Volume 43

1 IN THE CRIMINAL DISTRICT COURT NO. 3
2 DALLAS COUNTY, TEXAS
3
4
5
6 THE STATE OF TEXAS } NO. F-96-39973-J
7 VS: } & A-96-253
8 DARLIE LYNN ROUTIER } Kerr Co. Number
9
10
11
12
13 REPORTERS RECORD
14 JURY TRIAL
15 VOL. 43 OF 53 VOLS.
16 January 28, 1997
17 Tuesday
18
19
20
21
22
23
24
25
Sandra M. Halsey, CSR, Official Court Reporter
4399

1 C A P T I O N
2
3
4 BE IT REMEMBERED THAT, on Tuesday, the 28th day of
5 January, 1997, in the Criminal District Court Number 3 of
6 Dallas County, Texas, the above-styled cause came on for
7 a jury trial before the Hon. Mark Tolle, Judge of the
8 Criminal District Court No. 3, of Dallas County, Texas,
9 with a jury, and the proceedings were held, in open
10 court, in the City of Kerrville, Kerr County Courthouse,
11 Kerr County, Texas, and the proceedings were had as
12 follows:
13
14
15
16
17
18
19
20
21
22
23
24
25
Sandra M. Halsey, CSR, Official Court Reporter
4400

1
2 A P P E A R A N C E S
3
4
5 HON. JOHN VANCE
6 Criminal District Attorney
7 Dallas County, Texas
8
9 BY: HON. GREG DAVIS
10 Assistant District Attorney
11 Dallas County, Texas
12
13 AND:
14 HON. TOBY SHOOK
15 Assistant District Attorney
16 Dallas County, Texas
17
18 AND:
19 HON. SHERRI WALLACE
20 Assistant District Attorney
21 Dallas County, Texas
22
23 APPEARING FOR THE STATE OF TEXAS
24
25
Sandra M. Halsey, CSR, Official Court Reporter
4401

1 ADDITIONAL APPEARANCES:
2
3 HON. DOUGLAS D. MULDER
4 Attorney at Law
5 2650 Maxus Energy Tower
6 717 N. Harwood
7 Dallas, TX 75201
8
9 AND: HON. CURTIS GLOVER
10 Attorney at Law
11 2650 Maxus Energy Tower
12 717 N. Harwood
13 Dallas, TX 75201
14
15 AND: HON. RICHARD C. MOSTY
16 Attorney at Law
17 Wallace, Mosty, Machann, Jackson & Williams
18 820 Main Street, Suite 200
19 Kerrville, TX 78028
20
21 AND: HON. S. PRESTON DOUGLASS, JR.
22 Attorney at Law
23 Wallace, Mosty, Machann, Jackson & Williams
24 820 Main Street, Suite 200
25 Kerrville, TX 78028
Sandra M. Halsey, CSR, Official Court Reporter
4402

1
2 AND: HON. JOHN HAGLER
3 Attorney at Law
4 901 Main Street, Suite 3601
5 Dallas, TX 75202
6 ALL ATTORNEYS REPRESENTING THE
7 DEFENDANT: DARLIE ROUTIER
8 MR. HAGLER HANDLING THE APPEAL
9 AND:
10 HON. ALBERT D. PATILLO, III
11 Attorney at Law
12 820 Main Street, Suite 211
13 Kerrville, TX 78028
14 APPEARING FOR: Witness-
15 Detective Jimmy Patterson
16 only on one date in trial
17 AND:
18 HON. STEVEN J. PICKELL
19 Attorney at Law
20 620 Earl Garrett Street
21 Kerrville, TX 78028
22 APPEARING FOR: Witness
23 Officer Chris Frosch
24 only on one date in trial
25
Sandra M. Halsey, CSR, Official Court Reporter
4403

1 P R O C E E D I N G S
2
3 January 28th, 1997
4 Tuesday
5 8:30 a.m.
6
7 (Whereupon, the following
8 proceedings were held in
9 open court, in the presence
10 and hearing of the
11 defendant, being
12 represented by her attorneys
13 and the representatives of
14 the State of Texas, but
15 outside the presence of the
16 jury, as follows:)
17
18
19 THE COURT: Mr. Mosty, are you ready?
20 MR. RICHARD C. MOSTY: Well, that
21 depends on what we're getting ready to do.
22 THE COURT: Well. All right. Where
23 is Mr. Mulder?
24 MR. RICHARD C. MOSTY: I don't know,
25 your Honor.
Sandra M. Halsey, CSR, Official Court Reporter
4404

1 THE COURT: All right. Let the record
2 reflect that these proceedings are being held outside the
3 presence of the jury and all parties in the trial are
4 present.
5 Mr. Mosty, you will be representing
6 Mrs. Routier for this hearing. It's past 8:30 and I have
7 told everyone to be here at 8:30.
8 MR. RICHARD C. MOSTY: Yes, sir, I
9 will represent Mrs. Routier.
10 THE COURT: I figured that is what we
11 will do.
12 MR. RICHARD C. MOSTY: If that is okay
13 with the Court?
14 THE COURT: That is fine with the
15 Court. Fine with the Court. All right. The purpose of
16 this hearing today is we're discussing the microphones
17 that were put out at the cemetery. And Officer -- let
18 the record reflect that Officer Patterson is present, and
19 he has been appointed an attorney for this purpose, Mr.
20 Albert Patillo, from Kerrville; and Officer Frosch has
21 been appointed Mr. Steve Pickell, P-I-C-K-E-L-L, of
22 Kerrville.
23 And, Mr. Patillo, you have conferred
24 with your client?
25 MR. PATILLO: Yes, I have, your Honor.
Sandra M. Halsey, CSR, Official Court Reporter
4405

1 THE COURT: And, what is the result of
2 that conference?
3 MR. PATILLO: We will decline to
4 testify further in this matter. And my client, on my
5 advice, will take the Fifth.
6 THE COURT: As regards to the
7 microphones at the cemetery?
8 MR. PATILLO: Yes, sir.
9 THE COURT: All right. Will you, have
10 Mr. Pickell, and his client, step in, please.
11 And, let the record reflect that
12 Officer Frosch -- and I am embarrassed, I have forgotten
13 your first name.
14 OFFICER CHRIS FROSCH: Chris.
15 THE COURT: Officer Chris Frosch,
16 F-R-O-S-C-H, is present, and with his attorney, Mr. Steve
17 Pickell.
18 And you have conferred with your
19 client, Mr. Pickell?
20 MR. PICKELL: Yes, your Honor.
21 THE COURT: Okay. What is the result
22 of that conference?
23 MR. PICKELL: Your Honor, Detective
24 Frosch would assert his Fifth Amendment right.
25 THE COURT: Concerning the testimony
Sandra M. Halsey, CSR, Official Court Reporter
4406

1 as regards to the recording devices or the microphones,
2 or whatever, that were put up at the cemetery, and only
3 regards that, concerning only that portion; is that
4 correct?
5 MR. PICKELL: That is correct, your
6 Honor.
7 THE COURT: All right. Fine.
8 Anything, Mr. Davis?
9 MR. GREG DAVIS: Yes, sir. At this
10 time, the State would indicate that we believe this
11 testimony is not relevant, it's improper impeachment.
12 And, again, I'm talking about the subject of the mike on
13 the grave site. And we would ask that the Court instruct
14 Mr. Mulder not to go into these matters any further in
15 front of this jury, because again, we feel the
16 prejudicial effect here, of having to inform the jury
17 that these officers have taken the Fifth Amendment.
18 Again, we believe that the matters are
19 irrelevant and that they are improper impeachment.
20 THE COURT: The State is not going to
21 use anything that came out of that?
22 MR. GREG DAVIS: That is correct. We
23 are not going to go into that matter. We're not going to
24 offer any of those recordings, video or otherwise, so we
25 did not intend to talk about that matter in front of this
Sandra M. Halsey, CSR, Official Court Reporter
4407

1 jury.
2 THE COURT: Was there any exculpatory
3 material in that?
4 MR. GREG DAVIS: No, sir, but in all,
5 in caution, I did turn over those matters to the defense.
6 THE COURT: So the defense has those
7 tapes? You gentlemen have those tapes?
8 MR. DOUGLAS MULDER: Judge, they are
9 the ones that first went into this matter. We didn't go
10 into anything at the grave site. They did.
11 THE COURT: All I want to know right
12 now, Mr. Mulder, is: Do you have those tapes?
13 MR. DOUGLAS MULDER: Well, I have some
14 tapes. I don't know whether I have those.
15 THE COURT: Did you listen to them?
16 MR. DOUGLAS MULDER: Yes, sir.
17 THE COURT: When were they given to
18 the defense?
19 MR. DOUGLAS MULDER: Well, we didn't
20 get into the case until --
21 MR. GREG DAVIS: Probably sometime in
22 November, I believe.
23 MR. DOUGLAS MULDER: So, if it's like
24 everything else, it came in at the last minute or
25 sometime in January.
Sandra M. Halsey, CSR, Official Court Reporter
4408

1 MR. RICHARD C. MOSTY: Well, let me
2 describe that, your Honor. There is a video tape, that
3 is obviously taken from a vehicle near the grave site,
4 that you can see it panning on various people. And, then
5 you hear the audio.
6 Sometimes the audio -- it depends on
7 how close they were to the mike, on whether or not you
8 could hear it. But that video is -- it starts off with
9 some gentleman out there watering the grave sites,
10 apparently an employee, and is, I am guessing, it covers,
11 maybe, as much as 14 hours that day.
12 THE COURT: Well, then the video
13 does --
14 MR. RICHARD C. MOSTY: So it's hard to
15 say, and our copy -- I don't know what the State's copy
16 is like -- our copy is not all so great on the video
17 part.
18 MR. DOUGLAS MULDER: Judge, I would
19 like to point out to the Court, that I think felonious
20 conduct on the part of the police officers during an
21 investigation is always material.
22 It goes to the integrity of the
23 investigation. And, you know, whether they like it or
24 not, they are the ones that opened this up. We didn't go
25 into anything at the grave site. The prosecution did.
Sandra M. Halsey, CSR, Official Court Reporter
4409

1 And, you know, they have to take the
2 bad with the good. They were smiling and telling jokes
3 when this video was on for the jury. And now they have
4 got to take the corresponding responsibility of what this
5 has brought.
6 So, any time the investigation has
7 been compromised by felonious conduct on the part of the
8 officers, it's always admissible to the jury. And, I
9 would certainly caution the Court, or remind the Court,
10 that they can't take the Fifth on part of their
11 testimony.
12 They are like everybody else when it
13 comes to getting on the witness stand. They can't assert
14 the Fifth just to a certain matter. And say, "I don't
15 want to talk about that, and I want to hide behind the
16 Fifth Amendment."
17 MR. RICHARD C. MOSTY: And not only on
18 the relevance issue, the Court has got to remember, that
19 Cron has testified that he decided within 20 minutes
20 that -- of the defendant's guilt, that the Rowlett Police
21 Department was informed of that, that Mr. Davis was on
22 the job within five days after that, and that this -- and
23 this whole focus, as I said in my opening statement, she
24 became the target in the rifle scope, at the beginning,
25 and the methodology and how Rowlett went about
Sandra M. Halsey, CSR, Official Court Reporter
4410

1 investigating this, and choosing not to investigate other
2 things, is directly shown by going out and putting an
3 illegal bug out in a graveyard.
4 THE COURT: Okay. So you're using
5 this to impeach the officers; is that correct?
6 MR. RICHARD C. MOSTY: I don't know
7 that impeach is the right --
8 MR. DOUGLAS MULDER: Not exclusively.
9 MR. RICHARD C. MOSTY: We're using it
10 to show what they did. It's just a simple fact of how
11 they investigated it.
12 MR. DOUGLAS MULDER: But, Judge, once
13 again, they brought it up. We didn't go into this
14 matter. And now they have got to take the bad with the
15 good.
16 THE COURT: Let Mr. Hagler make his
17 objections. These are the real objections.
18 MR. JOHN HAGLER: Well, your Honor, a
19 couple things as far as the facts. They are arguing
20 irrelevancy, your Honor.
21 Again, I think Mr. Mosty has already
22 stated, that certainly it's relevant, in the fact that
23 the defendant was targeted in this case within 20 minutes
24 as being the assailant.
25 And, certainly, this would have some
Sandra M. Halsey, CSR, Official Court Reporter
4411

1 relevancy as to the jury, in our showing that there is a
2 motive on the part of the police department to actively
3 pursue the defendant and to target her as the assailant
4 in this case.
5 Secondly, your Honor, they have --
6 again, they, of course, have offered the tape. They made
7 the issue of the grave site matter in this case. They
8 have injected this matter in front of the jury.
9 Certainly, we're entitled to bring out all of the
10 circumstances surrounding the grave, the grave site
11 matters, you know.
12 Furthermore, is the fact that they
13 have made the issue of lack of remorse at the grave side
14 an issue, and we're entitled to elicit all of the
15 testimony from these officers.
16 I might mention, they're talking about
17 tapes and the video. Now, to my understanding, and I
18 don't know all of the facts, obviously, but there was an
19 open wire on this grave side.
20 There may well be matters other than
21 that which appears on the tape, and on the video
22 surveillance. Of course, the tape is the intercept
23 problem we have here.
24 But we don't know what all transpired
25 out there. We don't know who was privy and overheard all
Sandra M. Halsey, CSR, Official Court Reporter
4412

1 of these oral conversations.
2 As I understand it, if the Court
3 denies us an opportunity to confront and cross examine
4 these witnesses, we're denied the opportunity of
5 eliciting all the facts and testimony surrounding the
6 grave side event, and incidents. And, I would further
7 submit to the Court, that the Court can't simply rely on
8 the blanket assertion by the State, that there is no
9 exculpatory statements made during any of these
10 intercepted conversations.
11 I think it's for the Court to make
12 that decision. It's for us to be able to elicit that
13 such information by means of cross examination and
14 confrontation.
15 Your Honor, but if the Court rules
16 that and prohibits us from cross examining the witnesses
17 concerning their knowledge, the conversations, the events
18 surrounding the illegal intercept of the conversations at
19 the grave side, that would constitute a violation of the
20 defendant's Fifth and Sixth rights under the U.S.
21 Constitution and the Fourteenth Amendment rights. And
22 Article 1, section 10 of the Texas Constitution, and
23 specifically the right to confront and cross examine the
24 witnesses concerning the events surrounding the illegal
25 intercept.
Sandra M. Halsey, CSR, Official Court Reporter
4413

1 Furthermore, your Honor, it would also
2 prevent us from going in, or offering in front of the
3 jury, the testimony regarding the credibility of the
4 witnesses, their motive and intent surrounding their
5 investigation in this case.
6 THE COURT: All right. Fine. The
7 Court finds -- that -- the Court holds this is improper
8 impeachment evidence.
9 The officers actions do not reflect
10 upon the officers -- the officer who has testified so
11 far. His actions do not reflect upon his character for
12 truthfulness or untruthfulness regarding his testimony in
13 this case.
14 Any recordings that may have been made
15 were not admitted as evidence, nor was there an attempt
16 to admit them as evidence.
17 For these reasons, I find that the
18 potential prejudice outweighs the probative value of this
19 evidence, and the defense is ordered not to go into it,
20 should these officers be recalled to the stand.
21 Now, if you want a running objection
22 on that, you may have it.
23 MR. JOHN HAGLER: Yes, your Honor.
24 MR. RICHARD C. MOSTY: Your Honor, we
25 can go into, for instance, things that refute, on that
Sandra M. Halsey, CSR, Official Court Reporter
4414

1 tape, refute the inference that the State has done?
2 THE COURT: There was a videotape done
3 by Channel 5. I think everyone in the country has seen
4 out there.
5 MR. RICHARD C. MOSTY: Well, you know
6 what they didn't see, was the funeral service. The State
7 has illegally intercepted the funeral service where they
8 stand around and pray. The State offers the Silly String
9 part of the day, and they have the prayer there, where
10 the first part of it is the prayer where they illegally
11 intercept a prayer at a grave side. And we can't offer
12 that?
13 THE COURT: Well, I think that has
14 already been offered.
15 MR. GREG DAVIS: You know, your
16 Honor --
17 MR. RICHARD C. MOSTY: We have a video
18 of it.
19 MR. GREG DAVIS: I don't think there
20 is any problem with Mr. Mosty or Mr. Mulder offering that
21 videotape. I mean, whatever was visually recorded out
22 there, we certainly don't have a problem with them doing
23 that. It's just the circumstances under which that was
24 gathered. You know, if they can show what happened out
25 there, if they want to show that videotape.
Sandra M. Halsey, CSR, Official Court Reporter
4415

1 MR. DOUGLAS MULDER: But we can't ask
2 the --
3 MR. GREG DAVIS: So they have that
4 option. And they still get to show what they feel is
5 important for them to show to this jury.
6 THE COURT: Well, anyway, that is
7 fine. If you want to do that, that will be fine, but
8 that is the Court's ruling, and the Court will note your
9 objection.
10 You don't have to object in front of
11 the jury for any purposes. You will have a running
12 objection. And, at 9:00 o'clock we will proceed.
13 MR. GREG DAVIS: Yes, sir.
14 MR. DOUGLAS MULDER: Just so I am
15 abundantly clear on this, are you telling me that if I
16 recall Detective Jimmy Patterson, that I can't go into
17 this matter at all?
18 THE COURT: That's correct.
19 MR. DOUGLAS MULDER: Okay.
20 MR. RICHARD C. MOSTY: And we can't
21 even go into the motive of how they conducted their
22 investigation?
23 It's been a central theme of this case
24 from the beginning, is that these men went to the -- went
25 to the stage of illegal activities, to try to target in
Sandra M. Halsey, CSR, Official Court Reporter
4416

1 on this lady. That has been the beginning of this case,
2 and it is exactly what this case is about, in it's
3 entirety. Is that they never did anything, other than
4 focus on Darlie Routier, and they wanted to do it so bad,
5 that they would violate state and federal law to do so.
6 And we are not allowed to go into that?
7 THE COURT: Well, the Court ruling
8 stands. Thank you.
9 MR. DOUGLAS MULDER: Judge, let me ask
10 this just for a little direction from the Court. Does
11 the Court intend to give the jury any explanation or
12 clarification, or just let it --
13 THE COURT: Well, we will go over the
14 charge at the appropriate time. I'm happy to do that.
15 MR. DOUGLAS MULDER: I mean, you don't
16 intend to say anything to the jury. You know, he was
17 plucked from the witness stand, rather inappropriately,
18 and I take it the Court doesn't --
19 THE COURT: Well, I think both sides
20 agreed with that. I don't think he was plucked from the
21 witness stand.
22 MR. DOUGLAS MULDER: Well, he refused
23 to answer any questions, Judge, until he had a chance to
24 talk to his lawyer.
25 THE COURT: I understand that.
Sandra M. Halsey, CSR, Official Court Reporter
4417

1 MR. RICHARD C. MOSTY: Well, if --
2 MR. DOUGLAS MULDER: If they call -- I
3 understand if I call the officers, I can't go into it.
4 If they call them, can I go into it as impeachment?
5 THE COURT: Well, certainly if any
6 door is opened. I don't think they will be calling the
7 officer, but they may very well do it. But we want to
8 stay out of that, because I am holding that that is not
9 relevant in this particular case.
10 MR. DOUGLAS MULDER: Well, I'll
11 suggest to the Court, that the door is opened if they
12 talk about any part of the investigation, because this
13 was part of the investigation.
14 THE COURT: Well, let's take that up
15 at the appropriate time.
16 MR. DOUGLAS MULDER: Well, you know,
17 Judge, it kind of depends on -- it has interrupted our
18 strategy in this case. And you know, I can go with it
19 either way. I don't care what the rules are, just as
20 long as I know what they are. If I understand what the
21 rules are, I can play by anybody's rules.
22 THE COURT: Well, the rule now is
23 this: Don't go into it.
24 MR. DOUGLAS MULDER: All right. I
25 understand that. But, are they going to call -- if they
Sandra M. Halsey, CSR, Official Court Reporter
4418

1 are going to call the officers, I will be allowed to go
2 into it?
3 THE COURT: Well, anything, Mr.
4 Mulder, that is opened up by any examination, you will be
5 allowed to go into. That is correct.
6 MR. DOUGLAS MULDER: Well, I would
7 suggest to the Court, that if they go into anything,
8 about an investigation, that this is part of the
9 investigation.
10 THE COURT: Well, we'll cover that at
11 the time that it comes. That may very well be the case.
12 MR. RICHARD C. MOSTY: Is the Court
13 going to allow, for instance, Mr. Frosch to get up and
14 testify about some things, and then in the middle of it,
15 prohibit -- or take the Fifth?
16 THE COURT: The Court is going to
17 allow -- if Mr. Frosch is called, Mr. Frosch will
18 testify.
19 MR. RICHARD C. MOSTY: Pardon me?
20 THE COURT: If Mr. Frosch is called,
21 he will testify. If the door is opened to anything,
22 certainly, you will be able to get into it.
23 MR. RICHARD C. MOSTY: So the Court is
24 going to let him get up and testify about some things,
25 and prohibit us from going into the full investigation?
Sandra M. Halsey, CSR, Official Court Reporter
4419

1 THE COURT: We are not going to go
2 into whatever happened at the grave side as regards to
3 the alleged recordings out there.
4 MR. RICHARD C. MOSTY: Well, what
5 about the other officers who did it? Can we call them?
6 THE COURT: We will go each one
7 individually at the time.
8 MR. RICHARD C. MOSTY: All right.
9 THE COURT: Anything else?
10 MR. JOHN HAGLER: Just so I'm clear,
11 your Honor. You stated that, of course, we cannot
12 question them in front of the jury, but we also are
13 prohibited from questioning them during the hearing, as
14 to any and all statements.
15 THE COURT: You may question them
16 during the hearing. Do you want to question the officers
17 now?
18 MR. RICHARD C. MOSTY: Well, we
19 want -- one thing we want to know is we want to know
20 everyone who was involved in this.
21 THE COURT: Well, can you give them
22 that information?
23 MR. RICHARD C. MOSTY: And who knew
24 about it, participated in it, planned it.
25 MR. GREG DAVIS: That I don't know. I
Sandra M. Halsey, CSR, Official Court Reporter
4420

1 don't know those facts.
2 MR. DOUGLAS MULDER: Well, maybe Mr.
3 Davis needs a lawyer.
4 MR. GREG DAVIS: Maybe you do.
5 THE COURT: Well, I doubt that.
6 MR. DOUGLAS MULDER: I've got one.
7 THE COURT: I doubt that. I think
8 both sides -- all right, gentlemen, fine. Excuse me, go
9 ahead, Mr. Davis.
10 MR. GREG DAVIS: I was just going to
11 say, in this matter, so that we can all be clear, if Mr.
12 Mulder believes that the door has been opened, would you
13 please instruct him to approach the bench, discuss this
14 matter with you, before he begins to go through that
15 "open door," because we both know what he is going to do
16 here. He has done it in the past.
17 MR. DOUGLAS MULDER: Judge, I'll know
18 when the door is open.
19 THE COURT: Both sides are so
20 instructed to approach the bench before you do that, if
21 that is necessary.
22 MR. DOUGLAS D. MULDER: Yes, sir.
23 MR. GREG DAVIS: Thank you. Yes, sir,
24 so we won't have a repeat of what he did on Friday.
25 MR. DOUGLAS MULDER: Judge, I'll do
Sandra M. Halsey, CSR, Official Court Reporter
4421

1 that if it's not clear. And there wasn't anything
2 Friday. There wasn't anything said Friday about this
3 business.
4 MR. GREG DAVIS: No, I'm talking about
5 the other agreement that we had that he broke on Friday..
6 MR. DOUGLAS MULDER: There wasn't any
7 agreement Friday, not to go into the fact that Patterson
8 was --
9 THE COURT: Gentlemen, Friday has
10 passed. Friday has passed, and what occurred, occurred.
11 MR. RICHARD C. MOSTY: Yeah, well,
12 yesterday --
13 MR. DOUGLAS MULDER: Well, I didn't
14 make any agreement with them, not to mention that, Judge.
15 THE COURT: All right, Mr. Mulder,
16 fine.
17 MR. DOUGLAS MULDER: Y'all may have
18 had an agreement among yourselves, but I wasn't a party
19 to it.
20 THE COURT: Mr. Mulder. We do not
21 have any agreements with the Court. Is that clear?
22 MR. DOUGLAS MULDER: Right. Well, I
23 wasn't a party to that agreement. I didn't have any
24 agreement with them.
25 THE COURT: We understand. Would you
Sandra M. Halsey, CSR, Official Court Reporter
4422

1 please modulate your voice. I can hear you.
2 MR. DOUGLAS MULDER: I understand. I
3 didn't have any agreement with them. The only agreement
4 I had with them, was that their witnesses would be
5 present until -- the ones under subpoena -- until I
6 agreed to excuse them. And I never made that agreement.
7 I told them I would exercise that agreement Friday.
8 THE COURT: The Court understands what
9 happened last Friday, and that is over and passed and
10 done with. We're not going to discuss that.
11 MR. RICHARD C. MOSTY: Well, there is
12 also, for instance, a motion in limine prohibiting going
13 into breast implants that Mr. Davis went right through
14 yesterday without bothering to say, "Is the door open?
15 Can I go into this?"
16 And now we're supposed to abide by
17 these things and the State doesn't have to?
18 THE COURT: No. You all abide by
19 whatever motions are in the file.
20 MR. DOUGLAS MULDER: Well, Judge,
21 would the Court address that now?
22 THE COURT: Both sides are instructed
23 to stay within the motions of limine that are in there.
24 MR. DOUGLAS MULDER: Well, they
25 understood that, Judge. We went into it before the
Sandra M. Halsey, CSR, Official Court Reporter
4423

1 Court. You understood it, they understood it, but they
2 barged right in.
3 THE COURT: All right. Well, the
4 Court will instruct both sides to remain within the
5 motions in limine. You both know what they are. Let's
6 stay with it. If anybody does anything against it, well,
7 let's stand up and object. There was no objection
8 yesterday.
9 MR. RICHARD C. MOSTY: Well, of course
10 not.
11 MR. DOUGLAS MULDER: All that would do
12 is call attention to it. That is why we filed the motion
13 in limine, so we don't have to object.
14 THE COURT: All right.
15 MR. RICHARD C. MOSTY: And that is why
16 Mr. Davis did it that way.
17 THE COURT: Gentlemen, gentlemen, we
18 are here this morning on the hearing on Officer Patterson
19 and Frosch.
20 MR. RICHARD C. MOSTY: Well, may I go
21 back to my question?
22 THE COURT: Yes.
23 MR. RICHARD C. MOSTY: I would like to
24 know who all was involved in this?
25 MR. DOUGLAS MULDER: Well, he said you
Sandra M. Halsey, CSR, Official Court Reporter
4424

1 can go into that. Let's call Patterson --
2 THE COURT: Just a minute. Just a
3 minute. Calm down, Mr. Mulder. I can only talk to one
4 attorney at a time.
5 If the State knows who was involved in
6 it, you may please find out, and please advise the
7 defense.
8 MR. GREG DAVIS: Yes, sir.
9 MR. RICHARD C. MOSTY: May we call one
10 of these gentlemen and find out?
11 THE COURT: You may indeed.
12 MR. RICHARD C. MOSTY: Mr. Patterson
13 is under oath, isn't he?
14 THE COURT: He is indeed.
15 MR. RICHARD C. MOSTY: May I
16 inquire --
17 THE COURT: You may. Who was
18 involved -- I'll inquire. Who was involved in it?
19 MR. PATTERSON: I don't want to answer
20 that.
21 MR. DOUGLAS MULDER: Judge --
22 THE COURT: Well, all right.
23 MR. DOUGLAS MULDER: Well, he either
24 answers or goes to jail, doesn't he?
25 THE COURT: Mr. Mulder, if I want
Sandra M. Halsey, CSR, Official Court Reporter
4425

