MR. DAVIDSON: We call Christopher Morgan.
(TR 2836) At a bench conference the State said I anticipate they are going to try to cross-examine Morgan from a police report about his alleged statements. We have watched the entire 6 hours of videotape, and we don’t see any of that on any of those videotapes. We don’t know the relevance. He did not make any admissions in this statement to the police, so it’s irrelevant.
The Court said I don’t know how to deal with it. I read the synopsis of the report as well, and I came to the same conclusion that you did, that there really wasn’t any relevant information to be gained by it and it did not amount to a confession of any crime or even come close to it.
But I mean, what do you want me to tell them, they can’t call him? I don’t know what use they are going to make out of him as a witness. (TR 2837)
MR. DAVIS: Judge, I think we may need to have an in-camera hearing because, number 1, he may claim the Fifth Amendment. If he does, that is improper to do that in front of the jury. The Court asked do you anticipate him taking the Fifth?
MR. DAVIDSON: I don’t know.
MR. FORD: I would think, yeah, I don’t know.
MR. DAVIS: We spent 8 hours worth of videotape for 2 days. And there ain’t nothing in there that resembles any admissible evidence. And they never bothered to do it. We offered to give them all the tapes. (TR 2838) And before he gets up here and they create a smoke screen that has no relevance, and I think the jury needs to step out and let us find out what the proffered testimony is or if he is going to take the Fifth or what’s going to happen.
MR. DAVIDSON: We tried to proffer it the other day. We said we want to play the 6 hour taped confession. Your Honor said no.
MR. FORD: I think they ought to be able to go into it.
MR. FOGLEMAN: They could talk to just anybody off the street.
MR. DAVIDSON: There wasn’t anybody off the street that we picked up in California and questioned. It was the police
department’s questioning and the report that contained certain things.
The Court said I am going to start the hearing and then if -- Fogleman asked what if he takes the Fifth. I mean, that gives something, may give the appearance of something when there’s nothing there.
The Court said we will do that. (TR 2839)
(RETURN TO OPEN COURT)
During an in camera hearing Davidson asked are you requesting that we proffer his testimony?
The Court said I thought that’s what we were trying to do. The State has objected on the basis that there is no relevancy to anything that he might say to the issue in court. I don’t know.
So we are going to conduct a denno hearing.
Ford asked if they are objecting on the basis of relevance,don’t they carry the burden as to establishing that it is non-admissible testimony?
MR. FOGLEMAN: I would also like to state that they mentioned before that he had some attorney representing him in some collateral matter, not in this matter. That attorney informed me that she had suggested to him that he have an attorney before he testify. (TR 2840) Now whether he chooses to do that or not doesn’t make any difference to me. But I think that is the question that needs to be addressed.
The Court said let the record reflect this is a hearing out of the presence of the jury.
Christopher Morgan testified as follow: (TR 2842)
My name is Christopher Morgan. I live in West Memphis,
Arkansas at 1605 South McAuley. I have no idea if McAuley is the street that dead ends into Robin Hood Woods, but it comes around Barton.
This in in the northeast quadrant of the city, northeast part of West Memphis.
I was questioned on May 17th, 1993, in Oceanside,
California about three murders.
Q And did you give a 6 hour videotaped statement to the
Oceanside California Police Department? (TR 2842)
A I would like an attorney before I answer that question.
The Court said I am going to direct that you answer that question.
I made that statement. I did not confess to committing these murders. On May 5, 1993, I was on the sand dunes on the Mississippi River jumping off of the cliffs. I woke up at 1:00 or 2:00 p.m. at my apartment in Memphis, Tennessee. (TR 2843) I lived with David Nessler,Brian Holland, Richard Christaphorey and Frankie Harris. Each of them was there when I got up. I hung around the house for a while.
And then we decided to go jumping off the cliffs on the river at about 4:00 p.m. Brian, Richard and a girl
named Wendy Holmes went with me. We went to the sand cliffs next to the old bridge about 4:00 p.m. We left as soon as it turned night. I used to work in West Memphis the summer before May 5th, 1993. (TR 2845) The only places that I can recall working at are Sonic in Marion and Sonic in West Memphis. I also worked as an ice cream man in West Memphis. I drove one of those little trucks around the area.
