updated 07/31/10
See also: Emily Rizner
Brasfield CFPD Report
See also: Emily Brasfield
Criminal Trial Testimony
1 EMILY JOY BRASFIELD
2 being produced, sworn as heinafer 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. Would you tell us your name, address and
9 social security number, please?
10 A. It's Emily Joy Brasfield. I'm at 765
11 Russell Road, Apartment 109, that's here in
12 Waterloo, 50702. And my Social Security number is
13 xxx xx xxxx.
14 Q. You are married to DeWayne Brasfield?
15 A. Yes, I am.
16 Q. And you tow are living separately, he's
17 in Cedar Rapids and you're in --
18 A. Yes. I've filed for divorce.
19 Q. Okay. Your maiden name was Rizner?
20 A. Rizner.
21 Q. Rizner, okay. So we have some records
22 and statements that you gave under your maiden name
23 Rizner?
24 A. Yes.
25 Q. You're working?
Page 5
1 A. Yes.
2 Q. Where do you work?
3 A. I work at the Kimball Ridge Center. I
4 work at the Family Practice Center on the second
5 floor. It's at the Kimball Ridge Center, but It's
6 for the Family Practice Center.
7 Q. Okay. And what do you do there?
8 A. Reception work. I work with patients
9 and phone calls and typing and stuff like that.
10 Q. What's your educational background?
11 A. I've just got my GED.
12 Q. Do you remember October 4th, 1996?
13 A. Yes, I do.
14 Q. You were with your finance at the time,
15 DeWayne, is that correct?
16 A. Yep.
17 Q. And I understand you tow had been out
18 that evening?
19 A. Uh-huh.
20 Q. Do you recall where you had been?
21 A. I believe we were at a movie that night.
22 Q. Were you driving home from the movie?
23 A. Yes.
24 Q. And where were you coming from and where
25 were you going to in the terms of the location?
Page 6
1 A. We were coming from the intersection going
2 towards UNI.
3 Q. From 380?
4 A. Yes.
5 Q. And you were ultimately going to go back
6 to -- were you in an apartment at UNI?
7 A. Yeah, we lived in married student
8 housing, or he did at the time.
9 Q. What route did you follow after you left
10 380.
11 A. We exited, took I believe it's the
12 Greenhill exit, and were going I believe it's
13 Highway 58, and we were heading towards UNI. Which
14 I believe is north.
15 Q. Were you northbound on Highway 58?
16 A. I believe so, yes.
17 Q. All right And was your bath going to
18 take you through the intersection of Highway 58 and
19 Greenhill Road?
20 A. No. Well, we were going to go left
21 through the intersection, but left. Not straight.
22 Q. You were going to turn left onto
23 Greenhill Road?
24 A. Yes. We were going to turn right and
25 then we had decided to go to -- because my fiance
Page 7
1 at the time, his friend's house, so we were going
2 to take a left instead of the right and we were in
3 the process of switching lanes, actually, when the
4 accident occurred.
5 Q. So you were approaching Greenhill Road
6 northbound on Highway 58, had intended to go right
7 at that intersection --
8 A. Yes.
9 Q. -- but changed lanes to go left?
10 A. Correct.
11 Q. Were you in the process of changing
12 lanes from the right lane to the left lane when
13 this collision occurred?
14 A. Yes.
15 Q. As you were traveling north on
16 Highway 58, what was the speed of your vehicle?
17 Let me stop myself a minutes. I got ahead of
18 myself. Were you driving?
19 A. Yes.
20 Q. And was was the year, make and model of
21 the car you were driving?
22 A. A '94 Grand Am, purple.
23 Q. As you were traveling north on
24 Highway 58, what was your rate of speed?
25 A. Fifty-five, I would say.
Page 8
1 Q. Okay. It is a 55 miles an hour zone?
2 A. I believe so.
3 Q. Okay.
4 A. Forty-five, 55. I believe it's 55.
5 Q. How far from the intersection were you
6 when you decided to change lanes?
7 A. Oh, maybe a block and a half, I would
8 say.
9 Q. Okay. Did you complete your lane change
10 before the collision?
11 A. I do believe I was in the process,
12 'cause I did not -- I remember not seeing the
13 actual collision, but the aftereffects, and I
14 believe my head was turned to check my blind spot
15 when the collision occurred.
16 Q. Your head was turned to the left to
17 check your blind spot?
18 A. It would have been turned to the right,
19 because I was changing into the left lane, so I
20 would have been turned to the right. Isn't that
21 correct if I was checking my blind spot? My head
22 would have been turned to the left, because I was
23 going into the left lane. I'm sorry.
24 Q. Okay.
25 A. I'm sorry. I have to do this to know my
Page 9
1 left and my right.
2 Q. Okay. If you're going into the left
3 lane, changing from the right lane to the left
4 lane, --
5 A. Yes, my head would have been turned to
6 the left.
7 Q. To the left, okay.
8 A. I'm sorry.
9 Q. As you approached the intersection, did
10 you observe traffic control lights?
