Bryon Case Transcripts 01 PreTrial Motions

8/14/2019 Bryon Case Transcripts 01 PreTrial Motions

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Pre-trial motions and rulings

State of Missouri v. Byron Case

April 19, 2002

Pages 1-42

The motions are as follows:Kelly Moffett's mental health records

Byron Case's statement to police on July 29, 1999Audiotapes of Case's tacit confession

Byron Case's customized license tags

Case's use of autopsy photos as screensavers

Case's fluency in German

Statements made at Jackson County Jail

Justin Bruton's shotgun purchaseUse of Voice Stress Analysis tests

Hearsay statements made by Bob WitbolsFeugen to Deputy Epperson

Any prior mental health history by Kelly Moffett

Emails from Byron Case and information published on his web site

Page 1

THE COURT:

Let's go on the record in the case styled State of Missouri vs. Byron Case, cause number CR2001-

03527.

Mr. Case is here in person with his lawyer, Mr. Lance. Ms. Crayon and Mr. Fry are here on behalf of

the people of the State of Missouri.

The purpose of this proceeding is to make a record on certain pretrial motions. We can make them

here or, if you want to be seated and have your client seated at counsel table, it's whatever your pleasure,

Mr. Lance. Tell me.

MR. LANCE:

Why don't we have a seat.

THE COURT:

Would you like him uncured for the proceeding?

MR. LANCE:

I would prefer that, Your Honor.

THE COURT:

Is that all right with you, Ramp?

CORRECTION OFFICER:

That's fine.

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THE COURT:


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As the parties are aware, I think the circumstance we find ourselves in is this case has been pending for a

period of time and I think I got with counsel, and we agreed to attempt to try this case the week of April

29th, but because of certain scheduling issues that I had, we agreed to pick the jury on Friday, the 26th, and

commence evidence, I believe, on the 29th of April, which is the following Monday.

And the purpose of this proceeding is to flush out any pretrial issues that exist so that we can go

straight into jury selection on the 26th and hear evidence on the 29th.

I think the first issue is previously I think there was a short hearing in the recent past in which Mr.

Lance filed two motions requesting, in effect, that I utilize my powers under the Uniform Attendance of

Witness Act to secure the attendance of two witnesses.

One was Debbie Moffett, and I believe Debbie Moffett is likely going to be witness for the Statealso. So I assume that issue is in hand and resolved; is that right?

MR. LANCE:

That's right.

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THE COURT:

And Ms. Moffett's daughter is Kelly Moffett who is a key witness to the State; is that true?

MR. LANCE:

Yes, Your Honor.

THE COURT:

Ms. Kelly Moffett I believe has had -- at least there is an allegation she has had treatment from a

therapist, mental health professional, and that person's name is?

MR. LANCE:

Wendy Eaves.

THE COURT:

Wendy Eaves. And basically, what occurred, and I think the record will reflect, is there was an effort

to subpoena Ms. Wendy Eaves for trial under the theory that, through cross examination or impeachment

evidence, that this psychological record could conceivably have relevance.

The State resisted such subpoena, and I believe I took a middle ground and suggested that, if we

could construct a procedure for me to look at the records in camera, that I would initially do that.

My understanding is that, through the cooperation of Ms. Crayon, we've had a chance to get with

Ms. Kelly Moffett or to Ms. Eaves and that I am going to have an in camera set of records this afternoon toreview as I understand it.

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MS. CRAYON:

Yes, Your Honor. Ms. Eaves is going to deliver them to your law clerk at 3 o'clock this afternoon.


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THE COURT:

First of all, at this point in time, I'm going to direct both sides not to get into anything about these

mental health records without prior court approval.

Secondly, I will review those health records, and I'll make a definitive ruling whether I think they'rerelevant or not. When I make such a definitive ruling, each side will be able to make any additional record.

If I find them to be irrelevant, I will take those records and place them in a sealed fashion for review

for any court of higher jurisdiction. If I think they're for some reason relevant, we'll have a more extended

hearing on the extent of their relevance.

Is that procedure agreeable, Mr. Lance?

MR. LANCE:

Yes.

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THE COURT:

In essence, in fairness to you, I haven't read the records, and I'm not sure what posture you would

want to use them, but the issue of whether you can even cross examine Ms. Moffett about it, I'll be glad to

rule on those things, but at this point in time, the issue of her having a psychologist and what that

relationship was and what these records say, I am excluding that line of inquiry at the present time, subject

to reevaluation once I review the records. I'll allow you to make any additional record you wish at the

appropriate time. Is that agreeable?

MR. LANCE:

Yes.

THE COURT:

Likely what we'll do, if we don't get to it today, at jury selection I'll make my tidings first thing

Monday morning so we can define that issue.

MS. CRAYON:

You might want to do it before.

THE COURT:

If you want to get here first thing Friday morning, we could do it then.

MS. CRAYON:

Okay.

THE COURT:

I'm in trial next week so I'm not sure when we'll get to it.


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Do you have any thought, Mr. Fry?

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MR. FRY:

At some point in time on Friday we'll have recess and be able to talk about it. Our evidence won'tstart until Monday. Friday sometime there will be plenty of time.

THE COURT:

I think that's well thought. At some appropriate time, out of the hearing of the jury panel, we'll deal

with this issue next Friday. Is that agreeable?

MR. FRY:

Yes. The only other thing, we had some discussions earlier and we're actually in agreement.

To the extent that you're reviewing these psychological records, for the privacy of Kelly Moffett,

but some relevancy for cross examination or inquiry by the defense in terms of the diagnosis that the

defendant had put in its petition, that's one line of inquiry.

But we also agreed prior to coming to court today, you may find there and we don't know, somediscussion that is recorded as to the facts of this case, in terms of the homicide and subsequent suicide of

one of the other parties involved.

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We would suggest to you, if you keep your eye open for that, that may be a line of relevancy that

may be subject to inquiry that you find in there, as well as the diagnoses that may be relevant to inquiry

here of Ms. Moffett.

There would be those two lines reviewing these records. We just want to make you aware of that,

that prior statements as to the homicide or how it happened may or may not be inconsistent, but would berelevant and should be provided to the defense.

THE COURT:

Well, let me review the records first. Go ahead, Mr. Lance. I can give you my thoughts, bat goahead.

MR. LANCE:

So you better understand why the defense is requesting them, the State's main witness, Kelly

Moffett, we believe is on record with three different statements of what happened.

Her first statement, she agrees with the Defendant and didn't see the murder.

THE COURT:

Right.

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MR. LANCE:


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Her second statement is she says a guy name Justin did the murder. Then her third statement is

Byron Case did the murder. So I'm curious -- or I think it may be relevant any description she gives of this

homicide or what she claims, if it's in there, I would be curious to know if she says again in there the other

guy, Justin, did it or if she describes the murder, she may give different details than what she is on record.

So you any discussion of this homicide I think is a --

THE COURT:

My understanding is your interest in the records include any discussion -- I'm not saying you have a

right to look at this, but your interest includes any discussion of the homicide, plus any diagnoses that

might affect her credibility?

MR. LANCE:

Right. Exactly. And I may have -- in my typewritten motion, at the time I may have been too strong

with the word diagnosis. I think State's attorney pointed out that compulsive liar is probably not in the

DSM.

But if it says this person has a real problem being a chronic liar or words to that effect --

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THE COURT:

I understand. I understand that. So I'll look at it. There is a whole host of potential issues here. Not

host, but one issue is she waiving the privilege or not waiving the privilege. Okay?

Then the other issue is -- so theoretically, in other words, if there is stuff in those records that's good

for the State and you want to use them, for example, I don't think she can selectively waive her privilege. If

you want to use them and he gets the records and everybody gets to look at them, what's relevant comes in

then; do you follow?

The next issue or other issue that could arise is, in this kind of situation, since it is a murder in the

first degree case, since she is a very key witness to the case, theoretically -- and I emphasize theoretically --potentially there could be some semi-Brady issues in terms of things she might say that could be used for

cross examination, if it constitutes impeachment evidence that is so critical that it might actually be defined

as exculpatory evidence. Okay?

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But that's kind of a novel theory and I think I'm going to have to see something pretty powerful to

reach that conclusion. Okay? Those are the inquiries that I'm going to suggest.

But, basically, one of the things that -- to give you an example. Let's assume she talks about the

homicide. I guess one of the issues is, as I understand it, State has not seen the records; is that right?

MS. CRAYON:

That's correct, Your Honor.

