‑ A Yes, sir. Q -- chaplain; is that right? A Yes, sir, it is. 91 Q All right. And was there -- the individual over you, would that have been the actual chaplain -‑ A Yes, sir. Q -- for that Courthouse Bay? A Yes, sir. Q Now, was he an ordained minister? A Yes, sir. Q All right. And you indicated that -- well, you had a lot of clerical duties in connection with that; is that right? A Yes, sir. Q But you helped with the services? A Can you elaborate some. Q Well, I'm assuming -- of course, I wasn't there, Reverend Whidden, so I have to ask you the questions, but I'm assuming that there was a service put on on Sundays? A Yes, sir, there was. Q All right. And you helped with that service? A I set up for it. Q All right. Okay. And you did everything else an assistant chaplain would -- excuse me, an assistant chaplain would normally do in that position; is that right? A Yes, sir, I did. Q All right. And when you met Ronnie Kimble, he was in the chaplain corps in the Marine Corps, but his position was 92 a delivery driver; is that right? A Yes, sir. Q All right. So, as far as his duties were concerned, as far as you knew, he drove a truck around to the various chaplain bases and delivered whatever materials were necessary; is that right? A Yes, sir. Q All right. And that's how you came to know him? A Yes, sir. Q All right. Now, you at some point got a call from Ronnie Kimble, discussing the possibility of a visit with you up at Liberty Bible College; is that right? A Yes, sir. Q Now, how long had you been at Liberty at that time? A Approximately three months. Q All right. And the nature of the call was such that Ronnie expressed an interest in seeing you at some future time, when he could get leave, and looking over the school; is that right? A Yes, sir. Q All right. And then there came a time, January 24th; is that correct -‑ A Yes, sir. Q -- of 1997, when you actually got a call from Ronnie Kimble? 93 A Yes, sir. Q And he indicated to you that he was in the general area; is that correct, Mr. -- Reverend Whidden? A I'm sorry. I don't recollect exactly how those events took place. Q Okay. But at any rate, the crux of this phone conversation was that he wanted to come and take a look at Liberty Bible College, and the subject of staying with you and your wife came up; is that right? A Yes, sir. Q All right. And based on that, you invited Ronnie and his wife to come stay with you all, while he looked at the school? A Yes, sir. Q All right. Now, you -- when Ronnie and his wife got there the first night, they got there rather late, didn't they? A I remember it was after dark. Q Okay. And you've indicated on direct examination that at some point, you went out to eat. Was that that first night, or was that the second night, or do you recall which, Reverend Whidden? A I don't recall. Q All right. Okay. But at some point, you went out to eat. And I believe you said on direct examination that at 94 the dinner table, Ronnie expressed a desire that he wanted to talk to you; is that right? A Yes, sir. Q And of course, at this time, part of the conversation at the dinner table was that Ronnie had expressed a desire about attending Liberty and maybe going to classes; is that right? A Not exactly, sir. It was more about the ministry and about entering into the ministry -‑ Q Okay. A -- regardless of the school. Q And present at dinner at that time were you and Ronnie, and his wife, Kim, and your wife, Debra; is that right? A Yes, sir, it is. Q And your children, were they present at that time? A Yes, sir. Q All right. And that it was at this time that Ronnie said to you that he had things -- he had a past that was haunting him, I believe was how you expressed it on -‑ A Yes. Q -- direct examination; is that right? And he indicated-to you at some point, Reverend Whidden, that he wanted to have a conversation with you in private, without his wife or your wife being present; is that right? A Yes, sir. 95 Q All right. And he said that to you, as well as to his wife and your wife; I mean, they were all present and heard the statement; is that right? A I assume they heard it. Q Okay. And then, when you got home, he indicated to you at that time that he wanted to go upstairs and talk with you alone? A Yes. Q All right. And when you went upstairs and spoke to Ronnie, did you talk about any biblical matters or any biblical passages that you recall, Reverend Whidden? A Yes, we did. Q All right. And do you recall Ronnie asking you something about the Apocrypha? A No, I do not. Q All right. But you recall him asking you questions about biblical passages? A Not specific biblical passages. Q Okay. But it -- Well, let me ask you this, Reverend Whidden. Do you recall his seeking your advice on biblical passages or anything of that nature? A He seeked my advice on whether or not he would go to hell if he was to kill his self. Q Okay. So that was -- you -- and that's what you've already indicated on direct examination? 