11 A. Yes.
12 Q And tell me, there were traffic control
13 lights for traffic in your direction; correct?
14 A. Yes.
15 Q. What did you observe about those lights?
16 A. They were blinking yellow.
17 Q. And they were in this flashing
18 alternating yellow mode?
19 A. Yes.
20 Q. All right. Did you see any other
21 traffic in the area as you were approaching
22 Greenhill Road before the collision?
23 A. No.
24 Q. Did you see the two vehicles involved in
25 the collision prior to the collision itself?
Page 9
1 left and my right.
2 Q. Okay. If you're going into the left
3 lane, changing from the right lane to the left
4 lane --
5 A. Yes, my head would have been turned to
6 the left.
7 Q. To the left, okay.
8 A. I'm sorry.
9 Q. As you approached the intersection, did
10 you observe traffic control lights?
11 A. Yes.
12 Q. And tell me, there were traffic control
13 lights for traffic in your direction; correct?
14 A. Yes.
15 Q. What did you observe about those lights?
16 A. They were blinking yellow.
17 Q. And they were in this flashing
18 alternating yellow mode?
19 A. Yes.
20 Q. All right. Did you see any other
21 traffic in the area as you were approaching
22 Greenhill Road before the collision?
23 A. No.
24 Q. Did you see the two vehicles involved in
25 the collision prior to the collision itself?
Page 10
1 A. No.
2 Q. Your testimony is that you started your
3 turn about a block and a half -- not your turn, but
4 your lane change, rather, about a block and a half
5 from the intersection itself?
6 A. Uh-huh.
7 Q. Yes?
8 A. Yes, that's correct.
9 Q. You know now from later observation that
10 a vehicle came from your right into the
11 intersection?
12 A. Yes.
13 Q. And a vehicle came from your opposite
14 direction into the intersection; correct?
15 A. Yes.
16 Q. At the time that you began your lane
17 change, had you seen or did you see the vehicle
18 that came from your right and ultimately entered
19 the intersection and collided with the oncoming
20 vehicle?
21 A. I did not see the vehicle prior to the
22 accident at all.
23 Q. And the same is true with the oncoming
24 vehicle, you didn't notice it either?
25 A. No.
Page 11
1 Q. Where was your vehicle in relation to
2 the intersection when the collision itself
3 occurred?
4 A. I'm sorry, I don't quite understand.
5 Where was --
6 Q. Where was your vehicle in relation to
7 the intersection, were you in the intersection,
8 short of the intersection when the collision
9 occurred?
10 A. We were right before the intersection.
11 We were just maybe, gosh, half a block. I mean, we
12 were right into where it goes into the turning
13 lane.
14 Q. Okay. Were you slowing your vehicle at
15 all?
16 A. Yes.
17 Q. And the purpose of the slowing was?
18 A. To make a left.
19 Q. To make a left turn?
20 A. Yeah.
21 Q. As you approached that intersection
22 intending to -- let me back up a minute. Your
23 testimony is you did not become aware of either
24 vehicle until the collision itself?
25 A. That's correct.
Page 12
1 Q. All right. Which means you didn't see
2 the other vehicle cross you path, in other words,
3 the east-westbound vehicle, you did not see it
4 cross your path?
5 A. I saw the vehicle, I mean it had to have
6 been I mean right after impact, because I saw -- I
7 mean I remember seeing the silver vehicle I mean
8 moving. I did not -- I mean, but it had to have
9 been after impact. So I did see as it was
10 going, but not before the impact.
11 Q. Okay. But that silver vehicle which was
12 westbound on Greenhill Road had to have crossed
13 you path in order to collide with the oncoming
14 vehicle; correct?
15 A. Right. That's correct. I believe that
16 happened while I was turning to look for my lane
17 change is what I believe occurred.
18 Q. All right. Your assumption is that the
19 vehicle traveling westbound on Greenhill Road
20 crossed the path of your vehicle while you were
21 looking in your blind spot making a lane change?
22 A. Correct.
23 Q. How much time did you spend looking in
24 your blind spot to make that lane change?
25 A. Maybe two or three seconds.
Page 13
1 Q. All right. So in the two or three
2 seconds that you were checking your blind spot,
3 that vehicle came from the east on Greenhill Road
4 across your path and collided with the oncoming
5 vehicle?
6 A. Yes.
7 Q. Do you have any impression or opinion as
8 to how fast that vehicle must have been going in
9 order for it to cross your path, travel that
10 distance, cross your path and collide with the
11 other vehicle in the two or three seconds that you
12 spent checking your blind sport?
13 MR. BEVEL: Objection. Foundation, lack
14 of foundation. You can answer, if you can.
15 A.I didn't even pay any attention to any
16 vehicle coming from that direction. I'm sure I
17 could have if I would have looked and seen it
18 coming down that road. But it was right in front
19 of my eyes, right in front of my car in front of
20 that intersection. I did not see it until Impact.