THE COURT:

One of the issues is whether you guys want to see the records with a protective order so we're all

coming from the same position. I don't have a problem with that, if you guys -- I'm not necessarily opposed

to doing that.


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There is one of two ways to do it. I can let you guys review the records with a protective order, it

can not be disclosed to anyone; that includes -- I suppose you could discuss it with your client, but you

can't disclose it to anyone else. And you all can't disclose it to anyone else other than Ms. Moffett.

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The other way is I just look at the records and see if I think they're relevant, and then I make a ruling and

then the Court of Appeals looks at it and nobody sees the records but me, unless I find something that I

need to alert you all to.

MR. FRY:

I think the case law, Your Honor, set up the format for the in camera review by the Court.

THE COURT:

I think it contemplates me reviewing the records and you guys staying out of it.

MR. FRY:

Us too, and -that would be our position.

THE COURT:

I know, obviously, you would like to look at them, and I understand that, Mr. Lance. My initial

position is I'm going to review the records and go from there. If it becomes something that's unduly

problematic, I'll alert you; otherwise, we'll take it up Friday.

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There is a motion to suppress statements filed April 18th, and is the gist of it, were there certain

statements taken that may have been in violation of Miranda that the State is agreeing to suppress?

MS. CRAYON:

It's a little more - convoluted than that, Your Honor.

THE COURT:

If the State is agreeing to it, you just tell me the statements, and I'll order them excluded.

MS. CRAYON:

Judge, any understanding from the motion is that they are seeking to suppress evidence of

statements taken by the Jackson County Sheriff's Department of the Defendant dated July 29th 1999. There

are a few statements that he gives.

That one in particular was given after there was a letter that was sent from our office saying that wewouldn't use it against him, in a nutshell.

So we're agreeing that we cannot use the statement from July 29th of 1999 against Mr. Case in his

trial, and we don't have any problem with agreeing to the motion as it's written.

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THE COURT:

I don't know what those statements are. I don't know whether it's necessary that I do. But I assume

what we're talking about is a typical suppression of those statements. Obviously, you cannot use them in

your case in chief. If he were to testify inconsistent with those statements, it would seem to me, under anormal suppression order, those potentially could be used to cross examine him.

Is that the intention -- in terms of your position, is that the State's position?

MS. CRAYON:

Our position is that we agree that we will not get into them at all, basically. I think.

MR. FRY:

It's beyond that normal, Judge. The letter that was authored by an assistant by our office to, not Mr.

Lance, but an attorney that was representing the Defendant at an earlier time during the investigation, could

be reviewed to say we're not going to use it.

Secondly, there are two comments made by the deputy during the course of the interrogation that I

think take this beyond the scope of normal stuff, and we don't want that process even complicating theappellate section.

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If we do get a conviction on this, we don't want it to be involved. We're not going to use it at all.

THE COURT:

I'm going to show the statements the Defendant made to members of the Jackson County Sheriff's

Department on July 29, 1999 to be suppressed, and they are not to be used in evidence in any fashionduring the course of the case before the Court.

I believe you filed a second motion regarding the exclusion of audiotapes and transcripts?

MR. LANCE:

Yes. That one we don't agree on Your Honor.

THE COURT:

I can read the motion, but it's your motion. If you want to make a brief argument or tell me where

you're headed, I'll hear State's response.

MR. LANCE:

Judge, I think the written motion covers it.

MS. CRAYON:

Basically, Judge, what we're going to ask you to do is take the opportunity to listen to the audiotapes

yourself. We'll provide you the transcripts that have been made with those tapes.

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I do understand Mr. Lance's point. There are motions in there that are very muffled and you can't

understand what's being said, but that is listed as inaudible. The transcripts don't try to put forth anything

that you can't hear on the tapes with the aid of the transcript.

So I think probably prior to actually ruling on this, in fairness, I just ask you to listen to the tapes

along with the transcripts, because we will be asking to introduce them.

The relevancy of them, just so you know, is they are recordings of conversations between the key

witness of Kelly Moffett for the State and the Defendant, and what is being discussed on the tapes is the

actual crime itself and questioning by -- past questioning and possible future questioning of the witness.

And so I think that the content of that is extremely relevant and Defendant's responses to State's witness.

THE COURT:

Okay. This is the procedure I intend to utilize in this regard.

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First of all, I will listen to the tapes to determine their relevance. We'll deal with the issue of

relevancy and the like.

Obviously, I will require -- there is a foundation you got to lay for the tapes which I suspect aredefined in these cases that he cited. So, obviously, if you want to put the tapes in, you got to lay a proper

foundation. We'll deal with it.

The proper foundation, if I'm not mistaken is basically there has to be a chain of custody. Show the

tape is unaltered. Those kinds of things. I suspect these cases will define that foundation for me.

The State should be in a position to make sure that you have some law that tells me what the

foundation is.

MS. CRAYON:

All right.

THE COURT:

And then, if they are relevant and, if there is a foundation, okay? I will listen to the tapes with thetranscript. And, if I use the transcripts, I would probably allow the State to use the transcripts, and I would

also -- likely what I would do at the Defendant's request is give a jury instruction or a limiting instruction,

and tell them that the evidence is the tapes.

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The evidence is not the transcripts, and the transcripts are only used to help you understand What's

on the tapes. And I would be glad to give such an instruction to the jury.

MR. LANCE:

That may be where we were headed anyway.

THE COURT:

And I suspect that that would be my inclination. Okay?


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And then other thing is, when we reach this issue, what I would suggest the State does, when I'm

dealing with the issue of foundation, the equipment you're going to use to play it before the jury, that's the

same equipment I need to hear when I hear it.

So, if it's so muffled the foundation is not properly laid, I need to hear on the same equipment thatyou're going to use in trial.

MR. LANCE:

Yes. Judge, the verbal motions in limine, I had four areas. I'll take them one at a time.

THE COURT:

That's great.

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MR. LANCE:

First area I would like to request be off limits at trial is discussion of the Defendant's two license

plates on his automobile. He had two different personalized license plates.

First one said "MORBID", M-0-R-B-1-D, and the second personalized plate said ATHEIST. As withmost motions in limine, the objection is this may be prejudicial with some members of the jury and, at the

same time, not probative to any issue of guilt or innocence.

And I believe religious preference or choosing not to have a religion preference is not a proper

inquiry. Again, if there are religious people sitting on the jury and they hear of personalized plates that say

"ATHEIST" or "MORBID", I don't see that as relevant and it could be highly prejudicial.

THE COURT:

Ms. Crayon.

MS. CRAYON:

Mr. Fry will respond. To be honest with you, Judge, there is going to be a lot of that kind of all

related, I think.

MR. FRY:

There is one particular line of argument here that I think I would be a little more comfortable

dealing with, Judge.

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In the course of this trial, certain lifestyle or characteristics of the Defendant that Kelly Moffett, themain witness is aware of because of their close relationship, it kind of borders along the lines of -- that's

been referred to often as a goth type lifestyle or approach. I'm not really too sure of the exact definition ofthat, but there are certain characteristics we think are quite relevant to understand what Kelly says when she

is explaining the situation as it develops.

For instance, we expect her to testify that it was the Defendant that shot Justin -- the other boy's --

girlfriend. Why was it actually did the shooting.


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Kelly would be able to explain that because it was more consistent with the Defendant's lifestyle.

Other characteristics of that lifestyle are the Defendant's prior statements to her that he would like to know

what it's like to kill somebody and his desire to express he wants to know what it would be like to do that.

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The Defendant's appearance, goth lifestyle, and the Defendant in particular would wear black pretty

much predominantly. Would wear white makeup, the pale look, with black lipstick. That appearance is

consistent with that kind of propensity of the Defendant to be caught up in this.

Another example would be the Defendant with a friend walking around Westport wearing a priest

collar.

The bumper stickers, and I'll give you an idea. We've got a couple of -- we've got photos of one of

the two automobiles we'll be referring to in the course of trial.

THE COURT:

Am I to understand that all these areas, they're going to be -- the same kind of general motion in

limine may apply to all of these things?

MR. FRY:

what we wanted to do is bring them up today, not only in terms of the motion in limine to keep this

out, we intended to come to court today and say, Judge, we want you to be aware of this because we intend

to go into it and we think it's fair for you to be prepared to make a ruling, let you know what's going on,

where we're trying to go, why we're going there and why we believe it's relevant.

