Byron Case Transcripts 18 Evelyn Case
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Testimony and cross-examination of Evelyn Case State of Missouri v. Byron Case April 30, 2002. Pages 853-892 Direct examination by Mr. Lance Cross examination by Mr. Fry Redirect examination by Mr. Lance Page 853
(Evelyn Case testimony)
EVELYN CASE, having been duly sworn by the Court, testified: DIRECT EXAMNATION BY MR. LANCE: Q. Good afternoon. A. Hi. Q. For the record, please state your name for the record. A. My name is Evelyn Case. Q. Where are you currently residing? A. At 6608 East 96th Terrace. Q. In the City of -- ? A. Missouri. Kansas City, Missouri. Q. What is your relationship to the defendant, Mr. Byron Case? A. He's my son. Q.
All right. Ms. Case, I'm going to tax your memory and ask you to go back to 1997. Okay? A. Okay. Q. Now, specifically I want to ask you about the evening of the death of Anastasia WitbolsFeugen. Page 854
(Evelyn Case testimony)
I'm going to ask you some questions about that evening. Okay? Do you recall that evening? A. Yes. Q. All right. Can you recall what day of the week it was? A. No. Q. Can you recall whether or not you saw Byron Case that evening, the evening that she disappeared? A. Yes. Q. Where did you see Mr. Byron Case? A. In our apartment. Q. Do you remember about what time of day it would have been? A. It was in the evening. It was between 10 and 11. Q. 10 or 11 at night? A.
Correct. Q. And was Byron living with you at that time? A. Yes. He would spend the night at his friend's sometimes, but his room was definitely there. Everything was there. Q. At any rate, you recall Byron Case coming in that evening? A. Uh-huh. Q. Yes or no. A. Yes. Sorry. Page 854
(Evelyn Case testimony)
Q. I'm going to ask you some questions about that evening. Okay? Do you recall that evening? A. Yes. Q. All right. Can you recall what day of the week it was? A. No. Q. Can you recall whether or not you saw Byron Case that evening, the evening that she disappeared? A. Yes. Q. Where did you see Mr. Byron Case?
A. In our apartment. Q. Do you remember about what time of day it would have been? A. It was in the evening. It was between ten and eleven. Q. Ten or eleven at night? A. Correct. Q. And was Byron living with you at that time? A. Yes. He would spend the night at his friend's sometimes, but his room was definitely there. Everything was there. Q. At any rate, you recall Byron Case coming in that evening? A. Uh-huh. Q. Yes or no. A. Yes. Sorry. Page 855
(Evelyn Case testimony)
Q. Was there anything out of the ordinary? Did you observe anything out of the ordinary in Byron's behavior? A. No, not at all.
Q. Did you speak to him when he came in that night about ten or eleven? A. Yeah. We always -- it was just idle chitchat like, "You hungry?" You know. "We're watching a movie. Do you want to join us" or -Q. During the idle chitchat, was Anastasia mentioned at all? A. Byron did mention that she didn't even wait for the car to come to a stop before she jumped out, and it was just another crazy night with Anastasia and Justin arguing. Q. When you had this chitchat with Byron Case, could you smell the odor of alcohol about Mr. Case? A. No. Q. Did Byron appear to be upset or acting out of the ordinary? A. No. Q. What happened after your idle chitchat? A. Well, we sat in the living room a little bit, and he went to his room to work on his computer, which he always did. Page 856
(Evelyn Case testimony)
Q. Now -- correct me if I'm wrong -- was it the next day that you heard about the death of Anastasia? A. Yes. Byron called me in the late afternoon the next day and told me, he says, "Mom, Anastasia is dead." Q.
Late afternoon? A. Yeah. Q. What was your reaction? A. "Oh, my gosh." I mean, you know. Q. After the death of Anastasia and after the funeral, did you ever see Byron Case and Kelly Moffett hanging around together? A. Oh, yes. Q. When you would see your son and Kelly Moffett hanging around together, how did Kelly behave toward Byron? A. Just fine. I didn't notice anything. I didn't notice anything different. Q. Did Kelly Moffett ever appear to you to be afraid of Byron? A. No. Q. What type of things would they run around and do together? A. Well, I don't know what they did when they were running around outside. Page 857
(Evelyn Case testimony)
But when they were at the apartment, they would be cooking something, because the stove would smell and I would go, "Oh, dirty stove," or whatever. But they would listen to music. They did their thing. I mean, he has his room. He has his music. He has his computer. And if they wanted some refreshments or something, they would just come out of the room and just help themselves.
Q. All right. I'm going to switch topics and jump around a little bit. You were at one time married to a man named Dale Case? A. Yes. Q. And how long were you married to Dale Case? A. We were married ten years, but living together for two. So we shared our life for 12 years. Q. Was Dale the father of Byron Case? A. Yes. Q. And how did that marriage end? A. How did the marriage end? It ended in divorce. Q. After the divorce, did you still sometimes speak off and on with Dale Case? A. Yes, because we had joint custody, so we had to talk about our son. Q. All right. During the time that you were married to Dale Case, did he have any guns or fire -- I'm sorry, guns or firearms in the house? Page 858
(Evelyn Case testimony)
A. Never. Q. All right. After the divorce, would you sometimes visit the residence of Dale Case?
A. Sometimes. Q. Even though you were no longer married to him, sometimes at his place? A. Maybe just for Byron's sake or whatever, yes. Q. After the divorce when you would visit Dale Case's residence, did you ever see any firearms or guns? A. No, never. That was not part of the decor in the house. Q. Did you know Dale Case and your ex-husband to go out hunting with Byron Case? A. Never. Q. You may have already answered this. Did you ever see a hunting gun hanging on the wall at Dale's house? A. No, never. Q. Again, I apologize for skipping around so much. Going back to the week that Anastasia was found murdered, do you recall whether or not Byron had a car at that time? A. Did he have a car? Page 859
(Evelyn Case testimony)
Q. Yeah. Did Byron have a car? A.
No. He always had car problems because he would buy cars that were not reliable, but no, I had his car towed several days before that happened, because it was like, okay, we got to get it into the shop, and his father and I decided we would help him out again. That's our job as parents, to help your children out when they need their transportation. So no, I had the car towed. Q. Was the -- let me ask this way: Do you know whether or not the car was still in the shop at the time of Anastasia's murder? A. Yes. Q. The car was in the shop? A. Yes. Q. You remember? A. It was there like over a week it seemed like. Q. Do you remember what date the car finally came out of the shop? A. No. I couldn't tell you what day that was offhand. But I mean, I've got it written down. I keep journals, travel journals, so I've got it written down. Q. Do you remember off the top of your head what date you have in the journal? Page 860
(Evelyn Case testimony)
A. Pardon me? Q. Can you remember, as you sit here, what date you had written down in the journal as the day you got the car out of the shop? A.
No, I don't, unless I would look into it. Q. Let me ask you about the week of June 5th of 2001. Again, I know I'm shifting topics on you, but do you recall anything unusual happening within your family the week of June 5th 2001? Anything about Byron's health in particular? A. Well, Byron, he was sick. He just wanted to sleep. And I was like, "Well, can I do anything for you? You need to go to a doctor." And he just wanted to sleep. So I was like, okay, you know. Somebody is sick. Just let them sleep. And I would call him from work to make sure he would eat something or something, but he didn't answer the phone. He was just sleeping. Q. Do you recall if Byron ever went to the doctor or do you know? A. Yes. He did go to the doctor because he got an antibiotic. Q. All right. Can you recall how long he had been sick? Page 861
(Evelyn Case testimony)
A. Well, I came down on that Friday, and he was sick through until he got arrested, because he had to take his antibiotics. And he was arrested and then they had to put him on antibiotics in the detention center. Q. You remember that clearly? A. Yeah. Q. You said it all started on the previous Friday? A. Friday. Friday night. He came home and he -Q. What do you remember about that Friday night? A.
