Joint Appendix — Richard Eugene Glossip, Petitioner v. Oklahoma

Supreme Court briefApr 23, 2024

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No. 22-7466

IN THE

Supreme Court of the United States

RICHARD EUGENE GLOSSIP,

Petitioner,

v.

OKLAHOMA,

Respondent.

ON WRIT OF CERTIORARI TO THE

OKLAHOMA COURT OF CRIMINAL APPEALS

[PUBLIC COPY—SEALED MATERIAL REDACTED]

JOINT APPENDIX

VOLUME 1 (PAGES 1-451)

PAUL D. CLEMENT

Counsel of Record

CLEMENT & MURPHY, PLLC

706 Duke Street

Alexandria, VA 22314

(202) 742-8900

paul.clement@clementmurphy.com

Counsel for Respondent

CHRISTOPHER G. MICHEL

Counsel of Record

QUINN EMANUEL URQUHART

& SULLIVAN, LLP

1300 I St. NW, Suite 900

Washington, DC 20005

(202) 538-8308

christophermichel

@quinnemanuel.com

Court-Appointed Amicus

Curiae in Support of the

Judgment Below

SETH P. WAXMAN

Counsel of Record

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave., NW

Washington, DC 20037

(202) 663-6000

seth.waxman@wilmerhale.com

Counsel for Petitioner

APRIL 23, 2024

PETITION FOR CERTIORARI FILED MAY 4, 2023

CERTIORARI GRANTED JANUARY 22, 2024

TABLE OF CONTENTS

VOLUME 1

Page

Relevant Docket Entries in No. PCD-2023-267

(Okla. Crim. App.) ............................................................... 1

Excerpts of Transcript of Proceedings, Jury

Trial, State v. Richard Eugene Glossip, No. CF97-244, Vol. 6 (Okla. Cnty. Dist. Ct. June 8, 1998)

[pp. 92, 94] ............................................................................. 7

Excerpt of Transcript of Proceedings, Jury

Trial, State v. Richard Eugene Glossip, No. CF97-244, Vol. 7 (Okla. Cnty. Dist. Ct. June 9, 1998)

[pp. 128-129]........................................................................ 10

Transcript of Proceedings, Competency

Hearing, State v. Justin Blayne Sneed, No. CF97-244 (Okla. Cnty. Dist. Ct. July 31, 1998) ................... 13

Excerpt of Brief of Appellant, Richard Eugene

Glossip v. State of Oklahoma, No. D-98-948

(Okla. Crim. App. Apr. 17, 2000) [pp. 32-33] .................. 16

Opinion, Glossip v. State, No. D-1998-948 (Okla.

Crim. App. July 17, 2001) ................................................. 20

Motion Requesting Production of All

Statements of Co-Defendant Justin Sneed, State

v. Glossip, No. CF-97-244 (Okla. Cnty. Dist. Ct.

June 17, 2002) ..................................................................... 40

State Response to Defendant Motion

Requesting Production of All Statements of CoDefendant Justin Sneed, State v. Glossip, No.

CF-97-244 (Okla. Cnty. Dist. Ct. June 26, 2002) ........... 42

i

Excerpts of Transcript of Proceedings, Jury

Trial, State v. Richard Eugene Glossip, No. CF97-244 (Okla. Cnty. Dist. Ct. May 14, 2004), Vol.

4 of 17 [pp. 25, 34-44, 56-74, 97-104, 140-141] ................. 44

Excerpts of Transcript of Proceedings, Jury

Trial, State v. Richard Eugene Glossip, No. CF97-244 (Okla. Cnty. Dist. Ct. May 18, 2004), Vol.

6 of 17 [pp. 14-18, 45] ......................................................... 82

Excerpts of Transcript of Proceedings, Jury

Trial, State v. Richard Eugene Glossip, No. CF97-244 (Okla. Cnty. Dist. Ct. May 19, 2004), Vol.

7 of 17 [pp. 3-15, 26-50, 60-79]........................................... 89

Excerpts of Transcript of Proceedings, Jury

Trial, State v. Richard Eugene Glossip, No. CF97-244 (Okla. Cnty. Dist. Ct. May 20, 2004), Vol.

8 of 17 [pp. 12-17, 30-36, 59-66, 78-84, 120-124] ............ 143

Excerpts of Transcript of Proceedings, Jury

Trial, State v. Richard Eugene Glossip, No. CF97-244 (Okla. Cnty. Dist. Ct. May 21, 2004), Vol.

9 of 17 [pp. 15-27, 43-50, 100-104, 191-221, 231235]..................................................................................... 175

Excerpts of Transcript of Proceedings, Jury

Trial, State v. Richard Eugene Glossip, No. CF1997-244 (Okla. Cnty. Dist. Ct. May 25, 2004),

Vol. 11 of 17 [pp. 76-86, 114-121, 128-130, 136137, 167-203, 214] ............................................................. 235

Excerpts of Transcript of Proceedings, Jury

Trial, State v. Richard Eugene Glossip, No. CF97-244 (Okla. Cnty. Dist. Ct. May 26, 2004), Vol.

12 of 17 [pp. 12-13, 16-17, 45-69, 101-110, 122-132,

161-207] ............................................................................. 290

ii

Excerpts of Transcript of Proceedings, Jury

Trial, State v. Richard Eugene Glossip, No. CF97-244 (Okla. Cnty. Dist. Ct. May 27, 2004), Vol.

13 of 17 [pp. 13-19, 33-37, 56-61, 97-104] ....................... 382

Excerpts of Transcript of Proceedings, Jury

Trial, State v. Richard Eugene Glossip, No. CF97-244 (Okla. Cnty. Dist. Ct. May 28, 2004), Vol.

14 of 17 [pp. 3-9, 23-32, 40-50, 83-87] ............................. 408

Excerpts of Transcript of Proceedings, Jury

Trial, State v. Richard Eugene Glossip, No. CF97-244 (Okla. Cnty. Dist. Ct. June 1, 2004), Vol.

15 of 17 [pp. 14-19, 68, 73, 92-94, 151] ............................ 440

VOLUME 2

Excerpt of Brief of Appellee, Richard Eugene

Glossip v. State of Oklahoma, No. D-2005-310

(Okla. Crim. App. Apr. 14, 2006) [pp. 1-37] .................. 452

Excerpt of Original Application for Post

Conviction Relief in a Death Penalty Case,

Richard Eugene Glossip v. State of Oklahoma,

No. PCD-2004-978 (Okla. Crim. App. Oct. 20,

2006) [pp. 37-39] ............................................................... 487

Opinion, Glossip v. State, No. D-2005-310 (Okla.

Crim. App. Apr. 13, 2007) ............................................... 492

Excerpt of Response to Petitioner’s Original

Application for Post-Conviction Relief, Richard

Eugene Glossip v. State of Oklahoma, No. PCD2004-978 (Okla. Crim. App. June 11, 2007) [pp.

15-19] ................................................................................. 565

Opinion Denying Post-Conviction Relief,

Richard Eugene Glossip v. State of Oklahoma,

No. PCD 2004-978 (Okla. Crim. App. Dec. 6,

2007)................................................................................... 572

iii

Response to Petitioner’s Successive Application

for Post-Conviction Review, Emergency

Request for Stay of Execution, Motion for

Discovery, and Motion for Evidentiary Hearing,

Glossip v. State, No. PCD-2015-820 (Okla. Crim.

App. Sept. 16, 2015) ......................................................... 581

Opinion Denying Subsequent Application for

Post-Conviction Relief, Motion for Evidentiary

Hearing, Motion for Discovery and Emergency

Request for a Stay of Execution, Glossip v.

State, No. PCD-2015-820 (Okla. Crim. App.

Sept. 28, 2015) .................................................................. 625

Order, Glossip v. State, No. D-2005-310 (Okla.

Crim. App. Oct. 2, 2015) .................................................. 642

Successive Application for Post-Conviction

Relief, Glossip v. State, No. PDC-2022-589

(Okla. Crim. App. July 1, 2022)

Attachment 7: Transcript of January 14,

1997, Police Interview of Justin Sneed ................. 644

Atachment 25: Dr. Edith King, Determination of Competency to Stand Trial, July 1,

1997, Psychiatric Evaluation Re: Justin B.

Sneed .......................................................................... 698

Attachment 54: Affidavit of D-Anna Wood,

February 7, 2001 ....................................................... 704

VOLUME 3

Brief for State of Oklahoma, Glossip v. State,

No. PCD-2022-819 (Okla. Crim. App. Oct. 10,

2022)................................................................................... 708

iv

Opinion Denying Subsequent Application for

Post-Conviction Relief, Motion for Evidentiary

Hearing, and Motion for Discovery, Glossip v.

State, No. PCD-2022-819 (Okla. Crim. App. Nov.

17, 2022)............................................................................. 771

Successive Application for Post-Conviction

Relief, Glossip v. State, No. PCD-2022-819

(Okla. Crim. App. Sept. 22, 2022) .................................. 785

Successive Application for Post-Conviction

Relief with Attachments, Glossip v. State, No.

PCD-2023-267 (Okla. Crim. App. Mar. 27, 2023)

[REDACTED] ................................................................. 883

Attachment 1: Smothermon/Sneed Interview

Notes—Image ........................................................... 927

Attachment 1: Smothermon/Sneed Interview

Notes—Transcribed Text ....................................... 929

Attachment 2: Affidavit of Dr. Lawrence

Trombka with Attachment [REDACTED] ......... 930

Attachment 3: Affidavit of Gary L. Ackley ......... 934

Attachment 7: Smothermon/Ackley Trial

Notes—Image ........................................................... 945

Attachment 7: Smothermon/Ackley Trial

Notes—Transcribed Text ....................................... 947

Attachment 8: Smothermon/Everhart Interview Notes—Image ................................................. 949

Attachment 8: Smothermon/Everhart Interview Notes—Transcribed Text .............................. 951

Attachment 9: Smothermon/Walker Memo

with Handwritten Notes—Image........................... 953

v

Attachment 9: Smothermon/Walker Memo

with Handwritten Notes—Transcribed Text......... 955

Attachment 10: Affidavit of Chuck Loughlin ......... 958

Attachment 11: Affidavit of Paul Melton................ 960

State of Oklahoma’s Response in Support of

Petitioner’s Successive Application for PostConviction Relief, Glossip v. State, No. PCD2023-267 (Okla. Crim. App. Apr. 6, 2023) ..................... 973

Opinion Denying Subsequent Application for

Post-Conviction Relief, Motion for Evidentiary

Hearing, Motion for Discovery, and Joint

Motion to Stay Execution, Glossip v. State, Nos.

PCD-2023-267, D-2005-310 (Okla. Crim. App.

Apr. 20, 2023) ................................................................... 980

SUPPLEMENTAL APPENDIX

[FILED UNDER SEAL]

Excerpt of Successive Application for PostConviction Relief with Attachments, Glossip v.

State, No. PCD-2023-267 (Okla. Crim. App. Mar.

27, 2023) [UNREDACTED version of J.A. 902904]..................................................................................... 999

Affidavit of Dr. Lawrence Trombka with

Attachment [UNREDACTED version of

J.A. 930-933] ................................................................... 1002

vi

1

GENERAL DOCKET

In the Court of Criminal Appeals

of the State of Oklahoma

OK Court of Criminal Appeal–Oklahoma

GLOSSIP V. STATE OF OKLAHOMA

Court of Criminal Appeals Docket #: PCD-2023-267

*

*

*

Date

#

Proceeding Text

03/27/2023

1

POST

CONVICTIONDEATH INITIAL FILING

03/27/2023

2

RECEIPT # 85792 ON

03/27/2023. PAYOR: WARREN GOTCHER TOTAL

AMOUNT PAID: $ 0.00.

LINE ITEMS: $0.00 ON

POST

CONVICTIONDEATH INITIAL FILING.

03/27/2023

3

ISSUE CERTIFICATE OF

APPEAL

03/27/2023

4

SUCCESSIVE APPLICATION FOR POSTCONVICTION RELIEF DEATH

PENALTY-EXECUTION

SCHEDULED 05/18/2023

03/27/2023

5

PETITIONER’S NOTICE

OF CONFLICT AND REQUEST FOR RECUSAL

EXECUTION SHEDULED

05/18/2023

03/27/2023

6

PETITIONER’S MOTION

FOR DISCOVERY

2

03/27/2023

7

PETITIONER’S MOTION

FOR

EVIDENTIARY

HEARING

03/27/2023

8

PETITIONER’S MOTION

TO FILE UNDER SEAL

UNREDACTED

VERSIONS OF ATTACHMENT

2 PROPOSITION ONE (B)

WHICH ADDRESS A WITNESS’S CONFIDENTIAL

MEDICAL RECORDS

03/30/2023

9

OBJECTION TO PETITIONER’S NOTICE OF

CONFLICT

AND

REQUEST FOR RECUSAL

04/04/2023

10

JE:

ORDER; HUDSON

VPJ, LUMPKIN J, LEWIS

J, MUSSEMAN J, WINCHESTER, JUSTICE BY

SPECIAL ASSIGNMENT);

ORDER

ADDRESSING

NOTICE OF CONFLICT

AND

REQUEST

FOR

RECUSAL;

PETITIONER’S REQUEST FOR

JUDGE

HUDSON’S

RECUSAL IS DECLINED.

THE CODE OF JUDICAL

CONDUCT HAS BEEN,

AND WILL CONTINUTE

TO BE, FOLLOWED IN

THIS CASE. LASTLY, PJ

ROWLAND’S

PRIOR

RECUSALS

IN

3

PETITIONER’S

CASES,

NOS PCD-2022-589 AND

PCD-2022-819, SUGGEST

RECUSAL IN THIS CASE

AND ALL FUTURE MATTERS RELATING TO PETITIONER’S

MURDER

CONVICTION IN OKLA

CO. DC NO. CF-1997-244 IS

WARRANTED.

JUDGE

ROWLAND IS HEREBY

RECUSED FROM ALL

MATTERS RELATING TO

THIS MURDER CONVICTION.

04/06/2023

11

JE:

ORDER; HUDSON

VPJ; COPIES TO ATTORNEYS; ORDER GRANTING PETITIONER’S MOTION TO FILE UNREDACTED VERSIONS OF

ATTACHMENTS UNDER

SEAL; WE FIND THE PETITIONER’S

MOTION

SHOULD BE GRANTED.

PETITIONER MAY FILE

UNREDACTED

VERSIONS OF THE ABOVEDESCRIBED

DOCUMENTS UNDER SEAL.

PETITIONER

SHALL

FILE THE DOCUMENTS

WITHIN 7 DAYS OF THIS

ORDER.

4

04/06/2023

12

STATE OF OKLAHOMA’S

RESPONSE IN SUPPORT

OF PETITIONER’S SUCCESSIVE APPLICATION

FOR POST-CONVICTION

RELIEF DEATH PENALTY-EXECUTION

SCHEDULED 05/18/2023

04/20/2023

13

JE: OPINION DENYING

SUBSEQUENT APPLICATION FOR POST-CONVICTION RELIEF, MOTION

FOR

EVIDENTIARY

HEARING, MOTION FOR

DISCOVERY, AND JOINT

MOTION TO STAY EXECUTION~~~~~~ AFTER

CAREFULLY REVIEWING GLOSSIP’S FIFTH

APPLICATION

FOR

POST-CONVICTION RELIEF, WE CONCLUDE

THAT HE IS NOT ENTITLED TO RELIEF, AND

RELATED

MATTERS

ARE DENIED.