I was familiar with the neighborhood that these 3 victims lived in. I lived on McAuley Street. (TR 2846) My parents live on McAuley Street. I grew up in this area. I moved to McAuley Street when I was a freshman in high school. I was familiar with
the area. I knew Steve Branch, when his parents would bring him over to play at a friend’s house named Bobby DeAngelo. I sold ice cream to all 3 of these kids. One of them was an acquaintance, and the other one, I just sold to. I put the names with the faces the other day on the news. (TR 2847)
In my statement I was questioned by the Oceanside
Police Department. I said, “Well, maybe I freaked out, then blacked out, and killed the 3 little boys, then fucked them up the ass or something.” I said, “Maybe I could have; there’s no telling what happened.”
I said, “Do you have a hypnotist?” I don’t remember saying, “Maybe I am Chris and Hyde”. If I blacked
out I said, “Well, if I did kill the kids and I blacked out or something, well, I will go to jail, and I would expect that.” I said each one of those things to the Oceanside Police Department. (TR 2848) The Oceanside Police Department did a rape kit on me. They asked why the tip of my penis was [SEVERAL WORDS OBSCURED -- cw]. I went to California 4 days after the murders. My parents called said that I needed to get in touch with the Oceanside Police Department. (TR 2849) I went down to the police department and they questioned me. During one point in the interview, I put a Kleenex over the videotape machine. I was just sick of being there in that little room and didn’t want to be seen on this videotape. They talked to me for 17 hours over a period of 2 days. On the day that I said these things, I don’t know how long I had been there. They said I flunked the polygraph exam. (TR 2850) Q Now, in your statement that you made to the police out there --
MR. FOGLEMAN: What page are you referring to?
The court asked are you referring to that synopsis of
a bunch of tapes? Is that what you are referring to?
MR. PRICE: It has quote marks, Judge.
The Court asked doesn’t it have the full context of it?
MR. PRICE: Yes, sir.
MR. DAVIDSON: We would not know whether it had the full context of it.
MR. DAVIDSON: It is the same thing that has gone on with every police report.
The Court said I want to know, have you reviewed them?
Have you reviewed the tapes?
MR. DAVIDSON: No.
The Court asked why not?
MR. DAVIDSON: We tried to proffer them the other day.
The Court said I want to know, have you reviewed them?
MR. DAVIDSON: No, we would be glad to play them.
MR. FOGLEMAN: We would, too.
MR. DAVIS: We would too, all 8 hours.
MR. PRICE: That is fine.
MR. FORD: The question is proper. He can answer the
question. He admitted those statements.
BY MR. DAVIDSON:
I became hostile told the police, “What do you want
me to do, lie to you? I am going to lie to you. I am going to lie.” (TR 2852) I followed up with that by saying that I killed them and I cut their arms and legs off. The Court said so before you told them you killed somebody, you told them you were going to lie 3 times?
THE WITNESS: I tried to tell them I killed them.
The Court asked after you told them that, what did you tell them?
THE WITNESS: From what I recall, I may have told them
that, “Are you happy?” And he said, “Is that the truth?” And I said, “No.” And he goes, “No.”
BY MR. DAVIDSON:
If I said that “they were just 10 feet apart from each
other in the swamp, in the ditch. I don’t know how they killed them.” I don’t remember. But if it is on the tape, I guess I did. I said I was tired of people trying to accuse me of the killings. (TR 2853) After 17 hours, I believe anybody would. I did not tell them I was telling the truth. I told them I was lying to them.
Q Well, did you tell them you were lying, or did you tell them that you had been telling the truth?
MR. FOGLEMAN: I object to him asking. He has already testified that he told them he was going to lie and then said this stuff about killing them and then he is now asking him, well, were you telling the truth or lying? What is he talking about?
BY MR. DAVIDSON:
Q Regarding the polygraph, did you tell them that you were lying or telling them the truth?
A I told them that I was telling the truth.
The Court asked I suppose the reference to the polygraph,are you suggesting that I allow you bring that up to the
jury? If you are, we are going to bring up a lot more
polygraphs. (TR 2854)
MR. PRICE: We are not suggesting that.
The Court said I don’t think you want in.
The Court asked why ask it at this time?
MR. FORD: Your Honor, are you aware of the
evidence of polygraphs?
