FORD: We request that the testimony of the little girls they're going to call that were present -- that the State is in agreement to a cautionary instruction that their testimony is to be received only as to Echols.
FOGLEMAN: We don't have any objection to that. The girls overheard Damien saying something. Jason was present, and they're going to say that, but we don't have any objection to the instruction. There were other people present as well, but we don't have any objection to it. To the instruction.
THE COURT: Alright.
FOGLEMAN: Your Honor, these, this are the other 8 pages, the first of that document.
THE COURT: I can't read it. Have you already given this to 'em?
FOGLEMAN: No sir. That, I was gonna let them make copies.
(RETURN TO OPEN COURT)
FOGLEMAN: Call Christy Van -- oh, excuse me.
DAVIS: Your Honor, the State would call Dr. Duke Jennings of the Doctors Pathology Service.
THE COURT: Alright.
WADLEY: What's the name again?
DAVIS: Dr. Duke Jennings.
WADLEY: May we approach, your Honor?
THE COURT: Alright.
(BENCH CONFERENCE)
FORD: Your Honor, this witness was not identified.
WADLEY: You already made a ruling that he would be allowed to testify in rebuttal only. That's what the Court already said.
THE COURT: Is this the witness that you are calling to testify about time of death?
DAVIS: Yes, sir.
THE COURT: Well. Of course, I noted the basis for the new trial in the other case was that the Medical Examiner changed his testimony, and I guess you couldn't have anticipated that change or didn't know about it before the trial, but I think what I'll do is let him testify in rebuttal.
FORD: I thought you had already made that ruling.
THE COURT: I don't know whether I did or not. I might have.
DAVIS: What, what is their objection, for the record?
FORD: It's failure to provide his name pursuant to discovery and pursuant to the Court's order to provide a list of witnesses for your case-in-chief ten days prior to trial.
THE COURT: I don't know how you could anticipate a witness that previously testified as to the same facts and circumstances would change his testimony, though. It seems a little unfair, but...
FORD: Your Honor, that's their argument -
WADLEY: -- Judge, you had already made that ruling.
THE COURT: Well, I'm going to let him testify in rebuttal.
FOGLEMAN: Your Honor, before we -- Your Honor, on that judicial notice of adjudicated facts, I'd like for you to look at that rule.
PRICE: What's this going to?
FOGLEMAN: The full moon.
PRICE: Alright.
THE COURT: (PAUSE WHILE EXAMINING) Well, yeah, I think you're probably correct. And it would fall under A.R.E. Rule 201 B(2), where the fact to be noticed was capable of accurate and ready determination by sources whose accuracy cannot reasonably be questioned.
FOGLEMAN: And we got the thing from the Farmer's Almanac.
THE COURT: The weather service and the ASCS office keeps moon records as well, I believe. There are several government agencies that keep it. It's not really subject of much dispute so what you are wanting to do is introduce this table?
UNKNOWN: Well, your Honor, we just want -- we just want --
(MUTTERING ABOUT COPIES)
THE COURT: It just seems to me to be something that's not...here's the one that you want, right here.
(MUMBLING ABOUT ALMANAC, WEATHER CHANNEL, etc.)
FOGLEMAN: What is y'alls postition on this?
PRICE: We don't object.
FOGLEMAN: Okay. They don't object, your Honor.
THE COURT: Okay. Without objection. Is this your book or mine?
FOGLEMAN: That's mine.
WADLEY: One last thing --
THE COURT: Yeah, I got the later version.
WADLEY: ...a cautionary instruction, before the witness testifies...
THE COURT: I don't remember, but I don't have any objection.
WADLEY: ...before the witness...
THE COURT: Usually.
(BACK TO OPEN COURT)
FOGLEMAN: Call Christy Van Vickle.
The Court: I believe this witness has requested not to be photographed.
Fogleman: That's correct, your Honor.
The Court: Alright.
(pause)
The Court: Come right -
(pause)
The Court: You need to raise your right hand to be sworn. Do you swear to tell the truth the whole truth and nothing but the truth in the matter now pending before the court so help you God?