96 A Yes, sir. Q So he asked you specifically if, in your opinion, as basically a man of the cloth -- if I may use the phrase -whether or not he would go to hell for committing suicide; is that right? MR. PANOSH: Object to the form of the question. THE COURT: Rephrase it, sir. MR. LLOYD: All right. Q Did he ask you, Reverend Whidden, while you were upstairs alone, if in fact, in your opinion, based on the Bible and your knowledge of the ministry and religion, if he would go to hell, if he committed suicide? A He did ask me that. Q All right. And you answered him that you didn't -- you did not think that he would go to hell for that, though .you encouraged him not to do it? A Yes, sir. Q All right. Now, did there come a time, Reverend Whidden, when you were alone with Ronnie Kimble, that you prayed together? A Yes, sir. Q And were -- was this before these things that you maintained that Ronnie said to you, concerning Patricia Kimble's death, or was this after? A Before. 97 Q All right. And did you both get down on your knees together and pray at that time? A Yes, sir, we did. Q All right. Now, Reverend Whidden, you did not ultimately graduate from Liberty Bible College, did you? A No, sir, I didn't. Q All right. And you had indicated to Mr. Panosh on direct examination that your focus at Liberty was pastoral studies or something of that nature; is that right? A Yes. Q And what does that entail? A Entails the study of the scriptures, the study of theology and the study of church growth. Q And is that what most students who attend Liberty take, who are planning on becoming ministers? A Not exactly. Q All right. Is that -- but is that sort of like a major, Reverend Whidden? A No, sir, it's not. Q Okay. A It's a -- it's a Bible institute course. It's not a degree. And it's directed towards general ministry, rather than very specific ministry. Q Okay. And you lacked -- before completing this program, how much did you lack, Reverend Whidden? 98 A One semester. Q One semester. And is it true that you could probably finish that up on correspondence level, if you wanted to? A No, sir, it's not. Q All right. You'd have to go back to the school to do that at this point; is that right? A Yes, sir. Q All right. Now, after you left Liberty, you went to wherever it was that you now have your church, and you became an ordained minister; is that right? A Yes, sir. Q All right. Reverend Whidden, how did you become an ordained minister at that time? What was the process? A The process of becoming an ordained minister in the Baptist church is that a church, a given church that would like you as their minister, has to call for your ordination to your home church, or the church that you're from. They then decide whether to ordain you. And then you stand before a group of ministers that ask you questions and lay hands on you, pray over you. And if you're -- and if you're found worthy of the calling, then they will ordain you as a minister in the Baptist church. Q And that's what happened in your case; is that correct, Reverend Whidden? A Yes, sir, it is. 99 Q All right. So you didn't need a degree from Liberty Bible College, in order to become an ordained minister, did you? A No, sir. Q All right. And in fact, that was no impediment to your becoming an ordained minister? A No, sir. Q All right. And Reverend Whidden, as -- insofar as you were able to tell, these statements that Ronnie allegedly made to you concerning the death of his sister-in-law, the focus of his questioning of you was, would that fact hinder him from pursuing a career in the ministry; is that right? A I don't really know why, to be honest with you, sir. MR. LLOYD: If I could have just a moment, Your Honor. THE COURT: All right, sir. (Time was allowed for Mr. Lloyd.) MR. LLOYD: I think that's all I have, Your Honor. MR. PANOSH: One question. FURTHER VOIR DIRE EXAMINATION by MR. PANOSH: Q Before becoming an ordained minister, was it uncommon for you to get together with your friends at your home and pray? A No, sir, it wasn't uncommon. MR. PANOSH: No further questions. 100 THE COURT: Step down, sir. THE WITNESS: Yes, sir. (The witness left the witness stand.) THE COURT: Further evidence for the State? MR. PANOSH: That's the only evidence that we have. We'd ask you to consider the Voir Dire Number 1 in support of his testimony. THE COURT: The Court will consider it for the purpose of this voir dire hearing. Any evidence at this time on behalf of the defendant? MR. LLOYD: No, Your Honor. THE COURT: Okay. Do you wish to be heard? MR. LLOYD: Yes, sir, Judge, I do. MR. PANOSH: Your Honor, since there's no further evidence, we would ask permission for the Reverend Whidden to leave. He has a plane to catch. Unless you have an objection. MR. LLOYD: We have no objection to that, Your Honor. THE COURT: All right. You're free to go, sir. MR. LLOYD: Judge Cornelius, I'd like to read to you just the first part of the priest-penitent questions which is set out in the statute here. And incidentally, just to make the record clear, we -- 101 THE COURT: What section is that? MR. PANOSH: I believe I cited it in the motion, Your Honor. THE COURT: All right. MR. LLOYD: 8-53.2, Your Honor. We would move to exclude Reverend Whidden's testimony under the priest-penitent privilege, Your Honor. It says, "No priest, rabbi, accredited Christian Science practitioner, or clergyman or ordained minister of an established church shall be competent to testify in any action, suit or proceeding concerning any information which was communicated to him and entrusted to him in his professional capacity ..." And then it goes on. It says, "... wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted, provided, however, that