GUILTY IN - Kimberly Dyer, 31, burned, tortured, mutilated, murdered, Elkhart, 22 Oct 2019 *Arrests*

[Niner]

@FrostedGlass - any news on Owens for his appeal? TIA!

 

[FrostedGlass]

@FrostedGlass - any news on Owens for his appeal? TIA!

Nothing yet.

 

[DrQ]

Thanks for all the information on this case. Beyond words. IMHO I hope the three don't find their happy place behind prison walls. This is one of those times where Never seeing the light of day again would be a good thing.

 

[FrostedGlass]

Thanks for all the information on this case. Beyond words. IMHO I hope the three don't find their happy place behind prison walls. This is one of those times where Never seeing the light of day again would be a good thing.

Thanks for your comments.

I hate everything about this case. So many conflicting statements from witnesses who had a lot to lose by not cooperating with the prosecution. I wanted them all to pay for their part in this heinous crime. Any one of them could have stopped the crime by making a 911 phone call. I've followed their court cases before and after.

I'm still not done with this case. I have all the newspaper articles I could find, which I'm going link to in this thread. I also want to compare all the "Facts" from both sides of the appeals. All the things that make no sense at all.

 

[Niner]

@FrostedGlass -

Any word on Owen's appeal yet?

TIA!

 

[FrostedGlass]

@FrostedGlass -

Any word on Owen's appeal yet?

TIA!

Not yet.

 

[FrostedGlass]

@Niner There's a new development in Owen's appeal; some of the highlights are below. I bet she's more than a bit irritated that they slipped all that sidebar stuff by her. Many of the objections from the defendant's atty were over-ruled. I wonder why the judge directed the court reporter not to transcribe them.

I wonder if Mario's atty received the entire record.

VERIFIED MOTION FOR WRIT IN AID OF APPELLATE JURISDICTION AND STAY OF PROCEEDINGS

Background:
4. When Mr. Owen filed his Notice of Appeal, he requested transcripts from all the proceedings in his cause, including all the hearings of record, including exhibits; all testimony, motions, arguments, instructions, objections, rulings, findings and orders, including the opening statement and closing arguments of the trial, sentencing hearing, and all exhibits.
6. The Clerk filed the Notice of Completion of Transcript on November 23, 2021. The Transcript provided to Appellant counsel by the Court Reporter is 3,043 pages and is missing all sidebars. When an objection occurred at trial, the transcript reads, “Counsel approached the bench and then an off the record discussion was held.” At no time during the course of the proceedings did trial counsel for Appellant consent to an off the record discussion in open Court. At the time Appellant counsel filed her Notice of Appeal and submitted Appellant’s brief, counsel was unaware that side bar conversations / objections are in fact recorded in the Elkhart Circuit Court.
8. Counsel for Appellant was co-counsel in the case of Aidan Burkins v. State of Indiana 20C01-2008-MR-000004 (Aidan C. Burkins v. State of Indiana 22A-CR-01867), which was tried in the Elkhart County Circuit Court from June 27, 2022 through July 1, 2022. Subsequent to Mr. Burkins’ murder trial, Appellant’s counsel learned that the side bars may in fact be recorded, but that the trial court Judge was directing the Court Reporter not to transcribe them.
9. As a result of this information, counsel for Aidan Burkins (Appellant counsel’s law partner) filed a Verified Motion for an Order Compelling Court Reporter to Provide a Complete Transcript of Proceedings, and to include all side bar conversations that occurred at the bench. As a result of filing this Motion to Compel, on November 7, 2022, the Court of Appeals granted the Motion to Compel and Ordered that the Court Reporter for the Elkhart Circuit Court file an Amended Transcript, which would include the side bar conversations.
10. As a result of that Order, the Court Reporter in fact filed an Amended Transcript in the Aidan Burkins case which included the transcripts of all side bar conversations that occurred during that trial.
11. It was only after receipt of the Amended Transcript in the Aidan Burkins appeal did counsel for Appellant realize that the original transcripts received in this case were not complete.
12. The Appellant’s case cannot proceed on appeal without a complete record.
15. At the time Appellant’s counsel filed Appellant’s brief and participated in the Oral Arguments on October 11, 2022, she was not aware that the transcript of proceedings was incomplete.

