12.Amber Kyzer — Direct (Part 2)
172 linesDIRECT EXAMINATION By Ms. Mayes:
MS. MAYES: Ms. Kyzer, I'm going to show you what is State's 178 and 179. I believe you indicated you recognized those as phone calls that were made on the night of the 28th.
AMBER KYZER: Yes, ma'am.
MS. MAYES: Now, I'm going to need you to pull the microphone just a little bit closer to you.
AMBER KYZER: Sorry.
MS. MAYES: And then can you tell us whether or not you had telephone conversations or communications with the Defendant that continued on through September 2nd of 2014?
AMBER KYZER: Yes, ma'am.
MS. MAYES: Having reviewed 178 and 179 does this accurately reflect those communications with Mr. Jones?
AMBER KYZER: Yes, ma'am.
MS. MAYES: And I believe you identified the State's 181 and 182 as voicemail messages that you left for him on the night of the 28th --
AMBER KYZER: Yes, ma'am.
MS. MAYES: -- after he hung up the phone. Let me show you what is State's 180, also marked 8/28/14 at 9:38 p.m. Does it bear your initials?
AMBER KYZER: Yes, ma'am.
MS. MAYES: Is it also a true and accurate representation of the phone message that was left for him?
AMBER KYZER: Yes, ma'am.
MS. MAYES: Your Honor, this would be State's 181, 182, 180, 178 and 179 for evidence.
THE COURT: Subject to your objections for the record.
MR. YOUNG: We would object under hearsay and prior consistent statements.
THE COURT: Understand. You made you record. They are allowed.
(Whereupon, State's Exhibit numbers 178 through 182 were admitted into evidence.)
MS. MAYES: So I'm going to start here, Ms. Kyzer, with the night of August 28th of 2014, calls being made -- is McCall your maiden name?
AMBER KYZER: Yes, ma'am.
MS. MAYES: Calls being made from you, and I believe your testimony was to Tim's phone. Those calls begin at 7:00 o'clock?
AMBER KYZER: Yes, ma'am.
MS. MAYES: In those first series of calls, did he answer those calls?
AMBER KYZER: I don't believe so, no.
MS. MAYES: So they show as missed calls?
AMBER KYZER: Yes, ma'am.
MS. MAYES: Now I want to look at this call here, an incoming.
AMBER KYZER: Yes.
MS. MAYES: To Mr. Jones from you at 7:12 p.m., and that call is one minute and fifty-four seconds.
AMBER KYZER: Yes.
MS. MAYES: Can you tell us whether or not that's the call that you referred to previously in your testimony?
AMBER KYZER: That is the call that I last spoke to my son, yes.
MS. MAYES: Is there any doubt in your mind that the child you heard on the phone in the background was Nahtahn?
AMBER KYZER: No doubt.
MS. MAYES: Were you ever able to get the Defendant, Timothy Jones, back on the phone after he hung up on you that night?
AMBER KYZER: No.
MS. MAYES: When he told you to shut up and hung up on you?
AMBER KYZER: No, I was not able to.
MS. MAYES: So you attempt to make a call at 7:19, approximately seven minutes later. It's a minute and two seconds of -- did you originally -- did you leave a voicemail that time?
AMBER KYZER: I'm not sure if I did that time.
MS. MAYES: Did he have voicemail that would pick up?
AMBER KYZER: He did.
MS. MAYES: So the minute and two seconds that we're looking at is a voicemail picking up?
MR. YOUNG: Your Honor, I object to the leading. I believe the witness' responses was that she wasn't sure, and move to strike.
THE COURT: I'll let her rephrase and sustain the leading.
MS. MAYES: Do you ever recall him answering the phone after he hung up on you that night?
AMBER KYZER: No.
MS. MAYES: Now, looking here at 9:34 p.m. Have you had a chance to listen to that message?
AMBER KYZER: Yes.
MS. MAYES: As well as other messages that were left that night for Mr. Jones?
AMBER KYZER: Yes, ma'am.
MS. MAYES: Your Honor, we request permission to publish.
THE COURT: Subject to the objection.
MS. MAYES: First being State's Exhibit 182, Your Honor.
THE COURT: You may.
(Whereupon, State's Exhibits of voicemails, were played for the jury.)
MS. MAYES: So, Ms. Kyzer, after that conversation the night of the 28th, you leaving these voicemail messages, when did you next have a conversation with the Defendant?
