Appendix — Roper v. White
Supreme Court brief2006
Ask Donna
What actually matters in this document.
Text
307
Q. Were they doing anything other than playing cards?
A. Yes.
Q.
A.
Q.
A.
What else were they doing?
Selling crack.
All nght. Now, how do you know they were selling crack”
Because you can see the sack and all that crack and all the
cocaine, powder and all that.
‘all i ls A AM SA le A dns
You know what crack looks like?
Yes.
What's it look like?
Yellow little chipped piece of - - almost look like a rock.
And when the crack is sold, is it put in some kind of a bag?
Yes.
What's that look like?
It's a iittle see-through bag with red across the top.
A little plastic bag?
Right.
. Lam going to show you a bag that I'm taking out of State's
Exhibit No. 88. Do you see that little bag there?
308
A. Yes.
Q. Is that the kind of bag that crack goes in?
A. Yes.
Q. All right. So how much of this crack did you see over there
at Bam's house?
A. A whole bag full.
Q. A bag full of it?
A. Yes.
Q. Did you see people coming to and from the house to buy
this crack?
A. Yes.
Q. And you say your Uncle Bam was selling it, too, huh?
A. Yes.
Q. What about these other two men, what were they doing?
A. One - - one, the fat chubby one, was laying down asleep,
and while the other one and Bam were - - one was making - -
making it and the other was giving it.
Q. Giving it out to people?
A. Right.
Q. They paid money for it, didn’t they?
309
A. They made it.
Q. Did you see any money when these people came to buy the
crack?
A. Yes.
Q. What happened to the money?
A. Bam took it and gave them the crack and stuff.
Q. This fat chubby fellow that was with Bam, do you know
him?
A. Bam told me his name.
Q. What was his name?
A. A.J.
Q. A.J. Had you ever seen him before?
A. No.
Q. That was the first time you saw him?
A. Yes.
Q. All right. Now, you told me that you first saw these fellows
when you came over to the house right after school, is that
right?
A. Right.
Q. Did at any time either one of those fellows that was with
Bam, did they leave the house?
310
A. No.
Q. They were there until after you left, huh?
A. They left before I - - before | left.
Q. Okay, that’s what I mean. You saw these two fellows leave
that were selling drugs with Bam?
A. Yes.
Q. Do you know where they went?
A. No.
Q. Now, did you see anybody else at Bam’s house other than
these two fellows, A.J. and the other guy and Gwen and Bam?
A. No.
Q. What did you do after you came back that second time and
you stayed at Bam's house for the rest of the evening, what
were you doing there?
A. We went - - me, my brother and Rodney went into the
playroom.
Q. The play room?
A. Right.
Q. Where were these men selling drugs from?
A. The living room.
Q. The living room of the house. Did you go in there and
311
actually see these men?
A. Yes.
Q. Did you get a good look at them?
A. No.
Q. No. How do you know that this was AJ.?
A. Because the guy that had natural hair went over to wake him
up, he was calling him his name.
He kept calling his name?
Yes.
You said Bam called him A.J., too?
When he left.
So two people were calling this chubby man A_J.?
Yes.
> 2 FF GB FF &
Q. Now, this guy with the natural hairdo, he is the other man
that you are talking about that was selling drugs with Bam and
AJ.?
A. Yes.
Q. Had you ever seen him before?
A. No.
Q. Do you know his name?
312
A. No.
Q. Did you go home that night from your Uncle Bam's house?
A. Yes.
Q. How did you get home, do you remember; walking or
getting a nde?
A. Walking.
Q. Who walked with you?
A. Bam and my bother and that’s it.
Q. And what happened then once you got home?
A. My brother did his homework. He was about to go in there
to watch TV but he got in the bed, and I was already in it.
Q. You were already in bed?
_ A. Right.
Q. Did you go straight to bed when you got home?
A. Yes.
Q. Did you see anybody over at your house?
A. Yes.
Q. Who was over there?
A. My mom, Don and a guy with black.
r © ? @ ? @ ? @ Ff @& Pf? CO Pf CO Ff 8.F F
313
With what?
With black, a black suit on.
Okay. Had you ever seen him before?
No.
What were they doing over at the house?
Playing cards and smoking cigarettes.
Smoking cigarettes?
Yes.
Are you sure they weren’t smoking cocaine?
Yes, I’m sure.
And it was just the three of them there then?
Yes.
Now, did you go to sleep?
Yes.
And did you later wake up?
Yes.
When you woke up, what caused you to wake up?
My brother.
314
What did your brother do that made you wake up?
Pushed me out of the bed.
He pushed out of the bed?
Yes.
What for?
, ee: ? &
. Because he - - somebody made a - - the door made a loud
slam and he woke up and pushed me out of the bed to wake me
up.
Q. And what happened then after your brother woke you up?
A. I got back in the bed and laid down because | seen a guy go
into the bathroom and then he came out and al! | heard is
someone fall to the ground.
Q. Now, this guy that went in the bathroom, had you ever seen
him before?
A. No, I don’t think.
Q. You say you heard somebody fall down?
A. Yes.
Q. Were you able to see who that was?
A. No.
Q. Did you hear anything else, other than this person falling
down?
315
A. No.
Q. What did you do then, after this - - you heard this person fall
down?
A. Stayed still.
Q. How come?
A. Because - - because if | would have got up to look, | was
afraid they might come in there and do something to me.
Q. You were afraid that who was going to come in?
A. All of them, all three of them.
Q. Well, did you see somebody other than the man that you
saw go in the bathroom?
A. No.
Q. Okay. Not yet, huh?
A. Right.
Q. He is the only one that you saw so far, is that nght?
A. Yes.
Q. Did you later see some other men, other than the man that
you saw go in the bathroom?
A. Yes.
Q. All right. These other two men, what did they look like?
316
A. One was fat, chubby, had on yellow and black gloves with
a black jacket, and one | think had natural hair, had on a
burgundy jacket and had on gloves and had on jeans.
Q. Now, these two men, Deonte, that you have just described,
had you seen those men before?
A. Those two.
Q. Where did you see them before?
A. Bam’ :.
Q. When did you see them at Bam's?
A. When we came home - - when we came over there after
school.
Q. The same night?
A. Yes.
Q. These are the two same men that you had just seen playing
cards and dealing drugs at Bam’s house?
A. Yes.
Q. Now, what did these three men do?
A. What do you mean?
Q. Did you see what they did after they came in your house?
A. No.
Q. What did you do?
317
A. After my brother pushed me out of the bed, | was about to
go look to see who it was but my brother told me to get back
into bed, so | did.
Q. And you told me you were scared, too, is that nght”
A. Yes.
Q. You told me about the man that you saw going into the
bathroom. Where did you see thee other two men, the fat
chubby man and the man with the natural hairdo?
They were standing by the door.
By what door?
The one by the bathroom.
The one near the bathroom?
re @. - 8?
Yes.
Q. All nght. | am going to show you a picture, actually it’s a
diagram of your house. This is State’ s Exhibit No. 1, and this
is the front door and the living room and the dining room and
the kitchen and the two bedrooms. Do you see that?
A. Yes.
Q. Does that look like the house you used to live in at 4201
Prospect?
A. Yes.
Q. Show Judge Hanna where you and Raymond were sleeping,
318
what bedroom were you in?
A. (Indicating).
Q. And point to where you saw these two men, the fat chubby
A. (Indicating).
Q. Right in that hallway there?
A. Yes.
Q. All right. What were they doing when you saw them there?
A. One was looking in this room and one was looking at me
and Raymond.
Q. One was looking at you and Raymond.
A. Yes.
Q. Did he say anything to you?
A. Yes.
Q. What did he tell you?
A. When I was about to get back up, he told me to lay back
down.
Q. Which one of the two men was that that talked to you, the
fat chubby one or the one with the natural hairdo?
A. Natural hairdo.
319
a
Q. All right. What did the two men do after that?
A. The guy with the natural hairdo went in the kitchen and got
a knife.
Q. Got a knife. Okay. At any time while you were in the
bedroom, Deonte, did the men come into the bedroom, any of
the three men?
A. Yes.
Q. What did they do when they came in?
A. One ripped out a cord from the fan and one went in there to
get the knife.
Q. Do you remember which of the men that was?
A. To get the knife?
Q. Yes.
A. There was three guys, and I think the guy with the Afro
went in to get the knife from the one with the natural curl,
natural hair.
Q. One of the men had an Afro, is that nght?
A. Right.
Q. Is that the man that you told me you first saw go into the
bathroom?
A. Yes.
Q. Now, at some point, did any of these men tie up you and
320
Q. And how many of the men did that?
A. Two.
Q. Do you know which ones?
A. The one with the natural hair and the one with the Afro.
Q. Did you get a good look at them when they were tying you
up?
Yes.
>
Tell me, now, were the bedroom lights on?
No.
Was there any light coming into your bedroom?
No.
How were you able to get a good look at them?
Because they were almost up in my face.
They we < real close to you?
Yes.
Did they do anything else to you, other than tie you up?
> OF? 0B FF OB FF OB PF OD
No. Later they did.
321
Q. Later what happened?
A. The guy with the natural hair went and took the knife and
stabbed my mother and | started to cry and the guy with the - -
the fat chubby one came arid told me that everything would be
all right and I was still crying so he hit me in the side of my
nead four times.
Q. The fat chubby guy hit you?
A. Yes.
Q. He is the guy that you earlier told me was named what?
A. AJ.
Q. A.J. You're sure it was him?
A. Yes.
Q. After this was all over, Deonte, did you talk to the police
officers about what happened?
A. Yes.
Q. Do you remember whether or not you told them about A.J.?
A. Yeah, I told them.
Q. Did they show you some pictures?
A. Yes.
Q. When they showed you the pictures, what did they ask you
to do.
322
A. See if that’s any of them that was in the accident.
Q. All right Handing you State’s Exhibit No. 121, have you
ever seen that picture before?
A. Yes.
Q. And who’s that?
A. Looks like A.J. to me.
Q. Is that the only picture that you picked out when the police
officer showed you pictures?
A. No.
Did you pick somebody else out?
No, it was the same picture but he had his hair cut shorter.
Okay. But you know that’s AJ.?
Yes.
Gn > DBD FF
And he’s the one that you saw the night that your mom got
stabbed?
A. Yes.
Q. Did you pick out pictures of any of the other two men?
A. No.
Q. And why not?
A. Because it didn’t look like any of them.
323
MR. BERRIGAN: Those are all the questions that |
have. Thank you, Deonte.
CROSS-EXAMINATION BY MR. HALL:
Q. Deonte, where was Uncle Bam living, what house was he
living at, do you know; can you describe it for us?
A. He was living in a white house and it was the second one
from the comer.
Q. It wasn’t the corner house?
A. Right.
@. Okay. And you went over to the second house from the
comer that night?
A. Yes.
Q. And when you got over there, your mom wasn’t there?
A. Right.
Q. And your mom never came there that night while you were
there?
A. Right.
Q. What time did you leave Uncle Bam’s house that night, do
you know?
A. No.
Q. Had you watched any TV?
A. Yes.
Q.
A.
324
What did you watch on TV?
I watched the Adam's Family and - - | can't remember the
other one.
Q. Was it dark when you left Uncle Bam’ s house to go home?
A.
Q
A
Q
A
Q
A
Q.
A
Q
A
Q
A
Q.
Yes.
. And Uncle Bam walked you home?
. Ye.
. When you got home, who was all there?
. My mom, Don, and this guy in the black.
. Was there a woman there?
. Yes.
Had you seen her before?
. No.
. Deonte, did you see the man cut your mother?
. No.
. You didn’t see that?
. No.
When the police officer showed you the pictures that day,
do you remember down at the police department - -
325
A. Yes.
©
- - didn’t you just tell him that you had seen A.J. before?
Yes.
>
Did you tel] him that A.J. was one of the men who did this?
Yes.
I show you this picture, it’s marked as State’s Exhibit No.
2. Do you recognize that man at all?
sO FF ©
Sort of.
How do you sort of recognize that man?
His curl.
What is it about his curl?
It’s short.
Okay. How is it you kind of recognize that man?
Sort of like his face. That’s about it.
What is it about his face you recognize?
His eyebrows.
Okay. How do you recognize his eyebrows?
ee Gy Oe cS a
They are sort of sticking up.
The man in that picture, have you seen him anywhere
©
326
before?
A. No, I don’t think.
Q. Why do you say he looks familiar to you?
A. I don’t know.
Q. Does he look like any of the men that were over at your
house that night?
A. A little.
Q. Which of the men does he look like, Deonte?
A. The short one with the natural hair, almost.
Q. The short one with the natural hair. Did you see him over
at Uncle Bam’s earlier that day?
A. Yes.
Q. You did?
A. Yes.
MR. HALL: No other questions.
REDIRECT EXAMINATION BY MR. BERRIGAN:
Q. Do you know the difference between jehri curl and natural
hairdo?
A. Yes.
Q. Tell us what do they look like. What's a jehri curl look
327
like?
A.‘ Jehri curl looks like little bits of string curled up. And a
natural curly hair looks like - - just looks like regular hair but
soft and curly.
Q. All mght. You know the difference between a jehri curl and
a natural hairdo, is that right?
A. Right.
Q. Do you get those mixed up at all?
A. Yes, sometimes.
Q. Sometimes. What about this guy? Mr. Hall showed you
this picture, State’s Exhibit 102. What kind of hairdo does that
guy have?
THE COURT: What picture is that?
MR. BERRIGAN: 102, Judge.
A. Acurl.
Q. (By Mr. Berrigan) That’s a jehri curl, isn’t it?
A. Yes.
Q. Now, you told me that this fellow that was at Bam’s house,
along with A.J., he had a natural hairdo, didn’t he?
A. Yes.
Q. Allright. Is that right?
328
A. Right.
Q. Does that guy have a natural hairdo?
A. No.
Q. The fellow that stabbed your mom, is that the same fellow
that told you to shut up?
A. No.
Q. No. Did the fellow that you say stabbed your mom, did he
say anything to you at all?
A. No.
Q. Is he one of the guys that tied you up?
A. Yes.
Q. Did you have a good chance to get a good look at him when
he was tying you up?
A. Not that good.
Q. Isn’t he one of the guys you told me was right next to your
face?
A. Yes.
Q. But you didn’t have a chance to get a good look at him?
A. No, not that one, but I got a good look at the other one.
Q. A.j.?
329
A. Right.
Q. You're pretty sure about A.J., aren’t you?
A. Yes.
Q. You're not sure about the other two guys because you didn’t
get a good iook at them?
A. Right.
Q. Okay. When Mr. Hall showed you that picture, you said
something about - - and I’m talking about this same one here,
you said something about that’s not it. What did you mean by
that?
A. His hair 1s sticking out and this is the way - - the way | seen
it, his hair was not out that way (indicating).
Q. Deonte, you’re sure that the fellow that you saw, the two
fellows that you saw at Bam’s, A.J. and this other guy, were the
same people that you saw at your own house, is that right?
A. Right.
Q. And these are the fellows that were playing cards with your
Uncle Bam?
A. Yes.
Q. Selling drugs with him?
A. Yes.
MR. BERRIGAN: | don’t have any other questions. Thank
you.
330
RECR, », -EXAMINATION BY MR. HALL: :
Q. Deonte, did any of the men that were over at your house and
did this thing over at your house that night, did any of them
have a jehri curl?
A. Sort of.
Q. So one of them did have a jehri curl?
A. Probably, I don’t know. io
Q. You just don’t know?
A. Yes.
MR. HALL: No other questions.
MR. BERRIGAN: I don’t have any other questions.
33]
IN THE CIRCUIT COURT OF JACKSON COUNTY,
MISSOURI
AT KANSAS CITY
STATE OF MISSOURI, CR87-1997
Plaintiff,
vs.
ROGER BUCKNER,
)
)
)
)
)
) Sept. 15, 1988
)
)
Defendant.
THE DEPOSITION OF THE WITNESS DEONTA KINNEY
produced, sworn and examined, between the hours of
8:00 a.m. and 7:00 p.m. of September 15, 1988, at the Office of
the Pubic Defender, 108 Floor Jackson County Courthouse,
415 E. 12th Street, Kansas City, Jackson County, Missouri,
before
PHYLLIS M. MAIER, CSR
Registered Professional Reporter
a notary public in and for the State of Missouri, in the
above-entitled cause; taken on behalf of the defendant.
APPEARANCES
For Plaintiff: Mr. Patrick B. Hall
Asst. Prosecuting Attorney
7-M Jackson County Courthouse
415 East 12th Street
Kansas City, Missoun 64106
For Defendant: Mr. Patrick Berrigan
332
Ms. Barbara Schenkenberg
Assistant Public Defenders
Tenth Floor, Courthouse
415 East 12° Street
Kansas City, Missouri 64106
INDEX
Witness: | DEONTA KINNEY PAGE:
Direct Examination by MR. BERRIGAN ............... 3
(None Marked)
MR.HALL MR. BERRIGAN
SIGNATURE
The witness’s signature to his deposition is waived.
DEONTA KINNEY
a minor, being produced, sworn and examined on behalf of the
defendant, testified as follows:
DIRECT EXAMINATION
BY MR. BERRIGAN:
333
Q. Deonta, I’m going to be asking you some questions, and
maybe Mr. Hall, about the day that your mom had her neck cut.
A. Uh-huh.
Q. - - way back in January of last year. Okay?
A. (The witness nodded.)
Q. And one of the things that you need to do when you’re
answering the questions is just answer Yes or No, whatever it
is that you want to say, and tell me a little bit about what it is
that you know, okay?
But there is one thing that we need to do, is that you
need to answer like say Yes and say No instead of shaking your
head, because I would shake my head usually if 1 was answering
questions. But in order for this lady to write down everything
that we say, we have to talk. Okay?
A. Okay.
Q. The other thing is that there’s no reason to be nervous. This
isn’t any kind of test or anything. Just tell us what you
remember, that’s all. Okay?
Okay.
How old are you, Deonta?
12.
What grade of school are you in?
> 2 > © >
Fifth - - | mean, Warford.
334
I'm sorry - - I didn’t hear you.
Wartord, the school.
Warford School. and you're in the fifth grade?
> O > A
Right.
You’re a year ahead of your brother, right?
> ©
Uh-huh.
And you’re smarter than him?
Yes.
Where do you live now, Deonta?
11018 Wabash.
Here in Kansas City?
Yes.
Who do you live with there?
My grandfather.
Did you say your mother and father?
