See also: Diane Venenga CFPD Report
See also: Dame Venenga
Criminal Trial Deposition

DIANE VENENGA
CRIMINAL TRIAL TESTIMONY


(Pages 210-239)

22 MR. WADDING: Officer Venenga.

 

23

 

24

 

211

 

1 DIANE VENENGA

2 called as a witness on behalf of the state, being first

 

3 duly sworn by the court, was examined and testified as

4 follows:

 

5 COURT: If you would, please state your full

6 name.

 

7 WITNESS: Diane Venenga.

 

8 COURT: How do you spell your name?

 

9 WITNESS: D-I-A-N-E. Last name spelling is V

10 as in Victor E-N-E-N-G-A.

 

11 COURT: Thank you. Mr. Wadding?

 

12 MR. WADDING: Thank you.

 

13 DIRECT EXAMINATION

 

14 BY MR. WADDING:

 

15 Q. Would you please state your occupation.

 

16 A. I'm a police officer for the city of Cedar

17 Falls.

 

18 Q. And how long have you been a police officer

19 for Cedar Falls?

 

20 A. About 14 months now.

 

21 Q. And do you have any prior law enforcement

22 experience?

 

23 A. Yes. I worked for the Black Hawk County

 

24 Sheriff's Office. I was a deputy sheriff for seven

 

25 months.

 

 

212

 

1 Q. And are you a certified peace officer in the

2 state of Iowa?

 

3 A. Yes, I am.

 

4 Q. When did you receive your certification?

 

5 A. It was December of '95.

 

6 Q. Is that through the Iowa Law Enforcement

7 Academy?

 

8 A. That is correct.

 

9 Q. Are you familiar with the -- and certified in

10 the areas of OWI investigation?

 

11 A. Yes, I am.

 

12 Q. And including the implied consent procedures?

 

13 A. Yes.

 

14 Q. Could you just describe what your duties are

15 generally -- generally with the Cedar Falls Police

16 Department?

 

17 A. I'm a third shift patrol officer. I work

18 from 10:15 at night to 6:45 in the morning. During that

19 time I answer calls and investigate accidents, stop

20 vehicles.

 

21 Q. Now, how long have you been on third shift?

 

22 A. For 12 months.

 

23 Q. And what shift did you work prior to that

24 then?

 

25 A. I was on second shift for about two months,

 

213

 

1 month and a half.

 

2 Q. And what shift would you have been on on

3 October 4th, 1996?

 

4 A. That would have been third shift.

 

5 Q. And did you have occasion to, or did you

6 assist in the investigation of a traffic accident at

7 Greenhill Road and Highway 58 on October 4th, 1996, to

8 October 5th, 1996?

 

9 A. Yes, I did.

 

10 Q. And could you just give me a general

11 description of what you considered your duties to be in

12 that -- in that investigation?

13 A. That night it was decided that I would just

14 investigate the accident, which means I would fill out

15 the state accident report, I would talk to the drivers

16 and to the witnesses and basically felt the state

17 accident report was my main duty.

 

18 Q. Now, you said that your duty was to fill out

19 the accident report, as opposed to what?

 

20 A. During this investigation it was determined

21 that the other driver had been intoxicated or drinking or

22 impaired at the time. We were told what we usually do in

23 most of these cases, because there's so much paperwork

24 and so much stuff involved, what we do is split it up.

25 One person does the OWI, and the other person does the

 

214

 

1 accident report.

 

2 Q. Okay. And so you would have been charged in

3 the accident?

 

4 A. Yes.

 

5 Q. Okay. Can you describe what you -- what you

6 first did with regard to your investigation into this

7 incident? What was your first involvement?

8 A. My first involvement, like when I arrived at

9 the scene?

 

10 Q. Yes.

 

11 A. My main concern when I arrived at the scene

12 was people were okay, so what I did when I exited my

13 vehicle, I started walking up to the accident scene. I

14 stopped and first talked with the defendant. He had

15 blood on his face. He appeared he was unstable at the

16 time, was standing next to somebody that was next to him.

