Jury selected, opening statements made, witnesses questioned in Heather Ellis trial

Thursday, November 19, 2009 ~ Updated 12:08 PM
Heather Ellis enters the Dunklin Count Courthouse flanked by cameras and news reporters. Ellis is on trial for assaulting police, disturbing the peace and resisting arrest. (Joshua Payne/Daily Dunklin Democrat)

KENNETT, Mo. -- The jury was selected and the prosecution and defense gave opening arguments in the trial against Heather Ellis Wednesday.

Ellis is charged with assaulting police, resisting arrest and disturbing the peace in a case that has garnered national media attention. Ellis' supporters have alleged the charges are racially motivated.

The day began with the selection of the 12-person jury and two alternates.

The group contacted for jury duty included 107 individuals from Dunklin County who were first introduced to the court's employees and informed that Ellis had pleaded not guilty to the crimes of which she had been accused.

The defense made a motion for a change of venue and to drop all charges against the defendant, but the judge, Joe Satterfield, denied the motions.

Potential jurors were informed to answer all questions presented by the prosecution and defense which would lead to the selection of the final 12 individuals on the jury and two alternates.

Satterfield explained to the potential jurors that all answers should be answered truthfully in full and complete, adding that any answers can be made in private at the bench, upon request.

He reminded the potential jurors that Ellis must be proven guilty beyond reasonable doubt and that if, after all evidence is presented, the jury is not fully convinced then she must be found not guilty.

The prosecution's first question was whether any of the individuals had heard of the case and to identify themselves by a show of hands. Cape Girardeau County Prosecuting Attorney Morley Swingle, who was appointed prosecutor after the Dunklin County prosecutor recused himself, followed this question by asking if the individuals would be able to make a decision on the case from the evidence and witnesses without being swayed.

The majority of the individuals identified said that they had heard of the case in some capacity.

Of the 107 potential jurors, 27 excluded themselves from the jury pool because they said they had already formed an opinion on the case, and for that reason would not be able to make an unbiased decision.

Swingle informed the jury members that they would hear from several witnesses including Tate McDaniel, Betsy Walls, Loretta Cunningham, Robin Flood, Linda Maddox, John Connelly, Craig Moody, Teresa Kinder, Brandon Elliot, Ashley Waxter Elliot, Al Fisher, Joe Fisher, Alan Campbell, and Phillip Caldwell.

He followed the information by asking who in the jury knew any of these individuals and if they would be able to make an unbiased decision based on their relationship with the witnesses.

He then asked the members if any of them were familiar with the defendant and her family members including Heather Ellis, Nathaniel Ellis, Hester Ellis, Lilly Blackmon, Dennis Pulliam, Willie Pulliam, and David Taylor. Swingle followed up by asking if the individuals could make an unbiased decision on the trial based on their relationship with the defendant or family.

The defense asked potential jurors how many of them had heard of the case or had already decided on an opinion in the case, either for or against Ellis. Defense attorney Scott Rosenblum also asked if the individuals had discussed the case with anyone else in which opinions on the trial were given.

Potential juror number 51 noted that she had an opinion on the case but the opinion could be changed with the evidence and witnesses.

The defense explained that sometimes changing a preconceived opinion was hard to do.

Rosenblum added that anyone that had shared opinions on the case could affect the ability for the trial to be completely fair and impartial.

One individual in the jury explained that the sheriff was her brother-in-law. The defense asked if she thought, if the prosecutor failed to prove beyond a reasonable doubt, that she would be able to tell the sheriff that she found the girl not guilty or vice versa.

The potential juror agreed that she would have no issues with this request.

The defense followed these questions by asking the group if they believed that sometimes things were taken out of context. He also asked if the group believed that an individual would need to see the whole picture before the context is understood.

The jury members were also asked by the defense if they believed that perceptions changed depending on the individual person.

Also, the defense asked the jury if they believed that a completely innocent person could be charged with a crime.

He noted, "that the burden was for the prosecutor to prove each element of his case beyond a reasonable doubt."

Rosenblum followed this by asking if the individuals in the jury could listen to all the evidence, and at the end of the day, think the prosecutor's case was suspicious. The potential jurors were also questioned if they would be able to find the defendant not guilty, if they believed she had committed the crimes, but not beyond reasonable doubt.

The defense added that Ellis was presumed innocent until proven guilty. He asked if the members had any problems with the law stating the prosecution has to give an opening statement, present evidence, and have a closing argument, but the defense did not have to take part. Rosenblum added that the defense willfully could take part in any of these portions of the trial.

The defense followed this question by asking if the members had any issues with the law that the defendant does not have to testify. Rosenblum noted that, on the other hand, the defendant has every right to testify.

