TRANSCRIPT OF PROCEEDINGS
PURSUANT TO SUPREME COURT RULE 24.035
Wednesday, the 17th day of May, 1995
Jasper County Courthouse, Carthage Missouri
APPEARANCES
MR. DAVID DALLY, MR. JOHN BAILEY,
Prosecuting Attorney, and MR. PATRICK BERRIGAN, AND
MR. DOUGLAS CRANDALL, MS. KELLEY HENRY
Assistant Prosecuting Attorney Western Capital Litigation Division
Japser County Courthouse Suite 430, 505 E. 13th St.
Carthage, Missouri Kansas City, Missouri 64106-2866
COUNSEL FOR THE PLAINTIFF COUNSEL FOR THE DEFENDANT
MICHAEL H. ZAJDEL, CCR, CVR
OFFICIAL COURT REPORTER
VERNON COUNTY COURTHOUSE
NEVADA, MO 64772
Page 2
INDEX
ProceedingsPage 3
Pleadings Page 4
Findings By The Court Page 27
Sentencing Discussion Page 27
Sentence and Judgment of the Court Page 29
Proceedings, Supreme Court Rule 24.035 Page 29
Page 3
PROCEEDINGS
This matter came on regularly for hearing on Wednesday, the 17th day of May, 1995, before the Honorable C. David Darnold, Judge of the Circuit Court of Vernon County, 28th Judicial Circuit of Missouri, on special assignment.
The Petitioner, STATE OF MISSOURI, was present in person and was represented by DAVID DALLY ESQUIRE and DOUGLAS CRANDALL, ESQUIRE.
The Defendant, Terence Cupp, was present in person and was represented by DEFENSE ATTORNEYS JOHN BAILEY, PATRICK BERRIGAN, and KELLEY HENRY.
The following proceedings were had.
THE COURT: Okay, this is state of Missouri versus Terry W. Cupp. State ready to proceed?
MR. DALLY: State's ready, Your Honor.
THE COURT: Defendant ready to proceed?
MR. BAILEY: We are ready to proceed, Your Honor.
THE COURT: Mr. Bailey, I show that this was set for -- for some motion hearings, and I was told that the motions were going to be
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passed, and that this was going to be a plea. Is that correct?
MR. BAILEY: That's correct, Your Honor. There has been some discussions between counsel for Mr. Cupp and counsel for the state. With the Court's permission, we'd like to enter into a negotiated plea in this case.
THE COURT: All right. Have you prepared a written petition or plea form?
MR. BAILEY: We have Judge, and it's been marked as Defendant's Exhibit 2A. If I may tender it to the Court.
THE COURT: You may.
[Whereupon Defendant's Exhibit 2A was handed to the Court.]
THE COURT: Mr. Cupp, would you please stand and be sworn.
[Whereupon the Defendant was sworn.]
THE COURT: Mr. Cupp, if counsel for state and Defendant would approach the bench, you probably could hear me better.
[Parties approach the bench.]
PLEADINGS
Q Mr. Cupp, I show on February 16th of 1994, you appeared in this court with your attorney John
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Bailey, at that time were arraigned on the information that was filed herein on the 15th, day before, that you entered a plea of not guilty.
Do I understand you wish to withdraw that plea?
A Yes, sir.
Q And what is your plea at this time to the information as filed, which is a Class A felony of murder in the first degree?
A I forgot.
Q Guilty or not guilty. I'm sorry.
A Not Guilty -- or Guilty. I'm sorry.
THE COURT: Let me find that information that was --
MR. BAILEY: I have a copy.
THE COURT: Do you have a copy to make sure?
Q Mr. Cupp, I'm going to quickly hold up what your attorneys have handed me and has been marked as Defendant's Exhibit 2A, which is a petition to enter a plea of guilty. This particular plea form that was handed to me is a four-page form. On the last page is a line for the Defendant to sign, and above that I see a signature of Terry Cupp. Is that your signature?
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A Yes, sir.
Q And on the front of this page, do you see where it says Defendant's Exhibit A?
A Yes, sir.
Q Is this a form that you filled out?
A Yes.
Q Where it's filled out in blue ink, was this done in your handwriting or your attorneys?
A My attorney's.
Q Okay. You read and write the English language?
A Yes, sir.
Q How far did you go in school?
A First year of college.
Q How many hours of college do you have?
A I couldn't say, sir.