VanVickle: (Assume indicating, no verbal sound)
The Court: Have a seat. Alright ladies and gentlemen, the court is going to give you a cautionary instruction that the evidence recieved, recieved from this witness would be applible only to, uh - Damien Echols. Anything else gentlemen? Alright.
Fogleman: Would you state your name, uh - for the jury?
VanVickle: Christy VanVickle.
Fogleman: Ok. And do like you just did, speak up the best you can, ok Christy?
VanVickle: Ok.
Fogleman: Are you nervous?
VanVickle: Yes.
Fogleman: Alright. How old are you Christy?
VanVickle: Twelve.
Fogleman: And where do you go to school?
VanVickle: Richland Elementary.
Fogleman: Richland Elementary School, and where is that located?
VanVickle: In West Memphis.
Fogleman: Christy, after the murders of the three little boys, and during the month of May, uh - were you at the girl's softball field one day?
VanVickle: Yes sir.
Fogleman: Ok. And did you hear somebody say something about the murders of the three little boys?
VanVickle: Yes sir.
Fogleman: Alright. What did you hear the person say?
VanVickle: I heard, um - Damien Echols say that he killed the three boys.
Fogleman: Ok. And where were you, was he saying that to you or what were you doing?
VanVickle: I was walking by with my friend.
Fogleman: And who is your friend?
VanVickle: Jackie Medford.
Fogleman: Jackie Medford, ok. And is the person that you referred to as Damien Echols, is he in the courtroom?
VanVickle: Yes sir.
Fogleman: Would you point him out to the jury?
VanVickle: (indicating)
Fogleman: Your Honor, may the record reflect the witness has identified the defendant.
The Court: It may so reflect.
Fogleman: Now after you heard him say this, what did you do?
VanVickle: I went up, told my mom.
Fogleman: Alright, is there anybody else in the courtroom that was, that you could see was present when that statement was made?
VanVickle: Yes sir.
Fogleman: Ok. And uh - would you point that person out for the jury?
VanVickle: (indicating)
Fogleman: Alright, which one over there?
VanVickle: Jason Baldwin.
Fogleman: Alright. May the record reflect the witness has identified the defendant, Jason Baldwin.
The Court: It may so reflect.
Fogleman: Alright. Were there other people there, around when, uh - the defendant Damien Echols made his statement?
VanVickle: Yes sir.
Fogleman: I don't have any further questions at this time, your Honor.
(pause)
Davidson: Christy, I'm Scott Davidson, I've got a couple of questions to ask you too. Ok?
VanVickle: Ok.
Davidson: Ok. Um - first of all, do you remember what day this was that you heard this?
VanVickle: No sir.
Davidson: Don't remember when it was, what day of the week was it on?
VanVickle: I don't know.
Davidson: Don't remember that? And uh, who had you gone to the ballpark with?
VanVickle: Um - my mom took me up there.
Davidson: And what's your mom's name?
VanVickle: Ann VanVickle.
Davidson: Andy VanVickle?
VanVickle: Ann VanVickle.
Davidson: Ok. And were - who were you with at the ballpark?
VanVickle: Um - Jackie Medford.
Davidson: Jackie Medford?
VanVickle: Um hmm.
Davidson: And anybody else?
VanVickle: No sir.
Davidson: And were you and Jackie walking together?
VanVickle: Yes sir.
Davidson: And anybody else walking with you?
VanVickle: No sir.
Davidson: And uh - where had you been?
VanVickle: I had - we were walking back from the concession stand.
Davidson: Walking back from the concession to - what did you have with you?
VanVickle: I don't know.
Davidson: Did you buy anything there?
VanVickle: I can't remember.
Davidson: And so you'd been to the concession stand and you walked by, uh - who did you walk by?
VanVickle: Damien Echols and Jason Baldwin.
Davidson: And, uh - was there anybody else there with him?
VanVickle: There was a whole crowd of people over there, but I don't know who they were.
Davidson: A whole crowd of people. And, uh - could you point them out if you saw them?
VanVickle: No, 'cause I don't remember who was up there - around 'em.
