Trans 5 PDF

Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
913
1 IN THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT OF MISSOURI
2
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 VOLUME 5
20
21 APPEARANCES
22 Ms. Leah Askey Attorneys for the Plaintiff

Mr. Richard Hicks
23
Mr. Joel Schwartz Attorneys for the Defendant
24 Mr. Nathan Swanson
25
914
1 Q. You think it was in the latter half of the
2 evening?
3 A. I think so.
4 Q. Okay. And you are saying that, at that point,
5 Russell didn't answer it?
6 A. I recall that he took his phone out and looked
7 at it, but whether he was looking at a call that had been
8 missed or he didn't answer or it was a text message, I have
9 no idea.
10 Q. Okay. You say his phone has a distinctive
11 tone. It's the Imperial March from Star Wars, correct?
12 A. Correct.
13 Q. I don't need to hum that. I think we are all
14 pretty familiar with that, right?
15 A. Yeah.
16 Q. What you are telling us is that the entire
17 night, you don't recall anybody else's cell phone going off?
18 A. No, I don't recall anybody else's cell phone
19 going off.
20 Q. Just Russ's?
21 A. Yes.
22 Q. You don't recall what anybody else may have
23 brought, whether they even brought their cell phone, correct?
24 A. That's correct.
25 Q. You assume that they did?

915
1 A. I would assume so, but I didn't hear their cell
2 phones go off, so I can't be for sure.
3 Q. When the cell phone went off, was it the
4 Imperial March?
5 A. Yes.
6 Q. Okay. And Russell had a smart phone, correct?
7 A. I don't know. I've never been through his
8 phone but I assume so. He can choose his own ringtone, the
9 Imperial March. I would think it's a smart phone.
10 Q. So when you have, for instance, if you get an
11 e-mail, I mean, the Imperial song --
12 A. It very well could have been an e-mail?
13 Q. What I'm asking is, typically when you get an
14 e-mail, I mean, it's going to be like a -- the Imperial March
15 is going to be long for an e-mail, wouldn't it?
16 A. I don't know if I want to speculate on that. I
17 don't know his ringtone.
18 Q. You heard the Imperial March?
19 A. Yes. That's what I heard.
20 Q. It went off for a little bit until he was able
21 to touch it off.
22 A. It went on for a couple seconds, I believe.
23 Q. He looked at it and then put the phone away?
24 A. That's what I recall.
25 Q. And didn't call back?

916
1 A. No.
2 Q. Sat there and continued to watch the movie a
3 little bit?
5 Q. Then, at some point, you say that he left?
6 A. Yes. He left minutes before Brandon and
7 Marshall did.
8 Q. He left shortly before they did?
9 A. Yes.
10 Q. Now this night, you were supposed to play Role
11 Master?
12 A. That was the standing tradition, yes.
13 Q. And you had to cancel the game?
14 A. Correct.
15 Q. Because Richard May had to work?
16 A. Yeah. I believe he had been called in a couple
17 of days before, so he had notified me and then I, in turn,
18 notified everybody else.
19 Q. You had notified everybody else previous to 6
20 o'clock that game is off?
21 A. Yes, I do believe I sent out a text message.
22 Q. Okay. And if game is off, did you also let
23 them know, but you are still welcome to come over, we could
24 watch a movie?
25 A. Yeah, I'm near positive because it's happened a

917
1 few times in the past where I'll let them know no game
2 tonight, you're more than free to come over and watch a
3 movie.
4 Q. And you said at 6 o'clock sharp you got the
5 movie in?
6 A. I actually believe I put it in a few minutes
7 before 6 o'clock, before everybody got there.
8 Q. By the time everybody -- you said the defendant
9 showed up first?
10 A. Yes.
11 Q. And then the other two individuals came?
12 A. Correct.
13 Q. And you guys sat down there and watched the
14 movie?
15 A. Yes.
16 Q. Okay. And I think I asked you back in the
17 summer, 18 months after this event, if you could recall where
18 everybody sat?
19 A. Yeah. I think I recall where everybody sat.
20 Q. Just like you testified here today. You
21 testified that -- specifically where you sat?
22 A. Yes, because I always sit in the same spot.
23 Q. Okay. Where Angie sat?
24 A. Yes.
25 Q. Where Brandon sat?

918
1 A. Correct.
2 Q. Marshall and the defendant?
3 A. Correct.
4 Q. And if Richard had been there, I mean, this
5 wasn't a typical night because sometimes there would be six
6 people, right?
7 A. Correct. If Richard would have been there, we
8 actually would have been playing the game at my dining room
9 table instead of sitting in the living room.
10 Q. This wasn't something you did every Tuesday
11 night. It's movie night. Here's your place?
12 A. No. In fact, we're so ill-prepared to have
13 that number of people in my living room that Marshall had to
14 pull a chair from the dining room in.
15 Q. Okay. Yet, 18 months after the event, you can
16 remember specifically where everybody sat?
17 A. Yeah, because even to this day when we've had
18 to cancel things, that's pretty much the order we still sit
19 in, with the exception.
20 Q. You guys were smoking marijuana that night?
21 A. I can't say for sure, but I do believe so, yes.
22 Q. Okay. And everybody was just sharing a bowl, I
23 guess they call it, a pipe. A big pipe?
24 A. It would have been a small pipe but, yeah. And
25 it maybe would have gotten puffed on a couple of times. That

919
1 would have been about it.
2 Q. And you sat there and watched this movie,
3 enjoying a little bit of marijuana?
4 A. Sure.
5 Q. I'm not -- I'm just trying to set the stage
6 here.
7 A. Okay.
8 Q. Okay. But you don't recall anybody drinking
9 that night?
10 A. Not that I know of. I know that I drank
11 coffee. I think that Russell had some coffee, as well. I
12 make coffee every Tuesday night so.
13 Q. So he may have had coffee, but as you sit here
14 in your mind's eye and you can see where everybody is
15 sitting, you say you can see the defendant sitting in the
16 recliner?
17 A. Yes. He was on my right about eight foot away
18 from me.
19 Q. And on the recliner, if he was drinking --
20 A. It wasn't a recliner, by the way. It's just a
21 leather chair.
22 Q. Leather chair. In this leather chair, he may
23 have been drinking coffee?
24 A. Correct.
25 Q. But he wasn't sitting there drinking a big

920
1 bottle of tea?
2 A. I don't recall him bringing anything like that,
3 no. It's possible he could have, but I don't really pay that
4 minute attention to all of my friends so.
5 Q. Well, I think you said in your deposition that
6 it was 18 months before, so would it be difficult to remember
7 the -- let me get your -- (as read) "I believe, again, it's
8 really hard to remember 18 months after something that's as
9 trivial as that, you know".
10 A. That's correct. That's what I said in my
11 deposition.
12 Q. Right. But and so as trivial as somebody
13 drinking something, what they were drinking?
14 A. Yeah.
15 Q. But not as trivial as where they were sitting?
16 A. No. I can pretty much remember that.
17 Q. Okay. Trivial would be what they were drinking
18 or what they maybe had brought, but it's not trivial that
19 somebody's phone happened to have gone off that night?
20 A. No. Because his was the only phone that I can
21 recall actually ringing that night. And like I say, it's a
22 very distinctive ringtone. It's pretty obvious when his
23 phone goes off.
24 Q. The other thing is that you said there was very
25 little conversation that night?

921
1 A. Maybe a paragraph's worth of conversation.
2 Q. Between all of you?
3 A. That's correct. Between all of us.
4 Q. Almost three hour period and there was almost
5 no talking?
6 A. That's correct. We were pretty much involved
7 in the movies. There were probably some comments made about
8 the movie, but nothing I can remember in particular.
9 Q. The only thing you can remember that night is
10 Russ's statement to you about maybe being able to get a new
11 motorcycle?
12 A. Yeah, he said he had talked with Betsy and that
13 they had decided to sell his old bike and, I believe, buy his
14 late uncle's bike.
15 Q. But you don't remember anything that Marshall
16 or Brandon may have said to you?
17 A. Honestly, I don't think they had a lot by way
18 of conversation that night. By the time they had showed up,
19 which was slightly after Russell, the movie was in full
20 swing. There was a lot of exciting stuff going on. We just
21 pretty much watched the movie.
22 Q. Okay. One more thing. When you do these
23 games?
24 A. Okay.
25 Q. Okay. You want to -- you gather with people

922
1 that you trust, right?
2 A. For the most part.
3 Q. I mean, it's just not some stranger that can
4 come in and get in this game?
5 A. I wouldn't have let somebody I don't trust in
6 my house.
7 Q. Right. So you trusted Russell Faria?
8 A. Correct.
9 Q. He was your friend?
10 A. Correct.
11 Q. And you had played these games that really
12 require camaraderie, friendship and trust, correct?
13 A. To a degree. I could probably play them with
14 somebody that is not my friend, but I certainly wouldn't
15 invite somebody that is not my friend into my house.
16 Q. And you are the individual who, though, ran the
17 game, correct?
18 A. Correct.
19 Q. And in the context of this game, the characters
20 -- because you are the referee, you are the Role Master,
21 right?
22 A. Referee, yeah.
23 Q. You are directing what they should do?
24 A. Correct. Well, I'm not directing what they
25 should do. I present them with a story. I describe the

923
1 settings to them and then they are free to act how they want,
2 go off on their own tangents. Whatever. I just present them
3 with the surrounding setting in the game.
4 Q. Thanks.
5 MR. HICKS: I don't have any further questions.
6 THE COURT: Mr. Schwartz?
7 REDIRECT-EXAMINATION
8 BY MR. SCHWARTZ:
9 Q. Mr. Corbin, are you lying about Russell being
10 there from 6 o'clock to 9 o'clock that night?
11 A. Absolutely not.
12 MR. HICKS: Objection. It's argumentative and
13 self-serving. That's what the jury is going to determine.
14 THE COURT: Sustained.
15 Q. (By Mr. Schwartz) You don't remember if
16 Russell had something to drink, is what you testified to?
17 A. I don't recall. Although, I do suspect that he
18 had some coffee that night but.
19 Q. And as far as clothing, I think all you
20 testified to was you recall a hat?
21 A. Yeah. He wore a hat, I'm pretty sure, but he
22 wore a hat most places, so that wasn't out of the ordinary.
23 Q. But you are absolutely 100 hundred percent
24 certain he was there from 6 o'clock?
25 A. I can guarantee that between the hours of 6:00

924
1 and 9:00, Russell was sitting in my house and was no other
2 place than in my house next to the other four of us.
3 Q. All right.
4 MR. SCHWARTZ: I have nothing further.
5 THE COURT: State?
6 MR. HICKS: No Recross.
7 THE COURT: Thank you. May this witness be
8 released?
9 MR. SCHWARTZ: Yes, Your Honor.
10 THE COURT: Thank you, sir. You may be
11 released.
12 MR. SCHWARTZ: Your Honor, at this time I would
13 call Marshall Bach.
14 THE COURT: Marshall Bach.
15 MARSHALL BACH,
16 a witness, having been duly sworn by the Circuit Clerk to
17 tell the truth, the whole truth and nothing but the truth, so
18 help you God, under the pain and penalty of the Perjury Laws
19 of Missouri, testifies as follows:
20 THE COURT: You may proceed when you are ready.
21 MR. SCHWARTZ: Thank you.
22 DIRECT EXAMINATION
23 BY MR. SCHWARTZ:
24 Q Would you state your name for the jury?
25 A. Marshall Bach.
925
1 Q. Mr. Bach, how old a man are you?
2 A. I am 29.
3 Q. All right. Do you work?
4 A. Yeah.
5 Q. What do you do for a living?
6 A. I'm an auto mechanic.
7 Q. Where do you work?
8 A. Century Motors.
9 Q. How long have you been there?
10 A. Coming up on three years.
11 Q. Do you know Russell Faria?
12 A. Yes.
13 Q. Do you see Russell in the Courtroom?
14 A. Yes.
15 Q. All right. How long have you known Russell?
16 A. Probably for about that same timespan. Two to
17 three years.
18 Q. Two to three years. So if we go back to
19 December of 2011, you think you had known him for a couple
20 years then?
21 A. Maybe a year prior.
22 Q. Maybe a year. How do you know Russell?
23 A. Through friends.
24 Q. All right. Who would those friends be?
25 A. Brandon and Mike.

926
1 Q. Brandon and Mike who?
2 A. Brandon Sweeney and Mike Corbin.
3 Q. All right. Where did you meet Russell?
4 A. Over at Mike's, I believe.
5 Q. Mike?
6 A. Corbin's. Sorry.
7 Q. In what context, how did it come about that you
8 met Russell?
9 A. Through our game night.
10 Q. Describe what is -- for the jury, tell these
11 people what game night is.
12 A. A group of us get together and play a role
13 playing game.
14 Q. What's that game called?
15 A. Role Master.
16 Q. How did you come to be in this clique to play
17 this game?
18 A. There was another guy, but he couldn't play
19 anymore so I took his spot.
20 Q. How did you hear about it? Who told you about
21 it?
22 A. Through my roommate, Brandon Sweeney.
23 Q. Was Brandon playing?
24 A. Yes.
25 Q. You asked if you could play?

927
1 A. Yes.
2 Q. All right. Tell me how the game goes. Just
3 briefly, what's the game about?
4 A. Everybody has their own character and you run
5 around doing whatever.
6 Q. When you say you "run around", do you actually
7 leave the house?
8 A. No. No. Everybody sits at a table.
9 There's -- it's pretty much a board game. You have the
10 actual board on the table, little miniatures. Everybody has
11 their character sheets and everybody sits around the table.
12 Q. What was your role, if you recall, in 2011? Is
13 it different now?
14 A. Yeah. Yeah.
15 Q. Do you recall what it was December of 2011?
16 A. I believe my guy's name was "Devarius". He was
17 a weapons master.
18 Q. What does that mean? Does he hurt people?
19 A. I guess you could say his main thing, his most
20 knowledge was about, obviously, about weapons and battle.
21 Q. All right. Do you remember what Russell's
22 character was?
23 A. I believe he was a monk.
24 Q. All right. How about, do you recall what
25 Angelia's character was?

928
1 A. Her name, I think she was an elf, I believe.
2 Q. All right. Is she still the same character or
3 do you know?
4 A. Yeah. In that game, yes.
5 Q. What about Mike? Does he have a character?
6 A. He pretty much runs the game, so he doesn't
7 have a specific one. He pretty much plays like townspeople,
8 whoever we run across through in our journey.
9 Q. Other than Tuesday game nights, have you ever
10 seen Russell socially?
11 A. A couple times.
12 Q. Where?
13 A. Up at Brandon's.
14 Q. At Brandon's?
15 A. Yeah. Sweeney's.
16 Q. Okay. And that would -- have you ever talked
17 to Russell on the phone?
18 A. No.
19 Q. Do you even know if you have his phone number?
20 A. I don't think I do.
21 Q. Now how long had you participated in the game
22 up until December of 2011?
23 A. Probably half a year to a year, I guess.
24 Q. So six months to a year?
25 A. Yeah.
929
1 Q. Were you the newest game member?
2 A. Yes.
3 Q. All right. And did you enjoy it?
4 A. Yes. It's a lot of fun.
5 Q. Did you go every Tuesday?
6 A. Yes. Unless I was sick or had other plans.
7 Q. What would happen if you weren't there? Let's
8 say, was it always played every, was it played every Tuesday?
9 A. Yes.
10 Q. All right. Did somebody, what if somebody was
11 wasn't there? What would happen?
12 A. Then we would either sit around and watch a
13 movie or play cards. Usually, we just watched movies.
14 Q. Was there another game you could play if people
15 weren't there?
16 A. No, not really because you have to have
17 everybody there to play.
18 Q. All right. And this is the game you were
19 playing?
20 A. Yes.
21 Q. And what's the name of it?
22 A. Role Master.
23 Q. Do you still continue to play it?
24 A. Yes and no. We actually started a new game
25 because we're kind of hung up on the other one.

930
1 Q. Have you seen or talked to Russell since
2 December 27th, 2011?
3 A. No.
4 Q. On December 27th, 2011, did you go to Mike
5 Corbin's house?
6 A. Yes.
7 Q. Did you see Russell there that night?
8 A. Yes.
9 Q. Do you recall what order you arrived in? Did
10 you get there before Russell, after Russell or do you know?
11 A. I believe after. He was there.
12 Q. He was there when you got there?
13 A. Yes. When me and Brandon Sweeney arrived.
14 Q. Did you and Brandon arrive at the same time?
15 A. Yeah. We rode together.
16 Q. Did you live nearby?
17 A. Yes.
18 Q. You and Brandon are roommates; is that correct?
19 A. Yes.
20 Q. Are you still roommates?
21 A. Yes.
22 Q. Now on this night, who else participates in
23 your game, generally?
24 A. Rich May.
25 Q. And?
931
1 A. Angelia. I don't know her last name.
2 Q. Okay.
3 A. And Mike. So it's just me, Brandon, Mike,
4 Angelia and Russ.
5 Q. Was Richard there that night?
6 A. No, he had to work.
7 Q. Did you play your game?
8 A. No, we did not.
9 Q. Why is that?
10 A. Because we didn't have the full party there to
11 play.
12 Q. Do you remember what Russell was wearing that
13 night?
14 A. The least I can recall is he had jeans and a
15 ball cap, but he always had a ball cap.
16 Q. Do you know what time he arrived? What time --
17 put it this way. If he was there before you, what time did
18 you arrive?
19 A. We arrived right about 6:00, 6:05-ish, I guess.
20 Q. And Russell was there?
21 A. Yes.
22 Q. What did you guys do?
23 A. We watched two movies that night.
24 Q. What did you watch?
25 A. "Conan the Barbarian" and "The Road".

932
1 Q. All right. Did you drink alcohol that night?
2 A. No, we did not.
3 Q. Did you smoke marijuana that night?
4 A. Yes, we did.
5 Q. Who is "we"? Did everybody?
6 A. Everybody.
7 Q. All right. A lot, a little?
8 A. A little.
9 Q. All right. And what did you smoke it from?
10 A. Out of a pipe.
11 Q. Okay. Did you watch both movies?
12 A. Yeah. Not all of "The Road".
13 Q. Why not?
14 A. Because it was boring. It's a terrible movie.
15 I don't recommend it.
16 Q. All right. So do you recall what time you
17 left?
18 A. Right about 9:00.
19 Q. All right. Was Russell still there when you
20 left?
21 A. He left 30 seconds to a minute before us.
22 Q. So you basically -- when you say "us", you and
23 Brandon left at the same time?
24 A. Yes, me and Brandon.
25 Q. And do you recall if Russell or if anyone got a

933
1 phone call that night?
2 A. I think he may have checked his phone, but I
3 vaguely, don't really remember.
4 Q. Admittedly, this is a couple years ago. You
5 don't know if he got a phone call or not?
6 A. It's hard to say, honestly.
7 Q. All right. Between the hours of 6 o'clock and
8 9 o'clock, approximately, on Tuesday, December 27, where were
9 you?
10 A. Over at Mike Corbin's.
11 Q. Who else was there?
12 A. Brandon Sweeney, Angela and Russ.
13 Q. When you say "Russ", Russ Faria?
14 A. Yes. Russ Faria.
15 Q. The individual you see in the Courtroom today?
16 A. Yes.
17 Q. Are you absolutely, 100 hundred percent certain
18 of that?
19 A. Yes.
20 Q. Any doubt in your mind?
21 A. No.
22 Q. Were you contacted the next morning by anybody?
23 A. Yes. Two Detectives came to the door.
24 Q. And did they ask you about where you were the
25 night before and who you were with?

934
1 A. Yes.
2 Q. Did you tell them?
3 A. Yes.
4 Q. And did you tell them what you are testifying
5 to here today?
6 A. Yes.
7 Q. Were you then contacted again a few days later?
8 A. We were actually, me and Brandon, were actually
9 contacted that following Wednesday morning, Thursday evening
10 and then Saturday morning.
11 Q. So three times you were contacted by police?
12 A. Three times.
13 Q. Did you know the police were coming when they
14 showed up on Wednesday morning?
15 A. No.
16 Q. Did you know the police were coming when they
17 showed up on Saturday morning?
18 A. No.
19 Q. On Wednesday, did they interview you together
20 or separately from Brandon?
21 A. Together.
22 Q. Did they interview you together or separately
23 from Brandon on Saturday?
24 A. It was -- at the very beginning Thursday, I was
25 out getting food and when I came home they were already
935
1 there, so I would assume maybe a five, ten minute span of
2 time before I got there. So then together and together.
3 Q. What about Saturday?
4 A. They took everybody separately to different
5 police stations.
6 Q. And did you talk to them at length that
7 Saturday?
8 A. I'm sorry?
9 Q. Did you speak with them at length about what
10 you did and what your actions were off that previous Tuesday?
11 A. Yes. It was pretty much the same thing they
12 asked us the two previous times.
13 Q. Have you ever gone anywhere with Russell?
14 A. No.
15 Q. Have you ever been to his house?
16 A. No.
17 Q. Do you even know where his house is?
18 A. Somewhere out in Troy. That's about it.
19 Q. Have you ever met his wife, his kids?
20 A. No.
21 Q. Was there any conversation that you recall that
22 night?
23 A. No. It was a pretty bland night.
24 Q. A pretty ordinary night as far as you recall?
25 A. Yeah.
936
1 Q. Anybody talking about anything specifically?
2 A. No.
3 Q. How do you know it was 9 o'clock when you left?
4 A. I remember looking at the clock in Brandon's
5 car when we left.
6 Q. Did you go anywhere?
7 A. Brandon dropped me off. He went to go get
8 food.
9 Q. For both of you?
10 A. No, just for him. I wasn't hungry.
11 Q. You didn't eat dinner there?
12 A. No.
13 Q. Did people generally have dinner there?
14 A. No. We don't eat over at Mike's.
15 Q. All right. Do you remember if Russell had
16 anything to eat there?
17 A. No. I don't believe he did.
18 Q. Do you know if he was drinking anything?
19 A. Maybe coffee that Mike had made.
20 Q. But that's all you recall?
21 A. Yeah.
22 Q. Okay. Again December 27, how do you remember
23 it was that day?
24 A. I don't know. I guess something like this
25 sticks with you when --

937
1 Q. Police came to see you the next morning?
2 A. Right.
3 MR. SCHWARTZ: I don't have any other
4 questions. Thank you, Marshall.
5 THE WITNESS: You're welcome.
6 THE COURT: State?
7 CROSS-EXAMINATION
8 BY MR. HICKS:
9 Q. Good morning, Mr. Marshall.
10 A. Good morning.
11 Q. Or Mr. Bach. I'm sorry.
12 Maybe I was confused, and I know it's not a big
13 deal, but back when you guys were playing the game together,
14 you actually went by the character "Oden"?
15 A. Yes. That's what it was, the most current
16 character.
17 Q. He was a sorcerer?
18 A. Right. That one is.
19 Q. Back then, at the time of the game when the
20 defendant was playing with you, Russell's character's name
21 was "Devarius"?
22 A. No. That was my character.
23 Q. Okay.
24 A. That was my old character.
25 Q. Okay. And that was right and that was -- you

938
1 were a weapons master?
2 A. Right.
3 Q. And then the defendant, he was a monk, but he
4 was a martial arts expert, correct?
5 A. Yes.
6 Q. Okay. And you had been playing the game quite
7 a while with these guys, correct?
8 A. Yeah.
9 Q. You considered them your friends, right?
10 A. Yeah.
11 Q. I mean, you don't want to play?
12 A. I'm not going to go and play with complete
13 strangers.
14 Q. Right. You did it on a weekly basis?
15 A. Yeah. Every Tuesday.
16 Q. This is something, again, on Tuesday evenings
17 where you guys were spending your time, enjoying a little bit
18 of marijuana?
19 A. Yeah.
20 Q. All right. And role playing, doing these games
21 where you guys go on missions and adventures, correct?
22 A. Yeah.
23 Q. Is it fair to say that, in some ways, you get
24 to know that person's character better than you know, better
25 than you know the real person?

939
1 A. What do you mean?
2 Q. Well, for instance, the defendant here, did you
3 know that he was married?
4 A. Yeah, I did know he was married.
5 Q. All right. Did you know that his wife had
6 cancer?
7 A. I did not know that.
8 Q. Okay. Did you know if he had children?
9 A. I didn't know.
10 Q. Okay. That's what --
11 A. Okay. So yes, I guess I would know more the
12 character than the person.
13 Q. I'm not trying to be tricky here. I'm trying
14 to say, in this game situation, this is about the game,
15 correct?
16 A. Correct.
17 Q. And you get to know, you knew the defendant's
18 character as the monk, as this martial arts expert, better
19 than you knew the real person?
20 A. I guess so.
21 Q. Now I believe it's your testimony that you and
22 Brandon actually arrived at the, on that evening prior to the
23 defendant?
24 A. No. That was wrong. It was, he was there
25 before we got there.

940
1 Q. So you believe that he was there before?
2 A. Yes.
3 Q. Do you remember providing a deposition to me, I
4 mean, not to me but taking a deposition this last summer when
5 you came into one of these rooms here --
6 A. Yeah.
7 Q. -- and I asked you questions?
8 A. Yeah.
9 Q. Okay.
10 MR. HICKS: Permission to approach. I'm sorry.
11 I'm looking at Page 28, Line 10.
12 THE COURT: You may.
13 MR. HICKS: Thank you.
14 Q. (By Mr. Hicks) I'm going to ask you to read
15 Line 10 and then my question, I mean, Line 9 is my question,
16 your response to yourself. Okay?
17 Now I know, again, we're going back a ways,
18 right?
19 A. Right. It's hard to remember a lot of this
20 stuff.
21 Q. I get it. But even just a few months ago when
22 you came back here, was your memory back then, was it not,
23 that you and Brandon actually showed up first then Russ
24 showed up?
25 A. Like I said, it's hard to remember.

941
1 Q. I understand.
2 A. He, he might have been there. I don't know.
3 If any kind of timespan, it's minutes, though.
4 Q. I understand. But I guess the point I'm trying
5 to make is that back in the summer you said this. Now you're
6 saying, you know, your testimony this morning that you
7 believe that, that he was already there when you arrived,
8 correct?
9 A. Yeah.
10 Q. Yes? And since that time, since providing your
11 deposition a few months ago, you have continued to have this
12 game on Tuesday nights, correct?
13 A. Yes.
14 Q. You've continued to have interaction with Mike
15 Corbin, correct?
16 A. Yes.
17 Q. And your roommate, Brandon Sweeney?
18 A. Yes.
19 Q. And Mike's significant other, correct?
20 A. Yes.
21 Q. All right. And you guys actually all came down
22 here together this summer when you did your depositions,
23 correct?
24 A. Yeah. We rode separately but, yeah, we all
25 came --
942
1 Q. At the same time?
2 A. -- as a group.
3 Q. You kind of sat out there, right?
4 A. Yeah.
5 Q. Do you remember if the defendant was drinking
6 anything that night? And I'm not talking about alcohol. I
7 know you already talked about --
8 Everybody was smoking marijuana. We've
9 established that, right?
10 A. Yeah.
11 Q. You believe he was drinking coffee?
12 A. Yeah. Mike always made coffee on Tuesday
13 nights.
14 Q. So this is based upon habit it sounds like,
15 that he always made coffee on this Tuesday night?
16 A. Yeah.
17 Q. Do you actually remember the defendant drinking
18 coffee?
19 A. I'm pretty sure he had a cup.
20 Q. Did you see him with any big bottles of tea?
21 A. I don't recall any tea.
22 Q. Okay. Now you do recall where people were
23 sitting in there during the movie, correct?
24 A. Yeah, for the most part.
25 Q. Well, I'm just going back to your deposition.

943
1 What is your memory today as in regards to who was sitting
2 where?
3 A. Okay. You've got the couch, the chair, another
4 chair. I was in the kitchen chair. I was the only one that
5 didn't have a nice chair.
6 Russ was in the single chair and then Mike,
7 Andge and Brandon were on the couch.
8 Q. So Mike, Andge and Brandon were on the couch.
9 You can remember because you didn't have a comfortable chair?
10 A. Yeah.
11 Q. But you remember the defendant was in the
12 leather chair, right?
13 A. Yeah.
14 Q. And that's what you told, that's what you said
15 a few months ago when you came in here and gave this
16 deposition, correct?
17 A. Yeah.
18 Q. But that was 18 months after the 27th; --
19 A. Yeah.
20 Q. -- correct? And you can remember exactly where
21 everybody was sitting?
22 A. I guess I can.
23 Q. Did anybody leave that room that night?
24 A. No.
25 Q. So you have a memory not just that, I was

944
1 careful about -- and I'm not talking about leaving the house.
2 It's your testimony that nobody that entire
3 three-hour period even got up and went out of the room,
4 correct?
5 A. Correct.
6 Q. Nobody got up and went to the bathroom, the
7 kitchen or anything?
8 A. Maybe Mike would go to the kitchen to get
9 another cup of coffee.
10 Q. Okay. But I believe your testimony back in the
11 summer was nobody got up even to go to the restroom?
12 A. No.
13 Q. Okay. It's your testimony here today that you
14 think you remember the defendant's cell phone going off?
15 A. Vaguely, yeah.
16 Q. Vaguely, you do remember that?
17 A. Yeah.
18 Q. When you leave the house, you guys, I think
19 it's your testimony that you basically left, you and Brandon,
20 who is your -- by the way, Brandon Sweeney, he's your
21 roommate, correct?
22 A. Yes.
23 Q. But you've known him since grade school, right?
24 A. Yes.
25 Q. He's one of your best friends?

945
1 A. Yeah.
2 Q. And he's the one who got you involved in this
3 game?
4 A. Right.
5 Q. And to this day, you continue to be involved in
6 this game basically because of Brandon, right?
7 A. Yes.
8 Q. All right. And so that night when you left,
9 you basically, it's your testimony that you followed the
10 defendant out. You guys kind of all left at the same time?
11 A. Correct.
12 Q. Is that correct?
13 A. Yes.
14 Q. That you remember actually seeing his vehicle
15 pull away?
16 A. Right.
17 Q. Is that correct?
18 A. Yeah.
19 Q. And actually followed it down the street,
20 correct?
21 A. Yes.
22 Q. And you believed it was about what time?
23 A. I believe we left around the 9:00, 9:03 time.
24 Q. You said 9:03 because you said you looked at
25 Brandon's clock in his car and it's 9:03. That's how I

946
1 remember it, right?
2 A. Right.
3 Q. And so it takes you only about two or three
4 minutes to get home, right?
5 A. Correct.
6 Q. You said that Brandon was going to go to, I
7 think, Jack in the Box to get something to eat?
8 A. Yes.
9 Q. And in your deposition, you said that -- you
10 have been up to that Jack in the Box, right?
11 A. Yeah.
12 Q. And across the street is an Arby's, correct?
13 A. Yes.
14 Q. And you told me in the deposition that from
15 your house -- let me ask you this. How close, you said it
16 only took three minutes to get from Mike's house to your
17 house?
18 A. Right.
19 Q. You for a portion of that, you said you were
20 following the defendant in his vehicle?
21 A. Correct.
22 Q. He keeps going straight, you turn off into your
23 subdivision; is that correct?
24 A. It's the street off the main road, yeah.
25 Q. But it's only three minutes away?