17 I asked if he was the driver, and he stated he was. I

18 briefly asked which direction he was going. He said he

19 was going west on Greenhill, and at that time I told him

20 the ambulance would be with him, and I went and talked

21 with people -- or went up to the blue Oldsmobile, which

22 was the other vehicle involved.

 

23 Q. Did you identify that individual by name at

24 that time?

 

25 A. Yes, I did.

 

215

 

1 Q. And who did you identify him as?

 

2 A. Tracy Rokes.

 

3 Q. And when you speak of the defendant, you're

4 speaking of the individual sitting at the table here?

 

5 A. Yes.

 

6 Q. Okay. And is that -- how long did you have

7 contact with him at that point in time?

 

8 A. Briefly a minute roughly.

 

9 Q. And what did you do then?

 

10 A. After that, then I went up to where the blue

11 Oldsmobile was at.

 

12 Q. And why did you go to the blue Oldsmobile?

 

13 A. I was told that there were three people in

14 there that were badly injured and they needed assistance,

15 so the fire and paramedics were already there and went up

16 to help assist them.

 

17 Q. Did you?

 

18 A. Yes.

 

19 Q. Could you describe what kind of assistance

 

20 you gave?

 

21 A. Yes. I was there when they were taking the

22 back seat passenger out. I just provided light from my

23 flashlight. I also helped assist with the backboard

24 pulling the person out of the vehicle.

 

25 Q. Okay. And what did you observe about her

 

216

 

1 condition?

 

2 A. She was completely unconscious at the time,

3 was totally unresponsive and never answered any questions

4 or was responsive in any way.

 

5 Q. Did you ever come to find out who that was?

 

6 A. Yes, I did.

 

7 Q. Do you recall who that was right now?

 

8 A. Yes, I do.

 

9 Q. Who was that?

 

10 A. It was Tamara Kleinheksel.

 

11 Q. And she was the back seat passenger?

 

12 A. Yes.

 

13 Q. And did you assist any further with

14 individuals in the car?

 

15 A. Yes. I assisted with the front seat

16 passenger getting her out of the vehicle.

 

17 Q. And do you remember, did you identify her, or

18 later come to know who she was?

 

19 A. Later identified as Kristina Hill.

 

20 Q. And did you ever assist or come in contact

21 with the driver of that vehicle?

 

22 A. Yes, I did.

 

23 Q. And did you identify her?

 

24 A. Yes. I -- later that was also -- that was

25 Juli Farrell.

217

 

1 Q. And could you describe what kind of

2 assistance or what you did with regard to Ms. Farrell?

3 A. Nothing. Basically just -- you know,

4 provided light for the paramedics and for the fire

5 officer -- or fire -- and then later I spoke with her at

6 the hospital.

 

7 Q. And what did you observe about her condition

8 out at the scene?

 

9 A. She was responsive, very irate. She was

10 screaming. She said she was in a lot of pain.

 

11 Q. That was at the scene?

 

12 A. That was at the scene.

 

13 COURT: Who are you referring to?

 

14 WITNESS: To the driver.

 

15 Q. Ms. Farrell?

 

16 A. Yes.

 

17 Q. How long do you think you were at the scene

18 before -- before the ambulance transported everybody to

19 the hospital?

 

20 A. I think I was at the scene for roughly maybe

21 a half hour, 45 minutes longer after people were

22 transported to the hospital.

 

23 Q. Why did you remain at the scene after people

24 were transported?

 

25 A. They needed assistance in taking photographs,

 

218

 

1 also doing the accident reconstruction, taking the

2 measurements.

 

3 Q. Were you in charge of the accident

4 reconstruction?

 

5 A. No.

 

6 Q. Who was?

 

7 A. Sergeant Wilson, Todd Wilson.

 

8 Q. And did you photograph the scene?

 

9 A. No, I did not.

 

10 Q. Who did?

 

11 A. Sergeant John Liljegren.

 

12 Q. And could you describe what role you played

13 in -- at that point in the investigation?