AMBER KYZER: I can't remember the exact date, but he was only on the road with my children's remains in his car.
MS. MAYES: This would have been Labor Day weekend, and that night that he hung up on you was Thursday the 28th?
AMBER KYZER: Right.
MS. MAYES: The next weekend runs into Monday, being Labor Day. Were you initially concerned about the fact that he wasn't returning calls?
AMBER KYZER: No, I was not. He -- it was not uncommon for Tim and I to have arguments and him just not answering. It was not uncommon for Tim to just go disappear for a weekend and not answer his phone and just get back to me and say he was busy. It was not uncommon at all.
MS. MAYES: All right. So after that Labor Day weekend, and after Labor Day goes by, I'm going to show you what is already marked and in evidence, State's 179 and ask you about this phone call that you make on September 2nd.
AMBER KYZER: Yes, ma'am.
MS. MAYES: First, before we get even to September 2nd, we've got September 1st, which is Labor Day. Did you make a call?
AMBER KYZER: I did.
MS. MAYES: Was it answered?
AMBER KYZER: No.
MS. MAYES: And then on September 2nd at 5:59 p.m. did you make a call?
AMBER KYZER: Yes, ma'am.
MS. MAYES: Was that call answered?
AMBER KYZER: No, ma'am.
MS. MAYES: Five minutes later, 6:04 p.m. on the evening of September 2nd, did you make a call?
AMBER KYZER: Yes, ma'am.
MS. MAYES: Was this one answered?
AMBER KYZER: Yes.
MS. MAYES: Describe the Defendant's demeanor and speech during this call on September 2nd.
AMBER KYZER: It was --
MS. MAYES: How would you describe it?
AMBER KYZER: He sounded very maybe intoxicated. I believe I even asked him that on the phone call. He sounded happy but out of it, different.
MS. MAYES: Did he ever say exactly where he was going or where he was at when you placed that call?
AMBER KYZER: He didn't.
MS. MAYES: Did he give any explanation for where he had been and what had been going on?
AMBER KYZER: I asked him. He said he'd just been moving around a lot. Kind of sounded carefree and sounded intoxicated, like he was on something.
MS. MAYES: During the time of that call on September 2nd were you able to hear any of your children in the background?
AMBER KYZER: No, ma'am.
MS. MAYES: I'm going to show you an item and ask you whether or not you recognize it.
AMBER KYZER: Yes, ma'am.
MS. MAYES: Does it bear your initials?
AMBER KYZER: Yes, ma'am.
MS. MAYES: This recording on September 2nd, 2014 was made by who?
AMBER KYZER: Me.
MS. MAYES: And what type of app or application did you have on your phone that allowed you to record calls?
AMBER KYZER: It was just a standard phone call recorder. You can pick and choose who's calls you recorded. I chose to record Tim's.
MS. MAYES: On this evening of September 2nd at 6:04 p.m.?
AMBER KYZER: Yes, ma'am.
MS. MAYES: Your Honor, this would be for evidence.
MR. YOUNG: Same objection.
THE COURT: Same objection. Subject to the objection, this is 185.
MS. MAYES: Yes, sir.
THE COURT: 185. Subject to the objection.
(Whereupon, State's Exhibit number 185 was admitted into evidence.)
MS. MAYES: And, Ms. Kyzer, as to State's 185, can you tell us whether or not it was recorded in its entirety?
AMBER KYZER: Yes, ma'am.
MS. MAYES: That conversation with the Defendant?
AMBER KYZER: Yes, ma'am.
MS. MAYES: I'll publish, Your Honor.
THE COURT: Okay.
(Whereupon, State's Exhibit number 185 was published for the jury.)
MS. MAYES: At this time, Ms. Kyzer, did you have any indication that your children were in danger?
AMBER KYZER: No.
MS. MAYES: The reference to the Georgia traffic, had he told you anything about going to Georgia?
AMBER KYZER: No.
MS. MAYES: And when you asked him about being on vacation, had he said anything to you about planning a vacation?
AMBER KYZER: No.
MS. MAYES: During the course of this call did he make it appear that the children were still alive and healthy?
AMBER KYZER: Yes.
MS. MAYES: Were you making arrangements to talk with them next?
AMBER KYZER: Yes.
MS. MAYES: What happened after this call on the 2nd, Ms. Kyzer?
AMBER KYZER: That's the last I heard from him.
