Medical Emergency or Murder? — WA v. Kevin West: Full Closing Arguments

[00:00:00] Speaker 1: In the beginning, this appeared to be a tragedy. A 48-year-old mother dying unexpectedly after a loving night with her husband. A 911 call, a seizure turned to cardiac arrest, CPR, her husband, a firefighter performing a separation of arms. A hero turned a breathing wearer. And for a moment, just like the first responders, you may have thought that all there was. But this is not a case decided on first impressions. This is a case decided on efforts. And when you look closely, when you look beneath the surface, the story the defendant told falls apart. It falls apart for a number of reasons. But it's proven blatantly untrue based on Marcy's body and his mother. Now, the first thing that I want to address is the autopsy. What does her body tell us? Her body is going to tell us what happened to her. So, you'll recall the testimony of Dr. Burns and the injuries that she detailed. It was pretty extensive testimony. But she detailed that there was hemorrhaging to both the carotid sheets, just below the jaw. That there was a hemorrhage to the esophagus on one side. That there was a large contusion to the back of her head starting here at the bony prominence and extending about six centimeters down. And that she had bilateral bruising behind the ears. And behind one of the ears there was something that appeared kind of like an abrasion. So, you'll recall that she testified that the bilateral bruising behind the ears can occur two ways, right? So, it can occur either as an internal injury by the compression of the jugular. So, the congestion caused by the compression of the jugular causing the hemorrhaging behind the ears. Or it can be from external trauma. Or it can be from both. These are not injuries caused by CPR. These are not injuries caused by a seizure. These are not injuries caused by the eye gel or the bag valve mask. And they are certainly not injuries caused by a massage. They are exactly what you see when force is applied to the sides of the neck. When blood flow to the brain is deliberately cut off by the compression of the carotids. The medical evidence tells you how it was applied, which was a vascular strangulation. But what happened before and after is important. That tells us why. It's the motive, right? So, people act for reasons. And we don't need to prove motive to prove a crime. You're not going to see that in the elements. But in this case, the motive is glaringly apparent. The defendant's marriage was deteriorating. And he was blaming Marcy for the deterioration of his marriage. Just as he did in court. The defendant was deeply involved in an affair. To call it an affair, it is a little bit of an understatement. This was an obsession. He was meeting her family. He was introducing her to his family. They were making plans for the future. They were discussing marriage. They were discussing buying property together in Goldendale. They were talking about their new life together. He was telling his friends about trips that he planned to take on her. He had retained an attorney. We see that in the text messages. And he had planned to move out. But divorce met financial consequences. Because you'll recall the testimony from Casey Jones and Keith Linton, where they went through the worksheet, right? That was with Casey Jones. And they plugged in his salary and Marcy's salary and the number of years that they'd been married. And he determined that he was going to have to pay alimony indefinitely. And he changed his clothes and left work early. He was so upset. And Katie Linton tells you that she was asking him about the divorce. And he said, I can't. I'm stuck. His financial situation hasn't changed. In fact, it's arguably getting worse, as you see in the text messages. Now, the timeline in this particular case matters. It tells us the half. So, in this case, starts, well, it starts a number of, quite a while earlier. It starts actually in July, when he meets up with Cynthia for the first time. After they rekindle their relationship. But, for purposes of this timeline, we're going to start on December 13th. So, we're talking about three weeks prior to Marcy's death. December 13th, they have a pretty big fight. We read most of it to you. You'll have the text messages that you'll be able to review during deliberations. Fight. Marcy's telling Kevin, I'm sorry you feel that way. I'm really tired of being berated. You have stated your feelings, and I hear you. You haven't said one nice thing. Give me two weeks to find somewhere to go. Next day, December 14th, Marcy has a sobriety search for apartments for rent in Washington. She knows the marriage is on the way out. Presumably, around Christmas, he's writing these Christmas cards that you have. Detective R.B., who already read them to you. But, I'll just highlight one little portion for you here. From the Christmas tree, to the food we prepare, to the home we make, to the decorations we display, our love will be present everywhere. Next year, 2024, will be our year. We will be together, celebrating every day with love and understanding of what it means for you and I to be together. Our story will ring in the new year. For loud for all to hear. I love you, Cynthia. Love forever and always, Kevin. 2024 was going to be their year. That was when it was all happening. And this is how we know there was an actual plan. Right? You'll recall in the interview that Mr. West had with law enforcement, they asked him, was there a plan to leave? He says no. That was false. There was a plan. He had retained an attorney. And he had told multiple people when exactly he was moving out. Alright. So, Exhibits 181 and 173 are text messages that you'll have. So, on January 3rd of 2024, so we're talking five days prior to Marcy's death at this point, the defendant text, Walchud Ward, who is Cynthia's mother, that he will be moving out on the 8th and seeing an attorney on the 9th. He's also texting with Paul Persin, who is Cynthia's brother-in-law, the same day. And he says, I'm moving out on Monday, which was January 8th. You'll have a calendar to double check. And papers are done on Tuesday, January 9th. I know where I sit. So, so now we jump to the night prior to Marcy's death. January 7th of 2020, or 24th at this point. And, on this day where he's having this amazing night with Marcy, and they're making love, he's texting his mistress's mother. Just felt the need to send you a message. Today has been a tough day. I keep thinking about how happy I was yesterday, and how we laughed. I want you to know how spiritually connected Cynthia and I are. We have something so incredibly special. Yesterday talking with you, her, and I together felt so great. I can't explain the familiarity and love I have for both of you. You are my family, and I feel like we always have been. Thank you for your love and support. I will never be able to express how much that means to me. I love Cynthia to tears, and I will always give her my all. Love you, Mom. He later said to her, Please know how strong we are, and that nothing will come between us. I love you so much. And then again later, I'm leaning on you today, because I feel so close to you. Cynthia has shared your struggles through life, and I know how strong you are. I don't want to worry my mom when I need you. I miss Cynthia so much, even though we are so close to being together. Today is hard, because I miss her so much. I absolutely ache for her, wishing tomorrow would come. I'm so sorry for leaning on you, but you are someone I so trust and love. And then again later, he texts again Cynthia's mother, and says, I will never let go. This is what he's doing right before he makes love to his wife. So then we have an account from him that she vomits. Right? Different times and different interviews. It changes here in testimony. Somewhere between 9.30 and 11 is kind of where we're at. Now, today, he tells you that she vomited, that he went back downstairs and was scrolling on his phone. Why is he changing that? Well, he told you. Because the Apple Health data came to light. So now he's got to account for why his phone's moving around a lot. Because it was inconsistent with his story that he told the law enforcement. The Apple Health data didn't match up. So now he's got to tweak it a little bit. So, let's look at the Apple Health data. Because it's crucial in this case. All right. At 12.09 a.m. After, in every interview, he said that both of them were asleep. Right? Up until today. 12.09 a.m., Kevin's phone logs 55 steps. At 12.10, Marcy's phone logs 86 steps. So they're up together. At 12.20, there's a safari search on Marcy's phone for Mother of the Bride dresses. That's the last we hear from Marcy's phone. Before her time. At 1.09, there's a Google search on Kevin's phone for the hotel ledger. And then there's a break in activity where the phone's not moving around. Now, does that mean that they're sedentary? No. It just means that they're not holding the phone. Right? Because this isn't a wearable device. They have to actually be carrying the phone around. So there's a break here. We don't know what's happening. It's possible that's when Marcy is killed. At 2.11 a.m., his phone logs 143 steps and two floors. At 2.22 a.m., his phone logs 164 steps and one floor. At 2.38 a.m., his phone logs 119 steps. At 2.48 a.m., his phone logs 128 steps. At 3.00 a.m., his phone logs 457 steps. 3.10, 133 steps. 