947
1 A. Correct.
2 Q. This Jack in the Box with this Arby's across
3 from it, you said from where you live it takes maybe ten to
4 15 minutes to get there; is that correct?
5 A. I guess it's closer to the five, ten minutes.
6 It just depends on how the lights are and the traffic and
7 people.
8 Q. Okay. Did your roommate get anything to eat?
9 A. Yeah, he went to Jack in the Box.
10 Q. I understand he told you he went to -- let me
11 ask you this. Did you see him return with food?
12 A. Yeah, when he got back.
13 Q. Did he have the bag with him?
14 A. Yeah.
15 Q. So he brought the bag with the food in it?
16 A. Yes.
17 Q. And ate it there in front of you?
18 A. Yeah.
19 Q. All right. And what did you guys do that
20 night? Just go to bed?
21 A. Pretty much.
22 Q. All right. So he eats his food and just goes
23 to bed?
24 A. Might have stayed up and watched a little T.V.
25 Q. You are saying that it was the next morning

948
1 that the police came?
2 A. Yes. Two Detectives.
3 Q. And where were you?
4 A. I was sleeping.
5 Q. And where was Brandon?
6 A. Sleeping.
7 Q. So they woke you up?
8 A. Yes.
9 Q. All right. Did you guys both speak, were you
10 both interviewed together?
11 A. Yes.
12 Q. Where at?
13 A. Inside.
14 Q. Inside where?
15 A. His house, Brandon's house.
16 Q. Okay. And do you remember that discussion at
17 all?
18 A. Vaguely. I guess. I mean, it was -- like I
19 said, this was all two years ago.
20 Q. I understand. Did the police ask you to do
21 anything, did they ask you or Brandon to do anything?
22 A. Do anything like what?
23 Q. Well, that's what I'm asking. I know they are
24 asking you questions about the night before, right?
25 A. Right.
949
1 Q. Okay. And they are asking you where you were,
2 correct?
3 A. Yeah.
4 Q. Whether the defendant was with you?
5 A. Right.
6 Q. What you guys were doing?
7 A. Yeah.
8 Q. Right?
9 A. Okay. Yeah.
10 Q. At the end of it, did they say, hey, will you
11 do this for me? Will you get this piece of information or
12 will you go --
13 A. Oh, no. No.
14 Q. They didn't ask you to do anything; they just
15 got information from you?
16 A. Correct.
17 Q. Didn't tell you to keep a hold of anything?
18 A. No.
19 Q. Okay.
22 MR. SCHWARTZ: Nothing further.
24 released?
25 MR. SCHWARTZ: Yes.

950
1 THE COURT: Thank you, sir. You are released.
2 MR. SCHWARTZ: Call Brandon Sweeney.
3 THE COURT: Brandon Sweeney. Mr. Sweeney,
4 would you please come forward and raise your right hand to be
5 sworn by the Clerk?
6 BRANDON MICHAEL SWEENEY,
11 THE COURT: Thank you, sir. If would please
12 have a seat over here at the witness stand.
13 You may inquire when you are ready.
15 BY MR. SCHWARTZ:
16 Q. Would you state your name?
17 A. Brandon Michael Sweeney.
18 Q. And Mr. Sweeney, what do you do for a living?
19 A. I work for the new CMS. The Obamacare.
20 Q. Okay. Having some problems with that?
21 A. Well, I don't particularly deal with that part.
22 I just do the verification stuff. So me, personally, no. No
23 problems with it.
24 Q. Okay. How long have you been doing that?
25 A. I actually just started October.

951
1 Q. Back in 2011, were you working?
2 A. Yes, sir.
3 Q. What did you do back then?
4 A. I worked for a Triple A affiliate. Pretty much
5 calling roadside assistance, renew memberships.
7 A. Yes.
8 Q. Do you see Russell Faria in the Courtroom
9 today?
10 A. Yes, sir.
11 Q. Could you describe what he's wearing?
12 A. A suit and tie and glasses.
13 Q. When is the last time you saw Russell?
14 A. The night of December 27th, I would say.
15 Q. Okay. You haven't seen him or talked to him
16 since?
17 A. No, sir.
18 Q. How do you know it was that night?
19 A. Because it was right after Christmas and before
20 New Year's.
21 Q. All right. What was the occasion that you were
22 seeing Russell about? Why did you see Russell that night?
23 That was a terrible question.
24 A. Okay. Tuesdays we always get together and play
25 a game called Role Master. It's just a role playing game.

952
1 Q. All right.
2 A. And that's what we were doing, usually to meet
3 up on Tuesdays.
4 Q. What does that mean a "role playing" game?
5 A. It's just pretty much you have little
6 miniatures on a mat and roll some dice and it just goes
7 throughout, like a story line.
8 Q. All right. Do you have characters?
9 A. Yes, sir.
10 Q. What was your character?
11 A. My character at the time -- I've had so many.
12 I want to say at the time was a half orc.
13 Q. What is a half orc?
14 A. A half human, half orc, if you have ever seen
15 Lord of the Rings. Just it's -- I don't know. It's kind of
16 hard to explain what an orc is.
17 Q. All right. So is this game sort of loosely
18 based on Lord of the Rings?
19 A. Sort of, yes.
20 Q. Was there somebody not there that particular
21 night?
22 A. Yes, sir.
23 Q. Did you play the game anyway?
24 A. No, sir.
25 Q. Why not?
953
1 A. Because it's kind of hard to continue the story
2 line when somebody is not there.
3 Q. As you testified to earlier, it's sort of like
4 a book. When you miss a main character, you can't continue?
5 A. Correct.
6 Q. Did you know prior to going there that night
7 that you weren't going to be playing?
8 A. I believe so, yes. I believe my --
9 Q. How did you know that?
10 A. My uncle told me he had to work that night.
11 Q. Who is your --
12 A. A couple days before that Tuesday.
13 Q. Who is your uncle?
14 A. Richard May.
15 Q. And how long have you known Russell?
16 A. I've known Russell for awhile now. I'd say
17 ten-plus years.
18 Q. All right. And how old are you?
19 A. I'm twenty-eight.
20 Q. All right. So you have known him since you
21 were in your teens?
22 A. Yes, sir.
23 Q. Longer?
24 A. I'd say probably, maybe 11, 12.
25 Q. And how did you become involved in this game?

954
1 A. Pretty much I broke up with my girlfriend and
2 instead of moping around the house all of the time, my
3 friend, my uncle was always telling me stories of what was
4 going on in the game.
5 I kind of got interested and I went over there
6 one night and loved it. So I just joined up.
7 Q. And the uncle we're talking about is Richard
8 May?
9 A. Correct.
10 Q. And the particular evening we're talking about,
11 he wasn't there?
12 A. Correct.
13 Q. All right. Do you recall when that was, when
14 your uncle brought you to the game, how long before December
15 of 2011?
16 A. I want to say earlier that year, maybe
17 February, March, April. Somewhere in there.
18 Q. So you had been playing -- up to now, you had
19 been playing three years or so, four years?
20 A. Yes.
21 Q. At that point in time, it would have been about
22 a year?
23 A. Correct.
24 Q. And who else played on a regular basis?
25 A. It was me, Russ, my uncle Rich, Mike was the

955
1 game master and then Andge.
2 Q. Okay. And where did you live?
3 A. I lived at 8013 Oak Grove Court, O'Fallon.
4 Q. How far is that from Mr. Corbin's house?
5 A. Oh, less than, I'd say a half a mile, if even
6 that.
7 Q. Do you know where Russ lived?
8 A. At the time, no. I just know out in Troy.
9 Q. You had never been to his house?
10 A. No, sir.
11 Q. What sort of game was this? Was it a violent
12 game?
13 A. Sometimes. I mean, it's -- like I said, it's
14 kind of Lord of the Rings-style, so every once in a while
15 there would be a horde of Orcs that you would have to go kill
16 off because they were trying to raid the town and steal
17 whatever from the town, like goods or like special gems,
18 stuff like that. So every once in a while, yeah, it would
19 get a little violent.
20 Q. Who assigned the missions?
21 A. Mike.
22 Q. Did you ever actually leave to conduct a
23 mission?
24 A. No, sir.
25 Q. The game would stop and continue the next

956
1 Tuesday; is that correct?
2 A. Correct.
3 Q. What was the time that the game was usually
4 played on Tuesdays?
5 A. Usually, from 6:00 to 9:00.
6 Q. Was it pretty much a set time?
7 A. Yes.
8 Q. Pretty much every Tuesday?
9 A. Yes, sir.
10 Q. Had Russell missed recently?
11 A. Not that I'm aware of, no.
12 Q. Did he miss in November?
13 A. I could not recall if he missed November or
14 not.
15 Q. All right. On the, in December of 2011, you
16 said Richard wasn't there?
17 A. Correct.
18 Q. Did you go anyway?
19 A. Yes.
20 Q. What did you do when somebody wasn't there?
21 What sort of other things would you do?
22 A. We either would play like another card game or
23 watch a movie.
24 Q. What did you do that night?
25 A. That particular night, we did watch a movie.

957
1 Q. Do you have any idea if you arrived first,
2 Brandon arrived first or Russell arrived first?
3 A. Russell did arrive first. He was there when me
4 and Marshall both arrived.
5 Q. And you and Brandon arrived?
6 A. Brandon?
7 Q. I'm sorry. You and Marshall arrived together?
8 A. Correct.
9 Q. Do you have any recollection as to what Russell
10 was wearing that night?
11 A. I want to say maybe blue jeans, a hat, maybe a
12 jacket. I can't really recollect exactly what he was
13 wearing.
14 Q. You don't have a specific recollection?
15 A. Not really. I know he was wearing a hat, for
16 sure. I want to say he was wearing blue jeans, and I know he
17 had a jacket because it was wintertime.
18 Q. Did you guys play in the summers?
19 A. Yes, sir.
20 Q. You played every Tuesday?
21 A. Yes, sir.
22 Q. All right. What time did you arrive that
23 night?
24 A. That particular night around 6:00, maybe 6:05,
25 6:10. Somewhere in there.

958
1 Q. Do you have any -- do you know for sure?
2 A. For sure what time, no.
3 Q. Did anybody leave that night? When is -- what
4 movie did you watch first?
5 A. The first movie we watched was "Conan the
6 Barbarian".
7 Q. Did you watch a movie after that?
8 A. Yes, we did. We watched "The Road" after that.
9 Q. Did you watch both movies in their entirety?
10 A. "Conan the Barbarian", yes, to the entirety.
11 "The Road", no. It was kind of boring, so we just kind of
12 stopped watching it.
13 Q. What time did you leave?
14 A. 9:00, 9:03.
15 Q. I'm sorry?
16 A. Nine o'clock, 9:03. Somewhere in there.
17 Q. All right. Prior to the time -- at the time
18 you arrived at 6:00 or 6:05 to the time you left at 9 o'clock
19 or 9:03, did anybody leave that residence?
20 A. No, sir.
21 Q. You are absolutely certain of that?
22 A. Positive.
23 Q. Did Russell stay in that residence?
24 A. Yes, sir.
25 Q. Are you absolutely certain of that?

959
1 A. A hundred percent.
2 Q. Do you recall if Russell left before you or
3 after you?
4 A. He left a little bit before me.
5 Q. What do you mean a "little bit"?
6 A. Thirty seconds to a minute.
7 Q. So you watched him leave?
8 A. Pretty much, yeah. It was pretty much -- we
9 were saying our goodbyes. Russell went out the front door.
10 Me, Marshall and Mike and Andge were saying our goodbyes and
11 seeing what maybe was going on this weekend. Then me and
12 Marshall left after that.
13 Q. Do you recall any conversation that evening?
14 A. What do you mean, exactly?
15 Q. Any discussion of any topics?
16 A. Not really. I can't recall. There might have
17 been like a UFC fight that weekend. I was seeing if maybe
18 they wanted to come down and watch it. That's about it. If
19 there was even that discussion.
20 Q. So there wasn't much talk. It was just
21 watching the movies?
22 A. Yeah.
23 Q. When you left, what did you do?
24 A. I left, went straight to my house, dropped
25 Marshall off and I went to Jack in the Box.

960
1 Q. And that Jack in the Box was how far away from
2 where you were?
3 A. About a half mile.
4 Q. About a half mile. Are there lights in
5 between?
6 A. One.
7 Q. Now the next morning, did anybody show up at
8 your house?
9 A. The two Detectives. Yes, sir.
10 Q. And what did they want?
11 A. They just wanted to question me if Russ was
12 around us last night, the night before. Just stating that
13 Betsy passed away. They didn't really go into detail.
14 Q. Did you tell them whether or not Russ was
15 around there?
16 A. Yes.
17 Q. What did you tell them about that? Did you
18 tell them that Russ was there the entire evening?
19 A. Yes.
20 Q. Was that the truth?
21 A. Yes, sir.
22 Q. Did you talk to them about where you went
23 afterwards?
24 A. Yes, sir.
25 Q. Where was that? Jack in the Box?

961
1 A. Jack in the Box.
2 Q. Did they tell you to keep anything?
3 A. Yes. They told me to keep the receipt that I
4 had because, luckily, I just crumbled it up and threw it in
5 the back seat.
6 The next morning when they came and got me, he
7 asked me to present the receipt in front of him. I went back
8 to my car, unwrapped it up and he said, go ahead and hold on
9 to that.
10 Q. Do you have a copy of it?
11 A. Yes, sir.
12 Q. You kept that this entire time?
13 A. Yes, sir.
14 Q. Where is it?
15 A. It's in my wallet.
16 Q. Could you pull it out of your wallet?
17 A. Yeah. There's the physical receipt. I made a
18 copy of it because I know the ink kind of fades over time.
19 (Defendant's Exhibit N marked for
20 identification.)
21 Q. (By Mr. Schwartz) Now when you were deposed
22 over the summer, Mr. Hicks asked you about this receipt and
23 you pulled it out of your wallet at that particular time?
24 A. Yes.
25 Q. That was the original receipt, correct?

962
1 A. It was both the original and the copy.
2 Q. Could you take a look at what's been marked
3 Defendant's Exhibit N and tell us what that is?
4 A. Exhibit N. A copy of the receipt.
5 Q. All right. And what's the date on that
6 receipt?
7 A. December 27th, 2011.
8 Q. And what time does it show that you arrived at
9 the Jack in the Box?
10 A. 9:13 and 30 seconds.
11 Q. Did you do the drive-thru or did you go inside?
12 A. Drive-thru.
13 Q. Does that all show on the receipt?
14 A. Yes, sir.
15 Q. Does it show how much you paid?
16 A. Yes, sir.
17 Q. What did you do with the food?
18 A. I ate it.
19 Q. Did you eat it there or go home?
20 A. I went home and ate it.
21 Q. All right. Does that receipt accurately depict
22 your transaction from that particular evening?
23 A. Yes, it does.
24 MR. SCHWARTZ: Your Honor, I ask that
25 Defendant's Exhibit N be admitted into evidence.

963
1 THE COURT: Any objection?
2 MR. HICKS: No.
3 THE COURT: Defendant's N is admitted.
4 Q. (By Mr. Schwartz) So when you talked to the
5 Detectives, did you show them the receipt that night?
6 A. Yes.
7 Q. Did you tell them about the receipt?
8 A. Yes.
9 Q. Were you interviewed again by the police?
10 A. Yes.
11 Q. First of all, did you know the police were
12 coming that morning?
13 A. I got a heads up. Marshall got a phone call
14 from Mike saying two Detectives were going to come up to the
15 house. No more than 20 seconds, not even that, they knocked
16 on the door.
17 Q. When did you talk to them again?
18 A. The following night.
19 Q. So Thursday night?
20 A. Yes.
21 Q. Were you and Brandon separated when you spoke
22 to the police on Wednesday?
23 A. Marshall?
24 Q. I'm sorry.
25 A. That's okay. Yeah, Marshall, I believe, went

964
1 into his room and I went into my bathroom.
2 Q. What about Thursday night?
3 A. I'm sorry. Wednesday morning, no, we weren't
4 separated. Thursday night, yes, we were separated.
5 Q. Were you contacted again by the police?
6 A. After that, just to maybe do like a buccal
7 swab. That was months later.
8 Q. Did you ever go to the police station?
9 A. No.
10 Q. So when you were interviewed the next day, it
11 was separate?
12 A. Correct.
13 Q. And did you tell the police on those two
14 occasions what you are telling this jury here today?
15 A. Yes.
16 Q. And on December 27th, from the hours of
17 6:00 p.m. to 9:00 p.m. at night, was Russell Faria in your
18 presence?
19 A. Yes.
20 Q. That entire time?
21 A. Yes.
22 Q. Absolutely, 100 percent certain about that?
23 A. One hundred percent positive.
25 THE COURT: State?

965
1 MR. HICKS: Yes.
3 MR. HICKS: Thank you.
4 CROSS-EXAMINATION
5 BY MR. HICKS:
6 Q. Mr. Sweeney, did I hear you right that you said
7 that Mike Corbin called the next morning to give you guys a
8 heads up that the Detectives were coming?
9 A. Yeah. He was just saying that there were
10 Detectives that were going to come over and talk to us, yes.
11 Q. Did you answer the phone or did Marshall answer
12 the phone?
13 A. It was Marshall.
14 Q. It was Marshall. So you didn't take the phone
15 call from Mike Corbin?
16 A. No. That was pretty much how I got awoken was
17 Marshall knocking on my door saying, hey, Detectives are
18 going to come up and talk to us.
19 Q. Marshall didn't knock on your door and say,
20 hey, the Detectives are here?
21 A. No.
22 Q. He knocked on your door and said the Detectives
23 are coming?
24 A. Correct.
25 Q. All right. When you first took the stand and

966
1 you introduced yourself, I thought I you heard you refer to
2 this as, your testimony about "the night"? Did you use the
3 term "the night"?
4 A. I don't know if I did or not.
5 Q. When we're talking about the 27th, that
6 evening, that's the night that you are saying you were with
7 the defendant for that three-hour period, correct?
8 A. Correct.
9 Q. All right. You are good friends with the
10 defendant, right?
11 A. I wouldn't say good friends but know well of
12 each other, yes.
13 Q. Okay. Well, you have attended barbecues
14 together?
15 A. Correct.
16 Q. Gone on a canoe trip together?
17 A. Correct.
18 Q. You have known him for at least eight years?
19 A. Uh-huh.
20 Q. And in fact, one of his good friends, Richard
21 May, is related to you, correct?
22 A. Correct.
23 Q. And how are you related to Richard?
24 A. He's my uncle.
25 Q. He's your uncle. So how old are you?

967
1 A. I'm 28.
2 Q. You are 28, and the defendant, I think, is in
3 his early 40s?
4 A. I have no clue.
5 Q. But he's quite a bit older than you?
6 A. Correct.
7 Q. He's not even of your same age group?
8 A. Correct.
9 Q. So you have known him since 19, 20 years of age
10 through your uncle?
11 A. Correct.
12 Q. Okay. And you became actively involved in
13 almost a weekly basis back in 2009 with playing these role
14 playing games, correct?
15 A. Correct.
16 Q. Now to beat the dead horse about Role Master,
17 I'm not going to go into that. I'm going to ask you about a
18 different game, okay?
19 A. Okay.
20 Q. Tell me about Talisman. How is that game
21 played?
22 A. Talisman?
23 Q. Talisman.
24 Q. Pretty much you have a card that states your
25 character. There's a big game board and you have got a

968
1 little miniature that you -- there's three different sectors.
2 There's an outside level and a middle level and
3 then an inner level, and the goal of game is to get to the
4 inner level and win.
5 Q. Okay. So is that another type of role playing
6 game?
7 A. In a sense, yeah.
8 Q. Less so than the Role Master?
9 A. Yes. Role Master is straight 100 percent role
10 playing game.
11 Q. Yeah, because you are being imaginative and
12 creative there?
13 A. Correct.
14 Q. The rules of the game Talisman dictate more, --
15 A. Correct.
16 Q. -- is that fair?
17 A. Yes.
18 Q. It sounds like, as opposed to Role Master,
19 Talisman, if you were missing a person, not a big deal,
20 correct?
21 A. Correct.
22 Q. Kind of like playing Risk or something, two to
23 four, six players, whatever?
24 A. Correct.
25 Q. And so you knew on the 27th that your Uncle

969
1 Richard was not going to be able to be there?
2 A. Correct.
3 Q. So you knew that you weren't going to be able
4 to play Role Master, correct?
5 A. Correct.
6 Q. But there was talk about playing Talisman?
7 A. Correct.
8 Q. In fact you sent, you and the defendant
9 exchanged at least a couple of texts that day about, hey, is
10 game still on tonight? Maybe we play Talisman, correct?
11 A. Correct.
12 Q. And I think around 5:57 p.m., you actually sent
13 him a text saying, hey, are you going to show up, Talisman,
14 question mark. Correct?
15 A. Correct.
16 Q. But you guys didn't play Talisman?
17 A. No.
18 Q. You watched a movie?
19 A. Correct.
20 Q. One of them you said was quite boring?
21 A. Correct.
22 Q. Now "Conan the Barbarian", you had seen that
23 movie before, hadn't you?
24 A. The new one?
25 Q. Yes.
970
1 A. No. At that time, that's the first time I had
2 ever seen it.
3 Q. The first time you had seen it. Others had
4 seen it before, hadn't they?
5 A. I'm not aware if they had or not.
6 Q. So you guys decided, instead of playing game on
7 game night -- you could have played Talisman, correct?
8 A. We could have, yeah.
9 Q. You decided not to and to just watch this
10 movie?
11 A. Yeah.
12 Q. Okay. I want to ask you a little bit about
13 this receipt. Where is it?
14 A. Right here.
15 Q. Thank you. I couldn't see it over the ledge.
16 A. That's all right.
17 Q. This is the actual receipt?
18 A. Uh-huh.
19 Q. That's faded. I get it.
20 A. Correct.
21 Q. Now I believe it was your testimony that that
22 night after you got your Jack in the Box, all right, that you
23 crumpled up the receipt and threw it in the back; is that
24 correct?
25 A. Yes, sir.
971
1 Q. That would be this receipt right here --
2 A. Uh-huh.
3 Q. -- that you crumpled up and through in the
4 back? Okay.
5 Then the next morning, you get the heads up
6 that the Detectives are coming, correct?
7 A. Uh-huh.
8 Q. And it's your testimony that they told you at
9 some point during the interview to retrieve this receipt?
10 A. Yes. They asked if I still had the receipt and
11 I said, yes, I still do. Would you like me to go get it?
12 And the Detective said, yes.
13 Q. So you went out to your vehicle?
14 A. Uh-huh.
15 Q. Grabbed this crumpled receipt?
16 A. Uh-huh.
17 Q. Came back, right?
18 A. Yes, sir.
19 Q. But you didn't give it to them?
20 A. I asked him if he wanted it. He said he didn't
21 need it. He told me to hold onto it.
22 Q. Okay. I'm just confused here. You are telling
23 us he asked you to go get it?
24 A. Correct.
25 Q. But then when you brought it back in, he didn't

972
1 want it?
2 A. No. He just looked at it.
3 Q. He just looked at it?
4 A. Uh-huh.
5 Q. And told you to keep it?
6 A. Yes, sir.
7 Q. Okay. That's what you did, correct?
8 A. Exactly.
9 Q. In fact you made a copy of it?
10 A. Uh-huh.
11 Q. Because you knew it might fade?
12 A. Correct.
13 Q. And this last summer, you were -- you provided
14 a deposition, correct?
15 A. Correct.
16 Q. Now prior to that deposition, we had never
17 talked, correct?
18 A. No.
19 Q. You had talked to the defense attorneys?
20 A. Yes.
21 Q. Okay. And you had this receipt?
22 A. Yes.
23 Q. You never turned it over to them?
24 A. No.
25 Q. Okay. Now I think it was characterized in

973
1 the Direct Examination that I asked you about the
2 receipt?
3 A. Correct.
4 Q. Well, how would I have known about the receipt?
5 A. I have no clue.
6 Q. Yeah. Me either, because I'm going ask you to
7 look at Page 20, okay, of the deposition, Line 15.
8 I want you to read to yourself 15 down through
9 25. In fact, read to yourself all the way to the next page
10 through Line 8, okay? Just to yourself.
11 Okay?
12 A. Okay.
13 Q. Do you have any qualms with that question and
14 answer there?
15 A. No.
16 Q. Okay. Did I ask you specifically about the
17 receipt?
18 A. No.
19 Q. No. Okay. In fact, wasn't one of my questions
20 (as read), "All right. You guys just went back to your
21 place?"
22 Do you remember me asking you about that?
23 A. Uh-huh.
24 Q. Talking about, this is after you left Mike
25 Corbin's?
974
1 A. Uh-huh.
2 Q. And you said (as read), "I dropped him off",
3 and I guess you are referring to Marshall?
4 A. Correct.
5 Q. "And then I went to Jack in the Box", right?
6 A. Correct.
7 Q. (As read) "QUESTION: You went to Jack in the
8 Box?" Do you remember that?
9 A. Huh-uh.
10 Q. And your response (as read), "Yes. Do you need
11 a receipt or anything?"
12 A. Correct.
13 Q. "I kept the receipt. The Detective told me to
14 go ahead and keep it just in case."
15 So my question (as read), "No. I wouldn't have
16 thought of keeping the receipt. You had the receipt back
17 then? Yeah. I still have it."
18 And that's when you got it out of your, isn't
19 it at that point, that's when you got it out of your wallet
20 and you say, "Here. I've got a copy"?
21 A. Yes, sir.
22 Q. That's the first time you've ever turned it
23 over to any kind of authority?
24 A. Correct.
25 Q. So I didn't ask you about the receipt, correct?

975
1 A. No.
2 Q. There was nothing in my question that indicated
3 I even knew that you had a receipt?
4 A. No.
5 Q. That anybody knew you had receipt?
6 A. Correct.
7 Q. Everybody was smoking marijuana that night,
8 correct?
9 A. Correct.
10 Q. Do you remember where everybody was sitting?
11 A. Yes, sir.
12 Q. Tell me.
13 A. It was Mike, Andge, me, Marshall and a pull up
14 chair and then Russell like in a sofa chair, sofa seat.
15 Something like that.
16 Q. Anybody drinking anything?
17 A. Not that I remember, no.
18 Q. Okay. Any specific conversations that stands
19 out to you?
20 A. The only one conversation I remember before we
21 started really getting into the movie was Russ mentioning
22 that he convinced Betsy to be able to get rid of his bike to
23 get a new one from his uncle, I believe.
24 Q. So in that three-hour period, the only
25 conversation that you can remember is about this bike?

976
1 A. Correct.
2 Q. And nobody left the room?
3 A. No, sir.
4 Q. Even to go to the bathroom?
5 A. Not that I remember but.
6 Q. Okay. But you do remember Russ's phone going
7 off at least one time?
8 A. Yes.
9 Q. And that he didn't answer it?
10 A. Correct.
11 Q. He looked at it?
12 A. Correct.
13 Q. And then put it away?
14 A. Correct.
16 Well, maybe I do.
18 Q. (By Mr. Hicks) You are familiar with -- you
19 have been around Russ for eight years?
20 A. Yes, sir.
21 Q. He was a smoker, correct? I'm not talking
22 about smoking marijuana. I'm talking about he would smoke
23 cigarettes?
24 A. Every once in a while, yeah, I remember seeing
25 him smoke cigarettes.

977
1 Q. You've been on barbeques and canoe trips?
2 A. To be honest with you, I really can't remember
3 if someone was smoking cigarettes. I mean, I remember him
4 every once in a while smoking a cigarette here and there.
5 Q. I'm just curious because you said there was a
6 three-hour period where nobody got up and left. Usually
7 smokers want to go take a smoke break if they're not smoking
8 in the house.
9 A. Right. I think Mike allows people to smoke in
10 his house.
11 Q. Okay. If there was any smoking going on, it
12 would have been in the house?
13 A. They would have been sitting right there, yes.
14 MR. HICKS: Nothing further.
16 REDIRECT EXAMINATION
17 BY MR. SCHWARTZ:
18 Q. Brandon, this receipt the officer told you to
19 keep, nobody asked you about it until Mr. Hicks actually
20 brought up the fact, or you brought up the fact that summer,
21 last summer that you went to Jack in the Box?
22 A. Correct.
23 Q. And you kept the receipt, Defendant's Exhibit
24 N, because why?
25 A. The Detective told me to.

978
1 Q. And that receipt states that you arrived at
2 Jack in the Box at 9:13 and 30 seconds on December the 27th
3 of 2011, correct?
4 A. Correct.
5 Q. Is there an Arby's across the street from
6 there?
7 A. Yeah. Not directly across the street. Maybe,
8 you could see it from Jack in the Box, yes.
9 Q. All right. And again, Russell was with you, in
10 the same room with those other people you talked about, from
11 6 o'clock to 9 o'clock on Wednesday, or Tuesday, December 27,
12 2011?
13 A. Yes, sir.
16 MR. HICKS: One Recross.
17 RECROSS-EXAMINATION
18 BY MR. HICKS:
19 Q. Again, I know you just said, again, for that
20 three-hour period he was with you. It's also your testimony
21 that you left basically at the same time?
22 A. Yes, sir.
23 Q. And that you got in your vehicle and you were
24 driving?
25 A. Yes, sir.
979
1 Q. And that you remember it was 9:03?
2 A. Yes, sir.
3 Q. Because I remember hearing something about your
4 mind working on something, was it, 9:03, 9:06?
5 A. Multiples of three.
6 Q. Whatever. But that's the reason you can
7 remember 9:03?
8 A. Yes, sir.
9 Q. You are following the defendant out?
10 A. Correct.
11 Q. Do you remember what color his vehicle was?
12 A. I mean it, it -- I want to say. I can't really
13 remember what exact color it was. Blue-ish. Green-ish.
14 Maybe had some tan trim pieces.
15 Q. Do you remember me asking you that question in
16 your deposition?
17 A. Yes, sir.
18 Q. Okay. Do you remember what you told me back
19 then?
20 A. After I read my deposition, yeah.
21 Q. Okay. What color did you tell me it was in
22 your deposition?
23 A. I think I said it was brown.
24 Q. A brown?
25 A. A brown Blazer, maybe, I said.

