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1
IN THE MISSOURI COURT OF APPEALS
2 EASTERN DISTRICT OF MISSOURI

3 RUSSELL S. FARIA, )

4 Appellant, )

5 vs. ) ED No. 100964

6 STATE OF MISSOURI, )

7 Respondent. )

9 IN THE LINCOLN COUNTY CIRCUIT COURT OF THE STATE OF MISSOURI


FORTY-FIFTH JUDICIAL CIRCUIT
10 JUDGE DAN DILDINE

11 STATE OF MISSOURI, )

12 Plaintiff, )

13 vs. ) Cause No. 12L6-CR001312

14 RUSSELL S. FARIA, )

15 Defendant. )

16

17 TRANSCRIPT ON APPEAL
2-20-13, 3-4-13, 5-21-13, 6-18-13,
18 7-2-13, 7-10-13, 10-28-13
11-18-13, 11-19-13, 11-20-13, 11-21-13
19

20 VOLUME 2

21

22 APPEARANCES

23 Ms. Leah Askey Attorneys for the Plaintiff


Mr. Richard Hicks
24
Mr. Joel Schwartz Attorneys for the Defendant
25 Mr. Nathan Swanson
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1 MS. ASKEY: Can you see?

2 JUROR NUMBER 51: I can't see very well.

3 THE COURT: We probably ought to turn these

4 lights down. Is that better?

5 JUROR NUMBER 51: Yes.

6 MS. ASKEY: There we go.

7 Q. (By Ms. Askey) That's the front of the house?

8 A. Yes.

9 Q. Okay. And that's another shot of the front of

10 the house, I assume. And what's this?

11 A. The back of the house.

12 Q. Okay.

13 A. Back door.

14 Q. And that photograph?

15 A. It's the back porch.

16 Q. And it shows your dog on the porch?

17 A. Yes.

18 Q. What's the dog's name?

19 A. Sicily.

20 Q. There's some talk about Sicily being chained

21 up. Was the chain on the porch or was it somewhere else?

22 A. It was on the -- I'm not sure, actually.

23 Q. You don't know where it was?

24 A. No.

25 Q. Okay. And then?


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1 A. The back and the side of the house.

2 Q. And then is that the next one?

3 A. The side of the house.

4 Q. Okay. Is that the same side we were just

5 looking at but just a little different angle?

6 A. Yeah.

7 Q. Okay.

8 A. Uh-huh.

9 Q. Thank you. Okay, Mariah, let's talk about the

10 days leading up to your Mom's death, which was Christmastime?

11 A. Uh-huh.

12 Q. Busy time?

13 A. Uh-huh.

14 Q. How many holiday gatherings do you think you

15 guys went to?

16 A. Probably like three or four.

17 Q. And you got sick?

18 A. Uh-huh.

19 Q. So you didn't get to go to all of them?

20 A. Yeah.

21 Q. Christmas Eve, do you remember where you went

22 Christmas Eve?

23 A. Uh-huh. My Dad's side of the family, Aunt Pam.

24 Q. So Russ's Aunt Pam?

25 A. Yes.
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1 Q. Okay. And after that, on Christmas Eve, where

2 did you go?

3 A. Back to Troy.

4 Q. Okay. And who went to Troy?

5 A. My sister and my Mom, my Dad and I.

6 Q. Okay. And so you all got up together on

7 Christmas morning?

8 A. Yes.

9 Q. And on Christmas morning -- describe Christmas

10 morning, 2011?

11 A. Just a pretty typical Christmas morning. Wake

12 up and open presents and get ready for church.

13 Q. Was there anything specific about that

14 Christmas that stood out in your mind as different?

15 A. My sister and I both got $100. That was pretty

16 different. We never get a lot of money from my Dad. And we

17 took a family portrait.

18 Q. And when you say -- I'm going start with the

19 $100. You never got a lot of money from Russ?

20 A. No.

21 Q. And that year, he gave you $100, and how did

22 you get that?

23 A. In our stocking wrapped up in socks.

24 Q. And you thought that was odd?

25 A. Just a little bit.


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1 Q. Because he wasn't very free with money?

2 A. Huh-uh.

3 Q. And you talk about a family portrait. Describe

4 that to me. Did you take pictures typically on Christmas

5 morning?

6 A. Opening presents, but we never like -- he set

7 up like a tripod thing and then we, he set it on ten timer

8 and then we took them, and posed for a picture with the dog.

9 Q. So it was a posed picture with the dog?

10 A. Uh-huh. Yep.

11 Q. Had he gotten a new camera or something?

12 A. No.

13 Q. But this year, he decided that you were going

14 to all get together and take a picture?

15 A. Uh-huh.

16 MS. ASKEY: Any objection, Joel?

17 MR. SCHWARTZ: No.

18 Q. (By Ms. Askey) Mariah, I'm going to show you

19 what's been marked as State's Exhibit 2. Do you recognize

20 those photographs?

21 A. Yes.

22 Q. And can you tell the jury what those

23 photographs are?

24 A. The family portraits.

25 Q. That you took --


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1 A. Yeah.

2 Q. -- on that morning?

3 A. Uh-huh.

4 Q. And you're sure that that was Christmas

5 morning, 2011?

6 A. Yes.

7 MS. ASKEY: Judge, at this time I would ask to

8 admit State's Exhibit 2.

9 THE COURT: Is there any objection by defense?

10 MR. SCHWARTZ: No, Your Honor.

11 THE COURT: State's Exhibit 2 is admitted into

12 evidence.

13 Q. (By Ms. Askey) And so just to walk the jury

14 through it, that's you obviously?

15 A. Yep.

16 Q. And who is next to you?

17 A. My sister, and the dog is in front and my Mom

18 is behind and my Dad.

19 Q. And the next photograph, essentially the same

20 but no dog, right?

21 A. Uh-huh.

22 Q. After the photo shoot, what did you do next?

23 A. We all went to church, I think.

24 Q. Okay. And did you drive together or did you

25 drive separately?
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1 A. I don't remember.

2 Q. Okay. Was it typical for -- strike that.

3 How many vehicles did your parents own?

4 A. Three.

5 Q. And what were they?

6 A. The Explorer, the PT Cruiser, and the Nissan

7 Maxima.

8 Q. And what did your Mom typically drive?

9 A. The Explorer or the Nissan.

10 Q. And the Nissan was your sister's, right?

11 A. Yeah. It was my Mom's and my sister had her

12 name on it, too.

13 Q. Was she grounded from it?

14 A. Yeah.

15 Q. After she got grounded from it, what typically

16 did your mother drive?

17 A. The -- after she got grounded from it?

18 Q. Yes.

19 A. The Nissan.

20 Q. The Nissan?

21 A. Yeah.

22 Q. And what did Russ drive?

23 A. I think he was driving the Explorer because the

24 PT Cruiser had broke down.

25 Q. Okay. So that morning you left and you think


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1 you went to church?

2 A. Uh-huh.

3 Q. And then where did you go next?

4 A. My Dad's Mom's family Christmas.

5 Q. Okay. The Faria family?

6 A. Yes.

7 Q. And did you stay there all evening then?

8 A. No. I got sick and I couldn't go to my Aunt

9 Pam's.

10 Q. This was Christmas Day?

11 A. Uh-huh.

12 Q. Christmas Day, do you remember?

13 A. No.

14 Q. Okay. That's okay. It's been a long time ago.

15 Did you go back to Troy Christmas evening?

16 A. No.

17 Q. And the next day was the 26th. Did you see

18 your Mom on the 26th?

19 A. Yes.

20 Q. And do you remember where you saw her?

21 A. Actually, I didn't see her the 26th. The 26th

22 is when I got sick, so I had to go to the hospital.

23 Q. And then did you see her that evening?

24 A. No. Well, when I went back home to my

25 Grandma's, I did. She couldn't go in the hospital.


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1 Q. Okay. So your mother was at your grandmother's

2 when you got back?

3 A. Yes.

4 Q. Okay. Did your mother stay all night there

5 that night?

6 A. Uh-huh.

7 Q. And so then did you see her on the 27th?

8 A. Yes.

9 Q. On the 27th, what did she do during the day, if

10 you remember?

11 A. She had chemo. I think that's all she did that

12 day.

13 Q. And did you go with her to chemo?

14 A. No.

15 Q. Did you stay home at your grandmother's house?

16 A. Yes.

17 Q. And did you see your Mom after she had her

18 chemo treatment?

19 A. Yes.

20 Q. After she got home from chemo, what did you do

21 then?

22 A. Her and my Grandma and Bobbi all played Upwards

23 and I just sat on the couch.

24 Q. At some point, did your mother leave your

25 grandmother's house?
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1 A. Yes.

2 Q. And did you know where she was going when she

3 left?

4 A. Back to Troy.

5 Q. And do you know why she decided to go back to

6 Troy?

7 A. Because she hadn't been there in a couple days,

8 so she just decided to go home.

9 Q. Mariah, when she left that evening on the 27th,

10 did you see your Mom again after that?

11 A. No.

12 Q. Since her death, have you had the opportunity

13 to see your stepdad?

14 A. No. Well, at the -- before. At the memorial

15 and the funeral and the wake, he was there. That's it.

16 Q. But other than that, you didn't have any other

17 meetings with him?

18 A. No.

19 Q. Hang on one second.

20 Mariah, do you remember on the 27th, what your

21 Mom's demeanor was like before she left to go back? You said

22 she was playing a game. How she was acting?

23 A. She seemed worn out and tired.

24 Q. Did she seem happy?

25 A. Not really.
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1 Q. Just tired?

2 A. Uh-huh.

3 MS. ASKEY: I don't have anything further at

4 this time, Judge.

5 THE COURT: Mr. Schwartz?

6 CROSS-EXAMINATION

7 BY MR. SCHWARTZ.

8 Q. Now, Mariah, your parents, your Mom and

9 Russell, moved to Troy when?

10 A. I think it was in the summer before my junior

11 year.

12 Q. And they had been trying to buy the house that

13 you had been living in, right?

14 A. Yes.

15 Q. That house was owned by your grandfather on

16 your mother's side, right?

17 A. Yes.

18 Q. They were paying rent to that house and that

19 house was in St. Charles; is that correct?

20 A. Lake St. Louis.

21 Q. Lake St. Louis, I'm sorry. And you were aware

22 they were trying to purchase that house but couldn't afford

23 it?

24 A. It was foreclosed.

25 Q. Right. They couldn't afford to get it out of


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1 foreclosure; is that correct?

2 A. Uh-huh.

3 Q. Correct?

4 A. Yeah.

5 Q. Eventually, your Mom and Dad found a house up

6 off Sumac in Troy?

7 A. Yes.

8 Q. And that's something they could afford and they

9 had more space?

10 A. Yes.

11 Q. So they made the decision to move there?

12 A. Yes.

13 Q. You moved there with them?

14 A. Yes.

15 Q. At least initially?

16 A. Yes.

17 Q. Did Leah move in with them at the time also?

18 A. No.

19 Q. Why didn't Leah move with them? Well, let's do

20 it this way --

21 A. I don't know.

22 Q. Leah was having some issues of her own,

23 correct?

24 A. Probably, yeah.

25 Q. All right. So Leah kind of was getting help


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1 for her issues?

2 A. Yes.

3 Q. Fair enough? All right. Now your Mom was

4 diagnosed with cancer in the end of 2009?

5 A. Yes.

6 Q. And then approximately a year later they

7 thought she might be cured; is that right?

8 A. Yes.

9 Q. And then in October of 2011, it turned out that

10 they believed it was terminal; is that correct?

11 A. Yes.

12 Q. Did they tell you about it?

13 A. Uh-huh.

14 Q. Yes?

15 A. Yes.

16 Q. And did they tell you that they only thought

17 she had a certain amount of time to live, whatever that may

18 be?

19 A. I don't -- after -- she was supposed to find

20 out if her treatment was getting fixed or not but she didn't

21 make it to that appointment.

22 Q. Okay. The last information was, yes, they

23 thought it was terminal?

24 A. Yes.

25 Q. It had spread to her liver?


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1 A. Yes.

2 Q. Okay. And you said there was a lot of

3 bickering and fighting, but after your Mom's diagnosis in

4 2009, their relationship got a lot better, didn't it?

5 A. I couldn't tell you that.

6 Q. And your Mom would go spend time in, with her

7 mother, Janet, and your grandmother, because you were

8 there, --

9 A. Yeah.

10 Q. -- correct? And she played tennis almost

11 daily, correct?

12 A. Not daily.

13 Q. She played tennis a lot and she played tennis

14 in Chesterfield?

15 A. Yes.

16 Q. And it was a lot closer?

17 A. Yes.

18 Q. So she would stay there the night to see you,

19 the day she had tennis, correct?

20 A. Uh-huh.

21 Q. And also the days she had chemo?

22 A. Yes.

23 Q. Because your Dad worked at home, is that

24 correct, or Russ worked at home?

25 A. Correct.
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1 Q. Now you said this was unusual to take this

2 picture or these two pictures on that Christmas. Christmas,

3 you said, was pretty normal except you got $100?

4 A. Yeah.

5 Q. But it was also the first time your Mom and Dad

6 owned their own house?

7 A. Right.

8 Q. And unfortunately, at this Christmas, as far as

9 anybody knew, your Mom had been diagnosed with terminal

10 cancer, correct?

11 A. Yes.

12 Q. And your Dad, it was your Dad's suggestion to

13 take the family portraits?

14 A. Yep.

15 Q. And you did?

16 A. Yep.

17 MR. SCHWARTZ: Judge, may we approach?

18 THE COURT: Yes.

19 (Discussion at the bench.)

20 MR. SCHWARTZ: I intend to get into two issues

21 at this point. One would be an Offer of Proof. I don't know

22 what her answers would be regarding the life insurance

23 policy.

24 What I intend on asking her is if she knew she

25 was named a Beneficiary and discussed it with her mother, and


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1 if and when she found out that the policy had been changed

2 and she had been excluded from the policy. I would accept --

3 if you know what her answer would be.

4 MR. HICKS: I don't know what her answers would

5 be.

6 MS. ASKEY: I don't know what they would be,

7 either.

8 THE COURT: My question is why would you even

9 want to ask her that?

10 MS. ASKEY: Yeah.

11 MR. SCHWARTZ: Because I believe it's relevant

12 to, well, it's for my Offer of Proof. I just need to make it

13 is why.

14 The other issue I intend to get into is the day

15 that Russ was arrested, which was January 4th, she, along

16 with her sister, went to the bank, transferred all of the

17 funds from he and Betsy's account to her account, and so I

18 think that shows an interest or bias of this witness.

19 MS. ASKEY: Then I would say if she gets, if

20 he's going to ask her questions about that, then we are able

21 to get into the fact that everything about her changing

22 policies and doing all of that was to secure her children's

23 future.

24 That's why she gave her the card so that she

25 could have access to that account and, luckily, she had an


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1 extra card. It was tied to her bank account. That's why her

2 mother did that.

3 If we can't get into the all of the other

4 stuff, I don't know why he can get into her going to the bank

5 and taking the money out of an account she had access to.

6 THE COURT: I think that's fine, but they can

7 follow up.

8 MR. SCHWARTZ: That's fine.

9 MR. HICKS: I guess I'm curious about, in the

10 first instance. I mean, what's --

11 MR. SCHWARTZ: You mean the insurance?

12 MR. HICKS: No. I'm talking about the bank

13 stuff now. The relevance of it.

14 MR. SCHWARTZ: Interest and bias.

15 MS. ASKEY: Well, how is that bias?

16 MR. SCHWARTZ: She took all of his money.

17 MS. ASKEY: It's the victim's account.

18 MR. SCHWARTZ: He and her mother. It's Russ

19 and Betsy's account.

20 MS. ASKEY: Her account was tied to --

21 MR. HICKS: She had every legal right to take

22 it.

23 MS. ASKEY: Right.

24 THE COURT: I guess I don't see the connection

25 because she's saying an issue here. I don't see the


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1 connection because her actions would have happened after the

2 fact so we aren't showing anything, it wouldn't show anything

3 as to her --

4 MR. SCHWARTZ: So okay. So I'm not allowed to

5 get into that? Is that what you are saying?

6 MR. HICKS: I don't see the relevance. The

7 only conclusion the jury might draw is that, well, I wonder

8 if she had something to do with this because now she's

9 getting the money. I don't get that. I don't know where you

10 are going with it.

11 I think what he wants to do is make an Offer of

12 Proof. I don't know what her responses would be exactly.

13 We also have Pam Hupp here who is going to have

14 an Offer of Proof over the lunch hour.

15 THE COURT: Make the Offer of Proof, but I

16 wouldn't do that with the jury here.

17 MS. ASKEY: Why don't we --

18 MR. SCHWARTZ: With her, it's just a couple of

19 questions.

20 THE COURT: It's lunch time anyway.

21 MS. ASKEY: Why can't we do it after the jury

22 is dismissed?

23 MR. SCHWARTZ: Sure.

24 MR. HICKS: If we could excuse the jury to do

25 the Offer of Proof, --


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1 THE COURT: When we do the Offer of Proof, do

2 you want everybody who is not here? Do you care?

3 MR. SCHWARTZ: I don't care.

4 THE COURT: I'm asking --

5 MR. HICKS: I don't care either.

6 THE COURT: I'm asking for each one, not just

7 this one.

8 MS. ASKEY: I don't necessarily care.

9 MR. SCHWARTZ: I think they have a right to be

10 here. I don't care.

11 THE COURT: That's kind of what I thought. I'm

12 going to recess and instruct them.

13 MR. HICKS: Do you have any other questions

14 besides these?

15 MR. SCHWARTZ: No.

16 MS. ASKEY: So is she going to stay on the

17 stand?

18 THE COURT: Right. How long should we go for

19 lunch?

20 MR. SCHWARTZ: An hour and 15 at max, I would

21 guess.

22 Oh, Judge, again, I need to put this on the

23 record. Pursuant to your earlier ruling of my opening

24 statement, I would also intend to go into the witness's

25 finding the suicide note.


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1 Actually, the officer questioned her about it

2 and she said she thought it might be suicide.

3 MS. ASKEY: Based on the fact that she found

4 the note, which is hearsay.

5 THE COURT: I think you can make an Offer of

6 Proof to it.

7 MS. ASKEY: Yes.

8 MR. SCHWARTZ: Okay. So I can't get into it?

9 THE COURT: Correct.

10 MR. SCHWARTZ: All right.

11 (End of bench discussion.)

12 MR. SCHWARTZ: Your Honor, I have no further

13 questions at this time.

14 THE COURT: State, is there any Redirect at

15 this time before we excuse the jury?

16 MS. ASKEY: No, Your Honor.

17 MR. HICKS: We'll let you read the instructions

18 before we move the screen.

19 THE COURT: Ladies and gentlemen of the jury,

20 the Court is going to read you a recess instruction at each

21 recess because we haven't been here since Friday. I'm going

22 to go ahead and read the long instruction one time today and

23 then we'll use the shorter one.

24 After this recess instruction, you will be

25 adjourned for lunch until 1 o'clock this afternoon.


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1 It is the Court's duty to instruct you now upon

2 a matter about which you will be reminded at each recess or

3 adjournment of Court.

4 Unless this case, I'm sorry, until this case is

5 given to you to decide, you must not discuss any subject

6 connected with the trial among yourselves or form or express

7 any opinion about it, and until you are discharged as jurors,

8 you must not talk with others about the case or permit them

9 to discuss it with you or in your hearing.

10 You should not e-mail, text, blog, instant

11 message or use any other form of communication regarding the

12 case, or anyone involved in the case, until the trial has

13 ended and you have been discharged as a juror.

14 It is important that your decision be based

15 only on the evidence presented to you in the proceedings in

16 the Courtroom. You should not do any research or

17 investigation on your own regarding any matter involved in

18 this case. For example, you should not consult books,

19 dictionaries, the Internet or talk to a person you consider

20 to be knowledgeable.

21 You should not read, view or listen to any

22 newspaper, radio, or electronic communication from the

23 Internet or television report of the trial.

24 The Bailiff and other Officers of the Court are

25 not permitted to talk to you about any subject connected with


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1 the trial and you are not permitted to talk to them about it.

2 The attorneys representing the State and the defendant are

3 under a duty not to do anything which may even seem improper.

4 Therefore, at recesses and adjournments they will avoid

5 saying anything to the jurors except perhaps something like,

6 "Good morning" or "Good afternoon". In doing that, they do

7 not mean to be unfriendly, but are simply doing their best to

8 avoid even an appearance that might be misunderstood that

9 they or you are doing anything improper.

10 The same applies to witnesses and to the

11 defendant. They have been or will be instructed to avoid all

12 contacts with the jury, even to talk about matters wholly

13 unrelated to the case.

14 At this time, the jury will be excused until

15 1:00 p.m. Please rise for the jury.

16 (The jury left the Courtroom.)

17 THE COURT: Thank you. You may be seated.

18 Are you ready to proceed with your Offer of

19 Proof?

20 MR. SCHWARTZ: Yes, Your Honor.

21 MS. ASKEY: Mr. Hicks had to step out real

22 quick. He'll be right back.

23 THE COURT: Okay.

24 MR. SCHWARTZ: Your Honor, at this time I would

25 make an Offer of Proof as to the issues that had been raised


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1 at the bench.

2 DIRECT EXAMINATION

3 BY MR. SCHWARTZ:

4 Q. Mariah, after Russ was arrested, January 4th of

5 2011, you went to the bank, correct?

6 A. Correct.

7 Q. And you went to an ATM, correct?

8 A. Not correct.

9 Q. You didn't?

10 A. No. I went to a banker.

11 Q. You went to a banker. What did you do?

12 A. Took out money.

13 Q. Well, did you transfer money out of an account

14 that was in your father and mother's name?

15 A. Yes.

16 Q. You transferred it to whose account?

17 A. Mine.

18 Q. And what was the name on that account?

19 A. Mariah.

20 Q. And how much money did you transfer?

21 A. Around 9,000.

22 Q. And that was approximately an hour or so after

23 Russell was arrested?

24 A. I don't know.

25 Q. Have you ever received any proceeds from your


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1 mother's life insurance?

2 A. No.

3 Q. Do you know who has those proceeds?

4 A. I'm guessing Pam Hupp.

5 Q. And would Pam Hupp be the same person that left

6 with your mother that night from your grandmother's house?

7 A. Yes.

8 Q. When the police first told you your mother was

9 dead, what did you think?

10 A. I didn't really know what to think.

11 Q. Did you believe she committed suicide

12 initially?

13 A. Honestly, I was shocked.

14 Q. But you had told the police that you had found

15 a note several years before of your mother contemplating

16 suicide?

17 A. Right.

18 Q. Thank you.

19 MR. SCHWARTZ: Your Honor, I have nothing

20 further.

21 THE COURT: State?

22 CROSS-EXAMINATION

23 BY MS. ASKEY:

24 Q. Just to clarify a few things. Mariah, the

25 account that you accessed through the banker?


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1 A. Uh-huh.

2 Q. You actually went to a teller, correct?

3 A. Right.

4 Q. You had access to that account; is that right?

5 A. Right.

6 Q. And the teller is who created, is who prepared

7 the transaction for you; --

8 A. Uh-huh.

9 Q. -- is that right?

10 A. Yes.

11 Q. And was your account linked to that account?

12 A. Yes.

13 Q. And so there weren't any legal issues with you

14 doing that?

15 A. No.

16 MS. ASKEY: Nothing further.

17 THE COURT: Mr. Schwartz?

18 REDIRECT EXAMINATION

19 BY MR. SCHWARTZ:

20 Q. Mariah, I'm going to show you a letter I

21 received from the bank.

22 (Defendant's Exhibit A, a letter from U.S.

23 Bank dated May 4, marked for identification.)

24 Q. Would you take a look at that letter? That

25 letter says that on January 4th, there was an ATM withdrawal


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1 of $10,000, correct?

2 A. Yes.

3 Q. And it says it came out of an account of

4 Russell and Elizabeth Faria and went into an account under

5 the name of Mariah and Elizabeth Faria -- Mariah Day and

6 Elizabeth Faria; is that correct?

7 A. Yes.

8 Q. It also says, enclosed is a surveillance photo

9 of the ATM transaction, correct?

10 A. Yes.

11 Q. I'm going to show you what I've marked as

12 Defendant's Exhibit B. What does that appear to be a

13 photograph of?

14 A. The bank teller and myself.

15 Q. Are you in that photograph?

16 A. I am.

17 Q. What's the date of that?

18 A. 1/4/2012.

19 Q. The day Russell was arrested; is that correct?

20 A. Yep.

21 Q. And that's the day -- and that's showing a

22 picture of you, the transaction moving $10,000 from Russell

23 and Elizabeth's account to an account with your name on it,

24 correct?

25 A. Correct.
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1 Q. And did Russell give you permission to do that?

2 A. Nope.

3 Q. What did you do with that money?

4 A. It's put in a savings account.

5 MR. SCHWARTZ: Your Honor, at this time I would

6 offer admission of demonstrative Defendant's Exhibit A and B.

7 THE COURT: State?

8 MS. ASKEY: I would object, Judge, on the

9 grounds that proper foundation hasn't been laid for the bank

10 records, Number 1.

11 There's no Notice of Intent to use under

12 business rule exception, Number 2, and Number 3, if he wants

13 to admit the photo, she's identified the photo, but other

14 than the fact that the date is -- just because it says the

15 date, doesn't give her any reason to believe, other than what

16 it says, doesn't give her any reason to believe that that

17 photograph was taken on that day.

18 MR. SCHWARTZ: Your Honor, she's stated it was

19 accurate. There doesn't need to be a business record

20 exception to that.

21 MS. ASKEY: She stated the photograph was

22 accurate. That that was her, is what she said. She said

23 that was her, but any person can put any picture on any piece

24 of paper and I can date it whatever I want and give to it her

25 and say, look, this says December 30th. What were you doing
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1 on December 30th? Were you here? Well, I guess I was.

2 That's what she said.

3 THE COURT: I guess the Court would inquire to

4 defendant what is the purpose of this point of admitting A

5 and B? Is it for your Offer of Proof or are you intending it

6 to be for some other purpose?

7 MR. SCHWARTZ: It's for my Offer of Proof. She

8 has identified that the letter is correct, and she's

9 identified that's her in the photograph on that day.

10 MS. ASKEY: She didn't identify the letter

11 was correct. She's not even a recipient of the letter.

12 The letter went to Mr. Swanson and it's from a lawyer,

13 Johnson.

14 She has no way to identify the letter, other

15 than to say, yes, this is a letter I'm reading that you just

16 put in front of me.

17 MR. SCHWARTZ: Judge, I inquired that the

18 information contained in the letter was correct.

19 THE COURT: All right. The Court will admit

20 Defendant's Exhibit B but will not admit Defendant's Exhibit

21 A at this point, and that admission is for the purpose of the

22 Offer of Proof of defendant only.

23 Is there anything further?

24 MR. SCHWARTZ: No.

25 MS. ASKEY: Just briefly. Redirect, Judge.


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1 RECROSS-EXAMINATION

2 BY MS. ASKEY:

3 Q. Mariah, a couple things. I apologize. I'm the

4 one that suggested it was a teller. In this case, it would

5 be an automatic teller; is that right?

