(A BENCH CONFERENCE OUT OF THE HEARING OF THE JURY)
THE COURT: Tell him not to mention the "P" word?
MR. PRICE: And that he is a "P" word person. There is a notation during the statement that Durham took of Echols that indicates that after a short period Echols ceased to deny his involvement, which is an admission through absence of denial.
MR. FOGLEMAN: We're not going to ask him about an admission through absence of denial.
THE COURT: A tacit admission?
MR. FOGLEMAN: Is it all right for me to ask about him denying his involvement or not?
THE COURT: Yeah, was he mirandized and did he give a statement? (TR 2190) You can say what he said but you can not talk about silence being an admission. You aren't questioning the fact that he waived his rights and gave a statement?
[488]
MR. DAVIDSON: Not on this incident.
MR. PRICE: There is not a typed transcript or typed notes.
THE COURT: You have got whatever notes the officer has. Is there any reference to the co-defendants?
MR. DAVIS: You're talking about the questionnaire.
MR. FOGLEMAN: We are not going to make reference to that at this time. (TR 2191)
MR. PRICE: There is also a reference that after talking for 45 minutes in which Echols denied any involvement in the murders, Durham asked him, what was he afraid of? He replied, the electric chair. He said he liked the hospital in Little Rock. When he had been treated for manic depression. We object to that. The fact about him being treated as a manic depressive and the fact about him being asked is he afraid of the electric chair are not relevant at this point.
THE COURT: It is admissible if it was after he was advised of his rights and waiving them. I'm not going to let an officer say when I asked him, he was silent.
MR. PRICE: The report summarizes a 45 minute conversation in two lines. It says he denied any involvement in the crime. After approximately 45 minutes I asked the subject what he was afraid of and he replied the electric chair, and then the reference about being in the hospital in Little Rock pursuant to a juvenile court order, a FINS petition?
[489]
THE COURT: I think that's admissible. (TR 2192)
MR. DAVIS: Your client made the statement. I don't know if we want to bring that up anyway.
THE COURT: I will sustain your objection to the hospital portion. You've got to establish that he was mirandized, he waived his --
MR. FOGLEMAN: I can do that in front of the jury if they weren't going to object.
THE COURT: Well, you can do it one, two, three, four. Basically, you're going to get into the business about the electric chair and that's about the extent of it, isn't it?
MR. FOGLEMAN: That and the fact that he said he wouldtell us all about it if he would let him talk to his mother. (TR 2193)
MR. PRICE: We object to that on the Fifth Amendment rights.
MR. FOGLEMAN: The main thing we had intended to do is ask Durham when he questioned Echols that he at first denied his involvement. Then Durham asked him what he was afraid of, what was his response and what if anything did he say abouttelling you anything and then Durham would respond with whatEchols said which was, I will tell you all about it if you let me talk to my mother, and we were going to end there.
THE COURT: What is your theory of why that's not admissible? I think I might let him paraphrase that he was being treated for manic depression.