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This particular motion in limine touches on an aspect of all the critical information that we wanted

to preview for you today, and our intent to bring all this in, and the basis for its relevancy.

Other particular things, if I could point them out to you, is that Kelly Moffett can tell the jury that

the Defendant had a computer and, as a screen saver, used autopsy photos for his screen saver.

The one thing that we think is really quite provocative, when you see pictures now of the car that

we're showing you with "MORBID" and some stickers on it, again, we would think that they're all relevantto the lifestyle that Kelly Moffett will describe for you.

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This includes, even some evidence in this would be through Debbie Moffett, the mother of Kelly,

who, when the Defendant is a visitor in her house, can come in and tell the jury that the Defendant would

wear a pin, like a little, oh, some kind of button type of thing, that has a picture of Christ hung upside down

on a cross saying: "We raped your savior."

MS. CRAYON:

"We ass-raped your savior."

MR. FRY:

"We ass-raped your savior." To the extent that that would be so provocative and prejudicial, we

think we're not going to bring that in. But where these other things are not so provocative and not so


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overwhelmingly prejudicial, but consistent with Kelly being able to describe the Defendant's lifestyle so

that, when she does testify, this Defendant shooting the victim was so much more consistent with what she

knew him to be rather than just all those other observations from the clothing, to the computer, to the

clothing, the walking around with priest, the "MORBID", the "ATHEIST", the other bumper stickers that

you see on the car we believe are relevant in her giving that context, her observations giving that context toher statement that an explanation as to why this Defendant --

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THE COURT:

Let me so.- if I understand. So, in essence, what you're suggesting she could give testimony to

suggest -- I'm not sure what a goth lifestyle is. I'm trying to think if I've actually heard that term before youjust mentioned it.

But from these photos, there are photos before me that show a bumper sticker that -- well, it shows

the license plate "MORBID". I assume there is another license plate that says "ATHEIST", I assume. Here

is a bumper sticker that says: "Honk if you need an abortion." Another bumper sticker says: "Can't feed

them, don't breed them." An bumper that says: "Got mine. Up yours."

And you've also got --

MS. CRAYON:

Judge, I should point out too on there, it's harder to see, but there is also two stickers on there: One

that says "EVIL" and one says "I AM GOD".

And then up in the top left comer there is one that says, "Ich Bin Ich," which is German.

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There will be testimony from Kelly Moffett that this Defendant and Justin Bruton, just prior to the

homicide, that they were conversing in German in the car and that Justin Bruton was yelling in German to

him at the time of the shooting and that, after he got back into the car, Justin Bruton says, "Did you hear metelling you not to do that?" That is what we expect her testimony to be. And Kelly, not understanding

German, is going to testify that that's what she then assumes was being said in German outside of the car at

the time of the shooting.

So those kind of things, not only with Kelly Moffett, but, if Justin Bruton's father is to testify, hewould talk about meeting Kelly and this Defendant the day after Anastasia is found.

THE COURT:

Is Anastasia the person that was killed?

MS. CRAYON:

I'm sorry, yes, the victim. And Justin Bruton is the one who committed suicide right thereafter.

Justin Bruton's father may be a witness at some point and part of his testimony would include this.

And Justin Bruton does not -- by anybody's testimony or any pictures that we have of him -- doesnt show

this extreme black clothing, the makeup, the black eye liner and all of that like the Defendant does.

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So when Justin Bruton's father meets this Defendant, he notes that. It's something that strikes him.

So it's not just Kelly. It's also other people who may be testifying. Debbie Moffett, as Mr. Fry has said too.

So I think it's going to give context to a lot of other people involved in the case besides Kelly, but

mainly Kelly.

THE COURT:

what's "Ich bin Ich" mean? Does that mean something in German?

MS. CRAYON:

I think it's "I am I", I think. I'm not positive of that, though.

THE COURT:

I'm not sure I understand. This "Ich bin Ich", if there was testimony he was speaking in German

before the homicide, I can understand the relevance of that sticker but -- I'm not questioning the State's

position, I'm trying to understand the State's position.

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Why does all this sort of things that probably, to the average person, seem either strange or evenoffensive, okay? And/or kind of at least, for lack of a better term, on the dark side, if I can coin a phrase,

why is that stuff relevant?

MR. FRY:

It's relevant to the extent that Kelly will be able to tell from testifying to the jury a lifestyle chosen

by the Defendant and his assimilation to this type of behavior, which is expressed not only --

THE COURT:

What type of behavior are we talking about? Are you saying somebody -- see, the problem I have isI could certainly understand there might be things that, in the context of her story, where her credibility is at

issue, some of these things might be relevant. But to say a guy acts weird and has offensive stickers;

therefore, he's likely to commit homicide, I think that's almost like character evidence that's presumptively

inadmissible, if that's what you're trying to do.

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MR. FRY:

No, it's really not that, but what it's going to do is things that people see and associate with him, for

instance, this -- I'm not sure the goth lifestyle is ever going to be fully defined or understood here in the

course of this trial. But there is like this fascination with morbid death, and I'm not sure what other context

it reaches. Okay?

But it is expressed by this Defendant, we say, to give this case context by the way he will dress, the way hewill wear makeup, the way he will use these autopsy type pictures for his web site, for his screen saver.

It all gives context to the fact that, when Kelly tells the jury why is this Defendant that is the one

that shoots Justin's girlfriend, Anastasia, why is this Defendant that said in the past that he desired to know

what it would be like to kill somebody, not an expression you hear from most people, but she is capable of

saying that. We expect to try to get that out. And unless ordered by the Court not to, that's what we intend to

do. These things give that expression. context as well.


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THE COURT:

Let me just talk to you generally about this, then I'll hear from Mr. Lance. It seems to me each of

these things -- some of these things might be relevant. Others might not be.

Like, for example, if you're saying she is going to say that he killed this person because he said to

her, his admission to her, "I have a fascination for death and I always wanted to kill somebody." Okay?

Well, the fact that he uses autopsy photos as a screen saver, that might have some relevance. Okay?

I can understand that. "Honk If You Need an Abortion", I'm not sure that makes that relevant. Or "Can'tFeed Them, Don't Breed Them", each one of these things has a different -- this idea I'm just going to let you

carte blanche march into this stuff without a little more, I'm not saying I'm not going to let you do it, but I'm

not tracking.

MR. LANCE:

May I have a chance?

THE COURT:

Go ahead, Mr. Lance.

MR. LANCE:

I want to respond somewhat to what Mr. Fry was saying and explain a little bit more why we

believe it's not relevant.

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The example, first one I want to latch onto is an autopsy photo being used as a screen saver on the

computer. I have hired an expert pathologist in the case, Dr. Friedlander, just to review the entire file andsee if he could find anything to help me.

In conferring with Dr. Friedlander and he commented, "Well, what do they really have on your

guy?"

And I said," I think the State is coming forward with this theory be was fascinated with death. He

has a screen saver of autopsy photos."

And Dr. Friedlander's response was: "So what? I'm fascinated with death. I've made a career out of

autopsies, teaching pathology to medical students on what causes death. I'm fascinated with death too. Does

that make it relevant that I'm a homicidal killer?" He pointed out the farcical nature of what the State is

trying to say there.

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So the Defendant is going back again to perceptive most basic motions in limine, which is, this

could be viewed as very prejudicial in the eyes of some members of the jury, but yet is it probative that a

person is a killer because they're interested in that type of thing? I guess one thing I totally agree with the

Court on, probably to take each item one by one.

THE COURT:


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Let's go off the record a second.

(A discussion was had off the record.)

THE COURT:

Let's go back on the record. On this issue of the conduct, I may want to revisit this, but it's my

understanding there are some other motion issues that may be either fairly to the point or agreed upon. So

can we cover those if that's agreeable?

MS. CRAYON:

Yes. During the deposition of Kelly Moffett, the defense counsel had asked her about her possible --

whether or not she spoke with a (Jifl?) Jones or Lori Taylor at the Jackson County jail making statements

regarding whether or not this truly happened.

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And Mr. Lance has not endorsed either of those people on his witness list, and I am under the

assumption they are not going to be called. If they were going to be called, we would ask their testimonywould be struck from the record as being hearsay. They didn't have any foundation. It could have been

anybody.

MR. LANCE:

I'll concede that motion.

THE COURT:

Okay. That's fine.

