See also: Robert Michael CFPD Report

ROBERT MICHAEL
CRIMINAL TRIAL


(Pages 98-137)

98

 

1 ROBERT J. MICHAEL,

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: Please state your full name.

 

6 WITNESS: Robert J. Michael.

 

7 COURT: Mr. Wadding.

 

8 MR. WADDING: Thank you, Your Honor.

 

9 DIRECT EXAMINATION

 

10 BY MR. WADDING:

 

11 Q. Would you please state your occupation, sir.

 

12 A. I'm a police officer with the city of Cedar

 

13 Falls.

 

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

15 with the city of Cedar Falls?

 

16 A. A little over one year.

 

17 Q. And what do you have in front of you, sir?

 

18 A. A copy of my report.

 

19 Q. Does that reference this incident?

 

20 A. Yes, it does.

 

21 Q. Could I ask you to just place it in your

22 pocket or something. If you need to refer to it,

23 we'll --

 

24 A. Sure. (Complied.)

 

25 Q. -- we'll take care of that. Okay?

 

99

 

1 A. Sure.

 

2 Q. And did you have any prior law enforcement

3 experience prior to Cedar Falls Police Department?

 

4 A. Yes, I did. Two years at the Black Hawk

5 County Sheriff's Department.

 

6 Q. Any law en --

 

7 A. I was a reserve officer for Evansdale Police

8 Department for a short time and also with the Grundy

9 County Sheriff's Office for a short time.

 

10 Q. Now, have you received any education with

11 reference to your achieving your position as a police

12 officer or after you became a police officer and -- or

 

13 after you became a police officer?

 

14 A. Before with the Iowa Law Enforcement Academy.

 

15 Q. Okay. And are you certified in the state of

16 Iowa?

 

17 A. Yes, I am.

 

18 Q. And is that through the Iowa Law Enforcement

 

19 Academy?

 

20 A. Yes, it is.

 

21 Q. And certified in the areas of OWI detection

 

22 and investigation?

 

23 A. Correct.

 

24 Q. Certified in the areas of implied consent

25 procedures?

 

 

 

100

 

1 A. Yes.

 

2 Q. And when did you receive your certification?

 

3 A. In July of '93.

 

4 Q. You say you've been with the Cedar Falls

5 Police Department for approximately a year?

 

6 A. Correct.

 

7 Q. And is that to date?

 

8 A. Yes. A little over a year to date.

 

9 Q. What do you do for the Cedar Falls Police

10 Department?

 

11 A. I work in the patrol division.

 

12 Q. Could you describe just briefly what your

13 duties are?

 

14 A. Our activities patrolling the streets,

15 community policing, pretty basic, answering calls for

16 service.

 

17 Q. General patrol duties?

 

18 A. General patrol duties.

 

19 Q. What did you do with the Black Hawk County

20 Sheriff's Department?

 

21 A. I worked in the jail.

 

22 Q. How long did you work in the jail?

 

23 A. For two years.

 

24 Q. So your entire time at the Black Hawk County

25 Sheriff's Department was in the jail?

101

1 A. Correct.

 

2 Q. Could you describe just briefly what your

3 duties were with the jail?

 

4 A. I'd say monitoring the prisoners, booking in

5 of arrestees, which would include also running the

6 Intoxilyzer, fingerprinting, picturing, that sort of

7 thing, basic book-in process.

 

8 Q. Are you familiar -- in that experience with

9 the Black Hawk County Sheriff's Department, did you come

10 in contact with persons who were intoxicated?

 

11 A. Yes, I did.

 

12 Q. And in your experience as a Cedar Falls

13 Police Department officer, did you come in contact with

14 persons who are intoxicated?

 

15 A. Yes.

 

16 Q. Are you familiar with the signs of

17 intoxication?