MR. FOGLEMAN: There has already been testimony
in this trial about it.
The Court said I have heard quite a bit of testimony,
and I don’t think that that’s the thing that needs to be bantered around. I get the impression that this is being done for some kind of show.
MR. DAVIDSON: No show. This guy has said that he did it. And I want to be able give that to the jury. That is the purpose of this proffer. (TR 2855)
The Court said go ahead.
BY MR. DAVIDSON:
On May 5 after I went swimming out on the river I
went to the Cambridge Apartments where I was staying, and I took a shower, and then I went to the Red Square club. I did not work that day on May 5, but I had a job at that time.
Q Isn’t it true that you told the Oceanside Police
Department that you had worked that day?
A I may have worked the day before.
Q Isn’t it true that you told them that on May 5th that you had worked?
MR. DAVIS: I object. What he is reading from is a paraphrase. And I have watched these tapes, and I know what he said. (TR 2856) And if he wants to cross-examine what is said on the tape, what he said was one of the 2 days, the 4th or 5th, it rained
and he didn’t go to work. And he wasn’t sure which day it was.
The Court sustained the objection. Unless you have a transcript of the proceedings or want to proffer the exact tapes themselves and make reference to it, then I am going to sustain the objection.
MR. PRICE: Then we want a copy of the transcripts that
the West Memphis Police Department has made of these
MR. FOGLEMAN: We don’t have a transcript, since we
MR. PRICE: My client is an indigent. We cannot afford
a transcript of the tapes.
MR. FOGLEMAN: The tapes were available for them to
The Court said I left here last Thursday, and those tapes were available for your review.
MR. FORD: Is it an improper question to cross-examine
to take a synopsis -- (TR 2857) The Court asked do you have an objection, or are you asking the Court a question?
MR. FORD: I am arguing here there is a proper question, that it limits the question to this witness. I could ask him questions from any document I want to. I just can’t show him a police report and admit it into evidence. But I can ask him a question. If I make synopsis, or take a compilation and hold it in my hand and ask him about that document.
The Court said you can ask him any question you
choose to. If you are going to try to impeach his testimony by a prior inconsistent statement, then I am going to require you to do 2 things: 1, confront him with that prior inconsistent statement; 2, give him an opportunity to explain it. That paraphrased stuff there is not going to cut it. If you want to go through 8 hours of tape and single out the portions of that tape you want to impeach him by, give him an opportunity to review it and explain his answers, then you will be permitted to do that. (TR 2858)
MR. PRICE: The only point we would like to add is that the State was allowed to question my client about paraphrased stuff in statements that he allegedly made, and that is why this ought to be permissible.
The Court said you are going to have to explain
where there was any paraphrasing.
MR. PRICE: My client talked to the West Memphis Police
Department on May 10 for 8 hours. They didn’t bother to transcribe that or run a tape.
The Court said I recall that they had minutes, notes and records, and that he was questioned about it and acknowledged it.
MR. PRICE: We can certainly ask about minutes, notes,
records. That is what this report is. We can do exactly what the State was allowed to do.
The Court said you are not going to be allowed
to do it in this court. You are going to be able to do it just like I said if they object to it.
MR. PRICE: Note our objection. (TR 2859)
MR. DAVIDSON: We would like a 5 minute recess to
get the recorder and the video recorder --
The Court said fine. Get it.
MR. DAVIDSON: -- and play it, and play it for this man.
MR. FORD: May we question him?
The Court: Yes.
MR. FORD: Are you finished?
MR. DAVIDSON: I am going to get the recorder. You
can go while I am gone.
MR. DAVIS: Well, if we are going to play it for him, we
can recess the jury for lunch if you are going to listen to those in private.
MR. FOGLEMAN: You can ask him and live with his
answers. You don’t have to if you don’t want to.
MR. DAVIDSON: If we do, we do.
MR. FOGLEMAN: You just ask him the questions.
The Court said I am going to allow you to ask
him anything you want. You can ask him if the moon is
made of green cheese. (TR 2860)
MR. PRICE: We object to relevance.
MR. FORD: We may do that. We may ask him that.
The Court said I’d sustain the objection, too.