4.21, 198 steps. And then, at 4.27 is when the 911 call starts. There's no steps at 4.27. The steps occurred six minutes prior. Now recall from his testimony, he said that he saw her seizing. Right, the phone was plugged in, wasn't moving. He sees her seizing, the dog is whimpering, he runs around at his side, at first side of the bed, apparently lowers her to the floor, we saw the demonstration, and then has to go back to his side of the bed to get the phone from the charger and come back over to Marcy to render it. It doesn't match. At 4.27, the 911 call starts. One minute and 50 seconds in, he's saying she's still seizing. Two minutes and 34 seconds in, he says she's not breathing. Three minutes and nine seconds in, she stops seizing. Three minutes and 22 seconds in, the 911 dispatcher tells him to start CPR. Seven minutes and 20 seconds in, he says he has to go and lock the door. And then, nine minutes and 30 seconds in, you hear the paramedics and the fire arriving. And then the call ends at 4.37 a.m. At 4.39, his phone logs eight steps. So, unfortunately, this is really what we can know about what was happening. because we have no report from Marcy. Right? We can't ask her why. But the phone told a story. And it was inconsistent with what he had told law enforcement. So, we had to change it. All right. After the eighth, after her death, we have, at 8 a.m., he starts telling his friend, Kevin Melines, one of his best friends, when they're alone because he acts very different when he has an audience. Right? Just like up there. Just like in here. But when he's one-on-one with those that are closest to him, his true colors come out. And he tells his best friend, Kevin Melines, I feel bad for not feeling bad. This is approximately three hours after his wife was declared deceased. Now, during the day, that same day, he asks Mark Whitland about getting rid of Marcy's things. And he makes the unsolicited comments about how autopsies often come back inconclusive. It wasn't weeks later as he made it seen during testimony. It was the same day. And again, later that same day, he tells his other best friend, Scott Slobham, that he feels relieved like a burden has been lifted. Now, during testimony here today, he tells you, I didn't mean about Marcy. I was just talking about the fire department, they were alleviating so many of my concerns. Scott was pretty clear what he was talking about. And he told you. And then, at 5.22 p.m. on the day of Marcy's death, he texts again with Cynthia's mother. Cynthia told me you're aware of Marcy's death this morning and how hard it's hit my kids. I want you to know that I'm okay and I have my mom here and soon my dad. My daughter has her friends over and I hear laughter. Ted is sucked up tight to my mom and I was talking with Cynthia. Thank you for your prayers and thank you for your love. Heart emoji. I love you mom. And then, at 6 p.m. he texts her, I don't need more time because your text messages warm my heart. On the 11th, and again, we don't know what he's actually texting with Cynthia because they're using WhatsApp and it's an end-to-end encryption so we can't access those. But he's telling her mom quite a bit, right? So we can see a lot of what their communication is between me and Cynthia through these texts with his mom, with her mom. So, on the 11th, two days, three days, after, no, I'm sorry, let's go back. The 9th, so this is the day after Marcy's down, he texts with, Cynthia's mother again, at 9.16 a.m., we had a good night last night and had some good laughs. Spelling errors from the text. Then at 2.20 p.m., he texts her again, thinking about you and want you to know how incredibly close I feel to you. Thank you for accepting me into your life and supporting Cynthia and I right from the start. I'm so deeply in love with her and will always give her my best. She will always feel loved and feel safe and secure. I'm so grateful to be part of your family. Heart emoji, I love you. Heart emoji, yeah. Two days later, he texts her again. Cynthia has been to do a sport to me. I know it's hard for her, so hard for her not being able to be here and do more and doing more. I want you to know that she is filling me up with so much love that I would never be able to get through this without her. And then he later tells her that he's taking his sister down to see Cynthia so they can find the meat. On the 19th, he texts Cynthia's mother again. Just want to say hi. Heart emoji, I love you. So I'm in love with your daughter. Heart emoji, just want you to know we're better than okay. Heart emoji, we're great. And then the 20th is the birthday party slash gathering depending on who you ask for Kevin at his house when Cynthia comes over and is introduced to the kids as Kevin's sister's friend. His plan to replace Marcy with Cynthia without the financial brewing has been successful. But how he's behaving in the aftermath of Marcy's death is important. These are not the actions of a grieving husband. Again, we've already gone through the comments that he made to his friends. Casey Jones also came over that same day. He was showing her the deer butt bottle opener from the garage. She said he was made crying and asked how she knew she'd seen him real cry. There were no tears or many tears here today either. He literally erases Marcy from his life almost immediately. He removes pictures of her from the walls and hides them. He gets rid of their bedroom furniture. He gets rid of her personal belongings. He deletes her contact from his phone unless he never had it saved in the first place. He brings his mistress into the home he shared with Marcy in 12 days and introduces her to the children. He deletes incriminating messages from his phone after he has contact with police. There's a number of messages and you'll have all the text messages you'll be able to review them during your deliberations. In those text messages you can see the dates that they're deleted. A number of them were deleted January 26th. Those weren't deleted to hide them from Marcy. Who was he hiding from? This is not grief. This is a man who could not be more ready to move on. And he's deleting the messages before you're not getting caught. So I want to discuss the jury instructions with you. The judge just read them. There's a number of them. Lawyers like to define things. So let's start with witness credibility which is a big one in this case, right? Because you've heard from a number of witnesses that you have conflicting accounts including the defendants, right? So maybe. Okay. Let's see if I think that's going to work. if you have these instructions don't have them with you. This is during instruction number one. Ready? Yep. Okay. This tells you how to evaluate the credibility of a witness. So in considering witness testimony you consider these things. The opportunity of the witness to observe or know the things that he or she testifies about. The ability of the witness to observe accurately the quality of the witness's memory while testifying. The manner of the witness while testifying. Any personal interest that the witness might have in the outcomer issues. This is kind of a big one in this case. Because many, many of the people the witnesses that defense have graded up here are all family members of the defendant. They don't want to see him convicted. Understand. Any bias or prejudice that the witness may have shown. The reasonableness of the witness's statements in the context of all the other evidence. And any other factors that affect your evaluation or belief of a witness in your evaluation of a paper or testimony. And there's a separate instruction also that gives you some additional criteria for expert witnesses. All right. I think this is important. And this is again in jury instruction number one. You must reach your decision based on the facts proved to you and on the law given. Not on sympathy, prejudice, or personal preference. There's a lot of testimony meant to pull at your heart strings in this case. But that's not what it's about. It's about the objective evidence, the objective facts. and then reasonable doubt. And then reasonable doubt. Talk about this kind of a lot. And you finally get the definition. So, this is jury instruction number four. A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It's such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. If from such consideration you have an abiding belief in the truth of the charge, then you are satisfied beyond a reasonable doubt. We define a lot of things for you. We don't define abiding belief. Submit to you that it is a lasting belief. All right. This is direct versus circumstantial. Talked about this one a little bit in Baudière about how circumstantial evidence gets a little bit of a back wrap. But this tells you that the law does not distinguish between direct and circumstantial evidence in terms of the weight or value in finding the facts of the case. One is not necessarily more or less valuable than the other. What's the direct evidence in this case? Right? So the direct evidence would be the defendant's account. He was the one that perceived it. But this is the perfect example of why that can be flawed and why we need to look at the circumstantial evidence. Circumstantial evidence refers to evidence from which based on your common sense and experience. not required to check your common sense at the door. In fact, this law tells you to use it. You may reasonably infer something that's an issue in this case. So, there's hemorrhaging on the carotid sheets. You can reasonably infer that there was some sort of a trauma there. Right? There's hemorrhaging to the esophagus. You can reasonably infer that there was a trauma there. All right. There are two counts in this case. And it's going to get a little bit confusing, I think. Because there's count one, which is murdering the first degree with premeditation. And then there's count two, which is murdering the second degree, which is charged under a different theory. So, we have premeditated intent for count one. And for count two, it's something called felony murder. Right? So, the defendant engaged in a particular felony. that resulted in the death of a person. And you have to consider them separately. So, your decision on one should not affect your decision on the other. So, let's look at first at count one. Count one is the elements for count one, jury instruction to number nine. Okay. So, to convict the defendant of the crime of murdering the first degree is charged in count one, each of the following elements must be proved beyond reasonable doubt. First, that on or about January 8, 2024, the defendant acted with the intent to cause the death of Marcello West. Two, that the intent to cause death was premeditated. Three, that Marcello West died as a result of the defendant's actions. And four, that any of these acts occurred in the state of Washington. Now, this fourth one is just what gives us our jurisdiction, right? So, this is what allows us to prosecute this particular crime because it occurred in the state of Washington. You might have wondered why we were always asking, is that in Clark County, Washington? That's why. And there's no dispute to the date, right? Everyone agrees that it's going to date 2024. So, really, the question before you is whether the defendant acted with the intent to cause the death of Marcello West, Marcy, and whether that intent was premeditated. So, you then have to look at those two definitions. We give them