Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM

1 IN THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT OF MISSOURI
2

3 RUSSELL S. FARIA, )

4 Appellant, )

5 vs. ) ED No. 100964

6 STATE OF MISSOURI, )

7 Respondent. )

10 IN THE LINCOLN COUNTY CIRCUIT COURT OF THE STATE OF MISSOURI

FORTY-FIFTH JUDICIAL CIRCUIT
11 JUDGE DAN DILDINE

12 STATE OF MISSOURI, )

13 Plaintiff, )

14 vs. ) Cause No. 12L6-CR001312

15 RUSSELL S. FARIA, )

16 Defendant. )

17

18 TRANSCRIPT ON APPEAL
2-20-13, 3-4-13, 5-21-13, 6-18-13,
19 7-2-13, 7-10-13, 10-28-13
11-18-13, 11-19-13, 11-20-13, 11-21-13
20 VOLUME 1 OF 5

21

22 APPEARANCES

23 Ms. Leah Askey Attorneys for the Plaintiff

Mr. Richard Hicks
24
Mr. Joel Schwartz Attorneys for the Defendant
25 Mr. Nathan Swanson

26
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1 APPEARANCES

4 Ms. Leah Askey Attorney for the State

Prosecuting Attorney
5 Lincoln County Justice Center
Troy, Missouri 63379
6

7 Mr. Richard Hicks Attorney for the State

Attorney General's Office
8 P.O. Box 899
Jefferson City, Missouri 65102
9

10 Mr. Joel Schwartz Attorneys for the Defendant

Mr. Nathan Swanson
11 120 South Central Avenue
Suite 130
12 Clayton, Missouri 63105

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14

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16

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1 INDEX

4 Motion Hearing held February 20, 2013 Page 14

5 Motion Hearing held March 4, 2013 Page 16

6 Motion Hearing held May 21, 2013 Page 28

7 Motion Hearing held June 18, 2013 Page 58

8 Motion Hearing held July 2, 2013 Page 78

9 Motion Hearing held July 10, 2013 Page 93

10 Statement of Mary Rodgers Page 114

11 Motion Hearing held October 28, 2013 Page 128

12

13

14 Jury Trial - Day 2, November 18, 2013 & Motions Page 143

15 Jurors Seated Page 187

16 Opening Statement on behalf of Ms. Askey Page 194

17 Opening Statement on behalf of Mr. Schwartz Page 212

18 Evidence on behalf of the State

19 1. Mariah Day

20 Direct Examination by Ms. Askey Page 232

21 Volume 2 Page 239

22 Cross-Examination by Mr. Schwartz Page 249

23 Offer of Proof by Defendant Page 260

24 Direct by Mr. Schwartz Page 261

25 Cross by Ms. Askey Page 262

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1 Redirect Examination by Mr. Schwartz Page 263

2 Recross-Examination by Ms. Askey Page 267

3 2. Leah Day

4 Direct Examination by Ms. Askey Page 275

5 Cross-Examination by Mr. Schwartz Page 292

6 Redirect Examination by Ms. Askey Page 298

7 Recross-Examination by Mr. Schwartz Page 299

8 3. Pamela Welker

9 Direct Examination by Mr. Hicks Page 301

10 Cross-Examination by Mr. Schwartz Page 312

11 4. Mary Rodgers

12 Direct Examination by Ms. Askey Page 315

13 Cross-Examination by Mr. Schwartz Page 318

14 5. Luci Faria

15 Direct Examination by Mr. Hicks Page 319

16 Cross-Examination by Mr. Swanson Page 324

17 6. Pam Hupp

18 Direct Examination by Mr. Hicks Page 325

19 Cross-Examination by Mr. Schwartz Page 348

20 Redirect Examination by Mr. Hicks Page 368

21 Recross-Examination by Mr. Schwartz Page 369

22 Offer of Proof by Mr. Schwartz Page 372

23 Direct Examination by Mr. Schwartz Page 373

24 Cross-Examination by Mr. Hicks Page 382

25 Redirect Exam by Mr. Schwartz Page 386

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1 7. Margie Harrell

2 Direct Examination by Ms. Askey Page 394

3 Cross-Examination by Mr. Swanson Page 406

4 Redirect Examination by Ms. Askey Page 411

5 8. Chris Hollingsworth

6 Direct Examination by Ms. Askey Page 413

7 Cross-Examination by Mr. Schwartz Page 427

8 Redirect Examination by Ms. Askey Page 436

9 9. Mike Quattrocchi

10 Direct Examination by Mr. Hicks Page 438

11 Cross-Examination by Mr. Swanson Page 448

12 Redirect Examination by Mr. Hicks Page 453

13 Recross-Examination by Mr. Swanson Page 456

14

15

16 Volume 3 Page 461

17 Day 3 of Jury Trial taken on November 19, 2013 Page 461

18 10. Mark Schimweg

19 Direct Examination by Ms. Askey Page 463

20 Cross-Examination by Mr. Schwartz Page 473

21 Redirect Examination by Ms. Askey Page 491

22 11. Amy Pratt

23 Direct Examination by Ms. Askey Page 498

24 Cross-Examination by Mr. Swanson Page 525

25 Redirect Examination by Ms. Askey Page 549

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1 Recross-Examination by Mr. Swanson Page 552

2 Further Redirect Exam by Ms. Askey Page 554

3 Further Recross-Exam by Mr. Schwartz Page 555

4 12. Kamal Sabharwal

5 Direct Examination by Mr. Hicks Page 560

6 Cross-Examination by Mr. Schwartz Page 610

7 Redirect Examination by Mr. Hicks Page 623

8 Recross-Examination by Mr. Schwartz Page 627

9 13. Tiffany Fischer

10 Direct Examination by Ms. Askey Page 629

11 Cross-Examination by Mr. Swanson Page 636

12 Redirect Examination by Ms. Askey Page 646

13 Recross-Examination by Mr. Swanson Page 648

14 14. Meghan Hall

15 Direct Examination by Ms. Askey Page 650

16 Cross-Examination by Mr. Swanson Page 656

17 Volume 4 Page 659

18 15. Don Smallwood

19 Direct Examination by Ms. Askey Page 660

20 Cross-Examination by Mr. Schwartz Page 664

21 Redirect Examination by Ms. Askey Page 668

22 Recross-Examination by Mr. Schwartz Page 670

23 Further Redirect Exam by Ms. Askey Page 670

24 16. Michael Merkel

25 Direct Examination by Mr. Hicks Page 672

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1 Cross-Examination by Mr. Schwartz Page 715

2 Redirect Examination by Mr. Hicks Page 738

3 17. Raymond Floyd

4 Direct Examination by Mr. Hicks Page 746

5 Cross-Examination by Mr. Schwartz Page 761

6 Redirect Examination by Mr. Hicks Page 764

7 18. Lee Lester

8 Direct Examination by Ms. Askey Page 773

9 Cross-Examination by Mr. Schwartz Page 775

10 19. Michael Lang

11 Direct Examination by Ms. Askey Page 777

12 Cross-Examination by Mr. Swanson Page 790

13 Redirect Examination by Ms. Askey Page 803

14 Recross-Examination by Mr. Swanson Page 805

15

16

17 Day 4 of Jury Trial taken on November 20, 2014 Page 810

18 20. Daniel Fahnestock

19 Direct Examination by Ms. Askey Page 811

20 Cross-Examination by Mr. Swanson Page 835

21 Redirect Examination by Ms. Askey Page 847

22 Recross-Examination by Mr. Swanson Page 852

23 Further Redirect Exam by Ms. Askey Page 855

24 21. Janet Meyer

25 Direct Examination by Ms. Askey Page 856

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1 Cross-Examination by Mr. Schwartz Page 858

2 Redirect Examination by Mr. Askey Page 869

3 Recross-Examination by Schwartz Page 870

4 State rests Page 873

5 Judgment of Acquittal at the Close of the

6 State's Evidence Denied Page 873

7 Evidence on behalf of the Defendant

8 1. Robert L. Shramek, Jr.

9 Direct Examination by Mr. Schwartz Page 878

10 Cross-Examination by Mr. Hicks Page 884

11 2. Michael Corbin

12 Direct Examination by Mr. Schwartz Page 888

13 Cross-Examination by Mr. Hicks Page 901

14 Volume 5 Page 923

15 3. Marshall Bach

16 Direct Examination by Mr. Schwartz Page 924

17 Cross-Examination by Mr. Hicks Page 937

18 4. Brandon Sweeney

19 Direct Examination by Mr. Schwartz Page 950

20 Cross-Examination by Mr. Hicks Page 965

21 Redirect Examination by Mr. Schwartz Page 977

22 Recross-Examination by Mr. Hicks Page 978

23 Further Redirect Exam by Mr. Schwartz Page 981

24 5. Angelia Hulion

25 Direct Examination by Mr. Schwartz Page 982

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1 Cross-Examination by Mr. Hicks Page 992

2 Offer of Proof by Defense Page 998

3 6. Linda Hartmann (Outside hearing of jury)

4 Direct Examination by Mr. Schwartz Page 998

5 Cross-Examination by Mr. Hicks Page 1002

6 7. Dean Frye

7 Direct Examination by Mr. Schwartz Page 1004

8 Cross-Examination by Mr. Hicks Page 1014

9 Redirect Examination by Mr. Schwartz Page 1019

10 Recross-Examination by Mr. Hicks Page 1019

11 Further Redirect by Mr. Schwartz Page 1020

12 Further Recross by Mr. Hicks Page 1021

13 Cont. Further Redirect by Mr. Schwartz Page 1022

14 Cont. Further Recross by Mr. Hicks Page 1022

15 8. Kurt Panzar

16 Direct Examination by Mr. Swanson Page 1023

17 9. Greg Chatten

18 Direct Examination by Mr. Swanson Page 1028

19 Voir Dire Exam by Mr. Hicks Page 1043

20 Direct Exam by Mr. Swanson (Cont.) Page 1045

21 Cross-Examination by Mr. Hicks Page 1054

22 Redirect Examination by Mr. Swanson Page 1059

23 Recross-Examination by Mr. Hicks Page 1059

24 Defense rests Page 1060

25
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1 Rebuttal Evidence by the State

2 1. Patrick Harney

3 Direct Examination by Ms. Askey Page 1061

4 Cross-Examination by Mr. Swanson Page 1071

5 By the Defense

6 Offer of Proof by the Defense Page 1067

7 1. Greg Chatten (Recalled outside hearing of jury)

8 Direct Examination by Mr. Swanson Page 1067

9 Cross-Examination by Mr. Hicks Page 1071

10 Redirect Examination by Mr. Swanson Page 1074

11 Russ Faria questioned by Mr. Schwartz (No jury) Page 1078

12 Judgment of Acquittal at the Close of

13 All of the Evidence Denied Page 1079

14 Instruction Conference Page 1080

15

16

17 Day 5 of Jury Trial taken on November 21, 2013 Page 1080

18 Jury Instruction Conferenece Page 1088

19 Jury Instructions read by the Court Page 1092

20 Closing Argument by Ms. Askey Page 1100

21 Closing Argument by Mr. Schwartz Page 1114

22 Closing Argument by Ms. Askey Page 1142

23 Jurors retire to deliberate Page 1151

24 Note from the Jury Page 1152

25 Verdicts of the Jury Page 1154

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1 Jurors polled Page 1155

2 Reporter's Certificate Page 1161

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1 INDEX OF EXHIBITS FOR JURY TRIAL

3 Identified Offered Received

5 FOR THE STATE

6 State's Exhibits

7 1 237 238 238

8 2 243 244 244

9 3

10 4 288 289 289

11 5 310 310 311

12 6

13 7 403 404 405

14 8 404 405 405

15 9 416 417 417

16 10 420 420 420

17 11 421 421 421

18 12 437 437 437

19 13 445 446 446

20 14 580 694 694

21 15 506 508 508

22 16 507 508 508

23 17 509 511 511

24 18 514 515 515

25 19 518 518 518

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1 20 521 522 522

2 21 522 523 523

3 22 632 633 633

4 23 653 654 654

5 24 646 647 647

6 25 512 512 788

7 26 605 606 606

8 27 519 520 520

9 28 786 788 788

10 29 524 524 524

11 30 593 594 594

12 31 593 594 594

13 32 573 574 574

14 33 578 578 578

15 34 607 607 607

16 35 784 788

17 36 782 783 783

18 37 549 549 549

19 38 551 551 552

20 39 552 552 552

21 40 634

22

23

24

25
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1 FOR THE DEFENDANT

2 Defendant's Exhibits

3 A 263 265

4 B 264 265 266

5 C 373 379 380

6 D 526 526 527

7 E

8 F 732 874 874

9 G 535 535 535

10 H 535 535 535

11 I 536 536 536

12 J 549 549 549

13 K 643 643 644

14 L 732 733 733

15 M 730 731 731

16 N 962 962 963

17 O 529 1006 1006

18 P 1001 1013 1013

19 Q 1026 1026 1026

20 R 1034 1034 1045

21 S 1070

22

23

24

25
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 (The following proceedings were taken on

2 February 20, 2013, in the Circuit Court of Lincoln County

3 with Judge Chris Kunza Mennemeyer presiding in State vs.

4 Russell S. Faria. Present are Ms. Leah Askey, Attorney for

5 the State of Missouri and Mr. Nathan Swanson, Attorney for

6 the Defendant.)

7 THE COURT: State versus Russell S. Faria,

8 12L6-CR01312. Good morning. Are you Mr. Faria?

9 THE DEFENDANT: Yes, ma'am.

10 THE COURT: Did I pronounce that right? Faria?

11 MR. SWANSON: If we could put that on second

12 call. We're trying to get some dates.

13 MS. ASKEY: This is a case the Attorney General

14 has entered on. We're trying to get dates for them for the

15 pre-setting.

16 THE COURT: We will put him on second call. We

17 will call you back up once your counsel indicates they are

18 ready for your cause.

19 (The case was not recalled but March 22 is set

20 for motions.)

21

22 ***

23

24

25
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1 (The following proceedings were taken on

2 March 4, 2013, with Judge Chris Kunza Mennemeyer in the

3 Circuit Court of Lincoln County on State vs. Russell S.

4 Faria. Present are Ms. Leah Askey, Attorney for the State

5 and Mr. Nathan Swanson, Attorney for the Defendant.)

6 THE COURT: We're on the record on

7 12L6-CR01312, State of Missouri versus Russell S. Faria.

8 We need to go to what date?

9 MR. SWANSON: We're objecting to any

10 continuance, Your Honor.

11 THE COURT: Okay.

12 MR. SWANSON: If you will recall, we were here

13 about two weeks ago and at great length scheduled this trial.

14 This trial was set for next week and then got continued. It

15 had been set in December. It was dismissed and refiled. It

16 was set in October and continued.

17 Mr. Faria has been in jail more than a year

18 now. He'll be in jail a year and a half come to trial that

19 we've got set.

20 That date was worked out at great length and

21 continuing it because one of the State's witnesses wants to

22 go to a conference is not something we could possibly do. It

23 would be a huge detriment to my client.

24 MS. ASKEY: Judge, if I may?

25 THE COURT: Yes.

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1 MS. ASKEY: State's filing the Motion to

2 Continue only because it's unavoidable. I don't know if the

3 Court is aware but in cases like these, when a Major Case is

4 enacted, we have Detectives from all over the State of

5 Missouri that come in. Some 45 Detectives showed up on this

6 specific investigation.

7 There are two trainings in the year, one that's

8 a State training and one that's a National training that

9 requires attendance, one of which is our Commander of the

10 Major Case Squad who comes in and commands all of the 45

11 Detectives.

12 He is getting ready to retire, and his presence

13 I wouldn't say is required but he's getting, he's already

14 made his plans to be there, so have many of the 45 men and

15 women that were assigned to this case.

16 The State is not the one that has requested

17 every continuance, first. Second, when I stood before you a

18 couple of weeks ago to make this date, I did not know that

19 that National training was in Las Vegas, and it's exactly the

20 same dates from Day 1 to Day 4. I even thought maybe I could

21 manipulate and move my people around.

22 I think the date you had told me you might be

23 available was that week in July that's right at the beginning

24 of July. I think it's Fair Week, as I remember it. So it's

25 like the 7th maybe, or 8th through the 12th.

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1 I did check with the Attorney General's office

2 and checked my Major Case investigators, as well as Commander

3 Schimweg, and they are available that day.

4 I understand that it's a detriment, but I don't

5 think that two weeks is going to be, in the grand scheme of

6 things, an entirely huge deal considering the fact that we're

7 trying to negotiate so many people's schedules.

8 The Attorney General is involved in this case.

9 We've cleared their schedule as well and, you know, the State

10 obviously has the option, Judge, to dismiss that and refile

11 it, which then starts the clock running again.

12 We don't want to do that in the interest of

13 judicial economy, but at the same time, I can't proceed

14 without my Major Case Commander and I think I have somewhere

15 in the neighborhood of 13 investigators that are already

16 confirmed in Vegas.

17 MR. SWANSON: You've also endorsed 150

18 witnesses. If we're going to be continuously moving this

19 around, trying to make sure that every witness is available

20 -- in fact, you, by your own admission, there's 45 Major Case

21 Squad investigators, we'll never find a week that will work

22 out.

23 MS. ASKEY: Some of them I can do without.

24 Unfortunately, the Commander I cannot do without in a murder

25 trial.
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1 THE COURT: As to July 9, 10, 11 and 12, is

2 there a conflict for you?

3 MR. SWANSON: I'm honestly not certain if there

4 is a conflict for myself or for Mr. Schwartz, who is the

5 primary attorney on it.

6 But, again, Your Honor, this is the -- and

7 you're right, there are some continuances that have been by

8 agreement, but this is the third special setting we've had.

9 We've been trying to get this to trial for

10 months now.

11 THE COURT: And I guess my thought is if we can

12 go to that setting, that's only a two week difference. It's

13 not huge.

14 MS. ASKEY: I did call, had my office call --

15 MR. SWANSON: She did.

16 MS. ASKEY: -- on Friday to verify that that,

17 to check that day, and I was told that they wouldn't agree to

18 anything, which is why I was hurriedly writing something for

19 you this morning because I don't have a choice.

20 Either I dismiss it and I refile it and we

21 start the ball rolling again or -- I cannot proceed. I won't

22 proceed. It's a disservice to the State. I don't know what

23 else to do.

24 MR. SWANSON: The other option, Your Honor,

25 would be to move it forward. I know we discussed some dates

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1 that were earlier.

2 MS. ASKEY: The only other date in my memory

3 that was earlier was that next, the week prior in June which

4 we set all of our Motions in Limine and our jury selection

5 on.

6 MR. SWANSON: Right.

7 THE COURT: I would prefer not to move anything

8 else because we have moved everybody in both counties to

9 accommodate special settings on all of that.

10 MS. ASKEY: Right.

11 THE COURT: That would be moving mountains to

12 redo that all again.

13 MS. ASKEY: But we can keep the motion dates

14 set for that week.

15 THE COURT: I would be keeping the motion

16 dates. I cannot move more than one thing.

17 MS. ASKEY: Right.

18 THE COURT: All I can do is I can give you July

19 9 through 12. July 23 through 26. I'll write these down.

20 MS. ASKEY: The 9 through 12 is available.

21 THE COURT: So that both parties can advise.

22 July 9 through 12. July 23 through 26. August 27 through

23 30.

24 MS. ASKEY: August 27 through 30 is the

25 Prosecutor's Conference at the Lake, and Mr. Hicks is not

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1 available that second week of July, but I did check on the

2 September date, the September date that you gave me.

3 THE COURT: September 24 through 27, October 29

4 through November 1, or December 10 through 13. If the

5 parties want to get together and --

6 MS. ASKEY: Do you want to verify that July

7 date?

8 MR. SWANSON: I'll call Joel on that one.

9 MS. ASKEY: Like this morning?

10 MR. SWANSON: Yes. I'll call him right now.

11 MS. ASKEY: Perfect. Were you taking up your

12 motion?

13 MR. SWANSON: Do you want to take it up now?

14 MS. ASKEY: That's fine.

15 MR. SWANSON: Your Honor, I'm also at this

16 point filing defendant's Motion to Compel Discovery.

17 THE COURT: Okay.

18 MR. SWANSON: I was initially going to ask for

19 a hearing date, but as we're all here on this anyway, might

20 as well bring this up.

21 The issue here, Your Honor, is amongst the

22 discovery that we have received from the State is a disk that

23 contains some 3,000 pages of Excel spreadsheet that has cell

24 site towers from coast to coast over a multi-month period.

25 In discussions of this matter with the State,

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1 there's no key to that that we have received.

2 My understanding from the State is that she

3 then, is Ms. Askey provided that disk to one of her

4 investigators who took it to the Missouri Intelligence

5 Analysis Center, and from that produced a map or some sort of

6 document detailing where the cell phones of either Mr. Faria

7 or his deceased wife were on the night of her death.

8 We have not received that discovery. It is our

9 position that it is discoverable, is either an expert's

10 report, evidence that would indicate Mr. Faria's guilt or

11 innocence or it's -- there's another word I'm looking for --

12 or it's an exhibit that she intends to enter into evidence at

13 trial. Under any of those, it's discoverable.

14 And even if it's not one of those, it's neither

15 theory, opinion or conclusio so it's not work product, which

16 means it's still discoverable under Court Order.

17 THE COURT: Ms. Askey?

18 MS. ASKEY: It's actually all of those things;

19 theory and opinion and it's not discoverable.

20 In my opinion, it's work product. I think Case

21 Law substantiates the fact that it's work product. He has

22 the exact information that I had.

23 I utilized an agency to put it out on a

24 ten-foot long chart for my own benefit so that I could look

25 at it and try to develop theories based on the cell towers

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 that we utilized.

2 He has all of the evidence that I have. It

3 would be no different, Judge, than if I wrote a graph myself

4 and charted things or timelines or where I thought.

5 That's clearly work product and clearly not

6 discoverable. If there were a time, and I would concede that

7 if I were going to introduce it as evidence in my case in

8 chief, then I absolutely would supplement and allow him at

9 least any parameters that I would have utilized.

10 I don't think it's the State's burden to pay

11 for those kinds of diagrams for the defense to use.

12 I mean, it's the most clear definition, in my

13 opinion, of work product that there absolutely is. So I've

14 refused to give that to him.

15 THE COURT: So you're not suggesting that you

16 don't have the data. You are saying you don't have the

17 compilation of data that they have created?

18 MS. ASKEY: Correct.

19 MR. SWANSON: I'm saying I don't have the

20 compilation of data they created nor do I have access to the

21 Missouri Intelligence Analysis Center, which is the fusion

22 center run by the State of Missouri, along with the Federal

23 Government, that she used to produce this data.

24 She said it was opinion. If it shows when the

25 cell towers were utilized, it's fact. It's not opinion.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 It's not, we think she was there. My opinion, she was there.

2 I'm theorizing she was there. It was there or it wasn't.

3 That's a fact.

4 And so it's something that we don't have. It

5 would seem to either indicate his guilt, so it's discoverable

6 under Brady, or his innocence and it's discoverable under

7 Rule 25.

8 MS. ASKEY: Judge, if I may.

9 THE COURT: Yes.

10 MS. ASKEY: I've suggested that the defense

11 obviously has the ability to take the deposition of any

12 expert that they want.

13 I haven't endorsed this person as an expert. I

14 haven't, at this stage, and do not intend to call them as an

15 expert.

16 So, again, it's the clearest form of work

17 product. I mean, I might as well give him my yellow legal

18 pad that I jot notes on about whatever.

19 MR. SWANSON: Your Honor, I know we're going

20 back and forth, Your Honor.

21 The difference between this and her legal pad

22 is that there is expertise located in the State's agencies

23 that allowed her to distill this chart from the raw data she

24 gave us.

25 That's not something that's accessible to us.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 I can't request that the Lincoln County Sheriff's Department

2 transmit this information to the Missouri Intelligence

3 Analysis Center and produce to me that (sic). That's

4 something that she can do.

5 MS. ASKEY: But he can request an outside

6 agency to do the exact same thing.

7 There are a few benefits that the State has,

8 Judge, as you are well aware, and it happens to be that we

9 are able to work with the Missouri Intelligence Agency.

10 THE COURT: At this time, I'm going to deny the

11 Motion to Compel.

12 If the defendant believes, going forward, that

13 there is some reason that they are completely prohibited from

14 doing the same thing or something else comes up to indicate

15 that somehow they are using this information in a way that's

16 not anticipated, then I would reconsider the Motion at that

17 time.

18 MR. SWANSON: If I may, Your Honor. When you

19 say "using the information in a way that's not

20 anticipated" --

21 THE COURT: She's indicating right now she's

22 not calling the expert who analyzed it or put it together,

23 except if they're not using it.

24 MR. SWANSON: So you are not going to call

25 Michael Lang to say this is the way we work?

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1 MS. ASKEY: Mike Lang is not the person that

2 compiled the evidence. The Missouri Intelligence Analysis

3 Center is the one that did that.

4 MR. SWANSON: Mike Lang is the investigator who

5 transmitted it.

6 MS. ASKEY: I don't think I need to argue the

7 semantics.

8 My point is, I haven't endorsed anyone to act

9 as an expert and should I do that, obviously I would

10 supplement my answers, but that is not my intention going

11 forward. It's more a tool for us to use in putting our case

12 together.

13 THE COURT: And that's the Court's view at this

14 point. They simply compiled it in a form that's easy to use.

15 Though it may be a benefit to the defendant, I don't see

16 that they should be compelled at this point.

17 MR. SWANSON: My position would be -- I

18 understand. I'm not arguing but I'm not sure what

19 organization I can use to get to it. I don't have access to

20 it.

21 MS. ASKEY: Use Google. Find somebody.

22 There's all kinds of people who do stuff like that in this

23 day and age.

24 THE COURT: Is there anything else on Faria?

25 MR. SWANSON: We need to confirm those dates,

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Your Honor.

2 THE COURT: Are you going to be able to do that

3 this morning?

4 MR. SWANSON: Yes. I'm going to try to get a

5 hold of Joel.

7 ***

10

11

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 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
28

1 (The following proceedings were taken on

2 May 21, 2013 in the Jury Room in the Lincoln County Circuit

3 Court with Judge Chris Kunza Mennemeyer presiding. Present

4 are Ms. Leah Askey and Mr. Richard Hicks, Attorneys for the

5 State, and Mr. Joel Schwartz and Mr. Nathan Swanson,

6 Attorneys for the Defendant.)

7 THE COURT: We're on the record on

8 12L6-CR01312, State of Missouri versus Russell S. Faria.

9 State, are you ready to proceed on your Motion

10 in Limine?

11 MS. ASKEY: Yes, we are.

12 THE COURT: And is defendant ready to proceed?

13 MR. SCHWARTZ: Yes, Your Honor.

14 THE COURT: State, you may proceed.

15 MR. HICKS: Thank you, Your Honor.

16 Your Honor, we filed this Motion in Limine

17 concerning the possible defense that someone else committed

18 this crime.

19 During the course of depositions, and probably

20 before that, we knew that this was the direction that defense

21 was probably going to be going, but definitely after the

22 depositions.

23 And in speaking with defense counsels here, it

24 looks like what they want to make central to their defense is

25 to accuse Pamela Hupp, and probably Pam Hupp acting with her
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
29

1 husband as being the two who actually killed the victim in

2 this case.

3 THE COURT: If you're not, you can agree to

4 agree that it's not an issue.

5 MS. ASKEY: The husband, someone else

6 potentially. Whoever. We don't know.

7 MR. HICKS: I understand that. I was saying

8 that Pamela Hupp is primarily the person that they would be

9 pointing the finger at, is from what I've gathered from the

10 depositions. If I'm wrong about that, then --

11 MR. SCHWARTZ: No.

12 MR. HICKS: Pam Hupp was a good friend of the

13 victim in this case.

14 THE COURT: Is she the one who was on the life

15 insurance policy?

16 MR. HICKS: Yes.

17 MR. SWANSON: Yes, Your Honor.

18 MS. ASKEY: Yes.

19 MR. HICKS: Leading up to this murder, about

20 three days prior to that, Pam Hupp and the victim had gone to

21 a library and they had changed some forms and changed the

22 Beneficiary.

23 I think it was $150,000 or $100,000. I don't

24 remember exactly. The Beneficiary from their client's, Mr.

25 Faria's name, into Pam's name.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
30

1 There were two others insurance claims, I mean,

2 two other insurance policies out there with Mr. Faria being

3 the Beneficiary, as well. There were a total of three, one

4 had been changed.

5 According to Pam, Betsy was, that's our victim,

6 was talking about changing the other. One, she couldn't

7 because Mr. Faria had it. He had taken it out. The other

8 one, there was talk about she was going to change it. She

9 was trying to keep him from getting the money, according to

10 Pam.

11 So then that leads us -- Betsy also had, she

12 was receiving chemo for cancer and Betsy -- and Pam at times

13 would take Betsy to chemo. They were friends. They would

14 get together almost on a weekly basis.

15 On this particular, on the night that this

16 happened, that day Betsy had chemo. She didn't, she had -- I

17 think Pam had said, hey, do you need a ride? No, I don't

18 need a ride. I'm seeing a friend. I'm going to spend some

19 time with her.

20 I think Pam, on her own, decides to show up at

21 chemo anyway just to, you know, find out how things were

22 going. I'm not sure if even that happened. It may have.

23 Then definitely later that evening around 5:00,

24 5:30, she makes contact with the victim, Betsy, and meets her

25 at her house near O'Fallon and there to pick her up and say,
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
31

1 hey, I'll take you back home if you want to go back home up

2 here in Troy. She said that's fine.

3 Our take, from the State, is everything is just

4 normal there. This is something that they would normally do,

5 okay? And so around -- help me out here. I think around

6 6:30, somewhere in there, between 6:30 and 7:00 is when they

7 probably --

8 MS. ASKEY: Left.

9 MR. HICKS: -- left and came back here to Troy.

10 THE COURT: You said "they". Are you talking

11 about Pam and Betsy --

12 MR. HICKS: Yes, Pam and Betsy.

13 THE COURT: -- moving from O'Fallon, from this

14 other alleged friend's house that had taken her to chemo

15 where she was earlier?

16 MR. SWANSON: They said that they were at

17 Betsy's mother's house.

18 MR. HICKS: After chemo, they had gone back --

19 MR. SCHWARTZ: They got back to Troy a little

20 after 7:00, according to phone records.

21 MR. HICKS: After chemo, they had gone back to

22 Betsy's Mom's house, and that's where Pam had met them, sits

23 around for a little bit and, eventually, Pam brings her back

24 up here to Troy.

25 Somewhere between 7:00 and 7:30, I'm not for

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
32

1 sure, but this is when she gets dropped off and Pam actually

2 comes inside the residence. Maybe 20 minutes. Nobody is

3 timing anything, but Pam is saying she comes into the house.

4 There's talk about how it was, they were maybe expecting Mr.

5 Faria to be home for some reason. He wasn't.

6 The door was unlocked. That Betsy wanted her

7 to come in with her because of that reason and they get in

8 there. They are hanging out.

9 In fact, Pam says that Betsy asked her to stay

10 and that Pam doesn't want to do that. She wants to get back

11 home where her husband is waiting for her.

12 So she leaves, I would say, somewhere around

13 7:20, 7:30, according to Pam's testimony. I mean, during the

14 deposition.

15 She says she's leaving town. She tries to call

16 Betsy because she's worried that maybe Betsy is upset because

17 she didn't stay. Can't get a hold of her. Goes on home.

18 About an hour, hour and a half later that

19 night, she actually calls Betsy's Mom and says, hey, I called

20 Betsy and couldn't get a hold of her. Couldn't get her to

21 answer.

22 That's -- Pam's not talked to until the next

23 day. All right? So she's just kind of out of the picture at

24 that point.

25 The evidence would be that Mr. Faria came home

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
33

1 -- and this is disputed.

2 THE COURT: Uh-huh.

3 MR. HICKS: Mr. Faria says that he was with

4 some friends from basically about 6:00 to 8:30.

5 MR. SWANSON: Six to 9 o'clock.

6 MS. ASKEY: Six to 9 o'clock.

7 MR. HICKS: Six to 9 o'clock. Shortly before

8 9:00, he must have left because we know he goes to Arby's or

9 someplace and gets some food according to this time stamp.

10 Shortly after 9 o'clock sometime, he leaves

11 there and heads back here to home. Of course, this is where

12 we come into it we think that he could get here, if he went

13 fast and everything, that we think because the 9-1-1 call

14 isn't made until what time?

15 MS. ASKEY: 9:41.

16 MR. HICKS: 9:41. So we think if he went

17 quickly, you know, sped and stuff, that he could have gotten

18 here and been here 15, 20 minutes prior to making the 9-1-1

19 call.

20 Of course, this is all argument. They would

21 say, hey, that time span is shorter. Okay?

22 THE COURT: Uh-huh.

23 MR. HICKS: Evidence would be that when he got

24 in, that he had brought some dog food home, sat it down, took

25 off his jacket.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
34

1 According to him, he sees Betsy laying on there

2 on the floor. He then calls 9-1-1.

3 Well, he gets down on the floor next to her to

4 see if she's alive, what's going on, and eventually he calls

5 9-1-1 and claims that she's committed suicide.

6 There's a knife sticking out of the back of her

7 neck. You know, the pictures. I mean, she's filleted open.

8 She's been stabbed, I think, --

9 MS. ASKEY: Fifty-six times.

10 MR. HICKS: -- 56 times.

11 MR. SWANSON: Which is not --

12 MR. HICKS: Anyway, that's our evidence, and

13 that when the police do arrive there, you know, of course

14 they do their investigation. They are looking through their

15 stuff.