BY MR. WADLEY:
My name is Chris Morgan. My birth date is November 15,
1973 and I am 20 years old. I do not clearly remember where I was on May 4, 1993. Either I was at work, or if I wasn’t at work, I was on the sand. I have been asked by the Oceanside, California
Police Department as to my whereabouts on May 4. I am sure they asked that question. (TR 2861)
My parents called where I was staying and said the police department needed to question me. I don’t know the date I went down there. They asked me to come down there. They didn’t come out and arrest me. They didn’t come out and arrest me. They didn’t come out and say, you are coming with us. I voluntarily went down there. (TR 2862) They put me in a small room and locked the door and wouldn’t let me out. They were not nice to me. They mistreated me by locking me in a room. They didn’t deprive me of anything. I have never made a complaint about that. They brought me into
a room, and they asked me some questions. They asked me where I was on May 4.
I was either at work or jumping off the sand, I suppose. I could have been jumping off the sand on the 4th. (TR 2863) I did it just about every day that I wasn’t at work. I worked at Mr. Pride Car Wash on Poplar in Memphis. I jumped off a bridge or sandbar every day that I was off and it wasn’t terrible outside. I do not recall the weather on the 4th. The reason I think that I was out there on the 4th
was because I did it every day for about a month if I didn’t work. We went down to the sand one day to snow board down it, and there was a big cliff, and then we decided to jump off. I have no idea when.
(TR 2864) There is a 50/50 chance that I was either at work or on the sand. They asked me where I was on May 5. I told them I was either jumping off the sand or at work.
Q What time did you go out and do your jumping if you were doing that?
A I usually went at 3:00 or 4:00 p.m. We finished when it turned dark.
(TR 2865) On May 6 was a Thursday night. I was either jumping off the sand or sleeping or at the apartment hanging out.
Q Who do you go with when you do these things?
A I went with Brian Holland, Frankie Harris or David Nessler. We went on the 5th, I wasn’t at work.
A I worked from 8:00 a.m. until 6:00 p.m. (TR 2866)
Q. If you are not sure whether you were jumping or not, you would have been at work from 8:00 a.m. to 6:00 p.m. on
Wednesday, May 5, is that right? The same thing on the 6th, would that be also true?
They talked to me about going to California. I don’t recall the date I left to go to California, but it was 3 or 4 days after the murders. I left with Brian Holland and a girl named Beth Cleavis
and Rick Johnson. We went to Oceanside.
They dropped us off about a 2 hour drive from Oceanside.(TR 2867) These officers asked me the same questions that I am being asked in Court. The lawyer in court has not done anything to harm me or intimidate me in any way. They were not talking
to me just like the lawyer has been talking to me. Their tones were a lot different. I was in a locked room. They never struck, grabbed or threatened me.
(TR 2868) I have never been accused of killing anyone before. That’s never happened. I was upset when I was in there. I get upset a lot when I am accused of something like the murders of 3 young boys. When they started questioning me it did not bother or concern me
but after the first 13 hours, it bothered me. (TR 2870)
I don’t know what day I was first questioned. I was questioned for a total of 17 hours. They did not advise me of my rights under Miranda
and I did not sign a form and agree to talk
to them. I just said I would talk to them.
The Court asked what good would a video be if you didn’t advise someone of your rights?
Ford said you don’t have to advise someone of rights if it is noncustodial. (TR 2871)
The Court said when you lock the door, you are going to tell me that is noncustodial?
Ford said it is a question of fact.
Fogleman said one place on the tape and I am not sure if Morgan or another one, but an officer walks out of the room, he says, “I am going to lock this door.”
Wadley said judge, he can ask him all the questions he wants to ask him when it’s his turn.
The Court said well, I am trying to get down to the nuts and bolts of this. Go ahead and ask him if you want to.
I went out there to pick up a car of my friend, P.J., that had gotten into some trouble His parents had set up with his friend that they told him that his father was sick. He went back to Georgia on a plane, and they left his car there. And me and my friend, Brian, went out to pick it up and bring it back. He is my friend, Brian’s friend. I met him about 4 or 5 times when I was working at the car wash, and then I just stopped going out for a while. (TR 2872) I quit that job when I left for California. They weren’t mistreating me physically besides locking the door. I do not recall if they ever accused me of doing
this murder. (TR 2873) They may have. I was asked about it, I am not denying the fact that I said --
The Court said if you are going to read a quote from that paraphrased portion of an 8 hour tape, read the whole thing.