both to you. Ten is intent, which is pretty intuitive, I guess. A person acts with intention or intentionally when acting with the objective or purpose to accomplish a result that constitutes a crime. So, were you acting with the purpose to cause your death, [00:31:58] Speaker ?: basically? [00:32:02] Speaker 1: Premeditation is a little different. And there's this notion that premeditation that premeditation needs to involve days of planning, weeks of planning, hours of planning. It doesn't. During instruction 11, which means, premeditated means thought over beforehand. When a person, after any deliberation, forms an intent to take human life, the killing may follow immediately after the formation of the settled purpose, and it will still be premeditated. premeditation must involve more than a moment and point of time. The law requires some time, however long or short, in which a design to kill is deliberately formed. So, if you have a crime of passion, right, there's an argument, and you shoot someone, maybe that's a murder too, right? Maybe that's not premeditated, because it does not involve more than a moment and point of time. It's a mediate act. Strangulation's different. The testimony of the experts, depending on which one you find more credible, Dr. Burke says, you typically go unconscious in five to ten seconds, and that you have to maintain that pressure on the carotid arteries for somewhere in the neighborhood of three, I can't recall it her exact range, but the low end of it was three, so we'll use that. Three minutes. Maintaining pressure on an unconscious person's carotid arteries for approximately three minutes, two minutes and fifty seconds, that's premeditation. You could sit in silence for two minutes and fifty seconds, that's a while. That's more than a moment and point of time. But there's other evidence for premeditation, the motive, the multiple acts of violence, right? So, she testified that this confusion on the back of the head probably wasn't part of the strangulation event, right? I asked her, could it be from this maneuver? She says, no, not likely. So, a blow to the head at some point occurs, and then the strangulation. Now, if, after full, fair, and verbal consideration, you cannot agree as to whether it was premeditated, then, or, can agree on good pride generally, right? Then you go to the potential lesser included. So, there's a lesser included in murder in the second degree for count one. And, jury instruction number 12 tells you that murder in the second degree is a lesser included in murder in the first degree. Here's the only difference. It's the premeditation. It's the same otherwise. So, same date, the defendant acted with intent to cause the death of Marcella West, that she died as a result, and then it occurred in the state of Washington. All right. So, that's count one. Count two is a little bit different. Count two is felony murder. You hear about this sometimes in, like, bank robberies or things like that, right? So, people go in, they're robbing a bank, one of the participants shoots someone, a security guard, for example, during the execution of the robbery, it's technically murder because they were involved in the commission of a felony. at the time. But in this case, this is also a felony murder because the underlying felony is the assault in the second degree, which is assault by strain donation. So, let me just try to straighten that a little bit. Okay. It's not working out really well, but close. All right. So, here's the elements, a little bit crooked, for the felony murder of count two, murder in the second degree. Different than the lesser included for count one, which is also murder in the second degree, which is not why this gets a little bit in peace. So, for count two, again, same date, January 8, 2024, defendant committed assault in the second degree, that the defendant caused death with Marcella West in the course and in furtherance of such crime, and that she was not a participant in the crime of assault in the second degree, which is not like a co-defendant or something along those lines, and that any of these acts occurred in the state of Washington. So, the crux really is what is assault in the second degree? Pretty straightforward. History instruction 17. The person commits the crime of assault in the second degree when he or she has felt another by strangulation. Okay? He does not have to intend to cause the death for count two. He only has to intend to assault her by strangulation. So, we then have to define for you what an assault is. It's an intentional touching of another person that's harmful or offensive. offensive if the touching would offend an ordinary person who is not unduly sensitive. Certainly, pushing on someone's neck, putting your arms around someone's neck, whatever the mechanism is. Defense is very focused on the vascular strangulation, the chokehold, he likes to call it a rear naked chokehold. The rear vascular restraint hold is one potential mechanism, said Dr. Burt, said. But she also said that it could be just fingers bruise to the carotids from the front or the back. And if you're putting your thumbs from the front in a person's carotid and putting your fingers behind the ears, that could cause bruising. And if you're going from the back and putting your fingers into the carotids and putting your thumb behind the ears, that could also cause bruising. And then she testified also if you're in a rear vascular restraint chokehold, the arm and the pressure to the ears could cause the bruising and the bruising. So there's multiple potential mechanisms. We don't know. We weren't there. Marcy can't tell us. But any one of those would fit the vascular restraint or the vascular strangulation. So then we need to define what strangulation is. And we're starting to lose paper here. Basically this means compressing a person's neck and obstructing their blood flow or ability to breathe. So either it's an anterior compression where you're compressing their breathing, their trachea, or it's a lateral compression, where you're compressing the carotids and the genular. This cuts off your air. This cuts off your blood flow. Both effectuate death. This actually effectuates death a little bit faster and causes unconsciousness much faster. and then there is a special allegation. So if you were to convict either on count one, the murder in the first degree, or the lesser included in the murder in the second degree, or count two, the felony murder in the second degree, then you go to the special verdict. And the special verdict is just whether or not they're intimate partners. And so you may have wondered why we were asking were they legally married, if they have biological children, things like that, this is why. It's jury instruction 21. Intimate partner means spouse or persons who have a child in common. So Marcy and Kevin were legally married. They had children in common. They were technically intimate partners for purposes of the law. In this case, her body tells us what happened, the affair tells us why, and the timeline tells us how. And when you put it all together, there really is only one conclusion that fits with every piece of the evidence, which is Marcy was killed by a vascular strangulation at the hands of the only person that was there, which is her husband. The law requires proof beyond a reasonable doubt, not proof beyond all doubt. The standard has been met in this particular case, and I'm going to have one more opportunity to speak with you because it is my burden, but I thank you for your attention during closing arguments and during this trial. [00:42:37] Speaker 2: Kevin did not kill Marcy. He died. They did not prove that here. They loved each other. It was not a perfect marriage. They had been together for about 22 years as a married couple, good times, bad times, but it was in fact a failing marriage. Along the way, they managed to put their own interests aside so that they could raise these two wonderful kids that you saw in the married couple. They were a great team, and Kevin speaks highly of his wife. I won't go through all the details because you've heard them all just recently, but I'm going to kind of jump to this part. In 2017, they bought them a house. You've heard that with the house comes this bed set with a nightstand. You're probably really sick and tired of hearing about nightstands. You know why this is important? Because it doesn't mean anything. They have made the nightstand the center piece of their case. This is the bed set. It came with the house in 2017. They paid about $800 I guess for the entire lot. This piece went here. It was always there. Here's why it doesn't matter. Because even if in fact it wasn't there that night, Kevin was used to it being there. You know how it is when you walk into a room at night and you've been in that room a million times, you know how to walk around your bed. You know how to avoid the nightstand. You know how to avoid everything and find everything even in the pitch black because you've been there a million times. You have that muscle memory. It doesn't matter. And it's pitch black in that room. But at the same time, Kevin says it was there. And Will says it was there. Eric Miller said it was there. He didn't remember telling me that. So we can question his memory a little bit. But when I interviewed him, he said he saw the nightstand. Who else saw the nightstand? That was Silva. Mr. Silva came in. He said he saw it. He'd never even been in the house before. So was the nightstand there? Yes. Does it really matter? No. He said he cleared the nightstand and for some reason the detective said, well, no, I saw the nightstand that had things on top of it so it wasn't cleared. The nightstand was there. It doesn't matter. It's a red herring. They raised their kids and they raised their lives so they wouldn't have to have daycare. This is true cooperation of parents. They had their ups and downs. Kevin wasn't happy with the physical side of the relationship. He was very happy as a mother of his kids. Loved that part. It was great for his kids. If he wanted what was best for his kids, more than anything, more than for himself. So he stayed with her for the kids. He spared them from their arguments. He didn't tell them about the affair. He wasn't completely honest when it came to the affair. He hid it from his wife and his kids. He told everybody else. Kevin is a very open person. Two of them. He tells everybody that he has