16 He doesn't have any blood on his clothing, but

17 in his closet, they do find his slippers and there's fresh

18 blood on the bottom of his slippers.

19 There's evidence at the time, and we still

20 believe there's evidence that somebody had cleaned a specific

21 area in that kitchen.

22 We believe there's also evidence that the

23 dog -- they had a dog that may have been in the house. We

24 believe the dog may have been in the house at some point

25 because we believe there could be a paw print on Betsy and if

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
35

1 this dog, because the dog was outside when Mr. Faria arrived

2 home -- he said the dog was outside.

3 When the police got there, the dog was outside.

4 So the dog, to get outside, would have had to have gone

5 through the kitchen, which is the area we believe had been

6 cleaned up based upon, you know, the forensic stuff they did

7 there at the scene.

8 Okay. What the defense wants to do here,

9 without getting any further into this, is they want to point

10 the finger at Pam Hupp saying that when Pam dropped her off,

11 Pam killed her and then left or somebody killed her and Pam

12 is a part of this. All right?

13 THE COURT: The motive being the insurance

14 money?

15 MR. HICKS: The motive being the insurance

16 money and, I suppose, the opportunity being that she dropped

17 her off.

18 THE COURT: Unless maybe the last person to see

19 her alive.

20 MR. HICKS: Right, but --

21 MR. SCHWARTZ: Nate is going to go through the

22 things but I just can't help myself.

23 One of the things that came up -- I don't

24 disagree with most of how he laid the facts out to be, but

25 the police took him into custody immediately and went and
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
36

1 spoke to the people who he said he was with that night. They

2 all said the exact same thing.

3 One was the guy's girlfriend. They spoke with

4 the man who usually is with him on Tuesday nights. That man

5 couldn't be there, so they didn't play a game they usually

6 play and then they went to verify this man was at work.

7 Prior to going to this house, he had stopped to

8 get dog food and get cigarettes and get a drink and they went

9 and checked those places out and it turned out he was, in

10 fact, at these places and he was on video camera wearing the

11 same clothing he was wearing when he contacted the police.

12 He then does go to an Arby's, there's a time

13 stamp and then he would have gotten his food and would have

14 left and we timed it, and I think between the Sheriff's

15 Department and our investigator there is maybe a five-minute

16 difference as to what time he could have arrived home.

17 The important fact, and then I'll leave it

18 alone, is there was an EMT Technician and the Fire Department

19 showing up and they both say when they arrived, she was I

20 think the words were "stiff as a board" and cold, which

21 indicates she wasn't killed within the last five to ten

22 minutes. She was killed two hours prior, to two and a half

23 hours prior at the same time Pam Hupp would have left there.

24 THE COURT: Right. Can we go off the record

25 for one second?

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
37

1 (Off the record discussion.)

2 MR. SCHWARTZ: Additionally, the EMT and Fire

3 Department said the blood was dry and clumped at that point

4 in time.

5 Some other facts. Pam Hupp did show up at the

6 chemo. Victim's mother, Betsy's mother, had a friend in town

7 from Texas, and our belief is Pam Hupp wanted to steer the

8 victim's whereabouts that day, so she said she offered to

9 take her into chemo. The victim said, no, that's okay. I

10 want to spend, her words are "one-on-one time" with, her name

11 is Bobbi Wann, my Mom's friend.

12 Nevertheless, Pam Hupp then goes to the

13 victim's mother's house, finds out where she's at and then

14 goes to chemo and stays with her at chemo.

15 She then leaves and comes back to the victim's

16 mother's house. Victim already has a ride home, and this is

17 all confirmed between texts. Husband is supposed to pick her

18 up.

19 There's a text to the husband that she has, Pam

20 has offered to take me home. You don't need to get me. Then

21 he, I don't know if he ever even actually got that text, or

22 he says, okay, or something along those lines.

23 Victim is taken home by Pam Hupp. Pam Hupp,

24 it's our contention initially that night, according to the

25 Police Report, told the mother of the victim when she spoke
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
38

1 to her that she never went in the house.

2 She initially says -- and there's a little

3 issue here that when she talks to the police, she says in

4 one half-sentence that she didn't go in the house and then

5 she corrects it and says she did go in the house immediately.

6 She talks about the time she stayed in the

7 house but there's some phone calls. There's phone calls to

8 her husband as to when she arrived at the house.

9 And it's all about 7:15-ish, about the time Mr.

10 Hicks had stated, which we believe is at about the time the

11 victim was killed.

12 What you then have is her leaving, and the

13 reason she took her home is because the victim was very tired

14 and wanted to go to sleep.

15 Everything that Mr. Hicks stated and everything

16 we know about all of this stuff is all according to Ms. Hupp.

17 So then Ms. Hupp leaves and approximately how many minutes

18 later --

19 MR. HICKS: She says she was driving out of

20 Troy.

21 MR. SCHWARTZ: Well, she gave three different

22 stories. She calls the victim. The victim doesn't answer.

23 It's maybe 15 minutes later, and I'm not one hundred percent

24 sure.

25 The victim doesn't answer the phone. At first

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
39

1 she says she called victim to tell her she got home. The

2 police indicate, well, you couldn't have been home. She

3 said, well, I called her to let her know I was out of Troy at

4 this point in time because I always get lost.

5 Then she gave a third story about checking on

6 her because she thought she might be worried about her.

7 She does then call victim's mother but she

8 waits over an hour and a half, approximately an hour and 40

9 minutes before she calls victim's mother to say she's worried

10 about her.

11 Then there's a bunch of subsequent factors of

12 the things she said in the interviews to police and the

13 actions she takes after that point in time, but I think, in

14 reference to their Motion, Nate has all the Case Law and can

15 discuss it.

16 The Case Law is clear. If you can show -- if I

17 was to say, for example, there is a boyfriend here of

18 victim's daughter, you could argue; can't really account for

19 his whereabouts; argue there's a drug issue between daughter

20 and son. Mother and father had taken car away from daughter.

21 So there's no sufficient nexus in that particular case to

22 argue that that guy is responsible.

23 In this particular case, even though there's

24 not an eye-witness, circumstantially, motive, opportunity,

25 coupled with a numerous amount of lies, could easily lead

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
40

1 one to believe, at the very least, there's a sufficient nexus

2 with the crime.

3 MR. HICKS: If I could go back because I do

4 want to get into the law. This is what really, what much of

5 what Mr. Schwartz said here is really irrelevant, to be quite

6 frank with you, because what he's talking about is motive and

7 opportunity and nothing more.

8 Because there's no direct evidence connecting

9 Pam Hupp to this crime. There isn't any.

10 Now I do want to clear up a couple of things,

11 because this is always the case.

12 THE COURT: Uh-huh.

13 MR. HICKS: They call it clumpy and dry.

14 THE COURT: Uh-huh.

15 MR. HICKS: My memory of it was that it was

16 pooling and tacky, the blood, and there's -- again, if he

17 gets home at 9:30, and kills her immediately, takes the 15

18 minutes to clean up, change his clothes, I mean, if he had

19 gotten out of his clothes, gets in his slippers, kills her

20 and then -- there's a way to get this done that we could

21 argue here.

22 And then he calls the police saying she

23 committed suicide, which she clearly had not, all right?

24 This -- The EMTs get called. They don't get out there until

25 probably 10 o'clock.
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
41

1 MR. SWANSON: 9:51.

2 MR. HICKS: 9:51. Okay, guys. I'm just trying

3 to -- every time that you guys say something that I was in

4 dispute about, I wasn't jumping in there saying -- I'm just

5 trying to be general here.

6 It takes some time for them to get there, but

7 there are people who are securing the scene and these people

8 who came in here and said she felt cold and that the blood

9 seemed tacky, you know, we don't even know how -- that could

10 have been 45 minutes to an hour after the actual death at

11 this point, all right, which we believe -- we have doctors to

12 say, hey, at that point you could have the blood beginning to

13 be a little bit tacky.

14 This is the thing. Yes, they have, you know,

15 they describe, they said that the witnesses describe the body

16 as being stiff and cold, extremely stiff or whatever. Really

17 what they said is, the body felt a little stiff and cool.

18 All right?

19 Now we've talked to medical examiners. There

20 is this phenomenon. It's not just a phenomenon. It actually

21 happens. It's called a cadaver spasm.

22 When a cadaver spasm occurs, it can occur

23 during the course of a traumatic event. If a traumatic event

24 occurs to somebody that causes their death, this can cause

25 the onset of rigor mortis more quickly, almost

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
42

1 instantaneously.

2 They have documented, you know, where a person

3 is -- if they are being stabbed multiple times, being raped

4 and killed at the same time, they clench up and they can grip

5 and so you have to pry things and there's a stiffness to

6 their body that could very easily be mistaken for the onset

7 of rigor mortis that's been there for two, two and a half

8 hours. We're not just going to concede this had to have

9 happened two, two and a half hours ago.

10 That all aside, really the point of our Motion

11 is, I believe that they have to show that there's some sort

12 of direct evidence.

13 So quickly, the Case Law. What it says -- the

14 Case Law says that motive and opportunity is not enough.

15 We've laid this out in our Motion here.

16 In order for them to even get into motive and

17 opportunity, for them to get there, let's talk about the

18 person's motive. Let's talk about the opportunity they have.

19 They must first establish this foundation.

20 This proof that the other person, and I'm going to quote here

21 (as read), "committed some act -- committed some act directly

22 connecting him or her with the crime."

23 And so when you look at the cases, well, what

24 does "some act" mean? What does that mean? Well, it doesn't

25 mean just the mere presence or being there present at the

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
43

1 scene. It doesn't mean that.

2 If that's what it meant, then how was that any

3 different from opportunity? I mean, "opportunity" means you

4 were there, you had an opportunity. So the mere presence

5 isn't enough.

6 I would ask you to look at State versus Wynn,

7 666 SW 2d, 862. It's an Eastern District case. In that

8 case, the defense wanted to argue that and -- this guy, they

9 used the initials "N.R."

10 They wanted to blame "N.R." And in that case,

11 this was a burglary case, they said he was a former tenant to

12 the place that had been burglarized, I'm sorry, a former

13 tenant who previously lived in the apartment complex.

14 He had a Chevrolet automobile and that after

15 the burglary, his car had been seen at or near the apartment

16 complex and the person that was going to testify about this

17 said, I know he knew the layout of the apartments, knew how

18 to get in and out.

19 The Court said there, you know what? Just

20 merely being near the scene of the crime, being present

21 there, that's not enough. That's not direct evidence.

22 Then look at State versus Cameron, 604 SW 2d,

23 653, an Eastern District case. Very interesting case.

24 And the language there says (as read),

25 "Evidence which merely demonstrates that a person at the

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
44

1 scene of the crime has also been arrested for a similar crime

2 is not direct evidence", because what they were doing is

3 saying, hey, we've got this other person we want to blame who

4 was there at the scene and he's been arrested for a similar

5 crime, and they said that's not direct evidence.

6 In that case, they were trying to actually

7 blame a Lieutenant Dempsey who was a police officer.

8 Subsequent to that event, he had been arrested for a burglary

9 in his line of duty.

10 And they were saying because he was at the

11 scene of this crime when the alarms went off, they should be

12 able to, look, he's been arrested for burglary, you know,

13 subsequent to this.

14 And in our case, he was at the scene of the

15 crime and the Court said, hey, that's all good conjecture.

16 You suspect him and stuff, but that's not direct evidence.

17 And so, and again, I think if you look consistently at the

18 cases, if it's just being present there, I don't know how you

19 distinguish that from opportunity.

20 It has to be -- the act has to be more than --

21 and all Ms. Hupp did here was drop her off, a friend off,

22 stayed 20 minutes and left.

23 The second thing is "some act" is not false or

24 inconsistent statements. Really what the defense is saying

25 here about Mrs. Hupp is they are calling these things lies
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
45

1 and really she has been talked to and talked to and talked

2 to, and like any witness, there have been things that have

3 changed slightly that I'm sure they can draw out as being an

4 inconsistent statement.

5 So did the defendant. The defendant got mixed

6 up where he went first. What gas station he went to first

7 and this sort of thing, and the State's not going to call him

8 on that.

9 I think that's, that happens, you know? What

10 we're not dealing with here is, you know, I was here and then

11 later, being confronted, you weren't there. Okay, you're

12 right. I lied. I was really over here. All right.

13 We're not -- we don't have any inconsistencies

14 like that. Yet, if you look at State versus Cheney, which is

15 cited in our Motion.

16 In that case, a known pedophile -- this was a

17 child molestation case. In that case, a known pedophile

18 lived near the victim in the same neighborhood, and so he

19 became a suspect early on. And so the police went and talked

20 to him about what had happened.

21 You know, could he possibly have done this?

22 And he lied to them continually. At first he said, I was at

23 work. So they go check him out at work. He wasn't at work.

24 Come back to him. Okay, I lied. I was

25 actually down at some strip club and I'm not supposed to be

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
46

1 there. That's why I lied.

2 They went and checked that out and he lied

3 about that. In fact, they could never pinpoint, after two or

4 three lies, they could never pinpoint exactly where he was,

5 but he lied three times at least about where he was, and they

6 couldn't account for his whereabouts on the night that this

7 sexual crime had been committed.

8 The Court said, that's not direct evidence. So

9 again, what I'm getting at, "some act" does not mean just

10 being present there. It doesn't mean false or inconsistent

11 statements.

12 And I say we don't have false statements. Sure

13 we have some inconsistent, but there are inconsistent

14 statements with every witness.

15 Clearly, it also says -- I don't even need to

16 go into this. Motive evidence, you only get to get into

17 motive evidence if you can first establish that direct

18 evidence.

19 Honestly, I can't see what the direct evidence

20 here is in this case. I'm open to it. We don't -- you know,

21 because if she was involved, sure, Leah and I would go after

22 it. I know Leah would go after her.

23 We don't see any direct evidence. I think

24 that's what they have to convince you that they have here.

25 One more thing and I'm going to end with this.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
47

1 State versus Bowman. It's a Supreme Court case. It's a

2 pretty recent case. I'd ask you to look at that, 337 SW 3d,

3 679.

4 I'm just going to tell you what the defense,

5 they wanted to blame another person, another guy for

6 committing this murder, okay?

7 This is the, this is what they had to offer

8 this jury that the other person they wanted to blame was

9 serving a life sentence for murdering another young woman

10 around the same time.

11 The victim in the case, in the Bowman case, was

12 a young woman who had been strangled and her throat slit,

13 okay. He was serving a life sentence for murdering another

14 young woman around the same time period. He matched the

15 description given by a witness in the Bowman case.

16 The day that the victim in the Bowman case went

17 missing was the same day he was fired from his job. So

18 couldn't account for his whereabouts.

19 There would be evidence that he was familiar

20 with the park where this young woman was murdered, and he had

21 been seen there with his girlfriend. The victim in the

22 Bowman case was found a quarter mile from this park where

23 they said, hey, he was very familiar with and was seen there

24 all of the time.

25 His girlfriend -- this guy they wanted to

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
48

1 blame, his girlfriend was missing a knife similar to the

2 weapon used to kill the victim in the Bowman case.

3 Where the victim was found in the Bowman case,

4 there was a box of matches found right next to her. There

5 would have been evidence that this person they wanted to

6 blame, when he smoked, would use matches, box matches to

7 light his cigarette.

8 There would be evidence that this individual

9 liked to collect keys. The only thing missing from the

10 victim in the Bowman case was her key ring.

11 There would also have been evidence the defense

12 wanted to present that he wanted to ask. He had asked the

13 victim out several times where she had worked. Other

14 employees said, yeah, he'd come in here and kind of bug her

15 for a date. She didn't want to do this.

16 They went to the prison to confront him about

17 this. He denied it, even though they knew he was lying about

18 that.

19 In Bowman, the Court said no direct evidence

20 connecting him to that crime. That's all motive,

21 opportunity, but no direct evidence.

22 The defense in this case doesn't even get close

23 to that with Hupp. Not in any shape, way -- it's not even

24 close.

25 Really, what it's going to do here, it's going

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
49

1 to -- it's a red herring. It's going to confuse the jury.

2 Get them to be able to go off on a tangent here instead of

3 focusing upon the evidence against their client.

4 That's why we would ask the Court -- I know the

5 Court has discretion here. Unless they can really show some

6 direct evidence, we're asking they be excluded from doing it.

7 MR. SWANSON: Your Honor, at this point I'm

8 going to file our brief in opposition to the Motion.

9 THE COURT: Okay.

10 MR. SWANSON: I'll just give you a quick

11 highlight of this.

12 The first objection we would have to the

13 State's motion is that it's premature. There's absolutely no

14 Case Law that supports they can get a Motion in Limine

15 preventing us from both presenting the foundation that we

16 need to establish a third party's connection to the crime,

17 and then preventing us from showing the motive and

18 opportunity evidence.

19 In State versus Woodworth, the prosecution in

20 this case tried to do that. They filed a Motion in Limine

21 suggesting that prior inconsistent statements of a witness

22 were hearsay and inadmissible, and when the Judge ruled in

23 favor of them on that issue, that the motive and opportunity

24 evidence didn't come in.

25 Appellate Court said, no, prior inconsistent

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
50

1 statements are substantive evidence. It would have

2 established the direct connection between a third party and

3 the crime scene, and then motive and opportunity should have

4 come in.

5 So what the State here is trying to do is

6 premature, which brings us to kind of the next point. You

7 have heard the facts from both sides. We feel that does

8 establish a direct connection and as evidence of that, State

9 versus Butler, which the State cites in their Motion.

10 Butler is 951 SW 2d, 600. In Butler, the

11 defendant had been convicted of murder. He filed an

12 Ineffective Assistance of Counsel Appeal alleging that, had

13 his counsel done a proper investigation, he would have found

14 an individual named Malloy.

15 Malloy, the person who found the victim's body

16 in that case, said, I saw somebody at the same time I found

17 the victim who matched Malloy's description driving a car

18 that matched Malloy's description.

19 Three days after the crime, Malloy was

20 attempting to pawn a ring that matched the description of a

21 ring taken from the victim.

22 In Butler, the Court said those two things

23 present a direct connection between Malloy and the crime

24 scene such that you should be able, such that the defendant

25 should have been able to present evidence of motive and

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
51

1 opportunity.

2 Now Mr. Hicks made a comment of how does he

3 distinguish between motive and opportunity here? The motive

4 these cases talk about is, I need money for drugs. It's, you

5 know, I'm angry with that person.

6 All of the cases he cites, too, that's what

7 they're talking about. I'm a pedophile. This is a child

8 molestation case. I'm a known burglar. This is a burglary

9 case.

10 They never talk about motive, this person

11 directly benefited from this. That's a direct connection.

12 Opportunity, in all of these cases, is no one can account for

13 their whereabouts.

14 Here, we're saying Mrs. Hupp was admittedly

15 present and made a series of inconsistent statements at the

16 defendant's home, with the defendant, near to the time that

17 we believe the defendant died.

18 You heard all about the death spasm that could

19 cause rigor. That's an issue for the jury to decide if they

20 believe one way or the other.

21 But the evidence is, the first responders who

22 showed up at most within 20 minutes of her death, even if you

23 accept the State's time line, said she was cold and stiff

24 and, when questioned later, said "stiff as a board".

25 The next issue is Mr. Hicks said something when

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
52

1 he began that it became clear at deposition that we would be

2 going this route, trying to indicate that Mrs. Hupp committed

3 the crime.

4 When this case was refiled, we filed our Notice

5 of Alibi. There wasn't at deposition -- they are aware that

6 our feeling is that Mr. Faria, by the evidence, could not

7 have committed the crime. That necessitates us arguing that

8 someone else did it.

9 The scope of their Motion is that we can't ever

10 bring someone's attention to that. That we can't say Mr.

11 Faria wasn't there, therefore someone else did it.

12 They want all mention of that ever excluded,

13 which would basically leave the alibi defense meaningless.

14 It would be hollow. In fact, it would give them the

15 opportunity to say Mr. Faria says he couldn't have done it,

16 but who else did it? No one ever said anyone else did it.

17 At opening, it would mean we couldn't comment

18 on the evidence that's going to come out. During direct --

19 or during cross-examination of the State's evidence, it means

20 we couldn't cross them.

21 This brings us to the really important thing

22 here. Every single case the State cites, both here and in

23 their Motion, is a situation where defendant was attempting

24 to present evidence that some other person somewhere out

25 there did the crime.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
53

1 It has nothing to do with a witness on the

2 stand and questioning them about their possible involvement.

3 And for that, I would draw your attention to State versus

4 Winfrey. In State versus Winfrey, the Missouri Supreme Court

5 stated that they refuse to allow impeachment of a witness,

6 based on their interest in the case, is prejudicial and

7 involvement in a crime is axiomatically interest.

8 They joined other jurisdictions that have held,

9 I'm quoting at this point. That (as read), "have held is

10 reversible error for the trial Court to refuse to allow

11 cross-examination of a prosecution witness suspected of

12 committing the crime for which the defendant is on trial,

13 regarding the witness's motive for testifying against the

14 defendant".

15 They want the chance to put Pam Hupp on the

16 stand, ask her a series of questions and prevent us from

17 saying if Mr. Faria gets convicted, you walk away clean for

18 something that you have just as much possible culpability

19 for.

20 No case stands for the proposition that we can

21 be limited from cross-examining a witness about that. If

22 they choose not to call Ms. Hupp, we'll subpoena her and call

23 her ourselves and then bring that evidence in right there.

24 Finally, for closing, we know it's basic law.

25 We can argue any inference from the evidence. You heard the
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
54

1 two renditions of what you are going to hear.

2 It's a reasonable inference from that evidence

3 that somebody else committed this crime.

4 It's not "out there". That's not a mystery.

5 We have an alibi defense. Someone else must have done it.

6 State's Motion is to prevent us from doing even that.

7 On those grounds, the Motion should be denied.

8 MS. ASKEY: Can I clear up just a couple of

9 things?

10 MR. HICKS: Sure.

11 MS. ASKEY: Or you go ahead.

12 MR. HICKS: I just wanted to respond to a

13 couple of things. I know we have gone long here.

14 The Case Law that I provided to you, Your

15 Honor, actually in many of those cases the State did file a

16 Motion in Limine.

17 It's exactly appropriate to take this up

18 beforehand rather than the Court being hit with this, you

19 know, at some point in the trial and having to deal with

20 this. So I think this is the very appropriate forum in which

21 to do it and, frankly, if we don't settle this issue prior to

22 trial, there could be bells, you know, rung or difficult to

23 unring.

24 He cites -- talks about Woodworth, which is a

25 ruling in the context of a habeas proceeding trying to show

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
55

1 actual innocence.

2 In that, the prior inconsistent statement that

3 he refers to was made by the victim, one of the victim's of

4 the crime initially after he was shot, when he was asked

5 about who do you think this could be? He said, I think

6 so-and-so did it.

7 And so they wanted to be able to ask him about

8 that statement. All right. That's apples and oranges to

9 what we're discussing here in this case.

10 MR. SWANSON: If I may, Your Honor.

11 MR. HICKS: In Butler, I agree. That evidence

12 should have come in because there was direct evidence. Take

13 evidence of this other person three days later selling the

14 victim's ring at a pawn shop is direct evidence. We don't

15 have anything like that here.

16 His argument is that they will be barred from

17 arguing someone else did it. Well, no. Not exactly.

18 Look, obviously, if they are able to sell their

19 alibi or even just to say, you know what? Even if you don't

20 believe the alibi, there's just not enough to convict our guy

21 of this.

22 Obviously she was murdered. She didn't commit

23 suicide. So obviously somebody else did it. The point of

24 this Motion is to keep them from being able to say, this is

25 the person and then to be able to get into that motive and
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
56

1 opportunity.

2 They can argue there are a lot of other people

3 here in this case who had motive and opportunity, but the law

4 says you can't get there unless you first make that direct

5 link.

6 And then in State versus Winfrey. Again, it's

7 been a while since I read that case. I would have to go back

8 and look at it, but they were talking about impeaching a

9 witness who was known to have been involved in the crime, a

10 State's witness.

11 Obviously, that's fair game. I'd have to go

12 back and look at it but, again, my suspicion is unless they

13 had direct evidence that this individual was involved in the

14 crime, again, my understanding of the law is you can't get

15 into it.

16 You can't even impeach law -- the cases I gave

17 you, you can't impeach law enforcement officers with their

18 investigative techniques based upon, you know, you failed to

19 look at this person under this idea there was no direct

20 evidence of it.

21 He says the basic law is they can argue any

22 inference from the facts. No, that isn't basic law. For

23 instance, the State can't argue that the defendant's guilty

24 because he didn't talk to the police.

25 We can't argue that he's guilty because he

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
57

1 failed to take the stand. There are laws that say, you know

2 what? This inference that you want to draw? This thing that

3 you want to argue? Out of bounds.

4 So there isn't this basic tenet of law we can

5 argue anything from the facts. That's the whole point of

6 this Motion.

7 MS. ASKEY: I just wanted to clear up -- and

8 this doesn't necessarily need to be on the record.

9 (Off the record discussion.)

10

11 ***

12

13

14

15

16

17

18

19

20

21

22

23

24

25
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
58

1 (The following motions were taken on June 18,

2 2013, in the Circuit Court of Lincoln County with Judge Chris

3 Kunza Mennemeyer presiding, on State vs. Russell Faria.

4 Present are Mr. Richard Hicks and Ms. Leah Askey for the

5 State, and Mr. Joel Schwartz and Mr. Nathan Swanson for the

6 Defendant.)

7 THE COURT: We are on the record on

8 12L6-CR001312, State of Missouri versus Russell Scott Faria.

9 Is it Faria?

10 MR. SCHWARTZ: Yes, ma'am.

11 THE COURT: I'll let the defendant announce, in

12 case I'm incorrect, as to which motions they were to have.

13 MR. HICKS: Do you have copies of those by

14 chance?

15 THE COURT: I have defendant's first Motion

16 in Limine filed January 7 and defendant's second filed

17 January 7.

18 MR. SCHWARTZ: Judge, before we proceed to our

19 motions, we had a hearing in chambers with this Court

20 approximately three weeks ago, maybe it was a month ago. I

21 don't know.

22 Since that time, we've received some discovery

23 that I believe changes the tenor of that argument

24 significantly.

25 I have hesitated to file a motion in response

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
59

1 to the Court's ruling because there is an additional amount

2 of discovery that would, I think, further enhance our

3 argument.

4 We're set for trial in about two and a half

5 weeks. I still don't have all the discovery and I don't

6 believe that it's appropriate to make the arguments that I

7 need to make at this point in time to go into this because I

8 think it completely changes the ruling by the Court on an

9 earlier motion. I don't know what else this information is

10 going to say.

11 THE COURT: I have no idea what he's talking

12 about in terms of what he does have and doesn't have and

13 needs.

14 MR. SCHWARTZ: We've talked about it today.

15 THE COURT: Is it there discovery that's going

16 to be forthcoming or is there not any more discovery?

17 MR. SWANSON: We have not received it and we've

18 received business records affidavit with regards to some of

19 it, which means it's in your possession, but we haven't

20 received it.

21 MR. HICKS: It was explained to me this morning

22 and I don't have my list here. I have it upstairs. But

23 there are cell data locations -- I'm sorry, tower data

24 locations that they are still looking for, that they are

25 still expecting. That there is cell data information from

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
60

1 the Hupps that they are still expecting.

2 There's some medical records regarding the

3 victim in this case prior to her death, obviously, about

4 her --

5 MS. ASKEY: Health.

6 MR. HICKS: -- her health that they believe

7 they don't have, and so while we were doing depos this

8 morning while they explained that to us -- there's so much

9 there, it's difficult to just go immediately to that and say,

10 well, here it is. So they have requested it.

11 Obviously, if we have it, we will give to it

12 them. If we don't have it and should have it for some

13 reason, we will try to get it but beyond that I can't, we're

14 not refusing to provide them with anything that they are

15 asking for at this point.

16 MR. SCHWARTZ: Judge, here is an example of the

17 importance of what we're talking about. This is one example.

18 At the previous motion, we had differences of opinion as far

19 as our argument. Mr. Hicks' argument was we cannot bring in

20 any evidence regarding this Ms. Hupp and her involvement.

21 Since that time, we have received one document

22 regarding cell site data of her. What it shows, and she had

23 stated three different times that when -- I'll bring you up

24 to speed.

25 She arrives with the victim at the victim's

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
61

1 house approximately 7:00 p.m. Victim's daughter calls victim

2 on the way to the cell phone store completely unrelated to

3 this. Says, I'm going to need a new cell phone. I'm going

4 to need to talk to you because they are going to need your

5 code or credit card.

6 The victim says, according to daughter, that's

7 fine. My phone will be on. Just call me when you get there.

8 Victim arrives home with Ms. Hupp. Allegedly,

9 there's a phone call made at approximately 7:09, 7:06, I

10 think, to Ms. Hupp's husband.

11 Ms. Hupp then says she stayed for approximately

12 ten minutes and left. There's then a phone call from Ms.

13 Hupp to victim approximately 20 minutes later, 21 minutes

14 later to be exact.

15 Victim says to the police initially, I made

16 that call when I got home to let her know I was safe. She

17 then changed to, when I was in Wentzville. She then changed

18 it to, when I was out of Troy.

19 We got the cell site information to show she

20 was -- I can't -- I don't know because I need more

21 information, but she was within the same cell tower of the

22 victim's house.

23 The import of that is the victim's daughter had

24 called victim with no answer prior to the time Ms. Hupp

25 called victim, leading to the conclusion that at that point

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
62

1 in time victim was unable to answer her phone for some

2 reason, maybe because she was deceased at that point in time

3 while Ms. Hupp's cell phone is still within that cell tower.

4 We believe the State has this information, at

5 least they have indicated they have it. We need to know what

6 that tower consists of. We need to know the sites of the

7 towers and the match of the tower.

8 All of that information we have been told has

9 been provided to the State. That's incredibly important in

10 this particular case, and I also believe, which is just this

11 one example, that's something the Court would need to

12 consider based on the previous ruling they gave us.

13 THE COURT: State?

14 MR. HICKS: Two things. One, we don't have any

15 problem giving them that information. All right?

16 But two, our argument would remain the same.

17 It means nothing, even if it bears out just the way Mr.

18 Schwartz explained it here.

19 What Ms. Hupp originally said to the police

20 was, yeah, after I left, I got home and I called. Well, then

21 she's in the interview -- look, we just took depositions of

22 the four alibi witnesses and I could take little bitty

23 inconsistencies and changes and just have a heyday with it.

24 This is the way things happen, Joel. Please

25 let me finish.
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
63

1 MR. SCHWARTZ: I'll let you finish.

2 MR. HICKS: In the same interview, when she's

3 pushed, she says, well, actually I may not have been home. I

4 was -- but ultimately she concluded, you know, as I was

5 driving out of Troy, I called because I wanted to let her

6 know. I'm not familiar with Troy and that's when I called.

7 So what she's saying ultimately may, in fact,

8 be born out by what the cell towers show that when she called

9 at 7:22, 7:21 whatever it was, that her, she was hitting off

10 a cell tower in Troy, which is what she ultimately told the

11 police was the case.

12 So I don't see how that changes anything, how

13 that suddenly becomes direct evidence of her involvement in

14 the crime. So I mean, we would be -- but for today's issue,

15 it doesn't sound like what they are wanting is this, you

16 know, this information.

17 And this information was -- and this seems to

18 always happen in these types of cases. They take the

19 deposition of Pam Hupp. They are really going after her

20 hard. They want to blame someone else. We really are now

21 going out after information that really the State didn't have

22 an obligation to get anyway, but we're curious, as well,

23 because we're -- in the interest of justice, we want to find

24 out is she being born out by this.

25 So we go get this information and so, yes, we

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
64

1 get that information. We're getting the cell towers and

2 we're trying to get this information to them and, you know,

3 in an expeditious manner but, again, this is all stuff that

4 they are wanting to ask the State to do and that we're doing

5 and we're trying to comply with that.

6 I think we have that information upstairs.

7 There's a lot we need to get and we will get it to them, but

8 whatever it, what I'm trying to say for today's purposes,

9 we'll get them the discovery.

10 If we want to have this argument later, we

11 can, but since Mr. Schwartz brought it up, I don't see how it

12 changes a thing as far as direct evidence.

13 THE COURT: By just what I've been told today,

14 I wouldn't think a phone call to her is direct evidence of a

15 murder.

16 MR. SCHWARTZ: Judge, it's not a phone call.

17 It's a cell phone tower. It's where she is when they makes

18 the phone call and Mr. Hicks said he can beat the

19 inconsistencies to death with the alibi. Fine, that's what a

20 trial is for. That is all we want.

21 THE COURT: But the phone records aren't going

22 to say she's standing in her kitchen or in her yard or in her

23 driveway. They are just going to say you are in an area as

24 defined by what that tower covered at the time?

25 MR. SCHWARTZ: I just finished a case with a

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
65

1 cell tower. They were able to put the guy within a couple

2 hundred yards of the tower because they can do what side of

3 the cell tower it is and where the next tower is. They can

4 triangulate a location.

5 It's not exact, but they can get it pretty darn

6 close. So I understand what you just heard but the cell site

7 information is incredibly relevant to our --

8 THE COURT: I'm not saying it's not relevant.

9 I'm saying as to the last ruling, the standards as to

10 connecting direct evidence --

11 MR. SCHWARTZ: Theirs no such thing, Judge, as

12 direct evidence unless there's an eye-witness. You can't get

13 more direct than that, especially after she misses the

14 previous call from her daughter when she, only 30 minutes

15 prior, said my phone will be on. I'll be waiting for your

16 call.

17 So is it direct evidence? That will be up to

18 the Court to rule, but I would certainly argue it is.