1 anything from you, I will ask you. Is that clear?
2 MR. DOUGLAS MULDER: Well, yes, sir.
3 THE COURT: Thank you very much. You
4 are refusing to answer that on the grounds that it may
5 tend to incriminate you; is that correct?
6 MR. PATTERSON: Yes, sir.
7 THE COURT: All right. Fine.
8 MR. RICHARD C. MOSTY: May we also
9 identify that Mr. Frosch says the same thing?
10 THE COURT: Mr. Frosch, is that your
11 answer?
12 MR. FROSCH: Yes, sir, it is.
13 MR. RICHARD C. MOSTY: So, now we
14 can't even find out who was involved?
15 THE COURT: Just a minute. Just a
16 minute. Just a minute, gentlemen.
17 All right. All right. The Court's
18 ruling is -- the Court's ruling stands as it is, as it
19 has been expressed. And if you object to that, we will
20 note your objection.
21 MR. RICHARD C. MOSTY: No. My inquiry
22 is, I want to know who else was involved. The State
23 ought to know, this is exculpatory evidence. This ought
24 to be turned over.
25 THE COURT: If the State knows who is
Sandra M. Halsey, CSR, Official Court Reporter
4426

1 involved, please inform the defense.
2 MR. RICHARD C. MOSTY: I mean, first,
3 there ought to be an investigation going on in Dallas
4 County as we speak about this.
5 THE COURT: Well, there may very well
6 be one, but right now, we're in a trial in Kerrville. We
7 have completed this hearing, and it's five minutes until
8 9:00, and at 9:00 o'clock I intend to continue the cross
9 examination of Darin Routier -- or the direct (sic)
10 examination by Mr. Davis.
11 MR. RICHARD C. MOSTY: When is the
12 State going to give me that information? I mean, it's
13 not going to do me much good in May.
14 THE COURT: Well, the State -- Mr.
15 Mosty, we understand that. Mr. Davis, should you learn
16 the information, give it to the defense as soon as
17 possible.
18 MR. GREG DAVIS: Yes, sir, I will.
19 MR. RICHARD C. MOSTY: And are they
20 under a duty to inquire?
21 THE COURT: Yes, they are under a duty
22 to inquire.
23 MR. RICHARD C. MOSTY: I just want to
24 be clear, because if he never asks him, he might never
25 know it.
Sandra M. Halsey, CSR, Official Court Reporter
4427

1 THE COURT: Well, Mr. Mosty, I think
2 that Mr. Davis and Mr. Shook and Miss Wallace will ask.
3 All right. Thank you. These
4 proceedings are concluded.
5
6 (Whereupon, a short
7 Recess was taken,
8 After which time,
9 The proceedings were
10 Resumed on the record,
11 In the presence and
12 Hearing of the defendant,
13 But outside the presence
14 Of the jury, as follows:)
15
16 THE COURT: All right. Let's go back
17 on the record. Briefly, Mr. Hagler has a couple more
18 objections he wants to make.
19 MR. JOHN HAGLER: Your Honor, I will
20 be very brief here with the Court.
21 Your Honor, just so that we are clear
22 on the ruling, your Honor, it's our understanding of the
23 ruling that both, of course, Frosch and Patterson have
24 invoked their Fifth Amendment privilege against
25 self-incrimination under the Fifth Amendment.
Sandra M. Halsey, CSR, Official Court Reporter
4428

1 We further understand the Court's
2 ruling, that in light of that invocation of the Fifth
3 Amendment right, that we're prohibited from inquiring
4 from those two officers, and I assume other officers who
5 may be involved in this intercept.
6 As to the: One, we are prohibited
7 from cross examining and questioning the officers
8 regarding the intercept, and all facts surrounding the
9 intercept.
10 THE COURT: That's correct.
11 MR. JOHN HAGLER: And furthermore, if
12 we were given the opportunity to question the officers,
13 we would go into matters such as the procedures utilized,
14 who initiated the -- who made the decision to initiate
15 the intercept, the individuals involved in the intercept,
16 how it was conducted, and any and all information that
17 was learned through the intercept, including matters, not
18 only those matters on the tape, but also matters that may
19 have been overheard but were not recorded by the
20 officers.
21 THE COURT: All right.
22 MR. JOHN HAGLER: And furthermore,
23 your Honor, we would also submit that the State has made
24 the assertion that there was no exculpatory matters on
25 the tape, and, again, we would urge that it's not for the
Sandra M. Halsey, CSR, Official Court Reporter
4429

1 State to make that decision. It's one that only the
2 Court can make, and the only one that we could bring to
3 light through cross examination and confrontation of
4 witnesses.
5 THE COURT: All right. Thank you.
6 MR. JOHN HAGLER: And finally, your
7 Honor, we would ask for a mistrial, based on our lack of
8 opportunity to cross examine the witnesses regarding
9 this, and the fact that we cannot question Patterson
10 regarding these matters.
11 THE COURT: All right. Thank you.
12 Now, had you made those objections prior to the ruling,
13 the Court's ruling would have been the same. Regarding
14 the motion for a mistrial, the motion for mistrial is
15 denied. With that in mind --
16 MR. GREG DAVIS: Also, before the jury
17 comes in, if I could inform the Court, that during the
18 break, I delivered to Mr. Mulder and Mr. Mosty the names
19 of two officers who I was informed actually did the
20 taping. So they now have those names.
21 MR. DOUGLAS MULDER: I don't have
22 the -- I would like the names of the co-conspirators in
23 the record, if we might.
24 THE COURT: I think -- the names have
25 been delivered, Mr. Mulder. Thank you.
Sandra M. Halsey, CSR, Official Court Reporter
4430

1 MR. RICHARD C. MOSTY: One point of
2 that delivery is, that these are Garland Police Officers,
3 which goes again, to show that they were not only -- not
4 only had Rowlett PD focused in, but they had focused in
5 with every other resource, and they brought in Garland PD
6 to do the illegal bug.
7 THE COURT: Thank you.
8 Now, I believe that Mr. Darin Routier
9 was on the stand on direct (sic) examination.
10 Mr. Biggerstaff, would you have him
11 step in, please?
12 MR. DOUGLAS MULDER: One last thing,
13 Judge, if we might.
14 THE COURT: Oh, just a minute. Okay.
15 MR. DOUGLAS MULDER: Aside from the
16 two names that we understand are Michael, R-O-B-E-R-B-S,
17 Roberbs. Is that supposed to be a T?
18 MR. GREG DAVIS: No, I believe it's a
19 B.
20 MR. DOUGLAS MULDER: Okay.
21 R-O-B-E-R-B-S. And Darin Baker. We want to know who
22 else knew of this plot.
23 THE COURT: Well, I doubt that there
24 are conspirators or a plot, but in any event, the Court
25 has directed Mr. Davis to give you the names available,
Sandra M. Halsey, CSR, Official Court Reporter
4431

1 which he has done, and that will conclude this hearing.
2 And have Mr. Routier step in, please.
3 All right.
4
5 (Whereupon, the jury
6 Was returned to the
7 Courtroom, and the
8 Proceedings were
9 Resumed on the record,
10 In open court, in the
11 Presence and hearing
12 Of the defendant,
13 As follows:)
14
15 THE COURT: All right. Good morning,
16 ladies and gentlemen.
17 Let the record reflect that all
18 parties in the trial are present, and the jury is seated.
19 And we will continue with the direct (sic) examination of
20 Mr. Routier by Mr. Davis. You may proceed.
21 MR. GREG DAVIS: Thank you, Judge.
22
23
24
25
Sandra M. Halsey, CSR, Official Court Reporter
4432

1 Whereupon,
2
3 DARIN ROUTIER,
4
5 was recalled as a witness, for the Defense, having been
6 previously duly sworn by the Court, to speak the truth,
7 the whole truth, and nothing but the truth, was examined
8 and testified further in open court, as follows:
9
10
11 CROSS EXAMINATION (Resumed)
12
13 BY MR. GREG DAVIS:
14 Q. Mr. Routier, yesterday, do you recall
15 that we talked about your Jaguar?
16 A. Yes, sir.
17 Q. And, yesterday, do you recall telling
18 me what was wrong with that Jaguar?
19 A. Yes, sir.
20 Q. What was wrong with it?
21 A. There was a tube that was going to
22 the -- one of the diaphragms that goes up into the
23 transmission.
24 Q. Okay. I believe that you had told me
25 yesterday, that it cost about three dollars to have that
Sandra M. Halsey, CSR, Official Court Reporter
4433

1 car fixed, correct?
2 A. Yes, sir.
3 Q. Now, on July the 1st, when you came
4 down to the courthouse and you were sworn in, do you
5 recall that we talked about the Jaguar at that time?
6 A. Yes, sir, I said that the transmission
7 had gone out.
8 Q. Okay. By the way, last night, did you
9 have a chance to go over your prior testimony?
10 A. No, sir.
11 Q. Okay. Did you talk to any lawyers
12 about your testimony?
13 A. No, sir.
14 Q. Nobody has talked to you?
15 A. I talked to Mr. Mulder about my sister
16 being -- just came in town.
17 Q. In July, when you came down, you told
18 me that the transmission was out, and it was going to
19 cost about three thousand dollars to fix that car, right?
20 A. I don't remember if it was three
21 thousand.
22 Q. Okay. About three thousand?
23 A. Well, I think it may have been more
24 around eight hundred.
25 Q. Okay.
Sandra M. Halsey, CSR, Official Court Reporter
4434

1 A. It was a Turbo 400.
2 Q. Let me show you page 16 of that
3 transcript. Do you see where I said, "Would it be fairly
4 expensive to repair the automobile just to get it
5 running?"
6 Do you see your answer, "About three
7 thousand dollars".
8 A. Yes, sir. (Witness nodding head
9 affirmatively.)
10 Q. Okay. Was that your answer back on
11 July the 1st?
12 A. Yes, it is.
13 Q. And, in July, do you remember telling
14 me that you only had thirty-two hundred dollars available
15 to you?
16 A. I don't recall.
17 Q. Do you remember that?
18 A. Oh, at the bond hearing?
19 Q. Yes, sir.
20 A. I remember saying that, yes, sir.
21 Q. Okay. Now, if we can, let's talk
22 about your business for a while. Yesterday, Mr. Mulder
23 asked you certain questions about your business, how it
24 was doing in 1996. And if you could, tell me again what
25 you projected your earnings to be for 1996 for your
Sandra M. Halsey, CSR, Official Court Reporter
4435

1 business.
2 A. I would project probably around a
3 quarter of a million dollars.
4 Q. Okay. Quarter of a million dollars.
5 Okay. Do you know what your income was through the first
6 five months of 1996, sir?
7 A. I have no idea.
8 Q. Okay. No ballpark figure?
9 A. No, sir.
10 Q. How were you doing this projection of
11 $250,000?
12 A. Just based on the first six months, I
13 did a hundred and eleven thousand. We would have had
14 June, July and August of our biggest months, about 40 or
15 50 thousand dollars during those three months.
16 Q. Of course, if your expenses are higher
17 than your income, it doesn't really matter how much you
18 are earning if you are spending more than you take in,
19 does it?
20 A. It really doesn't matter.
21 Q. I mean, it's not good, is it?
22 A. No, but we weren't spending more than
23 we were bringing in.
24 Q. Okay. Are you sure about that?
25 A. Yes, sir.
Sandra M. Halsey, CSR, Official Court Reporter
4436

1 Q. Okay. Have you looked over your
2 business records?
3 A. Not since -- no.
4 Q. Okay. Is it possible that you could
5 be wrong about that?
6 A. It's possible.
7 Q. Yesterday, when Mr. Mulder was asking
8 you questions about your business situation, what records
9 had you gone over to tell us about the condition of your
10 business?
11 A. Just looking at my books.
12 Q. Okay. Bank account records, also?
13 A. No, I have a CPA for that.
14
15
16 (Whereupon, the following
17 mentioned item was
18 marked for
19 identification only
20 after which time the
21 proceedings were
22 resumed on the record
23 in open court, as
24 follows:)
25
Sandra M. Halsey, CSR, Official Court Reporter
4437

1 MR. GREG DAVIS: Your Honor, at this
2 time, we are going to offer State's Exhibit 50-B, which
3 is the remainder of the Bank One records that were
4 previously admitted as State's Exhibit 50.
5 50-B contains the bank records
6 pertaining to Testnec. These have also been on file more
7 than 14 days as a part of the other records.
8 THE COURT: When you do talk, please
9 speak loudly. The last two jurors are indicating that
10 they can't hear you. Okay.
11 Make sure that you speak loud enough
12 so that gentlemen there and the lady in the pink back
13 there can hear you.
14 THE WITNESS: Yes, sir.
15 THE COURT: Can you hear that?
16 THE WITNESS: Yes, sir.
17 THE COURT: All right.
18 MR. DOUGLAS MULDER: Judge, this
19 appears to be all 1995 records.
20 MR. GREG DAVIS: It's right here.
21 MR. DOUGLAS MULDER: Judge, if you're
22 ready, we're ready to be heard on this.
23 THE COURT: I'm ready.
24 MR. DOUGLAS MULDER: Judge, I don't
25 think the records from 1995 are relevant or material. We
Sandra M. Halsey, CSR, Official Court Reporter
4438

1 have offered his income tax return that shows he grossed
2 263 thousand. Are they suggesting that he overstated his
3 income so he could pay more taxes?
4 THE COURT: I think the exhibits will
5 speak for themselves. Are you objecting to the exhibit?
6 MR. DOUGLAS MULDER: Well, I object to
7 those. I don't object to the -- so far as they go, to
8 the records in 1996.
9 MR. GREG DAVIS: Well, your Honor, I
10 think, at this time, that we will agree to withdraw any
11 bank records pertaining to 1995, and simply then offer as
12 State's Exhibit 50-B, the records pertaining to 1996.
13 And in State's Exhibit 50-C, we will separate out 1995
14 and offer those for record purposes only.
15 THE COURT: Is that satisfactory?
16 MR. DOUGLAS MULDER: Well, let me take
17 a look at these, Judge.
18
19 (Whereupon, the following
20 mentioned item was
21 marked for
22 identification only
23 as State's Exhibit No. 50-C
24 after which time the
25 proceedings were
Sandra M. Halsey, CSR, Official Court Reporter
4439

1 resumed on the record
2 in open court, as
3 follows:)
4
5 THE COURT: All right. So 50-C will
6 be the '95 records offered for record purposes only, not
7 to be shown to the jury.
8 Any objections to that? Anybody want
9 to object to that? Mr. Hagler?
10 MR. DOUGLAS MULDER: Excuse me, Judge.
11 I was trying to do five things at one time.
12 THE COURT: We appreciate your
13 efforts, but are you going to object to the record
14 purposes only of 50-C?
15 MR. DOUGLAS MULDER: No, not for
16 record purposes only.
17 THE COURT: Thank you. All right.
18 State's Exhibit 50-C is admitted for record purposes
19 only.
20
21 (Whereupon, the above
22 mentioned item was
23 received in evidence
24 for record purposes
25 only, after which time,
Sandra M. Halsey, CSR, Official Court Reporter
4440

1 the proceedings were
2 resumed on the record,
3 as follows:)
4
5 THE COURT: All right. Any objection
6 to the 1996 records?
7 MR. DOUGLAS MULDER: No, we have no
8 objection.
9 THE COURT: State's Exhibit 50-B is
10 admitted.
11
12 (Whereupon, the item
13 Heretofore mentioned
14 Was received in evidence
15 As State's Exhibit No. 50-B
16 For all purposes,
17 After which time, the
18 Proceedings were resumed
19 As follows:)
20
21 BY MR. GREG DAVIS:
22 Q. Mr. Routier, again, have you had an
23 opportunity recently to look over the records that I am
24 holding from Bank One?
25 A. No, sir.
Sandra M. Halsey, CSR, Official Court Reporter
4441

1 Q. Okay. And again, now showing you only
2 those portions that have been admitted as State's Exhibit
3 50-B, do you recognize the first page as being a summary
4 for your transactions between January 1st and January
5 31st, 1996?
6 A. Yes, sir.
7 Q. Okay. All right. And do we see that
8 your deposits for January were twenty-two thousand, nine
9 hundred and fourteen dollars and sixty-nine cents, is
10 that correct?
11 A. Yes, sir.
12 Q. Checks paid out of your account were
13 twenty-one thousand, nine hundred and fourteen dollars
14 and forty-six cents; is that correct also?
15 A. Yes, sir.
16 Q. As we go to the period of February the
17 1st through February the 29th, do we show deposits of ten
18 thousand, two hundred and eighty-two dollars and
19 ninety-three cents, checks paid out of fifteen thousand,
20 three hundred and forty dollars and sixty cents?
21 A. Yes, sir, being a balance of $78.47.
22 Q. Right. And, for the period of March
23 1st through March 31st, do we see that you had deposits
24 of fifteen thousand, two hundred and fifty-four dollars
25 and seventy-eight cents, and checks paid out of twelve
Sandra M. Halsey, CSR, Official Court Reporter
4442

1 thousand, six hundred and thirty-nine dollars and
2 seventy-seven cents?
3 A. Yes, sir, with a balance of five
4 thousand, three hundred and two dollars.
5 Q. Okay. That is your ending balance,
6 correct?
7 A. Yes, sir.
8 Q. And, for the period of April the 1st
9 through April the 30th, do we have you with deposits of
10 twelve thousand, five hundred and thirty-three dollars;
11 and checks paid out of thirteen thousand, three hundred
12 and fifty-eight dollars and one cent?
13 A. Yes, sir, with an ending balance of
14 four thousand, four hundred and fifteen dollars.
15 Q. Okay. And for the last period shown
16 of May the 1st through May 31st, do we have deposits of
17 thirteen thousand, three hundred and ninety-one dollars
18 and forty-seven cents, checks paid out of fourteen
19 thousand, forty-four dollars and eighty-two cents, and
20 your ending balance on May 31st was three thousand, six
21 hundred and ninety-eight dollars and forty-four cents; is
22 that right?
23 A. Yes, sir.
24 Q. Mr. Routier, are you aware, that when
25 you add up the deposits, and the checks paid out, that
Sandra M. Halsey, CSR, Official Court Reporter
4443

1 your deposits for the first five periods there shown were
2 seventy-four thousand, three hundred and seventy-six
3 dollars and eighty-seven cents, and your checks paid out,
4 if you total those up, are you aware that they total out
5 to seventy-seven thousand, two hundred and ninety-seven
6 dollars and sixty-six cents?
7 A. No, sir, I was not aware of that.
8 Q. Are you aware, that when you look at
9 the first five months that actually, you had a deficit of
10 nearly three thousand dollars? Are you aware of that?
11 A. No, sir.
12 Q. Okay. You know Willie Short, don't
13 you?
14 A. Yes, sir.
15 Q. Okay. Willie Short was your landlord?
16 A. Yes, he is.
17 Q. You had a rent each month of $525
18 dollars; correct?
19 A. Yes, sir.
20 Q. Was that due on the first of the
21 month?
22 A. On the 1st or the 15th.
23 Q. Okay. Do you recall Willie Short
24 coming by or talking to you on June the 5th about being
25 late for your rent for the month of June?
Sandra M. Halsey, CSR, Official Court Reporter
4444

1 A. Not in June. I don't recall.
2 Q. You don't recall?
3 A. No, sir.
4 Q. Were you behind on your rent out
5 there?
6 A. We're four months behind now.
7 Q. I'm talking about in June of 1996?
8 A. Just that one month.
9 Q. So you're one month behind on the
10 rent?
11 A. It was not due until the 15th, or late
12 on the 15th.
13 Q. Now, Mr. Routier, I want to direct
14 your attention back to June the 8th of 1996 when you went
15 to the Rowlett Police Department with your wife. Do you
16 recall that date?
17 A. Vaguely.
18 Q. Okay. Well, yesterday when Mr. Mulder
19 asked you about it, do you recall telling him that the
20 Rowlett Police Department asked you to give them a
21 statement?
22 A. Yes, sir.
23 Q. Do you remember giving that statement
24 to them?
25 A. Yes, sir, before the viewing.
Sandra M. Halsey, CSR, Official Court Reporter
4445

1 Q. Okay. When you gave that statement,
2 did you, in fact, give that in your own handwriting?
3 A. Yes, I did.
4 Q. Okay. Do you recall it being six
5 pages long?
6 A. I don't remember how long it was. I
7 haven't seen it since.
8 Q. Right. Okay.
9
10 (Whereupon, the following
11 mentioned item was
12 marked for
13 identification only
14 as State's Exhibit No. 141,
15 after which time the
16 proceedings were
17 resumed on the record
18 in open court, as
19 follows:)
20
21 BY MR. GREG DAVIS:
22 Q. Let me show you what for record
23 purposes has been marked as State's Exhibit 141. And if
24 you would, take a couple of moments and look over that
25 statement.
Sandra M. Halsey, CSR, Official Court Reporter
4446

1 A. Yes, sir.
2 Q. Okay. Do you recognize that as the
3 statement you gave to the police?
4 A. Yes, sir. It's a vague description.
5 Q. Why don't you just keep it up there?
6 I may be referring to it. We have another copy down
7 here.
8 Mr. Routier, when you gave that
9 statement to the police, would it be fair to say that the
10 purpose of giving that statement was to try to help the
11 police find the person who killed your two children; is
12 that right?
13 A. Yes, sir. That is why I did it.
14 Q. All right. Would it also be fair to
15 say that that statement was given only two days after
16 this attack occurred at your home; right?
17 A. Yes, sir.
18 Q. Okay. And I assume, that when you
19 gave that statement, were you making your very best
20 effort to be as truthful and as honest, and as complete
21 as you could possibly be in that statement?
22 A. Well, I tried. Yes, sir.
23 Q. Okay. Looking at that statement --
24 yesterday, do you recall Mr. Mulder asking you about
25 discussions that you had with your wife that evening on
Sandra M. Halsey, CSR, Official Court Reporter
4447

1 June 5th?
2 A. Yes, sir.
3 Q. Do you remember yesterday that you
4 told us that you talked with her about trips that y'all
5 were planning? A trip to Pennsylvania, a trip to Cancun
6 that your wife was planning to take, and some plans that
7 y'all had in the future; correct?
8 A. Yes, sir. We talked about a lot of
9 things in those hours.
10 Q. Okay. But yesterday, when you told us
11 about your discussion, you didn't tell us all of the
12 things that y'all discussed that night, did you?
13 A. Well, it says here that I was talking
14 about -- about getting the boys into playing baseball.
15 Q. Well, isn't it true that, it says
16 there in the statement, on June the 8th when you gave
17 this to the police, that what you said about that
18 discussion is: "We talked about the business, bills, and
19 how Darlie was having a hard time with taking care of the
20 babies," and then you have in parenthesis, "all today".
21 That was also part of the discussion
22 that night, wasn't it?
23 A. Yeah, it was some.
24 Q. So that, that discussion wasn't all
25 positive, was it?
Sandra M. Halsey, CSR, Official Court Reporter
4448

1 A. Actually, it was.
2 Q. Well, the problems that she was having
3 taking care of the boys that day. I mean, she was
4 discussing that that she was having a problem. It was
5 something that was causing her to have a problem, wasn't
6 it?
7 A. No, sir, that was taken out of
8 context.
9 Q. Well, I'm just reading the sentence.
10 Have I misread that sentence?
11 A. No, sir.
12 Q. Okay. You -- did you not use the
13 term, "Was having a hard time taking care of the babies
14 all today," those were your words, weren't they?
15 A. Yes, sir.
16 Q. Okay. Bills, I mean those are bills
17 that you have to pay, correct?
18 A. Well, we were talking about the
19 business like we do every night. Talking about the
20 bills, and how many people owed me money, what phone
21 calls I needed to make the next day, to make sure that
22 those bills, you know, got taken care of.
23 Q. Having been self-employed myself, it's
24 important that you get paid, isn't it?
25 A. Yes, you can't survive without it.
Sandra M. Halsey, CSR, Official Court Reporter
4449

