DENNO HEARING (out of presence of jury)
MR. PRICE: Echols was called for the limited purpose of this hearing.
ECHOLS: It [sic] talked to the police officers on May 10th 1993. I initially talked to Ridge and Sudbury at 11:54 a.m. From 11:54 until I started talking with Durham at 1:40, almost two hour period, I recall the conversation with Ridge and Sudbury; They asked me a questionnaire containing 32 questions. (TR 2223) During those questions, they were pretty nice. After I had been there a while, they starting cussing me, telling me they were going to fry my ass, so I might as well confess now.
Echols: - That they were gonna fry my ass, I might as well go ahead and confess now.
Price: Ok. Did this last - how long did this last, up until the time that they turned you over to Detective Durham?
Echols: I was there 8 hours in all, before I talked to Durham, I was there about an hour.
Price: So, 8 hours beginning, uh - 11:54?
Echols: Um hmm.
Price: Ok, and this was on May the 5th?
Echols: Um hmm.
Price: Alright, do you recall anything else that they may have said to you during that period of time?
Echols: Not really.
Price: Alright, during that time, um - did you ask for an attorney?
Echols: Three times.
Price: And it's - you're saying three times during the interview with Sudbury and Ridge?
Echols: During the entire 8 hours I was there.
Price: Alright. Specifically, during the time that you were with Ridge and Sudbury, did you ever ask for an attorney?
Price: Ok. During that part, you did not, ok. Alright, and then after the - the interrogation with Ridge and Sudbury, did they appear angry with you for the responses that you were giving?
Price: And during this time, did you deny your involvement in these murders?
Price: Alright. And then once they turned you over to Detective Durham, uh - Durham has testified that you were - that he talked to you from approximately from about 1:40 until about 3:30, approximately another 2 hours. Um - is that right - is that time period about right?
Price: Alright, I would like to divide the time period when he talked to you into three portions. With the middle portion being the test period time. Prior to that, the first portion or the pretest portion, during your - the interrogation then, did you deny your involvement in these murders?
Price: Ok. And during the test portion, uh - did he ask you a series of questions of which you answered, "No."?
Price: And then at the conclusion of that, which was the third period of time, there's another 45 minute period of time, during that 45 minute period of time, did you deny your involvement in these murders?
Price: Ok. What was Detective Durham's, um - demeanor and how was he treating you during the 2 hours that he was questioning you?
Echols: Um - Durham was ok, he never threatened me or anything.
Price: Alright, during the time that you talked to Durham, did you ever ask for an attorney?
Price: Ok. Do you recall if that was during the - the first part, the middle part, or the last part?
Echols: The last part.
Price: Ok. So after you - after a test was performed, during that last part - was this that 45 minutes period of time?
Echols: Um hmm, after the test.
Price: After the test, during that 45 minutes, you asked for an attorney?
Price: Um, did you ask - this time, did you ask for an attorney once or twice?
Price: Ok. Alright, uh - the first time you asked for an attorney, what was his response?
Echols: He told me that I didn't need to bring him back there because he was just gonna cost us a lot of money and in the end, end up quitting anyway.
Price: Did you indicate to him who your attorney was going to be at that time?
Echols: Yes, I did.
Price: Ok. Who was that?
Echols: Mike Everett.
Price: Is that the same Mike Everett who testified earlier today?
Price: Alright, and then did you - you indicated that you asked a second time for an attorney, and uh - in between that 45 minute time period, how far along or when was it that you asked that?
Echols: Um - the first time I asked, it was before the test. The other 2 times was after the test.
Price: Ok. And this second time you asked for an attorney, what was his response?
Echols: The same thing.
Price: The same response, ok. And how about the third time you asked for an attorney?
Echols: The same thing.
Price: Ok. At any time, did he ever stop - said that he would stop the questions and let you talk with Mike Everett, your attorney?
Echols: Yes, he did.
Price: When was that?
Echols: Um - after the test.
Price: Ok, after the test, he said that he would stop and let you talk with Mike Everett?
Price: Ok, but did he allow you to do that?
Echols: He left the room and came back and said he was gone.
Price: Ok. During the 2 hour, well - let me back up. During the -the 2 hour time period between Ridge and Sudbury were questioning you, did they ever tape record that?
Echols: No. There was a tape recorder sitting there, but they would not turn it on.
Price: Ok, how about during the time that Officer, uh - Durham talked to you?
Echols: Um - nope.
Price: Did he ever have a tape recorder running?
Echols: (Assume indicated)
Price: Alright, towards the end of the 45 minute period of time, did you make a statement to Detective Durham that, uh - "I will tell 'em - I will tell you all I know if you will let me talk to my mother."
Echols: Yes, I did.
Price: Ok, and did they - at that time, did they allow you to talk to your mother?
Echols: Yes, they did.
Price: Ok. And once talking with your mother, what was your response to the officers at that point?
Echols: I told them that I did not do it.
Price: Ok. Ok, and then later, did uh - Detective Gitchell talk with you?
Price: Ok now, the state has indicated that they would not be uh, bringing up any of the conversation with Gitchell, so I think that uh - oh, can I ask him the questions? Alright, no other questions at this point, your Honor.
Davis: Now Damien, let me make sure I understand this correctly. When you talked with the officers, I believe it was Officers Ridge and Sudbury, you never requested an attorney, correct?
Echols: No, I did not.
Davis: And I believe you indicated that they basically asked you questions and you gave then responses, correct?
