updated 07/29/10See also: DeWayne
Brasfield CFPD Report
See also: DeWayne
Brasfield Criminal Trial Testimony
Civil Trial Deposition
Page 4
1 DEWAYNE BRASFIELD
2 being produced, sworn as hereinafter certified and
3 examined on behalf of the Plaintiffs Farrell,
4 Kleinheksel and Hill and Defendants Farrell,
5 testified as follows:
6 DIRECT EXAMINATION
7 BY MR. LIABO:
8 Q. Mr. Brasfield, would you tell us your
9 name, address and Social Security number, please?
10 A. DeWayne Oliver Brasfield, Sr.,
11 Cedar Rapids, Iowa 36060-1977
12 Q. What is your date of birth?
13 A. 5-11-68.
14 Q. Mr. Brasfield, we're here to discuss a
15 motor vehicle collision that occurred on October
16 4th, 1996. Are you aware of that?
17 A. Yes, I am.
18 Q. All right. If at any time you do not
19 understand a question that I ask you, please let me
20 know. Okay?
21 A. Okay.
22 Q. And take your time. We're not in any
23 hurry. If you want me to clarify something, just
24 let me know. Okay?
25 A. (Witness indicates in the affirmative.)
Page 5
1 Q. Are you employed presently?
2 A. I work for Rockwell Collins.
3 Q. What do you do for Rockwell?
4 A. I'm a purchaser. I purchase raw
5 material.
6 Q. And you work in the Cedar Rapids
7 facility?
8 A. That's correct.
9 Q. How long have you worked for Rockwell?
10 A. Two years.
11 Q. Okay. Are you presently married?
12 A. Yes.
13 Q. And your wife's name?
14 A. Emily.
15 Q. Okay. At the time of the collision that
16 brings us here today; were you and Emily married?
17 A. No.
18 Q. You were both in your vehicle; correct?
19 A. Well, it was both our vehicle, yeah.
20 Q. All right. And you were engaged to be
21 married, as I understand it.
22 A. That's correct.
23 Q. What's your educational background,
24 Mr. Brasfield?
25 A. I have a BA degree from the University
Page 6
1 of Northern Iowa.
2 Q. When did you receive that?
3 A. May of '97.
4 Q. Have you been working for Rockwell since
5 receiving your degree?
6 A. Yeah. The recruited me out of college
7 and offered me a position and I accepted it.
8 Q. At the time of this collision, how were
9 you employed?
10 A. I was working for K-Mart Security
11 part-time.
12 Q. Were you a security officer at K-Mart?
13 A. Yes. Loss control.
14 Q. As a security officer for K-Mart, did
15 you receive any specialized training?
16 A. Yes., we did.
17 Q. What specialized training?
18 A. We had to go through six weeks of --
19 three weeks of paperwork, learning the proper way
20 to arrest someone without getting sued or, you
21 know, that sort of thing.
22 Q. Sure.
23 A. And then we just went through a little
24 had training type stuff.
25 Q. Did your training and then your duties
Page 7
1 and responsibilities with K-Mart involved you
2 exercising your powers of observation of people?
3 A. Yes.
4 Q. Was that one of the things that was
5 something you did frequently was to observe people
6 and their conduct and behavior?
7 A. Yes. A part of our training was to be
8 able to tell when someone looks out of place or, I
9 don't know, nervous or up to something, you know.
10 We walked through the store in plain clothes
11 watching people is what we did.
12 Q. With a view towards observing people
13 that were suspicious, but without intruding on
14 somebody that was perfectly innocent and causing
15 problems that way?
16 A. Well, we had like a lot of steps you had
17 to follow before you could even stop someone
18 because of the legal part of it. I mean, you had
19 to actually see them actually pick up the
20 merchandise. You had to actually see them discard
21 the merchandise. I mean, you know, conceal it.
22 Then you have to keep watch where the product is
23 and follow them all the way out of the store before
24 you can even apprehend them. If you break eye
25 contact with them at any time, then you have to let
Page 8
1 them go. So you just watch suspicious people, and
2 when people get suspicious and you get a hunch, you
3 follow them and catch them.
4 Q. And keep them under observation?
5 A. Right.
6 Q. All right. I assume you would be called
7 upon to potentially have to testify about your
8 observations and back up what you observed with
9 your testimony in court?
10 A. Almost every week. We averaged about --
11 I averaged about two people a week I would catch
12 stealing out of K-Mark. And we would always have
13 to go to the Police Department and give our report,
14 and also had to write the report, handwritten it.
15 They had formats you had to follow.
16 Q. On the evening of October 4th, 1996, I
17 understand, Mr. Brasfield, that you and your then
18 fiancee were out in your car that evening?
19 A. That's correct.
20 Q. Do you recall where you had been that
21 evening before you witnessed a collision?
22 A. I thought -- there were two places we
23 could have been, and we could have went to both,
24 but I'm not sure. I thought we had went to a
25 movie, to our in-laws' house and then home.
Page 9
1 Q. So you were coming from you in-laws'
2 house and going home?
3 A. Right.
4 Q. Where was your fiancee's parents' house?
5 A. Evansdale, Iowa.
6 Q. Okay. And where was your home?
7 A. Cedar Falls, on campus at UNI.
8 Q. What route did you follow from your
9 in-laws' house to the scene of the collision?
10 A. Let's see, I was faking 380 coming back
11 from Evansdale, and got off at 58. I came around
12 and I was taking 58 down to get off at the
13 University exit to go home.
14 Q. Okay. Would that route have taken you
15 through the intersection of 58 and Greenhill Road?
16 A. Yes.
17 Q. All right. As you were traveling along
18 Highway 58, what direction were you traveling?
19 A. I'm trying to think. What direction is
20 that? Because it turns. It come off north.
21 Actually, I couldn' t tell you what direction it
22 was.
23 Q. Let me see if I can help you out.
24 A. You come directly off of 30 going onto
25 58 and I know it curves. I'm not quite sure if
Page 10
1 that's going north or it curves west.
2 Q. Let me show you what has been previously
3 marked as Deposition Exhibit 1, Mr. Brasfield. And
4 that was identified as an aerial view of the
5 intersection of Highway 58 and Greenhill Road where
6 this collision occurred. Do you recognize that
7 scene?
8 A. Yes.
9 Q. Does it help to refresh your
10 recollection as to the direction you were traveling
11 along Highway 58 just prior to the collision?
12 A. Yes.
13 Q. All right.
14 A. Can I look at this for a minute?
15 Q. Sure.
16 A. It was right here. Because when I
17 jumped out of the car, I ran to my left and the
18 girls was sitting in this ditch. Yeah, it was
19 right here.
20 Q. So when you say right here, you're
21 pointing to a spot on the photograph that indicates
22 the position of your car?
23 A. Right. We were facing that way.
24 Q. All right. When this collision
25 occurred?
Page 11
1 A. Right.
2 Q. All right. We're going to go into this
3 in a little more detail and refer to this drawing a
4 little more or this photograph in a little more
5 detail, but as to the direction you were traveling
6 along Highway 58, which direction would that have
7 been?
8 A. North.
9 Q. Okay. So you were traveling north. And
10 as you approached the intersection of Highway 58
11 and Greenhill Road, how fast were you going?
12 A. Probably 40 or 45. We were slowing down
13 at this point.
14 Q. Because you had seen the collision?
15 A. Well, we heard a crash.
16 Q. You heard a crash.
17 A. Yeah. I'll let you get to that.
18 Q. But before you slowed down because you
19 heard a crash, how fast were you going along
20 Highway 58?
21 A. Probably about 40, 42 miles an hour.
22 Q. All right. Now what lane were you in?
23 I understand Highway 58 is four lanes. Do you
24 recall what lane you were in?
25 A. We were in this lane, the right lane,
Page 12
1 because we were trying to decide whether we were'
2 going to go right, straight home, or go off to
3 McDonald's on University. So we were sitting right
4 here, 'cause the light was just about to change.
5 Q. Okay. So you were traveling north in
6 the right lane and you were making a decision on
7 whether to go right along Greenhill Road, or what,
8 down to University then?
9 A. Right.
10 Q. To turn left on University?
11 A. Right.
12 Q. Okay. Who was driving, you or your
13 fiancee?
14 A. My fiancee.
15 Q. And were up having any conversations in
16 the car, talking?
17 A. No. We were listening to music.
18 Q. All right. As you approached the
19 intersection of Greenhill Road and Highway 58, what
20 did you observe with respect to other traffic in
21 the area, if you observed anything? And I realize
22 you were the passenger.
23 A. Actually, I was just looking around.
24 And the light had just turned green, like
25 right before you are ready to pull off, and we
Page 13
1 started to roll our car forward and we got
2 almost -- we decided to go straight, and we got
3 almost to about here, not even probably five feet,
4 and then these headlights came in front of the
5 car. So we were parked here and then when the
6 light turned green we started to pull out and then
7 all of a sudden these lights -- we saw a car go
8 right past the front of our car.
9 Q. Now when you have testified that your
10 car was right here, you were pointing to this
11 photograph in a particular spot. Could you
12 describe that location that you pointed to on the
13 photography? Was it pretty much right at the
14 intersection of Greenhill Road and Highway 58?