this section shall not apply where the communicant in open court waives the privilege conferred." And the first thing I want to bring out, Judge Cornelius, is, we cannot dispute that at the time these alleged statements were made to Reverend Whidden, that at that time, he was not specifically an ordained Baptist minister. But my reading of the statute is that it does not require that, because it says, "No, priest, rabbi, 102 accredited Christian Science practitioner, or a clergyman or ordained minister of an established church ..." And our contention to you, Judge Cornelius, is that in fact, Mitch Whidden was a clergyman. He may not have been an ordained minister, but as he has already testified to you himself, he had everything in place at that time to become an ordained minister. He doesn't need a degree from Liberty Bible College or any other institution, any other seminary or theological school or anything, in order to become an ordained Baptist minister. But more importantly, Judge Cornelius, I think the statute includes -- it's not limited to just ordained priests, and it makes that very clear. It says accredited Christian Science practitioner or a clergyman. And I think it is the tenor of the statute that we're talking about here. Here Mitch Whidden -- and certainly, Judge Cornelius, this information, if it's to be believed, was imparted to him in that spirit. That if you take everything that the State has presented at face value, that Ronnie Kimble came to him on this occasion, that he trusted him, that he trusted him as he would some -- as a minister figure, if you will, as a preacher figure, Your Honor. Mitch Whidden was in Bible college. Ronnie came to him. You'll recall the testimony of Reverend Whidden, that he testified that Ronnie had asked him about the school, had asked him about his 103 calling. He came to seek Reverend Whidden's advice. And it's very clear that if you take what the State has presented at face value, that the relationship that existed between the two at the time was one of what we loosely term priest penitent. As we see from the statute, it doesn't have to be a priest. It doesn't have to be a confessional. Those are just legal shorthand terms that we use. But I think this has all the earmarks, Your Honor. As Your Honor is well aware, the Baptist church doesn't have confession, per se. You don't have to go, as you do in the Roman Catholic church, and sit in a booth and confess to a priest. But nevertheless, you do have these situations. And the legislature has sought to extend the privilege to those situations.
And I think it's clear, from the fact that Mitch
Whidden, from the time he decided in the Marine Corps that he was
going into the ministry, that he took the necessary steps, he put
in for an early discharge, he moved to the chaplain's corps, he
had all the earmarks of a clergyman 104 that he's active in the church. He's active in the same church that Ronnie Kimble's active in. He's a Baptist. They both speak that same language of faith. And I think it is clear from all of his testimony, if you take that at face value, that that was the relationship that existed between the two at the time. And I think, therefore, it's privilege material. We don't have the official seal of ordination at this time, but you've seen from Reverend Whidden's testimony that all that takes is for a minister in the Baptist faith to confer with the minister at your church, and there's a laying on of hands, you don't have to have a degree or anything like that, and you're ordained. And I think -- but I still go back to the language of the statute itself, where it talks about clergymen. And I think Mitch Whidden falls into that category. And for that reason, Your Honor, I think this is privilege communication and it should be ruled inadmissible. Thank you very much. THE COURT: Mr. Panosh? MR. PANOSH: Your Honor, the case that's most closely on point is called State v. Barber, and that's a 1986, and I'll hand it up, 1986 case. This case, Michael Barrier testified that he was a friend of the defendant and had briefly worked with him. Barrier testified that the 105 defendant came to his house very upset and wanted to talk. The defendant objected to the further testimony, because Barrier had been a preacher. And in the course of that, they determined that Barrier had been a preacher, although his license had expired. And in this particular case, they say, "We conclude the clergy-communicant privilege did not bar Barrier's testimony for two reasons. First, Barrier was not an ordained minister or a clergyman at the time the defendant confessed to him. And second," and most importantly, as you'll find from reading the opinion, "the statements made by the defendant were not entrusted to" him, the witness, in the witness' professional capacity, and necessary for the witness to be able to discharge a function of his office "wherein such person so communicating such information is seeking spiritual counsel." Your Honor, I think it's absolutely clear in this case that Mr. Whidden, although he had some background in the church, was not a clergyman. A clergyman in Black's is defined as a spiritual representative of the church. He said that at that point, he had been an assistant to the chaplain, and that his duties