Q Did you complete one year?
A Yes, sir.
Q Would your attorney read the questions to you, you'd give him answers, and he'd fill them out?
A Yes, sir.
Q And did you go over and read all the answers?
A Yes, sir.
Q If I were to go through and reread every question on here, would you give me the same answer?
A Yes, sir.
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Q Do you have any family or friends in the courtroom today?
A I believe so, sir.
Q Okay, who do you have here that is family?
A I believe my sister is here.
Q Okay. And does your sister know that you intend to enter a plea of guilty today?
A Yes, sir.
Q Have you had an opportunity to discuss this plea with your family?
A No, sir.
Q But they do know you intend to plead guilty?
A Yes, sir.
Q Have you had an opportunity to discuss this plea and your case with all your attorneys?
A Yes, sir.
Q Have you told your attorneys everything you know concerning the case?
A Yes, sir.
Q Has everything you've told your attorney been true and complete?
A Yes, sir.
Q Have you ever been hospitalized for any mental disease or illnesses?
A No, sir.
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Q Do you believe you're now suffering from any mental disease or illnesses?
A No, sir.
Q Are you at the present time under the influence of any alcohol, narcotic or medication?
A No, sir.
THE COURT: I think I'll ask your attorneys at this time; although I wasn't the original Judge on this, I've been on it for quite some time; I don't remember that there's ever been any requests for any psychiatric exams on Mr. Cupp. Is that true, Mr. Bailey?
MR. BAILEY: There have been no Court ordered examinations, Your Honor. We have pursued independent examination.
THE COURT: Okay, so you have had examination of your client?
MR. BAILEY: That's correct, Your Honor
THE COURT: And I guess I'll ask you, have they -- have there been any opinions that he -- that he was suffering from any mental disease or defects that would be such as to be a defense, or negate the level of the mental?
MR. BAILEY: No, Your Honor.
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THE COURT: Has there been any opinions that he would not be able to assist you in trial?
MR. BAILEY: No, Your Honor.
THE COURT: Do you, as an attorney, an experienced attorney in working on these cases, see any reasons to dispute those findings?
MR. BAILEY: None whatsoever, Your Honor. I believe that Mr. Cupp is knowingly and voluntarily entering into this plea, and I believe he's competent to do so.
THE COURT: And you've had no problems in talking to him, or in preparing all the motions, or in preparing for trial when you talked to Mr. Cupp?
MR. BAILEY: No, Your Honor.
THE COURT: And, of course, I know that you've been assisted by other attorneys.
Mr. Berrigan, what's -- do you also have the same opinion in talking to Mr. Cupp?
MR. BERRIGAN: Precisely the same, Judge. If anything, Mr. Cupp is above average intelligence. We have not had any problems communicating with him, nor he with us. I don't believe he suffers from any mental disease or
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illness rendering him incompetent to proceed, or any other mental defenses that would negate or exculpate him in his responsibility for this offence.
THE COURT: Ms. Henry.
MS. HENRY: I agree.
THE COURT: The same thing?
[MS. HENRY]: I agree with both Mr. Bailey and Mr. Berrigan, Your Honor.
Q Mr. Cupp, do you understand, under the Constitution United States, State of Missouri, you're entitled to a trial before a court or a jury if you want one?
A Yes, sir.
Q You understand at that trial, you have a right to have your attorneys cross-examine and confront the witnesses who would testify against you?
A Yes, sir.
Q You understand you have a right to compel the attendance of witnesses to come and testify for you?
A Yes, sir.
Q Do you understand at that trial, you have a right to remain silent, cannot be compelled to testify at that trial unless you want to?
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A Yes.
Q Do you understand that before the state could prove you -- before the -- before you could be found guilty, the state would have to prove your guilt beyond a reasonable doubt?
A Yes, sir.
Q And you understand, in Missouri, with a jury trial, that it would be a jury of 12?
A Yes, sir.
Q And do you understand all 12 jurors would have to be convinced beyond a reasonable doubt of your guilt before they could return a verdict of guilty?
A Yes, sir.
Q And do you understand that if they did return a verdict of guilty, then they would determine the punishment that would be assessed?
A Yes, sir.
Q And do you understand that whatever punishment a jury assesses, the Court cannot go over that punishment?
A Yes, sir.
Q You understand I can go under but I can't go over?
A Yes, sir.