 

[FrostedGlass]

A quick response by the State to Owen's motion :
1. Owen filed a notice of appeal on July 9, 2021 (Docket). He filed an amended brief on March 18, 2022 (Docket). The State filed an amended brief on May 18, 2022 (Docket). This Court held an oral argument on October 11, 2022 (Docket).
2. On January 4, 2023, Owen filed a motion for writ in aid of appellate jurisdiction and for a stay of the proceedings (Docket).
3. The State takes no position on the merits of Owen’s motion and leaves the matter to the Court’s discretion.
4. The State respectfully requests that if this Court grants Owen’s motion, it also sets a clear schedule of deadlines for when a supplemental transcript should be completed and filed with the Court. The Court should also set a schedule and deadlines for the parties to review the transcript and indicate to the Court whether the case should be decided without further briefing or if the parties need to file amended briefs. Wherefore, the State respectfully requests that if this Court grants Owen’s motion, it sets a clear schedule of deadlines for when a transcript should be completed, when the parties need to request further briefing, and when any stay of the proceedings would end.

 

[FrostedGlass]

@Niner Update from the Indiana Supreme Court:
01/13/2023

Order Issued Being duly advised, the Court GRANTS IN PART Appellant's "Verified Motion for Writ in Aid of Appellate Jurisdiction and Stay of Proceedings." Within thirty (30) days of the date of this order, the court reporter shall complete and file an amended transcript with the Elkhart Circuit and Superior Courts Clerk. The amended transcript shall include all sidebar conferences from the trial. Within thirty (30) days of the date that the court reporter files the amended transcript, the Appellant must either (1) file a supplemental brief; or (2) file a notice indicating no supplemental brief will be filed. Any response brief shall be filed no later than thirty (30) days after service of the supplemental brief, and any reply brief shall be filed no later than fifteen (15) days after service of the response. See Ind. App. R. 45(B). All briefs must adhere to the word count and page limits for an appellant's reply brief. See Ind. App. R. 44(D)-(E). Judicial Officer: Rush, Loretta H. Serve: Duerring, Marielena Serve: Rokita, Theodore Edward Serve: Comer, Evan Matthew Serve: Dayton, Samuel Joseph File Stamp: 01/13/2023

 

[FrostedGlass]

Here's how it went in the Aidan Burkins murder trial appeal:
Appeal Case # 22A-CR-01867
[snips]
6. When Mr. Burkins filed his Notice of Appeal, he requested transcripts from all the proceedings in his case – including all hearings of record, including exhibits; all testimony, motions, arguments, instructions, objections, INCLUDING ALL SIDEBAR CONFERENCES DURING THE TRIAL, rulings, findings and orders, including the opening statement and closing arguments of the trial, sentencing hearing and all exhibits.
8. The transcript provided to counsel by the Court Reporter is 1,111 pages long and is missing all sidebars. When an objection occurred, the transcript reads “counsel approached the bench and then an off the record discussion was held”.
9. That at no time during the course of the proceedings did trial counsel for appellant consent to an off the record discussion in open court.
10. (the staff contacted the reporter) and to let her know that the sidebars would need to be included. The court reporter stated that sometimes it is hard to hear the sidebars and that she would have to ask the Judge. The court reporter emailed staff for trial/appellant counsel back on July 5, 2022 and stated “I did talk to Judge Christofeno today regarding transcripts of sidebars at the bench, and he did say that I would not be able to prepare/provide a transcript those, either for the transcript for the appeal or “on the side,” as we talked about earlier.”
15. It appears that the court reporter’s representation in the transcript that an “off the record” discussion occurred is not entirely accurate, that in fact the sidebars are recorded but the court reporter is being instructed by the trial court not to provide transcripts of the sidebars.

Indiana Courts Case Search - MyCase

Indiana Supreme Court, Public Access

public.courts.in.gov

 

[FrostedGlass]

@Niner Do you know if this motion for leave means she's asking for time off from being in court so she can get the transcribing of the sidebars done?