MS. CRAYON:

The next thing, there was a purchase of a shotgun by Justin Bruton on September 27th 1997, which

is a little less than a month before the homicide. We are going to seek to enter into evidence the business

record of that transaction, and we're asking if the defense would stipulate to the admission of this as a

business record and not contest the foundation of it or anything like that.

MR. LANCE:

Yes.

THE COURT:

We'll show that document admitted.

MR. LANCE:

Stipulated.

THE COURT:

Stipulated to.

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MS. CRAYON:

Regarding that particular shotgun itself, we have a motion in limine that, should the Defendant

testify as part of his prior statements that we think are admissible, not the one from July 29th, but there wasstatements that he made that be had heard either from Justin or someone else that that particular shotgun

that was purchased almost a month earlier had been sold by Justin Bruton sometime -- week or two beforethe homicide.

And we are objecting to or doing a motion in limine that he be able to testify to that based on the

fact there is no foundation for him to know that. He was not present for the sale. Just something you heard

of.

THE COURT:

There is testimony Mr. Case had heard that?

MR. LANCE:

Right.

MS. CRAYON:

Yes. That's, if Mr. Case decided to testify, that I would ask the Court to keep him from being able to

testify that Justin Bruton had sold that gun prior to the homicide.

MR. LANCE:

We'll concede that motion.

Page 33

THE COURT:

Okay. That's good.

MS. CRAYON:

All right. There was a voice stress test that was attempted on Kelly Moffett by the Jackson CountySheriff's Department. She was told by the deputy she passed that stress test. This is right after giving a

statement back at the time of the homicide.

It was later found out that the machines that were being used at that time were not functioning

properly, and the test was void. I'm asking the Court to keep out anything in reference to the fact she was

given a stress test, whether or not she thought she passed it. I think they're inadmissible; same with the

polygraph.

MR. LANCE:

We're going to agree with that motion. I view it as a polygraph test also, so can't be mentioned.

THE COURT:

All right. Sounds good to me.

MS. CRAYON:


16/62

Deputy Epperson, who is the deputy who discovers of the body of the victim at the cemetery, had

some contact with the victim's father the next day.

Page 34

There is lots of discussion from the dad, and I don't know that -- I think it's clearly hearsay, thatanything that the dad says about what he thinks may have happened should not be able to be elicited from

Deputy Epperson. So we're going to object to anything like that.

THE COURT:

Mr. Lance.

MR. LANCE:

I'll concede that, as long as we're limiting it to things the dad is theorizing could have happened or

hearsay he heard maybe --

THE COURT:

Okay. Start again. You lost me on that.

MS. CRAYON:

Okay. Deputy Epperson is the one who discovers the victim's body. She is found at 3:45 in the

morning of the 23rd. The morning of the 24th, after the family has been notified it's Anastasia

WitbolsFeugen, the father has come out --

THE COURT:

Father of the victim?

MS. CRAYON:

-- Father of the victim has come out trying to find the place where his daughter was killed. And he

speaks to Deputy Epperson. They have a string of conversation.

Page 35

Everything from -- anything the father says to the deputy is hearsay is our position. So anything dad

says to the deputy, whether it be about his theories --

THE COURT:

From the deputy's mouth?

MS. CRAYON:

Absolutely. That's what we're asking to make sure, none of that is attempted to get in through

Deputy Epperson.

MR. LANCE:


17/62

I think that's valid. I guess I was saying I think you're trying to limit to the father rambling on

speculating different ways the homicide occurred. So I don't want to ask those questions.

MS. CRAYON:

That is a chunk of it, the father gives theories of what he thinks may have happened, but anything

the father is saying really is hearsay. If Deputy Epperson wants to get up and testify --

THE COURT:

My position is, I suspect what you're saying is exactly the truth, but I can't totally understand it until

I hear the questions and the context of the testimony.

MS. CRAYON:

Okay.

Page 36

THE COURT:

It seems to me, if he's not going to agree to it -- I'll tell what you I'll do, to simplify this, I'll direct

Mr. Lance not to get into the issue of what this father may have said to Detective Epperson without firstapproaching the bench and suggesting to me why there is some exception to the hearsay rule.

MS. CRAYON:

That's fair. We have some more specific things regarding the mental illness diagnosis and things like

that things that occurred prior to the homicide. But if you want to take that up when we're talking about the

other --

THE COURT:

Tell me about it.

MS. CRAYON:

Any treatment or diagnosis of mental illness prior to October 22nd of '97, the date of the homicide,

of Kelly Moffett, we don't think is relevant.

THE COURT:

Other than what might be in these records, do you have any intention of tying to get into that stuff?

MR. LANCE:

No, not unless it's in those records.

MS. CRAYON:

Any treatment, diagnosis of anyone in Kelly's family at any time --

MR. LANCE:

I'll concede that.


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19/62

I can finish in five seconds. We will agree to most of this stuff. I think it might be best that, should

we believe it becomes relevant, that we both agree to approach the bench prior to inquiry of any of the web

site stuff or e-mails, and we would agree to do that. It may be something relevant or not, but we will agree

to approach the bench prior to any inquiry. We would ask the same.

THE COURT:

Same thing as the Epperson stuff, you're not going to get into it without approaching the bench first

regarding e-mails or web sites?

Page 39

MR. FRY:

Right. It's hard to talk about foundation and relevancy in the obscure. We'll just agree to that.

THE COURT:

Do we have any other issues other than the lifestyle stuff?

MS. CRAYON:

Not that I can think of at this point.

THE COURT:

Okay. How many different things are we talking about lifestyle things?

MR. FRY:

Judge, I tell you what, we'll sit down and try to make a mutual list and then go over them all one ata time. I won't present anything to you then, but after being given to the defense attorney, we'll be able to --

THE COURT:

These are all the things that, A, all this evidence would come from Kelly Moffett, correct?

MR. FRY:

The mother as well and Justin Bruton's father.

THE COURT:

But all of this evidence would be oral testimony from witnesses that Mr. Lance is aware of, the

issue is just whether it's relevant or not.

Page 40

MR. FRY:

Correct.

MR. LANCE:


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I'm concerned they would go beyond oral testimony to bring in photocopies of the web site that

were printed on his web site.

MS. CRAYON:

There are things in the web site that discuss the homicide. So I don't know that that's something

we're going to get into, but I'm saying it's just not a web site talking about antireligious things, but there isdiscussions of Justin's death and Anastasia's death and the crime itself and the Jackson County Sheriff's

investigation. Those things are talked about on the web site.

THE COURT:

One of the things that is pretty key is the State needs to determine what of this you want to put in asyour case in chief and what is it you want to put in based upon whether someone testifies the door is

opened. You need to define this area of evidence in those regards, because my analysis is very different

based on how you intend to use it.

Page 41

So what I think you need to do is define that and define if there are exhibits other than oral

testimony, define that. So I think you want to define with specificity, not only what the evidence is, bothoral testimony -- what oral testimony, from whom, what exhibits and is it going to be offered in the case in

chief or potentially being held back based on whether the door is opened.

MS. CRAYON:

Okay.

THE COURT:

And I think -- what I would like for you guys to do is get together and define that, and I'll find sometime -next week to deal with these issues. Is that fair?

MR. LANCE:

Yes, sir.

THE COURT:

So why don't you guys define that, and then I'm picking a jury Monday in another case. Come see

me Monday at a break and say, "We've got it defined." Once I buy some time Monday, I'll figure out either

early in the day or late at night or something, we'll get together and resolve this issue on the record before

Friday. Does that work?

MS. CRAYON:

Yes.

Page 42

MR. LANCE:

That works.

THE COURT:


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Thanks a lot.

MS. CRAYON:

I will also get the recording device we plan on using which is going to be kind of big.

THE COURT:

That's good. Thanks.

(Court was adjourned until April 25, 2002.)


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Pre-trial motions and rulings

State of Missouri v. Byron Case

April 25, 2002

Pages 43-132

Page 43

THE COURT:

This, as we all know, is styled State of Missouri vs. Byron Case. It carries the CR number 2001-

3527.

Ms. Crayon and Mr. Fry are here on behalf of the people of the State of Missouri.

Mr. Case is here in person with his lawyer, Mr. Horton Lance. The purpose of today's proceeding is

to follow-up on some pretrial matters we began last Friday in anticipation of selecting a jury tomorrow and

commencing the evidence on Monday.

I talked briefly to the lawyers, and I'll tell you what I think we need to deal with and the order we

would deal with it.