21 I mean, I', sure it didn't take just three seconds,
22 for it to get way from the top of the hill down to
23 the bottom, I'm sure, but I didn't pay any
24 attention to it while it was coming down Greenhill
25 Road.
Page 14
1 Q. Yeah, from whatever distance it is up
2 there.
3 A. Right.
4 Q. I think it's -- what is it, Main Street
5 that intersects with Greenhill?
6 MR. ODEKIRK: South Main Street.
7 Q. South Main Street that intersects with
8 Greenhill Road, but that's almost a mile away;
9 right?
10 A. Yeah.
11 Q. At least within the time that other
12 vehicle would have been in the vicinity of the
13 intersection, immediately approaching it and
14 entering it, it would have been within your
15 peripheral vision had you been looking forward;
16 correct?
17 A. Correct.
18 Q. But you weren't looking forward because
19 you took two or three seconds to check your blind
20 spot?
21 A. Right.
22 Q. And in that two or three seconds it went
23 completely through the intersection and collided
24 with the other car?
25 A. And I know Highway 58, driving it since
Page 15
1 the accident has occurred, I know it does curve
2 right before it gets to that intersection from the
3 direction that I'm coming from. So there was -- I
4 mean there's just a short amount of distance from
5 coming into that intersection where you can really
6 see the intersection.
7 Q. So that's another reason why you might
8 not have seen the other vehicle up on Main?
9 A. Right. That's correct.
10 Q. Okay. Describe for me what you observed
11 with respect to the two vehicles once they came
12 into your field of view.
13 A. Okay. I saw the silver vehicle to the
14 left of me. It was still going through, kind of at
15 the end of the intersection. And I remember seeing
16 debris, like headlights and stuff like that in the
17 intersection, and turned and the blue care was in
18 the ditch.
19 Q. And it was extremely odd, because I
20 turned and looked at my fiance at the time, and
21 there's several ponds in the area on this drive
22 where people stop to fish, and I said, "Are those
23 people fishing there?" And he said, "No, there's
24 been an accident," because we saw the headlights
25 and everything like that. And that's when I
Page 16
1 realized there was an accident. Because I didn't
2 even -- people park along those ditches all the
3 time and fish or do whatever, and so I didn't know
4 even why the vehicle was there until I saw the
5 debris.
6 Q. So the blue vehicle which were know now
7 was the oncoming vehicle --
8 A. Yes.
9 Q. -- was off the edge of the roadway when
10 you saw it?
11 A. A. Yes. It had already gone into the
12 grass, yes.
13 Q. All right. So this whole sequence
14 happened just that quickly?
15 A. Yes.
16 Q. Two to three seconds?
17 A. Oh, yeah.
18 Q. And the collision had happened and the
19 vehicles were off the side of the road?
20 A. Correct.
21 Q. And were they off the side of the road
22 off at Greenhill road in your direction?
23 A. They were -- let's see, they would be on
24 the south --
25 Q. Let me show you Exhibit 1.
Page 17
1 A. I'm sorry.
2 Q. This is a photograph, but then images of
3 the two vehicles involved in the collision have
4 been drawn onto the photographs.
5 A. Okay.
6 Q. And look at the rest positions of the
7 two vehicles as shown on Exhibit 1. Does that
8 correspond to the rest position as you observed
9 them?
10 A. Yes, I remember seeing the silver
11 vehicle going onto the grass. But this was in the
12 grass when I saw it.
13 Q. By "this," you mean the blue vehicle?
14 A. The blue vehicle was in the grass, but I
15 did see the silver vehicle as it was going into the
16 grass.
17 Q. Okay. What did you do?
18 A. I stopped in the middle of the
19 intersection and my fiance jumped out of the car.
20 And then I did a U-turn and parked alongside of the
21 road and got out of the vehicle.
22 Q. All right. Where did you park?
23 A. I parked going -- parked south on
24 Highway 56.
25 Q. So your vehicle was heading south then?
Page 18
1 A. Yes.
2 Q. Off the side of the road?
3 A. Yes.
4 Q. South of Greenhill?
5 A. Yes.
6 Q. Okay. What did you do then?
7 A. I got out of the car and I went to the
8 silver vehicle. And a woman was getting out of the
9 passenger's seat and the man was getting out of the
10 driver's seat. And I just asked them if they were
11 okay, you know, and the said, "I think the other
12 car needs help."
13 Q. Who said that, the man or the woman?
14 A. The woman. And then I went to the blue
15 car.
16 Q. Before you went to the blue car, did you
17 observe anything about the man and the woman in the
18 silver car as far as their demeanor, their
19 behavior?
20 A. I didn't even speak to the man when he
21 was getting out of the car. The woman is the one
22 that I said. "Are your okay?" And she said,
23 "Go check the car," but she was almost in a
24 giggling, I remember, kind of laughing stage,
25 almost.
Page 19
1 Q. Giddy?
2 A. Yeah.
3 Q. Okay. Did that seem appropriate under
4 the circumstances?