THE

JOINT

APPLICATION

FOR A STAY OF EXECUTION IN CASE D-2005-310

IS DENIED.

~~~~~ ;

LEWIS J; CONCUR: HUDSON VPJ, MUSSEMAN J,

WINCHESTER J; SPECIALLY

CONCUR:

LUMPKIN J; COPIES TO

5

HON. HEATHER COYLE,

HON SUSAN STALLINGS,

DIST COURT CLERK,

MARK HENRICKSEN, JOSEPH PERKOVICH, DONALD KNIGHT, WARREN

GOTCHER, LEON WOODYARD, MARK OLIVE,

JOHN

MILLS,

AMY

KNIGHT,

KATHLEEN

LORD, DA OKC, AG,

PRESS, WEST, OIDS, OBJ,

LEXIS-NEXIS,

TERRI

CALLOWAY, DOC LEGAL

DEPARTMENT,

DOC

RECORDS OFFICE, GOV.

KEVIN STITT, US DIST

COURT FOR THE EASTERN DISTRICT, CRYSTAL KENNEDY RECORDS OFFICE, PITTSBURGH COUNTY COURT

CLERK, U.S. COURTHOUSE, OKLA PARDON

& PAROLE EXECUTIVE

DIRECTOR,

WESTERN

DISTRICT

OF

OKLAHOMA, BYRON WHITE

US COURTHOUSE, US

SUPREME

COURT

CLERK, WARDEN OKLA

STATE PENITENTIARY,

FOR PUB ** 2023 OK CR 5

**

04/20/2023

14

DENIED (OPINION)

6

04/20/2023

15

MANDATE ISSUED

04/27/2023

16

RETURN

CLERK

OF

COURT

04/27/2023

17

RECEIPT

DATE

FOR

MAN-

01/26/2024

18

LETTER FROM USSCRE: WRIT OF CERTIORARI GRANTED … SEE

LETTER

7

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

CASE NO. CF-97-244

THE STATE OF OKLAHOMA,

Plaintiff,

v.

RICHARD EUGENE GLOSSIP,

Defendant.

REPORTED BY:

THERESA L. REEL, RPR

321 PARK AVENUE, SUITE 805

OKLAHOMA CITY, OK 73102

VOLUME 6

Filed March 23, 2005

BEFORE THE HONORABLE

RICHARD W. FREEMAN, DISTRICT JUDGE.

TRANSCRIPT OF PROCEEDINGS,

JURY TRIAL,

HAD ON JUNE 8, 1998

*

A

[92]

*

*

I used the key.

Q

Where did you get the key?

A

From Richard Glossip.

8

Q

When did you get it from Mr. Glossip?

A When I first started working there, he gave

me a whole set of master keys so I could go in any room

that I needed to when I needed to, to fix whatever might

have a problem or something.

Q

So you already had the key to room 102?

A

Yes.

Q

How old were you at the time?

A

Nineteen.

Q Tell us what happened when you went into

room 102?

A I went in with my baseball bat, and basically

when I opened the door, Mr. Van Treese woke up, and

then I just hit him with the bat. And then he pushed me

and I fell back into the chair, and that’s how the window

ended up getting broke because the bat hit the window.

And then I just—Mr. Van Treese was trying to get out

of the room, and I just grabbed the back of his shirt and

slung him in the floor and then hit him a couple more

times.

Q

Do you know how many times you hit him?

A

No, I don’t. Maybe about 10 or 15, I guess.

Q Did you hit him because you intended for

him to die?

A

Yes, I did.

*

*

*

room.

[94]

Q

What did you do with the weapon?

A

I put it in the dumpster.

9

Q

And what was the weapon?

A

A baseball bat.

Q Would you have just left the bat in the room

had Mr. Glossip not told you to remove it?

A I don’t know. I might have thought about

removing it myself, but I probably would have left it

in there longer than what I did.

Q What did you all do when you and Mr. Glossip went to your room?

A After we was in the room a little bit and I

was telling him about the window being broke and

stuff like that, he asked me if I knew for sure that

Mr. Van Treese was dead, and I told him, yeah, and

that if he wanted to we could go around to the room

and he could see for himself. So we went around and

went back into 102 and so that he could see that Mr.

Van Treese was dead.

Q And so Mr. Glossip actually went into room

102 with you?

A

Yes, ma’am.

Q

How long did you all stay in there?

A I don’t know, maybe for about 20 minutes,

and then we left and we went in 101 and got a shower

curtain, and then when we went back in there and

taped the shower curtain over

*

*

*

10

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

CASE NO. CF-97-244

THE STATE OF OKLAHOMA,

Plaintiff,

v.

RICHARD EUGENE GLOSSIP,

Defendant.

REPORTED BY:

THERESA L. REEL, RPR

321 PARK AVENUE, SUITE 805

OKLAHOMA CITY, OK 73102

VOLUME 7

Filed March 23, 2005

BEFORE THE HONORABLE

RICHARD W. FREEMAN, DISTRICT JUDGE.

TRANSCRIPT OF PROCEEDINGS,

JURY TRIAL,

HAD ON JUNE 9, 1998

*

*

*

[128] willing to assist Mr. Sneed in the cover-up is because you were the mastermind of this murder?

A

No, ma’am.

Q Well, Mr. Glossip, isn’t it true if all you and

Justin Sneed wanted was money, all you had to do was

11

break the window to the car and get the money, but that

wasn’t good enough, you wanted him killed, didn’t you?

A No, ma’am, I didn’t want money, nor did I

want anything to happen to Barry. I already had my

own money.

Q Isn’t it true, Mr. Sneed, that you really

wanted to get those breast implants for D. Anna?

A

I’m not Mr. Sneed, ma’am.

Q I’m sorry. Mr. Glossip, isn’t it true that you

really wanted to get those breast implants for D. Anna?

A

No, I was against that. You can even ask D.

Anna.

MS. SMITH: Pass the witness.

THE COURT: Anything further?

MR. FOURNERAT:

Honor. Just briefly, Your Honor.

Thank you, Your

REDIRECT EXAMINATION

BY MR. FOURNERAT:

Q Would you tell this jury how long you

owned the vending machines that were in the office of

the Best Budget Inn?

A I bought the vending machines for D. Anna

so she’d have a little extra to do. I had them for a while.

[129] Q

month?

Did you make an income off of them per

A

Yes.

Q

How much?

A The Coke machine you could make anywhere from 850 to a $1,000 depending on how much

12

business you had coming through the motel and then the

candy went pretty well.

Q

Pretty well is how much?

A

I can’t—I mean, it varies.

Q

Then tell the jury what it varies at.

A I would say roughly between the three if

you had a good month you could probably do $1500.

Q

Just in the vending machines alone?

A

Yes.

Q

And whose money would that be?

A

Mine.

MR. FOURNERAT: No further questions.

THE COURT: Anything further?

MS. SMITH: Nothing further, Your Honor.

THE COURT: Thank you, Mr. Glossip.

THE WITNESS: You’re welcome.

THE COURT: Okay. We’ll take our lunch

break at this point. Folks, be back here at 1:30, please.

Remember my instructions to you .

(Thereupon, a recess was had, after which, the following was had in open court.)

*

*

*

13

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

CASE NO. CF-97-244

THE STATE OF OKLAHOMA,

Planitiff,

v.

JUSTIN BLAYNE SNEED,

Defendant.

REPORTED BY:

THERESA L. REEL, RPR

321 PARK AVENUE, SUITE 805

OKLAHOMA CITY, OK 73102

Filed September 18, 1998

BEFORE THE HONORABLE

RICHARD W. FREEMAN, DISTRICT JUDGE.

TRANSCRIPT OF PROCEEDINGS,

COMPETENCY HEARING, HAD ON

JULY 31, 1998, AND FORMAL SENTENCING

AFTER PLEA OF GUILTY, HAD ON

JUNE 18, 1998

*

*

[7]

THE DEFENDANT:

name.

*

It’s my step-father’s

THE COURT: And your lawyers are Mr. Tim

Wilson and Ms. Gina Walker, is that correct?

14

THE DEFENDANT: Yes, sir.

THE COURT: And we have a court reporter

taking this down. It shows here that you are 20 years of

age and you completed the eighth grade, is that right?

THE DEFENDANT: Yes, sir.

THE COURT: Are you taking any kind of medication or substance that might affect your ability to understand what’s going on today?

THE DEFENDANT: No, sir.

THE COURT: Have you been prescribed any

medication that you’re supposed to be taking but that

you’re not taking?

THE DEFENDANT: No, sir.

THE COURT: And have you been treated by a

doctor or a health professional for a mental illness or confined in a hospital for mental illness and you have been,

haven’t you? You at least were examined by Dr. King

while you were in the county jail?

THE DEFENDANT: Yes, sir.

THE COURT: And she found you to be competent. Do you recall that?

THE DEFENDANT: Yes, sir.

THE COURT: Is that the only time you’ve ever

been [8] examined by anybody concerning your mental

health?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand what we’re

doing here today, what’s going on with this proceeding?

THE DEFENDANT: Yes, sir.

15

THE COURT: And have you and your lawyers

had copies of the Information that is charged and filed

against you?

THE DEFENDANT: Yes.

THE COURT: Have you had a chance to go

over that with your lawyers?

THE DEFENDANT: Yes, sir.

THE COURT: And the crime, as you are wellaware, is a crime of Murder in the First Degree. You’re

aware of that, are you not? They’ve dismissed the Bill of

Particulars.

THE DEFENDANT: Yes.

THE COURT: And this would carry the possibility of penalty of maximum and minimum, the minimum of life imprisonment and the maximum of life imprisonment without the possibility of parole. You’re

aware of that?

THE DEFENDANT: Yes, sir.

THE COURT: You’ve not been convicted of anything before this, have you?

THE DEFENDANT: No, sir.

THE COURT: Do you understand you have the

right to a speedy trial before a jury, to have the jury determine

*

*

*

16

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

Case No. D-98-948

RICHARD EUGENE GLOSSIP,

Appellant,

v.

THE STATE OF OKLAHOMA,

Appellee.

Appeal from the District Court of Oklahoma County

Filed April 17, 2000

ATTORNEYS FOR APPELLANT

G. LYNN BURCH, III

APPELLATE DEFENSE COUNSEL

OKLAHOMA BAR ASSOC. NO. 14986

MATTHEW D. HAIRE

APPELLATE DEFENSE COUNSEL

OKLAHOMA BAR ASSOC. NO. 14916

CAPITAL DIRECT APPEALS DIVISION

OKLAHOMA INDIGENT DEFENSE SYSTEM

1660 CROSS CENTER DRIVE

NORMAN, OKLAHOMA 73019

(405) 325-3633

BRIEF OF APPELLANT

*

[32]

*

*

credible or not. He did seem rehearsed and mechanical while testifying at trial.

17

(Exhibit 7 to Rule 3.11(B) Application) The impact of

Fournerat’s failure to use the Sneed tape as a potent

weapon to attack the State’s case cannot be underestimated. As stated by the prosecutor herself prior to trial,

“[t]his case rests basically on the testimony of Justin

Sneed.” (M. Tr. 27) There can be no doubt that the failure to utilize the videotaped interview to impeach Justin

Sneed with his own numerous inconsistent statements

undermines the reliability and constitutional validity of

Mr. Glossip’s trial and sentence of death.

Likewise, Fournerat’s failure to impeach Sneed with

statements he made to Dr. Edith King during his competency examination was unreasonable and indicative of

trial counsel’s lack of preparation. At trial, the prosecution portrayed Sneed as a vulnerable and naive 19-yearold young man who, fearful of becoming destitute and

homeless, did the bidding of criminal “mastermind”

Mr. Glossip.16 Again, Sneed’s own statements to Dr.

King painted a much different picture: that of a

16

The prosecutor made the following comments to the jury:

“Mr. Sneed was a desperate sort of a 19-year-old-man. He was

homeless.” (Tr. III 8)

“Glossip also told Justin Sneed that night that if Barry fired

him, that being Mr. Glossip, that Mr. Sneed would be on the street

with no place to live, no money and nothing to eat.” (Tr. III 12)

“But for Richard Glossip, Justin Sneed would have never killed

Barry Van Treese.” (Tr. VIII 14)

“Glossip could get Justin Sneed to do whatever he wanted him

to do and blame it on Justin. And that’s what happened.” (Tr. VII

15)

“Now, Mr. Sneed’s life has been spared, and he deserved the

death penalty, but it’s been spared because of his youth. He’s 19

and his vulnerability and his remorsefulness and his cooperation.”

(Tr. IX 56)

18

streetwise individual with a criminal history, including

writing “hot checks” and taking marijuana, cocaine,

LSD, and methamphetamine, and who said “his only

hope is to get out of the death penalty is to plead guilty.”

(Rule 3.11(B) Application,

[33] Ex. 4)17 The report, filed of record in the case on

July 17, 1997, and hence available to Fournerat, also indicated that Sneed said at that time he was medicated

with lithium and it helped him “not to feel so angry,” that

“he used to get angry quite often,” would “yell at teachers and reject everyone and get into fights,” and was expelled from school for violence and being “a trouble

maker.” (Rule 3.11(B)Application, Ex. 4) In addition,

far from describing himself as a malleable individual easily manipulated by someone like Appellant, Sneed told

Dr. King that aside from his tendency toward violent

outbursts, he had a history of “reject[ing] authority.”

(Rule 3.11(B) Application, Ex. 4) Counsel’s failure to review the record and utilize this vital evidence to attack

Sneed’s credibility and the State’s specious theory of the

case provides yet another example of his ineffective performance.

The failure of trial counsel to cross-examine and

meaningfully test the primary evidentiary bases of the

State’s case against his client clearly runs afoul of the

Strickland standard. The prejudice has been amply

demonstrated, and Mr. Glossip’s conviction should be reversed.

17

This document was among those properly designated by Appellant yet not made part of the record by the Oklahoma County

Court Clerk, and in part formed the basis of Appellant’s litigation

to insure an accurate and complete record.

19

B. Trial counsel failed to adequately prepare by familiarizing himself with discovery obtained from

the State

The record shows that trial counsel did not adequately investigate or prepare for trial by familiarizing

himself with discovery materials provided to him by the

Statl. Mr. Fournerat had been provided with police reports regarding Detective Bemo’s telephone conversation with William Howard Bender, an individual who

managed the Tulsa Best Budget Motel. During his

cross-examination of Detective Bemo, Fournerat stated

that as Marty Baker had been identified as the manager

of the Tulsa motel, “there is no Howard Bender.” (Tr. VI

75) Therafter, Fournerat

*

*

*

20

FOR PUBLICATION

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

2001 OK CR 21

Case No. D 98-948

RICHARD EUGENE GLOSSIP,

v.

Appellant,

THE STATE OF OKLAHOMA,

Appellee.

Filed July 17, 2001

OPINION

JOHNSON, VICE-PRESIDING JUDGE:

¶1

Appellant, Richard Eugene Glossip, was

convicted in Oklahoma County District Court, Case No.

CF 97-244, of Murder in the First Degree, in violation of

21 O.S.1991, § 701.7(A).1 Jury trial was held June 1st

through 10th, 1998, before the Honorable Richard W.

Freeman, District Judge. The jury found two aggravating circumstances—(1) that the murder was especially

heinous, atrocious, or cruel and (2) that Appellant would

1

Appellant was charged cojointly with Justin Blayne Sneed.

(O.R. 5). The State filed its bill of particulars on April 23, 1997, alleging the murder was especially heinous, atrocious or cruel and

that Appellant constituted a continuing threat to society. (O.R. 31).

21

pose a “continuing threat” to society – and recommended a penalty of death. Judgment and Sentence was

imposed on July 31, 1998.

¶2

Appellant perfected his appeal by filing his

Petition in Error on February 1, 1999. His initial brief

was filed on April 17, 2000. The State’s brief was filed on

August 15, 2000, and Appellant’s Reply brief was filed

September 5, 2000. Appellant also filed on April 17, 2000,

an Application for Evidentiary Hearing on Jury Misconduct Claims, an Application for Evidentiary Hearing on

Sixth Amendment Claims, and Appellant’s Notice of Extra-Record Evidence Supporting Prosecutorial Misconduct and Violations of Due Process Clauses of the Oklahoma and Federal Constitutions. We remanded the case

to the district court for an evidentiary hearing. See Order Remanding to the Presiding Judge of Oklahoma

County for an Evidentiary Hearing on Claims of Jury

Misconduct, Ineffective Assistance of Counsel, and

Prosecutorial Misconduct, etc., D 1998-948 (Okl.Cr. December 7, 2000)(not for publication). The hearing was

held March 5, 2001, before the Honorable Twyla Gray,

District Judge, and the trial court’s Findings of Fact and

Conclusions of Law After Evidentiary Hearing were

filed in this Court on March 16, 2001. Both parties filed

Supplemental Briefs on March 23, 2001.

¶3

Appellant raised twelve propositions of error in his appeal. Two propositions required fact-finding

outside the appeal record and were addressed at the

March 5, 2001 evidentiary hearing. The claim of jury

misconduct was also addressed at the evidentiary hearing. Having reviewed the entire record before us, we

have determined that oral argument is not warranted or

necessary as further argument on the claims and issues

raised in this case would not be helpful or convincing to

the Court.

22

¶4

Only a brief statement of facts is necessary,

because Appellant’s claim of ineffective assistance of

counsel is compelling and requires relief. For the reasons set forth below, we find Appellant’s conviction for

Murder in the First Degree should be and hereby is REVERSED AND REMANDED FOR NEW TRIAL.

¶5

On January 7, 1997, the body of Barry Van

Treese was discovered in Room 102 of the Best Budget

Inn in Oklahoma City. Van Treese had been severely

beaten and died as a result of blood loss and blunt force

trauma to his head. Following the discovery of the body,

Oklahoma City police detectives interviewed Appellant,

who was the manager of the Best Budget Inn. They also

interviewed Justin Sneed, who was charged as a co-defendant in this case and who worked for Appellant as a

maintenance man in exchange for a free room at the motel. At Appellant’s trial, Sneed said he beat Van Treese

to death by hitting him ten or fifteen times with a baseball bat. Sneed testified he killed Van Treese because

Appellant asked him to do it. Sneed admitted he made

an agreement with the State to testify against Appellant

in exchange for a sentence of life without parole.

¶6

At all times prior to trial and during trial,

Appellant denied involvement in the murder of Barry

Van Treese. Although his statements to police officers

changed somewhat between his first and second police

interview, he consistently denied encouraging or telling

Sneed to commit the murder. Appellant only admitted

his involvement in the murder “after the fact.” He admitted he was afraid to tell the police what he knew and

admitted he assisted Sneed by helping conceal the murder scene.

¶7

On appeal and at trial, the State’s theory of

the case remained the same—Sneed was a poor,

23

vulnerable young man and Appellant masterminded the

murder by manipulating (asking or telling) Sneed to do

it. The State concedes the only “direct evidence” connecting Appellant to the murder was Sneed’s trial testimony. No forensic evidence linked Appellant to murder

and no compelling evidence corroborated Sneed’s testimony that Appellant was the mastermind behind the

murder.

¶8

The evidence at trial tending to corroborate

Sneed’s testimony was extremely weak. We recognize a

conviction cannot be had upon the testimony of an accomplice unless it is “corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or

the circumstances thereof.” 22 O.S.Supp.2000, § 742.

However, we need not reach Appellant’s claim going to

the sufficiency of the evidence,2 because trial counsel’s

conduct was so ineffective that we have no confidence

that a reliable adversarial proceeding took place.

¶9

Appellant raised twelve propositions of error. Although several errors occurred at trial which

alone might necessitate reversal, we only discuss those

matters impacting our decision today and those which

should be considered if Appellant is retried for this

crime.

¶10

In Proposition Two, Appellant claims his

trial counsel represented him “in a pervasively ineffective manner to the profound prejudice of Appellant,

leading to a collapse of the adversarial process and a denial of Appellant’s right to counsel guaranteed by the

2

Appellant raised sufficiency of the evidence in Proposition

One of his Brief.

24

Sixth Amendment.” We agree and preface our analysis

of this claim by emphasizing the State’s evidence was

circumstantial except for the testimony of Justin Sneed.

¶11

Analysis of this claim begins with the presumption that trial counsel was competent to provide

the guiding hand that the accused needed, and therefore

the burden is on the accused to demonstrate both a deficient performance and resulting prejudice. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80

L.Ed.2d 674 (1984). Strickland sets forth a two-part test

which must be applied to determine whether a defendant has been denied effective assistance of counsel.

First, the defendant must show that counsel’s performance was deficient, and second, he must show the deficient performance prejudiced the defense. Unless the

defendant makes both showings, “it cannot be said that

the conviction … resulted from a breakdown in the adversary process that renders the result unreliable.” Id.

at 687, 104 S.Ct. 2064. Appellant must demonstrate that

counsel’s representation was unreasonable under prevailing professional norms and that the challenged action

could not be considered sound trial strategy. Id. at 68889, 104 S.Ct. at 2065-66.

¶12

Appellant claims his trial counsel: (1) failed

to engage in meaningful cross-examination or utilize potent impeachment evidence;3 (2) failed to adequately

prepare by familiarizing himself with discovery obtained

from the State; (3) failed to conduct proper voir dire; (4)

failed to object to improper double hearsay testimony;

3

This claim is the most egregious of the ineffectiveness claims.

Specifically, this subclaim relates to trial counsel’s failure to utilize

the videotaped interview of Justin Sneed and his failure to utilize

