McConnell would not testify. A short time later, the judge called McConnell as a witness with his attorneys present in a jury-out hearing to determine the reason for his decision. McConnell acknowledged that he had pled guilty to second-degree murder in the Marston killing and had agreed to testify truthfully at the defendants' trial. He then said that he had decided the night before not to testify because he was afraid of being killed in prison if he testified.
Initially, McConnell denied speaking to anyone before deciding not to testify; however, he later testified that Daniel Freemon's brother, attorney Robert Freemon, had come to see him at the jail the previous night. According to McConnell, the only conversation that took place was that Robert Freemon told him to beme back and retry me on this case, because it would be double jeopardy, because it had been over 120 days since I was sentenced.
THE COURT: But Mr. McConnell, you really did remember, didn't you?
MR. McCONNELL: Yes, sir.
THE COURT: All right.
McConnell also admitted that the conversation with Massey was not the first time he had heard about double jeopardy. He said that about two weeks earlier, defense attorney "Daniel Freemon brought me some papers over there and told me to read them...." McConnell said the papers were the transcript from a similar case in which Michael Murphy was a criminal defendant.[1]
After the questioning ended, McConnell was then asked by his attorney if he had now decided to testify, and he responded that he had.
After the jury-out hearing ended,