 

18 A. Yes.

 

19 Q. Now, do you work a regular shift with Cedar

20 Falls?

 

21 A. Yes, I do.

 

22 Q. What shift do you work?

 

23 A. Second shift.

 

24 Q. What hours is that?

25 A. 2:30 to 10:30 in the evening.

 

102

 

1 Q. How long have you worked that shift?

 

2 A. For my entire time on the department.

 

3 Q. Now, were you working that shift on

4 October 4th, 1996?

 

5 A. No. What it was was a power shift. A couple

6 of us pulled over until 2:30 in the morning. We have a

7 few extra officers on the streets, you know, during the

8 weekends or any other time where it's felt it may be

9 busy.

 

10 Q. This would have been considered a weekend

11 night?

 

12 A. Yes.

 

13 Q. So you were working a power shift?

 

14 A. Yes.

 

15 Q. From 2:30 to 2:30 in the morning?

 

16 A. Correct.

 

17 Q. 2:30 p.m. to 2:30 in the morning?

 

18 A. Right.

 

19 Q. And did you have occasion to, or were you

20 dispatched to the area of Highway 58 and Greenhill Road

21 at approximately 11 o'clock that night?

 

22 A. Yes, I was.

 

23 Q. And do you recall why?

 

24 A. It was for an accident with injuries

25 involved, traffic accident.

103

 

1 Q. I'm sorry?

 

2 A. Traffic accident with injuries involved.

 

3 Q. How long do you think you would have took to

4 get there?

 

5 A. Oh, probably less than a minute -- at the

6 time I was at the intersection of University and Main

7 when it came out, so I just got on the highway, and I

8 would say I was there less than a minute.

 

9 Q. When you got dispatched, did you -- were you

10 involved in a traffic stop or anything --

 

11 A. No, I was not.

 

12 Q. Any police related activity at the time?

 

13 A. No, I was not.

 

14 Q. Other than patrolling?

 

15 A. Correct.

 

16 Q. And did you arrive at that location then?

 

17 A. Yes, I did.

 

18 Q. And were you one of the first officers or --

 

19 A. I was the first officer.

 

20 Q. First officer? And could you describe what

21 you saw when you first got there?

 

22 A. I saw a vehicle in the southwest corner of

23 the ditch. It would -- I believe it would have been

24 facing to the north, northeast, pulled alongside the road

25 along Highway 58, got out and went over to the scene.

 

104

 

1 Q. And that vehicle, do you remember what color

2 that vehicle was?

 

3 A. Blue, I believe.

 

4 Q. And who was in that vehicle? Was there

5 anyone in that vehicle?

 

6 A. There were three females.

 

7 Q. And that's the first vehicle you went to?

 

8 A. Correct.

 

9 Q. And did you have contact with any persons at

10 the scene at that time?

 

11 A. There were several witnesses that were still

12 on the scene. One of them had approached me immediately

13 telling me that they -- the girls were pretty seriously

14 injured while I was on my way over there.

 

15 Q. And did you go over there then?

 

16 A. Yes, I did.

 

17 Q. Did you -- did you ascertain how this

18 accident took place at any time?

 

19 A. Not specifically. There were like -- there

20 were several people, you know, around the scene telling

21 me what had happened, but it was kind of in passing as I

22 was approaching that vehicle. It wasn't that I had

23 actually stopped to actually see what had happened. I

24 kind of heard talk in the background of what had

25 happened.

 

105

 

1 Q. And do you recall what kind of talk you were

2 hearing?

 

3 MR. CORRELL: Excuse me. I'm going to object

4 to that as calling for hearsay.

 

5 COURT: Sustained.

 

6 Q. Did you go to the vehicle then?

 

7 A. Yes, I did.

 

8 Q. And what did you do there?

 

9 A. I went over to the victims. I believe I went

10 over to the driver first and just tried to provide any

11 kind of medical attention I could.

 

12 Q. And what were you observing at that time

13 inside that vehicle?

 

14 A. The female in the driver's seat was

15 unresponsive, maybe just a slight moan. The female in

16 the back seat was totally unresponsive. The female

17 passenger from the front seat, I believe she was standing

18 outside the vehicle at the time, and, you know,

19 obviously -- she was obviously shooken up, but she was,

20 you know, talking and that. I think she said she was

21 okay, but it was obvious she wasn't. I mean, she was in

22 some sort of shock or what not, but --

 

23 Q. And how long were you with the persons in

24 that vehicle?