19 However, I need this information to say if that cell site

20 says that she's on the outskirts of Troy and ten miles away

21 from the house, my argument is not nearly as strong as it

22 is --

23 THE COURT: If she's in the driveway.

24 MR. SCHWARTZ: Well, if she's in her driveway

25 making that phone call. I don't know what the cell site data
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
66

1 is going to tell me.

2 THE COURT: It's hard to guess on a missed

3 call. She could have been in the bathroom, on the other

4 line. I have 50 missed calls an hour.

5 MR. SCHWARTZ: I understand that but you couple

6 that with what we believe the time of death is --

7 THE COURT: Right.

8 MR. HICKS: Okay. And again, we'll get that

9 you that information. To go back to the previous argument,

10 thought, I believe what Mr. Schwartz is arguing here is

11 opportunity.

12 If the cell tower information indicates that

13 she was still in Troy at 7:22 which, by the way, she

14 ultimately says, yeah, I believe I made that phone call and I

15 was still right in the city limits of Troy. All right?

16 But now they have got this independent cell

17 tower evidence, not her statement, that's saying she was

18 still in the area. I don't see how that's any different than

19 opportunity.

20 Again, he says I don't know what kind of direct

21 evidence you would need. Well, sure eye-witness testimony is

22 great. A lot of time, DNA fingerprint is pretty good direct

23 evidence.

24 Sometimes you have people make 9-1-1 phone

25 calls and people don't realize it's going, so you have a

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
67

1 voice identification.

2 I could go through a whole litany of lists of

3 what I would consider to be direct evidence that would

4 connect a person to the crime, which they don't have here.

5 Our direct evidence is the blood on his

6 slippers in the bedroom and they don't have anything like

7 that. If they had blood on her clothing, blood -- that

8 would, I would say we would have a hard time arguing there's

9 not some direct evidence here.

10 So again, I think what Mr. Schwartz is arguing

11 here is that the cell tower information is giving him more

12 opportunity but nothing direct.

13 THE COURT: Well, and this argument is probably

14 better had once you get the information and analyzed it and

15 you are going know if you need to bring that up again.

16 MR. SCHWARTZ: If we're arguing direct evidence

17 -- I guess I shouldn't argue at this time.

18 Her blood on his shoes in the closet, if he's

19 going to tell me how that got there. If there's some direct

20 evidence to that? Fine. There isn't.

21 So if that's the case, then this case should be

22 dismissed because there is no direct evidence linking him to

23 this at all.

24 In fact, there's a ton of evidence not linking

25 him to it. We know where his -- we believe we know where he

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
68

1 was and his cell phone was, and we also know that the State

2 possesses that information, at least it's been indicated to

3 us and we don't have that information. That's either

4 exculpatory on inculpatory, and either way we're entitled to

5 it.

6 So my problem is that we're premature in making

7 our Motions in Limine, and I don't want to waste the Court's

8 time, but we have got a deadline here.

9 THE COURT: Do we know how long it's going to

10 take to dig up whatever things --

11 MS. ASKEY: We have two maps for them today.

12 MR. HICKS: They are wanting the data that

13 generated the maps and I understand that.

14 MR. SWANSON: I've been asking for the maps for

15 months. One of the maps you have had for six months. The

16 one of Russ Faria's phone.

17 MS. ASKEY: We haven't had a copy of it.

18 MR. SWANSON: How long have you had the map?

19 MS. ASKEY: I don't know, Nathan. I don't

20 create it myself. You sent out a request to recreate it.

21 MR. SWANSON: You wouldn't let me examine it.

22 MS. ASKEY: I told you months ago you could

23 come up and examine it in my office and I was giving you a

24 copy.

25 MR. SWANSON: I specifically requested that and

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
69

1 you said I couldn't do it.

2 MR. SCHWARTZ: Judge, either way we are set for

3 trial in July and we don't have this information. To me,

4 it's incredibly important, whether or not you agree or

5 disagree it's direct evidence, it's clearly part of the case

6 and I don't think there's any argument that -- they want to

7 call it a slight inconsistency but her close friend, who

8 happened to make her the Beneficiary of the will, is brutally

9 murdered and she said I called her after I got home, and this

10 is approximately 12 hours later, I think that in and of

11 itself becomes evidence for a jury to hear.

12 They can do what they want with it at that

13 point in time, but it flies in the face of what I believe the

14 cell site information is going to show us.

15 MS. ASKEY: I would just reiterate what Mr.

16 Hicks said. We basically are getting that information out of

17 courtesy.

18 We don't have to get it. We don't -- we never

19 needed to get it. We said, sure, we'll get that information

20 from you, and now they are want to go hang us up on the trial

21 date because they don't have information that we never needed

22 to get or provide in the first place other than we agreed to

23 do it. It's ridiculous.

24 MR. HICKS: The reality is they have the same

25 ability to get this information and have a map regenerated.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
70

1 MR. SWANSON: We did a --

2 THE COURT: You did a joint --

3 MR. SCHWARTZ: We did a joint subpoena. We

4 turned it over to you.

5 MR. SWANSON: Russell Faria's cell site data

6 has been in your possession since January of 2012. I've

7 requested it repeatedly. She told me that we've got

8 everything and we did a deposition in March and that guy

9 confirmed you have not given us everything in your possession

10 because we can't produce a map using what's been provided us.

11 MS. ASKEY: No. What he confirmed was there

12 would be a missing piece. I'm telling you there's nothing

13 sitting in my office that hasn't been turned over to you.

14 MR. SWANSON: Except for the map which it has

15 taken months to produce.

16 MS. ASKEY: I'm not a map producer, Nathan.

17 THE COURT: What's our time frame of getting

18 whatever needs to be gotten, I guess, is the question today?

19 MR. HICKS: If you give us 48 hours, we'll get

20 you the information that you requested.

21 MR. SCHWARTZ: There we go.

22 THE COURT: So do we need to reset any other --

23 I mean I read these. I'm not in disagreement but, in

24 general, hearsay is hearsay.

25 MR. SCHWARTZ: I don't know that -- I mean, I

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
71

1 would suggest they read through them. If they have a

2 specific problem with some of the stuff, then we --

3 THE COURT: Well, let me ask you this while

4 everyone is here. Does anyone believe there is a hearsay

5 exception for the decedent?

6 So because she is not here, that somebody can

7 come in and say what she said? Because I haven't found that.

8 If it exists, then I need to do my research and find that

9 exception.

10 So just because the victim is deceased, as far

11 as what I know, that doesn't mean that somebody else can come

12 in and talk about here's what she said a day before, the

13 moment of. Well, the moment of might be --

14 MR. SCHWARTZ: The moment of, yeah, --

15 THE COURT: The day before, week before, month

16 before. If that does exist, I want to start researching it.

17 I don't know if that's existing.

18 MR. HICKS: I'm unaware, unfortunately, from

19 the State's perspective.

20 THE COURT: You are saying hearsay?

21 MR. HICKS: Right.

22 THE COURT: Most of what's in here is all

23 like --

24 MR. HICKS: I would agree generally with the

25 Motion in Limine that to get into statements allegedly made

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
72

1 by the victim that are being offered for the truth of the

2 matter asserted, absolutely. There is no she's-a-victim

3 exception. However, it's difficult to answer each and every

4 potential hearsay --

5 THE COURT: Right. Right.

6 MR. HICKS: -- because I see situations where

7 at trial it develops that, you know what? It's no longer

8 being offered for the truth of the matter. It's being

9 offered to maybe the defendant --

10 THE COURT: Right.

11 MR. HICKS: -- had heard this --

12 THE COURT: Right.

13 MR. HICKS: -- whether it was true or not. So

14 now there's those sort of exceptions. So I would agree

15 generally, yes.

16 Just because the victim, somebody says the

17 victim said this. I think we've got hearsay and then we have

18 to have an exception to get over that.

19 THE COURT: But it's going to be next to

20 impossible for me to rule on every single thing in all of

21 these because I don't know the context it comes out in until

22 it comes out.

23 I will agree there has to be some hurdle that

24 you get over before others get to come and say, a week before

25 she told me she was leaving him and a week before that, she
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
73

1 changed her will.

2 It has to be something more than -- just

3 because she's not here to say it.

4 MR. HICKS: True. Just to give you an example,

5 if we had testimony from a person that said I heard her say

6 that she had changed, you know, she had changed her will and

7 the defendant was present, we may not be offering it for the

8 truth of the matter asserted.

9 Maybe she changed her will. Maybe she didn't.

10 The point was, we have evidence that the defendant heard her

11 say that, which would then to go motivation to do something.

12 I'm not saying we have that, but that's the

13 sort of thing when you get into the case. It's just

14 difficult to answer every specific.

15 THE COURT: Right. I agree.

16 MS. ASKEY: We're thinking about arguing, too,

17 that some of those statements could go not to the truth of

18 the matter but maybe the course of conduct of the victim

19 thereafter.

20 THE COURT: Again, all of that is going to

21 depend on the context.

22 MR. SWANSON: That's still going to the truth

23 of the matter. It's saying she did these things.

24 MS. ASKEY: Police officers all of the time

25 testify, or lay witnesses, not for the truth of the matter

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
74

1 but further course of conduct. What happened next.

2 WW: Yes, what they did but not --

3 MS. ASKEY: Exactly, what they did. That's

4 what I'm saying. What that person may have done.

5 MR. SWANSON: You are saying what the person

6 whom heard --

7 THE COURT: Who is testifying.

8 MR. SWANSON: Okay. I thought you were saying

9 what the victim's --

10 MS. ASKEY: I probably did say it, but I meant

11 it the other way around.

12 THE COURT: So that -- as I read these, that

13 would be my difficulty. Eliminating anything up front is

14 that I have to, these are so specific to the context of how

15 they come out but I'm not disagreeing. Hearsay is still

16 hearsay. Because she's a victim and deceased doesn't

17 eradicate hearsay.

18 MR. SCHWARTZ: I do anticipate filing an

19 additional motion once we get all of the discovery and

20 probably throughout, depending on -- we'll see what the

21 Court's ruling is then. It will affect, I think, how the

22 trial goes.

23 THE COURT: Do we need to pick another day?

24 MR. SCHWARTZ: Probably.

25 THE COURT: Another 2 o'clock in the afternoon?

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
75

1 MR. SCHWARTZ: Yes.

2 THE COURT: How far out?

3 MR. SCHWARTZ: The trial is in two weeks.

4 Could we go either the next week or July 2nd is fine. It's

5 the week before, assuming we have everything. Or next

6 Tuesday is a problem.

7 THE COURT: Today is the 18th.

8 MR. SCHWARTZ: Yes.

9 THE COURT: Today is Tuesday.

10 MR. SCHWARTZ: Judge, can we do it like you did

11 today where we're the only ones? That would be wonderful.

12 THE COURT: Uh-huh.

13 MS. ASKEY: He's here on the 25th or you can

14 be, right?

15 MR. HICKS: I can be here the 25th, 26th, 27th

16 in the afternoon.

17 THE COURT: Of June?

18 MR. SCHWARTZ: I have got the 26th.

19 MR. SWANSON: I will be in Denver on a case the

20 24th and 25th.

21 THE COURT: Okay.

22 MR. HICKS: Okay. Nathan, we want you here.

23 MR. SCHWARTZ: I'm also the only one in the

24 firm that can to go Denver.

25 MS. ASKEY: I don't have you here on the 26th.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
76

1 MR. HICKS: I'm saying I can be. I've got the

2 afternoon available.

3 THE COURT: So I'm starting with the 25th?

4 MR. SCHWARTZ: No, the 26th.

5 MR. HICKS: I also could do the 27th.

6 THE COURT: Mr. Fisher, we're glad you are

7 here. The 26th, civic bench trial. If it were criminal, we

8 could get a percentage estimate of whether or not it was

9 going.

10 That's really strange. I have one thing on the

11 26th, but it's not until 1:30. I could do the 26th, which is

12 Wednesday, if it were in the morning. I have to be at Pike

13 at 1:30. So if it were like 8:30, 9:00, 9:30.

14 MR. SCHWARTZ: Richard can't. What about

15 Thursday afternoon?

16 THE COURT: Okay. Thursday? Daniel Hastings.

17 He's your only other.

18 MS. ASKEY: Well, that's against Lee Elliott.

19 I think it's going to go.

20 THE COURT: Will you be done by the afternoon?

21 MS. ASKEY: It's against Lee Elliott. I think

22 it will go into the following week, Judge.

23 THE COURT: Friday is -- no.

24 MS. ASKEY: Tuesday doesn't work, is that what

25 somebody said? The 25th?

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
77

1 MR. SCHWARTZ: Yeah, I have a problem.

2 THE COURT: What about July 2nd?

3 MR. SCHWARTZ: That's fine with me. We're

4 getting really close but --

5 MS. ASKEY: You know what we could do if we're

6 going to set it is go ahead and have our jury instructions.

7 Do you want to do that?

8 MR. SCHWARTZ: For the 2nd?

9 MS. ASKEY: Whenever we're going to be back.

10 MR. HICKS: If we could set another pretrial

11 for July 2nd, we'll of the jury instructions by then and

12 we're going to get the discovery to you this week and we'll

13 can take up this --

14 (Discussion off the record.)

15 THE COURT: I think July 2 will work in the

16 afternoon. Do you think 2 o'clock? We have something at

17 1:30. Will 2 o'clock work on July 2nd?

18 MR. SCHWARTZ: That will work for me.

19 Are you guys good?

20 MR. HICKS: Yes.

21 (Discussion off the record.)

22 MS. ASKEY: Okay. July 2nd at 2:00 p.m.

23

24 ***

25
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
78

1 (The following proceedings were taken on

2 July 2, 2013, in the Circuit Court of Lincoln County, in

3 State vs. Russell S. Faria, with Judge Chris Kunza Mennemeyer

4 presiding.

5 Attorneys present are Mr. Richard Hicks and Ms.

6 Leah Askey for the State, and Mr. Joel Schwartz and Mr.

7 Nathan Swanson for the Defendant.)

8 THE COURT: State of Missouri versus Russell S.

9 Faria, 12L6-CR001312.

10 Good afternoon.

11 MR. SCHWARTZ: Good afternoon, Your Honor.

12 MR. SWANSON: Hello.

13 MS. ASKEY: The defense has filed a request --

14 MR. SWANSON: We haven't filed it yet.

15 MS. ASKEY: Well, they are ready to file a

16 Request for a Continuance for several reasons, one of which

17 is that they are seeking to get an expert for, to decipher

18 some of the phone analysis that we've been in front of you

19 and talked about before.

20 It was last week Mr. Hicks and I were going

21 through documents and realized that there were some documents

22 that either inadvertently or in some fashion weren't -- we

23 thought we had given them all. Maybe we did and they didn't

24 find them. Maybe we didn't. I don't know, but certainly

25 there were a section that weren't given to them or that they

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
79

1 didn't have at the time that they were trying to do their

2 analysis.

3 So I think I would be inappropriate for to us

4 to oppose a Continuance based on, you know, their ability to

5 properly prepare.

6 So with that being said, while all of us would

7 like to get this case over with, we're not opposed to their

8 Request for a Continuance based on the fact that the State

9 neglected to give them information that they needed to get.

10 MR. SCHWARTZ: Judge, I don't want to belabor

11 the issue, but we did file a Motion to Compel that was heard

12 in March specifically asking for those records.

13 THE COURT: Right.

14 MR. SCHWARTZ: And then we, we had discussed a

15 map in front of the Court. We did receive that within 48

16 hours.

17 Upon receiving the map, based upon that, we

18 knew there were there was no way that that map had been put

19 together with the information we had. There had to be more.

20 Last Thursday, Nate spoke with Mr. Hicks and

21 they ended up finding this in a file. We've reviewed it. We

22 believe it's incredibly exculpatory. However, we're going to

23 have to bring somebody to look at it and analyze it and

24 hopefully agree with what our analysis is of it.

25 The only thing I would ask, additionally, I

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
80

1 don't know how far out the Court is going to need to go. I

2 don't know witnesses' availability, police officers'

3 availability. I don't know anybody's availability at this

4 point in time.

5 I would ask the Court to consider a bond

6 reduction to 100,000 based upon the reasons that we're having

7 to ask for this Continuance.

8 We would ask for him to be confined to his

9 mother's house on house arrest. The bond is currently set at

10 250 and they have not been able to come up with that from a

11 bondsman. I don't know Ms. Askey's position on this.

12 THE COURT: He's currently at 250 surety or

13 just he's at 250 cash?

14 MR. SCHWARTZ: Two-fifty with a surety.

15 MS. ASKEY: Judge, the State's position would

16 be the same as it's always been based on the fact that it's a

17 murder case.

18 While I understand why Mr. Schwartz is asking

19 for it and I empathize with that position, I feel as the

20 State it would be difficult for me to consent to a bond

21 reduction on a case where we've charged murder, you know, a

22 felony.

23 THE COURT: Where does Mom reside? In Lincoln

24 County?

25 MR. SCHWARTZ: No. Lake St. Louis on Sunglow

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
81

1 Drive.

2 The only other thing I would add to my motion

3 is this case was set for trial in November and it was

4 dismissed and reindicted by the State at that point in time.

5 MS. ASKEY: Judge, just one other thing based

6 on -- just so the Court is aware. The phone records and

7 things that they are seeking to get aren't things that we

8 would have relied on or needed to rely on with regard to the

9 State's case.

10 They are things they requested and we agreed to

11 provide, so they could have also obtained those through their

12 own search.

13 For the Court's benefit, in finding those, it

14 was a manner of going page by page through binders of

15 information that we have, and with Mr. Hicks and Mr. Swanson

16 on the phone, literally turning page by page.

17 So again, those were things they had requested

18 that we obtained and we did. We just unfortunately didn't

19 give them or they didn't receive all of the information that

20 we had initially received.

21 MR. SCHWARTZ: Judge, we contacted the

22 company and they said everything had been turned over to the

23 State, and this was on December 30th. Not that we contacted

24 but that everything had been sent to the State, which is why

25 we continued to request it.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
82

1 THE COURT: If he were on house arrest in Lake

2 St. Louis, though, through our Sheriff's Department system,

3 they would know if he left the premises, wouldn't they?

4 MR. SCHWARTZ: Anybody would know.

5 THE COURT: That's my understanding.

6 MS. ASKEY: I would assume so, yes. The nature

7 of the case lends itself to flight but, yeah, I mean, I

8 suppose if he were going to flee, they would know he was

9 fleeing when he began to.

10 MR. SCHWARTZ: Judge, his entire family resides

11 here. His mother resides here. It's not a matter of flight.

12 If that was the case, somebody would have somehow come up

13 with the money to get him out. They can't afford that.

14 I don't know how far we're going to end up

15 going, but I don't think he's a flight risk. I think, given

16 the nature of the case, there are many, many issues in this

17 case that are arguable as far as whether or not he committed

18 it.

19 If this was a situation where, well, if this

20 was a situation where there was five witnesses and a

21 confession, we wouldn't be having this discussion at all.

22 It's not any of those things.

23 MS. ASKEY: We wouldn't be trying it.

24 MR. SCHWARTZ: Probably not. That's certainly

25 a possibility.
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
83

1 I haven't officially filed this, but I guess I

2 can file it.

3 THE COURT: Were you going to not file it?

4 MR. SCHWARTZ: No. Well, Leah agreed she would

5 consent so.

6 THE COURT: Okay. So while I'm thinking, how

7 far out we're going to be, no matter when we go, we are

8 kicking other people off so it's just a matter of how many.

9 Is it going to be impossible for us to look at days anyway?

10 MR. SCHWARTZ: It's not impossible. What I

11 would suggest, if it pleases the Court, is to set a tentative

12 date and then maybe reconvene in maybe 30 days from now to

13 make sure availability, so we -- so Leah doesn't come back

14 and say this officer is not available or I don't come back

15 and say this witness isn't available.

16 I'm hoping people don't have travel plans or

17 other plans for sometime in the fall and winter.

18 Is that agreeable? Something like that?

19 MS. ASKEY: That's agreeable to me.

20 THE COURT: Somebody had a five-day civil trial

21 starting September 30. September 30, October 1, 2, 3, 4. We

22 already know that is no good.

23 MR. SCHWARTZ: I can't do that.

24 (Discussion off the record.)

25 MR. SCHWARTZ: November 18. I think it's far

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
84

1 enough out. I have the whole week open.

2 THE COURT: It's supposed to be Law Day week,

3 but if I have to kick something off, I guess kicking that

4 off, if I don't have a bunch of stuff already set, isn't any

5 worse than kicking everything else off.

6 It would be the week prior to Thanksgiving. So

7 November 18 through 22. State?

8 MS. ASKEY: Okay. I need to send out to my

9 Major Case and see.

10 MR. SCHWARTZ: I will start confirming

11 immediately with all of the subpoenaed witnesses. Does the

12 standby subpoena mean they are still good, or do I need to

13 subpoena them?

14 THE COURT: I think we can continue subpoenas,

15 can't we, if you are subpoenaed to that day or until no

16 longer subpoenaed?

17 MR. SWANSON: I think the rule says that.

18 MR. HICKS: I hope it's in the rule book. We

19 do it all of the time. Such and such day and your subpoena

20 is still good for those days.

21 MS. ASKEY: Two things I would ask. One, the

22 issue with the bond reduction.

23 THE COURT: Was going to be a smaller issue if

24 we were postponing two days.

25 MS. ASKEY: But the issue I have is that I,

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
85

1 obviously, haven't notified any of the family of any of this

2 or that bond reduction had been filed based on local rules

3 they know. So that's the issue I have with that.

4 MR. SCHWARTZ: I can tell you if it's a

5 hundred, they wouldn't be posting before next week.

6 MS. ASKEY: They would have an opportunity to

7 be heard.

8 THE COURT: They have to be allowed to be here.

9 MS. ASKEY: So I would -- just so that I'm

10 voicing that.

11 THE COURT: Right.

12 MS. ASKEY: The other thing that I would love

13 to do if you all are okay with it, and the Court is okay with

14 it, is that we have our jury instructions at least -- some of

15 these things, if we get them out of the way, hopefully it

16 will minimize the stuff we have to do.

17 MR. SCHWARTZ: I say we reconvene in a month or

18 so. We can do the Motions in Limine then and objections to

19 the experts and all that good stuff.

20 MS. ASKEY: Whatever we can do now or next week

21 while Mr. Hicks is still employed at the Attorney General's

22 office.

23 THE COURT: Next week we have lots of time

24 because next week is now empty.

25 MS. ASKEY: Right.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
86

1 THE COURT: These are two things as I went back

2 through the file that looked like it would be addressed.

3 Does it look like there's more that has already been filed?

4 MR. SCHWARTZ: We anticipate filing more.

5 THE COURT: As far as what was already sitting

6 here, those are the only things I saw.

7 MR. SWANSON: Those were the only two that we

8 had filed prior to today.

9 THE COURT: All right.

10 MR. SCHWARTZ: What I would propose is we do

11 have some other motions. I think, in all fairness, they have

12 a right to review the motions because they are going to

13 object to both of them and then we reconvene and argue.

14 MS. ASKEY: Then I want take away my consent to

15 the continuance then. I'm just kidding.

16 THE COURT: Okay. So we could or could not

17 hear any of this next week. We don't have to. The only

18 reason I throw that out there is because I know I have time.

19 If we can't, we can't.

20 MS. ASKEY: There's nothing to hear.

21 MR. HICKS: We just have provided you a copy of

22 the instructions for the Court's review. Obviously, we

23 usually catch things once everybody reviews them.

24 THE COURT: Right. Do they have a copy of

25 this?
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
87

1 MS. ASKEY: Yes. Here's a second copy.

2 THE COURT: So do we want to pick a bond

3 reduction motion day while we're still here?

4 MR. SCHWARTZ: Might as well, yes.

5 THE COURT: The holiday is going to be here.

6 The rest of the week is out. How many days notice do they

7 have to have?

8 MR. SCHWARTZ: Five.

9 MS. ASKEY: Five, I believe.

10 THE COURT: If you are filing it today --

11 MR. SCHWARTZ: We didn't file an official one.

12 We agreed to the continuance.

13 I was filing a motion and asking for sanctions

14 as a discovery violation. Part of that would be bond thing,

15 so I didn't officially file the Bond Reduction Motion.

16 There is a previous one in the file. I'm not

17 going to be asking for sanctions, but there's a previous Bond

18 Reduction Motion in the file.

19 I would ask the Court to take judicial notice

20 of it and ask that be considered notice or I can fax up an

21 additional one.

22 THE COURT: Do you want him to file a new Bond

23 Reduction or can I just set this for July 16 or something far

24 enough out?

25 MS. ASKEY: That's fine.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
88

1 MR. SCHWARTZ: We will file and give them

2 copies of our Motion in Limine and do you want to argue those

3 on that day, as well, at 1:30, 2 o'clock?

4 THE COURT: That's what I'm looking at, what

5 I've got at 1:30. We could probably do a 2:30.

6 MR. SCHWARTZ: Judge, are you thinking on July

7 9th or 16th?

8 THE COURT: Sixteenth, in the afternoon.

9 MS. ASKEY: I thought you said next week since

10 we had lots of time.

11 THE COURT: I didn't think that was an option.

12 I'll tell you, the day that really, truly doesn't have

13 anything besides you is Wednesday the 10th. Monday, I had

14 nothing except you, and Wednesday I have nothing.

15 MR. SCHWARTZ: Judge, why don't we do Wednesday.

16 THE COURT: That's fine. I can meet any time

17 of the day. If you want to do like 10:00, so you don't have

18 to get here so early or whatever. Do you want to do it right

19 after lunch at 1:00?

20 MR. HICKS: It's only an hour and 15 minutes

21 for me.

22 MR. SCHWARTZ: I always thought you had to

23 travel so far. It's about the same. It's almost an hour for

24 us.

25 Wednesday at 10:00 is fine.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
89

1 MR. HICKS: Ten o'clock is fine.

2 THE COURT: So July 10 and we're going to do

3 10:00 a.m. and we're going to do as much of anything as

4 anybody can.

5 What I have in the file that I dug through that

6 we haven't addressed yet. I have a defendant's first Motion

7 in Limine to exclude hearsay statements and speculation, this

8 is old from January, and second motion to exclude prior bad

9 acts.

10 To my recollection, we haven't done anything

11 with either one of those.

12 MR. SCHWARTZ: Correct.

13 MR. HICKS: Correct.

14 THE COURT: Can we do those on Wednesday?

15 MR. SCHWARTZ: Sure.

16 THE COURT: Whatever else is filed, bond

17 reduction motion --

18 MR. SCHWARTZ: We'll have it all filed. We'll

19 try to file it tomorrow.

20 MS. ASKEY: By next week, we'll know also to

21 make sure that our witnesses are available so we can confirm

22 that day.

23 MR. SCHWARTZ: Perfect. The date was 11/18?

24 MS. ASKEY: If it's available, we may pick the

25 jury on the 15th.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
90

1 THE COURT: Let's pick the jury Monday, when

2 they're already supposed to be here; November 18.

3 MR. SCHWARTZ: Judge, I'm fine with that if you

4 want to pick the jury the Friday before.

5 MS. ASKEY: I like that.

6 THE COURT: If we do that November 18, you are

7 going to have time. That's five days.

8 MS. ASKEY: Yeah.

9 THE COURT: That's a full week.

10 MS. ASKEY: I just -- I like picking the jury

11 the day before and coming in fresh on Monday personally, but.

12 MR. SCHWARTZ: Whatever the Court's pleasure is

13 on that. I'm fine on picking it on Friday. I'm fine picking

14 it on Monday. I don't care.

15 MS. ASKEY: It helps gauge when the witnesses

16 are going to testify.

17 MR. SCHWARTZ: If she wants to do that and you

18 don't care, I'll agree.

19 THE COURT: Let me see what I have set. The

20 15th is Pike County. It's open.

21 So if you want, how long do you think it would

22 take to select a jury? We selected it in an hour and 45

23 minutes Friday.

24 MS. ASKEY: I don't think that's the --

25 THE COURT: A nine count stealing identity

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
91

1 theft, but I'm just saying then can you do it in an afternoon

2 is my question?

3 MS. ASKEY: We can do it. Come in at 1:00 and

4 have the jury picked by 5:00. I'd take a couple of hours.

5 MR. SCHWARTZ: I'm generally an hour, hour and

6 a half.

7 THE COURT: Do you want to start at 12:30?

8 MR. SCHWARTZ: If we start at 12:30, I would

9 think by 5 o'clock on Friday we're done.

10 THE COURT: Fine.

11 MS. ASKEY: Do you like that or not?

12 THE COURT: Now that we have five full days,

13 are you concerned you won't get done? That's the only reason

14 to do it.

15 MR. HICKS: I think if you are starting at

16 5:30, you'll be lucky to get out of here by 5:00. You are

17 dealing where people are going to have to give up an entire

18 week and you are just going to have more problems than you do

19 with a typical date.

20 MS. ASKEY: Right. We'll need extra jurors

21 called in. I agree. That's a good point.

22 MR. SCHWARTZ: It's up to you. I'm happy with

23 Friday or Monday.

24 MS. ASKEY: Let's do them in the morning on

25 Friday and that way we finish when we finish.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
92

1 MR. SCHWARTZ: Okay.

2 THE COURT: I'm going to say 9:00 a.m. or 9:30.

3 MS. ASKEY: 9:00.

4 MR. SCHWARTZ: There's a couple of things we

5 brought up they are looking into.

6 MR. SWANSON: I was going to talk with you about

7 physically inspecting the file.

8 MS. ASKEY: Not something we have that we

9 haven't given.

10 MR. SCHWARTZ: Not that we know of. If we knew

11 it, we would be asking for it.

12 MR. SWANSON: They're unknowns, just unknown

13 unknowns.

14 MS. ASKEY: Not that you have that you haven't

15 given us. You haven't given us anything.

16 MR. SWANSON: Oh, yeah.

17 MS. ASKEY: That doesn't matter because we're

18 the State. We're supposed to go in blind.

19 MR. SCHWARTZ: We have a video. We can do that.

20

21 ***

22

23

24

25
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
93

1 (The following motions were taken on July 10,

2 2013, in the Circuit Court of Lincoln County with Judge Chris

3 Kunza Mennemeyer in State vs. Russell Faria.

4 Attorneys present are Mr. Richard Hicks and Ms.

5 Leah Askey for the State, and Mr. Joel Schwartz and Mr.

6 Nathan Swanson for the Defendant.)

7 THE COURT: We are on the record on

8 12L6-CR001312. Before I forget to announce to counsel, the

9 week that we were going to begin jury selection on a Friday,

10 we have a jury in here.

11 So what I'm going to do in the event that that

12 jury does not somehow finish by Friday or Friday afternoon,

13 I'm going to call a jury in for Friday, but I'm also going to

14 call one in for Monday.

15 Worst case scenario is we still have five days

16 starting Monday. There's no other way to do it.

17 I'm giving you a heads up that could happen.

18 But if something does not allow to us start Friday, we will

19 have a separate jury being called in Monday and be ready to

20 roll. You guys should be provided both jury lists at the

21 time.

22 MR. SCHWARTZ: Judge, I was informed about five

23 minutes ago and I haven't talked to Ms. Askey.

24 THE COURT: Okay.

25 MR. SCHWARTZ: Nate said that the Forensic

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
94

1 Examiner, Fahnestock, might not be available that week?

2 MR. HICKS: I actually spoke with him this

3 morning. He's out on some kind of training that's required

4 but indicated there is a good possibility it's going to be

5 cancelled.

6 I told him that in the event it wasn't, the

7 State could fly him back on a day, whatever day we had agreed

8 to.

9 He's going to be in Oklahoma. We could fly him

10 back if we need to or take a video deposition or whatever,

11 but I would prefer to just fly him back if his other

12 engagement isn't cancelled.

13 THE COURT: Okay.

14 MR. SCHWARTZ: No issue.

15 THE COURT: Okay. So the other trial is also a

16 criminal trial, so we're going to know as the week goes on

17 kind of how that shakes out and if we want to go ahead and

18 start.

19 We will start Friday if we can or maybe it

20 would be that afternoon or Monday at the latest. That was

21 all on that. I just kind of wanted to give a heads up.

22 Then it looks like, per my file, what I have in

23 front of me is -- let's start with the first one. I have

24 that was filed January 7, 2013, defendant's first Motion in

25 Limine to Exclude Hearsay Statements and Speculation. Then I

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
95

1 have same filing date January 7, 2013, defendant's second

2 Motion in Limine to Exclude Alleged Prior Bad Acts, and then

3 I have defendant's third Motion in Limine to Exclude

4 Speculative Testimony and Improper Conjecture and that's

5 filed July 9, 2013.

6 Then I have defendant's Motion for a Bill of

7 Particulars filed July 9, 2013. Defendant's second Amended

8 Motion to Endorse Witnesses filed July 9, 2013, and then I

9 have Proposed Jury Instructions filed by the State, July 2,

10 2013.

11 And was the defendant renewing a motion today

12 also for bond reduction?

13 MR. SCHWARTZ: Yes, Your Honor. I thought we

14 had made that clear last week.

15 THE COURT: Okay. I would assume that's the

16 same motion that was filed under seal --

17 MR. SCHWARTZ: Yes.

18 THE COURT: -- that we have? Okay. Is there

19 any other motion that I have neglected? Oh, there's another

20 one.

21 MR. SCHWARTZ: Yes, Judge.

22 THE COURT: Defendant's Motion in Limine to

23 Exclude Testimony Re: Luminol/Bluestar or in the Alternative

24 for Frye Hearing filed July 9, 2013.