15 A. It was right in the middle of the
16 intersection, right before you cross the median.
17 We was probably about ten feet behind that going
18 north.
19 Q. Okay. So the front of your car was
20 into -- had crossed into --
21 A. Onto Greenhill Road, about ten feet
22 short of this median, because we were trying to
23 decide which way to go.
24 Q. All right. So the length of your car
25 would have been across the two eastbound lanes of
Page 14
1 Greenhill Road?
2 A. Right.
3 Q. Okay. Now you testified that you had
4 seen the light turn green?
5 A. Right.
6 Q. The intersection of Greenhill and 58 is
7 controlled by a stoplight?
8 A. Yeah. I had my seat back, because I had
9 a headache, so I was kind of facing up and had my
10 feat up on the dashboard. And the light had turned
11 green.
12 Q. Now when you say the light had turned
13 green, did you yourself see the light or did you
14 assume it was green because you kept going into it?
15 A. No, I saw the light was green, because
16 we were talking and she was daydreaming and didn't
17 start moving yet.
18 Q. Had your vehicle come to a stop before
19 entering the intersection?
20 A. Yes.
21 Q. Okay.
22 A. 'Cause it was a red light when we pulled
23 up. But then as we were slowing down to stop it
24 had turned green, so when we started to proceed.
25 Q. Okay. There has been testimony in this
Page 15
1 case that at the time of this collision that the lights
2 were in a flashing mode.
3 A. Okay.
4 Q. And that the lights for controlling
5 traffic traveling in an east-west direction on
6 Greenhill Road were flashing red and that the
7 lights for traffic along Highway 58 in a
8 north-south direction were flashing yellow. I
9 realize you were a passenger.
10 A. Uh-huh.
11 Q. Do you have any reason, based upon your
12 own observations, to take issue with the testimony
13 of others who observed the lights were in a
14 flashing mode?
15 A. You mean do I have any reason to
16 disagree with them?
17 Q. Right.
18 A. No, I don't have any reason to disagree
19 with them, no. I know we stopped and then we --
20 because we didn't make a complete stop. See, I
21 don't think the -- well, me and my wife talked
22 about this, if it was the time of day that those
23 lights were supposed to blink. But I could l have
24 sworn I saw the light go yell and go red. Now
25 maybe I saw it go yellow and assume it went red.
Page
1 because that's usually the pattern the way it goes.
2 Q. Right.
3 A. But I could have swore I saw it go red.
4 Q. It's my understanding the police checked
5 into this and found that the lights went into the
6 flashing mode prior to the collision by about a
7 half-hour or so.
8 A. Okay. Then I mush be mistaken.
9 Q. All right. Mr. Brasfield, if you would
10 look at page 63 of your testimony that you gave
11 prior to this, do you recall that you were asked a
12 question: "And you did observe that the lights
13 were blinking?" "Yes, sire." "And do you recall
14 what color they were blinking?" "Yellow/." Do you
15 see that testimony?
16 A. What line is that?
17 Q. Right here. It begins right here.
18 A. Yes, I see that.
19 Q. All right. Does that refresh your
20 memory with respect to whether the lights were
21 blinking yellow at that time?
22 A. Can I like read a few sentences above
23 that?
24 Q. Sure. Read whatever you need to.
25 A. Yes, I remember this.
Page 17
1 Q. Okay. Does that , looking over your
2 entire testimony , does that refresh your
3 recollection about the blinking lights?
4 A. Yeah, it does. 'Cause I remember the
5 police officer told us that the lights started
6 blinking at 11:00 o'clock. And I remember when we
7 slowed down, it wasn't because -- It wasn't because
8 the lights were turning red, it was because by wife
9 thought the light was turning red because it was a
10 yellow light, and we continued forward towards
11 McDonald's. But I didn't remember the light,
12 though.
13 Q. And you don't remember now actually
14 stopping?
15 A. No, we did stop. We did stop, 'cause we
16 thought the light was going to turn red.
17 Q. All right.
18 A. But we was undecided. Like I said, we
19 were kind of sitting there trying to decide whether
20 to go straight home to to go to McDonald's. So we
21 did actually, we did stop.
22 Q. All right. But you made the decision to
23 go which direction? I mean, what was your plan
24 then once you made up your mind on which direction
25 to go?
Page 18
1 A. I believe we were going to go straight.
2 Q. All right.
3 A. But we hadn't really got even into the
4 intersection yet. Like I say, we were ten feet
5 behind this median kind of in the middle zone of
6 which we were going to go, and we decided, and then
7 I saw the light. We didn't actually really start
8 moving yet when the light went by.
9 Q. All right. Let's talk about the light.
10 What is the light that you're referring to?
11 A. When we started to move, when we were
12 getting ready to go move after we made a decision,
13 this car went past in front of our headlights.
14 Q. All right. From which direction?
15 A. Coming from -- I don't know which street
16 that is, but it was coming from the east going
17 west.
18 Q. On Greenhill?
19 A. Right, on Greenhill. Because my wife
20 hit the brakes and we stopped and I looked up,
21 because at the time, like I said, I was sitting at
22 an angle and I saw the lights, but I didn't
23 actually see what she saw, you know. Evidently she
24 saw the car and she slowed down. I just saw the
25 lights, I didn't see anything, and then all of a
Page 19
1 sudden I head the crash. Then I looked over and I
2 saw the two cars going into the ditch. I mean this
3 all happened within like seconds.
4 Q. All right. The car that you observed,
5 the light to the car that you observed on Greenhill
6 Road was coming across your path, is that correct?
7 A. Right. That's correct.
8 Q. But it would have been on the far side
9 of Greenhill Road? In other words, between you and
10 that car would have been the width of Greenhill
11 Road, most of the width of Greenhill Road?
12 A. Right, right, on the other side in the
13 far lane.
14 Q. Okay.
15 A. On the University side.
16 Q. On the University side. What did you
17 observer with respect to that vehicle as you saw
18 those lights cross your path? What did you see?
19 A. I saw the car. I didn't pay any
20 attention to the car, because he was far enough
21 away from us that he was no threat to us. I just
22 figured he was trying to catch the light. And we
23 proceeded forward, still listening to the music,
24 and then I heard this crash. And my music system,
25 I have a sound system that's pretty loud.
Page 20
1 And I was -- we both looked, because
2 when I heard it over the music, I saw this hubcap
3 spinning in the middle of the thing and when I
4 looked to my left the cars was already together and
5 they were going into the embankment and then they
6 separated. And then the blue car spinned out into
7 the dirt and the other car spinned out. And we
8 stopped. We jumped out. I told her to go get
9 help. And then everything else really happened
10 fast.
11 Q. Let's back up a minute to the point in
12 time when you first became aware of these
13 headlights crossing your path. Did you form an
14 impression with respect to the speed of that
15 vehicle that was crossing your path?
16 A. Well, I had thought, 'cause I assumed
17 that the light was changing, that when he was
18 coming past, you know how you get a long yellow and
19 you try to beat it before it turns red?
20 Q. Uh-huh.
21 A. We were far enough away, that's what I
22 thought he was doing. He flew right through the
23 intersection really quickly. But if he light was
24 blinking red, he could not have had a complete sop
25 to move that fast, from as fast as he went past our
Page 21
1 car from where we were sitting.
2 So we were proceeding forward and a car
3 just flew past us like that and we had to stop.
4 I'm talking not even five seconds I head the
5 crash. 'Cause we weren't paying no attention to
6 other cars. We were, you know, listening to music
7 and I was laying back relaxing. It wasn't nothing
8 we were noticing. It was just that sound, the
9 crash. I didn't actually see the cars hit. I just
10 happened to look after the crash and saw that they
11 were already connected and rolling into the
12 embankment.
13 Q. You observed the speed of this car
14 crossing your path to be such tat he would not
15 have been able to stop in time to avoid this
16 collision?
17 A. No, not if it was a car coming in
18 another direction.
19 Q. And did it appear to you that this car
20 crossing your path was traveling at a high rate of
21 speed?
22 A. Yes, I felt it was traveling at a high
23 rate of speed. But like I said, it was the type of
24 speed it looked like they were beating the light.
25 Q. All right. In other words, it was the
Page 22
1 kind of speed he was traveling so fast that you
2 thought he was trying to beat out the light?
3 A. Right.
4 Q. I take it he made no effort, from what
5 you could observe, to slow his vehicle or come to a
6 stop, assuming he ad a flashing red light?
7 MR. BEVEL: Objection. That question
8 assumes facts that this witness hasn't placed in
9 the record and misstates his testimony.
10 THE WITNESS: Mis- what?
11 MR. BEVEL: Misstates. His question
12 misstates what you have testified to.
13 MR. GALLAGHER: If you haven't done this
14 before, people will make objection from time to
15 time for the record that the court reporter is
16 taking down, so you understand that.
17 THE WITNESS: Okay.
18 MR. LIABO: Why don't you read the
19 question back, Dwight.
20 THE WITNESS: And also I'm trying to do
21 the best I can with my memory.
