405



2034)1 deviated from the normal procedure in this case because I saw what I thought to be a --some type of substance on the knife, I did not know what it was. It has been our practice during this case to send items to Genetic Design, so instead of going to the Crime Lab, I just sent it directly to Genetic. We were just talking about a matter of days because we were waiting for an analysis report on the knife before the court trial. Well it usually, it took several weeks to get information back we needed this information before the Misskelley trial. And it was on the 26th that I was able to talk with Mr. Byers about the knife. I received it from Joe, and the people with HBO. (TR 2035)

MR. FOGLEMAN: All right. I don t have any further questions at this time. your Honor, we do need to approach for a minute..

(THE FOLLOWING CONFERENCE TOOK PLACE AT THE BENCH OUT OF THE HEARING OF THE JURY)

MR. FOGLEMAN: One thing that I failed to mention earlier was we would also at this time object to going into any hearsay statements of Mr. Byers.

THE COURT: Well, I'm going to sustain that, any hearsay.

MR. PRICE: But that wouldn't prevent me from asking Mr. Gitchell if he asked Mr. Byers certain questions, which would not be hearsay.

THE COURT: Well, sure it would, it'd be hearsay.

MR. PRICE: If I ask Inspector Gitchell if he asked Mr.

406


Byers, the answer would be hearsay but his question would not be hearsay.

MR. FOGLEMAN: It's still an out-of-court declaration.

MR. PRICE: Judge, I can ask the inspector if he asked this question. (TR 2036)

MR. FOGLEMAN: For what pur --what's the relevance?

MR. PRICE: The relevance is the fact that he asked Mr. Byers questions about the knife.

THE COURT: Like what?

MR. PRICE: Do what?

THE COURT: Give me an example of a question on that.

MR. PRICE: Did he ask Mr. Byers, what kind of knives do
you have?

MR. FOGLEMAN: What is the relevance of that, Judge?

MR: PRICE: The relevance is he was asking him about this particular knife, and they just got the report back. It was DNA blood matching Mr. Byers, and he was asking him. I can ask him the questions, if you've ever taken the knife hunting, or did you use it just recently prior to giving it to him.

MR. FOGLEMAN: Your Honor, I can understand him after--if Mr. Byers testifies, after Mr. Byers testifies if he says something different that's what in the statement

THE COURT: I think you need to call Mr. Byers.

MR. PRICE: Judge, I can ask Inspector Gitchell did he ask him a question.

MR. FOGLEMAN: There's no relevance to what questions he

407


asked anybody.

MR. DAVIDSON: I think it's relevant because it shows (TR 2037) he was questioning him as a suspect, and he

MR. FOGLEMAN: But that's not relevant. You could go through a hundred people that they questioned.

MR. PRICE: I'm not gonna go through a hundred people, I'm gonna go through--this is it. All I'm asking is his questions, not his answers.

MR. FOGLEMAN: Your Honor, what they're trying to do is to somehow lend credence to their theories because the police investigated somebody. They're trying to lend credence to their theory that Mr. Byers had something to do with it simply because he asked questions.

THE COURT:. I'm going to rule it's hearsay. This is an out-of-court statement.

MR. PRICE: The out-of-court statement is Mark Byers response by-Inspector Gitchell's.

THE COURT: No, no, no

MR. PRICE: I'd like to make a proffer at this time.

THE COURT: Okay.

MR. PRICE: Out of the presence of the jury.

(RETURN TO OPEN COURT)

THE COURT: All right, ladies and gentleman, I need you to step back into the jury room for a few minutes. Again, you're not to discuss the case until it's submitted to you.

(JURY LEAVING THE COURTROOM AT THIS TIME) (TR 2038)

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MR. PRICE: Judge, before I begin the proffer, as further argument, it is our position that Mr. Fogleman when he asked Inspector Gitchell if on January 26th he talked to Mr. Byers

MR. FOGLEMAN: I've not asked that question.

THE COURT: He asked him who he received the knife from.