Q And do you understand that if you plead guilty,
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you give up all these constitutional rights?
A Yes, sir.
Q And do you understand that there is no appeal from a guilty plea?
A Yes, sir.
Q Did you have a preliminary hearing in which witnesses came and testified against you?
A Yes, sir.
Q And do you remember witnesses and pretty much what they said preliminary?
A Yes, sir.
Q And was Mr. Bailey your attorney at that preliminary?
A I believe so.
THE COURT: And I almost think there was someone else. Didn't you have -- Your other cocounsel was --
MR. BAILEY: I believe Tony Bryan --
THE COURT: I see cocounsel.
MR. BAILEY: -- was my cocounsel at the time, and might have been present for that.
MR. CRANDALL: There was other cocounsel. I don't remember who it was.
THE COURT: All right.
Q Do you understand that there are still some
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motions that have not been ruled on by this Court that your attorneys have filed, and if you plead guilty, the Court won't rule on those motions?
A Yes, sir.
Q And do you understand one of those motions, of course, are the motions we had here today, was going to concern whether or not the Court was going to allow your minister to testify as to various things you may have told him? Do you understand I've never ruled on that matter?
A Yes, sir.
Q And do you understand your attorneys have vigorously fought that, and are willing, and have been willing, to continue to fight that?
A Yes, sir.
Q But you understand if you plead guilty that's waived and that's over?
A Yes, sir.
Q You understand that the various other motions -- I know there's a motion as to who may or may not be present when the DNA tests were done. You understand we've never reached that motion?
A Yes, sir.
Q And do you understand I might have ruled favorably on your attorneys on that?
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A Yes, sir.
Q You understand, since there has been no DNA actually done, you don't know what the results are and your attorneys don't know what the results are? Do you understand that?
A Yes, sir.
Q You understand the results may have been favorable or unfavorable for you?
A Yes, sir.
Q You understand if you plead guilty, it's done and over?
A [Nods head.]
Q And knowing that, you want to go ahead and plead guilty today?
A Yes, sir.
Q Is that correct?
A [Nods head.]
Q Have your attorneys advised you that they're willing to try this case and proceed with it if you want to?
A Yes, sir.
Q Are you completely satisfied the manner and respect which your attorneys have represented you?
A Yes, sir.
Q Have they done everything you think they should
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have done in representing you?
A Yes, sir.
Q Have they done anything you think they should not have done in representing you?
A No, sir.
Q Have you tried to talk to them, and help them, and tell any witnesses maybe they ought to interview, or things that they should do?
A Yes, sir.
Q And do you believe that they have done what you requested of them?
A Yes, sir.
THE COURT: And I think I'll ask your attorneys, and any of them can speak; has Mr. Cupp given you a list of people he'd like to interview and talk to?
MR. BAILEY: He has, Judge.
THE COURT: And have you talked to those people?
MR. BAILEY: We have, Judge. We've also, I might say, conducted numerous depositions in this case. Mr. Cupp has had the opportunity and has taken the opportunity, to read the transcripts of those depositions, and has made very cogent remarks about them and what we might
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pursue as a result of those depositions. So, yes, we have done that.
THE COURT: And I know there has been a lot of discovery in this case, and I know you've been handed a lot of packages. Do you believe you've been able to, had time to sift through most of it?
MR. BAILEY: We have.
THE COURT: Or all of it?
MR. BAILEY: And Mr. Cupp has seen that as well and, again, has read the discovery and has made -- made remarks about that.
THE COURT: Has the state turned over everything that they know about up to the date that they turned things over to defense?
MR. CRANDALL: Yes, Your Honor.
THE COURT: Whether it's inculpatory or exculpatory, or incriminating or not?
MR. BAILEY: There is one document that we haven't Your Honor, because it's recently received, about, I think, Mr. Berrigan going to the Carthage Police Department and viewing the premises. I've received that, and I don't think I've really provided that. But I can't imagine there's any surprise.
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Q Mr. Cupp, you understand that, under the statutes and range of punishment to first degree murder, that there's only two punishments that may be assessed?
A Yes, sir.
Q You understand it's either death, or the other punishment is life without possibility of parole?
A Yes, sir.
Q You understand that in Missouri, and without hearing the case, that there is a thing called instructing down, and there might have been a possibility that the Court would tell the jury that they had options first to decide whether you're guilty of first degree murder or not and maybe --
THE COURT: Is this one where they might -- you requested there may have been some instructing down or not?