I wonder if Mario's attorney is paying attention yet.

01/13/2023

Document Filed Court Reporter's Verified Motion for Leave to File Supplemental Transcript Volume of Sidebars; Certificate of Service- Electronically Served 01/13/23 Attorney: Jessica Frizzell, Court Reporter Party: Jessica Frizzell, Court Reporter

This is the Order Issued:

On January 13, 2023, this Court issued its Order granting in part Appellant’s “Verified Motion for Writ in Aid of Appellate Jurisdiction and Stay of Proceedings,” which ordered the Elkhart Circuit Court reporter to complete and file an amended transcript with the Elkhart Circuit and Superior Courts Clerk within thirty (30) days of that date. Also on January 13, 2023, Jessica Frizzell, court reporter for the Elkhart Circuit Court, filed her “Court Reporter’s Verified Motion for Leave to File Supplemental Transcript Volume of Sidebars.” The court reporter asserts such leave is necessary because:
(1) the jury trial lasted twelve (12) days;
(2) the jury trial included approximately 160 sidebars;
(3) the current transcript consists of fourteen (14) volumes and 3,043 pages;
(4) making additions to the current transcript will be extremely difficult; and
(5) filing an amended transcript instead of a supplemental transcript will require all page and volume numbers in the current table of contents to be amended.

Being duly advised, the Court GRANTS the “Court Reporter’s Verified Motion for Leave to File Supplemental Transcript Volume of Sidebars.” This supplemental transcript remains due within thirty (30) days of this Court’s January 13, 2023 Order granting in part Appellant’s “Verified Motion for Writ in Aid of Appellate Jurisdiction and Stay of Proceedings.” Done at Indianapolis, Indiana, on ___________. Loretta H. Rush Chief Justice of Indiana 1/18/2023

 

[Niner]

snipped by me...

@Niner Do you know if this motion for leave means she's asking for time off from being in court so she can get the transcribing of the sidebars done?

Sounds like it. She needs time to transcribe all that she mentions.

 

[FrostedGlass]

Sounds like it. She needs time to transcribe all that she mentions.

That same court reporter is the same one that had to add the sidebars to the Aidan Burkins transcripts. That one alone probably got her behind.
I wonder how important sidebars are to appeals.

 

[FrostedGlass]

Looks like the court reporter finished with the sidebar for Owen's case. Mario's appeal was closed on Jan 30, 2023.

02/16/2023

Notice of Completion of Transcript **Tendered as 'Notice of Completion of Amended Transcript'**; Certificate of Service- Electronically Served 02/16/23

 

[FrostedGlass]

@Niner
Owen's brief on the amended transcript is in. I wonder what attorney Marielena Duerring thought when she saw it.
How it started:
At the beginning of Owen’s trial, the trial court informed counsel that sidebars are not recorded because
they are “impossible” to do so as a function of the acoustics of the courtroom. (T. Vol. 2 p. 242).
This representation is further reinforced by the original transcript filed by the court reporter
which represents at each sidebar that an “off the record” conversation took place.
Pg 7 (footnote)
Indeed, it was only through happenstance that counsel for appellant discovered that the sidebars in this court were actually recorded, but that the court reporter was being instructed not to transcribe them by the trial court. (cite to Burkins) Moreover, the mystery further deepens when you compare the sidebar transcripts of the Burkins appeal to the sidebar transcripts in the case at bar. In Burkins clearly the majority of the sidebars were audible, unlike the sidebars here.
The Supreme Court's response:
Supreme Court issued an Order granting in part the Appellant’s motion ordering an
amended transcript that included all sidebar conferences and setting deadlines for filing
Supplemental Briefs.
What Owen received:
The recording though falls far short of preserving an accurate and
complete record of the sidebars. In the two hundred twenty-three (223) page supplemental
transcript prepared of the sidebar recordings “unintelligible” is reported two thousand six
hundred sixty-four, (2,664) times. Although the trial court purportedly attempts to make a record
of the specific objection and its ruling, repeatedly the trial court either misstates the objection, or
changes the objection that was actually made during the sidebars.