My grandfather ad my grandmother.
erererere?>e
. Isee. Okay. What are their names? - - your grandmom and
your granddad.
A. Harold Kinney and Joanne Kinney.
335
Q. Did you say your grand - - let's see, your granddad, what
was his name?
A. Harold.
Q. Harold - - that’s my dad's name. Harold Kinney, okay.
And your mom's name is Carol Kinney, nght?
A. Right.
Q. Do you remember that day that - - | guess it would be that
night that your mom got her throat cut?
A. Yes.
Q. We seem to think that was a Monday. Is that how you
remember it, is that a day that you went to school?
A. Yeah, it was a day | went to school.
Q. Tell me about what you did after school that day.
A. That day after school me and my brother walked over to my
uncle's house.
Q. What's your uncle's name?
A. Bam.
. Bam Kinney?
. Yeah.
Q
A
Q. Does he ever call himself Ben or Benjamin?
A
. Calls himself Benjamin, and sometimes Ben.
336
And he also goes by Bam, too; is that ngitt?
Yes.
Is that what his frends call him?
> OD FF
Yes.
Q. Do you know where he lived back then.
A. No.
Q. Was it near your school?
A. Yes.
Q. How did you know to go over there after school?
A. The morning before - - that morning, when my mom was
walking out the door, she gave me a letter to give to the
principal.
Q. What did the letter say?
A. For me and my brother to go over to my uncle's house.
Q. And did just you and your brother walk over to your uncle’s
after school?
A. Yes.
Q. How come you needed a letter for the principal?
A. Because for my - - for them to call my uncle for my uncle to
know that we were coming over.
337
I see. After school was out?
0
>
Right.
Q. What time did you = out of school back then?
A. 3:30.
Q. And did you go right over to your uncle’s without stopping?
A. Yes.
Q. What did you do once you got over there?
A
. Me and my brother - - yeah, we did our homework, and
went back - - and then we went up to the park.
Q. Now, when you went over to Bam’s with your brother
Raymond, who was over at Bam’s house?
A. About three guys.
Q. Do you know who they were?
A. One chubby one, one tall and skinny, and one short one with
the curl.
Q. The chubby man, what was his name?
A. I think his name was A.J.
Q. And had you ever seen him before?
A. No. That was the first day.
Q. The man that was tall, did you say he was tall and skinny?
338
>
Yeah, and had an Afro.
An Afro style haircut?
Yeah.
Was it a long Afro or a medium or a short one?
I'd say it was a medium.
Do you know his name, the man with the tall, skinny body
the medium Afro?
No.
Had you ever seen him before?
No.
When you say he was tall, was he taller than Bam?
No, about the same size.
He was taller than the chubby man?
ro. ore S ee UP hme UP
Yeah.
Q. What about the shorter fellow with the curl? Let me firs
ask you, what do you mean by a curl?
A. He had a jerri curl.
Q. A jerri-curl haircut?
A. Yeah.
339
Q. Do you know his name?
A. No.
Q. Had you ever seen him before?
A. No. That was the first day.
Q. And these three men were all over there with Bam or were
they there by themselves?
A. With Bam.
Q. What were they doing, Bam and these three men?
A. They were playing cards.
Q. Was there anybody else over at Bam’s house when you and
ee ee
A. No.
Q. You say that after you got to Bam's you did your
homework; is that right?
A. Right.
Q. Did somebody watch you do that or tell you to do your
homework? |
A. We did it on our own, but those three guys were watching.
Q. Then after you did your homework where did you go?
A. Up to the park.
340
. Who went up to the park?
. Me and my brother and Bam’s son.
. Do you know Bam’s son's name? _-
Rodney.
. How old is Rodney? =
. He was three.
> © > 0
Does Bam have a son named Ronnie?
> © > ©
Yeah - - that’s his name. | get his name mixed up.
is it Ronnie or Rodney?
> ©
Ronnie.
Does Bam have any other children?
Yeah, a little girl.
What’s her name?
Jasmine.
Jasmine?
Yes.
So Ronnie was over at Bam’s house then, too; is that right?
Right.
> DF DF BP FF
Q.
34]
Was there anybody else, then, other than the people you've
already told me about?
A.
Q.
>» #2
a
>
>
No.
Was Bam’s wife or girlfriend there, Gwen?
. Yeah, but she was next door at her mother’s house.
Do you know her mother’s name?
Does Dorothy, does that ring a bell?
Yeah, Dorothy.
Dorothy; is that right?
Yeah.
That’s Gwen’s mother?
Right.
Do you know what Dorothy and Gwen were doing?
No.
Where was your mom when you went over to Bam's house?
At work.
Do you know where Don Wright was?
No.
How long did you stay up at the park?
A. About an hour.
Q.
A.
And then what did you do after you left the park?
Me and my brother and Ronnie went back home, down to
Bam's house, to get a drink, but only those two went back up to
the park after we got a drink and I stayed in to watch television
with Bam.
Q.
So you and Raymond and Ronnie all came back to get a
drink, then Ronnie and Raymond went back to the park and you
stayed at Bam’s house?
A.
ono > OD FF DB FF
Right.
You say you watched television?
Right.
Do you remember what you were watching on TV?
The Addams Family.
The Addams Family . What channel are they on anymore?
I don’t know.
. You don’t know? Okay. Who were you with then when
you were watching television at Bam's?
A.
Q.
A.
I was sitting on the couch, nght next to Bam.
So Bam wasn’t playing cards anymore, then?
No. He quit.
343
Q. What about the other three men, were they still playing
cards? '
A. Yes.
Q. Who was playing now that Bam had left?
A. Only - - only the three guys. But then they started to
arguing.
Q. What were they arguing about?
A. About who was winning or not - - who was winning or not.
Q. And the only one of the three that you knew the name of
was this A.J. guy?
A. Right.
Q. How did you find out his name?
A. Because the - - that day, when they were abou. .0 leave,
there was a blue Trans Am pulled up and this girl and this other
guy got out of their truck - - 1 mean, the car, and then came in
the house.
And then when - - | was watching TV, and the girl said,
Let’s go A.J. So A.J. got this bag that was full of money and
went and got into the car.
Q. And the girl was talking to this chubby fellow that you had
seen playing cards?
A. Right.
Q. And he got up and went with her?
344
A. Uh-huh.
Q. Yes or No?
A. Yes.
Q. That’s another thing we talked about earlier. You answered,
but you have to say Yes or No, okay? It’s kind of like a game
that we play. | understand what you mean ut it’s just so that
we can get it down nght. Okay?
A. Okay.
Q. So you found out who A.J. was when this girl came over
with this guy out of a blue Trans Am, right?
A. Right.
Q. Let’s go back to when you were watching television, for a
second, with Bam. Okay?
A. Okay.
Q. Who was at the house at that point other than Bam and you
and the three men that you had seen playing cards?
A. That was probably it.
Q. Did you watch any shows other than the Addams Family?
A. No.
Q. What did you do after you watched the Addams Family?
A. Went outside to see what my brother was doing.
345
Did you go back to the park?
No.
Where was your brother when you went outside.
> O> ©
They were up on a hill, playing around.
So they had left the park, then?
Yeah.
+O > ©.
. Did you play with them outside for a while, or did you come
right back in?
A. I told them to come in, because it was getting dark, and so
they came in.
Q. Now, when your brother came in with Ronnie - - there was
you and your brother, Raymond, and Ronnie, the three men, and
Bam still in the house, right’
A. Right.
Q. Did anybody else come into the house during the course of
the evening?
A. Yeah. Gwen.
Q. Was Gwen the next person that came?
A. Yes.
Q. Gwen came over from next door; is that nght?
—s
A. Yes.
346
Q. Did anybody give you any food to eat?
A. No.
Q. What did you guys do after Ronnie and Raymond came
inside?
A. We didn’t do anything, because it was almost time for me
and Raymond to go. So we went into the playroom, played for
a little bit.
Q. Played in the playroom?
A. Right.
Q. During the time that you had a chance to see these three men
playing cards, and Bam, did you see anybody selling anything?
A. Yeah, the three men.
Q. What were they selling?
A. That crack and cocaine.
Q. You know what that is, crack cocaine?
A. Yeah, it’s that powdery stuff, and the crack is the hard rocky
stuff.
Q. The cocaine is kind of white powder, is that right?
A. Right.
Q. And then you say the crack is - - what does it look like?
A. It’s sort of little yellow, and it looks like pieces of rubber,
347
but it isn’t.
Q. Kind of like a small piece of rubber or a rock?
A. Yeah.
Q. But it’s yellow.
A. Right.
Q. What does it come in? Does this come in a bag of some
type?
A. Yeah, it was a small - - it was like, you know, Reynolds
stuff that - - you snap this shut. They used those. But they were
smaller.
Q. Those teeny-tiny little plastic bags?
A. Right.
Q. They look like the kind of bags that you would put your
sandwich in, right, they'd have a zip-loc top; is that right?
A. Right.
Q. Only they're just little ones.
A. Yes.
Q. These men that were selling the crack cocaine, who were
they selling it to?
A. About to everybody that they seen, almost. They asked
them, and then the people would probably say Yes, because |
seen them selling it to people that was in cars coming up our
348
block. Some people got out of the car and came up to the house
and rung the doorbell, because they already new that they were
selling it.
Q. Did you know before you went over to your Uncle Bam's
house that day that that’s something that took place at that
house, that people sold drugs there?
A. Yes.
Q. How long had that been going on, the best you know?
A. About two or three weeks.
Q. Had you ever been there before when people were selling
drugs at Bam’s house?
A. Yes.
Q. And you say that people came up in cars and they would get
out? And what would they do?
A. Come up and ring the doorbell, and Bam would answer it.
Q. Was it always Bam that answered the bell?
A. No.
Q. Who else answered?
A. The other guy - - I've forgotten his name. Gwen would
answer the door, or Gwen's mother.
Q. So either Dorothy or Gwen or Bam - -
A. Uh-huh.
349
Q. -- or some other guy?
A. Right.
Q. This other guy, was that one of the three men that you saw
playing cards?
A. No.
Q. Some other fellow?
A. Right.
\Y. He wasn’t there that night?
A. No. Sometimes - - selling wasn’t going on at Bam's house,
it Was going over at Gwen's mother 's house.
Q. I see. So nobody was coming up to Bam’s house, they were
going over to Dorothy’s house?
A. Right. Because Dorothy was the only that was selling it,
making the stuff, and Bam was just giving it to them.
Q. Bam was the one that gave it to the customers?
A. Right.
Q. How was Bam able to do that if he was over at his house
and Dorothy was making it over at her house?
A. You know, sometimes - - you know, Gwen’s mother would
call over at Bam’s house and tell - - and Gwen - - Gwen would
tell Bam to come on over because they have customers and
because they wouldn't - - because Gwen and Dorothy were
never sure that - - they didn’t want to be seen. They were just
350
back there making it, and they would always tell Bam to go in
there and give it to them.
Q. I see. The night that we’re talking about, did Bam have to
leave his house and go over to Dorothy’s to sell some of this
cocaine?
A. No. Only the people that was there were selling it.
Q. The people that were where?
A. You know, the three guys. They were the only people that
were selling it that night.
Q. Now, I'm a little confused, because these three guys that
were playing cards and selling the cocaine, weren't they over at
Bam’s house?
A. Right. You know, after the customer leaves from Dorothy’s
house, Bam would go back over to his house, after a few
customers come.
Q. And these other men, they would do the same, go over to
Dorothy’s , and then come back?
A. No, they'd stay. But then they would tell Bam - - they
would stay at Bam’s house unti! Bam run that stuff that they
make over at Bam’s house over to Gwen’s house, so Bam was
the one that was giving - - they were telling Bam to give the
stuff to the customers.
Q. And where were these men getting this cocaine?
A. I don’t know.
Q. Did they have it with them?
35F
A. Yes.
Q. And they would just give it to Bam and he’d go over to
Dorothy’s and give it to people that came up to her door?
A. Yes.
Q. Was Bam bringing back any money for these men?
A. No. They would tell - - they would tell Bam to keep the
money over at Gwen’s mother’s house.
Q. I see.
A. They keep it in this big box.
Q. And you’ve seen this box of money?
A. Yes. Well, it ain't quite a box. It’s a big sack that stands
like that (indicating).
Q. How much money was in there?
. It was $20 bills, 10's and 5's and 1's.
How big of a sack is it?
> © >
About like that (indicating).
Is it as big as a grocery sack, like this (indicating)?
Yeah, but it had a handle on it.
It had a handle on the top?
> Oo - A
Yeah, a stringy handle.
352
Q. Is it the same size as that kind of a sack?
A. Yes.
Q. Full of money?
A. But it was supposed to - - you know, it was a sack that had
- - you know, when you get clothes, they put them in that kind
of sack, and they have a handle.
Q
> oO > OF OB F&F Oo PF A
That you can carry?
Yeah. They had it in that.
But is it the same size as this (indicating)?
Yes.
Was it full of money?
Yes.
Did you see it on the night that your mom got stabbed?
Yeah, it was the same night.
And was it fully of money that night?
Yes.
Well, when Gwen came over from Dorothy’s, what did she
come over for?
A. To feed her baby and give Ronnie some supper, because me
and Raymond didn’t want any. :
353
You didn’t want any food?
Huh-uh, because it was about time for us to go home.
How did you know when you were supposed to go home?
> © > ©
My mother called.
] see. Did she call Bam’s house?
Yes.
Oo >
Did you talk to her?
A. Yes. She said for me - - she said we have school in the
morning, so tell Bam that we’ve got to go home now.
Q. Do you know what time it was, Deonta, when your mom
called?
A. Yes. It was about 6 or 6 after - - 1 mean - - yeah, 6 after 6 -
- | mean 6 after 9.
Q. 6 after 9?
A. Yes.
Q. How do you know what time it was, how do you remember
that?
A. Because you can see off the clock at Bam’s house.
Q. When you were on the phone, you could see the clock?
A. Yes. |
ll la
354
Q. I guess what | mean is How you remember that so clearly
that you - -
A. I don’t know.
Q. You just - -
A. Because I can remember when my mother called.
Q. Okay. What did your mom tell you about when she was
coming to get you?
A. She said we had school in the morning, and she didn’t want
us staying up so late, so we had to go home.
Q. Now, getting back to these three men that were playing
cards and selling crack cocaine, did you have an opportunity to
hear some of the men talk to each other?
A. Yeah, A.J. had - - you know, the fat, chubby one?
Q. Yes.
A. He had - - he had a gun right there where he was sleeping on
the couch, because he fell asleep.
And then you can hear - - you can smell the cocaine and
crack that they were burning, because Bam came in there and
said that the police were coming, so they shut the door on
Bam’s-leg almost, but Bam got out of the way in time and they
locked it - - the door.
So me and Raymond ran in the playroom, locked the
door, and kept it shut, and put something - - something under
the door for them to make - - getting the smell in the door.
355
Q. When did all that happen when Bam said the police were
coming?
A. They hurried up and took almost all of the crack out of the
bag and put it on - they put it in this kind - - this pipe, and they
put it on the stove, and they just cut the stove on high and it
burned it.
Q. Did they do that on purpose?
A. Yes.
Q. Why did they do that?
A. Because they didn’t want the cops catching them.
Q. They were trying to get rid of this crack cocaine?
A. Yes.
Q. You say that you could smell the cocaine. Could you smell
it before they started to burn it?
A. No, you could smell it coming through the doorway, even
though you put something there.
Q. But that was only after they tried to burn the cocaine when
Bam said the police were coming?
A. Right.
Q. Do you know why Bam said the police were coming?
A. Yeah. Because the police cars going up the street, tuning
around and come down the street, they keep doing that, and the
helicopter kept flying over Bam’s house.
356
Q. Have you ever seen the helicopter flying around with its big
light - -
A. Yes - - yes.
Q. Did it have its lights on Bam’s house?
A. Yes.
Q. Do you remember if that was before or after your mom
called on the telephone?
A. After.
Q. After?
A. Yeah, and Bam knocked on the door when the police went
away - - he said, Yeah - - he said that It’s about time for you
guys - - you guys should be in bed already, so get going. So me
and Raymond said goodbye to Ronnie and went out the door to
walk home.
And then we got home, and there was my mom and Don
and this other guy playing cards.
Q. All right. Now, before we get to that, | wanted to ask you
a question about these three men that we selling the crack
cocaine and playing cards.
I asked you if you had a chance to hear them talk - -
A. Uh-huh.
Q. -- and you told me about A.J., night?
A. Right.
Q.
357
Do any of those men have any strange accents? Do you
know what an accent is?
A.
Q.
Huh-uh.
Do they talk funny?
A. Yes. They almost talk like us, but has this weird voice in it.
They almost. But their words don’t come out quite like ours.
Q.
2 > © > © >
Could you imitate how they talk?
Huh-uh.
No?
Huh-uh.
Had you ever heard anybody else talk like that?
No.
Do you yourself know anybody that’s from Jamaica or
people called Jamaicans?
A. No, I don’t know anybody else except for A_J.
Q.
How do you know that A.J. is Jamaican?
A. Because Bam told me that - - he said, you know, when we
were coming home, there was - - there was three dudes - -
people were there.
So I went over to Bam’s, I asked, Who is coming - -
who is getting out of the car, and he said, Oh, be a couple of my
Jamaican friends.
358
Q. When did you have this conversation with Bam?
A. Right when we got in the door, we seen the three - - the
three people getting out of the car.
Q. And they were going to Bam’s?
A. Righit.
Q. This is when you and your brother, Raymond, first got over
to Bam’s house?
So | went over to Bam to ask him who was that.
And what did Bam say?
A couple of my Jamaican friends.
But there were three men, weren’t there?
I know - - but he meant to say three.
Did they all talk the same way?
> DOD &F DB F&F BD
No, not - - only one of them did. It was the one with the
curl.
Q. The one with the curl?
A. Right.
Q. Did he talk funny - -
A. He talked like us.
Q. He talked regular - -
359
A. Right.
Q. -- and the other two men, they talked kind of funny?
A. Right.
Q. And Bam told you they were his Jamaican friends?
A. Right.
Q. But one of the men didn’t talk funny?
A. He didn’t talk - - so | was right the first time about the
couple, only two was talking Jamaican, one was talking regular.
Q. You were right, when Bam said a couple of my Jamaican
friends, only two of the men talked funny?
A. Right.
Q. And Bam told you one of those guvs - -
A. Were not. He said, Two are Jamaican and one is regular.
Q. Now, the regular guy, the guy that talked regular, was he the
man with the jerri curl - -
A. Right.
Q. - - or was he A.J. or was he the tall, skinny man with the
Afro?