25 Does that cover everything for today?

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
96

1 MR. SCHWARTZ: Yes.

2 MR. HICKS: I believe so, Judge.

3 THE COURT: Okay.

4 Mr. Schwartz, did you want to go ahead then

5 and proceed on your motions, and you can just tell me what

6 order?

7 056&+:$57=<RXU+RQRUILUVW,¶GOLNHWRVWDUW

8 with the Motion for Bill of Particulars.

9 THE COURT: Okay.

10 MR. SCHWARTZ: I think the case law is clear that

11 the State has to provide the defendant with enough

12 information in order to sufficiently, according to the

13 statute, sufficiently prepare a defense, and the Court can

14 direct the State to do so.

15 %DVHGXSRQZKDWZH¶YHOHDUQHGVRIDUEDVHGXSRQ

16 the verdict director, and based upon the information that

17 ZH¶YHEHHQSURYLGHGDQGKDYHHQGRUVHGWRWKH6WDWHDVIDUDV

18 our defense, we still, as of a year and a half, more than a

19 \HDUDQGDKDOIODWHUGRQ¶WNQRZZKDWWKH6WDWHKDVDOOHJHG

20 as far as the specifics of this allegation.

21 They have alleged, according to their verdict

22 director and according to discussions with the State, that

23 this happened on December 27th, 2011. We have provided an

24 alibi to the State. The State has deposed all four alibi

25 witnesses, and the police department interviewed all four

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
97

1 alibi witnesses two or three times prior to indictment.

2 7KHDOLELZLWQHVVHVSURYLGHIRU0U)DULD¶V

3 whereabouts, including videos from approximately 5:15 the

4 evening of this event till approximately 9:09 -- or 9:06, the

5 evening of the occurrence.

6 Mr. Faria then traveled home, and this is all

7 based upon witnesses, as well as cell site information that

8 ZH¶YHMXVWUHFHQWO\REWDLQHG+HWKHQDUULYHGKRPHZH

9 believe at approximately 9:40.

10 The State has at least alluded to the fact that

11 they would argue with that fact. And specifically in order

12 to sufficiently prepare his defense, we need to know if

13 WKH\¶UHFKDOOHQJLQJKLVDOLELDQGVD\LQJWKLVKDSSHQHG

14 earlier in the evening, or did this happen when he arrived

15 home later that evening just prior to contacting 9-1-1.

16 Given the alibi instruction, it states based upon

17 the verdict director, the State needs to state the date and

18 time as submitted in the verdict director instruction.

19 RSMO 2304 states the same, and as all case law dictates, we

20 QHHGWRNQRZZKDWGDWHDQGWLPHWKH\¶UHVSHFLILFDOO\DOOHJLQJ

21 this occurred.

22 THE COURT: Can you repeat --

23 056&+:$57=:HVWLOOGRQ¶WNQRZ

24 THE COURT: -- that RSMO site? You said RSMO

25 what?
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
98

1 MR. SCHWARTZ: 2304.

2 THE COURT: 2304.

3 MR. SCHWARTZ: It talks about Bill of Particulars.

4 THE COURT: Okay.

5 056&+:$57=,¶PVRUU\6XSUHPH&RXUW5XOHRI

6 Missouri.

7 THE COURT: Okay. Is that all?

8 MR. SCHWARTZ: Judge, let me also add, based on

9 the information received last week with the cell site

10 information, I cannot tell the Court that it confirms Russell

11 )DULD¶VZKHUHDERXWV%XWZKDWLWGRHVGRLVFRQILUPZKDWKH

12 told the police the night he was arrested and what his alibi

13 witnesses have told the police the night he was arrested, in

14 DGGLWLRQWRZKDWWKH\¶YHWROGWKH6WDWHGXULQJGHSRVLWLRQV

15 Now, what it does confirm, at least, is the

16 location of his cell phone. So no secrets here; he would

17 have had to have left his home in Lincoln County, gone to

18 VHYHUDOSODFHVZKHUHKH¶VRQYLGHRGHSRVLWHGWKHSKRQHDW

19 this location where it shows that his alibi witnesses,

20 returned home, as the State has alleged, murdered the victim

21 in this particular case, then gone back to the location where

22 his cell phone was, and then ultimately stopped because

23 WKHUH¶VDQRWKHUUHFHLSWDQGWKHQUHWXUQHGKRPHDIWHUWKDW

24 With all that information, I need to know based

25 XSRQZKDWZH¶UHJRLQJWRQHHGWRGRWRSUHSDUHDGHIHQVH
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
99

1 We need to get a professional to analyze the cell

2 site data to testify about the analysis of the cell site

3 GDWD2ULIWKH\¶UHDOOHJLQJWKLVRFFXUUHGDIWHUKHJRWKRPH

4 that evening and the cell site data is all correct and he was

5 with his phone, then we need to potentially confer and

6 consult with another pathologist regarding the potential time

7 of death. That is why this information is so vital.

8 We simply, how many months is this, 19, 20 months

9 ODWHUGRQ¶WNQRZWKHVSHFLILFVRIWKHDOOHJDWLRQVWLOO

10 THE COURT: State?

11 MR. HICKS: Your Honor, the rule that Mr. Schwartz

12 UHIHUHQFHVKHUHZKLOHLW¶VDJRRGDQGOHJLWLPDWHUXOHLW¶V

13 rather old, and it goes back prior to the liberal discovery

14 laws or liberal discovery procedures that the State of

15 Missouri employs here.

16 There was a time in the State of Missouri where

17 WKHUHZDVQ¶WOLEHUDOGLVFRYHU\,QIDFWGHIHQVHDWWRUQH\V

18 ZHUHQ¶WDOORZHGWRWDNHGHSRVLWLRQV7KH\ZHUHQ¶WDOORZHG

19 basically access to everything that the State has.

20 $QGWKDW¶VZK\WKDWUXOHLQODUJHUHJDUGZDVSXW

21 LQWRSODFHEHFDXVHWKHGHIHQVHZDVOHIWZLWK³:HOOPDQZH

22 GRQ¶WHYHQNQRZWKHGDWHRUZKHQWKHFULPHRFFXUUHG´,

23 GRQ¶WWKLQNWKDW¶VWKHFDVHKHUH7KH\KDYHDOOWKH

24 discovery. They know what we know, which is that we have a

25 witness who last saw Betsy alive at 7:20 p.m., around there,
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
100

1 on the 27th. That Mr. Faria makes a 9-1-1 call at 9:41 p.m.

2 that same day.

3 So we know that for a two-hour, 20-minute period,

4 essentially, that sometime within that time frame Betsy Faria

5 ZDVPXUGHUHG7KDW¶VZKDWZHNQRZ7KDW¶VZKDWZH¶YH

6 shared. To go any further and have to explain to them

7 H[DFWO\ZKDWZH¶UHJRLQJWRDUJXHDERXWH[DFWO\ZKHQLQWKDW

8 SHULRGZHNQRZWKDWVKHZDVNLOOHGZHOOLW¶VLPSRVVLEOH

9 :HGRQ¶WNQRZ:HZHUHQ¶WWKHUH7KHPXUGHUHUDQG%HWV\

10 were there.

11 $QGVRZKDWWKH\¶UHDVNLQJIRUXVWRGRLVWRVD\

12 ³+H\ZHQHHGWRNQRZ$UH\RXVD\LQJWKDWWKLVKDSSHQHGDW

13 the end when Mr. Faria got home and within the 10 or

14 15-minute period they had, or are you going to try to bust

15 RXUDOLEL"´<RXNQRZZKDW")UDQNO\ZHFRXOGDUJXHERWK

16 under the law.

17 :HFRXOGDUJXHERWKDQGVD\WRWKHMXU\,¶PQRW

18 VD\LQJZH¶UHJRLQJWRGRWKDWEXWXQGHUWKHODZZHFRXOG

19 DUJXH³+H\LWKDSSHQHGRQHRUWZRZD\V(LWKHU\RXEHOLHYH

20 WKHLUDOLELDQGKHGLGWKLVDWWKHYHU\HQGRU\RXGRQ¶W

21 EHOLHYHWKHLUDOLELDQGWKLVKDSSHQHGHDUOLHU,¶PQRW

22 saying that would be the best argument in the world; maybe it

23 LVPD\EHLWLVQ¶W%XWZHGRQ¶WKDYHWRJRDQ\IXUWKHUWKDQ

24 WKDW:H¶YHJLYHQWKHPWKHWLPHIUDPHEDVHGXSRQZKDWZH

25 know from fact witnesses.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
101

1 Mr. Schwartz is correct, and I should have thought

2 about this in doing those jury instructions, but sometimes,

3 my experience has been on an alibi in a situation like this

4 is that I could put in there that timeframe in the jury

5 instructions with the alibi instruction, but typically I wait

6 until the evidence is in so that we can be more agreeable

7 DERXWH[DFWO\ZKDWWLPHIUDPHWKDWZH¶UHUHIHUULQJWREHFDXVH

8 DWWKHHQGRIDOOWKHHYLGHQFHZKHQZH¶UHGRLQJMXU\

9 LQVWUXFWLRQVLWPD\EHFRPHFU\VWDOFOHDURKZH¶UHDUJXLQJ

10 it happened during this timeframe, and if that happens to be

11 the timeframe we all agree upon.

12 5LJKWQRZZKDWZHFDQVD\LVZKDW,¶YHWROGWKH

13 Court, which is we believe this murder happened somewhere

14 between 7:20 p.m. and 9:41 p.m.

15 7+(&28576RLI,¶PKHDULQJ\RXFRUUHFWO\

16 \RX¶UHVD\LQJIRUWRGD\¶VSXUSRVHVLQWKLVVHWRIMXU\

17 instructions, you could have filled in the 7:20 to 9:40 spot,

18 but that after hearing the evidence, it would be your

19 LQWHQWLRQWKDW\RX¶UHJRLQJWRILOOLQPD\EHWKDWRUPD\EH

20 something more specific, depending what comes out?

21 MR. HICKS: Correct.

22 7+(&2857$QGVRDVWRGHIHQGDQW¶VUHTXHVWIRUD

23 %LOORI3DUWLFXODUVLVWKH6WDWHVD\LQJWKDWWKH\¶UHQRW

24 VXUHDWWKLVSRLQWZKLFKZD\WKH\¶UHDUJXLQJLWRUWKH\¶UH

25 JRLQJWRDUJXHERWKZD\V",JXHVV,¶PQRWFOHDU,WVRXQGV
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
102

1 WRPHOLNHZKDWKH¶VVD\LQJLV,MXVWNLQGRIKDYHWRNQRZ

2 your game plan so I can make my game plan.

3 05+,&.6,XQGHUVWDQGZKDWWKH\¶UHUHTXHVWLQJ

4 KHUH$QGZKDW,¶PVD\LQJLVWKDW,WKLQNZH¶YHJRQHEH\RQG

5 ZKDWWKLVUHTXLUHG,GRQ¶WWKLQNWKH6WDWHKDVWRSOD\

6 WKHLUVSHFLILFKDQGWRVD\\RXNQRZZKDW³8OWLPDWHO\JX\V

7 ZH¶UHJRLQJWREHDUJXLQJWKDWLWKDSSHQHGULJKWDWWKHHQG´

8 RU³1RXOWLPDWHO\ZH¶UHJRLQJWRWU\WREXVW\RXUDOLEL

9 XS´,GRQ¶WWKLQNZHKDYHWRWKH\¶YHJLYHQXVWKHDOLEL

10 defense.

11 ,JXHVVZKDW,¶PVD\LQJZKDWLI,ZHUHWRVD\

12 KHUHWRGD\³1RZH¶UHVWXFNZLWKZH¶UHJRLQJWRDUJXH

13 that this happened within the 10 or 15 minute timeframe at

14 WKHYHU\HQG:H¶UHJRLQJLQWR1RYHPEHU,QEHWZHHQQRZ

15 and November something comes up. Wow, we can bust this alibi

16 wide open.

17 If something changes, am I going to come back now

18 DQGVD\³:HOOZDLWDPLQXWH:H¶UHQRZQRORQJHUDUJXLQJ

19 LWDWWKHHQG:H¶UHJRLQJWRDUJXHWKDWLWKDSSHQHGHDUOLHU

20 LQWKHQLJKW´$QGDOO,FDQWHOO\RXULJKWQRZDWWKLV

21 point, all the State can say is that we know, we believe that

22 she was murdered between 7:20 p.m. and 9:41.

23 ,GRQ¶WWKLQNWKH6WDWHKDVWRJRDQ\IXUWKHUDQG

24 say we think it happened at this specific time between those

25 WLPHSHULRGVEHFDXVHIUDQNO\ZHGRQ¶WNQRZ,WFRXOGKDYH
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
103

1 been at the end. It could have been earlier. We just

2 believe we have evidence beyond a reasonable doubt that Mr.

3 Faria is the one who did it.

4 THE COURT: Mr. Schwartz?

5 MR. SCHWARTZ: First of all, Mr. Hicks already

6 DGPLWWHGLW¶VDQROGUXOHDQGLW¶VDJRRGUXOH,GRQ¶W

7 DQ\ZKHUHZKHUHWKHUH¶VDQ\ODZWKDWVD\VROGUXOHVGRQ¶W

8 H[LVWDQ\PRUH,W¶VWKHUXOH,W¶VVWLOOWKHUXOH*LYHQ

9 the fact if the allegation and the evidence we had and they

10 had was Mr. Faria and his wife were home the entire evening

11 and at some point between 7:20 and 9:40 she was killed, that

12 may cast a different light on this thing.

13 +RZHYHUZH¶YHHQGRUVHGDQDOLELIRUDORQJORQJ

14 WLPH,W¶VEHHQRXWWKHUHIRUD\HDUDQGDKDOI,WZDV

15 known the evening he was arrested. The alibi witnesses were

16 talked to by the police. They gave his whereabouts at the

17 time.

18 In order to sufficiently prepare our defense, the

19 State does have to notify us. They have the burden of proof.

20 7KH\FDQ¶WMXVWVD\³:HWKLQNKHGLGLW:HMXVWGRQ¶WNQRZ

21 ZKHQ´$QGZKDWZHKDYHLVWZRGLVWLQFWVHSDUDWHSHULRGVRI

22 time here.

23 In order to sufficiently prepare our defense, we

24 have to know that, and I think the rule provides for it.

25 &OHDUO\KH¶VRQYLGHRFDPHUDDWIRXUGLIIHUHQW
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
104

1 places, or three different places and a receipt from another

2 place, up until approximately 6:00. There are four witnesses

3 who claim that he was with them from the hours of 6 p.m. to

4 9 p.m. There is a receipt from 9:09, the clock might be off

5 by a few minutes, in a area down 30 minutes from Lincoln

6 &RXQW\,VWKDWWKHWLPHWKDWWKH\¶UHDOOHJLQJWKLV

7 occurred?

8 There is important information regarding the

9 FRQGLWLRQRIWKHERG\WKDW¶VEHHQWHVWLILHGWRDQG,WKLQN

10 the Court has been made aware, that a pathologist may have to

11 EHSUHSDUHGIRUDQGWHVWLILHGWRLIWKH\¶UHVD\LQJWKDWWKLV

12 occurred after he returned home.

13 ,W¶VDFRPSOHWHWRWDOGLIIHUHQWVHWRI

14 circumstances and facts as to how this may or may not been

15 done. The State has to provide those.

16 7KH6WDWHFDQ¶WVD\³:HWKLQNKHGLGLW:HMXVW

17 GRQ¶WNQRZKRZ:H¶UHJRLQJWRILJXUHLWRXWDWVRPHSRLQW

18 EHIRUHWULDODQGWKHQPD\EHGXULQJWULDOZH¶OOOHW\RX

19 NQRZRUPD\EHQRWXQWLOWKHYHU\HQG:H¶UHJRLQJWRWKURZ

20 HYHU\WKLQJDWWKHZDOODQGVHHZKDWVWLFNV´7KDW¶VQRWWKH

21 rule and the Court is well aware of that, as is Mr. Hicks.

22 The Motion for a Bill of Particulars is clearly

23 stated, and the reasons for the Bill of Particulars are

24 clearly stated; and this particular set of circumstances, I

25 believe it dictates that they have to tell us when they

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
105

1 believe this occurred and what the allegation is.

2 THE COURT: Anything further on that motion?

3 MR. HICKS: Just LIZHFRXOGZHZRXOG7KDW¶V

4 what it comes down to.

5 Mr. Schwartz is asking us to provide him a

6 VSHFLILFWLPHDQGZHFDQ¶WGRLW:HGRQ¶WNQRZH[DFWO\

7 what happened within that two -- or when it happened, and

8 KH¶VDVNLQJXVWRVWDWHWRKLPZKHQLWKDSSHQHGDQG,¶P

9 VRUU\EXWZHFDQ¶W,WKLQNWKLVLVVRPHWKLQJIRUWKHMXU\

10 to decide.

11 7KHMXU\PD\XOWLPDWHO\FRPHEDFNDQGVD\³<RX

12 NQRZZKDWWKH6WDWHFDQ¶WHYHQILJXUHRXWGLGWKLVKDSSHQDW

13 the end or did it happen sometime during the middle?" I get

14 WKDW%XWWKDWGRHVQ¶WPHDQEHFDXVHZHKDYHWKDWSUREOHP

15 WKDWZH¶YHJRWWRMXVWFRPHXSZLWK³2KZHOOZH´

16 So I mean, basically the defense is asking us to

17 do something that frankly if you ordered us to do it, I think

18 ,ZRXOGORRNDW0V$VNH\KHUHDQGVD\³:HOO,GRQ¶WNQRZ

19 :KDWGR\RXWKLQN"´$QGVR

20 THE COURT: It sounds like the State is saying if

21 they were made to do this, they would literally be making it

22 up.

23 MR. HICKS: Exactly.

24 THE COURT: And then the evidence may or may not

25 fall in line with that.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
106

1 MR. HICKS: And again, I think Mr. Schwartz is

2 WU\LQJWRKHZDQWVXVWKH\¶UHWU\LQJWRIRUFHXVLQWRD

3 little bit of a trial strategy.

4 +HNHHSVWDONLQJDERXWKRZWKH\¶YHJRWWKLVURFN

5 VROLGDOLEL0D\EHWKH\GR0D\EHWKH\GRQ¶W7KDW¶VIRUD

6 jury to decide, right? He talks about these videos. Yeah,

7 VXUHZHDJUHHKH¶VRQYLGHRDQGKH¶VGRZQWKHUHDW/DNH6W

8 /RXLVDWSP6KH¶VDOLYHDWSP:HGRQ¶WFDUHDERXW

9 WKDW:H¶UHWDONLQJDERXWWKHSHULRGEHWZHHQDQG

10 9:41 p.m.

11 He talks about cell phone records. I could get

12 LQWRVRPHRIWKHFHOOSKRQHUHFRUGV0\VWHULRXVO\WKHUH¶V

13 DOPRVWDWZRKRXUSHULRGZKHUHWKHUH¶VDEVROXWHO\QRFHOO

14 SKRQHUHFRUGRQWKLVPDQ¶VFHOOSKRQHDQGWKDWHQWLUHGD\

15 \RXNQRZLW¶VDOOYHU\DFWLYHH[FHSWGXULQJWKLVWLPH

16 SHULRGZKHUHWKLVPXUGHUFRXOGKDYHKDSSHQHG7KDW¶VWKH

17 NLQGRIVWXIIZH¶UHJRLQJWRDUJXHWRWKHMXU\DQGWKHMXU\

18 PD\EHOLNH³:HOO\RXNQRZZKDWPD\EHZHGRQ¶WWKLQNWKLV

19 DOLELLVVRVWURQJ´

20 7KDW¶VZKDW,¶PVD\LQJLVWKDWWKH6WDWHLVJRLQJ

21 to be in a position better to say you know what, we think

22 this is our case now based upon how the evidence comes out at

23 trial.

24 $WWKLVSRLQWZH¶YHGRQHWKHEHVWZHFDQWR

25 SURYLGHWKHPDOOWKHLQIRUPDWLRQWKDWZHKDYH,GRQ¶WWKLQN
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
107

1 we can do anymore.

2 THE COURT: Mr. Schwartz, anything further on that

3 before we go to the next?

4 056&+:$57=1RRWKHUWKDQWRVD\WKHUH¶VD

5 probable cause standard. And when the Judge says to the

6 3URVHFXWRUZKDW\RX¶UHWHOOLQJPHLV\RXKDYHWRPDNHLWXS

7 DVWRWKHWLPHWKLVRFFXUUHGWRPHWKDW¶VDSUREDEOHFDXVH

8 issue, which goes to my next motion, and they also said --

9 \RXVDLGLI,ZDVWRIRUFH\RXWRJLYHDWLPH\RX¶UHVD\LQJ

10 \RXFDQ¶WGRLW

11 $QGDJDLQ,DJUHHZLWK0U+LFNVWKHUH,GRQ¶W

12 WKLQNWKH\FDQGRLW7KDW¶VZKDW,¶YHVDLGWRWKH&RXUWIRU

13 WKHODVW\HDU7KH\FDQ¶WGRWKDW$QGWKHUHDVRQWKH\

14 FDQ¶WGRLWLVEHFDXVHQRERG\NQRZV

15 7KHUHLVDQRWKHUDOWHUQDWLYHDQGZH¶YHGLVFXVVHG

16 that with the Court that certainly makes a lot more sense.

17 However, what I would do is jump into my next motion, which

18 is the motion for bond.

19 MR. HICKS: I want to respond to that one time.

20 :H¶UHVWXFNRQWKLVWLPHDQGWKLVGDWHDQGWKHUH¶VQRGRXEW

21 WKDWLQWKHLQIRUPDWLRQZKDW¶VUHTXLUHGLVWRSURYLGHWRWKH

22 best of our ability.

23 Sometimes in child sex cases we have to give a

24 WLPHIUDPH6RPHWLPHVWKH6WDWHGRHVQ¶WNQRZVSHFLILFDOO\

25 when it happened.
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
108

1 Under the law, we have to prove beyond a

2 reasonable doubt that the defendant knowingly killed another

3 person after deliberation.

4 7KHUH¶VQRWKLQJLQWKHODZWKDWUHTXLUHVXVWR

5 VSHFLI\H[DFWO\ZKHQLWKDSSHQHG,QIDFWWKHUH¶VQRWKLQJ

6 in the law that requires us to prove exactly the manner in

7 which it happened. What we have to prove beyond a reasonable

8 doubt is that the defendant knowingly killed another after

9 deliberation, and so Mr. Schwartz may complain, and I get it

10 that, you know, would like to know a more specific time, but

11 WKHUH¶VQRWKLQJLQWKHODZWKDWUHTXLUHVWKH6WDWHWRSURYLGH

12 PRUHWKDQWKH\FDQDQGWKDWGRHVQ¶WKDYHDQ\WKLQJWRGRZLWK

13 probable cause.

14 MR. SCHWARTZ: Your Honor?

15 THE COURT: Yes.

16 056&+:$57=:KLOHZH¶UHRQWKDWSRLQW,

17 disagree with Mr. Hicks' statement. The alibi instruction

18 says specifically that the State has the burden of proving

19 beyond a reasonable doubt the defendant was present at the

20 time and place the offense is alleged to have been committed.

21 :HGRQ¶WNQRZWKHWLPH7KLVLVGLUHFWO\IURPWKH0$,V

22 MR. HICKS: And if you look at the notes on USE,

23 it talks about when the time is not -- you come up with a

24 UDQJHRIWLPHLIWKHHYLGHQFHGRHVQ¶WSRLQWWRDVSHFLILF

25 time.
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
109

1 MR. SCHWARTZ: Not to belabor the point, but the

2 notes on USE say, where the evidence is sufficient to support

3 WKHJLYLQJRIDQDOLELLQVWUXFWLRQWKHGDWHWLPH,¶OO

4 UHLWHUDWH³WLPH´DQGSODFHPXVWEHVWDWHGZLWKVXIILFLHQW

5 detail and the verdict directing instruction to contravene

6 the alibi evidence.

7 ,W¶VDOOSODLQDVGD\,¶PQRWPDNLQJDQ\RI

8 WKHVHWKLQJVXS,¶PQRWPDNLQJXSWKH6XSUHPH&RXUWUXOH

9 DQG,¶PQRWPDNLQJXSWKHDOLELLQVWUXFWLRQ

10 7+(&2857,I,¶PKHDULQJ\RXFRUUHFWO\0U

11 Schwartz, then is your statement that the timeframe from 7:20

12 to 9:41, thereabouts, is not adequate to satisfy the word

13 "time". So the instruction says you have to give the time.

14 7KH\¶UHJLYLQJDWLPHIUDPH,W¶VDFRXSOHRIKRXUVWZRDQG

15 a half hours.

16 056&+:$57=-XGJHLW¶VQRWHYHQFORVHHQRXJK

17 to give sufficient time. We know she was alive at

18 approximately 7:04, because she is at least allegedly on a

19 phone call at that point in time. The next thing we know is

20 she is found by Mr. Faria at, I think 9:40.

21 The range here, again, if the two of them were

22 WRJHWKHUDWWKDWUDQJHLQWLPHLQDQRUPDOFDVHDQGWKH\¶UH

23 sitting at home and then he calls it in, that time range may

24 be sufficient.

25 In this particular instance with the defense that

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
110

1 ZH¶YHIXUQLVKHGWRWKH6WDWHDORQJZLWKWKHSDWKRORJLFDO

2 evidence and statements from EMS personnel and fire

3 personnel, we have a right to know what the allegation is.

4 Mr. Faria has a right to know what the

5 allegation is in order to sufficiently prepare a defense.

6 THE COURT: The Court will take that motion

7 under advisement, and you have indicated that next you wanted

8 to argue the Bond Reduction Motion?

9 MR. SCHWARTZ: Judge, yes, it's twofold.

10 Number 1, it's based upon the strength of the case, which

11 we've discussed at length and it's sort of my point here.

12 We don't know when the State is alleging this

13 has occurred. He is presumed innocent and, as we sit here

14 today, the State can't do, the Court's said, can you tell me

15 when this happened? And the State can't do it.

16 You asked if they would be making up a time and

17 they would be making up a time because they don't know. I

18 have arguments as to why they don't know. And that goes to

19 the strength of the case and, again, the Court has been made

20 aware of all of the factors involved.

21 Second, this case has been going on now for 20

22 months. We were set for trial this week. The cell site data

23 confirming his whereabouts, or at least confirming the

24 whereabouts of the phone, were provided to us approximately a

25 week and a half ago.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
111

1 I don't necessarily think this was intentional.

2 Actually, I don't think it was intentional at all. However,

3 the fact is they were provided to us a week and a half ago

4 when we filed the Motion to Compel those specific records in

5 March of this year.

6 Given all of those factors, given the case

7 itself, we would ask the Court to consider a bond of

8 $100,000. Secured.

9 THE COURT: State?

10 MS. ASKEY: Yes, Judge. The State would renew

11 all of its previous arguments and remind the Court that with

12 regard to the information that Mr. Schwartz is alleging that

13 he received a week and a half ago, which is accurate, that

14 information was requested on behalf of the defendant and the

15 State essentially went out of its way to procure those

16 documents and get them for the defense.

17 They could have just as easily subpoenaed the

18 records themselves. We didn't need them. We wouldn't have

19 requested them otherwise. So it wasn't something that was

20 automatically in our file. It was something they requested.

21 We went out on a limb and got.

22 So this last request for a continuance, while I

23 understand was at the hands of the defense, obviously, the

24 nature of the crime, the State would be extremely reluctant

25 to agree to any sort of bond reduction.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
112

1 The family is here today, Judge, and they are

2 also very apprehensive about that. I believe the victim's

3 sister would like to share something with the Court, if the

4 Court would so indulge.

5 THE COURT: Was she going to just make a

6 statement or were you going to voir dire her?

7 THE WITNESS: I have a plea.

8 MS. ASKEY: She has a statement she would like

9 to read.

10 THE COURT: Is there any objection by the

11 defense as to that?

12 MR. SCHWARTZ: Judge, if I can respond to Ms.

13 Askey?

14 THE COURT: Yes.

15 MR. SCHWARTZ: We've requested those records

16 that she's speaking of. Once we got them and showed on the

17 records they were turned over to the Lincoln County Sheriff's

18 Department on December 30, 2011, they support his alibi.

19 There's an ongoing duty to provide any

20 exculpatory or inculpatory evidence to the defense. It's

21 part and parcel of the discovery process.

22 We got those records, they were turned over in

23 2011, December 30th. We got them June of 2013. At the very

24 least, they support what he told the police the evening he

25 was arrested and they support what all of the alibi witnesses
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
113

1 have said to the police as far as his whereabouts that

2 evening.

3 MS. ASKEY: Judge, for clarification. There

4 were, I don't know how many, six or eight or ten pages of the

5 totality of the documents that were provided previously and,

6 for whatever reason, you know, it's our position that they

7 were all sent. They didn't have them and I don't have any

8 reason to believe that they are just telling me they didn't

9 have them.

10 Nonetheless, the rest of the documents were in

11 their possession. It was these few pages that were behind

12 some blank pages that they didn't receive, evidently. So

13 it's not as though there's this large ream of documents

14 sitting in my office for a year and a half. That's not at

15 all what happened.

16 It was a few pages that we either were

17 miscommunicating or I wasn't understanding or whatever the

18 case may be, but it wasn't like they weren't ever provided

19 initially. Those few attached to that set didn't get there

20 or they didn't receive them or they were in who knows where.

21 But nonetheless, they were provided when we received them

22 evidently minus a few pages.

23 THE COURT: Anything further, Mr. Schwartz?

24 MR. SCHWARTZ: No, Your Honor.

25 THE COURT: Okay.

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1 Do you want to have your lady come up.

2 MS. ASKEY: You'll have to come up and be

3 sworn.

4 Judge, do you prefer she speak from there?

5 MARY RODGERS,

6 a witness, having been duly sworn by the Circuit Judge to

7 tell the truth, the whole truth and nothing but the truth, so

8 help you God, under the pain and penalty of the Perjury Laws

9 of Missouri, testifies as follows:

10 THE COURT: You can have a seat at the witness

11 stand. She's the one taking down what you are saying. So

12 it's fine if you feel more comfortable standing there.

13 THE WITNESS: Okay.

14 MS. ASKEY: Do you want me to stand with you?

15 THE WITNESS: Yes, I'm nervous.

16 MS. ASKEY: Okay. Just let the Court know what

17 you would like Judge Mennemeyer to know.

18 THE WITNESS: Thank for allowing me to speak

19 because this is the first time we've been able to speak on

20 behalf of my sister.

21 I am Mary, Betsy's oldest sister. Betsy was

22 taken from us in the most brutal of ways. When I was first

23 notified of her death, I just assumed the cancer took her.

24 Then to find out she died, how she died was horrifying.

25 I cannot tell you how many times my family and

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 I have talked about it and the pain we feel knowing the

2 suffering she must have felt in those final moments.

3 Betsy lived every day to the fullest and was so

4 full of life, even undergoing chemo and radiation for the

5 cancer, the nurses at the hospital would argue over whose

6 turn it was to give Betsy the treatment.

7 Two trees have been planted in her honor at two

8 of the tennis clubs she was involved in. This is how much

9 she was admired and loved.

10 The last year of her life was difficult for her

11 because of the cancer, but you would have never known it

12 looking at her. She always held her head high.

13 At Christmas that year, she was definitely not

14 herself. She had found out two months prior that she had

15 Stage IV and would be finding out on December 29th her fate

16 with the cancer.

17 We assumed she was having a hard time with the

18 cancer and it was finally taking it's toll on her.

19 Apparently that was only part of her unusual quietness. Over

20 the 12 years we have known Russ, we have seen his temper.

21 We have all heard him on different occasions

22 yell and curse at Betsy. Several years ago, my stepdaughter

23 was spending the night at their house and she called me at

24 work saying he was yelling and cussing at them, so I

25 immediately went there.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 When I got there, he was yelling at my sister

2 and then he pushed her and I called the police because I was

3 afraid of what might happen next. He was in a terrible

4 state, and I remember that Betsy was being so calm trying to

5 calm him. I was so proud of her. They did separate for a

6 while after that.

7 As a family, we fully believe Russ had the

8 built up anger and the motive to kill Betsy. We ask that you

9 consider this and do not reduce his bond or place him on

10 house arrest.

11 My sister was stabbed 55 times and to let a

12 person out of jail who has been arrested for committing such

13 a crime, even if he has not been convicted yet, is very

14 scary. What else could he be capable of?

15 Our family, and especially the children in our

16 family, live in fear of him getting out of jail. We need to

17 know that he is in jail until the trial. We simply will not

18 feel safe if he is out of prison.

19 We want justice for Betsy because she did not

20 deserve to die this horrific way. I am sorry, Your Honor,

21 but we are really afraid and we don't feel he deserves to be

22 out of jail. Thank you for listening.

23 THE COURT: Mr. Schwartz, anything further?

24 MR. SCHWARTZ: Judge, I would say to the Court

25 and to Betsy Faria's family, we concur with their feelings.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 I don't wish to insult anybody here.

2 Based on the totality of the circumstances,

3 personally, I think the person who committed this is out in

4 society right now, not locked up in Lincoln County jail.

5 Given the totality of the circumstances, given

6 everything that's happened in this case and the strength,

7 whether the State decides to say the alibi is wrong and all

8 of these four people are lying about his cell phone and that

9 this was a thought out plan or simply that the EMS Supervisor

10 and the Fire Chief or Fire Captain and the Pathologist are

11 wrong, they are going to have to allege one way or the other.

12 Either way, none of the factors make any sense.

13 None of the factors point to Russ Faria. Not any of them. I

14 would ask that the Court consider all of those things in

15 determining the level of bond here, with all due respect to

16 Betsy Faria's family.

17 THE COURT: Thank you.

18 Anything further by the State?

19 MR. HICKS: No, Your Honor.

20 THE COURT: The Court will take that motion

21 under advisement, as well. And what motion would you like to

22 take up next?