22 MR. LIABO: You're doing fine. Let the
23 court reporter read back the question and then you
24 can answer the question. Mr. Bevel has made the
25 objection for the record.
Page 23
1 THE WITNESS: Okay.
2 The reporter read the last question.)
3 MR. BEVEL: Also I'll add another
4 objection. It's leading.
5 But go ahead.
6 MR. LIABO: You can answer the
7 question. Do you what it back again?
8 A. I think that what he said was was it my
9 observation that he made no effort --
10 Q. Let me just start over again. Did this
11 other vehicle make any effort that you could
12 observe to slow down or stop?
13 A. He couldn't have, because he would have
14 been in our way. Because we were already -- if he
15 would have stopped right after he passed our lights, he
16 would have wither been directly in front of us or
17 another car length in front of us, but he still was
18 already through, past our car, before we went
19 forward.
20 Q. So he just shot across your path?
21 A. Like I said, the lights, we saw the
22 lights. I wasn't paying attention to the cars. I
23 was kinds of sitting back like this looking up, and
24 then the lights went by like that. Because of the
25 way I was sitting, I actually couldn't even see the
Page 24
1 impact because the steering wheel and stuff was
2 right here. But I sat up when I heard the crash
3 and then I saw the cars going that way.
4 Q. So you did not see the collision itself?
5 A. No.
6 Q. All right. You heard it?
7 A. Right.
8 Q. Did you hear the sound of any screeching
9 tires on the pavement?
10 A. Yes.
11 Q. Immediately before the collision or
12 afterwards? Or can you tell?
13 A. We heard the tires, the crash, the
14 hubcap, the thing was flying -- a tire was flying
15 over -- I mean this was pretty loud.
16 Q. All right. And this was over your sound
17 system you could hear it?
18 A. Right.
19 Q. What was going on with the two vehicles
20 when you did observe them? Let me start over
21 again. I take it your attention was drawn to the
22 point where the two vehicles collided by the sound
23 you heard?
24 A. Right.
25 Q. When you turned your attention to those
Page 25
1 two vehicles or toward that sound, rather, what did
2 you observe about the two vehicles?
3 A. They were connected like two pop cans.
4 I mean, the blue car was kind of round the bumper
5 of the white or silver car, whatever it was, and
6 they were just going at a diagonal. And I saw them
7 hit the curb, they popped over the curb, and the
8 collision with the curb separated the two cars.
9 And then the blue car went spinning off and the
10 other car went spinning off. That's kind of where
11 they sat.
12 Q. Okay. Looking at Exhibit 1, do you see
13 the image of two vehicles, a blue vehicle and a
14 gray vehicle, a lighter vehicle, in the center of
15 the intersection?
16 A. Right. Right there?
17 Q. Yes.
18 A. Uh-huh.
19 Q. Does that depiction of those two
20 vehicles correspond with your recollection of where
21 they collided and how they were positioned right at
22 the time that they collided?
23 A. That seems about right. 'Cause I caught
24 the car, it was about her. When I looked up, they
25 were here.
Page 26
1 Q. All right. When you looked up, the
2 vehicles had already traveled in a diagonal?
3 A. Yeah. They were right about up in here,
4 because they were just about to hit this curb and
5 they separated.
6 Q. All right.
7 MR. BEVEL: Can you have him refer to
8 which curb he's talking about?
9 MR. LIABO: Yeah. We'll make this a
10 little clearer.
11 A. The southwest curb.
12 Q. Okay, the southwest curb. Did the
13 vehicles , where they are shown as their final
14 resting positions in this photograph; does that
15 correspond with your recollection of their rest
16 positions?
17 A. Yes, I believe so.
18 Q. Okay. So they traveled towards the
19 southwest at an angle and you saw them as they were
20 traveling that direction and then where they wound
21 up and came to rest off the roadway?
22 A. Yeah, I'm pretty sue they were to my
23 left. Yeah, that's right, because I remember
24 looking over and seeing the tire rolling coming
25 back this way.
Page 27
1 Q. Okay.
2 A. I'm pretty sure. I think that's pretty
3 accurate.
4 Q. Okay.
5 A. Again, I'm just trying to -- this
6 picture helps, though.
7 Q. Sure. What did you do after observing
8 these two vehicles that had collided together and
9 were traveling off the roadway? What did you do?
10 A. Could you repeat that again?
11 Q. What did you do next after your
12 attention was drawn by the sound of the collision
13 and then after you observed these two vehicles
14 having collided and were traveling off to the rest
15 positions as shown in Exhibit 1? What did you do?
16 A. I think I told Emily to stop, stop. She
17 was already stopping, because we both kind of
18 caught it at the same time. But there was other
19 cars coming, so I jumped out of the car and told
20 her to go, go get off the road, park over on the
21 shoulder. And I went running towards the blue car.
22 Q. Okay. Did you have any conversations --
23 well, did you go over to the gray car at all or to
24 the people that had gotten out of the gray car?
25 A. Yes.
Page 28
1 Q. All right. When did you do that? Was
2 that one of the first things you did?
3 A. I'm trying to figure out which side of
4 the street I was on. Because when I came
5 running -- where is my car at on here?
6 Q. Well, your car isn't depicted. That's
7 something that we have to kind of determine from
8 your testimony as to where it was.
9 A. Oh, okay. I gotcha. If this is coming
10 from the highway and if the University apartments
11 are over here, then I was right here.
12 Q. Let me ask you this: Do you recall
13 telling the police and testifying in another
14 proceeding that you had conversations and observed
15 the people in the light vehicle, the gray vehicle
16 that had been traveling across you path?
17 A. Yes.
18 Q. All right. Tell me what you observed
19 and heard when you encountered the people in that
20 gray car or gray vehicle.
21 A. What I heard. All right. When I
22 left the car and went over to the blue vehicle
23 there was two people -- when I ran over towards the
24 blue vehicle, there was two people getting out of
25 the silver car coming towards me. Not actually
Page 29
1 coming towards me, but coming like they were
2 walking towards the curb. And he was kind of, you
3 know, shook up, she was shook up, the embraced,
4 figured he was hut. They were walking over
5 towards the curb.
6 The blue car was kind of down a little
7 bit. I was walking towards the blue car. And then'
8 she silver car was up there. They were coming out
9 of the car. I went over to them and said, "Are you
10 okay? Are you okay?" And he goes, "Help them,
11 Help them." And I ran back over to the blue car
12 and looked inside the car.
13 Q. Okay. With respect to the occupants of
14 the silver car, did you observe them having
15 difficulty walking?
16 A. Yeah. They were, you know, -- they just
17 had an accident and he seemed shook up, you know,
18 and she seemed shook up and they were talking, they
19 were talking, and they kind of embraced. They were
20 walking over towards the curb.
21 Q. Which curb were they walking towards?
22 A. Let's see. I think it was this little
23 median thing.
24 Q. The rise between the two parts of the
25 road?
Page 30
1 A. I think so. I think so.
2 Q. All right. Did you observe the man
3 stagger?
4 A. Yes, he was staggering.
5 Q. Which direction was he staggering? Was
6 it both ways or one direction or the other?
7 A. Back and forth. She was kind of holding
8 him and they were talking and heading over towards
9 the curb.
10 Q. All right. Did you observe that the
11 woman had to try to support the man to catch him to
12 keep him from falling?
13 A. Yeah, she was holding him, you know,
14 like when you're helping somebody. They were kind
15 of holding each other, you know. I just figured
16 they were shook up.
17 Q. You mean from being in the collision?
18 A. Right.
19 Q. All right. Did that impression change
20 at all when you got closer, that maybe their
21 staggering might have been due to other things?
22 A. Yeah, because she kept trying to get him
23 to sit down and he kept standing up. And I think I
24 said to him, "The ambulance is coming, you better
25 sit still," because he looked shook up and I know
Page 31
1 in accident you aren't supposed to move, you
2 know. At least they tell you not to be moving
3 around.
4 Q. Right.
5 A. That's what I was thinking at the time.
6 Q. So he wasn't following directions very
7 well?
8 A. Well, she kept telling him to sit down
9 and he kept standing back up. And then she said
10 something to him to sit down and I said, "Yeah, you
11 better sit down." And he sat down and he stood
12 back up again. And I went over to him, and I
13 believe that's when I smelled the alcohol. I'm
14 trying to remember at what time did I approach
15 them, was it before he sat down or after he was
16 already sitting, but I believe he stood back up.
17 And when I put my hands on him kind of like this to
18 help him this way, he was standing right in front
19 of me and that's when I smelled the alcohol
20 Q. Is that when your impression changed
21 that his staggering and refusing to sit down was
22 attributable to being shook up, and now it might be
23 due to something else, due to alcohol?
24 A. That's when I thought that he was drunk.
25 Q. All right. Describe what you smelled.
Page 32
1 in other words, when you said you smelled alcohol,
2 how would you describe it?
3 A. It just smelled like alcohol. I don't
4 know, I mean I've got friends who drink, and it
5 smelled like he was drinking.