Members of the jury were also asked if they had any personal relationship with Dunklin County Prosecutor Stephen Sokoloff. Sokoloff was the former prosecutor on the case, prior to his voluntary recusal.

Rosenblum informed potential jurors that they should watch demeanor and body language along with other factors to determine the credibility of witnesses.

The potential jurors were then asked if they agreed that police officers, regardless of police academy or uniform, are just like anybody else. The defense followed this question by asking if the members agreed, "that it was possible for an officer to place their hand on a bible and lie", to have a "viable interest in a case", and "have the ability to jump to conclusions."

Members were asked, by the defense, if they had ever been "treated indifferently", "wrong", or "rude" by a service employee and if they believed it were acceptable to voice concerns with this problem.

The defense followed this question by asking if any of the members of the jury had ever had a negative experience at the Kennett Walmart.

He finished his questioning by asking each individual their hobbies, what associations in which they were active, and if they regularly watched or listened to certain programs including Fox News, Rush Limbaugh, and "Hannity and Colmes," or similar news programs.

Satterfield informed the potential jurors that they were not to discuss the case or opinions in the case during the trial.

Satterfield followed this information with adjournment for the officials to decide on the 12 members of the 107 individuals to complete the jury for the trial, along with two alternates for the jury.

Following adjournment, 10 white females, one black male, and one black female were identified as the selected 12 individuals to represent the jury. Also one white male and one white female were selected to serve as alternates to the 12 individuals chosen.

After the selection of the jury, jurors were sworn in and Satterfield explained the process of events.

Satterfield noted that the prosecution will make an opening statement and the defense will have the choice to make an opening statement. Following the statements, evidence will then be produced, according to Satterfield.

After all evidence is provided, Satterfield noted that the jury will go to a room, select a floor person, and reach a verdict of guilty or not guilty in the first portion.

He added that if the jury finds the defendant guilty in the first portion then more evidence could be provided. Following this evidence, the attorneys could suggest punishment for the crimes committed.

The jury will then adjourn to decide the punishment for the defendant, according to Satterfield.

He added that those participating in the jury trial would be required to follow the rules and the law.

"It is your duty to determine the facts by the evidence presented during the proceedings in the court room alone," Satterfield said.

He noted that the jury was not to do any independent research of any type.

Satterfield added that the jury was not to accept any question presented to the witness as the truth.

The prosecutor followed this explanation with his opening statement.

Swingle noted that the defendant visited Walmart in January of 2007 and "went ballistic yelling so loud that the back of the store could hear her."

The prosecution added that the defendant "manhandled" another customer's merchandise four times.

Following this behavior, the prosecution said that the defendant refused to leave the store and was "scaring and disturbing" the employees and other customers by "being loud and profane."

Swingle noted that the jury would hear from police officers that asked the defendant to leave the store, to which she declined.

Teresa Kinder was the customer checking out during the outburst, according to the prosecution.

"She will tell you that she wanted to get her things and leave the store," the prosecutor said.

He added that the jury would hear from Betsy Walls, the cashier that night where the incident took place, who the defendant called "a gray haired old lady."

The prosecution added that the defendant called the manager of Walmart an "uneducated Walmart worker."

Walmart manager Kay McDaniel never raised her voice to the defendant, according to the prosecution.

Swingle noted that the defendant said, "I don't have to leave and you can't make me."

It was then that the four police officers arrived on the scene with officer Al Fisher the first one in the facility, according to Swingle.

He added that Fisher asked McDaniel "what was going on," and that McDaniel informed Fisher that she had told the defendant that she had to leave.

The prosecution noted that the defendant responded to this request by saying, "I am not leaving until I get my (expletive) change."

Swingle noted that no officers laid hands on her and that her 15-year-old cousin was with her.

The prosecution added that the defendant was waiving her finger in the air and cursing the officers with the worst curses imaginable.

"She remained to make a disturbance," Swingle said.

The officers informed the defendant that she would be under arrest if she did not leave and she responded, "If you arrest me I will kick your (expletive)," Swingle explained.

The officers proceeded to try and arrest the defendant, "who resisted by kicking Fisher in the shin repeatedly and punching Sergeant Joe Stewart in the mouth," Swingle added.

"She resisted by stiffening up, kicking, and flailing her arms," the Swingle said.

The prosecution alleged that while being handcuffed Ellis continued kicking as she was "gently placed into the car that drove her to jail," according to the prosecution.

Swingle added that the jury would hear from employees in the store at the time of the incident; four officers on the scene; including Fisher, who will testify he was kicked repeatedly; and Stewart, who will testify he was punched in the mouth.