 

25 A. Oh, I'd probably estimate a couple, three

 

106

 

1 minutes anyway. I mean, it's kind of hard telling. Time

2 always seems to move slow in situations like that, but

3 probably a couple minutes.

 

4 Q. What was the next significant movement you

5 made?

 

6 A. After the paramedics arrived, I went to speak

7 with Mr. and Mrs. Rokes.

 

8 Q. Why did you go to speak with Mr. and Mrs.

9 Rokes?

 

10 A. Well, I would have regardless, but since they

11 were involved in the accident, I knew them to be

12 involved.

 

13 Q. How did you know that they were involved in

14 the accident?

 

15 A. Because I had witnesses telling me that they

16 were.

 

17 Q. Did you approach them then?

 

18 A. Yes, I did.

 

19 Q. And is Mr. Rokes in the courtroom today?

 

20 A. Yes, he is.

 

21 Q. Could you point him out and describe what

22 he's wearing?

 

23 A. Looks to be a brown suit, tan.

 

24 Q. And sitting -- seated next to Mr. Correll?

 

25 A. Correct. Correct.

 

107

 

1 MR. WADDING: Let the record reflect that the

2 witness has identified the defendant.

 

3 COURT: It may.

 

4 Q. Now, when you approached the defendant, did

5 you make any observations about him?

 

6 A. Yes, I did. I could smell alcohol

7 immediately coming from his person.

 

8 Q. And when you say you could smell alcohol

9 immediately coming from his person, why do you use the

10 word immediately?

 

11 A. As soon as I came over to talk with him, I

12 could smell it. I didn't have to ask if he had been

13 drinking, I could smell it. So I believe I asked him how

14 much he had had immediately rather than asked him if he

15 had been drinking, because I could smell it.

 

16 Q. Was that the first indication that you had

17 that the defendant had been drinking?

 

18 A. Yes.

 

19 Q. And that's the first observation that you

20 made?

 

21 A. That I made, correct.

 

22 Q. Did you have any other indication that he had

23 been drinking prior to that?

 

24 A. Other than what a couple of the witnesses had

25 told me.

108

 

1 MR. CORRELL: Excuse me. Excuse me. That's

2 hearsay, and I'm going to object and ask that the

3 prosecution not ask questions that call for hearsay.

 

4 COURT: Sustained.

 

5 Q. After you had observed that the defendant

6 smelled like alcohol, you indicated that you asked him a

7 question?

 

8 A. Correct.

 

9 Q. What was that?

 

10 A. How much he had.

 

11 Q. And what was the defendant's response?

 

12 A. That he had had a few.

 

13 Q. And what -- how else did he respond?

 

14 A. He added that he didn't feel the effects of

15 the drinks.

 

16 Q. Did he add that, after he said he had a few?

 

17 A. Yes.

 

18 Q. Did you ask him if he felt the effects?

 

19 A. No.

 

20 Q. Okay. He just said that?

 

21 A. Right.

 

22 Q. And did he describe the accident to you or

23 anything about the accident to you?

 

24 A. Oh, yes. I think -- I believe he had said

25 that he didn't see the red light. He told me that he was

 

109

 

1 consoling his wife whose mother was ill, that he was

2 consoling her and that he didn't see the red light,

3 flashing red light.

 

4 Q. And did he indicate when he had first

5 observed, if at all, the flashing red light?

 

6 A. He said he didn't observe the red light until

7 after he had gotten out of the vehicle after the

8 accident.

 

9 Q. How long were you with the defendant at that

10 time?

 

11 A. Oh, a short period, maybe several minutes,

12 probably not much more than that.

 

13 Q. What did you do -- did there come a point in

14 time when you left the scene or the -- and the defendant

15 left the scene?

 

16 A. Yes, there was. I was told to follow the

17 ambulance to the hospital which would be taking Mr. Rokes

18 and his wife. I don't know if one of the girls went in

19 there also, but I followed them to the hospital. That's

20 the time I left to go over to my car.

 

21 Q. Okay. And the ambulance transported the

22 defendant?