MR. BAILEY: it's a possibility, Judge.
THE COURT: Possibility.
Q I'll say there's a possibility. And if that would come, then the jury could determine, if they didn't find you guilty of first degree, they'd consider whether it's second degree. You understand that?
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A Yes.
Q And that, however, in Missouri, also, in this case the state has filed aggravators in which they are seeking the death penalty. You understand that?
A Yes, sir.
THE COURT: And the state had indicated that, if they went to trial, they were going to -- to continue to seek the death penalty. And I assume that's the state's positions --
MR. CRANDALL: It is, Your Honor.
THE COURT: -- if there's a trial?
MR. CRANDALL: It is.
Q And you understand, though, that in Missouri we have a bifurcated proceedings in this type of case. The jury first determines guilt or innocence. If they find you guilty, then there is a further proceeding. I hate to call it a minitrial, because it's not; it's usually shorter. But at that time there is evidence that would not be admissible in the first stage, possibly, as to mitigating and aggravating circumstances. and the jury would then be told, after they hear that, whether they'd recommend death or life imprisonment. You understand that?
A Yes.
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Q And you understand, of course, if they recommend death, it's still up to the Court. the Court does not have to impose death, even if they recommend it. You understand that?
A Yes, sir.
Q But you understand that you wouldn't know what either the jury is going to do or the Court's going to do if you plead guilty. Is that correct?
A Yes.
Q And your attorney has told you that?
A Yes, sir.
Q Have you been promised anything to induce you to enter your plea of guilty?
A Other than what's in the paper.
Q Okay. And when you say other than what's on the paper, would you just tell me what you think.
A I acknowledge the facts that the prosecution have and don't resist them.
Q Okay. Anything else that you've been promised?
A No, sir. Well, for this plea, I'll be allowed life without parole.
Q If you would plead guilty, the state would waive death and go with life without parole?
A Yes, sir.
Q Any other promises?
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A No, sir.
Q Have you been threatened, coerced, mistreated in any way to get you to plead guilty?
A No, sir.
Q Has anyone induced you to plead guilty against your will?
A No, sir.
Q Are you pleading guilty because you are guilty?
A Yes, sir.
THE COURT: I think I'll ask the state at this time if you would make a recitation of what you believe the admissible evidence would be for the state if this case were to go to trial.
MR. DALLY: Your Honor, I think the evidence that I can summarize briefly would be exactly basically the evidence that was presented at the preliminary hearing in this case. And that would be that on the 28th day of December, 1993, Douglas Ringler and his brother spent the night, went over to spend the night with Mr. Cupp; that when the brother awoke the next morning; that Doug was not there, was not in bed; and that Mr. Cupp had indicated that he had left earlier before the brother woke up. The evidence would be that that was the last time that anybody saw Mr. Ringler
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alive.
The evidence would further be that the body of Mr. Ringler was found in a field, burned, in the vicinity of Fort Scott, Kansas; that the body was identified as being the body of Mr. Ringler; that an autopsy was performed by Dr. Jill Gould, who is a forensic -- board certified forensic pathologist who practices out of the state of Kansas; that that autopsy would reveal that there were cut wounds to the neck, stab wounds to the throat, blunt trauma to the anus, and blunt trauma to the throat consistent with strangulation; that Jill Gould, Dr. Gould, indicated that the cause of death was insanguation [phonetic] -- if I'm pronouncing that correctly -- consistent with the wounds to the neck an strangulation; that the swabs were taken at the autopsy indicated the presence of sperm.
The evidence would further be that Mr. Cupp, in a conversation at the Carthage Police Department, with Mr. Miles, and with his mother, admitted that in fact he had in fact killed, sodomized, and burned Douglas Ringler.
THE COURT: Is that the evidence that the defense attorneys believe the state would be
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able to present?
MR. BAILEY: Yes, Your Honor.
THE COURT: And you believe it would be admissible? I guess the only issue is Miles.
MR. BAILEY: Sure.
THE COURT: You believe it's a submissible case of first degree murder?
MR. BAILEY: Yes, we do, Your Honor.
THE COURT: Mr. Cupp, you've heard what the state has alleged would be the evidence against you. Is that what you expect the evidence would be against you?
A Yes, sir.
Q Do you believe -- You've heard them say that you made certain statements to your minister, and you heard what they said he said. Is that what you understand that your minister would testify to if the Court were to state that he could testify?