"This was no serious injury, but it did hurt," Swingle said.

Five different camera angles of the events with one directly above the aisle 13 checkout will also be seen, according to the prosecution.

Swingle added that in the video, the jury will see Kinder and then see an arm reach out sliding her merchandise back on four different occasions.

The prosecution noted that the video would also show the defendant "waiving a Sunny Juice bottle like a club." He noted that the defendant informed Kinder "that she was going to kick her (expletive)."

The prosecution added that the video, unfortunately, had no sound, but would show how long the events actually took to take place.

The video also shows that once the defendant is outside it is approximately two minutes until she is arrested and in the car, according to the prosecution.

Swingle noted that the officers and the defendant were off screen for a total of three seconds and when they return the struggle has begun.

The defense made an opening statement next by informing the jury that the video does not justify the assault of three officers on the defendant.

Rosenblum noted that the case was about "indifference in the way the defendant was treated by employees, along with the overreaction by the police officers."

The defense added that the defendant was "charged and then overcharged for the crime."

"A mundane errand on a Saturday evening and the last thing [the defendant] expected was to be essentially disrespected by employees and pushed by another customer," Rosenblum said. "When she looked to police officers, she was again told to leave and essentially assaulted by three officers."

The defense added that Ellis' cousin was calling his mother, Lilly Blackmon, to inform her of how the defendant was treated. He then explained to the jury that Blackmon arrived to see 'the defendant's head being banged on the hood of the police car.'

Following the assault, the defendant was "shoved into the car without her hat or shoes," according to the defense.

Rosenblum noted that aisles 13 and 14 were the only aisles remaining open that late at night.

The defense added that the defendant and her cousin were in different lines and going to see which line would move faster before joining in the same lane.

"It happens all the time," Rosenblum said.

When it became the cousin's turn in line he called to the defendant, according to the defense.

Rosenblum noted that the defendant said to Kinder, "Excuse me ma'am but I'm next."

"Kinder pushed the defendant not once but twice," according to Rosenblum.

Following the pushing, the defendant received "no relief from the cashier," who contacted management and security.

The defense added, "Walls' goal is to move everybody through the lane as fast as possible."

Rosenblum also noted that Walls would inform the jury that she cannot see out of her right eye when looking straightforward and that she is a friend with Kinder.

Walls ignored the defendant and her cousin and began checking out Kinder, according to the defense.

Rosenblum added that Walls did not even try to sort things out before management and security, an off-duty Kennett police officer, arrived on the scene.

Management immediately told the defendant to get out of the store and she did, according to the defense.

Rosenblum added that all stories are subject to a person's interpretation.

When the manager told her to get out of the store, the defendant said she wanted to get her things checked out, the defense explained.

He added that the Walmart employees responded to the incident by punishing the defendant.

"She said I'm an educated person and you don't have to talk to me like that and the manager responded that she was educated too," Rosenblum said.

He added that he was unaware of where the other statement came from.

Security was informed to get the defendant out of the store by management, according to the defense.

Moments later, four Kennett police officers arrived to handle this "serious issue," Rosenblum said.

He noted that the video shows the defendant and cousin complying with the officers, and that the Kennett police officers were walking on her heels.

At this point, the defendant begins to move toward her vehicle to leave, but the officers are on her shoulder being vulgar and violent saying, "go back to the ghetto," according to the defense.

Rosenblum added that the defendant asked the officers why they were harassing her and not drug dealers.

"The officers responded 'by grabbing the right arm of the defendant' completely startling her," the defense noted.

"It is human nature to raise your arms at this point," Rosenblum said.

She was then grabbed by the three other officers who smashed her on the back of the police car, according to the defense.

Rosenblum added that the defendant's relatives were the only witnesses to this act.

The officers told the family to get out or they would be next, according to the defense.

The defendant was then thrown into the back of the car as "Fisher laughed," the defense noted.

"The officers then said, 'she hit you in the mouth didn't she,' laughing while Stewart replied, 'yeah she did,'" the defense alleged.

This was "cover your butt time," according to Roseblum.

He added that he asks the jury to judge the credibility of the witnesses and that the prosecution of the young girl was not right.

Following the opening statements, Teresa Kinder took the stand as a witness to the event.

Kinder noted that she was at aisle 13 on Jan. 6, 2007, the night of the incident.

She said that four or five people were in front of her including Ellis and her cousin, who had a cart.

The young lady then pushed the cart between aisles 13 and 14, while the young man remained in the line in front of her, according to Kinder.

When reaching the front of the line, she placed her merchandise on the counter, Kinder noted.

