Trial Transcripts

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F U R T H E R  P R O C E E D I N G S  2:30 p.m.

(The following proceedings were held in the absence of the jurv and alternates.)

THE COURT:  Did I understand that you had some witness whose testimony would be of the same character as this?

MR. SEGAL:  It is the same character; more important, I think, more direct statements here, more detail going out of the same episode, Your Honor.

THE COURT:  Well, call that witness.

(Whereupon, WENDY PHYLIS ROUDER was called as a witness, duly sworn, and testified as follows:)

D I R E C T  E X A M I N A T I O N  2:32 p.m.

BY MR. SEGAL:
Q  Ms. Rouder, are you an attorney admitted to practice law in the State of California?
A  I am.
Q  Do you also hold some other degree other than a J. D. Degree in Law?
A  Yes, I do.
Q  What other degree do you hold?
A  I hold a Doctor of Philosophy in Speech.
Q  You are associated with the defense in this case on behalf of Dr. MacDonald; are you not?
A  Yes, I am.
Q  On yesterday, on Sunday, did you have occasion to see Helena Stoeckley here in Raleigh?
A  I did.
Q  When was the first time -- approximately at what time and at what place?
A  It was approximately 11:00 or 11:30 a.m. at the Journey's End Motel.
Q  Would you tell His Honor briefly why and how you came to go to the Journey's End Motel?
A  Mr. Segal had informed me that Ms. Stoeckley had been beaten and possibly had been subjected to a drowning.  He asked me to check into her well-being.  The rumor or the hearsay as you might say had been that her fiance had inflicted this attack upon her and it would be best if in some way I could help separate them for her own safety.
Q  Did you then go down to the Journey's End Motel?
A  I did.
Q  Did you go with "Red" Underhill at that time?
A  Yes.
Q  Did you see Ms. Stoeckley at the motel?
A  Yes, I did.
Q  Was someone else in the room when you arrived there besides Ms. Stoeckley?
A  Yes, Mr. Ernest Davis.
Q  Did Ms. Stoeckley say anything about whether she wanted or did not want Mr. Davis present while you talked with her or Mr. Underhill talked with her?
A  Yes.  I managed to ask Mr. Davis to step out of the room for a moment.  I said, "Helena, do you want him to leave or not?"  She said, "I want him to go."
Q  Did she do anything else to indicate whether she wanted Mr. Davis to stay or not?
A  Well, while he was out of the room, she immediately packed his suitcase including a few ash trays.
Q  That was his suitcase or her suitcase?
A  I don't know who owned the suitcase, but it was his belongings.
Q  She put his belongings in a suitcase?
A  Yes.
Q  Did you stay with Ms. Stoeckley at that motel for some period of time?
A  Yes, I did.
Q  About how long were you there?
A  Several hours.
Q  What did you talk with her about -- well, back up for one second.  Was there any particular reason why you stayed with her at that motel?
A  She requested that somebody stay with her.  This was a solicited request.  I said, "Helena, would you be all right, or would you like somebody to stay with you?"  She said, "I would like somebody to stay with me."
Q  Did you make some suggestion to her as to who might stay with her?
A  Yes.  She asked, "Who would it be?"  I said, "How about a college student?  There are some at State."  She said, "Could you stay?"
Q  Speaking to you?
A  Speaking of me, yes.
Q  Did you, in fact, stay then as a result of that statement that she made?
A  Yes, I did.
Q  What topics did you talk with her about during the course of these next several hours you were with her?
A  The range of topics was very broad.  It was what I would characterize as banter, small talk.  That is the best I can do.
Q  At any point, did you talk about her involvement with the murders of the MacDonald family in 1970?
A  Yes.  This followed a pause in the conversation -- a conversation framed by small talk.  There was a pause, and she brought up the subject.
Q  Did you make notes -- at my request, did you make notes of what she said to you at that time?
A  Yes.
Q  Do you have those with you?
A  I do.
Q  Do you want to read to us your best recollection as you recorded it in your memorandum there as to what she said to you this first time that she made an observation about the MacDonald case?
A  After a pause, she said to me, "I still think I could have been there that night."  I then asked, "What makes you think so?"  She said, "I don't know." There was a pause, and then she said, "That rocking horse."  There was another pause, and she added, "You know, Kristen, Kristen Jean.  Those pictures, when I looked at those pictures, I knew I had seen her somewhere before."  Another pause, and she added, "And that driveway, I remember being in that driveway."