A. He was the one with the curl.
Q. The jerri curl?
360
A. Yes.
Q. And you say that A.J. and the tall skinny man with the Afro,
they both talked funny?
A. Right.
Q. And those are the people that Bam indicated to you were
Jamaicans?
A. The one that was tall, | think he talked funny, because it
sounded like he does.
The one with the jerri curl tried to talk like the
Jamaican, but me and my brother knew he wasn’t, because you
can tell, when he came in - - first he was trying to talk like one,
because he had the knife up to Don’s throat. And when he came
in to get the knife, he said, Let me have the knife. So I knew
that he wasn’t Jamaican.
Q. Now, you’ve jumped ahead of me quite a bit there. | was
talking about the three men that were over at Bam 's.
A. Uh-huh.
Q. Are those the same three men thai came over later in the
night at your house?
A. Yes.
Q. Are you sure about that?
A. Ye.
Q. You're telling me that the three men that you saw at Bam’s
house, playing cards, are the same three men that came over to
36]
your house?
A. Yes, they might be.
Q. What do you mean, they might be?
A. Because the jerri-curl - - the one with the jerri curl looks
exactly the same as the one that came over to our house, and the
one that was skinny, had like bellbottoms and an Afro, he was
the one - - he looked exactly like the one that came to our house
but had on different clothes, because they had left right when
we went out the door.
Q. When you and Raymond left Bam’s, these other men left
Bam’s?
A. Right.
Q. Did you see how they left his house, Bam’s house?
A. No. We- -I didn’t pay any attention. | just kept walking.
Q. Now, you told me that, as you remember it, when you left
Bam’s, you and Raymond just walked home?
A. Right.
Q. You're sure that your mother, Carol, didn’t come over and
pick you up?
A. She didn’t come and pick me up because our house wasn’t
far from Bam's.
Q. And you and Raymond walked home alone, then; is chat
right?
A. Right.
@. When you got home, who was there at your house?
A. Only - - only Don, my mom, and this other guy.
Q. Do you know the name of this other guy?
A. No.
Q. Now, at that time you were living where? ,
A. On Prospect somewhere, | don’t know - -
. Is that 4201 Prospect? |
. Yes.
Q
A
Q. On the corner of 424 Street and Prospect?
A. Yes.
Q.
This other man that was there at your house with Don and
your mom, Carol, had you never seen him before?
A. No.
Q. And you don’t know his name?
A. No.
Q. Now, what were they doing when you and Raymond came
in?
A. They were playing cards.
363
And what did you do when you and Raymond got home”
We had - - we had to go straight to bed.
And did you go straight to bed?
Yes.
Did you go to sleep?
I did, but my brother couldn't sleep.
DF? © FF? © FF
. How do you know your brother couldn't sleep if you were
asleep?
A. No, he - - he woke me up right almost in the middle of the
night.
Q. Okay.
A. But my mother was still awoke.
Q. When you went to bed, you and your brother, you're telling
me that you fell asleep right away?
A. Right. Not right away, but it didn’t take me long.
Where were you sleeping then? -
In my mother’s room.
What color is her room?
It's white. -
o +» OB FF 2
The walls are white?
364
A. Right.
Q. Where is that located in the house?
A. It’s the room night in back of the living room.
Q. Now, you kind of had two living rooms in that house, didn’t
you?
A. Yes.
Q. Is one in the front of the house, when you come in the front
door - -
A. And one in the side.
Q. And one in the side?
A. Right. And there’s a little doorway nght there in the one on
the side, you can go straight in there where the bedroom was.
Q. Okay. So this bedroom was night behind the living room
that’s on the side of the house?
A. Right.
Q. When you went to bed, and you last saw your mother and
Don Wright and this other man, what were they doing?
A. All they were doing was playing cards and talking.
Q. Could you tell me what room they were in?
A. Seen? < PD <a ee the
one in front.
365
The front living room?
Right.
You woke up during the night; is that nght?
My brother woke me up. ey
How did your brother wake you up?
He kept shaking me unti! I woke up.
Did he say anything to you?
Yes.
2 > 2 > 2 > ©?
What did he say?
A. He told me that he couldn't sleep. So I said, Just go in there
and tell mom that you couldn’t sleep. And so he went to tell
mom. And she just said, Lay down in the bed and just shut your
eyes.
So Raymond tried it. Then he got some sleep. And then
when we heard the door bust open, he woke up.
Q. When Raymond went in to talk to your mom about not
being able to sleep, did you go with him or stay in the bedroom?
A. Stay in the bedroom.
Q. And he came back to the bedroom then?
A. Right.
Q. And went to sleep?
366
A. Right.
Q. Did you go to sleep, too?
A. | was already asleep.
Q. So you just woke up when your brother told you that he
couldn't sleep, and then you went back to sleep?
A. Right.
You never got out of bed. Right?
Right.
Okay?
Right.
You woke up again later; is that nght?
Yes.
How did you wake up this second time?
Raymond - - this time Raymond pushed me out of the bed.
He pushed you out of the bed’
Right.
Did he say anything to you when he did that?
> © fF 6 * @ F © + Oe 6
. Yes. He was scared, so he jumped like (indicating) - -
just made a sudden jump and pushed me out of the bed. So on
woke me up, and told me that someone was in the house.
367
So | got back in the bed and acted like I was asleep.
Q. Why did you do that?
A. Because | didn’t want to - - 1 didn't know who it was and |
was trying to go back to sleep.
Q. Did you see anybody at that time, Deonta - -
A. No.
Q. - - when Raymond said something had come in the house?
A. No. I didn’t get up.
Q. You just went and pretended you were asleep?
A. Right.
Q. Were you - -
A. | was about to get up until this guy came and looked in the
bathroom, and then | was about to get out of bed, he said, Lay
back down, so I got back into bed.
Q. Now, that man that looked into the bathroom, did he come
into the bedroom?
A. Yes.
Q. What did he look like?
A. That was the tall one with the Afro.
Q. And what kind of clothes did he have one?
368
A. He had on - - I think a black jacket. And they all had gloves
on.
Q. I think you told me earlier that one of the men had changed
clothes from the time that you saw him.
A. They all did.
Q. They all did. All right.
A. Right. Because when A.J. came in - - when | saw A.J., he
had one some dress pants, some dress shoes, and a dress shirt.
Q. Now, when was he wearing the dress pants and dress shirt
A. When he was over at Bam’s, playing cards.
Q. Okay. And then you saw him again later at your h- use?
A. Right.
Q. What kind of clothes can AJ. have on then?
A. He had on a black jacket, | think some jeans, and he had on
yellow biking gloves with the fingers cut out.
Q. The man that came into the bedroom first, the first man that
you saw when you woke up after your brother pushed you off
the bed, he had on a black jacket and gloves, is that right?
A. Right.
Q. Do you remember what color gloves he had on?
A. Black.
369
Q. This jacket, do you know what kind of material it was made
out of?
A. | think it was leather or something.
Q. Have you seen black leather jackets before?
A. Yes.
Q. Do you know what they look like?
A. They feel kind of - - they feel like - - like those kind of
books right there, the red, they feel like those.
Q. This kind of book here (indicating)?
A. Yeah, but it’s smoother.
Q. Smoother. Okay. Did the tall man with the Afro, with the
black jacket and the black gloves, did he have any kind of facial
hair like a mustache or a beard or anything like that?
A. I can’t remember that. All I can remember is his hair.
Q. He’s one of the men that you told me earlier talked funny,
like a Jamaican; is that right?
A. Right.
Q. Was he still talking that way when he told you to get back
in bed or be quiet or whatever he said to you?
A. When he said Be quiet, he didn’t sound like Jamaican.
Q. Did you ever hear him say anything else while he was over
at your house - -
370
A. Yes. --
Q. -~- on Prospect?
A. No. | think that’s it. Yes, that was all he said, because he
was busy ripping out the cord to the fan and getting tape from
the other room.
Q. The fan that he was taking the cord off of, where was that
located?
A. In the bedroom where we were.
Q. Did he do that nght then when he was telling you to be
quiet?
A. No.
Q. When did he do that?
A. He did it after he looked in the bathroom and then he came
back in the room. And then he ripped out the cord.
Q. Did he do anything else when he first came in the bedroom
other than to tell you to be quiet?
A. No.
Q. Why was he telling - -
A. Yes.
Q. What?
A. When he sliced my mother's neck, he dragged her - - he
dragged her in there, turned up the TV real loud.
37}
Q. Wasn't that later on?
A. Right.
Q. I'm going to get to that in just a minute. But when he first
came in the room and told you to be quiet, did he do anything?
A. Yes. He went to use the bathroom. That’s it.
Q. He went to use the bathroom?
A. Right.
Q. Could you tell whether or not he used the bathroom?
A. Yes. You can hear it, and you could hear him flush the
toilet.
Q. Do you remember what kind of pants that man had on?
A. Huh-uh.
Q. No?
A. No.
Q. What about his shoes, do you know what kind of shoes he
had on?
A. No.
Q. But you do remember that it was the black leather jacket and
some black gloves?
A. Right.
372
Q. After the man came in and told you to be quiet, what's the
next thing that happened?
A. This guy - - the man with the curl had - - had a knife up to
Don’s throat.
Q. Now, were you able to see Don from where you were in the
bedroom?
A. No. But I could - - afterwards, you - - - - | can tell that part
later.
Q. How did you see this man with the curl with the knife up to
Don’s throat?
A. You could see him when he went to get the knife from the
kitchen...
Q. You saw the man with the jerri curl get the knife out of the
kitchen?
A. Right.
Q. And you saw that from where you were in the bedroom?
A. Right.
Q. Were you still in the bed?
A. No.
Q. Where were you?
A. They told me and my brother to stand up and get against the
wall.
373
. Who told you that?
. The skinny one.
. Afro.
Q
A
Q. The man with the - -
A
Q. -- Afro. All right. And you got up and stood against the
Ww
A. Right.
Q. And this was in the bedroom still?
A. Yes. And then - - yeah. Then they took the wire, wrapped
it around both of my brother's feet, and then they did me the
same. And then they took an even longer one and wrapped it
around both of ours.
And then they wrapped our hands, like one of
my hands were attached to Raymond's and one of - - and the
other one was attached to Raymond's. -
Q. I want to try to get this in order, I mean, what happened first
and then happened second and then third. Okay?
A. Okay.
Q. Let me ask you this. After the man with the Afro came in
and told you to be quiet, what is the very next thing that
happened?
A. The very next thing that happened. Yeah, you can hear Don
keep telling the man that he doesn’t have any money.
Q. Could you hear the man saying something to him?
374
A. Yes.
Q. What was the man saying?
A. He said, Don’t be giving me that stuff. And then - - he had
the knife up to Don's throat, and then Don said, Don't kill me,
so he sliced his neck.
Then the other guy picked him up just to make sure.
Q. I'm going to interrupt you right now. Did you see the man
cut Don's throat?
A. No. You can hear - - you know how people yell, and then
the spit come sup and - - then you can hear them holler and the
spit coming up at the same time.
Q. And you could hear that taking place but you couldn't see
them?
A. Right.
Q. Could you tell from where the voices were coming from
where Don was?
A. Yes.
Q. Where was he?
A. In the room right when you come in the door, the first one.
A. The front living room?
A. Right.
Q. And then at the time that you heard this, what you think was
375
Don's throat being cut, could you see any of the three men?
A. I could only see one.
Q. Which one could you see?
A. The tall one.
Q. The tall man with the Afro?
A. Right.
Q. What was he doing at the time that you heard Don yelling?
A. Standing - - sometimes he would look there where my
mama was and sometimes look in the bedroom, so he kept
going back and forth.
Q. But he wasn’t in the front living room?
A. No.
Q. You also said something about one of the men having a
knife; is that right?
A. Right.
Q. Which of the men had the knife?
A. The one with the jerri curl.
Q. And did you actually see the man with the jerri curl get the
knife?
A. Right.
376
Q. When did you see that take place?
A. Right when he came in the door.
Q. Did he come in the door after the man with the Afro came
in and told you to be quiet? -
A. They all came in the door at the same time, but they
scattered out. One - - two were in the front room and one went
and looked in the bathroom and then came in there where we
were, me and my brother was.
Q. All right. That's the man that you've said is the tall man
with the Afro; is that right?
A. Right.
Q. When the man with the jerri curl got the knife from the
kitchen, was that before or after you heard Don yelling?
A. Before.
Q. What kind of clothes did the man with the jerri curl have
on?
A. I can’t remember him.
Q. You can’t remember him?
A. I can remember his jerri curl, but 1 can "t remember the
clothes he was wearing.
Q. Do you remember the clothes that he was wearing earlier in
the evening, when he was over at Bam’s house?
A. Yes.
377
Q. What--
A. He had on jeans - - I can't remember his shoes, but he had
on jeans and a short-sleeved white shirt.
Q. And if] understand you correctly, these three men were over
at Bam's house the whole time that you were over at Bam's
house; is that nght?
A. Right.
Q. The man that had the jerri curl and the jeans and the white
shirt, are you sure that he changed clothes when he came over
to your house?
A. I'm not sure about him, but | think the other two, they did
change their clothes.
Q. Do you remember whether or not the man with the jern cur!
had on gloves when he came over to your house?
A. Yes, he had on gloves.
Q. What kind of gloves did he have on?
A. Black. Two had on black, and one had on yellow.
Q. And it’s A.J. that had the yellow gloves.
A. Right.
Q. When you heard Don yelling and then this sound that you
heard, could you see where your mom was and see the other
man that was in the house earlier with your mom?
A. No.
ee ee ee ee ee ee
378
Q. Were you able to see from the bedroom this side living
room?
A. Yes.
Q. And your mom and the other men were not in that room?
A. Huh-uh, no.
Q. Yes or No?
A. No.
Q. What's the next thing that you saw or heard after you heard
Don telling and then what you think was his throat being cut?
A. I heard a gun.
Q. You heard a gun?
A. Yeah. But not - - it didn’t go off. It - - it sounded like it hit
somewhere.
Q. How do you know it was a gun?
A. Because A.J. was carrying a gun in his jacket, he had it
inside his jacket, a pocket in the jacket (indicating).
Q. You saw him carrying a gun while he was at your house?
A. Right.
Q. What did the gun look like?
A. Brown.
379
Q. The whole gun was brown?
A. No, just the handle.
Q. The handle.
A. And the other part of it was black.
Q. You told me earlier that you had seen one of the men with
a gun when they were at Bam’s house; is that right?
A. Yes. Two of them.
Q. Two of them?
A. Right.
Q. Which of the men had guns when they were at Bam’s
house?
A. The one with the curl, and his gun was silver. And A.J. was
using the other-guy-with-the-Afro’s gun, which was silver, and
the guy with the Afro took A.J.’s gun and put it in his pocket of
this coat, his jacket pocket.
Q. How did you know that the gun that A.J. was using at
Bam’s house belonged to the man with the Afro?
A. Repeat that over.
Q. Sure. You told me that when these men were at Bam’s
house, two of the men had guns, right?
A. Right.
Q. And you told me that the man with the jerri curl, when he
380
was at Bam’s, he had a silver gun; is that right?
A. Right.
Q. Now, which of the other two men had a gun, or did they
both have guns when they were at Bam's?
A. They both did.
Q. You’re telling me now that all three of the men had guns at
Bam’s?
A. Not all of them were carrying them. All of them were
carrying them, but not in the way - - because the guy that had
the Afro went into the car and put the gun away.
Q. When did he do that?
A. Right when the guy gave A.J. his gun and A.J. have him his
gun to put in the car.
Q. This all took place at Bam's house?
A. Right.
Q. You told me that A.J. gave to the man with the Afro the gun
that A.J. had?
A. Right. .
Q. And the man with the Afro took the gun A.J. had given him
to the car?
A. Right.
Q. What was this car like?
381
It was a green car.
Do you know what kind of car?
No.
Then the man with the Afro gave A.J. a gun; is that right?
Right.
This was at Bam’s?
Right.
. What kind of gun did the man with the Afro give to A.J. at
Bam’s?
a ie a a
A. It was a silver gun.
Q. The gun that A.J. have to the man with the Afro - -
A. Right.
- - what kind of gun was that?
It was a brown.
Do you mean brown-handled gun?
> D2 > #0
Right.
Q. Just a few more minutes. You're doing a terrific job.
Could you tell whether or not the gun that AJ. had when
he was over at your house was the same gun with the brown
handle that the man with the Afro had given to him over at
Bam's house?
382
A. Yes, it was.
Q. It looked like the same gun to you?
A. Yes.
Q. Did any of the other men have a gun when they were over
at your house later that night?
A. No.
Q. The only gun that you saw was this one with the brown
handle?
A. Right.
Q. And A.J. had it?
A. Right.
Q. Did you see any of the other men with the knife other than
the man with the jerri curl?
A. There was only one. It was the one with the jerri curl.
Q. The other two men didn’t have knives?
A. No.
Q. And this question started when you were telling me about
you heard a noise like a gun, right?
A. Right.
Q. And I was asking you how you knew it was a gun, this noise
that you heard. How did you know it was a gun?
383
A. Because when - - after the accident happened, | was going
in there to cut on the lights, and then the guy that was with my
mom and Don asked - - I got up, and | thought it was one of the
robbers. I was about to yell, but I didn’t. And then he said, Cut
back off the lights. And I said, What happened to you? And he
said, The fat, chubby one hit me with a gun.
Q. So that’s how you knew - -
A. Knew - -
Q. - - later on that it was a gun?
A. And then before. Because you can tell the way someone
hits anything else by the way you hit them with a gun.
Q. Could you tell where this man got hit with the gun?
A. About right here (indicating) where A.J. was hitting me with
his fist.
Q. After you heard this man get hit with the gun, what was the
next thing that happened?
A. They all came in the room where me and my brother was.
Q. What happened when al] three men came into the room
where you and your brother, Raymond, were?
A. They tied us up, and then they went in - - the one with the
jetri curl asked to let him have the knife.
So he went in the room where my mom was, and a few
seconds later | heard my mom screaming. And then they all
came in the room. And then they said, Let’s go.
Q. All right. Now, first, all three of the men came into the
384
room together?
A. Right.
Q. And you say that they tied you and your brother up; is that
right?
Right.
Did all three of the men do that?
No.
Who tied you up?
Only two.
Which two?
A.J. and the tall one.
With the Afro?
Right.
What was the man with the curl doing while you and
Raymond were being tied up by A.J. and the man with the
Afro?