There is an issue regarding these medical records that I have reviewed, and I'll deal with that. Ishould say medical records. I think there are actually -- should be described as records of Dr. Eaves, who is

a psychological counselor to Ms. Moffett.

Page 44

Then I want to deal with the issues of these tape recordings, and I have -- when I get to it, I have

listened to the tapes and looked at the transcript, so I have already done that.

And then I want to deal with the issue of the other-act evidence, this lifestyle situation that we

started to talk about the other day.

I think, Mr. Fry, there was some potential evidence that would be hearsay but for the co-conspirator

exception, and my sense is it may be agreed-upon evidence, but we may want to address that very briefly ifwe could.

I just want to make sure we're on all fours for tomorrow in terms of logistics. Are there other issues

we need to talk about?

MR. LANCE:

No, Your Honor.

MR. FRY:

I believe that's it.

THE COURT:

Let's deal with these mental health records.

(Court's Exhibit A was marked for identification.)

THE COURT:

Court's Exhibit A are the sealed records from Dr. Eaves regarding Ms. Moffett.


23/62

Page 45

I have reviewed the records. Without really -- I don't want to waive any privileges or really descend

into the particulars of the records. I think the vast majority of the contents of these records are completelyuneventful for these proceedings.

I find nothing -- I didn't find anything in the records that were particularly -- that struck me as being

consistent with the phrases that were alleged in the motions. And I didn't see anything in the records that I

would suggest that, without some kind of very exceptional showing, would be relevant in either in direct or

any kind of substantive evidence or in cross examination.

And from what I know about the case, I just see nothing in the records that is particularly relevant.

Page 46

So I'm going to show -- we're going to keep the records under seal and mark them as Court's Exhibit

A, and I'm going to indicate that at this point in time, I don't expect either side to get into the issues of any

speculation as to what are in the records, and I don't really see the necessity of even cross examination -- I

think it would be irrelevant to cross-examine Ms. Moffett about the fact that she has received psychological

counseling, because I don't see anything in these records that relate to this case in that regard. So that wouldbe my intention, but I'll be glad to address it further.

MR. LANCE:

Judge, since we're making a record, is it my understanding then there is no discussion in those

records of the nights of the event of the homicide?

THE COURT:

I did not see any direct discussions of that, no. I did not. Did you all expect there to be such or wereyou hoping there was?

MR. LANCE:

Well, like I said last week, she has told more than one story. I thought it would have been very

curious if --

THE COURT:

Hold on. I marked the wrong -- instead of marking her records, I marked my cafeteria plan records.

So let me go find them. The Court of Appeals would wonder why all these Walgreen records were relevant.

Hold on a moment.

Page 47

Again, Mr. Lance, I don't want to in any way waive what's in them, but I believe -- virtuallyeverything in these records are very generic in nature. Okay?

Now, for whatever it's worth, these records are in cursive writing, so I can't tell you that I can

decipher everything that's said in these records. But I found nothing that directly even relates to comments

about this situation.

MR. LANCE:

Oh.


24/62

THE COURT:

By this situation, I mean the homicide.

MR. FRY:

Your Honor, could I ask for some clarification?

THE COURT:

Sure.

MR. FRY:

I think in the course of the trial that in particular, Ms. Moffett, the fact is really not disputed that she

did get counseling, not only just for drugs, but for emotional-psychological concerns of hers. And to some

extent, I think that it's relevant to explain like a three-year delay in reporting.

So to some extent we believe that that should come out, the fact that she did have counseling, and

we would bring that out.

Page 48

Now, we still are of the position that details that are contained in this report, the lack of diagnosis

and the lack of facts that are given to this particular counselor about the murder, you know, that's not

coming in the specifics in these particular records.

THE COURT:

What was the date of the homicide; do we know?

MR. FRY:

October 22nd or 23rd of 1997. She did not come forward until 2000. To give you some perspective

on this, in that course of three years, she is going through drug counseling and she is going through

psychological counseling.

I would concede that some of that is relevant to inquire by the defense as to the nature of her abilityto remember things like that.

THE COURT:

It seems to me it's fair game for you to -- my understanding is that one of these things that this

young woman would say is that she grappled with drug abuse, as I understand it, and I'm not playing this

out, but conceivably that could have some relevance to her credibility, I suppose.

Page 49

If you're going to inquire about the fact she sought counseling in general and, if she wants to make

the statement that she sought it in part because of the demons she was dealing with as relates to this case, if

that's the extent you're talking about, I don't see a big problem with that.

MR. LANCE:

I think we would be able to do that and keep it limited.


25/62

MR. FRY:

I would agree with that.

THE COURT:

But I don't want you to represent that she -- I don't recall -- again, I'm trying to not waive any

privileges here, but from what I read of these records, if she is going to suggest that she got into very

specific privileged communications with a psychologist over this, I don't think the records bear that out.

MR. FRY:

That's not the case, Judge. It's more in general and, if we bring that up in general, my concern would

be we're not opening the door to go back and disturb your ruling here.

Page 50

THE COURT:

Well, to make it simple, nobody is getting the records and they're sealed and the Court of Appealscan look at them. I did not find anything in the records that was consistent with the pleadings that Mr.

Lance filed and that's not -- I'm very confident they were filed in good faith. I'm not questioning that. But Ididn't see anything that struck me as a direct reference to credibility.

So the records will stay sealed, and other than the fact that she had counseling for drug abuse and/or

other matters, I think the issues are pretty much closed except for that, and this will be with the case. So, if

the Court of Appeals wants to take a look at what I did, they certainly can.

Okay, Let's talk about this co-conspirator stuff. I believe it's agreed upon, but do you want to

describe the posture of it? Somebody?

MS. CRAYON:

Yeah, Judge. I'll be glad to.

Page 51

Justin Bruton is a young man who was present during the homicide, and according to the testimonythat we expect from Kelly Moffett, our main witness, that he was conspiring with the defendant prior to the

homicide for the homicide being committed.

We expect Kelly to testify to statements that Justin made to her and to Mr. Case during the period

shortly before the homicide regarding the plans and who was going to do the shooting and how they were

going to do it.

There will also, we expect, testimony from Francesca WitbolsFeugen who is the sister of the victim whoreceived at least two telephone calls from Justin Bruton, one before and one after the homicide.

We believe that those are relevant and should be ruled as co-conspirator statements, allowed to

overcome the hearsay objection because they go in furtherance of the conspiracy.

So our position -- and there is law to support -- that anything that shows the plan of the conspiracy,

the event that occurs as a result of the conspiracy, and anything said by Justin Bruton to further the

conspiracy all become relevant and admissible over the hearsay objection.


26/62


27/62

Obviously, in terms of typical evidentiary foundation, like chain of custody, the magic words "is a

machine capable of recording a conversation," you know, has it been unaltered, I don't know the answer to

those questions because I haven't heard any testimony about it.

First of all, I found the transcripts to be accurate -- to be exceptionally accurate. I also wouldsuggest that -- when I listened to it, it was on this device that Mr. Fry had given me. It's basically, for lack

of a better term, what I would call a quality -- I was going to say ghetto-blaster -- but a quality, you know,the thing you plug in -- the thing you listen to for both radio and for tapes and CDs and things.

MR. FRY:

Sony tries to call them "portable stereo systems."

Page 55

THE COURT:

Okay.

MR. FRY:

I did comply with your wish to bring the system we intend to use in court.

THE COURT:

When I heard it, I was right next to it, so that might have some bearing on it. When I heard it

obviously, I suspect it's because the recording device was on Ms. Moffett's phone I assume. Ms. Moffett's

voice is very clear and distinct. Mr. Case's voice is not as clear, is much softer and harder to understand,

although I was able, with the aid of the transcript, I was able to understand what he said.

I also found that, as I said, the transcript was accurate. It would be my belief any trial such as this,the transcripts themselves are not evidence. They are to aid the jury in listening to the evidence, which is

the tapes. I believe that's the proper way to deal with it. That's my experience how it's been done. If, in fact,

they were used, I would gladly give an instruction to that effect.

Page 56

It's obvious from these tapes -- it appears to me from these tapes that Ms. Moffett on both occasions

is calling Mr. Case desiring to talk to Mr. Case. And the drift I get of it is that she is being approached bylaw enforcement or other folks to want to ask further questions about this matter and it's causing her a great

deal of emotional distress over it and that she wants to talk to Mr. Case about it.