the record of Sneed’s competency evaluation for impeachment purposes.

25

(5) failed to move the trial court to answer the jury’s

question regarding culpability for not rendering aid; and

(6) failed to object to improper victim impact evidence.

Appellant filed an Application for Evidentiary Hearing

on Sixth Amendment Claims, pursuant to Rule

3.11(B)(3), Rules of the Oklahoma Court of Criminal

Appeals, Title 22, Ch. 18, App.(2001). Although some of

Appellant’s ineffectiveness claims are obvious from

simply reading the appeal record,4 several, including

trial counsel’s failure to utilize available and potent impeachment evidence against Justin Sneed, are supported

by matters outside the record.5

¶13

Reviewing the claims in the Application, in

conjunction with the serious allegations made and the

record before us, this Court determined Appellant had

shown “by clear and convincing evidence there is a

strong possibility trial counsel was ineffective for failing

to utilize or identify the complained-of evidence.” Rule

3.11 (B)(3) (b)(i), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2001); Order

4

The record aptly demonstrates trial counsel’s failure to object

to extremely prejudicial double hearsay, failure to object to prejudicial victim impact evidence, and failure to offer a proposed response to the jury’s question concerning culpability for failure to

render aid. The record also demonstrates counsel’s failure to obtain

and review discovery and other evidentiary materials, his failure to

obtain the presence of witnesses, and his general lack of advocacy

skills.

5

The Exhibits attached to the Application for Evidentiary

Hearing were not admitted at trial. They address trial counsel’s

failure to utilize available and important impeachment evidence

against the State’s star witness Justin Sneed (Exhibits 1, 2, 3, 4 and

7), his failure to adequately prepare for trial and present a relevant

and sound theory of defense (Exhibit 6), and his failure to prepare

proposed mitigation instructions or second stage closing argument

(Exhibit 5).

26

Remanding to the Presiding Judge of Oklahoma County

for an Evidentiary Hearing on Claims of Jury Misconduct, Ineffective Assistance of Counsel, and Prosecutorial Misconduct, etc., D 1998-948 (Okl.Cr. December 7,

2000)(not for publication). We remanded for an evidentiary hearing.6 We directed the trial court to enter appropriate findings of fact and conclusions of law and to

determine: (1) the availability of the evidence or witness; (2) the effect of the evidence or witness on the trial

court proceedings; (3) whether the failure to use a witness or item of evidence was trial strategy; and (4) if such

evidence or witness was cumulative or would have impacted the verdict rendered. See Rule 3.11 (B)(3) (b)(iii).

¶14

The evidentiary hearing was held March 5,

2001, and the trial court’s Findings of Facts and Conclusions of Law were filed in this Court on March 13, 2001.

Ultimately, the trial court found Appellant had shown by

“clear and convincing evidence that he was prejudiced

by the ineffectiveness of counsel and that this Court cannot have confidence in the outcome of the trial.”

¶15

As noted above, Appellant made six claims

relating to ineffective counsel. Two claims—trial counsel’s failure to engage in meaningful cross-examination

or utilize potent impeachment evidence and his failure to

adequately prepare for trial by familiarizing himself

with discovery obtained from the State—required factfinding outside the appeal record and were addressed at

6

The matter was remanded for an evidentiary hearing on the

Sixth Amendment claims asserted in Proposition Two and the Application, as well as to address other claims raised in the Application

for Evidentiary Hearing on Jury Misconduct Claims and Appellant's Notice of Extra-Record Evidence Supporting Prosecutorial

Misconduct and Violations of Due Process Clauses of the Oklahoma

and Federal Constitutions.

27

the evidentiary hearing. Prior to the hearing. Judge

Gray7 reviewed the entire trial transcript, including the

testimony of Justin Sneed, and watched the videotaped

interview of Justin Sneed conducted on January 14,

1997, by Oklahoma City police Detectives Bemo and

Cook.8

¶16

Trial counsel’s failure to utilize important

impeachment evidence against Justin Sneed stands out

as the most glaring deficiency in counsel’s performance.9

Evidence of counsel’s failure to utilize the videotape of

Justin Sneed is also apparent from the trial record. This

interview was repeatedly referred to by trial counsel

and by the State. During first stage deliberations, the

jury requested to view the videotape of Justin Sneed

even though it was not admitted into evidence. At trial,

trial counsel attempted to impeach Detective Bemo with

portions of the videotape, but was unable to lay an appropriate foundation. Judge Freeman talked trial counsel out of using the videotape to impeach Detective

Bemo; trial counsel indicated he would use the tape to

impeach Justin Sneed. However, when the time came to

7

We take this opportunity to commend Judge Gray for her serious and studied handling of this matter on remand. The details of

her Findings of Fact and Conclusions of Law are excellent. The

Judge put in many hours to complete her task. She is complimented

for making a hard decision and not taking the easy way out by condoning trial counsel's conduct.

8

At trial, this videotape was identified as State's Exhibit 4 and

was not admitted at trial; the videotape was attached to the Application for Evidentiary Hearing on Sixth Amendment Claims as Exhibit 1. A transcription of the videotape is attached to the Application as Exhibit 2.

9

In this subclaim, Appellant contends counsel should have utilized the Sneed videotape and Dr. King's report on competency to

impeach Sneed.

28

impeach Sneed, trial counsel failed to utilize the videotape at all.

¶17

At the evidentiary hearing, Judge Gray determined the videotape was available and could have

been used as impeachment evidence against both Detective Bemo and more importantly against Justin Sneed,

but trial counsel never laid a proper foundation for its

use against Detective Bemo and did not even attempt to

confront Sneed with the discrepancies and inconsistencies on the tape. Judge Gray noted the numerous inconsistencies between Sneed’s trial testimony and his videotaped confession. She identified at least seven material

inconsistencies and noted at least five things in Sneed’s

trial testimony that he had completely omitted from his

videotaped statement. The most obvious and prejudicial

of these omitted statements was Sneed’s revelation that

Appellant told him “to pick up some trash bags, a hack

saw and I believe some … muriatic acid … He was wanting to pour the acid upon the body and then saw up the

rest of the body and put it in trash bags to be able to

move it out of the room.” Trial counsel did not impeach

Sneed by pointing out that he had never mentioned that

obviously material fact on the videotape. Judge Gray observed that trial counsel “missed multiple opportunities

to test Sneed before the jury.” Noting the State’s star

witness was Justin Sneed, the gist of Judge Gray’s findings was that no reasonable trial strategy could have

supported a decision not to utilize this impeachment evidence against him.

¶18

Judge Gray considered the testimony of

Captain Charles Rexford on Appellant’s claim that his

counsel was obviously ill-prepared and had no cogent defense theory. After hearing Rexford’s testimony, Judge

Gray found trial counsel presented an ill-prepared, incomprehensible defense that other individuals

29

committed the murder based upon a five-minute telephone conversation with Rexford about a murder that

occurred in 1984. She noted trial counsel did not review

the State’s investigative reports on the 1984 murder, did

not arrange to have the other “suspect” testify, and had

clearly not reviewed the law applicable to the trial

court’s determination whether Rexford’s testimony

would even be admissible. Ultimately, Judge Gray determined that Rexford’s testimony showed the theory of

defense put forth by trial counsel was “ill-conceived and

unsupportable (sic). Having a theory of defense is very

important. It cannot be trial strategy to misstate the

facts to the judge and jury.” She found trial counsel had

not adequately researched the law and his ill-preparedness impacted his performance at all stages of trial.10

¶19

Judge Gray found trial counsel failed to adequately prepare for trial and the trial mistakes (addressed at the evidentiary hearing) were not part of any

trial strategy. His failure to utilize available impeachment evidence against Justin Sneed, upon whose testimony the State’s entire case relied, was deficient performance and was clearly prejudicial. She ultimately concluded Appellant met both prongs of Strickland.

¶20

This Court will give the trial court’s findings

strong deference if supported by the record, but we shall

determine the ultimate issue of whether trial counsel

10

As to counsel's failure to utilize Dr. Edith King's report on

Sneed 's competency, Judge Gray found the report would not have

been admissible at trial and it would have been improper to attempt

to impeach Sneed with it. Judge Gray also found Pat Ehler's testimony on trial counsel's ill-preparedness for second stage was inadmissible and prohibited Ehler's from testifying at the evidentiary

hearing under Rules 1.7, 1.9, 1.10 and 3.7, Rules of Professional

Conduct, 5 O.S.Supp.2000 Ch. 1, App. 3-A.

30

was ineffective. Rule 3.11 (B)(3) (b)(iv), Rules of the

Court of Criminal Appeals, Title 22, Ch. 18, App. (2001).

After careful review and consideration of the record, we

find the trial court’s findings and conclusions are supported by the record and we shall address Appellant’s

remaining ineffective assistance of counsel claims in accordance therewith.

¶21

Although we find the claim that trial counsel

did not conduct proper voir dire unpersuasive,11 the remaining claims demonstrate trial counsel’s ineffectiveness. There was no excuse for trial counsel’s failure to

object to inadmissible double hearsay—Detective

Bemo’s testimony that he talked to William Bender who

said that Van Treese said he was going to move Glossip

out of the motel. This testimony was inadmissible hearsay, was offered for no other reason than to prove the

truth of the matter asserted, and was extremely prejudicial. It was arguably the only evidence presented at

trial that tended to independently corroborate any portion of Justin Sneed’s testimony implicating Appellant in

the crime and establishing a motive.12

¶22

Further, trial counsel’s failure to object to

Judge Freeman’s handling of the jury’s question regarding culpability for failing to render aid also was unreasonable and constituted deficient performance. The record demonstrates Appellant always maintained his innocence as a principal to the crime; he always admitted his

involvement after the fact. Trial counsel totally missed

this opportunity to reargue his request for an instruction

11

This claim was raised in Proposition Ten of Appellant's Brief.

12

This claim was raised in Proposition Seven of Appellant's

Brief.

31

on accessory after the fact at this juncture. This claim

will be more fully discussed below.

¶23

Lastly, trial counsel’s complete failure to object to the State’s victim impact evidence was deficient

under prevailing professional norms.13 The State did not

comply with Cargle v. State, 1995 OK CR 77, 909 P.2d

806, 828, cert denied, 519 U.S. 831, 117 S.Ct. 100, 136

L.Ed.2d 54 (1996), and 22 O.S.Supp. 1999, § 984. The victim impact statement admitted here went far beyond

what was admissible under the guidelines previously set

forth by this Court and was so inflammatory and prejudicial it very likely influenced the jury’s decision to impose a death sentence. It was unreasonable for trial

counsel to allow this inflammatory evidence to be admitted and heard without any objection.

¶24

Trial counsel’s lack of preparation is also apparent from his repeated statements prior to and during

the trial referencing Appellant’s ability to change his

plea or Appellant’s refusal to follow his advice to enter a

blind plea to the murder charge. We also note other examples of unreadiness which are evident in the record:

trial counsel’s last minute requests for discovery which

the State had already provided or had previously given

counsel the opportunity to obtain; trial counsel’s telling

the jury “Howard Bender” was a fictitious person when

his identity was known and obvious from discovery materials; trial counsel’s failure to lay a proper foundation

for the admission of evidence or testimony; trial counsel’s objection to lack of notice withdrawn because trial

counsel did have notice; trial counsel’s failure to secure a

witness whom counsel repeatedly referred to as a

13

A claim relating to the prejudicial victim impact statement

was raised in Proposition Five.

32

suspect in front of the Jury: trial counsel’s “calling” a

witness (by yelling for him in the hallway during trial) to

show the witness was not present; trial counsel’s forgetting to demur to the evidence until prompted by the trial

judge. Trial counsel also was not prepared for second

stage. Although he prepared a list of mitigating factors

for the jury’s consideration, it was apparently one prepared in haste. Further, the only witness other than Appellant who testified during second stage was Appellant’s mother, and counsel failed to ask her whether she

wanted her son’s life spared until prompted by the trial

judge.

¶25

The record as a whole suggests that trial

counsel was not prepared for trial, had not formulated

any reasonable defense theory, fully expected Appellant

to enter a plea, and never expected to get to the second

stage of the trial. For the reasons noted by the trial

court after the evidentiary hearing, and for the reasons

noted above, we find counsel’s performance deficient and

we find his failures could not have been part of any sound

or reasonable trial strategy. Under the facts of this case

and considering the weight of the evidence presented at

trial, Appellant was prejudiced by his trial counsel’s performance and we cannot say his trial produced a reliable

result. Strickland. For these reasons, we find this claim

warrants reversal and hereby remand this case for a new

trial.

¶26

Several other issues warrant discussion to

prevent the same mistakes from occurring on retrial. In

Proposition Five, Appellant argued the admission of

Donna Van Treese’s victim impact statement during the

second stage of trial violated the Evidence Code, 22

O.S.Supp. 1999, § 984. and his state and federal constitutional rights. We agree. The trial court and the State

failed to comply with the procedures set forth in Cargle,

33

1995 OK CR 77, ¶¶ 75-77; 909 P.2d at 828. The majority

of the victim impact statement was outside the scope of

permissible victim impact evidence, was unduly prejudicial and was not probative of “those unique characteristics which define the individual who has died, the contemporaneous and prospective circumstances surrounding that death, and how those circumstances have financially, emotionally, psychologically, and physically impacted on members of the victim’s immediate family.”

Id., 1995 OK CR 77, ¶ 75. 909 P.2d at 828; see also Welch

v. State, 2000 OK CR 8, ¶ 42, 2 P.3d 356, 373, cert, denied,—U.S.—, 121 S.Ct. 665, 148 L.Ed.2d 567 (2000)(testimony about son placing flowers at grave and brushing

dirt away did not fall within statutory guidelines had little probative value and was more prejudicial than probative); Washington v. State, 1999 OK CR 22, ¶ 62, 989 P.2d

960, 978-979 (references to God and a higher power are

improper in victim impact statement).

¶27

Proposition Eight also warrants some discussion. Under the very specific facts of this case, Appellant was entitled to a jury instruction on the crime of

accessory after the fact.

¶28

The trial court has a duty to instruct on all

lesser-included or lesser-related offenses which are supported by the evidence. Childress v. State, 2000 OK CR

10, ¶ 14, 1 P.3d 1006, 1011; Shrum v. State, 1999 OK CR

41, ¶¶ 5-6, 991 P.2d 1032, 1036. A defendant is also entitled to an instruction on his theory of defense if it is supported by the evidence and is tenable as a matter of law.

Kinsey v. State, 1990 OK CR 64, ¶ 9, 798 P.2d 630, 632633. The test this Court uses to determine whether evidence of a lesser included offense is sufficient to warrant

a jury instruction is no different than the test used to

determine when the evidence is sufficient to warrant a

34

jury instruction on the defendant’s theory of defense.

Bland v. State, 2000 OK CR 11, ¶ 56, 4 P.3d 702, 719-720,

cert, denied,—U.S.—, 121 S.Ct. 832, 148 L.Ed.2d 714

(2001). It is the judge’s responsibility to determine

whether prima facie evidence of the lesser included offense (or evidence of the proposed defense) has been presented to warrant the instruction. Id. at ¶ 57.

¶29

Certainly where, as here, a defendant maintains his innocence to a charge of murder which rests

upon a theory that he “counseled” another to commit the

murder and the defendant defends the case on the theory

that he only knew of the murder after the fact and did

not disclose what he knew, the evidence is sufficient to

establish a prima facie case warranting an instruction on

accessory after the fact. Under the evidence presented,

we believe accessory after the fact was a related offense,

was Appellant’s “theory” of defense, and the instruction

should have been given.

¶30

The last claim we address was brought to

our attention in Appellant’s Application for Evidentiary

Hearing on Jury Misconduct Claims. This Application

was filed with Appellant’s Brief and raises, in part, a

claim alleging one or more jurors utilized extraneous

materials, a Bible, during deliberations and possibly in

arriving at their verdict(s). Affidavits of two jurors

were attached to the Application noting the discussion

of and reading of the Bible by one or more jurors during

deliberations. Because of the seriousness of allegations

involving the jury’s receipt and consideration of extraneous materials, we remanded this issue for consideration at the evidentiary hearing. We instructed the trial

court to make findings regarding whether extraneous

material, specifically a Bible, was physically brought by

one or more jurors into the jury deliberation room; and,

35

whether the same was/were referred to and utilized by

jurors during their deliberations in the first or second

stage of Appellant’s Jury trial.

¶31

Judge Gray considered evidence supporting

this allegation at the evidentiary hearing held March 5,

2001. Nine of the twelve jurors from Appellant’s trial

testified at the hearing. Juror Casey Fine testified he

brought his Bible into the deliberation room during both

first and second stage deliberations. Fine said he opened

and referred to it “when asked.” He could not recall the

name of the juror who asked him something about the

Bible, but said it was not one of the jurors present to testify at the evidentiary hearing. Juror Jere Osburn saw

the Bible in the deliberations room and testified it was

physically opened or referred to or read from during deliberations. Juror James Hardy testified there was a Bible in the deliberation room, but said it was not opened

or referred to during deliberations.

¶32

Jurors Rodden, Brooks, Chappell and

Selensky each testified he or she did not “recall” or “remember” a Bible being physically present during deliberations. Juror McWilliams admitted one juror had a Bible with him everywhere and probably during both

stages of deliberations, but McWilliams said it was not

opened or referred to. Juror Armstrong said he was not

exactly sure one way or the other.

¶33

After considering this testimony, Judge

Gray found “credible evidence that a Bible was physically in the jury room during deliberations” and “credible evidence that the Bible was not actually utilized during deliberations.” We review those factual findings applying the deferential abuse of discretion standard.

Young v. State, 2000 OK CR 17, ¶ 109, 12 P.3d 20, cert.

denied,—U.S.—, 121 S.Ct. 2200,—L.Ed.2d—(2001); see

36

e.g. Bear v. State, 1988 OK CR 181, ¶ 8, 762 P.2d 950, 954

(resolution of questions of fact are entitled to special deference by a reviewing court); Ellis v. State, 1990 OK CR

43, ¶ 11, 795 P.2d 107, 110 (trial court’s resolution of underlying factual questions subject to “clearly erroneous”

standard of review).

¶34

Utilizing the above standard, we believe the

trial court was presented with credible evidence to show

that at least one Bible was, in fact, in the jury room during first and second stage and may well have been referred to in and during jury deliberations.

¶35

We were recently confronted with a similar

claim in Young, id. There, we affirmed “there is no question that a jury’s receipt of extraneous material not admitted at trial may have an improper influence upon the