 

23 A. Correct.

 

24 Q. And were you specifically following the

25 ambulance to stay with the defendant?

110

 

1 A. I was -- correct.

 

2 Q. Okay. Why was that?

 

3 A. Because given the observations on the scene,

4 you know, we would be requesting a blood test up there.

 

5 Q. Okay. That had to do with his alcohol

6 intake?

 

7 A. Correct.

 

8 Q. And did you perform any field sobriety tests

9 on the defendant out at the scene?

 

10 A. No, I didn't.

 

11 Q. Why not?

 

12 A. It wasn't appropriate. You know, given the

13 busy intersection, you know, despite all the lights, you

14 know, from the vehicles and that, the top lights just --

15 it wasn't really a safe environment to do so, not to

16 mention, you know, he had injuries on his head, you know,

17 a laceration on his nose and over his eye, you know. His

18 wife was injured as well. Plus, medical personnel, you

19 know, were running all over, securing the scene, you

20 know, tending to the victims and that it just wasn't

21 appropriate.

 

22 Q. A lot of people injured in that incident --

 

23 A. Correct.

 

24 Q. -- is that fair to say?

 

25 A. Yes.

 

111

 

1 Q. How many did you think had been injured at

2 that point in time?

 

3 A. At that point I had known that all of them

4 had been to some extent, some more than others obviously,

5 but -- in both vehicles they all had been.

 

6 Q. Had you called dispatch to -- for ambulances?

 

7 A. Yes, I did.

 

8 Q. And how many did you ask to be dispatched?

 

9 A. I -- I told them that we would need more than

10 one and that there were serious injuries involved. I

11 didn't indicate a specific number, just more than one.

 

12 Q. And you observed the defendant or knew that

13 the defendant got into an ambulance?

 

14 A. Yes, I did. Just because they -- I was told

15 that they were going to be loaded up in an ambulance. I

16 didn't observe him entering the ambulance.

 

17 Q. How many people were in the ambulance that

18 the defendant went in, do you know?

 

19 A. No, I don't know.

 

20 Q. Was it more than the defendant?

 

21 A. Yeah. I believe it was him and his wife and

22 any more I don't know.

 

23 Q. Did you go to the hospital then?

 

24 A. Yes, I did.

 

25 Q. And did anyone else from the Cedar Falls

112

 

1 Police Department assist you?

 

2 A. Officer Anderson came up a short time after I

3 arrived up there.

 

4 Q. At the time of this incident, how long would

5 you have been on the Cedar Falls police force?

 

6 A. Let me think. Oh, probably around seven

7 months.

 

8 Q. Seven months?

 

9 A. Approximately, give or take.

 

10 Q. And did Officer Anderson, was he dispatched

11 to assist in the implied consent procedures?

 

12 A. Yes, he was.

 

13 Q. And why was that?

 

14 A. Well, I called our shift commander because I

15 didn't have any implied consent forms anyway, so Officer

16 Anderson brought those up. He also came up to assist me

17 as well.

 

18 Q. And were you present when Officer Anderson

19 read the implied consent advisory to the defendant?

 

20 A. Yes, I was.

 

21 Q. And do you remember what the defendant's

22 response was to that implied consent advisory?

 

23 A. Other than agreeing to it, I don't recall any

24 exact responses or any exact statements at the time of --

25 that he consented.

 

113

 

1 Q. Did you see him affix his signature to it?

 

2 A. Yes, I did.

 

3 Q. And did Officer Anderson remain there until

4 blood was drawn then?

 

5 A. Officer Anderson left before the blood was

6 drawn.

 

7 Q. What did you do then?

 

8 A. I remained to witness the blood withdrawal.

 

9 Q. And did you?

 

10 A. Yes, I did.

 

11 Q. And do you know who -- who withdrew blood

12 from the defendant?

 

13 A. I believe it was nurse Renee Whitlatch. I

14 believe that's right.

 

15 Q. And anything unusual in the -- in the

16 withdrawal of the blood?

 

17 A. None that I could see.

 

18 Q. The defendant have any problems about

19 providing that sample?

