Bart Proctor — Direct/Cross
136 linesJUDGE NEWMAN: You can call your next witness.
MR. WATERS: Thank you, Your Honor. The State calls Bart Proctor.
The witness, BART PROCTOR, was first duly sworn and testified as follows:
COURT CLERK: If you would, please, sir, sit in that chair over there. State your full name for the record, spell your last name, and then speak into the mic.
BART PROCTOR: My name is Barton Proctor, P-r-o-c-t-o-r.
DIRECT EXAMINATION
BY MR. WATERS:
MR. WATERS: Mr. Proctor, good afternoon.
BART PROCTOR: Afternoon.
MR. WATERS: Very quickly tell the jury. Are you Marian Proctor's husband?
BART PROCTOR: For thirty-seven years.
MR. WATERS: Thirty-seven years? And obviously over the years as being part of this family, had you gotten to know Maggie and gotten to know Paul and gotten to know the defendant, Alex Murdaugh?
BART PROCTOR: I have.
MR. WATERS: I don't want to belabor the points, but in the aftermath of Maggie and Paul's murder, were you also privy to some of the conversations that Alex had that your wife related to this jury today?
BART PROCTOR: Yes.
MR. WATERS: And ultimately heard the same thing in those conversations that she related here today?
BART PROCTOR: Yes.
MR. WATERS: Have you had an opportunity to review what's been entered into evidence as State's 297, the kennel video?
BART PROCTOR: I've heard it.
MR. WATERS: May I have the computer input, please?
(Break in proceedings.)
MR. WATERS: For the record, I'm going to play State's 297.
(The video was played. Audio not transcribed.)
MR. WATERS: Do you recognize any voices on that video?
BART PROCTOR: I recognize three.
MR. WATERS: Can you tell the jury what voices you recognize?
BART PROCTOR: I recognize Paul Murdaugh, I recognize Maggie Murdaugh, and I recognize Alex Murdaugh.
MR. WATERS: When you said Alex Murdaugh, do you see him in the courtroom today?
BART PROCTOR: I do.
MR. WATERS: Can you point him out for the jury, please, or describe him?
BART PROCTOR: Yes, sir. He's wearing a blue blazer and has his glasses on his head.
MR. WATERS: And how sure are you?
BART PROCTOR: 100 percent.
MR. WATERS: Thank you. Please answer any questions that the defense may have.
CROSS-EXAMINATION
BY MR. GRIFFIN:
MR. GRIFFIN: Hey, Mr. Proctor. The -- were you ever shown a blue raincoat by any SLED agents?
BART PROCTOR: Yes, sir.
MR. GRIFFIN: And was that blue raincoat shown to you and your wife, Marian, who just was here in the courtroom?
BART PROCTOR: Yes, sir, it was a picture.
MR. GRIFFIN: A picture of the blue raincoat. And do you recognize -- do you recognize the blue raincoat?
BART PROCTOR: No, sir.
MR. GRIFFIN: Had you ever seen it before?
BART PROCTOR: No, sir.
MR. GRIFFIN: Did you ever see Paul wear it, the blue raincoat?
BART PROCTOR: I had never recognized it before.
MR. GRIFFIN: All right.
MR. GRIFFIN: That's all the questions I have, Your Honor.
JUDGE NEWMAN: Anything further?
MR. WATERS: Nothing from the State, Your Honor.
JUDGE NEWMAN: Thank you, sir.
(The witness exited the stand.)
JUDGE NEWMAN: Do you have another witness today?
MR. WATERS: Your Honor, as you're aware, there was a circumstance beyond any of the parties' control --
JUDGE NEWMAN: Just yes or no.
MR. WATERS: No, because of a circumstance beyond the parties' control.
JUDGE NEWMAN: All right, very good. Ladies and gentlemen, there are no more witnesses available today, and this is Valentine's Day, so we will recess at this time and resume at 9:30 tomorrow morning.
(The jury left the courtroom.)
JUDGE NEWMAN: Okay. If everyone will be seated. Mr. Waters, the jury has gone. You can further explain if you would like. You can further explain --
MR. WATERS: The issue with the schedule?
JUDGE NEWMAN: Yes.
MR. WATERS: Yes, sir. There's witnesses that are coming forward. There's an unavoidable, unfortunate personal event that has arisen that unfortunately has affected that witness's availability, Your Honor, and so we -- that's why we had requested -- we are late in the day but have requested a recess for the day. Your Honor, I will say that with -- the side of the road issue has always been out there. And at this point there -- we believe there is some admissibility as to that, particularly a statement of the defendant related to that in which -- there's actually a few statements, but there's one statement in particular. I don't know if Your Honor wants to proffer that at this particular time since we have a little time available outside of the jury's presence, but I do think that at some point that's a bridge, given developments, that needs to be crossed.