A That's what I understand that he would testify to.
Q And basically what they said, is that what you remember you told him?
A Honestly, sir, I couldn't say , because I don't have memory of that.
Q But you don't dispute that he would? If he said you told him that, you told him that?
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A I don't dispute it.
THE COURT: Going to the aggravators. If the Court -- If the jury were to find him guilty, what are the aggravators and the evidence that you feel you could prove beyond a reasonable doubt, the aggravators?
MR. DALLY: The two aggravators that I believe were charged were the -- the sodomy, and I believe the other was the cruel, the inhumane torture aggravator that -- and I can't think of the exact wording of that now, Your Honor.
THE COURT: And what you're saying is the state's case in chief would prove up the aggravators?
MR. DALLY: I believe so, Your Honor, yes.
THE COURT: I'll ask the defense if they -- are those what you understood are the aggravators that the state was going to try to prove up.
MR. BAILEY: Yes, I think that's --
THE COURT: Do you believe the state can make a submissible case where a jury could find beyond a reasonable doubt that one or -- one or more -- one of the two aggravators?
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MR. BAILEY: That's correct, Your Honor.
THE COURT: Going to mitigation. I assume you've actually thought out what defenses might be and the mitigators. What type of mitigators did you feel that you could bring up?
MR. BAILEY: Well, we had a number of issues that we were investigating, Your Honor. We had made contacts with quite a few members of Mr. Cupp's family, and had plans to interview still more. In fact, just this weekend, we had plans to interview still more. We have also talked with a number of Mr. Cupp's friends that he has accumulated through the years. all of them have expressed a great deal of affection and love for Mr. Cupp. We certainly think that those would be mitigating factors. Defendant
As state indicated, two of its witnesses against Mr. Cupp at the first phase of any trial in this case would be Mitch Miles and Sharon Hendricks, Terry Cupp's mother. In fact, both of those witnesses, I know, have very strong affection and love for Terry Cupp, and we certainly think that would be mitigating circumstances as well. And we were in an ongoing
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process of investigating still more, Judge.
THE COURT: And do I understand Mr. Cupp has no prior felonies?
MR. BAILEY: He has no prior record at all, Judge.
THE COURT: So you'd have the mitigation of no record?
MR. BAILEY: Absolutely.
THE COURT: Is that true, there's no --
MR. DALLY: That's the best of our knowledge --
THE COURT: -- prior convictions or anything.
MR. DALLY: -- that's correct, Judge.
THE COURT: Other than just traffic.
MR. CRANDALL: We have no prior state court convictions.
THE COURT: And the information says this occurred around on or about December 28th, 1993, in the County of Jasper, State of Missouri. Is that --
MR. BAILEY: That's correct, Judge.
THE COURT: -- what you believe they can prove the venue.
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Q And you knew -- Mr. Cupp, you did now Douglas Ringler --
A Yes, sir.
Q -- is that correct?
You say you've never really talked to your family about pleading guilty, but they knew you were going to plead guilty; is that correct?
A Yes, sir.
THE COURT: And I guess I'll ask your attorney Mr. Bailey if you've told his mother.
MR. BAILEY: Yes.
THE COURT: And talked to her about it?
MR. BAILEY: I have not personally talked with his mother. I know Ms. Henry has spoken with his sister, who is in the courtroom today, Judge, and she certainly is very well aware of what's happening.
THE COURT: Ms. Henry, she was aware, and she have any position one way or another?
MS. HENRY: Yes, Your Honor. I spoke with Terry's sister just shortly before Court today, and it was again as a result of discussions that we all had yesterday, about when would be the best time to notify anyone with respect to what
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was going to happen today.
And I did talk with Mrs. Colvenger [phonetic] this morning, and her husband, and she is aware and supportive of the arrangement and has been arranged between the defense and the state.
Q You've been in jail since you were arrested, haven't you?
A Yes, sir.
Q Have any complaints about the way you've been treated in jail, or --
A No, sir.
Q -- any problems with the sheriff, or the jailers, or the bailiffs or anything?
A No, sir.
Q Have you had plenty of opportunity to discuss your case with your attorneys whenever you needed to?
A Yes, sir.
FINDINGS BY THE COURT
THE COURT: Court's going to accept your plea of guilty, finds your plea of guilty is knowingly, intelligently, voluntarily made, that a factual basis exists for accepting your plea.