jury’s verdict.” Because the trial court in Young determined there was no extraneous material, i.e. a Bible, in

deliberations, we did not reach the question whether

physically utilizing a Bible and its verses during deliberations constituted receipt of extraneous material and an

improper influence on the jury’s deliberations. Id. at

¶ 113.

¶36

Again, because we reverse this case on Appellant’s claim of ineffective assistance of counsel, we

need not fully address this claim and its impact upon the

jury’s determination of guilt and sentence. However, we

are compelled to caution trial courts to remind jurors

they are to utilize only the jury instructions and consider

only the evidence presented at trial in arriving at their

determinations of guilt and sentence. Any outside reference material, including but not limited to Bibles or

other religious documents, dictionaries, or any other reference book, should not be taken into or utilized during

jury deliberations. Such documents and texts may be

37

left in custody of the bailiff and returned to the jurors at

the conclusion of deliberations. Enforcement of such a

procedure will foreclose future claims similar to the one

raised in this case and the one previously addressed in

Young.

Conclusion

¶37

Glossip’s conviction for First Degree Malice

Aforethought Murder is REVERSED AND REMANDED FOR A NEW TRIAL.

AN APPEAL FROM THE DISTRICT COURT OF

OKLAHOMA COUNTY THE HONORABLE

RICHARD W. FREEMAN, DISTRICT JUDGE

Appellant, Richard Eugene Glossip, was tried by a jury

in the District Court of Oklahoma County, Case No. CF97-244, before the Honorable Richard W. Freeman.

Glossip was convicted of First Degree Malice Aforethought Murder. After finding the existence of two aggravating circumstances, the jury assessed punishment

at death and the trial court sentenced accordingly. Glossip’s conviction for First Degree Malice Aforethought

Murder is REVERSED AND REMANDED FOR A

NEW TRIAL.

38

APPEARANCES

AT TRIAL

APPEARANCES ON

APPEAL

WAYNE M. FOURNERAT

ATTORNEY AT LAW

2525 NW EXPRESSWAY,

SUITE 300

OKLAHOMA CITY, OK

73112

ATTORNEY FOR DEFENDANT

G. LYNN BURCH, III.

MATTHEW D. HAIRE

APPELLATE DEFENSE COUNSEL

OKLAHOMA INDIGENT DEFENSE

SYSTEM; CAPITAL DIVISION

1660 CROSS CENTER

DRIVE

NORMAN, OK 73019

ATTORNEYS FOR APPELLANT

FERN SMITH

JACK DURRETT

ASST. DISTRICT ATTORNEYS

OKLAHOMA COUNTY

COURTHOUSE

OKLAHOMA CITY, OK

73102

ATTORNEYS FOR

THE STATE

W. A. DREW

EDMONDSON

ATTORNEY GENERAL

OF OKLAHOMA

SETH BRANAM

ASSISTANT ATTORNEY GENERAL

2300 N. LINCOLN

BLVD., STE. 112

OKLAHOMA CITY, OK

73104-4894

ATTORNEYS FOR APPELLEE

OPINION BY: JOHNSON, V.P. J.

LUMPKIN, P.J.: CONCURS

CHAPEL, J.: CONCURS

STRUBHAR, J.: CONCURS

LILE, J.: CONCURS IN RESULT

39

LILE, JUDGE: CONCURS IN RESULTS

¶1

Judge Gray’s Findings of Fact and Conclusions of Law After Evidentiary Hearing was comprehensive and compelling. I concur in her conclusion that

trial counsel representation was inadequate. This was

not a fair trial. I agree that this case must be reversed

and remanded for new trial for this reason alone.

¶2

I have full confidence that the retrial will be

conducted according to law.

40

IN THE DISTRICT COURT IN AND FOR OKLAHOMA COUNTY

STATE OF OKLAHOMA

Case No. CF-97-244

THE STATE OF OKLAHOMA,

v.

Plaintiff,

RICHARD EUGENE GLOSSIP,

Defendant.

Filed June 17, 2002

MOTION REQUESTING PRODUCTION OF ALL

STATEMENTS OF CO-DEFENDANT JUSTIN SNEED

Comes now the Defendant, Richard Eugene Glossip,

by and through his counsel undersigned below, and

moves the Court to enter an order directing the State of

Oklahoma, by and through the Oklahoma County District Attorney’s office, to disclose any and all statements

made by Justin Blayne Sneed, whether the State intends

to utilize said statements at trial pursuant to 22 O.S.

Subs. 2002 (A)(1)(c). Specifically, the Defendant requests that the State produce the following, to wit;

1. Any written or recorded statements and the

substance of any oral statement the State has

knowledge whether the State intends to offer said

statements at trial.

2. Identify by name, address, social security number, date of birth or any other identifying descriptions the person(s) who obtained said statements

whether oral or written.

41

3. Identify the time, place and circumstances of obtaining the statements.

4. Identify any and all law enforcement officer/agent who obtained or facilitated the obtaining

any and all statements of the accused.

5. Identify and produce any and all statements

made by Justin Blayne Sneed to law enforcement

and/or the Oklahoma County District Attorney’s office.

WHEREFORE premises considered the Defendant

respectfully requests this Court to order the State of Oklahoma to produce any and all statements of the Justin

Blayne Sneed.

42

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

CASE NO. CF-97-244

THE STATE OF OKLAHOMA,

v.

Plaintiff,

RICHARD EUGENE GLOSSIP,

Defendant.

Filed June 26, 2002

STATE’S RESPONSE TO DEFENDANT’S MOTION

REQUESTING PRODUCTION OF ALL STATEMENTS

OF CO-DEFENDANT JUSTIN SNEED

COMES NOW the State of Oklahoma, by and

through C. Wesley Lane II, District Attorney for

Oklahoma County and moves this Honorable Court to

declare Defendant’s Motion moot.

The State intends to utilize the testimony of Justin

Sneed’s testimony elicited at the defendant’s prior trial

which has been transcribed by a qualified court reporter,

and all of his previous statements previously disclosed to

defendant including State’s exhibit #4 (video tape).

The State has complied with 22 O.S. 2002(A)(1)(c)

regarding the statements of Justin Sneed.

For the above and foregoing reasons, the State

prays this Honorable Court rule defendant’s motion is

moot.

43

Respectfully submitted,

C. WESLEY LANE II

DISTRICT ATTORNEY

BY:

[Signature]

FERN L. SMITH, OBA

#8347

44

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

CASE NO. CF-97-244

THE STATE OF OKLAHOMA,

Plaintiff,

v.

RICHARD EUGENE GLOSSIP,

Defendant.

REPORTED BY:

THERESA L. REEL, RPR

321 PARK AVENUE, SUITE 201

OKLAHOMA CITY, OK 73102

VOLUME 4 of 17

Filed March 23, 2005

BEFORE THE HONORABLE

TWYLA MASON GRAY, DISTRICT JUDGE.

TRANSCRIPT OF PROCEEDINGS,

JURY TRIAL,

HAD ON MAY 14, 2004

*

[25]

*

*

testimony on these points and this case.

At the close of the evidence in this case I submit

to you that it will clearly establish that it was Justin

Sneed alone who committed this atrocious crime. And I

submit to you at the close of this case the evidence will

45

show that Richard Glossip was guilty of a mistake in

judgment in not telling what he knew when he knew it.

Whether that makes him guilty of a different offense,

that’s going to be your call.

But I submit to you at the close of this case the

evidence will not support a finding beyond a reasonable

doubt of Murder in the First Degree. Thank you.

THE COURT: Thank you, sir.

Is the State prepared to open your case in chief?

MS. SMOTHERMON: We are, Your Honor.

THE COURT: You may call your first witness.

MS. SMOTHERMON: Thank you, Your Honor.

The State of Oklahoma calls Donna Van Treese

to testify.

MR. LYMAN: May we approach?

THE COURT: You may.

(Thereupon, the following was had at the bench.)

MR. LYMAN: We’d invoke the Rule of Sequestration. We’ve made, I think, some agreements as to

some of the prospective witnesses whether or not there

would be an [34] two grounds. First of all, we don’t think

it’s proper. We’re objecting. We know the state law has

changed in showing a pre-done photo of the victim is now

allowed. We also object to it being published in the first

stage and ask that it only be published in the second

stage.

Certainly, we don’t have a problem with her describing it, but to have it published at this time, I think

would be inappropriate. I know she hasn’t offered it but

she tells me she’s going to at this time.

46

THE COURT: So if I understand correctly, you

acknowledge that the law allows her to do that, but

you’re preserving the record?

MR. WOODYARD: It’s allowable in second

stage, is my understanding, Your Honor, and not first

stage evidence.

THE COURT: That is not my recollection of the

case. Let me ask—inquire of the State.

MS. SMOTHERMON: Your Honor, we had a

pretrial motion on this and it could be that it was

Mr. Burch has already argued that, which is why these

gentleman may not know that, but there was a notice, a

filed notice by the State. There was discussion in front

of this Court with this Defense Counsel in which the Defense again acknowledged that that was the law. The

law does not make a distinction between first or second

stage.

There are guidelines. We have followed all

those guidelines. [35] This is a single-person shot, head

shot. It is not depicting any family gathering or any special event, it’s a—it looks like a photograph that may

have been taken for some type of business record.

THE COURT: I’m going to note your objection.

Did you need to add something, Mr. Lyman?

MR. LYMAN: I’d adopt any argument that

Mr. Burch made on that. This is a contemporaneous objection, and I know there may be pretrial rules but I

think in order to preserve it, I should have made the objection.

THE COURT:

overruled.

Your objection is noted and

47

(Thereupon, the following was had in open court.)

Q. (BY MS. SMOTHERMON) Ms. Van Treese, let

me show you a photograph that’s been marked State’s

Exhibit No. 79. Who is that a picture of?

A. Barry Van Treese.

Q. Okay. He doesn’t have a full beard here. Do you

know when this photograph was taken?

A. It was taken in September of 1996.

Q. So a few months before his death, in between the

time this was taken and the time that he was killed, he

grew his beard back?

A. That is correct.

Q. Other than the missing beard then, does that accurately reflect what Barry Van Treese looked like

around the time of [36] January 1997?

A. Yes, it does.

MS. SMOTHERMON: Move for admission of

State’s Exhibit No. 79.

MR. LYMAN: Our previous announcement.

THE COURT: Absolutely.

State’s Exhibit 79 is admitted.

MS. SMOTHERMON: Your Honor, at this time

the State of Oklahoma would request that with this and

all introduced exhibits that we be allowed to publish to

the jury at the time of their introduction.

THE COURT: You may do so.

Q. (BY MS. SMOTHERMON) Ma’am, tell us about

the time period of 1996. Were there unique events that

were occurring during that time?

48

A. Yes, there were. June 17th, 1996, my mother

had been hospitalized and just a couple of days after her

55th wedding anniversary she passed away here in Oklahoma City. She had lived in Weatherford and that’s

where we buried her at that time, shortly afterwards.

My husband, Barry Van Treese, knew that this had

been very devastating to me, as it is to everyone. He

had said, I need to take you away and the children. So

we left on a vacation. Different surroundings gave me

lots of time to think.

[37]

Q. I’m sorry. Do you remember where you

went?

A. Yes. We went from here out through Arizona,

visited with some cousins in Arizona, went up through

California, Sequoia National Forest, went up the coast

highway, went up through San Francisco, ended up in

Vancouver, British Columbia. Went on the barge over

to the island, Vancouver Island, toured the island, came

back across, went back across Canada.

Decided that the motor home that we were in were

not going to take the hills there very well so we came

back down through Spokane, Washington, went over,

went to Yellowstone, went to Mt. Rushmore. And then

shortly after that he said, “I feel an urgent need that we

need to get back to Oklahoma,” and so we drove straight

through, arriving back in Oklahoma City at the Oklahoma City motel on the early, 2:00 a.m., morning of July

the 12th.

We learned at that time that Barry’s mother was in

Mercy Hospital. She was scheduled for a second bypass

surgery at 6:00 a.m. that morning. We immediately

showered and left the motel going straight to the hospital. We were able to visit with her for a short period of

49

time before she went into surgery. During that surgery

she did not survive. They tried several attempts to take

her off the heart and lung machine and she passed away

on that day. Her heart was not strong enough to regain.

So within a 25-day period I [38] had lost my mother and

Barry had lost his mother.

Q. Let me talk to you a little bit about the few days

after your mother passed away before you went on vacation. During that time period, were you able to focus

on the business of the Tulsa and the Oklahoma City motel?

A. Of course not. We were taking care of family responsibilities.

Q. Were you checking in with those motels?

A. Yes, Barry was at that time.

Q. What did you do then or who did you rely on for

the running of those operations?

A. The managers we had in place at the time in Oklahoma City. It was Richard Glossip. And at the Tulsa

motel it was—Marty Bender was the manager at that

time, her and her husband.

Q. During the time that you took this vacation—

and you’ve told us a long route—do you remember about

how many days you were gone?

A. We were gone approximately 16 days.

Q. Now, you need to help us orient ourselves back

in time. In 1996, did you have a cell phone?

A. No, they were not available at the time. We did

have the pager that we were told was nationwide. We

did not receive any pages on that at that time. They

were still developing the technology then for that.

50

[39]

Q. So during these weeks that you were on this

vacation, did you have any hands-on contact with the

Tulsa and the Oklahoma City motel?

A. Yes, we would check in. We would stop in,

Barry would call and say, “How are things going?” You

know, “Is there any major problems that I can take care

of over the phone?” And so it wasn’t like we just walked

off and left them and abandoned them at that time, we

were checking in. It was our only source of income.

Q. Who were you relying on for the information of

how things were going during that period of time?

A. The managers of the motels.

Q. You got back to Oklahoma City, Barry Van

Treese’s mother now passes away. Tell us—and if I’ve

got us in the right place now, we’re about July, July 12th,

and a few days after that of 1996; is that correct?

A. That is correct.

Q. All right. Tell us then about your family life between July of 1996 and around Christmastime of 1996;

tell us what was going on in your life and how that affected or if it affected your ability to run day-to-day operations of the motels.

A. During this time we had—you know, the entire

family was devastated, both sides. I was trying to take

care of my father. He had had triple bypass surgery

done so I was [40] concerned about his health. My

brother also had had a stroke and had to live with them.

And he of course was devastated.

Barry’s family, Barry’s father lived in Lawton and

he was very devastated by the loss, and it’s understandable if you have been married to someone for 55 years,

51

and so Barry was spending a lot of time with his father.

He wanted to make sure that he was coping with his loss.

Barry also had a sister that lived there in Lawton.

So we were both checking on him on a daily basis and

spending a lot of time with him, having him at the house.

We also had five children at home that it was devastating for them also to have lost both of their grandmothers within such a short period of time.

Q. Were you doing any activities or spending special time with the children in order to try to get them

through this period?

A. Yes, we were.

Q. Were there any special activities that Barry

Van Treese was focusing on that would take his focus

away from any daily operations at the motel?

A. He was focusing on just having everyone—helping everyone cope, and being now the strong son, the

strong son-in-law, the strong father figure for everyone

that they could depend on him.

[41]

Q. Compare for me then, Ms. Van Treese, your

ability to have interaction and know what was going on

at your motels which were your source of income, compare for me prior to these deaths that you were coping

with and then during the time that you were coping with

the deaths.

A. Prior to, Barry would leave Mondays, Tuesday

sometimes in the week, would be gone all week long and

coming home on Saturday evening normally, staying until Sunday, Monday morning and then going back to the

different motels. So he was in between times. That was

his part of the business operations. He was hands-on

type person.

52

I was at the home taking care of the children.

I would call and get their daily reports on a daily basis.

I would speak to him. There were sometimes that he and

I would both just get too busy and there may have been

a day that we did not speak, so it wasn’t alarming to me,

you know, because I would normally speak to him either

the night before or the next morning.

Q. I’m sorry. Let me—and you may be going there,

but compare what you’re telling us now about the handson, spend a lot of time at the motel, did that change during this time period, these last seven months of 1996?

A. Yes, it did, dramatically. During that last seven

months he was at home. He would go to Oklahoma City

and Tulsa every two weeks then. He was staying at

home. During [42] that time period he was—only chose

to spend four nights away from home during that time

period and that was not—you know, it was a day here

and a day there, four different times.

Q. Okay.

A. So he was depending on the managers to do

their jobs.

Q. All right. So if I understand you, we went from

him staying at the hotels, one of the two motels on site

approximately four nights a week to four nights in a

seven-month period?

A. That is correct.

Q. Okay. Let’s talk about how your motel business

was run and I want to—they may be similar, the way the

Oklahoma City and the Tulsa motels were run, but I

want to focus on the running of the Oklahoma City motel.

Okay?

A. All right.

53

Q. You told us that Richard Glossip was the manager and he lived there on site; is that correct?

A. That is correct.

of?

Q. Did anyone live there with him that you knew

A. Yes, his girlfriend, D-Anna Wood.

Q. Was she employed by you and Mr. Van Treese?

A. No, she was not.

Q. Was it your understanding that she was doing

any type of work there at the motel?

[43]

A. She would sometimes check in customers.

Q. Do you know a lady by the name of Billye

Hooper?

A. Yes, I do.

Q. And who was Billye Hooper?

A. Billye Hooper was our daytime desk clerk.

Q. And what would her job responsibilities have

been?

A. Her responsibility as being the daytime or in the

morning, coming in in the morning, she would prepare

the maid sheets showing what rooms were rented the

night before, what rooms needed to be cleaned, she

would coordinate and then check in any guests that

needed to be checked in during that time or checkout.

Q. So she would find out what rooms needed to be

cleaned, make a maid sheet, and give it to a housekeeper;

is that correct?

A. That is correct.

54

Q. Did you know someone by the name of Justin

Sneed?

A. Prior to January the 7th, I did not know him. I

knew of him.

Q. And what did you know of him prior to January

7th?

A. That he had been, quote, unquote, hired as a

part-time maintenance man/go-for.

Q. Did you know he was living there at the motel?

A. Prior to, no.

Q. Were you paying him a salary or a wage?

[44]

A. No.

Q. You said he was hired. Did you and Mr. Van

Treese hire him?

A. No, we did not.

Q. Who then hired—and you’re saying, quote, unquote. Who did this hiring?

A. Mr. Glossip.

Q. Do you know whether or not to your accounting

system was Mr. Sneed being paid?

A. No, not to my accounting system.

Q. All right. Let’s talk a little bit about the Best

Budget Inn then in Oklahoma City.

MS. SMOTHERMON: Your Honor, these are

someone else’s numbering systems and so I apologize.

THE COURT: Would you just hand them to me

and let me take a quick look?

55

Q. (BY MS. SMOTHERMON) Ma’am, I’m showing

you some more photographs. These are marked State’s

Exhibits 33, 16, and 18. State’s Exhibit No. 33, do you

recognize what’s in this photograph?

A. Yes. It is the front of the Best Budget Inn. The

carport or overhang in front of the motel.

Q. In front of the office?

A. Yes, it is.

Q. And when we’re talking Best Budget Inn, we’re

going to

*

*

*

[56]

Q. And would there be any other additions or

subtractions that might be made to his net paycheck?

A. Yes. If any time—and this was an open policy

for us, if any time between the 5th and the 20th if—you

know everyone at time periods runs short of cash. We

hope we can all make it without having to get any and

most of us do, but if you were in need of cash, they were

allowed to receive up to—and at that time I think we had

set it at $20 per day cash advance unless there was an

emergency come up.

And you would have—the manager would have to

call us and say, “Hey, I’m running short. I need a cash

advance.” We would okay it. I would put a note on my

records that I kept at my home of that. They were to fill

out a piece of paper and put the dollar amount on it and

sign for it and put it under a spot on the daily report that

was listed as cash paid out.