DF BF BF BP FF BD
A. He was in there tying my mother up.
Q. How do you know he was tying your mother up?
A. Because after - - you know, after he sliced my mom’s neck,
he - - then they all - - then he came back in the room. And then
the tall one with the Afro left and drug my mother into me and
385
Raymond's playroom and threw her down bv the TV and cut
the TV up real loud. ;
Q. But at the time you were being tied up, you and Raymond,
were you able to see what the @ with the jerri curl was
doing?
A. No.
Q. All you knew is he left the room; is that nght?
A. Right.
Q. And then after you were tied up by A.J. and the man with
the Afro, what's the next thing that happened?
A. | could hear my mom scream.
Q. You said something to me about the man with the cur!
asked for a knife.
A. Yeah, from A_J.
Q. Did A.J. have the knife when he was tying you and
Raymond up?
A. Yes, because he was cutting - - he was cutting the wire.
Q. And the man with the jerri curl came in and asked for the
knife?
A. Right.
Q. And what happened after he asked for the knife?
A. He went in the room. Then a few seconds later you could
386
- - we heard my mother scream.
Q. The man with the jerri curl got the knife from A.J.; is that
right?
A. Right.
Do you know what room that he went into?
Yes. The front living room.
Front living room?
Right.
Is that where you heard your mother scream from?
Right.
. Could you see your mother in the front living room from
where you were in the bedroom?
Oo FF BD F&F DB FF
A. No.
Q. But you, from her screams, could tell that she was up in the
living room, in the front?
A. Yes, because if you could - - if she was in the other living
room on the side where there was a doorway, you can hear even
louder.
Q. Plus you could have seen her then, too, couldn’t you?
A. Right.
Q. When the men tied you up, did they put anything over your
387
Q. Did they put anything over your mouth?
A. Yes.
What was that?
> ©
Tape.
. When you heard your mother scream, did she say anything?
What was the next thing that happened after you heard your
Q
A. No.
Q.
mother scream?
A. The man with the jerri curl came back in the room. And
then the one with the Afro went back in the room where my
mother was and drug her in to me and Raymond's room.
Q. When you heard your mother scream, was the man with the
Afro aid A.J. still in the bedroom with you and Raymond?
A. Yes.
Q. They were there?
A. Right.
Q. You saw the man with the Afro drag you mother where?
A. Into our playroom.
388
©
Where is the playroom?
>
Right across the hall.
Across the hall from your mom's bedroom?
Right.
What color room is that?
> ®
It was - - it had pink walls.
. And after the man with the Afro drug your mother into the
ayroom, what was the next thing that happened?
ZO F
They cut up the TV real loud.
Who cut up the TV?
The man with the Afro.
And this television was located where?
In the playroom.
Where your mother was?
Right.
What happened after the man with the Afro turned the
television up loud?
oe PrP eo PC PP - @ P
A. I was - - | started to cry a little. And then A.J. came over
there and told me to be quiet, and | kept crying, so he kept
hitting me, four times.
389
Q. A.J. hit you four times?
A. Right.
Q. What did he hit you with?
A. The side of the head.
Q. Did he hit you with anything?
A. The - - his fist.
Q. His fist. And you remember it was four times?
A. Right.
Q. And what was the man with the Afro and the man with the
jerri curl doing while A.J. was hitting you in the side of the
head?
A. I don’t know.
Q. Were they in the room?
A. Yes.
Q. What happened after A.J. hit you on the side of the head?
A. I was knocked unconscious, but right - - 1 could - - 1 wasn’t
unconscious for a long time. But they were doing something
else while I was knocked out a little bit. And then - - then |
could hear them say, Let’s go.
Q. Do you know what they were doing, Deonta, while you were
unconscious?
390
A. No.
Q. So you woke up or became conscious —
A. Right. Became conscious. And I could hear them say, Let’s
go. But they had a flat on the car, because you could - - because
the wheel was flat because there was the glass at the side of the
street where the curb was.
Q. How did you know they had a flat?
A. Because they were still out there fixing the car when me and
my brother were trying to get loose.
And then when me and my brother got loose, | ran in
there to see if they were still there. I hopped on the couch,
looked out the window. And then you could still see them - -
A.J. - - they was telling him, Hurry up, get the tire in the trunk.
And so then he put the jackhammer and the tire in the back of
the trunk, and they just pulled off.
Q. Did you see the car that they were in?
A. Yes.
Q. Could you describe it for me?
A. It was that same green car.
Q. You say you saw these three men through the window?
A. Right.
Q. Which window was that you were looking out?
A. The front room window, right there - - there was a couch
right there by the window.
391
Q. Now, the window that you looked out, does that look out
onto Prospect or does it look out onto 4294 Street?
A. Prospect.
Q. And where was this green car that you saw?
A. it was night there along the curb. “***
(Nothing about Datsun, | guess.)
Q. Along the curb where?
A. By the corner, right - - they were about to start pulling of,
and they didn't quite have the tire and the jackhammer in the
trunk.
Q. You say the car was near the corner?
A. Right.
0. Was the car parked on 42" Street or on Prospect?
A. You can see Prospect and 4294 Street.
Q. Okay. But which street was the car parked alongside? Do
you know what | mean by that question?
A. On the nght, right there (indicating). They wasn't parked up
where the traffic was, that part, when you can come down the
street.
Q. Do you know how Prospect runs from going downtown to
out south?
A. Uh-huh - - yes.
392
Q. And 4294 runs across Prospect; is that right”
A. Right.
Q. Kind of like a T, like (indicating), nght?
A. Right.
Q. What I wanted to know was whether or not the car was
parked on Prospect or whether it was parked on 424 Street.
A. Prospect.
Q. And was the front of the car facing towards downtown or
was it facing towards Grandview?
A. I don’t really know.
You say that you saw A_J.; is that right?
Right.
Right.
What was he doing?
He was - - he was putting the nuts back on the car.
Did you see the other two men?
No. They were already in.
mn FF ODF ODF DB FPF CP
Could you see them inside the car?
393
A. No.
Q. You told me, though, that the car had already started
moving?
A. Yes, when - - they - - A.J. told them to start the car and start
pulling off a little, and so he - - he already had the tire in it, but
he didn’t have it in all the way. And he didn’t have the
jackhammer in al] the way. So he pushed that in and shut the
hood, and then he went in and got in.
Q. When you say the "hood," do you mean the trunk of the car?
A. Yeah, the trunk.
Q. Do you know what I mean, the difference between the front
of the car where the engine is and the trunk?
A. Yes.
Q. Where did he put the jack?
A. The trunk.
Q. Which part of the car did A.J. get in, the driver's side or the
passenger's side?
A. The passenger's.
Q. Now, you weren't able to see the men in the car, right?
A.. Right.
Q. So you don’t know if there was just one man or two other
men in the car, do you?
394
A. Yeah, you could tell. because the one with the cur! told AJ.
to hurry up, and you can see - - you could see the first one
pulling off, you could see the one with the Afro.
Q.
A.
Go FF DF DB FP
Where could you see the man with the Afro”
He was in the driver's seat.
But were you able to see the man with the cur!”
No.
But you heard him?
But you could hear him.
Where was he from where you could hear?
He was in the back seat.
. Did you, during the time these men were at the house, did
you hear all of the men talk?
A.
Yes.
Q. Did they sound any different than when they were at Bam's
house?
A.
Q.
A.
Q.
No.
Did any of the men sound - - talk funny, like Jamaicans?
Yes.
Which of the men did?
395
A. AJ.
Q. What about the other two men?
A. I don’t think - - I don’t know about the one with the Afro,
but the one with the curl, he didn’t talk Jamaican.
Q. He talked - -
A. Regular.
Q. - - regular?
A. But in the accident, he tried to talk Jamaican, but when he
asked for the knife he didn’t talk like - - talk Jamaican.
Q. I thought you iold me the man with the curl was the one that
asked for the knife.
A. He did, he asked for the knife.
Q. Are you telling me that the man with the curl tried to talk
Jamaican?
A. Right.
Q. Not the man with the Afre”
A. Right.
Q. | don't want to confuse you. Let's just make sure we're
clear. You're not sure about the man with the Afro whether or
not he’s Jamaican or not; is that right?
A. Right.
396
Q. But you're telling me that the man with the curl pretended
to talk like the Jamaican?
A. Right.
Q. But you could tel! that he wasn't?
A. Yes. |
Q. And you're sure that these three men that were in the house
and did the stabbing of your mom and Don Wright are the three
men that were at Bam’s earlier in the evening?
A. Right.
Q. The same night?
A. Right.
Q. I only have . couple more questions for you, and then I'll let
you go home, okay?
A. Okay.
Q. When you came over to the house, you and Raymond, after
you left Bam's, and you came home, did you see Don or your
mom or this other mian smoking anything - -
A. No.
Q. - - or doing any kind of drugs?
A. No.
Q. How long did you know Don Wright?
397
A. Since | was small.
Q. Do you know whether he was engaged in this business of
selling drugs like your Uncle Bam was?
A. No.
Q. Do you know what | mean by that?
A. Yes.
Q. When the men were going around your house that night, did
you hear any of them asking about drugs?
A. Yes. The one with the curl was trying to ask them how - -
where is the money aiid where does - - where doe he have any
of that cocaine.
Q. Was there any cocaine kept in that house, as far as you
know?
A. No.
Q. Do you remember talking to a police officer about what
happened next - - oh, I guess it would have been a few days
afterwards?
A. Yes.
Almost a week after. Do you remember that?
Yes.
And he showed you some pictures?
> © > ©
Yes.
Q.
> Oo FF DB FF BD FF
> 2 FF} BB F
398
Did you pick out anybody”
Yes.
Who did you pick out?
AJ.
Did you pick - -
He looked like him.
Did you pick a guy that looked like AJ.”
Yes.
Did you pick anybody else out?
No.
Did you have a chance to look at those pictures real well?
No.
You didn’t have a good chance to look at them?
. Not real, real well, but | got to look at them.
Let me ask you, Deonta - - | know it's been a long time
since you've seen those pictures, but are you sure that none of
the other men in the pictures was a man that was at your house
that might?
A
Q
. I don't know.
. You don't know?
399
A. Huh-uh.
Q. You told me that the tall man with the Afro, he didn’t have
beard or a mustache; is that nght?
A. He didn’t then.
Q. He didn’t then?
A. Yes.
Q. What do you mean by that?
A. He didn't have one when the accident happened, he didn’t
have a mustache or a bread.
Q. Do you know if he has one now?
A. I don’t know.
Q. What about the other two men, A.J. and the man with the
jern curl?
A. A.J. had a beard, a little beard, and he had a mustache.
Q. What about the man with the jerri curl, did he have a beard
or a mustache?
A. No.
Q. Do you know how old these men were?
A. The one with the jerri cur! looked like he was about 21. |
don't know about the rest.
Q. And you'd never seen the man with the jerri cur! before this
400
The green car that you saw. was it a big car or a little car?
Big.
Do you know how many doors it had?
Four.
You don’t know what kind of car it is?
No. |
Is that because you don't remember or is it some kind of
strange car?
It was strange, and it - - it was sort of raggedy, almost like.
Kind of beat up?
Yes.
Could you tell how - - was it a old car or a new car?
Old.
I don’t know if you got a chance to see the license plate.
Did you?
A.
Q.
No.
Did you see the men drive off?
401
A. Yes.
Q. Which direction did they go?
A. They went - - they went straight, and then they took a left.
Q. Straight towards where?
A. They took - - they went straight, from our block they went
straight down (indicating), and then they took a left (indicating).
Q. Before they took the left, were they going towards
downtown or away from downtown?
A. Downtown.
Q. Towards downtown?
A. Yes.
Q. And then thy took a left going towards the Paseo?
A. Right.
Q. Have you seen any of these men since the - - what you cal!
the accident?
A. No, I haven’t.
MR. BERRIGAN: Thank you very much, Deonta. |
don't have any more questions. Mr.K : might want to ask you
some questions.
MR. HALL: Deonta, thank you very much for coming
in today.
402
THE REPORTER: Are you waiving signature on this
deposition?
MR. HALL: Yes.
THE REPORTER: Are you ordering copies of the
transcripts, Mr. Hall?
MR. HALL: Yes.
(The witness was excused.)
403
IN THE CIRCUIT COURT OF JACKSON COUNTY
MISSOURI
AT KANSAS CITY
STATE OF MISSOURI, CR87-1997
Plaintiff,
VS.
ROGER BUCKNER,
)
)
)
)
)
)
)
) Sept. 15, 1988
)
)
Defendant.
THE DEPOSITION OF THE WITNESS
RAYMOND KINNEY
produced. sworn and examined, between the hours of 8
a.m. and 6 p.m. of September 15, 1988, at the Office of the
Public Defender, 10“ Floor Jackson County Courthouse, 415
East 12*" Street, Kansas City, Jackson County, Missouri, before
PHYLLIS M MAIER, CSR
Registered Professional Reporter
a notary public in and for the State of Missouri, in the
above-entitied cause; taken on behalf of the defendant.
APPEARANCES
For Plaintiff: MR. PATRICK B. HALL
Asst. Prosecuting Attorney
7-M Jackson County Courthouse
415 East 12% Street
Kansas City, Missour) 64106
404
For Defendant: MS. BARBARA SCHENKENBERG
MR. PATRICK J. BERRIGAN
«* Asst. Public Defenders
Tenth Floor, Courthouse
415 East 12° Street
Kansas City, Missouri 64106
LN DEX
Witness: RAYMOND KINNEY Page:
Direct Examination by MS. SCHENKENBERG ......... 3
EXHIBITS
(None Marked)
MR. HALL MS. SCHENKENBERG
SIGNATURE
The witness’s signature to his deposition is waived.
RAYMOND KINNEY
a minor, being produced, sworn and examined on behalf of the
defendant, testified as follows:
DIRECT EXAMINATION
405
BY MS. SCHENKENBERG:
Q. Raymond, as Mr. Hall has just told you, my name is
Barbara Schenkenberg, and I'm a lawyer, and I'm going to be
asking you some questions here today. Okay?
A. Okay.
Q. I'm sure Mr. Hall has talked to you some about what's
going to happen, but I'm going to go over it again.
First of all, | can see you're real interested in this machine
right here (indicating), and what's going on is Ms. Maier here
has the ability, she can actually write down everything that's
said just while we're saying it, and then she’s going to type it all
up SO we can read it later. Okay?
A. Okay.
Q. And what that means is that whenever | ask you a
question or you would ask me a question, we'd have to answer
out loud so she could write it down, because she couldn’t write
down like if you shrugged your shoulders or shake your head or
A. Okay.
Q. So you promise that you'll answer everything out loud?
A. Yes.
Q. Let me say a few things to you before we get started
here. I know this is hard for you to answer a lot of questions
like this, and it happened some time ago. There aren’t any right
or wrong answers here. This isn't like a test in school or
anything. All we want to know is what you remember about
406
what happened that night that your mama got hurt. Okay?
A. Okay.
Q. And sometimes if | ask you a question you don’t
understand, or if you want some more information or you have
a question you want to ask me, you just feel like you can do
that. Okay?
A. Okay.
Q. Although this looks kind of formal and I know you're
in a strange place, you shouldn't be nervous and shouldn’t
A. Okay.
Q. A little hesitant there, but I think we'll get better.
‘And do you promise me that if you don’t understand a
question that you'll tel] me that rather than try to make up an
answer or just go ahead and not understand it? Do you promise
you'll tell me if you don’t understand any questions?
A. Yeah.
Q. Now, we have to do a silly thing first. 1 have to ask
you for the record, so Phyllis, here, can write it down, what your
name is.
A. Raymond Kinney.
Q. How old are you, Raymond?
A. Nine.
no > DBF DBD FF
407
What school do you go to?
Warford Elementary.
What grade are you in?
Fourth.
Do you know what your teacher’s name is?
Miss Shippee.
Does she teach all the time or do you have different
teachers?
er OF DBF DB F&F DB F&F DBD
She teaches me all the time.
How many kids are in your class?
27, | think.
What’s your favorite subject in school?
PE.
Who is your best friend there in school?
Fred - - Fred - - 1 don’t know his last name.
Do you and Fred play around together?
Yeah.
What’s your favorite thing that you do with Fred?
Play kickball.
408
Q. Before we get started, do you have any questions for
me?
A. No.
Q. You remember the night that your mama got hurt and
Don Wright got hurt and his friend got hurt?
A. Yes.
Q. And you’ve talked to Mr. Hall about that?
A. Yeah.
Q. That was last night, and maybe a little bit today?
A. What do you mean by that?
Q. Did you talk to him last night about it?
A. Yes.
Q. Do you remember quite some time ago talking to the
police about it?
A. Yes.
Q. Going down to the police station down here
(indicating)?
A. Yes.
Q. Now, do you remember what day of the week it was
that this happened?
A. No.
409
Q. Do you remember whether you went to school that
day?
A. Yes.
Q. So it was a school day. At least we know that much,
Yeah.
What school were you going to then?
It was called Kumpf.
Huff?
Kumpf.
Kumpf. Okay. Now, your brother, is he in the same
grade as you or older?
A. He's older.
Te a, th ele. Ee
Q. Is he a year - - a grade older than you?
A. Yeah.
Q. When you got out of school that day, who picked you
up from school?
A. Nobody. I walked over to my uncle's.
Q. So you walked alone to your uncle's?
A. No, with my brother.
410
Q. What’s your brother's name?
A. Deonta Kinney.
Q. Do you have any other brothers and sisters?
A. No.
Q. So when you got out of school, you and Deonta walked
over to your uncle’s house?
A. Yes.
Q. Do you know what your uncle’s whole name is?
A. (The witness nodded.)
Q. Who's that?
A. Bam Kinney.
Q. How far was it from your school to your uncle’s house?
A. Just a block away.
Q. Do you remember where your uncle was living then?
A. Yes.
Q. Where was that?
A. He was living around the corner from the school.
Q. Do you know the address?
A. No.
411
Q. Do you have any idea - - what time did you get out of
school that day? ,
A. I don’t know that.
Q. Was it regular time? You didn’t get out early or late?
A. One time we got out early.
Q. But unless I tell you difference, all my questions are
going to be about this particular day, this day. Okay?
A. (The witness nodded.)
Q. On this day, do you remember whether you got out
early or late?
A. We didn’t get out early.
Q. So it was probably regular time?
A. Yes.
Q. Who was at your uncle’s house when you got there?
A. There was just him, his wife, and his two children.
That’s it.