JUDGE NEWMAN: All right.
MR. HARPOOTLIAN: Your Honor.
JUDGE NEWMAN: Yes, sir.
MR. HARPOOTLIAN: We've prepared a memo, would be prepare to argue that motion, but we're not today -- we expected this to go with no motions to be argued today. I apologize to the Court, but we would prefer not to go forward with it today.
JUDGE NEWMAN: You say you have -- you're preparing or have prepared a memo?
MR. HARPOOTLIAN: Let me ask the person preparing it.
JUDGE NEWMAN: All right.
(Break in proceedings.)
JUDGE NEWMAN: I guess I can have him stop the jury and have them come at another time if need be. 10:00, 10:30, whatever.
MR. HARPOOTLIAN: Your Honor, we're not done with that. We're hoping -- we did not anticipate it coming up at all --
JUDGE NEWMAN: Can you all -- don't leave with the jury yet. If you can find out -- are they gone or still here? Have them hold for a moment.
(Break in proceedings.)
MR. HARPOOTLIAN: We actually have completed the memo and filed it -- Your Honor has it -- on the 404B issue. There's a section on the roadside --
JUDGE NEWMAN: Has it been sent to me or is being sent or --
MR. GRIFFIN: Your Honor, it was filed well before trial, and it -- it's a consolidated memo. It addresses all of the 404B stuff, the financial evidence that you ruled in, and in a section of the memo we do address the roadside shooting. We point out it's after June 7th. We would point out that he's been indicted on insurance fraud as a result of that, attempted insurance fraud. They -- their theory of motive is it is just another way for him to gain sympathy when financial situations turn badly for him. But we point out that he has been indicted by the Hampton County Grand Jury for insurance fraud, for attempted suicide to obtain $10 million of insurance for his son, Buster. And so we argue that it's not motive, and it's not -- and it should not be admissible under 403 as well.
JUDGE NEWMAN: All right, and I'm happy to talk about all of that and review what's been submitted overnight and review whatever the State may have for me to consider, and to hear anymore argument about it in the morning prior to ruling. I've had them to stop the jury from leaving to find out how much time you all might need tomorrow morning because otherwise I've told them to be here at 9:30. If they need to come at 10:00? 10:30? Mr. Harpootlian.
MR. HARPOOTLIAN: Your Honor, I don't think this will take 30 minutes to argue. I would prefer to argue it in the morning simply because we haven't looked at it, and while Mr. Griffin is an extraordinary advocate, I --
JUDGE NEWMAN: You want the jury to come in at 10:00 or --
MR. HARPOOTLIAN: That would be great.
MR. WATERS: I would say 10:30 to be safe, Your Honor.
JUDGE NEWMAN: 10:30? All right.
MR. HARPOOTLIAN: I don't know why I would argue against that. I'm trying to think of a reason but I really can't.
JUDGE NEWMAN: All right. So, we're going to have the jury come in at 10:30 tomorrow morning instead of 9:30. Thank you.
MR. HARPOOTLIAN: Thank you, Your Honor.
JUDGE NEWMAN: All right. In the interim, however, if you all have something you want me to read overnight, early in the morning, I'm happy to receive it.
MR. WATERS: Yes, sir.
JUDGE NEWMAN: I have what was previously filed now, the defendant's memorandum in opposition to motion in limine re: evidence of other crimes and bad acts.
MR. HARPOOTLIAN: Yes, Your Honor.
JUDGE NEWMAN: And I've ruled on a majority of this already.
MR. HARPOOTLIAN: Yes, sir. We may polish that up a little bit tonight, and if so we'll email it to your law clerk, and she, I'm sure, will get it to you.
MR. GRIFFIN: Page 9 starts the roadside shooting discussion.
MR. WATERS: And our initial motion, Your Honor, and the reply also touched this ground as well. We can do the same thing.
JUDGE NEWMAN: So, the middle of page 9 through the top of page 12, so you have about two and a half pages that you might want to -- if you want to supplement it, it will be fine.
MR. GRIFFIN: Thank you.
JUDGE NEWMAN: If you want to. And how about from the State's perspective?
