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STATE OF SOUTH CAROLINA)
) IN THE COURT OF GENERAL SESSIONS
COUNTY OF UNION )
THE STATE )
) TRANSCRIPT OF RECORD
-vs- ) 94-GS-44-906
) 94-GS-44-907
SUSAN VAUGHAN SMITH, )
) JULY 25, 1995
Defendant. ) UNION, SOUTH CAROLINA
B E F O R E:
HONORABLE WILLIAM HOWARD, Judge; and a jury.
TESTIMONY OF DAVID MICHAEL SMITH
A P P E A R A N C E S:
TOMMY POPE, ESQUIRE, SOLICITOR.
KEITH GEISE, ESQUIRE, ASSISTANT SOLICITOR
Attorneys for the State.
DAVID BRUCK, ESQUIRE
JUDY CLARKE, ESQUIRE
Attorneys for the Defendant.
Michael R. Watts
Circuit Court Reporter
Page 1
1 INDEX
2
3 WITNESSES PAGE
4 DAVID MICHAEL SMITH
5 Direct Examination by Mr. Pope 4
Page 2
1 EXHIBITS
2 NO. DESCRIPTION ID. EV.
3 S-99 Video Tape 34
4 S-100 Video Tape 34
5 S-101 Video Tape 34
Page 3
1 (Proceedings July 25, 1995)
2 * * * * *
3 THE COURT: The State would call David Smith to
4 the stand.
5 DAVID MICHAEL SMITH, having been first duly
6 sworn, testified as follows:
7 MR. POPE: If it please the court, Your Honor?
8 THE COURT: Yes, sir.
9 DIRECT EXAMINATION BY MR. POPE:
10 Q David, if you would, state your name and
11 occupation to the jury, please.
12 A My name is David Michael Smith. I'm assistant
13 manager of the Winn Dixie.
14 Q And David, when were you born?
15 A July 27th, 1970.
16 Q And where were you born?
17 A Detroit, Michigan.
18 Q And when did you come to Union?
19 A July, August of '72.
20 Q So you came when you were two years old?
21 A Yes.
22 Q And have you lived here ever since?
23 A Yes.
24 Q Could you tell the jury where you lived as a
25 child where you grew up?
Page 4
1 A It was on the outskirts of Union out in the
2 Putnam Community, out in the West Springs area.
3 Q And who did you live with out there?
4 A With my parents for most of the time out there.
5 Q David, could you tell the jury what
6 relationship you are to Michael and Alex Smith?
7 A I'm their father.
8 Q And, David, obviously by virtue of that, you
9 know the defendant Susan Smith, is that correct?
10 A Yes, I do.
11 Q And your current status as far as Susan Smith,
12 marital status, is what?
13 A We are divorced.
14 Q And, David, if you would, I'm going to ask you
15 just to briefly, if you could get you to relate to
16 the jury when you met Susan Smith.
17 A Probably the summer of '90. We started dating
18 in '90.
19 Q And could you tell the jury when you were
20 married?
21 A We got married on March 15th of 1991.
22 Q And could you tell the jury when Michael was
23 born?
24 A Michael was born on October 10th of '91.
25 Q And how about Alex?
Page 5
1 A He was born on August 5th of 1993.
2 Q And could you tell the jury where you resided
3 after you and Susan were married, where you lived at
4 the various stages of the marriage?
5 A When me and Susan first got married, we lived
6 with my great grandmother. And then we eventually
7 bought a house on Toney Road together.
8 Q Now, when you lived with your great
9 grandmother, was there a time when Susan moved out?
10 A Yes, there was.
11 Q And do you recall approximately when that was?
12 A In March of '92.
13 Q And, then if you recall, would you tell the
14 jury when you bought the Toney Road house?
15 A Maybe the fall of '92 I bought it.
16 Q And David, I don't want you to go into great
17 detail, but the elements of your marriage have come
18 up. Could you describe to the jury just in your own
19 words your relationship with Susan and how your
20 marriage was from the beginning?
21 A At first our marriage was pretty good. I mean,
22 we were happy. We done things together as a family.
23 Looked forward to having Michael and everything.
24 But it started deteriorating. And the marriage, it
25 was just -- it was -- it was just a lot of bad
Page 6
1 decisions on both parts. Just a young couple trying
2 to make it, made the wrong decisions, doing the best
3 they could. There were ups and downs to the whole
4 marriage. We both made mistakes, but we were doing
5 the best we could at that time, doing what we
6 thought was the right thing to do.
7 Q David, when you got married in March of '92,
8 Susan was pregnant with Michael at that time, is
9 that right?
10 A In March of '91.
11 Q I'm sorry.
12 A Yes, sir, that's correct.
13 Q And when you got married, Susan was pregnant
14 with Michael?
15 A Yes.
16 Q Describe to the jury, if you could, your
17 feelings at the time when you found out she was
18 pregnant, as far as Michael.
19 A I had previously, before me and Susan started
20 dating, had contact with another guy that I worked
21 with and had a little boy. And I just used to go
22 over there and play with him a lot. I met him. He
23 was probably about two months old. And done a lot
24 with him, and become close with him. So I found out
25 Susan was pregnant, I knew it wasn't the right thing
Page 7
1 to happen at that time, but, yeah, I was very
2 excited and very happy, was looking forward to it.
3 Q Looking forward to having a baby?
4 A Yes.
5 Q When you said it wasn't the right thing at that
6 time, tell the jury what you mean by that.
7 A Well, we were young. And like I said earlier,
8 we were young, and just -- we weren't married or
9 anything. And just, you know, wasn't the right time
10 to happen then.
11 Q You said you weren't married?
12 A No, when she become pregnant, we weren't
13 married.
14 Q After you got married, how were things as far
15 as preparing for Michael's arrival for his birth?
16 What did you do in that regard?
17 A Well, we, of course, attended Lamaze classes
18 together preparing for the birth of Michael. And we
19 also fixed up a nursery.
20 Q Where -- excuse me, I'm sorry. At this time
21 when Michael was on the way, where were y'all living
22 then?
23 A With my grandmother out in the Putnam
24 Community?
25 Q So the nursery that you were fixing up, was
Page 8
1 that at her house?
2 A Yes, it was. It was at my grandmother's house.
3 Q And how did y'all -- did y'all put time in
4 fixing up the nursery?
5 A Yes, I spent a lot of time, like repaneling,
6 and we had put carpet in the room, and hanging up
7 Mickey Mouse stuff like that for the nursery.
8 Q From the time that you got married until
9 Michael was born, how was the situation as far as
10 the marriage?
11 A It was good. We were happy together.
12 Q And could you tell the jury what you recall as
13 far as Michael actually being born, how you got the
14 call, and where you were at when you found out?
15 A Yes, I was at work. I was working third that
16 night at Winn Dixie. And I guess it was around
17 three or four o'clock. Susan called me at work and
18 told me that she had thought that she was going into
19 labor, that she had thought her water had broke.
20 And so I proceeded to immediately leave. And I went
21 and got Susan, and we went to Mary Black Hospital.
22 Made a few phones calls before we left, and went to
23 the hospital at Mary Black.
24 Q How did you feel that night?
25 A I was ready to go. I was excited.
Page 9
1 Q Did you actually -- when you went to the
2 hospital -- you said that you had been taking
3 Lamaze. Did you have go into the delivery room?
4 A Yes, I did.
5 Q And were you there when Michael was born?
6 A Yes, I was.
7 Q Could you describe to the jury how that felt?
8 A Not really, but it was just a good feeling, and
9 it was very emotional. I cried. Susan cried.