Prosecutor's recommendation.
SENTENCING, DISCUSSION
MR. DALLY: Recommend life in prison
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without the possibility of probation or parole.
THE COURT: Is that the recommendation you're expecting, Mr. Bailey?
MR. BAILEY: Actually, I think it's more than a recommendation; I think the state's in fact, waiving death as a possible punishment.
THE COURT: They waived death, so there's only possible --
MR. DALLY: That's correct, Judge.
MR. BAILEY: And I might say, I know the Court is probably presuming this, but we will certainly officially waive any request for a PSI, as there is only one possible sentence in this case. And that's -- but that's been explained to Mr. Cupp, and he certainly agrees with that and understands it.
Q Do you understand that Mr. Cupp?
A Yes, sir.
Q And do you wish to waive the PSI, presentence investigation?
A Yes, sir.
Q And do you understand if you waive it, the Court will go directly to sentencing?
A Yes, sir.
Q Do you have anything you wish to say further
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before the Court pronounces its judgment?
A No, sir.
THE COURT: Mr. Bailey, any legal reason why sentence shouldn't be imposed at this time?
MR. BAILEY: No, Your Honor.
THE COURT: Is there to be a public defender's lien in this case?
MR. BAILEY: There is no, Your Honor.
THE COURT: It's waived?
MR. BAILEY: That's correct, Your Honor.
SENTENCE AND JUDGMENT OF THE COURT
THE COURT: It will be the sentence and judgment of this Court that you be committed to the custody of the Missouri Department of Corrections for a term of life without possibility of probation or parole. The Court will show an extra guard, also enter judgment against you in the amount of $68 Crime Victims Judgment fund, show the public defender's lien is waived.
PROCEEDINGS, SUPREME COURT RULE 24.035
THE COURT: I also have to advises you about something I have to advise anyone who is
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being committed to Department of Corrections, to be delivered to Department of Corrections. You have a right to file a motion in the sentencing Court, under Supreme Court Rule 24.035, on a plea of guilty. This rule provides you with the right to file a motion in this Court to vacate, set aside, or correct the judgment of conviction or sentence if you claim that, one, your conviction or the sentence imposed violates the constitution or laws of this state, or the Constitution of the United States, or this Court was without jurisdiction to impose the sentence, or the sentence imposed was in excess of the maximum sentence authorized by law. This rule provides the exclusive procedure by which you may seek relieve in this Court for the above claims.
The form to be used is Criminal Procedure Form Number 40, which will be made available to you upon request at Department of Corrections. No cost deposit shall be required. If you do not file this motion within 90 days after you are delivered to the custody of Department of corrections, a failure to file will be a complete waiver of your rights to proceed under this rule.
If you file a motion, you should include every
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known ground for vacating, setting aside, or correcting the judgment or sentence.
If you're indigent, file your own motion; attorney will be appointed for you.
I'm going to examine you as to the assistance of counsel received by you. I've already you these questions prior at the time you pled guilty, but I'm going to ask you some of the same questions now, concerning your attorneys' assistance to you in this matter. The examination will be on the record and under oath. It may be conducted outside the presence of your attorneys if you so request it, but you are reminded you're under oath, and may wish to have your attorneys remain.
Do you wish to have your attorneys here when I ask you these questions?
THE DEFENDANT: Yes, sir.
Q What is your name?
A Terry Cupp.
Q Terry, how old are you?
A Thirty-two.
Q Okay. And where did you live before you were incarcerated?
A Carthage, Missouri.
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Q And what type of job did you have?
A I worked at a poultry processing plant.
Q Okay. How long did you work there?
A Approximately two years.
Q Where did you go to school?
A High school?
Q High school.
A Diamond High School, Diamond, Missouri.
Q Okay. And you graduated from Diamond?
A Yes, sir.
Q And where did you do your college?
A Missouri Southern.
Q In Joplin?
A Yes.
Q What's some of the courses you completed?
A General courses.
Q Are you the same Terry Cupp who entered a plea of guilty to the charged Class A felony of first degree murder on this 17th -- 17th day of May of 1995?
A Yes, sir.
Q As a result of that plea of guilty, were you sentenced to serve a term of life without possibility of probation parole on this 17th day of May of 1995?
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A Yes, sir.
Q Are your attorneys in this matter John Bailey, Pat Berrigan, and Kelley Henry?
