MR. DAVIS: At this time the State would rest, save for rebuttal.
MR. STIDHAM: Since the State has rested, we would like to move for a directed verdict. We would submit to the Court the State has not met its burden of proof with regard to the defendant having committed the offense of capital murder, three counts. More specifically, we would submit that there's been no evidence that Mr. Misskelley himself with the premeditated and deliberated purpose of causing the death of another person, caused the death of any of the victims.
Also, your Honor, we would point out the only evidence they have offered against the defendant is his statements to the police and if you assume that they are true -- of course, we're submitting that they're not -- but if you think for a moment and assume they are true and correct, all he says is that he was present and he did not hurt or kill anyone.
There was a statement about he had went down and grabbed one of the little boys but that was before any of the homicidal acts occurred and for the State to submit that he knew it was going to happen would be speculation and conjecture.
Second of all, your Honor, there's no proof that Mr. Misskelley acted as an accomplice to capital murder. In order for the State to prove that Mr. Misskelley was an accomplice, they must show that; first, Mr. Misskelley aided and assisted or abetted in committing the offense of capital murder and; secondly, that Mr. Misskelley had the required intent to commit capital murder.
We would direct your attention, your Honor, to the 1993 decision by the Arkansas Supreme Court in Fight versus State, 314 Ark. 438, which provides that the Court's interpretation of the accomplice liability statute effectuates the policy that an accomplice's liability ought not to extend beyond the criminal purposes that he or she shared.
Further, the Court says that because accomplice liability holds an individual criminally liable for actions done another, it is important that the prosecution fall squarely within this statute.
There's nothing introduced by the State to suggest that Mr. Misskelley had the intent to commit any homicidal act or aid in any homicidal act. There is nothing in the State's case without adding speculation or conjecture that Jessie Misskelley intended to kill anyone or agreed to aid or assist anyone in killing these three victims.
Therefore, with regard to the charge of capital murder, we'd ask for a directed verdict on that basis.
MR. CROW: Your Honor, in several cases the Arkansas Supreme Court has discussed what is an accomplice. I would cite the Court to -- it's F-U-R-I-F-O-Y versus State, 307 Arkansas 482, 282 Southwest 2d 374. In that case the Arkansas Supreme Court said, "Arkansas Code Annotated five two four three eight two provides that a person acts as an accomplice with another person in the commission of an offense if with requisite intent he aids, agrees to aid or attempts to aid another person in the commission of an offense."
Similarly in other cases the Court has made it clear that the liability of an accomplice is -- it goes to his intent, what he intended. Mr. Stidham and I decide to rob a store and we agree that no one is going to be shot, no one is going to be killed, as a matter of fact, no one's going to carry a weapon. We go in and Mr. Stidham shoots somebody. I can be charged with murder under a felony murder position, but that's not what Mr. Misskelley has been charged with.
Under the straight strictures of the murder statute, unless my accomplice liability was to commit a homicidal act, if I didn't intend to hurt anybody, I can't be. That is why we have felony murder. Mr. Misskelley has not been charged with felony murder.
Similarly, your Honor, the intent that is required in capital murder is premeditated and deliberated purpose. If you go through Mr. Misskelley's statement, it isn't there. If you take his statement on its face value, which obviously for this motion it has to be, at the time he allegedly ran down a boy and brought him back, he said Damien had hit one of the boys. I think he said he had hit ham bad, but there's no evidence of any intention that anybody be killed at that point. Not without going to conjecture or speculation can you get to that, your Honor.
There's nothing in the record to indicate Mr. Misskelley knew at the time he aided or abetted -- if you're taking his statement on face value -- that he knew anyone was going to be killed or intended for anyone to be killed. Possibly murder two, which says if you intentionally inflict bodily injury and someone does die, you are guilty of murder two.
That is the difference between capital, first and second degree. That is why we have the different levels. And Mr. Misskelley's intent -- and the courts have made it clear that your -- intent of an accomplice is an important intent, your Honor.
THE COURT: Do you want to respond?
MR. DAVIS: Your Honor, it is the State's position that the intent is not something that is proved by concrete direct evidence but is proved by circumstantial evidence and the fact that there was testimony by Officer Ridge that Mr. Misskelley in his statement said that he knew the night before that they were going to the woods to hurt the boys, that he then went and accompanied them. There is evidence that at least three weapons were used, three different weapons, and the State alleges -- and as part of his statement there were three individuals there -- that the State -- and according to Mr. Misskelley he ran down Michael Moore and but for his act in running down Michael Moore and bringing him back, Michael Moore would still be alive and would not be dead and, therefore, his actions directly aided and assisted the commission of a capital murder.
In addition to that all the injuries that were involved, the multiple injuries, the multiple weapons, the multiple knots on the ligatures, the fact that three eight-year-old boys were corraled and held and treated in this fashion -- all is circumstantial evidence from which the jury could find that there was the involvement, active involvement of three people.
Even at a minimum his chasing a child down and going there knowing that was the purpose and the child ultimately dying is enough to get capital murder. But with all the other circumstantial evidence involved, we have had met our burden and the jury could certainly infer from the evidence that the defendant was involved in all three acts of capital murder.