MR. PRICE: Judge, it's my understanding--if you'd ask the court reporter to read back, I
think he asked him did he talk to Mark Byers an January the 26th

MR. FOGLEMAN: Read it back.

MR. PRICE: I'd ask the court reporter to read it back.

THE COURT: Read it back because that's not what I recall.

THE REPORTER: I don, t know if this is where you mean but the answer was, (reading) it took several weeks to get the knife--to get the information back, but we needed this information before the first trial we had had the Misskelley trial. It was on the 26th that I finally was able to talk with Mr. Byers about the knife. And the the question, who did you receive the knife from.

MR. PRICE: And it was on January 26th that I was finally able to talk to Mr. Byers about the knife.

MR. FOGLEMAN: That was the answer, not the question.

MR. PRICE: But by asking the question, and giving (TR 2039) that response that opens the door for me to ask these questions.

THE COURT: It's still hearsay. I don't have any problem with you calling Mr. Byers to the stand, and asking him


409

anything you want.

MR. PRICE: Judge, I submit to you that Rule 801

THE COURT: Well, where is the admission by a party opponent to anything?

MR. PRICE: Judge, the party opponent is the State, the statement is offered against

THE COURT: It doesn't fit, Mr. Price. It's hearsay.

MR. FOGLEMAN: And Your Honor, we would also submit for the record that whatever questions were asked is not relevant. They're simply trying to bolster their case by ...

THE COURT: ... what they're attempting to do is to question, ask him the questions he asked that response would be hearsay.

MR. PRICE: I think the questions, yes sir

THE COURT: Well, what is the relevancy of the question if you're not trying to imply something by the lack of response? Tacit admission, what is it you're (TR 2040)

MR. PRICE: It's the fact that the Police Department was asking a suspect about the blood found on this particular knife.

MR. DAVIDSON: As late as January.

MR. PRICE: As late as January 26th as late as the middle of Jessie Misskelley's trial.

THE COURT: Call Mr. Byers.

MR. PRICE: I also intended to do that, your Honor, but I'd like to go ahead and make my proffer then at this time.

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THE COURT: All right

MR. PRICE: Thank you.

PROFFER OF EVIDENCE GIVEN BY MR. PRICE

On January 26th 1994, I questioned John Mark Byers concerning that Kershaw knife. Prior to questioning Mr. Byers, I read him (TR 2041) the statements of rights form. I asked Mr. Byer's if he knew of any member of his family whatsoever injuring themselves or cutting themselves with that knife. I asked him did any of his sons ever play with the knife? Officer Ridge was also doing the interview with me. He came in a short time later. (TR 2042) Officer Ridge asked Mr. Byers if he used the knife? And then on page five about five or six questions down. (reading) Did any of your kids, Ryan or Chris, know where that knife may have been. I mean could they have gotten it out? I asked that.
All right. The next page, top question on page six. (reading) Gitchell, all right, let me, let me to get you to look at this for identification. this knife I just handed you--was that the question I asked? All right. And then down towards the bottom of the question, and there were several other questions that you asked him in between. (Reading) All right, this is a Kershaw knife. I am reading off the blade, then also off the rubber tape as you described a Packmire grip. It has a description of Cannon City underneath the Kershaw. It spells Kershaw on the other side of the knife blade itself, there's a number 1066, and Japan underneath it.

411


It's a knife approximately nine inches long, and it does have serrated edge, is that correct? I asked that. The top question on seven. (reading) okay let me explain a problem we have. (TR 2043) I asked that. And you need to answer this for me. We have found blood on this knife. Yes. And then skipping three or four questions towards two-thirds of the way down. (Reading) okay, all right. Let me, let me go a little bit further and say there is a problem with that. I mean I'm not saying that's not true. The problem is we have sent this knife off, and had it examined, and it has the blood type of Chris on it. I asked that. That's our problem. He gave a response. (reading) why would this knife have his blood, on it. Yes. The top of page eight. (reading) That what scares me. Then there's an inaudible question. (reading) We've had it checked, and it's not animal's blood. It's what's called higher ape, in other words of the ape--human family or category. Yes. And then two three questions later, Ridge asks him. (reading) when was the last time you saw the knife. Yes. And on page nine, four or five lines from the top--or (TR 2044) excuse me four or five lines from the bottom. (reading) I need to account for this blood. Do you see what-he gives a response. (reading) I've got to I've got to ask you point blank, were you around or participated in the deaths of these boys. Witness nods heads.
Okay, on top of page ten. (reading) Well, there are other test being run on this knife, and we should--we may have