Oh. I'm sorry. Q. I interrupted you. What do you remember about that Friday night? A. Oh, well, he came home, and he said "I'm just not feeling good." Q. Do you remember anything in particular about how he even got home that night? A. No. A friend dropped him off. But I was not at the door looking out to see who the friend was or anything. But he had gotten a ride home. Q. When he did go to the doctor, can you remember what his illness was? A. I'm sorry? Q. Do you remember what his illness was? A. Not exactly, but something similar to strep throat. Page 862
(Evelyn Case testimony)
Q. All right. You mentioned the date of Byron's arrest. Do you disagree that was June 11th of 2001? A. Do I disagree? Q. Do you remember the date? A. Well, I mean it's been mentioned enough. Q. After Byron was arrested, did you ever receive any phone calls from Ms. Kelly Moffett?
A. Yes. Q. Can you remember when that was in relation to the date of the arrest, June 11th? A. July 19th. Q. You remember the date she called? A. Yeah. Q. What happened when Kelly Moffett called your residence? A. She woke me up, first of all, and just took me by total surprise, and I -Q. Let me back up. This is July I9th? A. Correct. Q. So did you know at that time she was a witness against Byron Case -A. No. Q. -- for an alleged murder? Page 863
(Evelyn Case testimony)
A. I'm sorry. Wait. Did I know -- oh, that means did I know that she is accusing him? Q.
Yeah. Did you know that on July 19th? A. Yeah. Q. Okay. So you're surprised first of all? A. Totally surprised. That was my wake-up call at 6:51 in the morning. Q. And how did the conversation proceed? A. She did all the talking and I just listened. And I was reaching around. I was on the phone. I was not on a cordless phone, but I was on a phone with a cord. And I was looking around to get some writing utensils, and I just let her talk, and I just started writing staff down real quick whenever she was telling me. Q. Did she discuss the murder case or mention it? A. No. She did not specifically mention the murder at all. Q. What was the first thing she said; do you recall? A. "This is insane." Q. Those were her words? A. "This is insane." Q. What did she say next? A. Then she said, "It's acid-shaped mescaline."
Q. And what did you take that to -Page 864
(Evelyn Case testimony)
A. I'm just listening. I'm just -Q. What did she say after acid-shaped mescaline? A. She said, "We were in our own little world. You should have been there." Q. Was there any -A. She said, "I'm an accomplice. I'm an accomplice, but since I told, I got -- they gave me part immunity. I -- this is tearing me and my sister apart. My family really liked Byron a lot. I should be in jail with him, and I'm ready to go." And then she talked about Justin's family. She said Justin's mother was a Martha Stewart type and his real father was in prison and his stepfather was very wealthy. And then she said that they picked her up at school and -Q. Now, we're talking about the date of the homicide again? A. She is just telling me all this stuff. Q. She said they picked her up at school? A. They picked her up at school and they had Jack Daniels in the car. I don't know if it was a fifth or two-fifths. I wrote down two-fifths. She said she hasn't seen Byron for a few days, but she knew that Justin had pressured Byron all day. Page 865
(Evelyn Case testimony)
Q. Did she say how she knew that?
A. No. And then she asked me "May I write to him? May I be in touch with him?" Q. Did there appear to be any confusion on whether Kelly thought you even wanted to talk to her? A. Yeah. She said -- like I said, I let her do all the talking. I was doing all the writing. Because to me that was just, wow, you know, I just needed to write all this down. And she just wanted to keep talking. And I said, "Kelly, listen, I'm going to have to go." "Don't you want to talk to me?" And I said, "Well, I have to go to work." Q. How did the conversation end? A. Well, she basically promised to call back that night. Q. Did you make any plans in preparation for the next phone call? A. I made plans. I went to three different Radio Shacks. Instead of letting my fingers doing the walking, I'm driving all over trying to find a recording device, because an attorney had told me to do that. And so I got the machine, and I called a friend of Byron's who was willing to come over and sit, and we had a list of questions we were going to ask her. Page 866
(Evelyn Case testimony)
Q. Ask Kelly? A. Yeah. We had a whole list, yeah. We were really, really excited because we felt like yes, maybe we can do something now. Q. To help Byron? A. Yeah. But she never called back. Q.
Can you say that one more time? A. She never called back so that was a real disappointment, and I kept a recording device for about a month and then I returned it. MR. LANCE: I believe that Is everything I wanted to cover, Your Honor. THE COURT: All right. Cross examination. CROSS EXAMINATION BY MR. FRY: Q. Let's start off with how long had you been divorced from your ex-husband, Dale Case. How long had you been divorced? A. How long had I been divorced? The divorce was in '89. Q. In '89. So by '97, you had been divorced about eight years? Page 867
(Evelyn Case testimony)
A. Uh-huh. Q. Was Byron primarily living with you during that time? A. No. He was between both of us. Q. Between both of you? A. Yes. Q. All right. In 1997, you became aware that Byron started dating Kelly; is that right?
A. Yes. He brought her to the apartment. Q. I'm sorry. Go ahead. A. I don't recall the exact date that he brought her and introduced her to me. Q. Did you know when they started dating? A. Huh-uh. Q. No? A. No. Q. The woman next to you can't get the nods. A. Okay. Oh, no. Q. You're doing real well, but if I remind you, it's just to help her out. So you're unaware of when he started dating. If I suggested to you it was like in the springtime during school graduation or the end of school, would that sound right at all? A. I don't know. Page 868
(Evelyn Case testimony)
Q. Do you know if he brought her to meet you in the summer? A. I don't know.
Q. Do you know that he was 18 years old when he started dating Kelly? A. Yeah. Q. Did you know Kelly was 14 years old? A. No. Q. Did you know Kelly had just finished the eighth grade when she started dating Byron? A. No. I didn't know all that, no. By looking at her, I didn't know how old she was. She acted like a big girl more or less. Q. In your opinion she acted very mature? A. Very mature, yeah. very mature. Q. And you couldn't tell that she had just graduated the eighth grade? A. No. Q. And you're not sure when Byron came and introduced you at some time; is that right? A. Not really. Q. It certainly was before the murder; is that correct? A.
Yes. Page 869
(Evelyn Case testimony)
Q. Were you aware of how many times Byron would go over to Kelly's house to visit at her family's house? A. Quite Often. Q. Was it almost daily? A. She was very demanding of him. She wanted him a lot. So I don't know. I mean, I was not with him. I was working. So I don't know if he -- yeah, he was there a lot. Let's just say he was there a lot probably. Q. So it's fair to say she was quite infatuated with him; is that correct? A. Yeah. Q. Was Byron infatuated with her? A. He must have been. He was very caring with her. Very caring. As a matter of fact, when he introduced her to me, she went to the bathroom and he came up to me in the kitchen and he said, "Mom, Kelly's father is an alcoholic, and he beats her." And I just went (breath intake) because I was thinking, "Why do you need something like this, this baggage?" But then the other side of me said -- I looked at him and I said, "You know what? She is always welcome and safe in this house." That was my very first -Page 870
(Evelyn Case testimony)
Q. Did you ever have to express that kindness to Kelly herself? A. Kelly and I weren't close. She was not -- like some of Byron's friends, Kelly was not into me so much. Q.
Would it be fair to say she wasn't a confidant of yours; is that right? A. No. Q. So she never shared those thoughts with you at all, did she? A. No. Q. A little background on you is that you are German; is that correct? A. Correct. Q. And your primary language before you came to America was German; is that right? A. My mother language is German, yes. English is my second language. Q. And you can't stay you're as fluent in German today as you were before? A. No. Q. Is that right? A. No. Q. And it's just because you don't get to use it every day here; is that right? Page 871
(Evelyn Case testimony)
A. Uh-huh.
Q. But you do write in German to try to keep up with your German? A. I read and I write and I speak it whenever I can. Q. What's the extent of Byron's understanding of German language? A. Byron, it's good. It's like, well, when we have our conversations, I will correct him creatively, and he is still learning, but he knows the basics. I mean, we can communicate. Q. He can converse in German language; is that correct? A. Yeah. Q. Did you ever get to meet Justin? A. Yes. Q. Did you ever know about Justin being in Europe and liking Germany? A. Uh-huh. Q. Yes? A. Yes. Q. Did Justin ever talk German? A.