The transcripts themselves in the context of all the evidence, I suspect, could be considered an

admission against interests to Mr. Case, although I don't find any smoking guns or anything that's directly --

I don't find any direct admissions. But the posture of what's said by Mr. Case on these tapes in the context

of all the evidence I think theoretically would be an admission or at least might well be admissible once

Ms. Moffett is examined to demonstrate contact she has and concern that she has.

And I suspect that, again, her own testimony talking about what happened -- or at least her versionof what happened, and the events combined with the tapes, I would suspect in an evidentiary sense these

statements by Mr. Case qualify as admissions against interests.

Page 57

The transcripts are very accurate. I mean, there is no admission, "Yeah, I killed somebody" or

anything like that on these tapes. So that's what I get from the tapes themselves.


28/62


29/62

Judge, I don't have any additional requests. I think you bent over backwards with the work you're

already doing.

THE COURT:

Well, all right. I'm going to allow you to make any objection at the time, and I expect them to lay a

foundation, but in terms of an in limine motion, I do not intend at this time to exclude the tapes.

MR. FRY:

Judge, if I might be able to withdraw the exhibits for purposes of our record here. I put exhibit

stickers on these and did not put a number. But for our record, in regard to tape number one, I'm going to

make that Exhibit No. Ten. I'll mark that regard to the tape that was marked tape two, I'm going to identifythat as State's Exhibit No. Eleven. And we'll just have those initialed and marked later, assuming we get the

proper foundation.

Page 61

Now, for me to understand when we do this, assuming we make the proper foundation and play this

for the jurors, we will have extra copies of these transcripts to hand out to the jurors as they listen to it is

my intention.

THE COURT:

I think the way to do it, assuming it's admitted into evidence and you make the foundation,

basically, you give each juror a copy of the transcript, and then I think I would propose to give the jury an

instruction something like this:

"Ladies and gentlemen, the tapes have been admitted into evidence. These transcripts are not

evidence. They're only provided to you to assist you in understanding the evidence winch are the tapes

themselves. If you believe there is an inconsistency between the tapes and the transcript, the evidence iswhat's on the tape, not what's on the transcript."

Then, basically, they listen to them and then we, basically, pull the transcripts back from them andthen that's the evidence. In other words, it's just like any other testimony.

Page 62

Now, the issue -- what sometimes does happen is the issue comes up as to can they re-listen to thetaped conversations. Like in deliberations. That's an issue that comes up and, basically, I would approach it

in one of two ways, and I haven't gotten there yet.

One way would be to say, no, you can't. You need to listen to it now, and that's the deal. Or

secondarily, if they listen to it, it would be in a controlled setting. In other words, I would bring them back

down. We would pass out the transcripts. They would listen to it in our presence. All right?

And then we would then -- when they're done, we would take the transcripts back from them. I'mnot going to leave transcripts and a recording device up there for them to listen to it. I'll bring them back

down and let them listen to it.

The issue, basically is this: Whether or not you consider this evidence to be an exhibit that can be

analyzed by the jury or whether it's testimonial in nature, if it's testimonial in nature, then you cannot -- I

don't believe you can have them listen to it again. If it's considered to be an exhibit like a confession, for

example, then I think you can.

Page 63


30/62

And I suspect these would be capable of being re-listened to. But I haven't looked at the cases, and I

haven't crossed that bridge.

But I can assure you, if there is a request to replay them, I'll allow you to make any record you wantto make. I'm not just going to send the tapes up with transcripts. We'll bring them back down, and we'll

listen to it with the door locked and all of as being present.

MR. FRY:

In an abundance of caution, Judge, I think I should go ahead and mark the transcripts that we

provided to the Court for your review on this issue.

THE COURT:

That's fine.

MR. FRY:

And what I'll do is, when we conclude, I'm going to mark the transcript for tape one as 10A and the

transcript for Exhibit 11 as 11A, and I'll do that after we get a break here.

Page 64

THE COURT:

All right. Do you have some sense, Mr. Fry or Ms. Crayon, as to the total number of exhibits you

intend to put forth?

MR. FRY:

A lot of it will have to do with some rulings you're about to make.

THE COURT:

- when we get done, because Nancy and virtually everyone in this courthouse uses a sequential

system, we assign you a certain set of numbers. Say like, if we assign you, for example, one through 40,

that means Mr. Lance's first exhibit will be Defendant's 41. We'll do that when we get done. Okay?

All right. Other than talk about logistical issues and other act evidence, have we covered

everything?

MR. LANCE:

I think so.

THE COURT:

On this lifestyle other-act thing, I think for me to understand it, what I need for somebody to do is to-- first of all, just give me a real flavor of what the case is about from the State's point of view.

Page 65

I think I have a sense of it, but describe the evidence to me, from the State's point of view, so I

understand fully your theory of the case and what happened, and then we'll talk individually about the

various things you want into evidence. But I don't think I can do this in a vacuum.


31/62

I understand Ms. Moffett was an acquaintance and friend and associate of Mr. Case. That's what I've

been told from these hearings, and that this fellow that committed suicide was -- this Justin fellow that

committed suicide, I understand to also to have been an associate of theirs, and this young lady who died,

who was killed, I believe to be an associate of theirs also.

She was found dead and the crime was unsolved for a period of time. And then, substantially afterthe fact, authorities had contact with Ms. Moffett. Ms. Moffett gave statements which formed the thrust of

the case before the Court.

Mr. Case, much after the fact, was arrested for the homicide and that I believe it's been stated that

Mr. Case and some of his associates followed what's been described as a goth-like lifestyle, which I have

almost no understanding of what that means.

Page 66

So that's about the gist of what I know about this lawsuit.

So I think before we get into the evidence I'm going to let in and what I'm not going to let in, if you

could give me a flavor of -- I don't want to say a mini opening statement, but a beginning-to-end of what

we got and your theory of the case, that would be helpful for me to deal individually with each one of theseitems.

The other thing is clearly there is another factor here, is that, on some of these things, I'm just

throwing this out, the factors that I don't have before me is what Ms. Moffett will say on direct, what's

asked of her on cross examination, whether the defendant is going to testify and, if he does what he says.

Because all those, obviously, are factors that could be pretty critical in any evidentiary issue. So, if

you could lay that out, the State's theory of the case so to speak, in some kind of sequential fashion, and

we'll jump into this other-act stuff, if that works.

Page 67

MS. CRAYON:

I'll do the best I can here. I think one place to start would be to give you an idea of the relationship

between these associates.

Essentially what we're talking about is two young women and two young men. One of them is thevictim, Anastasia WitbolsFeugen. She is the girlfriend of Justin Bruton who ends up committing suicide the

day after this murder occurs.

THE COURT:

What's Justin's last name?

MS. CRAYON:

Bruton, B-R-U-T-O-N. The other two young people involved are the defendant, Byron Case, andKelly Moffett, who is the State's main witness.

In October of '97, Kelly Moffett and Byron Case were dating and had been for approximately six

months. Kelly was 14 years of age at the beginning of their dating and turned 15 one week before the

homicide.


32/62

Byron Case was 18 at the time they started to date and 19 approximately a month after the

homicide.

Anastasia WitbolsFeugen --

Page 68

THE COURT:

That's in '97?

MS. CRAYON:

That's in '97, correct. Kelly Moffett is now 19 years old. Anastasia, the victim, was 18 years old at

the time she was killed. She and Justin Bruton had been dating for approximately six months as well.

Anastasia and Justin had lived together over the course of the summer before. Anastasia had just

graduated high school in May or June and moved in with Justin. They lived together in the condo on the

Plaza that Justin had from his parents.

Justin's parents provided all of his financial needs: his car, his tuition to school, his condominium,and the condition was that he stay in school.

Towards the end of Justin and Anastasia's relationship, which is just prior to the murder, I'm going

to say probably end of August, early September, there is break up. Get back together. Break up. Get back

together. And I expect there is going to be testimony throughout the trial that was the course of their

relationship at the end.

Page 69

Anastasia was very much interested in keeping the relationship going and pursued it constantly anddid some of that through this defendant. Called him constantly. Wanted to talk to him. Wanted to know

what Justin was doing.

THE COURT:

Your evidence Mr. Case and Justin were good friends also?

MS. CRAYON:

Yes. And the relationship with Mr. Case and Mr. Bruton was close. Mr. Case stayed at the

condominium quite a bit and over the summer these four kids spent lots of time together. So they all knew

one another fairly well.