Q. So that would be your Uncle Bam and his wife and her
two children?
A. Yes.
Q. Do you know your Uncle Bam’s wife’s name?
A. Gwen.
412
Gwen. Do you know her last name?
No.
Do you know her kids’ names?
I know one of them.
What's that?
The boy's is Ronnie.
Are they about your age or were they younger or older?
Younger.
A lot younger?
Yeah.
Too young to play with, really?
A. No.
> Or? @B FF BF BP PF OL
©
Q. When you got to your Uncle Bam's house, what did
you do?
A. We went up to the park, and | played with my brother.
And then Ronnie came up and so we started playing with him,
and then we started playing in the sand.
Then it was nighttime, so we went back home. We went
back down to Bam's.
Q. Let me stop you for just a second. How is it that you
knew to go to Uncle Bam's house?
413
A. Our mom told us to go there in the morning.
Q. Before you left for school, she said - -
A. Yeah.
Q. - -Kids, go, after school, to Uncle Bam's house?
A. Yeah.
Q. When you got there, your mom wasn't there, though?
A. No.
Q. And neither was Don Wright?
A. No.
Q. And so it was still light, wasn’t it, when you got to
Uncle Bam’s house?
A. Yes.
Q. So you went up to the park and played around until
about dark-time?
A. Yeah.
Q. And then you went back to Uncle Bam’s house?
A. Yeah.
Q. Then what did you do?
Let me give you a different question. When you got to
Uncle Bam's house, who was there, when you got back from
414
the park?
A. There was - - our mom was there, and this man and his
lady was there. They had a big bag of white powder, and they
were selling it to these other people, but | didn’t know them.
Q. Was Don Wright therm?
A. No. He was coming there, looking for my mom.
Q. Did you know the man that was there, the man and the
lady that were there with your mom?
A. No.
Q. Was it the same man who later went home with you or
was it somebody different?
A. Somebody different.
Q. And did you go home from playing in the park just
about the time it got dark or later or- -
A. About the time- -when it was about to turn dark.
Q. So you didn’t stay in the park a long time after it got
dark?
A. No.
Q. What did you do when you got back to Uncle Bam’s
house?
A. We watched TV and just played around, really.
Q. Was Uncle Bam’s wife’s mother there? Do you know
415
Dorothy, was she there?
A. No, she was at her house. She lives next- - right next
to Bam.
Q. And was it your mom who was selling this white
powder?
A. (No response.)
Q. Was she selling it with these other folks, or you said
they were selling it, so- -
A. No, they were selling it.
Q. Had you ever seen these other people before?
A. No.
Q. Did you have dinner at all?
A. Huh-uh.
Q. Is that a No?
A. No.
Q. What happened after- -can you tell me, go on, then. So
you’re watching TV, and then what’ s the next thing you
remember happening?
A. Our mom came in. And then she was asking where were
Deonta and Raymond. So we came, and they said, Come on,
we’re going home. And then we were about to go home.
Then we stayed there for a little bit. And then Don came
416
and said, Where is Mickey? And then Bam went to the door,
and he said, She's not here. And he said, I know she’s in there.
And she just walked out the door and said, Come on, guys. So
we walked up the street, and Don follows us.
And then we got home- -
Q. Who said, Where is Mickey?
A. Don.
Q. Do you know who Mickey is?
A. Yeah. She's my mom.
Q. Oh, that’s what he calls your mom?
A. (The witness nodded.)
Q. You said that you heard Don say, I know she’s in there?
A. Yeah.
Q. Was Don having some trouble - - did Bam not want him
to come in?
A. Yeah.
Q. Bam didn’t want him to come in?
A. Yeah, he didn’t want her to come in.
Q. He didn’t want Don to come in?
A. Yeah.
Q. Did Don come inside of Bam's house?
417
A. No - - our mom went out
Q. While you were watching TV, before Don came to
Bam's house, did anybody else come to Bam's house?
A. Yeah, some people buying the powder.
Q. Were they any people that you knew?
A. No.
Q. Were any of those people the same people that ended up
going home with you?
A. No, they didn’t go home.
Q. Who was going to the door when these people would
«ome to buy power?
A. Bam.
No, what do you mean by coming to the door?
Q. Who would answer the door, like if somebody knocked
at the door, then who would go to the door?
A. Bam.
Q. And then these people would come in, and did they talk
to Bam or your mother?
A. They would talk to Bam.
Q. And then what would happen?
A.
Q.
A.
418
And then the guy with the powder was selling some.
So there was somebody else there with powder?
Yeah.
Q. Is this that man you were talking about a little while ago?
A.
> 6 2 6 2 @ Fo 6 6
Yeah.
And you don’t know his name?
Huh-uh - - no.
Do you remember what he looked like?
No.
Was he tall, short, heavy, dark?
Kind of dark.
Did he talk with an accent of any kind?
I can’t remember that.
Do you know a man named Ernest Black?
No.
Q. Later on, did you g¢. ome and did some people go home
with you and your mom and Don?
A.
No.
Q. Besides the people that came to buy the powder, did
419
anybody else come to Bam's house?
A. No. Just one person, yeah.
Q. Who was that?
A. That was Gwen's mother.
Did she come there?
> £
Yeah.
Did she stay there?
> #2
Yeah, for a little while.
When you left Bam’s house, did you drive or walk?
>
Walk.
Where did you walk to?
>» ®
Back to our house.
Q. Who all walked back to your house?
A. Just Don, iny mom, Deonta, and me.
Q. And no one else was with you?
A. No.
Q. Do you have any idea how long you were there watching
TV before you went home?
A. No.
420
Q. Did you watch a couple of shows?
A. A couple of shows.
Q. Do you remember whether those were long, maybe
detective or cowboy shows, or were they short comedy- - shows
where they made a lot of jokes?
A. Comedy shows.
Q. So you watched a couple of those kind of shows?
A. Yeah.
Q. Could you have watched maybe three or four of those
kind of shows?
A. No. We only stayed there and watched two.
Q. And then you went home, to your house?
Yeah.
Do you remember where you were living then?
You mean the address and all?
OD FF 8B >
Yes.
A. No.
Q. Let me ask you - - and don’t think that you're doing
anything wrong, but I’m going to ask you a question. What’s
your address now where you’ re living?
42]
A. 1102 - - 1 don’t really know. I don’t look at it all the
time.
Q. Is it in Kansas City?
A. Yeah.
Q. It is in Grandview, by any chance?
A. Yeah, you could say that.
Q. Do you know what city you live in?
If you don’t know, that’s okay, too.
A. I don’t know.
Q. So after you walked back to 4201 Frospect, where you
were living then, did you go straight home from Bam ’s house?
A. Go straight home to about Bam’s house?
Q. Di 1 you walk straight from Bam’s house to your house
with your mother?
A. Yeah.
Q. Did you stop anywhere and eat or have anything to
drink? |
A. No.
Q. What did you do when you got back to your house?
A. I did my homework. Then I watched TV. And then our
mom told us to go to bed.
422
Q. Who all was there while you were doing your homework
and watching TV?
A. Watching TV - - just us four.
Q. Now, back at - - | hate to do this to you. | forgot to ask
you a question, though. I" I] let you think about it for a second.
Back at Bam's house, did you see anybody smoking
anything out of a pipe?
A. Yeah.
. Who was that?
. It was a lady, and the one man that was selling it.
Who was the woman that was selling it?
I don’t know her.
Was it Bam’s wife?
No. :
. Was it Dorothy, Bam's wife’s mother?
No.
Cro FH + DB FP
Did you see anybody else smoke anything out of a pipe?
A. No. Just them - - no - - yeah. There was two more
people, but | don’t know them either. They were there just
smoking and all that around this one table.
423
Q. Did you see anybody else?
A. No. Just the people that were selling it.
Q. Did you ever see your mother smoke anything out of a
pipe?
A. Yes.
Q. And was that at Uncle Bam’s house?
A. Yeah.
Q. Did you see your Uncle Bam smoke anything out of a
pipe?
A. Yes.
Q. And what you’re telling us is that Don never came in
Uncle Bam’s house?
A. Huh-uh.
Q. So this may sound sill, but did you see him smoke
anything out of a pipe at Uncle Bam’s house?
A. No, he never did come in most of the time. He never did
want to come in.
Q. That day, you mean?
A. Yeah.
Q. So now let's jump forward a second. So then you went
on home and you were home doing your homework and
watching TV and stuff, and you say it was just you and your
424
mom and Deonta and Don Wright there at your house; is that
night?
A. Yes.
Q. And after you did your homework and watched TV, then
what happened?
A. Our mom told us to go to bed.
Q. Did you see your mom smoking anything out of a pipe or
smoking a pipe of any kind when you were at your house?
A. No. She was watching TV, too.
Q. How about Don, did you see him smoking a pipe or
anything out of a pipe at your house?
A. Yeah. He was in the frontroom.
. And he was doing that in the frontroom?
. Yeah.
Q
A
Q. Was anyone with him when he was doing that?
A. No. Just him.
Q
. You look like you were going to add something. Were
Q. So then you watched TV, and then your mom says It’s
time to go to bed. Do you have any idea what time - - well,
what time was your usual bedtime then or did you have a usual
425
bedtime.
A. Yeah. It was around 9 o’clock.
Q. Was it your usual bedtime or was it later that you went
to bed that night.
A. It was our usual.
Q. Do you have any idea what TV show you were watching
befoze you went to bed?
Q. Then your mom says, Go to bed, and so what did you
do?
A. Went to bed.
Q. Which room were you sleeping in?
A. The one between the playroom and the bathroom.
Q. Was your bedroom close to the front of the house or the
back of the house?
A. The front.
Q. And did it have a door that led into the frontroom?
A. Yeah.
Q. And then a door that led into what, the kitchen or the
other bedroom?
A. The other frontroom. We have two frontrooms.
426
Q. So you went to bed. And you and Deonta slept in the
same room?
A. Yeah.
Q. Am I saying his name right? Say your brother’s name?
A. Deonta (de-on-tay).
Q. Did you go right to sleep or were you up for a while,
playing around?
A. We went nght to sleep.
Q. When you went to bed, was there any light on in your
bedroom?
A. No.
Q. Was there any light on in the frontroom where Don was?
A. Yeah.
Q. And were you watching TV like in that - - the middle
room, the room that led into the kitchen, or were you watching
TV in the frontroom that led to the porch?
A. (Shaking head) the playroom.
Q. Where was the playroom, can you tell me where tha‘
was, which room you're calling the playroom?
A. Yeah, it was - - it was way in the back, and it had - - it
was right next to the bathroom.
427
Q. So you went to bed, and you say you went right to sleep?
A. Yeah.
Q. When you went to bed, who was at your house?
A. Just us four.
Q. Just yourmom and Don Wright and you and Deonta? -
- is that mght?
A. Yeah.
Q. After you left your Uncle Bam’s and you went on home,
while you were there watching TV and doing your homework
did anybody come over to your house?
A. No.
Wait a minute. Just one person. It was a man, and a lady.
Q. Do you know who this man and lady were?
A. No.
Q. So they came over to your house. And did they stay or
leave?
A. The lady left. The man took her back home. Then he
came back.
Q. So he stayed there at your house?
A. Yeah.
Q. So he was still there, then, when you went to bed?
428
A. «what do you mean by that?
Q. What?
A. What do you mean by that?
Well, did you wake up during the night?
Yeah.
And what was it that woke you up?
It was a loud boom on the floor.
Could you tell where this came from?
> @ - @ fF @G
It had to come from in the living room.
Q. Just so Phyllis can write it down here, what is your
mother s name?
A. Carol Kinney.
Q. And what’s Don’s full name? - - do you know his whole
name? Was it Don Wright.
A. Yeah.
Q. Do you remember what Don was wearing that night?
A. No.
Q. Do you remember what your mom was wearing that
night?
429
A. No. Yeah, she was - - she changed into her robe. It was
a red robe.
Q.
A.
A.
Q.
Rat or red”
Red.
R-e-d - -
. Uh-huh.
- - as in a color - - like this color (indicating)?
Yes.
While you were at your house, before you went to bed,
did anybody come over there to buy some powder?
A.
Q.
A.
No.
Do you know why this man and the lady came over?
No.
Q. Did you hear any talk between the man and the lady and
your mom or Don? Did you hvar anything anybody said?
A.
Q.
No, not really. I can’t remember.
When this man and lady came, did they go and sit with
Don or did your mom leave you and go sit with them or what
happened?
A. Can you say that over again?
Q. You said a man and lady came to your house while you
430
were there watching TV and doing your homework: is that
right?
A. Yes.
Q. Because | don’t want to put words in your moun © or
anything. You remember that happening?
A. Yeah.
Q. Just sort of?
A. Yes, sort of.
Q. When this man and lady came, do you remember, did
they come watch TV with you or what did they do?
A. They didn’t come to watch TV with us.
Q. Do you remember what they did?
A. Yeah, they were just - - they went in the living room.
Q. And who was in the living room when they went in
there?
A. It was Don, my mom, the man, and the lady.
Q. Do you remember what the man was wearing?
A. Yeah: He was all black.
Q. All black?
A. (The witness nodded.)
43]
Q Do you remember what the lady was wearing?
A. No.
Q. And you say you'd never seen them before?
A. No, I didn’t see them.
Q. And it was just those two people? Did anybody else
come to your house?
A. Just those two people.
Q. So then you went to bed, and you say that you heard a
big bank later on in the night; is that nght?
A. Yes.
Q. And then what did you do?
A. Then I just started looking at that one guy with the Afro,
he - - he was just staring at me then, because he thought | was
asleep, and then he put his hand in the lamp that didn’t have no
light - - light bulb. And then | just watched - - just kept on
looking at him.
And then I - - he left, and then when - - this man came in
there with his gloves on and threw my mom on the couch, and
then he left.
Then the one guy came back.
Q. The guy with the Afro?
A. Yeah. He came back, and he started going back and
forth, back and forth.
432
Q. Back and forth between the rooms?
A. Yeah. And then Don - -
Q. Is this the man with the Afro or the man with the gloves?
A. The man with the Afro.
And one guy - - no, Don, he was in there hollering. Then
I just heard somebody drop to the floor. And then I - - then I
saw the one guy, the big chubby guy, take my mom - - the one
with the gloves on - - take my mom and throw her against the
TV.
Q. Let me stop you for just a second. Does the big chubby
guy, does he have an Afro, or is this the third person?
A. This is the second person | was tr'“ing about, the one
with the gloves.
Q. Let’s stop for a second, and let me just ask you a couple
of questions about what you just told me.
So you woke up, and you say when you woke up, was
there someone in your room?
A. Yeah.
Q. And this man had an Afro?
A. Yes.
Q. Do you remember what kind of clothes he was
wearing?
433
A.” (Shaking head) I know that he was wearing a jacket,
but | couldn't see what color it was.
Did he have gloves on?
No.
Did he have a hat on?
No.
Did he say anything to you then?
No, not until he tied us up.
And then he - - you say he left?
Yeah.
And what did you do then?
> DO > OF O80 FF BD F
Then - - wait a minute. I made a mistake.
Before | saw that man pick up my mom, I woke Deonta
up. And then the one - - I said, Deonta, wake up, and he woke
up and he said, What? And | said, Something's happening.
And then he said, Big deal. And then he said - - and then he
woke back up and said, Something's happening? And then he
looked at me, and then this one guy came in and he saw that he
picked up my mom and threw her against the TV, and then he
started crying. And then the man came in and he hit him across
his head.
Q. Deonta?
A. Yeah.
434
Q. Was you mom tn the room at that time?
A. In the room that we were in?
~ Q. Yes.
A. No.
Q. When he threw her against the TV, was she already tied
up or not?
A. She wasn’t tied up - - yeah, she was tied up.
Q. Had you gone to the door and looked out of the door
yet? |
A. Huh-uh.
Q. So, then, after this happened, and then - - did the man
leave or stay there? - -leave the room, | mean.
A. Which one?
Q. The guy with the Afro.
A. No. He wasn’t there.
Q. Okay.
A. Then he came back with some rope and some towels.
Then he tied us up and put something in our mouth.
Q. Let me stop you for just a second. How many men, all
total, what did you see there? - -strange men there.
A. Yeah.
435
Q. How many did you see?
A. Three.
Q. Can you tell me now - -you've talked about a man with
an Afro, and you said he had some kind of jacket on, but you
don’t remember the color?
A. I don’t remember.
Q. And he did not have gloves on; is that nght?
A. No.
Q. Do you remember anything else about this man with
the Afro?
A. No.
Q. Then you said there was another man you’ve talked
about as being chubby or fat?
on.
A. Yeah.
Q. What kind of hair did he have, do you remember?
—
A. He had short hair. He was kind of tall. He had gloves
Q. Do you remember what color the gloves were?
A. Yeah. Brown.
Q. Do you remember anything else about what kind of
clothes this chubby man had on?
>
Q.
- & FF €
436
No.
Do you remember his jacket or anything like that?
Huh-uh - -no.
Do you remember his shoes”
No.
Then you say there was a third man that you saw there
at your house?
Yeah.
What can you tell me about what he looked like?
Short hair, mustache, a red jacket. And that's all |
Do you know what a jerri curl is?
Yeah.
Did any of these three men have jerri curls?
No.
Did the man with the red jacket have on gloves?
1 can’t remember.
The man with the red jacket, do you remember
anything else about him, what he had on or - -
A.
No.
437
Q. Did you hear any of these men talk at any time they
were in your house?
A. I’ve forgot.
Q. Did you notice whether any of them had any kind of
accents, like they sounded they were from someplace else?
A. Yeah.
Q. You did notice that?
A. Yeah, | noticed that they were talking kind of
strange, like Jamaicans or something like that.
Q. Have you heard Jamaicans talk before around your
neighborhood?
A. No. Well, Bam said something about they were
Jamaicans, something like that.
Q. I'm sorry - -go ahead.
A. Something like that. He said something like that.
Q. So your Uncle Bam told you at some time that they
were Jamaicans?
A. Yeah.
Q. Do you remember when it was that Uncle Bam told you
that?
A. No — yeah, it was the time two men came over there
with guns and a bagful of money and some powder.
438
Q. That was over to Uncle Bam's house or over to your
mom's house?
A. Bam's.
Q. Was this before your mom got hurt or after your mom
got hurt?
A. This was before.
Q. And at that time did you hear those men talk?
A. Yeah.
Q. And then your Uncle Bam told you they were
Jamaicans?
A. No, he said something about Jamaicans.
Q. I don’t want to put words in your mouth. But was there
something about these three men at your house that night that
reminded you of those men that your Uncle Bam told you were
Jamaicans?