10 Other family members were crying when Michael was
11 born, to see Michael finally, just all at once, when
12 we finally seen him when he came out.
13 Q Could you tell the jury how you came to name
14 Michael, where you came up with Michael's full name?
15 What is Michael's full name?
16 A Michael's full name is Michael Daniel Smith.
17 We wanted to name Michael after someone in my
18 family and her family. And that's where the name
19 Michael came from, is because of my middle name and
20 because of one of Susan's brothers. And Daniel came
21 from -- just a couple of weeks before me and Susan
22 were married in March of '91, I lost my brother who
23 was maybe a year and a half older than me, and we
24 were very close. And me and Susan agreed to name --
25 pick the name after him. And that's where Daniel
Page 10
1 came from. His name was Daniel Steven. And that's
2 where the name Daniel came from.
3 Q And how were things -- once you came home from
4 the hospital with the new nursery and the baby, how
5 were things going right there?
6 A They were going great. Me and Susan were
7 happy. We were learning and going through now
8 experiences, taking care of Michael, and learning
9 how to bathe him, and feed him, and watching him
10 grow up and stuff. It was very, very happy.
11 Q Did there come a time during that period - and
12 I guess that would have been towards the end of '91,
13 beginning of '92 - when things took a turn as far as
14 your marriage?
15 A Yes, they did.
16 Q Could you relate that to the jury, please?
17 A Money became a big issue between me and Susan.
18 It was running low, and we were having a lot of
19 trouble. We started having a lot of trouble making
20 ends meet. The doctor bills starting to come in and
21 such as that. And also sex became a problem with me
22 and Susan. She got to where she didn't desire it as
23 much. And, of course, I did. And that became a big
24 problem in our -- earlier -- after on in our
25 marriage.
Page 11
1 Q This is again when you were still living at
2 your great grandmother's?
3 A Yes.
4 Q David, were there times during that period that
5 you had some physical confrontations with Susan?
6 Did that ever occur?
7 A Yes.
8 Q How often did that occur?
9 A Once or twice during that time period.
10 Q Could you relate to the jury when you say
11 physical confrontations, what you mean?
12 A Well, the one incident is right after, you
13 know, maybe early of '92, things were getting pretty
14 bad between me and Susan. I think I was sitting and
15 she was standing, and I was being sarcastic towards
16 Susan, making some sarcastic remarks. And she
17 really just come out and hit me on the side of the
18 head. And she fled and I chased her out in the
19 yard. And I didn't really throw her down, but I
20 tackled her out in the yard. I told her to never
21 hit me again.
22 And then another time, right near the end of
23 the marriage things were pretty bad, of course.
24 Like I said, Susan was getting to where she was
25 threatening, or maybe more or less throwing up in my
Page 12
1 face that she was going to move back to her momma's,
2 "I go live with momma. I don't have to take this, I
3 will just move back with my momma."
4 And I had worked third one night and I come
5 home that morning, and I was tired, and we just
6 started having an argument, another argument, and it
7 got out of hand. And Susan again started saying
8 "well, I will just go momma's house. I don't have
9 to take this."
10 I said "if you are going, you are going now."
11 And shamefully I did grab Susan under her arms and
12 just more or less drug her out of the bed out to the
13 front porch. Didn't throw her down or anything.
14 Just laid her down on the porch. That was end of
15 that confrontation.
16 Q Are you proud to tell the jury about that?
17 A No, sir.
18 Q You regret doing that?
19 A Yes, sir, very much.
20 Q David, now, in March of '92, this was now --
21 you are still at your grandmother's, your great
22 grandmother's?
23 A Yes, sir.
24 Q There came a time that Susan moved out then?
25 A Yes.
Page 13
1 Q Could you relate what was the situation? Where
2 did she move to?
3 A Susan moved out, went to her mother's to stay.
4 Q During this time, from the time that Michael
5 was born until March of '92, you have indicated that
6 you and Susan were having problems.
7 How was the relationship with you and Michael
8 and Susan and Michael? How were things?
9 A Michael was no problem between us. I mean, we
10 were -- it was never any confrontations with
11 Michael. It was good.
12 Q Okay.
13 A It was fine.
14 Q And then --
15 A It was just problems between me and her. You
16 know, Michael didn't have anything to do with it or
17 anything.
18 Q In March of '92, when she moved back to her
19 mother's, what, if anything, was done and said about
20 Michael at that time?
21 A When Susan left with Michael, I completely
22 remember her car went to the back door and she was
23 rolling stuff up. And I clearly didn't know what to
24 do without Michael. And I begged Susan not to take
25 Michael. But, of course, she took him on anyway
Page 14
1 down to her mother's.
2 Q And during that time period, she did, in fact,
3 take Michael to her mother's?
4 A Yes.
5 Q Were you still able to see him during that time
6 period?
7 A Yes, I was.
8 Q Did you help in supporting him?
9 A Yes, I did.
10 Q When did you and Susan move back together? Was
11 that when you bought the Toney Road house or y'all
12 bought the Toney Road house?
13 A Yes, we decided to get back together, and the
14 reason that we went shopping together and found the
15 Toney Road house and bought it.
16 Q Then after you moved back to the Toney Road
17 house, then Alex was born that following August?
18 A Yes, of '93.
19 Q Once she moved back in or moved to the Toney
20 Road house, how were things at first when you first
21 moved back there?
22 A We were excited. I mean, it was our first
23 home, actually. You know, our house because the
24 other one was my grandmother's. It wasn't our
25 house. We couldn't -- Susan stated things like she
Page 15
1 wasn't able to hang curtains and do things at my
2 grandmother's.
3 So this was our first house. And we were
4 excited, and we could paint and hang curtains and
5 work on the garage and stuff. We were happy. And
6 Michael was going to have his own room. Alex was
7 going to have his own room. It was very good.
8 Q Okay. Did that change too, David?
9 A Yes, it did.
10 Q Would you relate to the jury how the
11 relationship became after you moved into the Toney
12 Road house?
13 A Again the problems of just us not really
14 knowing -- being so young and not really knowing
15 much about life together and having kids right off
16 the bat. And sex again became another issue. And
17 it was -- it just deteriorated again from that
18 point.
19 Q At some point during this period she became
20 pregnant with Alex, is that correct?
21 A She became pregnant, that's correct.
22 Q How was the relationship during her pregnancy
23 with Alex?
24 A It wasn't totally awful, but there was -- there
25 were problems. We weren't, you know, getting along
Page 16
1 perfect.
2 Q Did it appear that you were heading towards
3 separating again while she was pregnant with Alex?
4 A Yes, it did.
5 Q Do you recall when Alex was born?
6 A Yes.
7 Q Could you relate that to the jury?
8 A Alex was born again on August 5th, 1993.
9 Q And were you there when Alex was born?
10 A Yes, I was.
11 Q I believe Alex was there -- was there a
12 difference as far as Alex being born as far as
13 delivery?
14 A Yes, Michael was born vaginal. But Alex, she
15 had to have a cesarean to have Alex.
16 Q And the room -- where was Michael born, what
17 hospital?
18 A He was born at Mary Black.
19 Q And Alex?
20 A Alex was also.
21 Q And what about -- did they have the same --
22 A The significance of their birth was that Susan
23 was having -- she had them in both -- the same room
24 with Alex that we had when Michael was born.
25 Q If you remember, after Alex was born having the
Page 17
1 opportunity to show Alex to Michael?