I told them I could have freaked out and killed the little boys. I told them, who knows. (TR 2874) I told him anybody could have done it. He could have blacked out, too,flew to Memphis, and killed the 3 little boys. I implicated myself by telling him that I did it. I told him I could have done it if I had blacked out, but I just made that up. I just made up the fact that I killed 3 little boys to a police officer in Oceanside, California just to get away and leave. (TR 2875) I was not under arrest. I could not have left anytime I wanted to. They wouldn’t let me leave. I was not under arrest.
The Court asked are we going to have to listen to 8 hours of tapes?
They asked me if I was a homosexual, but I am not.
Q Did you tell them that you were?
Fogleman said I would like to see where that is in here. (TR 2876)
BY MR. WADLEY:
Q Did you tell them first that --
MR. DAVIS: Can we approach the bench.
MR. PRICE: We object to approaching the bench. This is an in-camera hearing. We can certainly do it here.
MR. DAVIS: It is up to the Court’s discretion. I just don’t want the guy to be put through this stuff. That is improper and totally irrelevant to these proceedings.
The Court said I am going to sustain the objection to the last question and answer, because it is an improper question.
MR. WADLEY: Why?
The Court said people have a right to have some privacy even though they do take the stand. I don’t think that is an appropriate question. I am not going to allow it.
MR. DAVIS: I don’t mean to infer from that that he is. If they viewed the video --
The Court said I am not making any inferences one way or the other. I have read the material that they have as well. (TR 2877) I know what you are referring to, but it’s absolutely no point in asking the witness this at this time.
MR. WADLEY: The relevance to it is, Jusge, he stated what he did to the 3 little boys when he said that and he was asked whether first he was homosexual and he denied it. He later admitted it.
MR. FOGLEMAN: No, he did not.
MR. DAVIS: You didn’t listen to the tapes.
MR. WADLEY: You don’t have all the tapes of this.
MR. FORD: I think we established that is relevant. They want to rehabilitate. It goes to weight but not to admissibility.
MR. WADLEY: Now, that question that I asked is proper and that answer should not be stricken. (TR 2878)
BY MR. DAVIDSON:
I prepared this drawing. This drawing shows where the
bayou is, where the Robin Hood Woods are, and where McAuley Street is. Defendant Echols’ Ex. #11 was marked for identification and proffered into evidence without objection. They also took my footprints which were proffered as Defendant Echols’ Ex. #12 and 13.
BT MR. FOGLEMAN:
Q On the diagram, you put the bayou, Blue Beacon, and
then to the right side from the top, put Robin Hood, west of Blue Beacon. (TR 2880)
MR. DAVIDSON: That’s by the Blue Beacon. Well, it will
speak for itself.
MR. FOGLEMAN: Well, you are by Jason Baldwin over
there, I guess.
The Court asked are you trying to put at it’s on the opposite, he has drawn it on the opposite side from where it really is?
MR. FOGLEMAN: Yes, your Honor.
MR. DAVIDSON: I understand what he is saying. I don’t
agree with it.
The Court said I do, too. I think anybody else
MR. DAVIDSON: We would offer these as part of the proffer.
BY MR. FOGLEMAN:
I told the officers that I understood from rumors
the little boys had their arms cut off. (TR 2881) I did not have anything to do with the murders of those 3 boys. Before I made these statements that are attributable to me, I precede that by telling the officers in an angry state that, “If you want me to lie to you,” and repeated myself 3 or 4 times, “I will lie to you and tell you that I did it”. Immediately after that, I again denied any knowledge or any
activity involved in those murders.
MR. WADLEY: Judge, I would like to, if I could, I would
like to continue my proffer on the questions I was asking him, concerning the sodomy this man said he performed on these boys, in that, Judge, it is relevant, in that, they attempted to elicit testimony from the medical examiner that that was possible. He says that he may have done it, and then
he says he may have blacked out. (TR 2882) The question of his sexual preference is certainly relevant.
MR. DAVIS: What it all boils down to, when he says he
tells the officers, if you want me to lie to you, I will lie to you and tell you I blacked out and did it. If he prefaces it and says, what I am getting to tell you is not true, then he
later says that what he said was not true, then the fact that you say it has no relevance for this trial, and then to go into an area like that to arouse him and go into to an area of
determining whether -- what motives for these statements is just ludicrous.