A. Yeah, because two of them I knew from - -from Bam’s
. Two of them you’d seen at Bam’s house?
. Yeah.
Q
A
Q. And they were the Jamaicans?
A. Yeah.
Q
. Did you know their names?
439
A. One, the chubby guy, he goes by Ajax.
Q. And you're sure that this was the same guy that you
Saw at your house?
A. Yeah.
Q. Do you know any other name that he goes by besides
Ajax?
A. No.
Q. And do I understand that mght, that it’s Ajax, like the
soap, and not A.J., like two initials?
A. I don’t really know. I don’t know if it’s Ajax or A.J.
Q. It sounds something like that, hmm?
A. But! really think it’s A.J. or Ajax, one of those.
Q. Something like one of those names?
A. Yeah.
Q. But you don’t have any - -you’re sure that it was the
same guy?
A. Yeah.
Q. And then which of the other two - -yuu said two of
them you knew, that your Uncle Bam had told you that were
Jamaicans?
A. Yeah.
440
Q. The chubby one was the one that was Ajax?
A. Yeah.
Q. Then which of the other two had you seen at your
uncle’s house, the guy with the short hair and a mustache or the
guy with the red jacket? - -or wait. That's the same guy, isn’t
it?
A. The one with the Afro.
Q. That was the other guy you'd seen at your Uncle Bam's
house?
A. Yeah.
Q. And your Uncle Bam had told you he was a Jamaican,
or you'd heard him say that?
A. Yeah.
Q. And then as | understand this, what you're saying, had
you ever seen the guy in the red jacket before?
A. No.
Q. So let’s go back to what was happening then?
First of all, the guy in the red jacket, did you hear him talk at
all?
A. No.
Q. Did you have any way of telling whether he had some
kind of accent like a Jamaican, or sounded like he was from
someplace else?
44)
A. No. | never did hear him talk.
Q. So, then, let’s go back to what was going on. So after
you woke up and then they brought your mom in once and they
threw her against the TV, then what's. the next thing you
remember happening? You'd already wakened Deonta. Did
Deonta get up or did he stay in his bed?
A. He stayed in bed.
Q. And then what do you remember happening next?
A. After he got up or after 1 woke him up?
Q. Just start after - -you first woke up and then you saw
your mom being thrown around. Then what was the next thing
you know happened?
A. Not really. They just cut off the lights and left.
Q. Let me ask you some questions, th «. After you woke
up and you knew that there was something going on, like you
told Deonta, did you go to the door of your bedroom? Did you
look out - -
A. No. I went over in the other door and looked - -peeked
around the corner.
Q. So then you looked out into the frontroom, is that
nght?
A. Yeah.
Q. And that’s also - - There are two rooms there, there's
the one that leads to the porch, and then you had the kind of
middle room where the couches were and stuff, is that night?
A. Yeah.
Q. When you looked out, could you see both of those
rooms?
A. No.
Q. Which room could you see”
A. I could see the other room with the broken TV. It’s the
- -it’s the other living room.
Q. Is that the room with the fireplace or without the
fireplace?
A. Fireplace?
Q. Do you remember there was a fireplace there?
A. I don’t remember a fireplace.
Q. Was it in the room with the windows, lots of windows?
A. Yeah, it was the room with the big window in front.
Q. And that was the room that looked out on 424 Street?
- «do you remember that? Or did the windows look out on the
front porch?
A. The front porch.
Q. So that’s the room you could see; is that right?
A. Yeah.
Q. When you looked out, what could you see?
443
A. | could see the man with the short hair and the red jacket
holding up Don.
Q. Now, do you mean to - -the man with the short hair being
the short Afro, or the guy with the red jacket had short hair?
A. Yeah.
Q. So you saw one guy, the guy with the red jacket, and he
was holding up Don?
A. Yeah.
Q. What do you mean, holding him up?
A. By his shirt.
Q. Was Don laying down on the floor or was he standing up
or - -
A. Standing up.
Q. And what else did you see?
A. I saw a man coming with a knife, so | jumped back into
the bed.
Q. Which of these three men, if you remember, was the man
coming with the knife?
A. It was the fat, chubby one.
Q. The fat, chubby one that you said was Ajax or A.J.?
A. Yeah.
Q. Did you see if any of these men had guns?
445
A. Yeah. The one with - -in the red jacket.
Q. Did he have a gun when he was holding Don Wnght up
or did you see that later?
A. I saw the gun later.
Q. So as I understand it so far, you went to the door and you
looked out and you saw this man in the red jacket holding Don
Wright up; is that right?
A. Yeah.
Q. And then you saw the man with the Afro coming with
the knife?
A. (The witness nodded.)
Q. And so you jumped back in the room, nght?
A. Yeah. | jumped back into bed.
Q. Into bed. Okay. Do you know where your mom was at
that time, when you were looking out?
A. Yeah - -no - -no, | think she was in the frontroom. And
then Ajax brought her in the other room with the TV.
Q. Was Don Wright tied up when you saw him being held
up?
A. Yeah.
Q. Did you actually see anybody cut Don Wright?
A. Yeah.
445
Q. Did you see that before you jumped back into your bed
or «-
A. Yeah.
Q. --when was it that you saw it?
A. I saw it before I jumped back into the bed.
Q. So you saw this man, Ajax or A.J., coming toward
Don Wright with the knife, is that - -
A. Yeah.
Q. Is he the one that cut Don Wright or somebody else?
A. He was the one who cut Don Wright.
Q. And at that time did you see where the man with the
short hair and mustache was?
A. Yeah. He was night by the door.
The front door or the door that you were at?
The front door.
Then you jumped back into the bed?
> &© - &
Yeah.
Q. And what was the next thing that you saw happen? Did
anyone else come into your room then or did you get up again
or what happened next?
A. The one with the Afro came in.
446
Q. Came into your room?
A. Yeah.
Q. And what happened then?
A. Then he put his hand in the light bulb - -the one without
the light bulb.
Q. You mentioned that earlier. Were you confused, then,
and it really happened - -did he come in then and put his hand
in the light bulb, that’s when - -
A. Yeah - -I think he was searching for the powder.
Q. Do you know whether powder is ever kept in places like
that?
A. No.
Q. Did you hear anything while you were either standing
there at the door or going to - -or jumped in bed? - -] mean, did
you hear anybody say anything or anybody call out?
A. I can’t remember. Yeah, | - -when I woke up?
Q. Yes.
A. Yeah, | heard Don screaming and hollering.
Q. Do you know, was he saying words or was he just
screaming?
A. Really, he was just screaming and hollering.
Q. Did you hear your mom screaming or hollering?
A. Ne
447
Q. So after you jumped back in bed and then the man with
the Afro came in and looked around in the light, then what
happened?
A. Then Ajax came in, and he had my mom by the hair and
threw her into a chair.
Q. When you say the man with the hair, you're talking
about the one with the Afro?
A. No, the big chubby one.
Q. Did the man - -the big chubby one have an Afro or not?
A. No, he didn’t.
Q. He had what kind of hair?
A. Short.
Q. Short hair. Okay. Did he also have a mustache?
A. No.
Q. So Ajax, he’s the guy, the chubby one, he came in and
threw your mom - -he had your mom by her hair, you said?
A. Yeah.
Q. And then what did you see happen?
A. He just left.
Q. Did he just throw her down or leave her there?
A. Yeah, he left her in the chair.
448
Q. And then what happened?
A. I don’t know after that. He - -then the one with the Afro
just kept on looking between the halls.
And then I woke my brother up.
Q. Had you already woken your brother up once?
A. No. This is the first time I woke him up.
Q. Go ahead.
A. And then I woke him up and said, Deonta, something
is going on. Then he was about to go back to sleep. You know,
I shook him again and said, Something is going on. And then
he said, What? What? And then he said that twice. And then
he - -then he stayed up and was looking around, he was in the
comer of the bed - -no, | was in the corner of the bed.
Q. Did you wake Deonta up before you saw Don Wright get
cut or after?
A. After.
And then you two stayed on the bed?
Yeah.
Was your mom in the room by that time?
In the playroom.
In the playroom. Was she in the room you were in?
> OD FF DB PF
No.
449
Q. Okay. She was in a different room. Ther what did you
see happen?
A. Then me and my brother was watching for a little while.
And then Ajax came and picked up my mom and threw her
against the TV, and Deonta started screaming and hollering.
And then Ajax came in and he hit Deonta up aside his head
twice and told him to be quiet and then he had a big knot on his
head.
Then one guy looked between the halls. Then - -
Q. Which guy was looking? Was that the guy with the Afro
or- -
A. Yeah.
Q. Okay. Go ahead.
A. And then he came back and tied me and my brother up.
And the next thing - -and then he stuffed something in our
mouth.
The only thing I know, they just cut off the lights and left.
Q. Before they left and before you were tied up, did you see
anything happen to the man that was there visiting your mom?
Did you see him get cut at all?
A. No. He got hit against the head with a gun.
Q. You saw that happen?
A. Yeah.
Q. Did you see which of the three men did that? - -if you
remember.
450
A. No.
Q. You don’t remember, or you didn’t see?
A. I didn’t really see it, | just - -he just had a big know on
his head.
Q. Did you see anything happen to your mom? Did you see
anybody cut your mom?
A. Yeah.
. When was that - -
. No, I didn’t see her. But she had u cut on her neck.
. She got cut, that’s for sure. But did you see it happen?
. No.
Q
A
Q
A
Q. So do you know which man did it?
A. No.
Q. So the only cutting you saw was Don; is that right?
A. Yeah.
Q.
After they cut off the lights and left, then what did you
do?
A. Hopped into the bathroom and we saw a knife, so we cut
ourself loose. Then my brother went in there and looked at
mom, and he said, I'll be right back. So he ran down to the
store. We - -me and my brother sleep in our clothes, we don’t
sleep in our pajamas.
45]
So he run down to the store where the pay phones are and
he dialed operator, and the hospital, and the police.
And he came back and told my mom to put a towel on her
neck - -a wet towel on her neck. And she didn’t want to,
because it would hurt.
So then the police - - No, my brother cut on the light in the
other room, and this one guy got up and said, cut them back off.
And then he cut them off, and the police came.
Q. Who was it that said, cut them back off, was that the guy
that was there visiting your mom and Don Wnght?
A. Yeah.
Q. Did you ever hear anybody talk about going over to 5030
Woodland? Did you hear the man say anything about - -the
man who was visiting there, or did you hear any of these three
men say anything about 5030 Woodland?
A. No.
Q. Was it you that cut the rope off your mom, or was it
Deonta?
A. It was Deonta.
Q. And then it was Deonta who ran and called the police?
A. Yeah.
Q. This knife that you used to cut your ropes, you say you
got it out of the bathroom?
A. Yeah.
452
Q. Had it been in the bathroom before you to bed, do you
know?
A. No, it wasn’t.
Q. Did you notice whether this knife had any blood on it?
A. Yeah, it had some blood on it.
Q. When was it that you noticed that it had blood on it?
A. It was on the blade. It was when me and my brother
hopped in the bathroom.
Q. Did you use that knife to cut the tapes off your mama or
did you use a different knife?
A. The same knife.
Q. Did you see any cars come to your house that evening or
leave from your house, anybody come in cars?
A. Yeah.
Q. What kind of car did you see?
A. No, I didn’t see any cars, but I think the one man that
came to our house had a car.
Q. So you just - -did you hear it, maybe?
A. No.
Q. What about these three men that came to your house, you
didn’t see how they left, did you?
A. No.
453
Q. And you said that Ajax had gloves on and the guy with
the Afro had gloves on?
A. Yes - -no, the guy with the Afro didn’t have gloves on.
Q. So Ajax and the guy with the red jacket had gloves on?
A. No.
Q. Tell me again, then.
A. The guy with the red jacket on didn’t have gloves, it was
only Ajax.
Q. Only Ajax. Okay.
(Discussion was had off the record.)
Q. (By Ms. Schenkenberg) Let me just ask you one more
question - -one or two more.
You said that you knew Ajax’s name - -you knew
Ajax and he was chubby, right?
A. Yeah.
Q. And then the guy with the Afro was the other one that
you'd seen over to your uncle’s house; is that right?
A. Yeah.
Q. Did you know his name?
A. No.
Q. Had you ever heard him called anything?
454
A. No.
MS. SCHENKENBERG: That's all | have.
MR. BERRIGAN: Do you have any questions, Mr. Hall?
MR. HALL: Thank you very much. We appreciate you
coming down. Okay?
THE REPORTER: Do you want to waive signature on
this?
MR. HALL: Yes. (Wit.excsd.)
(The witness’s signature was waived.)
NOTARIAL CERTIFICATE
STATE OF MISSOURI )
COUNTY OF JACKSON __)ss.
1, PHYLLIS M. MAIER, CSR, Registered Professional
Reporter, a Notary Public in and for the State of Missouri,
hereby certify that there came before me on the day, between
the hours and at the place set forth in the caption page hereof,
witness:
RAYMOND KINNEY
who was by me first duly sworn; that the witness was examined
and the examination was taken down in machine shorthand by
me and thereafter transcribed as set forth in the preceding 51
typewritten pages.
I further certify that it was agreed by counsel and the
455
witness that the signature of the witness to this deposition was
expressly waived and that said deposition is now herewith
returned.
| further certify that | am not counsel, attorney or relative
of either party of the attorney for either party or otherwise
interested in the event of this suit.
Witness my hand and notarial seal at Kansas City, Jackson
County, Missouri, on September 27, 1988.
My commission expires February 11, 1992.
Notary Public, State of Missoun
(Commissioned in Jackson County)
456
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
LEAMON WHITE, )
Appellee/Petitioner, ‘
vs. No. 04-2772
DON ROPER,
Appellant/Respondent
PETITION FOR REHEARING WITH
SUGGESTIONS FOR REHEARING EN BANC
Respondent disagrees, of course, with the specific impact
of the panel’s decision on this case. The panel decided it in a
manner that deviates substantially from the standard set forth in
the Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984). But of greater concern is the impact-of the panel’s
ruling on criminal cases, specifically on the role of defense
counsel. By announcing a new standard for ineffective
assistance of counsel, the panel would dramatically change the
burdens imposed on criminal defense counsei, significantly
increasing the cost of defense or significantly increasing the
number of instances in which counsel is ineffective — or both.
Respondent asks the panel and the court en banc to reconsider
the ruling - - but at minimum, Respondent asks the panel and
the Court to modify the holding so as to avoid the extensive
impact that the panel’s decision could have.
In the court’s August 2, 2005, decison, the court granted
habeas relief to petitioner because it felt that his Sixth and
Fourteenth Amendment rights were violated because he
received ineffective assistance of trial counsel. The panel
457
acknowledged that Raymond Kinney testified at petitioner's
trial, but found counsel ineffective because his brother, Deonta,
did not testify (Panel Opinion, pages 4-5). The court also found
counsel was ineffective for declining to call Dorothy Merrell.
Under petitioner’s theory of relief, Merreil would have
testified that she did not see petitioner with Buckner hours
before the murder, but Merrell did see Buckner with A.J.
Constantine (Panel Opinion, page 3). Deonta may have
testified that Constantine may have been another person at the
house where the murder occurred (Panel Opinion, page 3).
Neither factor, even if true, constitutes a breach of duty by tnal
counsel nor resulting prejudice under Stnckland v. Washington,
Supra.
Merrell
Petitioner failed to show either a breach of duty or
Strickland prejudice as to Dorothy Merrell. At her deposition,
Merrell testified that Buckner and "A.J." came to her crack
house "to kill us, because they’ d known that we sold drugs”
(Merrell Dep. Tr. 16). According to Merrell, they did not have
drugs in the house at that time; thus, Buckner and "A.J." did not
kill them (Merrell Depo. Tr. 16). Then, according to Merrell,
the victim Don Wright volunteered that he had drugs to sell
(Merrell Depo. Tr. 17-19). But Merrell knew he did not
(Merrell Depo. Tr. 19). According to Merrell, Carol Kinney
knew and told Don Wright that Don’s statement would get them
killed (Merrell Depo. Tr. 19-20). According to Merrell, Don
Wright and Carol Kinney left and returned to their home
(Merrell Depo. Tr. 22). According to Merrell, Buckner and A_J.
left five to ten minutes later (Merrell Depo. Tr. 22-23). There
should be no finding of ineffective assistance of counsel from
this proposed testimony.
Initially, petitioner cannot show a breach of duty by trial
458
counsel. Petitioner does not overcome the strong presumption
that trial counsel acted reasonably in declining to call Merrell to
testify. Stnckland v. Washington, 466 U.S. at 689; Bell v.
Cone, 535 U.S. 685, 702 (2002). Trial counsel could
reasonably decline to call Merrell because she did not view the
assaults and murder of January 6, 1987. Trial counsel could
reasonably decide not to call Dorothy Merrell] due to her
employment with illicit drug sales. Trial counsel could
reasonably decide not to call Dorothy Merrell because her
testimony did not make good sense. If her testimony were true,
then Don Wright was deliberately placing himself in danger by
selling drugs to Buckner and "A.J." Similarly, Carol Kinney
was placing herself and her two children in danger by leaving
the house with Don Wright. The testimony was no intuitive,
and trial counsel could reasonably determine not to call Merrell.
The premise of the panel’s decision was that trial counsel |
investigation was too superficial to discover Merrell’s
testimony (Panel Opinion, page 5). Nothing about Merrell’s
testimony directly countered the state’s evidence in that the
Merrell testimony concerned events that occurred hours before
the assaults and murder. See Rompilla v. Beard, No. 04-5462,
slip op. at 4 (U.S. June 20, 2005). Indeed, as to both elements
under Strickland, whether there was a breach of duty and
resulting prejudice, the proposed testimony of Merrell
concerned events even the panel described as “earlier on the
night of the murder” (Panel Opinion, page 3). Such testimony
by Merrell concerning a drug transaction hours before the
assaults and murder are not even admissible under Missoun
state law. Merrell’s testimony would not demonstrate that
"A.J." committed the murder or that petitioner did not. Merrell
did not have testimony directly connecting "A.J.” with the
murder; thus, the testimony would have been inadmissible. See
Evans v. State, 85 S.W.3d 750 (Mo. App. E.D. 2002). Under
Missouri law, there must be proof that some other person
committed some act directly connecting him with the crime,
459
State v. Meyers, 997 S.W.2d 26 (Mo. App. S.D. 1999): Helmig
v. State, 42 S.W.3d 658 (Mo. App. E.D. 2001), and Merrell
provides no such evidence. Petitioner cannot demonstrate that
he received ineffective assistance of counsel from the failure to
investigate or introduce inadmissible evidence. See Wood v.