23 MR. SCHWARTZ: Motion for a Frye hearing, Your

24 Honor, or to exclude testimony regarding the Luminol.

25 THE COURT: Defendant's Motion in Limine to

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1 Exclude Testimony --

2 MR. HICKS: And If I could interject and maybe

3 move this along. Okay. Go ahead.

4 MR. SCHWARTZ: Judge, we filed a Motion in

5 Limine to Exclude Testimony regarding the Luminol or Bluestar

6 Test or the Alternative for a Frye Hearing.

7 In discussing this motion last week with Mr.

8 Hicks prior to filing it, I believe he said just it's the

9 State's intention was to abide by what we have alleged in our

10 motion, so I think this point may be moot at this point in

11 time.

12 MR. HICKS: That's correct, Your Honor. The

13 State's not going to argue that any of this testing that was

14 done indicates that there was the presence of blood.

15 I believe that -- so I don't think there's a

16 need for a Frye Hearing. I think we are going to present

17 evidence that this type of testing was done, but we're going

18 to also bring out through the expert that one of the reasons

19 that it can react is because of cleaning agents. So that's

20 what we're going to talk about, not blood.

21 THE COURT: Does that satisfy this motion then?

22 MR. SCHWARTZ: Yes, Your Honor.

23 THE COURT: So that the Court is clear, it

24 sounds to me that the State is saying that they are not

25 objecting to the defendant's motion as written and they are

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
119

1 not requesting a Frye Hearing?

2 Mr. HICKS: That's correct.

3 THE COURT: Okay. With that being said, the

4 Court is going to grant defendant's Motion in Limine by

5 consent. And which one would you like to take next?

6 MR. SCHWARTZ: Your Honor, what I would

7 suggest, if the State is okay with it, is taking all three at

8 the same time. And simply what these do is go into a

9 significant amount of alleged bad acts and hearsay statements

10 made specifically by one particular person who I anticipate

11 will be a witness in this case.

12 As we've discussed in the past, I don't know

13 that the Court can make a specific ruling as to this point in

14 time regarding any of those statements.

15 I would specifically ask, though, if the State

16 does intend to get into some prior allegations unsupported,

17 made by this particular witness, specifically referring to

18 Pam Hupp, that we be notified of it prior to the introduction

19 of evidence, and that these motions are held in abeyance

20 until that time.

21 THE COURT: State, any objection to that?

22 MR. HICKS: I think it's a good idea. No

23 objection.

24 THE COURT: Would counsel be able to, prior to

25 leaving today, write up just a memo saying what you said so

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 that it's clear? I just wouldn't want to write that

2 incorrectly and, not -- I think I heard what you both said.

3 That way you can agree to agree that it's how you said it.

4 MR. HICKS: Okay.

5 MR. SCHWARTZ: Okay.

6 THE COURT: Then you also have the Motion to

7 Endorse Witnesses. Was there any objection?

8 MR. HICKS: Not by the State, Your Honor.

9 THE COURT: Therefore, the defendant's second

10 Amended Motion to Endorse Witnesses is also granted.

11 Is there anything that we would be able to do

12 as far as today to begin going over the jury instructions or

13 would that be better suited for a later point in time?

14 MR. SCHWARTZ: Judge, I don't know how to

15 object to the jury instructions if I don't know what they are

16 going to say, if I don't know what the specific allegation

17 is.

18 So depending upon what the Court's ruling is on

19 the Bill of Particulars, I may have an objection at that

20 point in time.

21 THE COURT: Okay.

22 MR. SCHWARTZ: The only thing I would ask of

23 the Court, and the Court has in the past been quick in its

24 rulings, is we're going to need to do some additional

25 discovery as far as potential experts depending upon what the

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Court rules on the Bill of Particulars.

2 So I don't want to have to delay anything.

3 THE COURT: Okay.

4 MR. HICKS: And Your Honor, I would be happy

5 to, again, I wish I had done that already but prepared the

6 verdict director in the proper form with taking into the

7 alibi defense consideration and present to the Court what we

8 would propose based upon what we know now. I would be happy

9 to do that.

10 I think it's going to have the timeframe we

11 talked about, but I would be happy to do that so they can

12 have a copy and look at it and look at the notes on use.

13 THE COURT: Is that something we can do today

14 or is that going to take a long time?

15 MR. HICKS: We can probably do that pretty

16 quickly. I don't think that would be difficult if you wanted

17 me to look at it.

18 MR. SCHWARTZ: What I'm assuming Mr. Hicks is

19 proposing is including a verdict director that includes the

20 time 7:40 to 9:40 p.m -- or 7:20 to 9:40 p.m.

21 I would absolutely object to that language.

22 I think what I've argued already, I think it precludes that

23 language.

24 MR. HICKS: I understand what Mr. Schwartz is

25 saying here but, again, trying to think through this. Let's

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 assume there wasn't an alibi, because that's an affirmative

2 defense. Let's just assume there wasn't an alibi and they

3 were asking for a specific time. We would still be talking

4 about the same time.

5 Let's assume that we didn't believe their alibi

6 at all, okay? Let's just say that we're just going to

7 discount it and we're going to say this happened 15 minutes

8 at the end, then, because I guess that's -- it sounds like to

9 me that's what they are trying to get us to do because if we

10 were to do that, then the alibi witness becomes a moot point.

11 Who cares?

12 We believe them and they believe them and we're

13 just talking about the ten or 15 minute period at the very

14 end, so the alibi is not even at issue here. We wouldn't

15 even be putting that in there.

16 And if they are saying, no, we're not going to

17 argue at all that it happened at the end and that we're just

18 going to try to bust the alibi up or make it not believable,

19 then we're still stuck with that same time period. I don't

20 know how to -- that we're talking about. I don't know.

21 MR. SCHWARTZ: Judge, exactly what -- I didn't

22 mean to interrupt.

23 MR. HICKS: I guess, if there's going to be,

24 what I'm getting as I'm thinking through this, if they are

25 going to present an alibi and this is going to be part of

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
123

1 their defense, and we've got to then prepare an instruction

2 based upon that affirmative defense, if there's an alibi, the

3 timeframe is always going to be the same, 7:20 to 9:41.

4 If there's not an alibi, there is no timeframe.

5 It's just we don't have to put anything in there at all. So

6 I'm trying to figure out what is it that you are wanting,

7 7:20 to --

8 MR. SCHWARTZ: That's my argument for the Bill

9 of Particulars, Your Honor. Right there. That's exactly

10 what I'm wanting and if the State doesn't know when this

11 occurred, there's no case.

12 MR. HICKS: But that is --

13 MR. SCHWARTZ: We can't assume there is not an

14 alibi. There is an alibi. We've got cell site information

15 to confirm exactly where the cell phone was. We have

16 pathologic information to indicate, at the very least, she

17 was killed a couple hours earlier, two and a half hours

18 earlier.

19 We know there was a person with her a couple

20 hours earlier. We need to know what the State is alleging.

21 We can't assume there's not an alibi. There is a alibi, at

22 least for the three hours preceding -- well, from 6:00 to 9

23 o'clock.

24 So we have to know. I mean, it's -- what he's

25 saying, assume there's not an alibi. We can assume that

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
124

1 because there is an alibi if they are alleging it occurred at

2 a particular time.

3 If they are not alleging it occurred at a

4 particular time then the cell site data, in our estimation,

5 based upon what we've talked about with an expert, says he

6 couldn't have been home until approximately four minutes, at

7 the very earliest, prior to this occurring. Four minutes to

8 have stabbed 56 times, cleaned up his clothes, cleaned up the

9 floor and clean up everything else.

10 We think either is impossible. We need to know

11 when the allegation is. We think the law clearly provides

12 for that.

13 MR. HICKS: It sounds so me like they think

14 they have a great argument for both. I don't know why they

15 need it. Mr. Schwartz says we definitely have to give a

16 time.

17 Mr. Schwartz has tried all kinds of murder

18 cases and I'm sure, in his defense, he's defending cases

19 where the State did not know the exact time and have dealt

20 with broader time ranges than that.

21 I've tried cases that have dealt with days. We

22 think it happened between a certain amount of days but we

23 can't say specifically when.

24 So for Mr. Schwartz to sit here and say, hey,

25 the State has to be specific, we have to be specific if we

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
125

1 can be specific, but we don't have to -- we can't do what we

2 can't do.

3 So I mean, I think that's what we get back to.

4 MS. ASKEY: And, Judge, if I may. If we were a

5 Medical Examiner County wherein we actually had someone

6 saying this is the time of death that had some sort of

7 credentials behind their name, that may be a little

8 different. But we're not that kind of county.

9 All we know is that she was alive at this time

10 and she was dead at this time. We don't have a medical

11 examiner that will narrow in and say at 8:27 precisely this

12 is when the time of death was because that's not the county

13 we live in.

14 We live in a coroner county. That's the way it

15 is. We can't be any more specific than what we've been.

16 THE COURT: And the Court has access to

17 resources to just -- I'll do some research on that as well

18 and see.

19 MR. SCHWARTZ: What we do have is a Fire

20 Captain and EMS Supervisor saying when they arrived at 9:51,

21 I believe, that -- I don't wish to get too graphic but the

22 body was cold and it was stiff and the blood was matted and

23 dried.

24 To say they can't say-- and Mr. Hicks said I've

25 tried many, many cases. I have tried many cases. As far as

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
126

1 time, if there's a witness, they say time. If there's an

2 alibi, they have the burden of proving that that alibi didn't

3 exist and they have to give notice. We don't have that. If

4 they say -- the Court has the resources to look this up, then

5 that's what we ask the Court to do.

6 THE COURT: The Court will take this matter

7 under advisement, as well.

8 Is there anything further, then? It looks like

9 there's not really anything at this point to do further on

10 the jury instructions. Obviously we have to have a final

11 conference on that in any event after the evidence. So I'm

12 thinking through if there's anything else we can take up

13 today.

14 I don't have anything I believe that's not

15 addressed, at least in my file.

16 MR. SCHWARTZ: Not at this point in time, Your

17 Honor.

18 THE COURT: State?

19 MR. HICKS: Not that I know of, Judge.

20 THE COURT: Thank you.

21 If Counsel, then, could please work together to

22 draft what you stated on the first through third Motions in

23 Limine.

24 I just don't want to take a stab at drafting

25 that when it seems like you are on the same page. If you
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
127

1 could please do that before you leave and then I'll take a

2 look at that.

3 (Court is in recess.)

5 ***

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 (The following proceedings were taken on

2 October 28, 2013, in the case of State vs. Russell Faria, in

3 the County of Lincoln, with Judge Chris Kunza Mennemeyer

4 presiding.

5 Present are Mr. Richard Hicks and Ms. Leah

6 Askey for the State and Mr. Joel Schwartz and Mr. Nathan

7 Swanson for the Defendant.)

8 THE COURT: We'll go on the record on

9 12L6-CR001312 on for Hearing on defendant's third amended

10 Motion to Endorse Witnesses and defendant's Motion to

11 Reconsider Prior Ruling.

12 Does the State have any objection to the

13 defendant's third amended Motion to Endorse Additional

14 Witnesses?

15 MS. ASKEY: No, Judge.

16 THE COURT: That will be granted.

17 And, defendant, if you want to proceed on your

18 Motion to Reconsider.

19 MR. SCHWARTZ: Yes. Should we bring the

20 defendant out?

21 THE COURT: It's up to you.

22 MR. SCHWARTZ: Yes, I'd like him out here so

23 he's here. It will just take a second. I know he's back

24 there.

25 (Defendant enters the Courtroom.)

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 MR. SCHWARTZ: Thank you.

2 THE COURT: You may proceed when you are ready.

3 MR. SCHWARTZ: Thank you, Judge. We recently

4 filed a Motion to Reconsider the Court's Prior Ruling and the

5 ruling we're referring to is the State filed a Motion to

6 Preclude us from getting into evidence regarding another

7 individual, a witness in this case by the name of Pamela

8 Hupp, H-U-P-P.

9 At the time, the State argued that there was an

10 issue regarding time of death and they seemed to insinuate or

11 state explicitly at the time that they believed my client Mr.

12 Faria committed this offense at approximately 9:40 when he

13 arrived home just prior to calling EMS.

14 They also argued, if the Court recalls, and it

15 wasn't on the record, there was a condition called cadaver

16 spasms that could account for EMS and the fire department

17 saying her body was stiff. While that is, that condition

18 does exist, it is an incredibly rare condition.

19 Since that time, we've been supplied with

20 additional information regarding whereabouts of individuals.

21 I think my motion clearly lays out what the case law is and

22 the State argued there was no direct connection to Ms. Hupp.

23 I disagreed with the State up to the time death.

24 Therefore, because I disagreed with the State's

25 assessment of the facts, I disagree with the Court's ruling.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Be that as it may, the Court did rule. Meaning, Russell

2 Faria's whereabouts were accounted for from approximately

3 6:00 p.m. when he left his house to approximately

4 9:40-something p.m. when he arrived home and called EMS.

5 They're accounted for by videotape at various

6 stores and his cell phone is, comes back to various towers

7 where there was some form of action of either receiving an

8 e-mail, a voicemail or making a phone call.

9 The difference now is we were supplied with

10 cell phone records showing his whereabouts, which is exactly

11 what he stated the night he was arrested way down in St.

12 Louis County approximately --

13 MR. HICKS: St. Charles County.

14 MR. SCHWARTZ: -- approximately 35, 40 minutes

15 away from the house in Lincoln County.

16 There was a motion then to file a Bill of

17 Particulars, which I believe it's the State's duty to notify

18 us the time once we filed the alibi.

19 During the course of the hearing, the State

20 said that they can't do it and I highlighted a couple of

21 portions of that hearing where Mr. Hicks stated, "Mr.

22 Schwartz is asking us to provide a specific time. We can't

23 do it." And he goes onto explain a little bit more, and the

24 Court says to Mr. Hicks, "It sounds like the State is saying

25 if they were made to do this they would literally be making

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131

1 it up." The response by Mr. Hicks was, "Exactly."

2 They then said, we don't have to tell the

3 Court, we don't have to tell the defendant when this

4 happened, we can merely is say it happened between these two

5 times. They specifically said approximately 7:00-something

6 to 9:40 when he arrived home.

7 What we can specifically show is that the last

8 call that the decedent received allegedly was from her

9 daughter at approximately 7 o'clock. She said she was with

10 Ms. Hupp at the time to her daughter. There was a call

11 allegedly from Ms. Hupp to her husband Mark Hupp and the

12 decedent, Mrs. Faria, got on the phone.

13 Now we've never heard the call because it

14 wasn't preserved, but she allegedly says, "Happy New Year,

15 Merry Christmas" to Mark Hupp, Pam Hupp's husband. That call

16 happens at 7:04. There's been testimony that Pam Hupp then

17 went inside the house, was there in the house for a specific

18 period of time prior to leaving.

19 All that information comes from one person and

20 one person only and that's Pam Hupp. She was clearly with

21 the victim at the time the State has created these parameters

22 this occurred.

23 The other additional piece of information

24 received that was that the State provided us with the cell

25 phone records of Pam Hupp. We intend to present evidence

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1 showing that at 7:04, when she stated she was at the victim's

2 house, is the same cell tower and quadrant, which is a very

3 specific limited area she was still in when she made that

4 call allegedly after she claimed to have left victim's home

5 at 7:27, which is during the time that the State has gone on

6 record saying that they believe this occurred.

7 Their motion essentially was there was no

8 direct evidence tying Ms. Hupp to this and shoes or slippers

9 with Betsy Faria's blood on them is direct evidence to Russ

10 Faria.

11 I would argue the complete controversy that

12 there is no direct evidence to Russ Faria and there is

13 absolutely incontrovertible evidence to Pam Hupp.

14 All of the case law says specifically regarding

15 those, and I've cited them in here, is if you can show that a

16 person is with the victim at or near the time of death, that

17 in and of itself is direct evidence and to preclude us from

18 cross-examining her regarding motive, opportunity and the

19 several inconsistencies she's given as to where she was, when

20 she was, why she left, why she made that phone call, would

21 preclude us from getting into what the law allows.

22 THE COURT: Ms. Askey?

23 MS. ASKEY: We would -- obviously, the Court's

24 aware of the State's argument initially when the motion was

25 filed and we stand consistent on that. Just the mere motive

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1 and opportunity is basically what Mr. Schwartz is arguing and

2 it's what he argues throughout his motion to reconsider.

3 If you turn your attention to subsection 9,

4 whatever page that is. It would be Page 4 of his motion,

5 evidence that another had opportunity or motive is

6 inadmissible if there was, and also is -- is admissible if

7 there is also proof that the other committed some act

8 directly connecting him with the crime.

9 The point here, and the point that the State

10 has always argued, is there's no direct evidence connecting

11 Hupp. We use all kinds of State or case law, State versus

12 Wynn, State versus Cameron, State versus Cheney, all of which

13 say that just basically being there, just having motive, just

14 having opportunity, just having inconsistent statements,

15 which is the State versus Cheney, isn't enough. That's not

16 direct evidence.

17 The main case that the State, you know, the

18 most recent case would be State versus Bowman wherein, that

19 was a 2011 case, 337 SW 3d 679, and in Bowman, the defendant

20 wanted to blame another man for the murder and offered the

21 following to support: That the other man was serving a life

22 sentence for murdering another young woman in the same time

23 period.

24 The other man matched the description given by

25 the witness. He was fired from his job that same day that
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1 the Bowman victim went missing. He was seen at the park,

2 same place that the victim went missing or was murdered and

3 the other man's girlfriend was missing a knife similar to the

4 weapon used in killing the victim in the Bowman case.

5 He had smoked, he smokes and uses matches to

6 light his cigarettes. Matches were found next to the victim

7 and he liked to collect keys. The victim in the Bowman case

8 was missing her key ring.

9 The other man had asked the victim in Bowman to

10 go out with him many times prior, so he had a connection to

11 her and when she was interviewed in prison he denied ever

12 asking her out so he had inconsistent statements.

13 The Trial Court in Bowman denied the

14 defendant's request to be able to present this evidence

15 because it wasn't direct evidence. It was mere opportunity

16 in that case. These the most recent case on point, but back

17 when we argued this the first time, we talked about State

18 versus Schaal, which is S-C-H-A-A-L, and in order for the

19 defense to employ some other person did it, then they had to

20 show direct evidence and those were specific items connecting

21 them.

22 There has never been any evidence that Pam

23 Hupp's DNA is anywhere within the evidence that was seized

24 from the scene of the crime. The State in State versus

25 Butler says evidence which has no other effect than to cast

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1 bare suspicion on another is not admissible.

2 We go back to Cheney, and I know one of the

3 things the defense argues that is Hupp had some inconsistent

4 statements, at least that's what he's delineated in his

5 motion.

6 In State versus Cheney, the Court held that

7 false and inconsistent statements are not, "an act directly

8 connecting a person to a crime."

9 Those things in general, Judge, just don't lend

10 itself to get over the hurdle that there's direct evidence.

11 He's presented that there was, that potentially there was

12 motive. We would say there wasn't motive but there

13 definitely was opportunity, but that's not enough.

14 You can't just go out and say, well, this

15 person was around her and this person was around her. It's

16 not enough. Every one of those cases is pretty consistent.

17 Even the defense cases that he's cited, we feel are fairly in

18 line with our argument.

19 We would also point out, Judge, that the State

20 has been consistent with it's time that it happened somewhere

21 between the 7 o'clock hour and 9:40 when the 9-1-1 call was

22 made. So this additional information isn't additional

23 information. It's information that the defense had early on.

24 It's information that we've all talked about with regard to

25 the cell phone towers and the fact she made a phone call at
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1 7:04 and again at 7:27 off the same quadrant.

2 We don't know how many miles encompasses a

3 quadrant and, even if we knew it was only ten, then the State

4 wouldn't argue that was necessarily inconsistent because

5 she's said she's left somewhere 20 minutes or so after she

6 got there, I think was the testimony.

7 The daughter started calling. She didn't get

8 an answer. Around the 7:20, the 7:25, 26, 27 hour, you know,

9 we don't know. She could have been in the bathroom for

10 crying out loud.

11 So the point is that information is not

12 additional information. It's not new from the Court's

13 previous ruling and it's not something that in any way

14 creates some direct evidence to Pam Hupp.

15 THE COURT: Mr. Schwartz?

16 MR. SCHWARTZ: It is different evidence. We

17 have the cell phone towers now showing where Pam Hupp was.

18 That's No. 1.

19 No. 2, the State's theory. We never believed

20 for one moment that the State was attempting to say this

21 happened at 7:04 to 7:27. That's been our belief for the

22 whole time based on what the daughter said.

23 She called her mother and said, I'm going to

24 the cell phone store. It's your account. I'm going to need

25 you to approve what I'm doing. She then -- so please answer.

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1 At 7:21, 7:26 and 7:30, she called her mother

2 to no answer and there was no return call after that.

3 The cases that's we cite, the Bowman case she's

4 referring to specifically, there's no witness that can place

5 the victim or the alternate perpetrator at the scene with the

6 victim.

7 In this case, Pam Hupp is clearly at the scene

8 with the victim. That's what those cases say. Essentially

9 when you bring in an alternate perpetrator, all the case law

10 talks about -- primary example is someone is murdered and

11 there's a child molester that lives three doors down. That

12 person is not testifying.

13 In this particular case, the person is

14 testifying. We have an opportunity. We have the right to go

15 into where she was, her motive, her opportunity, her

16 inconsistencies. That's all up to a jury to decide.

17 It doesn't affect the admissibility of it at

18 all. It's clearly probative. It's not prejudicial. It's

19 incredibly probative as to who may or may not have done this.

20 There are so many other factors that go into

21 Ms. Hupp's reason for being there. For example, one of the

22 things we intend to get into is there's documented evidence

23 by either cell phone, by text or e-mail. This is just one

24 example.

25 That day, Pam Hupp contacted Betsy Faria. Said

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1 to Betsy, I'll take you to chemo. Betsy e-mailed her back

2 and said, no, that's okay. My friend Bobbi Wann -- my

3 mother's friend is in town. We're going to spend some

4 one-on-one time together.

5 Our theory -- Pam Hupp shows up at chemo and

6 then took her home later after she already had a ride to be

7 taken home, which is incredibly inconvenient for Pam Hupp to

8 come up from St. Louis County and bring Pam Hupp home.

9 Those are the factors that we -- I understand

10 based on the earlier Court's ruling that we are precluded

11 from getting into, and I think those are highly probative as

12 to what went on that night and who she was with and, more

13 specifically, the State has said during the time of this

14 event, this is the time the Court refused to order them to

15 give a Bill of Particulars.

16 This is the time that it occurred. We can show

17 this person was with her at that time. Or at least up to

18 that time. The only person that can refute that she wasn't

19 there at that time, the only person is Pam Hupp herself. She

20 can say, I left at this point in time. She's already

21 testified to the converse and we can show where she was based

22 -- at least where her cell phone was when she was making a

23 phone call.

24 THE COURT: Ms. Askey?

25 MS. ASKEY: Judge, in reverse order, and I

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1 appreciate the defense bringing up the fact that we don't

2 necessarily know where he Pam Hupp was or, for that matter,

3 where Russ Faria was. We know where his cell phone was, and

4 that's been our argument all along.

5 Her cell phone was -- and we have no -- we're

6 not contradicting the fact that we believe Pam, along with

7 hers cell phone, was in the Lincoln County area between 7:04

8 and 7:27. That's always been our contention. Now do we

9 believe that Russ Faria was always in possession of his cell

10 phone? That remains to be seen, but the cell phone certainly

11 is hitting off of towers for whatever reason on both parts.

12 Pam Hupp's was where she said she was going,

13 that she's been all along. I dropped her off. She made a

14 phone call. I left. I made a phone call.

15 With regard to the case that's he's saying that

16 these people aren't called to testify at trial, I would draw

17 the Court's attention to State versus Schaal, S-C-H-A-A-L,

18 which was that argument was used in a State's case, which is

19 very similar to this one, State versus Blurton and that was

20 out of Clay County, Missouri, and the Court there upheld the

21 Schaal verdict as well at Butler verdict or ruling rather.

22 Additionally, the cases that the defense is

23 citing with regard to these inconsistent statements, those

24 are inconsistent statements of the victim. Obviously the

25 victim isn't here to testify. So that's distinguishable from

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1 this case.

2 What the defense is arguing is that any witness

3 essentially that the State puts up there, they have the

4 opportunity, then, to create some doubt that that witness may

5 have had something to do with the death then totally

6 prejudicing the jury.

7 That's the most -- I mean, that would put an

8 undue burden on the State. It's clearly more prejudicial

9 than it is probative with that regard and it would allow them

10 to kind of go on a witch hunt so that anybody we put up there

11 they could say, well, where were you? What were you doing?

12 I thought you were outside or you spent the day with her at

13 chemo and then blah, blah, blah. Whatever the case may be.

14 They would allow them the opportunity to go

15 into those particular things which are irrelevant and not

16 admissible because, as every case that the State has cited

17 and the majority of those that the defense has cited, mere

18 motive an opportunity is not enough. They have to then show

19 that there's direct evidence and direct evidence is not the

20 fact that they are in the area. It's not the fact that they

21 had any inconsistent statements. It's not the fact that they

22 stood outside the house. That's not direct evidence. There

23 has to be direct evidence connecting her to the victim and

24 there isn't that.

25 THE COURT: Mr. Schwartz, what is your claim as

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1 to specifically what the direct evidence is?

2 MR. SCHWARTZ: She's there with her at the time

3 the State says this occurs, and as far as inconsistencies

4 like the phone call, the State has said there's not -- the

5 first statement that Pam Hupp made to the police when they

6 asked her where she was when she made that phone call or why

7 she called her, she said, I called her to let her know I got

8 home safely. Then they pushed her and said, well, you

9 couldn't have been home yet and she changed it like four

10 times.

11 So all of those factors -- the fact, I think

12 the fact alone that she is there and she's a witness creates

13 the direct link that we needed.

14 THE COURT: So there's not a dispute between

15 the parties as to what we're arguing over. The dispute is

16 your are saying that's direct evidence and you are saying

17 it's not?

18 MS. ASKEY: Right.

19 MR. SCHWARTZ: I say it's absolutely direct

20 evidence.

21 I might also add I agree with what Leah is

22 saying regarding every other witness. I can't just say, what

23 were you doing and create some sort of doubt they were

24 involved. Number 1, I can't do it. Number 2, I would look

25 like an idiot.
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1 MS. ASKEY: That's what I'm trying to prevent.

2 MR. SCHWARTZ: I really appreciate her concern.

3 THE COURT: And I'm actually probably going to

4 literally sit here and look at I think some of the case law I

5 have and I'm going to look it up, so I don't know how long or

6 short that's going to be but if you guys want to sit here and

7 hang out, that's fine, but that's what I'm going to do.

8 MS. ASKEY: Will you make a ruling on it later?

9 THE COURT: Uh-huh or in five minutes if it

10 takes me five minutes. I kept my case law. I think I have

11 the case law plus I have Wes Law on here. If I go upstairs,

12 I'll get interrupted. So I'm going sit here and get this

13 done before I do any other task.

14 For the record, the Court takes the matter

15 under advisement.

16 Court is in recess.

17

18 ***

19

20

21

22

23

24

25
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1 (Voir Dire of the jury was taken on

2 November 15, 2013, 1st day of the Jury Trial with Judge Chris

3 Kunza Mennemeyer, but not requested to be transcribed in this

4 appeal.)

5 (State vs. Russell Faria taken on November 18,

6 2013, Day 2, in the Circuit Court of Lincoln County, with

7 Judge Chris Kunza Mennemeyer presiding, and Attorneys

8 Richard Hicks and Leah Askey for the State, and Attorneys

9 Joel Schwartz and Nathan Swanson for the Defendant.)

10 THE COURT: We are on the record, then, in

11 13L6-CR001312. State of Missouri versus Russell Faria. We

12 are going to take up motions prior to bringing the jury in

13 today.

14 It's about 9:50 on Monday, November 18, and I'm

15 not sure if the State has motions pending, but I know defense

16 does.

17 MR. SWANSON: I think the defense just has

18 motions pending.

19 MR. HICKS: Yes, Your Honor.

20 THE COURT: If you could just let me know which

21 ones we're taking, I want to make sure I find the motions in

22 my file that we're looking at.

23 MR. SWANSON: We can start with -- sometime

24 ago, defendant filed what was referred to as defense's first

25 Motion in Limine to exclude hearsay statements and

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1 speculation.

2 THE COURT: Got it.

3 MR. SWANSON: And then, as of last Friday, we

4 also filed what was styled Supplemental Memorandum regarding

5 defense Motion in Limine, which touches on the same issues

6 but focuses on a different witness.

7 THE COURT: Do you have an extra copy of that?

8 I know I had it. I'm just not finding it quickly. Thank

9 you.

10 Which motion did you want to take up first?

11 MR. SWANSON: We can take both of those up at

12 the same time, Your Honor. They touch on the same issues.

13 THE COURT: Okay.

14 MR. SWANSON: Essentially, --

15 THE COURT: Go ahead. You may proceed.

16 MR. SWANSON: It's the defendant's belief that

17 the State was going to attempt to introduce testimony from

18 one of two witnesses, either Pamela Hupp or Bobbi Wann.

19 In the case of Bobbi Wann, the State has

20 already secured that testimony during a deposition to

21 preserve testimony taken on November 6th.

22 That testimony would include hearsay

23 statements. In fact, it would include some double hearsay

24 statements, hearsay within hearsay of, that Betsy Faria

25 allegedly said to either Ms. Wann or Ms. Hupp.

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1 Statements such as events involving her husband

2 in the past, the current state of the defendant's and the

3 victim's marriage, statements about the victim's plans for

4 the evening, plans for her life insurance policy in the

5 future, things the victim had done in the past, all of which

6 we would argue is hearsay and it's inadmissible at this time.

7 I can go into specifics about that. In our

8 Motion, we covered a lot of it in a high level of detail.

9 I'm not sure how you would like me to proceed on that issue

10 but all of that would be --

11 THE COURT: I can tell you that because this

12 was brought up briefly last week, I did look it up and I

13 couldn't find anything in Case Law that gives an exception

14 for the victim's state of mind unless they have put that at

15 issue, which would mean if they are claiming suicide,

16 self-defense or accident or something like that.

17 MR. SWANSON: Yes, Your Honor.

18 THE COURT: I'm not sure where the State stands

19 on that.

20 MR. HICKS: Sure. If we can go through the

21 allegations, I mean, the Motions they filed because a lot of

22 this we will agree to. There was just some that I think we

23 parsed out that I want to at least be able to give the Court

24 our argument.

25 THE COURT: Are you referring to the

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1 Supplemental?

2 MR. HICKS: I'm referring to the defendant's

3 first Motion in Limine to exclude hearsay statements and

4 speculation.

5 THE COURT: I think he's saying let's just go

6 through it one by one.

7 MR. SWANSON: All right.

8 MR. HICKS: On the -- number one, on the

9 allegations about life insurance policies, the State agrees

10 that any statements made by the victim, alleged victim, Betsy

11 Faria, prior to the 27th regarding insurance policies would

12 be hearsay and would not be attempting to go try to get that,

13 those statements in through a hearsay exception.

14 However, it's our understanding that on the

15 27th, the day she was murdered, that she did make statements

16 to both Pam Hupp and to Bobbi Wann about how she had started

17 the paperwork to change Russ Faria from being the Beneficiary

18 on one of these insurance policies, that she had left it at

19 home on the table and that it was her intent to go back that

20 night, among other things, to complete that paperwork but

21 also to tell Russ Faria that she was wanting to move to Lake

22 St. Louis, move away from Troy.

23 These statements, those statements right there,

24 the State would not be offering for the truth of the matter

25 asserted. If the Court felt that it was appropriate, I

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1 believe the jury could even be instructed in regards to that.

2 The issue here -- and I did find a case. It's

3 State versus Buckner. It is 810 S.W. 2d 354.

4 MR. SWANSON: Do you have a copy of that?

5 THE COURT: 810 S.W.2d 354?

6 MR. HICKS: Yes, 354. I can go make you a

7 copy, Nathan. I'm sorry. In it, and I'll just read from the

8 case, it says (as read), "In a criminal proceeding, testimony

9 that is not offered to prove the truth of the matter stated

10 in the conversation is not subject to the objection as

11 hearsay.

12 A declaration that indicates a present

13 intention to do a particular act in the immediate future

14 relevant to a fact in issue is admissible to prove that the

15 act was, in fact, performed.

16 A statement of that kind explains or gives

17 color to the conduct of the declarant and so is not received

18 as an assertion of the truth of the matter spoken but as a

19 verbal act. An utterance of that kind is not testimonial, so

20 the hearsay rule does not apply."

21 So basically what they are saying is that -- I

22 don't want to call it an exception to the hearsay rule

23 because we really are not offering it for the truth of the

24 matter asserted.

25 We're not offering it to argue to the jury for

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1 the truth that she was actually going to change her insurance

2 policy. We would be offering it to show that was her

3 immediate intent to go do this.

4 Why is it relevant? Well, because among the

5 other things she was going to do, she was going to let the

6 defendant know that she wanted to move out of Troy. That she

7 wanted to move to Lake St. Louis. She was concerned about

8 him being happy about it.

9 So this, what becomes relevant is the potential

10 motive that this would create in the defense. By telling the

11 defendant these things, would create a motive for him to

12 become angry, to react, which is what our theory is. That

13 when he was told these things, he became empassioned. He

14 became inflamed and this upset him.