 

14 A. Basically when you're taking measurements,

15 you need two people, one to hold the end of the tape and

16 the other person to go and do the actual measurements. I

17 basically held the dummy end and held the end of the tape

18 on a spot so Sergeant Wilson could go and take

19 measurements from certain points.

 

20 Q. Okay. And how long -- how long do you think

21 you were there taking measurements of the scene?

 

22 A. Probably 30 minutes or a little bit longer.

 

23 Q. And did you record those, or did Sergeant

24 Wilson record them, or how were they recorded?

 

25 A. A couple of them I recorded, but most of the

 

219

 

1 time Sergeant Wilson recorded them.

 

2 Q. And after you measured the scene, what did

3 you do?

 

4 A. I assisted briefly with the photographs.

5 After that, then I went to the hospital.

 

6 Q. And why did you go to the hospital?

 

7 A. To speak to the drivers.

 

8 Q. And did you just go yourself to the hospital,

9 or did anyone go with you?

 

10 A. I drove my patrol car to the hospital, and

 

11 Sergeant Wilson followed, or I followed him to the

12 hospital.

 

13 Q. And was Sergeant Wilson in a patrol vehicle

14 as well?

 

15 A. No. He's in his personal vehicle.

 

16 Q. Do you know why that was?

 

17 A. He was working off duty that night, I

18 believe, at Dan Deery's Motor Company. We do security

19 work there.

 

20 Q. And he was called to the scene?

 

21 A. Yes.

 

22 Q. And do you know why he was called to the

23 scene?

 

24 A. Because he does the accident reconstruction.

 

25 Q. And so you and Sergeant Wilson go -- then

 

220

 

1 head to the hospital?

 

2 A. Yes, we went to Sartori.

 

3 Q. Can you describe what you did when you got to

4 Sartori?

 

5 A. We went into -- through the emergency room,

6 and the first person that we went -- first room we went

7 to was Juli Farrell's room.

 

8 Q. And could you describe -- could you describe

9 what Juli Farrell was doing or what she was like at that

10 time?

 

11 A. She seemed very upset. She had a difficult

12 time speaking and moving around on the hospital gurney or

13 bed.

 

14 Q. And was she saying anything at all that you

15 could -- that you could understand?

 

16 A. Yes.

 

17 Q. Do you recall what she was saying?

 

18 A. She was saying that she was in a lot of pain,

19 and then that's when Sergeant Wilson asked her a few

20 questions.

 

21 Q. And do you recall what kind of questions he

22 was asking her?

 

23 A. Yes. She was talking about the accident, and

24 she asked where the accident occurred, and she was told

25 that -- Sergeant Wilson told her it occurred at Highway

221

 

1 58 and Greenhill. Once she knew where the intersection

2 was, she said that it wasn't her fault. She said

3 previous to the accident she was just at a friend's house

4 watching movies with two other friends. She said she was

5 driving on Highway 58. She was going toward a friend's

6 house, which was 700 West Ridgeway, so she was going

7 south on Highway 58, and she said some guy plowed into

8 her, ran the light and plowed into her. She said she had

9 a flashing yellow.

 

10 Q. And can you describe what was she like

11 emotionally at that time?

 

12 A. She was crying. She was screaming at some

13 times -- at some points. She definitely appeared to be

14 in a lot of pain.

 

15 Q. Did you ask her any questions?

 

16 A. No, I did not.

 

17 Q. How long do you think your contact with Ms.

18 Farrell lasted?

 

19 A. Approximately three minutes, four minutes.

 

20 Q. And what did you do then?

 

21 A. After we left her exam room, we went and

22 spoke with her mother.

 

23 Q. And how long did you speak with her?

 

24 A. Her mother?

 

25 Q. Yes.

 

222

 

1 A. Five minutes roughly.

 

2 Q. And after you spoke with her mother, what did

3 you do?