1 Q. If you don't get paid, you have to
2 close the door, don't you?
3 A. Well, I have been in business for
4 seven years, and doing okay so far. I have been able to
5 salvage it after this.
6 Q. All right. So, you talked about the
7 trips, you talked about the business, the bills, about
8 how she's having a hard time with the boys.
9 As you look at that statement there,
10 yesterday you told us on direct examination, about where
11 Darlie was during the time that you were giving CPR to
12 Devon.
13 As you look through the statement that
14 you gave on June the 8th, can you point us to a -- well,
15 let me just ask you: In that statement, did you tell the
16 police that Darlie was with you while you were giving CPR
17 to Devon?
18 A. Yes, I did. He said he was going to
19 take notes on what I couldn't remember. I told him
20 that --
21 Q. I'm sorry. You may have you
22 misunderstood me.
23
24 MR. DOUGLAS MULDER: Excuse me, Judge,
25 we have been through this yesterday. He gets a chance to
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1 complete a sentence.
2 THE COURT: Just a minute, Mr. Mulder.
3 We understand, Mr. Mulder. Ask the question, again,
4 please.
5 MR. GREG DAVIS: I was asking about
6 the written statement.
7 THE COURT: Ask your question again,
8 please.
9 MR. GREG DAVIS: I'm asking about the
10 written statement.
11 THE COURT: What was your answer going
12 to be?
13 THE WITNESS: I don't know, I forgot
14 what the question was.
15 THE COURT: Let's re-ask the question.
16
17 BY MR. GREG DAVIS:
18 Q. I'm talking about the written
19 statement that you have before you.
20 A. Yes, sir.
21
22 MR. DOUGLAS MULDER: Your Honor,
23 excuse me. That is a different question
24 THE COURT: Well, the witness had
25 forgotten. We're going to go ahead. Ask the next
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1 question, please.
2
3 BY MR. GREG DAVIS:
4 Q. Okay. Sir, would you look through the
5 written statement in front of you, and tell me, whether
6 or not you told the police in that written statement on
7 June the 8th, that your wife was next to you as you
8 performed CPR on Devon?
9 A. No, I don't see that in here.
10 Actually, there was a lot of details not in here.
11 Q. That is one of the details that you
12 left out, wasn't it?
13 A. Yes, sir.
14 Q. Matter of fact, isn't it true that
15 when you're talking about doing CPR on Devon, you're
16 talking about blowing into the holes in his chest. What
17 you actually said on June the 8th was, "I looked over at
18 Darlie and she was on the phone calling 911." Isn't that
19 correct?
20 A. Yes, sir, she was all over the place.
21 Q. Of course, when you gave that
22 statement, Mr. Routier, back on June the 8th, we didn't
23 have the DNA results back on her T-shirt yet, did we?
24 A. No, sir, and I was also in shock.
25 Q. So when you gave the statement, you
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1 didn't know that your older boy's blood cast off was on
2 her T-shirt, did you?
3 A. I still didn't know that.
4 Q. And, when you spoke with Jamie
5 Johnson, the CPS worker, you still didn't know that
6 Devon's blood was on your wife's T-shirt, did you?
7 A. No, sir.
8 Q. Okay. Do you remember what you told
9 Jamie Johnson about her activities while you were
10 performing CPR on Devon?
11 A. No, I don't.
12 Q. Do you remember talking with her about
13 how you were trying to blow more air into Devon's mouth,
14 and do you remember telling her, that at this point, you
15 said: "Darlie was calling 911 in the background?"
16 Do you remember telling Jamie Johnson
17 that?
18 A. Yes, sir. When I went over to him the
19 first time, that is the way it was.
20 Q. You never did tell Jamie Johnson that
21 your wife was standing next to you, or by you at any time
22 while you were doing CPR on Devon, did you?
23 A. I don't recall.
24 Q. Now, again, I'm referring back to the
25 voluntary statement that you gave there, the six pages
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1 before you.
2 Mr. Routier, can you look through that
3 statement, please, sir, and tell me whether or not in
4 that six pages that you hand wrote, whether or not you
5 told the police at any point in that statement that your
6 wife gave you towels while you were doing CPR on Devon?
7 A. I remember we talked about that on
8 February 12th.
9 Q. I'm sorry. I'm looking here on this
10 statement that you gave to the police on June the 8th.
11 A. Yes, sir.
12 Q. In that six page statement, sir, do
13 you say anything about Darlie Routier getting towels?
14 A. No, sir, I skipped right over it.
15 Q. So that is another detail that you did
16 not put in your statement; is that right?
17 A. Yes, sir, but it didn't mean it didn't
18 happen.
19 Q. And, if you would, would you look
20 through that six page statement and tell me whether or
21 not you told the police in your handwriting there, that
22 the defendant placed a towel on Damon's back?
23 A. No, sir, there's a lot of things
24 missing.
25 Q. Well, on that point then is that also
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1 a detail that you forgot the fact that your wife put a
2 towel on Damon's back? That's not in there, is it?
3 A. No, sir, it's not in this statement.
4 Q. Okay. And at the time that you gave
5 that statement, would it be fair to say that you didn't
6 know that Damon's blood would be found on your wife's
7 T-shirt either, did you?
8 A. No, sir, I didn't know that.
9 Q. And yesterday during your testimony
10 with one of us, either Mr. Mulder or myself, you
11 mentioned your wife going over to the sink in the
12 kitchen. Do you recall that?
13 A. Yes, sir.
14 Q. Okay. Would you look through those
15 six pages that are in your own handwriting, and tell me,
16 sir, whether or not on June the 8th, just two days after
17 this event, you told the police that your wife went over
18 to the sink that night?
19 A. Chris Frosch was very specific to tell
20 me not to say anything about what she was doing, only
21 what I was doing.
22 Q. Well, in the statement on page 3 don't
23 you say, "She told them that he went out in the garage"?
24 A. On which page?
25 Q. Page 3. I mean, there are a lot of
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1 references to what she did out there that night, weren't
2 there? Do you see "I told them that my babies were
3 stabbed, and she told them that he went out in the
4 garage."
5 A. "I looked over and Darlie was on the
6 phone calling 911. I ran over to Damon laying on the
7 floor in the hallway between the wall, and the side of
8 the couch near the bathroom. He had no pulse, but I
9 could not see any injuries."
10 Q. Okay. So, on that one page you have
11 the fact that she called 911, you have the fact that she
12 is relating to the police officers that the intruder went
13 out in the garage. And on that one page alone, you have
14 got her doing two things, don't you?
15 A. Yes, sir.
16 Q. Okay. So my question again to you is:
17 Is there anything in that six page statement, sir, about
18 your wife going to the sink?
19 A. No, sir, not in this statement. I
20 believe there is another statement besides this one.
21 Q. Who did you give that statement to?
22 A. To the police.
23 Q. A written statement?
24 A. Yes, sir.
25 Q. Okay. And, what day did you give a
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1 written statement to the police?
2 A. I believe on the 10th.
3 Q. Well, on the 10th, are you referring
4 to a diagram that you drew for the police on June the
5 10th?
6 A. Chris Frosch, we went back and forth
7 several times, he said he was taking notes on everything
8 that I was telling him. I kept telling him more
9 information as I remembered.
10 Q. Well, so that I am clear then, when
11 you talk about a statement on the 10th, you are simply
12 talking about notes that Detective Frosch may have taken
13 during the conversation that you had with him, correct?
14 A. Yes, sir.
15 Q. You are not talking about another
16 statement in your handwriting, such as the one that you
17 gave on June the 8th? You're not talking about that, are
18 you?
19 A. No, sir. There was a supplement to
20 this report.
21 Q. And, on the 10th, you did do a diagram
22 on the 10th though, didn't you?
23 A. I believe so, yes, sir.
24 Q. In which he asked you to show him how
25 your wife was positioned when you last saw her on the
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1 couch; correct?
2 A. Yes, sir.
3 Q. Where Damon was when you last saw him;
4 correct?
5 A. Correct.
6 Q. Where Devon was positioned on the
7 floor when you last saw him; correct?
8 A. Yes.
9 Q. And, where Damon was when you came
10 downstairs and came in the Roman room, correct?
11 A. Yes, sir. And he tried to make sure
12 that everything that I did, and what she did was separate
13 from our statements, and that we didn't discuss anything
14 about what we were talking about.
15 He said that he only wanted to know
16 what I did, and what I saw, and what I glanced at.
17 Q. Well, for instance on page 5 then, I
18 guess that Detective Frosch must have been very
19 disappointed, when you told him that she said, "Darin,
20 you have to promise me you will find this man. He killed
21 our babies."
22 Again, you are not talking about what
23 you did, you are talking about what she is saying to you
24 and what she is doing; correct? Was Detective Frosch
25 upset when you did that?
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1 A. Probably. We were an hour and a half
2 late for the viewing of the boys.
3 Q. Of course, also in this -- of course,
4 also on this page 2, you made a mistake again of telling
5 Dectective Frosch what your wife was saying or doing.
6 Also, do you see there where you related to him that she
7 was yelling, "Devon, Devon, oh, my God, Devon"?
8 A. As I was running down the stairs, yes,
9 sir.
10 Q. Right. Was Detective Frosch upset
11 when you did that?
12 A. I don't really know. We never talked
13 about the statement.
14 Q. And yesterday, did I understand you to
15 say that she was giving you wet towels? That she was
16 wetting the towels in the sink?
17 A. Yes, sir.
18 Q. What was the purpose of getting a wet
19 towel as opposed to just a towel that you could use to
20 try to absorb the blood or stop the bleeding?
21 A. Well, I don't really know. A person
22 with first aid knows that you usually use a dry towel,
23 but you have to have that experience in order to find out
24 that it's not good to wet any towels. It's a natural
25 instinct.
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1 Q. From your viewpoint though, that
2 didn't really seem to be the right thing to do though,
3 did it? It's not what you would have preferred, right?
4 A. Well, I don't really know if it really
5 mattered.
6 Q. A dry towel would have been better
7 though?
8 A. Probably, if it could have helped.
9 Q. Now, I want to ask you: How long did
10 you sit down and read -- and write this statement out?
11 Do you remember about what time? I'm not talking about
12 exact minutes, but just give me a ballpark figure on the
13 amount of time that you spent writing this statement out.
14 A. I don't know. I mean, it looks real
15 good in the beginning, and then you can almost see my
16 anger as I am writing it. It gets really sloppy and
17 sloppy. And, just guessing, I don't know, maybe, a half
18 hour. Frosch gave me a break in between, to let me relax
19 a little bit. I remember being sick that whole day.
20 Q. Okay. Let me ask you about this dark
21 car that you saw.
22 A. Yes, sir.
23 Q. That you are aware of. You were aware
24 of that on June the 5th, right?
25 A. Yes, sir.
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1 Q. Had you all been receiving any
2 threats, or any sort of threatening gestures toward any
3 member of your family?
4 A. No, we had been getting a lot of phone
5 calls, hang up phone calls, that we just thought maybe it
6 was because of Devon getting out of school, he gave his
7 phone number out to every kid in his class.
8 Q. So, you are getting the phone calls,
9 you see this car. Seeing this car on the 5th did not
10 concern you, did it?
11 A. It didn't concern me, no.
12 Q. Because, in fact, you had an alarm
13 system on your house, didn't you?
14 A. Yes, sir, we did.
15 Q. Okay. But that evening it was not
16 turned on, was it?
17 A. I never set my alarm in my house.
18 Q. Okay. And that is true on the 5th, it
19 wasn't turned on, was it?
20 A. No, sir.
21 Q. The defendant was aware that it was
22 off that night; correct?
23 A. Yes, sir.
24 Q. Okay.
25 A. We never set it. If you're not safe
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1 at home, where are you safe at?
2 Q. And that evening when you left the
3 garage, in fact, you decided to leave the window up,
4 correct?
5 A. Yes, sir.
6 Q. You would not have done those things,
7 you wouldn't have left the window up and left the alarm
8 off if you really thought there was a threat to somebody
9 in your household, would you?
10 A. No, sir. I wouldn't do it purposely.
11 Q. What is the first version of the
12 attack that the defendant gave to you? What did she
13 first tell you happened out there on that evening?
14 A. Just that she had felt Devon -- Damon
15 waking her up saying, "Mommy, Mommy, Mommy." And then
16 she looks up over her and she sees a glimpse of this man
17 going towards -- I don't know how, probably, maybe at the
18 island, I don't know -- going from the kitchen, probably
19 two to three seconds of a glimpse of this man going into
20 the utility room and then gone.
21 Q. I want to make sure that -- I want to
22 be clear about what you said. You said that she said
23 that she felt Damon touch her?
24 A. Touch her on the shoulder and he woke
25 her up.
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1 Q. Okay. And he was saying something to
2 her?
3 A. "Mommy, Mommy, Mommy."
4 Q. Okay. And, she then woke up and saw a
5 man walking away through the kitchen?
6 A. Yes, sir.
7 Q. And he then walked into the utility
8 room?
9 A. Yes, sir.
10 Q. Okay. And, what did she say that she
11 did as this man got up and walked away from her into the
12 utility room?
13 A. She said that he had already gone out
14 the utility room, and then she went around towards him,
15 and Damon was standing right beside her, and she asked
16 him to stay back, and she walked across the room, across
17 the kitchen, and when she looked down, there was a knife
18 in the -- right there in the doorway, and she said that
19 she reached down to pick it up and when she did, her neck
20 just spewed blood all over the floor. That is when she
21 realized that she was cut.
22 Q. Okay.
23 A. And she walks back and turns on the
24 light, and then she sees Devon face up, and then she just
25 goes into hysterics.
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1 Q. Okay.
2 A. Screaming, "Devon, Devon, Devon".
3 Q. Does that pretty much pick it up where
4 you start your statement, where you hear her saying,
5 "Devon, Devon, Devon," you come downstairs; right?
6 A. Yes, sir.
7 Q. Okay. When did she first tell you
8 that story?
9 A. Probably at the hospital, or later
10 that afternoon. I couldn't be in the room with her for
11 longer than 10 or 15 minutes at a time.
12 Q. All right. So sometime of the
13 afternoon of June the 6th?
14 A. Yes, sir.
15 Q. And, I assume that you have talked
16 with her since then about what happened out there that
17 night, haven't you?
18 A. Yes, sir.
19 Q. Okay. And in your discussions with
20 her, has she ever told you a different version of what
21 happened?
22 A. No, sir.
23 Q. And, again, just an estimate, but
24 about how many times have you talked with her about what
25 happened that night?
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4464

1 A. An estimate?
2 Q. Yes, sir.
3 A. A lot.
4 Q. And --
5 A. Two hundred, three hundred, five
6 hundred, I have no idea.
7 Q. So I mean, it's --
8 A. Same thing over and over and over
9 again. It's like a broken record.
10 Q. Mr. Routier, by the time that you
11 talked with Jamie Johnson, certainly your wife had
12 already told you this, right?
13 A. Oh, yes, sir.
14 Q. Probably had told you several times
15 about what had happened to her?
16 A. I'm sure she had, yes, sir.
17 Q. Okay. Do you remember what you told
18 Jamie Johnson concerning the version that your wife had
19 given you of the attack?
20 A. Do I remember? No.
21 Q. Okay. Do you remember saying to her
22 that you told Jamie Johnson that Darlie told you that she
23 woke up because there was weight on her legs and the
24 intruder supposedly was sitting on her legs? Do you
25 remember telling Jamie Johnson that that is the version
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1 that your wife gave to you about this attack?
2 A. We didn't know if that was really true
3 or not. We didn't know if that was a dream.
4 Q. Well, Jamie Johnson, when you
5 discussed this incident with her, this is the version
6 that you gave to Jamie Johnson, wasn't it?
7 A. Yes, sir.
8 Q. So, when you talked with Jamie
9 Johnson, you didn't give her the correct version of what
10 your wife had told you, did you?
11 A. We didn't know -- I mean, I wasn't
12 there when it happened, so I don't know what exactly
13 happened. I just know what she told me and what she told
14 me was that she woke up with Damon tugging on her.
15 Q. You never told that to Jamie Johnson
16 though, did you?
17 A. I don't recall. About that Damon woke
18 her up?
19 Q. Yes, sir.
20 A. I would think I would, that has never
21 changed.
22 Q. Well, but as you sit there on the
23 stand right now, you don't know whether you told her that
24 or not, do you?
25 A. I don't know what I said to Jamie
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1 Johnson.
2 Q. Do you remember describing to Jamie
3 Johnson how the attacker would have to cut Darlie's neck,
4 and how he would have to get past her breasts in order to
5 get at her neck? Do you remember telling Jamie Johnson
6 that?
7 A. No, sir.
8 Q. And do you remember telling Jamie
9 Johnson that your wife would have been face-to-face with
10 this attacker?
11 A. No, sir.
12 Q. Mr. Routier, again going back to
13 Corrine Wells, again, do you recall Corrine Wells is the
14 individual, the lady that lives there at the house that
15 you used to live at on Bond Street? Do you remember
16 that?
17 A. Yes, sir, I didn't know her name.
18 Q. Right. Okay. Do you remember when
19 you went over to talk with her on December the 3rd that,
20 in fact, you went into your wife's version of the attack
21 with Corrine Wells also, didn't you?
22 A. Well, I had a good talk with her.
23 Q. And it included what your wife had
24 told you about the attack, correct?
25 A. I don't think she remembers any of the
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1 attack.
2 Q. Well, my question to you is: Did you
3 tell Corrine Wells what your wife had related to you
4 about the attack?
5 A. No.
6 Q. So, you did not tell Corrine Wells
7 that the man was on top of her, and was intending to rape
8 her when she woke up? You didn't tell Corrine Wells
9 that?
10 A. That would be my assumption.
11 Q. From what your wife had told you?
12 A. No. My assumption of everything that
13 I know. I know everything about this case.
14 Q. Well, let me just ask you then: Did
15 you tell Corrine Wells that the man was on top of your
16 wife and was intending to rape her? Did you say that to
17 Corrine Wells?
18 A. I said that could very well be.
19 Q. So that is a yes?
20 A. Yes, sir.
21 Q. Did you also tell Corrine Wells that
22 what they had read in the paper about the boys saving
23 Darlie's life by waking her up was not true, and in fact,
24 the boys didn't save her life?
25 A. I did not say that.
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1 Q. Do you remember telling Corrine Wells
2 that the boys couldn't save her life because their lungs
3 had been collapsed by the stabbing?
4 A. No, sir, I did not say that.
5 Q. And do you remember telling Corrine
6 Wells, in fact, that a 300 pound man did this to Darlie?
7 A. No, sir.
8 Q. So those statements about the boys not
9 saving her life, and about a 300 pound man attacking
10 Darlie, those statements aren't true, are they?
11 A. We know that Damon saved Darlie's
12 life.
13 Q. Okay. Well, that is not what you told
14 Corrine Wells though, is it?
15 A. I don't remember what I said to her.
16 Q. Well, that was a pretty long
17 conversation that you had with her too, wasn't it?
18 A. Yes, we had a good talk.
19 Q. About an hour and a half to two hours
20 over there at her house, correct?
21 A. She was showing me what they had done
22 to the house since I had left there and how much they
23 were enjoying it, and also it brought back memories of
24 when the kids were babies.
25 Q. Right. Do you remember telling
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1 Corrine Wells about your wife's necklace?
2 A. Yes, sir.
3 Q. Okay. About how that necklace is
4 actually the thing that saved her life?
5 A. I know that the necklace was embedded
6 into her neck.
7 Q. How do you know it was embedded into
8 her neck?
9 A. Because I saw it.
10 Q. Where did you see it?
11 A. When she came to the front door and
12 paramedics were bringing her out.
13 Q. Okay.
14 A. She took her hand like this and she
15 goes, "Darin, I'm cut." She pulled that thing down, and
16 I mean a gap in her neck was that wide, muscles, tendons,
17 veins, everything.
18 Q. That necklace was cut?
19 A. The necklace was inside of there. I
20 don't know if it was cut.
21 Q. Okay. In fact, that necklace wasn't
22 cut at all, was it?
23 A. No, sir.
24 Q. She was wearing that necklace that
25 night, a man cut her neck, and yet, there wasn't a single
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1 thing done with that necklace, was there?
2 A. It was a rope chain.
3 Q. That's right.
4 A. It's my understanding that there is a
5 nick in it.
6 Q. There is a nick in it?
7 A. Yes, sir.
8 Q. Do you think you would recognize that
9 necklace if you saw it?
10 A. Yes, sir, I would like to see it.
11 Q. Okay.
12
13 THE COURT: This is 142?
14 MR. GREG DAVIS: No, sir. This will
15 be State's Exhibit 26.
16 THE COURT: 26?
17 MR. GREG DAVIS: Yes, sir.
18 THE COURT: All right.
19
20 BY MR. GREG DAVIS:
21 Q. Mr. Routier, I'm handing you State's
22 Exhibit 26, and if you will look at that, please, sir,
23 and tell me whether or not you recognize that to be your
24 wife's necklace?
25 A. Yes, sir, it is.
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1 Q. Okay.
2
3 MR. GREG DAVIS: Your Honor, at this
4 time we'll offer State's Exhibit No. 26.
5 THE COURT: Any objection?
6 MR. DOUGLAS MULDER: We have no
7 objection.
8 THE COURT: State's Exhibit 26 is
9 admitted.
10
11 (Whereupon, the item
12 Heretofore mentioned
13 Was received in evidence
14 As State's Exhibit No. 26
15 For all purposes,
16 After which time, the
17 Proceedings were resumed
18 As follows:)
19
20 BY MR. GREG DAVIS:
21 Q. Mr. Routier, looking at the necklace,
22 the clasps are still intact, are they not?
23 A. Yes, sir.
24 Q. Okay. No visible defects to this
25 necklace, are there?
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1 A. Let me see it again.
2 Q. Okay. Just take your time.
3 A. Right there.
4 Q. Okay. You've indicated a spot right
5 there; is that right?
6 A. Yes, sir.
7 Q. Okay. Now, again, your wife was still
8 wearing the necklace when you saw her, correct?
9 A. Yes, sir.
10 Q. It was still around her neck, right?
11 A. Yes, sir. It was embedded into her
12 neck.
13 Q. The pendant that we see here, the
14 diamond pendant, that was still attached when you saw it,
15 correct?
16 A. Yes, I would assume so.
17 Q. Just like it is today in Court?
18 A. Yes, sir.
19 Q. Okay. The cat that y'all had, the big
20 cat, what was the cat's name?
21 A. Bear.
22 Q. Okay. And that evening that cat was
23 in the cage in the family room?
24 A. Yes, sir, he was.
25 Q. Okay. And I don't recall what you
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1 said about the cat's disposition. It was not good
2 though, was it? It's a pretty feisty cat, wasn't it?
3 A. Yeah, he is.
4 Q. When strangers came around that cat,
5 did he take to strangers well?
6 A. Well, he was caged so he couldn't get
7 at you, but he just -- well, if you aggravated him, he
8 would kind of get at you, but --
9 Q. How big was that cat?
10 A. Oh, probably, just guessing, probably
11 15 or 16 pounds, and he was only a year old.
12 Q. And that cat cage was sitting right
13 next to the couch where your wife was supposedly sleeping
14 that night, correct?
15 A. Right in the corner, yes.
16 Q. Pretty close to where Damon and Devon
17 were both sleeping too, right?
18 A. Yes, within 10, 12 feet.
19 Q. And you would expect that if a
20 stranger came into that room and came over there by that
21 cage, that that cat is going to raise a ruckus, isn't he?
22 A. Personally, I wish that cat could
23 talk. That cat got to see a lot.
24 Q. Right.
25 A. We wouldn't be here right now.
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1 Q. Well, I think we would, but --
2 A. That cat didn't make -- it would
3 probably hiss, but not make a sound like a dog would.
4 Q. Okay. A sound like a dog would. Your
5 Pomeranian would make a sound, wouldn't it?
6 A. Yeah, he would. He is a yapping
7 little thing.
8 Q. Now, when strangers came into your
9 house, I mean, that is one time when he would be yapping,
10 wouldn't he?
11 A. Well, that dog was so little he
12 couldn't go down the stairs, so he slept upstairs by the
13 fireplace right beside our bed in this great big huge
14 pillow, about this big, and real, real deep, he would
15 kind of buried himself down in that pillow and go to
16 sleep.
17 Q. So that evening the yapping little dog
18 and the hissing cat were both inside your house; is that
19 right?
20 A. Yes, sir. The dog was upstairs.
21 Q. The coffee table that was in the
22 middle of your room there?
23 A. Yes, sir.
24 Q. The coffee table that you said the
25 paramedic put back on the pedestal?
Sandra M. Halsey, CSR, Official Court Reporter
4475

1 A. Yes, sir.
2 Q. Was the paramedic the one who was nice
3 enough to put the flowers back on the table too, or did
4 somebody else do that?
5 A. I don't know. All I know is that it
6 was all slid down sideways.
7 Q. So you saw the paramedic put the table
8 back up, but you are not quite sure who put the flower
9 arrangement back in the center of the table?
10 A. I don't think the flower arrangement
11 really fell off the glass, I think it just slid down the
12 glass, and all he did was lift it up. He just lifted the
13 whole thing up at one time.
14 Q. So, when he lifted it back up, the
15 flower arrangement didn't slide down that glass table on
16 to the floor?
17 A. Well, it was all the way to the floor.
18 Q. Yeah.
19 A. And then when he picked it up, they
20 all kind of went up together.
21 Q. What kind of towel did Darlie have
22 around her neck when the police got there?
23 A. Seemed like a washrag or something
24 smaller than a dish towel.
25 Q. Are you even sure that she had a towel
Sandra M. Halsey, CSR, Official Court Reporter
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1 up around her neck?
2 A. Yes, sir. Or the paramedics could
3 have put it on there before.
4 Q. Do you remember back in September, on
5 September the 12th I asked you about the towels? Do you
6 recall that?
7 A. Yes, sir, I do.
8 Q. Do you remember I asked you about the
9 towel around Darlie's neck?
10 A. Yes, sir.
11 Q. Do you recall that I said, "Well, did
12 you see Darlie with any towel around her neck at any
13 time?"
14 Let me just show you on page 158, it
15 will be the last line on this -- let's turn this around.
16 Do you see that I'm asking: "Well, did you see Darlie
17 with any towel around her neck at any time?"
18 Do you see that question?
19 A. At anytime, yes, sir.
20 Q. Okay. At anytime --
21
22 THE COURT REPORTER: Excuse me, what
23 was your answer?
24
25 A. My answer was no then.
Sandra M. Halsey, CSR, Official Court Reporter
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1 Q. Back on September the 12th, now --
2
3 THE COURT: Well, I think we want to
4 get the answer that --
5 MR. GREG DAVIS: I think that he
6 actually said, "At anytime."
7 THE WITNESS: At anytime.
8
9 BY MR. GREG DAVIS:
10 Q. Back on September the 12th of 1996,
11 your answer was, no. And yet today, some, what, four to
12 five months later, your memory is such that you can tell
13 us that it was some sort of wash cloth; is that right?
14 A. Yes, sir. But the question you were
15 asking me about that before, you just asked me to
16 describe it, and I said it was a green and white towel.
17 Q. No, sir, I asked you -- no, sir, that
18 was the towel about -- that you placed on Damon. I was
19 asking about the green and white checkered. Do you
20 remember that?
21 A. Yes, sir.
22 Q. Okay. This question here, "Did you
23 see Darlie with any towel around her neck?" That was
24 concerning Darlie alone.
25 A. Yes, sir, in the house, I didn't see a
Sandra M. Halsey, CSR, Official Court Reporter
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1 towel on Darlie's neck.
2 Q. Well, remember the question was at any
3 time? Right?
4 A. Yes, sir. I must have misunderstood.
5 Q. Okay. Let me ask you: The jewelry
6 that was laying up there on the kitchen counter?
7 A. Yes, sir.
8 Q. Okay. And you are familiar with that
9 jewelry, correct?
10 A. Yes, sir.
11 Q. I think that we've looked at a picture
12 of that previously, and I'm talking about the rings, the
13 bracelets that were on the kitchen bar between the family
14 room and the kitchen. Okay?
15 A. Yes, sir.
16 Q. Okay. Most of that jewelry, would it
17 be fair to say, was bought at pawn shops?
18 A. Yes, sir.
19 Q. Would it also be fair to say that you
20 and the defendant made several trips over to pawn shops
21 to purchase the jewelry?
22 A. Yes, sir, we had a friend that would
23 call us whenever something really of a good value, he
24 would call us and let us know what was there, and we
25 would go over and take a look at it.
Sandra M. Halsey, CSR, Official Court Reporter
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1 Q. All right. Would there be occasions
2 when the defendant would go over to the pawn shop with
3 the children?
4 A. Occasionally. They liked going in
5 there.
6 Q. And, how would you describe the
7 defendant's demeanor or her behavior when she went to
8 that pawn shop?
9 A. Sometimes it was just like shopping
10 for something for our anniversary or a birthday or
11 Christmas. I wouldn't say her demeanor was in any
12 strange way.
13 Q. Nothing out of the ordinary?
14 A. Nothing.
15 Q. Acted inside the pawn shop pretty much
16 like she acted outside of the pawn shop, right?
17 A. Pretty much, yeah.
18 Q. Do you remember the names of the women
19 inside the pawn shop that dealt with y'all?
20 A. No, sir.
21 Q. Do you remember on occasion that there
22 were women working in there, that would wait on you or
23 the defendant?
24 A. Most of the time we dealt with this
25 man named Dan.
Sandra M. Halsey, CSR, Official Court Reporter
4480

1 Q. I'm sorry?
2 A. We mainly dealt with a man named Dan,
3 who was one of the managers.
4 Q. Mr. Routier, yesterday Mr. Mulder
5 asked you some questions about Gangster's Paradise. Do
6 you recall those questions?
7 A. Yes, sir.
8 Q. And did I understand you to say
9 yesterday, that you thought there was absolutely nothing
10 wrong with playing that song at a funeral?
11 A. Yes, sir.
12 Q. Did I also understand you to say that
13 you didn't think there was anything wrong with your five
14 and six year old children adopting that song as their
15 favorite song?
16 A. No, sir. I never understood what the
17 words were, but they didn't know how to sing the words so
18 they just liked the way that the song was made, the way
19 it was put together.
20 Q. All right. And, when it came on, I
21 think you said they said, "Daddy, crank it up." Right?
22 A. Yes, sir, they loved that song.
23 Q. Okay. Have you ever looked at the
24 lyrics to that song?
25 A. No, sir, I haven't.
Sandra M. Halsey, CSR, Official Court Reporter
4481