980
1 Q. Right. But today you are saying dark blue.
2 Dark?
3 A. Yeah, a dark blue-ish, green-ish. Like I said,
4 it has brown, tan trim pieces.
5 Q. You weren't talking about trim back then.
6 A. No.
7 Q. You were talking about it was a tan vehicle?
8 A. Right.
9 Q. Now you are saying today that it was dark; and
10 you read over your deposition, right?
11 A. Correct.
12 Q. Is that because you found out actually that his
13 vehicle was in fact dark or not tan?
14 A. No. He had two vehicles. I remember a long
15 time ago, like I said, I've known Russell for a long time, he
16 did have a brown Chevy Blazer. He also had a PT Cruiser and
17 then he had another SUV.
18 Q. I understand he may have had other vehicles.
19 I'm talking about your memory, your recollection of that
20 night, because mine works in digits of three; 9:03. I'm
21 being exact. Following this guy out and you in the
22 deposition you said it was a tan Blazer?
23 A. Right.
24 Q. Now you are saying it's dark?
25 A. Correct.
981
1 Q. That's because, in fact, you found out he drove
2 a dark Blazer, correct?
3 A. It's not a Blazer, but, yes.
4 Q. I mean a dark color vehicle?
5 A. A SUV.
6 Q. And not a tan vehicle?
7 A. Correct. But like I said, the trim pieces were
8 tan itself. That's what my eye might have caught.
11 FURTHER REDIRECT EXAMINATION
12 BY MR. SCHWARTZ:
13 Q. After you left Mike's, you didn't go straight
14 to Jack in the Box, did you?
15 A. No.
16 Q. Where did you stop?
17 A. I stopped at my house.
18 Q. Why?
19 A. To drop off Marshall because he didn't want to
20 have any food.
21 Q. And then you went to Jack in the Box?
22 A. Correct.
23 Q. And you arrived there at 9:13 or at least you
24 ordered your food at 9:13?
25 A. Correct.
982
2 THE COURT: Thank you. State?
4 THE COURT: May this witness be released?
6 THE COURT: Thank you, sir. You may be
7 released.
8 THE WITNESS: Thank you.
9 MR. SCHWARTZ: At this time we call Angelia
10 Hulion.
11 MS. ASKEY: May we approach?
12 (Off the record discussion at the bench.)
13 ANGELIA MARIE HULION,
18 THE COURT: Thank you. If you would please
19 have a seat over here on the witness stand.
20 You may proceed when you are ready.
22 BY MR. SCHWARTZ:
23 Q. Would you please state your name for the
24 record?
25 A. Angelia Marie Hulion.

983
1 Q. Angelia, could you move up a little bit so we
2 can hear you? Stay close to the microphone.
3 State your name once more.
4 A. Angelia Marie Hulion.
5 Q. How old are you Angelia?
6 A. Forty.
7 Q. Where do you live?
8 A. In O'Fallon, Missouri.
9 Q. Who do you live with?
10 A. Michael Corbin.
11 Q. How long have you and Mike been together?
12 A. Oh, 20 years.
13 Q. Do you guys have a child?
14 A. Yes.
15 Q. All right. What do you do for a living?
16 A. I work for the Clean Uniform Company.
17 Q. How long have you been doing that?
18 A. Sixteen years.
19 Q. Same company?
20 A. Yes.
22 A. Yes, I do.
23 Q. Do you see Russell?
24 A. Yes, I do.
25 Q. What is he wearing?
984
1 A. He's right there.
2 Q. How long have you known Russell?
3 A. Fifteen years.
4 Q. Do you socialize with Russell?
5 A. Very little.
6 Q How often do you see him? Well, have you seen
7 him just since December 27th of 2011?
8 A. No.
9 Q. Have you spoken to him since that date?
10 A. No.
11 Q. That was a Tuesday?
12 A. Yes.
13 Q. What did you normally do on Tuesday evenings?
14 A. Tuesday evenings we would get together and play
15 games.
16 Q. When you say "we", who is "we"?
17 A. Brandon, Marshall, myself, Michael, Russell,
18 Richard.
19 Q. All right. And Richard who?
20 A. May.
21 Q. And of all of those individuals you just named,
22 there's six people?
23 A. Yes.
24 Q. And what did you guys do?
25 A. That -- Tuesdays? Normal Tuesdays?

985
1 Q. What you did you do on a normal Tuesday?
2 A. Played games.
3 Q. What kind of games?
4 A. Role playing games, board games.
5 Q. All right. Was there a particular game that
6 you were playing at the time, a role playing game?
7 A. At the time we were playing Role Master.
8 Q. All right. Did you have a character?
9 A. Yes.
10 Q. What is your character?
11 A. My character was a half elf female.
12 Q. All right. Did you play it -- do you recall
13 Russell's character?
14 A. Yes. He was a monk, I believe.
15 Q. How long had he been that character, if you
16 recall?
17 A. I think we played several years.
18 Q. So he had been a monk for several years?
19 A. Yes.
20 Q. Were you that half elf character for several
21 years?
22 A. Yes, I was.
23 Q. How long had you been playing that game with
24 Russell?
25 A. The same, about three or four years.

986
1 Q. All right. Did new members join your group
2 within the past year?
3 A. Before that. Before that they did.
4 Q. Let's say --
5 A Before Russell.
6 Q. All right. Before Russell, then, who joined
7 after Russell?
8 A. After Russell we had Marshall join.
9 Q. All right. Did someone join after Marshall?
10 A. No.
11 Q What about Brandon?
12 A. Brandon was in before Marshall.
13 Q. Oh, Brandon was in before Marshall?
14 A. Yes.
15 Q. And then Marshall and Brandon, do they reside
16 together?
17 A. Yes.
18 Q. They are roommates?
19 A. Yes, they are.
20 Q. Okay. Why did you play it that particular
21 night?
22 A. That particular night, Richard May had to work
23 late, I believe, and he wasn't going to come. So we just
24 decided not to play.
25 Q. Who makes that decision?

987
1 A. Well, usually we just make that decision. If
2 someone is not going to, then we all decide not to play.
3 Q. And this is pretty much a standard thing on
4 Tuesday nights?
5 A. Yes.
6 Q. What times do you play on Tuesdays?
7 A. Around 6:00 to about 9 o'clock.
8 Q. All right. That particular Tuesday, do you
9 recall what time, did anybody deviate from the normal time?
10 A. Normal time? No.
11 Q. Did Russell show up that night?
12 A. Yes.
13 Q. Do you have a recollection as to what Russell
14 was wearing that evening?
15 A. Oh, I only remember a ball cap and jeans.
16 Q. All right. You don't remember what kind of
17 shirt he had on?
18 A. A T-shirt, I believe.
19 Q. Did he show up before or after Brandon and
20 Marshall, if you recall?
21 A. He showed up first.
22 Q. All right. And what did you guys do?
23 A We, Michael and I were already watching a
24 movie.
25 Q. What was the movie?

988
1 A. "Conan the Barbarian".
2 Q, How do you remember that?
3 A. How do I remember that? I've only talked about
4 it, I guess, five or six different occasions now, so it's
5 pretty stuck in my mind.
6 Q. Did you watch another movie that night?
7 A. We started to watch another movie.
8 Q. Do you recall that movie?
9 A. "The Road".
10 Q. Do you remember that for the same reason?
11 A. Yes.
12 Q. Did you finish watching the movie "The Road"?
13 A. No.
14 Q. Why not?
15 A. It was getting late and everyone seemed to be
16 tired and bored with it so.
17 Q. All right. Did you have anything to drink that
18 night?
19 A. No, I didn't.
20 Q. Were people drinking alcohol?
21 A. No.
22 Q. Was there some marijuana smoked?
23 A. Yes, a little.
24 Q. All right. If you recall, what was it smoked
25 out of?
989
1 A. A pipe.
2 Q. All right. Did you smoke?
3 A. I did.
4 Q. Did Russell?
5 A. I believe so.
6 Q. Do you know if everyone else did, as well?
7 A. I would assume. I did not, I wasn't
8 watching --
9 Q. You weren't paying attention?
10 A. -- so I don't know.
11 Q. Do you recall any specific conversations that
12 night?
13 A. The only conversation I recall is a little
14 about Christmas. Everyone asking how was Christmas, so
15 forth.
16 Q. Was that just when people arrived?
17 A. Yes. Pretty much.
18 Q. No other specifics?
19 A. No, not really.
20 Q. All right. And what time did people leave that
21 night?
22 A. About 9 o'clock.
23 Q. All right. Did anyone leave during the hours
24 of 6 o'clock to 9 o'clock?
25 A. Oh, no.
990
1 Q. Absolutely, positively certain about that?
2 A. I am certain. Everyone was in the same room
3 the whole time.
4 Q. No doubt in your mind?
5 A. No doubt whatsoever.
6 Q. Did Russell Faria ever leave that residence
7 between 6 o'clock and 9 o'clock on December 27, 2011?
8 A. No, sir. Not until 9:00.
9 Q. And were you then approached or contacted the
10 next morning?
11 A. Yes, the next morning.
12 Q. By whom?
13 A. Detectives, I believe.
14 Q. Did they ask you some of the questions that I'm
15 asking you now?
16 A. Yes.
17 Q. Did you tell them -- what did you tell them?
18 A. Basically the same thing. He came over around
19 6:00 left around 9:00.
20 Q. Did you talk about the game and why you played
21 or why you couldn't play it, I mean?
22 A. I think they asked us what we did and we told
23 them we watched movies. We didn't discuss playing games.
24 Q. Did you tell them who else was there?
25 A. Yes.
991
1 Q. Did you include Brandon and Marshall?
2 A. Yes.
3 Q. Did you include Russell?
4 A. Yes.
5 Q. And were you then reinterviewed a few days
6 later?
7 A. Yes, on Saturday.
8 Q. Now that first interview on Wednesday morning,
9 were you interviewed together or separately from Michael?
10 A. Together with Michael the first time.
11 Q. All right. And the second time?
12 A. The second time, separately.
13 Q. Were you taken anywhere to be interviewed?
14 A. Chesterfield.
15 Q. Police station?
16 A. The police station, uh-huh.
17 Q. Were you interviewed individually?
18 A. Uh-huh, yes. Separate vehicles, separate
19 rooms.
20 Q. Did you talk to the police at length on that
21 Saturday morning?
22 A. Yes.
23 Q. And did they ask you the details that we're
24 going over now?
25 A. Yes.
992
1 Q. Did you tell them those details?
2 A. I told them everything they asked.
3 Q. And did that include from 6:00 p.m. to
4 9:00 p.m. on that Tuesday, the 27th, that Russell was in the
5 same room with you?
6 A. Yes.
7 MR. SCHWARTZ: I have nothing further.
8 THE COURT: State?
9 CROSS-EXAMINATION
10 BY MR. HICKS:
11 Q. How do you say your last name? I'm sorry.
12 A. Hulion.
13 Q. Ms. Hulion, do you know the defendant? You've
14 known him for quite a while, correct?
15 A. Yes.
16 Q. You knew him primarily through your husband,
17 not your husband but your common-law husband?
18 A. Yes.
19 Q. Mike Corbin, correct?
20 A. Uh-huh.
21 Q. And that's because you guys have been playing
22 games for a long time?
23 A. Yes.
24 Q. All right. Now prior to even you all playing
25 the games together, Mike has been playing these role playing
993
1 games for a long time, correct?
2 A. I believe since he was a child.
3 Q. All right. And since you have been with him,
4 which has been how long?
5 A. Twenty years.
6 Q. What kind of role playing games does he play?
7 A. Various different role playing games. War
8 Hammer, Role Master, Shatter Zone. Rifts. I can list --
9 I mean, they are all basically role playing games.
10 Q. A lot of role playing games?
11 A. Yes, science fiction role playing games.
12 Fantasy.
13 Q. Fantasy and science fiction?
14 A. Yes.
15 Q. Did you ever play Dungeons and Dragons?
16 A. We did many years ago.
17 Q. Okay. That night of the 27th, can you tell me
18 where everybody was sitting?
19 A. I believe Michael, Brandon and myself were on
20 the couch. Russell was in the chair across from me and
21 Marshall had his own chair.
22 Q. Okay. And besides smoking marijuana, nobody
23 was drinking alcohol?
24 A. No.
25 Q. Was anybody drinking anything?

994
1 A. I believe we usually have coffee made.
2 Q. Coffee?
3 A. Probably coffee.
4 Q. Probably coffee. And do you recall that Russ
5 received the, the defendant received one phone call that
6 night, correct?
7 A. His phone went off.
8 Q. You recall his phone went off that night?
9 A. Yes.
10 Q. One time?
11 A. Yes.
12 Q. And that he looked at it and then put it away?
13 A. Yes.
14 Q. But you don't recall exactly what time that
15 was?
16 A. I do not.
17 Q. Okay. And I know you were asked about
18 conversations and you said there was maybe some talk about
19 Christmas because this was only two days after?
20 A. Yes. Yes.
21 Q. But it's also true the one conversation you
22 remember is about Russ talking about this motorcycle that he
23 possibly was going to buy, correct?
24 A. Yes. That was in the beginning along with
25 Christmas.
995
1 Q. I understand.
2 A. It was part of that conversation.
3 Q. But other than that, you don't remember any
4 other conversations?
5 A. There weren't really -- We were just watching a
6 movie.
7 Q. Just watching a movie for three hours together?
8 A. Basically. I mean, most of them hadn't seen
9 the movie so.
10 Q. You had?
11 A. Yes.
12 Q. And Mike had?
13 A. Yes.
14 Q. Okay. And you could have played another game?
15 A. We could have.
16 Q. I mean, there was talk about playing Talisman,
17 wasn't there?
18 A. No. We didn't discuss playing any games that
19 night.
20 Q. You didn't discuss any --
21 A. No.
22 Q. Maybe playing a different game?
23 A. No.
24 Q. Because Talisman wouldn't have required six
25 people?
996
1 A. No, it doesn't. Role playing game doesn't
2 either.
3 Q. Well, except that it becomes difficult because
4 you have got to have the characters out.
5 A. We have to have an established group, right.
6 Yes.
7 Q. Right. This established group is a group that
8 met on a weekly basis in your house?
9 A. Uh-huh.
10 Q. And you would consider -- these were a group of
11 friends?
12 A. I would consider them friends, yes.
14 Thank you.
15 MR. SCHWARTZ: I have nothing further, Your
16 Honor.
18 released?
20 THE COURT: Thank you, ma'am. You may be
21 released.
22 Do you want to approach?
24 THE COURT: Ladies and gentlemen of the jury,
25 at this time we are going to break for lunch.

997
1 The Court again reminds you of what you were
2 told at the first recess of the Court. Until you retire to
3 consider your verdict, you must not discuss this case among
4 yourselves or with others or permit anyone to discuss it in
5 your hearing. You should not form or express any opinion
6 about the case until it is finally given to you to decide.
7 Do not do any research or investigation on your
8 own about any matter regarding this case or anyone involved
9 with the trial. Do not communicate with others about the
10 case by any means. Do not read, view or listen to any
11 newspaper, radio, electronic communication from the Internet
12 or television report of the trial.
13 And also the Court wants to let you know, it's
14 the intention of Counsel to try to finish today. They have a
15 few more witnesses and then we will have to do jury
16 instructions, some other things. That may not happen, but
17 they are going to try.
18 So if you need to make arrangements so to kind
19 of have things in order in case we go tonight and, again,
20 we'll play that by ear. But if that's the case, it may be a
21 late night but that would mean you may not have to come back
22 again. So we will work on that, as well.
23 We will try to resume Court at about 1:45. If
24 you could maybe try to be back at 1:40. Thank you.
25 Please rise for the jury.

998
1 (The jury left the Courtroom.)
2 (Recess.)
3 THE COURT: For the record, we are making an
4 Offer of Proof on behalf of the defendant at this time for --
5 I'll let you finish that.
6 MR. SCHWARTZ: Your Honor, I would be calling
7 Linda Hartmann to further my Offer of Proof regarding the
8 life insurance issue.
10 MR. SCHWARTZ: Just as a matter of course for
11 the record, I think it's well-versed as to the Orders as to
12 whether I can and cannot get -- what I can and cannot get
13 into regarding life insurance of Betsy Faria.
14 LINDA HARTMANN,
20 BY MR. SCHWARTZ:
21 Q. Ms. Hartmann, would you please state your
22 name?
23 A. Linda Hartmann.
24 Q. Did you know Betsy Faria?
25 A. Yes.
999
1 Q. How did you know Betsy?
2 A. Betsy is a relative of my husband. Betsy's
3 husband is a relative of my husband and I met her through the
4 family, and I found out she had breast cancer and that's when
5 I got in touch with her because I had just got over breast
6 cancer, too.
7 Q. So you and Betsy both, at least at one point in
8 time, were both survivors of breast cancer?
9 A. Yes.
10 Q. But she had a recurrence of her breast cancer?
11 A. Yes.
12 Q. Would you consider yourselves close friends?
13 A. Yes.
14 Q. Extremely close friends?
15 A. Yes.
16 Q. Did you go on the quote, unquote, what had
17 become termed as the "Survival Cruise" with Betsy and others?
18 A. Yes, I did.
19 Q. And who else went on that cruise?
20 A. Rhonda. My husband.
21 Q. Did Russell go on the cruise?
22 A. I'm sorry?
23 Q. Did Russell Faria go on the cruise?
24 A. Russ -- yes. They were in the next room to us.
25 Q. Did Janet Myer, Betsy's mother go on the

1000
1 cruise?
2 A. Yes.
3 Q. And then a friend of Janet's went on the
4 cruise?
5 A. Yes.
6 Q. And then when you got home just prior to
7 Christmas weekend, did you and Betsy go on a trip somewhere?
8 A. Yes. We went to Branson.
9 Q. And what days did you go to Branson?
10 A. We went, I think we went the Monday or the
11 Tuesday before Christmas, and we came back on the Thursday
12 evening. We could have stayed for a couple more days.
13 Q. Why didn't you?
14 A. Because Betsy had to go home to meet Pam. She
15 had to meet Pam about 9:30 in the morning she said; and I
16 kept on saying, isn't it a shame to leave, you know, the trip
17 when we had time off work and we could all stay extra because
18 it was a timeshare and she said, no, she had to go back
19 because she had a meeting with Pam.
20 Q. Okay.
21 A. And she didn't want to go to the meeting with
22 Pam.
23 Q. She told that to you?
24 A. Yes, she did.
25 Q. And what did Betsy tell you -- did she indicate

1001
1 to you there was anything good -- what did she tell you about
2 her passing, her eventual passing?
3 A. She said to me, one day she just said to me,
4 "Linda, do you know I'm okay about passing on?" Because we
5 had not spoken about, you know, her leaving; and I got very
6 sort of emotional about it when she said that and I said,
7 yes, and she said, I'm okay with passing on because when I
8 leave, I'm going to be leaving life insurance with Russ and
9 the two girls so it's going to be split into three.
10 She said, so I'm really, you know, pleased that
11 I've, I've been able to do something once I've been here.
12 Q. So she thought there was at least some good out
13 of what she thought would be her eventual passing?
14 A. Yes.
15 Q. And that was on your way back here? When was
16 that conversation?
17 A. That conversation was before we went to
18 Branson.
19 Q. Okay.
20 A. It was at my house just before we went to
21 Branson. So she probably came over to my house when she
22 picked us up, and then we all went on to Branson.
23 Q. So that would be approximately, unfortunately
24 about a week before she died?
25 A. Yes. Yes.
1002
1 MR. SCHWARTZ: I have nothing further, Your
2 Honor.
3 THE COURT: State?
4 CROSS-EXAMINATION
5 BY MR. HICKS:
6 Q. Ma'am, what is your relationship to the
7 defendant, Russell Faria?
8 A. Who?
9 Q. Are you related to the defendant, Russell
10 Faria?
11 A. No. I am, I am through marriage, yes. Russ is
12 my husband's late wife's nephew.
13 Q. Okay. So by marriage you are related?
14 A. Yes. And they, you know, they grew up
15 together. Not grew up together, but they were very much in
16 the family.
17 Q. Okay. And everything I believe that you
18 just testified about is information that Betsy Faria,
19 the deceased, relayed to you prior to her death at some
20 point?
21 A. Yes.
23 MR. SCHWARTZ: Nothing further. Thank you very
24 much, Ms. Hartmann.
25 THE COURT: Thank you.

1003
1 May this witness be released?
3 THE COURT: Thank you, ma'am. You are free to
4 go or stay as you choose.
6 THE COURT: Anything else before we bring in
7 the jurors?
8 (The jurors entered the Courtroom.)
9 THE COURT: Thank you. You may be seated.
10 For the record, we will call through the roll
11 of the jurors. Number 2, 3, 4, 11, 12, 15 -- 15, 27, 29, 35,
12 38, 39, 44, 51, Juror 51?
13 JUROR NUMBER 51: Yes.
14 THE COURT: And 58 and 61. Thank you. For the
15 record, all jurors are present.
16 The defendant may proceed with his case.
17 MR. SCHWARTZ: Your Honor, at this time we
18 would call Officer Frye.
19 THE COURT: Officer Frye.
20 DEAN FRYE,
25 THE COURT: Proceed when you are ready.

1004
3 BY MR. SCHWARTZ:
4 Q. Would you state your name, please?
5 A. Dean Frye.
6 Q. Are you employed?
7 A. I'm a Detective with the O'Fallon, Missouri,
8 Police Department and attached to the Major Case Squad of
9 Greater St. Louis.
10 Q. All right. So it's Detective Frye?
11 A. Yes.
12 Q. How long have you been a Police Officer?
13 A. Sixteen years now.
14 Q. How long have you been with the Major Case?
15 A. Three years, I believe.
16 Q. Three years. Were you assigned to an
17 investigation in December 2011 up in Lincoln County?
18 A. Yes, I was.
19 Q. And as part of that investigation, you received
20 information as to locations where Russell Faria had stated he
21 had been; is that correct?
22 A. Yes, I did.
23 Q. And as a result of that information, what did
24 you do?
25 A. We went to those locations and tried to attain

1005
1 either video surveillance or receipt for that location, if
2 they didn't have the video surveillance.
3 Q. And those locations were what?
4 A. They were the Conoco in Troy, the U-Gas in
5 Wentzville, the -- I believe it's Crane's or -- I can't
6 remember the name of the Country Store.
7 Q. Would that be Greene's Country Store?
8 A. Yes. Greene's Country Store on Highway N and
9 the QuikTrip there. I believe it would be a Lake St. Louis
10 address.
11 Q. Do you know the date or the time that you went
12 to retrieve these items?
13 A. Not off the top of my head, no.
14 Q. Was it very soon thereafter, after you received
15 this information?
16 A. Yes.
17 Q. Possibly the next morning?
18 A. I believe so.
19 Q. All right. Were you successful in retrieving
20 videos and/or receipts?
21 A. Yes.
22 Q. Specifically from Conoco, do you know if you
23 received a video or a receipt?
24 A. Video.
25 Q. And from U-Gas?

1006
1 A. A video.
2 Q. Greene's Country Store?
3 A. A receipt.
4 Q. And QuikTrip?
5 A. A video.
6 Q. Video. All right. We don't have copies of the
7 DVDs. They are actually in the projector.
8 MR. SCHWARTZ: Judge, with your permission,
9 could I show him the actual DVDs that were obtained?
10 THE COURT: Yes.
11 Q. (By Mr. Schwartz) It may serve you better if
12 you may step down, Officer.
13 A. Certainly.
14 MR. SCHWARTZ: Judge, I realize these haven't
15 been admitted into evidence yet, but I don't believe there's
16 an objection. I believe the State has seen them.
17 I would ask they be admitted into evidence and
18 would have the Officer identify them that way.
19 THE COURT: Does State have any objection?
20 MR. HICKS: No, Judge.
22 You may proceed. Then are you going to name
23 these something?
24 MR. SCHWARTZ: We will call them Defendant's
25 Exhibits -- it's all on one disk. So it's Defendant's

1007
1 Exhibit O, and we'll mark it after we're done.
2 THE COURT: Perfect.
3 Q. (By Mr. Schwartz) Officer, do you recognize --
4 this video hasn't started. Just based on what you are
5 seeing, can you recognize where this video is from?
6 A. I'm not certain. I believe it's the Conoco.
7 Q. Okay.
8 MR. SCHWARTZ: Why don't you go ahead and turn
9 it on and show him.
10 Q. (By Mr Schwartz) If you could stop us when you
11 see Mr. Faria or if you do, in fact, see Mr. Faria in one of
12 the frames?
13 A. The image down at the middle, bottom I think is
14 where his car was parked. He was standing to the right of
15 it.
16 Q. He was standing to the right of the middle one
17 at the bottom?
18 A. Right here. That's him there.
19 Q. All right. Stop it. All right. Now did you
20 get a time from Conoco that this video was taken?
21 A. Yes, I did.
22 Q. What was that time, if you recall?
23 A. I don't recall the exact time.
24 Q. Would that be approximately from 5:16 to 5:20
25 on December the 27th?

1008
1 A. It could have been.
2 Q. Do you disagree with that time?
3 A. Not from my recollection, no.
4 Q. Do you have your report with you?
5 A. Yes, I do.
6 Q. Would it help you to refresh your recollection?
7 A. Certainly.
8 Q. Officer, while you are looking. You didn't
9 divide this into six videos? This is how Conoco had it when
10 you seized it, correct?
11 A. Yes, sir.
12 Q. Okay.
13 A. The report states that video showed Faria
14 pulling to Pump No. 9 at 1716 hours on 12/27/2011 and driving
15 away at 1720 hours.
16 Q. So that would be 5:16 to 5:20 on 12/27/2011,
17 correct?
18 A. Yes.
19 Q. I want to go ahead and play -- if you want to
20 come down. You watched that video, correct?
21 A. Yes.
22 Q. He just pumps the gas. Never goes to the
23 store?
24 A. That's my recollection.
25 Q. Just pays at the pump? Never does anything

1009
1 else?
2 A. That's my recollection.
3 Q. Do you know if Mr. Faria comes up again on the
4 video?
5 A. I don't believe he does.
6 Q. He doesn't. We're good. You had documentation
7 of him paying at the pump and appearing on the video between
8 5:16 and 5:20?
9 A. Yes, sir.
10 Q. After that, did you go to -- I think the next
11 place you said U-Gas?
12 A. Yes.
13 Q. Was there a video taken at U-Gas?
14 A. Yes, sir.
15 Q. Were you able to secure that video?
16 A. Yes, I believe so.
17 MR. SCHWARTZ: This will be part of Defendant's
18 Exhibit O.
19 THE COURT: The State, I believe, already
20 expressed no objection to Defendant's Exhibit O, so it's
21 admitted into evidence.
22 Q. (By Mr. Schwartz) Could you note the time on
23 the screen, Detective?
24 A. The bottom right-hand corner says 1725 and 29
25 seconds and counting.

1010
1 Q. Now you have no idea if that time is
2 synchronized with any other clocks, do you?
3 A. I do not, but I know -- I believe that store
4 was four minutes off from Greenwich Mean Time with our
5 research on that time.
6 Q. Officer, when you went there to seize the
7 video, you had an approximate time that Mr. Faria had
8 indicated he was there, right?
9 A. Yes, I did.
10 Q. You were going through videos just like we are
11 now?
12 A. Yes.
13 Q. Officer, in the interest of moving forward,
14 based on your report, do you know what time he came in?
15 A. There's a blue slide bar. If you move that to
16 the middle part of the video, that's where you'll see him.
17 The gentleman stands to the right of the employee then
18 crosses behind this employee. That's when he pops in.
19 Q. Are we about there then? Right there?
20 A. Should be coming up after this.
21 Q. Okay.
22 A. That's him there.
23 Q. You were able to confirm?
24 A. Just through the video and what I would
25 describe as his clothing.

1011
1 Q. And that's the same clothing that was described
2 to you he was wearing when he was arrested later that evening
3 when the police were called, correct?
4 A. Yes.
5 Q. And that clothing was ultimately seized and
6 sent to the lab, as far as you know?
7 A. I believe it was.
8 Q. Okay. Does he come back in or anything after
9 that?
10 A. No, sir.
11 Q. Thank you, Officer. The next place you went
12 was Greene's Country Store; is that correct?
13 A. Yes.
14 Q. And at Greene's Country Store, you were able to
15 retrieve a receipt?
16 A. Yes, I did.
17 Q. Just a minute, Officer. Do you have a copy of
18 it?
19 A. Yes, sir. I do.
20 (Defendant's Exhibit P marked for
21 identification.)
22 Q. Is this a copy, Officer?
23 A. Yes, it is.
24 Q. Does this copy, Defendant's Exhibit P,
25 reasonably depict that receipt that you seized that

1012
1 particular evening?
2 A. Yes, it does.
3 Q. I know that the writing is small and the lights
4 are off. Can you read it? Would you prefer the lights on?
5 A. I can read it with it off.
6 Q. Okay. What does it say?
7 A. On top it says (as read), "Greene's Country
8 Store". Not sure what it has after that. It says, "Address
9 8621 Highway N, Lake St. Louis, Missouri". The zip code is
10 illegible. The phone number is "(636) 562" -- it looks like
11 "6037" but it's hardly legible.
12 Q. Let me stop you, Officer. What time was that
13 receipt stamped?
14 A. It was stamped 12/27/2011 at 1752:16.
15 Q. Which would be 5:52?
16 A. Yes, sir.
17 Q. Right. And as far as that clock goes, was that
18 clock checked to see if it was synchronized with your clock
19 or you don't know?
20 A. I don't know that it was.
21 Q. How do you know that that receipt was the
22 receipt Russell Faria used to purchase something?
23 A. It was obtained by his credit card information.
24 It also has his name, first and last name at the bottom and
25 his signature.
1013
1 Q. What was purchased?
2 A. Dog food.
3 Q. All right.
4 MR. SCHWARTZ: I would ask for the admission of
5 Defendant's Exhibit P.
6 THE COURT: Any objection to Defendant's P?
7 MR. HICKS: No objection.
8 THE COURT: Defendant's P is admitted.
9 Q. (By Mr. Schwartz) After you ascertained that
10 receipt, did you then go to the QuikTrip?
11 A. Yes, sir.
12 Q. Where is that QuikTrip located?
13 A. I believe the actual address is Lake St. Louis.
14 It's on the fringe of O'Fallon and Lake St. Louis on Highway
15 N and Highway 40.
16 Q. Did you seize -- were you able to seize a video
17 at that address?
18 A. Yes, sir.
19 Q. I think this is part of Defendant's Exhibit O.
20 Would you stand and take a look at that video
21 that you seized, and if you can stop us if and when you see
22 Mr. Faria?
23 A. That's him approaching the counter. That's him
24 leaving the store.
25 Q. All right. Go ahead and sit down, sir. Just

1014
1 so we're clear, you knew to go to that those places because
2 you had received information that Russell Faria had talked to
3 other Officers and told them that's where he went?
4 A. Yes, sir.
5 Q. Were you able to ascertain that is, in fact,
6 where he went?
7 A. Yes, sir.
8 Q. Were you able to ascertain he was, in fact,
9 wearing the same clothes that he was wearing when he was
10 being interviewed at the police department and when he was
11 called, when the police arrived that evening?
12 A. Yes.
13 Q. As far as you were told, those clothes had been
14 conveyed to the lab?
15 A. Yes.
18 CROSS-EXAMINATION
19 BY MR. HICKS:
20 Q. Officer, on that last slide, I don't see that
21 you, that we just watched there, it appeared that the
22 defendant purchased two large bottles of tea?
23 A. Yes.
24 Q. All right. Okay. And I want to ask you about,
25 and defense has been kind enough to let me do that rather

1015
1 than recalling you, but a different subject matter that they
2 didn't talk about here, okay?
3 A. Okay.
4 Q. I want to take you to December 28th in the
5 early morning hours. Did you and an Officer McCann go do
6 some interviews? One interview was at the Corbin residence
7 and his girlfriend or significant other?
8 A. Yes.
9 Q. All right. Where was that?
10 A. I don't remember the exact address. I could
11 reflect but it was in Rolling Meadows Trailer Park.
12 Q. And about what time in the morning did you go?
13 A. I don't recall the exact time.
14 Q. Okay.
15 A. I believe it was 4:00 or 4:30 in the morning.
16 Something around that time. I don't remember the exact time.
17 Q. If it was around, if the previous evidence has
18 been, I think it was around 6 o'clock in the morning, do you
19 have a problem with that?
20 A. That would be correct. I know the sun hadn't
21 came up yet.
22 Q. It was early morning hours?
23 A. Yes.
24 Q. Were they awake?
25 A. Yes, they were.