Q  Was that the end of her remarks about the MacDonald case at that juncture?
A  Specifically, placing herself on something concrete, yes.  There were more allusions to her involvement, though, in that particular conversation.
Q  Later on in the conversation, did she have occasion to be specific about some connection or involvement with the MacDonald case?
A  The specificity was I had said to her, "Helena" -- well, let me read.  I am sure I could say it.  At one point I asked her if the guilt over all these years has ever left her, and she said, "No, what do you think I have taken all these damn drugs for?"  I later asked her if drugs help relieve this memory, and she said, "No, because you always have to come down."  I volunteered that the guilt must be awful trying to live with, and she said, "Yes."
Q  All right, now, did this conversation continue until some point when she made some further statements about the MacDonald case or relative to the killing of the MacDonald family?
A  There was another conversation about guilt.  I asked her, "If MacDonald were convicted, could you live with that guilt too?"  She said, "I don't think so."  I asked, "Isn't there anything you think you can do to help get rid of the guilt?"  And she said, "I just want to take sodium pentothol or hypnosis or something."
Q  Now, did you have some further discussion with her when she indicated whether she would make such statements or repeat these remarks in court or make some statements as to her knowledge about this case in court?
A  The statements that she made about that were in a different setting.
Q  All right, did the statements that you have read to us so far represent those that you consider to be significant during her stay at the Journey's End Motel?
A  Yes.
Q  What was the reason why Ms. Stoeckley left the Journey's End Motel?
A  She was asked to leave by the manager.
Q  Now, as a result of that, how did it come about that she went to the Hilton Inn?
A  She was worried about where she would go, and I assured her there must be a place, and your secretary arranged for a motel room, phoned back, and said, "The Hilton will accept you."
Q  Did she explain what had happened to the witness money that she had been paid in regard to the subpoena that had been served on her?
A  She said that they had put advance deposits down on several nights, and she never got the money back.
Q  I see.  All right, at that point, did she indicate to you that she had any money at all on her?
A  She said that there was very little money, and Ernie had to take whatever there was.
Q  As a result of that, did you drive her over to the Hilton Inn?
A  Yes; I did.
Q  And did you remain there for some period of time?
A  Not initially, no.
Q  Well, who stayed at the hotel at that time?
A  Mr. Underhill and myself checked her in, deposited her clothing in her room, and then she asked to accompany me and him back to the Downtowner Motel so that he could retrieve his clothing and fully check in.
Q  And was Mr. Underhill checked into a different room?
A  At the Hilton?
Q  The Hilton motel.
A  Yes.
Q  And at whose request -- well, just tell us what you know about how he came to be staying at the hotel and what were the circumstances?
A  She repeatedy asked me if I would stay with her at the hotel, and I said I didn't think that that would be such a good idea but Red would stay with her if that was okay.  "Would you feel comfortable with Red?"  She said, "Oh, yeah.  I would trust him any day."
Q  All right, now, at some later time then at the Hilton Inn, did she make some statement to you in regard to her knowledge of the MacDonald case or the killings that took place in February of 1970?
A  The first statements she made were not at the Hilton.  They were down at the Downtowner Motel.
Q  How did that take place?
A  Mr. Underhill had gone upstairs to get his clothes.  Again, our conversation was predominantly small talk.  There was a pause.  She said, "I still think I was there in that house that night."  And I said, "Helena, is it a feeling you are having or a memory?"  She said, "It's a memory.  I remember standing at the couch, holding a candle, only -- you know -- it wasn't dripping wax.  It was dripping blood."
Q  Is that the last conversation you had with her yesterday that related to this case?
A  My follow-up to that was, "Helena, why don't you just go and say that in court," and she said, "I can't with those damn prosecutors sitting there."

MR. SEGAL:  I have no further questions.

THE COURT:  Any questions of this witness?

MR. BLACKBURN:  Yes, sir.  I would be the prosecutor.


C R O S S - E X A M I N A T I O N  2:40 p.m.

