1.Kayla Avery — Direct/Cross/Redirect
258 lines(Reconvened at 9:02 a.m.)
THE COURT: Morning, ladies and gentlemen, counsel. Uh, this is State of Wisconsin vs. Brendan Dassey, 06 CF 88. Appearances, please.
MR. FALLON: Morning, Your Honor. May it please the Court, the State continues in its appearance by Special Prosecutors Ken Kratz, Tom Fallon, Norm Gahn.
MR. FREMGEN: Attorney Mark Fremgen appears with Attorney Ray Edelstein. Brendan Dassey appears in person.
THE COURT: All right. Uh, members of the prosecution, are we ready to go?
MR. FALLON: We are.
THE COURT: Okay.
MR. FALLON: State --
THE COURT: Proceed.
MR. FALLON: State will call its first witness, Kayla Avery.
COURT CLERK: Please raise your right hand.
KAYLA AVERY, called as a witness herein, having been first duly sworn, was examined and testified as follows:
COURT CLERK: Please be seated. Please state your name and spell your last name for the record.
KAYLA AVERY: Kayla Avery, A-v-e-r-y.
DIRECT EXAMINATION BY ATTORNEY FALLON:
MR. FALLON: Good morning. How old are you, Kayla?
KAYLA AVERY: Fifteen.
MR. FALLON: All right. And do you go to school?
KAYLA AVERY: Yes.
MR. FALLON: What school do you go to?
KAYLA AVERY: Mishicot. Mishicot High School.
MR. FALLON: All right. And what grade are you in there?
KAYLA AVERY: Ninth.
MR. FALLON: All right. And would you tell us who your mom and dad are?
KAYLA AVERY: Earl and Candy Avery.
MR. FALLON: Okay. Um, are you related to Brendan Dassey?
KAYLA AVERY: Yes.
MR. FALLON: And, uh, how are you related to Brendan?
KAYLA AVERY: Um, well, we're first -- we're first cous -- we're first cousins, and through my dad is -- my dad is Barbara's brother, and Brendan's Barbara's son.
MR. FALLON: Okay. Very good. Now, um, while you're growing up, were you and Brendan close or good friends?
KAYLA AVERY: Um, kind of. Not really.
MR. FALLON: All right. Do you like Brendan?
KAYLA AVERY: Yes.
MR. FALLON: Okay. Do you care about him a great deal?
KAYLA AVERY: Yes.
MR. FALLON: Okay. Um, how often would you see Brendan on a normal -- at a normal time?
KAYLA AVERY: Um, prob -- probably once a week probably.
MR. FALLON: Okay. All right. Now, thinking about the time, from Halloween on October 31, 2005, until, say, the end of February, 2006, about four-month period, did you notice any changes in Brendan?
KAYLA AVERY: Kind of. Yeah.
MR. FALLON: All right. Tell us about the changes that you saw?
KAYLA AVERY: It looked like he was losing weight and he was a little bit more upset.
MR. FALLON: All right. You're -- you're -- you're going to have to put that mike a little bit closer so that everybody can hear, all right? All right. Thank you. Um, why was that different from what you had seen before that?
KAYLA AVERY: Um, he really wasn't acting the same.
MR. FALLON: Okay. Had he -- Before that, was he more of a happy-go-lucky type of boy?
KAYLA AVERY: Kind of. Yeah.
MR. FALLON: Was he pretty friendly to you?
KAYLA AVERY: Yeah.
MR. FALLON: All right. And as far as you could tell, did he seem to be friendly to other people?
KAYLA AVERY: Uh, yeah.
MR. FALLON: All right. But during this four-month period, is that what changed?
KAYLA AVERY: Um, kind of. He was still nice to people.
MR. FALLON: All right. But was he as outgoing as he was before?
KAYLA AVERY: Kind of. Not really.
MR. FALLON: Not really. Okay. All right. I want to direct your attention to a time in December of 2005. Did you have a conversation with Brendan about Teresa Halbach?
KAYLA AVERY: Kind of. Yeah.
MR. FALLON: All right. Would you tell us about that conversation with Brendan?
KAYLA AVERY: Well, um -- Well, not in December. November.
MR. FALLON: Okay. Tell us about it?
KAYLA AVERY: In November, um, he was -- he was, um, sitting in our hallway, and, um, he was just in there. One of my friends looked out the door, because we were having a birthday party, and he came over, um, and he -- he was -- my friend just looked out the door and seen him crying, and then she came to me. And then I went out there by him, and I asked him what was wrong, and all he did is shrugged his shoulders.
MR. FALLON: Okay. And then what did you ask?