 

4 A. We went to -- we were walking to where Mr.

5 Rokes -- his exam room. We were walking up to that area,

6 but they were coming out of the exam room, so we met them

7 in the hallway.

 

8 Q. When you say we, you're speaking of?

 

9 A. Sergeant Wilson and I.

 

10 Q. What did you do then?

 

11 A. Sergeant Wilson went up to the counter. They

12 were standing right there by the nurses' station or

13 counter at the emergency room at Sartori, and he asked

14 him, you know, can you tell me what happened tonight, or

15 something along the lines as to what happened.

 

16 Q. When you say he, are you speaking of Mr.

17 Rokes?

 

18 A. Sergeant Wilson asked Mr. Rokes what happened

19 tonight.

 

20 Q. And did Mr. Rokes respond?

 

21 A. Yes, he did.

 

22 Q. Could you -- do you recall what he said?

 

23 A. Yes. He said that he had one too many to

24 drink.

 

25 Q. And did he indicate anything else?

 

223

 

1 A. Sergeant Wilson asked, you know, in-depth

2 questions or specific questions as direction of travel

3 and things like that, and he responded to those

4 questions.

 

5 Q. And at the time that you were there speaking

6 with the defendant, are there any other police officers

7 besides you and Sergeant Wilson present?

 

8 A. No.

 

9 Q. Is Officer Michaels still there?

 

10 A. No.

 

11 Q. Was Officer Anderson there?

 

12 A. No.

 

13 Q. And how would you -- when Sergeant Wilson

14 asked the defendant what had happened and he responded

15 that he had one too many to drink, was that in direct

16 response to that question?

 

17 A. Yes, it was.

 

18 Q. And after that, could you describe how the

19 conversation proceeded?

 

20 A. More specifically Sergeant Wilson, you know,

21 asked him his direction of travel. He said he was going

22 westbound on Greenhill. He said he had a solid green

23 light, the lights were not flashing. Basically he was

24 talking about that he was on his way home, and I believe

25 he did say that he was coming from Brooster's, and

 

224

 

1 basically that was pretty much the end of the

2 conversation right there.

 

3 Q. And did you indicate that -- did you come in

4 contact with him at a later date or not?

 

5 A. Yes. They needed a ride home to the

6 residence, so I offered to give them a ride home in my

7 patrol car.

 

8 Q. And do you recall approximately what time you

9 did this?

 

10 A. I'm not for sure. I'm thinking it was

11 probably around 1 o'clock, 1:30 maybe.

 

12 Q. And after you gave the Rokeses a ride home,

13 did you have any further contact with the defendant, Mr.

14 Rokes?

 

15 A. Yes, I did. Sergeant Wilson came in the next

16 night as well as I. Mr. Rokes was called and was asked

17 to come to the station for a statement. Mr. Rokes and

18 his wife, Delonna Rokes, both came to the station for a

19 statement.

 

20 Q. And did you then take a statement from Mr.

21 Rokes?

 

22 A. No. I took a statement from his wife,

23 Delonna Rokes.

 

24 Q. And were you present at the time Mr. Rokes

25 gave his statement?

 

225

 

1 A. No, I was not.

 

2 Q. Who did he give his statement to?

 

3 A. Sergeant Wilson.

 

4 Q. If I could just take you back to the hospital

5 emergency room for a moment. When you remember observing

6 Juli Farrell, did you observe any injury on her?

 

7 A. Yes.

 

8 Q. Okay. What kind of injury did you observe?

 

9 A. She had cuts and scrapes on her face, also, I

10 believe, on one of her knuckles. I think it was her

11 right side, her knuckles on her hand were scraped up.

12 That's all the injury that I observed.

 

13 MR. WADDING: That's all the questions I have

14 at this time. Thank you.

 

15 COURT: Mr. Correll?

 

16 MR. CORRELL: Thank you.

 

17 CROSS-EXAMINATION

 

18 BY MR. CORRELL:

 

19 Q. Officer, you would have received your call at

20 approximately 11:01 or shortly thereafter; is that

21 correct?