6 A. I don't know.

7 Q. I suggested to you that you went in and saw an

8 actual person.

9 A. I did.

10 Q. That was my -- you did that, as well?

11 A. Yes.

12 Q. Okay.

13 A. That's the lady next to me in the picture.

14 Q. The lady next to you in the photograph was the

15 teller you worked with?

16 A. Yes.

17 Q. Thank you. Additionally, the account number,

18 the card that you used -- did you steal that card?

19 A. No.

20 Q. Did you legally have possession of that card?

21 A. I thought it was my card, but it had my Mom's

22 name on it.

23 Q. And your Mom had given you a PIN number?

24 A. It was my PIN number.

25 Q. Because it was linked to your account as well?


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1 A. Yes.

2 Q. And when you spoke with the teller, she then

3 went and assisted you with the transaction?

4 A. Yes.

5 Q. Finally, Mr. Schwartz asked you about life

6 insurance money. Do you have any firsthand knowledge that

7 Pam Hupp has any money? Have you seen any money in her

8 possession or has she directly talked to you about having

9 money received from your mother?

10 A. No.

11 Q. Have you any firsthand knowledge about any

12 conversations that your Mom had with Pam? Meaning, were you

13 present and do you know about any conversations your mother

14 may have had with Pam regarding the distribution of any

15 monies after her death?

16 A. No.

17 MS. ASKEY: I don't have anything further,

18 Judge.

19 THE COURT: Mr. Schwartz?

20 MR. SCHWARTZ: No, Your Honor.

21 THE COURT: Thank you. May this witness step

22 down?

23 MS. ASKEY: Yes.

24 THE COURT: Thank you, ma'am. You are free to

25 go or stay as you choose.


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1 Okay. Anything further before we break for

2 lunch?

3 MS. ASKEY: No.

4 MR. SCHWARTZ: No, Your Honor, other than I

5 want to submit that Defendant's Exhibit A is not being

6 entered but Defendant's Exhibit B is. I just want to make

7 sure they are contained within the record.

8 THE COURT: Perfect.

9 The Court is at recess until 1 o'clock.

10 ll rise.

11 (Recess.)

12 THE COURT: Do we have anything we need to take

13 care of before the jury is brought back in?

14 MS. ASKEY: No.

15 MR. SCHWARTZ: Judge, I anticipate that Pam

16 Welker and Mary Rodgers are going to testify this afternoon.

17 I want to raise this issue before they come in, outside the

18 hearing of the jury.

19 Just that what I want to ask them is not -- I

20 want to ask them what their initial reaction was and I can

21 lead them as far as what they said to the police, but I won't

22 get into what it's based on or what was said other than their

23 initial reaction that they thought it was suicide.

24 That they believed, when they heard that their

25 sister was dead, that they thought it was suicide. I won't


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1 ask them anything else.

2 THE COURT: I don't see why it's going to

3 matter. I can't imagine anybody, after this is over, who is

4 going to think it was that, anyway. So I don't know why you

5 would ask that.

6 MR. SCHWARTZ: That's not the point. The State

7 brought up in their opening statement that Mr. Faria thought

8 it was suicide.

9 THE COURT: Okay.

10 MR. SCHWARTZ: That's the only basis for it.

11 MR. HICKS: And, again, I think Mr. Faria, if

12 he chooses to, can get on the stand and explain why he

13 thought it was suicide but, again, to get the opinions of two

14 witnesses who weren't at the scene and didn't see it?

15 THE COURT: The difference is he was standing

16 there and saw what they didn't see. They didn't see it.

17 MS. ASKEY: Right.

18 MR. SCHWARTZ: I understand, but I think--

19 MS. ASKEY: I don't want to show them that

20 photo because they already asked if they could leave the room

21 when any photos like that come up.

22 MR. SCHWARTZ: And that's fine. I just think

23 it's fair that the State has made that an issue, and I'm not

24 going to get into her suicide attempt. I'm not going to get

25 into the note. All I'm going to say is is this what you
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1 thought?

2 MS. ASKEY: It invades the province of the

3 jury. They're going to see the same photos that he saw when

4 he walked in.

5 MR. SWANSON: It's not saying that this event

6 was a suicide, but when the officers informed them that Betsy

7 Faria had died, that they thought she had committed suicide.

8 THE COURT: But how is that relevant to

9 anything?

10 MR. SCHWARTZ: But the State is arguing that

11 because he thought, he said it was suicide.

12 THE COURT: He saw it.

13 MS. ASKEY: He saw it.

14 MR. SCHWARTZ: It was his first reaction and

15 that based upon her past, the past experiences with her. Her

16 own sisters and her daughter all thought she's suicidal. She

17 can argue around what he saw her. They didn't.

18 THE COURT: I'm lost as to what the question

19 is.

20 MR. SCHWARTZ: The question is I can either

21 lead them or ask them. My question would be, I won't get

22 into the any of the stuff that was objected to, the things

23 that had happened in the past.

24 All I would ask is when you -- and I would lead

25 them. When you first were told that Betsy had died, your
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1 first reaction was she committed suicide? I would leave it

2 at that.

3 MR. HICKS: And if we have witnesses that their

4 first reaction was she was murdered, we wouldn't be able to

5 put that out there. That's the point. This is opinion

6 evidence that is not relevant.

7 THE COURT: It's not relevant so I don't know

8 what you want me to say. I guess he can do it and you'll

9 have to object and we'll go from there.

10 MR. HICKS: That's the point. I think if he

11 brings up that question --

12 MR. SCHWARTZ: I'll bring it up beforehand to

13 be --

14 MR. HICKS: Right. I understand that. If he

15 asks, what was your first reaction? Objection; relevance.

16 Then, I mean, but if he says --

17 THE COURT: It doesn't matter if his reaction

18 is that a Smurf came and did it. It's still irrelevant. It

19 doesn't matter what --

20 MS. ASKEY: So he shouldn't be able to ask

21 those questions --

22 MR. HICKS: Right.

23 MS. ASKEY: -- because the jury is going to

24 wonder what we're --

25 MR. SCHWARTZ: What I originally wanted to base


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1 it on, the prior knowledge of her sister and her disease and

2 her prior actions.

3 THE COURT: I don't think under the

4 circumstances that anybody is alleging she did anything to

5 herself. Her prior wishes or thoughts or even if she was

6 going to, it didn't happen.

7 MR. SCHWARTZ: That's why I bring it up.

8 MR. HICKS: Okay. Well, I guess I appreciate

9 you bringing it up. If you are going to do it, we'll object.

10 I just don't see the relevance.

11 MS. ASKEY: Our point, Judge, is he's going to

12 ask the question --

13 MR. SCHWARTZ: No, I'm not going to ask the

14 question if she's precluding me from asking it. I will come

15 up at that point unless I can just put it in now that I

16 anticipate --

17 THE COURT: Yes. Let's just put it in now.

18 MR. SCHWARTZ: All right. I anticipate asking

19 the question to Ms. Welker and Ms. Rodgers, Betsy Faria's

20 sisters, "Isn't it true that when the police first approached

21 you, your original belief was that your sister, Betsy,

22 committed suicide?" That's what's being objected to.

23 MR. SWANSON: And that their anticipated

24 response based upon the police report.

25 MS. ASKEY: We can call them up here to the


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1 bench, I suppose.

2 MR. SCHWARTZ: If they will stipulate.

3 MR. HICKS: We'll stipulate that if they were

4 asked that question, that their response would be --

5 MS. ASKEY: I don't know what it would be. I

6 don't remember what it said.

7 MR. SCHWARTZ: Read the Police Report.

8 MR. SWANSON: The Police Report indicates

9 that's what they said.

10 MR. HICKS: I just read it. That's true.

11 That's what the Police Report said. So we would stipulate,

12 without having to make any further Offer of Proof by the live

13 witnesses that that would be their response.

14 MR. SCHWARTZ: Thanks.

15 THE COURT: Do you want to put your objection

16 on the record?

17 MR. HICKS: I mean, we are objecting to it

18 because we do not believe these witnesses' opinion about what

19 caused her death, that it was suicide, is even relevant in

20 this case.

21 THE COURT: And the Court has taken that matter

22 under advisement at this time and has sustained the objection

23 as to relevance.

24 MS. ASKEY: Okay.

25 MR. SWANSON: Thank you, Your Honor.


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1 THE COURT: Thank you.

2 (End of bench discussion.)

3 THE COURT: Are you ready to bring the jury in?

4 THE BAILIFF: Yes.

5 (The jury entered the Courtroom.)

6 THE COURT: Thank you. You may be seated.

7 I'm going to take roll of the jurors present.

8 If you would please raise your hand when I call your number.

9 Juror Number 2, 3, 4, 11, 12, 15, 27, 29, 35,

10 38, 39, 44, 51, 58 and 61. The record will reflect that all

11 jurors are present.

12 Is the State ready to proceed with its next

13 witness?

14 MS. ASKEY: Yes, Your Honor.

15 THE COURT: Thank you. You may proceed.

16 MS. ASKEY: The State would call Leah Day.

17 THE COURT: Leah Day, if you would please come

18 forward and be sworn.

19 LEAH ELIZABETH DAY,

20 a witness, having been duly sworn by the Circuit Clerk to

21 tell the truth, the whole truth and nothing but the truth, so

22 help you God, under the pain and penalty of the Perjury Laws

23 of Missouri, testifies as follows:

24 MS. ASKEY: May it please the Court?

25 THE COURT: Yes, please.


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1 DIRECT EXAMINATION

2 BY MS. ASKEY:

3 Q. Leah, please introduce yourself to the jury.

4 A. I'm Leah Day.

5 Q. How do you know Russ Faria?

6 A. My stepdad.

7 Q. And so how do you know Betsy Faria?

8 A. She was my Mom.

9 Q. She's the victim in this case, correct?

10 A. Yes.

11 Q. Do you see Russ Faria in the Courtroom today?

12 A. Yes.

13 Q. Can you please identify him by where he's

14 sitting and what he's wearing?

15 A. In the gray suit next to --

16 Q. Point in the direction?

17 A. Next to my left.

18 Q. Okay.

19 MS. ASKEY: Let the record reflect the witness

20 has identified the defendant.

21 THE COURT: The record will so reflect.

22 MR. SCHWARTZ: Could you speak up?

23 MR. SWANSON: Leah Askey, can you speak up?

24 MS. ASKEY: They can hear you, Leah, not me,

25 Leah, so I'll speak up.


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1 Q. (By Ms. Askey) Let's see. How old were you

2 when your Mom and Russ were married?

3 A. Seven.

4 Q. And do you remember where you lived?

5 A. Pin Oak.

6 Q. Pin Oak?

7 A. Pin Oak.

8 Q. And what County was that?

9 A. O'Fallon.

10 Q. O'Fallon City. St. Charles County?

11 A. Yes.

12 Q. You heard your sister testify. Strike that.

13 Before we get to that part, tell the jury a

14 little about you. What do you do?

15 A. I work.

16 Q. Where do you work?

17 A. At a call transfer center for Direct One.

18 Q. You graduated from high school?

19 A. Yes.

20 Q. Where did you graduate from?

21 A. Timberland.

22 Q. Did you start some trade school after that?

23 A. Hair school, yeah. Cosmetology school.

24 Q. Have you finished that?

25 A. Yes.
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1 Q. What year did you graduate?

2 A. High school or college?

3 Q. High school?

4 A. 2009.

5 Q. And what do you like to do for fun?

6 A. Snowboard.

7 Q. It's not the most optimal conditions for

8 snowboarding right now?

9 A. Yeah.

10 Q. Maybe soon. You heard your sister testify.

11 You were in the Courtroom?

12 A. Uh-huh.

13 Q. And I asked her about the family dynamics in

14 your house. She described -- I know when you and I talked

15 before, I asked you about what, Leave It To Beaver. She had

16 no idea who that was, by the way, so that showed my age. So

17 you told me it wasn't the Brady Bunch; is that right?

18 A. Right.

19 Q. What did you mean by that?

20 A. Like it wasn't like a normal family, I guess.

21 Like it was just like a lot of bickering and fighting.

22 Q. And your sister described bickering and

23 fighting as curse words and things like that being used

24 towards your mother and sometimes towards you; --

25 A. Yes.
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1 Q. -- is that correct?

2 A. Correct.

3 Q. Did that, in fact, happen?

4 A. Yes.

5 Q. What types of words would be used, if you can

6 recall?

7 A. The "C" word.

8 Q. The "C" word. And would that word be used

9 directed at you?

10 A. Yes.

11 Q. Would it be directed at your mother as well?

12 A. I don't know. I don't know.

13 Q. Your sister talked about Russ's short fuse.

14 Did you ever have an opportunity to witness that?

15 A. Yeah.

16 Q. Are you okay? She used all the Kleenexes.

17 I'll go get you some. Have you got some? Do you want some

18 water? Do you want me to get you some water?

19 Are you okay? Short. I promise. We'll get

20 you on and off here, okay?

21 THE COURT: Here you go.

22 MS. ASKEY: Thanks.

23 Q. (By Ms. Askey) Tell the jury about the

24 situation with regard to your dog.

25 A. Like, I don't want to do this. I really don't.


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1 I don't want to do this.

2 MR. SCHWARTZ: Your Honor, may we approach?

3 THE COURT: Yes.

4 (Discussion at the bench.)

5 MR. SWANSON: Your Honor, the second Motion in

6 Limine with reference to prior bad acts, which covered prior

7 bad acts, specifically addressed these bad acts, bad actions

8 by my client towards the dog. It's my understanding they

9 stipulated that would be admissible.

10 THE COURT: State?

11 MR. HICKS: I believe that -- I mean, I don't

12 disagree with that. It really should be limited towards bad

13 actions, interactions between the defendant and the victim in

14 this case.

15 The difficulty is that a lot of times this

16 happened in their presence and it was directed at them as

17 well as to Mom, and so is there is an overlap there. I

18 believe Leah is trying to elicit that from her. She's

19 talking about what she recalls being called herself but it

20 was in the context of being there present with her mother.

21 So if there's a, you know, instruction that you

22 are requesting that the jury be guided --

23 THE COURT: I can't hear anything you are

24 saying.

25 MR. SWANSON: I also raise the issue at this


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1 point that clearly, based on Ms. Askey's line of questioning,

2 this has been a topic of conversation between the two of them

3 that have never been disclosed to the defense. There's a

4 Brady violation there.

5 She knows she needs to disclose these

6 conversations and has not done so. She knows of an incident

7 that's pertinent to the case. She needed to tell us about

8 it, and she has not done so.

9 MR. HICKS: Okay. Again, Ms. Askey needs to

10 be up here to talk about it because I don't know what

11 conversations she may have had with -- so I mean, it's

12 difficult for me to address that.

13 Two, it's my understanding that any time she

14 has learned information about what, in prepping for this

15 trial, when she learned any kind of statements that were made

16 by the defendant, we mainly turned those over because we have

17 to. We are under the obligation to do that.

18 If it's information that is inculpatory, there

19 is no Brady violation. So, I mean, if what you are saying --

20 MR. SWANSON: It's Rule 25.

21 MR. HICKS: No. You are saying a Brady

22 violation here. What a Brady applies to, if we know there's

23 exculpatory evidence that needs to be disclosed, we're under

24 an obligation to disclose it.

25 We are not under the same obligation to


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1 disclose all inculpatory evidence because, unless it's been

2 documented and put in a report, then obviously, we've got to

3 turn that over. So, I mean, unless it involves a statement

4 by the defendant which is what she was testifying about,

5 which is the statements that the defendant made.

6 THE COURT: Do you want to repeat that now?

7 She's here.

8 MS. ASKEY: I'm sorry. I was trying to hear.

9 MR. SWANSON: Based on your line of

10 questioning, whatever you were about to ask her about, you

11 have clearly discussed with the witness previously. There's

12 never been a report of any kind detailing this with Russ,

13 Leah and the dog.

14 Rule 25 and Brady both say that that

15 information should have been forthcoming and hasn't. Also,

16 the Motion in Limine covered prior bad acts involving the dog

17 and the State stipulated that those would be inadmissible.

18 THE COURT: How could you have not talked about

19 it but you had a Motion in Limine about this? Which one is

20 it?

21 MR. SWANSON: There was another witness that

22 made some comments about a dog, covered that.

23 THE COURT: Okay.

24 MR. SWANSON: But either way, I mean, this is

25 new information that's only coming out that there's clearly


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1 been some sort of disclosure to the State that's never

2 reached the defendant.

3 THE COURT: And I don't know. I wasn't there.

4 MR. HICKS: I'm confused because I feel like

5 Mr. Swanson is arguing apples and oranges. Again, Brady only

6 applies --

7 MR. SWANSON: I'm sorry. I should have said

8 Brady and Rule 25.

9 MR. HICKS: Under Rule 25, the State is

10 obligated to turn over all statements by witnesses that have

11 been memorialized in a report. This does not always include

12 when you prepare for trial and you get information. There is

13 nothing under Rule 25 that says, oh, we have got to tell you

14 this new, additional information that we just got.

15 MR. SCHWARTZ: Ferguson would say different.

16 MR. HICKS: Ferguson would say if it was

17 exculpatory, meaning that if she had told Ms. Askey something

18 about, look, I lied and I never, you know, that they could

19 use to impeach her with but that's not what we're talking

20 about here. That's why I'm saying they are arguing apples

21 and oranges.

22 I guess my first question was what specifically

23 is it that you are claiming is Brady information that wasn't

24 disclosed?

25 MR. SCHWARTZ: I don't know what she's going to


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1 say.

2 MR. HICKS: Then you can't --

3 MS. ASKEY: She's not saying anything.

4 MR. HICKS: Then you can't allege some sort of

5 Brady violation if you don't know what she's even going to

6 say.

7 MR. SCHWARTZ: She said, tell us about the

8 incident with the dog that we talked about. We don't know

9 what that is.

10 THE COURT: I guess I'm not getting the connect

11 of anything any person whom comes in here that they were

12 there firsthand would have said.

13 To me, prior bad acts means some other random

14 stuff that he was under.

15 MR. SWANSON: Which does sound like what this

16 is going to be. They are talking about an incident with the

17 dog at some point at some time in the past.

18 We don't know where this is going, Your Honor.

19 It's new information to us, but it sounds like it's some past

20 incident of bad treatment of a dog.

21 MS. ASKEY: I'd say it's more inculpatory than

22 anything.

23 MR. SWANSON: We don't follow what it is.

24 MR. SCHWARTZ: It hasn't been disclosed to us.

25 MR. HICKS: This is the other thing. The


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1 witness was deposed.

2 MR. SCHWARTZ: How are we going to ask about

3 things we don't know about?

4 MR. HICKS: Just like when we do when we

5 prepare for trial. Tell me about the dog. Tell me about --

6 because for all you know, they were getting ready to talk

7 about Russ's ability to handle this dog. The dog was

8 aggressive, but not around Russ.

9 That would become highly relevant based upon

10 the fact that the dog was either outside or inside when the

11 murder happened.

12 So I mean, just because you didn't ask the

13 question at the deposition, doesn't mean -- I mean, I don't

14 get this. You have deposed this witness.

15 MR. SCHWARTZ: I didn't ask her if she has ever

16 been an astronaut or if she's ever gotten in a fight or

17 anything like that. We had no information to base that on.

18 Without the information, we can't ask the question.

19 MS. ASKEY: You are suggesting is that any

20 conversation that I have, that I have as the attorney, not as

21 an investigator, not as a police officer --

22 MR. SWANSON: You are a representative of the

23 State. You're not just an attorney.

24 MR. SCHWARTZ: You have to disclose that.

25 MS. ASKEY: I understand. It's not that I have


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1 a conversation on the phone and then I write it all down and

2 create some report to submit to you.

3 MR. SWANSON: You are under an obligation to do

4 that.

5 MR. HICKS: No.

6 MS. ASKEY: No, I don't. No, I don't.

7 MR. HICKS: She only has an obligation to turn

8 over to you Brady material.

9 MR. SWANSON: That's Rule 25.

10 MR. HICKS: Twenty-five applies to information

11 that's been generated and put into a report. She's under no

12 obligation to generate any kind of report and disclose it to

13 you.

14 Law enforcement, they don't even have to do a

15 report. They do, and it's helpful. That 25.01 applies only

16 to when the statements that have been memorialized and

17 documented in some way, not just -- that's why they have open

18 depositions. Discovery.

19 THE COURT: The Court is going to sustain as to

20 the dog issue for right now. I'm going to look up Rule 25.

21 Let's just move on.

22 MR. SWANSON: Thank you.

23 (End of bench discussion.)

24 Q. (By Ms. Askey) Leah, you were in the Courtroom

25 when Mariah testified as to the events leading up to from


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1 Christmas Eve up until your Mom's death; is that true?

2 A. Yes.

3 Q. If I were to ask you the same questions that I

4 asked her, would your answers be different in any way or

5 would they be the same?

6 A. The same.

7 Q. So the events that she described were an

8 accurate reflection of the events that occurred from the 24th

9 through the 27th, --

10 A. Yeah.

11 Q. -- to the best of your memory?

12 A. Yeah.

13 Q. Did you ever live in the house in Troy?

14 A. No.

15 Q. Were you already out of high school when they

16 moved to the house in Troy?

17 A. Yeah.

18 Q. Okay. Now Leah talked about Christmas morning

19 and some -- Leah -- Mariah did. You didn't. Christmas

20 morning and some things she described as "different". Do you

21 remember those things, specifically?

22 A. Just the money and the picture, like she said.

23 Q. And would you agree that those things were

24 different?

25 A. Yeah.
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1 Q. Now when your Mom and Russ lived in your

2 grandfather's house, they didn't pay rent at all, did they?

3 Do you know?

4 A. I don't know.

5 Q. Okay. Do you remember what your Mom received

6 as a gift from the defendant that year for Christmas?

7 A. A jewelry box.

8 Q. And I'm going to show you what's been marked as

9 State's Exhibit 4. Nope, sorry. It's not been marked, but

10 will be.

11 (State's Exhibit Number 4 marked for

12 identification.)

13 I'm going to show you what's been marked as

14 State's Exhibit 4. Do you recognize that?

15 A. Yes.

16 Q. And what is it?

17 A. The jewelry box that he got her for Christmas.

18 Q. Okay. And is there anything different about

19 the jewelry box in this picture compared to the jewelry box

20 you saw her open on Christmas morning?

21 A. The leg is broken off and there's chips in it.

22 Q. The leg is broken off of this jewelry box?

23 A. Yes.

24 Q. And there are chips at the top, it appears to

25 be?
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289

1 A. Uh-huh.

2 Q. That's not the way she received it that

3 morning?

4 A. Right.

5 MS. ASKEY: I'd ask for State's Exhibit 4 to be

6 admitted.

7 THE COURT: Any objection?

8 MR. SCHWARTZ: Relevance.

9 THE COURT: State?

10 MS. ASKEY: Relevant to show that the jewelry

11 box was located in the bedroom. Relevant to show that

12 whomever broke the jewelry box was in the bedroom and

13 obviously familiar with the house.

14 THE COURT: Mr. Schwartz?

15 MR. SCHWARTZ: Again, same objection. There's

16 no relevance to what this shows.

17 MS. ASKEY: It shows a struggle ensued. You

18 typically don't struggle when you are committing suicide.

19 MR. SCHWARTZ: Your Honor, I would ask that be

20 stricken from the record and I would ask for a mistrial.

21 THE COURT: The last statement will be stricken

22 from the record. At this time, the Exhibit will not be

23 admitted into evidence.

24 Q. (By Ms. Askey) Leah, on the 27th, did you call

25 your Mom on the telephone that day?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
290

1 A. Yes.

2 Q. Do you remember when you called her?

3 A. I don't know the exact time, but around

4 seven-ish.

5 Q. Seven in the evening?

6 A. Uh-huh.

7 Q. Did you have a conversation with her?

8 A. Yes.

9 Q. And what was that conversation about?

10 A. I was on my way to U.S. Cellular and I told her

11 to answer her phone whenever I called her back because I

12 needed her approval because I'm under her plan. That was the

13 conversation.

14 Q. Okay. And did you try to call her back when

15 you got to U.S. Cellular?

16 A. Yes.

17 Q. Did she answer?

18 A. No.

19 Q. How many times did you try to call her, if you

20 remember?

21 A. Probably like three or four times.

22 Q. And did she ever answer?

23 A. No.

24 Q. After the conversation that you had with her,

25 around 7 o'clock, did you speak with your Mom again?


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291

1 A. No.

2 Q. Do you remember, Leah, what your Mom's phone

3 number was at that time?

4 A. (314) 565-9251.

5 Q. And do you remember what your phone number was

6 at that time?

7 A. (636) 322-8206.

8 Q. Since your mother's death, have you had any

9 opportunity to see Russ?

10 A. No. Well, no.

11 Q. Was there -- that's not a trick question.

12 A. Wait, what do you mean?

13 Q. Have you been in his company at all since your

14 Mom passed away?

15 A. Once, for the funeral.

16 Q. Okay. And when you say "funeral", are you

17 talking about memorial service?

18 A. (Nodding affirmatively.)

19 Q. There wasn't actually a burial, was there?

20 A. Huh-uh. No.

21 Q. And how many services?

22 A. Two.

23 Q. At two different churches?

24 A. Yeah.

25 Q. Hang on.
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1 MS. ASKEY: I don't have anything further,

2 Judge.

3 THE COURT: Mr. Schwartz?

4 MR. SCHWARTZ: Thank you, Your Honor.

5 CROSS-EXAMINATION

6 BY MR. SCHWARTZ:

7 Q. The memorial service, your parents used to be

8 Catholic, correct, but switched and started going to Morning

9 Star Methodist?

10 A. Right.

11 Q. Your mother's wishes were to be cremated; is

12 that correct?

13 MS. ASKEY: Objection.

14 A. I don't know.

15 Q. (By Mr. Schwartz) You said it wasn't, I think

16 your term was the "Brady Bunch". You never lived in that

17 house in Troy?

18 A. Right.

19 Q. So you weren't there on a daily basis?

20 A. Correct.

21 Q. But you did hear your sister testify and you

22 said you wouldn't testify any differently. You heard your

23 sister testify that, after the diagnosis, your Mom and Dad,

24 or your Mom and your stepdad, got along much better, would

25 you agree?
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293

1 MS. ASKEY: I'm going to object, Judge. That

2 mischaracterizes her testimony. My question to her was, you

3 heard your sister's testimony with regard to the events that

4 happened from the 24th to the 27th. If I asked you the same

5 questions, would your answer be any different?

6 MR. SCHWARTZ: I'll withdraw the question.

7 THE COURT: Thank you.

8 Q. (By Mr. Schwartz) Would you agree with that

9 statement that, after the diagnosis in 2009, Russ and Betsy

10 got along a lot better?

11 A. I don't know.

12 Q. You weren't even around much, were you?

13 A. Correct.

14 Q. You were living with your boyfriend?

15 A. Correct.

16 Q. You were living with your Grandma at one

17 point?

18 A. Correct.

19 Q. You had some issues?

20 A. Correct.

21 Q. As a result of those issues, you got your car

22 taken away that you and your Mom had signed for?

23 A. Yeah.

24 Q. All right. Your boyfriend didn't get along

25 well with your parents, did he?


