THE COURT: Call your next witness.

MR. FORD: Mr. Baldwin has no further witnesses to call at this time.

MR. PRICE: Judge, we have no witnesses to call. I think I previously asked both officers about whether


Jessie Misskelley, Senior's name is on the Miranda rights form signed at 11:00 o'clock. I neglected to bring a copy of the rights form with me. I think I've checked with all the other attorneys and we are all missing that, but if the Court was going to hold the record open for Mr. Rainey I would want to be able to double check that.

MR. FOGLEMAN: Judge Rainey -- the reason I left the courtroom -- Judge Rainey was on the phone. He said he could be here in ten minutes. He was in Memphis, but he was on his car phone.

THE COURT: Did you have anything else?

MR. PRICE: Nothing else, Judge.

THE COURT: Well, if he's on his way, I'll wait on him. Is there anything else we can take up?

MR. FORD: One thing I would like to do is follow up on a previous conversation you and I had over the phone and has been mentioned by reference previously this morning. That was that there was a prosecutor subpoena issued requiring the presence of Terry Grinnell, the stepfather, Gayle Grinnell, the mother and Matthew Baldwin, the brother of my client, that we filed a motion to quash that subpoena as well as a brief in support. That is on file. I had a conversation with you while you were in Fayetteville


on other matters to discuss our opinion, that you denied that motion and allowed that to go forth and I wanted that denial of the motion on record.

THE COURT: I had a similar conversation with Mr. Fogleman and Mr. Price and denied that motion as well, and as I understand each of your theories in seeking to suppress the prosecuting attorney's subpoena, in one case there was an allegation that you represented the parties to be questioned. And I questioned whether or not that might be some kind of conflict and then as I thought about it, I thought I don't know why it would necessarily be a conflict.

But the next point you made in seeking to suppress it was that the State had the power to subpoena these witnesses while the defense did not.

MR. FORD: In essence that it circumvented the rules of discovery.

THE COURT: And I ruled that, of course, since the State had the burden of proving its case, it was given that power by statute. It can be abused, and we discussed that, and there is a specific case out of South Arkansas where the Supreme Court had ruled that the prosecuting attorney had in fact abused that power by utilizing the prosecuting attorney's subpoena to subpoena in all witnesses that had been designated


shortly or just immediately prior to a trial to preserve their testimony, and there the Court held that that was abuse of process, and I frankly probably would have, too.

This was a totally different situate and I ruled as such. I ruled that he was still in the throes of an investigative area, that the witnesses didn't belong to anyone and that the State had a perfect right to summons those witnesses in investigative efforts and to take a statement from them and that statement would be like a mini grand jury -- is how I referred to it -- made available to each of the defense attorneys.

I went further than that and went beyond what the law requires and allowed -- rather than have lawyers that are representing criminal defendants in a capital murder stand in and represent potential witnesses, I appointed a member of the local bar to aid and assist and be available to those persons to be questioned and I believe that was done. As far as I know, y'all had no difficulty in that arrangement.

MR. FOGLEMAN: The record should show that that was done, and all of these witnesses -- well, in the case of Mr. Price and Mr. Davidson -- the witnesses they appeared for and said they represented


initially were represented by Jerry Coleman and the witnesses that Mr. Wadley appeared for and said he represented -- they ended up being represented by Davis Loftin.

THE COURT: I specifically ruled that it was not an abuse of discretion and it was in the permissive stages of an investigation.

Gentlemen, I'm concerned with the possibility of a motion to seek mental examinations and the inevitable delay that that causes particularly in view of our State Hospital situation in getting those done in a timely fashion.

I want to know within a very short period of time whether or not you want such an examination conducted. You can do it or you can waive it if you want. If you want it done, I want to know within 30 days. If you don't request it by written motion within 30 days, or the State doesn't request it within 30 days, then I'm considering it waived.

Even then I will order an examination with local facilities. If the local psychiatrist feels it is necessary for a further 30 day examination, then I will enter an order to send them to Rogers Hall for that purpose. I'll ask them to expedite it in view of the nature of this case, but I don't know if they



MR. STIDHAM: Your Honor, you're saying that --

THE COURT: If you don't request it within 30 days, you're waiving it. You're on notice that the Court is drawing a deadline as far as that defense goes. If you want to invoke that defense, you've got 30 days to make that decision so that a proper examination can be conducted.

MR. STIDHAM: What if something arises after that 30 day period?

THE COURT: I'm never drawing a line that finally bars any unforeseen eventuality. Of course, you just raise that as it comes up and I'll rule on it. I want that clear now. If there is any anything unusual or emergency or exigent circumstances that cause you to bring up a particular motion, then I'll consider that, too. But until that happens, my deadlines are going to be effective.

MR. PRICE: There were several motions that we filed dealing with death penalty issues. One in particular dealt with requesting that the State notify us of which of the aggravating circumstances that they are intending to rely on in this case. The State may not be in a position to do that today. I request that since the State has ten days to let us know which


defendant is going to be tried first, if they can also let us know at the same time which of the aggravating circumstances they are either relying on or which ones they are specifically not relying upon.

THE COURT: I don't see why you can't do that at the same time you announce which case you're going to try first.

MR. FOGLEMAN: I don't have any problem with that.

MR. STIDHAM: Will that be available to all defendants?

THE COURT: Yes, sir. It may differ from defendant to defendant, but that would be applicable to each defendant.

MR. FOGLEMAN: Your Honor, Judge Rainey is here.

MR. FORD: Your Honor, before we proceed, this is a matter of formality. Your Honor, we are of the opinion that the State of Arkansas carries the burden. The State of Arkansas went forth, that they rested their presentation, that we then presented our presentation, and now they are attempting to submit additional evidence after they have rested. We don't feel that is appropriate.

Secondly, your Honor, what they are doing is in essence attempting to rehabilitate the witness by use


of extrinsic evidence which is a violation of the Rules of Evidence. We would object to that as well.

THE COURT: Overruled. It is within the sound discretion of the Court as to whether or not to allow either side to call additional witnesses. I also point out that this is a hearing before the Court, not before a jury, where the strict Rules of Evidence are applicable.


having been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows: