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1 PROCEEDINGS WERE HELD AT THE BENCH OUT OF THE 2 PRESENCE OF THE JURY) 3 MR. CARLSON: Your Honor, Mr. Corgan's 4 going to introduce certain PROF notes at this time, and I 5 think the Court's aware what we mean by PROF notes, having 6 had a chance to look at them. 7 First off, for the record, we object to the PROF 8 notes based upon the -- Counsel is going to introduce 9 copies of PROF notes or selected copies of PROF notes and 10 has given us those. 11 We would advise the Court that we would object 12 to the admission of those PROF notes for the reasons as 13 earlier stated in our motion in limine which has been on 14 file. 15 Additionally, counsel stated that once they're 16 introduced, if the Court allows them to be introduced, 17 that he then would like to hand a copy of each one of 18 those or a copy of all of them to each one of the jurors, 19 as I understand.
20 We will object to that procedure and stress to 21 the Court they should be treated like any other exhibits. 22 If he wants to publish the exhibit that comes in 23 at some point, that certainly is his prerogative. 24 But it's certainly not proper that each juror 25 get a copy because that puts more weight on one exhibit
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1 than it does any of the other exhibits.
2 MR. CORGAN: Let me get my exhibit. Maybe
3 I was not clear to Mr. Carlson.
4 Your Honor, what we intend to do is there would
5 be two issues. There are -- from the hard disk -- and 6 that would be the smaller packet -- and it consists of the 7 index. 8 And then it consists of what's designated as
9 Debbe, page 15; Debbe 1, page 16; Debbe 3, page 17; mess,
10 page 21; wants, page 22; CA, page 25; and letter, Sandra,
11 page 26. And then those are there. 12 THE COURT: Whose index is that, that
13 you're looking at -- that face page? 14 MR. CORGAN: This is when Phillips prepared
15 these notes. Mr. Max Patton prepared -- got this index 16 from the computer itself. And these go with these 17 designations. 18 And the reason we selected these -- and we have 19 everything, if the Court wants to look at it. 20 But some of these things really have no
21 relevance to these proceedings, like minutes and 22 constitution and those type things. 23 So we took what was relevant and have compiled
24 that in one document. That's as to the hard disk. 25 Likewise --
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1 THE COURT: So you're saying what you've 2 attached is not this whole list, but the part you're 3 interested in. 4 MR. CORGAN: Right. 5 MR. BUCHANAN: That index was made by 6 Phillips, though, correct? The index was made by 7 Phillips. 8 MR. CORGAN: Well, from the computer. I 9 mean, you know -- 10 MR. BUCHANAN: That is not something that 11 you're representing Mr. Allen made -- an index. 12 THE COURT: This writing. 13 MR. CORGAN: That's not his writing. 14 MR. BUCHANAN: Right. 15 MR. CORGAN: Right, no. 16 THE COURT: Phillips prepared the thing for 17 this at your request for this case. 18 MR. CORGAN: Well, they got -- they 19 prepared this index from reading the computer, which is, 20 you know, their directory file names. 21 THE COURT: You're saying that they 22 prepared it because you requested certain information 23 MR. CORGAN: Right. 24 THE COURT: that caused them to do this. 25 MR. CORGAN: Right. Then there are like
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1 193 pages of PROF notes. Some of those are totally 2 unrelated to correspondence between the defendant and 3 Debra Aubrey. 4 What I would have Dale Billam do is we've taken
5 every correspondence between Miss Aubrey and Mr. Allen in
6 those notes. 7 And we've put in chronological order, the first
8 being a note of 1-26-90 and the last being the note of 9 7-11-90 at 1507 hours. And there are 32 pages of this. 10 What I suggest doing -- I think it's important 11 that this be allowed to publish this to the jury. 12 I have prepared 16 copies, 12 for the jury, two
13 for the alternates, one for Mr. Carlson, one for Your
14 Honor.
15 And what I would like to do is after these are
16 admitted, give them an opportunity to read these.
17 And the reason I've prepared 14 is so that we
18 don't have to take the Court's time with passing this
19 around waiting for each juror individually to read it.
20 I'm not suggesting like with the transcription
21 of 911 call that they keep these.
22 I'm suggesting that then when they go into
23 deliberation that this -- and this would be all they had.
24 They just have the copy.
25 But I think for now, in order to display it for
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1 publishing to the jury for time's sake, they each need to 2 have a copy and have an opportunity to read through it. 3 MR. CARLSON: That's the procedure we're
4 going to object to because that puts more weight on one 5 exhibit than it does the others. 6 The only place you do that in a trial is with a
7 transcript of a tape recording. 8 Like, you know -- we can cover all that issue if 9 you need to, but you don't hand out 12 copies of one 10 exhibit to the jury. 11 It puts more weight on that particular exhibit 12 than anything else. Or certainly the jury perceives it 13 that way, and I would perceive it that way. 14 So that's not the way you handle that. He's
15 entitled to publish it to the jury -- I agree with that -- 16 once it's admitted. 17 But from the standpoint of the weight with each
19 not the way you do it, and it's not proper. It puts more 20 weight on it. 21 THE COURT: How about when they retire?
22 MR. CARLSON: Same objection. If you do
23 that, we're going to -- 24 THE COURT: I'm just saying the effect is
25 maybe sit there and read it out loud, unless they pass it
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1 around. 2 MR. CARLSON: That's the way we treat all 3 the other exhibits. 4 THE COURT: It's not 130 pages to read 5 through. 6 MR. CARLSON: A lot of cases, there are. A 7 lot of cases. 8 THE COURT: Not that we'd do that. 9 MR. CARLSON: A lot of cases there are 10 thousands to read, and we don't do it there. 11 I mean, you put more weight on one exhibit than 12 you are the rest of them; and that's not proper. 13 MR. BUCHANAN: Judge, we have State's 14 Exhibit 2 which is the call card. We have State's Exhibit 15 52, which is the handwritten evidence list. 16 Lynette Lee's report as to evidence in State's 17 Exhibit -- I can't remember from here -- but 57 or 18 something like that. 19 They were not given copies of all those. But 20 we're going to hand them each one a copy of this? 21 THE COURT: I don't think -- I hope they're 22 not wanting to have a witness to have to read through that
23 from the witness stand. What do you contemplate 24 otherwise? 25 MR. CORGAN: That's why I've suggested the
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1 procedure that I do. 2 I mean, if you want us to read through each one 3 or take the time to pass them around and let all 14 of
4 them read it, you know, we're talking four hours later,
5 they're done.
6 MR. CARLSON: That's the problem. If you 7 do it any other way, you put more weight on the exhibit;
8 and that's you don't do that. 9 THE COURT: What, it would take about an
10 hour to read through it? Thirty minutes? 11 MR. CORGAN: To read it out loud?
12 THE COURT: And a person to sit and read it
13 silently. 14 MR. CARLSON: They can go back to the jury
15 room and when we're retired and read it.
16 If I introduce all the technical reports in
17 this, are we going to sit and let them read it?
18 If I introduce every technical report or every
19 note from an expert that I have in this case, we would be
20 sitting here reading. We wouldn't do that.
21 MR. CORGAN: I mean, that's his
22 determination on how he wants to try his case.
23 We feel that in the context of the State's case,
24 the jury needs this information as we proceed.
25 And we think we're entitled upon admission to
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1 have it published to the jury.
2 You know, if you want a situation where I read
3 it out loud or we have the witness read it out loud, we
4 can do that.
5 MR. CARLSON: That's fine if he wants to
6 have the witness read it out loud. That's fine.
7 THE COURT: Who all are you going to have
8 to sponsor those?
9 MR. CORGAN: Well, I'm going to start out
10 with Mr. Billam and attempt to introduce it through him.
11 And, depending on what he can do in that regard,
12 either call him and if we need to, we have Mr. Patton and
13 Mr. Bork lined up as well.
14 MR. BUCHANAN: Judge, we 'd also object on
15 the indexing that Phillips made. There's -- they've
16 characterized certain things by Debbe 1, Debbe 3, mess,
17 wants.
18 MR. CORGAN: Well, we can put Mr. Patton
19 on. Mr. Patton didn't determine Debbe. Debbe is from the
20 computer. Maybe I'm not explaining --
21 THE COURT: Why is it necessary? 22 MR. CARLSON: Why is it necessary? You
23 don't need an index.
24 MR. CORGAN: Well, it's necessary. It
25 gives you the context. See, this just says "memo."
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1 MR. CARLSON: You have a witness. The
2 witness can sponsor it. You're going to ask the witness
3 what that is, what the memo is.
4 MR. BUCHANAN: You don't have to have a
5 title to understand what the words on the paper are.
6 THE COURT: I don't understand why
7 MR. CORGAN: Well, you have this memo; but
8 it doesn't say to whom it is.
9 Okay. The way you know that it's to Debbe is
10 from the file name, and the file name is "Debbe2'
11 MR. CARLSON: No. You have a witness who's
12 asking you -- asking that witness if they received that
13 memo, sponsors that memo.
14 THE COURT: I think for now we'll leave the
15 face sheet attached and not distribute the multiple
16 copies.
17 Just to go the jury and forcing what you want to
18 emphasize and have them emphasize it without the reading
19 it in toto.
20 MR. CORGAN: You mean, I cannot publish
21 this to the jury upon their admission?
22 THE COURT: Well, for the time being.
23 MR. CORGAN: Judge, you know, I mean, in
24 the context of the State's case, they need this
25 information now.
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1 I mean, you know, they should not be required to
2 wait until the jury deliberations to consider this 3 information.
4 I mean, you know, we're you know, the purpose
5 this is offered goes to motive and his frame of mind.
6 THE COURT: Well, it can be -- I think it
7 can be categorized by witnesses -- characterized.
8 And it would be up to the jury to scrutinize
9 what affect, impact, if any, it should have.
10 Can be described. It's a -- communications back
11 and forth from the defendant and Debbe Aubrey.
12 MR. CORGAN: But these are also statements
13 of the defendant, and they should be allowed to know those
14 statements during the presentation of the State's evidence
15 and not be without that as we go into the defense's case.
16 I don't know how long the defense case will
17 continue. But, you know, I think it's important that they
18 be allowed to have this information.
19 You know, it's like saying that we can't, you
20 know we can present a statement, but they can't know what
21 it is until they get to the jury deliberations.
22 MR. CARLSON: Ask Debbe Aubrey about it.
23 You're bringing her as your witness. She can characterize
24 it. 25 If you want a portion that you want to ask
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1 about, that's the way you ask about it. It's your
2 witness. 3 THE COURT: Well, let's go ahead and get
4 Mr. Billam on. Do it that way for the time being. We'll
5 decide that a little later on.
6 (THE FOLLOWING PROCEEDINGS WERE HELD IN THE
7 PRESENCE AND HEARING OF THE JURY)
8 THE COURT: All right. Show the jury's
9 back, all present.
10 Again, thank you for your patience. We've had
11 some evidentiary matters to discuss with counsel before we
12 resume. Call your next witness for the State.
13 MR. CORGAN: Your Honor, the State would
14 call at this time Mr. Dale Billam.
15 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
16 DALE J. BILLAM
17 after having been duly sworn to tell the truth, the whole
18 truth, and nothing but the truth, testified as follows:
19 DIRECT EXAMINATION
20 THE COURT: Please go ahead.
21 BY MR. CORGAN: 22 Q Please state your name, sir.
23 A My name is Dale J. Billam.
24 Q Mr. Billam, what is your business, profession, or
25 occupation?
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lh1998-99, 2000