412


the results but right now--well, we've been waiting on them the last several days The responses. (reading) Do you know we had blood taken from Melissa. Do you know we had blood taken from Ryan. We already had yours so that's what we've been trying to see if it could've been--if you have similar blood, we don't know, we don't know if there's a similarity of blood, we don't know. All right, that's all the particular questions in this particular statement.

THE COURT: It'd be my ruling that to allow you to ask the officer if he directed those questions toward a witness or party would be improper, and it would be to allow you to suggest by the questions that there was a response which would've been hearsay. And the replies to those are clearly hearsay. I don't have any problem at all in you calling the person giving the declarant, the person giving the statement...(TR 2045)

MR. PRICE: ... and ask the question ...

THE COURT: ... and ask the question and answer...

MR. FOGLEMAN: Your Honor, first, he's got to--in order to do that, he would have to give some kind of inconsistent statement first.

THE COURT: Well, that's correct. But there's nothing wrong with him taking the statement or asking the question as if it were his own of the witness.

MR. FOGLEMAN: That's true

THE COURT: He can certainly do that.

413


MR. FOGLEMAN: But it wouldn't be proper for him to say, well, Inspector Gitchell asked you this unless the witness gives an inconsistent statement ...

THE COURT: ... that's correct. I mean he can take Inspector Gitchell's statement, or his--and ask the question as if it were your own.

MR. PRICE: All right. One moment, Judge.

THE COURT: But until you put him on the stand, it's hearsay. And to allow you to ask the question without the response in the presence of the jury, I don,t know how you characterize it--it's not really a tacit admission. It's inferring that there was some response that--in fact some of
the questions even suggest answers but-

MR. PRICE: Correct.. That was the question asked him, and this is why when the question was asked by the (TR 2046) State in the presence of the jury earlier, did you talk to Mr. Byers

MR. FOGLEMAN: That question was not asked.

MR. PRICE: Well, there was a question ...

MR. FOGLEMAN: .... but the response...

MR. PRICE: ... his response was, he talked to Mark Byers.

MR. FOGLEMAN: ... he talked...

THE COURT: I don't have any problem with you asking the
officer if he had a conversation, and took a statement from
the witness, and if he advised him of his constitutional
rights. You certainly can ask that in the presence of the

414



jury.

MR. FOGLEMAN: your Honor, as part of the proffer, I'd like to ask a question.

THE COURT: All right

BY MR. FOGLEMAN:

Inspector Gitchell, did you later find from Genetic Design that Chris Byers and Mr. Byers had the same blood type? Yes sir.

MR. FORD: May I ask a question as part of the proffer?

BY MR. FORD
At the time I asked him these (TR 2047) questions, I had not had the results of the lab yet, and I thought it was necessary to question him about the relevance of this knife. I was trying to determine whether or not Mark Byers was involved in this homicide. The reason I questioned him was because when anyones name would come up, or anything that was questionable then I would go, or one of my investigators and talk with them. It does not mean someone he is a suspect. It's a lead, or information that we must follow up on it to do an investigation properly. Sometimes I give witnesses who are not suspects before we question them, we advise each and every one of them of their constitutional rights, and obtain a written waiver of those rights prior to the questioning? (TR 2048)
Asking him for a waiver of his rights was okay, no way an indication on how I thought he might be involved in these

415


homicides. That is something that's required by the law that we would have to do. This knife being turned over in the fashion that it was, I thought that would be the best way to handle it. In the event he made a statement implicating himself, I would have a waiver to use that statement against him. (TR 2049)
John Mark Byers and Christopher Byers did have the same DO Alpha type. As best as I understand on all, they have the same blood type as part of it. Based on the report that the gentleman from DNA sent me.
All right. Now, but it is also true that the DNA lab attempted to do an additional test D1980 test, and on the D1980 test John Mark Byers and Christopher, that DNA when tested further is different.