consisted of setting up. And I take it that means the setting up the physical facilities for the services. First of all, he was not an ordained minister. I 106 don't believe that he was a clergyman, within the definition from Black's. And he had no office at that time. He did not hold an office within the church. And this was not entrusted to him, to enable him to fulfill a function of his office. Of course, this comes from the Catholic church, where the priest gives some sort of absolution. And it's broadened out to every church. But it has to be information communicated to the clergyman, so that he can fulfill a function of his office, give them absolution, give them spiritual advice, whatever. And I think that if you read State v. Barber, it's absolutely clear. And we would ask that you allow the testimony. (Mr. Panosh handed a document to the Court, and time was allowed for the Court.) THE COURT: Okay. The Court makes the following findings of facts at the end of a voir dire hearing in which the defendant, represented by counsel, Mr. Lloyd and Mr. Hatfield, was present. The State represented by Assistant District Attorney Mr. Panosh. And the Court has had the opportunity to observe the witness and determine what weight-and credibility to extend to the witness' testimony, and to make the following findings of fact, reserves the right to find these facts in better fashion and put them in better form, in that they're being found at the end of a hearing, 107 without the Court having had the opportunity to organize its notes. That the witness Louie Mitch Whidden, Jr., first met the defendant while a Marine at the -- during the Marine Corps -- term in the Marine Corps; that there developed a friendship between the two; and that the defendant did visit Mr. Whidden on occasions as he performed his duties; that subsequent thereafter, the witness Mr. Whidden was allowed to leave the Marine Corps, to pursue a divinity program at Liberty University; that subsequently thereto, he left the Marine Corps -- that he left the Marine Corps in August of '96 to pursue a course of study in the ministry at Liberty University or College. That thereafter, the defendant made contact with the witness Mr. Whidden and indicated that he had an interest in becoming a minister himself, and was interested in the ministry; that he requested the right to come and visit with him and talk with him in Virginia about his experience at Liberty College; that on January the 24th and 25th of 1997, that the defendant did come to the state of Virginia, did spend a night with the witness and his wife; that the defendant indicated that he had struggles -- had had struggles in the past and had things he wanted to share; that he inquired about how to become a minister and what was involved in being an ordained minister; that subsequent 108 thereto, they prayed together, and that the defendant had said that he had killed his sister-in-law. He also asked a question about whether or not a person would go to hell if he committed suicide. That the witness Mr. Whidden did report this to the officials at Liberty University, to wit, Pastor Jerry Falwell; that he did seek advice from him as to how to proceed; that thereafter, he, based upon the advice given him, did contact the authorities in North Carolina about the statement that had been made. That this voir dire hearing is being held to determine whether or not he is competent to testify as a witness in this matter. That he subsequently thereafter became an ordained minister and was ordained on May 17, 1998; that he does not have a degree, but was ordained in the practice of ministry. on that occasion. That based upon these findings, the Court would conclude that at the time the statement was made by the witness, that the witness was not an ordained minister, was merely a divinity ministerial student; that the advice that he had -- that the witness had sought -- I mean the defendant had sought was in a friendship -- based on friendship, and was based on the fact that he had a sincere desire to become a minister himself; that the information 109 that was imparted to the witness was not entrusted to him in a professional capacity, that it was simply two friends discussing feelings and interests; that the information also was not given to him in the function of his official office, in that he -- was not given in a professional capacity, in that he was not an ordained minister. Based upon these findings, the Court concludes that the witness Louie Mitchell Whidden was not an ordained minister at the time the information was imparted to him, and that the information was communicated to him not as a function of the office, in that he had no office at that time, and was not in the area of professional capacity, that he was merely a friend inquiring of an interest in the ministry and seeking spiritual advice from a friend. And the Court, based upon this finding, will conclude that the witness Louie Mitchell Whidden is a competent witness and may testify as to his conversation with the defendant at trial. MR. LLOYD: Judge Cornelius, we would respectfully except, and ask that since Reverend Whidden is obviously such an important witness in this case, if the court reporter could provide us with the transcript at some point, so that we could review it. THE COURT: The Court will ask the court reporter to provide that to you prior to the time the trial begins. 