6 Q. This was on his breath?
7 A. This was on his breath.
8 Q. And you were close enough that you could
9 get a good whiff of it?
10 A. Right. I was within arms' length.
11 Q. Did he say anything about having been
12 drinking?
13 A. Not at first.
14 Q. All right. Did that subject come up?
15 A. Yes, it did come up.
16 Q. All right. Tell me how the subject of
17 drinking came up and what he said.
18 A. He was saying he was sorry. You know,
19 he was sorry or something. See, right before this
20 had happened, right after I smelled the stuff on
21 his breath, I just want to gray to remember this
22 right, I remember turning to his wife to ask her
23 was he drinking, and I smelled it on her breath
24 too.
25 Q. What did she say?
Page 33
1 A. I didn't say it when I smelled it on her
2 breath.
3 Q. All right.
4 A. I just dropped it.
5 Q. In other words, you smelled the alcohol
6 on the man's breath, and you turned to the wife to
7 ask her if he had been drinking and smelled alcohol
8 on her breath as well?
9 A. Right.
10 Q. So you never did ask the question?
11 A. No.
12 Q. Didn't need to?
13 A. No. I figured they both was drinking.
14 Q. Yeah, okay. Did either of them ever
15 tell you that they had been drinking?
16 A. Yes. I think he said something about a
17 party, they was at a friends's house, a party, or
18 they were coming from someplace. I don't know
19 where he was coming from, so I don't know if this
20 fits, but I could have swore he said he was coming
21 from a friend's house, some party, they had a few
22 drinks, and he kept saying he was sorry.
23 And that's when I went over to the
24 police officer and I said, "You better go give that
25 guy a Breatholizer test." I said, "I think he's
Page 34
1 been drinking." And so she said, "Are you sure?"
2 I said, "Yeah. Just go over there and talk to
3 him."
4 And so I don't know if she did or she
5 didn't, because by this time ambulances were there,
6 it was like eight cop cars were there. There was
7 lights all over the place when I had actually gone
8 to the cop and said, "You better give him a
9 Breathholizer test." I don't know if she did or I
10 don't know if she didn't. I do know she was a
11 female officer.
12 Q. When the driver, the man said that he
13 had been with some friends or something to that
14 effect and had a few drinks, how did you interpret
15 his use of the word "drinks"?
16 A. They went out and they drank a few
17 drinks.
18 Q. Drinks of what did you interpret him to
19 be meaning?
20 A. Alcohol.
21 Q. Alcohol. You didn't think he was
22 talking about drinking coffee or drinking Pepsi or
23 something like that, you thought he was talking
24 about alcohol, correct?
25 A. Liquor.
Page 35
1 Q. Liquor?
2 A. Right.
3 Q. And I believe your testimony is that
4 you, after smelling the alcohol, thought he was
5 drunk?
6 A. Right. But you can't really tell
7 because he was still shook up. Me and my wife
8 talked about that. We were trying to think, okay,
9 was he walking because he was drunk or was it
10 because the impact shook him up, you know. I mean,
11 it was hard to tell at that point.
12 Q. Or a combination?
13 A. Or a combination of both.
14 Q. A combination of everything?
15 A. Right.
16 Q. But in any event, you did see him
17 staggering quite a bit and having trouble
18 responding to people who were telling him what to
19 do as far as staying quiet and sitting down and
20 that sort of thing?
21 A. He would not sit down. He kept getting
22 back up.
23 Q. All right. And you were concerned
24 enough that he might be drunk and felt that he was
25 drunk that you went over and told the police
Page 36
1 officer that she should check him out?
2 A. Right.
3 Q. All right.
4 A. I think it was male/female partners.
5 They were standing kind of in the middle of the
6 street, I believe, a little bit behind the
7 ambulance. And I walked up and she was the closest
8 to me. They were both listening to me, but I think
9 I was directly talking to her.
10 Q. Now you did go over to the other
11 vehicle, is that correct?
12 A. Right.
13 Q. And you looked in and checked in on the
14 occupants of that vehicle; correct?
15 A. Right.
16 Q. Can you tell me what you observed with
17 respect to the occupants of that other vehicle?
18 A. I think I came over the first time, I
19 think I was on the passenger's side of the car, I
20 believe, and the door was open. And the girl --
21 the girl was sitting with her head back on the seat
22 on the passenger's side. And there was a girl, a
23 woman in the driver's seat. And there was another
24 woman in the back seat, but I didn't see her until
25 a little bit later, so she was kind of down on the
Page 37
1 floor, or kind of laying down like that.
2 Q. Tell me about the driver. What did you
3 observe with respect to the driver of the car?
4 A. The driver was sitting -- the driver was
5 sitting in the car seat, and she was kind of bent
6 up, because the car had kind of crushed her a
7 little bit, and her head was back, and there was
8 blood coming out of her mouth and her eyes were
9 kind of flickering a little bit, and she was just
10 like she was going into like a seizure-type thing.
11 She kept going like this. (Demonstrating.)
12 Q. Kind of a jerky little motion?
13 A. Kind of a jerky motion like she was doing.
14 Q. With her head and upper body.
15 A. Right. And I think one of the girls
16 kept talking, "What happened to us? How is my
17 friends?", or "Where is my friends?", or something
18 like that she said. And she was trying to get out
19 of the car. And again because those two had
20 already jumped out of the other car and was moving,
21 I was going to make sure she didn't move. I said,
22 "No, you just wait," because I knew they were a
23 little bit more messed up than the other two that
24 were in the other car. So I put my hand on her
25 should to keep her from standing up.
Page 38
1 Q. This was again which girl?
2 A. I think it was the -- yeah, it was the
3 passenger.
4 Q. In the front seat?
5 A. Right, right.
6 Q. Okay?
7 A. She was kind of delirious almost. And
8 she kept talking about, "Where is my friends?" And
9 "We've go to go home" or something she was
10 saying. I said, "No, you better sit tight."
11 Q. So you put your had on her shoulder to
12 keep her from moving?
13 A. Right, to keep her from getting up.
14 Q. Okay.
15 A. And she kept saying, "My neck hurts."
16 And she kept saying, "What's the matter with my
17 friend? Check on my friend, check on my friend,"
18 and she started screaming. And I ran around to the
19 other side of the car and I just looked at her
20 friend, but I didn't know what to do. I mean, you
21 know, what do you do?
22 So I went to look and the lady was --
23 another woman was coming towards me. I said,
24 "Somebody had got to go call 911 right now." And
25 she said, "I've got a cell phone. I already
Page 39
1 called." 'Cause my wife was already about to jump
2 back in the car, my fiancee at the time, to go get
3 it and that's when the girl said, "I l already
4 called, I already called," like that, to stop her
5 from leaving.
6 And she came over with the cell phone
7 and this other gentleman, I think it was an older
8 couple that got out, but they couldn't stay. And
9 they said, "We're going to call as soon as we get
10 home, we're going to call the Fire Department."
11 because they figured somebody was going to need to
12 get chopped out of there. But they just took off
13 and I don't know if he did or he didn't. They said
14 they couldn't stay, they had someplace to go.
15 Q. When the passenger in the front seat
16 said, "Check my friends, " and you went around the
17 car, that was over to the driver's side, is that
18 correct?
19 A. I believe so.
20 Q. All right. So the person you saw then
21 was the driver?
22 A. Right.
23 Q. And observed the seizure-like movements?
24 A. Right.
25 Q. Did you see or observe the passenger in
Page 40
1 the back seat of the vehicle?
2 A. Yes, I did, but not right away. Because
3 the girl in the front seat kept talking about 'my
4 other friend" or "Where is my other friend?" Yeah,
5 she started talking about, "Where is my other
6 friend?" And then I started saying, "What
7 friend?" and she goes, "My other friend, my other
8 friend."
9 I'm looking and I don' see anybody in
10 the back seat. So I'm looking like, "Oh, I think
11 somebody got thrown." And we started looking
12 around and I didn't really want to go look for this
13 body if it was thrown. So I just kind of stood
14 there. I said, " We better wait." And I looked in
15 the back and saw this and kind of like crunched
16 down. And I said, "Are you okay?" I think I said
17 something to her. Either I said something to her
18 or she scooted up.
19 Q. The person in the back seat?
20 A. Right, scooted up. She asked what
21 happened. I think she asked what happened. She
22 was -- she was pretty bloody in the back seat. The
23 girl in the front seat kept talking and talking and
24 talking and talking and talking. I think my wife
25 was trying to hold one of their hands. My wife had
Page 41
1 come up at that point. She had blood around her
2 face.
3 Q. This is the girl in the back seat?
4 A. Right. I think she came up on her own.
5 I think she -- I think she was down. She either
6 came up on her own, because I remember she moved
7 her head once. I think she did mover her head once
8 and then that was about -- that was about it.
9 Q. All right. How long were you with the
10 girls before the emergency people took over?
11 A. I probably -- well, it felt like 20
12 minutes, but I couldn't really tell you. I mean,
13 it seemed like an eternity to sit here watching
14 somebody do that and, you know, what do you do?
15 I'm sitting here looking at this girl crunched up
16 in the driver's side.