MR. FOGLEMAN: We agree with that, your Honor, We'll stipulate to that.

MR. PRICE: Judge, this concludes my proffer.

MR. FORD: Your Honor, may I inquire as to whether or not the question I asked Mr. Gitchell are proper before the jury in light of--I'm trying to determine what--about whether or not he was trying to determine if John Mark Byers was involved in th e homicide, and whether the reason he gave him the State's waiver of rights was in (TR 2050) the event he made a statement implicating himself that he would be able to use that statement against him would be proper before the jury.

416


MR. FOGLEMAN: Well, Your Honor, we can pull out the hundreds of other people that this officer advised their rights, and go through each one of those, and say, did you talk to him, did you advise him of his rights, and --

MR. FORD: But, Your Honor, they didn't open the door to those people. They opened the door to this one. And I think that's--since he's opened the door to his questioning, can I inquire of him as to why he gave him that waiver, and was--I'm asking are those questions proper.

THE COURT: You want to ask, and I've already said that Mr. Price could ask if he took a statement from him, and did he advise him of his rights before he took this statement. And you want to follow that up with by advising him of his rights, did that mean that you considered him to be a suspect in the crime, is that what you're saying?

MR. FORD: No, I'm asking him was the reason that he--I want to ask him was he trying to determine at the (TR 2051) time of taking this statement whether Mark Byers was involved in this homicide. And I also want to ask him, was the reason that he gave this rights waiver form was in the event a statement was made during the interview that implicated Mark Byers, he could use that statement against him because the waiver had been already signed. I want to ask him those questions because I think the jury's also entitled to know the reason that a rights waiver form is obtained.

THE COURT: Because of

417


MR. FORD: ... well, Your Honor, they don't..

THE COURT: I guess.

MR. FORD: But you do not have to advise someone of their Miranda rights when they are not--this is not an in-custodial interrogation. You do not have to advise an officer--an officer does not have to advise a potential witness of their rights. An officer does not even have to advise you of your rights when they stop you on the side of the road for a traffic citation. They have to advise them of their rights when they may use those statements later against them.

MR. FOGLEMAN:. your Honor, under the--if you will recall the circumstances where this came up

THE COURT: I recall it. (TR 2052)

MR. FOGLEMAN: Mr. Stidham was insistent on Mr. Byers being questioned because of the circumstances of the knife. And I mean. I think it's for us--to do what's necessary in the interest of justice to pursue everything in case there would be something exculpatory. On the possibility, the mere chance there might be something there, it's pursued. And then for them to turn around and cram it down our throats because we're trying to do what's right, I think it's improper as putting an officer up there and saying, when you talked to Jason Baldwin, and advised him of his rights, you know, why did he refuse. Does that mean they're guilty?

THE COURT: I'm not going to allow you to do that.

MR. WADLEY: You know, there's a reason for that, Your

418


Honor...

MR. FORD: ... because he's charged.

THE COURT: All right. look, don't even argue it. I think I'm going to allow you to ask, just like I said, did you take the statement from him, did you advise him of his rights, and why did you advise him of his rights. I think I'll allow that.

MR. FORD: So the questions that I asked

THE COURT: But I'm not going to allow you to go in and just continuously ask the officer about, did you (TR 2053) consider him a suspect, did you--you know, you can ask him why he advised him of his rights.

MR. FORD: We can't ask him if he considered him a suspect?

MR. FOGLEMAN: In fact. Your Honor, as I recall ...

MR. FORD: ...can we not ask him...

MR. FOGLEMAN: we were requested that he be advised of his rights.

MR. FORD: Well your Honor, that Is--- we're in a separate trial, I thought.

MR. FOGLEMAN: What we're talking about is the circumstances under which it's done. You're wanting to ask a question ...