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294

1 MS. ASKEY: I'm going to object as to

2 relevance.

3 THE COURT: Mr. Schwartz?

4 MR. SCHWARTZ: Your Honor, I'll withdraw the

5 question.

6 Q. (By Mr. Schwartz) You and your boyfriend

7 didn't spend any time with your parents, did you?

8 A. Correct.

9 Q. Matter of fact, if you were going over there

10 without them there, you weren't allowed to go over there

11 without them there, were you?

12 A. Without who? What?

13 Q. Without your parents being home, I'm

14 sorry.

15 A. Right.

16 Q. So on the night of December 27th, you called

17 your Mom. Was that before you went to U.S. Cellular?

18 A. Yes.

19 Q. Who were you with? Your Aunt Julie?

20 A. Yes.

21 Q. You were at her house?

22 A. Yes.

23 Q. So you called your Mom from there?

24 A. Yes.

25 Q. And you said you told her exactly what you are
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
295

1 doing, you are going to U.S. Cellular and you need her to

2 keep the phone on, correct?

3 A. Yes.

4 Q. And that was important?

5 A. Uh-huh.

6 Q. Why?

7 A. Because I was on her plan and I needed her

8 permission.

9 Q. All right. She acknowledged that she would

10 keep her phone on, correct?

11 A. Correct.

12 Q. And then you called her again and the cell

13 phone records indicate the number is 565-9251, correct?

14 That was your mother's cell phone number?

15 A. Correct.

16 Q. You called her at 7:21 and oh-nine seconds. So

17 7:21; is that correct?

18 A. Okay. I guess.

19 Q. There was no answer; is that correct?

20 A. Correct.

21 Q. You expected her to answer?

22 A. Correct.

23 Q. You called her again five minutes later at 7:26

24 and 11 seconds and there was no answer?

25 A. Right.
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1 Q. You expected her to answer?

2 A. Right.

3 Q. You really needed her to answer and you had

4 told her to answer her phone, correct?

5 A. Right.

6 Q. You called her again at 7:30 and oh-six

7 seconds, correct?

8 A. Yes.

9 Q. And there was no answer?

10 A. I'm confused. I'm not going to lie. I'm

11 confused. I'm lost. I am lost. I don't know.

12 Q. Let's do it simpler. You went to U.S. Cellular

13 and called your mother and you told your mother -- I'm trying

14 to unconfuse you.

15 You told your mother at approximately

16 7 o'clock where you were going and why you needed to talk to

17 her?

18 MS. ASKEY: Your Honor, I'm going to object.

19 It's been asked and answered.

20 A. I don't know the time. I don't know times.

21 It's confusing with the times. Time is confusing. I don't

22 know the exact times.

23 Q. All right. Fair enough.

24 A. Okay.

25 Q. Let me back it up for just a moment. Ms. Askey


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 asked you if you called your Mom and why, and I've asked you

2 the same thing. You were going to U.S. Cellular; is that

3 correct?

4 A. Correct.

5 Q. You called her about 7 o'clock before you left

6 your Aunt Julie's house?

7 A. Correct.

8 Q. Correct. And then after you got to U.S.

9 Cellular, you said you called your Mom, I think your

10 testimony was "three or four more times". Would you agree

11 with that?

12 A. Yeah.

13 Q. What you are saying is, once you got to U.S.

14 Cellular, I think you're saying, you don't know the exact

15 times you called her, do you?

16 A. I don't know the exact times, correct.

17 Q. Would you say -- but you know you called her,

18 well, the records seem to indicate three times, not four.

19 Would you agree with at least that you called her three

20 times?

21 A. Yes.

22 Q. Would you have any quarrel with the fact that

23 you called her at 7:21, 7:26, and 7:30 and there was no

24 answer?

25 A. Right.
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1 MR. SCHWARTZ: Nothing further.

2 THE COURT: State.

3 MS. ASKEY: Just briefly.

4 REDIRECT EXAMINATION

5 BY MS. ASKEY:

6 Q. Leah, how come you and Devan did not spend much

7 time with your Mom and Russ?

8 A. Because Russ didn't like him.

9 Q. Is it fair to say that you were still able to

10 see your Mom?

11 A. Yes.

12 Q. Your Mom would meet and give you money?

13 A. Yes.

14 Q. Did she tell you to keep that from Russ?

15 A. Yes.

16 MR. SCHWARTZ: Objection, Your Honor. Not

17 subject to Cross-examination. It's irrelevant.

18 MS. ASKEY: He brought up the fact of why they

19 weren't together and, further, that she didn't have any

20 relationship with her mother.

21 THE COURT: Overruled.

22 Q. (By Ms. Askey) So you did still maintain a

23 relationship with your Mom?

24 A. Yes.

25 Q. And your Mom still would meet you?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 A. Yes.

2 Q. And your Mom would still financially support

3 you?

4 A. Yes.

5 Q. Did Russ financially support you?

6 A. No.

7 Q. Were you ever able to go to Russ and ask for

8 money?

9 A. No.

10 Q. Even settlement money that was yours, were you

11 able to get that from him?

12 A. No.

13 MS. ASKEY: Nothing further.

14 THE COURT: Mr. Schwartz?

15 RECROSS-EXAMINATION

16 BY MR. SCHWARTZ:

17 Q. The settlement money you are talking about,

18 your mother had, correct, not Russ?

19 A. It was me and my Mom's name.

20 Q. In you and your Mom's name, not Russ's name,

21 right?

22 A. Right.

23 Q. So your Mom would give it to you, right?

24 A. Right.

25 Q. Right?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
300

1 A. Right.

2 Q. Right. And why was your car taken away?

3 MS. ASKEY: Objection. Relevance.

4 THE COURT: What's the relevance?

5 MR. SCHWARTZ: She got into the issue of Devan

6 and why they didn't get along with Russ.

7 MS. ASKEY: That goes beyond --

8 THE COURT: I think she's already testified

9 they didn't get along. Anything beyond that is not relevant.

10 Sustained.

11 MR. SCHWARTZ: Sustained? I can't get into

12 that issue?

13 THE COURT: Sustained.

14 MR. SCHWARTZ: Nothing further.

15 THE COURT: State?

16 MS. ASKEY: Nothing further, Judge.

17 THE COURT: Thank you. You may step down,

18 ma'am. You are free to go or stay as you see fit.

19 Next witness by the State?

20 MR. HICKS: Pam Welker.

21 PAMELA THERESA WELKER,

22 a witness, having been duly sworn by the Circuit Clerk to

23 tell the truth, the whole truth and nothing but the truth, so

24 help you God, under the pain and penalty of the Perjury Laws

25 of Missouri, testifies as follows:


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
301

1 DIRECT EXAMINATION

2 BY MR. HICKS:

3 Q. Ma'am, will you state your full name?

4 A. Pamela Theresa Welker.

5 Q. Ms. Welker, what was your relationship to Betsy

6 Faria?

7 A. It's my sister.

8 Q. Okay. Were you the older or younger sister?

9 A. Younger.

10 Q. Okay. How many siblings did Betsy have?

11 A. There's four of us total.

12 Q. And give me their ages and genders, if you

13 would?

14 A. Me, I'm 41. Betsy --

15 Q. I didn't mean for you to be that forthcoming,

16 but that's nice.

17 A. I just had a birthday. Sorry. Then Julie. So

18 I'm not doing ages now. Julie and then Mary. All girls.

19 Q. All girls. Okay. And where did Betsy fall in

20 that? I'm sorry.

21 A. Right above me.

22 Q. Right above you. So she was the third child?

23 A. Uh-huh.

24 Q. Where -- up until Betsy's death, where were you

25 living?
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1 A. I live in St. Louis County.

2 Q. And what town?

3 A. It's incorporated. It's close to Creve Coeur.

4 Q. Okay. How often would you see Betsy in the

5 months, and even years, leading up to December 27th of 2011?

6 A. Well, after she was diagnosed with cancer the

7 first time, I spent more time with her. So our kids are

8 different ages and, you know, we have different activities,

9 so we didn't see each other a whole lot until her cancer, but

10 I went with her to all of her oncology appointments and saw

11 her quite a bit more.

12 So you know, maybe once every other week and

13 we would talk on the phone once a week or so.

14 Q. Where was she living, at least initially, when

15 she found out about the cancer, the breast cancer?

16 A. I guess probably at the house I grew up in. My

17 parent's house.

18 Q. Down in Lake St. Louis?

19 A. Ruin Court Street.

20 Q. Betsy has two daughters, correct?

21 A. Uh-huh.

22 Q. We've met both of them. They were children

23 from a previous relationship, correct?

24 A. Uh-huh.

25 Q. Previous marriage?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
303

1 A. Relationship.

2 Q. Relationship. And when was it when you first

3 met Russ Faria?

4 A. I don't know exactly. I guess probably '90 --

5 oh, before my wedding. So '98. Right around -- I got

6 married in May of '98. I think right before that.

7 Q. Was it soon after Betsy had started seeing him?

8 A. I think so.

9 Q. Okay. And so all I'm trying to establish -- it

10 sounds like from 1998 all the way up to this event, you knew

11 Russ Faria?

12 A. Absolutely.

13 Q. How much time did you personally spend with

14 Betsy, your sister, and Russ Faria together?

15 A. So at every, every other month at a family

16 birthday party. All holidays. When, well, before we all had

17 kids and had more free time, we would do some, you know, just

18 go out together or things like that but.

19 Q. So was it typically a big family gathering?

20 A. Usually.

21 Q. Family gatherings?

22 A. Uh-huh. Yeah.

23 Q. All right. Even in these larger family

24 gatherings, did you notice anything about the defendant's,

25 Russ Faria's, interaction with your sister, Betsy?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
304

1 MR. SCHWARTZ: Objection, Your Honor.

2 Relevance based on the prior Motion in Limine.

3 MR. HICKS: We are talking about the exact

4 relationship that she observed her sister had with the

5 defendant over the years. I'm not aware of a prior Motion in

6 Limine that addressed that.

7 THE COURT: Mr. Schwartz?

8 MR. SCHWARTZ: That in and of itself is not the

9 issue.

10 THE COURT: You may continue.

11 A. I just thought Russ was condescending to Betsy

12 in their conversation.

13 Q. (By Mr. Hicks) You heard them interact

14 verbally?

15 A. Uh-huh.

16 Q. Many, many times?

17 A. Some.

18 Q. Okay. And so your impression always was that

19 he was condescending to her?

20 A. Yep.

21 Q. Did that bother you?

22 A. Yes.

23 Q. I want to take you to the evening of the 26th,

24 the day after Christmas of 2011?

25 A. Okay.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
305

1 Q. Where were you that afternoon?

2 A. So I hosted the Christmas party on the 26th at

3 my home.

4 Q. And you say "the Christmas party". I think the

5 jury has heard a lot of, about a lot of Christmas parties

6 going back to Christmas Eve. Let's go there.

7 A. Yes.

8 Q. Did you see Betsy on Christmas Eve?

9 A. No. Christmas Day and the day after.

10 Q. You saw her on Christmas Day. Where did you

11 see her on Christmas Day?

12 A. At my parent's previous house. So because my

13 parents are separated, we celebrated on Christmas Day with my

14 Mom and everybody and then I would do the same thing the next

15 day with my Dad and Judy. So two celebrations, just two

16 different homes. It was at my home on Monday, the 26th.

17 Q. So you hosted the one on the 26th?

18 A. Uh-huh.

19 Q. And did the defendant and Betsy come?

20 A. Uh-huh.

21 Q. And did Mariah and Leah come?

22 A. Not Mariah because she was ill.

23 Q. Okay. Were there a lot of family members?

24 A. Uh-huh.

25 Q. About how many hours were they there, do you


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
306

1 recall?

2 A. Probably three to four.

3 Q. And did something happen to kind of break it up

4 a little bit or to end it?

5 A. Well, probably needing to get to the hospital

6 because of Mariah was part of the push to break the party up

7 but --

8 Q. Because Mariah was sick?

9 A. Yeah.

10 Q. And had to go to the hospital. Did you go to

11 the hospital?

12 A. No.

13 Q. That's just kind of, you were left to clean up

14 everything and people were gone; is that correct?

15 A. Yes. Yep.

16 Q. All right. On the 26th, when your sister,

17 Betsy left your home, that was the last time you ever saw

18 her?

19 A. Yes.

20 Q. Do you remember even what her spirits were like

21 on the 26th?

22 A. I do. Yeah, she was really not herself. I was

23 worried about her when she left. She did not eat with us.

24 She would always kind of be in the action.

25 She was very tired. She sat in a chair most of


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
307

1 the time and, while we ate, she actually took my great nephew

2 to the bedroom and to my son's room and played with him

3 instead of being with us, which was just kind of

4 uncharacteristic; and when she left, my husband and I had a

5 conversation about, you know, just being worried about her.

6 She just seemed very tired and just not her cheery self.

7 Q. Physically tired?

8 A. Uh-huh.

9 Q. You knew, obviously, about the cancer

10 situation?

11 A. Uh-huh.

12 Q. Had you learned that it had recently, she had

13 been diagnosed that it was possibly terminal?

14 A. We were all together in Rhode Island when the

15 doctor called her back and then I was with her at the

16 appointment, as well as Russ, when she got the diagnosis that

17 she had probably three to five years to live.

18 Q. Three to five years was the diagnosis?

19 A. That's the average.

20 Q. Okay. One more thing I want to talk to you

21 about. Obviously, after this happened, I believe there was

22 an autopsy, but then after that, the family received Betsy's

23 body, correct?

24 A. Yeah. What is -- what are you --

25 Q. What I'm going to is, what kind of plans --


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 were you involved at all in the planning of the funeral

2 services for Betsy?

3 A. Yes.

4 Q. How did that -- first, how many services were

5 there?

6 A. Two.

7 Q. And why was that?

8 A. Because she had been Catholic but was

9 currently, the whole family going to another church so --

10 Q. Okay.

11 A. -- it made sense to have two, two services.

12 Q. So you had a Catholic --

13 A. Mass in the morning.

14 Q. All right. And what was this other, whose idea

15 was it to have this other service?

16 A. I guess Russ.

17 Q. Okay. And as part of the second service, I

18 mean, obviously, there's a decision that has to be made about

19 what's to be done with her body, whether it's to be embalmed

20 and buried or cremated; is that correct?

21 A. Yes.

22 Q. Who made that decision?

23 A. I believe Russ said it was his wish or his and

24 Betsy's wish to have a cremation.

25 Q. To have the body cremated?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 A. Uh-huh.

2 Q. Is that the first you had ever heard anything

3 about that?

4 A. Yes.

5 Q. All right. Did you talk to -- well, who was it

6 that you talked to in regards to this process of having her

7 body cremated?

8 A. The funeral director.

9 Q. Okay. And what was it -- since you had never

10 been involved in something like this, what was your belief or

11 understanding or maybe intention in regards to even being

12 present for that cremation?

13 A. It was kind of a whirlwind but, at first, we

14 were just like robots doing everything we needed to do to get

15 through the minutes of the day.

16 So we all thought we should be at the

17 cremation, like maybe that was normal and then the funeral

18 director was like, no, I've only seen one group once because

19 of religious beliefs be involved in that. We were like,

20 okay, okay. We didn't understand that. So we did not attend

21 based on the funeral director's recommendation.

22 Q. Okay. But who did attend it?

23 A. I think Russ. I don't know if anybody else

24 did.

25 MR. HICKS: I don't have any further questions.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 THE COURT: Mr. Schwartz?

2 Q. (By Mr. Hicks) I'm sorry. I apologize. I do

3 want to -- I meant to do this.

4 I want to show State's Exhibit 5. I apologize.

5 Do you recognize that photo?

6 A. Yes.

7 Q. Okay. When was that photo taken?

8 A. On Christmas Day.

9 Q. In whose home?

10 A. My Mom and Dad's previous home in the family

11 room.

12 Q. So you had talked about that was the party on

13 Christmas Day, that evening or afternoon?

14 A. Yes.

15 Q. Not the party at the 26th, correct?

16 A. Right.

17 Q. Who all is present in this picture? The entire

18 family?

19 A. Everybody that attended. It looks like maybe

20 Leah had left. Leah and Mariah must have left already. They

21 are not in the picture.

22 MR. HICKS: State would move to admit into

23 evidence State's Exhibit 5.

24 THE COURT: Any objection?

25 MR. SCHWARTZ: No objection.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 THE COURT: State's Exhibit 5 is admitted into

2 evidence.

3 MR. HICKS: I think it's up there on the

4 screen. I don't know how well you can see it. It's off.

5 Yes? Okay. Okay, I think it's up there.

6 Q. (By Mr. Hicks) Can you describe for the jury

7 what you are wearing and where you are located in that

8 picture?

9 A. I'm on the far right next to my husband and

10 I've got a scarf and a cranberry-colored shirt.

11 Q. That's your husband in the light blue shirt

12 next to you?

13 A. Uh-huh.

14 Q. Where is Betsy?

15 A. She's next to Russ on the other end.

16 Q. The individual with the hat?

17 A. Yes.

18 Q. Okay. And that was, again, Christmas

19 afternoon, Christmas evening?

20 A. Yes.

21 Q. All right.

22 MR. HICKS: Now I have no further questions.

23 Thank you.

24 THE COURT: Mr. Schwartz?

25 MR. SCHWARTZ: Thank you, Judge.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
312

1 CROSS-EXAMINATION

2 BY MR. SCHWARTZ:

3 Q. Ms. Welker, you said you were in Rhode Island.

4 Russ and Betsy were there together, correct?

5 A. Yes.

6 Q. And this was for a family wedding?

7 A. Yes.

8 Q. And that's when the call came from the doctor

9 regarding her second diagnosis?

10 A. Yes.

11 Q. And then shortly after that sometime in

12 November, you are aware that Russ and Betsy and your mother

13 and some other friends from the Morning Star Church went on a

14 cruise together; is that right?

15 A. Yes.

16 Q. And as far as you knew, that was initially

17 going to be considered the survival cruise?

18 A. Yes.

19 Q. And they decided to go on it anyway?

20 A. Uh-huh.

21 Q. And when they came home as you are obviously

22 aware, Betsy was going through chemo and it was during the

23 holidays and I think you testified that she seemed extremely

24 tired; is that correct?

25 A. Yes.
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1 Q. And you met with the police and talked with the

2 police about that, correct?

3 A. They came to my house Wednesday morning, yes.

4 Q. And you told them that she seemed, she was

5 feeling down from her cancer treatments? Yes?

6 A. Yes.

7 Q. That was your own perception or did she tell

8 you that?

9 A. No. It was my own perception.

10 MR. SCHWARTZ: Your Honor, may we approach?

11 THE COURT: Yes. Thank you.

12 (Discussion at the bench.)

13 MR. SCHWARTZ: Your Honor, this is what I was--

14 THE COURT: What we were talking about is

15 specifically to the defendant's state of mind; it's not

16 disclosure to anybody's state of mind.

17 MR. SWANSON: I understand it was all

18 witnesses' statements.

19 THE COURT: It's right here.

20 MR. SCHWARTZ: This is the point that I would

21 have gone into the questions that we spoke about at the

22 break.

23 THE COURT: I'm lost.

24 MR. SCHWARTZ: Your Honor, at the break, we

25 mentioned that we would be asking the witness whether or not


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 she told the officers that--

2 COURT REPORTER: I can't hear you.

3 MR. SCHWARTZ: I had intended to ask the

4 questions as to what she told the officer her initial

5 impression was that Betsy had committed suicide.

6 I won't do that in front of the jury. I

7 understand the Court has sustained the State's objection at

8 the beginning. I just wanted to make sure we had a record on

9 it.

10 MR. HICKS: And we would stipulate that we

11 expect her response to be initially they thought she might

12 have committed suicide based upon the statements she made to

13 the police.

14 THE COURT: I think we previously made that

15 record at that time. I think we've got it now.

16 MR. SCHWARTZ: I just want to make sure that

17 their objection to my asking was sustained; is that

18 correct?

19 THE COURT: Sustained.

20 MR. SCHWARTZ: Okay. Thank you.

21 (End of bench discussion.)

22 MR. SCHWARTZ: No further questions, Your

23 Honor.

24 THE COURT: State?

25 MS. ASKEY: Nothing further.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 THE COURT: Thank you, ma'am. You may step

2 down. Further evidence on behalf of the State?

3 MS. ASKEY: Yes, Your Honor. The State would

4 call Mary Rodgers to the stand.

5 THE COURT: Mary Rodgers, if you would please

6 come forward and be sworn by the Clerk.

7 MARY RODGERS,

8 a witness, having been duly sworn by the Circuit Clerk to

9 tell the truth, the whole truth and nothing but the truth, so

10 help you God, under the pain and penalty of the Perjury Laws

11 of Missouri, testifies as follows:

12 DIRECT EXAMINATION

13 BY MS. ASKEY:

14 Q. Mary, please introduce yourself to the jury.

15 A. I am Mary Rodgers, Betsy's oldest sister.

16 Q. And since your youngest sister was just on the

17 stand, you are the number one child?

18 A. Correct.

19 Q. Lucky you. How often did you visit with Betsy

20 before she passed away?

21 A. I saw Betsy very often because I lived with my

22 Mom and Dad and she was always over at the house.

23 Q. And so --

24 A. We lived closer.

25 Q. Okay. And so when she would stay with your


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
316

1 mother, you would be around?

2 A. Uh-huh. At Seasons Parkway, before she went --

3 my Mom moved in 2010, I think it was, to the apartment.

4 Q. Is that where Betsy stayed?

5 A. Uh-huh. She stayed at Seasons Parkway, too,

6 sometimes when my Mom was still there.

7 Q. How often would you say you were around Betsy

8 and Russ together?

9 A. All family functions.

10 Q. Anything -- did you do things just as couples

11 or did you do things just at family functions? Did you come

12 over to the house?

13 A. If I did anything with Betsy that wasn't a

14 family function, it would be with just Betsy.

15 Q. Okay. Did you ever have an opportunity to

16 witness Russ's demeanor towards Betsy?

17 A. Yes.

18 Q. And can you give me an example of what you

19 witnessed?

20 A. Same thing that Pam said. Demeaning. There

21 was a time several years ago when they lived in the mobile

22 home that his daughters and my stepdaughter were there. She

23 spent the night and they called me frantic because he was

24 saying, using some really --

25 MR. SCHWARTZ: Your Honor, I'm going to object


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 to thatunless she was present.

2 A. I was present. I became present. They called

3 me, frantic, so I went there. I left work on my lunch hour.

4 I took an early lunch and went there and he was using foul

5 language towards them.

6 Betsy and him had just had a marriage class,

7 and Betsy was just being so calm and I remember him laying on

8 the bed and kicking his feet like a baby, something I had

9 never seen anybody do. He pushed her and then that's when I

10 called the police and got the girls out of the mobile home.

11 Q. When you said you heard him use foul language,

12 what language was he using towards the -- strike that.

13 How old were the girls?

14 A. Eleven, twelve.

15 Q. What language did you hear him use directed at

16 them?

17 A. The "C" word. Cunt.

18 Q. And that was in front of your sister as well?

19 A. Uh-huh.

20 Q. Is there anything else he said after you called

21 the police?

22 A. When I was walking out of the house, I heard

23 him say something like, I'm going to cut her up into several

24 pieces and bury her or some kind of thing, grotesque, that I

25 can't even imagine.


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1 Q. Did you confront him about that?

2 A. No, I did not. Never spoke to him about it.

3 MS. ASKEY: I don't have anything further,

4 Judge.

5 THE COURT: Mr. Schwartz?

6 CROSS-EXAMINATION

7 BY MR. SCHWARTZ:

8 Q. You are talking about an argument in 2004,

9 would that be right?

10 A. Could be; 2004, 2005.

11 Q. And you said you spent a lot of time around

12 Russ and Betsy?

13 A. Uh-huh.

14 Q. After her diagnosis -- their marriage had

15 problems, correct?

16 A. Uh-huh.

17 Q. Yes?

18 A. Yes.

19 Q. Her diagnosis -- they were still together in

20 2009, 2011, correct?

21 A. Yes.

22 Q. After her diagnosis in 2009, they got along a

23 lot better, wouldn't you say?

24 A. For a spell.

25 MR. SCHWARTZ: Nothing further.


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319

1 THE COURT: State?

2 MS. ASKEY: Nothing further.

3 THE COURT: Thank you. You may step down.

4 THE WITNESS: Thank you.

5 THE COURT: Further evidence on behalf of the

6 State?

7 MR. HICKS: Yes. Luci Faria.

8 THE COURT: Luci Faria. Ms. Faria, if you

9 would please step forward and be sworn by the Clerk by

10 raising your right hand.

11 THE WITNESS: I don't see very well, sorry.

12 LUCI FARIA,

13 a witness, having been duly sworn by the Circuit Clerk to

14 tell the truth, the whole truth and nothing but the truth, so

15 help you God, under the pain and penalty of the Perjury Laws

16 of Missouri, testifies as follows:

17 DIRECT EXAMINATION

18 BY MR. HICKS:

19 Q. Good afternoon, Ms. Faria.

20 A. Good afternoon.

21 Q. Can you see me okay?

22 A. I can see you real well.

23 Q. All right. Would you state your full name for

24 the record?

25 A. Luci Faria.
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1 Q. And Ms. Faria, you are the mother of Russell

2 Faria, correct?

3 A. Yes.

4 Q. Because of that, you were also or you knew

5 Betsy Faria, correct?

6 A. Yes.

7 Q. Okay. I want to talk to you about the last

8 time that you saw Betsy Faria, okay?

9 A. Uh-huh.

10 Q. Do you remember when that was?

11 A. The 26th.

12 Q. The 26th of what month?

13 A. Of December, I'm sorry.

14 Q. Of December. Was that in 2011?

15 A. Yes.

16 Q. A couple of years ago now, almost?

17 A. Yes.

18 Q. Where did you see Betsy?

19 A. At my house.

20 Q. Why was she at your house on the 26th?

21 A. We were having Christmas together.

22 Q. You said "we were". Could you tell us who "we"

23 includes?

24 A. Well, myself, my husband, my kids, Russell.

25 Q. How many kids?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
321

1 A. Three. Russ, Josh and Rachel.

2 Q. Okay. Did they have spouses as well?

3 A. No.

4 Q. So Russ was the only one that had a spouse?

5 A. Yes. And so him, Russ with his family, Betsy

6 and her two girls, and my sister and her daughter, my sister,

7 Marie, and her daughter, Mary, were there at my house.

8 Q. So it sounds like you had a house full?

9 A. Kind of. It was a small gathering.

10 Q. Sounds like 10 to 12 people, at least?

11 A. Yeah.

12 Q. Okay. During that time, do you remember what

13 time of day that they actually came over?

14 A. In the morning.

15 Q. It was in the morning. And do you know, do you

16 recall, I know it was two years ago, but did they stay for

17 more than an hour?

18 A. Oh, they were there more than an hour. They

19 were there for a few hours and they had somewhere else they

20 had to be that evening.

21 Q. They had another party to go to that evening?

22 A. Yes.

23 Q. So they left your house to go to that other

24 party?