17 Q. Sort of a helpless feeling?
18 A. Yeah. I mean, I didn't know. And the
19 other one I'm thinking was thrown and I didn't know
20 whether to go look for the girl or what. Come to
21 find out, she was in the back seat.
22 Q. Sure. Emergency people did arrive;
23 correct?
24 A. Yeah.
25 Q. And, what, did they basically take over
Page 42
1 then --
2 A. Yeah.
3 Q. -- and take care of getting the girls
4 out and giving them emergency medical care at the
5 scene?
6 A. Yes. As I remember, I think the police
7 showed up first. They ran over to us and started
8 talking to us and talking to us. 'Cause I remember
9 complaining about how long it was taking everybody
10 to get there, because it just seemed like it was
11 taking a long time when I'm looking at what I'm
12 looking at. So they got there and the started
13 talking to the girls and I was standing there.
14 While one was talking to the girls, another one was
15 talking to me, asking me what had happened. And
16 then the ambulance came, the fire department truck
17 came, and they cut the car.
18 Q. They had to cut the girls out of the
19 car?
20 A. I think the driver's side they did.
21 They backed us way over here. We were standing
22 where the guy and the woman was sitting. We were
23 standing over by them at this point.
24 Q. On that media?
25 A. Right.
Page 43
1 Q. Did you see the occupants of the car
2 placed in the ambulances and then driven off?
3 A. Yes. I remember telling the police
4 "Get the driver first, because she's the worst,
5 she's in the baddest condition." I said, "Get the
6 driver first, she's in the baddest condition,"
7 because she looked like the one that was going
8 through -- because the other one in the back seat,
9 I didn't know if she was knocked out or fading in
10 and out or what, but at least she moved on her
11 own. But the one in the front, you could tell she
12 was not in condition to do anything.
13 Q. How long were you there after the
14 ambulance left?
15 A. I remember the ambulance left and I
16 think I talked to the cop one more time. At this
17 point all three of us went to the cop. Me, my wife
18 and I think the girl with the cell phone did too.
19 And I think there was another gentleman, I think
20 there was another guy, too. But at this point I had
21 told all of them to go up -- I think I told my wife
22 to go up and smell it, and I think my wife told the
23 cell phone girl, but I'm not positive.
24 Q. To smell"
25 A. His breath, but I'm not positive.
Page 44
1 Q. The other driver's breath?
2 A. Right.
3 Q. Okay. You made the police aware of it?
4 A. Yeah.
5 Q. Okay.
6 A. We went back to the police because it
7 was like they didn't do it yet, at least not from
8 what I saw. And I'm thinking, you know, did
9 somebody take care of that or what? But then I
10 didn't want to be like, you know, get involved or
11 tell them what to do or something.
12 Q. But you wanted to make sure that the
13 police followed through your observation?
14 A. Yeah, after I saw the observation of
15 those girls. If my car was here like I thought it
16 was, I mean, man, that could have been almost
17 anybody in that intersection, I'm thinking. It
18 just seemed to me that seeing that girl like that
19 just was -- especially after I found out they were
20 coming from prom or some post prom party, whatever
21 they do, I just thought -- it was just something
22 that really bothered me.
23 MR. LIABO: Okay. That's all I have.
24 DIRECT EXAMINATION
25 BY MR. GALLAGHER:
Page 45
1 Q. I'm Mr. Gallagher, and I represent I
2 think the girl you've identified as the girl in the
3 back seat.
4 A. Okay.
5 Q. We've all gotten what you have there,
6 your transcript of your testimony. Have you read
7 it over before you came here today?
8 A. Actually, no. I skimmed through it,
9 though.
10 Q. Okay. So you haven't really refreshed
11 your memory as to what you said at the time of the
12 trial?"
13 A. No.
14 Q, Okay.
15 A. Other than I mean the picture helped a
16 little, him talking about the yellow blinking
17 lights helped, me --
18 Q. sure. Let me ask you this: The trial I
19 believe was in 1997. Did you come down and testify
20 at the trial?
21 A. Uh-huh.
22 Q. Now here we are, over three years later
23 after the accident. Do you think your testimony
24 would have been more accurate because it was given
25 a year after the accident or less than a year when
Page 46
1 you gave your testimony at the trial that it was
2 today? Would you have remembered it a little
3 better?
4 A. Most definitely. Three years is a long
5 time.
6 Q. Sure.
7 A. Actually, I thought -- I was actually
8 surprised when I got this that this was still going
9 on. I didn't get a chance to follow it because I
10 was just about to graduate and do my own thing, so
11 after the witness thing I was pretty much done with
12 following the case.
13 Q. And in this deposition you indicate two
14 or three times that you were going north. I think
15 that's what you ended up saying today.
16 MR. HELLMAN: You're referring to the
17 trial transcript?
18 MR. GALLAGHER: I mean the trial
19 transcript. Thanks, Jim.
20 A. I believe, yes, I was going north.
21 Q. Okay.
22 A. I know this is one thing I can make
23 clear, regardless if I'm not going in the right
24 direction or whatever I'm putting this car, I know
25 that whatever direction I was coming from I had
Page 47
1 just got off the highway and I was going towards
2 University. If that's north, then that's where I
3 was on this page.
4 Q. And you've testified north when you told
5 us today your memory would have been better at the
6 time of trial.
7 A. Yes, because I just did it.
8 Q. Sure. And at that time you were asked,
9 because I got a little confused about the light,
10 and you were asked at the time of the trial, "Did
11 you observe" -- page 65 -- "that the lights were
12 blinking, though?" This is your answer. "Yes,
13 sir." "Do you recall what color they were
14 blinking?" And your answer: "Yellow." Now that
15 you have had that refreshment of your memory, is
16 that what you remember, that they were yellow
17 lights blinking?
18 A. Yes.
19 Q. Was it your habit to have your wife to
20 be driving the car?
21 A. No.
22 Q. Was that because you had a headache or
23 something?
24 A. I don't think I was feeling well. I had
25 a headache and I think I had either just got off
Page 48
1 work and I was tired and --
2 Q. Where were you working then?
3 A. I believe it was still at K-Mart. Yeah,
4 I was at K-Mart.
5 Q. And the as I read your trial
6 transcript, you testified the truck went past your
7 headlights in front of your car. That's still
8 correct, isn't it?
9 A. Uh-huh.
10 Q. Okay.
11 MR. HELLMAN: I'm sorry was that
12 "yes"?
13 THE WITNESS: Yes, it is.
14 Q. Then you went on to say, "I saw the
15 accident and both of the cars going up on the
16 embankment."
17 A. Right.
18 Q. Is that your memory today as well?
19 A. Yes, it is.
20 Q. Okay. And as I understand, you told
21 Mr. Liabo that --
22 A. Who is that?
23 Q. That's him.
24 A. Oh. Sorry. I thought it was a guy at
25 the scene.
Page 49
1 MR. LIABO: Yeah, it was another guy at
2 the scene, right.
3 Q. You told Mr. Liabo that this car made no
4 effort to slow down. Is that accurate? The car
5 that you saw in front of your headlights going
6 across in front of you?
7 A. Exactly what I saw was there was no way
8 for me to see if he made an effort. I know he flew
9 past my headlights and I heard a crash. I didn't
10 even notice the third car, you know, even coming.
11 Q. Was he going at a pretty good rate of
12 speed?
13 A. Yes.
14 Q. Do you have any idea, you've driven a
15 car for a lot of years, what that would be, over 50
16 or under 50, or what is your best judgment of that,
17 if you have a judgment?
18 A. I know we were going 45 and we were
19 coming to a stop and I know he was going faster
20 than that. So it had to have been, I don't know,
21 maybe 55, maybe.
22 Q. Okay. But that, again, is -- you
23 weren't asked that at the time of the trial, that's
24 your judgment today, is that right?
25 A. That's a judgment. I mean I know, like
Page 50
1 I said, I know how fast we were going.
2 Q. Sure.
3 A. We were going 45 and the way he went
4 past my headlights it was faster than what we were
5 doing.
6 Q. What is your understanding a car is
7 supposed to do when the lights are flashing yellow?
8 A. Supposed to --
9 MR. HELLMAN: Excuse me. I object. It
10 calls for an opinion and conclusion of the witness
11 and statement of the law.
12 Q. I'm not asking you to testify as to the
13 law. I want to know what your impression is.
14 MR. HELLMAN: His impression is also
15 irrelevant.
16 You may go ahead and answer.
17 MR. GALLAGHER: That's the most strident
18 objection we've had yet. Don't let that scare
19 you.
20 MR. HELLMAN: I'm having a little
21 difficulty hearing from this end of the table. I
22 want to make sure they can hear me.
23 Q. What I want to ask you is what do you do
24 yourself when a light is flashing yellow when you
25 approach an intersection?
Page 51
1 A. You kind of -- you don't have to stop,
2 but you can like use caution. You slow down.
3 Q. Okay.
4 A. You know, you just kind of -- you keep
5 going, but you --
6 Q. Did you ever see the other car before
7 the collision at all, the other car that was
8 involved in this that the girls were in?