5 A. No, but I didn't know if she was in
6 shock, I didn't know if she was delusional. I mean
7 it was obvious that it was an extremely bad
8 accident. I didn't know if -- I didn't even
9 think. I thought, yeah, that was kind of strange,
10 but I also didn't know if she could have been
11 in shock. I was in shock, so --
12 Q. It didn't seem like a normal reaction?
13 A. Right. That's correct.
14 Q. Anything about the man, was there
15 anything that appeared to be out of the normal with
16 respect to the man at that point?
17 A. At that point, like I said, I didn't
18 even -- I didn't even see the guy until I had later
19 gone back. After I had gone to the blue
20 Oldsmobile. I did not speak to him and I did not
21 eve see him.
22 Q. So then you go over to the blue
23 Oldsmobile.
24 A. Uh-huh.
25 Q. And what do you observe?
Page 20
1 A. There was the driver who was pinned into
2 the car, and the passenger was in shock and she had
3 blood all over her shirt and on her face. And I
4 talked to the girl that was in the passenger's seat
5 and she just kept asking, "How are my friends?
6 What's wrong? What happened?" Pretty much in
7 shock. And realized then there was motion going
8 on in the back seat and realized that there was someone
9 else in the back seat.
10 Q. How did she -- did you see any movement
11 of the driver?
12 A. No.
13 Q. What was your -- how did the driver
14 appear to you?
15 A. I thought she was dead.
16 Q. Okay. What about the passenger in the
17 front seat?
18 A. She had several -- you could tell there
19 were cuts on her face and she had blood all over
20 the front of her shirt, so I didn't know if there
21 could be a puncture to her chest or her abdomen or
22 anything, but she was in shock. But otherwise I
23 mean she was, you know, talking and extremely
24 upset, but --
25 Q. Did she try to get out of the car?
Page 21
1 A. Yes.
2 Q. And what happened?
3 A. Several times.
4 Q. Yeah.
5 A. Me and my fiance just kept telling her,
6 because I've always been told you don't move
7 anybody, and I kept saying sit there, because she
8 kept complaining abut her neck and her back. And
9 we just told her don't move and stay right where
10 you're at until, you know we get some help.
11 Q. And what did you observe about the
12 driver -- or not the driver, but the passenger in
13 the back seat?
14 A. I didn't even realize she was there
15 until it looked as if she was having seizures. I
16 mean, just kind of rocking back and forth. And
17 she must have been crouched on the floor, because
18 we didn't even -- I mean, we looked to see if there
19 was anybody back there and didn't realize until she
20 started, you know, motioning. And she was pretty
21 bloody, but --
22 Q. How long were you at the Oldsmobile?
23 A. Oh, gosh, a couple of minutes, maybe.
24 Q. And then what did you do?
25 A. Then I went back to the median right
Page 22
1 there where there was another witness, and then my
2 husband, I believe she stayed at the Oldsmobile and
3 then came back. I know he eventually came to the
4 median, but he didn't want me there, because it was
5 pretty graphic and I was getting upset and so he
6 did not want --
7 Q. All right. What did you do next after
8 you were at the median?
9 A. I went there and checked the girl and
10 asked the girl, she was in a red car, if she had
11 called 911, because I did have a cell phone in my
12 trunk, but didn't even think about it. So I asked
13 her, and she had called. And there was the
14 driver of the silver car and the passenger sitting
15 on the median.
16 Q. All right. Did you make any further
17 observations of the driver and the passenger of the
18 silver car?
19 A. Yes. They were attempting to hold each
20 other up. They couldn't sit up very well. And
21 that's when I made the observation, I personally
22 thought they were intoxicated.
23 Q. What caused you to form the opinion that
24 they were intoxicated?
25 A. Slurred speech. They were -- I mean
Page 23
1 they kept -- it wasn't you now, it was kind of
2 like he was talking and she was saying, "Shut up,
3 shut up," and I mean basically just trying to keep
4 each other from not -- I don't know, it was
5 extremely obvious to me. I mean, she was telling
6 him not to talk and she was trying to help him sit
7 up, and she would try to stand up and he would tell
8 her to sit down. And they were just both, you
9 know, extremely out of character for what you would
10 expect someone to be after an accident like that.
11 Q. Had you observed either of them attempt
12 to walk?
13 A. Yes.
14 Q. When had you made that observation?
15 A. I believe when my fiance at the time had
16 come back to me and they had both stood up. And
17 like I said once again, they wouldn't -- they
18 couldn't stand up or walk very well.
19 Q. Were they stumbling?
20 A. Yes.
21 Q. Were they each trying to hold each other
22 up?
23 A. Yes.
24 Q. Successfully or with effort or
25 unsuccessfully?
Page 24
1 A. They were able to stand up, but it took
2 each other to keep them up.
3 Q. All right. Now you observed earlier in
4 your testimony here that, of course, they had been
5 in a very serious accident and you didn't know
6 initially whether or not the woman's giddiness was
7 because of the shock of the collision or something
8 else.