MS. MAYES: Eventually did you make a report with the Sheriff's Department that your children were missing?
AMBER KYZER: I did. I was concerned about my children, as well as Tim.
MS. MAYES: Eventually, after you report to the Sheriff's Department that the children were missing, were arrangements made for you to have a visit with the children on Saturday, September 6th?
AMBER KYZER: That was our -- we always met on Saturdays, so I was just going to go on with it in hopes that they would show up.
MS. MAYES: And where was that visitation to occur?
AMBER KYZER: Chick-fil-A in Lexington.
MS. MAYES: And was law enforcement also involved in monitoring that visit to see if he did, in fact, show up with the children during this timeframe that they were considered missing?
AMBER KYZER: They were. They were waiting there as well.
MS. MAYES: Did you go to Chick-fil-A?
AMBER KYZER: Yes, ma'am.
MS. MAYES: Did he ever appear?
AMBER KYZER: No.
MS. MAYES: Did he ever respond to any of your messages after that conversation with Tim on September 2nd?
AMBER KYZER: No, ma'am.
MS. MAYES: Ms. Kyzer, did you ever see any indication that the Defendant was not of sound mind?
AMBER KYZER: No.
MS. MAYES: Being his spouse for many years, what can you tell us about his mental status?
AMBER KYZER: He's intelligent, he's smart. He was the smartest person I know.
MS. MAYES: Ms. Kyzer, did Nahtahn have a favorite toy?
AMBER KYZER: Yes, he did.
MS. MAYES: What was that toy?
AMBER KYZER: Woody from Toy Story.
MS. MAYES: Did the Defendant know that was his favorite toy?
AMBER KYZER: Yes, ma'am. He did.
MS. MAYES: Let me show you what's been marked State's Exhibit 83 and 80 -- 183 and 184, and ask you if you recognize what's shown in these photographs.
AMBER KYZER: It looks like my son's Woody doll in pieces. It's my son's Woody doll in pieces.
MS. MAYES: 183 and 184 marked for identification at this time, Your Honor.
(Whereupon, State's Exhibit numbers 183 and 184 were marked for identification.)
MS. MAYES: Ms. Kyzer, I'm going to show you a photograph which is a part of a Defense Exhibit already in evidence. Defense Exhibit 72.
MS. MAYES: It would be 72-A, Your Honor.
MS. MAYES: Is that Nahtahn?
AMBER KYZER: Yes.
MS. MAYES: 72-A, Your Honor.
MS. MAYES: Ms. Kyzer, what can you tell us about Nahtahn's physical size compared to other children in his age group?
AMBER KYZER: He was my tater tot. I called him tater because he just couldn't catch up with his older siblings in height. He was very small.
MS. MAYES: Small for a six-year-old?
AMBER KYZER: Yes, ma'am.
MS. MAYES: I'm going to show you what's marked Defense Exhibit 56 as evidence and ask you what's in that photograph? I'm sorry, what's in this -- what is reflected here?
AMBER KYZER: That's a $250.00 dollar check written to Tim from me for the kids.
MS. MAYES: And what is in these photographs, 87, 88 and 89? This is part of the support you mentioned that you were providing for the children?
AMBER KYZER: Yes, ma'am. This is a letter to my son, Elias, from me. A sent letter to my son, Nahtahn, from me. And a letter to my daughter, Merah, from me.
MS. MAYES: Why did you write those letters, Ms. Kyzer?
AMBER KYZER: Because I knew my kids were hurting over us not being together anymore and I felt as though it was my place to apologize for breaking their hearts, for their broken home, and for all -- and to also let them know how proud I am of them.
MS. MAYES: And did your children receive those letters, Nahtahn, Merah and Elias?
AMBER KYZER: I handed them to them personally. Yes, ma'am.
MS. MAYES: Is there any doubt, Ms. Kyzer, they knew you wanted them?
AMBER KYZER: My kids knew I loved them. Sorry.
MS. MAYES: Those letters are already in evidence. Can you read the letter you wrote to Merah?
AMBER KYZER: I'm sorry. Oh, God, I'm sorry. I'm sorry. "Merah, my sweet, sweet daughter. I know that your heart feels heavy and that you feel really sad sometimes. I want to reassure you, sweetheart, that you, along with your brothers and sister, mean everything to me. You kids are my world and mommy and daddy were very blessed to have you." Oh, God. Oh, God. I'm sorry. I'm sorry. Oh, God.