9 A. Did I see their car?
10 Q. Yeah, before there was an impact, did
11 you see it?
12 A. I don't believe I saw their car.
13 Q. Pardon me?
14 A. I don't believe so. I mean, it was dark
15 and you see headlights coming at you. You don't
16 really see the cars.
17 Q. The other car then was going which way?
18 You were going north.
19 A. Which one?
20 Q. Not the truck that went by you, but the
21 other car, which way was it going?
22 A. I thought I was coming the opposite of
23 us.
24 Q. So it would be coming south if you were
25 gong north?
Page 52
1 A. Yeah, I thought it was going the
2 opposite of us.
3 Q. Okay.
4 A. Yeah, I think it was going the opposite
5 of us. 'Cause it couldn't have come from this way
6 and it didn't come back this way. It had to have
7 been going opposite.
8 Q. Right. Opposite would be south; right?
9 A. Right. If I were going north.
10 Q. You mentioned in your trial testimony
11 you believe that the cars were spinning after they
12 hit. Is that what you saw?
13 A. Right.
14 Q. Okay. And it was a very forceful hit?
15 A. They weren't in circles. It was kind of
16 like boom and they shifted and hit the thing and
]17 they separated.
18 Q. It was a forceful, loud impact, wasn't
19 it?
20 A. Right. That's what made me sit up.
21 Because like I said, I was kind of down like that
22 ad it went whoosh, whoosh, and I sat up.
23 Q. Did you get a chance to say anything to
24 your fiancee at that time, who was driving you
25 car? Was there time to say "Look at that" or
Page 53
1 anything?
2 A. I think I said, "Did you see that?," or
3 "Look at that." And she was looking forward and I
4 said, "Look over there." "Cause I think she saw
5 the car and I think she was about to comment on
6 whatever, and all of a sudden we all -- both out
7 eyes just kind of went in that direction. And then
8 the thing was rolling, the stuff was coming toward
9 us, and she tried to get around it, I think it was
10 either a hubcap rolling towards us or a tire
11 rolling towards us, and she tried to get around it
12 and I jumped out of the car. Yeah.
13 Q. Now you saw the occupants of what you've
14 described in your trial transcript as the truck.
15 Do you remember that?
16 A. Uh-huh.
17 Q. Okay. You testified at trial they were
18 staggering out of the car when you saw them. Was
19 that right?
20 A. That's right.
21 Q. And then when you got up to them is when
22 you smelled alcohol on the man's breath that was
23 driving the truck or car; right?
24 A. I think they were coming towards us.
25 Q. That's what you said at the time of
'
Page 54
1 trial and I'm just trying to refresh your memory.
2 Is that accurate?
3 A. Right, I'm trying to do the same thing.
4 Q. Okay.
5 MR. HELLMAN: Excuse me, but, Ed, if you
6 want to refresh his memory you have to show him his
7 prior testimony in order to refresh him.
8 MR. GALLAGHER: He's got it in front of
9 him.
10 Q. You've got it in front of you, don't
11 you? Go to pare 71.
12 A. What line?
13 Q. Okay, line 9.
14 A. Okay. Let me read this for a minute.
15 Q. Sure. Take your time.
16 A. Yes.
17 Q. Is that accurate today?
18 A. Yeah.
19 Q. And didn't you testify at that time that
20 you smelled alcohol on his breath? "I says to them
21 that I though they were drinking"?
22 A. Yeah.
23 Q. Okay. Did you say that to the people in
24 the truck or car that you saw go by you a second
25 before?
Page 55
1 A. Did I say it to who? To the people --
2 Q. To the people that were in that car that
3 you saw go up on the embankment
4 A. Did I say to them that I thought they
5 were drinking?
6 Q. Yes. Who did you say that to?
7 A. I thought I said it to -- I thought I
8 said it to the girl on the cell phone. I don't
9 think I -- I don't know. I can't recall that.
10 Q. Okay. So your testimony is you
11 don't remember who you said that to, but you did
12 say, "I thought they'd been drinking'?
13 A. Right. Right.
14 Q. Okay. And then you ran to check on the
15 girls in the other car?
16 A. Right. I do know they were drinking.
17 That part I do know.
18 Q. You also said at page 71 at line 22, "I
18 smelled alcohol on her breath." That would be the
20 woman that was there with him?
21 A. Yeah, I remember both of them had
22 alcohol breath.
23 Q. And the were trying to hold each other
24 up. Is that right?
25 A. Right. This was after I made the
Page 56
1 observation. I mean, like I said before, the first
2 time I thought they were staggering because of the
3 accident and I smelled the alcohol and assumed
4 that.
5 Q. The woman told him to shut up, is that
6 right?
7 A. Yeah. He kept talking.
8 Q. Did he at that time admit it was his
9 fault, or "It's my fault" or something like that?
10 A. He kept saying he was sorry.
11 Q. Okay.
12 A. And they was talking. I was kind of
13 talking with them. Let's see, he was talking and
14 said he was sorry.
15 Q. Okay. When you got up to the car that
16 the girls were in, the passenger is the one who was
17 talking, isn't that right, on the passenger's side?
18 A. That's correct.
19 Q. There was blood all over the inside
20 of the car?
21 A. Well, it was blue so you couldn't see.
22 It was on them. Yes, you could see the blood on
23 them.
24 Q. Also, do you remember the passenger
25 trying to get out of the car and you tried to get
Page 57
1 her to stay in the car?
2 A. Yes, I do.
3 Q. Okay. Now the girl in the back seat,
4 are you sure she said something? Because at the
5 time of the trial at page 75, is you want to get
6 that, you didn't say anything about her saying
7 anything. As I got it today, you said that she
8 said something. Are you sure she said something,
9 the girl in the back seat?
10 A. Yes this is --
11 Q. I asked you if you remember her saying
12 anything today, the girl in the back seat.
13 A. Well, let me --
14 Q. Sure, you read page 75.
15 A. Let me start over by saying when I came
16 here I didn't really know what it was. I assumed
17 it was going to be an attorney kind of just asking
18 me, basically. I didn't know it was going to be at
19 this level. But I can tell you that the more I
20 read this, the accurate this is.
21 Q. Okay.
22 A. Because every time I see the situation,
23 this is what happened.
24 Q. So what we've described to you as the
25 trial transcript that you've read and skimmed is
Page 58
1 accurate, to the best of your knowledge?
2 A. I know it is. Back then when it just
3 happened, this is what I saw, not three years later
4 trying to remember.
5 Q. Okay. That's fair.
6 A. This is what I seen.
7 Q. The girl in the back seat was bloody,
8 because she -- and she was sliding in the seat and
9 you were trying to hold her up?
10 A. Right. That's right.
11 Q. She really didn't talk to you, did she?
12 A. No. I'm not sure who the gentleman in
13 the white shirt is, but if you show me the page and
14 give me a chance to read it, I'll remember what it
15 says.
16 Q. And I'll give you a chance to do that.
17 And I think you told Mr. Liabo that as you reflect
18 on it or as you thought at the that time, both of these
19 people had been drinking, isn't that right?
20 A. That's correct.
21 Q. And I'm describing the people you came
22 up to right after the accident, that's who I'm
23 referring to.
24 A. In the bigger car.
25 Q. Right.
Page 59
1 A. Right.
2 Q. And as you look at the transcript that I
3 pointed out to you today on various pages, that is
4 accurate as far as your memory of what happened,
5 the papers you've got in front of you?
6 A. Yes. I mean, whether or not I said it
7 to the police or whoever, I said it to somebody,
8 And I know what I smelled. And I do remember that
9 subject did come up between me and my wife.
10 Q. You understand that we're involved in
11 some more litigation about this, and if you're
12 subpoenaed to come to court, you'll have to come to
13 the courtroom and basically say what you've told us
14 today. Do you understand that?
15 A. Yes.
16 Q. You're here to tell the truth, of
17 course.
18 A. Right.
19 Q. And it's your best recollection that
20 what's in that transcript in front of you is the
21 truth as you know it, is that right?
22 A. It is definitely the -- when this was
23 read, this was discussed between me and my wife a
24 lot about, you know, when we came up there.
25 Q. To testify at the trial?
Page 60
1 A. Right, right, the trial thing. So at
2 that point when I first went in there about this,
3 this is exactly how I saw it.
4 Q. Okay.
5 A. Regardless of what I'm saying now, this
6 is the truth here.
7 MR. GALLAGHER: I think that's all the
8 questions.
9 MR. TEMPLE: I have no questions.
10 DIRECT EXAMINATION
11 BY MR. HELLMAN:
12 Q. Mr. Brasfield, I want to ask you a
13 couple questions.
14 If I understood you correctly, before
15 you saw the lights go in front of your car, you
16 were preparing to make a right-hand turn onto
17 Greenhill, is that correct?
18 A. Yeah,because we have to -- there's two
19 ways you can go home. You can go right and then go
20 around that way to get to the apartments or you can
21 go off of University, so I believe we were thinking
22 to either go right or go straight. Yeah, we was
23 making a decision which way to turn.
24 Q. All right. So you were at least -- your
25 wife was contemplating making a right-hand turn or
Page 61
1 something?