Yes. Q. Was he as fluent as Byron? A. I always thought he was a little better. Q. Really? Page 872
(Evelyn Case testimony)
A. I thought, now that you mention it. Q. All right. Did you ever see them talking in German back and forth? A. No. Maybe one night when they came over, we were watching television and Justin was there. It was probably the only time, and I found him very pleasant. He was very polite. Worldly. Q. Justin at times would come visit at your house; is that correct? A. I only remember him one time, actually. Q. How often did you have the sense that Byron visited at Justin's house? A. Oh, they were together a lot, because Justin had a nice apartment. And Byron was in the, you know, it's like you want to move out. You know how they want to move out, but they still want the security of their nest. And if they have a friend where they can spend the night, they'll stay there, listen to music all night or whatever. But I guess it was a comfortable place to hang out. Q. It's a fair question. How often do you think he spent -- Byron spent the night over at Justin's? A. I have no idea.
Q. Was it frequently? Page 873
(Evelyn Case testimony)
A. Maybe. Q. If he is living with you at this time primarily, why do you have no idea how many times he was spending the night with Justin? A. Because I would go to bed early and when I wake up, he would be there or he wouldn't be there. Q. Do you have a sense of how many times he wouldn't there when you woke up? A. No. He was there most of the time. Q. Are you aware of a period of time, oh, let's say in spring or early summer of '97 when Byron was gone an entire week spending the week at Justin's? A. Yeah. I'm sure that happened because I would miss him. And every time I would see him, I would be very happy to see him again. Q. He would spend entire weeks away from your house? A. I cannot say yes or no to that. I cannot say yes or no. Q. Are you aware, if he had spent an entire week away from your house, would you be aware of that? A. I'm sure I would. Q. Are you aware of any period of time like that when he spent a week away from your house?
Page 874
(Evelyn Case testimony)
A. He would always pop in. He would always see me somehow. He would be visiting me at work or whatever. So it's not that I can say I know that he's been gone a week. I cannot say that. Q. Popping in doesn't count. It's a week that he's spending the night away at Justin's house the entire week; are you aware of that period of time? MR. LANCE: I object. I think it's been asked and answered. THE COURT: Objection overruled. BY MR. FRY: Q. Are you aware of a period of time when Byron spent an entire week at night at Justin's house? A. I don't know. I guess. Q. You're unaware of that? A. Yeah. Q. Is that because Byron would be gone so frequently you just didn't even -- couldn't even keep track of him? A. No. I'm not going to say that he was gone. You know, after the divorce, that's just the way the life was. He was with his father or he was with me. Q. And just going back to his father, you did not visit every day after your divorce; is that correct? Page 875 A.
(Evelyn Case testimony)
No, of course not. Q. And you were unaware of any friend that might have come over and brought any kind of guns over to Date's house while you were divorced; is that correct? A. Correct. Q. You're not aware and you can't tell this jury there was never a gun in Dale's apartment; is that correct, for eight years? A. There was no gun in our house. In our apartment? Q. Dale's house. Your ex-husband's house. A. You know, he was my husband. Why would he change to becoming a totally in that sense a person that would be into guns and -- that just wasn't him. We were anti-guns. We are anti-guns. Q. I understand. I want to now ask you some questions about Byron coming home on October 22nd 1997. Do you remember that night; is that correct? A. Uh-huh. Q. Do you remember the night before when Byron was home or not? A. The night before? Q. Correct. Page 876
(Evelyn Case testimony)
A. Not without looking into my journal.
Q. Prior to coming here today, did you think that period of time would be important? A. Byron was around me a lot during that time because of his car. He discussed the matter with his transportation with his father -- with me and then his father, and I was the one that decided to have the car towed. Q. Does that help you remember whether he spent the night before October 22nd at your house or not? A. No. it doesn't help me remember. I would have to look at my writings. Q. Did your writings keep track of whether Byron spent the night at that period of time? A. Yeah. Because I would always write down it's nice to see him, and I'm glad he's home. Q. Going back to October 22nd, it's your testimony today between ten and eleven o'clock Byron arrived at your home, your apartment; is that correct? A. Correct. Q. And you were up, and he came in and talked to you; is that correct? A. He always comes in and says hello. He was always in a cheerful mood. He came in and he said hello. Page 877
(Evelyn Case testimony)
Q. Was he cheerful that night when he arrived? A. Well, he was upset that Justin and Anastasia were it again, which I heard frequently, you know. Either he didn't see anything of them, because they were such lovebirds, or they were at each other's throats and he just said it's just ridiculous to be around them.
Q. So he talked a lot about not being with Justin because Justin was with Anastasia; is that correct? A. Well, during the early part of their relationship. Q. Now, when he came in to talk to you, he started talking to you immediately about Anastasia; is that correct? A. Yeah. Well, he was talking, basically, about how his evening went. You know, this is just another one of those evenings between Anastasia and Justin. Q. Was there anything else mentioned about what he had done that whole day before meeting up with Anastasia? A. No. Q. Did he mention anything about what he did the night before at Justin's house? Page 878
(Evelyn Case testimony)
A. No. Q. Did he ask you about his car? A. I don't remember if he talked about his car. Q. So your recollection, his primary conversation was with you regarding Anastasia; is that correct? A. It was just something on the side just like, oh, you know, which I mean I've heard it before, like when he would say Anastasia and Justin were arguing and why don't they just break up and get it over with or whatever. So it was just you know, something he wanted to share.
Q. He did mention to you that she got angry and had an argument with Justin and that she got out of the car; is that correct? A. Uh-huh. Q. Yes? A. Yes. Q. And that he did mention that you mentioned he thought she didn't even wait for the car to stop when she got out? A. Yeah. Q. And -A. I mean, they had a red light I guess coming up and he came to a stop, but the car was not stopped, and she jumped out. Page 879
(Evelyn Case testimony)
Q. Now, did he mention to you what kind of part of town this was in? A. No. Q. Did he mention a location at all? A. No. Q. Did he mention what time at all?
A. No. Q. Did you question him at all about that? A. There was nothing to question. It was just so normal. Oh, I'm sorry. That's what I would say. Because when he did tell me about Anastasia and Justin, "Mom, they're arguing. They're no fun to be around." It was just like, you know, "I just wish they would stop." I mean, I could tell him about my life, and he could tell me about his life. Q. In telling you this story, did he express any concern at all that she was out at night and that she had just gotten out of the car in the middle of a bad area at night? Did he express any concern to you about that? A. No. Q. Did he tell you at all that Justin had called Anastasia's home and determined that about 9:00, 9:30 that she hadn't even gotten home at that time? Page 880
(Evelyn Case testimony)
A. I don't remember him saying anything like that. Q. The phone call that you remember from Kelly, give some kind of time frame, you're aware of Byron's arrest in June of 2001; is that correct? A. Yes. Q. And, in fact, while you hadn't met Mr. Lance, you had had some contact with other lawyers as a result of that arrest; is that correct? A. Just free advice. Q.
Free advice? A. Yeah. Q. More on a friendly, not strictly professional level? A. They were professional. They were professional. I was just reaching out for help, period. Q. They all wanted money? A. Well, of course, but they still -- they wanted money, but they would still allow me to call them if I needed any advice and that was very helpful at the time. Q. When Byron got arrested, did you contact him at all? A. When Byron got arrested did I contact him? Page 881
(Evelyn Case testimony)
Q. Yes, ma'am. A. No. He called me. Q. He called you. At some point in time, did you find out what he had been charged with? A. Yes. Q. And did you find out at some point in time what the evidence we had against him? Did he ever discuss that with you? A.
There was no evidence. Q. Did he ever tell you that Kelly was a witness? A. Oh, Kelly. Well, yeah, he said Kelly told that did this. Q. About what time frame did you hear that Kelly was the witness that said Byron committed this murder? A. I don't remember. I don't remember when I found out. Q. Was it before she called you July 19tb? A. Yeah. By that time I already knew, yeah. Q. If he was arrested June 11th and the call came July 19th, got any kind of time frame where you might remember when you learned Kelly was the witness against Byron? A. No. I don't know. I don't know the exact time when I found that out, and I didn't study up on my notes on that. Maybe I should have. But no, I don't remember. Page 882
(Evelyn Case testimony)
Q. When you found out that Kelly was the person saying Byron committed this murder, did you try to contact her at all? A. Never, no. I mean, you know, when Byron called me that he was arrested, that day I called. That same -- like right after I hung up. I did call over there, but I got her sister. I said, "Is Kelly there?" I was just like -- I don't know. I was just in shock. Okay. Now it's coming to me. Okay. This is what happened. Byron called me and told me. That's why I went to the phone, and I called over there, and Kelly's sister answered the phone and I said, "Is Kelly there?" I guess I just wanted to say, "What's going on?" And she said, "She is not here right now, but my mom is here."