 

22 A. It was around that time, yes.

 

23 Q. And you were in service and down -- or on

24 Main Street in Cedar Falls at the time; is that correct?

 

25 A. I was not in service at the time, no.

226

 

1 Q. Well, I meant, I guess I should probably say

2 you were on duty at the time?

 

3 A. I was on duty, yes.

 

4 Q. And you were investigating another traffic

5 accident; is that correct?

 

6 A. Yes. A minor property damage accident.

 

7 Q. And that was -- had apparently occurred very

8 close to the same time as this one; is that correct?

 

9 A. That is correct.

 

10 Q. And there wasn't any alcohol involved in that

11 accident, I take it?

 

12 A. No, there was not.

 

13 Q. And where would that have been in

14 relationship to 58 and Greenhill Road?

 

15 A. That is approximately maybe three miles away

16 at University -- or it was Main and Seerley Boulevard.

 

17 Q. And did you kind of conclude -- speed up your

18 work at that accident so you could leave and go to

19 Greenhill and 58?

 

20 A. That is correct.

 

21 Q. From the time you got the dispatch, how much

22 longer did you stay at Seerley and Main Street before you

23 left for 58 and Greenhill?

 

24 A. About two, three minutes.

 

25 Q. So you would have gotten the dispatch at

 

227

 

1 about 11:01, you would have probably left for Greenhill

2 about 11:03, 11:04; would that be a fair statement?

 

3 A. Roughly in that area, yes.

 

4 Q. And approximately how -- what route did you

5 take when you went to Greenhill and 58 from your previous

6 location?

 

7 A. I was at Seerley and Main. I went down Main

8 Street south. I took a left, and I was going eastbound

9 on University. Right after University I took another

10 right, and then I was up on Highway 58 going southbound.

 

11 Q. Approximately how much time would have

12 elapsed, if you left Seerley and Main at 11:03, 11:04,

13 approximately how much time would have elapsed before you

14 would have reached the 58 and Greenhill Road

15 intersection?

 

16 A. At the most five minutes.

 

17 Q. Okay. So you would have probably been at

18 Greenhill and 58 at 11:08, 11:09, approximately?

 

19 A. Approximately, yes.

 

20 Q. And at that point in time, was the -- when

21 you got there, had the paramedics already gotten there?

 

22 A. Yes, paramedics already arrived.

 

23 Q. And when you got there, was there another law

24 officer on the scene?

 

25 A. Yes, there was.

 

228

 

1 Q. And who was that?

 

2 A. Officer Michael.

 

3 Q. And when you arrived, shortly after bringing

4 your car to a stop and getting out of your car, did you

5 go up to Mr. Rokes?

 

6 A. I walked toward where the vehicles were

7 resting, and he was in between my vehicle and where his

8 vehicle was resting.

 

9 Q. So would you have had contact with Mr. Rokes

10 at some time ten after 11 type --

 

11 A. Approximately, yes.

 

12 Q. And at that point in time did you have a

13 conversation with him?

 

14 A. A very brief conversation, yes.

 

15 Q. Did he indicate that he was driving?

 

16 A. Yes.

 

17 Q. Did he indicate that he did not see the other

18 car until the last second when it was too late?

 

19 A. No. I do not believe so.

 

20 Q. You do recall me taking your deposition,

21 don't you?

 

22 A. Yes, sir.

 

23 MR. CORRELL: May I approach the witness,

24 Your Honor?

 

25 COURT: You may.

 

229

 

1 Q. At page 20 of your deposition, taken last

2 week, did I ask you, "What else did he tell you?" Did

3 you answer, "I asked him if he was the driver, and he

4 said that he was. He said that he didn't see the other

5 car until the last second and by that time it was too

6 late."

 

7 A. Yes, that is correct.

 

8 Q. Okay. And that's what you told me at the --

9 during the course of that deposition?

 

10 A. Deposition, yes.

 

11 Q. And is that, in fact, correct? Is that what

12 he told you?

