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5-year-old witness highlights first day of murder trial

By Staff
MURDER TRIAL Joseph Osborne, charged with murder in the death of 5-year-old Charles C. Hemming-Hopkins, walks into the Lauderdale County Courthouse today for the second day of his trial. Osborne, who has been free on $250,000 bond, was indicted for murder in July 2003. Photo by Kyle Carter/The Meridian Star
By Suzanne Monk / managing editor
April 6, 2004
Everyone at Cindy Hopkins' house had been down with the stomach flu the week Charlie, her 5-year-old son, died.
It was Nov. 6, 2002.
Charlie and his little brother, 3-year-old Sam, had been throwing up the night before. Cindy's boyfriend, Joseph Osborne, had been staying with them since late October and he wasn't feeling well, either.
He was also, Cindy said, wearing out his welcome.
Cindy came down with the stomach bug next. Osborne, whom the boys called "Mr. Joey," gave Cindy some medicine and said he would watch the children so she could get some rest. Cindy took to her bed about 2 p.m.
She got up about 10:30 p.m. She looked in on the boys, and considered waking them up to brush their teeth, but decided against it. Cindy wandered into the living room, where she found Osborne and a friend of his, Kimble Frazier. The three adults stayed up until about 1:30 a.m.
Cindy checked on the children again. Osborne walked into the children's bedroom behind her and shut off the television. He distracted Cindy and she ended up not feeling of the boys' foreheads or tucking their covers around them. She and Osborne retired for the night.
In the morning, Sam came into Cindy's bedroom, just the way he usually did. She made him some breakfast. When it got to be about 10 a.m., Cindy decided Charlie had slept long enough, and went in to wake him up.
Charlie's skin was blue. Strewn around him on the bed were her prescription Zyrtec pills. She dialed 911, but it was too late. Charlie was dead.
Cindy buried her son on a Monday. On Tuesday, police detectives told her for the first time that her son did not overdose on Zyrtec; he had been suffocated.
This is the story of what happened the night Charlie died, as told by Cindy Hopkins during her testimony Monday the first day of Joseph Osborne's trial for the murder of her child.
But, she couldn't tell the whole story because she was asleep for much of the day.
Missing pieces
An apparent eyewitness to the crime seems to have the missing pieces, and the verdict could come down to whether the jury finds him credible.
Little brother Sam just 3 years old when Charlie died and only 5 now testified Monday that he was supposed to be asleep that night. But, he was peeking because Charlie was showing out and wouldn't get in the bed.
Sam testified that Osborne came in the room several times trying to get Charlie to go to bed. Osborne, Sam said, eventually spanked Charlie and then "took his breath away."
Sam's testimony was patchy and a little inconsistent. Circuit Judge Larry Roberts sustained an objection from the defense that Howell was asking leading questions. And, the child was clearly a little overwhelmed by his surroundings.
It was powerful testimony, but will the jury believe him? Will they believe that such a young child could have such a clear memory?
Glimmers of strategy
If the answer is "yes," the show's over for Joseph Osborne.
If the answer is "no" or "maybe," defense attorney Gary Jones is clearly working up to another idea he would like the jury to consider.
There was a lapse of about a month between Charlie's death and Sam's first mention of what he saw that night.
Jones asked some questions during his cross-examination of the 5-year-old witness that indicate his belief that Sam may have overheard adults talking about their suspicions although Cindy Hopkins testified that everyone went out of their way to avoid discussing it in front of him.
Testimony touched on how much light was in the boys' bedroom. Jones suggested in his opening argument that Sam may have seen someone "take Charlie's breath away," but that someone might not have been Osborne.
Alternate theory
Jones' game plan appears to be developing along these lines: Create reasonable doubt in the jury's mind about Osborne's guilt by suggesting another candidate Kimble Frazier.
This is not the same thing as accusing Frazier of murder, but an allowable defense strategy that asks the question: "If someone else could have committed the crime just as easily as my client, don't you have to acquit him?"
While none of this is out in the open yet, Jones elicited part of the foundation for it during his cross-examination of Cindy Hopkins.
Frazier, she testified, was "a little slow." He was as likely to go back to the boys' bedroom and watch cartoons or play with toy cars as he was to hang out with the adults in the house. She described him as "more like another child."
And, Kimble was there that night.
Things may become clearer, or the embryonic theory fall apart, when the district attorney's office calls Frazier to the stand.
Today's witnesses will probably also include the law enforcement officers involved in the investigation and Dr. Stephen Hayne, who performed the autopsy on Charlie's body.

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