KAYLA AVERY: And then I asked him if it was about the Steven thing.
MR. FALLON: All right.
KAYLA AVERY: And he shrugged his shoulders, and I was, like, you know you can -- you know you can talk to me, and then I just went back inside my room.
MR. FALLON: All right. And whose birthday party was this?
KAYLA AVERY: My cousin, Ashley's.
MR. FALLON: All right. And what's Ashley's last name?
KAYLA AVERY: Chevalier.
MR. FALLON: Okay. And where was the birthday party being held?
KAYLA AVERY: My house.
MR. FALLON: All right. Now, when is her birthday? Is it -- Is it February? Or January? Or when is her birthday?
KAYLA AVERY: I think it's February.
MR. FALLON: All right. Now, was the party actually on her, um, birthday, or a day or two before or after? Do you remember?
KAYLA AVERY: No.
MR. FALLON: Okay. Now, you asked Brendan about, did it have something to do with this "Steven thing". Tell us about the conversation you had with Brendan regarding Steven to which you referred?
KAYLA AVERY: We didn't have a conversation about it.
MR. FALLON: All right. Didn't you tell your counselors at school about a conversation you had with Brendan?
KAYLA AVERY: Yeah.
MR. FALLON: All right. And you told Officers Wiegert and Fassbender about that conversation as well; right?
KAYLA AVERY: Yes.
MR. FALLON: All right. Tell us what you told them?
KAYLA AVERY: I told them that he was crying on the steps and stuff like that.
MR. FALLON: All right. What -- What about the conversation regarding a fire? Tell us about that?
KAYLA AVERY: That on, I think it was October 31, uh, we went down by my grandma's for trick or treating, and on the way back, I asked my mom if we could go down to the bonfire because I seen it, and my mom said, no.
MR. FALLON: All right. In terms of your conversation with your counselors, the one you told Investigator Wiegert and Fassbender about -- these two guys right here -- You recognize those two guys?
KAYLA AVERY: (No verbal response. )
MR. FALLON: Yes?
KAYLA AVERY: Yes.
MR. FALLON: Yes. Okay. Did you tell -- You told them about a conversation you had with Brendan about -- about that bonfire and what was in the bonfire. Tell us about that?
KAYLA AVERY: I really don't remember.
MR. FALLON: All right. Now, Kayla, didn't you tell the officers that Brendan told you he had seen body parts in a fire?
MR. FREMGEN: Judge, I'd object at this point. I think, first, the State should probably try to refresh recollection (inaudible.)
COURT REPORTER: Mr. Fremgen, can you speak up, please?
MR. FREMGEN: Oh, I'm sorry. Judge, my -- my argument is simply that I think the State should try to refresh recollection with whatever documents they're referring to, as far as the statement, before they go directly to, I think, the efforts they're going to now.
THE COURT: Mr. Fallon?
MR. FALLON: Well, it is our witness to, uh, pursue -- proceed as we feel appropriate under the circumstances. I'm asking her, directly. I mean, quite frankly, if one is to impeach a witness, one must give the witness, first, an opportunity.
THE COURT: Yeah. I'm going to overrule the objection. You may go on.
MR. FALLON: All right.
MR. FALLON: (By Attorney Fallon) What did -- What did you report telling the officers that Brendan told you about the fire?
KAYLA AVERY: I really can't remember.
MR. FALLON: All right. Did you give the officers a statement?
KAYLA AVERY: Uh, yeah.
MR. FALLON: All right.
(Exhibit No. 163 marked for identification.)
MR. FALLON: May I approach?
THE COURT: You may.
MR. FALLON: (By Attorney Fallon) Kayla, I'm showing you what has been marked for identification as this Exhibit 163. Would you hold that for me, please? All right. I'm going to take my seat here and ask some questions. Do you recognize that exhibit?
KAYLA AVERY: (No verbal response.)
MR. FALLON: Is that a yes?
THE COURT: You have -- .
KAYLA AVERY: Yes.
THE COURT: -- to answer out loud.
KAYLA AVERY: Yes.
MR. FALLON: (By Attorney Fallon) All right. And is that the statement that you gave to Officers, um, Fassbender and Wiegert?
KAYLA AVERY: Yes.
MR. FALLON: All right. Would you take a moment to read that statement to yourself, please? Have you finished reading it?
KAYLA AVERY: Yes.
MR. FALLON: I'm going to have Mr. Kratz take the statement. Okay. Does reviewing that statement help you remember?
KAYLA AVERY: Yes.
MR. FALLON: All right. What did Brendan tell you about the fire? You'll have to pull the microphone a little closer so we can hear you.