2 A Yes, I do.
3 Q Could you relate that to the jury?
4 A I guess it was maybe a couple of hours after
5 Alex was born, they brought him -- kind of brought
6 them to us, and Michael was there at that time. I
7 can remember taking Michael -- I mean Alex in my
8 arms and holding him down and showing his -- showing
9 Michael his new little brother. And Michael was
10 just smiles, and just, you know, just dazzled. And
11 he was just bubbling over to see his little brother
12 finally.
13 Q Did Michael understand when Alex was on the way
14 when Susan was pregnant with Alex? Did Michael
15 understand that?
16 A Yeah, like when me and Susan were out somewhere
17 and we would be playing with Michael or something
18 around other people, and I would point to Susan's
19 stomach and I would say "Michael, tell him who this
20 is." And he said "that's going to be my brudder."
21 And he was looking forward to Alex coming.
22 Q Was Michael excited -- once Alex got here, was
23 he excited about having a little brother?
24 A Yes, very much.
25 Q David, approximately three weeks after Alex got
Page 18
1 here, you moved out, is that correct?
2 A Yes, I did.
3 Q Could you relate that to the jury?
4 A As I said, when I -- it wasn't the best
5 marriage and problems were in our marriage. And I
6 was beginning to feel unhappy, so I left about a
7 couple of weeks after Alex was born.
8 Q And where did you move to at that time?
9 A I moved back out to my great grandmother's
10 house in the Putnam Community.
11 Q Then during -- was there a time that you again
12 moved back in with Michael and Alex and Susan?
13 A Yes, I did. It was maybe around April or May,
14 or something, of '94.
15 Q And why did you move back in at that time?
16 A Me and Susan had talked and been talking the
17 whole time, and, you know, we -- when we first
18 separated, it was tough, but we started getting
19 things -- maybe we felt sort of sorted out. We
20 wanted to get back together is one of the main
21 reasons for Michael and Alex's sake. We wanted to
22 give the marriage -- the family another try, family
23 for Michael and Alex's sake.
24 Q David, when you moved back in '94, how did that
25 go when you moved back in?
Page 19
1 A That never really did got off to a great start
2 again. It was still -- the marriage was still
3 shaky, but we were trying to make the best of it.
4 Q Your marriage was shaky. How was your
5 relationship with Michael and Alex?
6 A Oh, that was great. I mean, I done things with
7 them, you know. Spent time with them. That was
8 fine.
9 Q Were you able on the times -- and I know you
10 talked about some of the earlier times, the times
11 when you weren't living in the house, were you able
12 to spend time with them then?
13 A Yes, the children, they never became an issue
14 or battle between me and Susan. When we separated
15 and so forth, the children were never a problem.
16 Q Were you able or did you support financially
17 the boys?
18 A Yes, I did.
19 Q On these times when you were out, were you
20 under some legal obligation at that time?
21 A No, we had never filed for a legal separation
22 or anything. I was just willingly paying Susan for --
23 to support the children.
24 Q After moving back in in '94 on Toney Road, when
25 did things change as far as you living there again?
Page 20
1 What changed as far as that?
2 A I'm sorry, I don't understand.
3 Q When you were back on Toney Road in 1994?
4 A Yes, sir.
5 Q And there came a time when you moved out again?
6 A Yes, sir.
7 Q Could you relate to the jury as far as the
8 divorce? Could you relate that to the jury?
9 A It was on my birthday of '94, July 27th. We
10 had spent the evening out at my great grandmother's,
11 you know, just a little celebration, me and Susan
12 and Michael and Alex, and had a pizza and stuff like
13 that. And then we went back to our house on Toney
14 Road. And we were sitting there. And I think
15 Michael was -- and Alex was in bed, and Michael was
16 still up. Me and Susan was sitting there watching
17 TV and Susan proceeded to tell me that she was
18 unhappy and she didn't want to be married any more
19 and wanted a divorce.
20 Q At that point did she in fact file for the
21 divorce?
22 A Yes, she did.
23 Q Did you and she have an understanding as far as
24 the divorce?
25 A When we talked about it, we agreed that we
Page 21
1 would get a divorce on a one year's separation.
2 Q And, to your knowledge, did she in fact file
3 for the divorce?
4 A Yes, she did.
5 Q And what were the grounds of filing that?
6 A Susan was filing on the grounds of adultery.
7 Q And that was adultery against you?
8 A Yes, sir.
9 Q And ultimately were y'all granted a divorce?
10 Did you finally get a divorce?
11 A Yes, we did.
12 Q And what were the grounds?
13 A I divorced Susan on the grounds of adultery.
14 Q So it was alleged against you, which you don't
15 deny, is that right?
16 A No, sir.
17 Q And then ultimately it was granted as adultery
18 against her, is that correct?
19 A Yes.
20 Q Who was the adultery with against her? Do you
21 know?
22 A Tom Findlay.
23 Q And so going back now through the times when
24 you were separated at the various stages, you told
25 the jury during the marriage you said it had its ups
Page 22
1 and downs. Did you at various times see other
2 people?
3 A I couldn't hear you.
4 Q I said at various times during the marriage
5 when you were home and Susan had moved and all the
6 different things and you had moved out, did you see
7 other people?
8 A Yes, I did.
9 Q Are you proud about that?
10 A No, sir, not at all.
11 Q During the times when you were separated, from
12 your marriage, as I understand, at no time during
13 the three years was there ever a problem with the
14 boys, is that correct?
15 A That's correct.
16 Q And during the times that you were separated
17 from Susan, what, if anything, did you do to try to
18 get her back, or did you want her back?
19 A After -- like after the first separation, I
20 would call Susan on the phone. I practically begged
21 Susan to come back. And during the separation, each
22 separation, I would give Susan cards and put roses
23 in her car when she was at work, and talk to her.
24 And more or less talk to her trying to get the
25 marriage back together.
Page 23
1 Q David, during that, for lack of a better term,
2 rollercoaster period, did you want to get back with
3 Susan?
4 A Yes, I did.
5 Q Up until the incident on the 25th, did you --
6 in your heart, did you want to be back with Susan?
7 A Absolutely.
8 Q You had told -- you told the jury about the
9 flowers and different things that you tried to do.
10 There was an incident that has been testified
11 to by, I believe, Mr. Findlay concerning the time
12 that you got on the phone with him?
13 A Yes, sir.
14 Q Could you relate that to the jury?
15 A That wasn't quite what had happened as Mr.
16 Findlay told, to my recollection.
17 I was at the house that night. I had come in,
18 because there was no dispute at that time between me
19 and Susan about me coming in and out. You know,
20 back at that time there was none. I was in the
21 house that night. I was going to surprise Susan
22 when she came in that night. I had some flowers and
23 some champaign. But I was not hiding in the closet,
24 as it was stated. I was not in there trying to
25 catch her or anything. I was going to surprise her
Page 24
1 after she got in that night.
2 Q And then what happened when she came in?
3 A Susan came in, and I was standing in Michael's
4 room in the shadows, so she couldn't see. And she
5 came in and put Alex to bed, because I guess he had
6 fell asleep on the way home. And then I was going
7 to come out and surprise her, but she got on the
8 phone. And so I said well, I guess she's calling
9 her momma to let her know she's home. And she
10 didn't. She called out to my grandmother's looking
11 for me. And, of course, they told her I wasn't
12 there.
13 And then she dialed another number. I said
14 well, now I guess she's calling her momma to let her
15 know she's home. Like I could tell right from the
16 very first that she wasn't talking to her mother.
17 Q And how did that make you feel? How did you
18 react?
19 A It hurt, and, of course, made me jealous. It
20 made me -- I don't know, I actually I was kind of
21 shocked, but it made me jealous and it hurt.