And I said, "Well, may I talk to your mom?" And then they hung up the phone on me, and I was very upset about that. Very upset about that. And then I cried. And, you know, you don't know what you're going to do next. You just try to contact people. And I went home that night, and I called an attorney. Page 883
(Evelyn Case testimony)
And the strange thing was, I tried to call and talk to Ms. Moffett again. MR. LANCE: Your Honor, may we approach. THE COURT: Sure, sure. THE WITNESS: I tried to -THE COURT: Just a moment, ma'am. (Counsel approached the bench and the following proceedings were had:) MR. LANCE: Judge, I guess my objection at this point is I'm not sure the relevance or I guess I'm confused on where we're headed, what the relevance is or how this is all going to tie in. THE COURT: Well -MR. LANCE: My objection is relevancy I guess. THE COURT: Well, I think where she is going, I think it is relevant. The question I think that is attempting to be elicited is at what point in time she became aware of the fact that Kelly was a witness against Byron in relationship to the time period between the arrest and the July 19th phone call. Page 884
(Evelyn Case testimony)
That's what I understand the question to be. MR. FRY: Correct.
THE COURT: I don't think her -- her answer was -MR. LANCE: Starting to get irrelevant maybe, but I understand. THE COURT: If her answer is irrelevant, I don't think the question is irrelevant. MR. LANCE: I see what you're saying. THE COURT: I mean -MR. LANCE: I'll withdraw. I see what you're saying. I withdraw the objection. THE COURT: That Is fine. (The proceedings returned to open court.) BY MR. FRY: Q. I apologize for the interruption. Can you go ahead and finish your answer, please. A. Could you ask the question again. Q. I believe you were talking about after making the phone call, you contacted a lawyer and you were distraught? A. Yes. I got a hold -- this was -- you know how our telephone sometimes, you call a number and then you hang up. Page 885
(Evelyn Case testimony)
And anyway, it was something really strange with the telephone, because I ended up getting Mrs. Moffett on the line, but then I let her go, because I wanted to talk to the attorney. So they were on the line at the same time, which was really strange to me, but --
Q. So somehow there was a second call or was that a continuation of the first call? A. Yeah. Because it was exciting that I got both -- got an attorney, and I got Mrs. Moffett on the phone at the same time, and I thought this is so strange, but then I thought, well, I'm going to let her go and talk to the attorney. And I've never spoke with them again. But yes, I did call right after Byron called me and said he was arrested. I was just so dumbfounded. I said, "What is going on?" Because I had their telephone number. Q. And so it's your recollection that you talked to Kelly's sister -A. Yes. Q. -- for a little while? A. Yeah. Just to ask for Kelly. Q. And you also got to talk to Kelly's mother for a little while or she got on your phone somehow? Page 886
(Evelyn Case testimony)
A. She got onto the phone, and I don't know what she thought, because it was like I had to let her go. And I spoke real fast, because I wanted to talk to the attorney. MR. FRY: Could I have just a moment. THE COURT: Sure. MR. FRY: Your Honor, I have no further questions. THE COURT: All right. Mr. Lance, do you wish re-inquiry? MR. LANCE:
I'll try to be brief. REDIRECT EXAMINATION BY MR. LANCE: Q. Mrs. Case, there was a lot of discussion about this conversation you had with Byron the night Anastasia disappeared. Do you remember those questions? A. Uh-huh. Q. Is it possible for you to have a precise recollection of the entire conversation between you and Byron? A. That night when he came home? Q. Can you -A. It was brief, no. It was just really brief. Like I said, the idle chitchat. "Hi, it's nice to see you." Page 887
(Evelyn Case testimony)
Q. No, no, no. I'm not asking you to repeat it again. Is it possible for you to remember every detail of that conversation? A. Every detail? No. The TV was going, and I mean, I gave them that much attention, you know. I mean, if he has something to say, I listen. Q. All right. While the prosecutor was cross examining you, you mentioned that you keep journals? A. Yes. Q. And let me ask you this way: Did the journals help you recall that Byron Case's car had broken down about this time?
A. Uh-huh. Q. And was in the shop? A. Uh-huh. Q. You verified that in your journal? A. Uh-huh. Q. I need a clear yes or no. A. Yes. Q. When you looked in your journal, did you find a receipt or some kind of documentation that the car had broken down? A. No. I don't have the receipt. I think his father paid for it, because he -- because Byron was depressed, you know. Page 888
(Evelyn Case testimony)
When you don't have your car and you want to have a car and you want to get around. But we decided, okay, we'll pay for it. So. Q. When you write in your journals, do you usually write in English or German? A. I write in German. Q. All right. And do you understand that's why no one asked you to bring your journals today? They're in German? Nobody here could probably read them anyway?
A. (There was no response.) Q. You understand that? A. Uh-huh. MR. LANCE: Okay. No further questions. THE COURT: Mr. Fry, do you wish anything further based on your examination? MR. FRY: No recross, Judge. THE COURT: Thank you, Ms. Case. Appreciate your testimony. (The witness was excused.) THE COURT: Okay. Ladies and gentlemen, I think that's going to -- I believe that's run the gamut for today, does it not, Mr. Lance? Page 889
(Evelyn Case testimony)
MR. LANCE: Yes. THE COURT: Let's talk a little bit about tomorrow and future events if we can. From talking to the lawyers, nothing is ever cast in concrete, but I think the very strong likelihood is that we will conclude the evidence tomorrow. Once the evidence is concluded, the following has to occur. I have to get together the final jury instructions, which don't think. -- I think in this case will be fairly easy to do. Once I have the jury instructions prepared, then the attorneys have the opportunity to give to you closing arguments. Once they finish their closing arguments, then you begin your deliberations. Obviously, the length of your deliberations is up to you. And also there are sometimes when juries, for example, if there is closing argument, and they begin their deliberations say late in the afternoon, they have various options. Those options can include deliberating into the evening.
Page 890
(Evelyn Case testimony)
It can also include deliberating for awhile, going home and then coming back the next day and resulting deliberations. All that is up to you. Now, the reason I'm telling you this is I can't tell you that you'll get the case tomorrow, but we might have the opportunity to get it to you tomorrow. So, if we do that, when you go home and how you do your deliberations will be largely up to you. I'll give you the choice. But I think if all of you could be in a position to be flexible tomorrow, because it's possible we could get this case to you tomorrow afternoon. Everybody understand what I'm saying? So that way, if your number -- if you wanted to deliberate into the evening, it would be great if you could be available to do so. By the same token, if you were to begin your deliberations and you want to go home, you could do that also. So if you could maintain sort of a flexibility for tomorrow, that would be good. The other possibility is this: It may well be that, based upon the evidence tomorrow and everything we have got to do, we may make the decision the best thing to do is to do closing arguments Thursday morning. Page 891
(Evelyn Case testimony)
That's also a possibility. But, if you could be in a flexibility mode and sort of be loose tomorrow for these various options, I think that would be helpful to us all. I wanted to give you a little forewarning of that. The Court again reminds you of what you were told at the first recess of the Court. Until you retire to consider your verdict, you must not discuss this case among yourselves or with others or permit anyone to discuss it in your hearing. You should not form or express any opinion about the case until it is finally given to you to decide. Do not read, view, or listen to any newspaper, radio, or television report of the trial. I would like for you to be here in the jury room shortly before 9. I've got a small little status docket on my civil cases tomorrow at 8:30, so maybe 9:15 before we get started. Page 892
(Evelyn Case testimony)
If you could be in the jury room shortly before nine, I would really appreciate it. With that being said, have a wonderful evening. We'll be in recess. All rise, please. Jury is free to go. (Court was adjourned until May 1, 2002.)