financial insecurity. He tells everybody he's not happy with his marriage because she spends too much money, she's not working enough and she's not intimate with me enough. He tells everybody that stuff. He tells people he's having an affair. These are the same people that he called to his house that night when he needed help for his life. He told, and this is important, the state keeps saying without any basis at all, his story kept changing. He got interviewed three times, his story kept changing and even here kept changing. It didn't change. You have all three interviews. If you have the patience and the time, this is a work thing, listen to all three of those interviews if you have the time. The story is the same every single time. I got Chinese food, I went home, and we watched movies, we were intimate. He doesn't say that part every time, but he's never asked. And at some point, Marcy went to bed, she came down for ibuprofen, she went back upstairs, she threw up, I went to help her, she went to bed, I went back downstairs. It's the same story every single time. And he's not planning for this, this is not a plan. The first one is when his wife died unexpectedly, and he is being approached by a detective first thing in the morning, within an hour and a half of her death, he tells the story. And then he doesn't know what an investigation is going on. And on the 23rd, this is just about two weeks later, detectives show up unannounced, he invites them in, talks to them for a long time, and tells the same story every single time. He mentions the garbage bag on the floor. that never came up to the detective because that would have verified the story. He told them about it at that time, they could have gone back and checked the Washoeville Police Department because the investigator who went out there took that photo that has the pants and the garbage bag on the floor, that was left there before everybody came in because once Mars was pronounced ceased, everybody went downstairs, and Officer Southern, poured off the area, and would let anybody back in. There was no way for him to plan and make up all this stuff. And with regard to finances, sure, wish they had saved more money, but were they having financial difficulties? No. They made pretty good money, and in all this two years, all the investigation they've done, all the records that they've recovered, the financial records that they've recovered, you know how many deaths they found in default? Zero. [00:49:15] Speaker 1: Objection, facts on and evidence? [00:49:18] Speaker 2: There was no evidence. Sorry, I [00:49:21] Speaker 3: overruled the objection and remind you that the argument is just that, it's not evidence. If you hear a statement that's not supported by the evidence, disregard it. if you hear a statement that it is supported by the evidence, give it such weight you should think. [00:49:37] Speaker 2: There is not a single shred of evidence in this case that they had a loan in default, anywhere, ever. Marcy tragically passed away. Marcy had underlying health conditions. We will never know all of her underlying health conditions because she never saw the doctor. She complained of having chronic headaches. She had headaches nearly daily every other day. Carried a Costco-sized bottle of ibuprofen with her all the time for headaches. That's not the problem. Who has headaches every single day and doesn't go to the doctor by the doctor? Who has chest pain starting just a couple months, a few months before this matter happens? Who has chest pains periodically and doesn't go see the doctor? She never has medical care. There's not a single record of ever having one single physical or annual checkup with a doctor. Nothing. All she has is urgent care. That's it. The one thing that she did have was the life scheme. And why did she have that? She had that because Kevin wanted her to have it. It was a benefit they had available for her. He scheduled it a year in advance so that she would at least have this check. And she went there and said there was really nothing wrong. But what did it reveal? She had fatty liver disease. She had cholesterol. She had PBCs which may or may not be a big problem in combination of other things. She also had a resting heart rate of 95. And back in the medical records that Dr. Snake said that her resting heart rate was 100 at some of those distance. That's a high resting heart rate. and it means according to Dr. Stankus that her heart was not operating efficiently. When we have these kind of underlying conditions it could lead to trouble. That's why we see the doctor because we could run into a problem like Marcy did. The story he told over and over and over again to you is the same story about getting Chinese food, coming back, watching movies every single time. Now, the phone records that the state brings up, this is a challenge. Look through the records. Here's what you'll find. You'll find that there's activity on both phones kind of off and on throughout the day. People live with their phones. I don't care where they live. They sit around at home, they've got their phone. They go to dinner, a lot of people keep on the dinner. Some people live on the park. It's with us constantly. We do everything on these phones. It's not surprising there's activity. But if you look at these phone records, if you look at them side by side, you've got steps data for Marcy and for Kevin in there. And understand this, it's not the person, it's the [00:52:41] Speaker ?: phone. [00:52:44] Speaker 2: Kevin went to bed about 11 o'clock or so. Marcy is still surfing and she's looking at Mother of the Bride dresses between 12 and 1 o'clock at the morning. Kevin was asleep. Yes, he told the police they were both asleep because that's what he thought. He believed they were both asleep. If you look at the records and compare them side by side and you can make head or tail of them, you will see that the two phones travel together four times in the evening. The phones are traveling at the same time. Marcy knows his past. Marcy's following up on his web searches. There is one point where Marcy is checking, you saw it on the display which Sage just had, she's looking at Hotel Ledger. She's suspicious. She's checking up on her husband. She's suspicious and for good reason. On January 8th, Kevin wakes up until the dog went. Now, this is where the exhibits that we have in are kind of important. The leggings that were brought in, they're in one of the exhibits that you have in the back there. If you do want to take them out, make sure you're worried about it. They're important for a couple of reasons. one is they have pet hair all over. This would corroborate the fact that she was in bed when whatever happened, happened. That's part of it. There's also a picture in one of these where she has a big loin stain on it. I'm going to explain why that's really important in just a minute here. Kevin wakes up and he finds, she sees something that's not right. There's kind of a shaking. He's having a hard time describing. and she realizes she's completely safe. He's seen this before because he is a paramedic. He knows what a seizure looks like. It doesn't mean you have to diagnose a problem. You just have to recognize a seizure. It is a symptom. It's something that happens. He runs around the bed, checks on her after trying to wipe the dog down. He checks on her and he can't wake her up. He's shouting at her. He can't wake her up and so he lifts her on the floor. This is the part where Kevin has had two years to come up with another reason why she got injured. He explained to you that he lowered her as carefully as he could clearing the table onto the floor. Didn't touch her neck. He could have said oh yeah I was really in her and touched her neck. He didn't say that. He could have. He gently put her on the floor. He got her on the other side and he rolled her up on her side. This is the part where his hand gets under her neck and comes around toward the front. This is the only time. He does not believe that he heard her. Did he? Remember this is 181 pounds of a stiff body. A person who's not cooperating, not helping. And this is Mr. West doing this all by himself from a dead sleep in the middle of the night in the dark. And he is trying to roll her gently on your side, which he did. He realizes that he can't help. He's a paramedic and he's calling for help when he's the one who's supposed to be the help. That takes a swallowing of pride, a person who thinks about somebody more than himself. So he calls 911. You will have the 911 call with him. And I encourage you to listen to him. I know you've heard it twice, but I strongly encourage you because when you listen to that, you can hear what's happening. It starts out as a seizure. He's alarmed, but he's not panicking. He's trying to do all the right things. When you listen to this, ask yourself, does this sound like a man who just choked out his wife? No, [00:56:54] Speaker ?: it [00:56:54] Speaker 2: sounds like a man who's trying to help his wife. A man who's worried about his wife. It progresses, it goes from a seizure, she stops seizing, and then she's not breathing. Now, look at the time stamp on this, because it is not until three minutes into the phone call that she stops breathing and the seizure stops. this is one of those long duration seizures that Dr. Stank has talked about, the ones that she has been caring for. She's going to watch the people monitoring their glucose levels. This is what we found out. You need one of these long sustained seizures. That's at least three minutes, plus maybe the minute before that it took Kevin to call the police, plus whatever was happening with her before he woke up. Sometimes they don't wake up in the dark, right? Sometimes Sadie can be whimpering and they don't get up and Sadie goes down the hallway to find Megan. Maybe Sadie did, couldn't find Megan and came back. So we have minimum four to five minutes of an arch position, full body seizure. And now the reason that's a burp is because they brought the blood glucose level. Dr. Burton never considered it. She didn't check it. She was asked about it later. It's in the report because she never saw it. It wasn't part of her analysis. Because she wasn't looking for something that could truly explain it other than what was being proposed by the state. So a 300 glucose level is a very high level. It is not something that you would ordinarily expect from a strangulation, from a fight or