She added that the lady then ran over and pushed her stuff back.

"My stuff was already up there ready to be checked out," Kinder said.

She noted that she said, "Excuse me ma'am, what are you doing?"

"She looked me in the eye and said she would whoop my (expletive)," Kinder said. "I said, I don't think so."

Kinder noted that the defendant was hollering loudly and cussing at her.

"It made me so mad, I told her I was next and she said no," Kinder said.

Kinder added that she paid for her merchandise and left the store.

As she left the store, she saw the customer service manager and a couple of cops coming into the store, according to Kinder.

She noted that she did not know Ellis and only knew Walls from her trips to Walmart and did not even know her name.

The prosecution then submitted exhibit two to the court, which was a photo of the defendants hands pushing Kinder's merchandise back, according to the prosecution.

Exhibit three was then admitted which showed a photo of the store and the area of aisle 13, the prosecution noted.

Kinder noted that the defendant disturbed and frightened her cussing the way that she did.

The defense cross-examined the witness asking Kinder if she had reviewed her comments to Sokoloff.

Kinder informed the defense that she had reviewed the comments.

Kinder noted that she was a regular customer of the Kennett Walmart.

The defense asked if it was the first time she had seen Walls, to which Kinder replied "no."

He then asked if the two greeted each other with pleasantries, to which Kinder replied "yes."

The defense asked if the defendant's cousin was ahead of her in the check out lane.

Kinder noted that he was, but had no items to purchase, and was looking at other items when she placed her merchandise on the counter.

Kinder described the defendant as placing a basket down by aisle 15 and 16 in the report to Sokoloff, according to the defense.

Kinder explained that she usually calls the carts baskets.

Rosenblum asked Kinder if she ignored the young man's place in line and once ignored, the defendant came up and the pushing began.

He followed this by asking if Kinder could remember if she elbowed or pushed the defendant first, to which Kinder replied "no."

Rosenblum responded by asking if the cashier was right there and also ignored the young lady. He then asked if Kinder could have backed off and said my mistake go ahead. Following that question with, "did you take that option."

Kinder replied by saying "no."

The defense asked if at any time did an employee ask what really happened and asked if she informed any of the employees that she ignored the young man and elbowed the defendant.

Kinder noted that the defendant elbowed her as well.

"But you elbowed her first," Rosenblum said.

"No, I didn't tell them," Kinder replied.

Rosenblum asked if the defendant was really screaming and reminded Kinder to not exaggerate.

Kinder noted that the defendant was talking loudly except for one instance when she screamed.

"You then saw an army of cops come in?" Rosenblum asked.

"There were just two," Kinder replied.

The defense asked how she was frightened when she wasn't frightened when she elbowed the defendant.

Kinder explained that she became frightened when the defendant was on the phone.

The defense noted that she had never mentioned being frightened before and Kinder replied that nobody had ever asked.

The prosecution followed the defense by asking Kinder if the elbowing occurred as the defendant reached across to push her merchandise aside, to which Kinder replied "yes."

Walmart assistant manager John Connelly was next to the stand.

Swingle asked Connelly about his role at Walmart in January of 2007. Connelly noted that he maintained security for the Kennett Walmart by operating security cameras.

The prosecution then asked if Connelly went through footage for the incident on aisle 13 and he responded "yes."

Connelly noted that he found five different camera angles and one was on the register at aisle 13. He added that all of the footage was burned to a DVD disk.

Connelly informed the jury that he had seen the footage and it was the accurate version that he had made following the incident.

The prosecution then presented exhibits two and three to the court, which were still photos of the exit of the officers and the defendant and a roof top angle of the parties in the parking lot.

Other than making the DVD, Connelly explained that he had no direct connection with the case.

During the defense's cross-examination of Connelly, he was asked if a video shot of the officers grabbing the defendant was found.

Connelly replied by saying that the certain portion of the incident was in a dead space.

The defense asked if any police officers were present when Connelly was looking through the footage for material important to the incident, which Connelly replied "no."

Rosenblum also noted that Connelly was a loyal employee and did not want Walmart to suffer liability on these cases, so he had a certain interest in the footage.

Upon questioning, Connelly noted that any other footage of the event would be lost following the creation of the DVD.

The prosecution followed this questioning by asking how long it was after the incident when Connelly made the DVD and if officers had ever watched footage with him before.

Connelly replied "that it was no more than two days following the incident when the DVD was created and that the officers had never watched footage with him."

Rosenblum asked Connelly if this certain instance was a situation of shoplifting, to which Connelly replied "no."

The trial was then adjourned and is scheduled to begin again at 8:30 a.m. today.

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