Davis: Ok. And there wasn't any force or coersion or threats or anything during that questioning, was there?
Davis: And then you indicated with Officer Durham that he advised you of your rights, and you're an intelligent enough individual, you understood those rights correctly?
Davis: And he didn't have to - did he go back and explain some of the more complicated ones?
Echols: Yes, he did.
Davis: Ok. But you knew what he was talking about and you understood what your rights were?
Echols: Yes, I did.
Davis: Ok. And you agreed to waive those rights and to talk with him, correct?
Davis: Ok. And he then administered the polygraph, or pretest questionaire, right, asked you some questions?
Davis: Nothing involuntary about that, correct?
Echols: No, there wasn't.
Davis: Ok. Then he administered the polygraph test, correct?
Davis: And you had agreed and even signed a consent to take a polygraph, correct?
Davis: Ok. Nothing involuntary at that point?
Davis: Ok. Now, it's my understanding in your testimony that you said that you asked for an attorney during the third portion of Durham's interview, and you said that Durham said, "There's no sense in bringing him back here", ok, was it your understanding at that point that Mr. Everett, your attorney was in the building?
Echols: I wasn't sure if he was there or not yet, but I knew he was on his way.
Davis: Ok, and this is at approximately 3:00 in the afternoon?
Echols: I think so.
Davis: Ok, what information did you have that indicated he was on his way?
Echols: My mother.
Davis: Ok. Now, the officers never prevented you from talking with your mother, did they?
Echols: They did the first time I asked, second time, they brought her.
Davis: And at what point in the third stage of the interview is it that you requested an attorney?
Echols: It was after Sudbury began to cuss me.
Davis: Ok, well the third stage of the interview - ok, so it was after Sudbury is in the room -
Davis: - That you requested an attorney?
Echols: After he was finished.
Davis: After Sudbury was finished?
Davis: Ok. So at -
The Court: That was the first time you asked for a lawyer, is that what you're saying?
Echols: No, that was the second - two times.
The Court: Ok.
Davis: Ok. Well the first time you asked for an attorney was at what point during this third stage of the interview with Durham?
Echols: The first time I asked, was the beginning.
Davis: The beginning of what?
Echols: The first stage.
Davis: With Durham?
Davis: You're now saying that when you first went in there to take the polygraph exam that at that stage, you asked for an attorney then?
Echols: After he began - he started telling me that he knew I was lying anyway, so -
Davis: - Well, that's after the test was administered, correct?
Echols: I think so.
Davis: Well, do you know? You know you're testifying - you're sworn under oath to tell the truth, do you know when it was during that, that you're alledging that you asked for an attorney?
Echols: I don't know what time it was, no.
Davis: Alright, you remember what phase, whether it was in the first part of Durham's examination or questioning, or was it the latter parts?
Echols: In was either in the end of the first part or the beginning of the second part.
Davis: Well, earlier when Mr. Price talked to you in - in direct examination, while you've been on the stand, you indicated that it was in the third phase of Durham's -
Echols: That's when I asked the second time.
Davis: Ok. Well, you indicated earlier that that was the first time that you had requested an attorney, was in that third phase of the questioning by Durham. Is that accurate or not accurate?
Echols: Not accurate.
Davis: Ok. So now it's your testimony that you asked for it earlier than that.
Echols: The first time.
Davis: And what was his response?
Echols: That there was no need to bring him back there because he was just gonna to cost me alot of money and then leave anyway.
Davis: Ok, and so you understood from his response "No need to bring him back there" that he was present, that he was there at the courthouse, or that - at the police station?
Echols: That's what he told -
[AUDIO ENDS, tape flipped]
ECHOLS: He told me there was no need to bring him back there, even though he was present at the police station. Everett was there before 5:45.
PRICE: It's unrebutted that my client asked for an attorney. The State has the burden of proof on this issue. They've put on no witnesses to respond to my client's statement that he requested an attorney, so the Court should rule on our point. (TR 2233) The State had the opportunity to put on any witnesses to rebut that they wanted. They haven't done that. My client has stated -- and it's unrebutted testimony he asked for an attorney. It should be suppressed.
FOGLEMAN: I asked Durham at any time did he ask for an attorney and he said no.
THE COURT: It would be the Court's ruling -- I listened to both officers and both indicated that he did not request a lawyer and that puts their testimony on an even keel because they are each denying that he asked for a lawyer. He's saying he did ask for a lawyer. The weight of the evidence is far on the State's side. Everett testified that he first received contact about the case at 5:45 and that he didn't arrive at West Memphis until 6:20. It is impossible for Mr. Echols to have known or believed that Mike Everett was representing him at 1:40 because he hadn't even been contacted until 5:45. I suggest that when he found out Mr. Everett might be contacted was when he talked to his mother. (TR 2234) I'm ruling that the statements were voluntarily and knowingly made and under proper advice of rights and was not denied counsel and did not request counsel.
FOGLEMAN: When we were going over the photographs the other day, we'd indicated we wanted to proffer the same photographs as we had in the Misskelley trial and we didn't have them because there was only one copy. We've since had copies made, and we would proffer State's Exhibits 200 through 227 as a proffer.
THE COURT: I'm going to receive them as a proffer of proof and the reason for that is that some of those photographs were extremely distasteful and the Court wants any appellate court to have an opportunity to look at the photographs that the Court excluded from testimony. I will include those as an offer of proof to show the ones that were eliminated by the Court.