 

20 A. Not at the time of the withdrawal, no.

 

21 Q. Okay. Did he have some time prior --

22 problems prior to that?

 

23 A. After Officer Anderson left, after he had

24 already signed the implied consent, he did kind of ask me

25 a couple of questions about the preliminary breath test

114

 

1 that was given as well as the implied consent.

 

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

3 going to make the objection to move that last response be

4 stricken, that is the PBT is by statute inadmissible, any

5 reference to that.

 

6 COURT: It was -- it was a voluntary

7 statement not responsive to the question. Sustained.

 

8 MR. CORRELL: And I move that it be stricken

9 from the record.

 

10 COURT: I won't consider it. Mr. Wadding.

 

11 MR. WADDING: Might I just respond to that

12 briefly, Your Honor?

 

13 COURT: Go ahead. Are you talking about

14 the foundation for the implied consent procedures? Is

15 that --

 

16 MR. WADDING: Well, I think that that -- I

17 mean, obviously that's relevant. This is kind of a

18 different situation when we're not in front of a jury,

19 and I don't believe that the statute specifically

20 excludes reference to the PBT. I think it specifically

21 excludes reference to the results of the PBT, and I think

22 that's supported by the case law as well. That's my only

23 response to that, although I'm not -- I'm not going to

24 make a big fight about it, but I think that's what the

25 case law currently -- how it stands.

 

115

 

1 COURT: Is the foundation for the implied

2 consent procedures being disputed, Mr. Correll?

 

3 MR. CORRELL: It's not the foundation, it's

4 the fact that -- the statute is designed to exclude that,

5 and it does not make any distinction, it makes no sense,

6 there is not a distinction whether there's a judge or a

7 jury. That is -- it makes absolutely no difference, and

8 so now the -- the bell has been rung, and the -- it's

9 difficult to unring it, although -- it puts me in a

10 difficult situation. We don't think it's detrimental,

11 but it's still improper to raise that issue.

 

12 COURT: I know the PBT test result is

13 inadmissible. Mr. Correll, Mr. Wadding, can you refer me

14 to a Code section regarding the -- the fact that a PBT

15 was given may be inadmissible?

 

16 MR. WADDING: 321J.5.

 

17 COURT: Why don't you start over again, Mr.

18 Wadding. If you -- if you want to direct a question

19 relating to the PBT, go ahead and direct the question.

20 Mr. Correll would have an opportunity to object. I just

21 want to make sure -- that answer came in in response to a

22 different question. Let's make it more specific.

 

23 MR. WADDING: Right. My only point in the

24 response, Your Honor, is that while I didn't think -- I

25 didn't ask the question directly related to that, is that

 

116

 

1 I don't think it needs to be stricken from the record.

2 That's my only response to that. I don't think that

3 there would be a problem with the implied consent

4 procedures. I'm just saying I don't think it needs to be

5 stricken from the record.

 

6 COURT: At this point my ruling is, I haven't

7 heard anything regarding a PBT test result. The PBT test

8 result would be inadmissible. And to the extent that

9 that might later come in, I'm not going to consider it

10 and ask that it not come in so I don't hear it. However,

11 I don't read 321J.5 as prohibiting me from considering

12 the fact that a PBT was administered. I don't know

13 whether that may be significant regarding the rest of the

14 evidence that's going to be presented regarding the test

15 at this point. However, at this point I know that a PBT

16 was administered. That will remain in the record.

17 Mr. Wadding.

 

18 MR. WADDING: Thank you, Your Honor.

 

19 CONTINUED DIRECT EXAMINATION

 

20 BY MR. WADDING:

 

21 Q. I believe that you indicated that you did

22 observe the blood being drawn from the defendant?

 

23 A. Yes.

 

24 Q. Okay. And that went without incident at

25 least at the time of the withdrawal?

117

 

1 A. Correct.

 

2 Q. And do you recall how many -- how much blood

3 was drawn from the defendant?

 

4 A. Two vials.

 

5 Q. Okay. And did you make any observations, or

6 did you continue making observations with regard to that

7 withdrawal of blood, what happened to it and stuff?