110 MR. LLOYD: Thank you, Your Honor. Judge Cornelius, there was a housekeeping matter that occurred to me, and that is, in terms of complete recordation. You covered that when I was out. THE COURT: Well, we talked about it, as to how the best way to approach it. Of course, all official proceedings are transcribed here. What we're talking about are bench conferences -‑ MR. LLOYD: Yes, sir. THE COURT: -- and how best to handle those. MR. LLOYD: Yes, sir. THE COURT: And I'll be glad to hear your suggestions as to how you feel. MR. LLOYD: Well, if the court reporter can do it, and I know it's difficult for the court reporter, but I think the best way is, to actually record the bench conference while it's taking place. One of the problems that I have, and I'll just be honest about this, Judge Cornelius, is, if we do it where we resurrect and have the lawyers state what was said at the conference at some later time, half the time, I just -- it's not so much that you forget what was said at the bench conference, you forget to do it at all and it never gets put on. And it's difficult, especially in a long and I'm sure contested trial, such as this one will be. But my preference would certainly be, if 111 the court reporter can possibly do it, to record it at the time that it takes place. THE COURT: Well, the courtroom is designed such that the court reporter will have to move to the bench, and any conference that was given at the bench that she might be able to hear is going to be certainly subject to the jury also hearing, due to the design of the courtroom. I've done it both ways, and I think if it's a certain matter of substance that everyone's interested in, I think certainly we'll have her come up and record everything. But if it's just a personal inquiry, like you and I had a -‑ MR. LLOYD: Yes, sir. THE COURT: -- few minutes ago, I think we can just tell her to mark it, and then when the jury's out of the courtroom, we can simply as a group agree that this was what was said at the bench, so that the jurors are not up and down and in and out, and the court reporter is not up and down, coming to and from the bench. If that will work. If it does not work, then I'll certainly change that. But if you feel like it's something of substance, that would be -important to the record, then of course, we'll bring the court reporter here and we'll take it down here. But if it's something personal or break or something like that, that -- too hot, too cold, that type of stuff, I think we 112 could simply designate in the record what happened. MR. LLOYD: That sounds fine to me, Your Honor. THE COURT: All right. MR. HATFIELD: Your Honor, can I bring up a matter? THE COURT: Yes, sir. MR. HATFIELD: Your Honor, I want to make sure that we comply with the disclosure of exhibits in advance. And we have two exhibits that I brought in an envelope here, I made photocopies. And I would like to have them entrusted to the clerk, until they become relevant, if they do become relevant. There are two letters here written, one by Janet Smith, and the other partly by Janet Smith and partly by Ronnie Kimble, that are relevant if the Court decides to allow her testimony later on. Could I submit these to the Court? THE COURT: You could seal it and mark -- or sign your name across the seal, so that no one else has access to it until that appropriate time, and mark it, as to what it is, defense exhibit. And the Court will hand it to the clerk for safekeeping. MR. PANOSH: Along with that, Your Honor, is the discovery order of Judge Beale required that be disclosed some weeks ago. MR. HATFIELD: Your Honor, the problem is -- 113 MR. PANOSH: And we would ask that it be disclosed. THE COURT: She may or may not be a witness, as I understand what we're talking about. If she is a witness, certainly we'll have it at that point. MR. PANOSH: Well, we have a lot of witnesses who may or may not testify, and we've disclosed all of that. I don't think that's the test. I think that the defense, as Judge Beale properly held, has a burden to -‑ THE COURT: Well, I'll assume they revealed all that. I'm not sure what this is. MR. PANOSH: They haven't revealed anything, that I'm aware of, in that envelope. THE COURT: Well, there's some question by counsel as to whether or not it's relevant or not. Based upon that, at this point we'll seal it. And if it becomes an issue, you'll certainly have a chance to look at it and put it in the record. I assume you've complied with anything that's germane to the case at this particular point's been made available, pursuant to Judge Beale's order, I hope to that extent complied with, should be complied with. MR. LLOYD: Judge Cornelius, there is one matter. I've discussed this with Mr. Panosh. We have a problem with the court-appointed psychologist in this case, in that he 114 has moved his practice, shut it down, in Greensboro, and is now in -- I don't -- to be honest with Your Honor, I don't THE COURT: Is this a defense witness? MR. LLOYD: Yes, sir, potential. THE COURT: All right. MR. LLOYD: And Mr. Panosh requested the -- we've given him the report from the psychologist. We had that, Your Honor. What we did not have were the tests, the IQ and the -- I don't even