A Yes, sir.
Q I understand that Ms. Henry came in a little later, wasn't originally on, and Mr. Berrigan came in after, maybe right after, preliminary, but Mr. Bailey has been your attorney throughout the proceedings, hasn't he?
A Yes, sir.
Q And the other attorneys have also been here.
Were all three of your attorneys present when you entered you plea of guilty today?
A Yes, sir.
Q Were all three of your attorneys present when you were sentenced?
A Yes, sir.
Q Did you have sufficient opportunity to discuss this case and your plea with your attorneys before you entered your plea of guilty today?
A Yes, sir.
Q Did your attorneys do the things you asked them to do prior to your entering your plead of guilty?
A Yes, sir.
Q Did your attorneys refrain from doing the things
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you asked them to do -- not to do prior to your entering your plea of guilty?
A Yes, sir.
Q Were your attorneys assisted by investigators?
A Yes, sir.
Q Do you know who they were, if any of them?
A I know one was Vic Hedges and one was -- Bob Davis.
Q Okay. Do you know what they did for you, or some of the things they did?
A I couldn't tell you in detail, sir.
Q Okay, just generally tell me what you think maybe they did for you.
A Assisted the main three lawyers, investigating situations, accumulating information.
Q Did you ask them to do any certain types of investigation accumulations that you remember?
A Yes, sir.
Q What were some of the things, very generally, that you asked them to do to help you?
A Talk to certain people on my behalf.
Q Okay. And do you understand they did talk to those people?
A Yes, sir.
Q Did you see reports or depositions or something
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back where they had interviewed them?
A Yes, sir, I did.
Q And do you believe they did everything you asked them to do?
A Yes, sir.
Q Is here anything that you can think of now that you think they need to do or needed to do before your plea?
A No, sir.
Q You think they covered about everybody that you've asked them to do?
A Yes, sir.
Q Was the sentence imposed on you today the result of a plea bargain?
A Yes, sir.
Q And was the sentence imposed the sentence you expected under the plea bargain?
A Yes, sir.
Q Other than the plea bargain, did your attorneys communicate any threats or promises to you to induce you to enter your plea of guilty?
A No, sir.
Q Are you satisfied with the serviced rendered to you by John Bailey?
A Yes, sir.
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Q Are you satisfied with the services rendered to you by Pat Berrigan?
A Yes, sir.
Q Are you satisfied with the services rendered to you by Kelley Henry?
A Yes, sir.
Q And is there anything you wish to add concerning the assistance you received from your attorneys?
A No, sir.
Q Do you have any complaints at all from any of the attorneys that represented you?
A No, sir.
Q Is there anything you wish me to consider concerning your representation by your attorneys before I determine whether or not probable cause exists to believe that you have received ineffective assistance of counsel?
A No, sir.
THE COURT: The Court at this time is ready to make that finding. Before I do, Mr. Bailey, is there anything you wish to say, or anything further that I haven't covered?
MR. BAILEY; No, Your Honor.
THE COURT: Mr. Berrigan?
MR. BERRIGAN: No, sir.
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THE COURT: Ms. Henry?
MS. HENRY: No, sir.
THE COURT: Then at this time the Court's going to make the following finding on the record of no probable cause for ineffective assistance of counsel:
The Defendant, having appeared at the conclusion of final sentencing, having been advised of his right to proceed under Rule 24.035, and having been sworn and examined by the Court, on the record, as to the assistance of counsel received by received by Defendant; the Court, being fully advised in the premises, Court now finds that no probable cause of ineffective assistance of counsel exists.
At this time, Mr. Cupp, you will be remanded to the custody of the -- to the custody of the Jasper County Sheriff's Department for transportation to the Department of Corrections.
MS. HENRY: Judge, there is just one final, one thing Mr. Cupp has talked to us before. I believe jail policies permit there to be one contact visit with family before he is to be transported to the Department of Corrections. I think that's in their policy guidelines. He would
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like to have that visit tonight because he knows he will probably be transported forthwith. His family is here to take care of that. And I think Lieutenant Novak is also here, as we told him that we would request that he be allowed that visit.
THE COURT: The Court has no problems with that. I guess, as always, I always say they're in the custody of Sheriff's Department. If you clear it, it's fine with me. If you want to wait a minute, I think they're checking on it. I'll wait just a second. I'll just be in my chambers if there's a problem.