 

8 A. I just saw her package it up and, you know,

9 standard procedure as far as that goes and nothing else.

 

10 Q. And how long were you with the defendant at

11 that point in time?

 

12 A. After the withdrawal?

 

13 Q. After -- I'm talking in -- in whole at the

14 Sartori Hospital.

 

15 A. Oh, god, it's -- it's tough to put a time

16 frame on that. I -- you know, one thing I can go by, I

17 guess, is the withdrawal was, you know, roughly around

18 20 minutes after midnight and then probably not too long

19 after that, so I'd say probably around 12:30 is probably

20 when I stopped contact with the defendant.

 

21 Q. Okay. What time do you think you had contact

22 with the defendant at the hospital?

 

23 A. I'd say all in all, you know, probably

24 between an hour, hour and a half between the time at the

25 scene and the hospital. My numbers may be off a little

 

118

 

1 there, but that's just a pretty rough estimate.

 

2 Q. And were you specifically focused on the

3 defendant at the hospital, or did you engage in any

4 other --

 

5 A. I was checking on the condition of the

6 victims, of course, the girls in the car, checking on

7 their condition. I believe I spoke with one of the

8 mothers as well.

 

9 Q. And do you recall the names of the other

10 persons in the -- in the other vehicle?

 

11 A. Juli Farrell, Tami Kleinheksel. I don't know

12 if I slaughtered that name or not. And, oh, I know the

13 third one. There was the girl in the front passenger

14 seat, and I can't think of her name offhand.

 

15 Q. Kristine Hill?

 

16 A. Okay. That's correct.

 

17 Q. And did you know -- did you identify Juli

18 Farrell as the driver of the other vehicle?

 

19 A. Yes, I did.

 

20 Q. And what about Tamara Kleinheksel? Was she

21 the back seat passenger?

 

22 A. Yes.

 

23 Q. And did you observe them in those

24 positions --

 

25 A. Yes.

 

119

 

1 Q. -- out at the scene?

 

2 A. Yes, I did.

 

3 MR. WADDING: That's all the questions I

4 have. Thank you.

 

5 COURT: Mr. Correll?

 

6 MR. CORRELL: Thank you.

 

7 CROSS-EXAMINATION

 

8 BY MR. CORRELL:

 

9 Q. When you received the dispatch, was it at

10 approximately 11:01?

 

11 A. Correct.

 

12 Q. And is that what your notes reflect that

13 dispatch came over --

14 A. That's what time my report reflects, yes.

 

15 Q. And obviously then there would have been some

16 time prior to that that this accident took place, a

17 matter of minutes; is that your best judgment?

 

18 A. Yes, it is.

 

19 Q. And do the police reports indicate that the

20 earliest the accident could have taken place would have

21 been 10:55 and the latest when the call came in at 11:01?

 

22 A. I don't know how they have that. There was

23 some -- I don't know if there was some confusion on

24 dispatch's part about putting times in the computer, so

25 any times in there, I don't know how accurate they are.

 

120

 

1 But the call came from a cell phone from a witness, so

2 I'm sure it happened within a minute of the time the call

3 came through dispatch.

 

4 Q. Would it be fair to say that the accident

5 happened some time prior to 11:01, we just don't know the

6 precise --

 

7 A. Well, if it happened at 10:59 or, you know,

8 exact 11 o'clock, you know, you're talking a matter of a

9 minute or two there.

 

10 Q. So I am correct, am I not?

 

11 A. Well, correct.

 

12 Q. When you got there, did you go directly down

13 what would be called South Main Street to -- to get

14 there? Did you come up on Highway 58?

 

15 A. No. I came up on Highway 58.

 

16 Q. When you were there, was there ever any man,

17 a civilian that was there in a van? Did you see him?

 

18 A. A van? That I don't remember. I do know

19 from one of the witnesses that had told me that --

 

20 Q. Excuse me. I'm not going to ask -- I don't

21 want to know what somebody else told you. My question

22 was, did you see a man who would have been in his, say,

23 his late 40s to 50-year-old type individual?