(Evelyn Case testimony)
EVELYN CASE, having been duly sworn by the Court, testified: DIRECT EXAMNATION BY MR. LANCE: Q. Good afternoon. A. Hi. Q. For the record, please state your name for the record. A. My name is Evelyn Case. Q. Where are you currently residing? A. At 6608 East 96th Terrace. Q. In the City of -- ? A. Missouri. Kansas City, Missouri. Q. What is your relationship to the defendant, Mr. Byron Case? A. He's my son. Q.
All right. Ms. Case, I'm going to tax your memory and ask you to go back to 1997. Okay? A. Okay. Q. Now, specifically I want to ask you about the evening of the death of Anastasia WitbolsFeugen. Page 854
(Evelyn Case testimony)
I'm going to ask you some questions about that evening. Okay? Do you recall that evening? A. Yes. Q. All right. Can you recall what day of the week it was? A. No. Q. Can you recall whether or not you saw Byron Case that evening, the evening that she disappeared? A. Yes. Q. Where did you see Mr. Byron Case? A. In our apartment. Q. Do you remember about what time of day it would have been? A. It was in the evening. It was between 10 and 11. Q. 10 or 11 at night? A.
Correct. Q. And was Byron living with you at that time? A. Yes. He would spend the night at his friend's sometimes, but his room was definitely there. Everything was there. Q. At any rate, you recall Byron Case coming in that evening? A. Uh-huh. Q. Yes or no. A. Yes. Sorry. Page 854
(Evelyn Case testimony)
Q. I'm going to ask you some questions about that evening. Okay? Do you recall that evening? A. Yes. Q. All right. Can you recall what day of the week it was? A. No. Q. Can you recall whether or not you saw Byron Case that evening, the evening that she disappeared? A. Yes. Q. Where did you see Mr. Byron Case?
A. In our apartment. Q. Do you remember about what time of day it would have been? A. It was in the evening. It was between ten and eleven. Q. Ten or eleven at night? A. Correct. Q. And was Byron living with you at that time? A. Yes. He would spend the night at his friend's sometimes, but his room was definitely there. Everything was there. Q. At any rate, you recall Byron Case coming in that evening? A. Uh-huh. Q. Yes or no. A. Yes. Sorry. Page 855
(Evelyn Case testimony)
Q. Was there anything out of the ordinary? Did you observe anything out of the ordinary in Byron's behavior? A. No, not at all.
Q. Did you speak to him when he came in that night about ten or eleven? A. Yeah. We always -- it was just idle chitchat like, "You hungry?" You know. "We're watching a movie. Do you want to join us" or -Q. During the idle chitchat, was Anastasia mentioned at all? A. Byron did mention that she didn't even wait for the car to come to a stop before she jumped out, and it was just another crazy night with Anastasia and Justin arguing. Q. When you had this chitchat with Byron Case, could you smell the odor of alcohol about Mr. Case? A. No. Q. Did Byron appear to be upset or acting out of the ordinary? A. No. Q. What happened after your idle chitchat? A. Well, we sat in the living room a little bit, and he went to his room to work on his computer, which he always did. Page 856
(Evelyn Case testimony)
Q. Now -- correct me if I'm wrong -- was it the next day that you heard about the death of Anastasia? A. Yes. Byron called me in the late afternoon the next day and told me, he says, "Mom, Anastasia is dead." Q.
Late afternoon? A. Yeah. Q. What was your reaction? A. "Oh, my gosh." I mean, you know. Q. After the death of Anastasia and after the funeral, did you ever see Byron Case and Kelly Moffett hanging around together? A. Oh, yes. Q. When you would see your son and Kelly Moffett hanging around together, how did Kelly behave toward Byron? A. Just fine. I didn't notice anything. I didn't notice anything different. Q. Did Kelly Moffett ever appear to you to be afraid of Byron? A. No. Q. What type of things would they run around and do together? A. Well, I don't know what they did when they were running around outside. Page 857
(Evelyn Case testimony)
But when they were at the apartment, they would be cooking something, because the stove would smell and I would go, "Oh, dirty stove," or whatever. But they would listen to music. They did their thing. I mean, he has his room. He has his music. He has his computer. And if they wanted some refreshments or something, they would just come out of the room and just help themselves.
Q. All right. I'm going to switch topics and jump around a little bit. You were at one time married to a man named Dale Case? A. Yes. Q. And how long were you married to Dale Case? A. We were married ten years, but living together for two. So we shared our life for 12 years. Q. Was Dale the father of Byron Case? A. Yes. Q. And how did that marriage end? A. How did the marriage end? It ended in divorce. Q. After the divorce, did you still sometimes speak off and on with Dale Case? A. Yes, because we had joint custody, so we had to talk about our son. Q. All right. During the time that you were married to Dale Case, did he have any guns or fire -- I'm sorry, guns or firearms in the house? Page 858
(Evelyn Case testimony)
A. Never. Q. All right. After the divorce, would you sometimes visit the residence of Dale Case?
A. Sometimes. Q. Even though you were no longer married to him, sometimes at his place? A. Maybe just for Byron's sake or whatever, yes. Q. After the divorce when you would visit Dale Case's residence, did you ever see any firearms or guns? A. No, never. That was not part of the decor in the house. Q. Did you know Dale Case and your ex-husband to go out hunting with Byron Case? A. Never. Q. You may have already answered this. Did you ever see a hunting gun hanging on the wall at Dale's house? A. No, never. Q. Again, I apologize for skipping around so much. Going back to the week that Anastasia was found murdered, do you recall whether or not Byron had a car at that time? A. Did he have a car? Page 859
(Evelyn Case testimony)
Q. Yeah. Did Byron have a car? A.
No. He always had car problems because he would buy cars that were not reliable, but no, I had his car towed several days before that happened, because it was like, okay, we got to get it into the shop, and his father and I decided we would help him out again. That's our job as parents, to help your children out when they need their transportation. So no, I had the car towed. Q. Was the -- let me ask this way: Do you know whether or not the car was still in the shop at the time of Anastasia's murder? A. Yes. Q. The car was in the shop? A. Yes. Q. You remember? A. It was there like over a week it seemed like. Q. Do you remember what date the car finally came out of the shop? A. No. I couldn't tell you what day that was offhand. But I mean, I've got it written down. I keep journals, travel journals, so I've got it written down. Q. Do you remember off the top of your head what date you have in the journal? Page 860
(Evelyn Case testimony)
A. Pardon me? Q. Can you remember, as you sit here, what date you had written down in the journal as the day you got the car out of the shop? A.
No, I don't, unless I would look into it. Q. Let me ask you about the week of June 5th of 2001. Again, I know I'm shifting topics on you, but do you recall anything unusual happening within your family the week of June 5th 2001? Anything about Byron's health in particular? A. Well, Byron, he was sick. He just wanted to sleep. And I was like, "Well, can I do anything for you? You need to go to a doctor." And he just wanted to sleep. So I was like, okay, you know. Somebody is sick. Just let them sleep. And I would call him from work to make sure he would eat something or something, but he didn't answer the phone. He was just sleeping. Q. Do you recall if Byron ever went to the doctor or do you know? A. Yes. He did go to the doctor because he got an antibiotic. Q. All right. Can you recall how long he had been sick? Page 861
(Evelyn Case testimony)
A. Well, I came down on that Friday, and he was sick through until he got arrested, because he had to take his antibiotics. And he was arrested and then they had to put him on antibiotics in the detention center. Q. You remember that clearly? A. Yeah. Q. You said it all started on the previous Friday? A. Friday. Friday night. He came home and he -Q. What do you remember about that Friday night? A.