9 A. Right.
10 Q. What caused you to distinguish their
11 conduct from just normal shock that anyone might
12 suffer from a collision of this violence?
13 A. They were-- it was just the slurred
14 speech. It just didn't appear to me, I'm not an
15 expert on being in shock or anything after an
16 accident, but it appeared to me that it wasn't
17 shock, it was everything put together. I mean, it
18 was extremely obvious that there was something more
19 than that.
20 Q. Did you smell any alcohol on their
21 breath?
22 A. No. But before the police got there I
23 remember my finance coming up to me an saying, "I
24 smell beer on his breath, I can smell alcohol on
25 his breath." I didn't personally smell it, but I
Page 25
1 remember him telling me he did.
2 Q. It didn't surprise you when she said
3 that?
4 A. No.
5 Q. Did you hear either of them make any
6 comment about drinking?
7 I head the male say, "I only had
8 a few drinks." or "I only had a few beers," I don't
9 remember which context it was put into.
10 Q. Okay. Was that in response to a
11 question?
12 A. No.
13 Q. He just sort of volunteered that?
14 A. He said, "I guess it's my fault, I had a
15 few drinks tonight."
16 Q. Those were his words?
17 A. Those were his words. I don't remember
18 if it was "I had a few drinks" or "I had a few
19 beers."
20 Q. You have a clear recollection of that?
21 A. Yes. I remember the night like it was
22 yesterday.
23 Q. Anything else that you can recall about
24 your observations of them, either the way they
25 behaved, the way they conducted themselves,
Page 26
1 anything that was said to them, to each other or to
2 others?
3 A. Nothing other than what I've told you.
4 Q. When the man said I guess it's my
5 fault, I had a few beers" or "I had a few drinks,"
6 what was the context? How did that come out?
7 A. He was just standing there and just said
8 it. It wasn't -- no one had asked him. It was
9 just a statement that he made.
10 Q. Did his comment about having a few beers
11 or a few drinks seem consistent with what you
12 observed of his conduct?
13 A. It didn't sock me.
14 Q. Did you stay on the scene until the
15 ambulances arrived?
16 A. Yes.
17 Q. And did you see the people taken away in
18 the ambulances?
19 A. Yes.
20 Q. And then did you talk to the police?
21 A. Yes.
22 Q. Did you tell them what you observed
23 about the demeanor of the people and what they had
24 said about drinking?
25 A. Yes. In fact, I believe, I don't
Page 27
1 remember if it was me or my fiance or both of us,
2 we went up and I remember saying to the police
3 officer or making the comment, "You need to do a
4 Breadholizer or need to do a test, because he's
5 been drinking."
6 Q. Did you tell the officer what the man
7 told you about consuming alcohol?
8 A. No.
9 Q. Did you later? I mean, did you ever
10 make a statement? Why don't we take a look at your
11 statement.
12 A. I have it.
13 Q. Yes. Why don't we mark it.
14 (Deposition Exhibit 35 marked for
15 identification, as requested.)
16 Q. Ms. Brasfield, the court reporter has
17 marked as Exhibit 35 a copy of a statement which I
18 believe is your statement to the Cedar Falls Police
19 Department. Do you see that in front of you?
20 A. Uh-huh.
21 Q. And that was given October 5th, 1996,
22 at 2150 hours, that's 9:50 the following night, is
23 that correct?
24 A. Uh-huh.
25 Q. Do you see on the second page of that
Page 28
1 statement where you address this issue of your
2 observations of Mr. Rokes?
3 A. Yes. I see that. I'm sorry.
4 Q. Okay. And it indicates there that he
5 told you that he only had tree beers and I guess
6 it's my fault?
7 A. Uh-huh.
8 Q. Yes?
9 A. Yes.
10 Q. And you indicated, "At first I thought
11 they were stumbling around because of the accident
12 but then I realized it was because of the
13 drinking. In my opinion they were both under the
14 influence of alcohol."
15 A. Correct.
16 Q. Okay.
17 A. And I know when I appeared in court the
18 first time, they had asked me about, you know, why
19 I had not mentioned it. When I took my statement
20 at the police station, they sat me down and asked
212 me questions and that's it. They didn't ask me to
22 tell my story. They just sat me down and said
23 "Were you driving?" So that's why some things
24 weren't included, just so you know.
25 Q. Okay. In other words, the next day when
Page 29
1 you went in to see them, see the police, they just
2 sat you down and said what/
3 A. They asked me questions and when I
4 answered they put it in sentence form. You know,
5 when they said, "Were you traveling north?"
6 "Yes." Then they typed out, "She was traveling
7 north" or however that was put. So they didn't
8 have me tell everything I saw. They just asked me
9 questions and had me answer.
10 Q. All right. So they didn't ask you just
11 to tell in your own words what you observed?
12 A. That's correct.
13 Q. They never asked you, did you see
14 whether or not Mr. Rokes was stumbling or slurred
15 speech or evidence of intoxication?