25 A. Yes.
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1 Q. Is that the last time you saw Betsy?

2 A. Yes, it is.

3 Q. Now I'm going to take you, then, to the next

4 day which would have been, I believe, a Tuesday because

5 Christmas was on a Sunday that year, do you recall that?

6 A. Yes, I do.

7 Q. So your party was Monday morning?

8 A. Which was the 26th.

9 Q. And now Tuesday was the 27th?

10 A. Was the 27th.

11 Q. What typically, I'm not saying every Tuesday,

12 but what did you have at least planned every Tuesday evening

13 to do?

14 A. I cooked. I always cook. I cook every day,

15 pretty much, anyway. Sometimes I have leftovers, but, yeah,

16 I usually cooked. I didn't do anything in particular.

17 Q. All right. But on Tuesday -- let's talk about

18 Tuesday dinner, who you cooked for. Typically, wouldn't you

19 have dinner with your son, Russ Faria?

20 A. I usually had him over on Tuesdays and he was

21 told if he's not going to make it to give a call.

22 Q. That sounds like a reasonable request from a

23 Mom to son. If you are not going to make it, give me a call.

24 A. Right. Exactly. That's the rule.

25 Q. Other than that, unless you heard from him --


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
323

1 A. I would just assume, unless I heard from him

2 otherwise. He usually made it by at least two or three

3 times, maybe.

4 Q. That's what I mean. Maybe not every week but,

5 typically, he would show up for dinner and then after dinner

6 on those Tuesdays, where would he go?

7 A. To some friends where they played games.

8 Q. Okay. So you knew that was his habit?

9 A. Yes.

10 Q. All right. Now on the 27th, that particular

11 Tuesday, the day after the Christmas party?

12 A. Yes.

13 Q. All right. Did the defendant, did your son

14 call you --

15 A. Yes, he did.

16 Q. -- and let you know he wasn't going to be able

17 to make it for dinner?

18 A. Yes, he did.

19 Q. All right. Did he tell you why he wasn't going

20 to be able to make it for dinner?

21 A. Just had some errands to do.

22 Q. Just had some errands to do. He said he wasn't

23 going to make dinner?

24 A. Yes. Usually if he calls, I don't usually ask

25 him anyway why is he not going to make it. As long as he


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
324

1 calls me and tells me he's not going to make it, that's all

2 that really matters to me. What he's going to do doesn't

3 matter.

4 Q. Thank you. Fair enough. I appreciate it, Ms.

5 Faria.

6 A. You're welcome.

7 MS. HICKS: I have no further questions.

8 THE COURT: Mr. Schwartz?

9 MR. SCHWARTZ: Mr. Swanson.

10 CROSS-EXAMINATION

11 BY MR. SWANSON:

12 Q. Ms. Faria, about how often would he call you to

13 say he wasn't coming to dinner?

14 A. Pardon?

15 Q. How often would Russ call you and say he wasn't

16 coming to dinner?

17 A. It would be -- are you talking about Tuesdays,

18 per se?

19 Q. Yes.

20 A. Oh, I'd say at least might be twice a month.

21 Q. So fair enough to say half of the time?

22 A. Yes, half of the time. Correct.

23 MR. SWANSON: No further questions.

24 THE COURT: State?

25 MR. HICKS: No Redirect.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
325

1 THE COURT: Thank you, ma'am. You may step

2 down. Do you need assistance?

3 THE WITNESS: Please. Preferably.

4 THE COURT: Okay.

5 Further evidence on behalf of the State?

6 MR. HICKS: Pam Hupp.

7 THE COURT: Ms. Pam Hupp, would you please come

8 forward and raise your right hand to be sworn by the Clerk.

9 PAM HUPP,

10 a witness, having been duly sworn by the Circuit Clerk to

11 tell the truth, the whole truth and nothing but the truth, so

12 help you God, under the pain and penalty of the Perjury Laws

13 of Missouri, testifies as follows:

14 THE COURT: You may inquire when you are ready.

15 MR. HICKS: Thank you, Your Honor.

16 DIRECT EXAMINATION

17 BY MR. HICKS:

18 Q. Pam, would you state your full name?

19 A. Pam Hupp.

20 Q. Pam, where do you reside?

21 A. O'Fallon, Missouri.

22 Q. Okay. And how long have you lived in O'Fallon?

23 A. About 12, 13 years.

24 Q. Do you live there with anybody?

25 A. My husband.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Q. Okay.

2 A. Two dogs.

3 Q. Husband and two dogs. How long, you said you

4 have been there about 12 years?

5 A. Yes.

6 Q. Prior to that, where were you residing?

7 A. Naples, Florida.

8 Q. All right. So you moved from warmer weather to

9 colder weather?

10 A. I'm from here.

11 Q. Well, that explains it then. All right. When

12 you moved up here, it sounds like about 12 years ago?

13 A. Yes.

14 Q. Were you working?

15 A. Yes.

16 Q. Where were you working?

17 A. Insurance business.

18 Q. An insurance business?

19 A. Uh-huh.

20 Q. Now do you work now?

21 A. No.

22 Q. How long ago did you stop working in the

23 insurance business?

24 A. Four years ago.

25 Q. Why is that?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
327

1 A. I'm on disability.

2 Q. From?

3 A. From an accident. I lost some discs. I have a

4 plate in my neck and a tens unit to stimulate nerves down my

5 right leg.

6 Q. You have a physical disability. So do you draw

7 a disability check?

8 A. Yes, I do.

9 Q. All right. As part of that, you are not able

10 to work; is that correct?

11 A. That's correct.

12 Q. That was about four years ago?

13 A. Uh-huh.

14 Q. Prior to that, you said you were working in the

15 insurance business. Did you know Betsy Faria?

16 A. I met her when I moved up here. As soon as I

17 moved up here, I was transferred from an office down there to

18 an office up here where she worked.

19 Q. Okay. So you met her, it sounds like, through

20 work?

21 A. Correct.

22 Q. In the insurance business?

23 A. Correct.

24 Q. And did you develop a friendship with her?

25 A. Yes.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
328

1 Q. Okay. And obviously, I guess as all of these

2 things happen, there was a friendship that developed at work

3 and then did it go outside of work?

4 A. Yes.

5 Q. What kind of things did you and Betsy begin to

6 do?

7 A. We went to movies, went out to eat, went

8 swimming. Just normal girlfriend stuff.

9 Q. Okay. And in the process of getting to know

10 Betsy in this way, did you meet her husband?

11 A. Yes.

12 Q. Okay. And do you see him in the Courtroom here

13 today?

14 A. Yeah.

15 Q. Could you point him out and tell us what he's

16 wearing?

17 A. He's wearing, looks like a corduroy gray suit

18 with a tie, half gray, half black.

19 MR. HICKS: Let the record reflect the witness

20 has identified the defendant.

21 THE COURT: The record shall so reflect.

22 MR. HICKS: Thank you.

23 Q. (By Mr. Hicks) And did you meet the defendant

24 soon after socializing with Betsy?

25 A. No.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Q. Okay. How long after was it, do you recall?

2 A. I don't recall. I had gone several times over

3 to her house. Her kids were young then. I had kids and he

4 would be there.

5 Q. Okay. So is that when you first met him?

6 A. Yes.

7 Q. All right. Now early on in that setting, were

8 you able to observe any interaction between the defendant and

9 Betsy, your friend?

10 A. Yes.

11 Q. Okay. Describe that for us.

12 A. To me, he was very degrading to her. Talked

13 down to her. Made her feel like she was simple, not that

14 smart.

15 Q. Okay. And did you often hear these sort of

16 statements, these sort of the things being made to Betsy?

17 A. Yes.

18 Q. Did it bother you?

19 A. Yes.

20 Q. How much -- did it bother you to the point you

21 just decided you didn't really want to be around them when

22 they were together?

23 A. Yes. We never -- my husband and myself never

24 socialized with him, nor did our group of friends and their

25 husbands did not want to socialize with him.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
330

1 Q. Why is that?

2 A. Because he made people feel uncomfortable the

3 way he talked to her.

4 Q. Made you feel uncomfortable the way --

5 A. Yes.

6 Q. Okay. Did you, over the years, would you say

7 that your friendship with Betsy became, you know, sometimes

8 friendships get, you get closer and sometimes you fall apart.

9 That's just the nature of things.

10 What happened between you and Betsy? Did it

11 get closer or did you guys --

12 A. We got closer. I ended up being a sounding

13 board for her and a lot of things going on in her life.

14 Q. Okay. And let me ask you this. Were you

15 involved in her life? Were you pretty close friends with her

16 at the time she first learned that she had breast cancer?

17 A. Yes.

18 Q. Okay. And what did you do at that point as a

19 friend, begin to do with her early on after she found out she

20 had breast cancer?

21 A. Her goal was to keep as busy as she could and

22 so I was not working. I was on disability. So I had a lot

23 of free time.

24 So whenever -- she did not want to be alone.

25 So whenever she didn't have someone to go visit or play


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
331

1 tennis or anything, I stepped in and would go out with her or

2 have her over or that kind of thing.

3 Q. Okay. Now was Betsy pretty active? Have lots

4 of friends?

5 A. Yes.

6 Q. Had family?

7 A. Yes.

8 Q. Good support system?

9 A. Tons. Uh-huh.

10 Q. So it wasn't like you were having to spend 24/7

11 with her?

12 A. No.

13 Q. When she found herself in, maybe, an alone

14 time, you were another friend that she could turn to?

15 A. Correct.

16 Q. Okay. Let me ask you this. About -- I guess

17 it was several months before her death --

18 A. Uh-huh.

19 Q. -- she got a new report about the cancer,

20 didn't she?

21 A. She did.

22 Q. Okay. And were you with her when she got that

23 report?

24 A. Well, I was not with her when she got the

25 actual report but a couple weeks before that I had suggested


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
332

1 she call her doctor.

2 She had come over to my house and was

3 complaining of gaining weight. She had gained approximately

4 ten pounds in the last few weeks and her stomach was really

5 bloated and I told her that was signs of stomach cancer or

6 uterine cancer. She needed to call her doctor.

7 Q. So you were concerned about her?

8 A. Oh, absolutely.

9 Q. Because of that?

10 A. Uh-huh.

11 Q. You encouraged her to go see the doctor?

12 A. Correct.

13 Q. Did she do that?

14 A. Yes, she did.

15 Q. That's when she found out the cancer had come

16 back?

17 A. Into her liver.

18 Q. Describe -- I mean, you were her friend. How

19 did she take that?

20 A. Not very well. She didn't want to talk about

21 it. She never wanted to talk about dying or cancer.

22 Q. So what did you do as a friend from that point

23 on?

24 A. Tried to talk to her about it and tried to just

25 keep her busy.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
333

1 Q. Okay. So did you continue -- I guess that's

2 what I'm getting at. Did you continue some of the same sort

3 of activities of eating out, going to movies?

4 A. Yes. We continued them. I went to go visit

5 her when she was having her chemo, she had to start chemo

6 again, and sat with her to keep her company because she was

7 there for hours.

8 Q. All right. So when she would -- would she go

9 get chemo on a weekly basis?

10 A. The second time around?

11 Q. Yes.

12 A. I don't remember if it was weekly or every

13 other week.

14 Q. Okay.

15 A. I don't remember.

16 Q. But was it your practice, whenever she was

17 getting chemo, that you would either take her or show up with

18 her and sit with her?

19 A. Yes, if she didn't have anybody else. She

20 would take different people. She didn't want to stay by

21 herself there. Sometimes I would go if she didn't have

22 anybody. Sometimes I would meet her up there.

23 Q. Okay. That's something you did quite often,

24 correct?

25 A. Yes.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
334

1 Q. Was Russ ever there during those time

2 periods?

3 A. I never saw him the second round. I heard he

4 went the first time around but I never saw him the second

5 time.

6 Q. The second time around, you never observed him

7 ever there with her in chemo?

8 A. No.

9 Q. Would you say you were there almost every time?

10 A. Not -- I wouldn't say almost every time but

11 probably half.

12 Q. At least half the time?

13 A. Depending on, yeah, if she had someone else

14 there. Sometimes, no.

15 Q. Okay. Let me ask you this. Did you and Betsy

16 have a Christmas Eve tradition that you guys shared?

17 A. Yes.

18 Q. What was it?

19 A. Every Christmas Eve, we would go out to lunch

20 or spend most of that time together and after lunch, then we

21 would part our ways for the Christmas holidays and then get

22 back together.

23 Q. Okay. Christmas 2011 was on a Sunday?

24 A. Uh-huh.

25 Q. Okay. That makes Christmas Eve Saturday. All


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
335

1 right. Did you spend that Christmas Eve, that Saturday, with

2 her?

3 A. I did not. I spent Friday with her. All day

4 Friday.

5 Q. How come Friday instead of all day Saturday?

6 A. Because as far as I can remember, she was going

7 to her Mom's for the weekend and she was going to, it was

8 just going to be a long holiday. Her Mom and Dad had

9 divorced, so she had more places to go to.

10 Q. She had a lot of parties to go. Christmas Eve,

11 Christmas, the day after?

12 A. Yes.

13 Q. She was going to squeeze you in, not squeeze

14 you in, but were going to back it up to Friday?

15 A. Yes.

16 Q. All right. Did you guys go out that Friday?

17 A. Yes, we did.

18 Q. Okay. And what were her spirits like, at least

19 with you, on that Friday?

20 A. Great. She was very excited about Christmas.

21 She was very excited about going to her Mom's house because

22 her Mom was making homemade ravioli. She kept saying that

23 she was excited about that.

24 Q. Your general impression from her was that she

25 was happy and that it was a good day?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
336

1 A. Oh, yeah. Very happy.

2 Q. Then, of course, you have got Christmas Eve

3 that you do with your -- we're not going to go into all that.

4 A. Correct.

5 Q. Did you see Betsy on Christmas Eve or Christmas

6 Day?

7 A. No.

8 Q. Did you even talk to her, if you recall?

9 A. I don't remember.

10 Q. The day after Christmas, that Monday, did you

11 see her?

12 A. I don't remember. I don't think so.

13 Q. Okay. So now that would take you to Tuesday,

14 which, I believe, is the 27th?

15 A. Uh-huh.

16 Q. All right. And it sounds like you hadn't seen

17 her since this last Friday?

18 A. That's correct.

19 Q. Did you see her the 27th?

20 A. Yes.

21 Q. How did you come about seeing Betsy on the

22 27th?

23 A. We had arranged for me to take her to chemo on

24 the 27th.

25 Q. Had that been an arrangement that had been made


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 that Friday before?

2 A. I don't know if it was Friday or whenever, you

3 know. She scheduled sometimes in advance depending on who

4 could take her or not take her. Sometimes it was last minute

5 if somebody couldn't and things like that.

6 So at some point we had scheduled for Tuesday.

7 Her mother had a friend in from out of town. She had texted

8 me and said that she wanted to spend time.

9 Q. We can't get into lot of statements that Betsy

10 maybe said to you.

11 A. Okay.

12 Q. I'm saying you had prearranged for you to --

13 were you going to take her on the 27th?

14 A. Yes.

15 Q. All right. Did you then discover that, oh, she

16 didn't need to be taken?

17 A. Yes.

18 Q. That she had made, she had friends, a friend in

19 -- or she was going to get there without your assistance,

20 correct?

21 A. Correct.

22 Q. All right. And that's not unusual? You said

23 before that she had been taken to chemo by other people

24 before?

25 A. Oh, absolutely.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Q. Even in those situations in the past, had you

2 gone ahead and shown up just to sit with her?

3 A. Yes.

4 Q. Did you do that on this Tuesday?

5 A. I did.

6 Q. All right. And was that in the afternoon?

7 A. I think it was early afternoon. Afternoon.

8 Q. Okay. How far away was it? Do you remember

9 how far away the chemo place was from your house?

10 A. It's not very far. It's O'Fallon and I was in

11 St. Peters, so, I don't know, 12 miles, maybe.

12 Q. So it wasn't like it was a huge inconvenience

13 for you either?

14 A. Oh, no.

15 Q. And of course, unfortunately you are not able

16 to work, so you had the time; is that right?

17 A. Uh-huh.

18 Q. And you hadn't seen her since last Friday?

19 A. I hadn't and I was determined to spend as much

20 time with her just like she was with everybody else she knew.

21 She wanted to spend as much time and selfishly I went there

22 to spend time with her.

23 Q. Sure. When you arrived there, were you able to

24 sit there and talk with her and her friends?

25 A. Yes.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Q. She had her chemo treatment, it sounds like?

2 A. Correct.

3 Q. After that, do you recall where you went after

4 sitting there with her at chemo?

5 A. I went home and had dinner with my husband and

6 she went home and had dinner with her mother.

7 Q. Then after you had dinner with your husband,

8 what did you do?

9 A. I was, she had asked me to pick her up and take

10 her to Troy that evening, if that would be okay. I said I

11 would, so I went back over to her mother's house to pick her

12 up.

13 Q. So you went back over to her house per the

14 arrangement that you had made with her. Went over to her

15 mother's house in Lake St. Louis?

16 A. Lake St. Louis, correct. She had asked me

17 during chemo if I could take her out to Troy.

18 Q. Okay. So you went over to Lake St. Louis, the

19 house there. Do you remember about, I know you are not

20 looking at a clock and documenting stuff, but this is going

21 to be the 27th. Do you remember if it was dark yet?

22 A. It was because I was supposed to pick her up

23 around 6:00.

24 Q. Okay. So?

25 A. So it would have been dark.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Q. So it was sometime around there that you

2 believe you got there?

3 A. Uh-huh.

4 Q. Did you, at some point -- did you leave

5 immediately at 6:00 or did you sit around the place?

6 A. We sat around. Her mother and her mother's

7 friend and her were involved in a card game.

8 Q. Okay.

9 A. And so they were finishing up, so I waited

10 around until they finished up.

11 Q. Once they finished up the game, what did you

12 and Betsy do?

13 A. We left to take her back to Troy.

14 Q. Okay. And how long does it approximately take

15 to get from Lake St. Louis, that house, up to her house in

16 Troy?

17 A. Maybe 25 minutes, 30.

18 Q. All right. And so do you remember about what

19 time it was that you got back to her house up here in Troy?

20 A. It was about between 7:00 and 7:05.

21 Q. Somewhere in there. Shortly after 7:00?

22 A. Uh-huh.

23 Q. All right. And how is that you recall it being

24 that time?

25 A. I called my husband and told him we were there


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
341

1 and Betsy wanted to say Merry Christmas to him because she

2 hadn't talked to him for a while, and so we were sitting in

3 the driveway and we made that phone call.

4 Q. Okay. And then after you made that phone call,

5 what did the two of you do?

6 A. We gabbed for a few minutes because she was

7 trying to talk me into staying all night with her.

8 Q. Okay.

9 A. And I was trying to get out of it and then we

10 went into the house.

11 Q. Why were you trying to get out of it?

12 A. Because first, I have never stayed all night at

13 a person's house while I was married but that was not unusual

14 for her to have people stay all night.

15 Q. Okay. And so did you go in the house with

16 her?

17 A. Yes.

18 Q. Okay. And let me ask you this. When you

19 went in the house, the front door, was it locked or

20 unlocked?

21 A. It was unlocked.

22 Q. Okay. And when you went into the house, were

23 the lights on or were the lights off?

24 A. The lights were off, including the porch

25 light.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Q. Okay. So there were no lights on?

2 A. No.

3 Q. Okay. And when you went in there, was there

4 anybody present in the house that you saw?

5 A. No. It was completely dark, except for the dog

6 who ran to greet us.

7 Q. Okay. And you were familiar with their dog,

8 correct?

9 A. Yes.

10 Q. And what was the dog's name?

11 A. Sicily or Sissy.

12 Q. What kind of dog was it?

13 A. To me, it's a Chow. I think it's just part

14 Chow.

15 Q. And because it's a Chow, what kind of angst, if

16 any, did that cause you?

17 A. I don't, never have liked the dog. She's never

18 been mean to me but I'm just afraid of her because I've gone

19 to her house before and it's the kind that kind of dives at

20 the windows and doors.

21 Q. So it makes you a little --

22 A. Oh, yeah.

23 Q. Once you went in there, the lights are off and

24 dog is there. What did Betsy do with the dog?

25 A. She went to take it outside and put it on a


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
343

1 lead because they didn't have a fenced-in yard to let it go

2 to the bathroom. She was going to try to find it something

3 to eat because they didn't have any dog food in the house.

4 Q. Did she leave the dog outside on the lead?

5 A. Yes.

6 Q. What are you guys doing inside?

7 A. We're goofing, talking about Christmas, what we

8 got, what the kids got. Blah, blah. Girl stuff.

9 Q. All right. Nothing important, doesn't sound

10 like?

11 A. No.

12 Q. All right. But this house -- is there an

13 upstairs and a downstairs?

14 A. No. It's a ranch style. When you walk right

15 in, it goes right into the living area and the kitchen on the

16 left and then a hallway for the bedrooms.

17 Q. Okay. And now there is a basement downstairs,

18 correct?

19 A. Correct.

20 Q. Did you go into all of the rooms in the

21 upstairs?

22 A. Not all of them. But we went into the living

23 room, the kitchen, because we had to turn on lights and she

24 was looking for something for the dog to eat and had to let

25 the dog out. There's a slider in the kitchen.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
344

1 Then we came back in the living room and we

2 were talking and then she wanted to show me her Christmas

3 present in her bedroom.

4 Q. So you went into her bedroom?

5 A. Yes.

6 Q. Are those the only rooms that you guys went?

7 A. I believe so.

8 Q. I'm just -- it's not -- because you described

9 how the lights were off and stuff.

10 A. It's not like we did a sweep of the house. I

11 didn't take a tour. I had been there. I wanted to get home

12 but I wanted to talk to her, too, about Christmas but I

13 didn't want to get stuck there too long and get talked into

14 staying there.

15 Q. I understand. I was just trying to make sure

16 that you described how that lights were all off and you guys

17 went in there.

18 Of course, the dog didn't seem to be upset

19 about anything, did it? Was it barking?

20 A. No.

21 Q. So you didn't suspect that there was somebody

22 there at that point?

23 A. No. It was creepy going in, I have to say,

24 because it was very dark and the door was left unlocked and

25 she knew it was going to be unlocked. So to her, it wasn't.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
345

1 To me, it was just because there wasn't even a porch light

2 on.

3 Q. All right. But you stayed there for

4 approximately how long?

5 A. Twenty, thirty minutes or so.

6 Q. Again, I know you are not timing it.

7 A. Yeah, I don't know. We talk a lot.

8 Q. Okay. All right. Now at some point, did she

9 -- I won't get into everything again. We've got hearsay

10 rules, but --

11 A. Uh-huh.

12 Q. When you left her, was she happy with you or

13 unhappy with you?

14 A. Really unhappy.

15 Q. Why was she unhappy?

16 A. Because first she tried to get me to stay all

17 night. We went through all of that and I was determined I

18 was not going to and then she tried to get me to just stay

19 and watch a movie and that didn't happen either.

20 Q. Okay. Why didn't you stay and watch a movie

21 with her. What was your understanding of --

22 A. Well, Russ was at a -- my understanding was he

23 was at a card game is what she always called him -- on

24 Tuesday he was playing cards.

25 Q. Okay.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 A. She said he was on his way home or should be

2 home shortly and I just really didn't want to be there. I

3 had never been around him all that much or socially. So that

4 made me uncomfortable.

5 Q. So you didn't want to be there when he got

6 there?

7 A. Yeah.

8 Q. All right. So you left?

9 A. Yes.

10 Q. All right. Now you left, though, was that the

11 last time you saw Betsy?

12 A. That was the last time I saw her.

13 Q. Okay. And she was upset with you?

14 A. Oh, yeah.

15 Q. Did you do anything once you left? Did you try

16 to --

17 A. When I left, I tried to call her. Not unusual

18 that she would get mad because you didn't do something that

19 she wanted but I just wanted to make sure. It was Christmas

20 and she was very ill.

21 You know, so I tried to call her and see if she

22 was still mad. She got over stuff pretty easy and I didn't

23 get an answer and then I think I tried her again when I got

24 home. I'm not sure.

25 Or then I called her mother and I told her, you


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 know, have you heard from Betsy because she's pretty mad at

2 me and I haven't heard anything. Then I didn't talk to

3 anybody the rest of the night.

4 Q. Okay. Just went to bed?

5 A. I don't think so, but yeah.

6 Q. You went to bed that night?

7 A. Uh-huh.

8 Q. Was it the next day you discovered that she had

9 actually been murdered?

10 A. Yes. About 6 o'clock in the morning, two

11 detectives came to my door.

12 Q. Okay. (Pause in proceedings.)

13 That's why I have somebody helping me out here

14 in case I forget something. I forgot to ask you. When you

15 guys pulled into the driveway --

16 A. Uh-huh.

17 Q. -- at the Faria house here in Troy, were there

18 any other vehicles present?

19 A. In her driveway?

20 Q. Yes.

21 A. Not that I saw, no.

22 Q. Okay. You didn't see any other vehicles in the

23 driveway?

24 A. No.

25 Q. All right.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 MR. HICKS: Nothing further, Your Honor.

2 THE COURT: Mr. Schwartz?

3 CROSS-EXAMINATION

4 BY MR. SCHWARTZ:

5 Q. Ms. Hupp, you had known Betsy in 2011. You

6 testified earlier or you've stated you knew her about ten

7 years?

8 A. Correct.

9 Q. You testified earlier that Russ was degrading

10 and made her feel simple?

11 A. I can hardly hear you, I'm sorry.

12 Q. You said Russ was degrading, made her feel

13 simple. Made people uncomfortable. Is that what you said

14 earlier?

15 A. I said our group of friends, which is a

16 separate group. She had many groups of friends, yes.

17 Q. Now when you were interviewed by the detectives

18 that next morning when they came to your house, one of the

19 first things you told them was, I don't know him that well.

20 I've only met him maybe three times in ten years; is that

21 correct?

22 A. Probably. Maybe more but not much more.

23 Q. Did you tell the detectives that the next

24 morning when they were talking to you?

25 A. I don't know.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Q. So you are saying you didn't tell the

2 detectives that?

3 A. I'm not saying that.

4 Q. If you told the detectives that, would that be

5 incorrect? I met him. I don't know him very well. I met

6 him three times in ten years. Would that be correct or

7 incorrect?

8 MR. HICKS: Objection. It's already asked and

9 answered. She said it might be more than that.

10 THE COURT: Sustained.

11 Q. (By Mr. Schwartz) That conversation you had

12 with the detectives was tape recorded, wasn't it?

13 A. Yes.

14 Q. Would it refresh your recollection if I showed

15 you your statement?

16 A. No. If you say I said that, that's fine.

17 Q. Okay. So your opinion over those ten years

18 that he was degrading and made her simple and made your group

19 of friends feel uncomfortable is from the three times that

20 you may have met him?

21 A. Absolutely.

22 Q. We know you saw him the week before when you

23 were there, right?

24 A. Yes.

25 Q. That's one time?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
350

1 A. Correct. She had a birthday party that he

2 did.

3 Q. That was how many years prior?

4 A. A few.

5 Q. That was her birthday party?

6 A. It was her 40th, yes.

7 Q. Your group of friends, you and her husband's

8 group of friends, were there at that birthday party?

9 A. Yes.

10 Q. So that's two times. They were with him

11 socially, right?