22 Q And so did you ultimately get on the phone with
23 Mr. Findlay?
24 A Yes. During the course of the conversation, I
25 could eventually tell from the pieces that I could
Page 25
1 hear who Susan was talking to. And, yes, I then got
2 on the phone with Tom Findlay.
3 Q David, this may again be something that you are
4 not proud of, but did you threaten Mr. Findlay?
5 A Yes, I did.
6 Q David, were there other men that Susan may have
7 seen that you threatened during this three year
8 period?
9 A Yes, there was.
10 Q And why was it that you were threatening these
11 men that were seeing Susan?
12 A Sir?
13 Q Why were you threatening these guys?
14 A Because, as I stated earlier, even up until the
15 25th I wanted our marriage to work. And I know I
16 made some bad calls, but more or less I wanted the
17 marriage to work. And someone else come between me
18 and Susan, it made me jealous and it hurt very -- it
19 hurt.
20 Q David, you had indicated when talking about the
21 incident with the flowers and hiding in the bedroom,
22 that there was no dispute about you coming and going
23 into the house.
24 How often do you think that you were at the
25 house during the last year, for example, at Toney
Page 26
1 Road?
2 A It was frequently. I know -- you know, after
3 we had talked about not me coming in without her
4 permission, not then, but before that it was
5 frequently.
6 Q Let me ask you this. Ultimately in your
7 divorce papers, was there a mutual restraint, and
8 restrained on you giving notice that was addressed?
9 A Yes.
10 Q Could you tell the jury what that entailed?
11 A In the divorce where Susan was filing for
12 divorce on the grounds of adultery, I could not
13 afford an attorney, so we were just using Mr. Tom
14 White here in Union. And I had talked with Tom
15 about the divorce, even though Susan had hired him,
16 and it was to my understanding that it wasn't just a
17 restraining order against me. It was a mutual
18 restraining order from both of us.
19 And in the stipulation that that were in the
20 divorce papers were just, you know, something that
21 was common in a divorce. It was nothing strictly
22 against me.
23 Q Now, let me ask you. There was a portion
24 directly as to you that said that you needed to
25 give, I think, like forty-eight hours notice before
Page 27
1 you came, as far as visitation, for the boys?
2 A Yes, sir.
3 Q Were there times during the period when you
4 would be separated that you would come and take care
5 of the boys, either there at the house or back at
6 your place?
7 A Yes, sir.
8 Q How often do you think that happened?
9 A I saw the kids, I would say, on an average of
10 four days a week, at least.
11 Q David, as far as the situation with your
12 marriage, did you or Susan ever attempt to seek any
13 counseling or any help as far as trying to keep your
14 marriage together?
15 A There was -- I think during our last -- if I
16 remember right, when we got together during the last
17 part of '94, we did talk about getting marriage
18 counseling. And I had asked Susan -- Susan
19 suggested that Beverly Russell knew a man who would
20 be a good counselor for us. And I suggested that
21 Susan get in touch with him numerous times, but she
22 said either she would forget or she just didn't
23 think about it. And so ultimately we never actually
24 had any counseling.
25 Q David, when you tried to pursue Susan to get
Page 28
1 her back with roses and flowers, how did she react
2 to that?
3 A She wouldn't accept it.
4 Q David, I'm going to draw your attention now
5 back on October 25th.
6 A Yes.
7 Q Do you remember how you got notified of the
8 dissapearance of Michael and Alex?
9 A Yes, I do.
10 Q Could you relate that to the jury, please?
11 A I was working that night. I think I was
12 supposed to work third shift. And they announced
13 over the PA "David, you have a phone call." And it
14 was probably around ten after nine that night.
15 Q And do you recall who the call was from and
16 what was said?
17 A Yes, when I first answered the phone, Susan was
18 on the phone. And I -- she was talking. I couldn't
19 understand what -- exactly what she was saying. She
20 was upset and I couldn't understand.
21 And so then Ms. McCloud got on the phone and
22 she wasn't much better.
23 And then ultimately Sheriff Wells got on the
24 phone and explained to me what was going on.
25 Q And so what did you do at that time?
Page 29
1 A I immediately left and proceeded over to Ms.
2 McCloud's residence.
3 Q So you went out to Ms. McCloud's residence out
4 on Highway 49?
5 A Yes, sir.
6 Q And what was your feeling, David, at that time?
7 What was -- could you relate for us on what was
8 going on?
9 A I was scared. I was -- I really didn't have
10 much of a feeling. It was numbness. I didn't
11 exactly know. I just knew that what, you know, the
12 kids were gone, and it was an alleged carjacking.
13 And I was just trying to get out there to find out
14 what was going on. I mean, I wasn't really -- it
15 was just a one focus mental state at that time.
16 Q David, and what was that one focus?
17 A To find out what had happened to the kids.
18 Q David, that nine days that -- before Susan's
19 confession, when you were looking for Michael and
20 Alex, do you recall those nine days?
21 A Some of it. Not all of it.
22 Q And when you say you don't recall all of it,
23 can you describe what was going on? What would keep
24 you from not recalling all of it?
25 A I can remember things, like some of the -- some
Page 30
1 of the interviews, but not all of them. I can
2 remember some -- I don't remember exactly even all
3 the people that I saw during that time. But I can
4 remember sometimes being at the Russell home the and
5 situation and things. But most of that part I don't
6 have much memory on it.
7 Everything -- all the days run together. There
8 I can remember times when I didn't know what day it
9 was during the week. It was -- it was just all
10 running together.
11 Q David, do you remember the first night after
12 you left the McCloud's residence giving an interview
13 with you and Susan on Channel 7?
14 A Yes, I do.
15 MR. POPE: Your Honor, maybe during the break,
16 but at the appropriate time, I would move to add the
17 information from Mr. Smith that was redacted from
18 the previous tape.
19 THE COURT: Well, if this is where you would
20 intend to go into that --
21 MR. POPE: That's not that particular tape,
22 Your Honor. If I could go about five more minutes,
23 I would find a good stopping place.
24 THE COURT: That would be fine.
25 MR. POPE: At the appropriate time I would have
Page 31
1 the other tape.
2 Q David, as best as you can recall, tell the jury
3 what happened when you left Shirley McCloud's house
4 that night.
5 A Me and Susan were -- well, we were in my car
6 and we had to go by the Toney Road to get Susan some
7 personal items she said she needed to go before she
8 could go down to her mother's. We had agreed that
9 that's where we were going to stay while the search
10 for the boys were continuing.
11 On the way to Toney Road, Susan made a very
12 inappropriate statement or remark to me.
13 Q What's that?
14 A We were driving, and Susan said "I hope you
15 don't get mad if Tom Findlay comes to see me down to
16 momma's," is what she told me.
17 Q You said that's inappropriate. Why do you
18 think that's inappropriate? You knew she was seeing
19 Tom Findlay?
20 A Yes. Because our kids were gone, and I didn't --
21 I didn't care if Tom, or anybody else, come down to
22 see Susan. My main focus was the kids were missing
23 and we had no idea where they were.
24 Q And, of course, that then would be the
25 beginning of the nine day period?
Page 32
1 A Yes, sir.
2 MR. POPE: Your Honor, this may be a good
3 stopping point.
4 THE COURT: Very well then. Ladies and
5 gentlemen of the jury, we will take our mid-morning
6 break, and if you will, please, don't discuss the
7 testimony. We will start again in about fifteen
8 minutes.
9 May I have order, please?
10 May I have order, please?
11 May I have order, please?
12 (The following takes place outside the presence
13 of the jury panel)
14 (Proceedings recessed)
15 (Proceedings reconvened)
16 THE COURT: All right, sir, is the State ready
17 to proceed?