16 A. Correct.
17 Q. They didn't ask you what he told you?
18 A. No.
19 Q. Or said to you in your presence?
20 A. No.
21 Q. The second page of the statement that
22 we've been referring to, how did that come about?
23 I see that it's dated November 24th, 1996. How did
24 this addendum or addition to your statement come
25 about, do you recall?
Page 29
1 A. I do not remember if they had called me
2 back to go over my statement or how. I do remember
3 asking the guy if I could tell them what I
4 thought. You know, I asked if I could add this
5 statement. Because after reading the statement I
6 had given, I felt it didn't give any indication as
7 to the reason for the accident and I wanted to make
8 that perfectly clear.
9 All right. This was something that you
10 insisted that be included in your statement?
11 A. Yes.
12 Q. You wanted them to know this and you
13 wanted this information to be in your statement?
14 A. Correct.
15 Q. Did you observe anything about the
16 investigation that the Cedar Falls Police did that
17 night?
18 A. The only thing that I noticed that
19 bothered me is, like I said, we had said to the
20 police officers when they came to the scene, "This
21 guy has been drinking, you need to go get either,
22 you know, his blood alcohol level or a
23 Bretholizer, you need to take care of this guy."
24 Because they weren't paying any attention to him.
25 I mean, I understand there was people injured that
Page 31
1 they needed to attend to and I understand that, but
2 they weren't paying a whole lot of attention to him
3 and that's why we approached the officers and said
4 this needs to dealt with, you know.
5 Q. Did what you observed raise a question
6 in your mind as to the thoroughness of the
7 investigation they had done?
8 A. Yes.
9 MR. LIABO: Okay. Thanks. That's all I
10 have.
11 DIRECT EXAMINATION
12 BY MR. GALLAGHER:
13 Q. Hi. I'm Mr. Gallagher and I represent
14 the girl that was in the back seat, Tammy
15 Kleinheksel. I don't think I have too many
16 questions for you.
17 You were going north on Highway 58;
18 correct?
19 A. That's correct.
20 Q. Do you recall how far back you were when
21 you saw the yellow blinking light?
22 A. As soon as I went around -- like I said,
23 there is kind of a curve on that. As soon as I
24 went around it, I noticed.
25 Q. Can you give me any idea in distance, if
Page 32
1 you are familiar with a city block or car lengths
2 or --
3 A. Well, it would have probably been about
4 I would say two, two and a half blocks, because it
5 was right before I went into the left lane, so --
6 Q. Did you start to slow down then when you
7 saw it?
8 A. Not due to the blinking lights. I did
9 slow down because I was deciding to turn left, but
10 I don't think I did because of the blinking lights.
11 Q. Okay. Was it your intent, had you not
12 turned, to go through there at 55 or would you have
13 slowed and proceeded slower?
14 A. I'd have probably slowed down a little
15 bit. I don't know if I would have gone down to 20
16 or anything.
17 Q. Sure, okay. What was the reason that
18 you were driving that night?
19 A. I don't remember. The car was mine, so
20 maybe -- I mean my fiance had driven it several
21 time, but it was my car.
22 Q. Okay. Did you get up to the car at all
23 to see my client in the back seat?
24 A. Yes.
25 Q. You did help in keeping the passenger in
Page 33
1 the car if she wanted to get out of the car as
2 other witnesses have said, is that right?
3 A. Yes.
4 Q. Did you have any contact with Tammy
5 Kleinheksel, my client?
6 A. No. She was -- like I said, she was
7 having what seemed to me, and I'm not a doctor or
8 anything, but like a seizure-type thing in the
9 back. She was not where she could talk to us or
10 anything like that. And I felt it was best for the
11 girls in the car for me to not more them or
12 anything like that.
13 Q. Since you didn't see the Rokes car
14 before the impact, you had no idea of the speed, I
15 assume?
16 A. No. No.
17 Q. And hand no idea of the speed of the
18 other car?
19 A. No.
20 Q. Was there a loud bang and crash?
21 A. I don't remember. Gosh, It's so hard
22 to -- gosh, I think I remember -- I'm sorry, I
23 think I remember hearing something like a screech
24 or a -- I believe I did.
25 Q. Now the woman, her speech was slurred
Page 34
1 too, wasn't it?
2 A. Yes.
3 Q. His speech was slurred, the gentleman in
4 the blue car?
5 A. That's right.
6 Q. And then did you stay with the other car
7 than and the young women who were in that car?
8 A. Yeah, we did stay, I did stay there for
9 several minutes.
10 Q. Okay. My client in the back seat, she
11 never talked, did she?
12 A. No. I believe she was making maybe it
13 sounded like a gurgle almost, kind of, in the back
14 seat, a mumble and a gurgle, kind of.
15 Q. You also testified at the trial, and I'm
16 going to ask you if that's your memory today, did
17 you think the person in the back seat or the driver
18 was going to make it?