MR. WATERS: Yes, sir, Your Honor, and I think I just lost my glasses. I put them up. Your Honor, if you would look at our response in opposition that was filed on December 8th, we, on page 19 in the factual recitation, we talk about specifically the shooting on the side of the road in response to the confrontation with Chris Wilson. And then, of course, from that point on and prior to that there is analysis, general analysis on 404 and 403. I believe our reply -- and I'm trying to put my hands on it, also addresses those issues, but we can also polish up some things as well for Your Honor. There is -- thank you, Mr. James -- there is starting at page 15 in the reply -- it is addressed as well, the reply to their response or in that particular series of filings it's in there, and again, we can polish that up. There is -- again, there's a recorded interview and a recorded statement that we certainly can provide to Your Honor for review, but ultimately we believe -- they're statements of the defendant, of course, that we believe would be admissible under the theories as argued there.
JUDGE NEWMAN: And what is the State's theory of admissibility of the roadside shooting?
MR. WATERS: Yes, sir. Your Honor, as I -- we argued back in December, and as argued in those particular briefs, you know, what we see is a chain of circumstances that are connected for an extended period of time that, particularly highlighted, start in June 7th. We've gone into -- obviously, Your Honor, moving into the financial situation as it went into July and the efforts to shore up that particular money, the loans that Mr. Burney testified that -- to that today. But, of course, Mr. Murdaugh -- and there's already been evidence admitted that he was $192,000 short, and that Chris Wilson covered that. The evidence goes on that in that particular interim of time, and again, with the State's theory, that he's able to do his best to try to cover things up in that interim period, but then everything comes to a head, as already has been testified to, on September 4th.
Chris Wilson, of course, has already testified that that particular day on September 4th, that he had -- he finally got the defendant to agree to meet with him and confronted him about that 192, which again, is right at the heart of the Faris fees, which are right at the heart of June 7, 2021, and had that confrontation with them. The admissions that were made have already been testified to. And then with a short period of time in response to that, that the side of the road shooting happened. We've already heard testimony here from Ms. Proctor that, of course, the initial reaction of everyone is oh my gosh, the real killers are back. And that is precisely, under the State's theory, the effect that the defendant intended. And there would be from these recorded statements ultimately evidence offered that that was not true, and he had told lies, Your Honor, about that particular -- and that would be the recorded statement that we would offer, about when he admitted, that he had been untruthful to law enforcement about the circumstances of that shooting. I don't intend to go into great detail about that. I'm just trying to get from point A to point B and then get out. I'm not trying to, to use the term that I've used before, guild the lily.
JUDGE NEWMAN: The statement that you referenced that you say you want to put in, you want to put in the recorded statement?
MR. WATERS: That's correct, Your Honor, yes, sir.
JUDGE NEWMAN: And what's the length of that recorded statement?
MR. WATERS: I don't know off the top of my head.
MR. HARPOOTLIAN: Your Honor.
MR. WATERS: I think it's less than 15 minutes, Your Honor.
MR. HARPOOTLIAN: No, it's longer than that. No more than 30. Mr. Griffin and I were there when he gave the recorded statement. We called them to give the recorded statement.
JUDGE NEWMAN: And the gist of the recorded statement is what, Mr. Harpootlian?
MR. HARPOOTLIAN: Your Honor, so Mr. Murdaugh had somebody shoot him in the head on the roadside to get -- to have $10 ten or $12 million insurance policies paid to his son, Buster. Now, he believed there was a contestability -- suicide contestability clause, so he had somebody shoot him in the head. No question they shot him in the head. No question the intent was to kill him. He fractured his skull, had a brain bleed, was airlifted to Savannah Hospital. It didn't kill him. He intended to die. And the recorded statement -- he immediately went to detox because he was having -- planning to go to detox anyway. Mr. Griffin and I went down to Atlanta. We met with him in detox. He'd been through a horrible experience, shot in the head and then detox, and we informed him the police were looking for whoever shot him, and he at that point said look. This is what happened, and I don't want them wasting -- literally he said I don't want them wasting resources trying to solve this shooting when those resources could be used to find who killed Maggie and Paul. We picked up the phone, we called SLED, we put him on the phone with SLED to give him -- to have him explain exactly what happened. This wasn't the result of a SLED interrogation. This was a voluntary statement so they'd quit wasting resources looking for -- and he told them who shot him in the head, a guy named Eddie Smith, who was his drug dealer. So, that is --
JUDGE NEWMAN: And you all have brought his name up a couple of times through cross-examination.
MR. HARPOOTLIAN: Yes, sir.
JUDGE NEWMAN: Is he on the State's witness list?