1016
1 Q. You only spoke to them for about, what, ten, 15
2 minutes?
3 A. Yes.
4 Q. All right. From there, where did you go?
5 A. We went to Mr. Bach and Mr. Sweeney's
6 residence. We had learned from those two individuals that
7 they were at the house that night also with Russell Faria and
8 they had went home and they gave us that address.
9 Q. So it was about 5:30 in the morning when you
10 were over at the Corbin's, correct?
11 A. Yes.
12 Q. Michael Corbin's. One thing I want to ask you
13 about. When you walked into the residence, did they invite
14 you in to talk?
15 A. We knocked on the door and they answered the
16 door and invited us in, yes.
17 Q. Did you notice any smell, odor?
18 A. Yes. When we got out of the car and in the
19 street, we could smell the odor of burnt marijuana.
20 Q. Burnt marijuana. What about while you were
21 inside the house?
22 A. You could smell it inside the whole house.
23 Q. You could smell it when you were inside the
24 home?
25 A. Yes.
1017
1 Q. You talked to them briefly, correct?
2 A. Yes.
3 Q. Of course, I know you weren't there about drugs
4 or anything. You were talking to them about this matter?
5 A. Yes.
6 Q. From there, you went directly to Brandon
7 Sweeney's house; is that correct?
8 A. Yes, sir.
9 Q. When you arrived there, do you remember which
10 individual answered the door?
11 A. I don't.
12 Q. Okay. And one, did one or both of the
13 individuals that you talked to that morning answer the door?
14 A. Yes. One of them. One or both did. They were
15 both in the living room when we were there.
16 Q. Where did you speak with them?
17 A. It's kind of a living room/kitchen area. It's
18 all combined into one.
19 Q. Okay. Did you talk to them there together?
20 A. Yes.
21 Q. All right. Now just for reference and to speed
22 this thing up, I believe Marshall Bach in his statement tells
23 you he's dropped off by Brandon Sweeney and that Brandon went
24 on the evening before to Jack in the Box. Do you recall
25 that?
1018
1 A. Yeah, he was hungry so he went to get some Jack
2 in the Box.
3 Q. Do you remember Brandon Sweeney being
4 definitive about the time period he went to Jack in the Box?
5 A. Yes. He said he remembered looking
6 specifically at the clock in his dashboard of his vehicle and
7 that the time was 9:05.
8 Q. Okay. Is that how he referenced what time it
9 was?
10 A. Yes.
11 Q. Okay. Did he ever bring up to you that he had
12 a receipt from having gone to Jack in the Box?
13 A. He did not.
14 Q. Okay. Did you ever ask him to go out to his
15 vehicle and retrieve a receipt from Jack in the Box?
16 A. No, I didn't.
17 Q. Hypothetically speaking, if he had gone out and
18 gotten, at your request, a receipt and brought it back in,
19 all right, to establish this time period, okay, would you
20 have taken that receipt from him?
21 A. Certainly.
22 Q. Okay. So you are telling us none of that
23 happened?
24 A. No, sir.
25 Q. All right.
1019
4 BY MR. SCHWARTZ:
5 Q. But you did interview them and they all were
6 consistent that they were with Russell Faria and they went
7 into detail, and you even noted in your report that there was
8 no substantial dissimilarity between their interviews,
9 correct?
10 A. That is correct.
11 Q. We're talking about all four of those folks?
12 A. Yes.
13 Q. That was the next morning?
14 A. Yeah.
15 Q. Okay. Within the next couple of days?
16 A. Yes, sir.
19 BY MR. HICKS:
20 Q. Just so we're clear, though, that first
21 interview it sounds like, even with the Corbins, it was what,
22 ten, 15 minutes?
23 A. Yes, sir.
24 Q. Rather brief?
25 A. Yes.
1020
1 Q. And then the second interview, or the second
2 home you went to that you just talked to, just as brief?
3 A. Yeah. Fifteen, 20 minutes.
4 Q. Okay. Subsequent to that in the next two or
5 three days, you brought all of these individuals down to the
6 police station, or somebody did, and they were interviewed
7 again, correct?
8 A. Yes, sir.
9 Q. In more detail?
10 A. Yes, sir. There were recorded interviews
11 conducted by myself and other Detectives assigned to that
12 case at that time.
15 BY MR. SCHWARTZ:
16 Q. Officer McCann, as far as you knew, or you knew
17 for a fact --
18 A. Detective Frye.
19 Q. -- while you were interviewing these folks --
20 I'm sorry, Officer Frye. I'm getting old. Officer Frye, I'm
21 sorry. You were aware that Russell Faria was at the police
22 station here in Lincoln County being interviewed while you
23 were conducting these interviews?
24 A. Yes.

1021
1 FURTHER RECROSS-EXAMINATION
2 BY MR. HICKS:
3 Q. Okay. But two days later -- well, let me put
4 it this way, ask it this way. In that initial interview with
5 all of these individuals, Angela, Michael, Brandon and
6 Marshall?
7 A. Yes.
8 Q. Okay? Did Marshall or Brandon say anything
9 about watching two movies at that first interview?
10 A. I believe they just said they watched a movie
11 and it was "Conan the Barbarian".
12 Q. All right. So they didn't even -- I'm just
13 trying to point out, they didn't mention that there was a
14 second movie they found boring, correct?
15 A. Correct.
16 Q. That kind of additional detail happened later,
17 in the two or three days later, correct?
18 A. Yes, it did.
19 Q. Such as details such as whether the defendant's
20 phone went off, correct?
21 A. Yes.
22 Q. Such as whether he, where he was sitting, if
23 that came up. It was that kind of additional detail that
24 came later. It wasn't in that first interview, right?
25 A. Correct.
1022
1 Q. It was just to find out was he even with you.
2 Is that what you are saying?
3 A. Correct.
4 Q. If that's the case, we need to set something up
5 later to get more detail?
6 A. Right.
9 BY MR. SCHWARTZ:
10 Q. In all fairness, that first interview was very
11 short?
12 A. Yes, it was.
13 Q. Ten, 15 minutes? And that second interview was
14 very long and detailed?
15 A. Yes, sir.
18 FURTHER RECROSS-EXAMINATION
19 BY MR. HICKS:
20 Q. And in that second interview with Brandon --
21 I've got to have to last word.
22 MR. SCHWARTZ: He does.
23 Q. (By Mr. Hicks) I know. In that second
24 interview with Brandon, does the receipt come up?
25 A. It did not.
1023
1 Q. It did not. All right.
7 MR. HICKS: Sorry.
8 MR. SCHWARTZ: That's okay.
9 THE COURT: Thank you. You are released.
10 MR. SCHWARTZ: I would call Kurt Ponzar to the
11 stand.
12 THE COURT: Kurt Ponzar. Mr. Ponzar, would you
13 please come forward and raise your right hand to be sworn by
14 the Clerk.
15 KURT PONZAR,
20 (Defendant's Exhibit O and Q marked for
21 identification.)
23 BY MR. SWANSON:
24 Q. Mr. Ponzar, can you please introduce yourself
25 to the jury?
1024
1 A. My name is Kurt Ponzar.
2 Q. What do you do?
3 A. I'm a private investigator.
4 Q. And how do you train to be a private
5 investigator?
6 A. Well, in my case, it was on-the-job training.
7 Q. What kind of on-the-job training?
8 A. Well, I worked for the Pinkerton Detective
9 Agency for a few years and then, at that point, I went in
10 business for myself.
11 Q. How long have you been a private investigator?
12 A. Since 1976.
13 Q. So that's 37 years?
14 A. Thirty-six or so.
15 Q. And you were retained by the defendant?
16 A. Yes.
17 Q. And is one of the things you were asked to do
18 is time various drives?
19 A. Yes.
20 Q. Could you tell us which drives you were asked
21 to time?
22 A. Well, I was asked to drive from the Arby's
23 there off Highway N.
24 Q. That's the Arby's at 909 Robert Raymond Drive?
25 A. Right. To the Faria residence in Troy.

1025
1 Q. That's 130 Sumac Road?
3 Q. How many times did you make that drive?
4 A. Oh, I made it several times.
5 Q. Three?
6 A. Three times.
7 Q. At least?
8 A. At least three, yes. Three I believe I
9 videotaped. I believe I may have made it a couple more
10 without.
11 Q. You say you videotaped one?
12 A. Yes.
13 Q. How did you start the drive off? Like where
14 were you?
15 A. Well, I started in like the Arby's lot, went
16 through the drive-thru and then from the drive-thru, I just
17 started running my camera.
18 Q. And drove?
19 A. Drove from there out to "N" to the Highway and
20 up to Troy.
21 Q. And what speed about were you going?
22 A. On the highway, about 70 or so we averaged.
23 Q. And did you take some time to make sure that
24 someone ordered food so you were kind of getting the feel of
25 how long it would take to order food and then get back to
1026
1 Troy?
2 A. Yes.
3 Q. You recorded all of that?
4 A. Yes.
5 Q. And this is the disk of that recording; is that
6 correct?
8 MR. SWANSON: I'm going to ask that this be
9 admitted.
10 THE COURT: What number is that?
11 MR. SWANSON: Defendant's Exhibit Q.
12 THE COURT: Any objection by the State?
13 MR. HICKS: No.
14 THE COURT: Defendant's Exhibit Q is admitted
15 into evidence.
16 Q. (By Mr. Swanson) Rather than subject the jury
17 to the full period of it, how long does that drive take?
18 A. It was between 28 and 32 minutes.
19 Q. In fact, this particular drive where you were
20 averaging about 70 miles an hour was 30 minutes?
21 A. That's right.
22 Q. At the end of the drive, when you arrived at
23 the Faria residence, did you get out of the car?
24 A. Yes, I got out and walked to the door.
25 Q. And you continued recording for all of

1027
1 that?
2 A. Yes.
3 Q. So from the time that you observed someone
4 order food at Arby's to the time you arrived at the Faria
5 door was approximately?
6 A. Thirty minutes.
7 MR. SWANSON: I have nothing further.
8 THE COURT: State?
9 MR. HICKS: You can have the last word. No
10 questions.
12 MR. SWANSON: Yes, Your Honor.
13 THE COURT: Thank you. You may be released.
14 Further evidence on behalf of defense?
15 MR. SCHWARTZ: We would call Greg Chatten, Your
16 Honor.
17 THE COURT: Greg Chatten. Mr. Chatten, if you
18 would come forward and raise your right hand to be sworn by
19 the Clerk.
20 GREG CHATTEN,
23 help you God, under pain and penalty of the Perjury Laws of
24 Missouri, testifies as follows:
25 THE COURT: You may proceed when your ready.

1028
2 BY MR. SWANSON:
3 Q. Mr. Chatten, could you introduce yourself to
4 the jury?
5 A. My name is Greg Chatten and I own Forensic
6 Computer Service, Advanced Digital Systems, St. Louis
7 Internet, and I'm a managing partner of Sterns, Chatten, LLC.
8 Q. What do you do?
9 A. Primarily, about 90 percent of my work is for
10 forensic computer service, and we analyze data from computer
11 hard drives, external media like thumb drives or removable
12 hard drives, and I've been qualified as an expert insider,
13 data analysis and data mapping.
14 Q. When you say "qualified as an expert", who
15 qualifies you?
16 A. The Court in the State of Missouri. I've been
17 qualified as an expert for cellular mapping and for data
18 forensics, multiple Federal Courts and multiple State Courts
19 in and out of Missouri.
20 Q. And prior to your current employment, what else
21 or what's your educational background?
22 A. I am a graduate of Quincy High School in
23 Quincy, Illinois, and I then attended Illinois State
24 University and went to Digital Communication Associates,
25 which I graduated as a Computer Network Engineer.

1029
1 Q. And prior to your current employment, where did
2 you work?
3 A. I worked for Triangle Communication Associates
4 back in 1976 as a computer programmer and operator. I worked
5 for Data Research Associates in the late '70s through about
6 1982 doing programming, design, actually writing programs and
7 doing customer support for municipal libraries around the
8 United States.
9 After that, I worked for O'Donnell and Phelps
10 and Co., which is like a money manager, investment management
11 firm.
12 I then worked ten years for Universal Sewing
13 Supply in St. Louis. I ran that company for five of those
14 years.
15 Then in 1970, I'm sorry, in 1996, I left and
16 started Advanced Digital Systems, and we provided two-way
17 communications, wireless communications for businesses and
18 law enforcement, and we also maintained all of the Jennings,
19 Missouri, Police Department car radios.
20 And in 2004, I incorporated Forensic Computer
21 Service to do data forensics on what I had mentioned before,
22 computer hard drives and things of that nature.
23 Q. Have you ever worked with wireless or cellular
24 technology?
25 A. Yes.
1030
1 Q. What were you doing there?
2 A. We were installing two-way portable and base
3 station equipment for businesses. Part of that was on the
4 Nextel system, which is now part of Sprint. That's the
5 cellular side.
6 On the radio side, it was more for business
7 communication between Fleets and that type of scenario.
8 Q. You mentioned you provided cellular mapping and
9 cellular data analysis?
10 A. Correct.
11 Q. Are you required to be licensed to do that?
12 A. Yes.
13 Q. And who requires that license?
14 A. The Missouri Board of Professional
15 Registration.
16 Q. Do you have that license?
17 A. I do.
18 Q. Does it require reoccurring training?
19 A. It does.
20 Q. How much?
21 A. Sixteen hours every two years.
22 Q. And are you currently up to date?
23 A. Yes.
24 Q. Have you ever given any presentations or
25 seminars on cellular data mapping, cell site mapping?

1031
1 A. I have.
2 Q. What kind?
3 A. I've given presentations specific to cellular
4 data analysis and mapping to two private investigator groups,
5 one in St. Louis and one in Kansas City in March of 2012.
6 I presented at the Missouri Bar Association in Branson,
7 Missouri, June of 2013, and I gave two presentations at the
8 Missouri Bar Association Conference in October of 2013.
9 Q. And you were retained by the defendant in this
10 case?
11 A. Correct.
12 Q. And you are being paid by the defendant?
13 A. I am.
14 Q. When were you retained?
15 A. I have to refer to my notes for a moment. That
16 was on June 9 of 2013.
17 Q. And I think you mentioned this but you have
18 previously been accepted as an expert and testified in a
19 Court of law on the issue of cellular data mapping?
20 A. I have.
21 Q. And what were you, what did we ask you to
22 examine?
23 A. You asked me to employ cellular phone records
24 from T-Mobile that were provided by the government to you and
25 then to me and also cellular records from AT&T that were

1032
1 provided by the government to you and then to me.
2 Q. And have you ever decoded, processed and mapped
3 cellular data from AT&T Cellular?
4 A. Yes. I have done both.
5 MR. SWANSON: At this time, Your Honor, I would
6 ask that Mr. Chatten be accepted as an expert witness in the
7 area of cellular data analysis and mapping.
8 THE COURT: Any objection by the State?
9 MR. HICKS: No, Your Honor.
10 THE COURT: You may proceed.
11 MR. SWANSON: Thank you, Your Honor.
12 Q. (By Mr. Swanson) Let's talk about the T-Mobile
13 records you received. What were those records?
14 A. The T-Mobile records consist of data that
15 T-Mobile collects. Every time your phone makes or receives a
16 call, sends or receives a text message or if it uses mobile
17 data like going out on the Internet or data from the Internet
18 being sent to you, and those records not only contain that
19 information, but they contain additional information that
20 includes phone numbers, they tell me which cellular tower,
21 which would be an antenna sticking out of the ground as you
22 have probably seen all over the place.
23 They can also tell me which area from that
24 tower that cellular phone is located at.
25 Q. When you say "each area", can you elaborate on

1033
1 that?
2 A. Certainly. For each cell tower, you can think
3 of it as Grandma's home-baked pie and split it in thirds. So
4 we've got three pieces of pie on these cell towers and a cell
5 phone will connect to a tower only on one of those slices of
6 pie if it's in that area.
7 So if I move around, I may get connected
8 through another piece of the pie to that cell tower, even
9 though it's the same physical tower at the same location.
10 So from that, I'm able to determine the area a
11 particular phone was in based on the records provided by
12 T-Mobile and AT&T or any of the other carriers.
13 Q. And you can't say exactly where the phone is?
14 A. No. I can tell you where it wasn't and I can
15 tell you the geographical area that it was.
16 Q. Basically which slice of pie it's in?
17 A. Correct.
18 Q. Were you provided that information for Russell
19 Faria's phone number, (314) 565-9027, for December 27, 2011?
20 A. Yes.
21 Q. And were you able to use that data to assemble
22 a map of which pie slice he is, --
23 A. Yes.
24 Q. -- his phone was in that evening?
25 A. I was.
1034
1 MR. SWANSON: May I approach the witness, Your
2 Honor?
3 THE COURT: Yes.
4 Q. (By Mr. Swanson) Is this a copy of the map you
5 were able to produce?
6 A. It was.
7 MR. SWANSON: I would ask that be admitted as
8 Defendant's Exhibit R.
9 MR. HICKS: Object without further foundation.
10 I don't know what, I don't know how he generated it. I think
11 there's a lack of foundation.
12 Q. (By Mr. Swanson) How did you generate the map?
13 A. The map was generated by taking the information
14 provided from the government from T-Mobile and AT&T which
15 gives me the tower locations.
16 I combine that with data that I already had
17 from T-Mobile that covered this specific date that gave me
18 which sector each tower was split into that the government
19 failed to provide us.
20 MR. HICKS: I'm going to object to the -- one,
21 that's a nonresponsive answer. We haven't provided this
22 individual anything directly. The defense has provided it.
23 And so if he would -- one, my objection is that that's
24 nonresponsive to the question, saying that we didn't provide
25 something, the government.

1035
1 MR. SWANSON: He's saying he used data that he
2 had available.
3 MR. HICKS: I understand, but he kept saying
4 that the government provided and we haven't provided him
5 anything. We provided you all stuff.
6 MR. SWANSON: Fair.
7 THE COURT: Sustained as to that objection.
8 Q. (By Mr. Swanson) The data that you received,
9 that was the data that the defense received from the
10 government?
11 A. Correct.
12 Q. And we provided that to you?
13 A. Correct.
14 Q. And you combined that with other data that you
15 had to fill in some gaps?
16 A. Correct.
17 Q. That was appropriated from T-Mobile --
18 A. Correct.
19 Q. -- for that particular time period?
20 A. It was.
21 Q. What did you do with the data then?
22 A. With the data, I was able to map, using the
23 geographical coordinates that are provided with the data, I
24 was able to show which towers were used on specific phone
25 calls so I could place a tower physically on the map as to

1036
1 where it's located.
2 I also get, as I spoke earlier, about the tower
3 being split up into three pieces of pie. I get the direction
4 that each pie faces. So that data came from T-Mobile, so I
5 was able to split each one of these towers up into these
6 three sectors.
7 And after that was done, I used the, what we
8 call the Call Detail Report. This is a report that T-Mobile
9 generated and was provided to me through the defense counsel
10 and I, based on that, I've got dates and times that data went
11 back and forth between the tower and the phones, regardless
12 if it was voice data or text, and I was able to place the
13 phone, based on that data and the time, I was able to place
14 it in a specific sector, a piece of the pie.
15 Q. The map you used, that's just standard Google
16 maps?
17 A. Yes. We use Google Earth Pro to do the
18 mapping. I might also mention that I did mark the pieces of
19 the pie on each tower for which there is no activity. There
20 was no data. The phone was in that particular sector.
21 MR. SWANSON: At this time, I would ask that be
22 admitted as Exhibit R.
23 MR. HICKS: I think I'm still going to make the
24 same objection. I'm not trying to be difficult here. But I
25 don't even know what information was used to indicate where

1037
1 these towers are located.
2 I know he's talked about the cell phone data, I
3 mean the cell phone records. But we've got towers on here.
4 What information did he use to get those towers placed on his
5 map?
6 MR. SWANSON: I think I asked this, but I can
7 ask it again if it's not clear.
8 Q. (By Mr. Swanson) You had information from
9 T-Mobile that you had previously received directly from
10 T-Mobile?
11 A. Correct.
12 Q. And that information said what towers and what
13 cell site information, cell ID, identifiers basically?
14 A. It told me the geographical coordinates of each
15 cell tower and it told me how to split up those three pieces
16 of pie, which direction they went in.
17 Q. And the information you had was current as of
18 12/27/2011?
19 A. Yes.
20 Q. And so you are able to map where the tower was
21 and where each antenna faced, so where each section of the
22 pie was?
23 A. Correct. And I also used the data you provided
24 me from T-Mobile as far as the geographical coordinates of
25 each tower and it exactly matched what I had already received

1038
1 from T-Mobile.
2 Q. And the information I provided you was
3 information the government provided to the defense?
4 A. That's my understanding.
5 MR. HICKS: May we approach?
6 THE COURT: Yes.
7 (Discussion at the bench.)
8 MR. HICKS: I still am going to object to him
9 being able to testify about creating a map because, one, it
10 would be based upon hearsay information that he got from
11 T-Mobile. I don't have any, we don't have any records from
12 T-Mobile.
13 I know we have got the records, the phone
14 records but do we have any -- I don't see any records that
15 have been introduced from T-Mobile to say here is the
16 T-Mobile records, because he keeps saying the stuff that we
17 provided to him from the government he used. I get that.
18 But then there's other information that he
19 already had that he got from T-Mobile that he used in
20 conjunction to create this map. So it would be created based
21 upon hearsay. They might be able to do that if you could
22 introduce first that group of the documents and say, okay,
23 this is the T-Mobile information, you know, business record
24 affidavit or whatever.
25 MR. SWANSON: First, he said he confirmed the

1039
1 location of the towers using the information received from
2 the government, that the government provided to us and that
3 we provided to him. So any hearsay objection is I would say
4 covered by the business record affidavit that you provided us
5 from T-Mobile.
6 MR. HICKS: I get that part of it.
7 MR. SWANSON: So then you can cross-examine
8 him, too, as to whether or not there would be any
9 inaccuracies here.
10 MR. HICKS: Again, what I heard him testify to
11 was that he used the information the government provided.
12 Then he had his own information. He says it was accurate and
13 everything from T-Mobile. That may be, but he still -- He's
14 using hearsay information to generate this based on this
15 report that the jury will be looking at. It's going to be
16 based upon hearsay information.
17 Now I think he could get around it by
18 introducing documents from T-Mobile that he's talked about
19 that I don't think were provided to us. These documents say
20 these are what our experts relied upon to get the tower
21 locations in conjunction with the data that you guys provided
22 us. If he did that, then that would overcome that hearsay
23 exception. Right now, his testimony in regards to this map
24 is based upon hearsay from T-Mobile that we don't have in the
25 Courtroom.
1040
1 MR. SWANSON: Would you like me to pull the
2 letter when I requested that information that you have in
3 your possession that you provided and you have not ever
4 responded to that? I had to go outside the normal trials to
5 get it. Do you want to talk about that?
6 MR. SCHWARTZ: It's not hearsay if he's an
7 expert and he's saying where his information came from. It
8 doesn't affect the admissibility. They can certainly
9 cross-examine him on that. They can cross-examine him on the
10 map that he produced.
11 It's based upon the information generally that
12 they provided. As far as him being an expert, that's like
13 saying he has to produce the books that he studied from.
14 That's like saying he has to produce his college diploma.
15 I mean, technically, that's all based on
16 hearsay.
17 MR. HICKS: I think that's totally different.
18 I'm not talking about that. That's why I waited for him to
19 testify about this before I made this argument because I'm
20 trying to figure out how did he figure out these tower
21 locations because he couldn't do it from the phone data
22 alone.
23 He needed separate information provided to him
24 from T-Mobile to do this. He's basing his testimony upon
25 hearsay information that for him to say, look, there's a

1041
1 tower here and there's a tower here, there's a tower here and
2 there's a tower there. He's doing that based upon
3 information provided to him from T-Mobile, which is hearsay.
4 I think the proper way to have done this was to
5 have those records in here, whether a business record or
6 whatever and say these are the T-Mobile records that I relied
7 upon.
8 THE COURT: Is there something else somewhere
9 else at this time--
10 COURT REPORTER: I'm sorry. I can't hear you.
11 THE COURT: I didn't hear him say there was a
12 discrepancy between the towers provided by the State and
13 T-Mobile.
14 MR. SWANSON: There's not.
15 MR. HICKS: There's not.
16 THE COURT: So that's not a problem, but are
17 you saying that he applied extra information that he could
18 not have had?
19 MR. HICKS: That's my understanding. I
20 thought, what I heard him testify to was that the information
21 that the government didn't provide him he had to get from
22 T-Mobile himself.
23 He had -- this is information he obtained to do
24 all of this. That's hearsay. He's saying he didn't have
25 enough to do what he needed to do from us. He got it from

1042
1 somebody else. And it hasn't been given over to us, but more
2 importantly, I don't care about that as much as it hasn't
3 been introduced here at trial saying, here's the business
4 record of the T-Mobile stuff that I got from them. This is
5 what I relied upon. This has all the numbers in it. This is
6 how I generated the locations of the cell towers.
7 THE COURT: Do you have the records that he
8 used to draft them?
9 MR. SWANSON: No, Your Honor. He did testify
10 that he used the information the government had provided us
11 about the locations of these towers. He confirmed what he
12 had and that would be covered by the business record
13 affidavit you provided.
14 MR. SCHWARTZ: What you thought he said is what
15 he said.
16 MR. HICKS: I get the --
17 THE COURT: Cross-examine but reintroduce it
18 and revisit.
19 MR. HICKS: Can I just voir dire the witness on
20 two questions and then I'll--
21 THE COURT: For now, we won't introduce it and
22 cross-examine and you reintroduce it and see where we are at
23 at that point.
24 MR. SWANSON: We would have to cross-examine
25 before going any further, so maybe have him voir dire the
1043
1 witness on that.
2 MR. HICKS: Just a couple questions and then
3 I'll be happy.
4 THE COURT: That's fine. If you wouldn't mind,
5 one of you to clarify. I think, I thought you said the
6 towers he got all from you. Maybe I misunderstood, but then
7 the T-Mobile stuff matched?
8 I thought the information said it was missing
9 with something else.
10 MR. SWANSON: That was the tower information,
11 but we were eventually able to locate some from what the
12 State provided and he confirmed use of that.
13 THE COURT: Okay.
14 (End of bench discussion.)
15 THE COURT: State may proceed.
16 VOIR DIRE EXAMINATION
17 BY MR. HICKS:
18 Q. I have a couple questions for you because maybe
19 I'm not understanding.
20 A. Certainly.
21 Q. You talked about the information the government
22 provided you via the defense counsel, you know, the cell
23 phone data, right?
24 A. Correct.
25 Q. Then you talked also about information that

1044
1 wasn't provided to you by the government but that you got
2 from T-Mobile?
3 A. Correct.
4 Q. Okay. Had you not had that information from
5 T-Mobile, let's say that you weren't able to obtain that from
6 them, okay, and you only had the information that you said
7 the government provided you, okay? Would you have been able
8 to generate this map that we're looking at?
9 A. In part, yes.
10 Q. And what parts wouldn't you have been able to
11 generate?
12 A. I'm sorry, I would or wouldn't?
13 Q. What part of the map would you not have been
14 able to generate?
15 A. I would not have been able to split the tower
16 up into the different pieces of pies that we talked about, or
17 I talked about, and which direction they faced. That's the
18 only difference.
19 Q So the actual locations of them you would be
20 able to do with just the information that was provided to
21 you?
22 A. The physical locations, the geographical
23 coordinates of the tower were provided by the information I
24 got from the defense that I understand was originally
25 provided by the government.

1045
1 Q. The additional information that you relied on,
2 in order to put this into the pie, you got from T-Mobile; is
3 that correct?
4 A. Correct. From a current T-Mobile database from
5 them.
6 Q. Okay. Thank you. That's what I was trying to
7 understand.
8 MR. HICKS: I'll withdraw my previous
9 objection.
10 THE COURT: Thank you. Then Defendant's
11 Exhibit R is admitted into evidence.
12 (Defendant's Exhibit R marked for
13 identification.)
14 MR. SWANSON: May I have permission to publish
15 Exhibit R to the jury?
16 THE COURT: You may publish.
17 Q. (By Mr. Swanson) If could you step down. This
18 is the map you produced, correct?
19 A. It is.
20 Q. And we have four towers?
21 A. Correct.
22 Q. Each tower is divided into three pie slices?
23 A. Correct.
24 Q. And then I see dates or times in blue and
25 orange in various places?