1 Q. Do you know what that song is about?
2 A. Street crime.
3 Q. Violent street crime. That's right.
4 Do you know how it begins?
5 A. No, sir.
6 Q. "As I walk through the valley of the
7 shadow of death, I take a look at my life and realize
8 there is nothing left."
9 That is the first two lines of your
10 children's favorite song. Did you know that?
11 A. No, I didn't know that.
12 Q. Do you know, that in that song by
13 Coolio, he says, "You better watch how you're talking and
14 where you are walking, or you and your homies might be
15 lying in chalk." Do you know that?
16 A. I do remember that lyric, yes, sir.
17 Q. Yeah. Do you remember the next two
18 lines are: "I really hate to trip, but I gotta lope, as
19 they croaked, I see myself in the pistol smoke fool." Do
20 you know that?
21 A. I didn't know that. Kids sometimes
22 adopt songs that we as adults don't always understand.
23 Q. You know that it goes on in this
24 favorite song to say, "I'm an educated fool with money on
25 my mind. I got my tin in my hand and a gleam in my eye.
Sandra M. Halsey, CSR, Official Court Reporter
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1 I'm a loped out gangsta, set tripping banker, and my
2 homies is down, so don't arouse my anger, fool."
3 Did you know that was part of that
4 song, too?
5 A. No, sir.
6 Q. Did you know that he continues: "They
7 ain't nothing but a heartbeat away. I'm living my life,
8 do or die, what can I say. I'm 23 now, but will I live
9 to see 24? The way things is going, I don't know."
10 Did you know that?
11 A. I know what he is saying.
12 Q. Yeah. Because of street violence and
13 violent crime, he may not live another year, right?
14 A. Yes, sir, I think we're all that way.
15 Q. Then he goes on and he says: "Tell
16 me, why are we so blind to see that the ones we hurt are
17 you and me." Do you recognize that?
18 A. Yes, sir. Street crime people killing
19 each other.
20 Q. People that they love sometimes?
21 A. Not necessarily.
22 Q. You know in the last verse, do you
23 know that he goes on to say, "Power and the money. Money
24 and the power. Minute after minute, hour after hour.
25 Everybody is running, but half of them ain't looking at
Sandra M. Halsey, CSR, Official Court Reporter
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1 what's going on in the kitchen. But I don't know what is
2 cooking. They say I got to learn, but nobody is here to
3 teach me. If they can't understand it, how can they
4 reach me. I guess they can't, I guess they won't, I
5 guess they front. That is why I know my life is out of
6 luck, fool."
7 A. Mr. Davis, I didn't write that song.
8 Q. No, I know. Coolio did.
9 A. Coolio did.
10 Q. This is the song that you and your
11 children listened to.
12 A. They listened not to the words but to
13 the music.
14 Q. And these are the lyrics that were
15 played at your children's funeral too, weren't they?
16 A. Yes, sir, they were. If they had
17 loved Barney, we would have played Barney.
18 Q. One last subject I want to discuss
19 with you here. That is the fact that you and your wife
20 both have a financial interest in this case, don't you?
21 A. What do you mean?
22 Q. Book deals?
23 A. We haven't made any deals at all.
24 Q. Do you remember back on December 3rd
25 of '96 that you discussed those book deals with Corrine
Sandra M. Halsey, CSR, Official Court Reporter
4484

1 Wells?
2 A. I said that is how we're going to pay
3 for these attorneys, but we're just hopeful thinking.
4 Q. Well, you didn't mention attorneys
5 back then. Didn't you say that you had been approached
6 by 17 to 19 book companies?
7 A. No, sir, that is not true.
8 Q. And do you remember that when you said
9 that to Corrine Wells that you said that you weren't
10 going to settle for the small dollars like 30 or 40
11 thousand dollars? Do you remember that?
12 A. No, sir, I did not say that.
13 Q. Do you remember telling Corrine Wells
14 that, in fact, the defendant was going to write the book
15 herself?
16 A. I don't remember saying that either.
17 Q. And do you remember the reason why she
18 was going to write the book herself, because she was
19 going to cut out the middle man, and that you and she
20 were going to go for the big figures?
21 A. No, sir, I did not say that.
22 Q. That is what you told her back in
23 December, wasn't it?
24 A. No, sir, I did not. There's six
25 people in here writing books right now.
Sandra M. Halsey, CSR, Official Court Reporter
4485

1 Q. I'm just talking about the one --
2 about the one the defendant is going to write?
3 A. I don't know if that is true.
4 Q. You don't know whether she is going to
5 write a book or not?
6 A. I don't know if she is or not.
7 Q. Going to go for the big figures,
8 correct?
9 A. No, sir.
10
11 MR. GREG DAVIS: Pass the witness.
12 THE COURT: Ladies and gentlemen, I
13 think now we will take our morning break. Let's be back
14 at 25 after, please.
15 THE COURT: All right.
16
17 (Whereupon, a short
18 Recess was taken,
19 After which time,
20 The proceedings were
21 Resumed on the record,
22 In the presence and
23 Hearing of the defendant
24 And the jury, as follows:)
25
Sandra M. Halsey, CSR, Official Court Reporter
4486

1 THE COURT: All right. Let the record
2 reflect that all parties in the trial are present in
3 these proceedings. Mr. Mosty?
4 MR. RICHARD C. MOSTY: Your Honor --
5 THE COURT: These proceedings are
6 being held -- excuse me -- all parties at trial are
7 present, and these proceedings are being held outside the
8 presence of the jury.
9 MR. RICHARD C. MOSTY: I just had one
10 more thought about why that illegal bug is relevant.
11 THE COURT: All right.
12 MR. RICHARD C. MOSTY: And it relates
13 to, for instance, all of the reports, but I can't
14 remember, this is Mr. Patterson's entire file, this red
15 folder. And I think it was marked for record purposes.
16 THE COURT: It was.
17 MR. RICHARD C. MOSTY: I don't see a
18 sticker, but it -- well, yes, it was marked for record
19 purposes, as Defendant's Exhibit 72. And what is
20 notoriously missing from this report, and all of the
21 reports, is any report of this illegal bug.
22 For instance, you will recall they
23 brought in the Garland K-9 unit, I think it was Garland,
24 it was some other city anyway.
25 MR. DOUGLAS MULDER: It was.
Sandra M. Halsey, CSR, Official Court Reporter
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1 MR. RICHARD C. MOSTY: It was Garland.
2 And, there is a Garland K-9 report. And in all of these
3 records, there is not one reference in Garland, or
4 Rowlett, or anywhere else, to this illegal bug.
5 And so, that raises the question of,
6 what else did they leave out, as we have gone through all
7 this stuff about never taking any notes.
8 Another reason that all of this is
9 relevant is, that it goes to what they chose to write
10 down and what they chose not to write down and what they
11 chose to leave out. And this goes directly to that as a
12 relevance to impeach these officers, and how they went
13 about this investigation.
14 THE COURT: Thank you. That is now in
15 the record. Let's bring the jury in, please.
16 MR. RICHARD C. MOSTY: Do I surmise
17 that that would be overruled?
18 THE COURT: Yes, that is overruled.
19 MR. DOUGLAS MULDER: Judge, we don't
20 find it curious that they have --
21 THE COURT: Gentlemen, we have
22 concluded that hearing. That hearing is over.
23 MR. DOUGLAS MULDER: Well, we just
24 thought of some new things we thought you might want to
25 entertain.
Sandra M. Halsey, CSR, Official Court Reporter
4488

1 MR. RICHARD C. MOSTY: We've still got
2 to keep pointing those things out, and we might think of
3 others.
4 THE COURT: I'm sure you will.
5 MR. DOUGLAS MULDER: Can we not
6 confer?
7 THE COURT: You may confer with each
8 other, yes.
9 MR. DOUGLAS MULDER: Thank you, Judge.
10 Thank you, Judge.
11 THE COURT: Now, in the meantime, we
12 will bring the jury back in.
13
14 (Whereupon, the jury
15 was returned to the
16 courtroom, and the
17 proceedings were
18 resumed on the record,
19 in open court, in the
20 presence and hearing
21 of the defendant,
22 as follows:)
23
24 THE COURT: Let the record reflect
25 that all parties in the trial are present and the jury is
Sandra M. Halsey, CSR, Official Court Reporter
4489

1 seated.
2 Mr. Mulder? Anybody have anything
3 else? Thank you.
4 MR. DOUGLAS MULDER: Yes, sir.
5
6
7 REDIRECT EXAMINATION
8
9 BY MR. DOUGLAS MULDER:
10 Q. Just a thing or two, Darin. You've
11 never doubted your wife's innocence, have you?
12 A. No, sir.
13 Q. You were asked about the towels. And
14 about how many towels were in that room in the den and in
15 the hall and in the area where the action was?
16 A. Probably five or six.
17 Q. Do you know how many?
18 A. Not exactly, no.
19 Q. Did you get any towels?
20 A. No, sir, I didn't.
21 Q. Did Waddell or Walling or any of the
22 police officers get any towels?
23 A. No, sir, they didn't.
24 Q. Did the paramedics get any towels to
25 your knowledge?
Sandra M. Halsey, CSR, Official Court Reporter
4490

1 A. No, sir.
2 Q. The towels that were there, came out
3 of your towel drawer, didn't they?
4 A. Yes, sir, they did.
5 Q. All right. Who was left to get the
6 towels?
7 A. Darlie.
8 Q. Was she just getting the towels in the
9 sink and throwing them at you, or was she bringing them
10 to you?
11 A. She was bringing them to me.
12 Q. That makes sense, doesn't it?
13 A. Yes, sir.
14 Q. Is there any other way that that would
15 be done?
16 A. No, sir.
17 Q. Was she there, and did she wipe
18 Devon's chest as you blew into his mouth?
19 A. Yes, sir, she was there.
20 Q. Got the blood off of him?
21 A. Yes, sir.
22 Q. Did you think that was something that
23 a mother would do to comfort her son under those
24 circumstances? Does that seem unreasonable to you that
25 she would do that?
Sandra M. Halsey, CSR, Official Court Reporter
4491

1 A. No, it's not unreasonable at all.
2 Q. Now, when these statements were given
3 by you and by Darlie, did you, at the time request the
4 officers to video record, or tape record your part?
5 A. Yes, sir. I told him that I could not
6 write down as fast as I can think, and that he was
7 going -- he said he would just put -- he would just go in
8 with some notes and some other things that he wanted to
9 fill in.
10 Q. All right. So they didn't question
11 you while you were giving your statement as to what they
12 thought might be important? You were just to write down
13 what you thought was important; is that right?
14
15 MR. GREG DAVIS: I'm sorry. I'm going
16 to object to that as being leading.
17 THE COURT: Overruled. I'll let him
18 answer it if he knows the answer. Go ahead.
19 THE WITNESS: No, sir. They just
20 asked me -- they just basically told me to write what I
21 could remember, and I did in a very quick manner.
22
23 BY MR. DOUGLAS MULDER:
24 Q. Has your memory improved since the
25 event?
Sandra M. Halsey, CSR, Official Court Reporter
4492

1 A. Yes, sir, very much so.
2 Q. Over the recess, I was reading through
3 your statement. Did you put in your statement,
4 initially, is there something in there that after the
5 police got there, you went upstairs and put your pants
6 on?
7 A. No, sir, I had my pants on.
8 Q. But didn't you put in your
9 statement --
10 A. I put in my statement that I couldn't
11 remember putting my pants on before I went downstairs. I
12 knew I had my glasses on, because I can't see two feet in
13 front of me.
14 Q. Well, I mean, when you gave the
15 statement, you put in there that it wasn't until the
16 police got there, that you went upstairs and put your
17 pants on?
18 A. I knew that couldn't be true.
19 Q. But that is in your statement, isn't
20 it?
21 A. Yes, sir.
22 Q. That means you were down there nude?
23 A. No, sir, I wasn't down there nude. I
24 think I would have been embarrassed if the police
25 officers would have started coming in, and I would have
Sandra M. Halsey, CSR, Official Court Reporter
4493

1 been standing there stark naked.
2 Q. Has your memory gotten progressively
3 better with time?
4 A. Yes, sir, it has.
5 Q. Did you remember more of what happened
6 on the 8th than you did the 6th, and more on the 10th
7 than you did the 8th, and more on the 20th than you did
8 on the 10th?
9 A. Yes, sir.
10 Q. And more as we go down the line?
11 A. A lot more now.
12 Q. Okay. Do you find that unusual?
13 A. No, sir.
14 Q. Given the circumstances?
15 A. No, sir. I have had a lot of time to
16 think about all this.
17 Q. In your effort to reconstruct things
18 with Darlie, did y'all go to a psychic?
19 A. Yes, sir, we did.
20 Q. Did a psychic tell you and her what
21 the psychic thought happened?
22 A. Yes, sir.
23 Q. Okay.
24 A. We were looking for answers that the
25 police couldn't tell us.
Sandra M. Halsey, CSR, Official Court Reporter
4494

1 Q. Just looking for help anywhere you
2 could get it?
3 A. Yes, sir.
4 Q. And did the psychic have a theory
5 about what this man did?
6
7 MR. GREG DAVIS: I'm going to object
8 to that as being hearsay from a psychic.
9 THE COURT: Sustained.
10 MR. DOUGLAS MULDER: I'm not going to
11 go into what --
12
13 BY MR. DOUGLAS MULDER:
14 Q. Did the psychic have a version, a sort
15 of a phrenology, where you feel the bumps on your head,
16 reconstruction of the scene?
17
18 MR. GREG DAVIS: I'm going to object
19 to that, again, whether she has got an opinion or not.
20 It's still hearsay.
21 MR. DOUGLAS MULDER: Judge, if the FBI
22 agent can testify, then we can hear what the psychic has
23 to say.
24 MR. GREG DAVIS: Well, if the psychic
25 wants to come in here and testify, let her.
Sandra M. Halsey, CSR, Official Court Reporter
4495

1 THE COURT: Gentlemen, the objection
2 is sustained. Rephrase your question.
3
4 BY MR. DOUGLAS MULDER:
5 Q. Did y'all talk to a psychic?
6 A. Yes, sir, we did.
7 Q. Did Darlie relate to you that she had
8 had dreams and nightmares concerning this attack?
9 A. Yes, sir, we've both had a lot of
10 nightmares.
11 Q. And are the dreams and nightmares
12 different versions of what her version was to you about
13 Damon coming in and tapping her on the shoulder?
14 A. Are they different?
15 Q. Well, yes.
16 A. Yes, sir.
17 Q. Okay. Mr. Davis has had a number of
18 questions about your finances and your business. Will
19 you tell the jury what your expenses were? I think we
20 know your rent was $525 dollars per month.
21 A. Yes, sir. I had just paid all my
22 equipment off. We had taken a loan out for about
23 seventy-five thousand dollars on equipment, and it was
24 all paid by January.
25 So, all of a sudden we had almost
Sandra M. Halsey, CSR, Official Court Reporter
4496

1 three thousand dollars a month extra per month, that we
2 weren't used to having, because we had made -- it's like
3 paying off a house in three years.
4 Q. I understand that, but I want to get
5 to the point here.
6 A. Individually, what my bills were?
7 Q. Tell us what your fixed expenses were
8 each month.
9 A. About five thousand dollars a month.
10 Q. All right. That includes what?
11 A. Electricity, phone bills, I have three
12 phones, rent, labor is usually the highest, you know, the
13 highest amount that you have to pay.
14 Q. Did that include Basia?
15 A. Yes, sir, it did.
16 Q. During your personal knowledge of her,
17 has she had mental difficulties?
18 A. Yes, sir.
19
20 MR. GREG DAVIS: I'll object to that,
21 your Honor. That is an area that we have already
22 discussed.
23 THE COURT: Sustained. Let's move on.
24
25
Sandra M. Halsey, CSR, Official Court Reporter
4497

1 BY MR. DOUGLAS MULDER:
2 Q. Are you personally aware --
3
4 MR. GREG DAVIS: Again, I'm going to
5 object to that, if it deals with the same area. I assume
6 it will.
7 THE COURT: Well, let him ask the
8 question first.
9 MR. GREG DAVIS: May we approach the
10 bench for a moment?
11 THE COURT: Yeah, I can see both sides
12 up here.
13
14 (Whereupon, a short
15 discussion was held
16 at the side of the
17 bench, between the Court,
18 and the attorneys for
19 both sides in the case,
20 off the record, and outside
21 of the hearing of the
22 Jury, after which time,
23 the proceedings were
24 resumed on the record,
25 outside the hearing of
Sandra M. Halsey, CSR, Official Court Reporter
4498

1 the jury as follows:)
2
3 THE COURT: Mr. Mulder, I have already
4 ruled on that. You are instructed not to ask any
5 questions in that area. I have already ruled on that.
6 MR. DOUGLAS MULDER: Can I get it on
7 the record?
8 THE COURT: I will put it in the
9 record once we get through. All right.
10 Let's move on to the next question,
11 please.
12
13 (Whereupon, the following
14 mentioned item was
15 marked for
16 identification only
17 as Defendant's Exhibit 81,
18 after which time the
19 proceedings were
20 resumed on the record
21 in open court, as
22 follows:)
23
24 BY MR. DOUGLAS MULDER:
25 Q. Let me hand you what has been marked
Sandra M. Halsey, CSR, Official Court Reporter
4499

1 for identification and record purposes as Defendant's
2 Exhibit No. 81. I will ask you if you recognize that and
3 can identify it?
4 A. Yes, sir.
5 Q. And, is that true and accurate?
6 A. Yes, sir.
7 Q. Bank statement?
8 A. Yes, sir.
9 Q. Concerning your business?
10 A. Balance, yes, sir.
11
12 MR. DOUGLAS MULDER: We'll offer into
13 evidence what's been marked and identified as Defendant's
14 Exhibit No. 81.
15 MR. GREG DAVIS: No objection.
16 THE COURT: Okay. Defendant's Exhibit
17 81 is admitted.
18
19 (Whereupon, the above
20 mentioned item was
21 received in evidence as
22 Defendant's Exhibit No. 81,
23 for all purposes
24 after which time,
25 the proceedings were
Sandra M. Halsey, CSR, Official Court Reporter
4500

1 resumed on the record,
2 as follows:)
3
4 BY MR. DOUGLAS MULDER:
5 Q. This shows your bank statement through
6 June of 1996 through June 30th; is that right?
7 A. Yes, sir.
8 Q. And it shows a bank balance, of June
9 30th, of how much?
10 A. Seven thousand, nine hundred forty-one
11 dollars and ten cents.
12 Q. Okay. Now, I believe you have already
13 testified that you had some 18 or 20 thousand in accounts
14 receivable at that time?
15 A. Yes, sir.
16 Q. That were good accounts receivable?
17 A. Yes, sir.
18 Q. And that have since been collected?
19 A. Yes, sir.
20 Q. You were asked about an American
21 Express bill?
22 A. Yes, sir.
23 Q. Remember I wanted you to explain that,
24 and he went on to something else?
25 A. Yes, sir.
Sandra M. Halsey, CSR, Official Court Reporter
4501

1 Q. Did you pay that bill?
2 A. Yes, sir, I did.
3 Q. Was your house payment current?
4 A. Yes, sir.
5 Q. In June?
6 A. Yes, sir, it was. I made the bank
7 payment -- the June payment wasn't late until the 15th.
8 I just hadn't written out the bills yet.
9 Q. Maybe we're beating this thing to
10 death, but with that Gangster Paradise, and I frankly
11 hadn't heard it until the other day, and I cannot recite
12 any of the lyrics.
13
14 MR. GREG DAVIS: I'm going to object
15 to that as really side-bar.
16 THE COURT: Well, I think I will
17 let --
18 MR. GREG DAVIS: Let's do a question,
19 not leading.
20 MR. DOUGLAS MULDER: Judge, if it gets
21 much more complicated than George Strait or Willie
22 Nelson, I don't listen to the words.
23 THE COURT: Oh, I understand, Mr.
24 Mulder, I understand. Well, let's ask the question.
25 Yes.
Sandra M. Halsey, CSR, Official Court Reporter
4502

1 BY MR. DOUGLAS MULDER:
2 Q. Do you listen to the words of those
3 things?
4 A. No, sir, I don't.
5 Q. Do you think your children understand
6 what the words are, or if they hear the words, understand
7 the meaning?
8 A. No, sir, I think they just understand
9 the beat.
10 Q. They like the beat and the rhythm and
11 that sort of thing, right?
12 A. Right. They jump around all over the
13 floor and dance.
14 Q. When you and Darlie -- they gave you
15 your warnings when you -- on that affidavit sheet, it's
16 got your warnings there, "That you have a right to remain
17 silent. That you have a right to a lawyer. If you can't
18 afford a lawyer, a lawyer will be appointed for you to
19 counsel with you, prior to or during any questioning by
20 the police; and you have a right to terminate the
21 interview at any time." That is basically your Miranda
22 warnings. You are familiar with those now?
23 A. Yes, sir, I am.
24 Q. You had never had those warnings given
25 to you before, had you?
Sandra M. Halsey, CSR, Official Court Reporter
4503

1 A. No, sir,
2 Q. In fact, other than an estate planning
3 lawyer, you have never even talked to a lawyer?
4 A. Yes, sir, and we never even talked to
5 him.
6 Q. Now, when Mr. Patterson and Mr. Frosch
7 asked you to give statements, did you hide behind your
8 Fifth Amendment right to remain silent and not say
9 anything at all, or did you tell them --
10 A. I told them everything. I didn't have
11 anything to hide.
12 Q. You answered all of their questions?
13 A. Yes, sir.
14 Q. You gave them keys to your house, and
15 your boat, and storage and the company, didn't you?
16 A. Yes, sir, I gave them keys to
17 everything I had.
18 Q. There has been some talk about
19 insurance. Did you have several hundred thousand dollars
20 worth of insurance on your life?
21 A. I have eight hundred thousand dollars
22 worth of life insurance on me.
23 Q. All right. How much did you have on
24 Darlie?
25 A. I think -- I believe two hundred
Sandra M. Halsey, CSR, Official Court Reporter
4504

1 thousand.
2 Q. All right. And the children, it was
3 just a family policy, where there was 5,000 on each of
4 the children?
5 A. Yes, sir, and they just add them on as
6 you have them.
7 Q. You were asked about a sock and you
8 said you had never seen that sock.
9 Is this one of y'all's towels?
10 A. Yes, sir.
11 Q. Do you recognize these as towels?
12 A. Yes, sir, kitchen towels.
13 Q. Let me just ask you --
14
15 MR. DOUGLAS MULDER: Of course, it
16 would be on the very bottom.
17 THE COURT: Always the way.
18 MR. DOUGLAS MULDER: Why is it always
19 the last place you look?
20 THE COURT: Just fate.
21
22 BY MR. DOUGLAS MULDER:
23 Q. What did you do with old socks?
24 A. We just -- we had a rag pile.
25 Q. Okay. This sock was described as
Sandra M. Halsey, CSR, Official Court Reporter
4505

1 having some holes in it, other than the obvious holes
2 that you see.
3 A. That is a pretty holey (sic) sock.
4 Q. Well, some places there are marks on
5 it, and other places, there are holes and no marks,
6 indicating that it was worn?
7 A. Yes, sir.
8 Q. I suspect. Did you wear socks with
9 multiple holes in them?
10 A. No, sir.
11 Q. Is this the type of sock that you
12 wore?
13 A. Tube sock, yes, sir.
14 Q. Okay. Do you have any reason to
15 believe that this is not one of your old socks?
16 A. Just by -- what if you flipped it
17 around, see where the heel is, just by guessing at it, I
18 would say that it was my sock.
19 Q. That it is your sock?
20 A. Yes, sir.
21 Q. Okay. Where would you put a sock that
22 had holes in it and was --
23 A. We had a basket on top of the washer
24 and dryer and we would just use them for rags, just for
25 waxing the cars, you know.
Sandra M. Halsey, CSR, Official Court Reporter
4506

1 Q. Cleaning up around the house?
2 A. Cleaning up around the house.
3 Q. Plenty to do with three boys, I guess?
4 A. Oh, yeah.
5 Q. I mean, the more you clean, the more
6 there is to clean?
7 A. Yes, sir.
8 Q. It's like shoveling sand against the
9 tide, isn't it?
10 A. Yes, sir.
11
12 MR. GREG DAVIS: Again, if we could
13 stop with the leading, please.
14 THE COURT: Sustained. Let's stop the
15 side-bar and the leading. Let's phrase our questions,
16 both sides please. You are both experienced attorneys.
17 Let's everyone phrase the questions properly.
18 MR. DOUGLAS MULDER: Judge, excuse me.
19 I'm just trying to move along on some of the things that
20 are obvious.
21 THE COURT: And we appreciate that,
22 Mr. Mulder.
23 MR. DOUGLAS MULDER: Thank you.
24 THE COURT: All right.
25
Sandra M. Halsey, CSR, Official Court Reporter
4507

1 BY MR. DOUGLAS MULDER:
2 Q. Let me ask you this, and I made a note
3 of it. Did Darlie, when you went to see her in the
4 hospital, did she at any time complain about or remark
5 about an injury to her mouth?
6 A. Yes, sir, she did.
7 Q. What was that?
8 A. When I first got in there, the -- some
9 other family members were giving her ice chips, and
10 feeding her ice chips because her lips were just all
11 swollen, like this, you could see the cuts on the inside
12 of her mouth.
13
14 MR. DOUGLAS MULDER: Okay. I believe
15 that's all.
16 THE COURT: Mr. Davis?
17 MR. GREG DAVIS: Yes, sir.
18
19
20 RECROSS EXAMINATION
21
22 BY MR. GREG DAVIS:
23 Q. Mr. Routier, it's really more accurate
24 to say that your memory got better every time we got a
25 test result back in this case, didn't it?
Sandra M. Halsey, CSR, Official Court Reporter
4508

1 A. No, sir.
2 Q. Every time we found out something
3 else, you remembered something else that would correspond
4 with that finding, didn't you?
5 A. No, sir. What I remember is exactly
6 what is the truth.
7 Q. So that when Mr. Mulder said, that
8 your memory was better on September the 12th than it had
9 been on June 8th, and now it's better than it was in
10 September. Of course, we have had all of these test
11 results come back, and you are privy to all them now,
12 aren't you?
13 A. Not necessarily.
14 Q. You pretty much know everything that
15 has happened in this case, haven't you?
16 A. Yes, sir, but the truth doesn't have
17 anything to do with the test results.
18 Q. Let me show you again, State's Exhibit
19 83-B. This is the letter I showed you yesterday. Do you
20 remember me showing you this letter, sir?
21 A. Yes, sir.
22 Q. And let me ask you: Is your memory
23 better about that today? Do you remember that is one of
24 the letters addressed to you now?
25 A. Yes, sir.
Sandra M. Halsey, CSR, Official Court Reporter
4509

1 Q. Okay.
2
3 MR. GREG DAVIS: Your Honor, at this
4 time we will offer State's Exhibit 83-B.
5 THE COURT: Any objection?
6 MR. DOUGLAS MULDER: I thought that
7 came in yesterday.
8 MR. GREG DAVIS: No, sir, just 83-A.
9 He said he didn't remember that one yesterday.
10 THE COURT: Any objection?
11 MR. DOUGLAS MULDER: Judge, just a
12 moment. No, we don't have any objection.
13 THE COURT: State's Exhibit 83-B is
14 admitted.
15
16 (Whereupon, the above
17 mentioned item was
18 received in evidence
19 as State's Exhibit No. 83-B,
20 for all purposes
21 after which time,
22 the proceedings were
23 resumed on the record,
24 as follows:)
25
Sandra M. Halsey, CSR, Official Court Reporter
4510