12 A. Not with him, no.

13 Q. He was there. He threw the party?

14 A. Absolutely.

15 Q. That was a surprise party for Betsy's 40th

16 birthday?

17 A. Yes.

18 Q. There was one other time?

19 A. Yes, when I met him and there might have been

20 one other time in that. Maybe.

21 Q. All right.

22 A. We did not socialize.

23 Q. So you weren't around him and Betsy very much

24 at all, were you?

25 A. Not a whole lot, no.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Q. Well, the one time the week before, you just

2 said. Her 40th birthday party. Was he degrading to her at

3 her 40th birthday party? Was that what you are saying?

4 A. That's not what I'm saying.

5 Q. Okay. So there was at least, maybe, one other

6 time. So you are basing your opinion on that one other time?

7 A. No. I'm basing my opinion on ten years of

8 friendship with Betsy and our conversations.

9 Q. But you weren't around him to base any of that,

10 were you?

11 A. Yeah. I was a few times, yes.

12 Q. A few times?

13 A. I base it on what I saw and what my friend told

14 me in ten years.

15 Q. You started to talk about -- you were going to

16 take Betsy, you had seen her that Friday and then you were

17 going to take her to chemo on Tuesday, right?

18 A. Correct.

19 Q. But you didn't take her?

20 A. I did not.

21 Q. Someone else took her?

22 A. Correct. She took herself.

23 Q. Well, she went with somebody else correct?

24 A. Correct. Uh-huh.

25 Q. And you didn't show up first at chemo, did you?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 A. No, I did not.

2 Q. Why not?

3 A. Well, I knew that it was her mother's friend

4 that didn't have a vehicle, so I just wanted to make sure

5 that she was all right to drive herself there.

6 Q. She already told you she didn't need a ride,

7 correct?

8 A. Yes.

9 Q. But you went to her mother's house anyway?

10 A. That's correct.

11 Q. Were you trying to track her down?

12 A. Trying to track her down? I knew she was going

13 to chemo so I didn't have to track her down.

14 Q. But you went to her mother's and she wasn't

15 there?

16 A. That's correct.

17 Q. You went to chemo then?

18 A. That's correct.

19 Q. And you stayed at chemo, correct?

20 A. Correct.

21 Q. And then your testimony is she asked you -- she

22 wanted to go out to Troy and you told her, she asked you for

23 a ride?

24 A. Correct.

25 Q. Did you have any information that she already


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
353

1 had a ride from her husband?

2 A. No.

3 Q. Did you get some information to that effect?

4 A. I did. She had a text but I hadn't read it

5 until she told me when I got there.

6 Q. When you got where?

7 A. To her mother's house.

8 Q. And her mother's house is pretty close to your

9 house?

10 A. Yes.

11 Q. And her house is about 30 minutes away from

12 your house?

13 A. Yes.

14 Q. Where is your house?

15 A. O'Fallon.

16 Q. And her mother's house is where?

17 A. Lake St. Louis.

18 Q. So you drove to her mother's house and found

19 out she didn't need you to take her and yet took her anyway?

20 A. Yes, because she asked me if I could just take

21 her then she would tell Russ.

22 Q. She would tell Russ what?

23 A. That she had a ride.

24 Q. You don't know if she had already told Russ

25 that or not, do you?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 A. I don't.

2 Q. You don't know if she had texted Russ earlier

3 that day?

4 A. I don't know.

5 Q. So when you got to Betsy's house, you know the

6 time because that was recorded on a -- you talked to the

7 detectives the next day and you looked at your cell phone and

8 you called at 7:04; is that correct?

9 A. Correct.

10 Q. That was a call to your husband when you

11 arrived at the Faria household?

12 A. Correct.

13 Q. And then you said you stayed there

14 approximately 20 minutes?

15 A. Could be. That's what I said, yes.

16 Q. Could it be longer?

17 A. Maybe.

18 Q. Could it be shorter?

19 A. Don't know.

20 Q. But you know you called her again at 7:27,

21 right?

22 A. I did not know the time.

23 Q. Well, did you look at that phone call with the

24 detectives when they were at your house?

25 A. Probably.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Q. And they asked you why you called her, correct?

2 Do you remember that?

3 A. No.

4 Q. Would it refresh your recollection if I showed

5 you a copy of that?

6 A. It wouldn't refresh anything, no.

7 Q. Are you denying -- did you tell the police that

8 you called Betsy to tell her you were home?

9 A. Yes.

10 Q. You did tell her that?

11 A. No. I'm not denying that, no.

12 Q. Okay. Before we get to that. So it's -- you

13 told the police -- let's step back for a moment. Initially,

14 you told the police when they interviewed you that you never

15 went in the house?

16 A. Correct.

17 Q. Why?

18 A. I had not planned on staying in the house and

19 then I turned around and said that I did go in with her.

20 Q. When they came, you said you didn't go in the

21 house because you didn't plan on it. You knew they were

22 there because she had been murdered?

23 A. Finally, yes.

24 Q. Okay. And you knew you were with her less than

25 12 hours before?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 A. Yes.

2 Q. Yet you told the police you never went in the

3 house?

4 A. I think, that's what I said originally, yes.

5 Q. Then you changed it and told them, yeah, I did

6 go in the house and I went in this room and I went in that

7 room?

8 A. Right.

9 Q. I went in the bedroom, correct?

10 A. Correct.

11 Q. So you were in the house and you told that to

12 the police. You also told Janet Meyer, her mother, when you

13 called her an hour and a half later that you didn't go in the

14 house, correct?

15 A. I don't remember that, no.

16 Q. Are you saying you didn't tell her that?

17 A. I don't have a reason to tell her I went in the

18 house or not went in the house.

19 Q. You told her you tried to call Betsy and Betsy

20 didn't answer, right?

21 A. After I left her because she was mad at me, so

22 yes.

23 Q. Let's go back then. You called her at 7:27,

24 right, or thereabouts?

25 A. If you say so, yes.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Q. Did you, why did you call her?

2 A. Because she was really mad at me and I wanted

3 to see if she was still upset, if Russ had gotten home, if

4 she was doing okay. Just --

5 Q. You got there at 7:04?

6 A. Uh-huh.

7 Q. And you were there for 10, 20, 30, who knows

8 how long, right?

9 A. Correct.

10 Q. And you called her to see if she was mad at

11 you; is that right?

12 A. Correct.

13 Q. Yet you told the police the next morning, less

14 than 12 hours later when they interviewed you, that you

15 called Betsy when I got home to tell her I was home?

16 A. That's not what I said.

17 Q. Are you certain?

18 A. No.

19 Q. You are not certain?

20 MR. HICKS: Your Honor, may we approach?

21 THE COURT: Yes.

22 (Discussion at the bench.)

23 MR. HICKS: I wanted to give the defense a

24 little bit of latitude here for Cross-examination but, at

25 this point, I think the Cross-examination, there is no other,


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 there is no relevant -- I don't know what the relevance is

2 and to try to impeach this witness, to try to -- unless they

3 want to try to blame her for this crime.

4 They want to establish that the time frame in

5 which Betsy was killed was sometime after 7:20, sometime

6 during that period. They give her that time, she gives them

7 this time frame. They have got an alibi for that.

8 I don't understand what relevance there is in

9 impeaching her with what they are calling inconsistent

10 statements, which is just her trying to explain what happened

11 the night before, trying to remember phone calls, unless they

12 are going to be trying to suggest to this jury without

13 arguing she's the one who did this. So I don't see the

14 relevance of it.

15 THE COURT: Mr. Schwartz?

16 MR. SCHWARTZ: It's a prior and inconsistent

17 statement.

18 MR. HICKS: A prior and inconsistent statement

19 isn't relevant in and of itself. You can make a prior

20 inconsistent statement. Yeah, I never cheated when I was in

21 third grade. Okay, wait a minute. Maybe I did cheat one

22 time.

23 I'm saying just because it's a prior

24 inconsistent statement doesn't make it admissible and

25 relevant. They have to show why it's relevant, and my


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 concern here is I'm trying to figure out what relevance there

2 is going after this, other than to try to point his finger at

3 her.

4 THE COURT: How much longer are we going on

5 with this?

6 MR. SCHWARTZ: I was just going to get to the

7 statement. That is all. I'm not going very much further.

8 I'll read the statement into the record or play it into the

9 record.

10 THE COURT: The statement of what?

11 MR. SCHWARTZ: What she told the police that I

12 called the police to tell her I was home.

13 MR. HICKS: She's not denying that she did

14 that. You asked her, do you recall, as you sit here today,

15 did you call Betsy when you got home? Did you try to call

16 Betsy when you got home to let her know you were there?

17 MR. SCHWARTZ: Okay. Fine. Well, she hasn't

18 really even answered it.

19 MR. HICKS: I thought she had. She said, I

20 thought I did, and then you go into, well, that's not what

21 you told the police.

22 MR. SCHWARTZ: I will narrow it down.

23 Thank you, Judge.

24 (End of bench discussion.)

25 Q. (By Mr. Schwartz) Ms. Hupp, do you recall the


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 police asking you, you called her when you got home? And you

2 said, I called Betsy. That's right. I called Betsy to tell

3 her I was home. Is that accurate?

4 A. I'm sure it is.

5 Q. All right. And then did she answer?

6 A. Did who answer?

7 Q. Betsy?

8 A. No.

9 Q. She didn't answer? Yet as you sit here, at

10 7:27, do you know it would have been impossible for you to be

11 home at that time?

12 A. Correct.

13 Q. So why did you say that to the police?

14 A. Because that's not exactly what I meant. As we

15 continued our conversation, what I had said to them was that

16 when I get out of her neighborhood, because I don't know Troy

17 that well, and I get to the Interstate, I give her a call and

18 always say, "I'm home", which means I'm on my way home. I

19 made it out of your neighborhood. I made it home free.

20 That's what that means to me.

21 Q. Okay. Fair enough. So when you say to the

22 police after your friend, after you have been told your

23 friend is murdered, you tell the police, I called to tell her

24 I was home. What you meant was, I am out of your

25 neighborhood?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
361

1 A. I'm home free. I can get myself back, yes.

2 Q. That's not what you said to police, was it?

3 A. I don't know.

4 Q. Now when you arrived -- you don't like Sicily,

5 do you?

6 A. No.

7 Q. Sicily jumps all over you?

8 A. Yes.

9 Q. Sicily is a relatively big dog and you are

10 scared of Sicily?

11 A. Yes.

12 Q. Sicily was jumping all over when you got there?

13 A. Yeah, for as much as she jumps on people, yes.

14 Q. And jumping on Betsy?

15 A. Yes. Trying to greet her.

16 Q. Betsy knew what to do. She took the dog

17 outside to put it on a lead?

18 A. Yes.

19 Q. It was wet outside that night, wasn't it?

20 A. I don't remember.

21 Q. Now when you were interviewed by the police the

22 next morning, you told them that the last time you saw Betsy

23 she was sitting on the couch with her blanket on, watching

24 television; is that correct?

25 A. Yes, or she was putting a blanket on.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
362

1 Q. Well, you said -- let's be accurate.

2 MR. HICKS: Well, I'm going to object to the

3 form of the question. He's not even laid a foundation yet to

4 ask her. He's going straight to the deposition.

5 Q. (By Mr. Schwartz) How was Betsy positioned

6 when you last saw her?

7 A. She was going to get cuddled up to watch a

8 movie on the couch with her blanket.

9 Q. You told that to the police. Did you say that

10 she was sitting on the couch, she had a blanket on her and

11 she was going to watch T.V.?

12 MR. HICKS: This is improper impeachment of the

13 witness.

14 MR. SCHWARTZ: It's not even impeachment. This

15 is what she testified to.

16 Q. (By Mr. Schwartz) What did you tell the police

17 two days later when you talked to Detective Kaiser when she

18 came back to see you? She asked you, when was the last time

19 you saw Betsy? What did you tell her?

20 A. I don't remember.

21 Q. Isn't it true that you told her the last place

22 you saw Betsy was at the front door waving goodbye?

23 A. I don't remember.

24 Q. Would it refresh your recollection if I showed

25 you a copy of her report?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
363

1 A. No.

2 Q. It would not?

3 A. No.

4 Q. So you don't remember telling Detective Kaiser

5 that two days later?

6 A. No.

7 Q. Now during the course of this interview,

8 towards the very, very end, you had asked the Detective, you

9 wanted to go see Janet; is that correct?

10 A. Uh-huh.

11 Q. Yes?

12 A. Yes.

13 Q. And you asked if she even knew about it; is

14 that correct?

15 A. I don't remember that.

16 Q. Well, you wanted to ask if it was okay and the

17 male Detective, Detective Perry, he just wanted to make sure

18 that everything would be okay; is that right?

19 A. I don't know what you are talking about.

20 Q. At that point, did you ask them, towards the

21 end of your interview, what time did this happen? This

22 morning?

23 A. I don't remember that.

24 Q. Would it refresh your recollection if I showed

25 you a copy of the transcript?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
364

1 A. No, it wouldn't.

2 Q. Would it refresh your recollection if I played

3 a copy of the tape recording with your voice on it?

4 A. No.

5 Q. It wouldn't refresh your recollection to hear

6 that?

7 A. No.

8 Q. Are you sure?

9 MR. HICKS: Again, this is improper

10 impeachment.

11 MR. SCHWARTZ: It's not.

12 MR. HICKS: If he has got a witness who wants

13 to come in later and testify this is, in fact, what she said

14 because she's saying to you she doesn't recall, that's the

15 way to do it.

16 MR. SCHWARTZ: That's fine.

17 Q. (By Mr. Schwartz) So you are saying you don't

18 recall asking at the end of your interview what time did this

19 happen? This morning?

20 A. No.

21 Q. You don't?

22 A. No.

23 Q. You don't?

24 A. Which day? I don't know which day you are

25 talking about.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
365

1 Q. The very next morning, at 6:40 a.m., when the

2 police arrived. They were there for about three or four

3 hours, correct?

4 A. Correct.

5 Q. Right at the end of the interview, you asked,

6 what time did this happen? This morning? You don't recall

7 that?

8 A. No.

9 Q. Okay. During the course of that interview,

10 early on, maybe a half hour, hour into it, you got a call.

11 You have a brother, Mike, right?

12 A. Correct.

13 Q. You were supposed to go deal with some

14 financial stuff with Mike and your mother?

15 A. I did not get a call from him. I called

16 him.

17 Q. Are you sure?

18 A. Yeah.

19 Q. Would it refresh your recollection to listen to

20 it?

21 A. No.

22 Q. No, it wouldn't?

23 MR. HICKS: Objection. Relevance. What is --

24 based on a pretrial Motion filed by the State, I'm asking

25 that this -- what is the relevance?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
366

1 THE COURT: Mr. Schwartz?

2 MR. SCHWARTZ: Your Honor, it's simply relevant

3 as to prior and inconsistent statements. She just said she

4 doesn't remember saying it. I'm asking if she does and then

5 I will be done. That's it.

6 MR. HICKS: That's what he said the last time

7 we were at the bench.

8 MR. SCHWARTZ: This is a completely different

9 line of questioning.

10 MR. HICKS: I know.

11 MR. SCHWARTZ: I withdraw the question.

12 THE COURT: Overruled at this time.

13 You may proceed.

14 Q. (By Mr. Schwartz) When you got that phone call

15 from your brother, you told your brother, early on in this

16 interview, my friend, something happened to her last night

17 and I have the police officers here asking me questions. Do

18 you recall telling that to your brother?

19 A. Yes, I do.

20 Q. That was early on, yes?

21 A. I guess, yes.

22 Q. So why did you say later to the police, why did

23 you ask them, did this happen this morning?

24 MR. HICKS: Objection. Improper question. She

25 already said she didn't recall making the statement. He's


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
367

1 now asking her to comment on it.

2 A. If I did -- I just found out my good friend had

3 been killed and I don't know. I --

4 Q. (By Mr. Schwartz) But you said it?

5 A. Obviously, I did just say it. I have a little

6 bit of a memory problem. I'm 55 and going through menopause.

7 It's been two years. I can't tell you every minute of what I

8 have said about anything, honestly.

9 Q. Is the memory problem the reason why you would

10 have told the police that you didn't go inside?

11 A. No.

12 Q. Is the memory problem the reason that you would

13 have told Betsy or that you would have told the police you

14 called her when you got home?

15 A. No.

16 Q. Okay. When you went inside, you went through

17 the house and you said Betsy showed you what she got for

18 Christmas; is that correct?

19 A. Correct.

20 Q. And one of the things she got for Christmas was

21 a jewelry chest, correct?

22 A. Correct.

23 Q. And there was a leg broken on that jewelry

24 chest, correct?

25 A. Correct.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
368

1 Q. And that was at seven something on the 27th

2 when you saw that?

3 A. It would have been seven something, yes.

4 MR. SCHWARTZ: Nothing further.

5 THE COURT: State?

6 MR. HICKS: Just one Redirect.

7 REDIRECT EXAMINATION

8 BY MR. HICKS:

9 Q. Ms. Hupp, when the detectives showed up at your

10 house on the 28th, what time was it?

11 A. Six in the morning.

12 Q. Six in the morning. Okay. You began to speak

13 with the detectives, correct?

14 A. Correct.

15 Q. And one of the first questions they asked you

16 is when was the last time you saw Betsy, correct?

17 A. I think so, yes.

18 Q. Okay. And at that time, you told them that it

19 was last, the evening before that you had taken her back to

20 Troy and dropped her off at her house, correct?

21 A. Yes.

22 Q. And that --

23 MR. SCHWARTZ: I object to the leading.

24 Q. (By Mr. Hicks) Initially, was that your --

25 that was your statement to the police?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
369

1 A. Yes.

2 Q. And that you went home?

3 A. Yes.

4 Q. They then asked you, well, didn't you, did you

5 go inside the house?

6 A. They asked me -- first they were very general.

7 So they asked, when was the last time and the circumstance

8 and I said, I took her from her Mom's house up to Troy and

9 dropped her off.

10 Q. Right.

11 A. That's what I said.

12 Q. Right. But then when they asked you whether

13 you went in, did you ever lie to them and then say, no, I

14 never went in?

15 A. Never.

16 Q. You told them, I went inside the house?

17 A. Absolutely and I told them every room I was in

18 and what we did and what we talked about and what we saw and

19 everything. I was always upfront.

20 MR. HICKS: All right. Thank you. Nothing

21 further.

22 THE COURT: Mr. Schwartz?

23 RECROSS-EXAMINATION

24 BY MR. SCHWARTZ:

25 Q. I'm unclear. You initially said, no, you


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
370

1 didn't go in the house, right?

2 A. I don't know. That's not how I worded it.

3 Q. Okay. Did you go in the house? No?

4 A. No, I did go in the house.

5 Q. Then you changed it and said you did go in the

6 house?

7 A. I did not change it.

8 Q. You just rephrased it and said that you went in

9 the house.

10 A. You would have liked me to have said it like

11 that but that's not true, Mr. Schwartz.

12 Q. How did you say it?

13 A. I didn't say it like that.

14 Q. How did you say it?

15 A. I would have said it just like I told him. In

16 general, because they asked a general question, the last time

17 I was with her was the night before. She asked me to take

18 her home. I took her home, dropped her off and I came home

19 because, in my mind, before I knew she was murdered, that's

20 what I did. Would you like me to say that again?

21 Q. Go ahead. Say it again.

22 A. That's all right. You can hear the recording.

23 Q. I believe the question asked of you was did you

24 go inside? Is that specific or general?

25 A. Depends on how they say it.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
371

1 Q. Well, they were talking about after you dropped

2 her off?

3 A. They asked me that after they asked a general

4 question. Again, what did you do last night the last time

5 you saw Betsy? And I said, I picked her up from her Mom's.

6 I took her home, dropped her off and went home. And then

7 they said, did you go inside? And then I went into great

8 detail, that you are not saying, with them.

9 Q. Did you tell them "no" at first?

10 A. No, I did not.

11 Q. You did not?

12 A. No.

13 MR. SCHWARTZ: Thank you. Nothing further.

14 THE COURT: State?

15 MR. HICKS: No Redirect.

16 THE COURT: Thank you, ma'am. You may step

17 down. You are free to stay or go as you choose.

18 MR. SCHWARTZ: Your Honor, may we approach?

19 THE COURT: Yes.

20 (Discussion at the bench.)

21 MR. SCHWARTZ: Can we take a break?

22 THE COURT: I think we can take a break for a

23 few minutes.

24 MR. SWANSON: I'm not going to get into that

25 much. I want to get into the policy that exists. A few


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
372

1 questions.

2 MR. HICKS: Okay. I need five minutes to go to

3 the bathroom after that.

4 THE COURT: All right.

5 (End of bench discussion.)

6 THE COURT: Ladies and gentlemen of the jury,

7 at this time the Court is going to take a brief recess.

8 The Court again reminds you of what you were

9 told at the first recess of the Court. Until you retire to

10 consider your verdict, you must not discuss this case amongst

11 yourselves or with others or permit anyone to discuss it in

12 your hearing.

13 You should not form or express any opinion

14 about the case until it's finally given to you to decide. Do

15 not do any research or investigation on your own about any

16 matter regarding this case or anyone involved with the trial.

17 Do not communicate with others about the case

18 by any means. Do not read, view, or listen to any newspaper,

19 radio, electronic communication from the Internet or

20 television report of the trial.

21 The Court will be at recess until 3:20. Please

22 stand for the jury.

23 (The jurors left the Courtroom.)

24 THE COURT: Are we ready on the Offer of Proof?

25 MR. SCHWARTZ: May I inquire, Your Honor?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
373

1 THE COURT: Yes.

2 DIRECT EXAMINATION

3 BY MR. SCHWARTZ:

4 Q. Ms. Hupp, you have testified previously and

5 given information that you were given an insurance policy,

6 the Beneficiary of the insurance policy that had previously

7 been in the name of Russell Faria was changed to you; is that

8 correct?

9 A. Yes.

10 Q. And that policy had been approximately eight to

11 ten years old in the name of Russell Faria?

12 A. I don't know any of that.

13 Q. But it was on Betsy's life?

14 A. Correct.

15 Q. And your testimony is the Friday before, which

16 would be the 23rd, you and Betsy went to a library and Betsy

17 changed the policy to you?

18 A. Yes.

19 Q. Made you the Beneficiary?

20 A. Yes.

21 Q. I'm going to show you what I've marked as

22 Defendant's Exhibit C. Can you see if that's, is that in

23 fact a copy of what the policy is?

24 MR. SCHWARTZ: Your Honor, it's a business

25 record. I would submit it is in fact a copy of the policy.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
374

1 A. What did it say, what? I'm sorry.

2 Q. (By Mr. Hicks) The first page is irrelevant to

3 you.

4 A. Which first page?

5 Q. With the Exhibit sticker on it. What I'm

6 handing to you is a copy of the life insurance policy. That

7 policy that was given to you from Betsy was in the amount of

8 $150,000; is that correct?

9 A. Correct.

10 Q. And that was changed four days before her

11 death?

12 A. Correct.

13 Q. To you from her husband?

14 A. I don't know who was on it before that. She

15 changed it to me.

16 Q. And do you know if that policy was ever mailed?

17 A. I assume it was mailed. We did go to the post

18 office on Friday, one of our errands that we ran together.

19 Q. When you spoke to the police that following

20 morning, the morning of the 28th at 6 a.m., the policy came

21 up a couple hours into the interview, correct?

22 A. I told them, yes.

23 Q. And it was discussed?

24 A. I suppose it was.

25 Q. And it was asked of you if that policy was ever


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
375

1 mailed?

2 A. Okay.

3 Q. Correct?

4 A. Possibly, yes. Probably.

5 Q. Your response was, "I have no idea. I have no

6 idea."

7 A. I don't have 100 percent idea. I don't know.

8 We did go to the post office. She had to mail some things.

9 I mailed some things. Was that one of them? I don't know.

10 Q. So your testimony is you have no idea and

11 that's what you told the police, you have no idea if it was

12 mailed?

13 A. I'm not 100 percent sure, no.

14 Q. You never, in this four-hour interview, told

15 the police you went to the post office with her after the

16 policy changed, did you?

17 A. I don't know.

18 Q. You didn't, did you?

19 A. Okay. I don't know.

20 Q. All right. Yet when you talked to the

21 insurance company after she was deceased, you told the

22 insurance company that you went to the post office with her

23 to mail it?

24 A. Yes.

25 Q. That's correct?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
376

1 A. Yes.

2 Q. Yet you failed to tell the police that after

3 the death, correct?

4 A. I suppose, yeah.

5 Q. And --

6 A. I didn't see any, I still don't see any

7 relevance in saying that to anybody --

8 Q. All right.

9 A. -- at the time.

10 Q. At the time, you didn't think it was relevant

11 after your friend died that she had just changed the

12 insurance policy to you?

13 A. No. I do think that is and that's why I told

14 them about it. Now whether we went to the post office -- I

15 had just been told she was killed. I told them everything I

16 knew. That she had changed that, and I told them all I knew

17 that I thought of at that moment.

18 Q. You told them that, well, you found out later

19 the policy was not received at the insurance company until

20 after her death?

21 A. That's correct.

22 Q. Nobody knows how it was received. They haven't

23 said if it was post marked, e-mailed or any of that?

24 A. I do know.

25 Q. You do know?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
377

1 A. Yes.

2 Q. How was it received?

3 A. From State Farm?

4 Q. Yes.

5 A. Well, it was received and they said that,

6 because of the holidays, it was scanned in.

7 Q. It was scanned in on the 23rd after her death.

8 I'm sorry, on the 28th after her death, correct?

9 A. That, I don't know.

10 Q. Now why did Betsy change that policy to you?

11 What information were you given?

12 A. She said that she wanted, she just wanted to

13 change it to me. She didn't want whoever was on it and we

14 had talked about Russ.

15 I assumed it was Russ on it any longer, and she

16 was changing on all her policies. She had her sister as a

17 secondary on one of the policies.

18 Q. On that policy, correct?

19 A. That, I don't know.

20 Q. All right. And?

21 A. And she was going to change another policy over

22 to her cousin that also had breast cancer.

23 Q. When you were talking to the police that next

24 morning, you told the police that Betsy said, well, my

25 daughters are older. If could you give them some money, be my


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
378

1 Beneficiary and make sure my kids get it when they need it.

2 Did you tell the police that the next morning?

3 A. I may have.

4 Q. Yes? But you told the insurance company, when

5 you were interviewed by them, that her daughters were to

6 receive no money from this insurance policy because the older

7 one had been in trouble with drugs and the younger one had

8 blown her money from an SSDI settlement she had received.

9 Did you tell them that?

10 A. Say that again.

11 Q. That her daughters were to receive no money

12 from this policy because the older one had a drug problem and

13 would blow it and the younger one had blown through money

14 from an SSDI settlement, I guess a Social Security Disability

15 settlement?

16 A. No.

17 Q. You didn't say that?

18 A. No.

19 Q. So if it's in that record that I submitted,

20 that would be incorrect?

21 A. As far as I know, I don't even know if one had

22 SSDI or whatever. I don't know what you are talking about.

23 MR. SCHWARTZ: Your Honor, I would argue the

24 document will speak for itself, and I would submit for the

25 record that it says (as read), "Pamela explained that per --


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
379

1 MR. HICKS: I am going to object. This is

2 hearsay.