Davidson: Ok. But you remember who Jason and who Damien were, is that correct?
VanVickle: Yes sir.
Davidson: Did you know them?
VanVickle: No sir.
Davidson: Had you ever seen 'em before?
VanVickle: No sir.
Davidson: But you can point 'em out here today?
VanVickle: Yes sir.
Davidson: And that was the first time you had ever seen 'em in your life?
VanVickle: Yes sir.
Davidson: What about those other people that were supposedly there with 'em, did - had you ever seen them before?
VanVickle: Yes sir, but I can't remember who they were.
Davidson: Can't remember who they were?
VanVickle: They played up at the girl's club, but I don't know who they were.
Davidson: How many people were there, in that group?
VanVickle: About 10.
Davidson: And who was Damien talking to?
VanVickle: All the people there.
Davidson: All the people there. And, uh - what else did he say?
VanVickle: That's all I heard him say 'cause it scared me so I ran off.
Davidson: You took off running?
VanVickle: Um - I went on.
Davidson: You went on or did you run? Which one did you do?
VanVickle: I don't know, I can't remember.
Davidson: Can't remember that. Did - what did he say before you say that he said he killed those three boys, what did he say before that?
VanVickle: I don't know.
Davidson: What did he say after that?
VanVickle: I don't know.
Davidson: And how close were you to him?
VanVickle: I wasn't close.
Davidson: You weren't close. Did he scream it?
VanVickle: I don't know.
Davidson: Did he yell it?
VanVickle: I don't know.
Davidson: So you don't know how close you were to him?
VanVickle: Uh uh.
Davidson: Ok. Now, there was a police officer out there that night, wasn't there?
VanVickle: Yes sir.
Davidson: After you heard this, did you walk over to the police officer and tell him that?
VanVickle: No sir.
Davidson: Ok. Who did you tell about it?
VanVickle: My mom.
Davidson: Was she there at the ballpark that night?
VanVickle: Yes sir.
Davidson: Did she take you over to tell the police officer?
VanVickle: No sir.
Davidson: When did you finally tell somebody about this?
VanVickle: About a few weeks or a week after I heard it.
Davidson: Ok. And it was after, uh - Damien had been arrested, is that correct?
VanVickle: Yes sir.
Davidson: Aft - did you look at it in the newspaper?
VanVickle: No sir.
Davidson: Ok. And that's when you went and told someone is that correct?
VanVickle: Yes sir.
Davidson: Ok. What time was it that you heard this?
VanVickle: I don't know.
Davidson: Were you playing softball that night?
VanVickle: My sister was.
Davidson: What time was her game?
VanVickle: In the afternoon sometime.
Davidson: In the afternoon, ok. But you didn't walk over and tell that police officer that - that day, did you?
VanVickle: No sir.
Fogleman: Christy, when Mr. Davidson asked you how far away, uh - I'm not sure whether he meant feet or you know, give an estimate, in this courtroom is there something that you can tell the jury about how far you was from the group?
(pause)
Fogleman: Let me ask you this way - were - was it this close or further away?
VanVickle: It was further.
Fogleman: Ok. Was it this close or further away?
VanVickle: It was about right there or further.
Fogleman: About where I am?
VanVickle: Um hmm.
Fogleman: So maybe uh, 15 or 20 feet, something like that?
VanVickle: Yes sir.
Fogleman: Ok. Now that night when you left the ballpark, who did you go with?
VanVickle: Um - Donna Medford.
Fogleman: Donna - Who's Donna Medford?
VanVickle: Jackie Medford's mom.
Fogleman: Ok. How old's Jackie?
VanVickle: Eleven.
Fogleman: Ok. So when you left the ballpark that night, you were in the car with Jackie Medford's mom, Donna?
VanVickle: Yes sir.
Fogleman: I don't have any further questions, your Honor.
Davidson: Just one more, how old are you again?
VanVickle: Twelve.
Davidson: Twelve. Uh - how old were you then, eleven?
VanVickle: Yes sir.
Davidson: Thank you.
The Court: Alright, you can stand down. Call your next witness.