1 MR. GREG DAVIS: Judge, may I publish
2 this briefly.
3 THE COURT: You may.
4 MR. GREG DAVIS: Ladies and
5 gentlemen, this is a letter from Mellon Mortgage Company,
6 May the 8th, 1996, addressed to Darin E. Routier and
7 Darlie L. Routier, in reference to a loan number.
8 "Dear mortgagor, your situation is serious.
9 Your mortgage payments for April and May of 1996 have not
10 been received and you are in default of your loan.
11 "Mellon Mortgage would like to help you.
12 Including late charges, the total amount past due is
13 $2,525.74. If payments are not received by May 23, 1996,
14 you risk foreclosure. You could lose your home.
15 "Additionally, a deficiency judgment could
16 be sought against you for any losses that might result."
17 It goes on then with instructions as to the
18 payment of these charges.
19
20 BY MR. GREG DAVIS:
21 Q. Sir, the situation by June the 3rd,
22 had gotten to the point where you got rejected on a five
23 thousand dollar loan at Bank One. You remember that,
24 don't you?
25 A. Yes, sir, that was an unsecured loan.
Sandra M. Halsey, CSR, Official Court Reporter
4511

1 Q. Okay. You remember dealing with an
2 Okie Williams, correct?
3 A. Yes, sir, I do.
4 Q. And, the bottom line on that
5 transaction, sir, was that they would not loan you five
6 thousand dollars unsecured, would they?
7 A. Not unsecured, no, but they would
8 secured.
9 Q. You didn't get that five thousand
10 dollars from Bank One, did you?
11 A. I wasn't too heartbroken about it
12 either.
13 Q. Could you please answer my question?
14 Did you get the five thousand dollars?
15 A. Did we get the loan? No.
16 Q. Okay. That document, Defendant's
17 Exhibit 81, that summary, from Bank One that deals with
18 the month of June, it shows deposits of eleven thousand,
19 seven hundred and fifty-six dollars; is that correct?
20 A. Yes, sir.
21 Q. Okay. And again it shows --
22 A. And only seven thousand came out.
23 Q. Right. Checks paid of seven thousand,
24 one hundred and fifty-four dollars and nine cents,
25 correct?
Sandra M. Halsey, CSR, Official Court Reporter
4512

1 A. Yes, sir.
2 Q. So if we're correct for the first five
3 months of '96 that you have receipts for seventy-four
4 thousand dollars, if we add these deposits of eighty-five
5 thousand dollars, we now have the receipts for six months
6 of 1996, don't we?
7 A. Five months.
8 Q. No, sir. I mean, I am including
9 through June.
10 A. One through six, yes, sir.
11 Q. Right. We have eighty-five thousand
12 dollars received and deposited in Bank One by Testnec,
13 don't we?
14 A. Yes, sir.
15 Q. Two times eighty-five thousand is how
16 much money, sir?
17 A. Two times eighty-five thousand?
18 Q. Yes, sir.
19 A. A hundred and seventy-some thousand.
20 Q. Okay. That is ninety thousand dollars
21 less than your company earned in 1995; is that correct?
22 A. That is not adding the twenty thousand
23 that I still had on the books open.
24 Q. No. I'm just talking about monies
25 that you had received and put in there?
Sandra M. Halsey, CSR, Official Court Reporter
4513

1 A. Yes, sir.
2 Q. And these represent accounts
3 receivable for earlier months, don't they?
4 A. Yes, sir.
5 Q. A hundred and seventy-something
6 dollars as opposed to two hundred and sixty thousand,
7 would you agree with me that is a difference of ninety
8 thousand dollars?
9 A. Yes, sir, it would have been.
10 Q. And when you came into Court on July
11 the 1st, on that bond hearing, it's fair to say you were
12 trying to portray yourself as poor as you could that day,
13 weren't you?
14 A. Yes, sir.
15 Q. That's true?
16 A. I am broke.
17 Q. Because on July the 1st, when you were
18 asked about how much money was in this bank account, this
19 account that shows seven thousand, nine hundred and
20 forty-one dollars on June 30th, do you remember what you
21 told this Court, how much money you had in that bank
22 account then on July the 1st?
23 A. I was guessing, about twenty-five
24 hundred.
25 Q. Well, actually you guessed a little
Sandra M. Halsey, CSR, Official Court Reporter
4514

1 bit lower than that.
2 A. Two thousand?
3 Q. Yeah. I asked, "How much money do you
4 have in that account?"
5 "About two thousand dollars."
6 You were about six thousand dollars
7 short on July 1st, weren't you?
8 A. I don't recall.
9 Q. Well, seven thousand, nine hundred and
10 forty-one dollars minus two thousand dollars is what?
11 Five thousand, nine hundred and forty-one dollars?
12 A. Yes, sir.
13 Q. Of course, that was on July 1st. Now
14 the situation is that you are trying to paint this one as
15 rosy as you can about your finances, aren't you?
16 A. There was nothing wrong with my
17 finances. July the 1st, I just hadn't had the money come
18 in yet.
19 Q. On June the 8th, you said that you
20 asked or said that you wanted these police officers to
21 videotape, or audio tape what you were saying, because
22 you really didn't trust them to get down everything that
23 you were writing, or that you were saying to them; right?
24 A. I just can't write everything that I
25 think.
Sandra M. Halsey, CSR, Official Court Reporter
4515

1 Q. You have had a lot of discussions with
2 these attorneys. They haven't even -- have they written
3 down notes of what you told them?
4 A. Very little. I don't know.
5 Q. Well, I would imagine given that fact,
6 that you have obviously then asked them to audio or
7 videotape you, haven't you? Make sure that they get it
8 down right?
9 A. No, sir, I haven't.
10 Q. Would it be fair to say, that really
11 back on June the 6th, by your version, we have got a real
12 lucky intruder, don't we?
13 A. There was an intruder.
14 Q. A lucky intruder?
15 A. Why lucky?
16 Q. I mean, after all, he picked a house
17 where the window just happened to be open to the garage,
18 right?
19 A. Yes, sir.
20 Q. Just happened to pick a house where on
21 that night, the alarm system is not turned on or armed,
22 correct?
23 A. Yes, sir.
24 Q. Lucky that in fact once he gets past
25 the alarm system off, he gets through the window, open,
Sandra M. Halsey, CSR, Official Court Reporter
4516

1 when he gets to the utility room, he just happens to find
2 a sock available to him for his use that night, right?
3 A. Yes, sir.
4 Q. And lucky enough that when he does
5 that, he gets into the kitchen and lo and behold there in
6 the butcher block he finds a weapon to attack your two
7 children and your wife, right?
8 A. My understanding is that it is called
9 an opportunist.
10 Q. No, my question is, he was lucky
11 enough that evening, that once he got past all that, the
12 murder weapon is actually provided inside the house;
13 right?
14 A. Yes, sir.
15 Q. Lucky enough that while he is
16 attacking both your children, your wife doesn't wake up,
17 right?
18 A. Yes, sir.
19 Q. Lucky enough that after he attacks
20 her, that in fact, she doesn't even get a good look at
21 his face, right?
22 A. Yes, sir.
23 Q. Lucky enough, that as he is leaving
24 the house, he drops the knife on the floor there, and
25 your wife doesn't pick it up and doesn't use it against
Sandra M. Halsey, CSR, Official Court Reporter
4517

1 him, right?
2 A. Yes, sir.
3 Q. Lucky enough that when he gets into
4 the garage that he doesn't deposit any blood on the
5 floor, no blood on the window, correct?
6 A. I don't know anything about that.
7 Q. And then lucky enough that when he
8 leaves out that garage into your back yard, that he
9 either scales that fence without leaving a mark, or he
10 opens up that gate and he then latches and closes it
11 without anybody detecting that either, right?
12 A. Yes, sir.
13 Q. A real lucky guy, wasn't he?
14 A. Yeah, and I want him dead.
15 Q. So do I.
16
17 MR. GREG DAVIS: No further questions.
18
19
20 REDIRECT EXAMINATION
21
22 BY MR. DOUGLAS MULDER:
23 Q. I guess he is lucky that the police
24 don't pursue the leads that they received?
25 A. Exactly.
Sandra M. Halsey, CSR, Official Court Reporter
4518

1 Q. Lucky that when people called in
2 having seen a man with a black ball cap and a black
3 T-shirt and jeans, in the vicinity, that the police
4 didn't pursue it?
5 A. They never looked.
6 Q. Lucky enough that when Angel Rickels
7 got a hold of them and they came out to her house, they
8 weren't interested?
9 A. Yes, sir.
10 Q. Lucky enough that the police are not
11 interested in pursuing the fingerprint that the man left
12 as he went out that window?
13 A. Yes, sir.
14 Q. You aren't responsible for the luck or
15 the happenstance of some crazy assailant, are you?
16 A. No, sir.
17 Q. Anything more precious to you than
18 those two youngsters?
19 A. Nothing. There is nothing more
20 important than those boys to us.
21 Q. Have you ever doubted your wife's
22 innocence?
23 A. No, sir.
24 Q. Do you doubt it now?
25 A. No, sir.
Sandra M. Halsey, CSR, Official Court Reporter
4519

1
2 MR. DOUGLAS MULDER: I believe that's
3 all we have.
4 MR. GREG DAVIS: I don't have any
5 further questions.
6 I would offer State's Exhibit 141, the
7 voluntary statement given on June the 8th.
8 THE COURT: Any objection?
9 MR. DOUGLAS MULDER: Is that his
10 statement?
11 MR. GREG DAVIS: Yes, sir.
12 MR. DOUGLAS MULDER: No objection.
13 We'll call --
14 THE COURT: Just a minute. State's
15 Exhibit 141 is admitted.
16
17 (Whereupon, the item
18 Heretofore mentioned
19 Was received in evidence
20 As State's Exhibit No. 141
21 For all purposes,
22 After which time, the
23 Proceedings were resumed
24 As follows:)
25
Sandra M. Halsey, CSR, Official Court Reporter
4520

1 THE COURT: You're under the Rule. Do
2 you understand that, sir?
3 THE WITNESS: Yes, sir.
4 THE COURT: Do not discuss your
5 testimony with anybody who had testified. In other
6 words, do not compare it.
7 You may talk to the attorneys for
8 either side. If someone tries to talk to you about your
9 testimony, tell the attorney for the side who called you.
10 Of course, you have to remain outside
11 the courtroom when you are not testifying.
12 THE WITNESS: Yes, sir.
13 THE COURT: All right. Thank you.
14 Step down, please. Watch your step.
15 MR. TOBY L. SHOOK: Judge, could we
16 have a 705 hearing, pursuant to the expert testimony,
17 please?
18 THE COURT: Well, you certainly can.
19 The jury will step back into the jury
20 room, please.
21
22 (Whereupon, the jury
23 Was excused from the
24 Courtroom, and the
25 Proceedings were held
Sandra M. Halsey, CSR, Official Court Reporter
4521

1 In the presence of the
2 Defendant, with his
3 Attorney, but outside
4 The presence of jury
5 As follows:)
6
7 THE COURT: Will you raise your right
8 hand, please, sir?
9
10 (Whereupon, the witness
11 Was duly sworn by the
12 Court, to speak the truth,
13 The whole truth and
14 Nothing but the truth,
15 After which, the
16 Proceedings were
17 Resumed as follows:)
18
19 THE COURT: Do you solemnly swear or
20 affirm that the testimony you are about to give will be
21 the truth, the whole truth, and nothing but the truth, so
22 help you God?
23 THE WITNESS: I do.
24 THE COURT: All right. Have a seat
25 right there. You have, of course, testified many times.
Sandra M. Halsey, CSR, Official Court Reporter
4522

1 You understand the Rule of Evidence. You are under it
2 now. You don't need to have it explained to you now.
3 THE WITNESS: Yes, sir.
4 THE COURT: Thank you. Let the record
5 reflect that these proceedings are being held outside the
6 presence of the jury, and all parties at the trial are
7 present.
8 This is a 705 hearing on Dr. DiMaio's
9 testimony, and the conclusions and underlying data that
10 go to those conclusions.
11 So, if we could get right to the
12 point, please.
13 MR. TOBY L. SHOOK: Yes, sir.
14
15
16
17
18
19
20
21
22
23
24
25
Sandra M. Halsey, CSR, Official Court Reporter
4523

1 Whereupon,
2
3 DR. VINCENT J.M. DIMAIO,
4
5 was called as a witness, for the purpose of a hearing,
6 outside the presence of the jury, having been first duly
7 sworn by the Court to speak the truth, the whole truth,
8 and nothing but the truth, testified in open court, as
9 follows:
10
11 EXAMINATION
12
13 BY MR. TOBY L. SHOOK:
14 Q. Dr. DiMaio, my name is Toby Shook. I
15 just have a few questions for you for this hearing.
16 What opinions have you come to testify
17 for today?
18 A. One, that the injuries incurred by
19 Mrs. Routier are those that would be incurred if one was
20 assaulted with a knife, and are not consistent with
21 self-inflicted wounds. She has shown significant blood
22 loss, and that her hemoglobin dropped two grams. She has
23 evidence of severe blunt trauma to both forearms, more on
24 the right than the left. Let's see.
25 Q. Is that it?
Sandra M. Halsey, CSR, Official Court Reporter
4524

1 A. Well, you know, I don't know exactly
2 what questions I'm going to be asked, you know, but --
3 Q. Are those the only opinions -- has one
4 of these attorneys gone over your testimony with you and
5 asked you questions about what you are coming to testify
6 to?
7 A. Yes, essentially those questions, I
8 think there were some questions asked about bleeding, you
9 know, how much do you bleed with different wounds, and
10 that sort of thing, only having to do with, again with
11 Mrs. Routier.
12 Q. Okay. The first opinion you said was,
13 that Mrs. Routier's wounds would have been, did you say
14 consistent with an assailant?
15 A. What I'm saying is that, based on the
16 location and direction of the wounds and the nature of
17 the wounds, these are the type of wounds that one would
18 get if one was assaulted, rather than self-inflicted.
19 They are not consistent with self-inflicted wounds.
20 Q. And what facts or data do you rely on
21 for that opinion?
22 A. Essentially, the photographs of the
23 wounds and the medical records. All of my opinions are
24 based on photographs of her and her wounds, the -- and
25 the medical records. So that is about it.
Sandra M. Halsey, CSR, Official Court Reporter

4525

1 Q. Okay. And then, the other was an
2 opinion on blunt trauma to the right arm, primarily, and
3 then maybe blood loss?
4 A. You get various evidence of blood
5 loss, her hemoglobin went down from 11.6 at about 3:30 in
6 the morning, down to 9.6 the following day.
7 Q. Okay. Is that, as far as you know,
8 the extent of the opinion that you have come to testify
9 for today?
10 A. Yes, I think I have covered
11 everything. Let me think a second.
12 Q. And which attorney did you discuss it
13 with? Was it Mr. Mulder?
14 A. Well, my original conversation was
15 with Mr. Parks when he was originally -- he was the one
16 who originally retained me, and then I discussed it with
17 Mr. Mulder as well.
18 Q. Okay.
19
20 THE COURT: All right.
21 MR. TOBY L. SHOOK: Is that as far as
22 it goes?
23 THE COURT: Any objection?
24 MR. DOUGLAS MULDER: I think so --
25 that is pretty close, yeah.
Sandra M. Halsey, CSR, Official Court Reporter
4526

1 MR. TOBY L. SHOOK: That's all then,
2 Judge.
3 THE COURT: All right. Any objection?
4 MR. DOUGLAS MULDER: We have none.
5 THE COURT: I didn't think so. What
6 about you, Mr. Shook?
7 MR. TOBY L. SHOOK: No, sir.
8 THE COURT: All right. Thank you,
9 Doctor.
10 Bring the jury in, please.
11
12 (Whereupon, the jury
13 Was returned to the
14 Courtroom, and the
15 Proceedings were
16 Resumed on the record,
17 In open court, in the
18 Presence and hearing
19 Of the defendant,
20 As follows:)
21
22 THE COURT: All right. Ladies and
23 gentlemen, let the record reflect that all parties from
24 the trial are present and the jury is seated. Ladies and
25 gentlemen of the jury, this witness has been sworn
Sandra M. Halsey, CSR, Official Court Reporter
4527

1 outside of your presence.
2 Mr. Mulder.
3 MR. DOUGLAS MULDER: Yes, sir.
4 THE COURT:
5
6
7
8
9 Whereupon,
10
11 DR. VINCENT J. M. DIMAIO,
12
13 was called as a witness, for the Defense, having been
14 first duly sworn by the Court to speak the truth, the
15 whole truth, and nothing but the truth, testified in open
16 court, as follows:
17
18
19 DIRECT EXAMINATION
20
21 BY MR. DOUGLAS MULDER:
22 Q. You are Dr. Vincent DiMaio?
23 A. Yes, sir.
24 Q. And will you tell the jury your
25 profession?
Sandra M. Halsey, CSR, Official Court Reporter
4528

1 A. I am a physician, presently employed
2 as the chief medical examiner for Bexar County.
3 Q. You are a medical doctor?
4 A. Yes, sir. I graduated from medical
5 school in 1965 from the State University of New York,
6 Downstate Medical Center.
7 Q. Dr. DiMaio, do you have a specialty in
8 the field of medicine?
9 A. Yes, sir. I am a specialist in the
10 overall branch of medicine called pathology which is the
11 study and diagnosis of diseases. Then I have a
12 subspecialty in forensic pathology, which is essentially
13 a branch of medicine concerned with the application of
14 all aspects of medical science, the problems and the law.
15 Q. Doctor, are you board certified?
16 A. Yes, I am board certified in
17 anatomical pathology, clinical pathology and forensic
18 pathology.
19 Q. Does a pathologist also perform
20 autopsies?
21 A. Yes, sir.
22 Q. And will you give the jury some idea
23 of how many autopsies you have performed?
24 A. I would say that I've performed
25 somewhere over 7,000 autopsies, and supervised maybe
Sandra M. Halsey, CSR, Official Court Reporter
4529

1 about 21,000, in addition.
2 Q. For how many years have you been the
3 chief medical examiner for the county of Bexar?
4 A. Since March the 1st, 1981, so it will
5 be 16 years come the end of February.
6 Q. And Dr. DiMaio, will you please
7 outline for the jury your education and professional
8 experience for the position that you now hold?
9 A. Yes, sir. After graduating from
10 medical school and obtaining my M.D. Degree, I spent four
11 years additional training in the fields of anatomical
12 pathology, and clinical pathology at Duke Hospital in
13 Durham, North Carolina, and the King's County Downstate
14 Medical Center, in New York City.
15 I then spent the fifth year of
16 training in the field of forensic pathology at the Office
17 of the Chief Medical Examiner for the State of Maryland.
18 Following this, I took my board exams
19 in '70 and '71 and was certified as a specialist in the
20 three fields of anatomical pathology, clinical pathology,
21 and forensic pathology.
22 I then went into the military, I
23 served two years in the Army, assigned to the Armed
24 Forces Institute of Pathology in Washington, D.C. where I
25 was chief of the medical legal section for one year, and
Sandra M. Halsey, CSR, Official Court Reporter
4530

1 chief of the wound ballistics for another year. Then I
2 got out of the service, and I moved to Texas. I took the
3 position as a medical examiner in Dallas. I was there
4 from around June the 1st, '72 to, as I said, March the
5 1st of 1981. I was the medical examiner there and
6 eventually ended up as the Deputy Chief Medical Examiner
7 for Dallas County.
8 That is about it.
9 Q. All right. Now, Doctor, there is a
10 magazine or journal in the field of forensics, forensic
11 medicine. Are you familiar with the American Journal of
12 Forensic Medicine and Pathology?
13 A. Yes. The American Journal of Forensic
14 Medicine and Pathology is the only medical journal
15 devoted to the field of forensic pathology published in
16 the United States.
17 Q. Would you tell us who the editor in
18 chief is?
19 A. I am the editor in chief.
20 Q. Okay. How long have you been editor
21 in chief?
22 A. I think this is the 6th year.
23 Q. You have published books in the past,
24 have you not?
25 A. I have published three books. I was
Sandra M. Halsey, CSR, Official Court Reporter
4531

1 the editor of one book on forensic pathology. I wrote a
2 book on gunshot wounds, which has been published. And I
3 am also the co-author with my father, who is the Chief
4 Medical Examiner in New York City, on a book called,
5 Forensic Pathology, which kind of covers all the other
6 areas of forensic pathology except for gunshot wounds,
7 which I covered in the other book.
8 Q. In addition to your father, you have
9 other pathologists in the family, do you not?
10 A. Actually, I -- well, yes, I guess
11 that's right. The older of my three sisters is a
12 pathologist and my son is a pathologist in Houston,
13 hospital pathology, he is not interested in forensics.
14 Q. You also have a sister who is a
15 pediatrics physician?
16 A. No, two sisters in pediatrics.
17 Q. Two, excuse me. Doctor, in addition
18 to the books, you have published 70 or 80 articles, have
19 you not?
20 A. 70 articles, 7 book chapters and 10 or
21 11 professional scientific letters.
22
23
24 (Whereupon, the following
25 mentioned item was
Sandra M. Halsey, CSR, Official Court Reporter
4532

1 marked for
2 identification only as
3 Defendant's Exhibit No. 94,
4 after which time the
5 proceedings were
6 resumed on the record
7 in open court, as
8 follows:)
9
10 BY MR. DOUGLAS D. MULDER:
11 Q. I have marked for identification and
12 record purposes as Defendant's Exhibit 94, your CV, which
13 would acquaint the jurors with your background and
14 qualifications?
15 A. Yes, sir.
16 Q. All right.
17
18 MR. DOUGLAS MULDER: We will offer
19 into evidence what has been marked and identified as
20 Defendant's Exhibit No. 94.
21 MR. TOBY L. SHOOK: No objection.
22 THE COURT: Defendant's Exhibit 94 is
23 admitted.
24
25 (Whereupon, the item
Sandra M. Halsey, CSR, Official Court Reporter
4533

1 Heretofore mentioned
2 Was received in evidence as
3 Defendant's Exhibit No. 94
4 For all purposes,
5 After which time, the
6 Proceedings were resumed
7 As follows:)
8
9
10 (Whereupon, the following
11 mentioned items were
12 marked for
13 identification only
14 as Defendant's Exhibits
15 No. 82, 83, 84, 85, 86,
16 87, 88, 89, 90, 91,
17 92, 93 and 95,
18 after which time the
19 proceedings were
20 resumed on the record
21 in open court, as
22 follows:)
23
24 MR. DOUGLAS MULDER: Your Honor, at
25 this time, I'm going to offer into evidence what has been
Sandra M. Halsey, CSR, Official Court Reporter
4534

1 marked and identified as Defendant's Exhibits 82, 83, 84,
2 85, 86, 87, 88, 89, 90, 91, 92, 93 and 95?
3 THE COURT: Any objection?
4 MR. TOBY L. SHOOK: Wait a minute.
5 What is 93?
6 MR. DOUGLAS MULDER: 93 was Dr. Santos
7 report. I think it was already in. I just couldn't find
8 it.
9 MR. TOBY L. SHOOK: No objection.
10 THE COURT: All right. Defendant's
11 Exhibits 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93
12 and 95 are admitted.
13
14 (Whereupon, the above
15 Mentioned items were
16 Received in evidence
17 As Defendant's Exhibits
18 No. 82, 83, 84, 85, 86, 87,
19 88, 89, 90, 91, 92, 93 and 95
20 For all purposes, after
21 Which time, the
22 Proceedings were
23 Resumed on the record,
24 In open court,
25 As follows:)
Sandra M. Halsey, CSR, Official Court Reporter
4535

1
2 BY MR. DOUGLAS MULDER:
3 Q. Doctor, so that we might identify
4 these exhibits, Defendant's Exhibit 93 is an operative
5 record that was dictated by Dr. Patrick Dillawn, and also
6 bears the name of Alex Santos?
7 A. Yes, sir.
8 Q. All right. And you have had that in
9 the past, a copy of that to refer to?
10 A. Yes, I have.
11 Q. Okay. And then Defendant's Exhibit
12 No. 95 is a Polaroid photograph that has been admitted
13 into evidence that is dated 6-6-of 96, at 16:05 hours,
14 which would be, I suspect military time, for 4:05 P.M. of
15 Darlie Routier. This picture was taken June the 6th of
16 1996. I'm sorry. Can you see it now?
17 A. Yes. Okay.
18 Q. Also, you have had occasion to see
19 that, have you not?
20 A. Yes, I have.
21 Q. All right. And, could you come up
22 here so that Richard, and John maybe, so we can show the
23 jury the various photographs that we're talking about?
24 Maybe each could hold three or four.
25
Sandra M. Halsey, CSR, Official Court Reporter
4536

1 MR. DOUGLAS MULDER: Judge, I just
2 want them generally to be familiar with the photographs
3 that we have here.
4 THE COURT: I understand. All right.
5 Maybe we could get in line in order so we don't inundate
6 the jury.
7 MR. RICHARD C. MOSTY: Should I be at
8 the end?
9 THE COURT: Well, let's put it at the
10 other side. We would never place you at the end.
11 MR. DOUGLAS MULDER: I said the ones
12 in the hospital are June the 6th, the Polaroid is June
13 the 6th, and the deals where she is standing in clothing
14 other than hospital, are June the 10th.
15
16 BY MR. DOUGLAS MULDER:
17 Q. Dr. DiMaio, in reviewing Defendant's
18 Exhibit No. 93, that is the operative report, did you
19 determine from that report that Darlie Routier had
20 experienced considerable blood loss?
21 A. The -- yes, sir. That in conjunction
22 with the lab reports. That is, the report by Dr. Santos
23 describes an incised wound, running down the right side
24 of the neck onto the chest, and then a continuation on
25 the left side of the chest.
Sandra M. Halsey, CSR, Official Court Reporter
4537

1 And, he indicates that the -- he calls
2 it a laceration, it's really an incised wound, a cut --
3 extend down to the sheath of the carotid artery, and this
4 is almost like a thin, transparent membrane, the best way
5 to think of it, it looks like Saran Wrap, so, that was
6 wrapping the vessel, and it is about a millimeter thick,
7 there may be a little more there.
8 So, essentially, you are talking about
9 a cut that went down to, virtually, the wall of the
10 carotid artery. And, if it had severed the carotid
11 artery, she would have bled to death, because the blood
12 would have pumped out in a matter of a few minutes and
13 there would have been death.
14 When you look at the rest of the
15 medical records, they indicate that when she came into
16 the hospital, she had a blood hemoglobin, that is the
17 amount of -- that is kind of a measurement, the amount of
18 hemoglobin that you have in your blood.
19 A blood hemoglobin level of about 11.6
20 and this is about 3:30 in the morning. Then by the next
21 day, it had dropped two points, from 11.6 down to 9.6,
22 and what happened was is that she had lost a significant
23 amount of blood from this injury. And -- but it's not
24 initially reflected. That is, what happens is that when
25 you lose blood, your body compensates for it by
Sandra M. Halsey, CSR, Official Court Reporter
4538

1 mobilizing fluid from outside the bloodstream and pours
2 it in.
3 In addition, when you go to the
4 hospital, you know, they run those IV's, they are putting
5 in fluids. So what happened is, is that her hemoglobin
6 appeared relatively normal when she came in, because the
7 blood not been diluted by the fluids. The fluids came
8 in, it dropped. And what it meant was, that she had lost
9 a significant amount of blood from these wounds. And in
10 fact, one of the diagnosis was acute posthemorrhagic
11 anemia, which meant she lost a lot of blood.
12 So this, these wounds were not, you
13 know, that and the other wounds on the arm, caused a drop
14 of two points in her hemoglobin, which is a significant
15 drop.
16 Q. Okay. Dr. DiMaio, what is your
17 evaluation as regards to the seriousness of that neck
18 wound?
19 A. About another millimeter or two, and
20 she would have been dead. It would have cut right
21 through the carotid artery.
22 In theory, you could put pressure on
23 to stop it, but, you know, in a real life situation,
24 people aren't trained like physicians, and she would have
25 bled to death.
Sandra M. Halsey, CSR, Official Court Reporter
4539