2 A. Right. See, she wanted to know whether
3 or not we were going home or going straight
4 Q. All right.
5 A. I think we were either going to go to a
6 friend's house or straight.
7 Q. That's why you had apparently slowed
8 down at that point?
9 A. Yes, we were slowing down to make a
10 decision on which way we were about to turn.
11 Because the light was -- we assumed the light was
12 changing, but either way I now we were going
13 down --
14 Q. All right. I want to ask you a question
15 about the transcript when you testified in the
16 criminal trial. Would you look at the bottom of
17 page 71, line 20. You are asked a question and it
18 goes over onto page 72. The question on line 20
19 is: "Did you make any other observations about
20 their gait or their walk or anything like that?"
21 And your answer is : "I -- I remember the wife
22 trying to -- they were trying to hold each other
23 up."
24 A. Right.
25 Q. "I remember I smelled alcohol on her
Page 62
1 breath as well, and they were trying to hold each
2 other up, and she kept telling him to shut up, and
3 he kept talking, and he made the statement that he
4 might have had a few drinks."
5 Now did I read that correctly?
6 A. Yes.
7 Q. What I wanted to ask you was when the
8 woman told the man to shut up, was it after he had
9 made these statements about he had a few drinks?
10 A. Yes, 'cause he kept -- he kept -- they
11 were kind of fussing between each other and he
12 kept --
13 Q. Did he say he had a few drinks on more
14 than one time?
15 A. Yes.
16 Q. And did she tell him to shut up then?
17 A. Yes.
18 Q. Did that happen several times?
19 A. He kept saying it and she told him to
20 shut up and --
21 Q. And did she tell him to shut up more
22 than once?
23 A. Yeah, more than once, but I don't know
24 how many times.
25 Q. All right.
Page 63
1 A. I mean she was kind of telling me about
2 it. I said what happened and she was telling me
3 where they were coming from.
4 MR. HELLMAN: That's all I have. Thank
5 you
6 (Recess taken.)
7 CROSS EXAMINATION
8 BY MR. BEVEL:
9 Q. Mr. Brasfield, do you recall giving a
10 written statement to the Cedar Falls Police
11 Department?
12 A. Vaguely. Yeah, I think I did.
13 Q. Okay. Do you remember when that was?
14 A. I think I gave one and I think I gave
15 another one a few days later, if I remember right.
16 (Deposition Exhibit 32 marked for
17 identification, as requested.)
18 Q. Now, Mr. Brasfield, you've been handed
19 what has been marked as Exhibit No. 32. Could you
20 take a look at that, please?
21 A. Uh-huh. Do you want me to read it?
22 Q. If you'd look at the front and the back
23 just kind of skim it.
24 A. Oh, okay.
25 Q. See if you recognize the document.
Page
1 A. Yep.
2 Q. And what is that?
3 A. I think this is a statement I filled out
4 a few days -- I think it was a few days after.
5 Q. It appears at the top that that
6 statement is dated October 6, 1996?
7 A. Uh-huh.
8 Q. Is that right? You're going to have to
9 answer outloud.
10 A. I'm sorry. Yes, yes, yes. Right.
11 Q. And this statement. Can you tell
12 us what you remember about how you gave this
13 statement?
14 A. How I gave the statement.
15 Q. Did you just --
16 A. I can't tell you that.
17 Q. Okay. Do you remember giving the
18 statement to an Officer Robert Michael?
19 A. Yes, I do remember giving a statement.
20 I don't remember if I gave it at the scene or at
21 the station, but I think I did go to the station.
22 Q. Okay.
23 A. Yeah, I think I did go to the station.
24 Q. How long had you been working at K-Mart
25 in loss prevention at the time of this statement of
Page 65
1 October 6, 1996?
2 A. I think about year and a half.
3 Q. How many reports had you written as a
4 loss prevention officer by that time?
5 A. I don't know.
6 Q. Just an estimate.
7 A. You don't actually write them. You kind
8 of like fill in the blanks. They have already got
9 it written. But, like I said, two a week.
10 Q. Okay. Is there a narrative portion at
11 all on the statements that you have?
12 A. Yes.
13 Q. That you write out a narrative?
14 A. Yeah, you have to put in, like it says
15 have you seen such and such, like the steps I told
16 you and asks all the steps, and you fill in all the
17 blanks, and put in the person's name and date and
18 that sort of thing.
19 Q. Do you put in what you saw and what you
20 observed?
21 A. Right.
22 Q. I'd like to direct your statement to
23 what appears to me to be the second paragraph on
24 the first page. It begins, "I ran towards him."
25 A. Uh-huh.
Page 66
1 Q. And asked him if he needed any help. Do
2 you see that statement?
3 A. Right. Yes.
4 Q. Who were you referring to there?
5 A. The gentleman who was in the truck.
6 Q. Okay. And that was what you believe was
7 the driver of the truck?
8 A. I believe so.
9 Q. Okay. Then the next statement says, "He
10 pointed towards the blue car and said 'help them.'"
11 A. Right.
12 Q. The it says, "So I then ran over
13 towards the girls' car."
14 A. Right.
15 Q. How long were you -- how close did you
16 get to Mr. Rokes at this time?
17 A. I'd probably say from where I'm at --
18 you mean before we made contact or before he said,
19 "Help them"? When he said, "Help them'?
20 Q. Yes.
21 A. When he said, "Help them." I was
22 probably from this chair to you.
23 Q. Are you talking about this empty chair?
24 A. Uh-huh.
25 Q. About how many feet is that?
Page 67
1 A. About four feet, maybe.
2 Q. Okay. Did you smell any alcohol at that
3 time?
4 A. Uh-huh.
5 MR. HELLMAN: I'm sorry, is that "no"?
6 A. No, until I got up to him.
7 Q. So you continued -- after he said, "Help
8 them," you continued to approach him?
9 A. Right. He kept waking and I do
10 remember trying to get him to -- he just kept
11 talking and walking.
12 Q. What did you do when he told you to help
13 them?
14 A. I went over to the car.
15 Q. Did you do that immediately or what
16 happened?
17 A. First, the first thing I thought about
18 because of the way it looked, I was worried about
19 going over there, I didn't know if it was going to
20 explode or what, and I didn't go -- you know, I
21 kind of jogged over there, but I stayed within five
22 feet before I actually made a decision to touch the
23 girl, because she kept talking.
24 Q. Okay.
25 A. In the passenger's seat.
Page 68
1 Q. Let me rephrase my question. How much
2 time went by between the point where he told you to
3 help them and you were actually going over there?
4 A. Right then. As soon as he said it. I
5 went over there.
6 Q. Okay. How long had you been with him
7 when he said to go -- to help them?
8 A. How long I was with him?
9 Q. Yeah, how long was that contact?
10 A. Seconds. Maybe a few minutes.
11 Q. You say seconds or a few minutes. Are
12 you talking were you with him --
13 A. I went over to him and he was staggering
14 out of the car. I talked to him, we was talking,
15 "Are you okay?" "Help them." I went over to the
16 car.
17 Q. Now did you have any more contact with
18 Mr. Rokes that evening?
19 A. Yes.
20 Q. Okay. When did you have contact with
21 him again?
22 A. I believe I went back over to them when
23 he kept standing up, sitting down, standing up,
24 sitting down.
25 Q. Was this after you had been to the blue
Page 69
1 car?
2 A. I believe by the time my wife came over
3 to the car, I think I went to go check back on him
4 again.
5 Q. So you had two contacts with him, or I
6 guess we could describe it that way, once before
7 you went to the blue car?
8 A. Right. When I first came out of my car
9 and ran over towards --
10 (Off-the-record discussion.)
11 A. What were you asking me?
12 (the reporter read the last question and
13 partial answer.)
14 A. --towards the vehicle when they got up
15 on the embankment. I got out of the car, I was
16 running over towards the car, we talked, "Help
17 them" and ran over. Yeah, I ran over to the blue
18 car.
19 Q. How long were you at the blue car?
20 A. I don't know.
21 Q. Were you at the blue car when the
22 ambulance arrived?
23 A. I was there when the police arrived.
24 I'm not quite sure I was -- I don't think I was
25 there when the ambulance arrived, but I not sure.
Page 70
1 Q. So the police arrived first?
2 A. Right.
3 Q. And you were at the car, the blue car
4 when the police arrived, is that right?
5 A. I believe so.
6 Q. Okay. Between the point or the period
7 between your first getting to the blue car, getting
8 to that car, and the police arriving, did you have
9 any contact with Mr. Rokes?
10 A. I couldn't tell you. I know I spoke to
11 him twice.
12 Q. Okay. Did you make contact with him
13 after the police arrived?
14 A. I believe so.
15 Q. And where was that?
16 A. I know we had all ended up at a point in
17 time we were all congregated by the curb.
18 Q. And how close did you get to him at that
19 time?
20 A. I was sitting right next to him.
21 Q. What were your observations of him at
22 that point?
23 A. I think that's when he started telling
24 me about where he was coming from.