Q. So between December of—December 20th of

1996—which would have been one of Richard Glossip’s

pay period, correct?

56

A. That is correct.

Q. —to January 5th would have been his next pay

period?

A. Yes, that is correct.

Q. So if we counted those number of days, he was

allowed to take, if necessary—although, was this supposed to be a regular habit?

[57]

A. No, it was supposed to be on the case of

emergency and if something came up and you called and

we felt like it warranted it and we had the amount of cash

there to give, you could get more than that, so …

Q. All right. So on an emergency basis you could

take up to $20 a day. You had to get prior approval but

if you needed something bigger, you could get that approval from you?

A. Yes, that is correct.

Q. Let’s talk a little bit about then Richard Glossip

and his conduct before your husband was murdered.

Okay? That’s what I want to concentrate on is Richard

Glossip’s conduct before the murder. Okay?

THE COURT: Before you get into that, let me

just inquire.

Ladies and gentlemen of the jury, do you need

me to give you about a 10, 15-minute break? We’ve got

about 50 minutes left until the lunch hour. Are you going

to be okay?

you.

All right. I just wanted to kind of consult with

You may proceed, Ms. Smothermon.

MS. SMOTHERMON: Thank you, Your Honor.

57

Q. (BY MS. SMOTHERMON) All right. Ma’am,

we were talking about the Defendant’s activities before

your husband was [58] murdered. I was trying to use

the same word. I’m not sure I did. But you know what

I’m talking about and where we were, right?

A. Yes, his conduct.

Q. All right. His conduct. Thank you.

We’ve got you to a time toward the Christmastime

of 1996. You’ve been telling us what has been happening

in your lives. Did you take any other trips in 1996 other

than what you’ve told us about?

A. Yes. During the Christmas break we had—I always had a love for snow skiing and Barry said, “We

need to take a family—we need to take a break here and

we need to go take a family Christmas break.” So we

loaded up everyone and went to Crested Butte, Colorado. We skied for four days and we returned home Sunday morning, January the 5th, 1997.

Q. Now, when you returned home, how long had it

been since Barry Van Treese had made any significant

visits, spent any significant time looking at the motels,

the property, doing any repair, doing any significant audit there at the motel sites?

A. He had been periodically there for audits but to

do any specific repairs, it had been prior to June the 17th.

Q. Did the two of you then make any plans for him

to do any site visits once you got back from your ski trip?

A. Oh, yes, we had spoke on the way home and he

said, [59] “Hey, I love everybody, but I have got to get

back to work.” And I said, “I realize that.” And I said,

“It’s been a full six months and I think everyone is going

to be okay.”

58

Q. Okay.

A. And he said, you know, “Spring is coming up.”

And normally during the January, February, March season is when we went through and repainted rooms if during the period that the carpets needed to be replaced or

whatever repairs needed to be done, we tried to do all

those during those three months of the year.

It was—that is typically for the locations where

these motels were next to the interstate that was a slow

period for us. So a lot of rooms would have been available to go into to do these repairs on to get ready for the

spring and the summer season.

During the summer months, you know, we were almost to capacity and so you have to be prepared. It’s

guarding your assets and making sure that they are

ready for your maximum amount of revenue that you

needed to have because some of that had to sustain you

through the slow months.

Q. When you made this plan then to do this January, February, March sort of clean up, did you believe

that the motel—what was your belief about the condition of the motel? Did you think there would have to be

significant repair in every room? Did you believe there

needed to be [60] some cosmetic clean up? I mean, what

was your opinion of the condition of the motel prior to

January?

A. We had been told that, oh, you know, “We’ve

been painting some rooms and we’ve been doing the repairs that need to be done to the motel rooms.”

Q. Who was telling you that?

A. Mr. Glossip.

Q. Okay.

59

A. He would say, “Oh, I painted room 102,” you

know, “yesterday,” for example, or this room number or

this other room number and we had a leaky faucet in

there and we fixed that. And so during the six months

we were being told that these repairs were being done

to the motel and so our impression was, you know, we

need to go—Barry’s impression on this, and he discussed

this with me, is, you know, I need to go check. I need to

go make sure that everything is being done.

And that was his way. He had to see to make sure

that everyone was doing their job that we were paying

them for and that—you know, it had been our practice

over the years if you weren’t doing your job, we gave

you an opportunity to correct that and if you did not correct that, then we could find someone else. You were not

indispensable.

Q. Well, let’s talk a little bit about that policy and

[61] let’s talk a little bit about Barry Van Treese’s demeanor. Can you tell us in general what type of personality he had.

A. He was basically your Santa Claus. He was a

very jolly, happy person. When we took trips, you know,

he would make up silly songs with the kids and he was,

you know, in some phases, you know, he was—had the

demeanor and the actions of a child. He wanted to have

fun with all of us.

Q. Your personal observations of him interacting

with his employees on a general basis, was he—did he

display that same type of demeanor with them, in general?

A. In general, yes. You know, if you were doing

your job and you were doing what he thought needed to

be done, you know—and our policy was no question is a

60

stupid question. You know, you are not going to learn

unless you ask. And we didn’t expect everyone to know

everything because—and we all don’t know that on any

job until we ask that question.

He was always very cordial as long as you were doing your job, you were very polite, because he always

wanted—he treated everyone the way he wanted to be

treated.

Q. All right.

A. But if you weren’t doing your job, you were going to know about it.

Q. Okay. Didn’t hide his feelings if he was upset?

A. No, not at all.

Q. Had there been instances in the past where employees [62] had lied or stolen and he had reacted, there

was a demonstrable reaction where they knew what was

wrong?

A. Yes, ma’am.

Q. Had you let employees go for those reasons in

the past?

A. Yes, we had.

Q. Were those policies and those types of expectations conveyed to Richard Glossip?

A. Yes, they were.

Q. All right. Now, we talked a little bit about what

you expected the condition of the motel to be. Let’s talk

a little bit about what you knew as the financial officer

or record keeper; what you knew about the finances of

the Oklahoma City motel.

61

In the seven months of, you know, May, June of 1996

until January of 1997, did you have any concerns about

how some of the money was being handled or some of the

recordkeeping was being handled at the Oklahoma City

motel?

A. Yes, we did have that concern.

Q. Tell me about the concern.

A. During—at the end of each month—let me back

up. I’m sorry.

On a daily basis I would call the motel. That was

part of my responsibility was to call the motel, get the

number of rooms rented, get the deposit information,

how much was cash, credit cards, and how much each

room was rented for, [63] which we refer to as our ADR

or Average Daily Rental and I kept all that information

because we made projections on those figures that I got

at different times.

You know, if we continue at—say, the 15th of the

month, if we continue at what we’ve done from the 1st to

the 15th, by the end of the month, well, we should—you

know, you should rent this many rooms and this should

be the amount of revenue. So we based that on, you

know, what information I received.

Q. And based on what you had, did you become suspicious of how some of the finances were being done?

A. Yes. At the end of each month, I would do a report and then I kept a year-to-date report. There were

significant shortages for the entire year of 1996.

If I may refer to my notes?

Q. Yes.

62

A. For the entire year of 1996 there was a deficit, a

shortage of $6,101.92. Of course, that is broken down

over a 12-month period.

Q. Tell us what a shortage is.

A. The rooms were rented. The total amount of

business volume. Okay. The business volume was on the

right side of the daily report. At the bottom, that was

the total number of rooms that were rented, their rate

plus tax. That was your business volume for that day.

[64]

Q. So what you charged, if you added all that

up, you had a total?

A. You had a total. That was your business volume

for the day. On the left side of the daily report there is a

column for cash collected. The cash collected could be

cash, Visa, Mastercard, American Express, traveler’s

checks, comp checks, however you took in money for that

day. Those were added up. That was your cash collected.

Out of that, to balance for that day, that cash collected, you took less the cash that was paid out. There

was a petty cash kind of allowance for the day. You

know, if you needed to run to the store and buy a can of

air freshener, because you can—you know, that’s what

we did. You know, that receipt was attached so you deducted that. You got your total cash that you were supposed to have in hand for the day.

als?

Q. Which would represent supposedly room rent-

A. Supposedly room rentals, yes, that is correct.

You knew what you needed over here for cash. Now,

what you actually had in solid green cash or other forms

of monies. And that’s how you balanced out.

63

Q. So the monies taken in are supposed to equal

what the charges were for the rooms?

A. That is correct. There were some instances that

people would pay ahead for their rooms. We had workers that would [65] come in, different construction

crews, roofing crews, that sort of thing, they would

sometimes come in on Monday and we really required for

them to pay in advance.

They would come in, say, Monday morning or Monday evening and they would pay for Monday through

Thursday and they would go home on weekends. Some

stayed all the time.

There was one particular gentleman that I know of

for sure that had lived at our motel for eight years.

Q. Do you remember his name?

A. Yes, his name was John Beavers.

Q. Have you seen him out here today?

A. I have not seen him here today.

Q. Okay.

A. But he would pay sometimes on a weekly basis,

sometimes on a monthly basis, but more than likely on a

weekly or every two-week basis so his amount collected

would be more than those that paid for more than one

day.

Q. But your accounting procedures, could you account for that and know at the—your bottom line, know

this is how many rooms were rented at this rate, a total,

this is how much money I have in my hand and those

numbers were supposed to match up?

A. They were supposed to match up and at the end

of each month that’s where we determined the shortage.

64

Q. A shortage being not enough money to equal the

rooms?

[66]

A. Not enough monies collected to equal the

business volume.

Q. Okay. So at the end of 1996, the Oklahoma City

motel managed by Mr. Richard Glossip was $6,101.92

short on the money you would have expected him to be

able to turn over to you?

A. That is correct.

Q. Now, tell me, because I don’t know the motel

business, how did that make you feel? What was your

reaction to the 6000—missing $6,101.92?

A. We were very upset.

Q. Okay.

A. And—

MR. WOODYARD: Your Honor, I need to object. May we approach, please?

THE COURT: You may.

(Thereupon, the following was had at the bench.)

MR. WOODYARD: Your Honor, I’m concerned

that we’re getting testimony that is basically hearsay.

I can’t tell if it’s her testifying because I hear this, “we,”

and the foundation is not laid as to whether this is personal knowledge that she’s talking about or whether it

was information that she’s getting from her husband

that’s relayed to her that she’s repeating as her testimony. And I’ve let some of this go and it’s been somewhat innocuous. [67] I don’t want to interrupt the proceedings unnecessarily, but I think I need to make an objection at this time because I’m afraid there’s a lot of

65

hearsay information coming in from this witness so we

object on that basis.

MS. SMOTHERMON: Your Honor, she’s laid a

foundation for her knowledge of the financial records.

I’ve been specific in my questions as to what did the records reveal to you. What was your belief based on that.

She ran this business for 18 years with her husband.

I think it would be awkward for her to say, “Well, I believed this.” I mean, I think it’s a common answer for

her to say we believed this, we believed that. But I’ve

laid the foundation that she would have knowledge of

these facts, independent knowledge of these facts, independent belief of these facts.

I can instruct her—she can hear what we’re saying. But I can instruct her to be more specific in her answers. But—I mean, I don’t think the record is unclear

as to her basis of knowledge.

MR. WOODYARD: The use of the term, “we,”

implies that she’s speaking for her husband which the

Court knows is a hearsay problem and that’s one of my

concerns.

THE COURT: Well, part of the problem is, is

that you have folks who are together running a business.

MR. WOODYARD: Right.

[68]

THE COURT: And having conversations and

probably reaching consensus about—as they share information, about accounting procedures. I’m not concerned

about the “we.” I think there may come a time when you

need to be more specific about personal knowledge.

I’m sure you have explained to her that it would

be improper for her to—that insert situations provide

hearsay responses, although there may be some, you

66

know, hearsay exceptions as well. So at this point I’m

not concerned about what’s going on.

But I will allow you the latitude, Ms. Smotherman, to direct her to be more specific if that’s necessary.

Thank you, Counsel.

(Thereupon, the following was had in open court.)

Q (BY MS. SMOTHERMON) Ms. Van Treese,

I believe what we were talking about is, you know,

there’s $6,000 missing at the end of 1996. You tell me, I

mean, is that a good thing, is that a bad thing, you would

have expected worse? I mean, what was it that you were

believing and feeling based on this shortage at the end

of 1996.

A. I had compiled all of these records. That was

part of my duties. And we had divided our duties, Barry

and myself, we had divided our duties, you do this, I’ll do

this, and sometimes they overlapped each other and so

we discussed, and he depended on me to have this information for him and [69] so I had compiled these records.

When I was doing these I looked at him with—red

flags went up, I was alarmed. I immediately, you know,

would contact him. He would call and say, “Hey, you got

the end of the month stuff done?” And say, “Yeah, sure

do.”

I’d try to have it—keep it up on a daily basis so that

at any point in time when he asked I would have it ready

for him. You know, I felt like he was out working, he was

being separated from the family, the least I could do was

keep these records up to date. Because if you didn’t, you

were going to have to spend a whole lot of time doing it

later.

67

And so when I realized that there were these shortages—and at the end of each month when I would get

those numbers and those—whether there was a long—

sometimes there was a long, sometimes there was a

small shortage. We allowed a little, you know, people

miscount change, that sort of thing. At the end of each

month it wasn’t like that we just let them go, Okay,

they’re $600 short this month, okay, we’re not going to

say anything about it. That was not the case at all. We

would call and we would say, Hey—

Q. Got a problem.

A. —Hey, there’s a problem here, you know. These

aren’t balancing out. And some of those would be they

had let [70] someone stay in the motel and, well, they’re

going to pay the first part of next month.

Q. Is that standard policy for your motel?

A. No, we always wanted to pay in advance. You

pay—you know, we go to buy groceries we have to pay

for the groceries before we eat it. We have to pay for

the room before we go and stay in it. And so we would

ask, Are there any of these? And on several of my notes

that I did take during this time they will explain some of

that. And then you think, well, okay, next month it will

balance itself out.

Q. And at the end of 1996, it didn’t?

A. No, it did not.

Q. All right. Now, without telling me at this time

what Barry Van Treese’s—what he said about this when

you told him about that, tell us about his physical demeanor. How did he react? Did he appear to be visibly

upset? Did he take it in stride?

68

A. He was visibly upset. He said, “Have you—”

you know, “Are you sure of this?” I said, “Barry, here is

all the records,” you know, “double check it yourself.”

Q. How do you find out then what’s up with this

money? I mean, if there’s a shortage at the end of the

year, how do you get answers to that?

A. He went directly to the source.

[71]

Q. All right. And when was he going to go to

that source?

A. On January the 6th, 1997.

Q. Other than—and who would be that source, I’m

sorry?

A. Richard Glossip.

Q. Other than going to Richard Glossip and talking

to him about this $6,000 shortage at the end of the year,

was he going to do anything else on this visit?

A. Yes. He was going to—

MR. WOODYARD: Your Honor, I’m going to

object. I believe that calls for a hearsay response.

THE COURT: Overruled.

Q. (BY MS. SMOTHERMON) You may answer,

ma’am, what he was going to do on his visit.

A. We had discussed this on our way home from our

trip. He says, you know—

Q. No, not what he said, ma’am, just what was he

going to do.

A. Okay. He was going to go to the motels, go room

by room, take a maintenance sheet with him, evaluate

what needed to be done in each one of the rooms, making

69

a list because you cannot remember what needs to be

done in 52 rooms.

Q. Sure.

A. He made a list room by room, faucet needs to be

fixed, new shower curtain, new caulking around the tub,

needs paint [72] job, whatever. He was going to go room

by room, evaluate what needed to be done, go and buy

the needed supplies to repair what needed to be done to

bring the motel up to his standard.

Q. And then was he going to stay there and do some

of the repairs himself?

A. Yes, he was, like I had said, previously testified,

that he was a very hands-on person. He did not expect

for you to do something that he was not willing to do

himself.

Q. Now, ma’am, we talked about the yearly shortage and I want to make sure that I gave you all the time

that you needed to explain discrepancies. Do you have a

way of tracking in your finances a cost for services, for

example, maid service costs?

A. Yes.

Q. And then do you have a way of tracking revenues, how much money you’re making each month?

A. Yes.

Q. Or how many rooms you’re renting?

A. Yes.

Q. Okay. During those seven latter months of 1996,

was there anything about those two numbers that concerned you?

70

A. Being in the motel business for 18 years you estimate what it will cost per room to have it cleaned.

Those figures did not match up with one another.

[73]

Q. What do you mean by that?

A. Well, the maid costs were down comparable to

the rooms rented.

Q. Maid cost was down. I don’t understand what

you’re saying there.

A. I’m sorry.

Q. That’s okay.

A. We figured approximately and at that time 1.50

per room to go and clean, we figured about 30 minutes.

And, of course, you know minimum wage was a lot less

in 1997 than it is today. We could go through and go,

Okay, there were 20 rooms rented times $1.50 a room so

our maid costs for today estimated would be approximately this amount.

Q. Okay.

A. Say that amount was—

Q. —forty dollars?

A. Forty dollars. The costs for maids that day was

$20, you know, after you’ve been in the business for a

while there are signs and signals that just trigger you to

be more alert and to go, Wait a minute, something is not

quite right here, so

Q. I’m sorry. Go ahead.

A. I’m sorry. Then there were also times that there

were rooms on the daily maid sheets that weren’t over

here on the daily reports. The explanation that we received for [74] those—

71

Q. Hang on. I want the explanation but let me

make sure we understand what that means. So that

means the daily maid sheets are rooms that needed to be

cleaned?

A. That is correct.

Q. Why would a room need to be cleaned? Because?

A. Because it was rented the previous night.

Q. Okay. So if a room needed to be cleaned, on the

maid sheet, you would expect it to be on the list of rooms

that were rented?

A. Yes, on the daily report.

Q. So you had rooms that were on the Clean This

Room sheet, maid sheet, that weren’t on the this Room

Was Rented sheet?