1 It's -- the carotid artery, or the two
2 carotid arteries deliver 75 percent of the blood going to
3 your head. So, she would have lost approximately 40
4 percent of the blood supply going to her head. And every
5 time her heart beat, there would have been a pulse of
6 blood shooting out the neck, four or five feet, if she
7 had cut the carotid artery. And, the cut was, as I said,
8 down to the sheath, a millimeter thick, maybe.
9 Q. Dr. DiMaio, have you had the
10 opportunity to view the photographs taken of Darlie
11 Routier on June the 6th, there in the hospital?
12 A. Yes, sir.
13 Q. And, have you also had occasion to
14 review and evaluate the photographs where she is in, not
15 in hospital garb but in regular civilian clothes, shorts,
16 I believe, the photographs that were taken on June the
17 10th of 1996?
18 A. Yes, sir.
19 Q. Okay. Do the bruises on June the 10th
20 of 1996 demonstrate bruising?
21 A. Yes. I mean, if you look at her arms
22 on the 10th, you can see there is just massive soft
23 tissue hemorrhage.
24 This is her right arm. And what it is
25 going from the wrist right up to past the elbow and into
Sandra M. Halsey, CSR, Official Court Reporter
4540

1 the upper arm, so it's going, just sweeping, all the way
2 here on what you would call the plexor surface of the
3 arm, not on the back. And this is extensive hemorrhage.
4 And it appears to be a few days old, because it's
5 turning, it's a good purple color, and it's indicative of
6 severe, blunt trauma.
7 This, you know, everyone bumps into
8 something, an edge or something and gets a little bruise,
9 but just think about, if you have gotten one little
10 bruise, how much force must have been generated, must
11 have been put against this arm to cause the whole arm
12 from the wrist past the elbow, to be bruised.
13 So that is a lot of force. And so
14 there is evidence of really severe injury, and there is
15 like a little, a few little, what appears to be scrapes
16 here, indicating that there was an impact with something.
17 So, you're talking again of severe
18 force. The left arm -- again, this is the right -- the
19 left arm is not too bad. You can see it's going upward
20 to maybe a third to half a way up the forearm on this
21 surface.
22 Q. Doctor, you have noted, that no doubt,
23 that there is evidence in the photograph you have in your
24 left hand or just put down there on it, of a line, an
25 arterial line in her left wrist?
Sandra M. Halsey, CSR, Official Court Reporter
4541

1 A. Yes, sir.
2 Q. And also, an IV in her, I guess, what
3 is that, the inside of the left elbow?
4 A. Yes, sir. Right. Yes.
5 Q. That's what I call it.
6 A. All right. That is good enough.
7 Q. All right. At least --
8 A. At the cubital fossa, let's use the
9 crease.
10 Q. Is that bruising, in your judgment and
11 experience, is that a result of medical intervention?
12 A. No. The bruising here -- I mean, I --
13 at one time I actually treated live people. I started
14 IV's. That was the day before we had disposable needles,
15 and those needles were dull.
16 I can tell you, I perforated vessels
17 and there was blood, and you did not get this massive
18 hemorrhage into the arms.
19 And I have had IV's started on me,
20 where they have poked through, and you don't get it.
21 This is blunt force injury, and it's deep, it's deep down
22 into the muscle. And so, it was deep down and then
23 gradually the blood percolates up to the surface
24 underneath the skin.
25 Q. Doctor, directing your attention to
Sandra M. Halsey, CSR, Official Court Reporter
4542

1 the right arm, the photographs that depict the right arm?
2 A. Yes, sir.
3 Q. And, you will notice two stab wounds
4 in the right forearm?
5 A. Yes, sir.
6 Q. One of some two inches in length and
7 the other, of approximately a half inch in length?
8 A. Yes, sir.
9 Q. Do you have an opinion with respect to
10 whether or not the bruising associated with the right arm
11 was caused by those two stab wounds?
12 A. No. Stab wounds in those locations
13 would not produce that massive bleeding into the arm.
14 And in fact, if you even use a
15 little -- if you think about it, look at where they are.
16 They are on the back, and on the back, there is not much
17 bleeding. Where is all of the bleeding? Let's see,
18 excuse me.
19 There's so many, I have got to juggle
20 these things. It's on the other side. So, these stab
21 wounds have nothing to do with the bleeding in the arm.
22 Q. All right. Doctor, what sort of
23 instrument caused those injuries?
24 A. The two penetrating wounds in the --
25 Q. No. No. That caused the bruising?
Sandra M. Halsey, CSR, Official Court Reporter
4543

1 A. It would have to be something blunt.
2 By blunt, I mean it doesn't have sharp -- it's not a
3 knife, it's not something with very sharp margins.
4 It could be blows from a fist, because
5 your fist is considered a blunt object. It could be
6 blows from a hard object, people always like baseball
7 bats, things like that.
8 It could be anything that is heavy,
9 that doesn't have any cutting edges and that can be, that
10 could impact hard against the arm, so to cause all this
11 bleeding in this area.
12 Q. Are those injuries consistent and
13 compatible with Darlie Routier having been severely
14 beaten with a blunt, heavy instrument?
15 A. Yes. That is what they are. These
16 are blunt force injuries. Impacting something very hard
17 that produced extensive bleeding into her muscle.
18 Q. Are those injuries consistent and
19 compatible, those shown in the photographs of June the
20 10th, of 1996, are those consistent and compatible, the
21 bruises evidenced in those photographs, with having been
22 received by Darlie Routier during the early morning hours
23 of June the 6th of 1996, some four days or so earlier?
24 A. Yes, sir. The coloration is
25 appropriate, and it is consistent with it.
Sandra M. Halsey, CSR, Official Court Reporter
4544

1 Q. Okay. Dr. DiMaio, are those injuries
2 consistent or inconsistent with having been
3 self-inflicted, the bruising?
4 A. That is -- I would say it's
5 inconsistent. I mean, how do you get blunt force
6 injuries here? I mean, it's easy to get blunt force
7 injuries here, if you want, you know, I can bang my arm
8 against the edge here. But to here? And, also, again,
9 it's very wide spread.
10 I mean this, this, a lot of force.
11 You -- everybody has bumped into something and you get a
12 bruise, but look at this. It's just really severe
13 hemorrhage up and down the arm. This is tremendous
14 force.
15 Q. Doctor, what are defensive wounds?
16 A. Defensive wounds are injuries that you
17 get when you try to ward off an attacker. And, the
18 original description had to do with knives, and it could
19 also be blunt force.
20 In other words, if somebody is
21 swinging something hard at you like a hard object, and
22 you put your arm up like that and you get injuries here
23 and here, then you have what is called defensive wounds,
24 because they are incurred when you try to protect
25 yourself. And people will typically protect the most
Sandra M. Halsey, CSR, Official Court Reporter
4545

1 important part of the body, that is the head. So people
2 tend to raise arms up, if it's a blunt force, and try to
3 protect their face and head.
4 Q. Doctor, I'll ask you to refer to the
5 photographs and see if they don't depict an injury to the
6 neck of Darlie Routier, an injury, a stab wound to the
7 left chest of Darlie Routier, cuts to the left, inside
8 fingers to three of her fingers on her left hand, and two
9 stab wounds in her right forearm?
10 A. Yes, sir.
11 Q. All right. Would you characterize any
12 of those injuries as defensive wounds?
13 A. The wounds that you would consider
14 defensive would be the wounds of the back of the right
15 forearm. This is a close-up in my right hand. This is
16 the type of wound that if somebody was trying to stab at
17 you with a knife, what do you do? You put your am up.
18 And there are two stab wounds here and here.
19 If she had been dead, and I had done
20 an autopsy, I would have called -- I would have put this
21 section down as two penetrating stab wounds of the right
22 forearm, parenthesis, defense wounds. Because this is
23 the location that you get these wounds in, if somebody is
24 going to attack you with a knife. It's typical.
25 That is, people who commit suicide
Sandra M. Halsey, CSR, Official Court Reporter
4546

1 will cut themselves here. Why? Because this is the
2 natural way to do it. Although, they cut the edge, this
3 way. But these are vertically oriented, you know, on the
4 hands in its normal position, and on the back. And this
5 is typical for the defense wounds, when someone is coming
6 at you with a knife and you hold your arm up in the front
7 of you, and this is where you would get the defense
8 wounds.
9 Q. Okay.
10 A. And the other place you get defense
11 wound are on the hands. In fact, the original
12 description of defense wounds is on the hands.
13 Because what happens is someone comes
14 at you with a knife, you try to ward them off, a lot of
15 times they try to grab the blade, and you can see there
16 is a cut going across, a very superficial cut going from
17 one finger to the other and there. This has the
18 appearance of one single cut.
19 All right. I know someone says,
20 "Well, they don't exactly line up," but you know, your
21 fingers, you don't walk around with your hand like that,
22 I mean, you curl them and then maybe down or up. And
23 this has the appearance, again of a defense wound.
24 Again, if this was an autopsy case, I
25 would put, you know, incised wounds of fingers,
Sandra M. Halsey, CSR, Official Court Reporter
4547

1 parenthesis, defense wounds.
2 Q. Okay. Dr. DiMaio, have you had
3 occasion in the past to examine injuries or render an
4 opinion as regards to whether or not those injuries were
5 self-inflicted?
6 A. Yes. The last time I think was about,
7 just before Christmas. A nurse shot her, I think it was
8 common-in-law husband, and her defense was is that he
9 attacked her with a knife. And, you know, they were
10 obviously self-inflicted wounds.
11 And my office has had two other -- in
12 the last three or four years, two other cases where the
13 defense was, you know, it was self-defense, and I had
14 to -- I warded off a knife, and these are defense wounds,
15 you know, these wounds were incurred, but actually they
16 were incised wounds.
17 One was, I think, an oral surgeon,
18 another one, a dentist. And again, I had another case of
19 a doctor who self-inflicted wounds and was trying to say
20 he was attacked.
21 Q. All right. Dr. DiMaio, assume that
22 Darlie Routier is right-handed, are those injuries that
23 you observed in the photographs, are they consistent or
24 inconsistent with self-infliction?
25 A. They are inconsistent with
Sandra M. Halsey, CSR, Official Court Reporter
4548

1 self-infliction. Both the wounds, the stab wounds on the
2 back of the right forearm and the stab wounds on the
3 neck. Because if you look at the -- really, incised
4 wounds. When I say incised, I mean a cut.
5 And, an incised wound is when, you
6 know, the sharp edge of a knife runs across her body, but
7 a stab wound is the tip going into it. And, you can see
8 here and here (demonstrating), then if we go close up,
9 this is a much better close-up.
10 And what this shows, is that this
11 wound has started on the right side of her neck here,
12 across the midline going in a downward path, and then,
13 there is a gap and then there is a second wound.
14 So essentially, if you look at me,
15 there is an incised wound going like this, gap, and then
16 there is another knife wound here. And, you know, if you
17 think -- the ruler -- think about this.
18 If this is a knife and you're
19 right-handed, I mean, you are going to have to be going
20 like this, the edge of the knife, and then skipping a
21 place, like that, then, changing hands and doing two stab
22 wounds here, this way.
23 And, because, you know, people don't
24 do things the hard way. They do things simple. So,
25 this, you know, try and say, you know, you are going to
Sandra M. Halsey, CSR, Official Court Reporter
4549

1 cut like this, and then you have to cut like that, and
2 then stab, doesn't make any sense for self-inflicted
3 wounds, for a right-handed person.
4 And people who are right-handed use
5 their right hand for self-infliction of the wounds,
6 because you don't think about it. If I handed any of you
7 this, you would pick it up with your dominant hand. You
8 wouldn't think anything.
9 You wouldn't pick it up with your left
10 hand and manipulate it. It's too difficult. And people
11 don't think about that. They are not going to say, "Oh,
12 I'm going to switch hands." Now, like I said, the people
13 I saw were doctors and nurses and they self-inflicted
14 with the right hand, which was their dominant.
15 The wound on the neck is -- if I may
16 demonstrate on you?
17 Q. Sure.
18 THE WITNESS: May I, your Honor?
19 THE COURT: That is quite all right.
20 MR. DOUGLAS MULDER: That is why I got
21 the ruler.
22
23 (Whereupon, the witness
24 Stepped down from the
25 Witness stand, and
Sandra M. Halsey, CSR, Official Court Reporter
4550

1 Approached the jury rail
2 And the proceedings were
3 Resumed as follows:)
4
5 THE WITNESS: As I said, this, and
6 then you have to turn it like this, doesn't make any
7 sense. But that makes sense, or, that make sense. Okay?
8 And, what happens, you notice how he
9 cringed? Well, let's go in slow motion. The knife comes
10 here, and starts to cut, and what will you do, you'll
11 lean back.
12 And of course, when you lean back,
13 there's a gap, but you stick your chest out and you get
14 here. So it's like this, now lean back and so there is a
15 gap. Stand straight.
16 MR. DOUGLAS MULDER: Okay.
17 THE WITNESS: The cut comes down like
18 that, and now you start to go back. And notice how you
19 get a skip, and if you look at these wounds, they line
20 up.
21
22 BY MR. DOUGLAS MULDER:
23 Q. Would that be the same if I were --
24 could you demonstrate that same thing if I were lying on
25 a sofa?
Sandra M. Halsey, CSR, Official Court Reporter
4551

1 A. Sure. It's the same thing. Well, it
2 doesn't make everybody horizontal, but it's the same way.
3 If you look at this, this is one wound coming straight
4 down this way. It's coming from here, gap, space.
5 And this is not consistent with
6 someone self-inflicting it with the right hand. I mean,
7 obviously, you can't stab yourself in the back. And
8 people who do self-inflict wounds, will always use their
9 dominant hand, because that is how you are taught to use
10 knives and things.
11
12 THE COURT: Thank you, Doctor. All
13 right. We will recess for lunch now. Until 10 minutes
14 after 1:00 o'clock.
15 All right. Same instructions to the
16 jury as always: Don't discuss the case among yourselves,
17 or with anyone. Do no investigation on your own. If you
18 see any publicity about the case either on radio or T.V.,
19 newspapers, please ignore it. Thank you.
20
21 (Whereupon, a short
22 recess was taken, after
23 which time, the
24 proceedings were
25 resumed in open court,
Sandra M. Halsey, CSR, Official Court Reporter
4552

1 in the presence and
2 hearing of the
3 Defendant, being
4 represented by his
5 Attorney, but outside of
6 the presence of the jury
7 as follows:)
8
9 THE COURT: Are both sides ready to
10 bring the jury back in and resume the trial?
11 MR. DOUGLAS D. MULDER: Yes, sir.
12 MR. GREG DAVIS: Yes, sir, the State
13 is ready.
14 THE COURT: All right. Bring the jury
15 in, please.
16 Will the Court come to order, please.
17 THE BAILIFF: Please have a seat.
18
19 (Whereupon, the jury
20 was returned to the
21 courtroom, and the
22 proceedings were
23 resumed on the record,
24 in open court, in the
25 presence and hearing
Sandra M. Halsey, CSR, Official Court Reporter
4553

1 of the defendant,
2 as follows:)
3
4 THE COURT: All right. Let the record
5 reflect that all parties in the trial are present and the
6 jury is seated.
7 Mr. Mulder.
8 MR. DOUGLAS MULDER: Yes, sir.
9
10
11 DIRECT EXAMINATION (Resumed)
12
13 BY MR. DOUGLAS MULDER:
14 Q. Dr. DiMaio, are you familiar with
15 blood pattern interpretation?
16 A. To a certain degree, yes, sir.
17 Q. And Dr. DiMaio, as a medical doctor,
18 what aspects and variables from a medical standpoint must
19 be taken into consideration in blood pattern
20 interpretation?
21
22 MR. TOBY L. SHOOK: Judge -- excuse
23 me, Doctor -- could we approach the bench for one moment?
24 THE COURT: You may.
25
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4554

1 (Whereupon, a short
2 discussion was held
3 at the side of the
4 bench, between the Court,
5 and the attorneys for
6 both sides in the case,
7 off the record, and outside
8 of the hearing of the
9 Jury, after which time,
10 the proceedings were
11 resumed on the record,
12 in the presence of
13 the jury as follows:)
14
15 THE COURT: Okay. Thank you. Go
16 ahead.
17
18 BY MR. DOUGLAS MULDER:
19 Q. Dr. DiMaio, what are the variables
20 that have to be taken into consideration from a medical
21 doctor's standpoint in blood pattern interpretation?
22 A. Okay. Essentially, bleeding is not a
23 simplistic thing. So, if you have -- some people think,
24 you know, if you cut yourself or you have a wound,
25 everybody bleeds the same. But there are a lot of things
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4555

1 that go into how you bleed.
2 One of the simplest is, it has to do
3 with what is called, the Langer's lines, the elastic
4 fibers in your skin.
5 We all know as we get older, our skin
6 sags. And what happens is is that in the skin, beneath
7 the skin, there are elastic fibers and they make the skin
8 very contract, you know, contractile.
9 And, they run certain ways through the
10 body. And, have you ever seen anyone with a vertical
11 scar on their forehead, you notice how it stands out, but
12 then you see people who have horizontal scars and it gets
13 lost in the normal folds.
14 And plastic surgeons take advantage of
15 these elastic fibers to hide their scars. And so, if
16 you -- let's say you have been stabbed. Suppose you get
17 stabbed, if you get stabbed perpendicular to Langer's
18 lines, the elastic fibers pull open the wound and you get
19 a lot of blood coming out, if there is a vessel
20 underneath that is spurting, it will spurt out.
21 If you cut along the fibers, the wound
22 tends to be slit-like and it may not begin bleeding
23 immediately, or if it does bleed, it will not bleed as
24 much as the vertical one.
25 Then you have to take other factors.
Sandra M. Halsey, CSR, Official Court Reporter
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1 Right beneath the skin in most parts of the body, you
2 have muscle. And everybody has had a muscle cramp, you
3 know, when the muscle contracts down.
4 Suppose you get a stab wound in the
5 chest here, through the muscle. Is the stab wound
6 parallel or perpendicular to Langer's lines? Then when
7 it goes in, is it running with the muscle or against it?
8 If it's running against the muscle, the wound will gape
9 open.
10 If it's running with the muscle, it
11 will be slit-like. And then you are irritating the
12 muscle, will it go into a cramp and shut down and reduce
13 the amount of bleeding?
14 Then, suppose you do have a stab wound
15 going through here. And then suppose you move your arm
16 or maybe your arm had already been moved in an unusual
17 position when you had the wound, and now you moved it
18 back, the muscle can slide over, and there could be
19 contraction.
20 So, a simple stab wound may not be
21 simple. The amount of bleeding may be determined by
22 Langer's lines, the elasticity of the skin, whether you
23 are cutting against the muscle or with the muscle,
24 whether the muscle contracts down.
25 And then, when you get into a body
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4557

1 cavity, do you hit a large vessel? Does the bleeding
2 from the large vessel go into the cavity first, and then
3 leak out? Or does it -- is the vessel so close to the
4 surface that it pulsates out?
5 Then, of course, you have clothing.
6 You have, say, a shirt like that. You get a stab wound
7 here and then the clothing shifts, or maybe the clothing
8 had been pulled over when you got the stab wound.
9 Now the clothing shifts over it. And
10 so that affects the way you're bleeding. So the concept
11 people have is you get a wound and the blood comes out in
12 a simple pattern. It is not that simple.
13 There are a number of factors that can
14 determine how much blood comes out, how fast, and whether
15 it comes out in spurts or kind of dribbles out, and
16 unfortunately, some people don't take that into account
17 in bloodstain interpretation and that is the Achilles
18 heel of bloodstain interpretation.
19 It makes an assumption that is not
20 true. That all wounds are equal, all wounds bleed the
21 same, and that you can -- you have -- you are starting
22 out with a fixed concept, or fixed concept and then you
23 can interpret, and it doesn't always happen that way.
24 On top of that, you will actually get
25 certain areas of the body where you will get a wound, you
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4558

1 may not get any bleeding because the initial response to
2 the shock is contraction down of the blood vessels. Even
3 if you have like a major artery, like the carotid artery.
4 If you cut it, suppose you don't cut it all the way, you
5 only cut it part of the way, and then someone else gets
6 it cut all the way. Which wound is worse?
7 Actually, it's the wound where you
8 only cut part of the way, because if you cut it
9 completely through, an artery, which is elastic like
10 that, may go into contraction and may actually shut off
11 both ends for a short time before it pulsates.
12 But if you cut it open, you maintain
13 the open lumen of the vessel and the blood keeps pumping
14 out. So the thing is bleeding and wounds and how the
15 blood comes out is complex and it's not simple, and to
16 try to assume everybody and every wound will bleed the
17 same, doesn't work out. And again, that is the Achilles
18 heel.
19 Q. So, I guess what you are saying is
20 that, when somebody gets a stab wound or a puncture
21 wound, the body doesn't always bleed like water runs out
22 of faucet, when you turn the faucet on.
23 A. Right. It depends on, again, all of
24 these factors, including clothing, whether it's with the
25 grain, against the grain, whether it's muscle, whether
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4559

1 you hit a vessel, there's a whole bunch of things. And
2 you can only generalize, but it may not actually, what
3 you may say, may not apply in this case. But you can
4 just get a general feel.
5 Q. Dr. DiMaio, have you seen many victims
6 of stab wounds?
7 A. Yes. I would say a couple hundred in
8 the last few years.
9 Q. Let me show you what's been marked for
10 identification and record purposes as State's Exhibit No.
11 25.
12 A. Yes, sir.
13 Q. And it has quite a number of holes
14 that are taken for evidence purposes. But it also has a
15 hole here, a defect here, and it has a defect here, and
16 it has a defect here.
17 I was thinking there were four of
18 those defects, but at any rate, here, here and here. Do
19 you routinely find defects in clothing worn by a victim
20 where there is no corresponding stab wound or cut on the
21 body itself?
22 A. All the time.
23 Q. How is that?
24 A. Because essentially, what you are
25 talking in most cases, it's not just somebody sticking a
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4560

1 knife in. There is a struggle. And you try to grab
2 people, and most stabbings are close combat.
3 Suppose you grab a shirt like this,
4 and you pull it, and then a knife blade comes toward you,
5 and you pull back, so it cuts the material.
6 But, let's put it this way: I would
7 say that maybe a quarter of all cases, you will find a
8 little tear, you know, of multiple stab wound cases, a
9 little tear, a point where the tip of the knife has gone
10 through, and even a slash, and on the body it doesn't
11 correspond.
12 Because what's happened is, during the
13 struggle the clothing has been pulled away, or it --
14 maybe just hangs down, and so, when someone slashes the
15 knife, it catches the material, but it doesn't go in deep
16 enough to cut the body.
17 So that's just common, all the time
18 you will find defects in the clothing, and no injury to
19 the underlying body. An examination of the clothing at
20 the time of the autopsy is part of the autopsy.
21 In my autopsy reports, and every one
22 that comes out of my office, if the person is wearing
23 clothing and we have the clothing, in the autopsy report
24 will not only be a description of the body, but will be a
25 description of the clothing, and whether there are
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4561

1 corresponding defects or noncorresponding defects in that
2 clothing.
3 MR. DOUGLAS MULDER: Thank you,
4 Doctor.
5 Mr. Shook will have some questions for
6 you.
7
8
9 CROSS EXAMINATION
10
11 BY MR. TOBY SHOOK:
12 Q. Dr. DiMaio, it's my understanding you
13 are the chief medical examiner of San Antonio?
14 A. Yes, sir.
15 Q. Okay. And additionally, you make
16 extra money coming in and testifying at -- out of other
17 jurisdictions?
18 A. Right. I am not here as -- in my
19 official capacity as chief medical examiner. I am here
20 on my own time, compensatory time, and this is what I do,
21 you know, it's work on the side.
22 Q. And when you are testifying as an
23 expert, for instance, today, how much -- what is your fee
24 that you charge for that?
25 A. It depends on how far I have to go and
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4562

1 it depends on how long, it depends on how much time.
2 Q. In this particular case?
3 A. I think my total bill, when I submit
4 it, is going to be about fifteen hundred dollars.
5 Q. Okay. And, you, in recent years
6 testified for, as I said, the defense in cases such as
7 this, haven't you?
8 A. Yes, most of my testimony is for the
9 prosecution in Bexar County, obviously, because that is
10 where my job is. And then I -- on private, I do about
11 half the time for the prosecution and half the time for
12 defense. This Friday I was testifying for the
13 prosecution in Florida, and Tuesday I am testifying for
14 the defense.
15 Q. A medical examiner is not supposed to
16 be biased one way or the other; is that right, Dr.
17 DiMaio?
18 A. That's correct.
19 Q. You just, you get the body in and you
20 do the autopsy, and you testify to questions asked about
21 what you found; is that right?
22 A. Right. And that is what I'm doing
23 here. I am just testifying to my scientific observations
24 of the wounds in this case.
25 Q. And, you have testified for Mr. Mulder
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4563

1 before, haven't you?
2 A. When he was a district attorney, yes,
3 and also when he was in private practice.
4 Q. How many times have you testified for
5 him since he has been in private practice, would you say?
6 A. Maybe four or five times.
7 Q. Okay. And have you consulted with him
8 on other cases?
9 A. Well, he's shown me occasionally a
10 case or two, and I have told him things.
11 Q. Did you make any report in regards to
12 this case?
13 A. No, sir.
14 Q. Any notes in regards to this case?
15 A. Just this sheet right here. If you
16 want to take a look at it.
17 Q. And then the -- the only other items
18 you looked at were the photographs?
19 A. And the medical records.
20 Q. And the medical records.
21 A. Yes.
22 Q. Did you look at all of the medical
23 records?
24 A. What? Well, on my testimony. I've
25 also -- I also have here some testimony by Dr.
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4564

1 Townsend-Parchman, but I'm not using any of that. Do you
2 want to take a look?
3 Q. Yes. But you had the Baylor medical
4 records to look at; is that right?
5 A. Yes, sir.
6 Q. Okay. And is that -- and then you had
7 some photographs. When is the first time you looked at
8 these photographs?
9 A. When I was originally given them by --
10 it was by Mr. Parks.
11 Q. Okay. You have not interviewed anyone
12 else in regards to your testimony or opinions?
13 A. No, sir.
14 Q. Have not talked to Dr. Santos or Dr.
15 Dillawn or any of the nurses at Baylor, have you?
16 A. No, I have just read his medical
17 records and such, yes.
18 Q. Okay. And you said that you worked on
19 several cases where people have committed self-inflicted
20 wounds to try to, I guess, what, cover their tracks or
21 throw off blame on them?
22 A. Yes, sir.
23 Q. Situations like that?
24 A. Yes, sir.
25 Q. So you do see that from time to time,
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4565

