Trial Transcripts

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F U R T H E R  P R O C E E D I N G S  10:00 a.m.

THIS CAUSE came on for further trial before The Honorable Franklin T.  Dupree, Jr., United States Chief District Judge, and a jury, on Monday, August 20, 1979, at Raleigh, North Carolina.

(The following proceedings were held in the presence of the jury and alternates.)

THE COURT:  Good morning, ladies and gentlemen.  Let me see Counsel at the Bench briefly.


B E N C H  C 0 N F E R E N C E

THE COURT:  Since court adjourned on Friday afternoon, I have spent a substantial portion of my waking hours researching and deciding the rather interesting evidentiary question which was posed, the question being whether statements tending to be against the penal interests of the witness Stoeckley should be admissible through other witnesses -- statements made outside of court in far distant times.
     In that connection, I have studied the transcript of the witnesses' testimony -- Stoeckley's and the six witnesses whose out-of-court statements are posed to be offered -- the briefs of both sides, and all of the case law -- relevant case law -- that I could find, which includes the Advance Sheet of the Federal Second, which came Sunday and which, oddly enough, contained a case involving 804(b)(3), but unhappily not directly in point.
     I will rule that these proposed statements do not comply with the trustworthy requisites of 804(b)(3) or (b)(5); that far from being clearly corroborated and trustworthy, that they are about as unclearly trustworthy -- or clearly untrustworthy, let me say -- as any statements that I have ever seen or heard.
     Chambers v. Mississippi, of course, is a far cry from this.  There we had an absolute confession by a person who was in his right mind, and various other distinguishing features.  On the question of impeachment, of course the prerequisite for a prior inconsistent statement is one that is, in fact, inconsistent.
     Weinstein has said that any statement is inconsistent if, under any rational theory it might lead to any relevant conclusion different from any other relevant conclusion resulting from anything the witness has said.  This witness, in her examination here in court -- and cross-examination -- has been, to use the Government Counsel's terminology, "all over the lot."
     The statements which she has made out of court were "all over the lot," so it can't really be said that the hearing of those statements would lead to any different conclusion than what the jurors got while she was here in open court.
     The case most nearly like this one that I was able to find and not cited by either side is United States v. Satterfield: in the 500 F.  2d 687, cert.  denied 99 Supreme Court 128.  That is a Ninth Circuit case from 1978.  That case, as many others do, including cases that were cited -- such as Thomas and Barrett and others -- states that this matter of determining trustworthiness is committed in the first instance to discretion of the Court.  In that case there was a finding of untrustworthiness by the District Court, although there were some factors in evidence which tended to substantiate the statements or lend credibility to them, and statements which were pointed in the opposite direction.
     As I stated, this testimony, I think, has no trustworthiness at all.  Here you have a girl who, when she made the statements, was in most instances heavily drugged, if not hallucinating.  And she has told us all that herself.  She has stated that in person.
     But I would get over the unavailability question.  I would get past that and, in some aspects of it, I think they could have been held to be against her penal interests.  But on the question of trustworthiness, I just can't see it.
     Now, on the question of impeachment, as I stated, I don't think it is admissible on that theory for the reason that I don't think it is impeaching.  There are other reasons which I won't elaborate on right now.
     Finally, I think that this evidence ought to be excluded as a matter of discretion by the Court under Rule 403, because its probative value is substantially outweighed by the danger of unfair prejudice.  It would tend to confuse the issues, mislead the jury.  It would cause undue delay and a waste of time.
     I am thinking now that I took a day of this jury's time and gave it to Counsel, most of which was taken by Counsel for the Defendant to interview Ms. Stoeckley, and to have her apparently interviewed in company with several of these six witnesses.  And anything that would come in by this way now would still be cumulative.
     She has told everything -- she told this jury everything that you proposed to show by these witnesses that she told them.  So I think in the interest of time -- having devoted two days to this subject -- that that is enough; and for the additional reason that it ought to be excluded under 403, I will hold that it is not admissible.
     Now I have a different subject, and one that is frankly very, very disturbing to me.  And I want to ask Counsel for the Defendant now, were the members of this jury panel, prior to the convening of this Court on the 16th of July, 1979, contacted by anyone by or on behalf of the Defendant and interrogated on any subject whatever?

MR. SEGAL:  Not knowingly, Your Honor.  In no way did we make any attempt to contact the jury panel.

THE COURT:  Did you have someone employed at Duke University?

MR. SEGAL:  Let me say there were two jury studies going on in this area at the same time.  We accidentally learned that there was another homicide case here that was being tried in Superior Court, that persons were calling various persons at random.
     Let me just tell you what we did, Your Honor.  The jury study that we did took a random sample from the telephone book.  No record was ever made of the name, because it was not important to us.  It was done by a mechanical method of taking from column one on page 20, the 12th name; column two on page 15, the tenth name; and a sequence like that.  Nobody was ever asked a name, no name was ever recorded, and nobody ever indicated -- first of all, no one ever indicated they had been summoned as a juror.
     If they did, it would have been discontinued immediately.  We made no effort to investigate any person on the jury panel or make any contact with them directly.
     If such a thing ever happened that way, it would have been accidental that a person was a sheer random choice, that someone's name would have been picked up.  However, if you tell me the date on which this happened, it may not even be the date we are talking about, Your Honor.

MR. SMITH:  Let me make a more precise answer to your question.  At no time did anyone ever take a list of the prospective jurors of the pool and contact them; no.  If that ever happened once -- one time -- it would be the most outrageous act I have ever heard of.  That never happened.
     We never said to anybody, "Here is the list of jurors.  Call them up and see how they feel.  Here is a list of jurors.  Contact them in any way."  I got a list of the jurors from the Clerk's Office and I passed that list around to lawyers I know and said, "Do you know any of these people -- ever met them?"  I checked them out with any other citizens I knew who might know them.  But never was any contact made personally.

THE COURT:  I could not conceive of your doing such a thing --

MR. SMITH:  (Interposing) Oh, no.

THE COURT:  -- Unless you told me.  If somebody else did, I would disbelieve them.  But I would say this: if it happened, although we are beginning our sixth week, and although I have never been more physically and mentally burdened with court in my life, I would mistry this case so quickly that it would make your head swim.

MR. SMITH:  I agree.  It ought to be.  Let me ask you this: it is disturbing that anyone has suggested it to you, and I think we ought to run it down.

THE COURT:  Well, I will do that at this time, because it was just a chance remark at a wedding reception late Saturday afternoon.  But I dropped my upper plate when it was mentioned.

MR. SMITH:  Judge, we made a very, very careful, thorough examination into the attitudes of people who live in our area, so that we would have an understanding of the kind of jury we wanted.  It was scientific.  It was well done.  It was in good taste.  And I liked it.  I was impressed with it.  I had never seen it done before.

THE COURT:  Questions were asked by telephone?

MR. SMITH:  Yes; it was a telephone survey.

THE COURT:  Just as a part of my continuing education, let me have your list, then.

MR. SMITH:  Of people?

THE COURT:  No; of questions.

MR. SMITH:  Oh, sure; we would be happy to.  We have no list of people -- have no way to know what people were called.  As I recall, we don't have any names of anyone.

MR. SEGAL:  No names.

THE COURT:  I will ponder and decide whether or not I should question this jury panel as to whether or not any of them were contacted.

MR. SMITH:  We would have no objection to that at all -- not in the least.

MR. SEGAL:  I would like to return, if I may, to the first subject matter of our bench conference, which is the Defendant's offer in this regard.  I must say, I am deeply distressed in a criminal case, as opposed to a civil case, where the burdens are different -- that a Defendant on, I think --

THE COURT:  (Interposing) Mr. Segal, let me interrupt you to say this: I did not reach this decision lightly.  I spent roughly seven hours on this thing on Saturday.  I spent the entire day Sunday until 11:30 last night, wrestling with this thing myself.  And I have done this -- and I do this routinely in criminal cases -- I lean over backwards to make sure that no criminal defendant is ever deprived of a defense.
     In evidentiary rulings, if there is the slightest question in the world, I will go with the defendant every time.  After all, as I have said many times, there is not enough time to try the case one time, and God knows, we don't want to have to try it twice.
     But I am thoroughly convinced in my own mind that your position is without merit with respect to this particular evidence.  I have ruled on it, and as I say, I did not reach that lightly -- because I am risking a terrible lot of judge time and juror time down the road if I make an error and it has to be retried.
     But I am confident of my position on that one.  Let me say further that I will reduce all these -- I have just given sketchily my opinion -- but I will reduce it to writing, so that you and the appellate court, should it reach that -- of course, if your man goes free, then we are all home free.  But I will do that, because they would be entitled to a more detailed explanation of my thinking about it.

MR. SEGAL:  May we stay here at the Bench for one minute and permit Mr. Smith and I to discuss something?  We may need to share it with you immediately.

THE COURT:  All right; that's okay.

(Bench conference terminated.)


B E N C H  C O N F E R E N C E

MR. SMITH:  Judge, two of those six witnesses, Beasley -- and there is one who is not one of the original six, as you might say -- and a Mr. Gowen will testify not as to statements made by this young lady but to show where she was soon after this occurred.
     I would assume that Your Honor will find that admissible; that is, that we can put witnesses on to show where Helena Stoeckley was, what she was doing, who she was with, what she looked like, and what happened to her.

MR. MURTAGH:  That is uncontested.

MR. SMITH:  It doesn't make any difference if it is uncontested.  We submit the jury is entitled to hear it whether it is uncontested or not.

MR. BLACKBURN:  Excuse me.  Gowen was not one of the six.

MR. SMITH:  No, Gowen is a new witness.  Gowen will put her at a trailer park in Fayetteville at a place where Beasley, our officer, saw her.  Gowen is not one of the original six but will put her at a specific location in Fayetteville soon after this event occurred.