Bartholomew, 516 U.S. 1 (1995) (inadmissible evidence not
material under Brady ).
Deonta Kinney
The analysis of the panel as to Deonta Kinney is also
outside the proper Strickland analysis. As noted, Deonta
Kinney was a son of assault victim Caro] Kinney. As noted by
the panel, Deonta’s brother, Raymond, testified as petitioner’s
trial for the defense (Tr. 998). Raymond, a ten year old student,
was in the house where the murder of Don Wright occurred (Tr.
998-99). Raymond heard the voices of the men present (Tr.
999). One of the voices had a Jamaican accent (Tr. 999).
Petitioner was not the man with the Jamaican accent at the
house (Tr. 1000). The district court found that counsel was
aware of the brother, Deonta, from the police report
(Memorandum, page 14 citing Hearing Tr. 85, 89). Trial
counsel did not call Deonta to testify at the guili phase (Tr.
998). Under Strickland, that decision is strongly presumed to
be reasonable and should not be the basis for the finding of
ineffective assistance of counsel. 446 U.S. at 689; Bell v. Cone,
535 U.S. at 702. at the evidentiary hearing before the district
court, petitioner did not present Deonta to testify about what he
would have testified had he been called at petitioner’s trial.
Given this omission, petitioner can show neither a breach of
duty nor resulting prejudice as to Deonta.
The panel opinion echoed the district court’s conclusion
that it was inexplicable why Deonta was not called to testify
when Raymond had already been called (Panel Opinion, page
5). Of course, as noted by the panel, trial counsel passed away
460
1996 before the 2004 federal evidentiary hearing (Panel
Opinion, page 4). Several reasons, however, come to mind for
counsel not to call Deonta. Raymond testified “well” at the
guilt phase (Tr. 998); thus, there was no reason to risk calling
Deonta. Perhaps intangibles such as eye contact and demeanor
counseled in favor of calling Raymond instead of Deonta at the
guilt phase. Or Deonta could not testify that petitioner was not
involved in the murder. These would be good reasons not to
call Deonta.
The panel's finding of breach of duty and resulting
prejudice is based on the assumption that Deonta would have
testified at petitioner’s trial the same as he testified at
co-defendant Buckner’s trial (Panel Opinion, page 3). The
assumption is not self-proving, and petitioner presented no
evidence to support this assumption before the district court.
Deonta did not testify at the federal court’s evidentiary hearing.
Deonta’s testimony is not exculpatory. Deonta testified that he
did not see his mother being stabbed (Buckner Tr. 801). While
Deonta identified "A.J." as being in the house (Buckner Tr.
800), this testimony did not exclude petitioner as being one of
the perpetrators.
From a oractical perspective, the panel decision seems to
place on defense counsel the duty to attend the co-defendant’s
trial, in this case, the Buckner trial (Panel Opinion, pages 3, 4).
In contrast, the Strickland court made clear that there were no
absolute constitutional duties by trial counsel. It does not seem
reasonable to impose on all defense counsel in the circuit the
duty to attend all co-defendant’s state and federal trials for
however long they may last. Such a constitutional duty also
creates the question of whether there is a constitutional duty to
request to be the last trial so that all co-defendant trials can be
observed first. Instead, as Strickland requires, trial counsel is
to perform reasonably, an issue that requires subtle analysis
given the nature of the crime scene. See Rompilla v, Beard, slip
461
op. at 10, .4. And in this, trial counsel did. Rehearing or
rehearing en banc is warranted in this case.
WHEREFORE, for the reasons herein stated, respondent
repays that the Court grant his motion for rehearing, or in the
alternative, for rehearing en banc.
Respectfully submitted,
JEREMIAH W. (JAY) NIXON
Attorney General
/s/
STEPHEN D. HAWKE
Assistant Attorney General
Bar No. 35242
P.O. Box 899
Jefferson City, MO 65102
(573) 751-3321
Attorneys for Respondent
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the
foregoing was faxed, this 16" day of August, 2005, to:
Charles W. Gordon, Jr.
Attorney at Law
30 West Pershing Road, Suite 350
Kansas City, MO 64108
816-221-5259 fax
Ronald E. Partee
Attorney at Law
606 West 39tD Street
Kansas City, MO 64111
462
816-753-3234 fax
‘s/_
Stephen D. Hawke
Assistant Attorney General
we ote
463
PORTION OF TRANSCRIPT OF TRIAL
OF RESPONDENT (February 6, 1989)
LEAMON WHITE,
previously duly sworn, testified further as follows:
EXAMINATION by Mr. O'Connor:
Q. State your name, please, for the record.
A. Leamon White
Q. And you’ re the defendant in this case?
A. Yes, sir.
Q. And you're on trial before the jury now for first degree
murder in which the State is asking for the death penalty?
A. Yes, sir.
Q. And you’ve sat here through the entire trial, is that true?
A. Yes.
Q. Now, you understand that we’re going to enter into the
stipulation that was just - - that you just read about your dental
records, and then we’re going to rest. Did you hear the judge
say that, and me agree?
A. Yes.
Q. You understand that you as a defendant, like any defendant
in any case, has the right to testify in his own behalf, do you
understand that?
464
A. Yes.
Q. And you understand that the right to testify is the sole
decision to be made by the person who's in charge of the person
on tnal which is in this case you”
A. Yes.
(2. And you can listen to Mr. Duncan and | as to whatever
advice we give you pro and con on whether or not we believe
you should or should not testify, and we're entitled to do that by
law. But it is your decision and your decision alone on whether
Or not you want to take the stand and testify in your own behalf.
Do you understand that?
A. Yes.
Q. Now, Mr. Duncan and I have discussed with you whether or
not you’re going to testify in this case. Is that true?
A. Yes.
Q. And we told you, did we not, that it was our collective
opinion that you should not testify. Is that correct?
A. Yes. Yes.
Q. And we based that partly on, a great deal on, I guess, your
prior criminal record. Is that true?
A. Yes.
Q. And you have several prior felony convictions?
A. Yes.
465
Q. And you understand that it would be proper scope of cross-
examination for the prosecuting attorney to inquire about any
prior felony or misdemeanor convictions that you had, do you
understand that?
A. Yes.
Q. And that also that they could get a special instruction from
the judge on the fact that you had prior convictions and that the
jury could consider those prior convictions in determining
whether or not they wanted to believe your testimony, do you
understand that?
A. Yes.
Q. Now, you understand that those prior convictions could not
be used in any way to suggest that since you committed those
crimes that therefore you committed this crime, do you
understand that?
A. Yes.
Q. In other words, the prosecutor could get up here and say,
“Well, he’s got all these convictions, he must have done this.”
They can’t use those convictions other than to affect your
credibility on whether or not the jury should believe your
testimony. Do you understand that?
A. Yes.
Q. Now, what is your personal decision as to whether or not
you are going to or you want to testify in this case?
A. Not testify.
Q. And is that something that you've thought about?
466
A. Yes.
Q. Do you understand your right to testify?
A. Yes.
Q. Now, from a tactical standpoint certain things happen
during a trial where lawyers and the defendant make certain
decision about witnesses, and have been made in this case, is
that true?
A. Yes.
Q. And by saying that we’re resting we are making a decision,
Mr. Duncan and I, along with you, to not call Charles Ross of
the Public Defender’s Office, Ben Kinney, Laura Ty%er,
Clarence Gibson or Deonta Kinney, is that nght?
A. Say that again.
Q. All right. Have we made the decision based on the way the
testimony has gone in that we are not going to call Charles
Ross, Ben Kinney, Laura Tyler, Clarence Gibson or Deonta, D-
E-O-N-T-A, Kinney?
A. Yes I agree with that because you and Mr. Duncan
suggested that.
Q. All right. And you understand that we went into the
individual reasons why we suggested to you not to call these
witnesses?
A. Yes.
Q. The pros and cons of what their testimony would be. Right?
467
A. Yes.
Q. And the fact that any of their testimony is subject to rebuttal
from the prosecutor's office?
A. Yes.
Q. All right. And you understand that under the rules of
discovery that the prosecutor wouldn't have to tell us what they
had in rebuttal] because rebuttal is just what it is, it’s rebuttal,
and until witnesses testify they do not have to provide the
rebuttal evidence to you unless you were using the defense of
alibi to where they had evidence that could refute your alibi, do
you understand that?
A. Yes.
Q. After talking with Mr. Duncan and I, it’s your decision,
along with us, with our decision, not to call any of the witnesses
I just previously named?
A. Yes.
Q. Now, you’re charged with murder in the first degree. The
lesser included offense of murder in the first degree is murder
in the second degree. There could be an argument made by us,
for you as the defendant, that the judge should instruct the jury
on murder in the second degree because there is in my opinion
an issue of whether or not the deliberation is there to support a
conviction by a jury of murder in the first degree. Have we
discussed that?
A. Yes, we discussed that.
Q. All nght. Have we also discussed the fact that if we made
an argument to the judge, and I think a good argument could be
468
made, that it's kind of up to the Court on whether or not the
instruction is warranted under the evidence, than then the jury
could compromise the verdict and not find you guilty of murder
in the first degree but find you guilty of murder in the second
degree because they kind of compromise out and find you guilty
when otherwise they wouldn't find you guilty of the original
charge? Have we talked about that?
A. Yes.
Q. Our feeling, collectively, as we've told you, is that we
believe that we should submit on murder in the first degree only
because the facts | think in a great extent support either a
murder | or nothing against whoever committed these crimes.
A. Yes.
Q. Now, do you want us to request the judge and make an
argument on your behalf for a murder in the second degree
instruction?
A. No.
Q. Now, murder in the second degree, the punishment is 10 to
30 years or life imprisonment. Do you understand that?
A. Yes.
Q. And right now you're sitting with either life with no parole
or the death penalty if found guilty. Do you understand that?
A. Yes.
Q. So if we submitted murder in the second degree, even if the
jury found you guilty you would still have a chance at some dy
in your life to get out of jail. Under this other circumstance you
469
will never get out of jail if convicted.
A. l understand
Q. And it is your decision that we submit on murder in the first
degree and not request the Court to submit the lesser included
of murder in the second degree?
A. Yes.
470
KANSAS CITY, MISSOURI POLICE DEPARTMENT
INVESTIGATIVE REPORT (CASE DOCUMENT)
Case # SUPP 87-002063
Title of Investigation Subject of Report
HOMICIDE: INTERVIEW:
WRIGHT, DON, RAYMOND L.
B/M, 11-8-S8KINNEY, B/M, 10-26-78
4201 Prospect DEONTA D. KINNEY,
B/M, 9-10-77
Report By: DET. LEE FLOYD
Assignment: Homicide Unit
Date: 1-6-87Pagel of 2 Pages
On 1-6-87, at approximately 0628 hours, Detective Lee
Floyd and Detective David Ray responded to 4201 Prospect, on
a cutting. Upon arrival it was learned that RAYMOND and
DEONTA KINNEY (CAROL KINNEY’s sons) had been in the
residence when the offense occurred. At 0702 hours Detective
Floyd accompanied the juveniles to police headquarters in
Police Officer Gabriella Pfeifer’s (Radio 334) vehicle. En route
to headquarters the children were brought milk, orange juice,
cookies and pancakes, in an attempt to place them at ease. The
children were interviewed and a video statement was obtained
ay approximately 0840 hours. DEONTA KINNEY had been
struck in the head by one of the suspects and was shy and
scared. The video statement was taken with both juveniles
present because they did not want to be left by themselves.
47)
In the interview, prior to, during and after the statement,
RAYMOND KINNEY stated that there were three suspects,
one wearing a red jacket, one a black jacket and yellow
gloves and one with a black jacket, possibly with black
gloves. The man in the red jacket had a black gun. One of
the men was described as fat. One of the men was
described as having a jerry curl. The man in the red jacket
"talked funny.” The man in the black jacket was described
as a Jamaican by RAYMOND KINNEY although
RAYMOND could not say why he believed this man was
a Jamaican.
They stated they did not see a suspect vehicle.
The children later separately viewed a photo line-up
including a picture of ROGER BUCKNER, KCPD
#163737. Neither child identified BUCKNER as a
suspect.
DEONTA KINNEY identified a photograph of a black
male known to him as "AJAX" or "A.J.", CHRISTOPHER
CONSTANTINE, BM, 11-15-61. This photo was among
a group of photos of known drug users.
DEONTA KINNEY stated that he had seen A.J. at his
uncle BAM’s (BENJAMIN KINNEY’) house on previous
occasions.
RAYMOND KINNEY stated after the video statement
that he believed the address “030 Woodland was 53" and
Woodland.
The children were released to their grandfather,
472
HAROLD KINNEY, 11018 Wabash, 942-3455.
473
CONTINUATION
Case # Supp #87-002063
Date 1-6-87
Page 2 of 2 Pages
The four photos shown to the children in a photo
line-up were maintained by DET. CLARENCE GIBSON
for investigative use.
At 0930 hours, PO JAN HOWARD, radio #224,
stated she had checked for a residence at 5030 Woodland
and there was no such address.
Both of the children were of the opinion that DON
WRIGHT’s friend (ERNEST BLACK) and DON
WRIGHT knew the three suspects.
474
Missouri Supreme Court Rule 29.15 of the Rules of Criminal
Procedure
RULE 29.15 CONVICTION AFTER TRIAL -
CORRECTION
(a) Nature of Remedy — Rules of Civil Procedure Apply.
A person convicted of a felony after trial claiming that the
conviction or sentence imposed violate the constitution and
laws of this state or the constitution of the United States, that
the court imposing the sentence was without jurisdiction to
do so, or that the sentence imposed was in excess of the
maximum sentence authorized by law may seek relief in the
sentencing court pursuant to the provisions of th's Rule
29.15. This Rule 29.15 provides the exclusive procedure by
which such person may seek reiief in the sentencing court for
the claims enumerated. The procedure before the trial court
is governed by the Rules of Civil Procedure insofar as
applicable.
(b) Form of Motion — Time to File —- Cost Deposit Not
Required — Notice of Filing, to Whom—Failure to File-
Effect of. A person seeking relief pursuant to this Rule 29.15
shall file a motion to vacate, set aside or correct the judgment
or sentence substantially in the form of Criminal Procedure
Form 40. If an appeal of the judgment sought to be vacated,
set aside or corrected was taken, the motion shall be filed
within thirty days after the filing of the transcript in the
appeal pursuant to Rule 30.04. If no appeal of such judgment
was taken, the motion shall be filed within ninety days of the
date the person is delivered to the custody of the department
of corrections. No cost deposit shall be required. Movant
shall give notice of the filing of the motion to any court in
which the appeal of the judgment of conviction is pending.
Failure to file a motion within the time provided by this Rule
29.15 shall constitute a complete waiver of any right to
proceed under this Rule 29.15.
475
(c) Clerks Duties. Movant shall file this motion and two
copies thereof with the clerk of the trial court. The clerk shall
immediately deliver a copy of the motion to the prosecutor.
Upon receipt of the motion, the clerk shal] notify the
sentencing judge.
(a4) Contents of Motion. The motion to vacate shall include
every ground known to the movant for vacating, setting aside,
or correcting the judgment or sentence. The movant shall
verify the motion, declaring that he has listed all grounds for
relief known to him and acknowledging his understanding
that he waives any ground for relief known to him that is not
listed in the motion.
(e) Pro Se Motion - Appointment of Counsel - Amended
Motion, Required When—Withdrawal of Appointed
Counsel. When an indigent movant files a pro se motion, the
court shall cause counsel to be appointed for the movant.
Counsel shall ascertain whether sufficient facts supporting
the grounds are asserted in the motion and whether the
movant has included all claims known to him as a basis for
attacking the judgment and sentence. If the motion does not
assert sufficient facts or include all claims known to the
movant, counsel shall file an amended motion that
sufficiently alieges the additional facts and grounds. For good
cause shown, appointed counsel may be permitted to
withdraw. If appointed counsel is permitted to withdraw, the
court shall cause new counsel to be appointed.
(f) Amended Motion - Form, Time for Filing - Response
by Prosecutor. Any amended motion shall be verified by
movant and shall de filed within thirty days of the date
counsel is appointed or the entry of appearance by counsel
that 1s not appointed. The court may extend the time for
filing the amended motion for one additional period not to
exceed thirty days. Any response to the motion by the
prosecutor shall be filed within ten days after the date and
arnended motion is required to be filed.
476
(g) Request for Hearing, Time for Filing — Hearing, Not
Required, When — Time Hearing to be Held. A request for
a hearing shall be made by motion on or before the date an
amended motion is required to be filed. Within fifteen days
after the date an amended motion is required to be filed, the
court shall determine whether to grant a hearing. If no
request for hearing is timely filed or if the court shall
determine the motion and the files and records of the case
conclusively show that the movant is entitled to no relief, a
hearing shall not be held. If a hearing is ordered, it shal! be
held within sixty days of the date of the order granting a
heanng.
(h) Presence of Movant—Record of
Hearing—Continuance of Hearing—Burden of Proof. At
any hearing ordered by the court the movant need not be
present. The court may order that testimony of the movant
shall be received by deposition. The hearing shall be on the
record. The court may continue the hearing upon a showing
of good cause. The movant has the burden of proving his
grounds for relief by a preponderance of the evidence.
(i) Findings and Conclusions, Issued, When—Judgment.
The court shal! issue findings of fact and conclusions of law
on al] issues presented, whether or not a hearing is held,
within thirty days of the submission of the case. If the court
that the sentence imposed was illegal, or that there was a
demial or infringement of the rights given movant by the
constitution of Missouri or the constitution of the United
States as to render the judgment subject to collateral attack,
the court shall vacate and set aside the judgment and shall
discharge the movant or resentence him or order a new tral
or correct the judgment and sentence as appropriate.
(j) Appeal-Standard of Appellate Review. An order
sustaining or overruling a motion filed under the provisions
of this Rule shall be deemed a final judgment for purposes of
477
appeal by the movant or the state. If the court finds that a
movant allowed an appeal is an indigent person, it shall
authorize an appeal in forma pauperis and furnish without
cost a record of all proceedings for appellate review. When
the appeal is taken, the circuit court shall order the official
court reporter to promptly prepare the transcript necessary for
appellate review without requiring a letter from the movant’s
counse] ordering same. if the sentencing court finds against
the movant on the issue of indigency and the movant so
requests, the court shall certify and transmit to the appellate
court a transcript and legal file of the evidence solely on the
issue of indigency so as to permit review of that issue by the
appellate court. Appellate review of the trial court’s action
on the motion filed under this rule 29.15 shall be limited to a
determination of whether the findings and conclusion of the
trial court are clearly erroneous.