 

13 A. That is correct.

 

14 Q. At that point in time, did you have any

15 discussion with him about anything else?

 

16 A. I don't believe so, no.

 

17 Q. And then you went over and gave the

18 assistance to the passengers in the Oldsmobile that you

19 just discussed; is that -- am I correct in that?

 

20 A. That is correct.

 

21 Q. Then when you went -- after you got done

22 assisting Mr. Wilson, you went up to the Sartori

23 Hospital?

 

24 A. Yes.

 

25 Q. And when you were up at Sartori Hospital, you

 

230

 

1 had a conversation with Mr. Rokes, did you not?

 

2 A. Yes.

 

3 Q. And the conversation, first of all, that you

4 said that referred to the one too many to drink, could

5 that have -- first of all, that did not -- he did not say

6 he had one too many alcoholic beverages, did he, or one

7 too many beers?

 

8 A. He did state that, yes.

 

9 Q. That's not what your report states.

 

10 A. He stated he had one too many to drink.

 

11 Q. But he did not specify one too many of what;

12 isn't that a fair statement?

 

13 A. That is correct.

 

14 Q. And that statement -- could that statement --

15 or was that statement made in the presence of Mr. Wilson?

 

16 A. Yes, it was.

 

17 Q. And could that statement have been in the

18 presence of Dr. Robitaille as well?

 

19 A. No, I do not believe so.

 

20 Q. Could that statement have been made in a

21 treatment room or an emergency room?

 

22 A. No. That was in the hallway.

 

23 Q. When you were talking to Mr. Rokes at the

24 hospital, isn't it a fact that you found him to be alert?

 

25 A. Yes.

 

231

 

1 Q. And that you found him to be cooperative?

 

2 A. Yes.

 

3 Q. And the only thing that you -- that gave you

4 any indication that he had consumed alcohol was the odor

5 of alcohol?

 

6 A. That is correct.

 

7 Q. And isn't it a fact that if he would have

8 been -- if you would have felt in your opinion that he

9 was intoxicated or under the influence, you would have

10 included that in the report that you wrote, would you

11 not?

 

12 A. Yes, I would have.

 

13 Q. And you prepared that night and into the next

14 morning a six-page report, did you not?

 

15 A. Yes.

 

16 Q. And you typed that yourself?

 

17 A. Yes.

 

18 Q. And in that report you did not draw any

19 conclusion or make any statement that indicated that you

20 felt Mr. Rokes was under the influence or intoxicated;

21 isn't that a fact?

 

22 A. That is correct.

 

23 Q. And the reason you didn't draw that -- make

24 that conclusion in your report is because you didn't

25 think he was; isn't that a fact?

 

232

 

1 A. That is correct.

 

2 Q. And had you or another officer been of the

3 opinion that he was under the influence or intoxicated,

4 you would have arrested him on that occasion, would you

5 not?

 

6 A. Yes.

 

7 Q. And the fact that you did not is because you

8 did not believe he was under the influence or

9 intoxicated; isn't that a fact?

 

10 A. Yes.

 

11 Q. Have you been involved in other accidents

12 that -- where there were accident investigations

13 regarding accidents at that Highway 58 and Greenhill

14 Road?

 

15 A. Yes.

 

16 Q. And have those included people -- situations

17 where a person went through a red light, flashing red

18 light?

 

19 MR. WADDING: I'll object to that, Your

20 Honor, as being outside the scope for one thing. It's

21 irrelevant for another.

 

22 COURT: Overruled. You may answer.

 

23 A. Yes.

 

24 Q. And in that situation where a person went

25 through a flashing red light, similar to Mr. Rokes, there

 

233

 

1 was no alcohol involved, was there?

 

2 A. No.

 

3 Q. When you left the hospital Saturday morning,

4 it was your opinion that Ms. Farrell was going to be all

5 right, wasn't it?

 

6 A. Yes.

 

7 Q. And it was your opinion that when you left

8 the hospital Saturday night that she was going to be all

9 right and that the only type of citation that would be

10 appropriate in this would be a citation for Mr. Rokes

11 going through a flashing red light; isn't that a fact?