MR. MURTAGH:  When?

MR. SMITH:  The same night, 5:00 o'clock in the morning.

MR. BLACKBURN:  Are you talking about Beasley going into what he said to her?

MR. SMITH:  No, under the Judge's ruling, I assume that he could not.

MR. MURTAGH:  Gowen will contradict Posey.

MR. SEGAL:  Let me expand if I may our Offer of Proof, Your Honor.  We intend now, in view of Your Honor's ruling, I still think we will call Mr. Posey.  Mr. Posey will describe that floppy hat, blond wig, and boots were characteristic of her prior to the crime.  He will testify that she discarded them immediately after the crime.

MR. MURTAGH:  That is her statement.

MR. SEGAL:  That is not her statement.  These are acts which she did which are acts that we suggest, Your Honor --

MR. BLACKBURN:  That is her statement.

MR. MURTAGH:  That is her statement.  That is what he said.

MR. SEGAL:  Would you please just let me make that --

THE COURT:  (Interposing) She has testified to that and given the reason for it.

MR. SEGAL:  I think we are clearly entitled to show first of all additional evidence that she discarded it.  Actually, this evidence is contrary to her statement in the regard as to how frequently she wore it, and we also believe that we are entitled to the inconsistent explanation; that is, not -- her explanation is different.  She says people were harassing her.
     His explanation for it is different and, for that purposes, we have a right to show that she did it.  Secondly, Your Honor, we intend to show -- impeach her further -- where she -- without a transcript I can't recall whether she admitted -- I'll have to ask Mr. Posey about that.
     We would show her arrival at home at the time which is consistent with the crime -- the time that she came home.  We would show the vehicle which she was in which we think we can show through other circumstantial evidence is relevant to this case.
     So, I want to make clear that that is what we intend to offer Mr. Posey.  Secondly (sic), in a different regard, we have admissions that were made in the last 72 hours to Mr. Posey by Ms. Stoeckley and at that time she was not under the influence of any drugs.
     She made those admissions.  They are contrary to her statements on the stand here as to what she said when she saw the crime scene photographs.  We think Mr. Posey, Ms. Zillioux and Mr. Beasley may testify as to those current admissions which impeach her statements when I examined her at the very end of the direct examination as to whether or not she did not agree to recognizing the hobby horse, whether or not she did not admit to recognizing the scene in the living room, and stated at that time that she has a recollection of standing over the body.
     There are other statements that she has made as to recognizing that are different than her in-court testimony, and I do intend to offer that in place of any prior statements that we have had these witnesses testify to on the voir dire on Friday.
     Mr. Smith has already made the offer of Proof in the regard to Beasley's testimony.  We think that we ought to lay that out at this juncture while we are still at the Bench.

MR. MURTAGH:  Your Honor, may I respond?  Your Honor, on Friday at a bench conference, Mr. Segal, by way of a representation of counsel, said that these witnesses would testify to these latter statements.  No such statements ever came out on voir dire.  I think we are -- assuming for the sake of argument that such statements were later made to these various witnesses.  What we understand happened is that Ms. Stoeckley was in the counsel room and these various witnesses were paraded in to her and, in effect, "Don't you recall, Helena, saying this to me?"  You know -- the Jane Zillioux business, the episode with hepatitis and the blood on her hands.
     I think it gets back to the same thing, Your Honor.  It goes back to the untrustworthiness of her original statements and this is simply an attempt to go in the back door after the Court has ruled otherwise.  As to this new witness, we have had no voir dire on him.
     As to Mr. Posey's explanation of why she disposed of this stuff -- if, in fact, she disposed of it -- he is not competent to testify as to an explanation.  He can say what he saw and that is uncontroverted.  She did come home that morning.  She apparently came home most mornings at this time.
     I think, Your Honor, if these witnesses do get on the stand, we are going to get right back into the area in which the Court has already ruled, and we would object to it.

THE COURT:  What you are suggesting is that the Defendant now proposes to be permitted to show inconsistent statements, to use Judge Widener's language, as a mere subterfuge to get before the jury evidence not otherwise admissible?

MR. MURTAGH:  Because the statement -- in other words, if Zillioux were to testify as to what Helena may have said to her on Friday, she would bring out the fact of Helena's prior statement to her under the influence of hepatitis and God knows what else --

MR. SEGAL:  (Interposing) I think I am capable of conducting examination properly, Your Honor.  I do not think it should be suggested and advanced that I cannot do that.

THE COURT:  The only way I see this thing can be resolved is to send the jury out and let you bring your folks in for another voir dire.  Of course, I anticipated that what transpired in the witness room on Thursday between these various witnesses -- you avoided that in your voir dire -- that you would be coming back.
     And, now you say that you are going to come back with that.  Look, I spent all the time I think this case can spare to this particular thing.  Call your witnesses and, if there is an objection, I will rule.

(Bench conference terminated.)