THE COURT: ... you're wanting it simply by asking him if he gave him his rights, did he in his mind believe him to be a suspect of the crime, is that what you're trying to do.


419

MR. FORD: I'm not wanting to imply things, I'm wanting to ask him, did he think he was a suspect. I'm not implying anything I'm asking....

MR: PRICE: ... the jury can make up their own mind...

THE COURT: I'm going to allow you to ask that ...

MR. FORD: You can allow me to ask that.

THE COURT: Yes, and if he says no, then you're bound by, that answer.

MR. FORD: That's fine, no problem. (TR 2054)

MR. DAVIDSON: He just said yes though, didn't he?

MR. FORD: he did say yes in some--he said

THE COURT: All right, let's do it.

MR. FOGLEMAN: Well, your Honor, then I intend to ask him why this whole thing went on, and we'll get into Mr. Stidham.

THE COURT: Okay.

MR. DAVIDSON: That's hearsay, Your Honor.

THE COURT: Ive heard all I'm going to listen to, I've told you what you can do, and that's the end of it.

MR. PRICE: All right, we'll do it.

(JURY RETURNING TO THE COURTROOM AT THIS TIME)

THE COURT: All right. Court will be in session, you may proceed. (TR 2055)

(CROSS EXAMINATION BY MR. PRICE)

The knife that I referred to which has been marked for identification purposes as Defendant's Exhibit Number E - 6 is approximately eight and three--quarters inches total in

420

length?

That's the knife that I sent to Genetic Design Laboratory to do some testing. It appeared that there was a substance on the knife I sent to Genetic Design it appeared to be possible blood. It actually says that it appears to be possible blood, and another unknown substance on it and in the portion of the knife where the knife is in a closed position. I also asked Genetic Design to determine if the (TR 2056) substance on the knife, if it is animal or human blood.

On January 26th 1994 1 questioned John Mark Byers and read Mr. Byers a standard rights form and at the bottom of that, he waived those rights, and agreed to give a statement to me, and he signed the bottom of the form. According to this form it indicates that I read his rights at 9:45 a.m. on January 26th 1994, in Clay County, Arkansas. (TR 2057)

I considered him to be a possible suspect in these homicides. The interview with Mr. Byers was tape recorded and has been transcribed. It began at approximately 9:45, and concluded about 10:10 a.m.

That is a standard process, that's a standard form that we use when we talk to individuals. There have been hundreds of people we have talked to in regards to this case, so this was a standard investigative process that we used at that time. Not each and every time that the West Memphis police Department talked to an individual about this case did I read them their rights prior to questioning. On some occasions I

421


would start talking to an individual, and then at some point during the conversation read them their rights, and continue taking conversations.

CROSS EXAMINATION OF GARY GITCHELL BY MR. FORD

I have been the head honcho of this entire investigation, I have overseen, and have been in charge of it from the time the bodies were found (TR 2059) up until the present moment.

REDIRECT EXAMINATION OF GARY GITCHELL BY MR. FORD

This took place at the Clay County, during the trial of Jessie Misskelley. In the Courthouse. All right did Mr. Misskelley's lawyer have anything to do with that?

MR. DAVIDSON: Objection, Your Honor. That calls for hearsay statements.

MR. FOGLEMAN: Well, Your Honor. They asked him about did they consider him a suspect

THE COURT: Well, overruled. I think the question so far is permissible.

THE WITNESS: It was at Mr. Stidham and Crow's insistence that we speak to Mr. Byers. (TR 2060)

MR. DAVIDSON: That's hearsay, Your Honor.

MR. FOGLEMAN: Your Honor, it's not for the truth of the matter of what was stated but rather that it was stated.

THE COURT: I'm going to allow it, overruled. I was simply investigating every possibility.

THE COURT: Anything else? Is that all you need him for?

MR. PRICE: Just a minute, Judge. No other questions at

422


this time, Your Honor. we may need to recall Inspector Gitchell later.

(WITNESS EXCUSED)

. . .

423