A. That’s correct.

Q. Okay. Did you inquire as to the reason for that?

A. Yes.

Q. And let me ask you who it was that you asked?

A. Mr. Gossip.

Q. And what explanation were you given?

A. We were given, “Someone checked into that

room, they didn’t like—you know, they pulled back the

sheets and the sheets were wrinkled,” or, “There was a

hair on the sheets so we moved them to another room.”

it

Q. And the amount of times that this happened, did

*

[97]

*

*

Q. And who was it that called you?

72

A. Billye Hooper called me from the Oklahoma City

motel.

Q. And about what time was that?

A. Around 3:30 in the afternoon.

Q. And did you learn something at that time that

caused you some concern?

A. Yes, I did.

Q. And what was it that you learned that caused

you some concern?

A. Billye had told me that they had called from the

Weokie Credit Union, which is directly behind and

across the field from where the motel sat, and then there

was an open field and then the credit union. Which you

entered and exited from the credit union on Reno rather

than on Council.

She said that there was a concern that there was a

car there parked in their parking lot that they thought

was Barry’s car.

Q. Was that a—I mean, your husband’s car being

over at the Weokie credit union, was that something

that—did that in and of itself cause you some concern?

A. Oh, yes, it did. They had told me that the car

was parked kind of catercornered and that one of the

doors was ajar, the door was actually unlocked. Barry

would never leave his car unlocked, even where we lived

which was out in the country in a residential area that

our house was set [98] back off, he would lock his doors

even at our house.

Q. Was that his practice with his home and a motel

room if he was staying there?

A. Oh, yes, yes.

73

Q. Did he make that practice known to other people?

A. Yes.

Q. At the time that you talked to Billye Hooper,

about 3:00 that afternoon on the 7th, did you become

aware of whether or not anyone knew where your husband was?

A. Well, I immediately started asking questions,

where was Barry. Several months prior to that he had

been diagnosed with diabetes and so knowing a little,

very little about it and going to a couple of classes with

him, I’m thinking did he have a medical problem. I was

on, as what I consider myself, high alert when things like

this happen, as you would if a child was hurt, you go on

high alert status.

Q. So after your conversation with Billye Hooper,

you didn’t know where your husband was, you knew the

car had been found?

A. That is correct.

Q. When is the next time that you talked to anyone

in the Oklahoma City area?

A. I immediately called back later. And at one

point during that afternoon I spoke with Richard Glossip.

Q. And you say “afternoon.” Would that have been

before [99] dinnertime?

A. No, it was after the 3:00 phone call that I received from Billye.

Q. Okay. Was it before dark?

A. Yes, it was.

74

Q. Okay. Now, when you made contact with Richard Glossip, was it because he called you or you called

the motel and spoke with him?

A. I called him and said, you know, I’m trying to

find Barry, his car is over there ajar. I said, When—you

know—okay—when was the last time that you saw him?

Q. Okay. And did he respond to that?

A. Yes, he did.

Q. What did he tell you?

A. He told me that he had seen Barry some time

between 7 and 7:30 a.m. on January the 7th and that

Barry had told him he was going to buy supplies for the

motel and he would be back later.

MS. SMOTHERMON: Your Honor, I apologize

for not getting the easel out before. May I do that now?

THE COURT: Sure.

MS. SMOTHERMON: I meant to do it earlier.

THE COURT: That’s okay.

Q. (BY MS. SMOTHERMON) When you asked

Richard Glossip about your husband he told you that he

had seen him that [100] morning on the 7th?

A. That is correct.

Q. And did he give you a particular time?

A. He said some time between 7 and 7:30 a.m.

Q. And what did he tell you was happening at that

time when he saw your husband?

A. He said that he had seen Barry and that Barry

had told him that he was leaving to go buy supplies.

75

Q. Did you ask him any questions about whether

your husband looked okay, seemed ill?

A. I remember, you know, I was highly concerned

so, yeah, I said, you know, did he look okay? Did he feel

okay? Did he sound okay to you? And the indication I

got was, yes, that everything was fine.

Q. Any other comments that Richard Glossip made

to you in that conversation about when he had last seen

your husband?

A. He had said that he had seen him the day before

when he came to make the payroll checks and that, you

know, that he had seen him that morning but he had not

seen him since 7:30.

Q. And I want to put on here when this statement

was said to you. So it was said to you on what date, on

the 7th?

A. Yes, January the 7th.

Q. Okay.

A. And it was some time between the 3:30—3, 3:30

phone [101] call that I received and probably 4:30, you

know.

Q. In the afternoon?

A. In the afternoon, yes, p.m.

Q. Do I have that recorded correctly?

A. That is correct.

Q. That’s all I’m going to use of this easel. I can

push it back.

THE COURT: Deputy Williams, do we need to

move that a little bit?

Please proceed.

76

Q. (BY MS. SMOTHERMON) Ma’am, anything

else of substance in that conversation or did you talk to

anyone else at that time that you gained any other information from?

A. I had also asked him at that time, when he said

that Barry had left and that’s why his car was gone, because his car is over there now. And I said, “You are the

manager. I need for you to go and check all the rooms.

Maybe he came back. Maybe he had car trouble. Maybe

he came back and is in one of the rooms working.”

Q. Okay. And was that that conversation or a different conversation?

A. I made numerous calls back and forth and so, to

be correct and true here, I was constantly on the phone

with either the motel or the police or someone from the

3:30 phone call until late in the evening trying to figure

out [102] what had happened to my husband.

Q. When you were on the phone, did you talk to

Richard Glossip on more than one occasion?

A. Oh, yes, I did.

Q. Okay. So you’re telling us either on that occasion or on another occasion you told him, “He might have

come back. He’s sick. He might be sick, check all the

rooms”?

A. Yes, I said: Check all the rooms. Check the field

in between, go next door. Go,” you know, “everywhere.”

Q. And what was his response to that?

A. “Yes, ma’am, I will do that.”

Q. Okay. All right. And you said you were also

talking to the police. So you knew there was an ongoing

77

police investigation looking for your husband; is that correct?

A. Yes, that is correct. And when Billye told me

that the car was missing I had instructed her to immediately call the police.

Q. Okay. And so you knew the police were becoming

involved?

A. Yes.

Q. So throughout the afternoon between 3:30 and

the hours following it, you’re talking to people at the motel and you’re talking to the police?

A. That is correct.

Q. Okay. Several hours pass. Do you have any indication [103] during that time, from this Defendant or

anyone else, of where your husband is located?

A. No, I do not.

Q. When do you find out that they have found your

husband?

A. Approximately 3:00 a.m., the morning of the 8th,

my brother-in-law had flown in from Salt Lake City. He

had already scheduled to come in. When we found out

that Barry was missing I had alerted other family members that lived here in Oklahoma City. Said, you know,

“Hey, did Barry come by and have lunch with you? Have

you seen him?” And they were all alerted that he was

missing. And so approximately 3, 3:30 a.m., the morning

of the 8th, my brother-in-law calls me and tells me—he

said, “We found Barry.” And he said, “He is no longer

with us.”

Q. Okay.

what?

Now, your brother-in-law’s name is

78

A. Jim Van Treese.

Q. And Jim Van Treese was in Oklahoma City?

A. Yes, he was. He was at the motel.

Q. So he called you from the motel property?

A. Yes, he did.

Q. Ma’am, I want to talk about some items, some

articles and ask you if you can identify them.

MR. ACKLEY: May I approach the reporter

for just a moment?

THE COURT: You may.

[104] MS. SMOTHERMON: Your Honor, I don’t anticipate asking for their introduction at this time.

Q. (BY MS. SMOTHERMON) Ma’am, I’m going to

show you some photographs. Ma’am, I’m going to cover

a portion of this photograph, but the portion that I am

showing you, you see that that is part of a photograph?

A. Yes.

Q. And you see that it’s marked with State’s Exhibit No. 24?

A. That’s correct.

Q. The portion of the photograph that you can see

in State’s Exhibit No. 24 shows an item, a jewelry item.

What is that?

A. Yes, it is a wristwatch.

Q. And do you recognize whose wristwatch that is?

A. Yes, it’s Barry Van Treese’s.

79

Q. And on January 6th when he left your Lawton

home, was he wearing the watch that is depicted in

State’s Exhibit No. 24?

A. Yes, he was.

Q (BY MS. SMOTHERMON) Ma’am, again, I’m

going to show you a portion of a photograph. You can

see something, an item in this photograph, correct?

A. Yes.

Q. And it’s marked with a State’s exhibit sticker,

State’s

*

*

*

[140] understands what I’m talking about. We’re

talking about the different documents from where the

jury is at. I would like to just show to the jury exactly

what we’re talking about. If I can provide her my copy

and then put her copy, which is the unmarked copy, onto

the visualizer? If I may do that?

THE COURT: You may do so.

MR. WOODYARD: Thank you. Just disregard

my scribbling on there.

Q. (BY MR. WOODYARD) Now, I’ve cut off on the

visualizer the left part that basically shows the month,

the year, and some other materials. But the part I’m interested in is the far right column. And with the exception of July, appears on your deposit versus volume document—

A. Yes.

Q. —that all of the months except for July have

losses is that correct?

A. That is correct.

80

Q. This information was available to you and Mr.

Van Treese on a monthly basis?

A. Yes.

Q. Did you, yourself, ever talk to Richard Glossip

about these losses that you’ve indicated in each of these

columns?

A. Yes, I did, because it was my responsibility to

produce this report and at the end I would say, you

know, “What is this?” And he’s say, “Well, this person

owes,” or, “This [141] person owes.” And then we’d say,

“Well, maybe next month,” you know, “when they pay

then next month it will show.” If you have a shortage

this month and someone pays, you’re going to have an

overage this month.

Q. That only happened one time in the year 1996?

A. That is correct.

Q. And it was my understanding it was your husband’s policy if he thought someone was not treating him

fairly and was given the opportunity to correct the problem, that he would then fire them without hesitation?

A. That is correct.

Q. But this reflects almost a whole year of that conduct and Mr. Glossip was not fired, was he?

A. No, he was not.

Q. Thank you.

MR. WOODYARD: I believe I’ve moved previously, Your Honor, if I haven’t, move for admission of

Defendant’s Exhibit 71.

THE COURT: I don’t believe that we moved.

We’ve published it, but we didn’t move and admit it.

81

So does the State have objection?

MS. SMOTHERMON: Actually I believe where

we were is he moved to admit it and I objected because

of the Tulsa portion.

THE COURT: And we’re going to redact that.

*

*

*

82

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

CASE NO. CF-97-244

THE STATE OF OKLAHOMA,

Plaintiff,

v.

RICHARD EUGENE GLOSSIP,

Defendant.

REPORTED BY:

THERESA L. REEL, RPR

321 PARK AVENUE, SUITE 201

OKLAHOMA CITY, OK 73102

VOLUME 6 of 17

Filed March 23, 2005

BEFORE THE HONORABLE

TWYLA MASON GRAY, DISTRICT JUDGE.

TRANSCRIPT OF PROCEEDINGS,

JURY TRIAL,

HAD ON MAY 18, 2004

*

*

*

[14]

Richard Glossip and D-Anna Wood got there or

do you remember?

A. I don’t remember that actually.

Q. Okay.

clerk?

So Billye Hooper was the front desk

83

A. Yes.

Q. Did she live on site?

A. No, she did not.

Q. Did Richard Glossip and D-Anna Wood live on

site?

A. Yes, they did.

Q. Okay. Do you know if there were any housekeepers that worked there and/or lived there around

January of 1997?

A. I suppose some did, but I don’t really have any

direct knowledge of what their arrangements were.

Q. Do you know Kayla and Michael Pursley?

A. Yes, I did know them.

Q. And who are they?

A. Kayla worked next door at the Sinclair Station

and Michael was her husband.

Q. And did they live there at the motel as well?

A. Yes.

Q. Did they have any kids?

A. I can’t remember, to be honest with you.

Q. Okay. All right. And were they—did they live

there like you did, it wasn’t just one night at the motel,

that was their residence?

[15]

A. Yes, pretty much, as I understand it.

Q. All right. Tell me which direction the Sinclair

station is.

A. Okay. The Sinclair station is directly south of

the motel.

84

Q. So to get to the Sinclair station, you would walk

this direction?

A. Yes.

Q. Off the bottom of—

A. Yes.

Q. —this map as we have it here?

A. Yes.

Q. Can you see the Sinclair station from the motel

if you’re standing here in the parking lot?

A. Oh, yes.

Q. And can you see the motel from the Sinclair station if you’re standing in the parking lot?

A. Yes.

Q. Do you know a person by the name of Justin

Sneed?

A. I didn’t actually know him. I knew of him, but I

really did not know him.

Q. Okay. Did he live there at the motel?

A. I really didn’t know what his arrangements

were. I saw him around the property and that’s about it.

Q. Do you know for how long of a period you saw

him around [16] the property?

A. I can remember seeing him for a week, two

weeks maybe. I don’t really know for exactly.

Q. Okay. Was he there every day or quite often or

you saw him occasionally?

A. I saw him quite often, but I couldn’t tell you how

long.

85

Q. Did you have any interaction with him at all in

an ability to talk to him or observe him?

A. Not more than a nod of, you know, acknowledgement. That’s about it.

Q. Okay. Were you able to form an opinion about

what you thought of his personality and intelligence?

A. I hate to—you know, I hate to just, you know,

give somebody my opinion on this, but he just didn’t

strike me as having a whole lot going on for him.

Q. Okay. And do you mean he didn’t have a lot of

support or he didn’t have a lot?

A. He didn’t have a lot of mental presence.

That’s—but I—you know, I could be completely wrong.

I didn’t know him.

Q. And I appreciate that. Did you ever see Justin

Sneed and Richard Glossip together?

A. Yes, walking around the property looking at repair jobs or, you know, just odds and ends.

[17]

Q. Okay. Do you know if Justin Sneed worked

there or not?

A. I assumed he did. I saw him doing a little bit of

handiwork here and there.

Q. I want to talk a little bit about Barry Van

Treese. Did you get along with Mr. Van Treese?

A. Oh, yes, generally.

Q. Okay. And tell us a little bit about his demeanor.

How did he normally handle himself?

A. Well, I can only tell you how he handled himself

toward me. I was a paying guest and he was always very

86

nice to me and that’s—you know, that’s just business, I

guess.

Q. Did you ever see him act any differently toward

anyone else, employees or other guests?

A. I saw his temper. I saw him get riled at employees over the years for just this and that and I couldn’t

give you any reason, I saw him not in a pleasant mood a

few times toward other people.

Q. Okay. Well, were these employees that they

wasn’t pleasant with?

A. Yes.

Q. Okay. And when you say you saw him—I mean,

how could you tell he was upset?

A. Oh, just as opposed to friendly or upset, he was

upset, you know .

Q. Did he raise his voice?

[18]

A. Yeah, I’ve heard him raise his voice.

Q. Did the type of words that he used and his tone

of voice change?

A. Yes.

Q. Would you say that he had this type of behavior

with just one employee or more than one employee?

A. More than one employee.

Q. But he never showed any displeasure with you?

A. No, not that I recall.

Q. Do you know whether or not he ever fired anyone there from the motel?

87

A. I assume he did but I never had direct—you

know, I was never a direct witness to him firing anybody.

Q. And when you say you assumed he did, did you

see him upset with employees who then no longer

worked there?

A. Right. Right.

Q. Sir, I want to talk to you a little bit about Richard Glossip’s demeanor. Did you get along with Richard

Glossip?

A. Yes.

Q. And tell us a little bit about his personality and

his demeanor.

A. Richard seemed like a real go-getter. He was

always working hard. It seemed like he was working

hard. It seemed like he always had plans to do this, that,

and the other. I can’t give you any specifics, but he always seemed

*

[45]

*

*

Q. Well, did you see maids or—

A. Yes.

Q. —people going in and out of the rooms?

A. Yes.

Q. You had indicated that you had seen Mr. Van

Treese at times raise his voice toward other employees

if he was not happy with something?

A. Yeah, I had seen that before.

Q. You had never seen him fire anybody?

88

A. Not to my knowledge. Not exactly in front of

me.

Q. You saw him work with Mr. Glossip, didn’t you,

when they were working together or around each other?

A. Yes.

Q. Did they always seem to be getting along?

A. Not always. Sometimes there seemed to be a

little tension. Sometimes there seemed to be nothing.

It’s just—I can’t put my finger on anything, really.

Q. There’s no time did you see him fire Mr. Glossip

or say he was going to fire Mr. Glossip?

A. Not to my memory.

Q. And up to the point in time of Mr. Van Treese’s

death, Mr. Glossip was still the manager, wasn’t he?

A. As far as I knew.

Q. Now, you had indicated that after you had heard

the glass break and after you had gone to the Sinclair

station

*

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*

89

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

CASE NO. CF-97-244

THE STATE OF OKLAHOMA,

Plaintiff,

v.

RICHARD EUGENE GLOSSIP,

Defendant.

REPORTED BY:

THERESA L. REEL, RPR

321 PARK AVENUE, SUITE 201

OKLAHOMA CITY, OK 73102

VOLUME 7 of 17

Filed March 23, 2005

BEFORE THE HONORABLE

TWYLA MASON GRAY, DISTRICT JUDGE.

TRANSCRIPT OF PROCEEDINGS,

JURY TRIAL,

HAD ON MAY 19, 2004

*

*

*

90

[3]

TABLE OF CONTENTS

Volume 7 of 17

May 19, 2004

PAGE

BILLYE HOOPER TESTIFIED:

Direct Examination......................................

By Ms. Smotherson

Cross-Examination.......................................

By Mr. Lyman

4

82

COURT ADJOURNED FOR THE EVENING RECESS................................................................................106

CERTIFICATE OF THE COURT REPORTER...107

91

[4] (Thereupon, on May 19, 2004, with all counsel, the

Defendant and the jury present, the following was had

in open court.)

THE COURT: Is the State prepared to call its

next witness?

MS. SMOTHERMON: Yes, Your Honor.

The State of Oklahoma calls Billye Hooper.

BILLYE HOOPER,

having been first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MS. SMOTHERMON:

Q. Ma’am, would you state your name for the jury,

please.

A. Billye K. Hooper.

Q. And, Ms. Hooper, are you currently employed?

A. No, not at this time.

Q. And are you retired?

A. I’m retired on my long-term disability.

Q. When you retired, what type of work were you

doing?

A. I was working for Pharmacy Management Consultants, a division of the State of Oklahoma as their help

desk.

Q. And this long-term disability, is it because of an

accident or because of some medical problems?

A. Because of medical problems.

Q. All right. Ma’am, was there ever a time that you

worked in the motel business?

92

[5] A. Yes, I did.

Q. Okay. Tell us how much years all total you

worked in the motel business.

A. Well, let’s see. I worked about six months for

Howard Johnson’s on south’s 15th and then I worked for

Best Budget Inn for approximately three years, and

then I worked for the Super 8 Motel as night auditor on

39th and North May for two years.

Q. Let’s talk about the time period when you

worked at the Best Budget Inn. Do you know who

owned that motel?

A. Yes. When I worked there it was owned by

Barry Van Treese.

Q. And let me ask you if you know some individuals

who might have been at the motel during some of the

time period you were there. Do you know Richard Glossip?

A. Yes, I do.

Q. And you know D-Anna Wood?

A. Yes, I do.

Q. How do you know them?

A. They were the managers. Barry hired them as

managers at the time I was still working there.

Q. Okay. So were you working there first and then

during the time you were working there Richard Glossip

and D-Anna Wood came in or they were there—

A. Yes. I came there first.

[6] Q. Okay. Let’s talk a little bit about the time period

then before Richard Glossip and D-Anna Wood came to

be as managers. What was your position at the motel?

93

A. Well, I worked the front desk. But primarily it

was Barry and I when I first started. And I work the

desk during the day and took care of the housekeeping

reports and just things like that.