18 MR. POPE: Yes, sir. We are going to get these
19 marked. I believe the defense has reviewed the two
20 exhibits, or the tapes, that we would have as to
21 Michael and Alex -- or as to Michael's haircut, and
22 Michael and Alex on the porch. Also the third tape
23 is the Channel 7 unredacted or in its entirety. And
24 we will also move that into evidence, all three of
25 them.
Page 33
1 THE COURT: Any objection by the defense?
2 MR. BRUCK: No objection.
3 THE COURT: Very well. We will proceed at this
4 time. Go ahead and mark them and then we will bring
5 the jury in.
6 (Video Tape marked as State's Exhibit No. 99
7 for identification)
8 (Video Tape marked as State's Exhibit No. 100
9 for identification)
10 (Video Tape marked as State's Exhibit No. 101
11 marked for identification)
12 (The following takes place in the presence of
13 the jury panel)
14 THE COURT: All right, counsel, you may
15 continue.
16 MR. POPE: If it please the court, Your Honor.
17 Q David, when we broke, you were relating to the
18 jury about the nine days when you had received the
19 first call?
20 A Yes, sir.
21 Q I would like you to back up. When was the last
22 time that you had talked to Susan prior to receiving
23 the call that Michael and Alex were missing?
24 A Sometime between, I guess, 6:00 and 6:30 that
25 evening.
Page 34
1 Q That was the evening of?
2 A Of the 25th.
3 Q The 25th?
4 A Yes, sir.
5 Q And could you relate to the jury what that call
6 entailed?
7 A I called Susan at her home. I was at work that
8 evening. And I called Susan and as soon as she
9 answered the phone I could sense something was wrong
10 by her voice. And I asked her "what was the matter?
11 And she said "nothing." And again I asked her
12 again, I said "well, Susan I can tell something is
13 wrong. You know, what's the matter?" And she said --
14 she said "well, there is, but I can't talk to you
15 about it." And I said "well, you can tell me
16 anything, Susan. I mean, we can talk about it."
17 And she said "no, not this."
18 And it ended up I told her that I would call
19 her back later, and she said okay.
20 Q Did you offer to come over?
21 A Yes, I did. I did ask her "do you want me to
22 come over, or anything," because at the time I was
23 able to, if I had to. She said no, that she was
24 okay.
25 Q Were you able to talk to Michael and Alex?
Page 35
1 A No. I did not ask to.
2 Q Did you hear them?
3 A I could hear them in the background, yes.
4 Q What were they doing?
5 A They were whining. I could hear them fussing
6 and whining. They were in an ill mood.
7 Q You said you could tell that something was
8 wrong as far as Susan. Was she openly upset, or was
9 she crying, or just relate to the jury when you say
10 you could sense.
11 A I could just tell by, you know, from knowing
12 Susan for as many years as I did, I could tell by
13 her voice that something was bothering her,
14 something was wrong. I mean, she wasn't hysterical
15 or crying, or anything, but I could tell by her
16 voice that something was the matter.
17 Q If you would relate to the jury that during
18 that three year period that you wanted to be back
19 with Susan, that night did you talk and offer to
20 come over, did you want to be back with her then?
21 A Yes, I did.
22 Q Well, go ahead and tell the jury about the nine
23 days. Could you relate to the jury how your
24 relationship with Susan was during the nine days?
25 A The first couple of days, we were -- you know,
Page 36
1 we were -- we -- we came together for Michael and
2 Alex as a father and mother, more or less. Not so
3 much as a husband and wife, but as a father and
4 mother trying to get the kids back.
5 The first few days it wasn't -- you could still
6 sense that between, you know, distance, that barrier
7 between me and Susan. But on into after -- on into
8 the end of the nine days, we began to become closer,
9 more or less, of husband and wife again.
10 Q Was there times when you had to defend her or
11 comfort her as far as her family or the media?
12 A Defend her?
13 Q Yes.
14 A Yes.
15 Q And could you relate that to the jury?
16 A Well, there were, you know, claims about things
17 surrounding her testimony and things. And, you
18 know, I told her, more or less, "Susan, don't worry
19 about that. You know, that's no big deal. We will
20 deal with that."
21 And there was an incident on one occasion where
22 Linda had kind of got upset with Susan one morning.
23 And I, you know, kind of stepped in between them,
24 because Susan was going through a lot at that time
25 and I didn't want anybody, you know, or anybody else
Page 37
1 doing any else harm Susan than what had already been
2 done, and I was trying to protect her.
3 Q When you said Linda got upset with her, what
4 was Linda asking her to do?
5 A Linda, she said something to the effect --
6 MR. BRUCK: Objection, Your Honor. I think I
7 object to the relevancy of what Susan's mother said.
8 I mean, I don't know, but it raises a question.
9 THE COURT: Perhaps we need to take it up
10 outside the jury's presence.
11 Ladies and gentlemen, I'll have to ask you to
12 go to the jury room for me for just a moment.
13 Please don't discuss this matter. We will be right
14 back with you.
15 (The following takes place outside the presence
16 of the jury panel)
17 THE COURT: May I have order, please?
18 All right. You can go ahead and answer the
19 question now, please, sir.
20 A We were at the armory. That's on this
21 particular morning --
22 THE COURT: I'm sorry, you were at the --
23 A The National Guard Armory.
24 THE COURT: Armory, okay.
25 A Yes. And we were with Sheriff Wells, and
Page 38
1 family members were present. And something -- I
2 don't remember exactly recall what was said, but
3 Linda just kind of like took Susan and kind of shook
4 her and said "if you know something, you better tell
5 the truth so we can find Michael and Alex," is what
6 happened.
7 Q Then had you to intervene?
8 A Yeah.
9 Q You stood up for Susan?
10 A Me and Susan left a minute or two after that
11 and we went into another room.
12 THE COURT: Counsel?
13 MR. BRUCK: I object on the grounds of hearsay,
14 Your Honor.
15 THE COURT: I beg your pardon?
16 MR. BRUCK: We object on the grounds of
17 hearsay. It's intended is show the opinion
18 statements made by Susan's mother on this witness.
19 THE COURT: Mr. Pope?
20 MR. POPE: Your Honor, it's not for the truth
21 of the matter asserted. It's merely to show the
22 context of his actions. It's not that -- I mean,
23 Linda Russell said "if you know the truth, tell it."
24 It's a neutral statement. It's not saying that you
25 do know the truth. It's not saying that you don't
Page 39
1 know the truth. It says "if you know the truth,
2 tell it." It's not the words that are conveying
3 anything that would be hearsay.
4 THE COURT: I would overrule. I agree with
5 counsel for the State. I will allow it.
6 If you will bring us the jury, please.
7 It's not submitted for the truth of the matter.
8 I'll allow it.
9 (The following takes place in the presence of
10 the jury panel)
11 THE COURT: Yes, sir, would you like to reask
12 your question?
13 MR. POPE: Yes, sir.
14 Q David, there was a time when you, in essence,
15 stood up for Susan involving a situation with her
16 mother. Could you relate that to the jury, please?
17 A Yes. It was one of the mornings that we were
18 at the National Guard Armory here in Union, and
19 there was a lot of family members present, some
20 friends, and I think Sheriff Wells, and maybe
21 another law enforcement officer was in the room.
22 But I don't recall what was said to start it,
23 but Linda kind of like grabbed Susan by the arms and
24 shook her and said "you need to tell the truth. You
25 know, you need to tell us what you know so we are
Page 40
1 able to find Michael and Alex."