 

12 A. Yes.

 

13 MR. CORRELL: That's all I have. Thank you.

 

14 COURT: Mr. Wadding?

 

15 REDIRECT EXAMINATION

 

16 BY MR. WADDING:

 

17 Q. Why didn't you form an opinion or draw a

18 conclusion as to whether or not Mr. Rokes was

19 intoxicated?

 

20 A. I spent only a brief time with him. I did

21 not do -- perform any field sobriety test on him. The

22 only indicator that I had from him that he had been

23 drinking was the smell of alcohol -- or the odor of

24 alcohol, the alcoholic beverage. He did have bloodshot

25 and watery eyes, but he also was involved in an accident,

 

234

 

1 and there was blood cut over his eye, so --

 

2 Q. And were you aware at that time that there

3 had been a blood sample drawn from the defendant?

 

4 A. Yes, I was aware.

 

5 Q. And were you conducting an OWI investigation

6 on the defendant?

 

7 A. I was not, no.

 

8 Q. And is that the reason you didn't have an

9 opinion as to whether he was intoxicated or not?

 

10 A. I wasn't involved in any of that aspect, so

11 that's probably why I didn't have an opinion -- that's

12 why I don't have an opinion.

 

13 Q. And the -- when you say that you didn't think

 

14 that he was intoxicated when you were questioned by Mr.

 

15 Correll, what do you mean by that?

 

16 A. You know, standing -- when we were standing

 

17 in the hallway talking to him, he was, you know, not

18 falling down. He was coherent. He answered our

 

19 questions, and he didn't have slurred speech, so that's

 

20 what I'm basing my conclusion on.

 

21 Q. And do you know how long that would have been

22 after he had been involved in the accident?

 

23 A. Probably over an hour.

 

24 Q. And did you ever -- did you ever estimate

25 that; do you recall?

 

235

 

1 A. I don't think I estimated the time, no.

 

2 Q. Okay. Were you there when his blood was

3 drawn?

 

4 A. No, I was not.

 

5 MR. WADDING: May I approach?

6 COURT: You may.

 

7 Q. I'm going to show you what's been marked as

8 State's Exhibit "C" and entered into evidence, and you

9 see -- are you familiar with something of this nature,

10 this blood collection report?

 

11 A. Yes, I am.

 

12 Q. Okay. Now, do you -- can you tell by that

13 when the blood was drawn?

 

14 A. Yes, I can.

 

15 Q. And when was that drawn?

 

16 A. That was drawn at 12:20 a.m.

 

17 Q. And you weren't there at that time?

 

18 A. No, I was not.

 

19 Q. Okay. And it's your understanding the

20 accident took place some time around 11 p.m. or before

21 that, right?

 

22 A. Yes.

 

23 Q. And you weren't there -- and Officer Michael

24 wasn't present when you were there; isn't that correct?

 

25 A. No, he was not.

 

236

 

1 Q. And Officer Anderson wasn't there when you

2 got there; is that correct?

 

3 A. That is correct.

 

4 Q. And is it possible that you saw the defendant

5 up to two hours after the accident?

 

6 A. That is possible, yes.

 

7 Q. And when the defendant responded to Sergeant

8 Wilson's inquiry about what happened and he responds, I

9 had one too many to drink, what did you think that to

10 mean?

 

11 MR. CORRELL: Excuse me, Your Honor. I'm

12 going to call -- object to that. That calls for

13 speculation.

 

14 COURT: Sustained.

 

15 MR. WADDING: Well, I'm not asking her to

16 speculate as to what the defendant meant. I'm asking her

17 to -- I'm asking her what she thinks that means.

 

18 MR. CORRELL: I'm going to object furthermore

19 then, what she thinks it means is irrelevant.

 

20 COURT: I have what she -- what she says he

21 said.

 

22 Q. And it's your -- when you had contact with

23 Mr. Rokes at the hospital, were you still able to observe

24 any odor of alcoholic beverage?