(k) Successive Motions. The circuit court shall not
entertain successive motions.
(1) Effect of Motion on Pending Appeal — Consolidation
of Appeals. If a motion is filed under this Rule 29.15 and an
appeal is pending from the judgment of conviction that is the
subject to the motion, the appeal shall be suspended until
final determination of the issues raised by the motion.
Appellate shall give notice to the court where the appeals is
pending of the entry of judgment on the motion filed under
this Rule 29.15 within ten days of the entry of the judgment.
If an appeal is filed from the judgment sustaining or
overruling a motion filed under the provisions of this Rule
29.15, the appeal from the judgment of conviction shall be
consolidated with the appeal from the judgment on the
motion. The record on appeal shall consist of the transcript
and legal file from both the judgment of conviction and the
judgment ton the motion. Ifa claim of ineffective assistance
of counsel] was presented in the motion, the attorney
representing movant on the motion filed pursuant to this Rule
478
29.15 shall be the attorney on appeal for the consolidated
case.
(m) Schedule. This Rule 29.15 shall apply to all
proceedings wherein sentence is pronounced on or after
January 1, 1988. If sentence is pronounced prior to January
1, 1988, and no priar motion has been filed pursuant to Rule
27.26, a motion under this Rule 29.15 may be filed on or
before June 30, 1988. Failure to file a motion on or before
June 30, 1988 shall constitute a complete waiver of the nght
to proceed under this Rule 29.15. If a sentence is pronounced
prior to January 1, 1988, and a prior motion under Rule 27.26
is pending, post-conviction relief shal! continue to be
governed by the provisions of Rule 27.26 in effect on the date
the motion was filed.
(Added Feb. 11, 1987, effective Jan. 1, 1988. Amended May
23, 1987, effective Jan. 1, 1988).
MOVANTS CONVICTION WAS OBTAINED IN
VIOLATION OF THE FOURTH, FIFTH, EIGHTH AND
FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION, AND IN VIOLATION OF
ARTICLES 10, 17 AND 18A OF THE MISSOURI
CONSTITUTION, WHEN MOVANTS COUNSEL
RENDERED INEFFECTIVE ASSISTANCE. COUNSEL
WAS INEFFECTIVE FOR AT LEAST BUT NOT LIMITED
TO THE FOLLOWING:
A. When counsel, in apparent effort to circumvent
the orderly process of post conviction proceedings required and
compelled movant to take the witness stand, for the purpose of
compelling movant, without the aid of conflict free counsel, to
condone, verify and/or sanction trial counsels trial strategy, i.e.
what witnesses to call, what questions to ask and what evidence
to marshall in general. This improper conduct of counsel
impermissibly invaded the province of the attorney client
relationship and exposed movant to cross-examination by the
State. Said conduct was prejudicial to movant.
B. When counsel, waived the right to exclude all
witnesses from the courtroom by making an exception, and
allowing the victims mother and brother to remain in the
courtroom prior to their expected testimony. Failure to exclude
these witnesses allowed them to hear the entire trial, resulting
in them altering their expected favorable testimony. (Tr. 3)
C. When counsel failed and refused to make the
proper objections to the trial court conducting voir dire that was
not recorded by the court reported or by any other lawful means.
Thus movant was denied a full and complete transcript from
which to perfect his appeal. ( it should be noted that the initial
voir dire was conducted by a Judge who was not a sitting judge
480
in this case. This initial voir direing was not only conducted "
off the record " but was also conducted outside the presence of
movant and/or counsel.). (T.r. 18 )
D. When counsel failed and refused to make the
proper objection to the States improper voir dire. The States
voir dire was improper because the State did not limit the
questioning to general circumstances designed to aid in the
selection of neutral jurors. The States questioning was in fact
preceded by the State presenting it’s versions of the specific
facts of this case. This amounted to the State seeking to
predispose the jurors, and the way they would vote on the
specific facts of this case.( T.r. 81 )( T.r. 172 )
E. When counsel failed and refused to make the
proper objection to the courts improper statement to the voir
dire panels that movant could be pardoned by the Governor for
a conviction of First Degree Murder. These statements by the
court effectively advised the voir dire panels that a sentence of
death imposed by the jurors was not final, thus undermining the
reliability of the juries verdict by removing the responsibility of
the burden for the imposition of death. ( T.r. 207 )
F. When counsel failed and refused to conduct any
meaningful voir dire examination, and failed and refused to
make any objections when same was obviously proper to the
states request for jurors being struck for cause, when no legal
cause existed for said strikes. Counsel also failed to make any
effort to rehabilitate potential jurors who spoke ambiguously as
to their position concerning the imposition of the death penalty.
(210...)
G. When counsel failed and refused to properly
object to the court reading instructions to the jury, that only
become proper at the close of all evidence, during voir dire.
H. When counsel failed and refused to make the
proper objection when the States attorney, during voir dire
examination impermissibly advised the jury as to what, in the
481
States attorneys opinion constituted First Degree Murder. The
States attorneys personal opinions and legal theories were
impermissibly placed before the jury, thus invading the
province of the jury and the court. ( 362 )
1, When counsel improperly agreed to the States
request to have jurors struck for caused based upon their
personal opposition to the death sentence. That is, counsel
agreed to jurors being stricken for cause despite the fact that
these pctential jurors had in no way indicated that they were
unable , or unwilling to put aside their personal opinions and
follow the courts instructions. ( T.r. 365 )
a When counsel without movants consent or
knowledge agreed to allow the trial court to instruct the jury
that in a previous case another defense attorney had in fact lied
and misled a previous jury. (T.r. 442 )
K. When counsel failed to properly object to the
courts voir dire examination, on the grounds that said questions
misrepresented the law, i.e. the court asked potential jurors if
the jurors" . . . sentence him to death. ..”. This was not a
proper question in that it did not elicit whether or not the juror
was capable of considering the entire range of punishment
allowed by law.
L. When counsel improperly agreed with the state
to allow the court to excuse juror Hughes for cause due to
illness. ( T.R. 501 ) Thereafter defense counsel for no known
or logical reason wastes one of movants peremptory strikes to
remove this already removed juror (T.r. 501 ).
M. When counsel failed to properly object to the
State advising the jury during opening arguments that the
evidence would show that movant was involved in an ongoing
and existing conspiracy. This statement by the State was
improper in that the state never offered any evidence to support
this claim, and counsel should have reasonably known that the
State would not be forthcoming with such evidence, as no such
482
evidence had been disclosed during pre trial discovery.
N. When counsel failed to question witnesses Black
and Kinney in such a manner as to make the jury aware of the
fact that these witnesses had made prior inconsistent statements.
Counsel failed to impeach these witnesses with their prior
inconsistent statements and further failed to offer these
inconsistent statements as substantive evidence for the junes
consideration. The aforstated was done despite counsels
knowledge of the inconsistent statements and to the movants
prejudice.
O. When counsel failed and refused to conduct
reasonable pre-trial discovery, including but not limited to
interviewing and deposing States witnesses. Counsel conducted
no pre trial interviews and took no depositions. Had counsel
conducted reasonable discovery counsel would have been in a
position to successfully challenges the credibility of the States
key witnesses by impeachment with inconsistent statements and
rebuttal.
P. When counse! failed to file a motion to suppress
the in court identification of movant by witness caro! Kinney,
on the grounds that said identification was the product of
impermissibly suggestive conduct by the State, and mistaken
identity on the part of the witness.
Q. When counsel failed to properly impeach the
testimony of Carol Kinney by offering the testimony of Ben
Kinney. Counsel knew or reasonably should have known that
Ben Kinney, if called would have testified that Caro] Kinney
had made statements prior to trial to Ben Kinney that were
inconsistent with her trial testimony and in court identification
of movant.
R. When counsel failed to object to the State
improperly bolstering the testimony of the States witnesses
concerning the in court identification of movant by presenting
to the jury video tapes of the line up procedure employed
483
involving movant. The video tapes were shown to the jury in
an effort to bolster the incourt identification prior to the
witnesses credibility being placed in question.
S. When counsel failed and refused to honor
movants request and present expert testimony to the effect that
drug use had on the mind and on the minds ability to correctly
receive, process and intrepit information. Had counsel
presented said expert testimony the jury could have reasonably
found that the incourt identification of movant was not reliable
due to the witnesses admitted drug consumption and influence
at the cogent times.
T. When counsel failed to call to the courts
attention and failed to take the necessary steps to preclude the
jury, witnesses and the general public from being able to
overhear each and every bench conference. This includes
conferences that were off the record and those recorded.
Allowing the jury to overhear the bench conferences without
question prejudiced movant, and defense counsel knew or
reasonably should have known that all bench conferences were
audible throughout the courtroom.
U. When counsel engaged in unethical and
improper conversations with the victims immediate family
members. Said conversations involved discussions by defense
counsel concerning the merits of movants defense and movants
trial strategy, all to the prejudice of movant. Defense counsel
knowingly violated the attorney -client relationship by
divulging the aforestated, and this conduct is more grievous
when defense counsel knew or reasonably should have known
that the victims family members were relaying all information
to the States attorney.
V. When counsei failed to object to the State
withholding and suppressing evidence favorable to movant,
when said information became apparent during trial. The State
had shown witness Kinney and Black a photograph of movant
484
prior to these witnesses making an identification of movant, and
the witnesses did not recognize movants photograph as being
one of the perpetrators. This was valuable impeachment
evidence that was suppress and withhold by the State.
W. When counsel failed and refused to offer the
testimony of Charlie Ross and Joyce Williams on movants
behalf. Had these witnesses been called they would have
provided testimony that impeached the States witness Ernest
Black and provided movant with an alibi, respectively.
X. When counsel preceded to trial knowing there
existed a conflict of interest between movant and other clients
represented by Mr. Duncan. In that Mr. Duncan was unable to
devote his full time and attention to movants trial due to
proceedings being conducted in other forums at the same time
as movants trial, thus resulting in Mr. Duncan leaving movants
murder trial while court was in session to attend other
proceedings. It is absurd for a defense counsel to pretend to
represent a client in a capital case on a piece meal basis.
\ f When counsel failed to object to the trial courts
failure to instruct the jury in a clear and understandable manner.
The trial court instruction to the jury are so confusing and
misleading that a juror could have misunderstood the
instructions to require that a mitigating circumstance be -
unanimously found before it could be considered by a single
juror as evidence in mitigations. See: MILLS VS.
MARYLAND, >: ee |
y A When counsel failed to object to the trial court
trying and sentencing movant under the current Missouri death
penalty laws on the grounds that said statutes are
unconstitutional for at jeast but not limited to the fact that said
statutes allow the prosecuting attorney totally unbridled
discretion in who will be death eligible.
AA. Whencounsel failed and refused to request that
the court instruct the jury on the lesser included offenses of
485
second degree murder and manslaughter when said instructions
were supported by the evidence and when failure to so instruct
denied movant equal protection under existing Missoun law.
BB. When counsel failed to request the court to
instruct the jury that the testimony of a drug addict should be
taken with caution and care.
CC. When counsel improperly questioned the States
witness Black, in such a manner as to elicit very damaging and
prejudicial information not theretofore presented, i.e. the in
court identification of movant as being on of the perpetrators.
486
PORTION OF TRIAL OF RESPONDENT (Feb. 6, 1989)
CROSS-EXAMINATION by Mr. O'Connor:
Q: Deonta did pick out A.J.’s picture, though, nght?
A.: He recognized his picture. Yes, sir.
Q: And you knew the boys had witnessed the crime? Correct?
A: Yes, sir.
Q: You had talked to them?
A: Yes, sir.
Q: And they gave you some pretty detailed information about
he suspects, did they not?
A: Yes, sir.
Q: And then you showed them some photographs?
A: Yes, sir.
Q: After that?
A: That's correct.
Q: Are you telling us the purpose of showing the photograph
was just to see if they knew people? Just, “Do you know these
guys?”
A: No, sir. The purpose of showing the photographs was to
identify any possible suspects.
Q: And then Deonta picked this pisture out, isn’t that true?
A: Not as a suspect sir.
Opposition Brief Unavailable for Filming at this Time
&)
No. 05-686
IN THE
SUPREME COURT OF THE UNITED STATES
DONALD P. ROPER,
Superintendent, Potosi Correctional Center,
Petitioner,
V.
LEAMON WHITE,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Eighth Circuit
PETITIONER’S REPLY BRIEF
—
JEREMIAH W. (“JAY”) NIXON
Attorney General of Missouri
STEPHEN D. HAWKE
Assistant Attorney General,
Counsel of Record
RONALD S. RIBAUDO
Assistant Attorney General,
Of Counsel
P.O. Box 899
Jefferson City, Missouri 65102
Phone: (573) 751-8432
Attorneys for Petitioner
~
_—
TABLE OF CONTENTS
Table of CCP er heSeee vee kd cberveccceeccs ii
eee eee eserecosceceesececce ]
I. Ineffective Assistance of Counsel .............-. 2
Il. Independent & Adequate State Grounds Doctrine .. 6
EE 10
TABLE OF AUTHORITIES
Cases:
Bradshaw vy. Richey, 126 $.Ct. 602 (2005) ............. ¥
Chandler v. United States, 218 F.3d 1305
Ch Gas OE ac Swidkc aeendaen esse eeuee 4
Ford v. Georgia, 498 U.S. 411 (1991) .. 2.6... eee. 1,6,7
Higgason v. Clark, 984 F.2d 203 (7th Cir. 1993) ......... 4
Holland v. Jackson, 542 U.S. 649 (2004) ... 2... ...6.-5-. 7
Hormel v. Helvering, 312 U.S. 552 (1941)... 2.2.6.4... 4,5
ITT Commercial Fin. Co. v. Mid-Am. Marine Supply
Corp., 854 S.W.2d 371 (Mo. 1993) (en banc) ........ 9
Kimmelman v. Morrison, 477 U.S. 365 (1986) ........... 4
Kontrick v. Ryan, 540 U.S. 443 (2004) . 2.6... eee ee 5
Lockhart v. Fretwell, 506 U.S. 364 (1993) .... 0... 2.455: 5
Luleff v. State, 807 S.W.2d 495 (Mo. 1991) (en banc) 7-8, 10
Morrow v. State, 21 S.W.3d 819 (Mo. 2000) (en banc) ....9
Pollard v. State, 807 S.W.2d 498 (Mo. 1991) (en banc) . 8-9
Sanders v. State, 807 S.W.2d 493 (Mo. 1991} (en banc) 7-10
State v. Ervin, 835 S.W.2d 905 (Mo. 1992) (en banc) ... 8-9
il
State v. Holmes, 605 S.E.2d 19 (S.C. 2004) ......... 2n'
State v. Stokes, 638 S.W.2d 715 (Mo. 1982) (en banc) .. 2-3
Strickland v. Washington, 666 U.S. 668 (1984)...... 1, 3-5
State v. Bradley, 811 $.W.2d 379 (Mo. 1991)
SPEED bois dv eSedeu ded et vere ds cvudeds 7-9
State v. Owsley, 959 §.W.2d 789 (Mo. 1997) (en banc) ... 6
State v. Rousan, 961 $.W.2d 831 (Mo. 1998) (en banc) ... 2
State v. Starks, 856 S.W.2d 334 (Mo. 1993) (en banc) .... 9
United States v. Cook, 406 F.3d 485 (7th Cir. 2005) ...... 5
United States v. Irizarry, 673 F.2d 554 (ist Cir. 1982) ... a
Universal Title Ins. Co. v. United States, 942 F.2d 1311
I EE oo at iO ea el ee a 5
Wiggins v. Smith, 539 U.S. 510 (2003) .........-.... 1,3
Rules & Other Authorities:
Daniel J. Meltzer, State Court Forfeitures of Federal Rights,
99 HARV. L. REV. 1128, 1141 (1986) .............. 6
Pet. for Certiorari in State v. Holmes, 2005 WL 770655 .. 2
Rule 2 of the Rules Governing Habeas Corpus Cases .... 4
Rule 5 of the Rules Governing Habeas Corpus “ases ..... 4
U.S. Supremte Comst Rule 10 ... 0. cccnccccccccccess 3
l
No. 06-686
IN THE
SUPREME COURT OF THE UNITED STATES
DONALD P. ROPER,
Petitioner,
v.
LEAMON WHITE,
Respondent.
On Petition for a Writ of Certiorari to the
U.. ited States Court of Appeals for the Eighth Circuit
PETITIONER’S REPLY BRIEF
The petition demonstrates why this Court should review this
case. By holding White’s trial counsel ineffective for not
presenting inadmissible evidence, by deeming counsel’s
investigation inadequate without specifying what new
information of assistance to the defense counsel would have
acquired through a broader investigation, and by placing on
petitioner the burden of proving the reasonableness of counsel’s
decision not to cal] two witnesses (one of whom could only
have given redundant testimony), the Eighth Circuit
contravened Wiggins v. Smith, 539 U.S. 510 (2003), and
Strickland v. Washington, 666 U.S. 668 (1984) — and created a
circuit split. By deeming inadequate the Supreme Court of
Missouri’s abandonment remedy allowing consideration of
some of White’s postconviction claims, the Eighth Circuit
turned on its head the independent and adequate state grounds
doctrine as set forth in Ford v. Georgia, 498 US. 411 (1991).
Contrary to the Eighth Circuit, that remedy was mandated by
2
settled Missouri precedent. White has no cogent answer to
these arguments.
I. Ineffective Assistance of Counsel
1. According to White, “no serious question exists about
the admissibility of Dorothy Merrell 's testimony under Missouri
law.” Resp. Bnef 12. White maintains that evidence of a third-
party’s guilt is inadmissible “only when it is ‘conjectural’ or
‘disconnected and remote."” Resp. Brief 13. Wrong: In
Missoun, such evidence is inadmissible unless its proponent
can establish that it is “of the kind that directly connects the
other person with the corpus delicti and tends clearly to point to
someone other than the accused as the guilty person.” State v.
Rousan, 961 S.W.2d 831, 848 (Mo. 1998) (en banc). That
evidentiary rule has been Missouri's since at least 1968, Srate
v. Stokes, 638 S.W.2d 715, 723 (Mo. 1982) (en banc), and,
contrary to White’s assertion, Resp. Brief 11
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