15 So again, we're not offering to it show that

16 she was really going to do these things. It was that she was

17 making these statements just a mere hour or two before her

18 death that she was going up there to do this, and so I think

19 that's why, under this case, that it should, those particular

20 statements on the 27th should come in. That goes to the

21 insurance policies and, of course, --

22 MR. SWANSON: Your Honor, if I may respond to

23 that particular -- it's kind of an odd statement to say that

24 the statement could be admitted to show the person was

25 intending to do something and did, in fact, do it, but that's

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1 arguing the truth of the matter asserted. On top of which,

2 with regards to the insurance policy, that's already been

3 excluded based on State's only motion.

4 THE COURT: Let me clarify something before you

5 go on. Is your theory then, at some point that evening, she

6 actually did those things or the incident happened prior to

7 her being able to even do them?

8 Because it seems like, on some of the past

9 things from the Motions, it sounds like on one thing we're

10 arguing one way that she didn't know it was coming and then

11 this is almost making it sound like she did do certain things

12 and because of that, it happened. So that's where I guess --

13 MR. HICKS: Sure. Well, one, we're not talking

14 about the insurance policy that had already been changed

15 because we don't have any evidence that the defendant knew

16 that even occurred. We're not going into that with Pam Hupp.

17 We're talking about the other insurance policy

18 that she had, that was hers in her own name that she

19 controlled who the Beneficiary was.

20 So we don't know whether -- this is the thing.

21 They didn't -- when the police searched the house, they don't

22 find these documents, okay? So we don't know whether she,

23 when she got home, whether she had a chance to continue doing

24 that paperwork. When the defendant gets there, they discuss

25 it and she tells him all of these things that she plans to do
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1 and he finds out about the insurance policy.

2 All we're saying is that this was -- and I

3 understand what Nathan is saying here --

4 THE COURT: Is that someone's witness in the

5 Courtroom?

6 MS. ASKEY: No.

7 MR. HICKS: Again, we're not saying, we're not

8 trying to argue the truth that she was actually going to do

9 it. We're arguing that she made a statement immediately

10 beforehand that this was what she was going to go do and this

11 is exactly what this case talks about.

12 That it's a verbal act. It's not testimonial.

13 It's just to show what she was intending to go do, and if

14 she, in fact, did go do what she told her friends that she

15 was going to do, there is the logical inference that we would

16 want the jury to find from this is what the defendant was

17 told in this situation that evening inflamed him, upset him

18 and served as the motivation to stab her 55 times.

19 So again, we're not offering it for the truth.

20 We're not, we don't care if she was actually going to do it

21 or not, change the Beneficiary.

22 We don't care if she actually was going to move

23 from Troy or not. We don't care if she was going to live in

24 St. Louis or if she was concerned about him being upset about

25 it.
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1 What it shows is that this was her intent to

2 tell him those things that night, which then would serve as

3 his motivation to do this to her.

4 THE COURT: And I guess my question and I'm

5 looking at the Buckner case right now. It's saying "a

6 declaration" but it's saying "relevant to a fact in issue".

7 So is that a fact in issue as to whether or not

8 she actually changed her policy, because I'm not seeing how

9 that relates to the ultimate act that we're here for.

10 MR. HICKS: Well, if she was going to change

11 her policy, that is a fact that is at issue because that

12 would serve as motivation for him, to upset him.

13 I mean, if he's like, now wait a minute, not

14 only are you moving out but you are going to change me from

15 the Beneficiary? Motive is always -- facts that go to motive

16 are always an issue. So that -- now again, if this was --

17 I'm sorry.

18 MR. SWANSON: And if I may, the pivot Richard

19 just made here, he's saying, we don't care if she was going

20 to do it. We don't care if she did do it, but he wants to

21 argue that she did do it and that serves as motive.

22 So he is, in that case, arguing that it's an

23 event that occurred. He's arguing the truth of the matter

24 asserted.

25 With regards to what you were bringing up, the

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1 issue of whether or not it goes to an issue in question.

2 THE COURT: Right.

3 MR. SWANSON: State versus Post, 901 S.W. 2d

4 231.

5 THE COURT: Say that again. 901 S.W. 2d 231?

6 MR. SWANSON: Yes, Your Honor. State versus

7 Post states that (as read) "In the absence of knowledge by

8 the defendant of these intentions, they do not have relevancy

9 and were erroneously admitted."

10 In that case, the State tried to introduce

11 evidence of what the victim intended to do. The defendant,

12 similarly to here, argued that he had not been present at the

13 time of his wife's death.

14 The trial Court and Appellate Court of Appeals

15 said, no, the hearsay statements are things the defendant has

16 no idea about. They need to establish as a threshold he knew

17 of those intentions to use the declarant's state of mind to

18 show the defendant's motive.

19 He's right. Motive is always at issue but

20 until you cross that border, it can't be his motive.

21 MR. HICKS: In Post, though, we're talking

22 about a situation where the defendant -- there was no, they

23 were getting into acts that, yes, the defendant didn't know

24 the person was going -- that intended to commit.

25 That's not what we're arguing here. The acts

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1 that the victim is saying she is going to actually, that

2 she's intending to go do, directly involve the defendant.

3 She's saying, I'm going home. The defendant

4 even admits it during his statement that Betsy called me that

5 night. She said she was excited, wanted to talk to me about

6 something but wouldn't tell me what it was. Okay?

7 So clearly we can establish that it was her

8 intent that night that she was going to go tell him certain

9 things and these things -- and that she had said in the

10 context of I'm going to go finish that paperwork. I'm going

11 to tell him that I'm moving from Troy. I'm going to Lake St.

12 Louis. He may not want me to do it. He may not like it, but

13 that's what I'm going to do; and I think her statement to her

14 friends that this is what she was going to do gives color to

15 what happened when she got back at the house because it

16 directly involves the defendant.

17 It's not like she was intending to go do

18 something with someone else that the defendant didn't know

19 about. For instance, if she was going to say, I'm going to

20 go hook up with my lover who I'm having an affair with, blah

21 blah, and we have no evidence he knew this was going to

22 happen, then, yeah, that would be a problem; but here, her

23 statements directly go to what she was going to do with the

24 defendant.

25 MR. SWANSON: With regards to that, I would

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1 bring up the case of State versus Rios, 234 S.W. 3d 412. In

2 that case, the victim said that they were, that I'm not sure

3 of the gender off the top of my head, but that the victim was

4 going to go ask the defendant about his marriage.

5 Those statements were admitted but they were

6 admitted erroneously because there was no evidence that they

7 immediately did it.

8 MR. HICKS: Right. Rios was out of Columbia,

9 Missouri. I was in the Prosecutor's Office when this

10 happened. Rios was a male victim who was having an affair

11 with a male police officer.

12 The Court ruled there because his statement was

13 not about what he was immediately going to do in the future.

14 Rather, it was some sort of ambiguous, just out there, next

15 time I see him, I'm going to tell him this or I'm going to

16 ask him about this.

17 MR. SWANSON: That's no different from what --

18 MR. HICKS: That's distinguished from the case

19 I cited in Buckner and also this case, which is it was her

20 immediate intent on the 27th.

21 That's why, when after I read Rios, I said,

22 okay, these statements prior to the 27th we're hard-pressed

23 to get into them. I get it.

24 But on the 27th, when she talks about what her

25 immediate intentions were to go do, to me, that's how I

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1 distinguish that from Rios because the Court in Rios said,

2 hey, we don't know exactly when he was to go have this

3 confrontation with Mr. Rios.

4 MR. SWANSON: And confrontation is a good word

5 to bring up because, even to the extent these possibly aren't

6 hearsay, and they are, this has a Confrontation Clause issue.

7 The person who made these statements is not

8 available to be questioned by the defendant. They have

9 never been deposed. They have never been subject to

10 Cross-examination. Any admission of those statements is a

11 Confrontation Clause issue.

12 MR. HICKS: Well, these statements made by the

13 victim were not testimonial.

14 MR. SWANSON: You want to argue that they

15 happened.

16 MR. HICKS: Exactly and that we're not offering

17 from the truth of the matter asserted. You can cross-examine

18 Pam Hupp and Bobbi Wann about these matters.

19 MR. SWANSON: We can't cross-examine the person

20 who said them about whether or not she actually intended them

21 or whether or not she actually said them, how she was going

22 to present them, did she present them --

23 MR. HICKS: I'm just saying that to me, this is

24 what the Case Law is saying. If you want to get into the

25 Confrontation Clause, I also think one of the arguments that

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1 we would make here in this case is that the defendant -- this

2 doctrine of forfeiture by wrongdoing, if you look at U.S.

3 versus Densa, it's a Second Circuit Federal Case.

4 You've got State versus Ivy, which is an

5 interesting case out of Tennessee. I can get you these

6 cites, but there's a Missouri case, State versus McLaughlin,

7 and it specifically talks about issues in a domestic case,

8 and it calls it (as read), "The State urges this Court to

9 recognize the forfeiture by wrongdoing exception to the

10 Confrontation Clause."

11 MR. SWANSON: What's the date on that?

12 MR. HICKS: August 28, 2008. 265 S.W. 3d 257.

13 There's a whole Section E, forfeiture by wrongdoing. The

14 Supreme Court actually did say, hey, there are going to be

15 situations where, because of the conduct of the defendant,

16 that he shouldn't benefit particularly by --

17 MR. SWANSON: Let's talk about that. What

18 the Supreme Court said was in State versus Giles versus

19 California, California had exactly the rule the State is

20 arguing here that, blanketly, if the defendant prevents a

21 witness from showing up to testify, it forfeited the hearsay

22 and Confrontation Clause objection, and the Supreme Court

23 said "no".

24 The crucial element of the forfeiture by

25 wrongdoing exception to the Confrontation Clause is that the

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1 defendant's conduct to prevent the witness from testifying

2 had to have been intended to prevent them from testifying,

3 and they said with regards to domestic cases, past instances

4 of abuse and currently ongoing criminal cases would indicate

5 that, but they had to determine intent.

6 You can't argue that he did it, therefore, he

7 did it to stop her from testifying when he was on trial for

8 doing it.

9 MR. HICKS: In fact, Giles was the first case

10 that addressed this issue extensively, but the cases since

11 then have gone on to say he does not, it does not have to be

12 the primary reason. It just has to be a reason. There

13 doesn't even have to be pending charges.

14 MR. SWANSON: There doesn't have to be, but you

15 have to have a finding that the person intended it to happen.

16 Do you have any evidence of that?

17 MR. HICKS: Again, the cases that I'm relying

18 upon, charges weren't pending. There was -- just when you

19 have a situation where the defendant was concerned that now

20 the victim or the abused might be talking to people about the

21 abuse, and this is why McLaughlin goes into, kind of makes a

22 division on domestic cases. Saying that, you know what? All

23 we are concerned about is that there has been some evidence

24 of prior abuse, and that the victim is now talking about it.

25 That the State can then establish that it was,

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 one of his purposes may have been to shut her up, to keep her

2 from being available as a witness, and if that is part of the

3 reason -- it doesn't have to be the only reason. It doesn't

4 have to be to the primary reason, but if that serves as part

5 of the reason to have murdered her in this situation, then he

6 shouldn't benefit from the fact that now she is absent.

7 In fact, there's a line of cases there that

8 says once you commit that act against, that wrongdoing

9 against this person and they are murdered and they're not

10 available, their statements now are available in any case.

11 Not just the murder case, not just the previous assault case.

12 There was one where there was a 3rd potential

13 racketeering case where these statements came in against the

14 defendant. Not on the original assault case. Not on the

15 murder case but on a fraud, a racketeering fraud 3rd case.

16 So all I'm saying is that it doesn't have to be

17 the same case. It doesn't have to be the primary reason. It

18 only has to be a reason and it can be, the reason can be

19 established by circumstances, inferences drawn that if she is

20 talking about it, the defendant could have been concerned

21 about it.

22 MR. SWANSON: Any inference you would have to

23 draw is essentially putting the cart before the horse. You

24 would have to establish he committed the crime by killing her

25 and keeping her from being here. Therefore, in a trial to

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1 determine if he committed the crime, the statements come in.

2 The exception you are talking about would

3 essentially mean, if it was that broad, that hearsay, that

4 Confrontation Clause, ceases to exist in any murder trial.

5 How would it ever apply?

6 MR. HICKS: It ceases to exist when there has

7 been prior criminal conduct against that victim.

8 MR. SWANSON: That determines that he intended

9 to stop the victim from talking, and you haven't established

10 that.

11 MR. HICKS: For instance, if where he did not

12 have -- let's say that the victim had been writing in her

13 diary, okay, about abuse that had been going on, okay? But

14 she had never disclosed this to anybody, okay?

15 The State would be hard pressed to argue, look,

16 he killed her to shut her up because we don't have any

17 evidence that she was out there talking about it, but here we

18 have evidence that on the day of her --

19 MR. SWANSON: You don't have evidence he knew

20 about it, either. That is exactly the same as this

21 situation. You are saying a hearsay statement that he has no

22 evidence of, that he has no knowledge of, is admissible.

23 It's no different from the diary.

24 MR. HICKS: No, I think it is because, again,

25 if we can establish -- we've got two witnesses now who are

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1 saying she is talking about something that had happened

2 within the week of this murder about a pillow being put over

3 her face --

4 MR. SWANSON: So now we are going further back

5 than the 27th.

6 MS. HICKS: I'm talking about the criminal, the

7 wrongdoings, forfeiture by criminal wrongdoing.

8 Yes, that's what I'm saying is that is

9 different because, different from the diary situation because

10 we actually have people who are, who she is talking to who

11 then can talk to people.

12 This is what happens in the abuse, domestic

13 cases, all of the time. They will confide in friends before

14 they will go to the police. Sometimes these friends will

15 then go to family members.

16 Now the cat is out of the bag, and if we can

17 establish independently within the last week it looks like

18 she was talking about this thing that had happened, that

19 could serve as a reason for why he also --

20 MR. SWANSON: But you have no evidence that he

21 knew about it. That's why it's analogous to the diary

22 example.

23 You are saying the hearsay statements were

24 made; he must have known about it. He somehow knew about it.

25 Therefore, that maybe was his intent. There's been no

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1 finding of such.

2 MR. HICKS: I don't see anything in the cases

3 where it establishes that we have to show direct knowledge.

4 Again, --

5 MR. SWANSON: You have to show that he had the

6 intent to do it. You can't just pile up the hearsay to say

7 that means he had intent without showing some connection to

8 him knowing about it to make the intent. That's why your

9 diary example is apt.

10 MR. HICKS: Again, that's why I'm saying on the

11 diary example -- if we had evidence that people had, that she

12 had been sharing her diary with other people then, yes,

13 because again, the cat is kind of out of the bag. That's the

14 situation here is that she's not out there in the public

15 talking now about it.

16 The reasonable, an inference that we would want

17 the jury to draw from this situation is that, you know what?

18 Part of the reason he killed her is that he didn't like the

19 fact she was out talking about what he had done recently.

20 MR. SWANSON: And that is exactly the concern

21 that, in Giles, the Supreme Court was talking about. This is

22 what Judge Scalia said when he wrote the opinion.

23 THE COURT: Well, I'm looking at the Rios case,

24 and it seems to indicate, one of the bigger factor is we have

25 to make sure she intended to perform the act in the immediate

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1 future.

2 So I guess my other question, if I'm hearing

3 this right, is the act she claimed that she was going to do

4 by leaving him or signing the paper she had talked about on

5 more than one occasion, or am I wrong about that?

6 MR. HICKS: She had talked to Pam Hupp, I

7 think, on more than one occasion. We were only going to get

8 into the statements that were made on the 27th, which would

9 have been anywhere between 5:00 and 6:30 in the evening,

10 which then she was killed two hours later.

11 THE COURT: Right. But if she had talked

12 about it on multiple occasions, what would make us think that

13 she had the intention to do that immediately? Because she

14 had talked about it and talked about it and talked about it

15 and never done it before.

16 MR. SWANSON: Which is what happened in Rios.

17 MR. HICKS: The only thing that she had talked

18 about on previous occasions, which was to Pam Hupp only,

19 was -- if you remember, in the week before, she had gone to

20 the library with Pam and actually already changed over the

21 Beneficiary to Pam.

22 MR. SWANSON: All of this is--

23 MR. HICKS: We're not going to get into it.

24 But in the process of doing it, -- we're not going to get

25 into that but I'm saying this gives context to this.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 In the process of doing that, she's also

2 telling them, telling Pam of her intention to change the

3 other Beneficiary, the other insurance policy, change the

4 Beneficiary from the defendant to her sister because, again,

5 she was concerned about his spending habits and whether he

6 would spend it.

7 This is what she was allegedly telling Pam.

8 That's all happening before the 27th, but I'm saying on the

9 27th, she's telling Pam and Bobbi Wann, I want to move from

10 Troy. I've got it set up so I can go live with a family

11 member down here in Lake St. Louis.

12 It's my intention to go back and tell him this.

13 I don't think he's going to be very happy about it, but I'm

14 going to tell him about it.

15 Also, I've got those insurance papers laying

16 out there. I was, you know, working on that. I left it

17 there. I'm going to go back there, get that taken care of.

18 That's what she's telling those two people on the 27th

19 somewhere between 4:00 and 6:00 p.m.

20 So I mean, to me, that is telling them. It's

21 not, I'm going to do this sometime in the future. I'm going

22 to go back this evening and I'm going to tell him.

23 She's never told anybody before she's going to

24 go tell him these things. That was the thing they had just

25 developed on the 27th, this idea of moving out of Troy and

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1 into this house in Lake St. Louis.

2 True, she had talked about her intentions to

3 change this other insurance policy, which had only happened

4 in the last week. So it wasn't like it had been going on

5 weeks and weeks and weeks.

6 This is a thing that had just developed, and

7 she's now telling Bobbi Wann for the first time, and Pam

8 Hupp, I'm going to go finish the paperwork this evening,

9 tonight.

10 MR. SWANSON: There are two issues here.

11 First, with the insurance and, for both of them I'm not sure

12 if this is a fair characterization of what either Ms. Wann's

13 testimony or Ms. Hupp's testimony, Ms. Wann's testimony was

14 or what Ms. Hupp's testimony will be, but you have, let's

15 see, we've got hearsay. We've got confrontation, and we have

16 relevance. You have to show for relevance, let's just start

17 there, that he knew about it, and you can't.

18 For hearsay, you have to show that she

19 immediately went to go do it. It's a few hours later, but

20 there's that. Again, he still doesn't know about it, so

21 what's the relevance? And Confrontation Clause-wise, she's

22 not here.

23 You have talked about forfeiture by wrongdoing.

24 Scalia's decision said, I mean, he asked this rhetorically as

25 is his desire to do. In any event, (as read) "We are puzzled
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1 by the dissent's decision to devote its peroration to

2 domestic abuse cases. It's a suggestion that we should have

3 one Confrontation Clause, the one the Framers adopted in

4 Crawford described for all other crimes, but a special

5 improvised one, for those crimes that are frequently directed

6 against women."

7 That's what you want here. You want to

8 eliminate the Confrontation Clause in a domestic assault

9 case, or a potential domestic assault case.

10 Those statements are hearsay. The witness

11 isn't available, and they shouldn't be admitted and they are

12 highly prejudicial. You want to argue that maybe they

13 happened, and they happened so it's his motive.

14 You don't know they happened. You don't know

15 if she followed through on that intent. No one was there.

16 Well, one person might have been there, but she's changing

17 her story.

18 MR. HICKS: If Ms. Faria had not died that

19 night and this was an assault case and she had the ability to

20 come in here and testify, we would know exactly what she, in

21 fact, did tell Mr. Faria that night.

22 MR. SWANSON: She could testify about it and we

23 could cross-examine her.

24 MR. HICKS: I understand. I wish I could

25 finish my argument.
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1 We would know exactly what she said that night.

2 How far, maybe, if she got -- you know, if the insurance

3 policy stuff even came up, but we don't know that.

4 MR. SWANSON: And if she were here, she could

5 testify that she didn't say those things, that she had no

6 intention of doing it.

7 MR. HICKS: I understand. If I could please

8 complete my thought.

9 If she was here, she could tell us all of this

10 but she can't because she was murdered. If the defendant, in

11 fact, murdered her, then he should not benefit from his

12 wrongdoing. That is the whole point of this doctrine of

13 forfeiture by wrongdoing.

14 THE COURT: I don't disagree as to the doctrine

15 of forfeiture by wrongdoing. It seems to the Court, in this

16 case, there's too many unknowns that we're guessing that she

17 actually did this.

18 Did he know? Did he not know? Did he even

19 have time to know before the incident happened? So that's --

20 I mean, I don't --

21 MR. HICKS: And I understand that. I've tried

22 to parse down the statements. Again, I think if the Court

23 says, well, look, I'm just not comfortable letting these

24 statements come in about the pillow, I understand that.

25 Going back, though, to the 27th, when you have

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1 got the defendant saying, Betsy called me and told me she had

2 some news to tell me.

3 MR. SWANSON: That it was good news.

4 MR. HICKS: And that could be very

5 self-serving, Nathan. The point is, that he indicated to law

6 enforcement she in fact said, I'm going to tell you something

7 tonight, okay, and wouldn't tell him on the phone.

8 Then she tells her two friends, I am going.

9 This is my plan. To move out of Troy. To move in to a

10 family member in Lake St. Louis, and that she was excited

11 about it.

12 It's relevant for two reasons. Again, I think

13 it serves as potential motive, but it also shows she was not

14 in a suicidal state of mind. That's the other thing that I

15 think is being missed here.

16 I understand that they don't want to make that

17 their defense now, but from the very beginning, the defendant

18 made it his defense and that's exactly what we're going to be

19 arguing that he killed her and then he made it look like she

20 committed suicide in a desperate -- he acts in passion. He

21 kills her and then he cuts her wrist and tries to make it

22 look like suicide.

23 That's why, when he makes the 9-1-1 call, his

24 statement is, I walked in and my wife has committed suicide.

25 She's dead on the floor. She committed suicide.

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1 MR. SWANSON: Are you done?

2 MR. HICKS: He then, hours later, after seeing

3 everything clearly, he's still back at the police station

4 telling the police, I think she committed suicide.

5 THE COURT: I think that's a different issue

6 that can come in under different whatever, but it's going to

7 be pretty obvious to a juror on their own, once they have the

8 facts, whether a person situated such as this could have

9 committed suicide or not. I don't think that has anything to

10 do with what this is.

11 MR. SWANSON: If I might. First, --

12 THE COURT: I mean, at this point, I don't know

13 how much we need to go over this for hours, but at this

14 point, there's not enough that I'm seeing to let any of these

15 statements in, whether it's the 27th or before. There's just

16 not enough.

17 There's not enough certainty that she intended

18 to do it right away. That she did it. That he knew about

19 it. Whether he needed to know about it, but if he didn't, he

20 couldn't have had any effect on it because he didn't know

21 about it. So it doesn't add up enough to let those

22 statements in.

23 Maybe, once we get to that point, if something

24 comes out differently, it will be different; but at this

25 point, I'm going to grant the Motion as to those statements.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 MR. SCHWARTZ: While we're on the record, we

2 have filed a Motion regarding the insurance and this is being

3 talked about now.

4 Allegedly, a different life insurance policy

5 that had been put in the name of a witness. I filed a Motion

6 wanting to get into that.

7 I filed a Reconsideration Motion. I want to

8 put on the record the Court has overruled my Motion.

9 I intend to get into that in my opening

10 statement. However, based upon the Court's instructions, I

11 will not but I do want to, at some point in time, be allowed

12 to make a record regarding what I would intend to open with

13 and what I would intend to question witnesses on.

14 And it's my understanding, for the most part,

15 we should approach the bench because I do need to make an

16 Offer of Proof of what I believe the question and answer

17 would be regarding that insurance policy that was changed

18 into the witness's name; and from the State, my belief is

19 that they will then probably be consenting to those

20 statements, unless I make some sort of statement that's wild

21 or crazy and that is not contained within the discovery.

22 I need to know from the Court, at this point in

23 time, with my intent to get into that opening statement, am I

24 forbidden from getting into that? In line with the Court's

25 earlier ruling, I just need to make sure that I cannot do

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1 that, which is what the Court ordered.

2 THE COURT: Right. At this time.

3 MR. SCHWARTZ: Okay.

4 THE COURT: Now I don't have an issue if you

5 feel like you can approach outside of their hearing or if you

6 want to do it when they are not in here so that you can make

7 your record, I think that's fine.

8 MR. SCHWARTZ: Okay. I can do it right now,

9 pre-opening, or I can do it -- I just need to continuously

10 make the record, however the Court wants me to do it.

11 THE COURT: If you're ready to make it now, I

12 would just make it now so we have it on the record.

13 MR. SCHWARTZ: All right. Essentially, I would

14 state in opening statement that the victim in this case,

15 Betsy Faria, Elizabeth Faria, had allegedly changed her

16 policy that she had had for the previous ten years that had

17 been in her husband's name.

18 That Friday there will be testimony that it was

19 changed into the name of a witness by the name of Pamela

20 Hupp, who was at the house and continued to remain at the

21 house and has made significant altering statements regarding

22 her participation at that house where Betsy Faria was found

23 dead at the time of the murder.

24 I believe that that would go to the witness's

25 bias and motive in order to testify.

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1 THE COURT: Now I would follow up with if

2 that was going to be their opening statement, that could

3 potentially change my mind on what we just did because to me,

4 if they're going to bring that up, then that opens the whole

5 can on what she was saying. However, I'm hearing you say

6 that's not going to be.

7 MR. SCHWARTZ: No. As the Court well knows,

8 and so does the State, I filed this Motion long ago.

9 THE COURT: Right.

10 MR. SCHWARTZ: I want to get into the whole

11 issue of the insurance. I think it's the reverse. If the

12 State opens the doors, I have every right to get into it.

13 THE COURT: That's what I'm saying. In light

14 of us saying they can't do that kind of goes along with what

15 I just said that they can't do on their statements.

16 If the tables were turned and they were going

17 to get into that, then that, to me, that's them injecting it;

18 and then if you guys wanted to bring in the statements she

19 made on the 27th, that's a totally different story.

20 MR. SCHWARTZ: If that does come in, I have

21 several witnesses prepared to testify.

22 MR. HICKS: I guess I'm confused because I

23 don't understand how the statements on the 27th become -- how

24 they are not, I mean --

25 MR. SCHWARTZ: You guys have already filed the

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1 Motion they don't come in. I've lost the Motion regarding

2 the insurance. That's my point.

3 MR. HICKS: I'm talking about the statements --

4 MR. SWANSON: You want to admit those hearsay

5 statements for various purposes. We want to admit additional

6 evidence that touches on that exact issue. We've been --

7 MR. SCHWARTZ: I'm just making a record.

8 Sorry.

9 MR. SWANSON: Your Motions and the Judge's

10 Order prevented us from doing so. That was the argument we

11 would make if that stuff comes in and we hadn't been

12 prevented to do so by the Order. That's our point.

13 MR. HICKS: I understand that. I'm just saying

14 I'm trying to follow the connection between if you guys were

15 allowed to go into that, how that opens the door for us to go

16 into --

17 MR. SCHWARTZ: I would argue it doesn't, but I

18 understand the insurance issue. This policy was changed, and

19 it was changed into a witness's name who's going to be

20 testifying.

21 My belief has always been that is a bias and/or

22 an interest of that witness when they testify and I should be

23 authorized to go into that. That's all been argued.

24 MR. SWANSON: She would be testifying about

25 what she did, what she witnessed, who she went with, what she
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1 saw. Not what someone told her.

2 MR. HICKS: All with the intent of pointing the

3 finger to her, which you can't do without direct evidence,

4 which we've been over.

5 MR. SWANSON: Well, I disagree.

6 MR. HICKS: I understand. I guess it doesn't

7 matter. Maybe we're dancing around an unlit fire.

8 THE COURT: Let's move on.

9 MR. SWANSON: Your Honor, I believe that your

10 ruling covers on our Motion Points 1, 2 --

11 MR. SCHWARTZ: We don't have a 3.

12 MR. SWANSON: Apparently, we don't have 3, 4.

13 MR. HICKS: Five.

14 MR. SWANSON: Five, six.

15 MR. HICKS: I don't agree on 6. I don't know

16 that it covers 6.

17 MR. SWANSON: We can take up 6 at this point.

18 THE COURT: Okay.

19 MR. SWANSON: We anticipate that Ms. Hupp would

20 be admitting testimony that there was discord in the Faria's

21 marriage. That they had separated multiple times. That Mrs.

22 Faria had a number of affairs. All of those would be hearsay

23 testimony.

24 MR. HICKS: Right. And the hearsay part of it

25 I agree, but there could also be testimony both from Mary

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1 Rodgers about her personal observations about the marital

2 discord, and from Pam Hupp, her personal knowledge about

3 periods of separation where she knew where Betsy was living

4 and not living with Russ Faria, and how she routinely stayed

5 with her mother down in Lake St. Louis rather than staying up

6 in Troy, without going into any further than this is where I

7 knew she stayed.

8 THE COURT: And I would agree with that. I

9 mean, subject to hearsay, I think any person that knows

10 someone or is involved in their life, they may have knowledge

11 of basic things such as what they have brought out.

12 MR. SWANSON: To the extent she's saying, where

13 they are living, you know, if they are staying apart, I would

14 agree that would be hearsay. I personally witnessed it.

15 But if she says that Betsy Faria was doing this

16 because she didn't want to stay in Troy because their

17 marriage was rocky, that's speculation, which is our second

18 Motion in Limine. It would also have to be based on hearsay

19 because someone would have had to tell her that.

20 MR. HICKS: I agree with that.

21 THE COURT: I agree with that, as well. I

22 think an average, outside person can have perceptions and

23 what-have-you without getting into hearsay.

24 MR. HICKS: Correct.

25 MR. SWANSON: Fair enough, Your Honor.

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1 MR. HICKS: Agreed on tainted Gatorade. Seven.

2 MR. SWANSON: Hacking allegations --

3 MR. HICKS: Agree.

4 MR. SWANSON: -- would be hearsay. Number 9, I

5 think we covered already.

6 MR. HICKS: Yes. I disagreed to no avail.

7 MR. SWANSON: Number 10, hearsay relating

8 defense alleged rude or inappropriate behavior to Mrs. Faria

9 and others.

10 MR. HICKS: I would agree to the extent that

11 they would be testifying based upon hearsay or gossip.

12 However, again, I think any witness who had, who personally

13 observed interaction between Russ Faria and his wife and that

14 they can describe as rude and inappropriate and mean, I think

15 that's fair.

16 THE COURT: I would agree with that subject to

17 hearsay.

18 MR. SWANSON: Number 11 is gossip.

19 MR. HICKS: I agree.

20 MR. SWANSON: And then Number 13 is any other

21 heretofore undiscovered or undescribed hearsay.

22 THE COURT: Hearsay is hearsay, as long as

23 you're objecting.

24 MR. SWANSON: Fair enough, Your Honor.

25 Next question would be our second Motion in

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1 Limine to exclude alleged prior bad acts. We already

2 discussed the alleged pillow incident, which was found to be

3 hearsay, thus inadmissible. Let's see.

4 MR. HICKS: I can go through these real quick,

5 if you want because I agree with most of them.

6 THE COURT: Go ahead.

7 MR. HICKS: Number 1, we disagree to the extent

8 that, one, in his statement, the defendant talks about --

9 he's put forth his alibi witness.

10 All of these alibi witnesses claim that they

11 were smoking weed that night. They would sometimes do that

12 when they played this game or watched a movie, and the

13 defendant admitted he had done it. I think it goes to his

14 ability to perceive the facts. It goes to his credibility

15 that he was using on that night. Not getting into any prior

16 use. We're not going to talk about anything like that.

17 MR. SWANSON: That's fine, Your Honor.

18 THE COURT: I would agree with that.

19 MR. SWANSON: Number 2, has to do with,

20 allegedly Mrs. Faria --

21 MR. HICKS: Agreed.

22 MR. SWANSON: Number 3 is a peace disturbance

23 from January 2005 involving Ms. Rodgers, what Ms. Rodgers

24 called law enforcement. Mrs. Faria and the defendant were in

25 an argument.
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1 MR. HICKS: Again, I think this witness would

2 testify about personal observations that happened between the

3 defendant (sic) and Russ Faria. So to that extent, we

4 disagree.

5 THE COURT: Anything someone witnessed

6 personally, I don't see the issue.

7 MR. HICKS: Number 4, we agree.

8 MR. SWANSON: Number 5 has to do with --

9 MR. HICKS: Five, yeah --

10 MR. SWANSON: It's an odd situation, Your

11 Honor.

12 MR. HICKS: I didn't even notice it, Judge. I

13 can guarantee we're not going to highlight it. I can't

14 imagine that it's going to be --

15 MR. SWANSON: Then you can agree whether or not

16 his --

17 MR. HICKS: We can't show the baseball cap?

18 MR. SWANSON: You can show the baseball cap,

19 but arguing any inferences from the rather off-color logo is

20 being silly.

21 MR. HICKS: We will not mention that "Polygamy

22 Porter", the logo, "Having more than one". I didn't even

23 notice it said that. We won't argue that.

24 MR. SWANSON: Then Number 6 has to do with Ms.

25 Hupp's telling the investigators that Mr. Faria made Betsy's

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1 friends uncomfortable because he was not nice. Betsy is

2 telling her.

3 MR. HICKS: Again, I think to the extent that

4 any of those conclusions were based upon hearsay, I agree.

5 If there were any personal observations she ever made, I

6 think we should be able to go into that.