2 Q And what did you do as a result of Linda saying
3 that to Susan?
4 A Well, again, like I said, that's when I kind of
5 stepped in between. I put my arm between them, and
6 it wasn't a minute or two after that me and Susan
7 left and went to another room.
8 Q During the period of the nine days, what, if
9 any, support did you give Susan as far as this
10 disappearance of Michael and Alex?
11 A Me and Susan, we stayed close. I mean, I was
12 there when she needed to cry, or when she was upset,
13 and I was there. She was there for me. And we were --
14 we stayed together most of the time trying to help
15 each other, support each other.
16 Q Was there ever a time when discussions came as
17 far as Michael and Alex returning or not?
18 A Yes, there were.
19 Q Would you relate those to the jury?
20 A There were on a couple of occasions when Susan
21 would be -- just would be down and out. And she
22 would make remarks to me like, you know, "David,
23 it's been so long that they are not going to find
24 them," or "David, they are not coming back." And I
25 would just -- sometimes I would just take Susan by
Page 41
1 her face and just look at her in her eyes and I
2 would say "Susan don't even think that. They are
3 okay. They are fine. We will have them home pretty
4 soon. Everything is going to be okay."
5 Q Were there times during that nine days, or at
6 some point at the end -- toward the end of the nine
7 days that she related to you any future as far as
8 your marriage with her?
9 A Towards the end of the nine days, me and Susan
10 did start discussing getting back together. And she
11 said things like "if the kids come back," or "when
12 the kids come back, I would like for us to -- "maybe
13 we can get back together and give this marriage
14 another try."
15 Q Did she indicate that that was kind of a
16 contingency - if the kids came back, then you would
17 get back together?
18 A It was if they came back or when they came back
19 is what was said.
20 Q David, if you could, to the best of your
21 ability, relate to the jury mentally, emotionally,
22 what occurred to you during those nine days.
23 A Again, as I said, that nine days was -- it was --
24 it was basically total chaos. The days run
25 together. Long days, short nights. Sleepless
Page 42
1 nights. Didn't get very much sleep. It was -- it
2 was wearing me down. It was -- it was -- it was
3 tough. It was just -- it was tough trying to make
4 it from day to day and not knowing where your kids
5 were, not knowing if they were dead or alive. You
6 know, no leads hardly at all. There was no new
7 information hardly about anything pertaining to the
8 car, or the kids, or nothing. It was -- it was just
9 a hard time for those nine days.
10 Q Do you remember back, I believe it was on about
11 Wednesday of that second week, when some hope came
12 through about a sighting and possibly identifying
13 Alex in Washington?
14 A Yes.
15 Q Can you relate to the jury what happened on
16 that and how you felt?
17 A Well, that was one that -- I can recall that
18 was about one of the only good leads we had, you
19 know, during that time. It wasn't but really a few,
20 but I was very excited. I mean, I thought, you
21 know, because it sounded -- from the phone
22 conversation we received and what I was told, it
23 sounded like a pretty good lead that that might have
24 been Alex. And we was -- I was excited and hoping
25 that they at least found something or found him
Page 43
1 mostly.
2 Q How did you feel when you got the news that it
3 wasn't him?
4 A It's -- I guess the phrase your world comes
5 crashing down around you. It came down crashing
6 down around me again.
7 Q During this time of the nine days, you were
8 staying at the Russell's residence with Susan?
9 A Yes.
10 Q Were you with her pretty much every day?
11 A Yes.
12 Q Any time during that time did she indicate to
13 you that the facts were any different than the
14 carjacking incident that she related?
15 A No, sir, she did not.
16 Q Any time during that time did she indicate to
17 you that she had attempted suicide?
18 A No, sir, she did not.
19 Q David, you went on television with her the
20 morning of the Thursday, the 3rd, I believe it was?
21 A Yes, sir.
22 Q And why did you go on television that morning
23 on the 3rd?
24 A It was -- I -- I didn't exactly like going in
25 front of cameras. That was a odd feeling to have
Page 44
1 cameras and lights for the nine days, all the media
2 attention we had. And the reason I was doing it was
3 to keep the focus and keep people looking for
4 Michael and Alex. And I did not want anybody across
5 the nation, across the globe, to give up looking for
6 Michael and Alex.
7 Q On that morning when you were on the
8 television, did you have any indication Susan was
9 involved in this?
10 A No.
11 Q Did you feel that she was involved in this?
12 A No.
13 Q Do you recall that afternoon, could you relate
14 to the jury how you heard that Susan had confessed
15 to the crime?
16 A I guess it was around 4:30, 4:00, 5:00. I
17 don't know. Like I said, they run together. And it
18 came over across the TV screen. The television was
19 on. Something about an alleged confession by Susan.
20 And I didn't know what they were talking about. I
21 hadn't heard anything. I hadn't heard nothing about
22 it. And more or less was freaking out. I mean, you
23 know, I didn't know what they were talking about.
24 And then it came over the screen or the
25 television of Sheriff Wells making the announcement
Page 45
1 about they arrested Susan, and that's how I find out
2 about her confession.
3 Q David, do you recall what you felt when you
4 found out when you heard it from the sheriff?
5 A (no response)
6 Q Would you like some water?
7 A No. No.
8 I don't know how I felt. It -- all my hopes,
9 all my dreams, everything that I had planned the
10 rest of my life came to an end that day, and I
11 didn't know what to do. It hurt. Everything that I
12 had planned on. I mean, my life with the kids was
13 gone. And I didn't know how to handle it. I
14 couldn't take it. I didn't know what I was supposed
15 to do from that instant on.
16 THE COURT: Mr. Foreman, ladies and gentlemen,
17 let's take a couple of minutes break. We will let
18 you all go to the jury room at this time for a
19 moment, and please don't discuss this matter. We
20 will start back in just a couple of minutes.
21 (The following takes place outside the presence
22 of the jury panel)
23 THE COURT: We will take a five minute recess.
24 MR. POPE: Will you allow him to step down,
25 Your Honor?
Page 46
1 THE COURT: Yes, sir.
2 THE COURT: We will take a five minute recess.
3 (Proceedings recessed)
4 (Proceedings reconvened)
5 THE COURT: All right, sir, you can bring us a
6 jury.
7 (The following takes place in the presence of
8 the jury panel)
9 THE COURT: Yes, sir.
10 MR. POPE: If it please the court, Your Honor?
11 THE COURT: Yes, sir, you may continue.
12 Q David, I want to move away from the night of
13 the 3rd.
14 After that night, after that night, did the
15 media pressure and the public pressure, did it
16 continue, or did it disappear after that night?
17 A It continued for awhile, several weeks.
18 Q And are you still in the same status after that
19 night, as far as mentally and emotionally?
20 A No, sir, I'm worse.
21 Q David, during that time did you begin to
22 receive media offers for appearances and interviews
23 and things such as that?
24 A Yes, sir, I did.
25 Q Could you relate that, how that took place,
Page 47
1 what happened, for the jury?
2 A There was a lot of offers from the tabloid type
3 shows, like Inside Edition, Current Affair, to do
4 interviews for a lot of money. I wouldn't do any.
5 Q Did they continue for a period of time?
6 A Yes, sir, they did.
7 Q How about a movie --
8 A Up to just recently.
9 Q I'm sorry?
10 A Up to just recently, they made an offer.
11 Q Could you give the jury the idea of the type of
12 money that they are talking about that they were
13 offering for movie rights and various things?
14 A I don't know about the movie rights, but some
15 of the others were like $50,000, $70,000 for thirty
16 minutes, for an hour.