flight situation. That's what Dr. Seneca said. She treats these people all the time. People have come in from a terrible fight and she checks their glucose level right away. It's never like that. It never spikes a few times. She said it's most consistent with a heart attack and a seizure combination. Remember the doctors, Dr. Seneca's, all the doctors you saw here, you saw one. She's the only one who's seen a live patient in the last 20 to 25 years. She sees them all the time. She sees them all the time. He goes to unlock the door at 7.23. Minute 7.23 in the recording. He's gone for a total of 20 seconds open. The reason he does that, and the state brought this up, the Halligan tool to demonstrate that somehow that he was causing delays because he didn't care or something like that. He professionally should know not to go down there and stop doing compressions. But he was gone 20 seconds. This is a man who knows that if he didn't, that the Halligan device is going to be on the engine, which might be one, two, three minutes later in the ambulance, which was not Halligan. So he's gone 20 seconds. It was a good judgment call that he was doing his very best to make her chances of surviving the best, to make the chances of her dying minimized. That is what he did. In the call, you'll also hear him say something like, I should have known. I should have known. He's talking about when she threw up and he was caring for her. I should have known. I should have done something. He should have helped. This is not a man who has just killed his wife. It makes no sense. The 911 call speaks volumes. So he calls 911, and what does he know? What is the one thing he knows? He's got a lot of choices here. If the state said he killed her at around 2 o'clock in the morning or 3 o'clock in the morning, what would you have when the medics arrived? You'd have rigor mortis. You'd have the baby. And what did we hear from the witness? We don't try to resuscitate people with rigor mortis. We didn't. We don't. They don't even touch that. So we know that this is a person who's just recently gone into cardiac arrest. We know that. So what does he know when he makes that call? He knows that he's going to get anywhere between four and nine paramedics and professionals who know what they're doing, who can assess the situation, who can scrutinize things. He knows he's going to get law enforcement. He knows that. And he knows there's going to be an autopsy if there's a death. He knows that. He's been doing this for a long time. They leave the eye gel in for the medical examiner because that's a request. So they know that. These paramedics understand that whole process. He knows who's coming. And the people who are coming who are paramedics, what do they know? They know that he's told them he's not having this marriage. He's thinking about leaving her. He's thinking about leaving her soon. He's worried about finances. He's worried about his pension. He's calling all these people over to this situation when he just killed her. He had a lot of choices. He didn't have to call them. He could have left her and gone somewhere else. If he was really that diabolical, he could have tumbled her down the stairs. He could have done a whole lot of things. He could have gone to sleep in another room. He could have done all those things. And he was honest with me. He didn't sleep at her. Off and on, he did. But he had all those choices. And the one thing he chose was to call the paramedics, which put him under scrutiny. It increased her chance of survival. If a person had just killed their wife or their spouse just now, and they successfully revive that person, what a nightmare that would be. Guess who's going to point the finger and say, you just choked me out? He called and did his best to try to save her. His mind was clear and his judgment was good. When the medics come in, they're working in the dark. It's not the pitch black that Kevin was working in, but they're working in the dark. Because they have just the lighting from the bathroom, from the hallway, and the closet. That's about it. So they're kind of working in the dark, but they're doing their very best. And this is what Eric Miller said. He said, we bring order to chaos. Remember that. Even a paramedic can recognize that this is not a calm situation. They're not being gentle. They're not treating them gingerly. This is a last-ditch effort, one of them said, because this is the only chance they have to save their life, and every second counts. They're doing everything they can as fast as they can in a way that doesn't kill the person, but they want to save that person. They're moving their hands quickly. They're handing that person not that gently. They're in their shouting orders, and, you know, you heard someone in there yell, I don't. So these guys are going really fast. They're doing their best. They're very well-trained professionals. But they're having what Dr. Stink has called aggressive contact with that person. They're working on getting the mask on. They have to get that on their tight so it gets a seal. If you're working with one hand, then you've got to have a much tighter grip to get that whole thing down. And if you're switching hands, you're doing it on both sides. This kind of stuff can happen any single time. Every time this could happen. The EC grip they talked about had one finger up here, the other one straight below the chin line, and then they reach up on the mask and squeeze like that. The other one, and you saw Mark Whitland demonstrate this. Did you see the grip you put on that face when he was putting the tongue on, he was putting that up? He was grabbing very aggressively. They're not being gentle, and they have to pull that head back and up and tilt it back so that they get an open airway. And that can be a little more difficult for people who have a lot of extra tissue because it could have a tendency to kind of collapse on itself. So the opportunity for injury, for bruising, is significant in a case like this, even with professionals who are well-trained and doing their very, [01:05:35] Speaker ?: and doing their very, [01:05:35] Speaker 2: very best. For them, Marcy's appearance was the last thing on that line. It was a consideration, but they wanted to save her. They weren't that worried about what the face was going to look like later. Now, the state has two theories they've boiled down to. One is that he did a, this, I don't have a hard time saying, because it's a naked, rare arm, show home. Okay. What's the problem with that? Here's the problem. So, if you're doing it from behind, and it's in bed, and Marcy is having a seizure, a full-body seizure, and this is the kind where they urinate. Remember Mark Woodland said the vast majority of people having seizures were urinating. And she did. She urinated a lot. She urinated all over the bed. That's what Mark Woodland said. He said, there's a big bunch of urine on top, there's no urine on the bottom. Nothing does it happen on the bed. If Kevin is behind her doing this, why wouldn't he have urine on? Doesn't fit. But if you're following the program, if it doesn't fit, force it. The state will have another chance to talk to you. So they're going to figure out a way to force that. Ask them to force that fact. Why is there no urine on Kevin at all? And the idea that now, okay, well, if not that, we're not really sure, but we want you to be sure, okay, not us. Now, it's pressing the thumbs on there. If you're going to press on the thumb to use your common sense. Yeah, we had doctors here for three days. If you press hard enough on someone to choke them out, you're going to get some fight back, number one, and you're going to get some deep, deep bruising. That's just common sense. after Marcy passed away, after Marcy passed away, you heard the testimony. He was going from hysterical to nothing, so just one. Hysterical, nothing, just one. How is a person supposed to be angry? Everybody processes grief in their own way. Everybody's different. And none of us know until we get there, and hopefully we don't, none of us know how it's going to be, talk about anything. Kevin Velines, who used to be a good friend of his, came down in the morning, and at that time, he said, Kevin just had no emotion. And he said something like, I feel bad for not feeling bad. It was at a moment where he was feeling nothing, and he shared that with his good friend. He didn't say, well, I'm sure glad that happened. He didn't say, hey, buddy, I can tell you this is not the worst thing that ever happened. It was nothing like that. He just, with nothing going on on his tail, just said, I just feel bad for not feeling bad. Or I feel bad for not feeling good, or something like that. But he was having a candid moment in these numb, blank feelings of confusion, and that's what he said to his friend. Scott Slocum says, he said, I feel relief. I feel a burden of relief. That was not a conversation that happened that day. That was something that happened later. And it wasn't, the context, it's so out of context that all, there's no contactivity as to what they were talking about. It has something to do with people providing food for the family, and they had this food train that the union put on, and they had this train of food coming every night, and it was such a relief. It lifted such a burden because they had family around, and it gave them food to eat so they didn't have to worry about that. To take that out of context is ridiculous. Casey Jones comes over the first night. She's the gossip. She's a friend of Katie Lindstrom. Well, they kind of, Katie kind of distances herself from Casey is that, well, we work together. But they all shared that PC statement. Remember that? She shared the probable cost. That's the thing that has all the bad stuff. Everything the state is trying to say is contained in that. And it's not necessarily available at that time, but Casey got a hold of it. She works from the fire department. She knows people. She got a hold of it. She emailed it to at least five people, she said. She said she got it from somebody else. So this thing is going around the fire department like wildfire and it's just getting everybody thinking and talking. And so now suddenly everything you do is suspicious. Every time you say you clear a table, you're clearing things off of it instead of getting somebody over there. Everything's being misinterpreted. You're being viewed in the most dim light possible. Casey