know if he gave the MMPI. But those standard tests that psychologists give. And we don't have those at this time because I haven't been able to get up with him, Your Honor. I talked to him one time -- sometime in the recent past on the telephone. But I -- I have tried to get up with him again. And I'm going to continue to try. And it's -- it puts us in a difficult position, because it looks -- it makes it look like we're just trying to not comply with Judge Beale's order. I have argued in the past at some point that those items -- and maybe I should argue in this case, because different judges rule different ways, Your Honor. What we're talking about are the tests, the IQ tests, the MMPI, those sorts of tests. Does Your Honor feel that those are discoverable? I think -- my impression was that Judge Beale did. 115 THE COURT: Has he already ruled on it? MR. PANOSH: Yes. MR. LLOYD: Well, not specifically, I don't think. THE COURT: Ordered that -‑ MR. LLOYD: I don't know that it came up. THE COURT: -- test summaries and so forth that would be made available to the State. MR. LLOYD: Well, I -‑ THE COURT: Those, you need to make available to him. MR. LLOYD: Well, as soon as I get it, I will -and I will tell the Court that we would not anticipate putting the psychologist on, his name is Dr. Guyer, if we do at all, until -- if and when we get to the penalty phase. So I'll tell the Court -‑ THE COURT: Well, you should have time to get it available to the State at that time. MR. LLOYD: I'm going to redouble my efforts to try to get it, Your Honor. THE COURT: If you need the Court to help, the Court would help you get it. MR. PANOSH: Your Honor, as to the other discovery issues, counsel is required to disclose to us information by June the 22nd. And this is an affidavit dated December the 5th of '96, and I got it July 31st. Actually I got it the 116 following day, but it's dated as being delivered on the 31st. This is an affidavit that is dated March the 21st of '96, and it was delivered to me on July 31st. There's a packet here of health records from the United States Navy -Marine Corps that we specifically requested. Judge Beale specifically ordered these be turned over to us no later than July 1st, so we could seek our own expert. And they weren't turned over to us until July 31st. And I wanted to alert the Court that when and if these items are offered, I would be moving to not allow them, simply because they were not provided in due time, in compliance with Judge Beale's order, and the State has not had time to seek its own experts, based upon that delay of over a month. MR. HATFIELD: I'd like to respond to that. THE COURT: All right, sir. I'll hear you. MR. HATFIELD: Your Honor, the only reason that any health records of the defendant would become relevant is if they were offered in connection with an expert testifying on the witness stand. We finally were able just a few days ago, as Mr. Panosh perfectly well knows, from reading the materials, to get an expert on Ronnie Kimble's sleep disorder. There's absolutely no doubt that he has a sleep disorder. It's been diagnosed on several occasions previously by the Marine Corps. We would not have had the temerity to offer to the Court records from the Marine 117 Corps, without somebody here to explain them, and we finally got him evaluated. We had sought the evaluation many months earlier, but it was never forthcoming. We're trying to turn these things over as they become available. And with regard to these affidavits, they were given to me by the family, and I turned them over to Mr. Panosh. These affidavits had been prepared by other lawyers than ourselves at a prior time. Everything has been given to him, and is a very small body of materials. And it's all there, because it was -- we turned it over to him really at the earliest time that we had available. MR. PANOSH: Your Honor, it's dated July 12th and July 14th, and it's turned over to us on July 31st. The only reason is, to keep us from getting our own experts. And at the appropriate time, I'm going to ask they be excluded. THE COURT: Well, the Court will reserve ruling on that at this particular point. Any other matters? It's about 3:30 and we've not had the afternoon break. Talking about 4:00 o'clock. Do you want to wait till tomorrow to begin the jury process? MR. PANOSH: Whatever is easier, Your Honor. THE COURT: I think that it would be a disservice MR. LLOYD: We don't object -- 118 THE COURT: -- for the jurors to get them in here and then send them on home for the evening. So we'd probably better start with a fresh group in the morning. Any other hold-ups, any other things that might interfere with the jury-selection process beginning in the morning at 9:30? MR. PANOSH: Not that I know of, Your Honor. There's no further matters for the State. MR. LLOYD: No, Your Honor. THE COURT: The Court will begin the jury-selection process in the case of the State of North Carolina versus Mr. Kimble in the morning at 9:30. Do you have other matters for the Court other than this matter this afternoon? MR. PANOSH: No, Your Honor. We didn't plan on it. THE COURT: Okay. Court will be in recess until 9:30 tomorrow morning, sheriff. (A recess was taken at 3:32 p.m., until 9:30 a.m. Tuesday, August 4, 1998.)
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