KAYLA AVERY: He didn't tell me anything. I -- I kind of made up the statement. And I'm sorry.
MR. FALLON: All right. What did you make up? Tell us what you said you made up?
KAYLA AVERY: That he seen body parts in there. I didn't -- He didn't see it. I -- He didn't tell me anything like that, or he didn't see Teresa's body or anything like that.
MR. FALLON: You also told the officers that Brendan told you he saw Teresa alive and pinned up, didn't you?
KAYLA AVERY: Yes.
MR. FALLON: All right. And you love Brendan; right?
KAYLA AVERY: Yes. Very much.
MR. FALLON: And you wouldn't tell -- You wouldn't say anything like that to get him in trouble, would you?
KAYLA AVERY: No. Not really.
MR. FALLON: All right. But yet you told the officers that those were the conversations you had with Brendan; isn't that right?
KAYLA AVERY: Yes.
MR. FALLON: All right. You told -- You told the officers that Brendan told you he had seen Teresa pinned up in Steven's trailer, didn't you?
MR. FREMGEN: Ob -- Object. I don't believe that was what the statement actually says.
MR. FALLON: There's --
MR. FREMGEN: And if I could be heard.
MR. FALLON: There's additional statements, Counsel, as you well know.
MR. FREMGEN: Referring to the statement -- If we're referring to the statement that was just used to refresh recollection, I don't believe that's exactly what it says.
THE COURT: Well, why don't you restate the question, Mr. Fallon.
MR. FALLON: All right. I'll restate the question.
MR. FALLON: (By Attorney Fallon) First of all, um, Kayla, so that we're clear, the officers came and interviewed you, uh, the end of February; right?
KAYLA AVERY: Yes.
MR. FALLON: All right. And you had a long conversation with him, your mom, and your dad; right?
KAYLA AVERY: Yes.
MR. FALLON: Okay. And in the written statement that I just showed you, you reported that Brendan told you he had seen body parts in the fire on Halloween; right?
KAYLA AVERY: Yes. But that's not true.
MR. FALLON: All right. And you also told the officers ina separate conversation that day that you had seen -- or that Brendan had seen Teresa alive in Steven's trailer?
KAYLA AVERY: Yes.
MR. FALLON: All right. And that she was pinned up in a chair?
KAYLA AVERY: Yes. But that's not true.
MR. FALLON: All right. Now, you're saying today you made that up?
KAYLA AVERY: Yes.
MR. FALLON: All right. So you're telling us you made something up to get Brendan into trouble?
KAYLA AVERY: Not really. I was just really confused about everything.
MR. FALLON: No further questions for this witness. And to the extent, solely that Exhibit 163 was referred to for refreshment and impeachment, only that portion we seek admission.
THE COURT: All right. Any objection to that?
MR. FREMGEN: With that condition, no.
THE COURT: All right. It's received. Cross.
CROSS-EXAMINATION BY ATTORNEY FREMGEN:
MR. FREMGEN: You indicated that you would often see Brendan once a week?
KAYLA AVERY: Yes.
MR. FREMGEN: Did you guys hang out and do stuff together?
KAYLA AVERY: No. When I went over there, we played video games and stuff, when I went inside his room, and he would be playing them.
MR. FREMGEN: Would it be when your families got together you'd see them -- him then?
KAYLA AVERY: Normally, when we went over there.
MR. FREMGEN: You would go over there?
KAYLA AVERY: (No verbal response.)
MR. FREMGEN: Okay. Would you -- Would you also be there with Blaine, his brother?
KAYLA AVERY: Yes.
MR. FREMGEN: And the other brothers? Bobby?
KAYLA AVERY: Yes. Sometimes.
MR. FREMGEN: Or Bryan?
KAYLA AVERY: Yes.
MR. FREMGEN: You indicated that one of the -- something that concerned you was Brendan was losing weight; right?
KAYLA AVERY: Yes.
MR. FREMGEN: And he was a little more upset?
KAYLA AVERY: Yes.
MR. FREMGEN: Did he sometimes walk around being upset?
KAYLA AVERY: Kind of. Yes.
MR. FREMGEN: Just seemed to you that it was a little more than normal?
KAYLA AVERY: Yes.
MR. FREMGEN: Did -- Now, did you know whether or: not Brendan had a girlfriend at that time?
KAYLA AVERY: At the time, after he was kind of on the steps, I found out that he had a girlfriend. Yes.
MR. FREMGEN: Do you know what happened between him and his girlfriend?
KAYLA AVERY: Um, no. I heard that they broke up, but I don't know if that was true or not.
MR. FREMGEN: Don't know that, though?