Q. And you said it was primarily you and Barry.

Did Barry Van Treese live on site then when you first

started?

A. Yes, at that time, they had an apartment at the

back of the office and that’s where the managers lived

and when Barry was up there in between managers,

that’s where he lived.

Q. So the motel was in between managers, Barry

Van Treese had to live there?

A. Yes. When I was there, that’s the way it was.

Q. And that’s the way it was when you first

started?

A. Yes.

Q. Any time during that time period before managers were hired did—were you ever left in charge of the

motel?

A. When I first started working there, Barry and

Donna took the children on Christmas vacation and at

that time my sister was still living and we lived there in

a room at the motel. And Barry left her and I in charge

of the motel while he went on Christmas vacation.

[7] Q. Now, let’s try to see if we can put this in

time perspective. Which Christmas would that have

been?

A. That was the first Christmas that I worked

there, so I believe that would have been the Christmas

of ’94.

94

Q. When Barry Van Treese got back from vacation

in Christmas of ’94, did he have an opportunity to look at

the condition of the motel and the books and what had

been going on while he was gone?

A. Yes, he did.

Q. Okay. And did he express to you, without telling

us the words, but did he express to you whether or not

he was pleased or displeased?

A. Yes. No, he was very pleased and he said he was

really surprised that everything went so well and he

made as much money as he did.

Q. All right. Over the time that you worked for

Barry Van Treese, did he ever express displeasure with

your work?

A. No.

Q. Now, you said that at first when you started

working there in ’94, before Christmas of ’94, that Barry

Van Treese was kind of acting as the motel manager because they were in between managers. Was there ever

a time when managers were hired?

A. After they came back from Christmas vacation,

I’m not sure exactly the exact date but earlier that year,

maybe [8] February or—he hired a young couple to

manage the place.

Q. Okay.

A. Before Rich and D-Anna.

Q. All right. And did that young couple stay very

long?

A. About three months, I think.

95

Q. And do you know if they voluntarily left or if

they were fired?

A. No, they more or less left voluntarily.

Q. After they left, then did Barry Van Treese come

back and live on site because he was in between managers again or?

A. For a while he did, but he was—while he was

trying to find somebody else.

Q. And then did he hire someone?

A. That’s when he hired Rich and D-Anna.

Q. Okay. And so now would we be some time in

1995, I suppose.

A. Yes.

Q. Mid to late 1995?

A. Uh-huh.

Q. Yes?

A. Probably in the springtime, I think.

Q. Let’s talk about you working there. Did you receive—were you paid? Did you receive a salary?

A. Yes, I did.

[9] Q. Okay. And do you remember how many times a

month you were paid’?

A. Twice a month, I think.

Q. Now, you said—

A. I’m not really sure. Every other Monday, so it

would be twice a month.

96

Q. Okay. You said that when you first started living there you and your sister lived in a room there at the

motel?

A. Yes, we did, for about three months.

Q. And after that then did you live off site?

A. Yes, we rented an apartment.

Q. Did you ever live again on the premises of Best

Budget’?

A. No.

Q. Okay. Did Barry Van Treese have employees

other than the managers who lived on site at the motel?

A. Sometimes he had some of the people that

worked for him, like the housekeepers, he would let

them live on site.

Q. Now, tell me about how that worked. Did they

get their room for free or reduced rate or was it part of

their salary?

A. Well, they would get a reduced rate on the room,

but they would get a paycheck every pay day along with

myself. And then they would pay back what they were

being charged for their rent. They didn’t work for free.

[10]

Q. So was it not the policy, as I’m understanding it then to comp a room for an employee? That wasn’t

the policy?

A. No.

Q. Okay. They worked, got a salary, and then paid

a reduced rate for living there?

A. Yes.

Q. And was that—the whole time you worked

there, was that Barry Van Treese’s policy?

97

A. Pretty much.

Q. Okay.

A. Depending on the circumstances of the people

he hired.

Q. Sure. I want to talk a little bit about another

person there at the motel, Justin Sneed. Do you know

Justin?

A. Yes, I did.

Q. Okay. And about how—did Justin live there at

the motel?

A. Yes, he did.

Q. About how long did he live there?

A. It seems like he came in the summertime. He

had come up with a group, I believe, of roofers or some

type of construction workers from Texas.

THE COURT: Excuse me. I guess they’re

opening the cans for lunch. I don’t know what they’re

doing in the alley. So I know it’s really hard to concentrate with this clanging.

[11]

So speak up, Ms. Hooper. Okay?

THE WITNESS: All right. I’m sorry.

THE COURT: No, you’re doing fine. It’s not

your fault. Thank you.

Q. (BY MS. SMOTHERMON) So you think he

came in the summer with some roofers?

A. It seemed like the weather was warm. I don’t

remember the exact month, but it seemed like it was in

the summertime.

Q. And would this—

98

A. Late summer, maybe.

Q. And would of this been summer of 1996?

A. Of ‘96.

Q. Let talk a little bit about Barry Van Treese and

Justin Sneed. Can you tell me how much contact they

had or how well they knew one another?

A. To my knowledge, they had very little contact,

if any at all. And they knew each other—I’m sure Barry

might have known him on sight. I’m not really sure of

that. I know Justin would have known Barry on sight.

But I don’t think they ever had that much interaction.

Q. Is there—well, did Barry Van Treese visit the

motel, I mean, while Justin was there? Had Barry Van

Treese come to the motel?

A. Well, on paydays and when he’d bring the payroll and [12] come up and check on how things were going.

Q. Is there a reason then why Justin Sneed didn’t

have interaction with Barry Van Treese?

A. Well, he usually just kind of pretty much, like,

stayed out of sight.

Q. Do you know why that is?

A. Well, I believe it’s because that he wasn’t supposed to be there in a free room working for—working

for a room rather than a paycheck.

Q. Okay. Were there other employees that were

there or had been there that weren’t—and when you say

“Not supposed to be there,” you mean Barry Van

Treese?

99

A. Didn’t hire them and say you can live here and

work here and get a paycheck.

Q. Okay. So they didn’t have permission from the

owner of the motel to be there?

A. No.

Q. Okay. Were there other employees other than

Justin Sneed that you saw that did jobs there and but

they weren’t supposed to be there?

A. Well, there were some that were getting like a

reduced rate for maybe doing some maintenance or get

a room that they didn’t live there every day but they

might go and do like a day or two’s worth of work for a

room.

Q. And was that something that wasn’t supposed

to happen?

[13]

A. It had not happened prior to that.

Q. Who was responsible for these individuals, Justin and these other individuals, being there in a manner

that they weren’t supposed to be?

A. At that time Rich was the manager.

Q. Okay. Was he the one that—

A. He would be the one that would make that decision, whether it could happen or not.

Q. Okay. Let’s talk a little bit about your relationship with Barry Van Treese. We’ve talked a little bit

about how it was at different points. What do you think

about your relationship with him?

A. Barry and I got along very well. We never had

any problems. We liked each other. I knew his wife and

100

his children and was just almost maybe not close as a

family member, but we were all close.

Q. Tell me a little bit then about Barry Van

Treese’s demeanor. How did he come across to people

just on a normal day?

A. Well, there was times when he could be gruff

and kind of come across like a bear.

Q. Okay. Did you ever tell him that?

A. I used to hell him that he was named appropriately because he sometimes acted like a bear.

Q. Okay.

[14]

A. But as a rule, he was a nice person.

Q. Okay. Had you ever seen him mad or upset?

A. I’d seen him mad. Yes, I had.

Q. How was that? How did he act when he was—

A. Well, he could get angry and kind of—I mean,

when he was mad, you knew it.

Q. And you said he could get angry. And did he—

if he was mad, did he have a temper?

A. I would say so.

Q. And had you seen him display that to different

people at different times?

A. At times.

Q. Okay. What are some things that would make

him show his temper?

A. It’s kind of hard to—that’s kind of—I’m not sure

if I know how to answer that.

101

Q. All right. You can’t think of any specific examples right now?

A. Well, I mean, if somebody wasn’t doing their job

or he didn’t like especially anybody to lie to him. He

didn’t like that. He wasn’t fond of drinking people.

Pretty much was nice to everybody, but he expected you

to do your job and if you didn’t do your job correctly, he

would let you know that right off the bat. And sometimes, you know, he might be—have a conversation or

something with someone [15] that I wouldn’t know who

was on the other end and he might, you know, kind of

start slamming around papers and things. You could us

usually tell when he was not in a good mood.

Q. Okay. Let’s talk a little bit about Richard Glossip. How much of—interaction did you have with Richard Glossip and D-Anna Wood?

A. I saw them both every day that I was on my

work schedule.

Q. Okay. And did you ever see Richard Glossip interact with Barry Van Treese?

A. Yes, I did.

Q. Okay. Tell us over the course of the relationship—and I guess if I’ve got the timing right, we’re talking a little over a year, a year and some months that

Richard Glossip was the manager there; is that correct?

A. Yes.

Q. That Barry was alive. Tell us about your observations of their relationship and if it stayed the same or

if it changed.

A. Well, it seemed like when Rich first started, him

and Barry got along very well. He did a really good job.

He was doing a lot of maintenance and trying to fix the

102

place up and I couldn’t observe any problems going on

between him and Barry. But then, again, if there had

been a problem going on with him and Barry, they would

not have been

*

*

*

[26]

lights, because it’s a—I mean, it’s a dark night

and we can see—of course, that’s probably the flash. But

we see that there are some lights underneath here; is

that correct?

A. There were lights under the canopy, yes.

Q. And where is the switch for those lights?

A. On the inside of the office in a box.

Q. Is there any other way to turn those lights on or

off other than being inside the office?

A. Not to my knowledge.

Q. All right. Let’s talk a little bit about Justin

Sneed and then I think maybe we’ve got all the players

going here.

Did you have interaction with Justin Sneed?

A. Yes, I did.

Q. What was your observations of him, his personality?

A. Well, I—he was always kind of quiet, never did

have too much to say, was always very polite to me,

never smart-alecky or offensive in any way. I got along

with Justin quite well.

Q. Did you ever see him be confrontational or aggressive to anyone verbally?

A. I never did, no.

103

Q. Did you ever see him be confrontational or aggressive physically toward anyone?

A. No, I never did.

Q. Did you ever see anyone pick on him or be mean

to him?

[27]

A. Well, I don’t think so.

Q. Okay. Did Justin Sneed—did he work there at

the motel?

A. Yes, he did.

Q. And what did he do?

A. He was kind of like a maintenance assistance to

Rich. He cleaned rooms. He worked in the laundry. He

helped Rich with maintenance. Pretty much whatever

Rich asked him to do is what he did.

Q. Did he get paid for that?

A. Not in a paycheck.

Q. Okay. What did he get?

A. He got a room.

Q. And was it how you told us the policy was that

Justin Sneed got some money and then he had to pay the

motel back for the room or did he just get his room for

free?

A. He just got his room free, that I know of, and if

he received any money, he did not receive it in the form

of a paycheck.

Q. Okay.

Sneed was in?

Do you remember what room Justin

104

A. It was downstairs on the north side, but I don’t

remember the exact room. Two-something, one-something, I guess, would be on the bottom.

Q. Okay. Give us —

A. Like 127 or 125. Somewhere kind of right in the

[28] middle.

Q. All right. Give us just a ballpark figure, if you

can, about what that room was worth, if you were just

going to rent it to me in 1996 and—if you were just going

to rent it to me, about what would you have charged for

it?

A. Well, I think at that time the minimum charge

depending on if we were busy or—you know, it fluctuates in the motel room, but right around $30.

Q. Okay. Tell me the relationship between Justin

Sneed and Richard Glossip?

A. As far as I could tell, Justin and Richard were

very close. I know Justin thought a lot of Rich and Rich

appeared to be quite fond of Justin.

Q. What did Justin do for food if he didn’t get any

money?

A. Well, I know a lot of times that I would see him

eat with Rich and D-Anna, but other than when I was

there, I don’t know.

Q. Okay. You said that Justin Sneed was fond of

Richard Glossip. After this all happened and you found

out that Justin Sneed had beat Barry Van Treese to

death with a baseball bat, did you have thoughts on how

that works together? I mean, that would have gotten

Richard Glossip in quite a bit of trouble, right, for Justin

to have done that?

105

A. Yes.

Q. Okay. Did that seem like the type of relationship that [29] they had?

A. I wouldn’t have thought that Justin would have

done anything to have tried to get Rich into any trouble.

Q. Was it your belief when you heard what was going on that Justin would have done it without Richard

Glossip’s knowledge?

MR. LYMAN: Objection, Your Honor.

THE COURT: Would you approach, please.

(Thereupon, the following was had at the bench.)

MR. LYMAN: Calls for speculation. She’s asking her what Mr. Sneed or Mr. Glossip thought and she

doesn’t know what they thought.

THE COURT: Do you want to respond?

MS. SMOTHERMON:

Well, I’m trying—

maybe I’m wording it poorly, but I’m trying to ask her

based on her vast knowledge of their personalities and

in their relationship if it seemed like it fit with what she

knew that Justin Sneed would act alone or that—or did

it fit that they would have done it together, that Richard

Glossip would have had the knowledge. I’m not asking

her to speculate that he did, because she doesn’t know.

THE COURT: The question that you asked, I

believe, does call for a speculative answer, but she’s entitled to give an opinion based on her knowledge of both

individuals. And so if you ask it right, I’m going to allow

[30] it.

MS. SMOTHERMON: Okay.

(Thereupon, the following was had in open court.)

106

Q. (BY MS. SMOTHERMON) Ms. Hooper, I’m going to ask you this question but I’m going to word it just

a little bit differently. Okay? So listen to what I have to

say.

I believe you told us that based on what you knew of

the personality of Justin Sneed and Richard Glossip and

their relationship, that it would be your opinion based on

that that you wouldn’t have thought Justin would ever

do anything to hurt Richard Glossip; is that correct?

MR. LYMAN: Objection. Your Honor, it’s leading.

MS. SMOTHERMON: Well, I’m just getting us

back to where we were. Yes, it’s leading, but she’s already testified to it.

THE COURT: Overruled. I’m going to allow it.

MS. SMOTHERMON: Okay.

THE WITNESS: No, I don’t think that Justin

would have got—I don’t think Justin would have done

anything that would have harmed Rich because he

thought—he was real close. You just had to kind of know

the two parties to understand, but, no, I don’t think he

would have.

Q. (BY MS. SMOTHERMON) Okay. If I were to—

knowing the personalities then of both and knowing

their relationship, do you believe that in order for Justin

to do something like [31] that, Richard would have had

to have been a part of it

MR. LYMAN: Objection, Your Honor. Speculation and leading.

THE COURT: Well, I’m not troubled about

leading. I’m going to sustain the objection.

107

MS. SMOTHERMON: Okay.

Q. (BY MS. SMOTHERMON) I’m going to try one

more time and then I may have to get help on my wording. Okay?

You said that you were—it wouldn’t make sense for

you that Justin acted alone. Knowing what you know

about each one of them and their relationship, would it

make sense to you that—because we know this happened. We know Barry was murdered at the motel,

right?

Would it make sense to you that knowing who they

are and their relationship, would it make sense to you

that Richard Glossip was involved?

MR. LYMAN: Objection, Your Honor. Speculation.

THE COURT: Would you approach, please.

(Thereupon, the following was had at the bench.)

THE COURT: It would be my understanding of

the law that the witness is entitled to give her opinion.

MS. SMOTHERMON: Okay.

THE COURT: If she has an opinion based on

her knowledge and her knowledge of both parties and

how they interacted and their relationship, her opinion

about [32] whether—I think she can express opinions

about a variety of things. And even on the ultimate

question as a lay witness, I think she’s entitled to do that.

It doesn’t invade the province of the jury if it’s just her

opinion based on her knowledge of individuals.

Now, if she does not have an opinion, then we’re

calling for speculation. I think that would accurately reflect.

108

MR. LYMAN: Well, so the record reflects, the

basis of my objection is it’s speculation. It also does go

to the question of fact that she does not have the basis of

knowledge. She wasn’t present at the time of the killing.

She doesn’t know. And just because she knows one person or another person, I don’t think she’s qualified to

voice that type of ultimate fact opinion.

nute.

THE COURT: But think about that for a mi-

No, she wasn’t there when the murder was committed. She knew all the parties, had dealings with them

every day, knew how they interacted. And the law is

that she can give an opinion based on her knowledge of

the individuals, including the victim. And it is just that,

an opinion. It is not fact for the jury. And so it doesn’t

invade the province of the jury.

MS. SMOTHERMON: Your Honor, Mr. Ackley

has suggested my wording and I’m going to run it past

everybody [33] up here then ask the question. I know

Ms. Hooper can hear me and know that this is the question I’m proposing. Based on what you know about their

personalities and their relationship, what is your opinion—is it your opinion that Justin Sneed would have.

THE COURT: Well, you can’t state her opinion.

MS. SMOTHERMON: Okay.

THE COURT: I mean, that is leading her.

MS. SMOTHERMON: Okay. Okay.

THE COURT: So it would be do you have an

opinion and if you do, what is it.

MS. SMOTHERMON: And an opinion about

what, though? I need to know about whether or not

Richard Glossip was consulted.

109

THE COURT: About whether or not—

MR. LYMAN: About whether or not he, you

know, goes to—that goes to the point of my objection,

the opinion she seeks goes to the ultimate fact of

whether or not Mr. Glossip—

THE COURT: Whether or not Mr. Sneed would

have done anything without consulting Mr. Glossip, because it would have affected Mr. Glossip, and if she has

an opinion, then I think she’s entitled to speak it. And I

will note your objection.

(Thereupon, the following was had in open court.)

[34]

THE COURT: I dispatched the clerk to check

on whatever is going on in the alley. Nobody wants to

eat at the snack bars during lunch, but other than that, I

think it’s going to calm down little bit.

You may proceed, Ms. Smothermon.

MS. SMOTHERMON: Thank you.

Q. (BY MS. SMOTHERMON) Ma’am, I want to

ask you about your opinion based on your knowledge of

the parties and of Justin Sneed and Richard Glossip and

the relationship between them. What is your opinion

about, if you have one, about whether or not Justin

Sneed would have ever done anything like murder Barry

Van Treese without first consulting Richard Glossip?

A. In my opinion, Justin would not have murdered

Barry Van Treese, I don’t believe because, for one, he

didn’t know the man hardly at all. He probably had no—

very few comments even made together and I wouldn’t

seen, in my opinion, why he would have a reason to do

such a violent act to someone that he hardly knew.

110

Q. And my question was: What’s your opinion

about whether or not he would have done it without consulting Richard Glossip?

A. I do not believe he would have done it acting on

his own volition because he didn’t know Barry that well.

Q. Okay.

[35]

A. Why would he?

Q. All right. Let’s talk a little bit about then the

end of 1996. I believe you said that the Van Treese family had gone through some tragedies, some personal

tragedies?

A. Yes, they had.

Q. All right. Did you ever know of a time at the end

of 1996 when they were going to take a vacation?