 

25 A. Yes.

 

237

 

1 Q. Was that a fairly obvious smell in your mind?

 

2 A. Yes, it was.

 

3 Q. Could you make a determination whether that

4 was coming from Mr. Rokes?

 

5 A. Mr. Rokes and his wife, Delonna, were

6 standing next to each other. It was coming from both of

7 them.

 

8 MR. WADDING: I don't have anything further.

9 Thank you.

 

10 COURT: Mr. Correll?

 

11 RECROSS-EXAMINATION

 

12 BY MR. CORRELL:

 

13 Q. Officer, had you believed that Mr. Rokes was

14 under the influence, you would have arrested him or

15 requested that one of the people with you arrest him;

16 isn't that a fact?

 

17 MR. WADDING: I'm going to object, Your

 

18 Honor. It's asked and answered.

 

19 COURT: Overruled. You may answer.

 

20 A. I would not have arrested him, but the other

21 officer investigating the OWI probably would have.

 

22 Q. And you didn't encourage the other officer to

23 arrest him, did you?

 

24 A. I never spoke to the other officer until

25 later.

 

238

 

1 Q. And isn't it a fair statement from what you

2 saw, there was not probable cause to arrest Mr. Rokes?

 

3 MR. WADDING: Object to that, Your Honor.

4 Calls for a legal conclusion, invades the province of the

5 fact finder, of the court.

 

6 COURT: Overruled.

 

7 A. Can you repeat the question?

 

8 Q. From what you saw, there was not probable

9 cause to arrest Mr. Rokes for OWI; isn't that what you

10 told me?

 

11 A. Yes.

 

12 Q. And you would have originally seen Mr. Rokes

13 not only at the hospital, but you would have seen Mr.

14 Rokes within ten minutes after this accident, wouldn't

15 you?

 

16 A. Briefly, yes.

 

17 Q. Okay. And enough time to identify him as the

18 driver?

 

19 A. Yes.

 

20 Q. And enough time to know that the person next

21 to him was his wife?

 

22 A. Yes.

 

23 Q. And enough time to know where he was going

24 to?

 

25 A. Direction of travel, yes.

 

239

 

1 Q. And enough time to know that he didn't see

2 the other vehicle until it was too late?

 

3 A. Yes.

 

4 Q. Okay. Thank you.

 

5 MR. CORRELL: That's all I have.

 

6 COURT: Mr. Wadding?

 

7 FURTHER REDIRECT EXAMINATION

 

8 BY MR. WADDING:

 

9 Q. Did you put him through any field sobriety

10 tests out at the scene?

 

11 A. No, I did not.

 

12 Q. And did you work it with regard to Mr. Rokes

13 as an OWI investigation?

 

14 A. No, I did not.

 

15 Q. And when you're asked to make a determination

16 about probable cause, you're asked to make a pretty

17 serious determination; is that fair to say?

 

18 A. That is correct.

 

19 Q. And you would want to base that on evidence?

 

20 A. Yes.

 

21 Q. Evidence that you collected?

 

22 A. Yes.

 

23 Q. And you weren't conducting an OWI

24 investigation; is that correct?

 

25 A. That is correct.

 

240

 

1 Q. That was another officer's duty?

 

2 A. Yes.

 

3 MR. WADDING: I don't have anything further.

 

4 COURT: Mr. Correll?

 

5 MR. CORRELL: Nothing further. Thank you.

 

6 COURT: Thank you. Mr. Wadding?

 

7 MR. WADDING: That's all the witnesses I have

8 for today, Your Honor.

 

9 COURT: Ready to go by 8:30 tomorrow morning?

10 Any problem with that with witness scheduling?

 

11 MR. WADDING: Well, I didn't have them

12 scheduled until 9.

 

13 COURT: All right. Let's start at 9 o'clock

14 tomorrow morning.

 

15 (At which time proceedings recessed at

16 4:26 p.m., May 13, 1997.)

update 12/15/16