1046
1 A. Yes.
2 Q. What does the positions of those times show or
3 signify?
4 A. The times with the blue background show the
5 earliest times up through the chart when we read the bottom
6 of, I believe, 9:50 of -- may I get my printed map that's
7 been shown to me?
8 Q. Yes.
9 A. Thank you. From 5:07 through 5:50 have the
10 blue background and the orange-ish background is from 7:50
11 through 9:40 p.m.
12 Q. And could you show approximately where is Troy,
13 Missouri, located on this map? If you have a laser pointer,
14 that may help to demonstrate.
15 A. Yeah. I believe Troy is here. I don't have it
16 labeled on the map.
17 Q. And then -- but you do have "A, B, C, D, E, F",
18 correct?
19 A. Correct.
20 Q. "A" is 130 Sumac?
21 A. Correct.
22 Q. And where is "A" located?
23 A. Right here.
24 Q. And "B" is Number 2 Merlin Drive, the Conoco
25 located in Troy?
1047
1 A. Correct.
2 Q. And that is --
3 A. Right here.
4 Q. "C" is the U-Gas on the Wentzville Parkway?
5 A. Yes.
6 Q. "D" is Greene's Country Store and Feed?
7 A. Yes.
8 Q. "E" is the approximate location of the QuikTrip
9 at Highway N and Highway 40?
10 A. Yes.
11 Q. And "F" is 909 Robert Raymond Drive, the
12 Arby's?
13 A. Yes.
14 Q. Okay. All right. And then there is a line
15 that shows Highway 40?
16 A. Yes.
17 Q. That is the yellow line that basically runs --
18 A. It comes down this way.
19 Q. So you can't say exactly where Mr. Faria's
20 phone was, but at 5:07, 5:08 and 5:10, approximately where
21 was it, what area?
22 A. The phone had to be somewhere in this area
23 here. It could not have been here or there.
24 Q. And it couldn't be any further south?
25 A. It could not be any further south than this

1048
1 line.
2 Q. And that's the pie slice that encompasses Mr.
3 Faria's home?
4 A. Correct.
5 Q. 5:11, 5:13, 5:22, where was his phone?
6 A. His phone was in the, this would be the
7 southwest pie sector, so it was somewhere in here. It could
8 not have exceeded this yellow line over here. It could not
9 have been any further north than here.
10 Q. And that's approximately where the Conoco was?
11 A. Correct.
12 Q. At 5:50, can you say approximately where his
13 phone was?
14 A. At 5:50 his phone was in this area here. If
15 you notice there are two towers that are very close because
16 as we get into a densely populated area like St. Louis, they
17 put the towers much closer and the range is much smaller so
18 they can handle more calls.
19 So what happened is there was activity on his
20 phone that occurred in this sector, and then it moved to this
21 tower in this sector. So the phone activity had to be
22 somewhere, no further north than this line, no further
23 northwest than this line.
24 It could be northwest of this line here. It
25 could not have been over here, northeast from this tower. So
1049
1 it was somewhere in here.
2 Q. So at 7:50, where was the phone?
3 A. At 7:50, it's in the sector here off this
4 tower. So it's somewhere following these lines. It's
5 somewhere in this geographical location. It could not be
6 here. It could not be here.
7 Q. And the next time the phone connects to a
8 tower, where is it, what area?
9 A. It is in the same sector off of this tower.
10 Q. Why would a phone connect to a tower?
11 A. Could you repeat that?
12 Q. Why would a phone connect to a tower?
13 A. A phone has to connect, obviously, to make
14 calls, text and data. A phone is going to connect to the
15 tower with the strongest signal.
16 So for communication it's going to, your phone
17 is constantly looking at many cell towers depending on where
18 you are located, and it's going to pick the one with the
19 strongest signal to make a call or your text or your data.
20 Q. So if you were to get an e-mail right now, your
21 phone would connect to the tower?
22 A. Yes.
23 Q. And it might do it just to check the time?
24 A. It could, yes.
25 Q. Get a tweet or do something. You don't have to

1050
1 actually be using the phone. It can do it automatically?
2 A. Correct.
3 Q. But if you use the phone, it's going to
4 connect?
5 A. Correct.
6 Q. At 9:25, what area was the phone in?
7 A. The phone was east of this tower. It could not
8 have been here. It could not have been here. It came off of
9 this sector, so it's somewhere in here.
10 Q. So assuming the phone is in the car driving
11 north on Highway 40, how far north could it be at 9:25, the
12 furthest north it could be?
13 A. At 9:25, it could not exceed where this yellow
14 line is that goes into the next sector because the T-Mobile
15 data that I received from the defense that was provided from
16 the government shows it was in this sector at 9:25.
17 Q. And approximately how far is that tower from
18 the next tower up there in Troy?
19 A. It's approximately, if you are talking about
20 the northern tower, the northernmost tower I have, it's
21 approximately ten miles.
22 Q. So at 9:25, Russell Faria's phone was no, was
23 at least ten miles from his home?
24 A. Yes. With his home being up here, yes.
25 Q. And his phone did arrive back in that same home

1051
1 quadrant at approximately 9:37?
2 A. Correct.
3 Q. So that's about a little more than ten miles he
4 would have to have covered in 12 minutes?
5 A. Correct. You might want to bring that down
6 because there's a little bit of data missing off the top.
7 There's your 9:37.
8 Q. And just to be clear, you don't have to be on
9 the phone? The phone is doing some things automatically?
10 A. Oh, absolutely. Mine and other phones, check
11 e-mail every five minutes or sometimes instantly when it
12 comes in or out.
13 Q. And then you were also provided some AT&T
14 records; is that correct?
15 A. That is correct.
16 Q. Those records were the records provided by the
17 government to the defense?
18 MR. HICKS: Your Honor, may we approach?
19 THE COURT: Yes.
21 MR. HICKS: I'm going to object for two
22 reasons. One is as to the pretrial Motion regarding Pam
23 Hupp. They're getting ready to get into Pam Hupp's phone
24 records and I think to try to identify the location of her
25 phone at 7:04 and 7:27 p.m.

1052
1 There would be no reason to do this other than
2 to suggest that she's the one who committed this murder, and
3 so based upon a pretrial Motion, I don't think it's relevant.
4 Second objection would be that is, again, if
5 he's relying upon information that I still claim is hearsay
6 because --
7 MR. SWANSON: I'll tell you just before I get
8 to it. All of the data that he used to present that was from
9 what you gave us. There was nothing else.
10 MR. HICKS: Okay. Then I still may object
11 based on the first one. I don't see the relevance based on
12 the State's pretrial Motion and the Court's Order.
13 MR. SCHWARTZ: Your Honor, the evidence that
14 came in from Mrs. Hupp, and I think the Court went into it
15 earlier today regarding the Motion, was she testified to the
16 police, she testified that she told the police that she
17 called Betsy Faria when she got home and then she said, well,
18 home free. I meant home free. Something along those lines.
19 Impeachment does not have to solely be
20 testimonial. We certainly have a right to impeach her with
21 any inconsistent document or any inconsistent statement, and
22 that's really all this is, is showing where her phone was at
23 these two calls.
24 THE COURT: The question would be, why are you
25 impeaching him because she herself admitted she just meant

1053
1 "home free" which means she hit the highway.
2 MR. SCHWARTZ: I think because she said we have
3 the right to follow up and the jury can determine what "home
4 free" is.
5 THE COURT: Why are you following up? She said
6 after she was Crossed, she was like, that's not what I meant.
7 MR. SCHWARTZ: The evidence is going to show
8 she was still not into Troy.
9 MS. ASKEY: I would disagree for two things.
10 Number one, she said, when I got to the Interstate I was home
11 free. The closest Interstate to us is I-70. You'd have to
12 go down Highway J, which you would remain in the same
13 quadrant. She said nothing about Highway 61.
14 THE COURT: She didn't say "J" She said she
15 was at a point where she knew from that she could navigate
16 herself home free.
17 MR. HICKS: Again, that would be left to the
18 jury to determine.
19 THE COURT: I don't follow that.
20 MR. SCHWARTZ: Okay. Once we rest, can we at
21 least do an Offer of Proof to do that?
22 THE COURT: You can do an Offer of Proof.
23 MR. SCHWARTZ: Okay.
24 THE COURT: Objection was sustained.

1054
1 MR. SWANSON: No further questions, Your Honor.
2 MR. HICKS: You can have a seat.
3 THE COURT: Thank you. State?
4 CROSS-EXAMINATION
5 BY MR. HICKS:
6 Q. You mentioned in Direct testimony you mentioned
7 that you had been hired by the defendant here to testify here
8 today, correct?
9 A. Correct.
10 Q. And you said you were getting paid?
11 A. Correct.
12 Q. Are you getting paid an hourly wage or a flat
13 fee?
14 A. Both.
15 Q. Both. So tell us about your hourly wage? How
16 much is your hourly wage?
17 A. It depends on where I do the work. If I do the
18 work in the lab, it's 250 an hour.
19 If I do work outside the lab, it's 350 and one
20 day of testimony is 1,500.
21 Q. All right. So let's start with lab work. How
22 much lab work have you done in this case?
23 A. I don't know.
24 Q. Okay. Give me a ballpark.
25 A. I can't. This is very tedious work to do

1055
1 accurately. All I have is time sheets and I wasn't requested
2 to bring them.
3 Q. So you have no idea how much time you have
4 spent in the lab on this case?
5 A. No.
6 Q. Five hours?
7 A. You're probably in the ballpark.
8 Q. Okay. So that would be 1,200; $1,250, right?
9 A. Correct.
10 Q. How much time have you spent outside the lab on
11 this case?
12 A. I would estimate, excluding today, two hours.
13 Q. Okay. So that's another $700. That's 1,950
14 and you said your flat fee for today is what?
15 A. One Thousand Five Hundred.
16 Q. So you are getting paid 3,000. Running those
17 numbers, it looks like it's $3,450; almost $3,500. Maybe a
18 little less, maybe a little more because you haven't kept
19 track. Well, you have kept track but don't have that
20 information here, correct?
21 A. There's items that have not been billed, so I
22 can't attest to that, if that figure is correct or not.
23 Q. What items have not been billed? What do you
24 mean?
25 A. I have not invoiced, Counselor, the defendant

1056
1 for all of the work that's been done to date.
2 Q. Is there any work in addition, is there any
3 work that you wouldn't, have we covered everything in the
4 lab, outside the lab and testifying?
5 A. Yes.
6 Q. Okay. Do you primarily testify for -- you said
7 you have testified before as an expert in this area, correct?
8 A. Correct.
9 Q. You primarily testify for -- primarily for
10 defendants, don't you?
11 A. Yes. Because I'm not a sworn Police Officer.
12 Q. You don't believe you could testify on behalf
13 of the State of Missouri because you are not a sworn Police
14 Officer?
15 A. Not at any venue that I have done a case in
16 because there are law enforcement labs already in place that
17 process this for the Prosecutors.
18 Q. I understand there are law enforcement labs
19 that process this, but I'm saying there's no prohibition
20 legally to keep you from testifying on behalf of the State if
21 they were to employ your services, correct?
22 A. Correct.
23 Q. And so you primarily testify for the defense?
24 A. Correct.
25 Q. Okay. In fact, over the lunch hour, my

1057
1 colleague here tried to speak with you. I don't know which
2 Defendant's Exhibit it is. It's this one.
3 MR. HICKS: Do you have it up here?
4 MR. SCHWARTZ: "R".
5 MR. HICKS: "R".
6 Q. (By Mr. Hicks) Do you remember, it was just an
7 hour and a half ago when this lady over here tried to speak
8 with you back there in the office about this map?
9 A. It was not that map she showed me.
10 Q. It was not this map she showed you?
11 A. No, sir.
12 Q. Okay. Well, she did attempt to speak with you,
13 right?
14 A. She did.
15 Q. And she was asking you about these quadrants?
16 A. Could you rephrase the question?
17 Q. She was asking you about these pieces of the
18 pie. She asked you a question about that. Do you remember
19 that?
20 A. She asked me about one piece of one pie.
21 Q. Okay.
22 A. On a map that I haven't seen you show me yet.
23 Q. Okay. Your response to her was, well, I don't
24 have to talk to you, right?
25 A. No. My response was that that is, from memory,

1058
1 that is the correct geographical location of the tower. And
2 her question was concerning defense trial strategy material
3 that I did not feel that she was entitled to know until we
4 were here in Court.
5 Q. Defense trial strategy. So you are part of the
6 defense trial strategy team?
7 A. I am working for the defense as a witness.
8 Q. Okay. So the State has many witnesses that the
9 defense talks to. I'm trying to figure out -- wasn't your
10 response to Ms. Askey is that, just find out in Court what
11 I'm going to say?
12 A. As far as one specific question, yes.
13 Q. Okay. And I suppose that's because you
14 perceive us as the government?
15 A. Not at all.
16 Q. Well, you keep referring to us as "the
17 government".
18 A. Well, I think it's a phrase that most people
19 understand. When you say "the government", it's pretty much
20 all encompassing.
21 Q. The title of this case is "State of Missouri
22 versus Russell Faria". It's not the government. It's the
23 State of Missouri, the people. Do you recognize the
24 difference?
25 A. I think it's all the same.

1059
1 MR. HICKS: I don't have anything further.
2 THE COURT: Mr. Schwartz or Swanson.
4 BY MR. SWANSON:
5 Q. You were hired by the defense. We have no
6 question about that?
7 A. Correct.
8 Q. Did that influence your analysis at all?
9 A. Not at all. I'm a fact finder whether I do
10 cell mapping or forensics. The fact is the facts, the data
11 is the data.
12 Q. That data that we provide, that was the data
13 provided by the State or the government or law enforcement,
14 not I don't think the People arrested anyone?
15 A. That is my understanding.
16 Q. Would your answers have been any different if
17 you had been hired by the State?
18 A. No.
19 MR. SWANSON: Nothing further.
22 BY MR. HICKS:
23 Q. How would we know? You've never been hired by
24 the State?
25 A You should hire me.

1060
1 Q. You said you wouldn't do it.
2 A. I would if I could, but they always give it to
3 the Regional Crime Lab, such as the one in St. Charles,
4 Detective Roth, who did huge maps for you, I believe.
7 MR. SCHWARTZ: No.
9 released?
11 THE COURT: Thank you, sir. You are
12 released.
13 THE WITNESS: Thank you, Your Honor.
14 THE COURT: They are indicating they may
15 possibly need you to do one more thing.
16 Did you want to do that now or wait? How many
17 more do you have? So do you want to break and do this Offer
18 of Proof.
20 THE COURT: Thank you, sir. If you would just
21 stick around shortly. They are going to put on another
22 witness and come back briefly and then you'll be finished.
23 THE WITNESS: Certainly, Your Honor.
24 MR. SCHWARTZ: Your Honor, at this time the
25 defense would rest.

1061
2 Does he necessarily need to leave the
3 Courtroom?
4 MR. SCHWARTZ: It would probably be best if he
5 waits outside.
6 THE COURT: If you could wait outside.
7 Rebuttal evidence, then, on behalf of the
8 State.
9 MS. ASKEY: Yes, Your Honor. State would call
10 Detective Pat Harney.
11 THE COURT: Detective Pat Harney, please.
12 Please come forward and raise your right hand to be sworn.
13 PATRICK HARNEY,
18 THE COURT: State may proceed when you are
19 ready.
21 BY MS. ASKEY:
22 Q. Detective Harney, please state your name for
23 the record.
24 A. Patrick Harney.
25 Q. Where are you employed?

1062
1 A. Lincoln County Sheriff's Office.
2 Q. And what is your capacity there?
3 A. I'm a Detective.
4 Q. How long have you been a Detective?
5 A. About three and a half years.
6 Q. And occasionally in that employment, do you run
7 down leads on cases for the Prosecutor's office?
8 A. Yes, ma'am.
9 Q. Did you have the opportunity to do that
10 today?
11 A. Yes, I did.
12 Q. Was that in relationship to products sold at
13 Conoco in Troy, the QuikTrip in Lake St. Louis and the U-Gas
14 on Wentzville Parkway?
15 A. Yes, ma'am.
16 Q. And specifically, what did you inquire of those
17 locations this morning?
18 A. If they sold Brisk brand tea and how much is
19 the cost of a pack or a carton of Edgefield cigarettes was on
20 December 27th, 2011.
21 Q. And specifically, Edgefield cigarettes, the
22 brand of cigarettes that were purchased from the U-Gas on
23 Wentzville Parkway on December 27th, 2011?
24 A. Yes. As I understand, yes.
25 Q. The Brisk tea, was that purchased from the

1063
1 QuikTrip in Lake St. Louis; is that right?
2 A. As I understand, yes.
3 Q. Detective Harney, can you tell the jury the
4 difference in price on December 27th, 2011, in a carton of
5 Edgefield cigarettes from the Conoco in Troy, Missouri, and
6 the U-Gas on Wentzville Parkway?
7 A. U-Gas was 60 cents cheaper per carton.
8 Q. Sixty cents?
9 A. Yes, ma'am.
10 Q. How many miles is it from Troy to
11 Wentzville?
12 A. The sign I could picture in my mind is 14.
13 Q. And the defendant was driving a 19 --, mid-'80s
14 model SUV; is that right?
15 A. As I recall, I think it was a '90s model.
16 Q. Older '90s; is that right?
17 A. Yes, ma'am.
18 Q. Do you remember what the price of fuel was back
19 then, Detective?
20 A. No, I do not.
21 Q. What I should ask you is, do you recall a time
22 when fuel has been less than $3 a gallon?
23 A. Not until recently.
24 MS. ASKEY: Nothing further.

1064
1 CROSS-EXAMINATION
2 BY MR. SCHWARTZ:
3 Q. Officer Harney, you watched that video. You
4 saw Russell Faria go into the Conoco, didn't you?
5 A. No. I don't recall watching that video, sir.
6 Q. Would it surprise you to know he didn't go into
7 the Conoco? My point is, Officer Harney, you have no idea if
8 he knows what's sold at the Conoco, do you?
9 A. I don't what know Russ Faria knows.
10 Q. Exactly. You didn't look at his bank records
11 to see how often he goes to U-Gas to buy cigarettes, did you?
12 A. Not that I recall, no.
13 Q. What's that?
14 A. Not that I recall, no.
15 Q. What's the price of the Brisk tea at U-Gas?
16 A. That was not the question I asked.
17 Q. Do you know if they have it?
18 A. If you give me a second. They did sell that
19 tea on December 27th, 2011.
20 Q. And do you know if Russell Faria was thirsty
21 when he went into the U-Gas at that point in time?
22 A. I don't have any idea when Russ Faria is
23 thirsty.
24 Q. No. You just know that he bought cigarettes
25 there and they were 60 cents cheaper than the Conoco?

1065
1 A. I've not seen the receipt.
2 Q. Are you on the videotape at the U-Gas?
3 A. Am I on the video tape?
4 Q. You went in there today at U-Gas?
5 A. No, sir.
6 Q. When did go there?
7 A. I did not go there.
8 Q. Didn't you just say you went to U-Gas to
9 determine the price of some cigarettes?
10 A. I spoke with them on the phone today.
11 Q. You spoke with them on the phone today. Got
12 it. Did you go to Conoco?
13 A. Yes, I did.
14 Q. Are you on the video there?
15 A. I have not seen the video so I don't know.
16 Q. You don't know if it's functioning. You don't
17 know if it was shooting where you were standing, do you?
18 A. No, I don't.
19 Q. Did you go there to get on the video?
20 A. No. I went there to get the information the
21 Prosecutor asked for.
24 MS. ASKEY: Nothing further.

1066
1 MS. ASKEY: Yes, Your Honor.
3 Further rebuttal evidence?
4 MS. ASKEY: No, Your Honor.
5 THE COURT: Anything further on behalf of the
6 defendant?
7 MR. SCHWARTZ: No, Your Honor.
9 MR. SCHWARTZ: Other than a brief Motion.
10 THE COURT: Would you like to take up your
11 Motion at this time?
12 MR. SCHWARTZ: I thought you wanted to go on a
13 break.
15 at this time we are going to take another break, at least
16 for the jurors, as the counsel proceeds with some other
17 matters.
19 told at the first recess of the Court. Until you retire to

1067
5 The Court will then be at recess until the
6 jurors are notified. Thank you.
7 (The jurors left the Courtroom.)
8 THE COURT: We are on the record outside the
9 presence of the jury in 12L6-CR01312, State of Missouri
10 versus Russell S. Faria, and the defense has recalled a
11 witness. Could you state your name again, please?
12 THE WITNESS: Greg Chatten.
13 THE COURT: Greg Chatten, for purposes of
14 making an Offer of Proof. You may proceed.
15 MR. SWANSON: Thank you, Your Honor.
17 BY MR. SWANSON:
18 Q. Mr. Chatten, in addition to the T-Mobile
19 records we discussed previously, you were also provided
20 records for an AT&T phone number; is that correct?
21 A. Correct.
22 Q. And that -- in particular, that number was for
23 Pamela Hupp; is that correct?
24 A. May I see the exhibit, please?
25 MR. SCHWARTZ: I think the Court put on the

1068
1 record that this is out of the hearing of the jury and an
2 Offer of Proof.
3 THE COURT: Yes.
4 Sir, I will remind you again, I don't remember
5 if I did, but just to remind you that you are still under
6 oath.
7 THE WITNESS: Yes, Your Honor.
9 Q. (By Mr. Swanson) If you turn to the back of
10 that, there's subscriber information?
11 A. Yes.
12 Q. And the AT&T records you were provided were for
13 a phone number ending, the phone number associated with a
14 woman named Pamela Hupp?
15 A. Yes.
16 Q. What was the phone number?
17 A. (636) 448-5241.
18 Q. And there was another number, "5242"; is that
19 correct?
20 A. Yes.
21 Q. Referring specifically to the number ending in:
22 "42" and the date 12/27/2011?
23 A. Yes.
24 Q. You were provided that information?
25 A. Correct.
1069
1 Q. And T-Mobile is different from AT&T; is that
2 correct?
3 A. Correct.
4 Q. How is it different?
5 A. They are different carriers, some of the
6 technology, some use different antennas, different equipment.
7 Q. But the principle is the same? There's a
8 tower, different slices of pie?
9 A. Yes.
10 Q. The information you were provided, did that
11 include GPS locations for the towers?
12 A. Yes.
13 Q. Did it include the azimuth information
14 basically that would give you the slice of the pie?
15 A. Yes.
16 Q. And it tells you if a call starts in one slice
17 of the pie and ends in a different slice?
18 A. Correct.
19 Q. On December 27th, 2011, Ms. Hupp made a phone
20 call at 7:04; is that correct?
21 A. Let me refer to my notes. My copy of the map
22 is not here.
23 MR. SWANSON: May I approach, Your Honor?
24 THE COURT: Yes.
25 A. Yes, 7:04.
1070
1 Q. (By Mr. Swanson) She made another call at
2 7:27?
3 A. Correct.
4 Q. And you were able to map the tower those calls
5 connected to?
6 A. Correct.
7 Q. And the slice of the pie they were in?
8 A. Correct.
9 Q. And that's the map you have in front of you,
10 Defendant's Exhibit S?
11 A. Yes.
12 Q. And the slice of the pie, those calls were in?
13 A. Yes.
14 Q. Does that encompass where the Faria household
15 was at 130 Sumac Drive?
16 A. Yes. I have incorrectly listed as 120, but
17 it's 130.
18 Q. Could those calls have taken place when Ms.
19 Hupp's phone was in Troy, Missouri?
20 A. No.
22 Hupp was on Highway 61, south of Troy? I'll specify that.
23 A. No.
25 Hupp was home in O'Fallon?

1071
1 A. No.
2 Q. Both of those calls took place in the exact
3 same sector which includes the Faria home?
4 A. Correct.
5 Q. All right.
7 THE COURT: State?
8 CROSS-EXAMINATION
9 BY MR. HICKS:
10 Q. What causes what is known as a "dropped call"?
11 You know, I'm on the phone with somebody and suddenly, boom,
12 it's dropped.
13 A. As calls are made and received, they are routed
14 through different equipment, different switches depending on
15 if you are calling California, you're calling next door, you
16 are calling New York.
17 If any of those -- I'm trying to answer your
18 question, but if any of those, you know, pieces of equipment
19 have a failure, you could get a dropped call.
20 You could also get a dropped call -- say you
21 were on a two-lane highway and you've got a semi,
22 tractor-trailer next to you and, you know, your phone power,
23 the signal, you know, gets blocked or, you know, reflected.
24 Also, the condition and age of your phone.
25 Q. Okay. Does it have anything to do with the

1072
1 cell towers, the location, in relationship to the phone at
2 all?
3 A. Rarely because of the way they redesigned the
4 cell system, everything is overlapped so that there's
5 continuous service down most interstates, major highways,
6 populated areas.
7 Q. Can a cell tower be so -- I don't know what the
8 correct word is and I'm not trying to be difficult with you
9 here. Can a cell tower be so busy that you are unable to
10 connect to it?
11 A. A particular tower, yeah. Specific tower, yes.
12 Q. I thought I had heard that before. I mean,
13 like when you go to the Mizzou games because everybody is
14 there, 60, 70 thousand people, it's hard to make a phone call
15 and get a data connection because everybody is trying to off
16 the same tower there?
17 A. Right.
18 Q. So what happens when a section of this pie is
19 real busy? Does the phone have the ability to hook in with
20 another piece of that pie? Does that make sense?
21 A. Not that piece of a pie, but another cell
22 tower, yes.
23 Q. All right. So if a cell tower is busy, it's
24 busy all around the pie, not just one area?
25 A. No. It could be one sector of the pie. If I

1073
1 may use an example, Busch Stadium, if everybody is trying to
2 make a call and let's say in theory there was only one piece
3 of pie that covered it, it would become obviously overloaded.
4 Those other calls, even though the signal would
5 be weaker, would end up going to the next tower with the
6 strongest signal because the normal one with the strongest
7 signal is totally overloaded. So the call would get thrown
8 to another one.
9 Q. But it wouldn't get, it's your testimony it
10 wouldn't get thrown to another quadrant or another section of
11 that pie in that same tower?
12 A. No. Because the antennas are entirely
13 directional. That's the way the entire cell system is
14 designed, is with directional antennas as opposed to what
15 they call omnidirectional, where -- omnidirectional is where
16 it's a circle and the radio waves go out 360 degrees.
17 The whole purpose of the cellular network is,
18 as you pointed out, to handle so many users in a specific
19 sector and it has to do with how much power, there's lower
20 power, higher power. There's so many things that could
21 affect that but, no, it would not jump to another sector
22 simply because one was overloaded, another sector on the same
23 tower.
24 Q. Okay. Last question is, when you draw these
25 pies in sectors, I mean, it's not -- it's not that exact, is

1074
1 it? Meaning that you could be close and maybe getting into
2 that sector. Do you follow what I'm saying?
3 I mean, we look at this map here and we've got
4 these sectors drawn and it's kind of like, no, if they are
5 even barely over on the other side of that yellow line
6 there's no way that they are hooking into the quadrant on the
7 other side of that yellow line. I'm saying it's not quite as
8 exact as the map makes it, is it?
9 A. No.
10 Q. Okay. Thanks.
12 THE COURT: Mr. Schwartz, Mr. Swanson?
14 BY MR. SWANSON:
15 Q. When you say it's not that exact, the record
16 would reflect if you crossed over into the other slice of the
17 pie?
18 A. Absolutely. If your phone -- for example, if
19 I'm connected to one tower right now, theoretically, and I
20 took a step off this stand, I may go to another sector on
21 that tower.
22 Q. If the line is right between those?
23 A. Right. Or whatever, you know, whenever you
24 move into the other sector, the call is going, the call
25 detail records are going to show that a new call was made
1075
1 from that sector or that it's switched. You are in one phone
2 call.
3 If you drive around in a circle and you're in
4 the same call, it's going to show you keep switching sectors
5 at different dates and times.
6 Q. In this case, none of those calls show those
7 changes. Neither of those calls?
8 A. Not on this map.
9 Q. And so geographically, the same sector?
10 A. Correct.
12 MR. HICKS: Nothing further, Your Honor.
13 THE COURT: Anything further? May this witness
14 be released at this time?
17 You are free to go or stay as you choose.
18 THE WITNESS: Thank you, Your Honor.
19 MS. ASKEY: Judge, may we approach?
20 THE COURT: Yes.
22 MS. ASKEY: This is something that Richard and
23 I were talking about that came to my attention. Obviously,
24 the defendant has rested and we don't have any objection to
25 them reopening based on the fact that the defendant has

1076
1 chosen not to testify.
2 We would certainly like him to do that
3 verbally.
4 THE COURT: Make a record.
5 MS. ASKEY: Right. Acknowledge the fact that
6 he knows he has the right to testify and he's choosing to
7 waive that right at this point.
8 MR. SCHWARTZ: Judge, I will talk on the
9 record. I would request that the Court not voir dire my
10 client regarding it. He could be in the presence of us, if
11 it's okay. And I will --
12 THE COURT: As long as you cover it thoroughly.
13 MR. SCHWARTZ: Okay.
14 THE COURT: Do we want to do that now?
15 MR. SCHWARTZ: That's fine.
16 THE COURT: We're not doing that with them in
17 here.
18 MR. SCHWARTZ: I also would request the Court
19 leave to file the Motion for Judgment of Acquittal at the
20 Close of All of the Evidence.
21 MR. HICKS: Before we take up that Motion,
22 again, I want to reiterate. I know the Court is going to do
23 it. I appreciate Mr. Schwartz's position on this.
24 However, I think for potential appellate
25 purposes, my experience has always been that there's a record

1077
1 made with the defendant under oath regarding his right. That
2 he understands that he has a right to testify, and because of
3 this --
4 THE COURT: Right.
5 MR. HICKS: This is not something the defense
6 attorney can speak for him on his behalf.
7 THE COURT: Correct. He has to do it.
8 MR. HICKS: I trust Mr. Schwartz that he's
9 fully talked to him about it, but I'm just more comfortable
10 if we actually make a record with the defendant under oath.
11 THE COURT: I think that's what he just said,
12 prior to you submitting the Motion.
13 MS. ASKEY: No. He said he wanted to speak for
14 him.
15 MR. SCHWARTZ: I said I want to speak for
16 him.
17 THE COURT: I don't know that you can do that.
18 Actually, I just looked that up. I'm not going to ask him
19 anything. Are you going to ask him anything?
20 MS. ASKEY: No, I'm not. He needs to.
21 THE COURT: So I think he needs to be sworn in
22 and do it.
23 MR. SCHWARTZ: That's fine. It's over my
24 objection.
25 THE COURT: Note the objection.

1078
1 RUSSELL S. FARIA,
2 a witness, having been duly sworn by the Circuit Judge to
7 BY MR. SCHWARTZ:
8 Q. Would you state your name for the record?
9 A. Russell Faria.
10 Q. And Russell, your attorney is me. What's my
11 name?
12 A. Joel Schwartz.
13 Q. You and I have had extensive discussions
14 regarding your rights to testify?
15 A. Yes, sir.
16 q. You understand that you have an absolute right
17 to testify and an absolute right not to testify?
18 A. Yes, sir.
19 Q. And based upon our discussions, have you
20 yourself made a decision as to what you have chosen?
21 A. Yes, sir.
22 Q. And what is that decision?
23 A. Not to testify.
24 Q. With a full understanding that you do have that
25 ultimate right if you choose or desire to testify?