19 A. No.
20 Q. Why do you say that?
21 A. the steering wheel and kind of the
22 dashboard of the car was pretty -- I mean she was
23 jammed in there really good, and I mean it -- I
24 didn't believe -- I didn't even know if she was
25 alive when the paramedics got there.
Page 35
1 MR. BEVEL: I'm going to object as not
2 responsive
3 MR. GALLAGHER: Do you want to read the
4 question back? We can object from time to time
5 here. You've been through there.
6 (The reporter read the last question.)
7 Q. Why do you say that they weren't going
8 to make it? I think you started to give an answer.
9 A. Okay. The girl in the front seat was,
10 like I said, the dashboard was in her -- she was
11 crammed in there, and the girl in the back seat, I
12 didn't believe she was going to make it just
13 because she was so -- I mean, I remember seeing a
14 lot of blood and, like I said, was very -- I mean,
15 I haven't seen anything like that before.
16 Q. Having like seizures?
17 A. That's what it appeared to me, yes.
18 Q. And they were both unconscious?
19 A. Yes, unresponsive, yes.
20 Q. You testified also at the trial about
21 the slurred speech. And do you attribute that to
22 the alcohol or to the accident?
23 A. When she -- when the gal came out of the
24 silver car and first said something to me and had
25 slurred speech, I didn't know. I thought it may
Page 36
1 have been due to the accident. But when I realized
2 once I had gotten to spend more time, a few more
3 minutes around them, I realized it was due to the
4 alcohol.
5 Q. Okay. That's your opinion?
6 A. That is my opinion.
7 Q. Okay. You have given Mr. Liabo the
8 opinion that they were both intoxicated.
9 A. Yes.
10 Q. And you've given the reasons to
11 Mr. Liabo why you feel that, is that right?
12 A. Yes.
13 Q. You mentioned another witness. Do you
14 recall saying that to Mr. Liabo?
15 A. Yes.
16 Q. Who was that?
17 A. I don't remember her name. It was a
18 woman in a red car.
19 Q. Okay. Tell me what she was doing there
20 or what happened.
21 A. She was standing in the middle of
22 Greenhill Road, this would have been on the east
23 side of Highway 58, and the only contact I had with
24 her was I wanted to see if someone had called 911
25 and I went to her to see if she had called.
Page 37
1 Q. And had she?
2 A. Yes.
3 Q. With a cell phone?
4 A. I believe it was, yes.
5 MR. GALLAGHER: Thank you very much.
6 DIRECT EXAMINATION
7 BY MR. HELLMAN:
8 Q. Emily, my name is Jim Hellman. I just
9 want to follow up on one area. You said You went
10 to the blue car and went back to the median, the
11 area where Mr. and Mrs. Rokes were at.
12 A. Uh-huh.
13 Q. At that time Mr. Rokes was talking and
14 Mrs. Rokes was saying, "Shut up, shut up?" Do you
15 recall that?
16 A. I believe, yeah. I don't know if it was
17 "Shut up" or "Just be quiet and sit down." It was
18 something to that effect, yes.
19 Q. You also indicated that Mr. Rokes said.
20 "I guess it's my fault, I had a few beers" or "a
21 few drinks tonight."
22 A. Yes.
23 Q. Was Mrs. Rokes saying "Shut up" when he
24 made that statement?
25 A. No. Not that I recall.
Page 38
1 Q. Was that before that statement then?
2 A. Yes. It was before that statement when
3 she was just like -- they were both telling each
4 other to sit down.
5 Q. What was he saying when she was saying,
6 "Shut up, shut up?'
7 A. I don't recall. They were talking
8 amongst each other, not to us, but amongst the two
9 of them, were mumbling and discussing stuff. And
10 we were talking to the girl in the red card at the
11 time when I noticed they were kind of disagreeing.
12 Q. So you didn't hear what Mr. Rokes had
13 said when she said to him, "Shut up"?
14 A. No.
15 Q. Did she make any response at the point
16 that Mr. Rokes said, "It's my fault, I've had a few
17 drinks" or "a few beers"?
18 A. No, she did not say anything.
19 Q. Did she tug on his sleeve or do anything
20 of that nature?
21 A. Not that I remember. I just remember
22 them both standing, kind of, you know, learning on
23 each other, and he said that.
24 Q. And he just kind of said that out of the
25 blue?
Page 39
1 A. It was just a statement made. No one
2 had asked him or anything. It was just a statement
3 that he made.
4 Q. Did he say that more then once?
5 A. I only recall one time him saying that.
6 MR. HELLMAN: That's all. Thank you
7 CROSS EXAMINATION
8 BY MR. BEVEL:
9 Q. Ms. Brasfield, first of all, just a
10 couple of questions for background. How old are
11 you?
12 A. Nineteen.
13 Q. Your date of birth?
14 A. January 2nd, 1979.
15 Q. And your educational background?
16 A. I only have my GED.
17 Q. When you gave your first -- your
18 statement, Exhibit 35, the first page, you gave
19 that statement on October 5th, 1996? At least
20 that's what it's dated?