MR. WATERS: He is, Your Honor. But, Your Honor, one aspect of that, and I think this is what highlights the relevance in the connection with this particular case, is that in the wake of the side of the road shooting, Mr. Murdaugh's initial claim was, was that some unknown individual had -- he had had a flat tire and some unknown individual supposedly under the guise of stopping for help and then suddenly shot him in the head. He went so far as to draw a -- or have with a composite artist to draw a composite photograph. Again, I'm not trying to get into too much of the detail, but that, of course -- the immediate effect of that is, is that he's been targeted by some unknown individual. That was a complete lie and the that's the point of that statement.
MR. HARPOOTLIAN: If the issue here is that Mr. Murdaugh lies, I mean, really? Are we at that -- I mean, we've come $10 million through lies, and now this piece of evidence becomes relevant because it proves he lied again? Months after the murders. There's no -- you know, he's trying -- he didn't do it, and I think they will concede he didn't do it to get some sort of sympathy. He did it to be dead. That's why he did it. And unfortunately Eddie Smith at 4 feet couldn't shoot somebody in the head and kill them. He meant to.
JUDGE NEWMAN: And that's what Mr. Smith would say?
MR. HARPOOTLIAN: Mr. -- well, Mr. Smith has given no less -- I'm set up to cross-examine him -- I know this, six different explanations for that and any other event you ask him about, from wasn't there; to I was there and I saw Alex, he'd been shot; to I was there and I tried to stop Alex; to yes, I shot him in the head. But the fact of the matter is the cross-examination of Mr. Smith is something I'm looking to now. But this particular event had nothing to do with what happened on June 7th other than he lied about something else. And 404, unless there's a specific -- it's not motive. I don't understand what the 404/403 analysis would be on this. I know what the 403 analysis is: the prejudice outweighs the probative. But 404 is what -- of the four things that 404 is admitted for, which one is this?
JUDGE NEWMAN: Yes, sir?
MR. WATERS: Your Honor.
JUDGE NEWMAN: I know you all want to argue it in the morning, so I'm just -- this is just a prelude to tomorrow morning.
MR. WATERS: If Mr. Harpootlian wishes to stipulate in front of the jury that his client is a liar, then the State is willing to accept that stipulation.
MR. HARPOOTLIAN: And not go forward with this?
MR. WATERS: The second thing is, Your Honor, is that what actually happened on the side of the road is now -- what's important to this particular case, what is important, Your Honor, is that it's a reaction to the confrontation with Chris Wilson about the Faris fees that came to a head on June 7th of 2021, and it's about what the defendant said, that he was attacked by an unknown assailant as he was trying to change a tire, and went so far as to do a composite drawing that created the effect as this case had -- as this investigation had gone on that oh my gosh, the real killers are back to finish the job. And that's precisely what he intended, and he ultimately admitted that was a lie. So, the circumstances of what happened on the side of the road are not what the State is focused on. What is important is what the defendant said, how he attempted to use that, and that it was actually a falsehood. And you heard Ms. Proctor -- Ms. Proctor testify it had that exact effect: that, oh my gosh, the real killers are back.
MR. HARPOOTLIAN: But I think the State will concede his object on the side of the road was to be dead. That's what the act -- the act was to kill himself. Now, what happened after that, after he was taken to Savannah and had a brain bleed and a fractured skull, and when he came out of all that, realized I'm not dead, how is that relevant to June 7th? Your Honor, we can beat this dead horse a little bit more in the morning, but allow us to give you, I don't know, it's a crazy idea of giving maybe some more law to look at.
JUDGE NEWMAN: Okay. All right. Is this the sole purpose of Mr. Smith's testimony, or you have other things to talk with him about?
MR. WATERS: Well, he's on the witness list. I didn't say necessarily that we're calling him. What I'm trying to do, again, is to limit the presentation to just what's relevant to this particular trial that we have here today.
JUDGE NEWMAN: And what witness --
MR. WATERS: And so I'll be happy --
JUDGE NEWMAN: We're talking -- discussing now this motion excluding testimony, but who's your witness to talk about what you're arguing?
MR. WATERS: We would have a law enforcement witness come in and testify as to the circumstances of that statement. And, again, I'm trying to limit it to what's very focused to what's relevant to this trial, and that is the intended effect that it had and his reaction to the confrontation and the symmetry between June 7th and September 4th.
JUDGE NEWMAN: And do you have anything in addition to what you all provided a couple of months ago seemingly?
MR. WATERS: We have those two documents. We don't have a written document prepared at this time, but we can certainly work on some additional discussions this evening, Your Honor.
JUDGE NEWMAN: All right. Okay. Well, we'll reconvene at 9:30.
MR. HARPOOTLIAN: Thank you, Your Honor.
MR. WATERS: Thank you, Your Honor.
JUDGE NEWMAN: All right. Very good.
(Whereupon, the case was at ease.)