says, well, he seemed happier than he'd ever seen. He was happy, he was smiling, he was fake crying. Reminds me of that book The Stranger by DeMaule where the guy's convicted because somebody said he didn't cry at his own mother's funeral. It has nothing to do with this. That's just gossip. They're making a big deal out of the fact that Kevin deleted messages from his phone. You saw the messages. You had them read to you. They're terrible. It's a fight between the parents of kind of going back and forth and accusing each other of stuff. Megan wanted the phone. Kevin wanted to give it to her. He didn't want her to have the last memory of her mother being this terrible fight that she had. It wasn't that bad, actually. This kind of mean words going back and forth between her mother and her father. He got rid of those messages. And if you look at the dates he got rid of them, it was substantially after she passed away and it was just before he gave the phone to Megan. The picture, as you come in the front door, there's a living room to the left. There's a picture up on the wall and you have to look at it every single time you went out. He loved this one. But it was a painful memory. So he took it down took it upstairs and placed it against the wall so they wouldn't see it all the time just to give themselves time to heal. Because she didn't just pass away. She died tragically and dramatically and unexpectedly. this is painful. The furniture, you heard a lot about the furniture. Didn't want to sleep in that furniture anymore. They never want it in the first place and in some ways it's kind of an honor to Marcy and they didn't want to finally get rid of it because they never really wanted this stuff. It was just convenient and it was economically good to keep it when they first bought the house. So they, he doesn't get rid of it right away. This is not a guy who killed his wife. This is a guy who right after the storm, maybe around the 22nd, 21st, 20th, something like that, his friends help him get rid of that stuff. His mother washed the sheets, his sister threw away Marcy's pillow and his dad threw away the comforter. Kevin didn't do this stuff. And then they're talking about him vacuuming his room. Well, his friend did that. You heard, you heard, you heard Wade talk about that. He said, he said he's the one who did it because he helped with the bed. It was messy underneath. There was a lot of stuff in there so he helped clean that up. But, you know, if you hear these things, if you want to date, Kevin looked bad, blame him for it. The police show up unannounced on the 23rd. When he hears them there, he invites them in. Holds the dog back. You see the dog in the video? The dog's very protective. The dog barks. The dog that's very protective and barking, do you think a dog is going to sit by while somebody is strangling out one of their owners? These are the things, we can't put the dog on the stand but the dog can testify. The dog didn't say anything. In fact, in the video, it was a dog who was standing all over the camera. if you look at the searches, they talked about we had Detective Tellison be testifying. They had thousands and thousands and thousands of text messages and Google searches and whatnot. Kevin is about the most text-happy person you could know. He texts everybody prolifically. In all those thousands of messages and emails and searches, not once is there anything suspicious like how to kill your wife and get away from it, what to do with this, how to do that. There's nothing even related to her death as far as how to hide something, how to cover up something, when this happens, how does that happen? What can an autopsy reveal? Will a strangulation show up in an autopsy? Nothing like that. And they took his phones without notice. And all they can do is make a big deal out of the fact that he got rid of a bunch of nasty messages between him and his wife before he gave his daughter the phone. It is true that Kevin had an affair. It's true that he was in love with this other woman. It's true he had plans with her. He didn't tell the detectives everything about it because they didn't ask him about it. He didn't. He was just kind of talking about was he downplaying a little bit with them? Probably. But at the time he didn't know he was under investigation for the murder of his wife who passed away tragically by his side. He didn't know that. the thing about the dog is the little thing that I refer to as body. There are certain things that are unspoken in a trial testimony we can't take. But we look a lot in the language. Matters like this people kind of scatter from one side to the other. We did it. We did it. I don't know. Something like that. And you can see the people who wrote the PC statement around the firehouse how they're kind of reticent to endorse him except for one of the witnesses. Kevin's kids Megan and Ted both still love him. They're both very close to their mother and both very close to their father. And Ted said I was close to both but I was close to my mother. They're right by his side. They're standing with him. They love him but they're being honest with you. But their body language tells you that they're still supporting him. The autopsy in this case and there's two. There's two autopsies. There's the first one that doesn't reach any conclusion the body sent away to the funeral home and here comes this part that they're trying to make it sound like it's routine. This is unheard of. You ever heard of this? We're going to have the autopsy we put the organs back in we sew it up we put it in the bag we either give it to the driver and then somebody comes in and says well hey we're having an affair. [01:18:16] Speaker 1: Objection fax time and evidence. [01:18:19] Speaker 2: We'll do objection and then and then call up hey add that driver turn on bring the body back and then a day later they start again and Dr. Burt said on the stand when she's talking about the injury she goes it didn't look that bad to me the first time it didn't look like that much it looked worse the second time after she had this new information where's the objectivity? this doctor's being swayed by a rumor and the state's absolutely right we don't have a good explanation for the you don't have a good explanation for the swelling around the soft you know Kevin didn't cause it doesn't know how it got there he's had a lot of time to think about it if he had planned this and knew what was coming he could have said I heard her fall he could have said she fell he could have said so many things he could have said I bumped her head on the nightstand when I was loaning to the floor because I was in a hurry and she was happy he didn't say any of that he's had all this time to say that and he never did and the state keeps saying well you keep changing your story but they haven't said how could it have been Ted's massage? nobody knows Dr. Birch said that it could be caused by a long sustained pressure could cause that kind of bruising and the reason we know that it's just a bruise a contusion and not a hematoma is because she didn't write it in her report remember what Dr. Nara said I asked her if there's a hematoma would you put that in your report would you put the word in there she goes yes did you see the word hematoma in Dr. Birch's report no idea here's the other side of that hematoma is the bump part the bruise is the color the hematoma is the bump part and and when the investigator Christine what did she do she said she palpated the skull she's trained in this they palpated the skull looking for bumps did she find any bumps no she was there within two hours of Marcy's passing didn't feel any bumps and it doesn't show up in the doctor's report the bruising around the jawline that's just EMS efforts do we know that for fact no but it makes sense because you don't have to force the facts to make that if you want to believe the state with their story now the bruising on the carotid sheath this is this is quite telling this is where the state doesn't even get close to right here is that Dr. Burt said well we don't cut into the carotid sheath that would be the only way to really verify that it had been impacted we don't do that why just because they might want to do a show when EMS did their work the last thing on their mind was the appearance of her face when Dr. Burt did it the first thing on her mind was the appearance of her [01:22:06] Speaker ?: face [01:22:06] Speaker 2: she didn't have to be sure they want you to be sure but Dr. Burt didn't think it was necessary I don't need to be sure I can just go ahead and jump to that conclusion I [01:22:24] Speaker ?: you [01:22:31] Speaker 2: will have those leggings and evidence and I encourage you to take a look at them it just corroborates the hair and so forth in the picture that I just showed you that shows the large here and staying around here the one that's just on top but that doesn't reflect the large one that was on the bed so that would be something you can consider this is the phone on the bed this is the phone picture that detective Lopez took that shows you where the phone was this is corroborative the idea that somebody early on took the nightstand yep I way and took the phone off and threw it off the bed or maybe Marcy had the phone in her hands who knows but it doesn't matter we talked about the closet the detective made a big deal out of the fact that there was largely men's clothing in the closet meaning that and things were not tidy meaning that only a man could live there but remember this is all women's clothing over heaven's work stuff and those are a few of the shirts right there and Marcy's got a pile of clothes down below in drawers or something like [01:23:48] Speaker ?: there there [01:23:53] Speaker 2: is another view of the same and you can look at these and ponder these all your life this is Marcy's complexion and the doctor said she could see the tiki on there Dr. Mara said yeah it could Dr. Senka said mostly not maybe a couple but there's a lot of opportunity for tiki it could be the throwing up it could be the lucas device it could be the compressions could be a whole lot of things but this is not what you get these are blemishes here this is not what you get when somebody is choked out and killed because Dr. Stagas says she's seen people who come in from training at the military base and they practice this chokehold in 20 seconds where somebody has just passed out they have a sharp demarcation