MR. FOGLEMAN: And the photograph --
THE COURT: And in addition to that the defendant, if his statement is to be believed, places himself at the scene and at the time and in the company of two other persons, and it is possible that the jury could believe that he did more than he said and as far as I'm concerned a circumstantial case has been made, and I am going to deny the motion for a directed verdict.
MR. CROW: For the record, I think I went through the different levels a while ago -- there's different levels. In the first place I would make a contention that they haven't met their burden of proof on any level from capital to negligent homicide.
THE COURT: I think you've done that, and I'm going to deny that.
MR. CROW: We would move for a directed verdict on each level -- capital murder, first degree, second degree, manslaughter and negligent homicide.
THE COURT: His statement, again, if the jury gives it credence that he knew the night before that they were going to hurt the boys -- I believe that is the way I heard it -- supplies that element of intent at least to first degree and second degree murder.
MR. FOGLEMAN: He also stated a photograph of the boys was passed around at one of these cult meetings.
THE COURT: I'm going to deny the motion for a directed verdict. I'll probably instruct all the way down to possibly even manslaughter but I will have to hear the rest of the case.
MR. DAVIS: I prepared instructions and they are being typed up today. My instructions only go down through second degree.
MR. CROW: The ones I prepared went through manslaughter.
THE COURT: I'm not making a decision at this point anyway. I'm just saying that's a possibility.
MR. STIDHAM: Your Honor, we have several exhibits that we intend to introduce during the course of our case. This is a letter that Mr. Misskelley wrote to his parents from the Cross County Jail the day after he was arrested. Obviously Mr. Misskelley would have to testify before we could lay a foundation for that, and we have not made up our minds for certain whether he will testify, but that is one of the exhibits.
THE COURT: What is the relevancy?
MR. CROW: That would be a contemporaneous statement saying that he was not guilty contemporaneous with his confession, shortly thereafter. I believe under the rules once he's testified, that a contemporaneous statement saying that his statement to the police was not correct -- it is admissible evidence. It has relevancy showing he was immediately after the statement saying he wasn't guilty.
MR. DAVIS: We would object in that it is self-serving. It is hearsay for him to put in evidence as to what he previously said.
MR. CROW: Once you have had --
MR. STIDHAM: It's not hearsay --
MR. CROW: Obviously he will have to testify.
MR. FOGLEMAN: It is still hearsay. It's an out-of-court statement.
THE COURT: This is supposedly Jessie's letter?
MR. CROW: Yes, your Honor.
THE COURT: You will have to put him on the stand.
MR. CROW: Yes, your Honor. That's what we talked about. Obviously this would not come in unless he gets on the stand.
MR. FOGLEMAN: Even if they put him on the stand, it is still hearsay.
THE COURT: I'm going to reserve my ruling on that.
MR. STIDHAM: This is Mr. Misskelley Senior's receipt that he received at DWI school on May 5th. The purpose of that is to show that that is how he remembers May 5th because he was at DWI school that month.
THE COURT: His dad?
MR. STIDHAM: His dad. His dad is part of his alibi.
MR. CROW: It's important to show that is the day his dad went to DWI school. It's the day his dad remembers coming home at a certain time. The time is on there, but his dad remembers coming home. That is why he was home at this hour not another hour.
MR. DAVIS: I don't have a problem with that one.
MR. STIDHAM: This is Officer Dollahite's report that night on May 5th showing that he was present at 6:30 P.M. to investigate a disturbance. We would like to introduce that to show a time reference with regard to when the officers were there at this scene and that's how people can remember what night the disturbance occurred, it being the same night as the homicides.
MR. DAVIS: We object to that because a police report is not admissible in evidence. It's hearsay. He can ask the officer when he was there, what he did.
MR. CROW: The officer will be on the stand. The report is important, not for the incident he was investigating. This is not the trial on that incident. This is a trial on a different incident. That is very relevant and important evidence as to --
THE COURT: Rule eight oh three eight excludes police reports from admissibility.
MR. STIDHAM: Your Honor, we're --
THE COURT: He could use his report to refer to to get the date and time off of, but he can testify to that.
MR. STIDHAM: We feel it would be important for the jury to see the report so that they would know that the officer was present at that particular time on that particular date, and also it is a point of reference for all the alibi witnesses to remember that incident, and that is how they can remember the night. We think it is crucial to our defense.
MR. DAVIS: It still doesn't make it any less inadmissible.
THE COURT: I doubt that I'd let that in. I'll have to wait and see how it comes up.
MR. STIDHAM: Your Honor, these are Louis Hoggard's daily logs from May 4, May 5, May 6. The purpose of these exhibits is for Mr. Hoggard to show when he was in town and out of town, May 5th being the crucial day, and it shows when he was off duty, when he was sleeping, when he was driving, and what cities he was in and out of. It will assist him in testifying and demonstrating to the jury when he was there.
THE COURT: Do you have any objection to that? Is that out of his log book?