Oh. I'm sorry. Q. I interrupted you. What do you remember about that Friday night? A. Oh, well, he came home, and he said "I'm just not feeling good." Q. Do you remember anything in particular about how he even got home that night? A. No. A friend dropped him off. But I was not at the door looking out to see who the friend was or anything. But he had gotten a ride home. Q. When he did go to the doctor, can you remember what his illness was? A. I'm sorry? Q. Do you remember what his illness was? A. Not exactly, but something similar to strep throat. Page 862
(Evelyn Case testimony)
Q. All right. You mentioned the date of Byron's arrest. Do you disagree that was June 11th of 2001? A. Do I disagree? Q. Do you remember the date? A. Well, I mean it's been mentioned enough. Q. After Byron was arrested, did you ever receive any phone calls from Ms. Kelly Moffett?
A. Yes. Q. Can you remember when that was in relation to the date of the arrest, June 11th? A. July 19th. Q. You remember the date she called? A. Yeah. Q. What happened when Kelly Moffett called your residence? A. She woke me up, first of all, and just took me by total surprise, and I -Q. Let me back up. This is July I9th? A. Correct. Q. So did you know at that time she was a witness against Byron Case -A. No. Q. -- for an alleged murder? Page 863
(Evelyn Case testimony)
A. I'm sorry. Wait. Did I know -- oh, that means did I know that she is accusing him? Q.
Yeah. Did you know that on July 19th? A. Yeah. Q. Okay. So you're surprised first of all? A. Totally surprised. That was my wake-up call at 6:51 in the morning. Q. And how did the conversation proceed? A. She did all the talking and I just listened. And I was reaching around. I was on the phone. I was not on a cordless phone, but I was on a phone with a cord. And I was looking around to get some writing utensils, and I just let her talk, and I just started writing staff down real quick whenever she was telling me. Q. Did she discuss the murder case or mention it? A. No. She did not specifically mention the murder at all. Q. What was the first thing she said; do you recall? A. "This is insane." Q. Those were her words? A. "This is insane." Q. What did she say next? A. Then she said, "It's acid-shaped mescaline."
Q. And what did you take that to -Page 864
(Evelyn Case testimony)
A. I'm just listening. I'm just -Q. What did she say after acid-shaped mescaline? A. She said, "We were in our own little world. You should have been there." Q. Was there any -A. She said, "I'm an accomplice. I'm an accomplice, but since I told, I got -- they gave me part immunity. I -- this is tearing me and my sister apart. My family really liked Byron a lot. I should be in jail with him, and I'm ready to go." And then she talked about Justin's family. She said Justin's mother was a Martha Stewart type and his real father was in prison and his stepfather was very wealthy. And then she said that they picked her up at school and -Q. Now, we're talking about the date of the homicide again? A. She is just telling me all this stuff. Q. She said they picked her up at school? A. They picked her up at school and they had Jack Daniels in the car. I don't know if it was a fifth or two-fifths. I wrote down two-fifths. She said she hasn't seen Byron for a few days, but she knew that Justin had pressured Byron all day. Page 865
(Evelyn Case testimony)
Q. Did she say how she knew that?
A. No. And then she asked me "May I write to him? May I be in touch with him?" Q. Did there appear to be any confusion on whether Kelly thought you even wanted to talk to her? A. Yeah. She said -- like I said, I let her do all the talking. I was doing all the writing. Because to me that was just, wow, you know, I just needed to write all this down. And she just wanted to keep talking. And I said, "Kelly, listen, I'm going to have to go." "Don't you want to talk to me?" And I said, "Well, I have to go to work." Q. How did the conversation end? A. Well, she basically promised to call back that night. Q. Did you make any plans in preparation for the next phone call? A. I made plans. I went to three different Radio Shacks. Instead of letting my fingers doing the walking, I'm driving all over trying to find a recording device, because an attorney had told me to do that. And so I got the machine, and I called a friend of Byron's who was willing to come over and sit, and we had a list of questions we were going to ask her. Page 866
(Evelyn Case testimony)
Q. Ask Kelly? A. Yeah. We had a whole list, yeah. We were really, really excited because we felt like yes, maybe we can do something now. Q. To help Byron? A. Yeah. But she never called back. Q.
Can you say that one more time? A. She never called back so that was a real disappointment, and I kept a recording device for about a month and then I returned it. MR. LANCE: I believe that Is everything I wanted to cover, Your Honor. THE COURT: All right. Cross examination. CROSS EXAMINATION BY MR. FRY: Q. Let's start off with how long had you been divorced from your ex-husband, Dale Case. How long had you been divorced? A. How long had I been divorced? The divorce was in '89. Q. In '89. So by '97, you had been divorced about eight years? Page 867
(Evelyn Case testimony)
A. Uh-huh. Q. Was Byron primarily living with you during that time? A. No. He was between both of us. Q. Between both of you? A. Yes. Q. All right. In 1997, you became aware that Byron started dating Kelly; is that right?
A. Yes. He brought her to the apartment. Q. I'm sorry. Go ahead. A. I don't recall the exact date that he brought her and introduced her to me. Q. Did you know when they started dating? A. Huh-uh. Q. No? A. No. Q. The woman next to you can't get the nods. A. Okay. Oh, no. Q. You're doing real well, but if I remind you, it's just to help her out. So you're unaware of when he started dating. If I suggested to you it was like in the springtime during school graduation or the end of school, would that sound right at all? A. I don't know. Page 868
(Evelyn Case testimony)
Q. Do you know if he brought her to meet you in the summer? A. I don't know.
Q. Do you know that he was 18 years old when he started dating Kelly? A. Yeah. Q. Did you know Kelly was 14 years old? A. No. Q. Did you know Kelly had just finished the eighth grade when she started dating Byron? A. No. I didn't know all that, no. By looking at her, I didn't know how old she was. She acted like a big girl more or less. Q. In your opinion she acted very mature? A. Very mature, yeah. very mature. Q. And you couldn't tell that she had just graduated the eighth grade? A. No. Q. And you're not sure when Byron came and introduced you at some time; is that right? A. Not really. Q. It certainly was before the murder; is that correct? A.
Yes. Page 869
(Evelyn Case testimony)
Q. Were you aware of how many times Byron would go over to Kelly's house to visit at her family's house? A. Quite Often. Q. Was it almost daily? A. She was very demanding of him. She wanted him a lot. So I don't know. I mean, I was not with him. I was working. So I don't know if he -- yeah, he was there a lot. Let's just say he was there a lot probably. Q. So it's fair to say she was quite infatuated with him; is that correct? A. Yeah. Q. Was Byron infatuated with her? A. He must have been. He was very caring with her. Very caring. As a matter of fact, when he introduced her to me, she went to the bathroom and he came up to me in the kitchen and he said, "Mom, Kelly's father is an alcoholic, and he beats her." And I just went (breath intake) because I was thinking, "Why do you need something like this, this baggage?" But then the other side of me said -- I looked at him and I said, "You know what? She is always welcome and safe in this house." That was my very first -Page 870
(Evelyn Case testimony)
Q. Did you ever have to express that kindness to Kelly herself? A. Kelly and I weren't close. She was not -- like some of Byron's friends, Kelly was not into me so much. Q.
Would it be fair to say she wasn't a confidant of yours; is that right? A. No. Q. So she never shared those thoughts with you at all, did she? A. No. Q. A little background on you is that you are German; is that correct? A. Correct. Q. And your primary language before you came to America was German; is that right? A. My mother language is German, yes. English is my second language. Q. And you can't stay you're as fluent in German today as you were before? A. No. Q. Is that right? A. No. Q. And it's just because you don't get to use it every day here; is that right? Page 871
(Evelyn Case testimony)
A. Uh-huh.
Q. But you do write in German to try to keep up with your German? A. I read and I write and I speak it whenever I can. Q. What's the extent of Byron's understanding of German language? A. Byron, it's good. It's like, well, when we have our conversations, I will correct him creatively, and he is still learning, but he knows the basics. I mean, we can communicate. Q. He can converse in German language; is that correct? A. Yeah. Q. Did you ever get to meet Justin? A. Yes. Q. Did you ever know about Justin being in Europe and liking Germany? A. Uh-huh. Q. Yes? A. Yes. Q. Did Justin ever talk German? A.