between no tiki and lots of tiki and that's because she explained about the compression of the jugular and the carotid and the vertebral and the still supplying the brain you remember that I won't say again but there would have been significant tiki and there's just not and but rather to be sure why don't we just take a leave and just assume it is and that's what we did here why because she didn't take the five minutes it would take to cut out that little spot send it to the lab and see if it wasn't worth her time why bother why be that sure when I assume and I don't have to do that short Dr. Garner said this thing when I asked Dr. Burt remember this she would not tell me anything she wouldn't agree with me on anything I asked her if it was better to do an autopsy quickly she could you define quickly so she did not want to cooperate with me on anything this bruising this is this is again this is blemishes maybe a little bit of CPR injury if you want to call it that and injury is kind of a strong word a little bruise it's not injury maybe in medical terms but not in regular people speak this is just these are just blemishes on her face it's just her conclusion I'm sorry to show you this again but the doctor is looking at spots and saying I don't know what to make of that she's just looking at photos these are not photos she's been looking at recently these are not photos she looked at at the time she didn't take them she didn't review them she didn't finish the autopsy until two days later so she doesn't know what these are she's just assuming you can use your common sense you can give great weight to a expert so you don't have to you can use your common sense the jury instruction says that because if you look at this these shadows up here she says are interesting they're shadows they're just shadows this part down here looks more like an injury when you look at it but that's up to you to sight but those are what she calls artifacts in other words she says we probably did that when we were coming in there so take a good close look at these and judge for yourself those are not injuries and if those are artifacts why aren't these artifacts she doesn't know and sometimes a bruise is just a bruise people get bruises all the time anybody who works in a shop gets bruises all the time anybody who works in the yard gets bruises all the time do some gardening and get bruises we all get them sometimes they'll have a bruise they don't know where it came from this is the part where the confusion is back this is where Ted said he was getting his deep massage again do we know if that has it but she liked it hard she liked it firm didn't complain she wanted more more more this is the picture of the wedding that Kevin took down and put upstairs and the bottom line is the level of certainty you have to have is beyond a reasonable doubt not beyond all doubt but beyond all reasonable doubt what kind of certainty do we have here what did Dr. Hurt say every question was answered with could be potentially she must have said that 50 times could be potentially that is not proof beyond a reasonable doubt it is a guess when you don't bother to verify petechia you don't bother to cut into the karate sheet because you want to save someone's face for appealing you're missing information you're making a decision based upon insufficient information that is what we call a guess it is and it is not proof there is nothing in the jury instructions that says well you can take a guess it doesn't say that in fact what the jury instructions say is completely different it does not say you don't have to be that sure it says that if from such consideration this is in your during instruction you're going to get this to go back with you if from such consideration after having looked at all the evidence you have an abiding belief in the truth of the charge then you are satisfied abiding truth you have to have an abiding belief that is a belief that we save for our faith for the love of our children that's when the abiding belief is it's a strongly held fundamental belief that doesn't change in five minutes or five days or five weeks it doesn't change when you walk out the door it is a decision you make based upon an abiding belief that lasts forever they did not do that in this case and there's another instruction that says that the fact that punishment may follow is not to be considered by you in so far as it shall tend to make you [01:31:23] Speaker ?: care [01:31:24] Speaker 2: that's not in there by accident that is that is intentional that is to let you know how important this is that is why we've been here for two full weeks thank you very much for staying with both we've been here for two weeks we've occupied all your time we started with about 90 people back from to you new people because this is important and these words these jury instructions are age old there's no mistake you have to be extremely careful ladies and gentlemen I want to thank you so much for your time thank you for listening to not falling asleep carrying my mother up here and I ask that you find Kevin not guilty of murder in first degree not guilty of murder in second degree [01:32:20] Speaker ?: thank you [01:32:21] Speaker 3: because the state has a burden of proof they also have the last opportunity to address you in rebuttal argument in February did you wish to make rebuttal argument yes that was a lot [01:32:50] Speaker 1: there was a lot in there that was not in evidence that was not testified to by any person and I think it's an important reminder that what I say and what defense council says is not evidence the evidence is the testimony that you've heard and the exhibits that you'll have with you I'm not going to go through everything he talked about but there are a few things that I'd like to touch on one is he said Kevin's had two years to come up with a way that she was injured but he hasn't except he has remember he paraded in his son who had given a demonstration of a massage that he had given his mother right where he only touched these parts in fact he was very careful to say sometimes sometimes I lift up on the jaw but I didn't on this occasion that video where Mr. Walker interjects and says that's not how you do you just don't really remember you can watch the video it's in evidence and then he comes in here and now all of a sudden he's taking his elbow to the back of his mother's head which is completely different than what he did the video and he's massaging his mother's carotis it's not reasonable it's true that his kids love him there's no doubt and there's no doubt that they love their mother and they probably can't imagine a scenario where their father would hurt their mother so they're willing to do whatever it takes even from being different it's understandable it's not reasonable they're saying it's not reasonable they've been manipulated as far as the phone deletion that he was talking about he's saying that yes of course he deleted the fight because he was going to give marcy's phone to his daughter megan except the information that was deleted was on kevin's phone not on marcy's phone that was not the phone that was being given to megan in any event marcy's phone was still in the house megan was back at u-dub megan hadn't taken the phone there's a lot of talk about what's going on in the room right what's we're talking a lot about the side table nightstand why is it important well it's not the smoking down it's something that comes up in one of his interviews it's a little weird where he says that he had to clear the nightstand to get her off the bed and when they look at the body cam huh there's no nightstand there a little strange it wouldn't be a big deal if he took the stand and said I thought there was a nightstand maybe there wasn't he's doubling down he just keeps saying there was a nightstand there was a nightstand there's no nightstand why is he lying the defendant the table was not there by Marcy's side probably because they weren't really sleeping in the same room together at that stage remember Chris Castle said that the defendant had made a comment that this was the first time they'd slept together in a while and that makes sense when you look at their texts they're continuing to make it an issue they're bringing in additional exhibits of the bed and the nightstand there's no one saying they moved it there's no one observed moving it the body worn camera starts shortly after the camera I survived the first person in is Rick Burnham he says there's no nightstand didn't see it didn't move it take it for what's worth as far as the bed and the urine are concerned we can't say definitively that there was urine in the bed but Mark Woodland testified that there was a substance on the bed that was consistent with urine unfortunately by the time law enforcement executes the search warrant the bed is gone the mattress is gone the bedding is gone or washed so it's hard to confirm but her pants do have what appears to be urine on them so it makes sense that there could be urine in the bed does that tell us how she died no because you'll remember Dr. Burt's testimony that even people that survive strangulations often urinate themselves it's a common hallmark of a strangulation and it's a common hallmark of dying and it's a common hallmark of a seizure so it doesn't really tell us how she died it just gives us maybe a clue about where she was at some point during the struggle or the death now defense counsel showed you a photograph of the bed with her phone in it where she was and the sheets now you'll notice that the sheets are also a little bit strange sheets are pulled away from the side of the bed toward the center of the bed which is a little bizarre if he's pulling her off the bed this way why is that is it a smoking bed no it's a little weird hands are inside out the bra is fastened strangely she's wearing an underwire bra there's a lot of discussion about the bra take it for what it's worth it's things that are just a little bizarre we fully understand their significance probably but it's possible that they didn't go to bed that night it's possible that they were having a fight it's possible that he had told her he was going to leave perhaps she told him she was going to leave we don't know we weren't there but it certainly wasn't a situation where both parties went to bed slept and he woke to a seizure because we can tell from the phones that he was up I want to talk a little bit about the