1079
1 A. Yes, sir.
2 MR. SCHWARTZ: That's it.
3 MR. HICKS: State is satisfied. Thank you.
4 THE COURT: Thank you, sir.
5 Do you want to file your Motion?
6 MR. SCHWARTZ: Yes, Judge. I would file a
7 Motion for Judgment of Acquittal at the Close of the State's
8 Evidence.
9 MR. SWANSON: Copies will be provided to the
10 State.
11 THE COURT: Motion of Judgment of Acquittal at
12 the Close of the Evidence is filed.
13 At this time, the Motion for Judgment of
14 Acquittal at the Close of the Evidence is denied.
16 (The jury entered the Courtroom.)
18 One more time, we will ask the jurors to raise
19 their hand as we call their number for the record. Juror
20 Number 2, 3, 4, 11, 12, 15, 27, 29, 35, 38, Juror 39, Juror
21 44, Juror 51, Juror 58 and 61.
22 For the record, all jurors are present.
23 Ladies and gentlemen of the jury, at this time
24 because Counsel has to create some paperwork and do other
25 things that could take quite a while, it's been determined

1080
1 that we're going to release you for tonight.
2 Tomorrow when you get back, you will hear a
3 closing argument and then you will begin to deliberate. So
4 because of that, we're only requesting that you be here by
5 9:00 because it shouldn't, as far as what we have to do, it
6 will be short. However long you deliberate is going to be up
7 to you.
8 I'm going to read you the instruction one more
9 time and then if you would please be present by 9:00 a.m.
10 tomorrow.
12 told at the first recess of Court. Until you retire to
23 Thank you and we'll see you back here at 9:00
24 a.m.

1081
1 (Recess.)
2 THE COURT: We are back on the record in
3 12L6-CR01312, State of Missouri versus Russell S. Faria.
4 Outside the presence of the jury, we have had
5 an instruction conference. At this time, we want to
6 memorialize what the agreement is by the parties as to what
7 instructions will be used and the order they will be used.
8 Tomorrow when we come in, each party will have
9 a clean copy of all the instructions we talk about today in
10 their correct order and we will, once again, in the morning
11 verify we're in agreement that we have a complete, correct,
12 clean set.
13 Now for the record, Instruction No. 1 that will
14 go back to the jury is 302.01 with Notetaking.
15 Instruction that is numbered No. 2 is 302.02,
16 which is Evidence and Rulings of the Court.
17 Instruction 3 will be 302.03, which are the
18 General Instructions.
19 Instruction 4 will be 302.04, which is the
20 Burden of Proof and Related Matters.
21 Instruction 5 will be 314.02, the Murder in the
22 First Degree Verdict Director.
23 Instruction No. 6 will be 308.02, which is the
24 Defendant's Converse to Murder in the First Degree.
25 Instruction No. 7 is 314.04, which is the

1082
1 instruction for Murder in the Second Degree, the Verdict
2 Director by the State.
3 Instruction No. 8 is the Defendant's Converse
4 to Murder in the Second Degree.
5 Instruction No. 9 is -- and I'm sorry. No. 8
6 is 308.02.
7 No. 9 is 332.02. That is the instruction on
8 Armed Criminal Action on Murder First.
9 MR. HICKS: That's 9.
10 THE COURT: That's No. 9.
11 And No. 10 is the instruction on Armed Criminal
12 Action Murder Second, and that is also 332.02. Both of
13 those, 9 and 10, are as to State's Count II.
14 Instruction No. 11 is Defendant's 308.04. Is
15 that the alibi?
16 MR. SWANSON: That is the alibi instruction,
17 Your Honor. That is a non-MAI instruction slightly modified
18 from 308.04.
19 THE COURT: Okay. And my understanding is that
20 both parties were in agreement as to that modification and
21 that that instruction is proper and it is proper to be No.
22 11; is that correct?
23 MR. HICKS: Yes, Your Honor.
24 THE COURT: So State says "yes" and defendant
25 says "yes"?
1083
2 THE COURT: And then Instruction No. 12 is
3 defendant's instruction regarding the fact that the defendant
4 has the right not to testify and no presumption of guilt may
5 be raised and no inference of any kind may be drawn from the
6 fact that Russell Faria did not testify, and that is
7 Instruction 308.14; is that correct?
8 MR. HICKS: Yes.
10 THE COURT: There is no objection to that being
11 No. 12; is that correct? By either party?
12 MR. HICKS: Right.
13 MR. SWANSON: No objection.
14 THE COURT: Instruction No. 13 is 304.12. That
15 is regarding One Defendant, Multiple Counts, Separate
16 Verdicts.
17 No. 14 will be 302.05 regarding Unanimous
18 Verdict.
19 Instruction 15 will be 302.06, Argument of
20 Counsel.
21 Instruction 16 is reserved at this time. That
22 would be the Hammer Instruction, if it is used in the form.
23 If it is used, it will be 312.10.
24 At this point in the progression, we don't know
25 if the Hammer will be used or not, but the next form that the
1084
1 jurors would have is 304.44, and that will be unmarked but
2 basically it's a verdict form stating that, as to Count I,
3 the jury finds the defendant not guilty.
4 And then the second, we're calling it Verdict
5 Form but it will not have a heading when the jurors have it,
6 is relating to Count I in the jury finding the defendant
7 guilty of Murder in the First Degree as submitted in
8 Instruction No. 5.
9 The next verdict form that will not be marked
10 as a verdict form will be the jury's choice of finding the
11 defendant guilty of Murder in the Second Degree as submitted
12 in Instruction 7, and that's also 304.44, as was 1 and 2 of
13 this set. Those verdict forms are all 304.44 as to 1, 2 and
14 3.
15 As to the fourth verdict form, which will not
16 be designated as verdict form, that is 304.48. That is as to
17 Count II, giving the jury the option to find the defendant
18 not guilty of Armed Criminal Action.
19 The next instruction will be 304.48, giving the
20 jury the option as to Count II of finding the defendant
21 guilty of Armed Criminal Action as submitted in Instruction
22 No. 9, which would mean they had also found him guilty of
23 Murder First.
24 That instruction or form will also instruct
25 them that if they had not, that unless they have found the
1085
1 defendant guilty of Murder First as submitted in Instruction
2 5, they may not complete this verdict, finding the defendant
4 9.
5 The last verdict form, which will not be
6 designated as a verdict form, is giving the jury the option
7 as to Count II, to fine the defendant guilty of Armed
8 Criminal Action as submitted in instruction No. 10, and it is
9 also noting that unless they found the defendant guilty of
10 Murder in the Second Degree as submitted in Instruction No.
11 7, they may not complete this verdict finding the defendant
13 10, and that is 304.48.
14 And then going down after the finding of guilt
15 or not, if there is a finding of guilt, the first Instruction
16 will be 305.01, and that will be No. 16 if the Hammer
17 Instruction was not used.
18 It will be No. 17 if the Hammer was used and
19 the appropriate Instruction of 305.01 will be given
20 determined upon whether they find the defendant guilty of
21 Murder in the First Degree or the Second Degree.
22 The next Instruction, which will be numbered
23 subsequently, will be 305.02 regarding Explanation of Order
24 of Proceedings when Evidence Will Be Presented.
25 Next will be Instruction 305.03, the Verdict

1086
1 Mechanics.
2 The next will be 305.04, Argument of Counsel.
3 Next will be 305.07, the Verdict Possibilities,
4 and then the last document submitted to the jury will be
5 304.40 with one Instruction asking the jury to declare
6 punishment for Murder in the Second Degree.
7 And then 304.40 will also be submitted to the
8 jury as to Count II asking them to assess punishment for
9 Armed Criminal Action.
10 Does that accurately reflect all the
11 Instructions in the order that has been agreed upon by the
12 State?
13 MR. HICKS: Yes, Your Honor.
14 THE COURT: By defense?
16 THE COURT: Is there anything the Court stated
17 that we believe, at this point, that is incorrect. State?
18 MR. HICKS: Not at this point, Your Honor.
19 THE COURT: Defense?
20 MR. SWANSON: Not at this point. I would add
21 just -- defendant did file a written request for jury, for
22 certain jury instructions and you received that and that was
23 the basis for some of the inclusions.
24 THE COURT: That's correct and that was file
25 stamped today.
1087
1 Tomorrow everybody will obtain a clean copy of
2 all of these Instructions. Please review them so that when
3 we get in here, we can agree that we have a final original
4 set or, I guess, what we need is the one final set.
5 So you have each viewed that set, get them to
6 me, I'll, again, compare them to these and on the record
7 we'll say, yes, this is the final set.
8 (Court is in recess.)
9 ***
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1088
1 (The following proceedings were taken on
2 November 21, 2013, in State versus Russell S. Faria, with
3 Judge Mennemeyer presiding in the Circuit Court of Lincoln
4 County, State of Missouri.)
5 (The following proceedings were taken at the
6 bench:)
7 THE COURT: We are on the record then in
8 12L6-CR001312, State of Missouri versus Russell Faria, and we
9 have just had a jury instruction conference, and it's the
10 Court's understanding the Court now has in front of it
11 Instructions Numbered 1 through 15 as well as the actual
12 forms that the jury will sign.
13 Counsel for both sides have gone through all of
14 the instructions. It's the Court's understanding that I have
15 a true and accurate, clean copy that will go back to the
16 jury, so I'm going to hand this stack to the State and ask
17 the State to verify that is a true and accurate, complete
18 copy of all of the Instructions.
19 MR. RICKS: It is, Your Honor.
20 THE COURT: If the defense could also verify
21 that?
22 MR. SWANSON: I'll verify it's a clean copy,
23 Your Honor.
24 THE COURT: All right. The Court has
25 also been supplied with a Hammer Instruction, which is

1089
1 MAI CR-3rd 312.10. Can the State just verify if that were
2 needed, that would be the instruction that we would read?
3 MR. Hicks: Yes, Your Honor.
4 THE COURT: And the defense?
6 THE COURT: The Court will take up any
7 subsequent instructions if and when we need those. At this
8 time, are there any other matters before the jury is called
9 back in for closing arguments?
10 MR. SWANSON: There may be, Your Honor. Could
11 we go off the record real fast?
12 THE COURT: Yes.
13 (Off the record discussion.)
14 THE COURT: We are back on the record and
15 Counsel had discussed both yesterday and this morning that in
16 closing arguments, neither party will make any reference to
17 that someone else could have committed this incident or who
18 else could have other than the accused.
19 MR. SWANSON: I do think we might make the
20 argument that someone else must have done it because we've
21 established an alibi defense, but pursuant to the Court's
22 previous Order, which has been argued at length, we're not
23 specifying the person.
24 MR. HICKS: And again, I think that the State
25 is going to be arguing all of the evidence points, we believe

1090
1 that the evidence points that the defendant did it.
2 THE COURT: Right. So that doesn't really make
3 sense. By default, your whole argument is he didn't do it so
4 you don't need to say, so by the way, someone else must have.
5 It's the same thing as them saying, we're up
6 here arguing the whole time he didn't do it, but we don't
7 need to highlight that by saying who else could have done it.
8 It cuts both ways. Either you both do it or
9 you can't. I mean, I thought the agreement was you couldn't.
10 Of course, that's your argument. That would make sense
11 that's your argument. You would never be arguing that he did
12 it.
13 MR. SWANSON: I understand that. Since we're
14 arguing an alibi defense, as a necessity it includes the idea
15 that it's somebody else. I don't want to prejudge Mr.
16 Schwartz's closing, but I think he does have that as part of
17 his argument.
18 We don't know who did it but we just know it
19 wasn't Russell Faria.
20 MS. ASKEY: I think a simple statement that
21 says we don't know who did it is fine, as long as they
22 don't go any further than that and not keep going over and
23 over.
24 MR. HICKS: Right. In response to that, I
25 think it's fair for us to argue, look at the evidence that

1091
1 does point to him. We believe he's the one who did this
2 based upon the evidence and that's --
3 THE COURT: I mean, that's fair game anyway.
4 What they are just saying is you wouldn't make statements
5 that said, by the way, who else could have done it? That's
6 all I'm saying.
7 MR. RICKS: She's not going to ask that
8 rhetorical question.
9 THE COURT: Okay. Anything else before we
10 bring in the jury?
11 MR. SWANSON: No.
12 MS. ASKEY: No, Your Honor.
14 THE COURT: Okay. We're ready for the jury to
15 be brought in.
18 For the record, the Court will read through the
19 number of each juror. If you would please indicate your
20 presence by raising your hand.
21 Juror Number 2, 3, 4, 11, 12, 15, 27, 29, 35,
22 38, 39, 44, 51, 58 and 61. For the record, all jurors are
23 present.
24 If Counsel could approach?

1092
1 THE COURT: The Court will now read to the jury
2 Instruction No. 3. The law applicable to this case is stated
3 in these instructions and the two which the Court will read
4 to you immediately -- I'm sorry, the two which the Court read
5 to you immediately after you were sworn as jurors.
6 All of the instructions will be given to you to
7 take to your jury room for use during your deliberations.
8 You must not single out certain instructions and disregard
9 others or question the wisdom of any rule of law.
10 The Court does not mean to assume as true any
11 fact referred to in these instructions but leaves it to you
12 to determine what the facts are.
13 Instruction No. 4. The charge of any offense
14 is not evidence and it creates no inference that any offense
15 was committed or that the defendant is guilty of an offense.
16 The defendant is presumed to be innocent, unless and until
17 during your deliberations upon your verdict, you find him
18 guilty.
19 This presumption of innocence places upon the
20 State the burden of proving beyond a reasonable doubt that
21 the defendant is guilty.
22 A reasonable doubt is a doubt based upon reason
23 and common sense after careful and impartial consideration of
24 all of the evidence in the case.
25 Proof beyond a reasonable doubt is proof that

1093
1 leaves you firmly convinced of the defendant's guilt. The
2 law does not require proof that overcomes every possible
3 doubt.
4 If, after your consideration of all of the
5 evidence, you are firmly convinced that the defendant is
6 guilty of the crime charged, you will find him guilty. If
7 you are not so convinced, you must give him the benefit of
8 the doubt and find him not guilty.
9 State will now proceed with closing argument.
10 MR. SCHWARTZ: Judge, if we may approach?
11 THE COURT: Yes.
13 THE COURT: At this time, the Court is going to
14 go ahead and read the rest of the instructions. They do have
15 to all be read to you and then we will have forms that will
16 go back with you when you deliberate and you will also be
17 given the instructions that the Court is reading so that you
18 can refer to those instructions.
19 Instruction No. 5. As to Count I, if you find
20 and believe from the evidence beyond a reasonable doubt,
21 first, that between the hours of 7:20 p.m. and 9:40 p.m. on
22 December 27th, 2011, at 130 Sumac Drive, Troy, in the County
23 of Lincoln, State of Missouri, Russell Faria caused the death
24 of Elizabeth Faria by stabbing her and,
25 Second, that Russell Faria knew or was aware

1094
1 that his conduct was causing or was practically certain to
2 cause the death of Elizabeth Faria and,
3 Third, that Russell Faria did so after
4 deliberation, which means cool reflection upon the matter for
5 any length of time, no matter how brief, then you will find
6 Russell Faria guilty under Count I of Murder in the First
7 Degree.
8 However, unless you find and believe from the
9 evidence beyond a reasonable doubt each and all of these
10 propositions, you must find Russell Faria not guilty of
11 Murder in the First Degree.
12 If you do find Russell Faria guilty under Count
13 I of Murder in the First Degree, you are to assess and
14 declare the punishment at imprisonment for life without
15 eligibility for probation or parole.
16 Instruction No. 6. If you have a reasonable
17 doubt as to whether, first, that between 7:20 p.m. and 9:40
18 p.m., at 130 Sumac Drive, Troy, in the County of Lincoln,
19 State of Missouri, on December 27th, 2011, Russell Faria
20 caused the death of Elizabeth Faria by stabbing her or,
21 Second, that Russell Faria did so after
22 deliberation, you must find Russell Faria not guilty under
23 Count I of Murder in the First Degree as submitted in
25 Instruction No. 7. As to Count I, if you do

1095
1 not find Russell Faria guilty of Murder in the First Degree,
2 you must consider whether he is guilty of Murder in the
3 Second Degree under this instruction.
4 As to Count I, if you find and believe from the
5 evidence beyond a reasonable doubt, first, that between the
6 hours of 7:20 p.m. and 9:40 p.m. on December 27, 2011, at 130
7 Sumac Drive, Troy, in the County of Lincoln, State of
8 Missouri, Russell Faria caused the death of Elizabeth Faria
9 by stabbing her and,
10 Second, that Russell Faria knew or was aware
11 that his conduct was causing or was practically certain to
12 cause the death of Elizabeth Faria, then you will find
13 Russell Faria guilty under Count I of Murder in the Second
14 Degree.
17 propositions, you must find Russell Faria not guilty of
18 Murder in the Second Degree.
19 Instruction No. 8. If you have a reasonable
20 doubt as to whether between 7:20 p.m. and 9:40 p.m. at 130
21 Sumac Drive, Troy, in the County of Lincoln, State of
22 Missouri, on December 27, 2011, Russell Faria caused the
23 death of Elizabeth Faria by stabbing her, you must find
24 Russell Faria not guilty under Count I of Murder in the
25 Second Degree as instructed in Instruction No. 7.

1096
1 If Counsel could approach briefly.
3 THE COURT: Instruction No. 9. As to Count II,
4 if you find and believe from the evidence beyond a reasonable
5 doubt, first, that Russell Faria is guilty of the offense of
6 Murder in the First Degree as submitted in Instruction No. 5
7 and,
8 Second, that Russell Faria committed that
9 offense by or with or through the knowing use or assistance
10 or aid of a deadly weapon, then you will find the defendant
11 guilty under Count II of Armed Criminal Action.
14 propositions, you must find Russell Faria not guilty of that
15 offense.
16 Instruction No. 10. As to Count II, if you do
17 not find Russell Faria guilty of Armed Criminal Action in
18 connection with the offense of Murder in the First Degree,
19 you must consider whether he is guilty of Armed Criminal
20 Action in connection with the offense of Murder in the Second
21 Degree.
22 As to Count II, if you find and believe from
23 the evidence beyond a reasonable doubt, first, that Russell
24 Faria is guilty of the offense of Murder in the Second Degree
25 as submitted in Instruction No. 7 and,

1097
1 Second, that Russell Faria committed that
2 offense by or with or through the knowing use or assistance
3 or aid of a deadly weapon, then you will find Russell Faria
4 guilty under Count II of Armed Criminal Action.
7 propositions, you must find Russell Faria not guilty of that
8 offense.
9 Instruction No. 11. One of the issues in this
10 case is whether Russell Faria was present at 130 Sumac Drive,
11 Troy, in the County of Lincoln, State of Missouri on December
12 27, 2011, between 7:20 p.m. and 9:40 p.m.
13 On that issue, you are instructed as follows.
14 The State has the burden of proving beyond a reasonable doubt
15 that Russell Faria was present at the time and place of the
16 offense -- I'm sorry.
17 The State has the burden of proving beyond a
18 reasonable doubt that Russell Faria was present at the time
19 and place the offense is alleged to have been committed. If
20 the evidence in this case leaves in your mind a reasonable
21 doubt that Russell Faria was present at 130 Sumac Drive,
22 Troy, Missouri, in Lincoln County on December 27, 2011, when
23 the crime was committed, then you must find Russell Faria not
24 guilty.
25 Instruction No. 12. Under the law, a defendant

1098
1 has the right not to testify. No presumption of guilt may be
2 raised and no inference of any kind may be drawn from the
3 fact that Russell Faria did not testify.
4 Instruction No. 13. The defendant is charged
5 with a separate offense in each of the two Counts submitted
6 to you. Each Count must be considered separately. You
7 should return a separate verdict for each Count and you can
8 return only one verdict for each Count.
9 Instruction No. 14. When you retire to your
10 jury room, you will first select one of your number to act as
11 your foreperson and to preside over your deliberations.
12 You will then discuss the case with your fellow
13 jurors. Each of you must decide the case for yourself, but
14 you should do so only after you have considered all the
15 evidence, discussed it fully with the other jurors and
16 listened to the views of your fellow jurors.
17 Your verdict, whether guilty or not guilty,
18 must be agreed to by each juror. Although the verdict must
19 be unanimous, the verdict should be signed by your foreperson
20 alone.
21 When you have concluded your deliberations, you
22 will complete the applicable forms to which you unanimously
23 agree and return them with all unused forms and the written
24 instructions of the Court.
25 Instruction No. 15. The attorneys will now

1099
1 have the opportunity of arguing the case to you. Their
2 arguments are intended to help you in understanding the
3 evidence and applying the law, but they are not evidence.
4 You will bear in mind that it is your duty to
5 be governed in your deliberations by the evidence as you
6 remember it, the reasonable inferences which you believe
7 should be drawn therefrom and the law as given in these
8 instructions.
9 It is your duty, and yours alone, to render
10 such verdict under the law and the evidence in your reason
11 and conscience is true and just.
12 The State's attorney must open the argument.
13 The defendant's attorney may then argue the case. The
14 State's attorney may then reply. No further argument is
15 permitted by either side.
16 Is the State ready for closing?
17 MS. ASKEY: Yes, Your Honor.
18 THE COURT: State will then proceed with their
19 closing.
20 MR. SCHWARTZ: Your Honor, I want to object to
21 this being in evidence. That's not in evidence.
22 MS. ASKEY: What's not in evidence?
23 MR. SCHWARTZ: That.
24 MS. ASKEY: The charge language?

1100
1 THE COURT: Does the State have an objection?
2 MS. ASKEY: To take down State of Missouri
3 versus Russell Faria?
4 MR. SCHWARTZ: That's up to the jury what that
5 is.
6 MS. ASKEY: That's what he's been charged with.
7 Okay.
8 Good morning.
9 JURORS: Good morning.
10 MS. ASKEY: First, I want to thank you for your
11 attentive listening over the last five days, essentially last
12 Friday through today, and for the last five days we've heard
13 all about Elizabeth, Betsy Faria's death.
14 But for a minute, I want to talk to you a
15 little bit about her life. Who was she? She was a Mom. You
16 heard from her two daughters. She was a sister. You heard
17 from two of her sisters. She was a daughter. You saw Janet
18 Meyer take the stand and you heard from her.
19 She was a go-getter. She was described as the
20 happy person, the positive person, somebody that was
21 determined; and she was diagnosed with terminal cancer.
22 Who else was Betsy Faria? Well, I would
23 contend that she was a victim of domestic violence. You
24 heard from her daughters that it wasn't the Brady Bunch in
25 that house. There was a lot of profanity, argument,

1101
1 condescending. A lot of dominance, controlling, disrespect.
2 That was just the glimmer of what we got to see into Betsy
3 Faria's life.
4 Now people that are victims of domestic
5 violence aren't typically violated in front of others, but we
6 got to see, through her daughters, what kind of life she
7 lived.
8 We got to hear from her sister, Mary, how even
9 some five years ago, she had to respond to Betsy Faria's
10 house because the defendant was in a rage.
11 The defendant was calling names -- I think the
12 "C-word", which I still haven't been able to bring myself to
13 use in front of you.
14 To these young girls, he's throwing a fit.
15 Throwing a tantrum on the bed. He shoves her and, as she's
16 calling the police and getting out of there with her child,
17 he says, I'm going to cut you up in bits and pieces and bury
18 you. Folks, that's domestic violence at its heart.
19 Now the defense wants to say, well, that was
20 four years ago, five years ago. Well, I'm hopeful that
21 nobody ever hears that from anyone, especially their spouse.
22 I think that thought process kind of started Russ Faria and
23 his plan.
24 And something that's important that you know
25 about every crime scene that our law enforcement officers

1102
1 investigate in a Major Case Squad comes in and looks at in
2 every crime scene, the victim leaves their voice behind in
3 some way, and it's up to us to hear it.
4 In this crime scene, Betsy Faria left her
5 voice. She left it on the light switch in her bedroom. She
6 left it on her husband's, the defendant's slippers in her
7 closet.
8 She left it on the kitchen floor and on the
9 front of the towel drawer in the kitchen. She even left her
10 voice through her dog, Sicily.
11 In every crime scene, the defendant leaves
12 their voice behind and what happens is the voice becomes more
13 prominent when the killer gets careless, and I would contend
14 that that's what happened here. At some point, the killer
15 got careless.
16 Well, how did it happen? That's always the
17 million-dollar question, right? How did it happen?
18 I think Richard told you in jury selection, we
19 may not be able to answer every question for you, and that's
20 unfortunately the case more oftentimes than not. But I'm
21 going to tell you how I think it happened.
22 I think -- how did he do it? He decided that
23 this would be the ultimate role play. The ultimate game.
24 The ultimate way to stage, but it required all hands on deck.
25 It required a pretty good script, one that

1103
1 could be committed to memory and one that could be
2 anticipated. Anticipation of every move.
3 Now I'm not suggesting that he knew all along
4 that December 27th was going to be the day, but I am
5 suggesting that months before, maybe years before, he had the
6 idea and I think he brought it to his friends.
7 I think he talked about it. How would we do
8 this? How would the ultimate role play happen?
9 It just so happens that his marriage was not
10 well, and the worse it got, all of a sudden Betsy finds out
11 she's not in remission. She has terminal cancer.
12 What's her goal as a Mom, do you think? I'm
13 going to just wait it out? Live in this life. Die with this
14 man? Or am I going to take care of my kids? What's her goal
15 as a Mom, do you think?
16 He knew she had $300,000 in life insurance, at
17 least, is what Major Floyd said. I think he started this
18 conversation. And once he realized his wife calls on
19 December 27th and says, well, she texts, actually, and says,
20 I think I'm going to come back. I'm going to come home
21 tonight. And he says, here? Home here? Yeah, home to Troy.
22 He didn't expect her.
23 Now he knows that she doesn't feel well because
24 she tells him that. He knows she's been at chemotherapy. He
25 knows that her white blood count is low.

1104
1 Wouldn't you think that this doting husband who
2 is so distraught would say, you know what, honey? I already
3 know that my game has been canceled tonight. No problem.
4 I'll pick you up. I'll take you home so you can rest. I'll
5 be there by 5:00. Wouldn't you think that the doting husband
6 would do that?
7 No, he knew she was tired and he knew if he
8 told her he had a game, which he later orchestrated the
9 get-together, that she's not going to wait around until 9
10 o'clock.
11 She's tired. She's had two days, three days of
12 Christmas and, let's face it, folks, she's got cancer. So
13 she says, you know what? I'm going to head on home. A
14 friend is going to take me. Exactly what he wanted to
15 happen.
16 And so the ball starts rolling. The momentum
17 starts gaining. He makes all of these stops so that he can
18 establish an alibi. Not a bad idea.
19 He goes to the Conoco Station in Troy and, I
20 thought it was interesting and you guys probably noticed, he
21 pumped fuel for less than three minutes in an Explorer SUV.
22 How much gas do you think he got? Do you think
23 he didn't have enough to get down to U-Gas where those
24 cigarettes were so much cheaper? Fifty-nine cents I think he
25 saved. Did that seem strange?

1105
1 He laid it out. Cancelled dinner with his Mom
2 because he had lots of errands to run. You heard of the
3 errands that he ran. He got down there and he said,
4 tonight's the night.
5 I don't know if any of you picked up on it when
6 Brandon Sweeney was on the stand, but when defense counsel
7 said, when was the last time you saw Russ Faria? He said,
8 not since "the night". Not "that night". That night we
9 played. That night we watched Conan the Barbarian. That
10 night we celebrated Christmas.
11 "The night". The night we've been talking
12 about for months, for years. The night. It's here. It's
13 real. Tonight is the night.
14 He leaves his phone and he heads back to Troy.
15 He comes into the house. Betsy is on the couch, love seat.
16 She's covered in a blanket, and I submit to you that he has
17 sex with her. That he violates her one more time. That he
18 controls her just one more time.
19 I'm going to humiliate you in a way that only I
20 can. One more time. Knowing that she's tired. That she's
21 sick. That she's not well. She lay there probably disgusted
22 with many things at that point.
23 And why doesn't he have blood on his clothes?
24 Because I don't think he was wearing clothes. I think he
25 walks past her in the kitchen. I think he goes around the

1106
1 refrigerator to the butcher block where he knows it is.
2 I think he gets the steak knife out in his own
3 kitchen. I think he gets this knife out and he comes around
4 to where she's lying on the sofa, on this sofa.
5 I think he comes around the corner and I think
6 he's really hopeful that he's going to stab her one time in
7 the neck and it's going to look like a suicide.
8 And folks, I'm not going to pretend that I
9 think the stabbing in the neck is a suicide or even looks
10 like one, and I'm sure you don't either but guess what? The
11 defendant sure does and why do we know that?
12 Because when he called 9-1-1, he said, "I just
13 walked in. My wife has killed herself and she has a knife
14 sticking out of her neck." He believed that's plausible.
15 I think he stood over top of her. He stabbed
16 her in the neck. When she moved, he stabbed her with such
17 force in her bicep as she lay on her side that it went
18 through her bicep and into her lung.
19 I think she, at some point, obviously gets up.
20 She sits up and she struggles somewhat, but not much.
21 Luckily for her, I would imagine that she died within a
22 minute. But it was personal. It was passionate.
23 He gets her on the ground and, at that point, I
24 think that the overall feeling is, oh, no, this went horribly
25 wrong. Reality sets in. Now what do I do?