BY MR. BLACKBURN:
Q  Ms. Rouder, I believe you said -- was it Saturday or yesterday morning when you first saw her?
A  Yes.
Q  About 11:00 or 11:30?
A  Yeah.
Q  At the Journey's End?
A  Yes.
Q  She said at this first meeting, as I understand your testimony -- she said she could have been there.  She did not know at that point yesterday morning whether or not she was there; is that correct?
A  Her statement was, "I could have been in the house that night."
Q  Did she say, "I don't know"?
A  I did not ask her, and she didn't say, "I don't know."
Q  Okay, I put that down.

THE COURT:  Well, she said, "I still think I could have been there."  That was her exact words, wasn't it?

THE WITNESS:  No, there's two --

THE COURT:  (Interposing)  But the first time, did you not say, "I still think I could have been there," is what you said.

THE WITNESS:  Well, if I were reading -- yeah, "I still think I could have been there that night," right.

BY MR. BLACKBURN: 
Q  And she said that was because she said she remembered a rocking horse?
A  She said a rocking horse.

MR. BLACKBURN:  Your Honor, at this point I want to hand up to the witness the August issue, the front page, of Detective magazine, and turn to page 19.  It purports to be a story about this murder, and if you would look, please, on page 19, the top photograph, if you would tell us what you see in it?
A  I clearly see a rocking horse.
Q  And would you read what is written underneath?
A  "Dramatic photo through the window of slain children's room keynoted tragedy initially.  It was accented again as Green Berets carried coffins of victims to funeral services in chapel at Fort Bragg."
Q  Ms. Rouder, do you have any personal knowledge as to whether or not that particular photograph ever appeared in either the Fayetteville or Raleigh newspapers shortly after the murders?
A  Absolutely no idea.
Q  Now, you stated I believe at this time this morning that she remembered something about being in the driveway, is that correct?
A  That's correct.
Q  Did she say which driveway?
A  No.
Q  Have you heard any of her testimony?
A  Yes.
Q  Do you recall that testimony -- do you recall her testifying anything about the driveway?
A  No.
Q  You don't recall anything about her standing in the driveway with Greg Mitchell?
A  I recall that, I believe, from hearing what Mr. Posey said.  I don't recall her saying that.  I was not taking notes.
Q  Then you stated that you all had a subsequent discussion about guilt, is that correct?
A  Yes.
Q  When did that occur specifically?
A  It occurred shortly after the comments, rocking horse, "Kristen Jean, I've seen her," in that same general context in the motel room.
Q  This was at the Journey's End still?
A  Yes.
Q  And she said she couldn't live with the guilt, is that correct?
A  I said to her, "It must have been difficult living with the guilt all these years"; and she said, "yes."  And I said, "Has the guilt ever left you in all this time"; and she said, "No; why do you think I've taken all those damned drugs?"
Q  Now, of course, you knew that she had taken drugs before that?
A  Yes; I knew that.
Q  Now, when she was talking about guilt, did she ever say definitely, "I was there."
A  She never said any nore than what I have just repeated here.
Q  So her guilt was about the fact that she could have been there I suppose, is that correct?
A  Could have been.
Q  Was it at that particular time or was it subsequent to that time that she wanted to take some sort of truth drug or something like that or be under hypnosis?
A  It was in that conversation.
Q  How long did this conversation take, if you recall?
A  You misunderstand; I was with her for several hours, and --
Q  (Interposing)  This was on and off?
A  This was on and off.  Two -- what I would say -- two segments, maybe one of ten minutes and one of a minute and a half.
Q  Now, was Mr. Underhill with you at this time?
A  Neither one.
Q  The two of you were alone?
A  Uh-huh.
Q  When did you go to the Hilton specifically?
A  I can't give you the time, but when her nose stopped bleeding.
Q  Was that early afternoon?
A  Yeah, I would say around 2:00 -- 1:30 or 2:00.  It is a guess.
Q  Excuse me?
A  That is a guess.
Q  You were with her, then, I guess, about two -- two and a half hours at the Journey's End; is that correct?
A  Yes.
Q  And then you and Mr. Underhill took her to the Hilton?
A  Uh-huh.
Q  How long did you stay with her at the Hilton?
A  We just went up to the room to check her in and then we went downstairs to get Mr. Underhill's belongings from the Downtowner.
Q  So, he checked into the Hilton?
A  Yes.
Q  After that took place, did you go back and see her again?
A  I drove her back to the Hilton and dropped her off with Mr. Underhill and proceeded to do personal business.  Shortly after I commenced my activity, maybe 15 or 20 minutes later, I received a phone call saying she had decided to have her nose treated and could I provide transportation.
Q  Did she tell you how her nose got hurt -- her injury?
A  Yes.
Q  She fell in the bathroom; is that accurate?
A  She said that she cut the corner of the bathroom door too closely and started bleeding.
Q  She talked to you again last night about her guilt; is that correct?
A  No.
Q  When did she next talk to you?
A  In the car at the Capital Motor Inn.
Q  She stopped and you asked her about whether or not this was a feeling or a memory?
A  Yes, when she brought up the conversation.
Q  She said it was memory; is that correct?
A  Uh-huh.
Q  That she could remember standing there at the edge of the couch holding a candle which was dripping blood?
A  "Only it wasn't dripping wax, it was dripping blood."
Q  Did she ever tell you that she had ever had dreams or nightmares like this in the past?
A  No.
Q  Was this the first time you ever heard any story to that effect?
A  I have heard testimony alluding to it, I don't know, out of her mouth or somebody else's.  This is not the first time I have heard that imagery.
Q  Did she tell you that she definitely was there, or did she only tell you she thought she was there?
A  She said, "It's a memory.  I remember standing."
Q  I believe she stated, "The blood was coming from the candle"?
A  "Only it wasn't dripping wax, it was dripping blood."