experts as counsel brought up Dr. Sankis Dr. Nara Burt there was two others there was two paramedics that were called as experts there was Wade Faircloth from defense and there was Mark Whitland from the state so as far as Wade Faircloth was concerned he really didn't have a whole lot to contribute he said that he testified about the ETCO2 levels on her rent sheet but conceded that it doesn't tell you anything about when she actually died that her levels could be consistent with somebody that died hours prior Mark Whitland is arguably more qualified than Wade Faircloth Mark Whitland is the EMS trainer as you'll recall he's the one that brought in the band valve mask the lucas things like that he testified that Mark's glucose level was consistent with someone in his training and experience who has just had a seizure and testified again about what the ETCO2 levels showed don't show and he is consistent with Dr. Burt Dr. Burt said that the glucose levels were more suggestive of a trauma such as strangulation and whatever else happened some sort of a blow she's got some bruising on her elbows we don't really know but there was some sort struggle and she explained to you in great detail what her findings were and why she ultimately ruled that this case was asphyxia due to blood neck trauma and a homicide she did actually cut into the carotid sheets defense count was a little bit confused she didn't cut into the carotid artery the carotid artery is the thing that takes the blood to the brain that used for the embalming doesn't really matter she was able to fully visualize the hemorrhaging to the carotid sheath there wasn't an injury to the carotid artery so there was no reason to cut into it she was able to fully visualize that she testified as to why that would be the case the carotid sheath is a much thinner substance it's more vascularized the carotid artery and the jugular vein are thicker more hardy harder to damage but that the hemorrhaging to the carotid sheath was consistent with the pressure that would cause occlusion of both so cutting off the blood for them Dr. Byrne also testified that rigor vortis and lividity would not set in a few hours as defense counsel just told you there was no testimony of that Dr. Nara was a forensic pathologist in defense called but she's also the one that peer reviewed Dr. Byrne's work and agreed with Dr. Byrne's work she agreed to the cause and manner of death blunt force trauma to the neck asphyxia and to manner of death being a homicide by Dr. Stankis she's not a forensic pathologist she's not a trained death investigator she's not a neurologist she's not a leptologist or a surgeon she's an ER physician who works in that capacity approximately half the time she arguably has a financial motive if you recall she charges $500 an hour she was not provided all of the information she was not provided the police reports she was not provided all of the autopsy photos she's working with an incomplete set of data and all she really testified to was that she would expect more of TKI and a strangulation death and which Dr. Byrne refused and about the blood glucose level which is refuted by both Dr. Byrne and Mark Whitland but just as important as what Dr. Stankis does testify about is what she does not testify about she has no explanation for Marcy's injuries and you'll recall that she's qualified to [01:43:56] Speaker 2: the defense council the defense counsel [01:44:00] Speaker 1: asked Dr. Stankis isn't it true that part of your job is identifying the mechanism of the injury you recall that and she said yes but then they don't want to have her actually identify the mechanism of the injuries because she won't she testified that she was asked to opine on the massage causing the injuries but was not comfortable doing that why not because as Dr. Byrne testified a massage would not cause these injuries she also had no explanation for the hemorrhage the cried sheath no explanation for the hemorrhage to the esophagus no explanation for the bilateral bruising behind the ears no one of the first responders indicated that they ever put their fingers behind Marcy's ears in fact Michaela was asked that and said that she did not she also said that she didn't use this mechanism for the head tilt she used this and so the bruise that slight bruise that defense counsel just put up that's down here Dr. Byrne testified that that's over the carotid sheath that's over the area that the hemorrhage is now the defense counsel says Marcy has chronic headaches and we're somehow supposed to make the leap that chronic headaches leads to death there's no testimony about that but for the sake of argument let's go down that road Connie Hahn sat next to Marcy for 20 years at work and testified that she never saw her complaining of a headache never saw her exhibiting signs of suffering from a headache or a migraine you'll notice [01:46:09] Speaker ?: you'll notice you'll notice [01:46:09] Speaker 1: that every witness has her having significantly more headaches Ted said four a year I think and then Megan was like every day every other day it was pretty frequent and then when the defendant got up there he said she's having them every day or every other the ibuprofen in her purse has gone from a travel pack to a Costco sized bottle I want to play you a clip this is from the defendant's first interview on January 23rd and remember defense counsel saying a story never changes [01:46:54] Speaker 2: did she often have headaches she didn't have migraines she didn't have headaches she didn't have [01:47:08] Speaker ?: migraines she didn't have headaches [01:47:09] Speaker 1: that's what he said that's what he said in the first interview with CCSO January 23rd or 2024 that story has changed significantly why? because he needs to come up with an excuse for how Marcy did it the defense counsel would have you believe that Marcy basically caused her own death and that she caused the affair they want to believe [01:47:44] Speaker ?: to believe [01:47:44] Speaker 1: that Marcy her sedentary lifestyle her bad eating habits her fondness for diet coke very bad diet coke or diet pepsi got a pretty bad rap in this case that's what killed her and while [01:48:01] Speaker ?: and while [01:48:01] Speaker 1: they're at it they want to also blame her for his affair with Cynthia they want to believe that lack of sex poor housekeeping skills lack of cooking opening and again closing they talk about how she wouldn't go to social functions we now have a pretty good idea of the thoughts because she wasn't invited from the testimony of Casey they paint a picture in court that's pretty consistent with the blaming in the fight from December 13th the text between the defendant and Marcy just weeks prior to her death where he's blaming her much the same way they blamed her in court but that was not who Marcy was Marcy was a loving mother she was a daughter she was a friend and she did not believe what happened to her the defendant in this case is willing to pin this on everyone and anyone first responders caused the bruising Ted caused the contusion maybe the carotid hemorrhage the cat caused him to have to empty the room Marcy is blamed for a lot and now finally she's blamed for carrying his phone around all night according to the defense the only person not responsible for any of this is the defendant but there's a number of leaps that you need to take in order to buy defenses theory in this particular case first someone had to have caused the hemorrhage to the outside of Marcy's esophagus it wasn't Michaela it wasn't the eye gel Dr. Burt told you why that doesn't make sense it's on the outside this is a very protected structure it's between the trachea and the spine the front and the back and the carotid sheets the carotid the jugular sides there's also a number of muscles right here it's deep in the neck this is your food tube they have no reasonable explanation for that injury the carotid cheeks there's hemorrhaging to both of them they're high in her neck just under the jaw they're putting up a picture now and saying it's a shadow it's not reasonable Dr. Burt explained in great detail what those hemorrhages were you saw them in photos they're taking photos of photos and putting them up you'll have the actual photos with you there's no reasonable explanation to that injury the Apple health data you'd have to believe that Marcy got up and was running all over the house with the defendant's phone basically on my phone she has her own phone if she's trying to go through his phone that's not necessarily something you'd be running around the house for the fence would have me believe that she had his phone until at least 421 where the phone takes 198 steps and then she plugs it in on his side of the bed she sneaks back to her side of the bed she tucks herself in she has a seizure and dies it's not reasonable if she was up all night going through his phone it's reasonable to conclude that that's motive right he wakes up to her going through his phone but that's not what happened here the person walking around with the defendant's phone was the defendant probably trying to figure out what the heck he's going to do after he had just strangled his wife and the answer he came up with is stage an emergency stage a medical event and call your buddies and the date you'd have to believe that it was just a coincidence that she died from natural causes on the date that he told multiple members of Cynthia's family that he was going to leave messages that he later tried to conceal by deleting them from his phone not from the phone he gave me the only reason he deleted them was to conceal them from law enforcement the defense in this case has reminded you that the defendant is a firefighter many many signs but uniforms do not change anatomy and uniforms do not override medical evidence this case is not about what Kevin West did as an occupation this case is about what Kevin West did behind closed doors Marcy Marcy's body tells us what happened to her his phone tells us why and when you put all of it together there is only one conclusion that fits every piece of the evidence Marcy was killed by vascular strangulation at the hands of her husband the law requires proof beyond a reasonable doubt not proof beyond all doubt and the standard has been met on behalf of the state of Washington we ask that you return the only verdict consistent with the evidence in this particular case and that is guilty on both counts thank you