MR. WADLEY: They have been trying to prove motives
through this entire trial. That goes to weight.
MR. FORD: Jessie Misskelley denied that he did it,
denied that he did it, admitted that he did it, denied it, denied it, and he is in prison.
MR. DAVIS: No. (TR 2883)
MR. FORD: This man did the same thing.
MR. FORD: He denied it, admitted it, denied it. That
goes to weight, not to admissibility. It is a question
of fact for the jury.
MR. FORD: It is relevant to who committed these
murders. And that young man said he did it. That’s
relevant, and that is a question of fact. We should
be allowed to present that testimony to the jury.
The Court asked have you had your investigator
check his work records to see if he was at work on
any of the dates involved? Have you checked out the
people that he has indicated he said he was with to
determine whether or not he was with them? Is that
MR. FORD: Sure it is. And if they want to
rehabilitate him, they can do it. But he made the
statements, and that is a question of fact. And they
can present all of that they want if they choose.
MR. DAVIS: The statement that he made under
the context, if I tell you now that I am going to tell
you a lie and then I make a statement, that statement
has no relevance because I told you beforehand that
it’s not a reliable statement. And under these
circumstances, they keep talking about the statement,
but that’s the context in which it was made in. The
context indicates that it has no reliability or relevance to this case. They just want to throw it in the hopper to create a smoke screen or to create some stir. There is absolutely no relevance for somebody to say I am going to lie and then make a statement. That statement should not be admissible because it is not reliable because they said in the first place they weren’t telling the truth.
MR. PRICE: We are entitled to raise reasonable doubt,
and that’s what we are trying to do with this testimony.
The Court asked raise it or create it?
MR. PRICE: Both. (TR 2885)
MR. FORD: We want to be allowed to ask the witness
these questions and that we ask that you rule on whether or not -- the State’s objection to relevancy.
The Court asked are you talking about the whole
thing or just your portion of the proffer that I
wouldn’t allow you to go into? Which is it?
MR. FORD: We want to be able to ask this
witness the entire proffer.
The Court said you want to ask the full 8 hours? Do you want to introduce the tapes?
MR. PRICE: Judge, if the state says - -
The Court said if there is anything significant about it, I guess it would be the 8 hours of interrogation.
MR. PRICE: Where is the other 9 hours of tapes?
The Court said I don’t know.
MR. FORD: We want to ask him questions. We have established that it is relevant. (TR 2886) We don’t have to impeach him if we don’t want to. We can ask him questions. And if he says, based on his answers here, we can ask him, did you tell the police, did you black out, did you freak out, did you kill these boys, fuck them up the ass? That is what he said. That is relevant. And we can ask for you to rule as to whether or not that is relevant evidence in this homicide case.
The Court asked do you want to ask your other questions as a proffer, or are you suggesting that you be allowed to ask that in front of a jury?
MR. WADLEY: I would to do both.
The Court said go ahead on your proffer first.
MR. FORD: I thought that this was an in-camera hearing to determine whether or not his testimony is relevant, not a proffer. (TR 2887)
The Court said it’s either going to be an in-camera hearing to determine relevancy or a proffer of proof, when I get ready to make my ruling.
MR. FORD: Well, we would ask for a ruling.
The Court said I am not ready to rule now.
MR. FORD: We are through with our proffer at this point.
The Court asked are you through? Do you want to abandon that then?
MR. FORD: No, we are not abandoning anything.
The Court said I am asking Mr. Wadley. And both of you aren’t going to be able to take a witness. Which one of you want to do it.?
MR. FORD: We have asked him enough questions --
The Court asked which one of you want to take the witness, I ask you?
MR. FORD: We are through with a proffer, but we are asking for a ruling. (TR 2888)
The Court said I am ruling that I am going to allow the inquiry of the witness in the presence of the jury. He requested a lawyer so I have asked Jim Lyons to interview him. Do you have another witness you can proceed with right now and then come back to this one? (TR 2889)
MR. FOGLEMAN: We would like to move in limine that when he testifies that it not be referred to that he requested an attorney.
The Court granted that motion. (TR 2890)