21 A. Yes.
22 Q. Did the officers go back over that
23 statement with you? First of all, how many
24 officers were involved?
25 A. One.
Page 40
1 Q. Okay.
2 A. And I believe -- I think he said read
3 over it and sing at the bottom. I don't think he
4 read it to me or anything like that.
5 Q. Okay. When you read over it, did he
6 indicate what he wanted to do with it or if you
7 were to make any corrections?
8 A. I believe he just said read over it and
9 see if that's correct and sign it.
10 Q. Okay. Did you make any changes or
11 additions at that time?
12 A. I believe I did. I maybe added a
13 sentence or something in there.
14 Q. Do you remember what you would have
15 added?
16 A. I think I did add the part where I said
17 that they were stumbling around on the road and
18 to hold each other up. I believe I added that.
19 Because like I said, they were asking me questions
20 and I was answering and more things that I felt
21 need to be involved in the statement were not.
22 Q. You didn't -- did you make any other
23 additions?
24 A. I don't believe so.
25 Q. Did you make any other changes?
Page 41
1 A. I don't believe so.
2 Q. Did you ask to include anything else/
3 A. I don't believe so.
4 Q. Now between October 5th, 1996 and
5 November 24th, 1996, did you discuss the accident
6 with anyone?
7 A. I'm sorry between what dates?
8 Q. October 5th, 1996 and November 24th.
9 That's the date of the second -- November 24th is
10 the date of the second statement.
11 A. Yeah, I discussed it with family.
12 Q. Who would you have discussed it with?
13 A. My parents.
14 Q. What are their names?
15 A. I'm sorry. Kim and Keith Rizner.
16 Q. And where do they live?
17 A. Waterloo.
18 Q. What did you discuss with them about the
19 accident?
20 A. Just like my statement and the details
21 of the accident. They were with me. They took me
22 to take my statement and stuff like that, so we had
23 discussed it.
24 Q. Did you discuss it with anyone else?
25 A. Not -- I mean, not in detail. I may
Page 42
1 have told people I eyewitnessed an accident or
2 something like that, but not in any detail, no.
3 Q. Did you have any discussions with
4 DeWayne?
5 A. Just, I mean, talking about, you know --
6 talking about it, but nothing -- he wasn't
7 really -- I mean, really as -- I was shook up,
8 because at the time the girls that it happened to
9 had been my age when I witnessed it, so I was
10 extremely shook up. But he's a pretty serious
11 professional person and didn't really get too
12 involved in discussing it.
13 Q. Now the second part of the statement,
14 the part that you gave on the 24th of November, how
15 did that come about?
16 A. I don't -- I don't know. I don't
17 remember it being a different day that I went into
18 the police station, so I'm not exactly sure as to
19 how that happened. I do remember that I asked them
20 to include that in my statement.
21 Q. Did you call them or did you go out to
22 the station or the Police Department?
23 A. I would have gone out there.
24 Q. Do you know who you talked to?
25 A. No, I don't know. I know I talked with
Page 43
1 several officer, but --
2 Q. What did you tell the school? You say
3 you talked to several officers?
4 A. When I went in there. When I made this
5 statement I was only -- I was in a room with one
6 police officer.
7 Q. By that you're talking about the
8 statement of October 5th 1996?
9 A. That's right.
10 Q. Okay. How many officers did you talk to
11 on the November 24th, 1996 statement?
12 A. I don't -- I don't recall. It's
13 extremely odd, I don't recall the day specifically
14 that I made this going in there. I mean, I do know
15 at the time I did go in there, any time I went to
16 the police station I had talked to several people
17 as far as why I was there and what it was
18 concerning, but as far as making by statement, I
19 only recall talking to the one officer.
20 Q. Did any of the officers tell you about
21 the investigation?
22 A. No. In fact, I asked for names, because
23 I was interested in what happened to the girls, and
24 they would not give me any information.
25 Q. Have you given any other statements?
Page 44
1 A. No,
2 MR. BEVEL: I don't have any other
3 questions.
4 MR. LIABO: I don't have any other
5 questions. Thank you.
6 REDIRECT EXAMINATION
7 BY MR. HELLMAN:
8 Q. I want to ask you a couple of questions
9 Emily, on the second page of Exhibit 35
10 where you made the statement that you had heard
11 Mr. Rokes state that he had had three beers and it
12 was his fault, did you do the voluntarily?
13 A. Yes.
14 Q. Did any police officer suggest that you
15 make any statement of that nature?
16 A. No.
17 Q. Did anyone put any pressure on you to
18 make that statement?
19 A. No.
20 Q. And is that an accurate statement that
21 you recall hearing Mr. Rokes make the night of the
22 accident?
23 A. Yes.
24 MR. HELLMAN: Nothing further. Thank
25 you.
Page 45
1 MR. GALLAGHER: Anything else, Henry?
2 MR. BEVEL.: No.
3 (Deposition concluded at 5:49 p.m.)
updated 07/31/10