MR. BLACKBURN:  No further questions, Your Honor.

MR. SEGAL:  Does Your Honor have any questions of this witness?

THE COURT:  Well, I do.  Are you through?

MR. SEGAL:  Yes, Your Honor; I am.


E X A M I N A T I O N  2:48 p.m.

BY THE COURT:
Q  I understand that you are associated with defense counsel in the defense of this case?
A  I am, Your Honor.
Q  And that you are from California?
A  I am now, yes.
Q  Where do you live in California?
A  In San Francisco.
Q  Are you associated with Mr. Bernard Segal there in the practice of law?
A  Only in reference to this case.
Q  Just this one case?
A  Uh-huh.
Q  Have you been occupied since he came to Raleigh, I suppose, sometime in July of this year and today is August 20th, in the preparation of pleadings and briefs in that kind of capacity?
A  Yes.  I am a clerk.  I am basically functioning as a law clerk.
Q  I see.  Did you prepare some of these briefs yourself?
A  Yes.
Q  Well, I want to commend you on having done a very good job.
A  Thank you.
Q  Have you, other than the relationship to Mr. Segal in this case, have you had any relationship with Mr. Wade Smith as a lawyer?
A  No.
Q  In California, is it usual and customary and the ordinary practice for attorneys to go and spend all of this time like you spent with this witness yesterday between time when she has testified one time and has been placed under subpoena to testify again?
A  I can't answer whether it is usual or customary.  I will say that I think perhaps the time I spent with her, I was responding more as a person concerned about her physical well-being.  That was sort of the impetus for the time.
Q  Did you consider it to be in the interest of her well-being -- I assume that you did -- when you asked her, "Why don't you go ahead and just tell everybody about these things that you are telling me and get this off your mind so to speak?"
A  Yes.  I considered that to be not antithesis to her well-being.
Q  I assume it is not unreasonable to say that if she had said, "Well, I've carried this thing long enough.  I done it, and I want everybody to know about it," you would have been receptive to that; wouldn't you?
A  Of course.
Q  But she never did say that?
A  She never said that and -- you know -- in what I thought was my responsibility I never initiated any kind of interrogation.
Q  Oh, yeah.  Were you here the other day when she testified?
A  Yes; I was.
Q  Did you consider that the questions that you asked her and the responses that she gave  -- some of them spontaneously -- yesterday were any different in terms of equivocation from what she gave on the stand here the other day?
A  I think so, because she did not back into a "I don't remember" stance at any point, but again my conversations about the crimes were very limited -- as you can see, out of six hours or so -- a few sentences.

THE COURT:  Well, does that trigger further interrogation from any lawyer?  If so, it is open season.

MR. SEGAL:  I have nothing further of this witness, Your Honor.

THE COURT:  How about you, Mr. Blackburn?

MR. BLACKBURN:  I don't think so.

MR. SEGAL:  Ms. Rouder, you may step down.

THE COURT:  Let the witness step down.

(Witness excused.)