KAYLA AVERY: Yes.
MR. FREMGEN: At that birthday party, you tried to talk with Brendan; right?
KAYLA AVERY: Yes.
MR. FREMGEN: And you sat down with Brendan on the stairs?
KAYLA AVERY: Yes.
MR. FREMGEN: And tried to get him to open up to you?
KAYLA AVERY: Yes.
MR. FREMGEN: But all he did was shrug his shoulders?
KAYLA AVERY: Yes.
MR. FREMGEN: And then you just walked away then?
KAYLA AVERY: Yes.
MR. FREMGEN: Now, Mr. Fallon was asking you to look at a -- a statement that you wrote up with two, uh -- well, one investigator and -- and one special agent from the Department of Criminal Investigations. Do you remember that? You just saw it a minute ago?
KAYLA AVERY: Yes.
MR. FREMGEN: You just said that you made that up?
KAYLA AVERY: Yes.
MR. FREMGEN: So when you were talking to the officer -- You understand that they're police officers; right?
KAYLA AVERY: Yes.
MR. FREMGEN: Okay. So you were lying to the police officer?
KAYLA AVERY: Yes.
MR. FREMGEN: Why did you lie?
KAYLA AVERY: I was confused and I didn't know what to do.
MR. FREMGEN: Who were you confused about?
KAYLA AVERY: I don't know. Everything.
MR. FREMGEN: Did -- Now, at the time you spoke to the officers, that was in late February; is that right? Of 2006?
KAYLA AVERY: I -- Yes, I think so.
MR. FREMGEN: Couple weeks before Brendan was arrested; right?-
KAYLA AVERY: Yes.
MR. FREMGEN: Around that time?
KAYLA AVERY: Yes.
MR. FREMGEN: You'd heard some of the news that -- about what happened to Teresa Halbach?
KAYLA AVERY: Yes.
MR. FREMGEN: It was -- It was kind of hard to miss some of that; right?
KAYLA AVERY: Yes.
MR. FREMGEN: Did you know about that burn pit behind Steven's garage?
KAYLA AVERY: Yes. I heard it on the news.
MR. FREMGEN: Read it in the news?
KAYLA AVERY: Yes.
MR. FREMGEN: Did you read that they found body parts in the -- the burn pit, too?
KAYLA AVERY: Yes.
MR. FREMGEN: What -- When you first spoke to the officers, and -- and, again, in -- sometime in late February of 2006, did they come there to talk to you about Brendan?
KAYLA AVERY: I think. I can't remember, but I think -- I think so.
MR. FREMGEN: I -- I don't want you to tell us other things that you said to the officers, okay? But could it have been they came to talk to you about Steven?
KAYLA AVERY: Yes.
MR. FREMGEN: Okay. And then Brendan's name came up?
KAYLA AVERY: Yes.
MR. FREMGEN: When they spoke to you, did they -- let's -- ask you, specifically, about the burn pit and the body parts?
KAYLA AVERY: Yes.
MR. FREMGEN: So when you say that you -- you told them you saw body parts, it was in response to a question they asked you about that?
KAYLA AVERY: Yes.
MR. FREMGEN: When you say that Teresa was pinned up ina chair, where did you hear that?
KAYLA AVERY: I don't know.
MR. FREMGEN: Did someone tell you that?
KAYLA AVERY: Probably, yeah. I don't remember.
MR. FREMGEN: Don't remember where it came from?
KAYLA AVERY: Yes.
MR. FREMGEN: But you remember the body parts and burn pit came from reading the news or TV?
KAYLA AVERY: Yes.
MR. FREMGEN: Now, at this point in time Steven had already been arrested; right?
KAYLA AVERY: Yes.
MR. FREMGEN: Okay. And he was already charged with the -- the murder of Teresa Halbach; right?
KAYLA AVERY: I think so. I don't know.
MR. FREMGEN: You don't remember?
KAYLA AVERY: Yes.
MR. FREMGEN: This was several months after he was arrested though; right?
KAYLA AVERY: I think so. Yes.
MR. FREMGEN: Thank you, Kayla.
THE COURT: Redirect?
MR. FALLON: Yes. One question.
REDIRECT EXAMINATION BY ATTORNEY FALLON:
MR. FALLON: Kayla, isn't it true the officers came to talk to you because of what you told the counselors at school? They asked you about what you told the counselors?
KAYLA AVERY: I don't know. I can't remember.
MR. FALLON: Are you confused?
KAYLA AVERY: Right now? Yes.
MR. FALLON: No further questions.
THE COURT: All right. You may step down. Next witness, Counsel?