Yes. Q. Was he as fluent as Byron? A. I always thought he was a little better. Q. Really? Page 872
(Evelyn Case testimony)
A. I thought, now that you mention it. Q. All right. Did you ever see them talking in German back and forth? A. No. Maybe one night when they came over, we were watching television and Justin was there. It was probably the only time, and I found him very pleasant. He was very polite. Worldly. Q. Justin at times would come visit at your house; is that correct? A. I only remember him one time, actually. Q. How often did you have the sense that Byron visited at Justin's house? A. Oh, they were together a lot, because Justin had a nice apartment. And Byron was in the, you know, it's like you want to move out. You know how they want to move out, but they still want the security of their nest. And if they have a friend where they can spend the night, they'll stay there, listen to music all night or whatever. But I guess it was a comfortable place to hang out. Q. It's a fair question. How often do you think he spent -- Byron spent the night over at Justin's? A. I have no idea.
Q. Was it frequently? Page 873
(Evelyn Case testimony)
A. Maybe. Q. If he is living with you at this time primarily, why do you have no idea how many times he was spending the night with Justin? A. Because I would go to bed early and when I wake up, he would be there or he wouldn't be there. Q. Do you have a sense of how many times he wouldn't there when you woke up? A. No. He was there most of the time. Q. Are you aware of a period of time, oh, let's say in spring or early summer of '97 when Byron was gone an entire week spending the week at Justin's? A. Yeah. I'm sure that happened because I would miss him. And every time I would see him, I would be very happy to see him again. Q. He would spend entire weeks away from your house? A. I cannot say yes or no to that. I cannot say yes or no. Q. Are you aware, if he had spent an entire week away from your house, would you be aware of that? A. I'm sure I would. Q. Are you aware of any period of time like that when he spent a week away from your house?
Page 874
(Evelyn Case testimony)
A. He would always pop in. He would always see me somehow. He would be visiting me at work or whatever. So it's not that I can say I know that he's been gone a week. I cannot say that. Q. Popping in doesn't count. It's a week that he's spending the night away at Justin's house the entire week; are you aware of that period of time? MR. LANCE: I object. I think it's been asked and answered. THE COURT: Objection overruled. BY MR. FRY: Q. Are you aware of a period of time when Byron spent an entire week at night at Justin's house? A. I don't know. I guess. Q. You're unaware of that? A. Yeah. Q. Is that because Byron would be gone so frequently you just didn't even -- couldn't even keep track of him? A. No. I'm not going to say that he was gone. You know, after the divorce, that's just the way the life was. He was with his father or he was with me. Q. And just going back to his father, you did not visit every day after your divorce; is that correct? Page 875 A.
(Evelyn Case testimony)
No, of course not. Q. And you were unaware of any friend that might have come over and brought any kind of guns over to Date's house while you were divorced; is that correct? A. Correct. Q. You're not aware and you can't tell this jury there was never a gun in Dale's apartment; is that correct, for eight years? A. There was no gun in our house. In our apartment? Q. Dale's house. Your ex-husband's house. A. You know, he was my husband. Why would he change to becoming a totally in that sense a person that would be into guns and -- that just wasn't him. We were anti-guns. We are anti-guns. Q. I understand. I want to now ask you some questions about Byron coming home on October 22nd 1997. Do you remember that night; is that correct? A. Uh-huh. Q. Do you remember the night before when Byron was home or not? A. The night before? Q. Correct. Page 876
(Evelyn Case testimony)
A. Not without looking into my journal.
Q. Prior to coming here today, did you think that period of time would be important? A. Byron was around me a lot during that time because of his car. He discussed the matter with his transportation with his father -- with me and then his father, and I was the one that decided to have the car towed. Q. Does that help you remember whether he spent the night before October 22nd at your house or not? A. No. it doesn't help me remember. I would have to look at my writings. Q. Did your writings keep track of whether Byron spent the night at that period of time? A. Yeah. Because I would always write down it's nice to see him, and I'm glad he's home. Q. Going back to October 22nd, it's your testimony today between ten and eleven o'clock Byron arrived at your home, your apartment; is that correct? A. Correct. Q. And you were up, and he came in and talked to you; is that correct? A. He always comes in and says hello. He was always in a cheerful mood. He came in and he said hello. Page 877
(Evelyn Case testimony)
Q. Was he cheerful that night when he arrived? A. Well, he was upset that Justin and Anastasia were it again, which I heard frequently, you know. Either he didn't see anything of them, because they were such lovebirds, or they were at each other's throats and he just said it's just ridiculous to be around them.
Q. So he talked a lot about not being with Justin because Justin was with Anastasia; is that correct? A. Well, during the early part of their relationship. Q. Now, when he came in to talk to you, he started talking to you immediately about Anastasia; is that correct? A. Yeah. Well, he was talking, basically, about how his evening went. You know, this is just another one of those evenings between Anastasia and Justin. Q. Was there anything else mentioned about what he had done that whole day before meeting up with Anastasia? A. No. Q. Did he mention anything about what he did the night before at Justin's house? Page 878
(Evelyn Case testimony)
A. No. Q. Did he ask you about his car? A. I don't remember if he talked about his car. Q. So your recollection, his primary conversation was with you regarding Anastasia; is that correct? A. It was just something on the side just like, oh, you know, which I mean I've heard it before, like when he would say Anastasia and Justin were arguing and why don't they just break up and get it over with or whatever. So it was just you know, something he wanted to share.
Q. He did mention to you that she got angry and had an argument with Justin and that she got out of the car; is that correct? A. Uh-huh. Q. Yes? A. Yes. Q. And that he did mention that you mentioned he thought she didn't even wait for the car to stop when she got out? A. Yeah. Q. And -A. I mean, they had a red light I guess coming up and he came to a stop, but the car was not stopped, and she jumped out. Page 879
(Evelyn Case testimony)
Q. Now, did he mention to you what kind of part of town this was in? A. No. Q. Did he mention a location at all? A. No. Q. Did he mention what time at all?
A. No. Q. Did you question him at all about that? A. There was nothing to question. It was just so normal. Oh, I'm sorry. That's what I would say. Because when he did tell me about Anastasia and Justin, "Mom, they're arguing. They're no fun to be around." It was just like, you know, "I just wish they would stop." I mean, I could tell him about my life, and he could tell me about his life. Q. In telling you this story, did he express any concern at all that she was out at night and that she had just gotten out of the car in the middle of a bad area at night? Did he express any concern to you about that? A. No. Q. Did he tell you at all that Justin had called Anastasia's home and determined that about 9:00, 9:30 that she hadn't even gotten home at that time? Page 880
(Evelyn Case testimony)
A. I don't remember him saying anything like that. Q. The phone call that you remember from Kelly, give some kind of time frame, you're aware of Byron's arrest in June of 2001; is that correct? A. Yes. Q. And, in fact, while you hadn't met Mr. Lance, you had had some contact with other lawyers as a result of that arrest; is that correct? A. Just free advice. Q.
Free advice? A. Yeah. Q. More on a friendly, not strictly professional level? A. They were professional. They were professional. I was just reaching out for help, period. Q. They all wanted money? A. Well, of course, but they still -- they wanted money, but they would still allow me to call them if I needed any advice and that was very helpful at the time. Q. When Byron got arrested, did you contact him at all? A. When Byron got arrested did I contact him? Page 881
(Evelyn Case testimony)
Q. Yes, ma'am. A. No. He called me. Q. He called you. At some point in time, did you find out what he had been charged with? A. Yes. Q. And did you find out at some point in time what the evidence we had against him? Did he ever discuss that with you? A.
There was no evidence. Q. Did he ever tell you that Kelly was a witness? A. Oh, Kelly. Well, yeah, he said Kelly told that did this. Q. About what time frame did you hear that Kelly was the witness that said Byron committed this murder? A. I don't remember. I don't remember when I found out. Q. Was it before she called you July 19tb? A. Yeah. By that time I already knew, yeah. Q. If he was arrested June 11th and the call came July 19th, got any kind of time frame where you might remember when you learned Kelly was the witness against Byron? A. No. I don't know. I don't know the exact time when I found that out, and I didn't study up on my notes on that. Maybe I should have. But no, I don't remember. Page 882
(Evelyn Case testimony)
Q. When you found out that Kelly was the person saying Byron committed this murder, did you try to contact her at all? A. Never, no. I mean, you know, when Byron called me that he was arrested, that day I called. That same -- like right after I hung up. I did call over there, but I got her sister. I said, "Is Kelly there?" I was just like -- I don't know. I was just in shock. Okay. Now it's coming to me. Okay. This is what happened. Byron called me and told me. That's why I went to the phone, and I called over there, and Kelly's sister answered the phone and I said, "Is Kelly there?" I guess I just wanted to say, "What's going on?" And she said, "She is not here right now, but my mom is here."