3 MR. SCHWARTZ: Right. But this is an Offer of

4 Proof. I would bring in -- what I would do, Your Honor, --

5 MR. HICKS: Okay.

6 MR. SWANSON: There's a Business Records

7 Affidavit.

8 MR. HICKS: I understand.

9 MR. SCHWARTZ: It's a Business Records

10 Affidavit. I'm bringing this into the record.

11 (As read) "Per the insured, Pamela explained

12 that she did not want her daughters to receive the money from

13 this life insurance policy because the older one had been in

14 trouble with drugs and the younger one had blown her money

15 from SSDI money she had received."

16 Your Honor, I would submit Defendant's

17 Exhibit C.

18 THE COURT: Which is for what?

19 MR. SCHWARTZ: It's the copy of the Business

20 Records Affidavit and the insurance policy itself that had

21 been altered, along with the documentation for purposes of my

22 Offer of Proof.

23 THE COURT: Any objection by the State for

24 purposes of the Offer of Proof?

25 MR. HICKS: No.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
380

1 THE COURT: Exhibit C will be admitted into

2 evidence for the Offer of Proof.

3 MR. SCHWARTZ: Your Honor, I did have a couple

4 more questions, if I may?

5 THE COURT: Okay.

6 Q. (By Mr. Schwartz) Betsy had been in life

7 insurance, as you had, for approximately ten years; is that

8 correct?

9 A. She was in it longer than I was.

10 Q. And Betsy dealt with these things. Such as,

11 Betsy would have absolutely known that, had she wanted the

12 money to go to her daughters, she could have put it in a

13 Trust for her daughters?

14 A. Absolutely, or made one a Beneficiary. I do

15 believe the oldest daughter was of age at that time.

16 Q. She could have done that or she could have

17 simply created a Trust and made you, if she trusted you, she

18 could have made you the Trustee of that?

19 A. There's probably a hundred different ways she

20 could have done it, but she would have known all of them.

21 Q. But instead of doing that, she simply signed

22 everything over to you to no secondary Beneficiary?

23 A. That's correct.

24 Q. If you would have died, what would have

25 happened to that money?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
381

1 A. I have no idea.

2 Q. You were in insurance for ten years?

3 A. I don't know if she had a second Beneficiary on

4 there.

5 Q. In the policy she gave you, you didn't know?

6 A. I did not read it, if that's what you're

7 asking. No, I didn't know if there was a secondary on there

8 or what.

9 Q. You didn't read the policy she gave you?

10 A. No. Are you talking about the whole policy?

11 No, I didn't read the policy.

12 Q. You didn't read anything. So you don't know if

13 there was a secondary Beneficiary.

14 So you don't know what would have happened to

15 that money if something would have happened to you after

16 Betsy had died?

17 A. That's correct. I don't know what would have

18 happened to that because I don't know, other than her

19 changing the Beneficiary to me, first in line, I don't know

20 what else she had on there.

21 Q. If there is no secondary Beneficiary, it would

22 go to your next in line, correct?

23 A. Probably.

24 Q. So if something happened to you, your husband,

25 Mark Hupp, would have gotten that $150,000?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
382

1 A. Probably.

2 MR. SCHWARTZ: Nothing further.

3 THE COURT: Anything from the State with

4 respect to this Offer of Proof?

5 MR. HICKS: Yes, just a couple things.

6 CROSS-EXAMINATION

7 BY MR. HICKS:

8 Q. Pam, when you were being interviewed by law

9 enforcement, who brought up this issue of the insurance

10 policy and the fact that the Beneficiary had been changed

11 into your name?

12 A. I did.

13 Q. All right.

14 A. They didn't know anything about it.

15 Q. So when you were talking to law enforcement,

16 they didn't ask you about insurance policies? You just told

17 them that this had happened?

18 A. That's correct.

19 Q. Okay. When you spoke with them that morning,

20 was the honest answer about whether she had mailed this

21 insurance policy in, that you didn't know for sure if she had

22 mailed it in or not?

23 A. I didn't know for sure. I know we went to the

24 post office and we both had things to mail and I told Mr.

25 Schwartz, you guys in the deposition. Don't know if I told


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
383

1 the police that. I tried to go over everything we had done

2 on Friday. Might have missed that. I don't really see the

3 importance in that, anyway, but --

4 Q. I understand, but you were just telling the

5 police you didn't know for sure what she mailed?

6 A. Correct.

7 Q. You mailed your own stuff?

8 A. That's correct.

9 Q. All right. Now, I guess, later when you talked

10 to the insurance agent or something, you told them at that

11 time you believed that she had mailed it?

12 A. Yes.

13 Q. And that was based upon information that you

14 had subsequently learned after having spoken with law

15 enforcement that morning?

16 A. Yes. In talking to other people and pieces of

17 information that they had received from law enforcement and

18 things like that.

19 On the other hand, I was told that Russ was

20 still on the policy. So I didn't know. I didn't know what

21 was going on with it. Didn't know if it had really been

22 mailed. Don't know.

23 Q. Where did this all happen, this change of

24 Beneficiary?

25 A. At the library.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
384

1 Q. What library?

2 A. In Winghaven. That's where I live.

3 Q. Who was there? You and --

4 A. Me and her. People in the library. A few

5 people. The librarians. I think there was two of them.

6 Q. Okay. Did one of them have to witness this?

7 A. Yes. She took the paperwork up to one of the

8 librarians and she had to have it notarized. I didn't have

9 to sign anything or do anything. Never even read it.

10 Betsy had changed her policies multiple times.

11 That was kind of Betsy, depending on who she was mad at at

12 the time.

13 Q. So again, you had known her for ten years and

14 this was not unusual for her to be doing this?

15 A. Absolutely not and for people in the insurance

16 world, it's not unusual.

17 Q. When you were asked about a Trust -- now you're

18 aware that -- does it cost anything, did it cost Betsy

19 anything at all to make this change in Beneficiary?

20 A. No. It's a piece of paper.

21 Q. Okay.

22 A. She gets it notarized.

23 Q. But to have a Trust drawn up, that's going to

24 cost a little bit of money, isn't it?

25 A. For her?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
385

1 Q. Yes.

2 A. Yes. It cost me $1,400 to draw up a Trust for

3 the girls.

4 Q. Okay. And so that's what I'm getting at is,

5 did Betsy have a lot of discretionary money to go ahead and

6 take --

7 A. Absolutely not. She had gone for food stamps

8 two weeks before that.

9 Q. All right. So this was an easy way for her to

10 keep the money from going to the defendant, and her purpose

11 was to try to assure that it got to her girls?

12 A. That's correct because her Mom and Dad had just

13 divorced. She had a sister that was being evicted from her

14 home and she had another sister that was just married and

15 didn't have very much money.

16 So she didn't want to cause a lot of family

17 problems. There was a lot of family stuff going on already,

18 so.

19 Q. Okay. And then finally, you ultimately did

20 receive -- how much money did you receive?

21 A. I received a check for $150,000.

22 Q. What did you do with that money?

23 A. I put $100,000 in a Trust for the girls and

24 $50,000 -- my other girlfriend died of breast cancer in

25 August and she has a 12-year-old daughter that I'm trying to


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
386

1 help.

2 Q. All right. So you used the money for that.

3 Are you using that money for that?

4 A. Yes.

5 Q. All right. But $100,000 is in a Trust fund for

6 the girls?

7 A. Absolutely. I have the paperwork right here.

8 MR. HICKS: Thank you.

9 REDIRECT EXAMINATION

10 BY MR. SCHWARTZ:

11 Q. When did you create that Trust?

12 A. We started working on it --

13 Q. When did you create it?

14 A. I'm sorry?

15 Q. When was it done?

16 A. It was official, I think, in July.

17 Q. July of? Year?

18 A. June or July.

19 Q. Before this was previously set for trial?

20 A. I'm sorry? I could have had it set probably

21 two trial dates ago but it ended up getting cancelled.

22 I got it done when I could get it done. I have

23 a son with cerebral palsy. My mother just died on the 31st

24 of Alzheimer's that I was taking care of.

25 So it's taken me a bit to get around to it, but


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
387

1 if it was done for Court, I probably would have done it the

2 first time around.

3 Q. Is it a Revocable or Durable Trust?

4 A. It is a Revocable.

5 Q. Revocable meaning you can revoke it at any time

6 you want?

7 A. Absolutely.

8 Q. You said Betsy changed her insurance policy all

9 of the time depending on who she was mad at, correct?

10 A. Yeah.

11 Q. Do you have that policy in front of you?

12 A. What policy?

13 A. The life insurance policy where she put you as

14 the Beneficiary where you got the $150,000?

15 A. Do I have that policy?

16 Q. Yes.

17 A. No.

18 Q. Is it still sitting in front of you?

19 A. Oh, this? Okay.

20 MR. SCHWARTZ: Well, again, the policy speaks

21 for itself, Your Honor. I would proffer to the Court this

22 policy has never been changed and was in the name of Russell

23 Faria for the previous ten years or so.

24 THE COURT: Is that your Exhibit C or is that

25 something else?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
388

1 MR. SCHWARTZ: It's under State's or

2 Defendant's Exhibit C.

3 THE COURT: Exhibit C was already admitted into

4 evidence for purposes of the Offer of Proof.

5 Q. (By Mr. Schwartz) Now you said you went to the

6 post office with Betsy?

7 A. Uh-huh.

8 Q. You never mailed anything, did you?

9 A. Actually, I don't know if I had mailed my

10 mother-in-law's Christmas cards and a few other ones out of

11 state. I don't remember.

12 Q. Well, you said you went. You were going to

13 mail some stuff for your mother but you changed your mind

14 because you were going to see your mother and you gave her

15 the stuff instead?

16 A. Yes. I went and picked her up after we left

17 the post office. It was my mother-in-law.

18 Q. You indicated you changed your mind and didn't

19 actually mail anything. Would that be correct?

20 A. I don't know. I don't remember.

21 MR. SCHWARTZ: Nothing further.

22 THE COURT: State, may this witness step down?

23 MR. HICKS: Yes, Your Honor.

24 THE COURT: Thank you.

25 Ma'am, you are free to step down. You may go


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
389

1 or stay as you choose.

2 MR. HICKS: As part of this Offer of Proof, if

3 the Court had been inclined to let them go down that path in

4 particular to this issue here, we would then have called the

5 librarian who would have testified that she observed Betsy

6 sign this, change the Beneficiary. She was the Notary on it.

7 That she didn't seem to be under duress or upset or anything.

8 That it was just something -- she didn't have a problem with

9 it, that she didn't perceive any problems with it.

10 I don't know if they will stipulate to that.

11 If they won't -- In a few minutes, we had released her after

12 -- and now she's coming back.

13 MR. SWANSON: We would stipulate that the

14 librarian recalls two women coming in with a form requesting

15 that she, the librarian, witness their executing the form.

16 Whether or not that was this Change of Beneficiary form,

17 whether or not it was Betsy Faria who did it, that's all

18 debatable unless there is a report somewhere.

19 MR. HICKS: This person also testified that

20 Betsy Faria did check out a book from the library that day.

21 I understand that this--

22 MR. SCHWARTZ: We would agree with those facts.

23 We would not consent that she could say what form was signed

24 unless you agree --

25 THE COURT: Well, did she keep a notary log?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
390

1 MR. SWANSON: It was never notarized.

2 MR. SCHWARTZ: We would stipulate she would say

3 two women approached her. We would stipulate that Betsy

4 Faria checked out a book that day and that she did witness

5 them signing a form, but she didn't know what the form was.

6 MR. HICKS: That's very fair and reasonable.

7 We appreciate that. Thank you.

8 THE COURT: Okay.

9 (A short recess was taken.)

10 (Recess.)

11 THE COURT: Are we ready to bring the jury in?

12 MS. ASKEY: Yes, Your Honor.

13 THE COURT: All rise.

14 (The jury entered the Courtroom.)

15 THE COURT: For the record, the Court will call

16 the jurors' numbers. If you would please indicate by raising

17 your hand. You may be seated. Thank you.

18 Juror Number 2, 3, 4, 11, 12, 15, 27, 29, 35,

19 38, 39, 44, 51, 58 and 61. The record will reflect that all

20 jurors are present.

21 State may proceed with further evidence.

22 MR. HICKS: May we approach real quick?

23 THE COURT: Yes.

24 (Discussion at the bench.)

25 MR. HICKS: We are getting ready to introduce


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
391

1 the 9-1-1 call. There had been a transcript prepared that

2 goes along with the 9-1-1 call.

3 What we failed to do here is provide the Court

4 with the instruction that is to be read to the jury about

5 how, if there's any discrepancy between what they are reading

6 and what they are hearing, they go with what they are

7 hearing. That's the standard one. I think it's in the book.

8 I'm sorry I didn't get it to you.

9 MS. SCHWARTZ: There's a transcript?

10 MS. ASKEY: Yes.

11 MR. SCHWARTZ: I've never seen it.

12 MS. ASKEY: It's Jenna Walter's report. You

13 and I talked about this on the phone.

14 MR. SWANSON: That's fine.

15 MR. SCHWARTZ: I don't want it going to the

16 record.

17 MS. ASKEY: It never goes into the record. Not

18 for them to take back but in the appeal.

19 MR. SCHWARTZ: They are not seeing this, are

20 they?

21 MS. ASKEY: Probably, because I just scanned

22 it. I can go in and redact that.

23 MR. SCHWARTZ: I have an issue with that as

24 well.

25 Judge, I'm not objecting to any chain of


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
392

1 custody of any kind. I'm objecting to the -- I'm not

2 objecting to the plain call. I didn't know that this was a

3 transcript. It says the charge Murder of the First at the

4 top.

5 MS. ASKEY: I didn't realize it said it at the

6 top either. It says Murder First, family weapon, which is

7 from the Major Case Squad heading, but we can take that off

8 if that needs to come off.

9 THE COURT: Run it on the copier and take it

10 off.

11 MR. SCHWARTZ: There's a copier right there.

12 MS. ASKEY: That's fine. Then put it in there

13 then.

14 MR. SCHWARTZ: All right.

15 MS. ASKEY: But we did discuss this.

16 MR. SCHWARTZ: No, we didn't. Not this.

17 MR. SWANSON: We did.

18 MS. ASKEY: We did.

19 MR. SCHWARTZ: I didn't.

20 THE COURT: If you can get me a key word of

21 what that would be called. I have to search for the

22 instruction. Is it called 9-1-1?

23 (Discussion off the record.)

24 THE COURT: 310.19.

25 MR. HICKS: I apologize. We didn't provide


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
393

1 that.

2 We're okay with them not getting the

3 transcript. This is really because --

4 THE COURT: It says only as they listen to the

5 tape. If accuracy remains at issue, foundation has to be

6 laid by a person who prepared the transcript.

7 Transcripts themselves should not be admitted

8 in evidence unless you both stipulate as to the accuracy and

9 agree to their use. Should be corrected after the tape is

10 played. I'm reading to myself.

11 MS. ASKEY: I was just going to put it up on

12 the board.

13 MR. HICKS: They were going to put it up on the

14 board.

15 MR. SCHWARTZ: That's fine. Take that out.

16 MS. ASKEY: She's doing that right now.

17 It's Exhibit 8.

18 THE COURT: The audio recording of the alleged

19 conversation between who and who?

20 MS. ASKEY: 9-1-1 and --

21 MR. SWANSON: -- Russell Faria.

22 THE COURT: A transcript of the audio recording

23 is provided to you. As you listen to the audio, it's not

24 evidence. It's been provided to assist you in following the

25 audio.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
394

1 (Discussion was held off the record. End of

2 discussion.)

3 MS. ASKEY: The State would call Margie

4 Harrell.

5 THE COURT: Ms. Harrell, if you would please

6 come forward and raise your right hand for the Clerk to be

7 sworn.

8 MARGIE HARRELL,

9 a witness, having been sworn by the Circuit Clerk to tell the

10 truth, the whole truth and nothing but the truth, so help you

11 God, under the pain and penalty of the Perjury Laws of

12 Missouri, testifies as follows:

13 THE COURT: If you will have a seat at the

14 witness stand.

15 DIRECT EXAMINATION

16 BY MS. ASKEY:

17 Q. Margie, please state your name for the record?

18 A. Margie Harrell.

19 Q. Where are you employed?

20 A. Lincoln County 9-1-1.

21 Q. How long have you been employed there?

22 A. Going on 14 years.

23 Q. And what are your duties at 9-1-1?

24 A. I am the director of 9-1-1.

25 Q. And as a director, what do your duties entail?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
395

1 A. I am pretty much the keeper of records. I keep

2 all audios. I have to make audios.

3 I hire, dismiss people from our organization.

4 I, as well, as make sure that all of the

5 training is done within our division, as well as do the

6 scheduling, call-taking.

7 Anything involved in 9-1-1, I do.

8 Q. Okay. And were you employed in that capacity

9 on December 27th, 2011?

10 A. Yes, ma'am.

11 Q. And just for basic knowledge, would you explain

12 to the jury, logistically, what happens when a person dials

13 9-1-1?

14 A. Yes. When a person first calls 9-1-1, the call

15 comes in and on the screen it shows if it comes from a land

16 line or cellular phone.

17 And if it comes from a land line it shows the

18 phone number, the name that that residence belongs to and the

19 address.

20 At that point, it comes in. Our 9-1-1

21 dispatcher requests, "Lincoln County 9-1-1. What is the

22 address of your emergency?" Then a series of questions

23 entails.

24 They tell us what's going on. We continue to

25 ask further questions. We put all of that information into


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
396

1 what's called our CAD sheet, which is a computer program that

2 documents everything that's going on at that point in time so

3 that we have a record of it. As well as that call is started

4 to be recorded as soon as that call comes in.

5 Q. And what does "CAD" stand for?

6 A. Computer Aided Dispatch.

7 Q. And so in addition to the audio recording, is

8 it fair to say that the CAD memorializes that conversation as

9 well?

10 A. Yes, ma'am.

11 Q. But not in its entirety?

12 A. No.

13 Q. Prior to being a Supervisor at 9-1-1 here in

14 Lincoln County, did you have the opportunity to be a

15 dispatcher yourself?

16 A. Yes, ma'am.

17 Q. And have you ever in the course of your

18 employ -- Did you say sixteen years?

19 A. Fourteen.

20 Q. Fourteen years?

21 A. Yes, ma'am.

22 Q. Have you ever had the opportunity to take calls

23 or assist callers when a person has called in a suicide?

24 A. Yes, ma'am.

25 Q. And did you have the opportunity to also listen


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
397

1 to and review this particular 9-1-1 call from December 27th,

2 2011, asking for a dispatch to 130 Sumac Drive?

3 A. Yes, ma'am.

4 Q. And were there any differences between that of

5 which you heard --

6 MR. SWANSON: Objection. May we approach, Your

7 Honor?

8 THE COURT: Yes.

9 (Discussion at the bench.)

10 MR. SWANSON: It sounds to me as if she's

11 trying to qualify this witness as an expert and then ask her

12 to speculate on the call, which she hasn't qualified her as

13 an expert yet. And if so, I'm going to object on that. Then

14 I'm going to object that it calls for speculation.

15 MS. ASKEY: I'm asking for her observations.

16 MR. SWANSON: She didn't take the call. She

17 observed it later.

18 MS. ASKEY: Right. She's listened to it.

19 She's reviewed it. She's the keeper of records. We've

20 discussed it and stipulated to it coming in.

21 MR. SWANSON: What relevance does this have?

22 MS. ASKEY: What do you mean?

23 MR. SWANSON: What relevance?

24 MR. SCHWARTZ: What is the difference between

25 this and other calls?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
398

1 MS. ASKEY: I think the relevance is to her,

2 the perception of other people that call in for suicide, have

3 called in suicide, this call for suicide, she's now listened

4 to it.

5 It didn't even have to be suicide for that

6 matter. Any call that comes in, she's going to tell you that

7 never has she taken a call wherein a person is hysterical and

8 then stopped being hysterical simply to answer questions and

9 then goes back into hysterics.

10 MR. SWANSON: So you are asking her to comment

11 on the veracity of the call? It's the province of the jury.

12 MS. ASKEY: No, not the veracity. All I'm

13 asking is for her to comment on what she observed when she

14 listened to the call.

15 MR. SCHWARTZ: Your Honor, the call speaks for

16 itself. She can't interpret what he's feeling or what he's

17 doing.

18 MS. ASKEY: I'm not asking her to interpret,

19 but she can say what she observed.

20 THE COURT: Can't interpret but she can answer

21 questions of her own experience generally.

22 MR. SWANSON: My understanding, from what Ms.

23 Askey has said is that she's going to ask the witness to

24 comment on whether or not the caller's demeanor and responses

25 are appropriate.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
399

1 In that case, the call speaks for itself. The

2 jury can hear it and they can argue about this, but having

3 her voice an opinion as to that invades their province.

4 THE COURT: It's going to depend on what they

5 ask. I mean, I agree with you depending on what they ask.

6 MS. ASKEY: What did you say, Your Honor?

7 THE COURT: I just said it is going to depend

8 on what you ask. I mean, I agree at some point it crosses

9 the line.

10 MS. ASKEY: She has an experience that they

11 don't. She's taken oodles of calls over fourteen years.

12 THE COURT: You are making a judgment call of

13 what to tell the people but she's --

14 MR. SWANSON: But she's not the one who made

15 that call.

16 MS. ASKEY: Fair enough, but that being said,

17 we had an understanding that I didn't have to call the

18 caller. I could call the keeper of records who reviewed the

19 call and reviewed the transcript. You can't go back now.

20 MR. SWANSON: That's completely different.

21 MS. ASKEY: I suppose you can, but you --

22 MR. SWANSON: That's completely different. You

23 are talking about the admissibility. We had an agreement

24 about the admissibility, not that you can bring somebody in

25 to start armchair quarterbacking the call and saying, oh, I


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
400

1 don't think he would have acted like this if it was legit,

2 which is what you want to do.

3 MS. ASKEY: No, it's not at all. I'm asking

4 what her observations were.

5 MR. HICKS: I don't think that we're trying to

6 elicit, that it goes as far as you think that we're trying to

7 go. I think what she's trying to elicit here is that, I've

8 taken calls, I've listened to calls where the person is

9 claiming suicide or it's just --

10 MS. ASKEY: Whatever.

11 MR. HICKS: -- whatever, and they have been

12 hysterical, and my experience has been is that when they're

13 hysterical, you can't get anything articulate from them.

14 This was unusual in the sense that there was

15 hysteria and then stop, and you could get clear articulation

16 from him.

17 MR. SCHWARTZ: That's a judgment call that

18 should be left to the jury.

19 THE COURT: I think she can describe that. She

20 just can't further an opinion on what it means.

21 MR. SCHWARTZ: She can talk about other calls.

22 MR. SWANSON: How this call compares to other

23 calls. That's the question.

24 THE COURT: I don't think she is comparing it.

25 MR. SCHWARTZ: Ask the question.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
401

1 MS. ASKEY: Then how do you want me to ask it?

2 In your experience -- Well, of course, you don't want it

3 asked. The truth of the matter is --

4 MR. SCHWARTZ: It's not a relevant question

5 that she's qualified about how other calls were made. It has

6 no bearing on this call whatsoever, and how other people

7 responded has no bearing on this call whatsoever.

8 MS. ASKEY: When the police officers stop

9 somebody for drunk driving and they're swerving all over the

10 road, it's because that's what they observed. Swerving all

11 over the road. They think that that's an indicator --

12 MR. SCHWARTZ: And they are the officer. That

13 has nothing to do with past -- that has nothing to do with

14 other people.

15 MS. ASKEY: Based on their training and

16 experience, they know that to be --

17 THE COURT: I'm going to allow it. You can

18 object when she asks it if you think it's not, but I haven't

19 heard anything that's objectionable at this point.

20 (End of bench discussion.)

21 Q. (By Ms. Askey) Margie, how many calls would

22 you say you've either taken yourself or listened to later in

23 your position?

24 A. To put an actual number to it? I can't.

25 There's thousands of them.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
402

1 Q. Okay.

2 A. Fourteen years, there's quite a few.

3 Q. And in those thousands of calls that you have

4 either dealt with personally or listened to after the fact,

5 have you had the opportunity to deal with someone who's

6 hysterical?

7 A. Yes, ma'am.

8 Q. And how easy is it to derive information from a

9 person in hysteria?

10 A. It's extremely difficult.

11 Q. When you reviewed the call from Russ Faria, did

12 you find him to be hysterical?

13 MR. SWANSON: Objection, Your Honor. Based on

14 my prior objection previously.

15 THE COURT: What's the legal objection?

16 MR. SWANSON: It's invading the province of the

17 jury. Calling for speculation.

18 THE COURT: Overruled.

19 A. Can you repeat the question?

20 Q. (By Ms. Askey) When you reviewed the call from

21 the defendant?

22 A. Yes, ma'am.

23 Q. Did you find the caller to be hysterical?

24 A. Yes, ma'am. At first.

25 Q. And was he hysterical in the manner in which


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
403

1 you previously described wherein you couldn't get any

2 information from that individual?

3 A. No, ma'am.

4 Q. And was that the same or different than your

5 prior experiences?

6 A. Not the same. Normally if we have an

7 hysterical caller, it's very hard to derive information

8 through the course of the call.

9 They are constantly trying get them to breathe.

10 You're more trying to get them to breathe to where you don't

11 have a second patient at the scene than you are anything

12 else. It's hard to get further information from them.

13 Whereas with this one, there was hysteria.

14 Then it was, you asked a question, you get an answer. It

15 would stop. You get that answer, and then it would go back

16 to be hysteria again.

17 Q. When questions were posed, the hysteria would

18 subside, the answer would be given and then the hysteria

19 resume?

20 A. Yes, ma'am.

21 Q. I'm going to show you what's been marked as

22 State's Exhibit 7.

23 A. Yes, ma'am.

24 Q. Do you recognize that?

25 A. Yes, I do.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
404

1 Q. What is that?

2 A. That's a copy of the 9-1-1 recording. It's an

3 audio disk.

4 Q. Are those your initials?

5 A. Yes, they are.

6 Q. Are those then provided to the Sheriff's

7 Department, and subsequently to my office, for discovery

8 purposes?

9 A. Yes, ma'am.

10 Q. I'm also going to show you what's been marked

11 as State's Exhibit 8. Do you recognize that?

12 A. Yes, ma'am.

13 Q. And what is that exactly?

14 A. That is the narrative in reference to the

15 9-1-1.

16 Q. Have you had a chance to listen to both the

17 9-1-1 call and review that with the transcript narrative that

18 was typed?

19 A. Yes, ma'am.

20 Q. And does it accurately depict that which is

21 contained in the audio recording?

22 A. Yes, it does.

23 MS. ASKEY: At this time, Judge, I would ask

24 for State's Exhibit 7 to be admitted.

25 THE COURT: Any objection to State's Exhibit 7?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
405

1 MR. SWANSON: No, Your Honor.

2 THE COURT: Exhibit 7 is admitted into

3 evidence.

4 MS. ASKEY: At this time, Judge, I would ask to

5 present the transcript, which is in State's Exhibit 8, to the

6 jury to assist them while listening to the 9-1-1 call.

