Page 308

Q. What happened then the next morning? Hamilton: The next morning before we had gotten up, very early, I heard somebody come in downstairs, and I heard Bruce Ellison's voice saying --

MR. RENSCH: Objection, hearsay.

THE COURT: Sustained.

BY MR. MANDEL: Q. Well, you see Bruce Ellison that morning?

Hamilton: Later that morning I did.

Pages 316-318

Q. When you saw Anna Mae there at WKLDOC that day, were you surprised to see her?

Hamilton: Yes. Well, not when I saw her, I was surprised, I had heard earlier that morning --

MR. RENSCH: Objection, hearsay.

THE COURT: Excuse me, what?

MR. RENSCH: Hearsay.

THE COURT: Not yet, but maybe. Overruled.

Hamilton: When I heard Bruce Ellison at Thelma's, I heard him say

MR. RENSCH: Objection.

THE COURT: Sustained.

MR. MANDEL: Your Honor, can we approach on this for a moment?

THE COURT: You may.

(Bench Conference).

MR. MANDEL: Frankly, my read on this is that this is a coconspirator statement made in the furtherance of the course of the conspiracy. I know we don't have a conspiracy charge, that's not the rule of evidence, and in fact I point out that Mr. Ellison, according to Mr. Rensch, said he is going to exercise his 5th Amendment rights and won't testify here, and we have had the same experience we had with the grand jury regarding this on a number of occasions. Mr. Rensch of course has received the transcript through discovery, he's exercised his 5th Amendment right. He is a coconspirator, it is a coconspirator's statement made in the furtherance and course of the conspiracy. The statement is simply that, you know, she's here, they have her here in town, something like that.

THE COURT: I want to hear argument on this, because this is news to me. The conspirators, because if so, the rules of evidence change when you have a coconspirator, but I want to hear argument.