7 THE COURT: I would agree with that.

8 MR. HICKS: I think that applies to all of

9 these witnesses. I would agree anything based upon hearsay,

10 but I think if we laid a proper foundation of personal

11 observation --

12 MR. SWANSON: I would agree, Your Honor.

13 Number 9, I think we've already covered.

14 Number 10 has to do with allegations about a

15 car insurance claim that was included in discovery. I don't

16 anticipate the State getting into it.

17 MR. HICKS: No.

18 Yeah, 8, 9, and 10 we're not getting into.

19 MR. SWANSON: Number 11 has to do with Mr.

20 Faria's criminal record, such as it is, which includes only

21 traffic and ordinance violations.

22 MR. HICKS: We're not going to get into that.

23 MR. SWANSON: That covers our second Motion in

24 Limine.

25 The third is, again, it's kind of a hybrid

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1 since it deals with many of Ms. Hupp's speculations or her

2 opinions about what certain things she was told by Mrs. Faria

3 meant. So in light of the prior rulings, as long as she's

4 limited to testifying what she witnessed and what her

5 personal opinion is, and doesn't go too far afield, I think

6 we can cover it.

7 MR. HICKS: I think we're on the same page.

8 When I went through, I said, 1-A, agree; 1-B, I don't know

9 that she can testify that it was odd. However, I think she

10 can testify it was her experience that Betsy spent the night

11 on Tuesday nights with her Mom, you know, and she's familiar

12 with the habits of her, which is the same night that he plays

13 cards with his friends.

14 The stuff about the purse, that would all be

15 based upon hearsay, so we wouldn't get into it. It looks

16 like for the rest of the Motion --

17 MR. SWANSON: I think we have covered much of

18 this.

19 MR. HICKS: -- we agree to it, except for

20 Number 5, which I already lost.

21 MR. SWANSON: I think, Your Honor, that brings

22 us to our Motion to exclude the testimony of Bobbi Wann for a

23 discovery violation.

24 MR. HICKS: Well, one, I don't know that --

25 MR. SWANSON: Much of Ms. Wann's testimony is

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1 already excluded.

2 MR. HICKS: Yeah, I think the alleged discovery

3 violation, I think, may be moot because it's excluded by the

4 Court's ruling 15 minutes ago.

5 MR. SWANSON: That's fine. I'm not sure how

6 we're going to deal with the fact, if there's anything left

7 that you are going to try to use or how to deal with that

8 functionally.

9 At a certain point in the deposition, Ms. Askey

10 said something to the effect of, I think that everything that

11 follows is going to be hearsay or something like that. So we

12 can agree that to that point. If testimony comes in after

13 that, it's out but I'm not sure how you want --

14 MR. HICKS: Again, Bobbi Wann, I wasn't there

15 for the depo, but if she's testified about being present

16 there with Betsy on the 27th, took her to chemotherapy, that

17 she was in good spirits, you know, everything seemed fine.

18 I think she can testify, if she did in fact

19 testify in the deposition about that, but it sounds like the

20 hearsay statements that Betsy made to her on that day have

21 been excluded, so we would have to redact that part.

22 MR. SWANSON: Which is the most significant

23 portion of the deposition. I mean, this is a functional

24 issue that we can take up later.

25 MR. SCHWARTZ: Yeah, we can talk with Richard

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1 and Leah to see if there is a portion we can show or a

2 portion we jus want to stipulate to. We would agree to

3 something along those lines.

4 THE COURT: Okay.

5 MR. SWANSON: Finally, it would be our request

6 to a Frye Hearing/Motion to Exclude on the concept of

7 cadaveric spasm.

8 THE COURT: I thought we already addressed that

9 before or was that on something else?

10 MR. SWANSON: No. We just mentioned it.

11 THE COURT: One of the Orders says because of

12 the agreement of the parties, that the Frye hearing is not

13 necessary.

14 MR. SWANSON: That was regarding Blue Star

15 blood evidence.

16 MR. HICKS: We have that one worked out.

17 MR. SWANSON: This is a separate issue.

18 MR. HICKS: Judge, I don't know if you read the

19 Motion. I would just say that, one, I think this is highly

20 unusual for the -- because we chose the jury Friday, which is

21 when we got the Motion in Limine about a Frye hearing.

22 If the State were required to do a Frye hearing

23 in this situation, we're going to have to bring in the

24 Medical Examiner, who is not going to be here until Wednesday

25 to testify.
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1 MR. SCHWARTZ: Wednesday?

2 MR. SWANSON: Are you sure he's available?

3 Because he's in trial in Jefferson County.

4 MR. HICKS: We've got it covered. We're good.

5 But that said, when I look at my understanding

6 of it, and I think Nathan lays it out here pretty well, is

7 that we're talking about scientific tests or methods that are

8 in question.

9 THE COURT: Right.

10 MR. HICKS: There is no scientific test or

11 method that is in question here. It's an opinion of the

12 Medical Examiner.

13 MR. SWANSON: That --

14 MR. HICKS: He was asked about cadaveric spasms

15 which, there is this theory out there. It's not just a

16 theory. Some medical professionals hold this opinion that in

17 a traumatic event, there can be the tensing of the muscles,

18 brings on the onset of what looks like rigor mortis.

19 That, then when law enforcement shows up and

20 they are like, oh, rig has already set in, there could be

21 an explanation of why that has occurred and could be

22 misdiagnosed as maybe the death being two and a half, three

23 hours before when, maybe, it wasn't that long before.

24 That's all he would be testifying about.

25 There's literature out there to support it. There are people

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1 on the other side that say, I don't believe in it. That

2 doesn't mean they get a Frye hearing here. They have got

3 books. They have got literature out there. They have got

4 the ability to cross-examine him about this issue and the

5 ability to call an expert in to say, I don't believe it.

6 THE COURT: In this case, they didn't do a

7 process, did they?

8 MR. HICKS: No.

9 THE COURT: It was just -- there was an

10 argument as to whether it was the spasms or the rigor mortis,

11 and this is just somebody who is going to come in and give

12 his opinion to say this could happen?

13 MR. HICKS: As long as we lay the foundation

14 that he's an expert and that he's --

15 THE COURT: The Frye hearing only addresses a

16 scientific process, and if it's generally accepted and

17 et cetera so I don't see how that applies at all.

18 MR. SWANSON: The issue here, Your Honor, as

19 Mr. Hicks said, there's a debate whether or not the

20 phenomenon exists, so. Well, he acknowledges as much.

21 The question is if there is a debate about how

22 the phenomenon exists, what methodology did the Medical

23 Examiner use to determine if it occurred here. If it

24 possibly could have occurred here as opposed to is it an

25 explanation for facts that the defense -- or the prosecution

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1 wants to argue occurred.

2 I mean, if he's just showing up to say this

3 phenomena exists and it would support their theory, but I

4 have no way of figuring out if it occurred, that's not proper

5 for the jury to hear.

6 The method he would use to make the diagnosis

7 needs to be established. There's no scientific agreement on

8 how one arrives at a diagnosis of cadaveric spasms, unless he

9 can tell us differently.

10 THE COURT: And I looked at that as well

11 yesterday. I looked at Frye hearings. From what I'm seeing,

12 as long as all of that's disclosed -- so it's fair for the

13 jury to say -- one of the cases was a particle on someone's

14 sunglasses in the nose part and they said, look, this could

15 have been blood but it could have been rust, it could have

16 been other things that react with this chemical.

17 As long as it's disclosed to the jury, that

18 that's all fair game. It doesn't sound like there is any

19 process. They didn't conduct a lab experiment and we're

20 going through making sure they did the lab experiment right.

21 He's just coming in and saying this could have

22 been. In fairness to the jury, you have to explain that it's

23 not 100 percent accuracy and, besides that, in light of the

24 late filing for the Frye hearing, I don't see how the Court

25 would possibly take that up on the same day that we pick the
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1 jury.

2 MR. SCHWARTZ: Your Honor, the reason for the

3 late Frye hearing is that we did, long ago, file a Motion for

4 Bill of Particulars, which the Court did not grant. We

5 still, as we stand here today prior to the State's opening,

6 do not know their theory as to when they are going to say

7 this occurred.

8 If they say this occurred earlier in the day,

9 then this means nothing. That's the whole point of this. We

10 just don't know. We can't effectively attempt to perceive

11 what they are going to allege. Again, we still don't know.

12 And as long as this witness will testify, as

13 Mr. Hicks stated, that it's not generally accepted within the

14 community and there is no test and he conducted no test --

15 MR. HICKS: I'm not saying it's not generally

16 accepted in the community. I'm saying that there are experts

17 on both sides of this and that the way you deal with it is

18 not a Frye hearing but impeach the heck out of him or call in

19 your own expert to rebut what he's saying.

20 I think when it's all said and done, you are

21 probably right. It isn't going to be much of an issue.

22 MR. SCHWARTZ: I'm not sure what that means.

23 MR. HICKS: All I'm saying is that I

24 understand. Regardless, if we come out in our opening

25 statement and we say, look, we believe this happened earlier

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1 in the evening, okay, I still anticipate that you are going

2 to go with officers to try to impeach their credibility to

3 talk about how when it was stiff, they were stiff, and trying

4 to suggest that it's been two or three hours; and if you do

5 that, I think that, with the Medical Examiner, we're going to

6 bring out, hey, these officers aren't necessarily lying or

7 not telling the truth, they just could be mistaken and I

8 think it's fair for us to do that in that situation.

9 MR. SCHWARTZ: So the Motion for Frye Hearing

10 is denied?

11 THE COURT: Correct.

12 MR. SCHWARTZ: Judge, one other aspect, and I

13 wasn't aware of this with Dr. Sable being called Wednesday.

14 I mean, unless I'm way off base, I can't imagine that the

15 State's case wouldn't be done by tomorrow, easily.

16 MR. HICKS: We're getting started already late

17 today so I don't know.

18 MS. ASKEY: He's under subpoena all week. We

19 told him it would likely be Wednesday.

20 MR. HICKS: We told him it would likely be

21 Wednesday but if it happens we need him Tuesday afternoon,

22 we'll get him here.

23 MR. SWANSON: He's testifying.

24 MR. SCHWARTZ: He's testifying in another one

25 of our cases on Tuesday.

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1 THE COURT: Okay. Are we ready?

2 MR. SCHWARTZ: Yes.

3 THE COURT: I think we're ready for the jurors.

4 (The jurors entered the Courtroom.)

5 THE COURT: The Court is going to read through

6 the jury numbers and if each juror would please indicate they

7 are here by raising their hand.

8 Juror Number 2, Juror Number 3, Juror Number 4,

9 Juror Number 11, Juror Number 12, Juror Number 15, Juror

10 Number 27, --

11 Does Counsel have any issue with where they are

12 seated, because they are not in order.

13 MS. ASKEY: No, Your Honor.

14 MR. SCHWARTZ: No, Your Honor.

15 MR. HICKS: No, Your Honor.

16 MR. SWANSON: Number 29, Number 35, Juror 38,

17 Juror 39, Juror 44, Juror 51, Juror 58, and Juror 61. For

18 the record, all jurors are present.

19 And the Court would now ask the jury if you

20 would please stand and raise your right hand to be sworn by

21 the Clerk.

22 (The jury was sworn.)

23 THE COURT: For the record, the Court believes

24 everybody raised their right hand and answered in the

25 affirmative. Is there any juror who did not answer in the

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1 affirmative for the oath? Seeing none. Thank you.

2 The jury may be seated.

3 This case will proceed in the following order.

4 First, the Court will read to you two instructions concerning

5 the law applicable to this case and this trial. Next, the

6 attorney for the State must make an opening statement

7 outlining what the attorney expects the State's evidence will

8 be.

9 The attorney for the defendant is not required

10 to make an opening statement then or at any time. However,

11 if the attorney chooses to do so, he may make an opening

12 statement after that of the State or the attorney may reserve

13 his opening statement until the conclusion of the State's

14 evidence.

15 Evidence will then be introduced. At the

16 conclusion of all of the evidence, further instructions in

17 writing concerning the law will be read to you by the Court,

18 after which the attorneys make their arguments.

19 You will then be given the written instructions

20 of the Court to take with you to your jury room. You will go

21 to that room, select a foreperson, deliberate and arrive at

22 your verdict.

23 If you find the defendant guilty in this first

24 stage of the trial, I don't think this is right. We're not

25 doing the second stage of this trial.

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1 Sometimes there are delays or conferences out

2 of your hearing with the attorneys about matters of law.

3 There are good reasons for these delays and conferences. The

4 Court is confident that you will be patient and

5 understanding.

6 We will have recesses from time to time.

7 The following two instructions of law are for

8 your guidance in this case. The two of them, along with

9 other instructions in writing read to you at the close of all

10 of the evidence, will be handed to you at that time to take

11 to your jury room.

12 Instruction Number 1. Those who participate in

13 a jury trial must do so in accordance with established rules.

14 This is true of the parties, the witnesses, the lawyers and

15 the Judge. It is equally true of the jurors.

16 It is the Court's duty to enforce these rules

17 and to instruct you upon the law applicable to the case.

18 It's your duty to follow the law as the Court gives it to

19 you. However, no statement, ruling or remark that I may make

20 during the trial is intended to indicate my opinion of what

21 the facts are. It is your duty to determine the facts and to

22 determine them only from the evidence and the reasonable

23 inferences to be drawn from the evidence.

24 In your determination of the facts, you alone

25 must decide upon the believability of the witnesses, and the

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1 weight and value of the evidence.

2 In determining the believability of a witness

3 and the weight to be given to testimony of the witness, you

4 may take into consideration the witness's manner while

5 testifying, the ability and opportunity of the witness to

6 observe and remember any matter about which testimony is

7 given, any interest, bias or prejudice the witness may have,

8 the reasonableness of the witness's testimony considered in

9 the light of all of the evidence in the case and any other

10 matter that has a tendency in reason to prove or disprove the

11 truthfulness of the testimony of the witness.

12 It is important for you to understand that this

13 case must be decided only by the evidence presented in the

14 proceedings in this Courtroom and the instructions that I

15 give you. The reason for this is that the evidence presented

16 in Court is reviewed by the lawyers and the Court and the

17 lawyers have the opportunity to comment on or dispute

18 evidence presented in Court.

19 If you obtain information from other places,

20 the lawyers do not have the opportunity to comment on or

21 dispute it. Fairness in our system of justice require giving

22 both sides the opportunity to view and comment on all

23 evidence in the case. It is unfair to the parties if you

24 obtain information about the case outside this Courtroom.

25 Therefore, you should not visit the scene of

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1 any of the incidents described in this case nor should you

2 conduct your own research or investigation. For example, you

3 should not conduct any independent research of any type of

4 reference to textbooks, dictionaries, magazines, the

5 Internet, a person you consider to be knowledgeable or any

6 other means about any issue in this case or any witness,

7 witnesses, parties, lawyers, medical or scientific

8 terminology or evidence that is in any way involved in this

9 trial.

10 You should not communicate, use a cell phone,

11 record, photograph, video, e-mail, blog, tweet, text or post

12 anything about this trial or your thoughts or opinions about

13 any issue in this case to any person. This prohibition on

14 communications about this trial includes the Internet such as

15 Facebook, Myspace, Twitter or any other personal or public

16 website.

17 Faithful performance by you of your duties as

18 jurors is vital to the administration of justice. Should you

19 perform your duties without prejudice or fear and solely --

20 I'm sorry. You should perform your duties without prejudice

21 or fear and solely from a fair and impartial consideration of

22 the whole case.

23 Do not make up your mind during the trial about

24 what the verdict should be. Keep an open mind until you have

25 heard all of the evidence and the case is given to you to

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1 decide.

2 Each of you may take notes in this case, but

3 you are not required to do so. I will give you notebooks.

4 Any notes you take must be in those notebooks only. You may

5 not take any notes out of the Courtroom before the case is

6 submitted to you for your deliberations.

7 No one will read your notes while you are out

8 of the Courtroom. If you choose to take notes, remember that

9 notetaking may interfere with your ability to observe the

10 evidence and the witnesses as they are presented.

11 Do not discuss or share your notes with anyone

12 until you begin your deliberations. During deliberations, if

13 you choose to do so, you may use your notes and discuss them

14 with other jurors.

15 Notes taken during trial are not evidence. You

16 should not assume that your notes or those of other jurors

17 are more accurate than your own recollection or the

18 recollection of other jurors.

19 After you reach your verdict, your notes will

20 be collected and destroyed. No one will be allowed to read

21 them.

22 Instruction Number 2. You must not assume as

23 true any fact solely because it is included in or suggested

24 by a question asked a witness. A question is not evidence

25 and may be considered only as it supplies meaning to the

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1 answer.

2 From time to time, the parties may make

3 objections. They have a right to do so and are only doing

4 their duty as they see it. You should draw no inference from

5 the fact that an objection has been made.

6 If the Court sustains an objection to a

7 question, you will disregard the entire question and you

8 should not speculate as to what the answer of the witness

9 might have been. The same applies to exhibits offered but

10 excluded from the evidence after an objection has been

11 sustained.

12 You will also disregard any answer or other

13 matter which the Court directs you not to consider and

14 anything which the Court orders stricken from the record.

15 The opening statements of attorneys are not

16 evidence. Also, you must not consider as evidence any

17 statement or remark or argument by any of the attorneys

18 addressed to another attorney or to the Court. However, the

19 attorneys may enter into stipulations of fact. These

20 stipulations become part of the evidence and are to be

21 considered by you as such.

22 At this time, the State will have the

23 opportunity to make its opening statement.

24 THE BAILIFF: If anyone in the audience has a

25 cell phone or recording device on, please make sure they are
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1 shut off at this time.

2 THE COURT: The State may proceed.

3 MS. ASKEY: Good morning.

4 JURORS: Good morning.

5 MS. ASKEY: I just got home from a friend's

6 house and my wife killed herself. That is what the defendant

7 said when he called 9-1-1 after he saw his dead wife lying on

8 the living room floor with some 56 stab wounds in her. After

9 he saw her arms nearly severed off. After he saw a knife

10 still protruding from her neck.

11 My wife killed herself. That's what the

12 defendant said. You'll hear him wailing in despair on the

13 phone with the 9-1-1 operator as he's moving about, trying to

14 convince her and himself, likely, that that is in fact what

15 happened.

16 MR. SCHWARTZ: Your Honor, objection. This is

17 opening statement, not argument. It's argumentative.

18 MS. ASKEY: Withdrawn.

19 THE COURT: You may proceed.

20 MS. ASKEY: You'll hear him blame his wife.

21 How could she do this to me?

22 You'll hear testimony from the medical examiner

23 who will tell you that Betsy Faria died as a result of

24 multiple stab wounds.

25 You'll hear him tell you that many of those

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1 stab wounds were about her torso, on her stomach and on her

2 back, and that those stab wounds were so deep that they

3 perforated her vital organs and she essentially bled out

4 internally.

5 You'll hear him tell you that the force that

6 was used to cut her wrist all the way through her tendons and

7 down to the bone would have left her in a position where she

8 could not even close her fist to have inflicted that final

9 blow and leave the knife in her neck.

10 You'll also hear him tell you that, ironically,

11 the amount of blood that was left on her wrist and around her

12 wrist where she lay on the carpet was consistent with a

13 person who had been wounded after their heart stopped

14 beating.

15 Folks, this is a murder about greed.

16 MR. SCHWARTZ: Objection, Your Honor. This is

17 opening statement. That's argumentative.

18 THE COURT: State?

19 MS. ASKEY: Withdrawn.

20 THE COURT: Thank you.

21 MS. ASKEY: You're going to hear evidence that

22 Betsy Faria was diagnosed with cancer, and within two months

23 of being diagnosed, the defendant decides that it's a great

24 idea to move Betsy from her family, from her friends, from

25 the people that she knows and loves, from her doctors, from
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1 where she receives treatment, and move her out here to

2 Lincoln County, out in our neck of the woods. Away from all

3 of those things.

4 She wasn't any dummy. She saw the writing on

5 the wall and you'll hear evidence the majority of her time

6 she spent time at her mother's house in Lake St. Louis.

7 She had two daughters. They were not the

8 defendant's daughters, one of which was a junior in high

9 school. Obviously, moving out to Troy wasn't an idea that

10 she thought was great, so she stayed down there with her

11 grandmother, as well.

12 You'll hear evidence the defendant was well

13 aware that Betsy had three insurance policies totaling --

14 MR. SCHWARTZ: Objection, Your Honor. May we

15 approach?

16 THE COURT: You may approach.

17 (Discussion at the bench.)

18 MR. SCHWARTZ: Your Honor, I have no idea where

19 this is going. There was a Motion filed by the State to

20 preclude the defendant from getting into any of these

21 insurance policies.

22 There was a Motion filed by the defendant and

23 it was argued today. It was granted. Both were granted by

24 the Court to keep the State from getting into the insurance

25 policies.
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1 She just said you'll hear evidence that Betsy

2 Faria had three insurance policies.

3 MS. ASKEY: That's not what I said. What I

4 said was the defendant knew she had three policies. That's

5 what he tells the detectives.

6 MR. SCHWARTZ: I will ask for a mistrial based

7 upon that statement to the jury at this time.

8 MR. HICKS: What?

9 MR. SCHWARTZ: I don't have any idea what the

10 relevance could possibly be and why the jury needs to hear

11 about it.

12 MR. HICKS: I'm curious what the previous

13 rulings were that prohibited us from pointing out that there

14 were three insurance policies with him as the Beneficiary.

15 This is what he tells the police officers, that

16 he believed there were 300 to $400,000 -- that's not opening

17 the door to anything. That's establishing black and white

18 motive evidence that there were insurance policies in his

19 name. I don't see how that's opening any door. I don't see

20 how that goes against any ruling this Court has made.

21 MR. SCHWARTZ: I think it's extremely clear as

22 to how it goes against the ruling the Court made. I made a

23 Motion that the State made, the State filed a Motion

24 precluding us from getting into the fact that the insurance

25 policy had been changed.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 MR. HICKS: That's a different issue.

2 MR. SCHWARTZ: We filed a Motion for

3 Reconsideration on that issue. Both were sustained by this

4 Court, and it said that any insurance policy or changing

5 insurance policy would merely serve to confuse the jury.

6 The State cannot get into the fact that there

7 was an insurance policy that exists and then keep us from

8 arguing that that policy had been changed pursuant to the

9 Motion they filed.

10 MR. HICKS: We're not arguing that it's been

11 changed.

12 MS. ASKEY: I'm not arguing it's been changed.

13 MR. SCHWARTZ: That's even worse.

14 THE COURT: Hold on.

15 MS. ASKEY: He had knowledge. He's the one

16 that told the detectives that.

17 THE COURT: Is that Motion in conjunction with

18 something else? I'm looking through every Order.

19 MR. SCHWARTZ: Judge, we filed two of them.

20 The State -- I'm sorry. The State filed a Motion to Preclude

21 the insurance policy being part of the evidence and the

22 changing the Beneficiary.

23 MS. ASKEY: No, the changing of the Beneficiary

24 is what we filed a Motion to Preclude.

25 MR. SCHWARTZ: Right. They argued because

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1 there's no direct evidence with Ms. Hupp, the changing of the

2 Beneficiary is immaterial and irrelevant, but now they want

3 to argue it's motive for Mr. Faria to have had the insurance

4 policies and committed the murder, which is --

5 THE COURT: All right. All I'm asking is --

6 I'm not finding it.

7 MR. SCHWARTZ: Oh, I'm sorry. It's there. The

8 State filed the Motion on -- we filed a Motion for

9 Reconsideration. They were both argued.

10 MS. ASKEY: Judge, it was the Motion to -- it

11 was the SODI Motion. Some other person did it. Dude -- some

12 other dude did it.

13 It's the State's Motion to Preclude any

14 reference that someone else had committed the crime.

15 THE COURT: It doesn't suggest anything on

16 insurance, it just says you can't say someone else did it.

17 MS. ASKEY: Our point with regard to the change

18 in the Beneficiary was that it wasn't relevant because there,

19 in addition, was no direct evidence tying that person to the

20 crime. That's not at all what we're saying now. We're

21 saying the defendant clearly, in his own --

22 THE COURT: I'm not finding any Order about

23 mention of an insurance policy. I'll keep looking.

24 MR. SCHWARTZ: It's there.

25 MR. SWANSON: It's the Order on our Motion to

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1 Reconsider the Court's prior ruling, Your Honor.

2 THE COURT: I read that one, too. There's

3 nothing in that one either.

4 MR. SCHWARTZ: Do you have it?

5 MR. HICKS: Judge, if there was direct evidence

6 connecting Pam Hupp to this crime, then they would be able to

7 admit evidence about the insurance and her being the

8 Beneficiary. There's direct evidence of the defendant's

9 involvement in this crime because he's the one on trial here

10 today.

11 The motive is relevant. The fact that there

12 were three insurance policies naming him as the Beneficiary,

13 at least he believed all three of them were still in his

14 name.

15 MS. ASKEY: Right.

16 MR. HICKS: That's what is relevant here, and

17 there was no prior ruling by this Court saying we could never

18 get into the fact that there were three insurance policies.

19 THE COURT: There's -- I'm reading to myself.

20 For the record, the Court's reading to itself

21 the Order dated October 28, 2013.

22 On the record, the Court's reading from that

23 Paragraph 3, (as read) "Evidence relating to the existence

24 of, or possible change in Beneficiary designation of a life

25 insurance policy does not have probative value that

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 substantially outweighs its prejudice or potential confusion

2 by the jury, and the same is certainly not in that committed

3 by the third party directly connecting that third party to

4 the defense".

5 Then I cite the cases. The first one will be

6 Danny Bowman, Butler. That's it.

7 MS. ASKEY: So that Order was directly relating

8 to Pam Hupp?

9 THE COURT: I'm sorry?

10 MS. ASKEY: That was directly relating to Pam

11 Hupp, correct, which is what the Motion was about?

12 MR. SCHWARTZ: That's not what it says.

13 THE COURT: That's not what it says.

14 MS. ASKEY: Well, it's what the Motion was

15 about.

16 THE COURT: At this point, the Court is not

17 granting a mistrial. We're just going to direct the parties

18 to stop talking about insurance at this time.

19 MR. SCHWARTZ: Your Honor, then I would ask for

20 an instruction to the jury that the jury is to disregard the

21 State's last statement, and I would then request a mistrial.

22 MR. HICKS: Judge, this is a vital issue and I

23 can grab volumes of Case Law that talks about the existence

24 of an insurance policy where the defendant was the

25 Beneficiary is relevant. It goes right to motive. That's my

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 point.

2 Had they established some sort of direct

3 evidence, they would be able to get into the fact that there

4 was an insurance policy out there now naming Pam Hupp as a

5 Beneficiary but they couldn't establish the direct evidence.

6 The defendant's on trial here. This evidence

7 that he knew about the existence of three insurance policies

8 goes right to motive.

9 THE COURT: Let me go back to May.

10 MR. SCHWARTZ: I'm sorry.

11 THE COURT: I'm going to go back to May because

12 they're referencing the May rulings.

13 MS. ASKEY: Which all involved Pam Hupp.

14 MR. SCHWARTZ: So if I'm clear, the State is

15 saying that because the defendant is on trial and accused of

16 having an insurance policy, that's motive, but if a witness

17 who's last with the decedent has a recent insurance policy in

18 the name of the victim, that's not motive and that's not

19 relevant.

20 MR. HICKS: No, I'm not saying it's not motive.

21 MR. SCHWARTZ: You are saying there's no direct

22 connection.

23 MR. HICKS: It's not relevant because there's

24 no direct evidence connecting her to the crime. That's the

25 Case Law.
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1 I just said that if you establish direct

2 evidence connecting her to the crime, then you would be able

3 to get into that. That's been our whole point.

4 MR. SCHWARTZ: Judge, the only difference is

5 there is no evidence connecting Mr. Faria to the crime unless

6 and until the jury determines that. There's more direct

7 evidence connecting that witness to the crime. That's all

8 been debated.

9 THE COURT: I think I'm going to go back to

10 State's Motion because their Motion is granted. The first

11 ruling doesn't talk about any of it. It's just a blurb that

12 I read through in the second one.

13 The first one just says the Motion is granted.

14 MS. ASKEY: It was granted twice.

15 THE COURT: But I have to look at the Motion to

16 see what exactly the Motion asks to be granted. 514.

17 State's original Motion in Limine is directed

18 directly at the defense that someone else committed the

19 crime, and the discussion of the insurance policy in that

20 instance is discussing the Beneficiary status. It's stating

21 that there's no direct evidence.

22 The initial Order addressing that just says

23 nothing about the existence of a policy. It says (as read),

24 "The State's Motion in Limine directly states the status of

25 the law regarding a motion into evidence of a third party

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1 direct connection."

2 It says some other things that have nothing to

3 do with policies. Motion was granted.

4 The second Order then. After rereading the

5 State's Motion and the original Order, as well as subsequent

6 Order of October 28, 2013, those Orders are all directly

7 relating to the issue in the Motion, which was State's Motion

8 in Limine regarding a third party, and it doesn't have

9 anything to do with issues outside of that.

10 At this point, the State can proceed.

11 MR. SCHWARTZ: Your Honor, so I can make a

12 record. The last State's, the last Order from the Court

13 correctly stated that the issue of any insurance policies is

14 inadmissible and will only cause confusion with the jury.

15 THE COURT: That's a mischaracterization as I

16 just stated after reading both Orders together.

17 MR. SCHWARTZ: So the Court is saying that the

18 State can get into the Beneficiaries of the insurance policy?

19 THE COURT: No.

20 MR. SCHWARTZ: Just the fact that the --

21 THE COURT: I'm just saying the fact they

22 mentioned it existed at this point doesn't mean anything.

23 Assuming they are going to do what they are saying they are

24 going to do and not do anything--

25 MR. SCHWARTZ: The fact that--

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1 THE COURT: --except it may come out what he

2 said, but that's fine.

3 The statement that I read from that Order has

4 to be taken in full, of the full Order as it related to the

5 prior Order and the State's filing.

6 MR. SCHWARTZ: So my Motion for the Jury to

7 Disregard is overruled?

8 THE COURT: Right. That's correct.

9 MR. SCHWARTZ: And my Motion for a Mistrial --

10 THE COURT: --is overruled.

11 MR. SCHWARTZ: Thank you.

12 THE COURT: Thank you. State may proceed.

13 (End of bench discussion.)

14 MS. ASKEY: You are going to hear evidence that

15 the victim had, and that the defendant was aware of,

16 insurance policies. And in his statement to the police

17 officers when he came in and voluntarily gave a statement, he

18 says he believes there to be between 300 and $400,000 and he

19 believes he's the Beneficiary of those policies.

20 You are going to hear that the defendant had a

21 short temper, a short fuse. He oftentimes would instigate

22 arguments that would result in name-calling and disrespectful

23 statements to his wife and her daughters.

24 You're going to hear that his language that he

25 chose to use is some that I don't even feel comfortable

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1 saying to you, frankly.

2 You're going to learn that sometimes his anger

3 got so out of control he was even abusive to the family dog.

4 In December of 2011, December 24th, the Faria

5 family Christmas kind of took off without a hitch, initially.

6 And the family, Betsy, the defendant and Betsy's two

7 daughters went and celebrated Christmas on the 24th with part

8 of his family. They all then came back to Troy so that they

9 could spend Christmas morning together.

10 You're going to hear that Christmas morning was

11 typical in some regards but a few differences. You're going

12 to hear that they left separately and they then went to

13 Betsy's family that afternoon for Christmas.

14 On Christmas evening, then, Betsy would return

15 back to Troy with the defendant and on the 26th, the next

16 day, they got up early, went to his family and then right

17 after that, went to her family. Betsy didn't come home again

18 after that.

19 After she left her house in Troy on the 26th of

20 December, 2011, she didn't return until the evening when she

21 was murdered.

22 Now on the 26th, she stayed the night, as she

23 often did, and you'll learn the majority of the time she

24 stayed with her mother. That's where she stayed on the 26th.

25 The 27th, she spent the day at chemotherapy

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1 with a friend of hers, and then on that evening, she decided

2 she needed to come back to Troy to get some rest.

3 Her mother had a house guest. Her daughter was

4 already staying there. She was feeling under the weather.

5 She was going to come back to Troy, get some rest and,

6 hopefully, everything was going to be fine.

7 You're going to learn from the defense that he

8 has an alibi. The alibi, I'd like to talk about just a

9 minute for you so that you can get an idea of what that's

10 going to be like.

11 So on the 27th, when Betsy Faria lets her

12 husband know that she's going to be home. Home where, he

13 says. To Troy. I'll come back to Troy tonight. I'm tired.

14 I don't feel well. My blood count is low.

15 He then -- and I need to do a little sidebar.

16 He has a standing game that he plays with his buddies every

17 Tuesday night and he has been doing that for over a decade.

18 And on that Tuesday night prior to his game, he also always

19 goes to his mother's house for dinner. Religiously, every

20 Tuesday night.

21 This Tuesday, because it was the holidays, I'm

22 assuming, there was no game. The game was cancelled.

23 The first thing you'll hear Betsy or you'll see

24 text messages from Betsy to Russ where she says, do you have

25 a game tonight? Do you think he says no? No. Instead, he

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1 starts orchestrating a plan with the same people. I know we

2 can't play the game tonight but how about, instead, let's get

3 together and watch Conan the Barbarian or something.

4 Now this isn't a game like you guys are

5 probably thinking about. I'm not talking about poker. Not

6 pitch. Not blackjack. No three card stud. No. This is a

7 role-playing game where this band of merry men dressed like

8 hobbits act like monks, sorcerers, all sorts of things that I

9 don't really understand, and they do that every Tuesday night

10 while they smoke pot and drink beer.

11 But this Tuesday was different. Betsy says

12 she's coming home. She asks him if he's playing the game.