1107
1 The killer gets careless. He starts, I'm going
2 to cut her arms. Except for we know that happened after she
3 died.
4 What do I do? He goes back, takes a shower,
5 gets any evidence off of him that he has and then he comes
6 out. And the killer is careless because guess what? They
7 have got a family dog and he forgets that a dog, by nature,
8 is going to be inquisitive.
9 When there's blood, they are going to be
10 inquisitive and, let's face it, it's the dog's owner and so
11 the dog is kind of investigating things, and he's like, oh,
12 no.
13 He picks the dog up. He throws it over to the
14 kitchen and then gets it outside on the chain. He's
15 careless.
16 At some point, either he goes down to
17 Wentzville, Lake St. Louis and picks up his phone, gets his
18 Arby's bag and heads back to Troy to call in the suicide or I
19 would submit to you that Brandon Sweeney is the one that goes
20 to Arby's, gets the receipt, then drives across the street to
21 Jack in the Box, just about five minutes later is the time on
22 those receipts.
23 Gets his receipt because he wants to cover his
24 own behind and then he drives to Troy, brings the defendant
25 his phone, and just as he's bringing the phone so that he can
1108
1 put the receipt in the other car, defendant's calling, on the
2 land line, 9-1-1.
3 As he's on the phone and, ladies and gentlemen,
4 you will be able to listen to that 9-1-1 call if you want to.
5 I ask you to listen to things like the differences in the
6 pitch, the differences in the echo of his voice.
7 You can tell that he's moving when he's on that
8 call, and I would submit to you that while he's talking to
9 9-1-1, he realizes, the slippers. The killer gets careless.
10 He's thought of everything else. It's
11 perfectly staged but the slippers. Betsy Faria's voice is
12 left at the crime scene.
13 He runs back into his bedroom and the light's
14 on. 9-1-1 is already on the phone. He knows they are
15 dispatching. He turns the light off because he doesn't tell
16 them he was ever in the bedroom and he quickly tosses the
17 shoes in the closet.
18 What do we know? Well, we know that Betsy was
19 alive at 7:05 and she was dead at 9:40. We know that her
20 body is staged to make it look differently than it happened.
21 We know that many of those wounds were post
22 mortem. We know that her Mom calls the defendant at 8:57 and
23 leaves a voicemail which is picked up within 30 seconds. We
24 know that.
25 We know by the pictures that the defendant's

1109
1 coat was lying nicely over the chair, just this far from his
2 dead wife. We know that.
3 We know that his gloves are all the way across
4 the room and, if you remember those videos where he's pumping
5 gas at the Conoco, he's got his gloves on but his gloves are
6 all the way on the other side of the room beyond her body.
7 We know that it's an inside job. Nobody broke
8 in. No signs of forced entry. It was somebody that knew
9 where the butcher block was. Knew where the knives were
10 kept. Knew where the dish towels were located.
11 And we know that the defendant's phone was
12 inactive, other than data receipts, for three hours. Those
13 are the things we know.
14 We also know that the defendant claims he lied
15 down next to her. He came inside and he lay down on the
16 floor next to her, but there was not any trace of evidence on
17 him. None.
18 We know through Mr. Fahnestock that every piece
19 of evidence that was sent to the lab to be tested, there was
20 not one, not one single DNA profile, other than the
21 defendant's and the victim's, that was obtained from those
22 samples. Not one.
23 We know that the bloody slippers were in the
24 bedroom, and I would ask you guys to take a look. These are
25 the photographs. You remember the photographs. You notice

1110
1 the color of the blood.
2 This is what old blood looks like. It's dark.
3 It's black. This is what fresh blood looks like. We have
4 the bloody slippers.
5 We also have, ladies and gentlemen, the
6 dog-like paw print pattern on the pants. Now I will tell
7 you, because I don't have a ruler for one and because this
8 seemed like an easy way to do it, I took this piece of paper
9 and I held it between the three --
10 MR. SCHWARTZ: Objection, Your Honor. Assuming
11 facts not in evidence at this point as to what she did.
13 MS. ASKEY: I can ask them to do it. If you
14 were to take, ladies and gentlemen, a piece of paper and hold
15 it between the three pads of the dog's paw, you would come up
16 with markings similar to these. That's the print from Betsy
17 Faria's hip.
18 Now if you were to take those and compare them
19 to all of the paw prints that were derived from the family
20 dog, every one of them will match that print on her hip.
21 That's what we know.
22 We know that the light switch in the bedroom
23 had male and female DNA and the major contributor was Betsy
24 Faria in the blood.
25 We know that a Blue Star application was made

1111
1 to the kitchen. Now I can't tell you -- it's a presumptive
2 test. We've talked about that. Tests for serological
3 fluids; blood, saliva, semen, those sorts of things. But
4 also, in fairness, it gives a false positive. Cleaning
5 agents will give a false positive.
6 We heard that. And I'm okay with all of that
7 because I don't know anybody that just cleans one drawer
8 facing and I don't know anybody that just cleans one path on
9 the kitchen floor that goes from the dead body to the back
10 door and to the one drawer that, incidentally, is not next to
11 the sink, but the one drawer that holds the kitchen towels.
12 So it could be a cleaning agent. It could be
13 serological fluid. But we know that's where the Blue Star
14 reacted.
15 We know that Betsy Faria had semen inside of
16 her and the defendant said the last time he had intercourse
17 with his wife was on the evening of the 25th. Ladies, three
18 days --
19 MR. SCHWARTZ: Objection, Your Honor. It's two
20 days, less than two days. It's on the 27th.
21 MS. ASKEY: The autopsy was performed on the
22 28th and at that point is when the swabs were done. At that
23 point is when she still has drainage from the sexual
24 intercourse that she had allegedly had on the 25th. Common
25 sense. Reason.
1112
1 What did he tell us? He said, my wife killed
2 herself. He said he laid next to her. He said, the dog is
3 outside on the chain. That's what he said to the 9-1-1
4 operator. The dog is outside on the chain. How did he know
5 that? He just walked in the door. How did he know where the
6 dog was unless he put it there?
7 What I think is really telling, ladies and
8 gentlemen, is the hysteria. We heard from the 9-1-1
9 operator, he's hysterical and then he can answer a question.
10 He's hysterical and then he can answer a question. She
11 judged him a little bit.
12 We heard from Officer Hollingsworth, who said,
13 hey, this guy, I think he's going into shock. And then
14 minutes later, he's in my car smoking cigarettes. We're
15 laughing.
16 He's talking about how he used to take girls
17 down to Bobblehead Road and scare the hell out of them.
18 Laughing it up not even an hour after his wife is dead. He
19 judged him.
20 Detective Merkel, Detective Floyd, Detective
21 Harney, they judged him. He's crying. He's on his knees.
22 He's wailing, though he never needs a Kleenex. Not one time
23 in all of those hours.
24 And, ladies and gentlemen, I'll be frank. I
25 judged him, too. And you, 15 people have sat in this

1113
1 Courtroom now for the last four days. You saw when I put
2 pictures up of Elizabeth Faria that were hard for you to look
3 at and frankly hard for me, and I didn't know her.
4 You heard the gasp of her family members and
5 the tears and you heard her mother say she couldn't even look
6 at it.
7 Did you pay attention to the defendant?
8 Because arguably, it's the first time he's ever seen his wife
9 in that condition, also.
10 Ladies and gentlemen, a reasonable doubt is a
11 doubt based upon reason, common sense and after careful and
12 impartial consideration of all of the evidence in the case,
13 I ask you to use reasonable inferences.
14 If you go to bed at night and you wake up and
15 there's snow on the ground, you can infer that it snowed. In
16 this case, you need to make reasonable inferences.
17 I believe that the State has proved its case
18 beyond a reasonable doubt. I believe that, based on the
19 evidence, based on all of the things that I've described here
20 and that we've heard over the last several days, that you
21 should be firmly convinced and you should return a verdict of
22 guilty on all Counts. Thank you.
25 THE COURT: You may proceed.

1114
1 MR. SCHWARTZ: It sounds to me that she just
2 accused four people of being complicit in murder: Michael
3 Corbin, Brandon Sweeney, Marshall Bach and Angelia Julian.
4 They just got accused of murder by the Prosecutor of Lincoln
5 County without one shred of evidence.
6 What if someone came over to your house and
7 watched a movie and went home and did something and you got
8 accused of murder? That's offensive.
9 MS. ASKEY: Judge I'm going to object as
10 personalization of the jury.
11 MR. SCHWARTZ: Those people were accused of
12 murder five minutes ago. Tonight's the night.
13 Let's talk about the word "proof". She talked
14 about reasonable doubt. I talked to all of you about that in
15 voir dire. Proof. Let's not go to reasonable doubt. Let's
16 talk about proof.
17 All she said was, "I think". I think he came
18 home, got undressed and had sex because there was eight sperm
19 cells left inside of his wife. Dr. Fahnestock said if it's
20 recent, there's thousands and it can last for a long time.
21 Yeah, and a smudge on the rectal area, that can last for a
22 long time, even if you shower.
23 And there's no evidence. Nobody said she
24 showered. She's still in the same clothing from the day
25 before. She's wrapped in that blanket, curled up on that

1115
1 couch. When did she have sex? He's naked and she's wrapped
2 up cozily in her blanket? Proof.
3 Is there anybody who doubts when he left his
4 house that night? We know he's at the Conoco at 5:16 and
5 that's about ten minutes or so from his house up on Sumac.
6 You saw him on the video setting up his alibi.
7 Did he go in the Conoco? No, he pumped enough gas to get
8 where he was going and back. Did he do anything? No. He
9 pumped gas. That's it.
10 And look at that video. I'm pretty darn
11 certain he's not wearing any gloves. If you look at that
12 video, when you see Russell on the screen, you also see some
13 guy walking through the door and he does this with his arms.
14 Making a big spectacle of himself.
15 That's not Russell. He doesn't go inside. He
16 pumps the gas. You can see it all on the surveillance video.
17 Cameras are everywhere when you go to your grocery store,
18 when you go to Walmart, you go to your bank, when you drive
19 through a red light. Those are cameras. Are you setting up
20 alibis?
21 Does anyone doubt he was at Conoco? That's
22 proof. We saw it. You saw it with your own eyes.
23 You saw the time and it corresponds with his
24 cell phone. If you look at this, the blue shows going down.
25 The red shows going up.

1116
1 At 5:07, 5:08 and 5:10, he's still within this
2 northern quadrant. Then it gets below and at these times,
3 his phone travels south. Is that proof? Do we know he was
4 traveling south? Yeah. The cell towers will show you where
5 his phone was. His phone wasn't magically doing it.
6 Did he go to Michael Corbin's house that night?
7 You see the text talking about we're going to do this and
8 every single person said that's what Russell does from 6:00
9 to 9:00 every single Tuesday night.
10 That's why there's no activity. Nobody calls
11 him. They play games. Nobody calls any of those people from
12 6 o'clock to 9 o'clock because that's where they are and
13 that's what they do.
14 You saw the text before. Four people, one who
15 only knew him about six or eight months, Marshall Bach. He
16 testified he was there. Angelia Julian, Michael Corbin,
17 Brandon Sweeney; are those four people complicit in murder?
18 That's proof. He was there.
19 We also know he was there because his cell
20 phone goes south of that tower at 5:50. Now he doesn't make
21 anymore calls, but there is activity on his cell phone, and
22 we will agree, his cell phone remains at that site because at
23 7:50 there's activity on the phone. He got an e-mail or some
24 sort of ping.
25 Did he go to Arby's that night? Well, before

1117
1 we get to that, did he go to U-Gas? Yeah. Well, what does
2 the State prove to you? That he spent 67 cents less because
3 that's where he gets his cigarettes. He didn't go into the
4 Conoco. We know he went there because he's on video there.
5 That's proof. That's proof beyond a reasonable doubt.
6 Did he go to Greene's Country Store? He did.
7 The detective showed you the receipt. It's an exhibit. You
8 can ask to see these. He went there.
9 Did he go to QuikTrip? He's on video at
10 QuikTrip. He walks in. He buys tea, and I would submit to
11 you it's two-for-one for teas at QuikTrip. He gets two
12 instead of one, and if you look at the exhibit, the one is
13 almost gone. Leaves it in his car and he drinks it on the
14 way and he almost finishes it on the way home.
15 Now remember, we looked at texts. You look at
16 his day of text. Why does he go to Greene's Country Store?
17 He's awfully lucky because Betsy says at 10:30, you're
18 supposed to get dog food tonight.
19 We know he got dog food. We know he texted it.
20 We saw the picture of the dog food leaning against the garage
21 door. I showed that to you. Not the State.
22 She says, you got game tonight? He says, yeah.
23 I will get it when I come in. Yeah, I got game tonight and
24 I'll get the dog food when I come in. That's his text. Then
25 he texts the other guys. I know no game tonight. Still cool

1118
1 to come over, maybe play Talisman?
2 He's not setting up something. This is what
3 they do every Tuesday. They say, yeah. He says, sweet. See
4 you then.
5 Then there's another text from Brandon inviting
6 everybody out to some New Year's party and he says he's got a
7 gig, their DJ business.
8 Then there's another text from Brandon. Then
9 he texts Betsy back. Yeah, I'm going to game. Then I'll
10 come get you. Should not be too late.
11 So what is this plan? He's going to go pick up
12 his wife and bring her home so she can spend the night at
13 home on a Tuesday night. She responds, okay. Great honey.
14 Is this a victim of domestic violence?
15 What have you heard as far as domestic
16 violence? That teenage stepdaughters who had moved out and
17 were having problems who said he cussed. From a sister, who
18 I think in 2004, interfered in a domestic argument that they
19 were having and he made a threat five, six, seven years
20 earlier. That's what they are using as proof. That's not
21 proof.
22 After she says, okay. Great honey. Then he
23 talks about "Mo", which I assume is Mariah. Remember she was
24 in the hospital? She's better, but work is giving her
25 trouble. Okay. She has a note. They are going to find a

1119
1 replacement. Hey, all is good. All is good.
2 Then she says, I got TP, which I'm assuming
3 means "toilet paper" and if you look at the photographs, you
4 are going to see a bag with toilet paper sitting there on the
5 chair, and Pam Hupp wants to take me home.
6 Talks about her "WBC", which I assume is her
7 white blood cell count being low. So there's no question
8 mark.
9 Are you coming home here? Yes. Troy. She is
10 bringing you? Yes. She offered. I accepted. Didn't get
11 much sleep. Mom snored. Okay. See you soon then. Okay.
12 Great.
13 Then the next and last is a text right about 6
14 o'clock as Brandon says he's walking in that was never
15 responded to.
16 So what do we know? We know Russ leaves his
17 home at 5:00. He makes calls to his wife and his mother.
18 Those are reflected also in the cell phones. Tells his mom,
19 I'm not coming over as I usually do because I'm running these
20 errands and then he goes and he hangs out all night.
21 "Tonight's the night", like she said. Boy,
22 that was a pretty detailed plan. Hey, if the police talk to
23 you, don't remember what I wore because that would sound too
24 obvious. Tell them we watched movies. Tell them we watched
25 "Conan" and we watched "The Road"? Nobody would say that.

1120
1 Remember where we sat. That's crazy.
2 We know what kind of car he was in. There's no
3 doubt about that. He was in his blue Explorer. Mr. Sweeney
4 got the color of the car wrong once before. He said it was
5 like a mauvey-green or a brown or something. They are not
6 lying.
7 What didn't the State show? Remember, they
8 have the burden of proof. Sabharwal said there's 56 stab
9 wounds. Remember, there was about -- the wounds in the back,
10 the wounds in the torso, the wounds in the neck; 14, 15
11 centimeters. That's 7 inch wounds. And it's not like
12 shooting somebody. You were right together.
13 He said, yeah. I would absolutely expect
14 whoever did this to have blood on them. That night Russ went
15 down to the Police Station, there was no blood on his hands,
16 on his feet, on his hair, on his skin, under his fingernails.
17 And you know how we know that? Because if there was, you
18 would have heard about it. And there wasn't.
19 And it's not because he cleaned up and cleaned
20 his fingernails and washed his hair, because Detective Merkel
21 told you they looked at those drains. There's no blood
22 anywhere suggesting the clean-up. None.
23 They took his pants. They took his shirt.
24 They took his white socks. They took his watch. You know
25 how we know there's no blood anywhere? Dr. Fahnestock told

1121
1 you and you would have heard about it. Not one iota. Not a
2 scintilla of blood.
3 And we know how detailed it can get because
4 there was one microscopic, unable-to-see cell of somebody
5 under her fingernails that wasn't Russ and it wasn't Betsy.
6 I don't know where it came from. I'm not telling you it was
7 the person who killed her, but that's how detailed this stuff
8 can be.
9 There was a lot of blood. There wasn't one
10 scintilla of blood on him. She said apparently he got naked
11 but kept his slippers on to kill his wife. That's crazy.
12 And we'll talk about that in a second.
13 We know how detailed they can be because they
14 were able to extract eight sperm cells out of her. He said
15 they were intimate Sunday night. That's how detailed the
16 interview was and that's what you would expect after 48
17 hours.
18 She was deceased on the 27th, whether it was
19 the 42 or the next day when they did the autopsy, those sperm
20 cells were still inside her. If she would have had sex the
21 night before, there would be way, way, way more.
22 Detective Fisher, Detective Pratt, they did a
23 full search of the car. If you remove anything with blood on
24 it, a towel, a mop, anything, there would be some sort of
25 transfers.
1122
1 There was nothing in the car. Not one stitch
2 of blood in that car, on the steering wheel, on the windows,
3 anywhere. What did they prove to you?
4 Well, I'm not sure it was beyond a reasonable
5 doubt, but apparently you can get a good deal on cigarettes
6 at U-Gas. It's 60 cents cheaper. That's all they proved.
7 Mr. Hicks and Ms. Askey are both very good at
8 their job and they have done it well, but they can't create
9 evidence.
10 The Major Case Squad officers are picked
11 because they are the best in the region. These guys are the
12 best. They are assigned to investigate one thing, 20 to 25
13 of them investigating one thing.
14 Now I don't have the burden, but they
15 questioned Russell for 16 hours. Said, we need you to help
16 us figure out what happened. Sixteen hours of this. He had
17 been up now for two days by the time they finished.
18 What did he tell them? He told them where he
19 went. So what do they do? They went and seized videos to
20 show where he went.
21 Did the State show those to you? No. We did.
22 Because that would disprove their theory. The video from the
23 Conoco, just pumping gas. The video from the U-Gas, just
24 buying cigarettes. The video from QuikTrip, buying tea.
25 They seized receipts. Did the State show those

1123
1 to you, the one from Greene's Country Store? The one from
2 Arby's where he went through the drive-thru? You can ask and
3 look at these receipts.
4 He went through the drive-thruto establish his
5 alibi. Did the State show those to you? No. I did. We
6 showed you the receipts.
7 They went the next morning and talked to
8 witnesses, again, the Major Case Squad, they talked to those
9 four people that Ms. Askey has accused of being complicit in
10 murder. Then they got detailed, individual videotaped
11 statements from all four of them, all four, as to what went
12 on and what their whereabouts were. We presented them to
13 you. Not the State.
14 The State kept saying, what do you see right
15 when you walk in? Well, you see Elizabeth Faria on the
16 ground. That's not true. They never showed this photo,
17 Defendant's Exhibit M.
18 When you walk in, there's a hallway right where
19 the dog food is sitting by the garage door where he said he
20 laid it down when it was on his shoulder, and then threw his
21 leather jacket on the chair before seeing her on the floor.
22 We showed you that. They didn't show you that.
23 They seized his phone, got the text messages.
24 We read them to you. They are the ones with the burden.
25 They have had all of this information, 16 hours of tape from

1124
1 Russell, hours of tapes from Angela, Michael, Brandon and
2 Marshall. Have they disproved anything, anything that any of
3 them said? No. What they did was confirm what they said.
4 There's cameras everywhere. There's traffic
5 cameras everywhere. Don't you think they could have or would
6 have or did look at these things?
7 Ms. Askey's theory is now that he left his
8 phone down there in Troy. Well, there's nothing to prove
9 that. That's conjecture. That's a guess. And as I
10 discussed in opening statements, I'm sorry, in voir dire,
11 that's jumping to a conclusion. That's what that is.
12 Russ jumped to a conclusion when he walked in
13 there and he saw his wife laying on the floor. He jumped to
14 the conclusion of suicide. That was the wrong conclusion.
15 Based upon that, the police apparently jumped
16 to a conclusion and focused on him to the detriment of
17 investigating this thing properly. But not you. You have
18 now heard it all. The State has not proven it. Don't you
19 jump to a conclusion.
20 She said the dispatch tape, he called in and he
21 tried to disguise this. The words are: I just got home from
22 a friend's house. And the operator keeps saying, calm down,
23 calm down, calm down. My wife killed herself. She's on the
24 floor. She's got a knife in her neck and she's slashed her
25 arms. He's not trying to hide anything.

1125
1 Mr. Hicks asked Officer Hollingsworth,
2 Paramedic Quattrocchi, Captain Schramek, what's the first
3 thing they noticed? She's on the floor, a slit in her wrist
4 and a knife in her neck, which is the exact same thing
5 Russell said.
6 But Russell is not a paramedic. He's not an
7 officer. He's not a cop. He's not a fireman or an M.D. He
8 does tech support for Enterprise out of his basement and it
9 was his wife lying there on the floor.
10 They want to judge his grief. They weren't
11 there in Rhode Island when he and Betsy got the news. They
12 weren't on their survival cruise with Russ and Betsy and her
13 mother and those other close friends when they were grieving
14 for the last few months.
15 The only person who walked in that room -- if
16 you walk in that room, all you see is the knife and the
17 wrist. It's obviously not suicide, but why would he say
18 that?
19 Well, you heard. She had attempted at least
20 twice before, leaving a note once and she had been depressed
21 and now she has terminal cancer. That's why he jumped to
22 that conclusion.
23 Was it a wrong conclusion? Absolutely. It was
24 obviously a wrong conclusion, which begs the point. Would
25 the person who did this ever say, I'm going to say it's
1126
1 suicide and get away with it. Absolutely not a chance.
2 There's 56, 56 stab wounds. Now I say it's
3 obviously not suicide what you see with the knife in the neck
4 and the big slit in the arm, but Officer Hollingsworth, he
5 didn't tell you, well, yeah, I knew there was a bunch more
6 wounds. Quattrocchi, same thing. Schramek, same thing.
7 Nobody who walked in and just saw that knew
8 there was any more wounds. The person who did this is the
9 only person who knew there were more wounds, and that person
10 would never ever, ever say it's suicide nor would they try
11 and sell it as suicide to get away with it. That would be
12 insanity.
13 The State wants to argue he was not hysterical
14 enough. How would you like someone to categorize your grief?
15 Officer Floyd, Officer Hollingsworth, Officer Quattrocchi.
16 Officer Hollingsworth said, you're not a cuddly
17 guy. How is he going to grieve if this would happen to him?
18 Nobody wishes this on anybody but nobody knows how they are
19 going to react.
20 I kept asking Officer Merkel, he had Russ in
21 that interrogation room and every single time he would leave,
22 Russ would be crying. Russ would be praying. Russ would be
23 whispering Betsy's name; Betsy, Betsy, Betsy. No, no, no,
24 no, no.
25 He was alone in the room with a pinhole camera

1127
1 less than the size of my fingernail. And he would let them
2 go in and then watch him and calm him down.
3 I'm not saying how anyone would react. Nobody
4 knows. This is grief. His wife is now deceased. Did he
5 grieve appropriately? I don't know. He tried to be helpful.
6 He was hysterical. You can ask or listen to the tape. You
7 make a judgment. It's not a fair judgment because none of us
8 would have any idea, but he tries to cooperate.
9 Is he moving around? The 9-1-1 operator tells
10 him to get the medications, put them on the table so they
11 know what she's on.
12 She calms him down. That's her job.
13 Hollingsworth calms him down. Merkel calms him down because
14 we need information to find out what happened. So he's able
15 to calm, but he's still grief-stricken.
16 Let's talk about a few things. The State keeps
17 calling this a paw print. Is it? Maybe. Maybe not. You
18 recall Officer Pratt, female CSI, testifying she said
19 attempts at enhancing the visible paw print pattern on the
20 victim's pants has met with negative results.
21 I asked her about that. You can't say it's
22 blood, can you? No, I can't. You can't say if it's mud, can
23 you? No, I can't. You can't even say if it's a paw print,
24 can you? No, I can't. You can't say when it got there,
25 whatever it is? No, I can't.

1128
1 Well, we know from Pam Hupp that Betsy let the
2 dog outside and we know it was wet outside. The State has
3 said, well, it looks the same as the other blood so it's
4 probably blood. Ms. Pratt said after she looked at it, it
5 was sent to the lab. Do you recall that?
6 Ms. Fischer said it came back from the lab and
7 I looked at it. Dr. Fahnestock said, no, no, no. It was
8 never at the lab and I never tested it. If it was tested at
9 the lab, I would have been the one who tested it.
10 Remember, any attempts to enhance it met with
11 negative results. Negative results. She said, well, because
12 we already knew it was blood because it looked like blood
13 because the stains were the same color, so we're assuming
14 it's blood but the attempts were to enhance the paw print --
15 that's what she testified to after that break we took.
16 The light switch plate, State's Exhibit 17, Dr.
17 Fahnestock told you, and I would agree, it appears to be some
18 sort of cloth pattern on the light switch plate.
19 How would a cloth pattern come in there? Take
20 a look at those shoes. It's a pretty similar cloth pattern,
21 as if somebody was carrying the shoes back there. And if
22 somebody -- if that somebody was Russ, don't you think he
23 would have wiped this off? And don't you think he would have
24 gotten rid of the shoes? He didn't have to call in right
25 when he got home.

1129
1 The stab wounds. Mr. Hicks went over with Dr.
2 Sabharwal in painstaking detail. I think we know all about
3 them. I went over them with Dr. Sabharwal. Remember, Ms.
4 Askey said, someone went into a rage and started stabbing.
5 Oh, my God, what have I done?
6 Remember, this is not rage. There were no
7 irregularities in those stab wounds, meaning there was no
8 movement back and forth and no movement laterally, side to
9 side. Betsy was not moving when those stab wounds were made.
10 Several of those stab wounds in the neck track
11 the exact same direction. The ones in the abdomen track the
12 same direction. The ones in the back, all of these 14, 15
13 centimeters, they all track the same direction. Most likely
14 postmortem, especially if you look at the ones on the back.
15 You can see the blood all on the front of this.
16 On these ones on the back that were 7 inches long, there's no
17 dried blood back there. There's no blood coming out of
18 those. Just like that one on her wrist.
19 Whoever did this wanted to make it look like
20 something like passion or rage. They didn't want to make it
21 look like suicide, and whoever did this certainly wasn't
22 going to say it was suicide.
23 This thing was set up and, remember, whoever
24 did this made those wounds. We know that wound is
25 postmortem. I would suggest those wounds are postmortem.

1130
1 What did they then do? They took that knife
2 and they put it back in her neck. And if you look at that
3 picture, there's a big 'ol fingerprint on that picture.
4 Don't you think if it was planned and Russ had
5 all of this time, he would have cleaned that off? He doesn't
6 know how many points are required to make an identification.
7 Take a look at that picture. The shoes. Where
8 is that picture of the shoes? Is this it?
9 Look at these photographs of the shoes and the
10 blood. Look at them closely.
11 A couple of things. Remember, we asked Ms.
12 Pratt how do you get blood on the bottom of the shoes and
13 there's no impressions of shoes in the blood? What was her
14 answer? Good question. It's a good question because nobody
15 ever stepped in that blood.
16 So how does blood get on the bottom of the
17 shoes? That's not droplets. Look at the side. That's not
18 droplets. Now there's one continuous drop right there.
19 Could that be from rubbing up just into a puddle of blood
20 lightly?
21 Blood is thick. It comes up. It could splash
22 when you dip it in that puddle. Ask the State to tell you
23 how blood gets on the bottom of those shoes without making an
24 impression in the blood and not someone dipping them in the
25 blood and then carrying them back, flipping the light switch
1131
1 and putting them in that closet to deflect suspicion from
2 whoever that person is, and that person is not Russ.
3 Russ would never have done something like that.
4 The person who did this -- by the way, there are no bloody
5 footprints on the floor. And she can argue all she wants
6 about the tile that Dr. Fahnestock said there is no evidence
7 that blood was on the floor.
8 Yeah, it could have possibly been diluted, but
9 to get it diluted on every single place and drawer and not
10 have any blood anywhere that he could detect?
11 The floors were clean and they weren't clean
12 because of blood evidence. They were clean because people
13 clean their house. Common cleaning solution would give false
14 positive, that's what they talked about.
15 Ask for these and look at these. Those aren't
16 droplets right there. That's a smudge and why isn't it on
17 the entire bottom? Because nobody stepped in blood.
18 Same here. Look at that. That's not a
19 droplet.
20 As far as impressions in the blood, there was
21 no paw print in the blood. If there was, you'd have seen it.
22 And you didn't see it.
23 Russell gave them everything he could to help
24 solve this thing. Instead of solving it, they focused on him
25 because he said "suicide".