Briefly touching on this goth lifestyle situation, all of them hung out in, these coffee houses down in

Westport. Of the four, I expect testimony to be that Mr. Case is the one who subscribes to this goth-like

lifestyle more than any of the others.

Justin Bruton, as far as appearances we planned to introduce to the Court, proposed an exhibit ofjust a photograph of Justin Bruton. And the testimony from other people, Kelly Moffett, Anastasia

WitbolsFeugen's sister, the rest of her family members that may testify, khaki pants.

Page 70

Looked like somebody out of The Gap ad. So Justin's appearance was something like that.


33/62

Mr. Case, I expect the testimony would be, should it be allowed in, is dressed completely in black.

Never had any sort of color on him at all. Wore white makeup, powder on his face, black eyeliner around

his eyes, and that was all the time.

Occasionally he would change that and it would be red eyeliner, black lipstick. Very goth-like.

And I understand we need to probably get into that. I am not familiar with the goth lifestylesituation either. Ms. Moffett would probably be the person we would look to give us some idea of that.

Her appearance, other than being fair skinned herself without all the makeup and the dark hair, and

she wore black too, I don't think there is anything further that identifies her to the goth lifestyle.

Page 71

She would testify that Byron Case's interest in music, in books, literature, things, were very dark.

He was extremely judgmental towards anybody who had any kind of religious belief whatsoever, no matter

what it was.

THE COURT:

What do you mean by dark?

MS. CRAYON:

That's how she describes it. To be honest with you, Judge, she has given me names of books and

types of music that I don't identify with. I don't know. But very into like -- well, I don't want to say.

THE COURT:

You mean dark as in the color dark or dark could also mean evil.

MS. CRAYON:

Dark, evil, is where she is going with it. She is the one who told us about his screen saver that's anautopsy, and he thought that was a really cool thing.

He would go to web sites of people who were murdered or killed and was interested in looking at

that stuff. Thought it was neat. They liked to shock people. They liked to confront and argue with people

over things that went towards your belief system if it was not the same as theirs.

Page 72

When I say they, he had a friend named Abraham Kneisley who may be coming in to testify. He's

been endorsed by the defense. Ms. Moffett says those two together, both, exuded that kind of attitude.

When they were in Westport, for example, she would say the attitudes were that certain people

mattered and other people didn't. Certain people deserved to live and others didn't. Those were theexpressions that they would use and the way they treated people with such contempt.

They would walk around in Westport with priest collars on and act in certain ways to shock people.

That's what Kelly Moffett would testify to.

THE COURT:

Like what would they do to shock people?


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MS. CRAYON:

I didn't ask her the specifics. If we intended to get that --

THE COURT:

Okay.

MS. CRAYON:

A lot of it was just in the appearance, to walk around like that and make anti-religious type comments is

kind of where she went with it.

Page 73

I didn't ask her for the specific comments, which leads us into some of the other things we showed

you photographs of that we did have, which were photographs of the Defendant's cars that he drove at the

time and the license plates that he had for his cars were MORBID and ATHEIST.

The bumper stickers, some of them were shocking to certain different types of people. The "Honk If

You Need An Abortion." "If you can't feed them, don't breed them." "Got mine, up yours."

And the Sisters of Mercy, which was another one, which was apparently a band, which kind ofsubscribes to this goth thing, as I understand it.

There is one on there that says, "Evil." There is one on there that says, "I am God." Some of these

we understand probably are a little bit more probative than others.

"Ich bin Ich," which was the German saying that was on there as well. We have talked a little bit

about that earlier and how that may be relevant as well.

At any rate, that's the relationship of those four people and how they all came to be friends and got

to know each other.

Page 74

It's important I think too to give kind of some perspective to Kelly's position in this whole thing. I

mean, her age, which she'll be testifying to that. When she began to see Mr. Case, her parents didn't want

her to. I mean, forbade it.

Her testimony would be that on the day that it was forbidden, he came and picked her up in the

middle of the night out of her house, took her to Justin Bruton's condo where they hid out for a week while

Kelly's parents, who we think they may be testifying too, the mother; that they had to hire a private

investigator to try to find Kelly. And when they did, she was with him in Justin Bruton's apartment, and the

Defendant had cut all her hair off and died it black. Again, this is at age 14, and Kelly was allowing him to

do that as well. So it wasn't like he was holding her against her will and all of that.

But all these things and the fact that he wanted to change her appearance to make her look more in

the goth-like situation.

THE COURT:

Okay.

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MS. CRAYON:

Our theory in how that may fit in is one to go to his identity. When she testifies, for her to sit here

and say that's the guy who I dated in 1997, he doesn't look like that.

I mean, Mr. Case -- I don't know how he's going to dress for trial, but I'm sure he's not going to

come with face makeup and all black clothes.

For her to look at him and say, "Yeah, that's him, but that's not what he looked like back then," to

allow her to describe what he looked. For one, this is how he looked when the homicide occurred. I think

anything less than this misleads the jury to think this is what he looked like at the time.

We deal that all the time when we try criminal cases. But also, to give some sense to her testimony,I mean, I think what we're, getting into is whether or not we're tying to get into character evidence. I do

understand that argument. While this may look like character evidence, we are not trying to introduce it for

the purpose of saying somebody who wears this kind of makeup and dresses like this and subscribes to this

belief is the type of person that would commit this murder. That's not why we're trying to get it in.

Page 76

We're trying to get it in to give context to Kelly's testimony, which is going to be that he is the onethat was the shooter that night, and the reason he was the shooter was because, I expect her testimony to be,

Justin said, "I can't do it," so Byron has agreed to do it.

And during the course of the evening as well as prior to, he had made comments to Kelly that he

wondered what it would feel like to kill somebody. She is going to testify he says that in the car right before

the murder actually happens. Because she says that she is sitting there going, "You're really not going to do

this. This is stupid. It's broad daylight. It's Justin's girlfriend."

And he just says, "I would like to know what it would feel like to kill someone." Something along

those lines. That's not a quote.

Page 77

So we're not trying to show he is the type of person that would commit the murder based on his appearance

or religious belief or lack of religious believe; instead, it supports his state of mind at the time he's doing

this and why he's the person who pulls the trigger according to Kelly.

THE COURT:

I understand why you want to get it in, bat tell me the facts of what happened. What is she going to

say?

Describe the --

MS. CRAYON:

How it happened?

THE COURT:

Yes. Describe the events that both led up to and the homicide from Ms. Moffett's point of view and

the State's point of view.

MS. CRAYON:


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On that day, she comes home from school. Justin Bruton and the Defendant pick her up at home,

and they're going to go hang out.

After she gets --

THE COURT:

Stop for a second. Is Justin Bruton into this goth lifestyle also?

MS. CRAYON:

No. Justin dresses like he's from The Gap; however, I have asked her what attracts these two to be

such good friends.

Page 78

She says, well, Justin had a morbid sense of humor, and they kind of liked the same weird kind of

movies. This is the specifics Kelly is giving me, but they don't share the dress and how they express it.

THE COURT:

Okay.

MS. CRAYON:

And also she is going to testify -- and I'll throw this in too -- that they Justin Bruton and the

Defendant in the past had had these schemes of things they were going to do.

One example she gives us, they were going to go rob Justin's parents down in Oklahoma. They were

going to commit an armed robbery down there. Did it ever come about? No. They talked about it. Anastasia

was in on it a little bit. It was all talk. They never did anything about it.

Second one was Justin Bruton and the Defendant planned to blow up -- in the way Kelly describes it as the

big church with the spiral on it or something out in Independence; that they were going to put a plasticexplosive in the spiral or something like that, and they were going to try to get some ransom money and

talked about this idea of blowing up the church, which lent itself to this anti-religious thing as well.

Page 79

And Kelly said they would talk about stuff like that and then they would never do it, which again,

those things would explain why she is in this car during the day, and I'm going to tell you the events, but

Kelly says, while they're talking about this homicide, she just doesn't believe they're going to do it. They

used to talk about doing wild things and never followed through.

So we're going to be seeking to get those things in which would be considered prior bad acts; it's not

criminal activity.

THE COURT:

Okay.

MS. CRAYON:

That day they pick her up After she is in the car a few minutes, they start talking, and the

conversation she says is initiated by Justin Bruton. And Justin makes some comment about "Kelly, what do

you think would make my life easier if they weren't around" or something like that.


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Page 80

And she says, "Your parents?" And Justin says, "No."

And then she guesses Anastasia because of all the relationship trouble that has been going on.