A. Yes, when Barry came up right before Christmas, I’m not exactly sure of the exact date but I know

that he was planning on taking Donna and the children

on a Christmas vacation and go out to Arizona, I believe,

to see his new granddaughter.

Q. Okay. Now, at the time that he came or prior to

the time that he came right before Christmas, did you

have any concerns about how Richard Glossip was managing the motel?

A. When Barry came up, I’m not sure if it was the

day he brought our paychecks or if it was just the day

that he came to gather receipts—he came sometimes to

gather receipts without it necessarily being payday—

and we were alone in the office and I told him—I said,

“Barry, I think that you and I need to have a talk outside

of the office. Maybe you and Linda and I could go out for

dinner or something.” He knew my sister, too, as well

he knew me. I said, “Because we really need to talk.”

111

And his—what his comment back to me was, “I know

that we do.”

[36]

MR. LYMAN: Objection, Your Honor.

THE COURT: Sustained.

MR. LYMAN: And ask that what she did say be

stricken.

MS. SMOTHERMON: What she said?

MR. LYMAN: Well, she started to answer it. I

ask that it be stricken.

THE COURT: Well, I mean, the record reflects

everything that is said in the courtroom. And the jury

probably knows by now that witnesses can’t repeat what

somebody else said because we consider that hearsay.

So it should not be considered by the jury.

Q. (BY MS. SMOTHERMON) Ma’am, when you

spoke with Barry Van Treese and told him that you

thought that he needed to have a conversation with you

off—outside of the motel—

A. Yes.

Q. Okay—did he indicate—and don’t say what he

said, but did his demeanor indicate to you a specific intent? In other words—

A. His behavior—

MR. LYMAN: Objection, Your Honor. May we

approach?

THE COURT: You may.

(Thereupon, the following was had at the bench.)

MR. LYMAN: Hearsay objection as to her [37]

description of his demeanor. His demeanor is a

112

nonverbal conduct that she’s using to infer that he had a

certain opinion. You might have well just asked him

what his statement was. It’s hearsay.

MS. SMOTHERMON: First of all, his demeanor and how he acted or how he looked is not a statement. You have to be a statement in order for it to be

hearsay so it’s not hearsay. I intend on asking her what

he said, but I’m going to lay the foundation for a hearsay

exception first and part of that would be to start with his

demeanor.

THE COURT: Overruled.

(Thereupon, the following was had in open court.)

Q. (BY MS. SMOTHERMON) Ma’am, without telling us what Barry Van Treese said to you. Okay. You’ve

told us what you said to him, We need to go away from

the motel and talk about this.

A. Yes.

Q. Without telling us his words, could you tell from

the way he was acting whether or not he had—whether

or not he was responding to what it was that you were

saying?

A. In my opinion, yes, he intended—

Q. All right. Now, hang on. Don’t tell us what he

intended yet. But did he have a physical response? Did

he get upset or could you tell that he was responding?

A. No, he did not get upset, but I knew this man

very [38] well. We worked together for quite a while

day in and day out, sometimes 12, 13 hours a day depending on who didn’t show up and et cetera, so I knew from

expressions on his face and his reactions, not that I could

read his mind, but when you work close with somebody,

113

you know what they’re going to say that they don’t say

it.

Q. Okay.

A. And in my opinion, he intended to come back

from vacation—

MR. LYMAN: Objection, Your Honor.

THE WITNESS: —and make changes.

MS. SMOTHERMON: All right. Hang on just

a second.

MR. LYMAN: Same grounds.

THE COURT: Ms. Hooper, there are some

things that would be fine in a conversation, but in a court

of law we have to kind of limit how we do things. We

have rules that we have to follow.

THE WITNESS: I’m sorry.

THE COURT: That’s all right. So I need to listen real carefully to the questions asked and just answer

those questions and not expand it any further.

THE WITNESS: Okay.

THE COURT: If your answers can be expanded

upon, I trust that she will ask those questions and elicit

those [39] answers. Okay?

THE WITNESS: I’m sorry.

THE COURT: That’s all right.

Q. (BY MS. SMOTHERMON) Ms. Hooper, I’m going to ask you some questions about the statement that

Barry Van Treese made to you. But I’m asking you

questions about the statement, I’m not asking you at this

time to repeat the statement. Okay?

114

A. Okay.

Q. All right. But he did make a statement to you;

is that correct—

A. Yes, he did.

Q. —in response to yours? Okay.

Was that statement about an answer to what you

had said to him? In other words, was it about the subject

that you were talking about?

A. Yes.

Q. Okay. Did that statement express to you his

mental feeling about the subject that you were discussing with him?

A. Yes.

Q. Okay. Did that statement that he made express

his state of mind about this subject that you were discussing with him?

A. Yes.

Q. Did that statement that he made express his intent or [40] his plan about the issue that you were discussing with him?

A. Yes.

MS. SMOTHERMON: Your Honor, at this time

I would ask for the admission of the hearsay statement

based on the proper foundation of 2803 (3) the state of

mind exception to the hearsay rule?

MR. LYMAN: Note our objection, Your Honor.

THE COURT: Your objection is noted.

And you may ask the question.

115

Q. (BY MS. SMOTHERMON) We have to do

things in order. Now, we’re going to talk about his statement. Okay? You told him we’ve got to go off and we’ve

got to talk about things. Okay?

A. Yes.

Q. What did he say to you?

A. He said that he knew things had to be taken care

of but that he was taking his family on vacation for

Christmas and going to see his new grandbaby and for

me to smile my smile, like I always did, and make the

motel some money. He knew that would happen.

Q. Okay. And did you trust him that when he got

back from vacation he was going to take care of things?

A. In my opinion that was what was going to happen.

Q. Okay. Now, I want to talk a little bit about what

you believe, what concerned you that would make you

say to him, [41] “We’ve got to go someplace and talk.”

Okay? So we’re going to talk about those concerns.

When you told us—and let’s just see if we can have

a natural break here. You told us that you were gone for

eight weeks starting when?

A. I believe I had my heart attack in the early—

first week or so of August. I’m not sure of the exact date,

but I know it was early August.

Q. Of 1996?

A. Of 1996.

Q. And you were gone from eight weeks from when

you had your heart attack until?

116

A. I came back some time, I believe, right before

my birthday. I believe in October.

Q. Okay. Before you left, before you had your

heart attack, the first few months of 1996 and the end of

1995 when Richard Glossip and D-Anna Wood were

managing the motel, did you have any serious concerns

about the way that the money was being taken in and

things were being recorded, the bookkeeping?

A. No, everything at that time seemed like Rich

was doing a really good job.

Q. When you came back in October, somewhere

around your birthday, when it was time for you to come

back, who did you contact to say, Hey, I can come back

to work now?

[42]

A. When I first found out from my doctor that

I could come back to work, because I did office work and

it wasn’t that strenuous physically, that I notified Rich

and told him that I could come back to work.

Q. Okay.

A. But he told me not to come back at that time,

you know, to take a little bit longer, that he’d have to

check with Barry and get the okay and that sort of thing.

Q. Okay.

A. After a period of time I was at the financial point

where I either had to go back to work or I had to go find

another job—

Q. Now, were you being—I’m sorry to interrupt.

But were you being paid during this eight-week period

of time?

A. Barry was giving me half my salary.

Q. Okay.

117

A. Because, you know, he knew what kind of situation, I was a single woman, my sister and I, so…

Q. Okay. So—

A. He knew that job was my only means of support.

Q. Okay.

A. So he did pay me half pay while I was off.

Q. But you’ve been cleared medically to go back to

work, you tell Richard Glossip, he says, you know, not

yet I’ve got to check with Barry, and then does he call

you or do you [43] call him and say, “Hey, have you

talked to Barry yet?”

A. I called maybe once and said, “When did Barry

say I could come back to work?” And he said, “Well, he

would have to get back with him.” Don’t remember the

exact conversation word-for-word, but then I took it on

my own self to call Barry at his home in Elgin.

Q. Okay.

A. And to express to him that I needed to come

back to work or I was going to have to do something different. And he said

Q. All right. Hang on just a second. Remember—

A. Sorry.

Q. That’s okay. Let me ask you just a question.

Okay? So you were concerned, you call Barry, you tell

him, “Look, I’ve got to come to work or I’ve got to go do

something else”?

A. Yes.

Q. Based on that conversation, did you go back to

work then at the motel?

A. Yes, I went back to work that Monday.

118

Q. Okay. When you got back, what was your opinion of how Richard Glossip was treating you?

A. Well, Rich was never really at any time like not

nice to me, that he was mean to me or rude to me or mistreated me in any manner. I couldn’t say that he did.

[44]

Q. Okay. Did he ever—did you ever get the impression that he was glad you were back?

A. I don’t think that he was really happy that I

came back, no.

Q. Okay.

A. In my opinion.

Q. Okay. And is that anything specific that you can

tell us now or is it just your general feeling?

A. Well, I really don’t know how to answer that.

Q. Okay. Fair enough. And you and I talked.

We’re not going to answer anything that you don’t have

an answer for, right?

A. Well, I’m not sure.

Q. Okay.

A. I don’t want to say something that I’m not supposed to say and throw something in there that I’m not

supposed to throw in there.

Q. I know. And I appreciate that and I know that

everyone here appreciates that. But as you have seen,

Ms. Hooper, if you start to say something that legally

can’t go before this jury, we’re all capable of stopping

you. That’s our job. Okay?

So I need for you, if you’ve got an answer, to give an

answer. If it starts getting into an area that legally can’t

119

go before this jury, you’ve got to trust us. I mean, [45]

we’ll stop you.

A. Well, Rich never confronted me and said, I

didn’t want you to came back to work, you’ve come here

on Barry’s wishes, not my own. No, that—nothing like

that ever transpired, it was just that I could tell by his

attitude towards me at first. And the attitude then was

that, in my opinion, he would have just been just as

happy if I had not been able to come back to work.

Q. Okay. After you got back, did you see any differences in the way the motel was being managed and

the way the books were being kept?

A. Well, I didn’t see any difference in the way that

it was being managed but when I would give the—Rich

always made the daily report every morning before he

went back to his room. I worked the day shift. He

worked the evening, night shift so he usually slept during the day. And I—Donna would call during every day

and get the daily report and I would read it to her.

Q. Okay.

A. And I just noticed that prior to how it had always been in the past up until it was at that time that it

was always right around the same amount of rooms. In

fact, more than once I would make the comment to

Donna that it seemed like the old Best Budget couldn’t

seem to get under 19 rooms, but they couldn’t seem to

manage to rent anything over 21. [46] Because it was

always right in there, 19, 20, 21, 19, 21, 20.

Q. So you noticed as you gave the daily reports

over the phone that the room rental, the number of

rooms rented, seemed to be fairly consistent?

A. Yes.

120

Q. Now, why did that concern you or raise a red

flag?

A. Well, because all the time that I had worked

there, some days there might be a day when we would

make the daily report that there might be 14 rooms on

there and the next day there might be 40. I mean, it just

fluctuated depending on the time of the year, the time of

the week, the weather.

Q. Okay.

A. But it never was just ever consistently between

this number. It was either feast or famine, either have a

whole lot there or not very many there or the regulars

there or that sort of thing.

Q. What did that tell you when the room rate was

the same or the room number—let me say that again.

When the number of rooms rented was consistent

night after night, what did you think?

A. Well, what I thought was that it seemed—I

mean, I just thought it seemed strange that the whole

period of time that I worked there it fluctuated. Nothing

ever remained that consistent. So in my opinion, I felt

like that there [47] was probably rooms that were not

being written down but I wasn’t there, so I couldn’t say

that’s what happened.

Q. At the time that these documents, these records

were being compiled, whose responsibility was it? I

mean, you said you were reading it to Donna, but where

were you going those numbers?

A. I got the report that Rich made. He did the daily

report every morning.

Q. Okay.

121

A. Or at night. But he did the daily report.

Q. Okay. Did you ever see any records altered or

changed or new ones made?

A. Well, there were a couple of times. You see, I

wrote down on some of the things that I did. We had a

sheet that we kept and as I wrote down rooms when I

went rented I put the room number and the amount and

so on and so forth. That’s what—and then whoever came

on after me was supposed to continue to do that.

Q. Okay.

A. And then that’s the one that Rich made the report off of.

Q. Okay.

A. But I know there was a couple of times when I

would see that my handwriting wouldn’t be anywhere on

that report and that I was instructed that something, a

mishap had happened [48] to it, coffee spilled on it or got

wet or handwriting didn’t look good and that sort of

thing.

Q. So he had to generate a whole new report?

A. Yes.

Q. Now, you said that it was Richard Glossip’s responsibility to make the daily reports. How about

rooms? Were there housekeepers that cleaned the

rooms?

A. Yes, we had housekeeping department.

Q. And how did the room cleaners, the housekeepers, know which rooms needed to be cleaned?

A. I usually did the housekeeping report from the

daily report to write down the rooms that had been

122

rented and put on the housekeeping sheet so they would

know which rooms to get. I would get that from the daily

reports and then sometimes from the keys, you know, we

checked the keys against the rooms.

Q. So if there were keys missing, you would assume

that there was somebody staying in that room that had

been given the key?

A. Yes. If a key was missing, I would assume that

room had been rented. If there was a key on the board,

I would assume that room had not been rented.

Q. Okay. Were there are times when you looked at

the daily report and it didn’t show a room rented that

there were missing keys for?

[49]

A. Well, not so much that I would notice that

there was missing keys but that I would notice in my

moving around the motel that there were sometimes

doors open to rooms that I did not show to have been

rented that appeared to be dirty.

Q. So there were rooms that needed to be cleaned

that you didn’t show were rented?

A. That’s correct.

Q. Okay. So what did that mean to you?

A. Well, that means that they didn’t get rented out.

It wasn’t on the housekeeping report but it was dirty.

So somehow someone got in there and dirtied it up, but

I wouldn’t have any way of knowing who that might be.

Q. Okay. Well, let’s talk about your policy, ma’am.

Would you—what was the motel policy on renting

rooms? I mean, did you always write it down when

somebody rented a room?

123

A. We always filled out a registration card and we

always wrote it down on the report that we had there.

You always, any time you rented a room, you had to record it.

Q. Okay. If someone rented a room and took—and

did you take cash? Is that one of the ways that you took

in money?

A. Yes, we took cash, credit card.

Q. If someone rented a room and took the cash but

didn’t write it down, that would be one way that someone could get, I guess, just money, just pocket the

money, right?

[50]

A. Yes.

Q. Ma’am, D-Anna Wood has suggested that you

took some money from Barry Van Treese’s motel that

way. Did you ever steal money from the Best Budget

Inn?

A. No, I never, never stole money from the Best

Budget Inn. If I had have needed money bad enough to

have to steal it, I believe I could have gone to Barry and

asked for it.

Q. Did Barry Van Treese give cash advances?

A. I don’t know, I can only speak for what he did

for me.

Q. Okay. What was that?

A. I, very few times, probably went to him and

asked him for a cash advance but if I had needed to, he

would have.

Q. Did you ever see his type of personality display

itself like this where someone needed something, needed

124

a room and they didn’t have money or needed some

money and he would?

A. He would have helped anyone. Yes, he would

have.

Q. And are you saying that because that’s what you

think he would have done or are you saying that because

you had actually seen?

A. No, I’ve actually—I’ve seen him help out people

that were in dire need.

Q. Okay.

THE COURT: Is this a logical place maybe just

take a little break?

MS. SMOTHERMON:

Honor, because

*

*

I believe so, Your

*

[60]

somewhere plus or minus 10:00 p.m. on January

6th; is that correct?

A. I believe that to be correct.

Q. Okay. And let’s see. I’m going to put, “Ask her

to go by and pay cable bill in the morning.”

A. Yes.

Q. Okay. Because? Tell me again.

A. Because he wanted to get it turned back on before

Barry found out that it was off.

Q. Did he make any other statements to you about

why he was concerned about Barry Van Treese finding

out that the cable had been disconnected?

125

A. He just asked me to go and pay it that morning

on my way to work because he didn’t want Barry to find

out it had been disconnected.

Q. Okay. How—

A. He said—he asked me if I would just go ahead

and pay the bill, that he would reimburse me when I got

to the office.

Q. So you were supposed to use your personal

money and then he would reimburse you?

A. Yes.

Q. Okay. Now, on January 7th, did you go by the

cable company and pay the cable?

A. Yes, I went by the cable company on my way to

work. I [61] believe it was that one Direct TV or something off of Santa Fe.

Q. Okay.

A. And I wrote a check for the cable bill and

brought back the receipt, gave it to Rich and he reimbursed me the money.

Q. Okay. And do you remember about how much it

was?

A. I believe it was maybe around 100-and-something.

Q. So you wrote a personal check?

A. Yes, I did.

Q. Okay. Do you know about—you told us you

worked from 8 to 5.

A. Yes.

Q. Did you get to work that day at eight?

126

A. No, it was probably, oh, closer—I tried to leave

early enough to get to the cable place when they first

opened, so probably it was maybe around 8:30 to 8:45,

somewhere along—somewhere in there.

Q. And when you gave the receipt to Richard Glossip, he reimbursed you? How did he do that?

A. He just went back into the apartment and came

back out with the money. I didn’t see him take it out of

the cash register or anything like that.

Q. And so he gave you cash?

A. Yes, he did.

Q. When you got to the motel that morning, did you

see [62] Barry Van Treese’s car?

A. No, I did not.

Q. Did you expect to see Barry Van Treese’s car?

A. Yes, I did.

Q. Okay.

A. Well, sort of because I wasn’t really sure maybe

if he was going to spend the night in Tulsa or not or drive

back. Sometimes he stayed up there in Tulsa. So that

when I got there and didn’t see the car, I asked about

him.

Q. Okay. And who did you ask?

A. I asked Rich.

Q. Okay. So you asked him?

A. Where Barry was, did he come back from Tulsa

or did he stay up there or where was he at.

Q. Okay. Well, what did Richard Glossip say to

you?

127

A. He said that he had got up early that morning

and had gone to get breakfast and was going to go get

some materials. They were going to start working on

the motel.

Q. Now, did he tell you how early he got up?

A. He just said he left maybe an hour ago, somewhere in that realm.

Q. And so we’re at about 8:30, 8:45, he said about an

hour ago Barry had gotten up and gone to breakfast and

to buy some supplies?

A. Somewhere around there. He said—I don’t remember [63] exactly. Maybe he said he left around eight

or a little before—about an hour, because it was probably about around 8:45 maybe when I got there.

Q. Okay.

A. But that’s what—he said he had gone to breakfast and had gone to get some materials. They were going to work on the motel.

Q. Okay. What did you think about someone telling

you that Barry Van Treese was up at 7:30, 8:00 in the

morning?

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