1132
1 Unfortunately for them, all they could do is
2 confirm everything he said right down to being intimate with
3 his wife two nights prior. Everything. The interview with
4 Detective Merkel. He's in that room, praying, kneeling
5 putting his head down and crying.
6 I don't know if there were enough tears. He
7 had a blanket around him. He didn't need Kleenex. But he
8 was alone. He didn't know there was a pinhole camera in that
9 room.
10 Insurance, that's his motive. We found out why
11 he did it, except that insurance had been in his name since
12 2001, purchased by Betsy. He was the Beneficiary, and you
13 saw that little note that was put into evidence.
14 He had Mary Rodgers, his sister. Why would she
15 be on that note? Because she's a Secondary Beneficiary.
16 That's why.
17 And the funeral home said, hey, we need
18 information on the insurance to pay the funeral expenses.
19 Remember something else. This is a sad, sad
20 case. Betsy had terminal cancer. Russell is the Beneficiary
21 of the insurance policy. It's already spread to her liver.
22 All he needs to do is wait if that's his motive. As sad as
23 it is, Betsy was dying. Just wait.
24 They talk about Luminol and the false
25 positives. It reacts with common cleaning products. When

1133
1 they went and took the tile, there was no barricade on the
2 house. People were staying in the house. There's nothing to
3 indicate that someone hadn't been in the house before.
4 Nothing whatsoever. That was January 3rd or 4th, he said.
5 Again, what did they prove to you? He yelled
6 at his daughters. Maybe he used the wrong terms. They
7 proved that his sister-in-laws think this he could be
8 degrading and they proved that a woman who said he's
9 demeaning and degrading, who's met him three times,
10 apparently doesn't like him.
11 When he called in, they calmed him down.
12 That's what those people do. That's what the 9-1-1 operator
13 does. Officer Merkel said, you know, we had to establish a
14 rapport. He found the rapport with Pastor Mike of the
15 Morning Star Church where they go. That's how he calmed him
16 down and talked to him.
17 Dr. Fahnestock, he looked at all of his
18 clothing. He looked at everything that was sent to him.
19 Every follicle that they sent, every hair follicle, every
20 fingernail, every piece of skin, every article. Not one iota
21 of blood after somebody was stabbed 56 times and it's
22 obviously at close range.
23 You can't scrub that off of you. Officer
24 Merkel said they removed the drain pipes. There was no blood
25 in the drain pipes. There's no blood in the car. There's no

1134
1 blood on the tile. No blood in his fingernails, his hair,
2 anywhere on his body.
3 The palm print on the door. Well, I talked
4 about that. They have to remove the knowns. What does that
5 palm print on the door do? It proves that he went in and out
6 of the door and let his dog out.
7 When? I don't know. Maybe it was 5 o'clock
8 the night before. Maybe it was 3 o'clock the day before.
9 Maybe it was early morning. Maybe it was a week before.
10 Don't you think there are prints on your doors? That means
11 absolutely nothing.
12 We know how the dog got outside. Pam Hupp
13 testified when she got back there at 7:04 with Betsy, that
14 dog jumps all over you. So Betsy took the dog and put it
15 outside on the lead. That's how it got outside.
16 Let's talk about the texts for a moment.
17 Russell doesn't get that text until 3:46. That's almost 4
18 o'clock saying that he doesn't need to pick up Betsy because
19 Pam is going to bring her home.
20 He would have had to have somehow put this all
21 in motion. There's no phone calls down to Michael Corbin or
22 Brandon Sweeney or Marshall Bach or anybody. There's no
23 evidence that that ever occurred.
24 He would have had to have had this motion, go
25 to those places that they have accused him of setting up an

1135
1 alibi, show up at their house, leave his phone and say I'll
2 be back guys, don't say anything.
3 They showed you the jewelry chest that was
4 broken. Pam Hupp told you when she went inside, they arrived
5 at 7:04. She was inside for approximately, she didn't know,
6 20 minutes, 30 minutes. She saw the broken leg on the
7 jewelry chest.
8 She said she left and went home about that time
9 and then she called Betsy and Betsy didn't answer and she
10 said, well, I wasn't home. I was almost home. So it doesn't
11 really give us -- or I was home, she considered home free.
12 She said she never went in the house. She told
13 Janet that. She told the detectives that at first. Well, we
14 know she went in the house and we know she was there for some
15 time.
16 The gloves. The gloves -- there's no evidence
17 that those gloves were worn that day, even if he was wearing
18 gloves, which I don't think he was.
19 You look at the sofa in those pictures.
20 There's throw pillows perched on the edge of the sofa.
21 There's an afghan on the top of that sofa. There's a card on
22 the ottoman. There was no violent struggle.
23 Pam Hupp said the last time she saw her she was
24 on the sofa curled up in the blanket just like they found
25 her. She said also that the last time she saw her was at the
1136
1 door, but if you take what she first said, she's curled up on
2 the sofa in the blanket. There's no coming home, getting
3 naked, having sex, going into some rage.
4 We know at 7:21, 7:26 and 7:30 she missed three
5 calls from Leah.
6 They made a big deal about this family photo.
7 It was Christmas. She was terminal. Is that a man who wants
8 to kill his wife, to take a picture just before he kills her?
9 There was a family portrait at -- I don't
10 remember which side of the family -- later that day. That's
11 just what people do, especially when you know you are going
12 to eventually, ultimately lose a loved one. You want to
13 memorialize things.
14 Again, why would he say suicide? The person
15 who says that obviously -- here's what we have. They cast
16 suspicion upon themselves. The person who did this knows
17 it's not suicide and knows when anybody looks at that body
18 and takes that shirt off and looks at all of the wounds and
19 removes the blood, it's clearly, absolutely, 100 percent not
20 suicide.
21 The stab wounds in the back, the person who did
22 this would not do that in an attempt to cast away suspicion.
23 All that would do is invite suspicion. Not a chance anyone
24 would ever say that.
25 Initially, in that interview, Detective Merkel

1137
1 said, well, why didn't you touch the body? He said,
2 remember, I laid about a foot away from her. If you look at
3 the picture, away from her head, there is no trace evidence.
4 But he said, if she didn't do this to herself, I didn't want
5 to mess up what the investigation --
6 He was obviously considering, look, if she
7 didn't do this herself, someone needed to look into it and I
8 didn't want to mess up anything.
9 What could he have done? He could have got rid
10 of the shoes, if he knew about the shoes. He wouldn't have
11 carried the shoes back there.
12 Remember, he's the one that called 9-1-1 and
13 reported it. He had all of the time in the world.
14 If he got home and found the shoes, he could
15 have walked out the door, destroyed the shoes just like
16 whoever did this took all, whatever they had and destroyed
17 all of their clothing when they left, whenever they left.
18 He could have cleaned that switch plate off,
19 the light switch plate. He could have stopped somewhere
20 after Arby's, he could have gone into Arby's. I don't know
21 if they have a video camera, but if they do, he would be on
22 it.
23 He could have stopped at the Conoco and got
24 more gas. He could have stopped anywhere and shown what time
25 he was and where he was. He didn't do any of those things

1138
1 because there was no diabolical plan.
2 If it was a real plan, he probably would have
3 had Marshall or Mike or Angela text something out of his
4 phone while he was gone to prove he was there.
5 Well, nobody did that because it didn't happen,
6 because he was there and his phone was with them and we know
7 where his phone was.
8 The cell sites that we presented to you show
9 where Russell was with his phone. Anything else is a guess.
10 It's not proof and it's certainly not proof that can leave
11 anyone firmly convinced.
12 Let's look for a moment what we would have to
13 do, what Russell would have had to do in order to get this
14 done.
15 He somehow luckily got Betsy to text him that
16 Pam was going to go take her home. Luckily, Pam offered and
17 she accepted, according to the text. Because he was supposed
18 to bring her home, remember?
19 He would have then convinced all of his
20 friends, I'm going to leave my phone here. If anybody asks,
21 say I was here.
22 Rushed home -- now remember, the Arby's is 30
23 minutes and you can watch this tape that we put together if
24 you want. It's a 30-minute drive to the Arby's.
25 Mike Corbin's is further down. It's over an

1139
1 hour round trip to and fro. It doesn't leave a lot of time.
2 He didn't know what time Betsy is getting home,
3 so he has to get lucky. He doesn't know if Pam Hupp is going
4 to be there or leave or what.
5 So he's got to rush home. He's got to,
6 apparently, let the dog in. He's got to put on his slippers.
7 I would submit to you not any chance that anybody who did
8 this was wearing slippers.
9 He's got to meticulously stab 56 times without
10 leaving any irregularities, without getting any blood on
11 himself. He's got to then show up with no wounds, clean
12 everything up, clean himself up.
13 There's not a scratch on him. There's not a
14 wound on him. There's nothing. He's got to saw through her
15 wrist. He's got to then put the knife back into her neck.
16 Remember, there's no blood on him anywhere. No blood on his
17 hands. No blood under his fingernails. Nothing.
18 Then he's got to hightail it home. He's got to
19 make sure he puts those shoes away, I guess, with the
20 miraculous blood stain on the bottom.
21 He's got to then hightail it back to Mike
22 Corbin's. And what do they come up with? He gets his phone
23 and says, guys, if anybody was here, tell them I was the one
24 sitting in the leather chair. Tell them we watched movies.
25 Tell them we watched "Conan" and "The Road", but we didn't

1140
1 watch all of "The Road". Let's be consistent on that.
2 No big deal what I'm wearing. You don't need
3 to remember that. Just tell them we talked about my
4 motorcycle. They didn't make that up. That's what happened.
5 They talked about Christmas. They talked about
6 the motorcycle he wanted to get. They watched movies. They
7 had a cup of coffee. They remembered where they sat because
8 they sat that way for three hours and there was not much
9 conversation.
10 Oh, yeah, if you happen to go to Jack in the
11 Box, save that receipt. That's crazy. He saved it because
12 the detective said, where were you? He said it and they
13 probably said it and forgot. It's not in the report
14 anywhere. They didn't seize it.
15 Then he left and he didn't go into Arby's. He
16 didn't do anything else. He didn't go anywhere else and ask
17 for the receipt. He drove through Arby's and then he went
18 home, and you can look at the cell sites and you will see at
19 the time he went home.
20 It takes 30 minutes to get home. That Arby's
21 receipt is 9:09. He got home, immediately called 9-1-1 once
22 he saw her on the ground.
23 Don't be fooled about these slippers. That's
24 the only thing that they can present to you that links him to
25 this. The only thing. But remember, Officer Pratt, or Ms.

1141
1 Pratt, when we said, how does blood get on the bottom when
2 there's no impression? Good question.
3 And if you got a good question like that with
4 the only piece of evidence that potentially links him to
5 this, that is reasonable doubt.
6 Why would they do this? Why would he do it?
7 There's no reason. She was sadly dying. What should he have
8 done? She was gone. She had bled out. Her tongue was
9 hanging out of her mouth. She wasn't breathing.
10 What more could he have done? Think about
11 that. When you go places, when you stop at the grocery
12 store, when you stop at the gas station, you're on videotape.
13 You're not setting up any alibis. When you go to the bank.
14 Everywhere you go these days, you are on video whether you
15 like it or not.
16 His actions show he didn't do anything to make
17 any sort of spectacle. He went in, he got what he got and he
18 went out.
19 The State talked about cadaveric spasms with
20 Dr. Sabharwal. I don't think they have any idea when this
21 happened. The body condition was stiff. It was cool. The
22 blood was setting up. Have they given you enough to say why
23 this happened, when this happened, or how he did it?
24 It sure take takes a lot of planning, a lot of
25 planning and it takes complicity by four other completely

1142
1 innocent individuals.
2 I don't have to prove to you that he didn't do
3 it. Remember that. I don't have to prove to you he wasn't
4 there, but I think I did. They have to prove he was there.
5 They have to prove it beyond a reasonable doubt and they
6 can't.
7 Everything she said was "I think" he had sex
8 with her. I think he was naked. I think those four people
9 are lying for him. I think he went there, left his phone on
10 and drove home.
11 Only because she can't possibly think anything
12 different because I can prove that phone was there. I can
13 prove he was there. I can prove he went to those videos. I
14 can prove he went to those places. So she's got to work
15 within those contexts with the things I can't prove.
16 THE BAILIFF: Time. I gave you your five
17 minute warning. The time is up.
18 MR. SCHWARTZ: Just one second.
19 Shame on them for judging his grief. Shame,
20 shame, shame. Find him not guilty. Find that they did not
21 prove their case beyond a reasonable doubt. Thank you.
23 MS. ASKEY: Mr. Schwartz wants to talk to you
24 about the defendant being grief-stricken. He looks it.
25 He wants to talk about this alibi, this

1143
1 foolproof alibi. I sort of like the alibi. I sort of like
2 those guys that got up here; and I'll be honest, they didn't
3 come across probably the way I thought that they were going
4 to.
5 But they had their five facts down. Always.
6 Except for that morning, when that morning -- a little
7 confused. Did we watch one movie or two?
8 MR. SCHWARTZ: Judge, that's a
9 mischaracterization of the evidence.
10 MS. ASKEY: Was it "Conan" or "The Road"?
12 MR. SCHWARTZ: Judge, I would ask the jury to
13 recall the evidence as they remember it.
14 THE COURT: Jury is hereby instructed to recall
15 the evidence as you remember it.
16 MS. ASKEY: Did Brandon Sweeney go get a
17 sandwich and come back to his apartment and come inside and
18 eat it with Marshall Bach like Marshall Bach testified? Or
19 did he go get it and eat it and wad up and throw the wrapper
20 and the receipt in the back like Brandon Sweeney testified?
21 Did they really sit there for three hours and
22 all they can remember are the pertinent information about the
23 defendant? They can't remember anything about anyone else.
24 Anything anyone else said.
25 They sat there for three hours and had two

1144
1 paragraphs of conversation about the defendant's motorcycle
2 he was going to buy, when we heard from Pam Hupp that Betsy
3 had just applied for food stamps.
4 MR. SCHWARTZ: Objection, Your Honor. There's
5 no evidence of that. I would ask that that be stricken from
6 the record.
7 MS. ASKEY: That's what she testified to.
8 MR. SCHWARTZ: I didn't hear it.
9 MS. ASKEY: You weren't listening.
10 THE COURT: That's overruled.
11 You may proceed.
12 MS. ASKEY: That's what they remember. They
13 sit there for three hours, ladies and gentlemen, smoking pot.
14 They don't eat anything or drink anything? I can't talk to
15 you for 30 minutes without having dry mouth and having to get
16 a glass of water and they are smoking pot for three hours and
17 they don't drink anything?
18 Russ Faria stops and gets two liters of tea and
19 he doesn't bring it in. But yet that's one of the errands he
20 had that caused him to cancel dinner with his Mom.
21 They remember that the phone rang. They are
22 all very committed to the fact that his phone rang one time.
23 And they knew it rang because they have heard it ring in the
24 past on other Tuesday nights, because that's when they get
25 together.
1145
1 They are used to his phone ringing. They are
2 used to that sound. They are used to that Imperial March
3 because that's his ringtone.
4 But you heard from Captain Lang who told you
5 his phone didn't ring at all until 8:57. Not during that
6 time where he picked it up and looked at it and put it away.
7 We know that the only time his phone rang,
8 based on those phone records, was at 8:57 and it was his
9 mother-in-law calling to check on her daughter.
10 We know that his voicemail was accessed within
11 30 seconds of that call.
12 MR. SCHWARTZ: Your Honor, again, I would ask
13 the jury be instructed to regard the evidence as they can
14 recall. They couldn't have called with the overlap.
16 MS. ASKEY: It's not what Captain Lang
17 testified to. That's what Mr. Swanson said.
18 MR. SWANSON: I agree.
19 THE COURT: Overruled.
20 MS. ASKEY: Are we to assume that this is a
21 ghost killer? That someone just came in and killed her and
22 wanted it to look like a suicide but wait, not just a
23 suicide, maybe I want to set him up, too, and I'm going to do
24 a really bad job of it. Maybe that's what they want to do.
25 But no, not that either.

1146
1 You know what? I think I better clean up after
2 myself if I'm going to come into your house and kill you;
3 and I'm going to be wearing some sort of, I don't know,
4 because I don't leave one shred, not one DNA profile behind.
5 And you heard Mr. Schwartz tell you this was a
6 brutal, personal killing. And not one? The only two
7 profiles in the house are the defendant's and the victim's?
8 Does that seem strange to anybody else?
9 Why would he say suicide? Because at that
10 point, it's so far gone you have got to say something. He's
11 committed himself to it. He's married himself to it and, by
12 God, he's going to stick with it all of the way through his
13 ten hours, not sixteen, his ten hours of interviews.
14 He talks about how he's being watched through
15 this little hole and he's crying and he's on his knees. You
16 know what he's saying? No, no, no.
17 You heard the 9-1-1. How could she do this to
18 me? Still at that stage, some hours later, he's blaming his
19 wife. How could she do this to me? How dare she? No, no,
20 no.
21 She's dying. She has terminal cancer. This is
22 the man she's married to. She has two daughters that aren't
23 his. She knows she's got to get her affairs in order, and he
24 knows that might cut him out.
25 Dr. Fahnestock talked about the slippers. I

1147
1 would submit to you that he wasn't wearing the slippers when
2 he killed her.
3 What does he do when he gets out of the shower?
4 Slips his slippers on and comes out. There's the dog. He
5 then steps up close to get the dog away and, as he's giving
6 him a toss, now what? He's got to step out of them.
7 That's why there's no tracks. He realizes it.
8 The killer gets careless. That's how Betsy's voice gets
9 heard because the killer gets careless.
10 He talked about the palm prints. I like the
11 palm prints. The palm prints are on the inside of the
12 sliding door. How often do you open a sliding door like
13 this, except for when you don't want to touch the handle?
14 I got all kinds of kids' prints on my doors,
15 but none of mine like this.
16 MR. SCHWARTZ: I'm going to object to whether
17 there is evidence about what the prints are like.
18 MS. ASKEY: Withdrawn.
21 MS. ASKEY: Betsy says, you got a game tonight?
22 Yeah, I've got a game. He didn't.
23 He wants to show you the text messages. I tell
24 you, look at them because as soon as he realizes she's coming
25 home is when his plan starts.

1148
1 As soon as he realizes that she's got a ride
2 and she's coming back to Troy, he immediately, look at his
3 phone records, immediately he calls his mother and cancels.
4 Can't come tonight, Mom. Too many errands to run.
5 He goes and gets his gallon of gas and heads
6 down to pick up his cigarettes. That's when his plan starts.
7 Joel talks about the phone map and that his
8 phone is traveling south. We've never disagreed. His phone
9 definitely did travel south and his phone, if we want to
10 believe the guy who was on the stand, which I really don't
11 have any reason not to, his phone stayed down there.
12 Russ knows that. Remember, he's an IT guy. He
13 knows all of that kind of stuff and he knew it in advance.
14 It's a good way to say that I'm there even if
15 I'm not. I'll just leave it. Because it's my phone,
16 presumably it's with me. But yet I didn't use it at all.
17 Does it seem strange to you?
18 How about Brandon Sweeney and his receipt? Who
19 keeps a receipt 18 months after they buy a sandwich at Jack
20 in the Box? And not only keeps the receipt, but makes a
21 copy, keeps it in their wallet on their person and then lies
22 and says that law enforcement told them to do that? Who does
23 that?
24 You heard from the insurance agent that he
25 called on New Year's Day. I would submit to you that when

1149
1 you have a loved one pass away, the funeral home takes care
2 of all of that. You're not calling the insurance company
3 yourself unless you really want to be sure you're getting
4 that money. That's a time of grieving, for most. That's
5 why you hire a funeral home. That's what they do.
6 Folks, we talked about reasonable inferences
7 and evidence. There isn't any evidence that points anywhere
8 else.
9 MR. SCHWARTZ: Objection, Your Honor. We
10 covered this in our earlier motion.
12 MR. SCHWARTZ: I ask that it be stricken.
13 THE COURT: The previous statement will be
14 stricken. The jury will be asked to disregard that
15 statement.
16 MS. ASKEY: There is no other evidence of DNA
17 in the house. There is a man and a woman's DNA, the woman's
18 of which is confirmed as Betsy's, on the light switch.
19 It's Betsy's blood on the top of his shoes and
20 Russell's DNA inside of his shoes. The paw print from the
21 dog matches that on the hip of those pants.
22 There's a positive reaction of Luminol, of Blue
23 Star, of cleaning agents, whatever you want it to be, in a
24 clear path from the body to the back door where the palm
25 prints are and a clear path to the drawer where the towels
1150
1 are.
2 That's the evidence that you heard. Reasonable
3 inference. You are entitled to do that. We ask you to do
4 that.
5 You judge the credibility. You judge the
6 credibility of the witnesses. The alibi witnesses. Dr.
7 Fahnestock, law enforcement, the kids. It's your job to
8 judge their credibility.
9 Folks, in every crime scene, the victim leaves
10 behind a voice. In this case, Betsy Faria left her voice on
11 the light switch in her bedroom. She left her voice on the
12 slippers in her closet. She left her voice throughout her
13 kitchen on those positive reactors.
14 I would submit to you the very fact that they
15 were able to determine that she not only had sex but that she
16 had sex recently. Her voice.
17 She left it through her dog, Sicily. And when
18 law enforcement arrives on a scene, it's their job to look
19 and to try to find, try to hear that voice that the victim
20 leaves behind.
21 And once they do that, they compile the
22 evidence. They bring it to my office. Then it's my job to
23 try to hear that voice and try to seek justice.
24 Folks, I'm asking you, it's not beyond all
25 doubt. It's evidence that leaves you firmly convinced that

1151
1 Russell Faria killed his wife.
2 I'm asking for you to hear Betsy's voice and
3 return a verdict of guilty.
4 THE COURT: If the Bailiff would please come
5 forward and raise your right hand.
6 (The Bailiff was sworn.)
7 THE COURT: Thank you. For the record, the
8 Court is noting it's 11:30 a.m.
9 At this time, would the Bailiff please deliver
10 the instructions to the jurors when they are in the jury
11 room, and the alternate jurors need to remain in the
12 Courtroom.
14 The jurors do get to take your notes with you
15 when you deliberate.
17 THE COURT: For the record, the Court will read
18 to the Jurors Number 51, 58 and 61 their instruction.
19 Until you retire to consider your verdict as to
20 punishment, you must not discuss this case among yourselves
21 or with others or permit anyone to discuss it in your
22 hearing.
25 with the trial.

1152
1 Do not communicate with others about the case
2 by any means. Do not read, view or listen to any newspaper,
3 radio electronic communication from the Internet or
4 television report of the trial.
5 And now I guess we want the Bailiff to escort
6 them to their own room.
7 You can take your notes with you, as well, I
8 believe.
9 (Pause in proceedings.)
10 THE COURT: We're back on the record on
11 12L6-CR0001312, State of Missouri versus Russell Faria. The
12 jury has sent a request of items including Arby's receipt,
13 Jack in the Box receipt, pictures of house, in house, out
14 house, medical exam report, DNA report, CSI report, e-mails,
15 phone records, Detective reports, depositions from defense
16 witnesses, maps of phones, antennas, tours.
17 The Court has had a conference with all Counsel
18 and Counsel has agreed to reply as follows:
19 The Court hereby remits the items requested
20 except for the reports and depositions as those items were
21 not admitted into evidence.
22 The Court is giving all such items as agreed
23 upon by Counsel to the jury at 1:45 p.m., on November 21st,
24 2013.
25 (Pause in proceedings.)
1153
1 THE COURT: We're on the record then in
2 12L6-CR001312, State of Missouri versus Russell Faria.
3 MR. SCHWARTZ: Judge, Mr. Faria is not here
4 yet.
5 THE COURT: Okay.
6 State, did you want to retrieve your exhibits?
7 MR. HICKS: Yes.
8 THE COURT: Ladies and gentlemen, at this time
9 it is the Court's belief that the jury has reached a verdict.
10 We're going to bring the jury back in.
11 We will ask if you would please remain in your
12 seats and please remain quiet.
13 If anybody does not believe that they can
14 contain their composure during the reading of the verdict, we
15 would ask if you would please exit the Courtroom before the
16 jury is brought in.
17 If you would please rise for the jury.
20 For the record, we will read the numbers of
21 each juror into the record.
22 If you would please acknowledge your presence
23 by raising your hand. Juror 2, 3, 4, 11, 12, 15, 27, 29, 35,
24 38, 38, 39 and 44.
25 For the record, all jurors are present.

1154
1 It is the Court's understanding that the jury
2 has reached a verdict. Will the foreperson please rise.
3 Sir, has the jury reached a verdict?
5 THE COURT: Sir, would you please hand that
6 verdict to the Bailiff.
7 The Court noted that the foreperson has
8 returned the verdicts as well as the exhibits and the
9 instructions.
10 The Court has accounted for all of the verdict
11 forms at this point.
12 Would the defendant please rise to receive the
13 verdict?
14 As to Count I, we, the jury find Russell Faria
15 guilty of Murder in the First Degree as submitted in
17 We assess and declare the punishment for Murder
18 in the First Degree at imprisonment for life without
19 eligibility for probation or parole.
20 As to Count II, we, the jury find Russell Faria
22 No. 9.
23 Mr. Foreperson, is this indeed the verdict of
24 the jury?
25 JUROR NUMBER 44: Yes, it is.

1155
1 THE COURT: Does either Counsel request that
2 the jurors be polled?
4 THE COURT: Okay.
5 Ladies and gentlemen of the jury, I will call
6 you by Juror Number and I will just ask you to acknowledge
7 whether or not that indeed was your verdict.
8 Juror Number 2, was that your verdict?
9 JUROR NUMBER 2: Yes, ma'am.
10 THE COURT: And Juror Number 3?
12 THE COURT: Juror Number 4?

1156
7 THE COURT: So says the jury at this time.
8 Would defense counsel be asking for an
9 additional ten days to file a Motion for New Trial?
11 THE COURT: And, sir, you may be seated.
12 Do we need to set -- we can set a date for
13 further proceedings after the jury is discharged; is that
14 acceptable?
15 MS. ASKEY: Yes.
17 at this time the Court wishes to thank you for your service.
18 You were a vital part of our process, obviously, and of the
19 laws of the State of Missouri.
20 We do have for you paperwork from the Clerk to
21 indicate your presence in the event that any of you or all of
22 you would need paperwork.
23 You are free to go at this time. The Bailiffs
24 will escort you out and collect your numbers.
25 If any of you would like to remain in the

1157
1 deliberation room where you were to ask questions of or to
2 speak to the State or Counsel for defendant, you are
3 certainly free to do that as well.
4 At this time we thank you and you are free to
5 go.
7 (The jury left the Courtroom.)
8 THE COURT: Would Counsel like to approach as
9 far as further proceedings?
10 MR. HICKS: I think there's one issue. The
11 defendant was found guilty of Count II of Armed Criminal
12 Action which, at this point, he's entitled to the sentencing
13 portion of it. I think --
14 MR. SCHWARTZ: We'll waive the sentencing
15 portion.
16 MR. HICKS: I just wanted to make sure we got
17 that on the record.
18 THE COURT: Okay. And then as far as the date
19 for sentencing?
20 MR. SCHWARTZ: What days do you usually do it?
21 THE COURT: Tell me what time frame you want to
22 look at and I'll --
23 MR. SCHWARTZ: I can tell you Friday, December
24 20th is bad. Beyond that, I got nothing the next week, which
25 is Christmas week.
1158
1 THE COURT: Would Counsel be available Monday
2 the 23rd, the week of Christmas?
3 MR. SCHWARTZ: I can be here.
4 MS. ASKEY: I can be here.
5 THE COURT: I'm sorry?
6 MS. ASKEY: I can be here.
7 MR. SCHWARTZ: I'll be here.
8 THE COURT: Did you indicate that Friday, the
9 20th --
10 MR. SCHWARTZ: --is bad.
11 THE COURT: If you back up to Wednesday, the
12 18th or Tuesday, the 17th, would any of those work or Monday,
13 the 16th?
14 MR. SCHWARTZ: Is that 25 days? Do we have
15 enough time to get the motion out?
16 THE COURT: It should be because today is the
17 21st. I'm sorry. Yes, today is the 21st. December 20th
18 would be 30 days, right?
19 MR. SCHWARTZ: Something like that.
20 THE COURT: The 18th would be like 28 days. If
21 you just wanted to the 23rd, I can.
22 MR. SCHWARTZ: I have got a hearing in St.
23 Francis on the 18th. How about the 23rd?
24 THE COURT: If we do the 23rd, --
25 Bailiff, they need to clear the Courtroom.

1159
1 We have a jury trial December 23rd is the only
2 issue, so I guess if we did it at 8:15. Does that work?
3 MS. ASKEY: The 18th?
4 THE COURT: The 23rd.
5 MR. SCHWARTZ: You are trying a jury trial on
6 the 23rd?
7 THE COURT: I'm open for business every day.
8 MS. ASKEY: What time?
9 THE COURT: I'd have to do 8:15 because if that
10 jury trial goes.
11 MS. ASKEY: 8:15 on the 23rd for sentencing.
12 THE COURT: Monday the 23rd.
13 MR. SWANSON: When is the motion due?
14 MR. SCHWARTZ: The motion would be due in 25
15 days. We'll have it filed pretty quickly.
16 THE COURT: Do you want a SAR?
17 MR. SCHWARTZ: No.
18 THE COURT: For the record, defense has not
19 requested a SAR.
20 Give me a minute. So we're going to set
21 sentencing on Monday, December 23rd at 8:15 and then for
22 purposes of filing motions, you have 25 days. I'm not sure
23 what the date is.
24 MR. SWANSON: It is the 16th.
25 THE COURT: Does somebody have a memo?

1160
1 For the record, the sentencing date is set for
2 December 23, 2013, at 8:15.
3 Motion for New Trial shall be filed on or
4 before December 16, 2013.
5 Court is in recess. We're off the record.
8 ***
10
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14
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17
18
19
20
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1161
1 REPORTER'S CERTIFICATE
3 I, Cindy Ricks, Certified Court Reporter and Certified
4 Shorthand Reporter, do hereby certify that I am the Official
5 Court Reporter for Division 1 of the Circuit Court of the
6 County of Lincoln, State of Missouri; that on 2-20-13,
7 3-4-13, 5-21-13, 6-18-13, 7-2-13, 7-10-13, 10-28-13,
8 11-18-13, 11-19-13, 11-20-13, and 11-21-13, I was present
9 and reported the proceedings had in the above-entitled case;
10 and I further certify that the foregoing pages contain a true
11 and accurate reproduction of the proceedings had on said
12 dates.
13
14 /S/ Cindy Ricks

CINDY RICKS, CCR, CSR
15 Official Court Reporter
Forty-Fifth Judicial Circuit
16 State of Missouri
17
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Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM

1 IN THE MISSOURI COURT OF APPEALS

5 vs. ) ED No. 100964

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

13 vs. ) Cause No. 12L6-CR001312

22 Ms. Leah Askey Attorneys for the Plaintiff

1 Q. You think it was in the latter half of the

4 Q. Okay. And you are saying that, at that point,

5 Russell didn't answer it?

6 A. I recall that he took his phone out and looked

7 at it, but whether he was looking at a call that had been

8 missed or he didn't answer or it was a text message, I have

10 Q. Okay. You say his phone has a distinctive

11 tone. It's the Imperial March from Star Wars, correct?

13 Q. I don't need to hum that. I think we are all

14 pretty familiar with that, right?

16 Q. What you are telling us is that the entire

18 A. No, I don't recall anybody else's cell phone

22 Q. You don't recall what anybody else may have

23 brought, whether they even brought their cell phone, correct?

25 Q. You assume that they did?

1 A. I would assume so, but I didn't hear their cell

2 phones go off, so I can't be for sure.

3 Q. When the cell phone went off, was it the

6 Q. Okay. And Russell had a smart phone, correct?

7 A. I don't know. I've never been through his

9 Imperial March. I would think it's a smart phone.

10 Q. So when you have, for instance, if you get an

11 e-mail, I mean, the Imperial song --

12 A. It very well could have been an e-mail?

13 Q. What I'm asking is, typically when you get an

14 e-mail, I mean, it's going to be like a -- the Imperial March

15 is going to be long for an e-mail, wouldn't it?

16 A. I don't know if I want to speculate on that. I

17 don't know his ringtone.

18 Q. You heard the Imperial March?

19 A. Yes. That's what I heard.

20 Q. It went off for a little bit until he was able

22 A. It went on for a couple seconds, I believe.

23 Q. He looked at it and then put the phone away?

24 A. That's what I recall.

25 Q. And didn't call back?

2 Q. Sat there and continued to watch the movie a

5 Q. Then, at some point, you say that he left?

6 A. Yes. He left minutes before Brandon and

8 Q. He left shortly before they did?

10 Q. Now this night, you were supposed to play Role

12 A. That was the standing tradition, yes.

13 Q. And you had to cancel the game?

15 Q. Because Richard May had to work?

16 A. Yeah. I believe he had been called in a couple

17 of days before, so he had notified me and then I, in turn,

18 notified everybody else.

19 Q. You had notified everybody else previous to 6

20 o'clock that game is off?

21 A. Yes, I do believe I sent out a text message.

22 Q. Okay. And if game is off, did you also let

25 A. Yeah, I'm near positive because it's happened a

2 tonight, you're more than free to come over and watch a

4 Q. And you said at 6 o'clock sharp you got the

6 A. I actually believe I put it in a few minutes

7 before 6 o'clock, before everybody got there.