And he says, "Yeah, wouldn't it be better if she wasn't around anymore."

THE COURT:

Justin says this?

MS. CRAYON:

Justin says this. Which is the co-conspirator statement. And she says, "Well, I guess." And her

interpretation is he is going to break up with her for good.

She is not able to tell you exactly because she says both of them participate in conversations who

says what, but one or both of them participating in the conversation tell her, "We're going to kill her," and

Justin at that time says --

THE COURT:

Mr. Case and Justin say this.

MS. CRAYON:

Yes. To Kelly in the car. That they're going to kill her. When she says, "What are you talking about?

You're acting crazy. Of course this is never going to happen. You're full of it. Like all other plans you have

made, you won't do it."

Page 81

And Justin says, "Well, I can't actually do it, but Byron said he's going to do it for me.

And Byron agrees, "Yeah, I am going to do it."

Kelly asks, "You don't even have a gun. How are you going to do it?"

"We're going to shoot her."

"You don't have a gun. What are you talking about?"

"Yeah, we do. It's in the trunk."

"You don't even know how to shoot a gun, Byron," according to Kelly.

Byron says, "Yeah, I used to go hunting with my dad. I know how to use a gun." And Kelly says shenever saw Byron Case with a gun before. She never saw Justin Bruton with a gun before.

So they have this conversation back and forth. "We're going to meet her. We want you to call her

and meet us at the Dairy Queen." They're going back and forth.

She is saying, "It's broad daylight. You guys are never going to do this."


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Page 82

She does call Anastasia and her testimony is she spoke to her and agreed to meet at the Dairy

Queen, which is across from Mount Washington Cemetery.

THE COURT:

On Truman Road.

MS. CRAYON:

On Truman Road. Kelly's testimony will be they did drive out there together. They did pick

Anastasia up from the Dairy Queen. They did go into Mount Washington Cemetery.

Prior to picking Anastasia up, they talked about taking her to a secluded spot to do this. They

stopped in front of the Nelson Mausoleum in the cemetery, and that Justin and Anastasia get out but the

caretaker comes up, starting to get dark, puts his lights on. They get back in the car and leave the cemetery,

all four kids. And the caretaker is able to corroborate and identify Justin Bruton's car by his license plate, et

cetera.

Kelly's testimony --

THE COURT:

At this point in time no one has been shot?

MS. CRAYON:

No one has be shot. Everybody is back in the car.

Page 83

No one has seen any guns and no more conversation of it once Anastasia has gotten in the car.

They drive around, and according to Kelly, "Let's go up this road. This is going interesting here."

Because they're looking for a quiet place for Justin and Anastasia to have a talk about their relationship.

They go up into what turns out to be Lincoln Cemetery. Kelly doesn't recognize it as a cemetery for

reasons that are pretty obvious once you see photographs of the area. All the headstones are down into theground; it looks like a park.

THE COURT:

Is Lincoln Cemetery part of Washington?

MS. CRAYON:

No. It's adjacent down the street and up hill.

THE COURT:

Okay.

MS. CRAYON:


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They go up in there and that's where the homicide occurs. And Kelly's testimony is going to be this.

Anastasia and Justin get out of the car. They're standing on one side of the car and that her and Byron are

sitting in the back seat, kind of having the same kind of conversation. And he says, "I'll be right back."

Page 84

She is going to say that Byron got out of the car, popped the drunk, got the rifle out or the shotgun,whatever it is, and pulls it out and points it at Anastasia's head and shoots.

She says, just prior to that, Justin tries to stop it. He's yelling and that's where this "Stop, don't do

it," and the German words are being exchanged.

And then Byron yells for Justin to get back in the car. And she is going to describe the emotionalstate of Justin and, in contrast, the Defendant was extremely calm and collected and wanted to make up this

story about how --

And then they spend some time together talking about what they're going to say. And she is going to

testify the Defendant got rid of gun. Doesn't know exactly where. She is going to give a description of what

she remembers.

Page 85

The Defendant and Justin both sort of come up with this story and they're running it past her. "Doyou think you would believe this about Anastasia getting out of the car after she is mad at Justin Bruton?"

Which is the story that's delivered to the police the day after the body is found.

THE COURT:

When you say it's delivered to the police, do the police just naturally go talk to these kids because

they know they were associates of Anastasia?

MS. CRAYON:

Anastasia's body is found at 3 o'clock in the morning. She is killed in the early evening of the 22nd.Her body is not found until about 3 or 4 o'clock in the morning on the 23rd. She has no identification on

her. Nobody knows what's going on.

There has been some phone calls between -- as I explained earlier, Justin Bruton and Anastasia'ssister, because once the story is made up, they take Kelly home, because she has school the next day.

So they're taking her home and they're giving this story to the mother, Kelly's mother, and Justin

Bruton gets on the phone and gives the story to Francesca WitbolsFeugen that, "Anastasia got mad. Got out

of the car. I haven't seen her. Has she come home yet?" In furtherance of this conspiracy.

Page 86

THE COURT:

They actually initiate the contact with these folks?

MS. CRAYON:

Yeah. Justin and --

THE COURT:


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They as in Justin and Kelly. I don't know if Mr. Case does or not, but knowing that Anastasia is

going to be missing, they contact members of her family and/or other folks to sort of start covering their

tracks. At least that's your theory.

MS. CRAYON:

Exactly. The story has been given. So once Anastasia does not come home, her family is reporting

her missing. Then the conversations with Justin come out through the sister, and that's how the police end

up realizing who Anastasia was with last.

And they start looking for Justin Bruton. They can't find him. By now they found he went over to

The Bullet Hole in Overland Park, purchased a shotgun and put himself against a building in De Soto,Kansas, and killed himself.

Page 87

THE COURT:

Shortly after this event?

MS. CRAYON:

Yeah. He's not discovered until, actually, Saturday morning, and her body is discovered early

Thursday morning. However, there are some things that the Johnson County Sheriff's Department is going

to be able to testify to that lead them to believe he's been there a day or two.

THE COURT:

Okay.

MS. CRAYON:

And the purchase of the shotgun that he uses that is found with him at the suicide site and thereceipt for purchase of that gun, all of those things are found in his car which is the car that the caretaker

sees them in and Kelly says they're driving around in at the time of the homicide, they're all there.

THE COURT:

That gives me a flavor. Let me ask you a couple things, and I'll hear from Mr. Lance. I want to do

this in an organized fashion.

The gist of what Ms. Moffett -- first of all, this discussion about killing Anastasia, did it begin in

this car ride? Was there discussion about it prior to that time?

Page 88

MS. CRAYON:

Ms. Moffett is going to say they said they had been talking about it all day. But her hearing of the

conversations starts in the car. She can say I heard them starting to speak of it in the car, but their

conversations included comments like, "We've been discussing this all day."

THE COURT:


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So when they're in the car, and they say they've been discussing this all day, that's the first time Ms.

Moffett knew of this plan?

MS. CRAYON:

That's correct.

THE COURT:

And Ms. Moffett is going to say that, in the context of -- potentially the context of the lifestyle that

Mr. Case was somewhat involved with, is that this idea of shocking people and discussing violent acts,

morbid things at length, and then never doing it, was common occurrence?

MS. CRAYON:

Yes.

THE COURT:

So her thinking that they were talking about it, going out someplace, acting as they were going to do it, and

false start and then assuming they were going to false start what tamed out to be this homicide would beconsistent with prior events she witnessed with Mr. Case?

Page 89

MS. CRAYON:

Yeah. I want to make sure it's clear for you, I don't think Kelly would be able to testify she has

heard them talk about wanting to murder other people.

THE COURT:

I understand. Now, what I would like for you to do, Mr. Lance, in a sequential fashion, the next

thing I'm going to ask them is what they want to get in, specifically.

What I might ask from you in terms of -- without ruling on anything as to what the jury is going to

hear, is her rendition of the -- from your understanding of discovery is, Ms. Crayon's rendition of what her

evidence and what her theory is, is that how you understand it?

MR. LANCE:

Yes, sir.

THE COURT:

Next I want to find out what they want to get in. But, if you want to say something, go ahead.

MR. LANCE:

I would like to respond to it so you understand what the defense will be.

Page 90

THE COURT:

That's a good idea.


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MR. LANCE:

The defense will be, and this has been the Defendant's version from Day One when he was

interviewed by police. The four young kids are in the car together.

There is a couple in the front seat that have been

Documents

Bryon Case Transcripts 01 PreTrial Motions