 

[FrostedGlass]

@Niner
Examples of the inaccurate sidebar discussions:
At one point Owen’s counsel asked to approach to make an objection. (T. Vol. 5 p. 17). The transcript of this one sidebar alone spans four pages where not only is it impossible to follow the conversation due to the “unintelligibles” it also seems to appear that while counsel was trying to argue that the prosecutor was in fact
“making a statement” the trial court simply reported on the record that the objection was “to the
form of the question”.

In a sidebar held to discuss jury questions the entire conversation is basically inaudible. (T. Vol. 5 p. 211) (Suppl T. of Sidebars p. 85). Another sidebar occurred at (T. Vol. 8 p. 117) that was apparently mostly inaudible, in which the trial court characterized that “I believe the objection would be relevance” (Supp. T. of Sidebars p. 117).

Another example of a sidebar that appears to have been mischaracterized by the trial court is found at T. Vol. 9 p.15 where the trial court made the record that the sidebar was a clarification rather than a formal objection, but the actual objection was lack of foundation. (Supp. T. of Sidebars p. 106)

The attorney writes:
Trying to reconstruct the numerous sidebars that occurred in this twelve-day trial cannot
be described as anything but Herculean. Up until just recently appellate counsel believed that no
transcript of the sidebars existed because that is what the trial court and the court reporter
represented. Trying to go back to such a lengthy and involved trial that occurred almost two
years ago is virtually impossible. As illustrated above, one cannot rely on the trial court’s
summation of the objection that it recites before the jury as to what objection was lodged. To
require Owen to perform such a task when the absence of the record lies solely and inexplicably
at the feet of the trial court would be unreasonable. Owens faces a lifetime of prison as a result of
the trial that occurred, at the very least he should have the benefit of the ability to review a clear
and accurate record of his trial. Owen’s fundamental right of due process was violated by the
trial court’s failure to abide by the Rules promulgated by the Supreme Court.

CONCLUSION
For the reasons stated above, and stated in his original brief, Owens requests that his
conviction and sentence be vacated and this cause be remanded for a new trial.

 

[Niner]

@FrostedGlass - sounds like the court reporter has to sit closer to the Judge on sidebars, or someone is changing the transcripts on purpose - ??!! What a mess!!

 

[FrostedGlass]

@FrostedGlass - sounds like the court reporter has to sit closer to the Judge on sidebars, or someone is changing the transcripts on purpose - ??!! What a mess!!

The atty notes this: "...the mystery further deepens when you compare the sidebar transcripts of the Burkins appeal to the sidebar transcripts in the case at bar. In Burkins clearly the majority of the sidebars were audible, unlike the sidebars here."

That court is the one I've watch often and there has never been a problem with hearing the proceedings. If someone is talking softly, the judge will tell them to speak up so the court reporter can hear them. I think he turned down his mic at times during the sidebars; maybe that's the reason she didn't hear well. BUT if that was happening, she should have spoken up. I'll have to watch to see where she sits but IIRC, her desk is right beside his so hearing should not have been a problem.

 

[FrostedGlass]

@Niner
The briefs are in and the Indiana Supreme Court issued a decision a couple of days ago. I guess it comes as no surprise. It's always interesting to me how different the "Facts" are, depending on whose appeal I'm reading. Some of the points of interest will be added as soon as I go through the appeals again.

Here is the bottom line:
"For all these reasons, we affirm the trial court’s judgment."

Here's the link in case anyone wants to read the appeal
21S-LW-00333

 

[Niner]

@Niner
The briefs are in and the Indiana Supreme Court issued a decision a couple of days ago. I guess it comes as no surprise. It's always interesting to me how different the "Facts" are, depending on whose appeal I'm reading. Some of the points of interest will be added as soon as I go through the appeals again.

Here is the bottom line:
"For all these reasons, we affirm the trial court’s judgment."

Here's the link in case anyone wants to read the appeal
21S-LW-00333

You did not add a link...

I shall wait until you post a bit about the appeals & make my notes.