13 He waits until he gets some commitment from them that they

14 are all going to get together anyway, and then he tells her,

15 yeah, I'm playing.

16 On the next breath, he calls his Mom. Mom, I

17 know I have dinner with you every Tuesday night but tonight

18 I'm canceling because I have too many errands to run. Can't

19 come over tonight. The errands are my favorite part.

20 So he talks to his wife a little after 5:00

21 and, immediately, once he tells his Mom, I've got all of

22 these errands, the wheel gains momentum.

23 He leaves his house at 130 Sumac in Troy and he

24 goes to the Conoco station in Troy. Gets gas. Gets a

25 receipt. Gets on video.

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1 From there, he drives about 12 miles to

2 Wentzville to the U-Gas. I'm sure some of you are familiar

3 with Wentzville. This is the U-Gas on the Wentzville

4 Parkway, which is also ironic because his goal was to get to

5 the Highway N and Greenes Country Store.

6 So rather than go to the U-Gas on Highway Z, he

7 went to the U-Gas on the Wentzville Parkway. He bought a

8 carton of cigarettes. Interestingly, they also sell those

9 same cigarettes in Conoco in Troy and you'll hear evidence to

10 that. He got a receipt. He got on video.

11 Soon as he left there, he proceeded to the

12 Greenes County Store where he bought dog food, got a receipt

13 and directly from there he went not a mile down the road to

14 the QuikTrip. All of this happens within about a 30-minute

15 window.

16 At the QuikTrip, he buys Snapple. You know the

17 tea that's in a jar that they sell at Conoco and U-Gas? Got

18 a receipt. Got on video.

19 After he did that, then he sort of drops off

20 the radar for the next three hours, roughly, and then, as

21 luck would have it, he goes to Arby's in the same area down

22 in Lake St. Louis and he buys a sandwich and, guess what?

23 Keeps the receipt. That's his alibi.

24 He gets his sandwich and then goes home to his

25 ailing wife who's just been through chemotherapy that day.

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1 Now the officers that met with him initially,

2 they are going to tell you about his emotion. This guy's

3 emotions were all over the place. He was really up; wailing,

4 crying. You'll hear that.

5 You'll hear that on the 9-1-1 tape, and the

6 only time that he's not wailing and crying, with no tears by

7 the way, ever, is when he's answering their questions or

8 asserting his alibi. He can just shut it off, answer a

9 question and then commence the wailing.

10 They'll tell you how he told them when he got

11 home, the family dog was on the chain in the backyard. But

12 you're going to see Betsy's sweatpants that she was wearing.

13 And you're going to see a paw print on her hip in her blood.

14 You're going to hear evidence and testimony

15 that there were cleaning agents used on the floor between

16 where her body was and the back door where the dog chain was.

17 You're going to see evidence that there was

18 blood on the light switch in the master bedroom, the

19 defendant's bedroom, that was Betsy Faria's, but he'll tell

20 the police officers that he never went back there.

21 You're also going to see his slippers, the ones

22 that his stepdaughters will say he always wore. His slippers

23 tossed in the back corner of a closet, a very disheveled

24 closet, with Betsy Faria's blood all over them.

25 You're going to hear from the family about the

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 planning of her memorial service and how the defendant was

2 insistent that she not just have a Catholic service like her

3 family had wanted, but that she had a separate service and at

4 the end of the day, she would be cremated, which he attended.

5 Folks, what I think you'll find the most

6 telling is when the defendant talks to the police officers

7 and he talks about how he came in the door, and you're going

8 to see photographs of that.

9 You're going to see that Betsy's body was no

10 further than from me to you when he walked in the door and he

11 carefully laid his coat on the chair and took his gloves off

12 one by one and placed them nicely.

13 He tells the detectives how he was so

14 distraught he laid down next to her. He shows them he laid

15 this close to her, just trying to get it together and figure

16 out what to do, realizing that she was gone.

17 But you're going to find out not only did he

18 not have one speck, not one speck of blood, not on his hands,

19 not on his clothes, but he lay next to her.

20 A woman who has been stabbed 56 times, who has

21 a knife protruding from her neck, whose wrists are lying

22 upright and are almost, her hands are almost cut off, and he

23 lays this close to her. And yet when he calls 9-1-1, I just

24 got home from a friend's house and my wife, she killed

25 herself.
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1 Ladies and gentlemen, after you hear all of the

2 evidence, the State trusts that you will return a verdict of

3 guilty.

4 THE COURT: Does the defendant wish to make an

5 opening statement at this time?

6 MR. SCHWARTZ: Yes, Your Honor.

7 THE COURT: You may. Thank you.

8 MR. SCHWARTZ: Good morning, ladies and

9 gentlemen.

10 JURORS: Good morning.

11 MR. SCHWARTZ: The evidence is going to show

12 that that is absolutely a tragedy. It's a tragedy for the

13 Meyer/Faria family.

14 It's also a tragedy for Russ Faria. His wife

15 of 11 years was brutally murdered on December 27, 2011, and

16 he's the one who found her.

17 Now we go back to Christmas, Leah and Mariah,

18 the two, Betsy's two daughters had stayed there Christmas

19 Eve. They had a relatively uneventful Christmas morning.

20 This is a typical family today. Two kids

21 brought in. Stepfather, their mother, and they did move.

22 They found a house and they found a house that

23 was a good price up here in Lincoln County and they moved off

24 Highway H to 130 Sumac.

25 Russ worked as a, as tech support for

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Enterprise Holding. He had been there approximately eight

2 years and he worked out of his basement.

3 He was working overtime. Worked from about

4 7:00 in the morning until 5 o'clock, but he didn't work over

5 the Christmas holiday.

6 So that particular Sunday, they went and they

7 spent Christmas Day with Betsy's mother, who had been

8 recently divorced from Betsy's father. They went there.

9 They went home. The girls spent the night. I think Mariah

10 spent it at Grandma's. Leah spent it at, I think, maybe her

11 boyfriend's.

12 Russ and Betsy get up the next day and they are

13 going, their intent is to go spend Christmas with Betsy's

14 father and then Russ's family, which they do.

15 While at Russ's family, they get a call that

16 Mariah is sick and Mariah is in the hospital. She had a bad

17 case of the flu. So Russ and Betsy go to the hospital, and

18 because Betsy has cancer, her immune system is low.

19 Janet Meyers is also there. They decide that

20 Betsy is not going into the hospital with all of the sickness

21 and germs floating around. So Betsy and Janet leave and they

22 go back to Janet's house.

23 Russ waits for Mariah and then takes Mariah out

24 there and, because he has to be up early the next morning,

25 which would be Tuesday the 27th, he goes home.

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Betsy stays there because she has chemo the

2 next morning at Siteman, which is closer to Janet's in Lake

3 St. Louis.

4 Now Betsy had been diagnosed in December of

5 2009 with breast cancer. They thought that the breast cancer

6 was possibly cured because Betsy went into remission in early

7 2011. So Russ and Betsy, along with several other friends,

8 planned what they called a "survival cruise" that was to take

9 place in November of 2011.

10 Unfortunately, in October of 2011, Betsy found

11 out that there was a recurrence of the cancer and that they

12 believed it was terminal. It had spread to the liver and

13 that the medical staff felt that she had a very limited time

14 to live, just a couple years, potentially.

15 Russ and Betsy, along with those friends

16 decided they had paid for the cruise and Janet Meyers,

17 Betsy's mother, went on the cruise along with them.

18 They came back from the cruise. They had

19 Christmas together, and then on the 27th, Russ wakes up.

20 He's at home. He goes down to the basement. He's got to be

21 on those phones at the basement for the tech support at

22 7:00 a.m.

23 So he's down there. And as you heard, and as

24 you will hear, the evidence will show pretty much every

25 Tuesday they would go, Russ would go over to his friend,

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1 Michael Corbin's house.

2 It would take all six -- they played a game

3 called RoleMasters. If all six weren't there, sometimes they

4 would play a game called Talisman. Other times, they would

5 simply watch a movie.

6 You will hear that this was a cheap, fun, easy

7 way to enjoy their evenings. He would go over there

8 approximately 6:00 to 9 o'clock almost every Tuesday evening.

9 You'll hear on this Tuesday, one of the people,

10 a guy by the name of Richard May, couldn't make it, so they

11 couldn't play that role playing game called RoleMasters, so

12 they were going to do something else.

13 You will see, earlier in the morning, Betsy had

14 texted Russ, pick me up some dog food. You are supposed to

15 get food tonight. Then she says, you have got game tonight?

16 As the State's evidence will show you, he says,

17 I'll get it when I come in, referring to the dog food, and

18 then he texts Mike Corbin, who lives with his girlfriend,

19 Angelia Hulion. Hey, we got game? They said, no game

20 tonight. Still cool to come over? They said, yeah. He

21 said, sweet. See you then.

22 Then he tells Betsy, yeah, we've got game.

23 I'll come get you after. We'll call when on the way. Should

24 not be too late. Continues to work. That text is

25 approximately noon.
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 As he's working that afternoon, he gets

2 additional text from Betsy. She's now at the chemo

3 treatment.

4 Apparently, the plans have changed because she

5 says that she got toilet paper and her friend, Pam Hupp wants

6 to bring her home to bed. She needs rest and her white blood

7 count is low.

8 He says, so you're coming home here? She says,

9 yes, Troy. He says, she is bringing you? Referring to her

10 friend, Pam. She says, yes. She offered and I accepted. I

11 didn't get much sleep. Mom snored. He says, okay. See you

12 then. She says, okay. Great.

13 So he leaves the house approximately --

14 finishes working. He's wearing his boots, jeans, an orange

15 T-shirt, a black leather jacket and a baseball cap.

16 He leaves. He stops at Conoco to get gas. The

17 Conoco right there at the edge of the highway.

18 He doesn't get on video, but it turns out later

19 that he is on video getting his gas and it shows the time

20 he's there, approximately 5:12 to 5:16 or 5:16 to 5:20.

21 He then leaves there, and you'll see there is a

22 12 and a half minute call to his mother saying, I'm not going

23 to make it tonight.

24 He had just been with her the night before or

25 the day before celebrating Christmas. He has these errands

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
217

1 to run, including picking up the dog food.

2 So the next stop he makes is at U-Gas. He gets

3 Decade cigarettes and that's where they are cheapest and he

4 gets those at the U-Gas. He's on video there as well, just

5 as the State alleges. He doesn't get on video. He happens

6 to be on video.

7 You will see the clothing he is wearing, which

8 will be the exact same clothing when the police showed up

9 later that night.

10 Again, we're in agreement. Not one speck of

11 blood on that clothing. Not one speck of blood on his hands.

12 No blood. Anywhere.

13 He continues from U-Gas, goes to Greenes

14 Country Store. Gets the receipt. He's got an account there.

15 Leaves Greenes Country Store and stops, before he gets to his

16 friends', at QuikTrip and goes in.

17 And you will hear from Mike Corbin. His

18 girlfriend Angie Hulion, Brandon Sweeney and Marshall Bock.

19 They will all tell you Russ arrived right around 6 o'clock.

20 They will all tell you, we were all there. We

21 smoked a little bit of marijuana. We watched the movie The

22 New Conan. Then we put on another movie called The Road. We

23 will all tell you it was really boring and about halfway

24 through it, they turned it off and everybody decided to

25 leave.
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1 You'll also hear from these individuals they

2 were each interviewed twice by the police over the next day.

3 They were interviewed, taken to police departments and

4 interviewed separately.

5 They will all tell you Russ showed up at 6:00.

6 He never left. It was normal routine that he left

7 approximately 9 o'clock that night.

8 You will also see cell sites. You'll see where

9 Russ's phone was when he was at home when he made calls. You

10 will see from the cell towers that Russ traveled down and had

11 that 12 minute conversation where he was.

12 You'll see that he then, he got what they call

13 a "ping", where if I get an e-mail on your phone or something

14 along those lines, it will show what cell tower and what

15 quadrant you're in.

16 You'll see that Russ traveled all the way down

17 to Highway N to go to Mike Corbin's. Now there was no

18 activity for the next few hours.

19 Those four people will tell you he never left.

20 This is something he does every Tuesday. Nobody calls him

21 during those few hours and if they do, he generally won't

22 answer.

23 As a matter of fact, you'll see he gets a call

24 and the call turns out to be from a land line from Janet

25 Meyer after she got a call, which is Betsy's mother, and he

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
219

1 didn't answer that call. He wasn't familiar with that

2 particular number, and some of them will tell you he got a

3 call; he looked at the phone.

4 So Russ leaves Michael Corbin's at 9 o'clock.

5 He hasn't had dinner, so he stops at Arby's. He makes his

6 order. There's a ticket that says "9:09 p.m."

7 Pulls around the corner. Waits for it. Gets

8 his food. They staple the receipt to the bag and he heads

9 home, eats his food, crumples up the bag and throws it on the

10 floor of the seat of the car.

11 Now what you'll hear regarding Betsy's day.

12 Betsy did spend the night at her mother's that night.

13 Betsy's Mom had a friend who was from out of town staying

14 with her and her friend's name was Bobbi Wann.

15 You'll hear that her friend, Pam Hupp, texted

16 her and offered to take her to chemotherapy. That Betsy

17 responded, no, want to spend some, going with Bobbi want to

18 spend--

19 MS. ASKEY: Judge, I'm going to object as to

20 hearsay.

21 MR. SCHWARTZ: Your Honor, it's not hearsay.

22 It's a text that's going to be in the record.

23 MS. ASKEY: Which is hearsay.

24 MR. SCHWARTZ: It's according to the police

25 officer.
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 MS. ASKEY: May we approach?

2 THE COURT: Yes.

3 (Discussion at the bench.)

4 MR. HICKS: Judge, I don't know that there's

5 any text exception to the hearsay rule. These are statements

6 through the text made to Russ Faria evidently or to, I mean,

7 to Pam Hupp. I'm sorry, to Pam Hupp. Our objection is

8 hearsay. I'd like to hear the exception.

9 MR. SWANSON: These statements are text

10 messages between Pam Hupp and Betsy Faria that were read off

11 of Pam Hupp's phone by the police officers who interviewed

12 her. The present recollections immediately recorded.

13 MR. SCHWARTZ: That's Number 1, and Number 2,

14 this woman is endorsed and going to be testifying. They are

15 text messages to and from her.

16 MR. SCHWARTZ: She had talked about what those

17 text messages were.

18 MR. HICKS: Yes. Then can't she also talk

19 about the other stuff that Betsy told her that day?

20 MS. ASKEY: Right.

21 MR. SCHWARTZ: This isn't what Betsy told her.

22 Betsy said something to her and she responded.

23 MR. HICKS: A text is telling something to

24 somebody. It doesn't lose its status because it's suddenly

25 data.
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 MR. SWANSON: She will say, I said this to

2 Betsy. That's not a hearsay statement.

3 MR. HICKS: I understand with Pam, but I'm

4 talking about the responses from Betsy back to Pam.

5 MR. SWANSON: The responses come in for effect

6 in the course of the conversation.

7 MR. SCHWARTZ: It explains her subsequent

8 conduct. There is not hearsay. You can cross-examine her on

9 that. It's different.

10 MR. HICKS: Again, then I'm wondering how come

11 the other statements made by Betsy don't come in as well,

12 then, under the same exception that you are saying?

13 MR. SWANSON: Because those are Betsy's

14 statements describing something that happened sometime in the

15 past as opposed to the conversation between the two of

16 them --

17 MS. ASKEY: No, that day. The 27th.

18 MR. HICKS: That day. The 27th. We're talking

19 about --

20 MR. SWANSON: Yes, she said these happened back

21 then.

22 MR. HICKS: You're talking about statements

23 that Betsy allegedly made to Pam Hupp about what she's going

24 to do. No, I don't need you to pick me up. I am going to do

25 this.
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 How is that any different from two hours later

2 where she is saying, this is my intention to go up there and

3 tell Russell this stuff? I don't get the difference.

4 MR. SCHWARTZ: It's the present tense recorded.

5 That's number one.

6 MR. HICKS: We will let you get into it if you

7 agree that that's the same.

8 MR. SCHWARTZ: They're not the same.

9 THE COURT: They are the same because they can

10 argue the same that puts her present as well.

11 MR. SCHWARTZ: All right.

12 MS. ASKEY: So if you want us to get into the

13 others, that's fine. It's one or the other. We either get

14 them all in or we don't.

15 MR. SCHWARTZ: No.

16 THE COURT: So do you want to do it or --

17 MR. SCHWARTZ: I'm not getting into it if the

18 Court rules. I disagree with the -- I disagree.

19 THE COURT: Over objection by defendant, the

20 Motion is sustained.

21 MS. ASKEY: Thank you, Your Honor.

22 (End of bench discussion.)

23 MR. SCHWARTZ: You will hear that Bobbi Wann

24 and Betsy went to chemo together and that Pam Hupp showed up

25 sometime later.
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
223

1 You'll hear that Bobbi then left with Pam -- I

2 mean, I'm sorry, with Betsy and went to have dinner and went

3 back to Janet's house to play a game they called Upwards.

4 Pam didn't go with them, but you will hear that

5 Pam did show up at Janet's house, who also lives in O'Fallon,

6 or Lake St. Louis, and ultimately gave Betsy a ride home.

7 You'll hear testimony that they left the house

8 approximately 6:30. You'll hear testimony and you'll see

9 evidence that there was a call made at 7:04 from Pam's phone

10 to her husband, his name was Mark Hupp, and they left a

11 message for her husband saying, we just arrived at Betsy's

12 house and Betsy gets on the phone at 7:04 p.m. telling Mark,

13 Merry Christmas, Happy New Year, something along those lines.

14 You'll hear from one of the daughters, Leah

15 Day. Leah will tell you she was on her way with her Aunt

16 Julie to the U.S. Cellular and that she was talking to her

17 Mom and her Mom said she was on her way home with Pam.

18 She told her, Mom, I'm on your account. I'm

19 going to U.S. Cellular to upgrade my phone. Keep your phone

20 on.

21 You will hear that she called her again, once

22 she arrived at U.S. Cellular, at 7:21, and you'll see

23 evidence of that as well. There was no answer.

24 You'll hear that she called her again at 7:26

25 p.m. There was no answer. You'll hear she called her again
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
224

1 at 7:30 p.m. This is all -- there was no answer.

2 This is all after approximately 20 minutes

3 earlier telling her, Mom, keep your phone on. I need you to

4 answer.

5 You'll see cell sites to show at 7:04 p.m. when

6 Pam Hupp and Betsy made that call to Mark Hupp, that they

7 were in the same quadrant of the cell tower at Betsy's home

8 and Russ's home up there off Sumac, off Highway H, about ten

9 minutes away from here. You'll also see cell site

10 information at 7:27 that Pam's phone was still in that same

11 quadrant and that same cell site tower up off 130 Sumac.

12 You'll hear evidence from police officers Pam

13 Hupp initially said she didn't go in the house, but then she

14 changed it and said she did go in the house.

15 MS. ASKEY: Judge, may we approach?

16 THE COURT: Yes.

17 (Discussion at the bench.)

18 MS. HICKS: Judge, we think all of this stuff

19 about her cell phone off that cell tower at 7:26, the fact

20 that she told the police initially that she went in and then

21 she didn't go in. At this point, the only relevancy that

22 they would be talking about in this, in opening statements is

23 to suggest that she's the one who committed this crime.

24 Pursuant to our previously filed Motion in

25 Limine, it's not relevant, and so we ask that he not be able

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 to -- I don't know what the purpose is in talking about it.

2 What other relevance is there other than to

3 suggest she did this? Per the State's, per our Motion and

4 your ruling of it, they shouldn't be able to get into it.

5 MR. SCHWARTZ: Your Honor, the jury can

6 determine whatever they want to determine. It's the facts

7 and it's evidence. I'm not misstating anything. Those are

8 the facts. I mean, I have a right to state the facts. I'm

9 not making any arguments here.

10 MR. SWANSON: By Statute prior inconsistent

11 statements of a witness are admissible a the party can argue

12 the truth of those prior inconsistent statements.

13 Are you saying that we can't argue based on her

14 prior and inconsistent statements?

15 MR. HICKS: I'm not saying that at all, Nathan.

16 I'm saying it's not relevant. It may be the facts.

17 MR. SCHWARTZ: Isn't that relevant?

18 MR. HICKS: Yes, it may be the facts but

19 because it's a fact doesn't make it relevant.

20 It could be a fact that the defendant invoked

21 his right to not talk. We can't get into that fact. Because

22 it's a fact means nothing.

23 What it goes to is why is this fact relevant?

24 This fact is only relevant to them to suggest that she did

25 it. Prior inconsistent statements, I agree, but they are

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
226

1 only relevant. They only come in as substantive evidence if

2 they are relevant.

3 Again, the only relevance here would be to

4 suggest that she did it, and the Court has already ruled that

5 that's not a relevant fact to get into.

6 MR. SWANSON: The Court hasn't ruled that we

7 can't present evidence as to her motive or opportunity to --

8 MR. HICKS: Right. Present evidence as to --

9 MR. SWANSON: -- to her motive or opportunity,

10 which I'm not doing. They are prior and inconsistent

11 statements, impeaching. They are admissible to impeach her

12 to show her bias, to show her interest. We can argue the

13 truth of the matter. The Statute is clear. It is

14 unequivocal.

15 MR. HICKS: I don't--

16 MR. SCHWARTZ: Your Honor, additionally, the

17 State has not alleged a time of death, and I don't know when

18 the State is going to allege it happened, and I still don't

19 know after watchinging opening statement. So the fact that

20 Pam Hupp went in there and went into the house or didn't go

21 in the house is all relevant in addition to what we stated

22 before, in addition to the time of death.

23 MR. SCHWARTZ: It establishes the -- She's the

24 last person with her.

25 MR. HICKS: Okay. Again, I don't disagree with

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
227

1 some of that, the fact that she dropped her off at a certain

2 time period. That she went in. Came out. But he's going

3 into prior inconsistent statements at this point as opening

4 statement.

5 There would be no other reason to do this than

6 to suggest that she did it to commit this crime. And again,

7 Nathan, I don't disagree with you that a prior inconsistent

8 statement can be used as substantive evidence, but it still

9 has to get over the relevance threshold.

10 This Court has determined that this line of

11 questioning, these facts are not relevant because they only

12 serve to suggest to this jury that Pam Hupp committed this

13 crime.

14 THE COURT: Based on the Court's prior ruling,

15 the defense is not going to be allowed to get into this at

16 this time.

17 If she testifies, if there's something they

18 need to bring in or that some inconsistent, they will be

19 precluded at that point.

20 MR. SCHWARTZ: So I can't open regarding the

21 statements that she made to the police that are inconsistent.

22 Is that what you are saying?

23 THE COURT: I don't think they are relevant at

24 this point. That was a prior ruling. I don't know how that

25 would change.
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 MR. SWANSON: That has nothing to do with the

2 Court ruling that I can't get into her motive or opportunity

3 to commit the crime.

4 THE COURT: Just no. It's sustained. Let's

5 move on.

6 (End of bench discussion.)

7 MR. SCHWARTZ: Ultimately, what you'll hear is

8 that Russell arrived home and, based on cell site towers and

9 what our expert will testify, on his way home and calls he

10 made from previous calls, the earliest he could have arrived

11 home is approximately 9:38. Earliest he could have arrived

12 home was 9:38 p.m.

13 He gets his bag out of the car which is a big

14 bag of dog food. Walks in the house. Tells the police he

15 laid it down by the garage door because that's where it goes,

16 took his coat off and then he saw Betsy on the floor.

17 And did he call the police and say, I think my

18 wife committed suicide? He did, and you'll hear that.

19 You'll also hear from her sister, Pam Welker,

20 and from her sister, Mary Rodgers, and from her daughter,

21 Mariah Day.

22 Mariah will tell you that the mother, that

23 Betsy had left a note before contemplating suicide. Pam will

24 tell you that when she first--

25 MR. HICKS: Judge, may we approach?

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 (Discussion at the bench.)

2 MR. HICKS: I'm going to object on hearsay,

3 first, and then I'm going to point out we can't but they can.

4 You can get up there and talk about a note that

5 Betsy left contemplating suicide. That her sisters can get

6 up and they say that they are going to bring out that she

7 left a note contemplating suicide, but this case isn't about

8 suicide.

9 MR. SWANSON: But --

10 MR. HICKS: No. No. No. You can get into

11 those statements, but we can't get into the statements that

12 she said on the 27th, two hours before she was killed?

13 That's unbelievable.

14 MR. SWANSON: The officers asked of the

15 witnesses, what could have happened to your mother? The

16 witnesses said, well, she might have been a suicide because

17 this is what happened in the future.

18 That is not saying that these actually

19 happened. I'm saying that this is suicide. You are saying

20 that he couldn't possibly believe it's suicide.

21 MR. SCHWARTZ: These aren't statements. What

22 the testimony is going to be is that that's what they

23 believed. That's what they told the police officer.

24 That's not hearsay. That's their only

25 personal --
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 MR. HICKS: How would that not be hearsay?

2 MR. SCHWARTZ: She didn't tell them anything.

3 I'm not going to say she told them anything.

4 MR. HICKS: You just mentioned that she said

5 that they talked about a note; that she had contemplated

6 suicide.

7 MR. SCHWARTZ: It's their response. That's

8 what they told the officer.

9 MR. HICKS: Okay. I think if they are allowed

10 to get into it, which, have at it, guys, we should be able to

11 get on the 27th that she was happy, excited, wanting to go

12 home and tell him all this stuff.

13 THE COURT: The jury is going to make their own

14 decision if it's suicide or not.

15 MR. HICKS: It's not suicide.

16 THE COURT: So when it gets to be your chance

17 and this comes up again, you may very well be able to get

18 into what you want to hear.

19 So it's going to be both ways.

20 MS. ASKEY: Thank you, Judge.

21 THE COURT: At this point, they can proceed.

22 (End of bench discussion.)

23 MR. SCHWARTZ: So you'll hear Russ went in and

24 called in and said, I think my wife committed suicide. Then

25 you'll see the pictures, and what you'll see is a big gash in
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
231

1 one of her arms, blood all over her face, and you will see a

2 knife in her neck.

3 You'll hear an explanation and you'll

4 understand as to why that was stated.

5 You'll find that the police then showed up

6 along with paramedics. A paramedic by the name of Mike

7 Quattrocchi showed up. Fire Chief Robert Schramek showed up.

8 They will tell you that they both, each

9 individually felt the body, noticed the blood.

10 They will each tell you that the body was

11 stiff. They will tell you that she felt cold, and they

12 will tell you that the blood was matted, coagulated and

13 drying.

14 You'll hear from all of the evidence techs that

15 went in the house. You'll see those shoes that she found

16 soaked in blood, including the bottoms of those shoes, but

17 what you won't see is any bloody footprint anywhere in that

18 blood.

19 What you won't see, after 56 stab wounds and

20 incisors, is a speck of blood anywhere on Russell Faria.

21 You will hear, through the course of the

22 investigation, Russell went to the Police Department. He

23 spent the next 48 hours with the police talking to them. Two

24 full days.

25 They conducted their investigation. They went

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1 and talked to those four alibi witnesses that the State

2 talked about.

3 They went and got those videos because he told

4 them where he was. Fortunately, they were able to get the

5 receipts and those videos.

6 They searched the car. They found crumpled

7 up in his trash that receipt showing he was at Arby's at

8 9:09 p.m.

9 After you'll hear the evidence, I will stand

10 before you and I will ask you to return a verdict of not

11 guilty. Thank you.

12 THE COURT: Are you ready to proceed?

13 MS. ASKEY: Yes, Your Honor. The State would

14 call Mariah Day.

15 EVIDENCE ON BEHALF OF THE STATE

16 THE COURT: Mariah Day, if you would please

17 step forward to be sworn.

18 MARIAH LYNN DAY,

19 a witness, having been duly sworn by the Circuit Clerk to

20 tell the truth, the whole truth and nothing but the truth, so

21 help you God, under the pain and penalty of the Perjury Laws

22 of Missouri, testifies as follows:

23 DIRECT EXAMINATION

24 BY MS. ASKEY:

25 Q. Mariah, would you please introduce yourself to

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
233

1 the jury?

2 A. Mariah Day.

3 Q. Mariah, how do you know the defendant?

4 A. He's my Dad. Well, he raised me.

5 Q. He's your stepfather?

6 A. Stepdad, I guess.

7 Q. And how do you know Betsy Faria?

8 A. She's my Mom.

9 Q. Mariah, do you see Russ Faria in the Courtroom

10 today?

11 A. (Nodding.)

12 Q. Could you please identify him? I know this is

13 hard. I'm sorry. Are you okay? Can you please identify him

14 by where he's sitting and what he's wearing?

15 A. He's wearing a gray suit.

16 Q. And you said to what direction?

17 A. Left.

18 MS. ASKEY: I'd ask the record to reflect the

19 witness has identified the defendant.

20 THE COURT: The record shall so reflect.

21 Q. (By Ms. Askey) Do you want to take a minute?

22 Do you want me to get you some water? Here.

23 Let's talk about something better.

24 A. Okay.

25 Q. Where do you go to school?

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
234

1 A. St. Charles Community College.

2 Q. And you're getting your --

3 A. Basics.

4 Q. Your general education?

5 A. Uh-huh.

6 Q. So you graduated?

7 A. Yes.

8 Q. Where did you graduate from?

9 A. Timberland High School.

10 Q. Where is that?

11 A. Wentzville District.

12 Q. Okay. And what do you like to do for fun?

13 A. Hang out with my friends.

14 Q. Where do you work?

15 A. I work at St. Louis Vapor selling electronic

16 cigarettes.

17 Q. How long have you worked there?

18 A. Like two months.

19 Q. Okay. When did you graduate?

20 A. 2012.

21 Q. Okay. So that was just last year, right?

22 A. Yes.

23 Q. Okay. How long did you go to school in the

24 Wentzville District?

25 A. Since kindergarten.
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
235

1 Q. Okay. And so where did you live when you were

2 in the Wentzville District?

3 A. With my Grandma.

4 Q. Okay. And how long did you live with your

5 Grandma?

6 A. For like two years. Maybe just a year.

7 Q. Okay.

8 A. Whenever they moved out to Troy.

9 Q. Okay. How old were you, Mariah, when your Mom

10 married Russ Faria?

11 A. Five, I think.

12 Q. Okay. And at that time, you lived in Lake St.

13 Louis, that area; is that right?

14 A. Yes.

15 Q. Okay. And at some point, Russ decided to move

16 to Troy; is that right?

17 A. Uh-huh.

18 Q. Do you remember how old you were when that

19 happened?

20 A. I think I was 16.

21 Q. Do you remember what grade you were in school?

22 A. A junior in high school.

23 Q. And how did you feel about moving out to Troy?

24 A. I wasn't -- I did not want to move out to Troy.

25 Q. You don't like it here?

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
236

1 A. I tried Troy for a couple months, and I didn't

2 like it.

3 Q. Okay. And so after that, then, is that when

4 you went to live with your grandmother?

5 A. Yes.

6 Q. After you moved out here?

7 A. Yes.

8 Q. So then did you resume school back where you

9 had previously gone, with the friends that you had previously

10 gone with?

11 A. Yeah.

12 Q. Okay. Was your Mom supportive of that?

13 A. Not at first, but after my aunt talked to her,

14 she was.

15 Q. Okay. And did your Mom spend much time with

16 you and with your grandmother?

17 A. Yeah. She stayed at my Grandma's a lot.

18 Q. Would you say -- when you say "a lot", would

19 you say the majority of the time she stayed there or less

20 than that?

21 A. Three or four days out of a week.

22 Q. She stayed down there with you?

23 A. Uh-huh.

24 Q. So if -- your Mom got married when you were

25 five years old. How would you describe the family dynamics?
 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
237

1 A. A lot of bickering and fighting.

2 Q. And was that -- when you talk about bickering

3 and fighting, I know that means different things to all of

4 us. So can you describe to the jury what you mean by, when

5 you say that there was a lot of bickering and fighting?

6 A. A lot of cussing at each other. Yelling across

7 the house.

8 Q. And was that cussing, was that directed towards

9 your mother?

10 A. Usually towards my Mom. Sometimes towards me

11 and my sister.

12 Q. And who was the person that was directing those

13 profanities?

14 A. My Dad. Russell.

15 Q. Okay. Did his temper make you fearful?

16 A. At times, it did. Not all of the time.

17 Q. Did that play any role in your desire to move

18 back to Wentzville and in with your grandmother, the fighting

19 and the bickering?

20 A. Yeah.

21 MS. ASKEY: Joel, are you okay with these?

22 MR. SCHWARTZ: Yes.

23 Q. (By Ms. Askey) Mariah, I'm going to show you

24 what's been marked as State's Exhibit 1, which are six

25 photographs. Can you identify these photographs for me?

 Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
238

1 A. The house in Troy.

2 Q. That is the house at 130 Sumac?

3 A. Yes.

4 Q. And by looking at those photographs, do they

5 look the same as what you remember the house at 130 Sumac to

6 look?

7 A. Yes.

8 Q. Is there anything significantly different about

9 those photographs?

10 A. No.

11 MS. ASKEY: At this time, Judge, I would ask to

12 admit State's Exhibit 1.

13 THE COURT: Any objection?

14 MR. SCHWARTZ: No, Your Honor.

15 THE COURT: State's Exhibit 1 is admitted into

16 evidence.

17 Q. (By Ms. Askey) Mariah, just for the jury's

18 benefit, I'm just going to ask you to describe these photos.

19 Obviously, they are going to tell what's the front of the

20 house and the side and whatnot. But for the jury's benefit,

21 if you would, what photo is that?

22 A. The front of the house.

23 Q. Okay.

24 MR. HICKS: Ms. Askey, do you want to inquire

25 if they can see?