And I said, "Well, may I talk to your mom?" And then they hung up the phone on me, and I was very upset about that. Very upset about that. And then I cried. And, you know, you don't know what you're going to do next. You just try to contact people. And I went home that night, and I called an attorney. Page 883
(Evelyn Case testimony)
And the strange thing was, I tried to call and talk to Ms. Moffett again. MR. LANCE: Your Honor, may we approach. THE COURT: Sure, sure. THE WITNESS: I tried to -THE COURT: Just a moment, ma'am. (Counsel approached the bench and the following proceedings were had:) MR. LANCE: Judge, I guess my objection at this point is I'm not sure the relevance or I guess I'm confused on where we're headed, what the relevance is or how this is all going to tie in. THE COURT: Well -MR. LANCE: My objection is relevancy I guess. THE COURT: Well, I think where she is going, I think it is relevant. The question I think that is attempting to be elicited is at what point in time she became aware of the fact that Kelly was a witness against Byron in relationship to the time period between the arrest and the July 19th phone call. Page 884
(Evelyn Case testimony)
That's what I understand the question to be. MR. FRY: Correct.
THE COURT: I don't think her -- her answer was -MR. LANCE: Starting to get irrelevant maybe, but I understand. THE COURT: If her answer is irrelevant, I don't think the question is irrelevant. MR. LANCE: I see what you're saying. THE COURT: I mean -MR. LANCE: I'll withdraw. I see what you're saying. I withdraw the objection. THE COURT: That Is fine. (The proceedings returned to open court.) BY MR. FRY: Q. I apologize for the interruption. Can you go ahead and finish your answer, please. A. Could you ask the question again. Q. I believe you were talking about after making the phone call, you contacted a lawyer and you were distraught? A. Yes. I got a hold -- this was -- you know how our telephone sometimes, you call a number and then you hang up. Page 885
(Evelyn Case testimony)
And anyway, it was something really strange with the telephone, because I ended up getting Mrs. Moffett on the line, but then I let her go, because I wanted to talk to the attorney. So they were on the line at the same time, which was really strange to me, but --
Q. So somehow there was a second call or was that a continuation of the first call? A. Yeah. Because it was exciting that I got both -- got an attorney, and I got Mrs. Moffett on the phone at the same time, and I thought this is so strange, but then I thought, well, I'm going to let her go and talk to the attorney. And I've never spoke with them again. But yes, I did call right after Byron called me and said he was arrested. I was just so dumbfounded. I said, "What is going on?" Because I had their telephone number. Q. And so it's your recollection that you talked to Kelly's sister -A. Yes. Q. -- for a little while? A. Yeah. Just to ask for Kelly. Q. And you also got to talk to Kelly's mother for a little while or she got on your phone somehow? Page 886
(Evelyn Case testimony)
A. She got onto the phone, and I don't know what she thought, because it was like I had to let her go. And I spoke real fast, because I wanted to talk to the attorney. MR. FRY: Could I have just a moment. THE COURT: Sure. MR. FRY: Your Honor, I have no further questions. THE COURT: All right. Mr. Lance, do you wish re-inquiry? MR. LANCE:
I'll try to be brief. REDIRECT EXAMINATION BY MR. LANCE: Q. Mrs. Case, there was a lot of discussion about this conversation you had with Byron the night Anastasia disappeared. Do you remember those questions? A. Uh-huh. Q. Is it possible for you to have a precise recollection of the entire conversation between you and Byron? A. That night when he came home? Q. Can you -A. It was brief, no. It was just really brief. Like I said, the idle chitchat. "Hi, it's nice to see you." Page 887
(Evelyn Case testimony)
Q. No, no, no. I'm not asking you to repeat it again. Is it possible for you to remember every detail of that conversation? A. Every detail? No. The TV was going, and I mean, I gave them that much attention, you know. I mean, if he has something to say, I listen. Q. All right. While the prosecutor was cross examining you, you mentioned that you keep journals? A. Yes. Q. And let me ask you this way: Did the journals help you recall that Byron Case's car had broken down about this time?
A. Uh-huh. Q. And was in the shop? A. Uh-huh. Q. You verified that in your journal? A. Uh-huh. Q. I need a clear yes or no. A. Yes. Q. When you looked in your journal, did you find a receipt or some kind of documentation that the car had broken down? A. No. I don't have the receipt. I think his father paid for it, because he -- because Byron was depressed, you know. Page 888
(Evelyn Case testimony)
When you don't have your car and you want to have a car and you want to get around. But we decided, okay, we'll pay for it. So. Q. When you write in your journals, do you usually write in English or German? A. I write in German. Q. All right. And do you understand that's why no one asked you to bring your journals today? They're in German? Nobody here could probably read them anyway?
A. (There was no response.) Q. You understand that? A. Uh-huh. MR. LANCE: Okay. No further questions. THE COURT: Mr. Fry, do you wish anything further based on your examination? MR. FRY: No recross, Judge. THE COURT: Thank you, Ms. Case. Appreciate your testimony. (The witness was excused.) THE COURT: Okay. Ladies and gentlemen, I think that's going to -- I believe that's run the gamut for today, does it not, Mr. Lance? Page 889
(Evelyn Case testimony)
MR. LANCE: Yes. THE COURT: Let's talk a little bit about tomorrow and future events if we can. From talking to the lawyers, nothing is ever cast in concrete, but I think the very strong likelihood is that we will conclude the evidence tomorrow. Once the evidence is concluded, the following has to occur. I have to get together the final jury instructions, which don't think. -- I think in this case will be fairly easy to do. Once I have the jury instructions prepared, then the attorneys have the opportunity to give to you closing arguments. Once they finish their closing arguments, then you begin your deliberations. Obviously, the length of your deliberations is up to you. And also there are sometimes when juries, for example, if there is closing argument, and they begin their deliberations say late in the afternoon, they have various options. Those options can include deliberating into the evening.
Page 890
(Evelyn Case testimony)
It can also include deliberating for awhile, going home and then coming back the next day and resulting deliberations. All that is up to you. Now, the reason I'm telling you this is I can't tell you that you'll get the case tomorrow, but we might have the opportunity to get it to you tomorrow. So, if we do that, when you go home and how you do your deliberations will be largely up to you. I'll give you the choice. But I think if all of you could be in a position to be flexible tomorrow, because it's possible we could get this case to you tomorrow afternoon. Everybody understand what I'm saying? So that way, if your number -- if you wanted to deliberate into the evening, it would be great if you could be available to do so. By the same token, if you were to begin your deliberations and you want to go home, you could do that also. So if you could maintain sort of a flexibility for tomorrow, that would be good. The other possibility is this: It may well be that, based upon the evidence tomorrow and everything we have got to do, we may make the decision the best thing to do is to do closing arguments Thursday morning. Page 891
(Evelyn Case testimony)
That's also a possibility. But, if you could be in a flexibility mode and sort of be loose tomorrow for these various options, I think that would be helpful to us all. I wanted to give you a little forewarning of that. The Court again reminds you of what you were told at the first recess of the Court. Until you retire to consider your verdict, you must not discuss this case among yourselves or with others or permit anyone to discuss it in your hearing. You should not form or express any opinion about the case until it is finally given to you to decide. Do not read, view, or listen to any newspaper, radio, or television report of the trial. I would like for you to be here in the jury room shortly before 9. I've got a small little status docket on my civil cases tomorrow at 8:30, so maybe 9:15 before we get started. Page 892
(Evelyn Case testimony)
If you could be in the jury room shortly before nine, I would really appreciate it. With that being said, have a wonderful evening. We'll be in recess. All rise, please. Jury is free to go. (Court was adjourned until May 1, 2002.)
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