7 THE COURT: Is there any objection to State's

8 Exhibit 8 being displayed, which is the transcript of Exhibit

9 7, while Exhibit 7 is being played for the jury?

10 MR. SWANSON: No objection, Your Honor.

11 THE COURT: Thank you.

12 The Court will then read to the jury Limiting

13 Instruction 310.19.

14 State's Exhibit Number 7 is an audio recording

15 of the alleged conversation between 9-1-1 and Russell Faria.

16 This Exhibit has been admitted into evidence

17 and will now be played for you. A transcript of the audio

18 recording is being provided to you to read as you listen to

19 the audio recording.

20 This transcript is not evidence and is being

21 provided to you to assist you in following the audio

22 recording.

23 You are instructed, however, that the audio

24 recording and not the transcript is the evidence. Should

25 there be any discrepancies between the audio recording and


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
406

1 the transcript, you are to be guided by what you hear on the

2 audio recording.

3 Do you need to move so you can see it? Can you

4 guys see? Okay.

5 (State's Exhibit Number 7, an audio

6 recording of a 9-1-1 call from Russell Faria, was played for

7 the jury.)

8 MS. ASKEY: The State doesn't have any further

9 questions for this witness.

10 THE COURT: Mr. Schwartz?

11 MR. SCHWARTZ: Mr. Swanson is going to

12 question.

13 THE COURT: Mr. Swanson?

14 MR. SWANSON: Thank you, Your Honor.

15 CROSS-EXAMINATION

16 BY MR. SWANSON:

17 Q. Ms. Harrell, you said something about the CAD

18 system?

19 A. Yes.

20 Q. That's Computer Assisted Dispatcher?

21 A. Computer Aided Dispatching, yes.

22 Q. It creates a record when a call comes in?

23 A. Yes.

24 Q. Did you review that record when you made the --

25 A. I print a copy of it every time I make an


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
407

1 audio.

2 Q. What time did this call come in?

3 A. I believe it was 2140 hours. I don't have a

4 copy of the CAD sheet right in front of me.

5 MR. SWANSON: May I approach, Your Honor?

6 THE COURT: Yes.

7 Q. (By Mr. Swanson) What I've just handed you is

8 the Occurrence Report for this call; is that right?

9 A. Yes, that's the CAD sheet.

10 Q. What time does it say the call came in?

11 A. 2140.

12 Q. How many seconds?

13 A. Ten seconds.

14 Q. May I have that back?

15 A. Yes.

16 Q. You testified that you couldn't even number how

17 many calls you've taken when you were in dispatch?

18 A. Right, because I still work the Center now as

19 well, too.

20 Q. When someone is hysterical, what is your

21 training as dispatch, as 9-1-1 dispatch tell you to do?

22 A. You continue to ask questions. You try to get

23 them to breathe. They need to try to calm down. You try to

24 get them to breathe.

25 Q. That's what the 9-1-1 dispatch person did here?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
408

1 A. Yes.

2 Q. They tried to calm --

3 A. She kept telling him to breathe.

4 Q. And to calm down?

5 A. Yes.

6 Q. Sometimes she asks him questions that are kind

7 of distracting. Go get the medication. What was your wife's

8 name?

9 A. Right.

10 Q. She would ask that when he was not hysterical?

11 A. Yes.

12 Q. That's pretty normal for a call for someone who

13 has found something horrifying?

14 A. You have to ask questions, yes, you do.

15 Q. Someone who is horrified?

16 A. Yes.

17 Q. They are having a hard time keeping it

18 together. They are having a hard time answering questions?

19 A. Yes.

20 Q. Your job is to calm them down?

21 A. Attempt to calm them down, yes.

22 Q. That's what this dispatch person did?

23 A. And continue to ask questions, yes.

24 Q. When did Mr. Faria become calm?

25 A. When she would ask questions.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
409

1 Q. Like her training directed?

2 A. Yes.

3 Q. So you said you have taken innumerable calls?

4 A. Right.

5 Q. How many from Mr. Faria?

6 A. Me, personally? I've never taken a call from

7 Mr. Faria.

8 Q. How many involving the Faria household?

9 A. Me, personally? No.

10 Q. How many involving a wife who is diagnosed with

11 terminal cancer with a husband who has found her dead after

12 coming home?

13 A. One.

14 MS. ASKEY: Objection, Judge. Assumes facts

15 not in question.

16 A. Recently, though.

17 MR. SWANSON: I'm sorry. Is that not the facts

18 we've heard today?

19 MS. ASKEY: Not in evidence. Sorry.

20 MR. SWANSON: They haven't said that she was

21 dying of terminal cancer?

22 MS. ASKEY: Are you arguing with me?

23 MR. SWANSON: Yes, I am.

24 THE COURT: Overruled at this time. She can

25 answer.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
410

1 Q. (By Mr. Swanson) How many cases have you or

2 how many calls have you taken where someone, whose wife was

3 diagnosed with terminal cancer, came home and found them

4 dead?

5 A. I have recently taken one that I know of. As

6 to whether in the past, I can't specify.

7 Q. So when you said this is odd -- that's what you

8 said earlier. This is an odd audio?

9 A. I said that it's odd in reference to hysteria.

10 When you are talking to someone to try to get them to calm

11 down that they actually calm down to answer compatibly to be

12 able to get good information.

13 Q. But that's what your training requires you to

14 do?

15 A. Yes.

16 Q. That's what this dispatch person did?

17 A. Yes.

18 Q. Lincoln County Dispatch, where is that located?

19 A. 250 West College, Troy.

20 Q. Do you share a building with the Sheriff's

21 Department?

22 A. No, we do not.

23 Q. Do you deal with more than one agency besides

24 the Sheriff's Department?

25 A. Yes, we do.
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1 Q. Troy Police?

2 A. We dispatch every entity in Lincoln County,

3 whether it's law enforcement, fire or medical.

4 Q. Are your clocks synchronized?

5 A. Mine in my Center?

6 Q. The Center and St. Louis and the Sheriff's

7 Department?

8 A. We go with the atomic time clock. As to what

9 the Sheriff's Office or fire or medics go with, that I can't

10 state.

11 Q. So you guys don't get together to make sure the

12 watches are all synchronized?

13 A. No, because I go with the atomic clock and they

14 all call in for times off the CAD sheet.

15 Q. The time this call came in, you said it was

16 2140 and 10 seconds?

17 A. Yes. That's 9:40 p.m. and ten seconds. Sorry.

18 Military time. That's what we use in the Center.

19 Q. Just translated in my head.

20 MR. SWANSON: Nothing further.

21 THE COURT: State?

22 MS. ASKEY: Just briefly.

23 REDIRECT EXAMINATION

24 BY MS. ASKEY:

25 Q. Ms. Harrell, who do you show as the first


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
412

1 responder from the Police Department, the Sheriff's

2 Department? Do you show that on your CAD?

3 A. I don't have a copy of the CAD in front of me.

4 I'm sorry.

5 MS. ASKEY: Never mind. Withdrawn. Nothing

6 further.

7 THE COURT: Anything further by defense?

8 MR. SWANSON: No, Your Honor.

9 THE COURT: Thank you.

10 Thank you, Ms. Harrell. You may step down.

11 You are free to leave or stay as you choose.

12 Further evidence on behalf of the State?

13 MS. ASKEY: Yes, Your Honor. The State would

14 call Officer Chris Hollingsworth.

15 THE COURT: Chris Hollingsworth. Mr.

16 Hollingsworth, if you would step forward and raise your right

17 hand to be sworn by the Clerk.

18 CHRIS HOLLINGSWORTH,

19 a witness, having been duly sworn by the Circuit Clerk to

20 tell the truth, the whole truth and nothing but the truth, so

21 help you God, under pain and penalty of the Perjury Laws of

22 Missouri, testifies as follows:

23 THE COURT: Please have a seat at the witness

24 stand.

25 You may inquire when you are ready.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
413

1 MS. ASKEY: Thank you.

2 DIRECT EXAMINATION

3 BY MS. ASKEY:

4 Q. Please state your name for the record.

5 A. Chris Hollingsworth.

6 Q. And where are you employed?

7 A. Troy City Police Department.

8 Q. And what are your duties at the Troy City

9 Police Department?

10 A. I am a patrol officer.

11 Q. And how long have you been employed there?

12 A. Approximately three months.

13 Q. And prior to being employed as a patrol officer

14 for TPD, where were you employed?

15 A. Lincoln County Sheriff's Department.

16 Q. How long were you employed with Lincoln County?

17 A. Approximately five years.

18 Q. And what were your duties with Lincoln County

19 Sheriff's Department?

20 A. I was a patrol deputy and a canine handler.

21 Q. Officer Hollingsworth, can you describe to the

22 jury what a patrol deputy does on a day-to-day basis?

23 A. Responds to calls for service throughout the

24 County.

25 Q. And when you say "responds to calls", where do


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
414

1 those calls generate from?

2 A. As far as anywhere within the County. Who did

3 we get them from? Lincoln County Central Dispatch.

4 Q. You are dispatched to a specific location based

5 on 9-1-1's records; is that right?

6 A. Yes, ma'am.

7 Q. Were you employed in that capacity on

8 December 27th, 2011?

9 A. Yes, ma'am.

10 Q. And were you working that evening?

11 A. Yes, ma'am.

12 Q. Do you recall being dispatched to 130 Sumac

13 Drive in Troy, Missouri?

14 A. Yes, ma'am.

15 Q. And do you recall what the nature of that call

16 was?

17 A. It was a suicide.

18 Q. When you got the call, you believed you were

19 responding to a suicide; is that correct?

20 A. Yes, ma'am.

21 Q. How do you get that information?

22 A. My Central Dispatch provides that information

23 to me.

24 Q. They just let you know that your assistance is

25 needed at a specific place and what it's needed for, I guess?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
415

1 A. Yes, ma'am.

2 Q. Officer Hollingsworth, did you respond to that

3 address by yourself or was somebody with you?

4 A. I was the initial caller on the scene. Deputy

5 Castle and, at the time, Corporal Pirtle had responded.

6 Q. They hadn't responded yet?

7 A. They were behind me, but they had not responded

8 by the time I arrived.

9 Q. To go one step further, when 9-1-1 gets the

10 call and they call out a dispatch?

11 A. Yes, ma'am.

12 Q. It's fair to say that several patrol officers

13 may respond?

14 A. Yes, ma'am. Depending on the nature of the

15 call. Your zone officer takes the call, and then usually

16 your Supervisor will go. On suicides or violent calls, we

17 send more. Another zone officer will follow you in, as well.

18 Q. Who was the zone officer?

19 A. I was the zone officer for that zone.

20 Q. Okay. And who was your Supervisor?

21 A. Corporal Pirtle.

22 Q. So Corporal Pirtle was en route. You just

23 happened to arrive first?

24 A. Yes, ma'am.

25 Q. When you got to the residence at 130 Sumac, did


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
416

1 you enter?

2 A. I knocked on the door and then I entered the

3 residence.

4 Q. And all the while, are you on the radio with

5 9-1-1 dispatch?

6 A. I advised them that I was on scene and went and

7 knocked on the door and then walked inside the residence.

8 (State's Exhibit 9 marked for

9 identification.)

10 MS. ASKEY: Any objection?

11 MR. SCHWARTZ: No.

12 Q. (By Ms. Askey) Officer Hollingsworth, I'm

13 going to show you what's been marked as State's Exhibit 9,

14 which are four photographs. Do you recognize these?

15 A. Yes, ma'am.

16 Q. And what are these photographs of?

17 A. The inside of the residence.

18 Q. When you say "the inside", specifically, what

19 are, what portion of the inside of the residence?

20 A. This is the entryway here.

21 Q. Okay. Coming in from the front door?

22 A. Correct.

23 Q. So we're looking at the living room?

24 A. Yes.

25 Q. And does that fairly and accurately depict what


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
417

1 you saw when you gained entry to the home on December 27th,

2 2011?

3 A. Yes, ma'am.

4 MS. ASKEY: I would ask for State's Exhibit 9

5 to be admitted into evidence.

6 THE COURT: Any objection?

7 MR. SCHWARTZ: No, Your Honor.

8 THE COURT: State's Exhibit 9 is admitted into

9 evidence.

10 MS. ASKEY: If we could turn those lights down.

11 Q. (By Ms. Askey) Officer Hollingsworth, if you

12 would take a look at the first of State's Exhibit 9. Where

13 are you standing to get that reference point?

14 A. In the foyer.

15 Q. So just inside the front door?

16 A. Yes, ma'am.

17 Q. And if we go to the second picture, where are

18 you standing?

19 A. Still at the foyer, closer to the couch.

20 Q. And just at the top of the steps going to the

21 basement?

22 A. Correct.

23 Q. The third picture, are you still in the foyer

24 there?

25 A. Yes, ma'am.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
418

1 Q. But at the threshold of the living room, it

2 looks like?

3 A. Correct. And your hallway would be to your

4 right hand side.

5 Q. And then the staircase would be to the left and

6 just behind you?

7 A. Correct.

8 Q. Okay. And then the fourth picture is a

9 different point of view altogether, and where are you

10 standing there?

11 A. That is in the kitchen.

12 Q. Looking towards the hallway then, the foyer

13 would be on your far right?

14 A. Correct.

15 Q. Thank you. Now when you gained entry to the

16 house, how far in did you come?

17 A. To the -- if you look at this, the last

18 photograph.

19 Q. Right?

20 A. Roughly to the edge of the couch.

21 Q. The edge that's --

22 A. In the hallway here.

23 Q. In the hallway area?

24 A. Correct.

25 Q. So just to that far edge closest to the


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
419

1 hallway?

2 A. Correct.

3 Q. And at that point, did you see anyone?

4 A. I saw the female on the floor and I saw Mr.

5 Faria standing.

6 Q. And where was Mr. Faria standing?

7 A. Near the head of the couch near the female.

8 Q. So show me in the picture where you are talking

9 about?

10 A. In this area here.

11 Q. So he's like right out here in front of the

12 couch; is that correct?

13 A. Correct.

14 Q. But closer to the kitchen than you were?

15 A. Correct.

16 Q. And what, if anything, did he say to you when

17 you walked into the room?

18 A. As soon as I walked in, I looked down and saw

19 the female with the cut on her arm and the knife in her neck

20 and I requested him to exit the residence.

21 Q. Was there any point in time when you saw Betsy

22 Faria lying on the ground that you thought it was a suicide?

23 A. No, ma'am.

24 Q. Not even a split second?

25 A. No, ma'am.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
420

1 Q. How long would you say you were in the house

2 before you exited?

3 A. Less than a minute.

4 Q. I'm going to show you what's been marked as

5 State's Exhibit 10. Do you recognize that photograph?

6 A. Yes, ma'am.

7 Q. And what is that a photograph of?

8 A. That is Mrs. Faria.

9 Q. Mrs. Faria?

10 A. Correct.

11 Q. And do you recognize those clothes to be the

12 clothes that she was wearing when you entered the residence

13 on December 27th, 2011?

14 A. Yes, ma'am.

15 MS. ASKEY: I'd ask for State's Exhibit 10 to

16 be admitted into evidence.

17 MR. SCHWARTZ: No objection.

18 THE COURT: State's Exhibit 10 is admitted into

19 evidence.

20 Mr. Hicks, would you mind handing me -- I don't

21 have any of the exhibits. I have some that are missing. I

22 want to make sure I got the right ones that are introduced.

23 I think there's photographs on the podium, too,

24 that were introduced.

25 MR. HICKS: These are smaller versions.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
421

1 THE COURT: Same photographs?

2 MR. HICKS: Yes.

3 Q. (By Ms. Askey) Officer Hollingsworth, I'm

4 going to show you the bag that's been marked State's

5 Exhibit 11. Do you recognize this?

6 A. Yes, ma'am.

7 Q. And do you recognize what this bag contains

8 with regard to evidence as it was processed?

9 A. Yes, ma'am.

10 Q. And what does it contain?

11 A. The black T-shirt.

12 Q. Would that be the black T-shirt the victim was

13 wearing on December 27th, 2011?

14 A. Yes, ma'am.

15 Q. The same one that was depicted in State's

16 Exhibit 10; is that correct?

17 A. Yes, ma'am.

18 Q. And you recognize this to be the same T-shirt;

19 is that correct?

20 A. Let me see the back? Yes, ma'am.

21 MS. ASKEY: I'd ask that State's Exhibit 11 be

22 admitted into evidence.

23 THE COURT: Any objection?

24 MR. SCHWARTZ: No, Your Honor.

25 THE COURT: State's Exhibit 11 is admitted into


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
422

1 evidence.

2 MS. ASKEY: At this time, the State would ask

3 permission to publish the photograph in State's Exhibit 10 to

4 the jury.

5 THE COURT: Any objection by defendant?

6 MR. SCHWARTZ: No, Your Honor.

7 THE COURT: Photograph 10 shall be published to

8 the jury.

9 Q. (By Ms. Askey) Officer Hollingsworth, based on

10 State's Exhibit 10 and State's Exhibit 11, it's the same

11 shirt that you saw when you walked in?

12 A. Yes, ma'am.

13 Q. When you left the residence, you left with the

14 defendant; is that right?

15 A. Yes, ma'am.

16 Q. And where did you go?

17 A. I had him sit on the front porch in the chair.

18 Q. He sat on the front porch?

19 A. Yes. I had him sit in the chair on the front

20 porch and the medics got him a blanket.

21 Q. And did you stay with him during that time?

22 A. I stayed with him the entire time.

23 Q. Did you talk about anything?

24 A. At that point, no. I was more worried about

25 his breathing and keeping him warm because it was fairly cold
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
423

1 out.

2 Q. When you say you were "worried about his

3 breathing", why were you worried?

4 A. He looked as if he was going to into a state of

5 shock. He was breathing heavy.

6 Q. And were you able to get him calmed down?

7 A. Yes, ma'am.

8 Q. And what did you do next?

9 A. We had, I had asked him if he wanted, if he

10 would go sit in my car to stay warm and he agreed and wanted

11 to smoke a cigarette first. He went and smoked a cigarette

12 and went and sat in my patrol vehicle.

13 Q. And Officer, have you been in situations like

14 this before?

15 A. Yes, ma'am.

16 Q. And is it typical that you would wrap the

17 person in a blanket or share a cigarette with them or have

18 conversations?

19 A. Generally, yeah. I mean, if they are cold,

20 yeah. And if they want to smoke, I let them smoke.

21 Q. So they were your cigarettes?

22 A. Yes.

23 Q. So you just offered him one of yours?

24 A. Yes, ma'am. He had left his inside.

25 Q. Did he request to go back in and get them?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
424

1 A. Yes, ma'am.

2 Q. And you -- so what was your response, then, to

3 that?

4 A. I told him that I would give him my cigarettes.

5 Q. And did that all take place just out in front

6 of the house?

7 A. Yes, ma'am.

8 Q. There in the driveway?

9 A. Yes, ma'am.

10 Q. At any point did he get in the car with you?

11 A. Yes, ma'am. After we had smoked a cigarette.

12 Q. And where did he sit in the vehicle?

13 A. He sat in the rear.

14 Q. Where?

15 A. In the rear.

16 Q. In the rear passenger side or behind you?

17 A. It would be the rear passenger side.

18 Q. And there was a cage in the car?

19 A. Yes, ma'am.

20 Q. Did you have any conversations with him or were

21 you in the vehicle with him?

22 A. Yes, ma'am. I sat in the vehicle with him. We

23 had general conversation. We had talked about where he had

24 grown up. Said he had grown up in Florissant, Missouri. I

25 had grown up in Hazelwood, so I was familiar with the area.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
425

1 We got to talking about different hang out

2 areas. One in particular was Bobblehead Road. Asked him if

3 he remembered that and he stated, yes, he used to take women

4 there and scare the hell out of them.

5 We got to talking about hanging out at Sinclair

6 Gas Station and I wasn't 100 percent sure on where it was.

7 He said it was on Shackleford. I knew of an arcade that was

8 behind there, asked him if there was one. He said he wasn't

9 sure. That he had played video games at the 7-Eleven until

10 they had moved.

11 Q. So just random conversation?

12 A. Yes, ma'am. I am not a cuddly person. It's

13 generally easier for me to talk to somebody about their

14 childhood, about their past. Stuff they don't want to talk

15 about, they will usually tell me they don't want to talk to

16 me or yell at me. That's a normal reaction for anything like

17 this that I have done.

18 Q. So it's fair to say you didn't really expect

19 Russell Faria to really respond to your questions?

20 A. No. I expected him to yell at me.

21 Q. And it was actually quite the opposite?

22 A. Yes, ma'am.

23 Q. And at that time, while he was having this

24 conversation about Bobblehead Road and scaring women, did he

25 seem like he was hyperventilating?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
426

1 A. No, ma'am. He was calm and we were laughing.

2 Q. And he was laughing?

3 A. Yes, ma'am.

4 Q. At some point, did he ask you for another

5 cigarette?

6 A. Yes, ma'am.

7 Q. And did you oblige?

8 A. Yes, ma'am.

9 Q. How long, Officer, would you say that you spent

10 with Russ Faria in the car?

11 A. Probably an hour, if that.

12 Q. And during that time, other than at the

13 beginning when you were out on the porch and trying to

14 control his breathing, was there ever a time after you got

15 into the car that he was crying, hysterical?

16 A. When he had made statements regarding speaking,

17 telling his Mom and the daughters about the incident.

18 Q. But other than that, he was able --

19 A. No.

20 Q. -- to have normal conversation?

21 A. Normal conversation. Laughing.

22 Q. Jovial?

23 A. Yes, ma'am.

24 Q. Eventually, he was transported into County; is

25 that correct?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
427

1 A. Yes, ma'am.

2 Q. But not by you?

3 A. No, ma'am.

4 Q. When did you part company with Russ Faria?

5 A. When Detective Merkel and Detective Harney

6 arrived there.

7 Q. And when Detective Merkel and Detective Harney

8 arrived on the scene, then did Russ Faria go with them?

9 A. Yes, ma'am.

10 Q. And did you have any other interaction with

11 this case?

12 A. No, ma'am.

13 MS. ASKEY: I don't have anything further,

14 Judge.

15 THE COURT: Mr. Schwartz?

16 CROSS-EXAMINATION

17 BY MR. SCHWARTZ:

18 Q. Officer Hollingsworth, when you first arrived,

19 I think you noted that he was visibly upset and you felt like

20 he may be going into shock?

21 A. Yes, sir.

22 Q. You looked at, you didn't know who this was but

23 you looked at Betsy Faria lying there. It was clear to you

24 she was gone?

25 A. Yes, sir.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
428

1 Q. Why?

2 A. The cut on her wrist and the knife in her neck.

3 Q. So what you could see, based upon what the

4 photographs show, is essentially her arms laid out in front

5 of her, cuts across her arms, with one extremely deep one,

6 right?

7 A. Yes.

8 Q. And the knife in her neck?

9 A. Yes, sir.

10 Q. You weren't able to see any stab wounds in her

11 back, torso, anything of that nature?

12 A. No, sir.

13 Q. Cuts across her arms and in her neck, that's

14 it?

15 A. Yes, sir.

16 Q. Was she ashen?

17 A. Excuse me?

18 Q. Was her skin color ashen when you walked in?

19 A. I couldn't tell you.

20 Q. But you were clear she was gone when you walked

21 in?

22 A. Yes, sir, just by what I had seen with the

23 laceration to the wrist and the knife in her neck.

24 Q. And Russell was -- as you characterized it, you

25 thought he was on the verge of shock?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
429

1 A. Yes, sir.

2 Q. "Visibly upset" is, I think, what your words

3 were?

4 A. Yes, sir.

5 Q. You took him outside and it was very cold?

6 A. Yes, sir.

7 Q. How cold was it outside?

8 A. It was extremely cold.

9 Q. Inside there was an ambient temperature of

10 approximately 70 degrees, 72 degrees?

11 A. I couldn't tell you, to be honest with you. It

12 was normal.

13 Q. It was normal inside the house?

14 A. Yes.

15 Q. Outside the house -- you walked out. It was

16 cold. You were calming him, put a blanket around him,

17 correct?

18 A. Yes, sir.

19 Q. Got him a cigarette?

20 A. Yes, sir.

21 Q. Your goal was to calm him down, correct?

22 A. To relax him.

23 Q. To relax him.

24 A. To keep him from going into shock.

25 Q. Right. Because that's what you thought might


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
430

1 happen?

2 A. Yes, sir.

3 Q. So you brought up some things where you guys

4 grew up. You grew up in Florissant and he grew up in

5 Hazelwood. You brought those things up to try to create a

6 commonality, is that right?

7 A. It was just normal conversation.

8 Q. And you said he even laughed at times?

9 A. Yes, sir.

10 Q. How much grieving had he gone through in 2009

11 when his wife was first diagnosed with cancer?

12 A. I couldn't tell you. I didn't know him in

13 2009.

14 Q. You have no idea, do you? You don't know, do

15 you?

16 A. No, sir.

17 Q. How much grieving did he go through when it had

18 been determined--

19 MS. ASKEY: Judge, object. Lack of foundation.

20 THE COURT: Mr. Schwartz?

21 MR. SCHWARTZ: She's speculated on the amount

22 of grieving. I'm just going to follow that question up.

23 It's been opened up on Direct.

24 MS. ASKEY: He's not speculating on grieving.

25 MR. SCHWARTZ: All right.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
431

1 Q. (By Mr. Schwartz) Were you aware, Officer

2 Hollingsworth that Elizabeth Faria had been diagnosed with

3 terminal cancer in October of 2009 about six or eight, about

4 eight weeks earlier?

5 MS. ASKEY: Object as to relevance.

6 MR. SCHWARTZ: I'm asking if he was aware.

7 THE COURT: He can answer if he was aware.

8 Q. (By Mr. Schwartz) Were you aware?

9 A. I believe Mr. Faria had advised me that she had

10 a breast removed and was going to chemotherapy.

11 Q. Were you aware of how much grieving he had gone

12 through in October and November of 2011?

13 MS. ASKEY: Objection, Your Honor. Lack of

14 foundation.

15 Q. (By Mr. Schwartz) Were you aware?

16 THE COURT: Sustained as to lack of foundation.

17 MR. SCHWARTZ: I'm sorry?

18 THE COURT: Sustained as to lack of foundation.

19 MR. SCHWARTZ: Okay.

20 Q. (By Mr. Schwartz) Did you spend time with

21 Russell and Betsy in October of 2011 after she had gotten

22 that diagnosis?

23 A. No, sir.

24 Q. Did you spend time with them when they were up

25 in Rhode Island and they got the news when the rest of the
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
432

1 family was there?

2 A. No, sir.

3 Q. Did you spend time with them on their alleged

4 survival cruise--

5 MS. ASKEY: Objection. Argumentative.

6 MR. SCHWARTZ: It's not argumentative. They

7 are talking about the amount of grieving. I'm just getting

8 into it, Your Honor.

9 MS. ASKEY: Well, then I'll object to Counsel

10 testifying.

11 MR. SCHWARTZ: No, I'm not. I'm asking if he

12 was with them.

13 Q. (By Mr. Schwartz) Officer, were you with them

14 when they went on a cruise in November for week?

15 MS. ASKEY: Objection, Judge.

16 THE COURT: Counsel, could you approach,

17 please?