1 don't you? People will go to the trouble of actually
2 having a self-inflicted wound to try to shove blame off
3 on them?
4 A. Yes, sir.
5 Q. Or point it in another direction?
6 A. Yes, sir.
7 Q. I guess, in your line of work, it
8 never ceases to amaze you what people can be capable of?
9 A. Yes, sir.
10 Q. Okay. Now, you say that -- well, let
11 me start this way. You talk about --
12 A. Excuse me.
13 Q. Yes, sir.
14 A. Are you through with my material, or
15 do you want to look through it?
16 Q. Well, I was going to look at here in a
17 second.
18 A. Okay. That is fine.
19 Q. Would it be better --
20 A. No, no, no. Go ahead and look at it.
21 Q. I'll leave it with you in case you
22 need to refer to it.
23 A. Okay. My piece of paper.
24
25 THE COURT: Can you all hear him okay?
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4566

1 THE JURORS: Yes.
2 THE COURT: Thank you. All right.
3
4 BY MR. TOBY L. SHOOK:
5 Q. Now, as far as the seriousness of the
6 defendant's wounds, Dr. DiMaio, wouldn't the surgeons who
7 actually performed the surgery on her, be a better judge
8 of how serious those injuries were?
9 A. Well, yes, sir. And that is why I'm
10 using their description that it went down to the carotid
11 sheath. If you are down to the carotid sheath, you are
12 within one or two millimeters of the carotid artery.
13 And then, of course, the medical
14 records, also -- I'm answering you now -- all the medical
15 records also show the hemoglobin has dropped by two
16 milligrams. So --
17 Q. But would you agree, Doctor, that the
18 surgeons who actually performed the surgery would be a
19 better judge to how serious their injuries -- or her
20 injuries were?
21 A. They might be, yes, sir.
22 Q. Well, they were there, weren't they?
23 A. Yes, sir, but I don't know what -- but
24 I mean, you know, it's like saying, someone shot at me
25 with a .44 magnum and it missed me, so therefore, it
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4567

1 wasn't very serious.
2 Q. Doctor, that is not the question I
3 asked you. They were there, weren't they?
4 A. Right, yes, sir, they were.
5 Q. Okay. They performed the surgery on
6 her neck, didn't they, Dr. DiMaio?
7 A. Yes, sir. And I'm basing my opinion
8 on their description of it.
9 Q. They saw the wound opened and operated
10 on it?
11 A. Yes, sir.
12 Q. So wouldn't they be the better judge
13 of just how serious that injury was?
14 A. Yes, sir.
15 Q. Okay. Now, as far as your opinion
16 about the defendant self-inflicting these wounds, are you
17 saying that it is impossible, that it couldn't have
18 happened?
19 A. No. What I'm saying is, that based
20 upon their location and their path, and the nature of the
21 wounds, it is more probable, the term I used, that it's
22 inflicted by someone else. Anything is possible, but I
23 am saying in this case, it's not probable.
24 Q. Okay. And as far as the neck wound,
25 you were talking about -- well, how would you describe
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4568

1 the neck wound? Is it -- it's a pretty long wound, I
2 guess, wouldn't you say?
3 A. It looks to be about three inches or
4 so, the primary wound.
5 Q. Okay. Have you actually gotten to
6 examine her scar?
7 A. No.
8 Q. Okay. Would that help you in some of
9 your opinions, if you got to look close at the scar?
10 A. It doesn't make any difference because
11 it is pictured in the photographs.
12 Q. Okay. So those would be fine for you?
13 A. Yes, sir.
14 Q. Okay. You said -- do you have any
15 opinion as to how fast that wound would bleed out? You
16 were talking about when Mr. Mulder was finishing these --
17 what did you call them? Langer's lines?
18 A. The Langer's lines, yes, sir.
19 Q. Did that make a difference in this
20 case, or do you have an opinion as to how fast the neck
21 wound might bleed?
22 A. No, sir. All I know is that, you
23 know, she lost two milligrams -- two grams of hemoglobin.
24 Q. If that neck was cut, or when it was
25 cut, would you expect it to bleed pretty quickly?
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4569

1 A. It would begin bleeding fairly
2 quickly, within 30 seconds to a minute, yes, sir.
3 Q. Would a neck wound like that bleed a
4 lot, have a lot of blood coming out of it?
5 A. Under most conditions, it would bleed
6 a lot, yes, sir.
7 Q. Okay. And, how would you describe the
8 position of this wound on the neck. Is it -- I mean,
9 let's say, she didn't survive, she had died. How would
10 you describe it in an autopsy?
11 A. An incised wound.
12 Q. Okay. And what position would you say
13 it was on the neck?
14 A. Okay. It's on the -- okay, it would
15 be an incised wound of the anterior aspect of the neck,
16 beginning, say, this is -- I'm just throwing numbers out
17 saying --
18 Q. Sure.
19 A. -- 2 inches to the right of the
20 midline, above -- say an inch or two above the clavicle,
21 the collarbone and running downward and medially, that is
22 towards the center of the body, crossing the midline and
23 extending towards the medial end, that is the inner end
24 of the left collarbone. And the incised wound extends
25 down through the muscle, up to the carotid sheath.
Sandra M. Halsey, CSR, Official Court Reporter
4570

1 Q. Okay. How about the angle? How
2 severe an angle is the neck wound?
3 A. What do you mean, how severe an angle?
4 Q. Well, is it, like, vertical, oblique,
5 horizontal?
6 A. It's an oblique. It's running
7 downward from right to left.
8 Q. As far as the neck wound goes, would
9 you say it was a pretty long wound?
10 A. Well --
11 Q. I think it's in the medical --
12 A. It's a couple of inches, right. I
13 think it says 7.5 centimeters or so. Let me see how long
14 is this drawing?
15 Q. I thought I saw nine millimeters.
16 A. Nine centimeters?
17 Q. Or centimeters, I'm not sure.
18 A. Okay. Nine centimeters then would be
19 approximately four and a half inches. No, let me see,
20 no. It's three and a half inches, that is what I said.
21 Okay. It's 2.5 centimeters per inch and 10 centimeters
22 would be four inches.
23 Q. Okay.
24 A. So, it's a little less than four
25 inches.
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4571

1 Q. A little less then four inches.
2 A. Yes, sir.
3 Q. And looking at the photograph here in
4 28-B, it covers most of the front of the neck, I guess,
5 wouldn't you say?
6 A. It begins to the right of the midline,
7 runs downward onto the upper chest, right. Yes, sir, so
8 that is the primary one.
9 Q. So we're talking about all down the
10 front of the neck? Starting at the top right and going
11 down?
12 A. Yes, sir.
13 Q. Now, you can't say, or maybe you can,
14 if it started here or there? I mean, at which end it
15 starts, the cut? Can you tell us which end, just looking
16 at it?
17 A. No.
18 Q. So it could go this way or that way?
19 A. You could in theory say, it went up
20 this way. But of course, the problem there is if you are
21 trying to say it was self-inflicted, it becomes even more
22 difficult.
23 Q. Now Doctor, are you saying that the
24 defendant could not take this knife --- oh, I think we --
25 she could cut her own neck with this knife, couldn't she?
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4572

1 A. Well, I said it's possible, but
2 improbable due to the -- if you look at it, see how it
3 comes down and then skips and then down.
4 Q. Well, that is if you take it through
5 that that is one long, continuous cut, right?
6 A. Yes, sir, and it lines up, and it's
7 consistent with it. Down, then you come, as you're
8 coming, then you come back and put your chest out and
9 then it catches it.
10 Q. Well, I don't want to use this knife
11 on myself, obviously. Let's try to measure it up here.
12 But there is nothing --
13 A. It would settle the problem, how fast
14 the bleeding was, you know.
15 Q. Yeah. All right. Well, I don't think
16 I will be demonstrating it. Maybe Mr. Mulder could come
17 up here and do that.
18
19 MR. DOUGLAS MULDER: Hand me the
20 knife, I'll do it.
21
22 BY MR. TOBY L. SHOOK:
23 Q. But there is nothing -- nothing that
24 would prevent her from taking that knife, if she wanted
25 to, and cutting across here?
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4573

1 A. That's correct. Then she would have
2 to cut again, then she would have to change hands.
3 Q. Yes. And then do --
4 A. Turn her arm like that.
5 Q. Yeah.
6 A. But, what I'm saying is, it's
7 improbable.
8 Q. It's improbable?
9 A. Yes, because people who we've seen and
10 who have had incised, who do try to do that, do the same
11 thing, they always use the dominant hand, the right hand.
12 It's so ingrained that you don't even think about it.
13 Q. That is what people usually do?
14 A. Right. These people are, you know --
15 Q. Okay. But there is nothing preventing
16 the --
17
18 MR. DOUGLAS MULDER: Excuse me.
19 Excuse me. If you just will let him answer.
20 THE WITNESS: These people, no insult
21 to the defendant, but they're a little better -- they
22 were better educated than her and they are familiar with
23 medical things and they may even be familiar with
24 forensics, which I seriously doubt that she is.
25
Sandra M. Halsey, CSR, Official Court Reporter
4574

1 BY MR. TOBY L. SHOOK:
2 Q. But there would be nothing preventing
3 the defendant from -- take the knife with the left hand,
4 stabbing it right there in the right arm. She could do
5 that, couldn't she?
6 A. That's what I said. I said it's
7 possible, but not probable.
8 Q. Well, in fact, there were two wounds
9 there on the right arm, aren't there?
10 A. Right.
11 Q. One is much smaller?
12 A. Yes.
13 Q. Didn't even require any sutures or
14 anything. This wound we're talking about right here?
15 A. Yes.
16 Q. And, is this wound kind of right here,
17 Doctor, would you say in the middle of the forearm or
18 near the elbow?
19 A. It's on -- it's approaching the side
20 of the arm.
21 Q. Okay. And this other one is right
22 above it?
23 A. Right.
24 Q. Okay.
25 A. It's actually a little further towards
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4575

1 the finger.
2 Q. You talk about hesitation wounds, that
3 is when a person might work up enough courage, or testing
4 out, for instance, sometimes you get suicides, they might
5 cut a little bit before they make the big cut. Is that
6 right?
7 A. Hesitation marks are associated with
8 incised wounds, right. Cuts where they start to make a
9 cut and it hurts, and then they start and it hurts, so
10 you will see a number of smaller wounds.
11 Q. This smaller wound we see here could
12 be consistent with sort of a hesitation wound, couldn't
13 it?
14 A. You could say that if you think
15 it's -- if you think they are self-inflicted. Or, if
16 it's not self-inflicted, it's just a small stab wound.
17 Q. Right. It could go either way? But
18 it could be consistent with someone stabbing their arm
19 and then stabbing it with greater force right below it.
20 A. Right. What I am talking about is
21 medical probability. I'm not talking about possibility.
22 Q. And, again, as far as the angle goes,
23 right-handed, I mean, do you think it's real difficult
24 just to do that?
25 A. It actually is.
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4576

1 Q. Well, I'm doing it, aren't I?
2 A. Yes, I know.
3 Q. Okay.
4 A. But well, okay. Never mind.
5 Q. Okay.
6 A. It's difficult, but then again, okay,
7 so you do it this way, which is difficult, it's easier
8 just to go this way, and most people would go this way.
9 Why go this way? Why do it difficult?
10 First of all, if you're going to cut
11 yourself and you know it's going to hurt and everything,
12 why do it the hard way? Why not just go that way?
13 You are saying she went that way, then
14 put the knife in her other hand and then stabbed herself.
15 Q. Could do it? Could happen though?
16 A. It could happen, but --
17 Q. Nothing could stop her and it's not
18 physically impossible to do that?
19 A. It's not possible (sic) -- it's not
20 impossible, I said it's not probable.
21 Q. As far as that blunt trauma goes, that
22 is severe blunt trauma; is it not?
23 A. Yes, sir.
24 Q. And the bruising that you see there,
25 you said -- could that be consistent with just being two
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4577

1 days old?
2 A. It looks to be a couple of days old.
3 That's all I will say. You can't date it any better.
4 Q. You can't come to dating them real
5 close, can you, Doctor?
6 A. No, sir.
7 Q. If this photograph was taken on the
8 10th, it's possible that injury could have happened on
9 the 8th?
10 A. It's possible, yes, sir.
11 Q. Okay. This bruise is still -- well,
12 somewhat crimson here on this.
13 A. Yes, sir.
14 Q. Which shows it's a more recent bruise;
15 is that right?
16 A. Well, I wouldn't say that. I mean, I
17 have said that it can, so I wouldn't push my luck.
18 Q. Okay.
19 A. Okay. With the coloration.
20 Q. And blunt trauma is caused when
21 something strikes the skin very hard; is that right?
22 A. Yes, sir.
23 Q. Okay. And you have looked at -- it
24 could be like you say, people oftentimes use a bat,
25 right?
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4578

1 A. Yeah, I just used it because everyone
2 talks about a bat, but it could be anything hard.
3 Q. Does it look like there might be some
4 kind of pattern to these abrasions?
5 A. The only thing that I saw that
6 suggested a pattern of some sort was those little marks
7 over there, but I'm not going to commit myself.
8 Q. Okay. But this could possibly have a
9 pattern, what you see here, these red --
10 A. It could be something, right.
11 Q. Okay. And a pattern can be caused
12 when someone, I don't know, well, you tell the jurors how
13 a pattern can show up on skin.
14 A. A pattern indicates that the surface
15 that -- impacting was not smooth. I mean, there was some
16 irregularity on it.
17 Q. A brick, something like that could
18 leave a pattern?
19 A. Yes, sir, anything with a little
20 irregularity on it.
21 Q. Okay. And wherever it strikes the
22 skin, it might leave an abrasion to the skin? Or --
23 A. Well, only if you hit it on the side,
24 you have to hit the edge.
25 Q. Okay. And you can see, possibly, you
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1 don't know, but possibly that's what we see here on the
2 forearm?
3 A. Yes.
4 Q. These marks?
5 A. There's three or four marks there and
6 I don't know what they are, they may be abrasions and
7 such, but, it's too slim a thing to hang your hat on, I
8 mean.
9 Q. Right.
10 A. Mix up what I'm saying, but, let's put
11 it this way, it's there, the significance, I'm not sure.
12 Q. Well, on Defendant's Exhibit 86, do
13 you also see maybe a similar-type abrasion?
14 A. Yes, sir.
15 Q. Okay. And on, I think, it's 52-E, you
16 have already pointed out this area.
17 A. Right.
18 Q. But also, right along in there, is
19 there also an area?
20 A. Well, I'm talking about the same
21 thing.
22 Q. All right. All that area. And this
23 bruising, obviously, goes from here to here?
24 A. Yes, sir.
25 Q. More on inside; is that right?
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1 A. Yes, sir.
2 Q. Again, looking at it from the other
3 point of view, if you wanted to self-inflict those
4 wounds, you would just have to take an object and hit the
5 inside of your arm; is that right?
6 A. Interesting, it's again, with the
7 non-dominant hand, yes, sir.
8 Q. If you wanted to do it. Or you could
9 just take your arm against the wall and whack it real
10 hard, couldn't you?
11 A. Not -- the wall wouldn't work because
12 your hand would hit also.
13 Q. Your hand would hit? Okay. But you
14 could do it if you wanted to?
15 A. It's possible. It would be very hard.
16 Q. But again, like you said, in your line
17 of work you see people do all kinds of things?
18 A. Occasionally.
19 Q. You didn't get any information in the
20 medical records that Mrs. Routier had any blunt force
21 trauma to her torso, did you?
22 A. No.
23 Q. To her head or face?
24 A. That's correct. There's photographs
25 of the face and then part of, well, just her upper
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1 extremities, upper chest.
2 Q. Okay. This -- getting back to the
3 neck wound again, it's almost four inches across and
4 extends across the front of the neck; is that right?
5 A. No, it four inches long. It begins in
6 the neck and then runs down onto the chest.
7 Q. Okay. Wouldn't you consider that, as
8 far as a neck wound, a pretty long wound?
9 A. Four inches is fairly long, yes, sir.
10 Q. Okay. And is it just one, is it just
11 one wound? The primary one we are talking about on the
12 neck, is that made with one swipe of the knife?
13 A. The only description says, it says one
14 wound, so that's the only thing. But, it's all been
15 sewed up at that point.
16 Q. Okay. Well, looking at the photos and
17 what the description is from the medical reports, that's
18 what it shows? It shows one long --
19 A. It shows a single swipe, yes, sir.
20 Q. Okay. Now, you gave an example of --
21 well, usually, when you see someone that has been
22 attacked from the front, frontal attack to the neck with,
23 let's say with a knife or sharp instrument?
24 A. Yes, sir.
25 Q. Those wounds inflicted are usually
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1 short, are they not?
2 A. Yes, sir.
3 Q. Okay. Here we have a more long,
4 continuous wound?
5 A. Well, okay.
6 Q. Is that different?
7 A. By short, most -- okay, if you are
8 talking about incised wounds of the neck, generally, they
9 run about that size which would probably be about three
10 or four -- three or four inches, you know, three or four
11 inches for a neck wound, could be called short. I mean,
12 they are not going to be one-inch wounds, obviously, they
13 are going to be a couple of inches.
14 Q. Well, just a moment ago you said you
15 would consider it long, did you not?
16 A. Yeah, it's long. It's not short --
17 but when you ask me about short wounds to the neck, I'm
18 talking three or four inches, too. I mean, I'm
19 talking -- a long wound to the neck is when somebody gets
20 someone behind you and runs it completely around, so you
21 are talking about six or seven inches.
22 But slash wounds of the neck typically
23 run like this, because what happens is they will slash
24 down like this, and so you will see it running about that
25 length. But a long wound would be if you're cutting
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1 someone's throat from ear to ear.
2 Q. Now, defensive wounds, you said that
3 you usually see those on the palms of the hand, don't
4 you?
5 A. No, I said the original description of
6 them is on the palms of the hand, but you will get them
7 on the palms of the hands, and on the back of the
8 forearms, even on the back of the other arms. We have
9 had people lying on the ground who have put their legs up
10 and have gotten them actually in their legs.
11 All that a defense wound means, is
12 that it is a wound incurred, in an extremity, in an
13 attempt to ward off an attacker.
14 Q. And it's just natural to put your
15 hands up and that kind of thing, to block off blows,
16 knife or blunt trauma?
17 A. Yes, sir.
18 Q. And you will often see, for instance,
19 in a knife attack, wounds to the palms of the hand?
20 A. Well, the fingers and palms, yes, sir.
21 Q. And they can be quite deep?
22 A. They can be deep, yes, sir.
23 Q. Cut to the bone often, don't they?
24 A. They can be, yes, sir.
25 Q. Now, this particular wound to Mrs.
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1 Routier's hand, that is not a very deep wound, is it?
2 A. No, it's a very superficial -- there's
3 actually three of them, but I think it's probably one
4 swipe, but they're very superficial.
5 Q. Extremely superficial?
6 A. Yes, sir.
7 Q. Okay. Also, many times on your
8 defensive wounds, you see them -- what part of the arm do
9 you call this?
10 A. You talking about plexor surface?
11 Q. I guess so. If that is the word I'm
12 looking for.
13 A. Yes.
14 Q. You put your arm up. You will see
15 cuts across that way in defensive wounds?
16 A. Actually, most defensive wounds from
17 knives are in the back, they are not on this surface.
18 In fact, that's the way you can tell
19 people come in with scars. People come in with scars on
20 this surface, you think they may have tried suicide.
21 This surface, you think they have been in knife fights.
22 So --
23 Q. What's this surface called?
24 A. That would be the posterior aspect,
25 back of the forearm.
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1 Q. And what is this surface called?
2 A. Plexus. Okay. It's this surface,
3 plexor surface.
4 Q. And you are saying you don't see
5 defensive wounds on the plexor surface?
6 A. Well, you can see -- what I'm saying
7 is, you're asking me where they usually occur. And they
8 are classically described as being on the back and not
9 here.
10 These suicidal wounds are described as
11 being on this surface. Homicidal, that is where people
12 attack you, on the back.
13 Q. Okay. Usually, in cases of homicide,
14 the assailant doesn't leave the weapon at the scene, does
15 he?
16 A. Yeah, that's correct.
17 Q. Okay. Another area I wanted to ask
18 you: Did you look at the autopsy reports on the two
19 boys?
20 A. I just briefly went through them, but
21 since I didn't intend to testify in anything about them.
22 Q. I just had one quick question about
23 that. As far as stab wounds in this case or any other
24 case, the angle, how it goes in the body. Let me show
25 you this one. You see this stab wound number 1?
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1 A. Yes, sir.
2 Q. It shows the knife coming across this
3 way into the torso. You can't tell from an autopsy if
4 the person was laying on their back and they were being
5 stabbed at this angle, if they were moving around and
6 maybe the knife went in that way; is that right? Do you
7 understand what I am saying?
8 A. Well, I think so. What you're saying
9 is, that just by examining the stab wound alone, you
10 can't say necessarily whether they are standing up or
11 lying down. Is that the question?
12 Q. Right.
13 A. The answer is yes.
14 Q. And even if they were lying down, they
15 could be moving around during the attack when the knife
16 is going in?
17 A. Yes, sir.
18 Q. Okay. And as far as blood on the
19 knife, I think that it's your understanding that three
20 people could have been cut with this knife; is that
21 right?
22 A. Yes, sir.
23 Q. Now, if blood of one of the children
24 was not found on this knife, that is not -- you can't
25 say, well, then this knife wasn't used to do the killing,
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1 could you?
2 A. No.
3 Q. Oftentimes --
4 A. It's only significant if you find
5 blood, it means something; if you don't find it, it
6 doesn't mean anything.
7 Q. When you stab someone in the body,
8 skin might wipe it off, an organ might wipe it off, that
9 kind of thing?
10 A. Yes, sir.
11 Q. Okay. As far as -- here, let me give
12 you your notes back. I don't want to forget those.
13 A. Okay. Thank you.
14 Q. The blunt trauma that the defendant
15 received, you wouldn't expect her to sleep through that,
16 would you?
17 A. No.
18 Q. Okay. And that is going to hurt when
19 you get hit like that?
20 A. Yes, sir.
21 Q. And, is it a natural reaction, would
22 you say, that the person that is getting hit with blunt
23 trauma, they are going to yell out?
24 A. Well, I would assume -- well, I don't
25 know, I have not beaten anybody, so I can't say. I would
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1 think it would depend on the person, I mean what is going
2 on, I mean, you know.
3 Q. Okay. Nothing --
4 A. I think that is outside of my area.
5 Q. Nothing would prevent a person from
6 yelling out if they were suddenly attacked in their home
7 and someone started hitting them with a stick, brick or
8 whatever?
9 A. I guess not, no, sir.
10 Q. And certainly, the defendant, when she
11 is stabbed on the throat, wouldn't sleep through that,
12 would you think?
13 A. No, sir.
14 Q. I mean, they are going to wake up when
15 someone starts cutting you with a knife?
16 A. Well, I think she would have to have
17 been moving by virtue, as I said, of going backward,
18 because I think that is one slice wound.
19 Q. Okay. And if her children were in the
20 same room and stabbed, you wouldn't expect her to sleep
21 through that either, would you?
22 A. Well, depends.
23 Q. Okay.
24 A. It depends on how violent the attack
25 was and it depends on how hard the person sleeps, but
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1 most -- under most circumstances, you would think that
2 they wouldn't sleep through it.
3 Q. Well, if you had information that they
4 were a light sleeper and that they had taken amphetamines
5 that day, and the amphetamines in fact, are in their
6 blood when they were taken to the hospital, you wouldn't
7 think they would sleep through that, would you?
8 A. I would say under most circumstances,
9 right. I think phentermine, not amphetamines.
10 Q. Well, what is that?
11 A. Phentermine is a -- the toxicology
12 report, the only drug present being phentermine, not
13 amphetamines. Phentermine is essentially a weight
14 reducing drug.
15 Q. Okay. It's certainly not something
16 that will put you to sleep though, right?
17 A. No.
18 Q. And, if one of your children were
19 about as far from I am to you right now, the one that had
20 all of the stab wounds in the back, Damon, you wouldn't
21 expect her to sleep through that, would you?
22 A. Again, as I said, under most
23 circumstances, no, sir.
24 Q. Okay. And if the other child was
25 about from, about this distance, say about five feet, you
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4590

1 wouldn't expect her to sleep through that either, would
2 you?
3 A. Under most circumstances, no, sir.
4 Q. Okay. And did you review the wounds
5 that those children received, Dr. DiMaio?
6 A. I looked, again, as I say, I looked at
7 them, I didn't pay that much attention.
8 Q. Those were obviously deep, penetrating
9 wounds to the trunk, were they not?
10 A. Obviously, yes, sir.
11 Q. Okay. What do you think happened
12 first, the blunt trauma, or the cut to the neck?
13 A. It would be speculation on my part. I
14 can't answer that.
15 Q. Okay. And would you say, Dr. DiMaio,
16 that the wounds that the children received, the deep,
17 penetrating wounds to their trunk areas, are extremely
18 different from the type of incised wounds that she
19 received?
20 A. Well, by definition, a stab wound and
21 an incised wound are different things. And so the
22 incised wound is inflicted from a swipe with a knife,
23 while stab wounds is with the tip end, yes, sir.
24 Q. You have come across, I think, you
25 have, in one of your books that I have looked at, you
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4591

1 have a section about children that are killed, homicides?
2 A. Yes, sir.
3 Q. And, you talk about, I think it's in
4 the miscellaneous section, that sometimes children are
5 killed, they are shot or stabbed or things like that?
6 A. Most killed -- most children are
7 murdered within the first two or three years of life --
8 usually, within the first two years of life or the first
9 year.
10 Q. Okay. And again -- well, let me make
11 sure I get the quote right.
12 In talking about these miscellaneous
13 deaths where children are stabbed or clubbed or shot, I
14 believe that you write that, "Homicides are committed by
15 sane individuals, for reasons that may or may not be
16 apparent. There are two groups in this category: First
17 are violent deaths, which while no attempt is made to
18 conceal the cause of death, the perpetrator will attempt
19 to make the death appear to be an accident, or due to
20 another individual. Thus, the perpetrator will relate
21 that a child accidentally drowned in the bathtub or fell
22 in a river. There may be claims that a child was
23 kidnapped by a bearded or masked individual."
24 A. Yes, sir.
25 Q. So you have had -- seen situations
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1 where it's a very violent death to a child and the
2 perpetrator might say, well, just try to blame it on
3 someone else?
4 A. Oh, yeah.
5 Q. Okay. I don't know if I caught this
6 right. Did you say people just -- people can commit
7 suicide by cutting their own throat, can't they? You
8 have seen that, haven't you?
9 A. Yes.
10 Q. And when they do that, they do one
11 long continuous cut, don't they?
12 A. Usually what they do is they will
13 start high up on the side and they will cut down this way
14 and then they will stop about here.
15 Q. Okay.
16 A. If they are right-handed, you know.
17 If left-handed, then they will start and they will come
18 down. It will be cut through, it will start up high,
19 below the ear and then cut down this way.
20 Q. Starts up high and then comes down at
21 an angle?
22 A. Yeah, and then loops across the other
23 side.
24 Q. And then all the way across the neck?
25 A. Yes, sir.
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4593

1 Q. Okay.
2 A. Well, up to a certain point. Usually,
3 they only get here. Because what happens is, once you
4 get to this point, it becomes difficult to angle the
5 knife.
6 Q. Thank you, Doctor.
7
8 MR. TOBY L. SHOOK: That's all I have.
9 THE COURT: Mr. Mulder?
10
11
12
13 REDIRECT EXAMINATION
14
15 BY MR. DOUGLAS MULDER:
16 Q. Doctor, just a thing or two. Are you
17 familiar with amnesia following a traumatic event?
18
19 MR. TOBY L. SHOOK: Judge --
20 THE COURT: Sustain the objection.
21 705 hearing. The doctor has testified as to what the
22 basis of his testimony is going to be.
23 Move on to the next question.
24 MR. DOUGLAS MULDER: Yes, sir.
25
Sandra M. Halsey, CSR, Official Court Reporter
4594