25 Q. Could you understand him?
Page 71
1 A. Oh, pretty much. But you could tell he
2 was, you know, repeating himself. He kept saying
3 the same things over and over again, "I', sorry, we
4 were just hanging out," and stuff like that.
5 Q. Where was his wife at this time?
6 A. I think she was sitting either next --
7 no, I think she was standing up next to the girl.
8 with the cell phone. I think she was standing up.
9 Q. When I look at your statement, that
10 Exhibit 32, I don't see any reference in there to
11 your smelling any alcohol or your indicting that
12 you thought that he had been drinking.
13 A. That was because the police officer said
14 for me to talk about what I saw only.
15 Q. Okay.
16 A. He didn't say anything about all the
17 detailed stuff. He asked me specifically, because
18 I remember asking him when I got there, "Did you
19 guys give that guy a test?" And he didn't know.
20 And that's when I guess he must have thought I was
21 about to start rambling and he said, "Put down the
22 facts of what you saw in the accident." And so
23 that's what I did.
24 Q. In that statement you did talk about
25 things that happened after the accident right?
Page 72
1 A. I believe so.
2 Q. But you didn't make any reference to any
3 alcohol, did you?
4 A. Because he said that I can't
5 incriminate -- I can't say that he was drunk,
6 because I don't know that.
7 Q. Okay.
8 A. I was going to put in there "the drunken
9 guy" is what I was going to write, but he said I
10 couldn not -- I couldn't say he was drunk, you
11 know. I couldn't make that statement if I didn't
12 know.
13 Q. Did you know that?
14 A. No, I didn't know other than what I
15 smelled.
16 Q. Okay. So it was basically based on the
17 odor?
18 A. Based on the alcohol that I smelled off
19 of him and his wife, I thought they were drinking.
20 Q. Okay. You thought they were drinking.
21 A. Right.
22 Q. What was your first observation of the
23 Farrell vehicle, of the blue car? When was the
24 first time you saw it?
25 A. When they were both going onto the
Page 73
1 embankment.
2 Q. Did you observe any injuries about
3 Mr. Rokes, the driver of the truck? Could you tell
4 or did you know if he was injured or not?
5 A. Well, I thought he had trouble walking.
6 He was staggering out of the car. I don't -- I
7 don't think I really recall injuries on Mr. Rokes
8 at this point three years later, because it didn't
9 really look like anything was wrong with his car.
10 but I don't believe that his car was that damaged.
11 And if they were already walking and talking and
12 there was nobody getting out of the other car, I
13 assumed they were in worse shape.
14 Q. You didn't notice -- you can't recall
15 whether or not he was bleeding or if there were any
16 cuts or anything? I'm talking about the driver of
17 the truck.
18 A. I don't recall any bleeding from him. I
19 don't know. I don't know, I can't -- I can't
20 recall if he had any blood on him or not. But I
21 would assume he might have, I mean. Did I say in
22 here he did? I don't recall it.
23 Q. Yeah, I'm just asking.
24 A. Oh.
25 Q. You said you had some discussions with
Page 74
1 your wife?
2 A. Uh-huh.
3 Q. Was that after the accident? I mean,
4 when were these discussions?
5 A. Going home. When we were riding back
6 after we -- after everybody kind of left, I think
7 it was me, her, the woman with the cell phone, I
8 think there was one other person, we all kind of
9 stood there for a while talking about this whole
10 thing. This was kind of like when everybody was
11 leaving and the ambulance was gone and we just kind
12 of talked about it at that point.
13 Q. Have you given any other statements?
14 other than that statement of October 6th?
15 A. I don't think so.
16 Q. Were you interviewed by the
17 County Attorney's office?
18 A. I think so. After the accident; right?
19 Yeah. I think it was after the accident. I think
20 it was in the basement.
21 Q. The basement of the Black Hawk County
22 Courthouse?
23 A. Yeah, I believe so. I think -- I think
24 that was right before the trial.
25 Q. Okay. Do you know who you talked to?
Page 75
1 A. I think it was a gentleman, he went to
2 Northwestern or something, we talked a while. We
3 talked about home for a while, but I don't know his
4 name.
5 Q. Where are you from? Are you from
6 Chicago?
7 A. Chicago. He went to school there or
8 grew up there or something like that.
9 Q. You don't recall his name, though?
10 A. I couldn't tell you.
11 Q. Was he the gentleman that asked you
12 questions at the trial?
13 A. I'm trying to recall this gentleman's
14 face. No, I don't know. I think he's got dark
15 hair, a white gentleman. I can't recall his name.
16 Q. Did anyone discuss with you the accident
17 or the investigation of the accident?
18 A. I think he did'
19 Q. Okay. What did he tell you? First of
20 all, was this before you testified?
21 A. I think this was before the trial.
22 Q. What did he tell you?
23 A. He asked me what I saw. He asked me the
24 same stuff that I'm talking about now.
25 Q. Did he tell you anything about alcohol
Page 76
1 or testing that had been done?
2 A. No. He told me that I could not ask him
3 any questions. No, what did he say? He said that
4 I had to tell him word for word what happened. And
5 he gave me some criteria of what he could or could
6 not do, but I don't really recall all of it. I
7 just know that he did a lot of talking early and
8 then told me what I saw.
9 Q. You mean you told him what you saw?
10 A. Right.
11 Q. He didn't tell you what you saw?
12 A. I mean, no, he wouldn't --
13 Q. You may have said that accidentally. I
14 just want to make sure I'm understanding you.
15 A. I think I told him.
16 Q. Okay. Did he tell you -- do you
17 remember anything he told you about this case?
18 A. Do I remember anything he told me about
19 this case?
20 Q. Yes.
21 A. The he told me. I think he said
22 something about why I was here, it was a civil
23 suit. He was telling me about what was to be
24 expected at the trial. What else did he say? How
25 to answer straight questions. I mean, I guess he
Page 77
1 was telling me about what to expect.
2 Q. Did you see the truck before the impact
3 or did you only see the lights?
4 A. I saw, well, lights, truck, I saw the
5 whole thing go right in front of our faces.
6 Q. Okay.
7 A. I believe I just saw -- I mean, like I
8 said, at 11:30 at night, I've got a headache, I'm
9 not really paying attention to every vehicle. I do
10 know that the speed of his going pat the front of
11 our car made me look in his direction.
12 Q. Based on that observation, were you able
13 to tell how fast he was going?
14 A. No. Just from the motion that we were
15 coming, he went really fast in front of us.
16 MR. GALLAGHER: I didn't get that last.
17 What?
18 A. From our motion of moving forward, the
19 speed of him just went straight in front of us, you
20 know, because he was moving and we were moving and
21 we both can't be moving at the same time in two
22 different directions.
23 MR. BEVEL: I don't have any other
24 questions.
25
Page 78
1 REDIRECT EXAMINATION
2 BY MR. LIABO:
3 Q. Just a couple of quick things.
4 With respect to your statement to the
5 police, am I correct in my understanding of your
6 testimony that you started to write or intended to
7 wanted to write that the man in the -- let me start
8 over again. Do I understand your testimony to be
9 that you started to refer to the man who had
10 been driving the vehicle as being drunk or referred
11 to him as the drunk driver?
12 A. The drunk guy, yeah.
13 Q. The drunk guy. And you expressed that
14 to the officer?
15 A. Yeah, the guy that was giving me the
16 paper to write this on.
17 Q. All right.
18 A. He put me in the room by myself and I
19 was sitting there for like a long time and I had
20 like about -- I didn't know where to start. I
21 said, "What part do you want me to talk about? Do
22 you want me to talk about the girls were hurt or
23 what?" And he said, "Just tell everything." And I
24 was going to put in about that drunk guy and he
25 said, "You don't know if he was drunk," you know,
Page 79
1 so I didn't put it in there.
2 Q. Did you have an opinion that he was
3 drunk?
4 A. Yeah, I knew he was drunk. I felt he
5 was drunk from what I saw.
6 Q. And what was that opinion based upon?
7 A. When I came back over to the curb and
8 when he kept standing up an down and wouldn't
9 listen, and she kept telling him to shut up and he
10 kept talking and, you know, he was sitting on the
11 curb like this, you know, "I'm sorry." I mean, he
12 looked drunk. His appearance looked drunk.
13 Q. Like he didn't have control of his
14 emotions?
15 A. Well, no, because he kept going, "I'm
16 sorry, I just had a few drinks," and she kept
17 telling him to shut up and he kept talking.
18 Q. Was his speech slurred?
19 A. Yes, I believe so.
20 Q. And you said he was repeating himself?
21 A. Like I keep saying, he kept saying, "I'm
22 sorry. I'm sorry, I'm sorry, I'm sorry," and then
23 he was saying, "We just had a few drinks," like
24 that. And he was sitting there and she was telling
25 him to shut up and he kept standing back up.
Page 80
1 because he was walking and talking, you know, and
2 she kept trying to get him to sit back down again.
3 Q. And, of course, you smelled the alcohol?
4 A. Right.
5 MR. LIABO: That's all I have. Thank
6 you.
7 MR. GALLAGHER: No questions.
8 MR. BEVEL: I don't have any other
9 questions.
10
updated 07/29/10