18 (Discussion at the bench.)

19 MR. HICKS: That's his point entirely, which is

20 why it makes it argumentative. He's asking questions that he

21 knows this witness has no basis to know it, to make his

22 point, his argumentative point that-

23 THE COURT: You can ask it if he knows any of

24 these things while he was with him. We're not going to ask

25 him 15 questions we know he doesn't know.


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1 MR. SCHWARTZ: I'm getting to the end.

2 THE COURT: Move on.

3 MS. ASKEY: Just ask him if he knows him

4 outside of this year.

5 (End of bench discussion.)

6 Q. (By Mr. Schwartz) Officer, you didn't know and

7 never had met Russell Faria prior to that night, had you?

8 A. No, sir, I had not.

9 Q. And you had no idea how much grieving he had or

10 had not gone through prior to that night, correct?

11 A. No, sir, I had not.

12 Q. Yet you do know, or you testified that he

13 appeared to be going into a state of shock when you showed

14 up. Ultimately, you calmed him down and talked to him. That

15 would be your testimony?

16 A. Yes, sir.

17 Q. And just as a point of the reference, I'm

18 unclear, you showed in these exhibits, I'm referring to

19 Exhibit, I guess it's 9, with the four pictures of the

20 household?

21 A. Okay.

22 Q. When you walk into the house, could you hold

23 that up and show us where you would be standing initially

24 when you walk in?

25 A. On this photograph here?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Q. Which is the best photograph to show us where

2 you are standing when you walk into the house? Is that the

3 best one?

4 A. This shows the whole picture because I am, the

5 front door is right here.

6 Q. All right. Could you show the jury what you

7 are pointing at? Hold it up.

8 A. The front door is back here. I came in over

9 here.

10 Q. Okay. So looking at State's Exhibit 9, they

11 are all part of the same Exhibit. This particular picture?

12 A. No, sir. This one.

13 Q. Why don't you stand up there and show us? If

14 you would show us where the front door is.

15 A. The front door is back in here.

16 Q. Do you know where the garage door was?

17 A. That I can't tell you.

18 Q. So you would come in, it looks like there's a

19 mirror at the top or a picture? Rectangular? I'm sorry.

20 A. This here?

21 Q. Yes. You would come in towards that picture?

22 A. Come in this way.

23 Q. Okay. So looking at this, you are walking in

24 the direction, like if I'm walking towards you right now; is

25 that correct?
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1 A Yes, sir.

2 Q. And then if you look to your left, you see

3 Betsy Faria is on the floor at that point in time?

4 A. Yes, sir.

5 Q. And there's a blanket covering her of some

6 sort?

7 A. Yes.

8 Q. To your right you see a chair that looks to

9 have a leather jacket on it?

10 A. Yes, sir.

11 Q. And that would have been where you were walking

12 in?

13 A. That would be the foyer where you are standing.

14 Q. That's the foyer area. So when you first walk

15 in, you don't, if you are in the immediate entrance, you

16 don't see anything or you don't see her unless you are

17 specifically looking at the ground in that direction?

18 A. Yes, sir.

19 Q. You have to kind of walk in further to actually

20 see what is there, correct?

21 A. Yes, sir. I walked in to about this area here

22 and that's where I could see her.

23 Q. So you walked all of the way up. So if you had

24 stopped at that previous door and weren't focused on that,

25 you wouldn't have seen her?


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1 A. No, sir. If I had stopped back here?

2 Q. If you just had stopped back there?

3 A. You would see that.

4 Q. You don't know what that door is to. You don't

5 know if that is to the garage--

6 A. No, sir.

7 Q. --or not? And then there's a hallway after

8 that and then you go into the living room?

9 A. Yes, sir.

10 Q. Thank you, Officer Hollingsworth.

11 MR. SCHWARTZ: Nothing further, Your Honor.

12 THE COURT: Can I have State's Exhibit 9?

13 MR. SCHWARTZ: Do you have it?

14 THE COURT: Is that your copy or theirs? I

15 don't have it. I don't have Exhibit 9.

16 MS. ASKEY: I have it.

17 THE COURT: I'm sorry. He probably has it. Is

18 there any Redirect?

19 MS. ASKEY: Yes. Just briefly.

20 (State's Exhibit 12 marked for

21 identification.)

22 REDIRECT EXAMINATION

23 BY MS. ASKEY:

24 Q. Officer Hollingsworth, again, in State's

25 Exhibit 10, you identified the photograph of Betsy Faria that


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
437

1 was lying, that you saw when you walked in the door?

2 A. Yes, ma'am.

3 Q. I'm going to show you, I'm opening and will

4 show State's Exhibit 12. It's a bag of Evidence Number 83.

5 Do you recognize this bag as processed through evidence?

6 A. Yes, ma'am.

7 Q. And what does this contain?

8 A. The victim's pants and shorts.

9 Q. And if you are able to look into this bag, do

10 you recognize the pants that you see there?

11 A. Yes, ma'am.

12 Q. And are those the same pants or appear to be

13 the same pants that you saw the victim wearing when you

14 arrived on the scene --

15 A. Yes, ma'am.

16 Q. -- on December 27th?

17 A. Yes, ma'am.

18 Q. I would ask for State's Exhibit 12 to be

19 admitted into evidence.

20 MR. SCHWARTZ: No objection.

21 THE COURT: State's 12 is admitted into

22 evidence.

23 MS. ASKEY: I have nothing further, Judge.

24 THE COURT: Mr. Schwartz?

25 MR. SCHWARTZ: No further questions.


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1 THE COURT: Thank you, sir. You may step down.

2 (Discussion off the record.)

3 THE COURT: State, call your next witness.

4 MR. HICKS: Mike Quattrocchi.

5 THE COURT: Mike Quattrocchi. Sir, if you will

6 please come forward and be sworn by the Clerk.

7 MICHAEL JOSEPH QUATTROCCHI,

8 a witness, having been duly sworn by the Circuit Clerk to

9 tell the truth, the whole truth and nothing but the truth, so

10 help you God, under the pain and penalty of the Perjury Laws

11 of Missouri, testifies as follows:

12 THE COURT: You may inquire when you are ready.

13 DIRECT EXAMINATION

14 BY MR. HICKS:

15 Q. Good afternoon. Almost evening. I've been

16 butchering your name since jury selection. Could you tell us

17 what your full name is?

18 A. Quattrocchi, Mike Quattrocchi.

19 Q. Quattrocchi. That's a lot easier than I

20 thought.

21 A. Yeah.

22 Q. Can I call you Mike, though?

23 A. You can.

24 Q. Thank you. I appreciate that.

25 A. It's easier.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Q. For the record, could you state your full]

2 name?

3 A. Michael Joseph Quattrocchi.

4 Q. How are you employed, Mike?

5 A. I work in the Lincoln County Ambulance

6 District.

7 Q. How long have you worked in the Lincoln County

8 District?

9 A. Fifteen years.

10 Q. And what exactly, what's your current duties or

11 role?

12 A. On-duty Supervisor. The lead medic is what

13 they call it.

14 Q. Lead medic?

15 A. Yes.

16 Q. So years ago, I'm going to date myself, they

17 used to have a show called 9-1-1 where the EMTs would go out

18 there, right? Is that kind of what you do?

19 A. Well, as a Supervisor, we assist the ambulance

20 when it goes on calls, different calls. Motor vehicle

21 wrecks, chest pains, just certain criteria, and the

22 Supervisor will respond with them.

23 Q. So sometimes you actually go out to the scene?

24 A. Exactly.

25 Q. And this can be anything from somebody who has


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440

1 just had a heart attack, correct?

2 A. Yes.

3 Q. Or sick or something, needs an ambulance?

4 A. Yes. We have certain criteria set up for

5 supervisory response.

6 Q. All of the way up to homicide, correct?

7 A. Exactly.

8 Q. Okay. When you were -- well, were you working

9 on the night of --

10 A. Yes, I was.

11 Q. -- December 27, 2011?

12 A. Yes, I was.

13 Q. Okay. And what were you dispatched -- first,

14 where were you dispatched that evening?

15 A. We were at Troy base.

16 Q. And where were you dispatched to? Do you

17 remember the address?

18 A. Off Highway H. I can't remember the address.

19 Q. Does 130 Sumac Drive sound --

20 A. That's it, yeah.

21 Q. And what was your understanding that you were

22 going there for?

23 A. For a suicide by a blade.

24 Q. By a blade?

25 A. Yeah.
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1 Q. Okay. How many other professionals did you

2 respond with at that time?

3 A. My ambulance crew, myself and a pumper crew

4 usually goes as well --

5 Q. Okay.

6 A. -- on something like that.

7 Q. How many actual medics?

8 A. There was three of us.

9 Q. When you arrived to the residence, I think it's

10 already been admitted into evidence, if we could go to

11 State's Exhibit 1.

12 MR. HICKS: Do you have your Exhibits?

13 THE COURT: Which number do you need?

14 MR. HICKS: Number 1. Thank you. That's it.

15 THE COURT: Sure.

16 MR. HICKS: I'm going to hand you State's

17 Exhibit 1 that's already been admitted into evidence. I know

18 it was dark when you got there?

19 A. Yes.

20 Q. But does that look like the residence that you

21 entered?

22 A. Yes, sir.

23 Q. Okay. And actually I'm going to show you

24 State's Exhibit -- it's not marked. I think it's part of 1.

25 A little darker but back from the street?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 A. Yes, sir, that's the --

2 Q. That is the residence you entered?

3 A. Yes, sir.

4 Q. When you got there, were there any officers

5 there?

6 A. Officers and also the pumper crew had already

7 made entry into the house and they were on their way out.

8 Q. What's the pumper crew?

9 A. Lincoln County Fire responds with a truck.

10 Their pumper crew. There would be a Captain and two

11 nozzlemen or whatever, usually.

12 Q. Okay. All right. They were actually exiting

13 the house?

14 A. Yeah. We met them. As we were walking up,

15 they were coming out the door.

16 Q. Okay. Do you recall about what time you

17 arrived at 130 Sumac?

18 A. No. It was in the evening. I don't remember.

19 Q. So you didn't -- I'm sure it may have been --

20 A. It's in the report, I know, but --

21 Q. It's in the report, but you don't recall as you

22 sit here?

23 A. No. I didn't --

24 Q. That's fine. Okay. So you go inside the

25 residence, correct?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 A. Yes.

2 Q. All right. Now were the lights on when you

3 went in?

4 A. Maybe a lamp or something but it was pretty

5 dark. It was pretty dark in there.

6 Q. Did you have any trouble seeing?

7 A. Well, yeah. I used a flashlight.

8 Q. So the lights weren't on. You had to use a

9 flashlight?

10 A. Yeah. It was pretty dark.

11 Q. Okay. When you walked in, did you have any

12 difficulty at all identifying or seeing where the individual

13 who was deceased was?

14 A. As the fire guys were leaving, they already

15 said that she was gone. So we walked in a little further

16 past the foyer and I could tell that it was, this was not a

17 good scene. So the other guys, I let them stay at the foyer

18 and I walked on up with an officer.

19 Q. What did you walk up to?

20 A. A female lady on the ground on the floor.

21 THE COURT: I have some of the exhibits. What

22 are you looking for?

23 MR. HICKS: I'm looking for 10 now. Thank

24 you.

25 Q. I'm going to hand you State's Exhibit 10 and


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
444

1 ask you if you recognize that?

2 A. Yes.

3 Q. All right. And is that the lady that you just

4 described that you walked up on to?

5 A. Yes, sir.

6 Q. Okay. Now I know you're looking at it here.

7 If we can -- first, how close did you get to her?

8 A. I got right to about where her head is and I

9 didn't go any further. I didn't want to, you know, to

10 contaminate it.

11 It just looked like this was going to be a bad

12 deal. This was going to be a crime scene. We try not to

13 contaminate and get out as quickly as we can.

14 Q. You just said you thought it was going to be a

15 crime scene. You said that you were responding to a suicide?

16 A. Yes.

17 Q. When you observed this, immediately, your

18 thinking was, not a suicide, crime scene?

19 A. Exactly.

20 Q. Why is that?

21 A. Because she had a knife stuck into her neck.

22 Q. Okay. Have you ever responded to suicides

23 before?

24 A. Yes.

25 Q. Okay. Have you ever seen anybody commit


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
445

1 suicide by putting a knife all of the way into their

2 neck?

3 A. No, sir.

4 Q. Okay. Let me ask you this. How readily

5 apparent was it to you when you walked up to this body, how

6 easy was it to see the knife there?

7 A. I had my, I had a light, so I was just looking

8 her over a little, you know, and once I, you know, her hair

9 was there so it was kind of difficult but then I saw it.

10 Q. Did you have to move her body in any way?

11 A. No, I did not touch -- I didn't move her at

12 all.

13 Q. That's what I was saying. Okay. I'm going to

14 show you State's Exhibit 13 and ask you if you recognize

15 that? I know it's dark.

16 A. Yes.

17 Q. Okay. And what does that appear to be?

18 A. That's the knife. That's the knife in her

19 neck.

20 Q. The knife in her neck?

21 A. Yes.

22 Q. Is that how it appeared that moment when you

23 looked at it --

24 A. Yes.

25 Q. -- and saw it sticking out of her neck?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 A. Yes.

2 Q. And let me ask you this. Was the blade

3 completely, almost completely inside the neck?

4 A. Once I saw that, I mean, we got -- we more or

5 less got out.

6 Q. Okay. Does this accurately depict how it

7 looked, what you saw?

8 A. Yes. Yes.

9 MR. HICKS: Your Honor, the State would move to

10 have admitted into evidence State's Exhibit 13.

11 THE COURT: Any objection?

12 MR. SWANSON: No objection, Your Honor.

13 THE COURT: State's Exhibit 13 is admitted into

14 evidence.

15 Q. (By Mr. Hicks) Okay. And now I would like to

16 go back to State's Exhibit 10 if we could. Mike, if you

17 won't mind standing up; coming out here. I want you just to

18 point out to the jury, for you, as you are looking at State's

19 Exhibit 10, the location of the knife.

20 A. It's right here.

21 Q. Right there. Okay. Again, like you testified,

22 there was no hair obstructing it, correct?

23 A. No.

24 Q. As she was laying there, it's not like it's in

25 the back of the neck?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
447

1 A. What I was saying, since this is a dark shirt,

2 but in the low light you really couldn't, until you got right

3 up on her. I mean, --

4 Q. Understood. Okay. So when you walked right up

5 on her, that's when you immediately knew that this was a

6 crime scene, not a suicide; --

7 A. Yeah. Yeah.

8 Q. -- is that correct?

9 A. Exactly.

10 Q. Okay. All right. You said that once you made

11 those observations, let me ask you this. You were there to

12 respond whether it was a, whether it was a homicide or a

13 suicide or murder?

14 A. Exactly.

15 Q. Whatever. If the person was still alive,

16 obviously, there were things that you were going to need to

17 do, correct?

18 A. Exactly.

19 Q. Even upon the brief time that you were there

20 and the observations that you made, were you able to

21 determine --

22 A. When you see, you know, death, you know that

23 they are dead. There's not, nothing that you are going to

24 do.

25 Q. So you didn't feel like, at that point, --


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 A. No.

2 Q. -- there was any medical attention --

3 A. No.

4 Q. -- that you could provide?

5 A. No.

6 Q. It was that clear to you?

7 A. That clear.

8 Q. So you did what?

9 A. We got our --actually, we got -- my guys were

10 at the foyer still, and I left. I walked out then.

11 Q. You walked out?

12 A. Yeah.

13 Q. All right.

14 MR. HICKS: I don't have any further questions.

15 Thank you, Mike. They do, though.

16 THE COURT: Mr. Swanson?

17 MR. SWANSON: Thank you, Judge.

18 CROSS-EXAMINATION

19 BY MR. SWANSON:

20 Q. Mr. -- I'm sorry.

21 A. Quattrocchi.

22 Q. I have that part, but the proper title?

23 Mister, Sergeant, Director?

24 A. Lead medic.

25 Q. Lead medic?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 A. Yes.

2 Q. We'll go with Mister. Mr. Quattrocchi, you

3 said you had been a Lincoln County medic for 15 years?

4 A. Fifteen years, yeah. I've got 25 years total.

5 Q. That was going to be my next question. For the

6 previous ten years, what did you do?

7 A. I worked up at Pike County.

8 Q. So you have 25 years as paramedic?

9 A. Yes, sir.

10 Q. You said as a Supervisor, certain things

11 trigger you going out?

12 A. Yes, sir.

13 Q. Suicide by blade, for example?

14 A. Exactly.

15 Q. Homicides?

16 A. Not really. If it comes out as a homicide, we

17 don't really get kicked out just for a homicide.

18 Q. What do you mean by "kicked out"? Do you mean

19 go?

20 A. Yeah. Respond.

21 Q. But if there's someone, homicide in progress

22 maybe?

23 A. We would be staging, yes, until we were cleared

24 by law enforcement to go in. Yes.

25 Q. So it's safe to say that you've seen quite a


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
450

1 few suicides by blade, quite a few homicides by blade?

2 A. Yes, sir.

3 Q. When you say that you thought it was a crime

4 scene, that's the prism you are looking at that through?

5 A. Exactly.

6 Q. Is your experience?

7 A. Exactly.

8 Q. Twenty-five years?

9 A. A possible crime scene, I'll just go with --

10 Q. Your twenty-five years' experience as a

11 paramedic said, this is a possible crime scene?

12 A. Yes.

13 Q. Okay. Did you -- you said you went all the way

14 in?

15 A. Yes, sir.

16 Q. Got fairly close to Mrs. Faria's body?

17 A. I did.

18 Q. Did you touch her?

19 A. I did.

20 Q. Why did you do that?

21 A. Just to see if she was cold or stiff or to kind

22 of determine kind of how long she was down.

23 Q. Was she cold and stiff?

24 A. Yes.

25 Q. All right. Do you happen to recall what the


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
451

1 temperature inside the house was?

2 A. No, I do not. I know it was very cold

3 outside.

4 Q. But it wasn't noticeably cold inside?

5 A. No.

6 Q. So she was cold and stiff. Did you notice any

7 blood pooled on the carpet?

8 A. Yes. There was a lot of blood.

9 Q. Would it be fair to say that, did you --

10 What was the condition of that blood?

11 A. It was already dried.

12 Q. Was it coagulated?

13 A. I was -- I don't remember. I know it was

14 already dried. I would say, yes, it probably was.

15 Q. Based on your experience as a paramedic, Mrs.

16 Faria was cold?

17 A. Yes.

18 Q. She was stiff?

19 A. Yes.

20 Q. And the blood was dried. What did that suggest

21 to you?

22 A. That she had been down for quite a while.

23 Q. A couple hours?

24 A. I'm not a medical examiner but, yeah.

25 Q. I'm not asking you to--


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 A. Yeah.

2 Q. But that's your experience?

3 A. Yes.

4 Q. Fair. In fact, when you were interviewed by

5 detectives sometime later, they asked you to demonstrate, and

6 I believe you made a --

7 A. Yeah, I just -- I didn't pick her arm up. I

8 didn't do anything. I just kind of just touched her a little

9 bit.

10 Q. But the level of stiffness was similar to --

11 A. Yes.

12 Q. And just for the record, you made a fist,

13 flexed your arm, poked it and that was her level of

14 stiffness?

15 A. Yeah. Yes, sir.

16 Q. All right. Did you speak with Mr. Faria when

17 you were on the scene?

18 A. No. My crew was consoling him on the porch

19 when I walked out and I --

20 Q. So he was noticeably upset?

21 A. It appeared, yes.

22 Q. And then --

23 A. More like in shock than anything.

24 Q. Okay. Fair enough. You said when you saw

25 Betsy, you noticed Ms. Faria's wounds?


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
453

1 A. Yes.

2 Q. Or what wounds did you notice?

3 A. Of course the knife and then she had a large

4 cut on her arm that was already dried. You know, there was

5 no blood in it or anything but it was laid open.

6 Q. And what does that suggest to you?

7 A. Maybe she was already, already bled out when

8 that one was done to her.

9 Q. You said that based on your experience?

10 A. Yes.

11 Q. And you touched Mrs. Faria, physically touched

12 her?

13 A. Just, yes.

14 Q. Aside from whatever finger you touched her

15 with, did you get any blood on you when you sat down next to

16 her?

17 A. No.

18 MR. SWANSON: No further questions.

19 THE COURT: State?

20 MR. HICKS: Redirect.

21 REDIRECT EXAMINATION

22 BY MR. HICKS:

23 Q. Did you get down on your hands and knees?

24 A. I did not get on my hands and knees. I just

25 knelt down.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
454

1 Q. "Knelt down" meaning you just bent over?

2 A. Yeah, I just bent over and --

3 Q. Touched her?

4 A. Yes.

5 Q. When you touched her, are you talking about a

6 second?

7 A. Yeah. I just went like, just like that.

8 Q. So you didn't left up her arm?

9 A. I did not lift up her arm.

10 Q. Do anything to check her rigor mortis that

11 way?

12 A. No.

13 Q. Just in that brief touch, you felt like she was

14 stiff --

15 A. It just felt that she was solid.

16 Q. -- and that she was solid and cool to the

17 touch?

18 A. Yes.

19 Q. You testified earlier that when you were coming

20 in, that people were coming out, correct?

21 A. Yes.

22 Q. So it sounds like that door is opening and

23 closing. You guys are going in and out, right?

24 A. Yeah. Actually, the door was standing open.

25 It was wide open.


Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
455

1 Q. It was wide open?

2 A. Yes.

3 Q. It's very cold outside, correct?

4 A. Yes. It was very cold.

5 Q. By the time you got there, you can't tell if

6 the temperature in there is what it normally was supposed to

7 be; is that fair?

8 A. That's fair.

9 Q. Okay. Now you were asked on Cross about your

10 opinion about these slits to the wrist, okay? Now one, have

11 you ever responded to a suicide where somebody has slit their

12 wrist?

13 A. Yes.

14 Q. Okay.

15 A. But they were alive. They weren't dead.

16 Q. Right. They were alive, correct?

17 A. Uh-huh.

18 Q. Was it your experience that there's a lot of

19 blood?

20 A. Yes, sir.

21 Q. I mean, a lot?

22 A. Yes.

23 Q. Okay. And because that's the whole point of

24 slitting a wrist --

25 A. Exactly.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
456

1 Q. -- is because it will bleed, right?

2 A. Exactly.

3 Q. Now I'm going show you again State's Exhibit 10

4 and take you back there. When you look at those wrists

5 there, do you see a surprisingly --

6 A. Yeah, there's not a lot of blood.

7 Q. I mean, there's a lot of blood pooling under

8 her head, correct?

9 A. Yeah, right here. Yes. You would think it

10 would be here, as well.

11 Q. Where her arms are resting, there's hardly any

12 blood on the carpet, correct?

13 A. Right, not even underneath. It appears not.

14 Q. Is that why you then made the next

15 determination that this --

16 A. Yeah, this doesn't look right.

17 Q. -- this doesn't look right?

18 A. That's why we got out.

19 MR. HICKS: I don't have any further questions.

20 Thank you.

21 THE COURT: Mr. Schwartz? Mr. Swanson?

22 MR. SWANSON: Very briefly.

23 RECROSS-EXAMINATION

24 BY MR. SWANSON:

25 Q. It's your experience that gives you the basis


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1 for making those determinations that Mr. Hicks just asked you

2 about?

3 A. Yes.

4 Q. Twenty-five years as a paramedic?

5 A. Yes.

6 Q. Last question. Do you recall what time you

7 arrived at the Faria household?

8 A. Not without looking at the --

9 Q. So the report would help you?

10 A. It was --

11 Q. The report --

12 A. Drive time from right over here, you know, run

13 and code.

14 Q. So drive time from here to there?

15 A. Yeah, because our base is just --

16 Q. Would your report help you recall?

17 A. I think I might have it here.

18 MR. SWANSON: If I can approach, Your Honor?

19 THE COURT: Yes.

20 Q. (By Mr. Swanson) If you would like --

21 A. Let's see. I don't have my glasses.

22 Q. I can't tell you what it says.

23 A. It looks like within -- I can't see it. I

24 don't have my glasses with me.

25 Q. If it says 9:51 as the time you arrived, would


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1 that be accurate?

2 A. Yes. I would say that's probably right.

3 MR. SWANSON: No further questions, Your Honor.

4 THE COURT: State?

5 MR. HICKS: I have no further Redirect, Your

6 Honor. Thank you.

7 THE COURT: Thank you, sir. You may step down.

8 THE WITNESS: Thank you.

9 (Discussion off the record.)

10 THE COURT: Ladies and gentlemen of the jury,

11 we are going to recess for the night at this time.

12 The Court again reminds you of what you were

13 told at the first recess of the Court. Until you retire to

14 consider your verdict, you must not discuss this case amongst

15 yourselves or with others or permit anyone to discuss it in

16 your hearing.

17 You should not form or express any opinions

18 about the case until it is finally given to you to decide.

19 Do not do any research or investigation on your own about any

20 matter regarding this case or anyone involved with the trial.

21 Do not communicate with others about the case

22 by any means. Do not read, view or listen to any newspaper,

23 radio, electronic communication from the Internet or

24 television report of the trial.

25 At this time the jury is adjourned until 8:15


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1 in the morning. We're going to start a little earlier

2 tomorrow since we've got some Motions out of the way, and our

3 hope is that we possibly will be able to be finished with the

4 trial instead of taking all week.

5 So we'll see you at 8:15 in the morning.

6 (The jury left the Courtroom.)

7 THE COURT: I want to make sure which exhibits

8 were marked so we are all on the same page.

9 Okay. From the State, I have Exhibit 1, which

10 was a group of the house photos. Exhibit 2, which was some

11 family photos. Exhibit 3, I have no idea what 3 is. Was it

12 admitted or anything?

13 MS. ASKEY: No.

14 THE COURT: No. Four was not admitted, which

15 was the jewelry box. Five was family photo on Christmas at

16 Pam's. That was admitted. Six, I have no idea what that is.

17 MS. ASKEY: Six was not admitted. It was the

18 CAD sheet.

19 THE COURT: Okay. Seven was the audio 9-1-1

20 disk. Eight was the transcript. So 8 was not admitted.

21 Seven was.

22 Nine was the photos of the home on 12/27/11.

23 Ten was the single photo of the victim. Eleven is the black

24 shirt, itself, of the victim. Twelve is the shorts and pants

25 of the victim, itself, and 13 is the photos with the knife in


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1 the victim's neck.

2 So I have 1 through 13 admitted, but minus

3 Number 3, minus Number 4, minus 6 and minus 8.

4 Anybody have anything different?

5 MS. ASKEY: That's what I have.

6 THE COURT: And Defendant's, I have Exhibit A

7 was not admitted, even for the Offer of Proof. It's just a

8 letter from the U.S. Bank to Counsel.

9 Exhibit B and C were admitted for Offers of

10 Proof. "B" is the photo of Mariah at the ATM and "C" is the

11 life insurance statement with the affidavit and that's all I

12 have so far.

13 MS. ASKEY: That's accurate on my end.

14 THE COURT: Do you have anything different?

15 MR. SCHWARTZ: No.

16 THE COURT: Okay. Court is in recess.

17 (Court is adjourned.)

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