17 Q David, now, ultimately you had written and will
18 be published a book that you have written, is that
19 correct?
20 A Yes, sir.
21 Q And were you paid to write that book?
22 A Yes, sir.
23 Q Can you tell the jury what the financial
24 arrangement was and what you did with the money?
25 A I'm keeping about around $20,000 to get me
Page 48
1 through the trial, to help reestablish after the
2 trial is over. But all the rest of the money, every
3 other cent, is going to children's charities.
4 Q How much do you anticipate that is that would
5 be going to the children's charities?
6 A I don't know. Depends on the book. But maybe
7 two, three hundred thousand dollars. I don't know.
8 It's hard for me to say.
9 Q David, did you write that book to make money
10 off your children's death?
11 A No, sir.
12 Q I want you to tell this jury why in the world
13 you wrote a book about what has occurred.
14 A First of all, it's because so many people, when
15 it first happened, were portraying Susan to be the
16 victim of what happened, and it wasn't true.
17 Michael and Alex were the victims.
18 And also it's just -- I went to therapy and it
19 hasn't done very much good, so it was another way
20 that I could express my emotions about what happened
21 and helped me to talk about it that way.
22 Q David, you say $20,000 so you can get
23 reestablished. What are you going to try to do
24 after this is over?
25 A I'm going to try to put my life back together
Page 49
1 the best of what I can. I'm going to try to find
2 some starting point, I guess, and start up again.
3 Q David, I want to quick talk about 1994, October
4 and November.
5 THE COURT: There is some more Kleenex in that
6 box, if you would like. Why don't you sit back and
7 take a couple of breaths so the jury can understand
8 what you are saying.
9 A All right.
10 Q If you can, I want to quit talking about this
11 crime and quit talking about October, November, and
12 I want to go back and I want to tell the jury about
13 Michael and Alex. Okay?
14 A (shaking head yes)
15 Q So let's forget this part and let's talk about
16 them.
17 Can you tell the jury during the time -- I
18 think you testified that off and on through the
19 years that you were in this house, or Susan had
20 moved moved, or vice versa, you were in and out?
21 A Yes, sir.
22 Q Can you tell the jury the time that you were
23 able to spend with Michael and the time that you
24 were able to spend with Alex, how that was, and
25 things that you did, and just anything that you can
Page 50
1 to tell them about Michael and Alex?
2 A Michael was -- he was what we considered to be
3 a daddy's boy. He liked -- Michael liked to do
4 anything that, you know, the guys were doing. He
5 would work out in the garage, or doing something in
6 the yard, or any little things. I mean, cut the
7 grass, rake grass. Michael liked to -- he liked to
8 be with his daddy doing whatever I was doing.
9 Alex. Alex was young. He really didn't have
10 his own personality as much as Michael. But Alex
11 basically just stuck with Michael. He just followed
12 him, done what Michael did, and they just played
13 together all the time.
14 Q How did Michael treat Alex?
15 A Michael was a very good big brother to Alex.
16 He would look after him. He would watch over him.
17 He would protect him from other kids at the nursery.
18 The bigger kids would pick on Alex, Michael would
19 try to intervene and look out for him.
20 He always included Alex in the things that he
21 was doing. He never tried to, you know, push him
22 away or anything. He didn't mind if Alex was doing
23 things together with him.
24 Q Did Michael have favorite toys or favorite
25 things to do? What did he like to do?
Page 51
1 A Michael had -- I don't necessarily think of any
2 particular special toy that Michael liked to play
3 with. He was like most kids. If you get a new toy,
4 they would play with it for awhile and get tired of
5 it for something else.
6 But there was one thing that come to mind a lot
7 about Michael. No matter where he was at, whether
8 he would be with Susan, he would always -- if he was
9 in the house, he always had to have a movie playing.
10 He some favorite movies, and he always liked to have
11 a movie playing. Not necessarily that he would
12 watch it, but he would like to have one in the
13 background while he was inside.
14 Q Did he have some favorite movies that he liked?
15 A Michael, I guess -- like I said, I have had to
16 watch Home Alone II and Mrs. Doubtfire five hundred
17 times, over and over, but he watched those. And he
18 liked a lot of animated movies. Like he had a
19 favorite. It was Robin Hood. He would sit and
20 watch it.
21 And he liked the ones like 101 Dalmatians.
22 Michael always would -- he would call it "101
23 Dalmashaons". He liked that movie, because he
24 watched it over and over again.
25 Q What kind of things would you and Michael and
Page 52
1 Alex do the time that you spent with him? I mean,
2 would you watch it at the Toney Road house, or your
3 apartment, or what would you do?
4 A Sometimes I would watch them at the house.
5 Susan didn't mind if I watched them. Or when I was
6 at to my grandmother's living with her, and I would
7 take them out there, and we would play outside in
8 the yard and stuff.
9 But after the last separation, I moved into
10 Lakeview College Apartments, I didn't have a back
11 yard or anything to play in, so I used to take them
12 to Foster Park a lot and play with them down there.
13 Q David, you provided some video today that you
14 had of Michael's first haircut?
15 A Yes.
16 Q And Michael and Alex playing back in May of
17 '94?
18 A Yes.
19 Q State's Exhibit 101 and 100, you have had a
20 chance to look at these?
21 A Yes, I have.
22 Q And is that, in fact, what they are of Michael
23 getting his haircut with you and Susan, and then
24 Michael and Alex playing?
25 A Yes, that's correct.
Page 53
1 MR. POPE: Your Honor, I would move these into
2 evidence.
3 THE COURT: I believe that they are already in
4 evidence, but --
5 MR. BRUCK: If Your Honor please, in fairness,
6 I think the record should reflect that the videos of
7 Michael were provided by Susan's mother Linda
8 Russell.
9 THE COURT: Very well.
10 MR. POPE: No objection.
11 THE COURT: Very well then. They are now in
12 evidence, State's Exhibit 101 and 100.
13 Q David, you reviewed these videos. They were
14 provided by Linda Russell, but it's Michael and Alex
15 playing on the porch, and Michael getting his first
16 haircut with you and Susan, is that right?
17 A Yes, I looked at them. That's correct.
18 Q David, I'm going to ask now, if I could show,
19 you a series of photos that you provided for us, is
20 that correct?
21 A Yes, sir.
22 Q What I would ask you to do - and you are going
23 to have speak up - if you could step down, and I
24 hand them to you, if you could just tell the jury
25 what it depicts and what it indicates? Would that
Page 54
1 be all right?
2 A Yes, sir, I'll try.
3 (Witness David Michael Smith off the witness
4 stand)
5 Q You need to make sure that each juror has the
6 opportunity to see.
7 I first show you what's been marked State's
8 Exhibit 51. Take a look at that and if you could
9 point it out to the jury.
10 A This is a picture --
11 THE COURT: If you could now, Mr. Smith, I need
12 for you to keep your voice real high so the court
13 reporter can hear what you are saying and take down
14 what you are saying. And so keep about a foot or
15 so, you know, so hold the picture out for the jury
16 to see. Once you have said what it is, then just
17 move it along so that the jury can see it. Let's do
18 it that way.
19 THE WITNESS: Hand it to them?
20 THE COURT: No, I mean just walk down the rail
21 and show them the photo. And then after -- they are
22 in evidence. Then the jury will have them in the
23 jury room and they can look at them more carefully.
24 All right, sir?
25 THE WITNESS: Yes, sir.
Page 55
1 A This is a picture of me and Michael sitting on
2 Beverly Russell's tractor down to his house. Just
3 reflects how much Michael liked to be outside and
4 doing -- being out in the outdoors.