1 BY MR. DOUGLAS MULDER:
2 Q. Doctor, there is a Polaroid photograph
3 up there, that was taken by a member, I believe it's
4 Beddingfield of the Rowlett Police Department.
5 A. Yes, sir.
6 Q. It has some writing on the back.
7 A. Yes, sir.
8 Q. Do you see anything in that photograph
9 that is dated, I think at 16:05 on June the 6th of '96,
10 do you see anything to indicate bruising of that
11 particular arm?
12 A. There is a suggestion of some
13 discoloration below this wound over here.
14 Unfortunately, because it's out of
15 focus, you know, it's difficult to say.
16 Q. Okay. It would be somewhat unusual to
17 batter someone in an isolated incident, just on the arms,
18 wouldn't it?
19 A. You mean in defensive?
20 Q. No, just to -- the bruising here?
21 A. Um-hum. (Witness nodding head
22 affirmatively.)
23 Q. It's likely that this occurred at the
24 same time that the stab wounds were inflicted, is it not?
25 A. Yes, I mean, right, yes. I thought I
Sandra M. Halsey, CSR, Official Court Reporter
4595

1 had said that. Yes, sir.
2 Q. Okay.
3 A. All I said was, I couldn't say whether
4 it occurred immediately before or after. There is no way
5 to say.
6 Q. And they have quite a sensitive test
7 now, to determine the presence and absence of blood, even
8 though the instrument has been wiped clean, don't they?
9 A. Right. You can do a test that would
10 identify the blood. You might not be able to type it,
11 but you could say that there was hemoglobin present, or
12 material that tests positive for hemoglobin.
13 Q. One last thing: You have testified
14 before lunch that, in your opinion, those bruises are
15 consistent with Mrs. Routier having been beat violently
16 with a blunt instrument on or about both of her arms. It
17 would not be unlikely to also receive an injury to the
18 head during that beating, would it?
19 A. That's correct, yes, sir.
20
21 MR. DOUGLAS MULDER: I believe that's
22 all. Thank you.
23
24
25
Sandra M. Halsey, CSR, Official Court Reporter
4596

1 RECROSS EXAMINATION
2
3 BY MR. TOBY L. SHOOK:
4 Q. But you saw nothing in the medical
5 records that showed any blunt force injury to the head,
6 did you?
7 A. No, not to the face. I mean, that
8 also includes the top and back covered by hair and there
9 is no mention in the records, and, of course, I can't see
10 it on any photographs.
11 Q. And no indication that anywhere in the
12 medical records that she complained about getting her
13 head whacked real hard?
14 A. That's correct.
15 Q. Okay. If you are going to get the
16 blunt trauma to the arm that is going to cause that kind
17 of damage, and you got hit in the head anywhere, it would
18 cause a pretty big knot, wouldn't it?
19 A. It may. I mean, you know, what we're
20 talking about is not a stationary -- it's not like you
21 are hitting a stationary object. You would have to say
22 that -- it's like, what's on one arm that person would be
23 moving trying to avoid it. So, it just depends on how
24 hard the impact is. I wouldn't rule it out, but I mean,
25 I can't say.
Sandra M. Halsey, CSR, Official Court Reporter
4597

1 Q. Well, if a person got hit on the head,
2 as hard as they did on the arm obviously, that is going
3 to cause an injury, is it not?
4 A. Right. If that was the case, right.
5 But I'm saying, I can't, you know I cannot discuss
6 something that I don't know if it was there or not and
7 say how much force was used to produce a wound which may
8 or may not be there.
9 Q. Because you don't have evidence or
10 information that tells you that there was any injury like
11 that?
12 A. That's correct.
13
14 MR. TOBY SHOOK: Okay. That's all we
15 have, Judge.
16 MR. DOUGLAS MULDER: That's all we
17 have. May he be excused?
18 THE COURT: Any objection? All right.
19 Doctor, you are excused subject to
20 recall. You are instructed not to discuss your testimony
21 with anybody. If someone tries to talk to you, tell the
22 attorney for the side who called you. And, of course,
23 you are subject to recall.
24 THE WITNESS: Thank you, your Honor.
25 THE COURT: All right.
Sandra M. Halsey, CSR, Official Court Reporter
4598

1 Your next witness.
2 MR. DOUGLAS MULDER: Dr. Lisa Clayton.
3 THE COURT: All right.
4 MR. TOBY SHOOK: Judge, could we
5 approach the bench?
6
7 (Whereupon, a short
8 discussion was held
9 at the side of the
10 bench, between the Court,
11 and the attorneys for
12 both sides in the case,
13 off the record, and outside
14 of the hearing of the
15 Jury, after which time,
16 the proceedings were
17 resumed on the record,
18 outside the hearing of
19 the jury as follows:)
20
21 THE COURT: All right. Ladies and
22 gentlemen, if you will step back to the jury room,
23 briefly, please.
24
25 (Whereupon, the jury
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4599

1 Was excused from the
2 Courtroom, and the
3 Proceedings were held
4 In the presence of the
5 Defendant, with his
6 Attorney, but outside
7 The presence of jury
8 As follows:)
9
10 THE COURT: Let the record reflect
11 that these proceedings are being held outside of the
12 presence of the jury and all parties at the trial are
13 present.
14 Raise your right hand, please, ma'am.
15
16 (Whereupon, the witness
17 Was duly sworn by the
18 Court, to speak the truth,
19 The whole truth and
20 Nothing but the truth,
21 After which, the
22 Proceedings were
23 Resumed as follows:
24
25 THE COURT: Do you solemnly swear or
Sandra M. Halsey, CSR, Official Court Reporter
4600

1 affirm that the testimony you are about to give will be
2 the truth, the whole truth, and nothing but the truth, so
3 help you God?
4 THE WITNESS: I do.
5 THE COURT: Have a seat right here,
6 please. Pull that microphone there. There you go.
7 Okay. And, you have testified before?
8 THE WITNESS: Yes, sir.
9 THE COURT: You are under the Rule of
10 Evidence.
11 That simply means -- do you understand
12 what that means? You may not discuss your testimony with
13 anybody, don't compare it with anybody who has testified.
14 You may talk to the attorneys for both sides.
15 If someone tries to talk to you about
16 your testimony, tell the attorney for the side who called
17 you.
18 THE WITNESS: Yes, sir.
19 THE COURT: All right. These
20 proceedings are being held outside of the presence of the
21 jury and all parties at the trial are present. This is a
22 Section 705 hearing to determine the basis of this
23 doctor's testimony.
24 So, if you will state your name and
25 spell your name, and Mr. Shook is going to be asking you
Sandra M. Halsey, CSR, Official Court Reporter
4601

1 some very direct questions, and if you will just answer
2 those. And move on and get the jury back in.
3 Go ahead Mr. Shook.
4 MR. TOBY L. SHOOK: Thank you, Judge.
5
6
7
8 Whereupon,
9
10 DR. LISA CLAYTON,
11
12 was called as a witness, for a hearing outside the
13 presence of the jury, having been first duly sworn by the
14 Court to speak the truth, the whole truth, and nothing
15 but the truth, testified in open court, as follows:
16
17
18 EXAMINATION
19
20 BY MR. TOBY L. SHOOK:
21 Q. Dr. Clayton, could you tell the Court
22 your opinions --
23
24 THE COURT: First of all, state your
25 name, and spell it.
Sandra M. Halsey, CSR, Official Court Reporter
4602

1 THE WITNESS: Lisa, L-I-S-A, initial
2 K, Clayton, C-L-A-Y-T-O-N.
3 THE COURT: Thank you. Go ahead.
4
5 BY MR. TOBY L. SHOOK:
6 Q. Could you please disclose the opinions
7 that you have come to testify on today?
8 A. Well --
9
10 MR. DOUGLAS MULDER: Judge, I think I
11 can probably sum this up a little bit quicker.
12 THE COURT: All right.
13 MR. DOUGLAS MULDER: She will testify
14 as to what psychic numbing is. She will testify with
15 respect to traumatic amnesia.
16 She will testify as to the effect of
17 the certain sedatives and pain pills and medication. She
18 will testify -- she is a psychiatrist, Judge. She is an
19 MD, and she will testify as to her training in forensic
20 psychiatry.
21 THE COURT: Well, we will place you as
22 an expert. If you will just sum up what your findings
23 are and what you are going to testify to.
24 MR. DOUGLAS MULDER: Well, if I could
25 go on a little bit more, I can do it. She will testify
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4603

1 as to, Dr. Resnick and Dr. Scott's studies with respect
2 to mothers who kill their children. And she studied
3 under Dr. Resnick and trained under him, and she will
4 testify with respect to the six categories of mothers who
5 kill their children.
6 She will testify that she has examined
7 Darlie Routier, that she has spent, however many hours
8 with her that she spent with her, that she has
9 interviewed not only her, but family members.
10 And then, we will go through each of
11 these categories, and she will render an opinion, and
12 tell why it is or isn't applicable to this particular
13 case.
14 That is basically -- she will testify
15 with respect to grieving, and she will testify as to
16 whether or not she believed that on or about the 3rd day
17 of May of 1996, she believed that the accused was
18 involved in a serious suicidal attempt.
19 THE COURT: Well, anything, Mr. Shook?
20 MR. TOBY L. SHOOK: Yes, if I could
21 just ask the doctor some questions.
22 THE COURT: Sure.
23
24 BY MR. TOBY L. SHOOK:
25 Q. So one of your opinions will be about
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1 psychic numbing; is that right?
2 A. Yes, sir.
3 Q. Okay. Could you tell us what that is?
4 A. Psychic numbing is a term that is used
5 by psychiatrists and psychologists to describe someone
6 when they have experienced a traumatic event, whether it
7 be some sort of assault, witnessing an assault, rape,
8 witnessing some sort of tragic life threatening kind of
9 event that may not necessarily threaten them, but
10 threaten someone else.
11 And it just describes how some
12 individuals are essentially -- go through kind of a state
13 of, I guess, psychic shock, is also another term for it,
14 where they may be somewhat emotionalist. They may remain
15 kind of somewhat detached from any type of emotion that
16 other people might expect someone to have.
17 There may be periods of emotion and
18 then also periods of, again, detachment. And again, it's
19 a phenomenon that is seen with anybody that -- or with
20 some people, not all people -- but some people that go
21 through any kind of a tragic, shocking kind of
22 witnessing-type event.
23 Q. And, what are the facts or underlying
24 data that you used to form that opinion in this case?
25 A. Various, I guess, psychiatric
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1 textbooks, there's some articles that have been written
2 about psychic numbing, but predominantly, I guess,
3 psychiatric and psychological textbooks.
4 Q. Have -- is any of your opinion based
5 on the interview with the defendant?
6 A. About the psychic numbing?
7 Q. Yes.
8 A. Yes.
9 Q. Okay. And then also, is any of that
10 done with -- by interviews with relatives, friends?
11 A. Yes.
12 Q. Were any other tests performed?
13 A. Are you talking about in relation to
14 the psychic numbing?
15 Q. Right.
16 A. No, sir.
17 Q. Is that all the data then that you
18 relied on in forming your opinion on the psychic numbing?
19 A. No, I also listened to the 911 tape.
20 Q. Okay.
21 A. And then I also read her written --
22 Mrs. Routier's written statement to the police.
23 Q. Okay. Then is that all the data then
24 that you used in forming that particular opinion?
25 A. Yes, sir.
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1 Q. Okay. Then traumatic amnesia, is that
2 another opinion you will be testifying to?
3 A. Yes. That is something that occurs
4 when, or can occur when an individual, again, experiences
5 some type of traumatic event where they may have kind of
6 no memory for, again, parts of the event. They may have
7 memory of before and then sometime afterwards regain
8 memory.
9 There have been, again, in the
10 literature, psychiatric literature case reports, it's
11 also in psychiatric textbooks that essentially some part
12 of the memory, it's still encoded, but some part of the
13 memory, it's just essentially dissociated from their
14 conscious memory. And, sometimes hypnosis can bring it
15 back, but then sometimes it cannot.
16 Q. And again, what is the underlying
17 facts or data that you used to form that opinion in this
18 case?
19 A. Mrs. Routier's statement. Again, I
20 guess, the 911 tape, the interview, interviews, I spent
21 over 12 hours on different dates talking to Mrs. Routier.
22 The interview with her family, and just various
23 psychiatric textbooks and articles.
24 Q. Okay. And, then, you were going to
25 give an opinion, I believe, on sedatives or the effects
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1 of sedatives?
2 A. Yes, sir.
3 Q. Okay. What is that?
4 A. It's basically how certain kinds of
5 sedatives that Mrs. Routier had in her system, I guess,
6 at the first interview when she was still in the
7 hospital, of Demerol and Phenergan.
8 And then, also, throughout the -- I
9 guess the time after she came home from the hospital, she
10 was on painkillers, she, -- various family members and
11 friends, because of her, I guess, emotional state, gave
12 her numerous pills, such as Valium and Xanax.
13 These kind of medications serve as
14 disinhibitors, and if anything, it's almost like some
15 sort of a truth serum.
16 There is a famous type of interview
17 that psychiatrists sometimes use called an Amytal
18 interview, and basically they use Amytal which is a
19 fairly short-acting barbiturate drug. And, it kind of
20 relaxes the person's defenses, and they tell the truth.
21 Again, she was not under that
22 medication, but she was under the influence of numerous,
23 similar medications that would serve to disinhibit her,
24 and while she was being interrogated or interviewed about
25 the offenses, it would -- any type of -- usually any type
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1 of disinhibition would be -- she would experience, and
2 most likely it would induce the truth.
3 Q. And, what underlying facts or data
4 have you used to form that opinion?
5 A. Again, her -- all of the ones that I
6 already listed, I guess would be.
7 Q. Her interview as well as the other
8 interviews you talked about?
9 A. Yes, sir.
10 Q. Okay. And Mr. Mulder said you were
11 going to talk about studies on mothers that kill their
12 children; is that right?
13 A. Yes, sir.
14 Q. The six categories. Are you going to
15 render an opinion about that?
16 A. Yes, sir.
17 Q. Okay. What is that opinion?
18 A. Well, Dr. Resnick has listed or
19 proposed six categories. And my opinion about Dr.
20 Resnick's categories are that Mrs. Routier or Mrs.
21 Routier does not fit in any of those categories.
22 Dr. Scott has five categories and,
23 again, in my opinion about his categories are that she
24 doesn't fit in any of those categories either.
25 Q. Okay. What are those categories?
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1 A. Dr. Scott's categories are battering
2 mothers, retaliating mothers, mentally ill mothers,
3 unwanted children, and mercy killings.
4 Dr. Resnick's categories are,
5 altruistic murderers, acutely psychotic murderers,
6 unwanted-child murderers, accidental murderers,
7 spouse-revenge murderers, and then another -- his last
8 category which does not correspond is neonaticide, which
9 is murder of a baby within the first 24 hours of life.
10 Q. And what underlying facts or data did
11 you use to come to that opinion?
12 A. Again, the -- my interviews with
13 Darlie, with her family, again, I guess, the 911 tape,
14 the written statement by her, the various textbooks and
15 articles, and obviously, the articles written
16 specifically about those categories, but then also, other
17 psychiatric textbooks and categories.
18 Q. And what other opinions was it that --
19 grieving, I believe, is that the other opinion you are
20 going to render?
21 A. Yes, sir.
22 Q. What's that opinion?
23 A. That opinion has to do with --
24 everyone grieves in different ways, and that there is no
25 appropriate type of way of grieving. There may -- you
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1 might, if you are going to categorize them, you might, as
2 far as healthy and unhealthy. But people grieve in
3 different ways.
4 I guess I am going to give an opinion
5 about -- that the events at the cemetery, which some
6 people have misinterpreted, was an appropriate form of
7 grieving. Do you want me to go into --
8 Q. Yes, please, your opinion.
9 A. That it was not planned to be that way
10 by Mrs. Routier, that they had had a prayer service
11 before, which she was crying, her mother had told her
12 that she needed to quit crying so much, that they were
13 going to be -- that the neighborhood kids were going to
14 be there and that it would scare them and upset them,
15 that she tried to essentially put on almost an
16 hysterical-like, kind of happy face.
17 Her sister, her younger sister had
18 bought this Silly String, and then, they had the kind of,
19 essentially, celebration as if the child was still alive
20 for the benefit of neighborhood kids. That it reflects
21 some cultural and biblical context, in that Christians
22 are taught, that if they believe in the Resurrection
23 that, you should celebrate a death because the person is
24 no longer here on earth to suffer, but they are in
25 heaven.
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1 That, there are other customs, and the
2 Irish wakes, where people actually party with the
3 deceased body present. And, that there is different
4 cultural standards.
5 And again, grief is not something that
6 is a -- universally applied to everyone in every
7 situation.
8 Q. So your opinion on that, I guess a lot
9 of that came -- the facts on that came with the interview
10 of the defendant?
11 A. Yes, sir. And, then I guess, you
12 know, everything I also listed. I had, I guess, I did
13 review parts, or see parts of the news media tape, and
14 then also my, I guess, biblical and Christian training or
15 knowledge.
16 Q. And, I think the last opinion listed
17 was a suicide attempt on May 3rd?
18 A. Yes, sir.
19 Q. What's the opinion on that?
20 A. My opinion is that Mrs. Routier was
21 not imminently suicidal. That it was more of a gesture.
22 She did not make an attempt. She phoned her husband.
23 It was more kind of -- she was just at
24 her wits end at that moment, that her husband immediately
25 came home, he -- things changed, she began -- he began, I
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1 guess, kind of helping around the house more, that she
2 was never actually going to go through with this.
3 It was not a fatal-type attempt.
4 Obviously, there was no attempt. The outcome, obviously,
5 was not fatal. And, that her partial suicide note that
6 was in her, I guess, diary shows her love and compassion
7 for her sons.
8 That her, you know, depression or
9 dysphoria was related probably to not having her period
10 due to the fact that she was breast feeding. That she
11 had stopped breast feeding but still had not had her
12 period.
13 That within three to four days she
14 began her menstrual cycle again, and there was a dramatic
15 change in her mood, and that this was not some chronic
16 type of depression or postpartum psychosis that lasted
17 until the events on the first -- in the first part of
18 June.
19 Q. And, again, what are the underlying
20 facts and data that you rely on for that opinion?
21 A. I guess her suicide note, the diary,
22 my interviews with her. My interviews with the families,
23 family members. And again, I guess her statement, and
24 then various, again, psychiatric textbooks and articles
25 dealing with depression, suicide attempts and postpartum
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1 depression.
2 Q. Okay.
3
4 MR. TOBY L. SHOOK: If I could have
5 just one moment, please?
6 THE COURT: Yes. Do you have anything
7 else, Mr. Shook?
8 MR. TOBY SHOOK: No, sir. I believe
9 that is all the opinions; is that right?
10 THE WITNESS: Yes.
11 THE COURT: All right, thank you.
12 Bring the jury in, please.
13
14 (Whereupon, the jury
15 Was returned to the
16 Courtroom, and the
17 Proceedings were
18 Resumed on the record,
19 In open court, in the
20 Presence and hearing
21 Of the defendant,
22 As follows:)
23
24 THE COURT: All right. Let the record
25 reflect that all parties in the trial are present and the
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1 jury is seated.
2 Ladies and gentlemen of the jury, this
3 witness has been sworn outside of your presence.
4 This is Dr. Lisa Clayton. C-L-A-Y-T-O-N.
5 Mr. Mulder.
6
7
8
9 Whereupon,
10
11
12 DR. LISA K. CLAYTON,
13
14 was called as a witness, for the Defense, having been
15 first duly sworn by the Court to speak the truth, the
16 whole truth, and nothing but the truth, testified in open
17 court, as follows:
18
19
20 DIRECT EXAMINATION
21
22 BY MR. DOUGLAS D. MULDER:
23 Q. Dr. Clayton, would you tell the jury
24 your name, please?
25 A. Dr. Lisa K. Clayton.
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1 Q. And, you are a physician, a medical
2 doctor?
3 A. Yes, sir.
4 Q. Okay. Will you tell the jury your
5 educational background and experience that qualifies you
6 as a medical doctor?
7 A. Yes, sir, I received my Bachelor's
8 degree in psychology from the University of Oklahoma. I
9 was also a premed --
10
11 THE COURT: Ma'am, you are going to
12 have to speak a lot louder than that so the last two
13 jurors can hear you.
14 THE WITNESS: Oh, okay.
15 I received my Bachelor's degrees in
16 psychology from the University of Oklahoma. I was also
17 premed at the time.
18 I applied, and was accepted into
19 medical school. Four years later, I graduated from Emory
20 University School of Medicine in Atlanta, Georgia.
21 During medical school you rotate
22 through your third and fourth years. You rotate through
23 the various specialties of medicine such as OB-GYN,
24 surgery, internal medicine, pediatrics, and psychiatry.
25 It was during these medical school
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1 rotations that I decided that I wanted to specialize in
2 the medical field of psychiatry.
3 After I graduated from medical school,
4 I did a one year general internship at Emory in Atlanta.
5 This consisted of working in neurology, internal medicine
6 and psychiatry.
7 After I completed my internship, I did
8 two years of full time psychiatric residency training at
9 Emory in Atlanta. I then moved to Dallas, Texas, and
10 completed my fourth year of psychiatric residency
11 training at U.T. Southwestern Medical School in Dallas.
12 There is now a sub-specialty in the
13 field of psychiatry, called forensic psychiatry. It's
14 basically how psychiatry interacts with the law in both
15 civil and criminal matters, and also has to do with
16 taking care of and evaluating inmates who have either
17 been accused of a crime, or already convicted of a crime,
18 and are incarcerated, but have some sort of psychiatric
19 disturbance and need medication.
20 I did a one year -- after I did my
21 four years of residency -- internship and residency, I
22 did an extra year called a fellowship. This was a
23 specialization in forensic psychiatry. I did this at
24 U.T. Southwestern.
25 This consisted this year, of working
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1 solely in forensic psychiatry. I worked at the Dallas
2 County jail, I have worked at the federal prison in
3 Seagoville. I have worked under various other forensic
4 psychiatrists. I attended SMU Law School classes. I
5 also went to various conferences and workshops around the
6 country that had specialization courses in various
7 aspects of forensic psychiatry.
8 Since the time that I have completed
9 my forensic fellowship I have been in private practice in
10 the Dallas area.
11 My private practice consists of both,
12 general adult psychiatry and some forensic work.
13 I have an office by Baylor downtown, I
14 am on staff at Baylor and I see both in-patients at
15 Baylor Hospital, and I also see out-patients.
16 I also work at some senior centers at
17 Baylor and see geriatric patients. I work approximately
18 8 to 10 hours a week at the Dallas County jail, where I
19 see inmates who are accused of crimes or have already
20 been convicted, but they need psychiatric medication
21 evaluations or maybe to be put on suicide watch. But I
22 see them solely as a Dallas County psychiatrist.
23 I work one day a week at Corsicana,
24 residential youth treatment center, where I evaluate
25 juveniles who of been committed to TYC, but then have
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1 also been found to have some severe mental disturbance,
2 and they are sent to Corsicana.
3 I -- and also in part of my forensic
4 practice I evaluate criminal defendants, such as Mrs.
5 Routier, and then I also evaluate cases in civil
6 litigations also.
7 I evaluate people for competency,
8 sanity, dangerousness, that sort of thing. And, I also
9 am on the clinical teaching staff at U.T. Southwestern,
10 where I help out in the community oversee residents who
11 are in training, and, I think that is about it.
12 Q. Okay. Very good.
13 A. And, oh, I'm sorry. I'm licensed to
14 practice medicine in both the states of Texas and
15 Georgia.
16 Q. All right. Dr. Clayton, are you
17 frequently called upon to render a psychiatric opinion,
18 an expert opinion in court?
19 A. I guess I would call it frequently,
20 yes, sir.
21 Q. Okay. Have you testified in court
22 over one hundred times?
23 A. Yes, sir.
24 Q. And you have been qualified as an
25 expert?
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1 A. Yes, sir.
2 Q. All right. I'll ask you, Dr. Clayton,
3 approximately how many people have you examined who were
4 charged with criminal offenses?
5 A. Any type of criminal offense?
6 Q. Yes.
7 A. I'm sure over a thousand.
8 Q. Okay. Can you give the jury some idea
9 as to how many people you have examined who are charged
10 with either murder or capital murder?
11 A. Probably, I guess around seventy-five
12 to a hundred.
13 Q. Okay. Dr. Clayton, is there a
14 difference in examining someone who is charged with a
15 serious criminal offense as opposed to seeing someone who
16 is -- as an out-patient in your office?
17 A. Yes, sir.
18 Q. Okay. And what is that difference?
19 A. The difference is, is in an
20 out-patient or office, regular relationship it is a
21 therapeutic relationship. Psychiatrists are essentially
22 taught, in our training to be very accepting and
23 believing of what people tell you, until you find out
24 otherwise.
25 That is the reason that I did the
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1 extra year of forensic fellowship training. Because,
2 when you are working in the realm of criminals, you need
3 to be able to assess and confront that what they are
4 telling you, may in fact be not truthful, out and out
5 lies, and that sort of thing.
6 And so, I have received special
7 training in how to, I guess, confront, how to look for
8 people who are lying, are not telling the truth, and that
9 sort of thing. So, it's much more of an aggressive type
10 of evaluation and interview.
11 The, you know, -- I am not trying to
12 treat the person, I am just trying to evaluate and render
13 an unbiased opinion.
14 Q. Okay. Are there techniques, that you
15 as a physician would employ, to determine whether or not
16 the person you are examining is being truthful with you,
17 or whether they are fudging or lying, or being deceitful
18 or otherwise trying to influence the examination and your
19 ultimate evaluation of them?
20 A. Yes, sir.
21 Q. Okay. Would you tell the jury, just a
22 give them some example of how you do that?
23 A. Well, the best probable technique is
24 time, time, time, and the amount of time you spend with
25 someone, and have it be over different periods, not all
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1 like in one day, but maybe see them and then wait a
2 couple of weeks and then see them again.
3 You have them go over the story, and
4 first you have them talk about something that you know is
5 true, such as their birthdate and where they grew up and
6 that sort of thing. Then you move on, after a period of
7 time, and you observe their body language, their
8 emotional state, their blink rate, their fidgeting, their
9 posture, the tone of their voice, the way they word
10 things, their, I guess descriptions, and just that sort
11 of thing.
12 Then you move on to the topic in
13 question, such as, the crime, the alleged crime. And
14 have you -- have them talk to you about that.
15 Again you observe to see if there is a
16 change in demeanor; and, again, their movements, their
17 voice, their eye contact, their blink rate.
18 A lot of times when people are lying
19 to you they will look you straight in the eye because
20 they have always heard that, you know, you don't -- if
21 you are not looking in the eye, so you look for such
22 things like that, and they will, you know, they will
23 start looking you straight in the eye, instead of kind of
24 the way they have been looking at you before.
25 You also look for the changes in their
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1 voice, motion, the way they relate the story. And then
2 again, you go back and do this over again at a later
3 date.
4 You also are assessing when someone is
5 telling the truth. Most often, anybody relating any kind
6 of story there is slight discrepancies or changes, just
7 because of the way our memory works. So, you are looking
8 for that, versus someone that is telling a rote lie, they
9 tend to be very ridged, the wording is almost exactly the
10 same every single time.
11 So, you look for different kind of
12 nuances, about that In their description. And then