5 Q David, I know you brought a number of pictures
6 that are in evidence. I don't think you need to go
7 through every one. The jury will have an
8 opportunity to see them. If you could look through
9 and maybe pick a couple that are special. I know
10 you picked these out, but indicate some to the jury
11 and describe them.
12 What we will need to do, I'll need to identify
13 the number then. If you could tell the jury. This
14 would be State's Exhibit 53.
15 A This is the baby picture of Alex at six months
16 old. It just shows basically how he was. He was so
17 young.
18 Q State's Exhibit 55?
19 A This was a picture of Alex and Michael sitting
20 out at the Russell's. This is Michael being his
21 typical big brother.
22 Q David, next would be State's Exhibit 57.
23 A It's a picture of Michael playing, smile on his
24 face, and shows what a happy little fellow he was.
25 Q If you need to take a break, you tell me.
Page 56
1 This is State's Exhibit 66.
2 A This is Michael on his first Easter, and his
3 first Easter basket that he got.
4 Q State's Exhibit 67.
5 A This is a picture of Michael and me when me and
6 Susan were together the last time in '94. This is
7 Michael's first trip to Myrtle Beach. We stayed
8 right at the ocean on the beach.
9 Q State's Exhibit 69.
10 A A picture of Michael enjoying bath time. He
11 always like taking a bath. Shared with Alex. This
12 is a picture of Michael.
13 Q David, you said that Michael always like taking
14 baths. Was there anything as far as a bath -- if
15 you could turn where you could face the jury. Is
16 there anything as far as a bath that he had problems
17 with?
18 A No, he enjoyed taking a bath pretty much. He
19 did go through a period where he didn't like to get
20 his hair washed, didn't like the water or anything
21 getting in his face. But other than that, he didn't
22 mind taking a bath. He enjoyed getting his hair
23 wet. He went through a phase during that time.
24 Q What did you have to do during that time to
25 help him out?
Page 57
1 A It was a pretty big struggle trying to keep him
2 from climbing out of the bathtub, because he didn't
3 like it so much. But when he was smaller, you just
4 have to always like cover it up so water wouldn't
5 get in his eyes and you had to pretty big struggle.
6 But then as he got older, you could wash it and he
7 would lay his head back in the water and wash the
8 shampoo out. If you got his head down too far, he
9 became very uncomfortable and he would raise up and
10 you would have to coax him back down in the water to
11 get the rest of the shampoo out of his hair.
12 Q David, we have two more. State's Exhibit 59.
13 A A picture of Michael and Alex playing together.
14 They could play for hours in a simple clothesbasket.
15 Q David, the final one is State's Exhibit 64.
16 A This is a somewhat familiar picture to
17 everybody, but this is one of the last photos of how
18 the kids looked before everything happened.
19 (Witness David Michael Smith back on the
20 witness stand)
21 Q David, when was the last time that you saw
22 Michael and Alex alive?
23 A That was Sunday, before the 25th, was the last
24 time that I had a chance to spend time with them.
25 Q Can you tell the jury how that came about, what
Page 58
1 you got to do with the boys?
2 A I believe it was around noon. I picked up
3 Michael and Alex at Susan's house, and I kept them
4 that day. And we went to my apartment. It was a
5 nice day. I went to my apartment and we got some --
6 I got some old loaf bread I had and we went down to
7 Foster Park and we fed the ducks and we played on
8 the equipment, and they played on the sliding
9 boards. And we just spent maybe an hour or two down
10 to Foster Park.
11 And then we went back to my apartment. And I
12 believe we all took a nap for a little while. And
13 after we all got up, we just played, played in the
14 apartment, played with blocks and books, and just
15 wrestled on the floor, stuff like that. And I fixed
16 supper, and I got up and gave them a bath, and got
17 them ready for Susan to pick them up that night.
18 Q David, you buried Michael and Alex together?
19 A Yes, sir.
20 Q Why did you do that?
21 A Because they were so close together when they
22 were coming up. And because they died together.
23 And I just wanted them always to be together.
24 Q Could you tell the jury what you chose to put
25 on their tombstones?
Page 59
1 A Michael used to always have this game we used
2 to play where you would come up and say -- -- I
3 would claim that "Alex was my brother." And Michael
4 would say "no, he was my brother." And I would say
5 "well, then I love him." And he said, "no, I love
6 him." And we would just go back and forth. And
7 when Michael would always win, "he would say that he
8 was my brother, and I love him." And I had that put
9 on the headstone under Michael's name, because he
10 did love his brother.
11 Q David, I think you have already done this, but
12 could you tell the jury what impact the night of
13 October 25th has had on you and your life and your
14 family?
15 A Because of what happened I have had nightmares.
16 I have had to go to a psychiatrist. I don't know
17 what I'm supposed to do without my kids. It wasn't
18 supposed to be like this.
19 I find myself in the middle of things that
20 sometimes where I make wrong decisions when I'm
21 trying to drive because I can't keep focused.
22 And everything I had planned. Teach them how
23 to play ball. Take them fishing. Teach them to
24 ride a bike. Watch them go to school their first
25 day. Watch them grow up. All that has been ripped
Page 60
1 from me, and I don't know what I'm supposed to do
2 without them.
3 MR. POPE: We would have no further questions.
4 THE COURT: All right. Very well then. Ladies
5 and gentlemen of the jury, I believe this is an
6 appropriate time to break for lunch. We will come
7 back again at two o'clock this afternoon.
8 In the interim, I would ask that you please not
9 discuss this matter, and we will see you all at two
10 o'clock this afternoon.
11 Everyone please keep your seats while the jury
12 is leaving.
13 (The following takes place outside the presence
14 of the jury panel)
15 (Whereupon, Defendant Susan Smith was being
16 taken out of the courtroom when Defendant Susan
17 Smith said I'm so sorry, David.)
18 THE COURT: All right, we would be in recess
19 until two o'clock this afternoon.
20 (Proceedings recessed)
21 (Proceedings reconvened)
22 * * * * *
23 THE COURT: Is the State ready?
24 MR. POPE: State is ready, Your Honor.
25 THE COURT: Defense ready?
Page 61
1 MR. BRUCK: Yes, sir.
2 THE COURT: Mr. Smith, if you will come back to
3 the stand for me, sir.
4 (Witness David Michael Smith back on the
5 witness stand)
6 THE COURT: If you will bring us the jury,
7 please, and we will proceed with cross.
8 (The following takes place in the presence of
9 the jury panel)
10 THE COURT: Good afternoon, ladies and
11 gentlemen of the jury. I hope that y'all had some
12 time to rest, and we will continue at this time with
13 the testimony. We were at the stage of
14 cross-examination.
15 Counselor, you may have proceed.
16 MR. BRUCK: I don't have any questions for you
17 Mr. Smith. Thank you.
18 THE COURT: All right, Mr. Smith, you may come
19 down, sir.
20 * * * * *
21 (END OF REQUESTED TRANSCRIPT OF RECORD)
22
23
Page 62
CERTIFICATE
I, the undersigned, Michael R. Watts, Official
Court Reporter for the Seventh Judicial Circuit of
the State of South Carolina, do hereby certify that
the foregoing is a true, accurate and complete
Transcript of Record of all the proceedings had and
evidence introduced in the testimony of David
Michael Smith, of the captioned cause, in the Court
of General Sessions for Union County, South
Carolina, on the 25th day of July, 1995.
I do further certify that I am neither of kin,
counsel nor interest to any party hereto.
August 2, 1995
___________________________________
Michael R. Watts
Circuit Court Reporter
Page 63
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