 

24 A. No, I didn't. I don't recall, but I don't

25 believe I did.

 

121

 

1 Q. When you were there and speaking to Mr.

2 Rokes, did he not say that he was immediately prior to

3 this accident consoling his wife?

 

4 A. That's what he told me.

 

5 Q. And didn't he say that that is why he went

6 through the red flashing light?

 

7 A. He said that's why he probably didn't see the

8 red flashing light.

 

9 Q. Okay. And isn't that -- I mean, isn't the

10 fair reference of what he said, that he was consoling his

11 wife, didn't see the red flashing light and went through

12 it?

 

13 A. Yes, it is. That's what he said.

 

14 Q. And didn't he tell you -- didn't he give you

15 a specific reason as to why he was consoling his wife?

 

16 A. Because he said his wife's mother was ill

17 and --

 

18 Q. Did he, in fact, tell you in -- and you can

19 make reference to your reports if you feel necessary, did

20 he specifically tell you that his wife's mother was in

21 the hospital at that point in time?

 

22 A. I believe he did, yeah.

 

23 Q. Could you check and confirm that in your

24 reports?

 

25 A. I sure can. (Complied.) Yes, that is

 

122

 

1 correct.

 

2 Q. With regard to the situation when you went --

3 that was really the basic extent of the involvement you

4 had with him at the scene, is that a fair statement, and

5 then following him to the hospital?

 

6 A. Yeah. Other than as we mentioned earlier,

7 you know, asking how much he had had to drink, that was

8 prior to this -- that conversation.

 

9 Q. And then you went to the hospital with him,

10 or followed him, I should say?

 

11 A. Yes.

 

12 Q. And was that also to get the condition of the

13 other people who were involved in the accident, to

14 monitor their condition?

 

15 A. Yes, it was. That was -- that's -- you know,

16 any time we have an accident where there's injuries

17 involved, you know, we would be going up there

18 regardless.

 

19 Q. With regard to the point in time when you got

20 there, you had contact with him in the emergency room

21 shortly after arrival; would that be fair to say?

 

22 A. Yes, it would be.

 

23 Q. And that the -- when you approached him, had

24 you already spoken to the Farrell -- the Farrell girl?

 

25 A. No. I think I spoke with Ms. Farrell after

 

123

 

1 all this had taken place. I think I had spoken with her

2 in the waiting room.

 

3 Q. And when you got to the hospital then, did

4 you ask to speak to Mr. Rokes?

 

5 A. Yes. They told me what room he was in, and I

6 went in there.

 

7 Q. And did he volunteer -- did he talk to you,

8 sir?

 

9 A. Well, I'll just kind of give you an order of

10 events when I got there.

 

11 Q. No. Just answer my question. Did he talk to

12 you?

 

13 A. I didn't speak with him immediately, no.

 

14 Q. When you asked to speak to him, did he speak

15 to you?

 

16 A. Yes, he did.

 

17 Q. Did he appear to understand your questions?

 

18 A. Officer Anderson directed more of the

19 questions toward him.

 

20 Q. Did he understand the questions that either

21 you or Officer Anderson directed to him?

 

22 A. Yes, he did.

 

23 Q. And at approximately 11:43 was he requested

24 to sign a consent to have blood withdrawn from him?

 

25 A. Yes, he did.

 

124

 

1 Q. And is it not a fact, sir, that he would have

2 had the right to refuse to -- refuse that request?

 

3 A. Yes, he would have.

 

4 Q. And he did not ask to do that, did he?

 

5 A. No, he did not.

 

6 Q. And he didn't say he wanted to stop and

7 consult an attorney before on that, did he?

 

8 A. No, he didn't.

 

9 Q. You asked for -- or you and Mr. Anderson

10 asked for a sample, a specimen of blood, and he agreed to

11 that; isn't that --

 

12 A. Yes, he did.

 

13 Q. -- a fair statement? When you are at the

14 hospital, is it not a fact that you in your report

15 described him, and this would have been -- about what

16 time -- would you have seen him at the hospital -- let me

17 back up a minute.

 

18 A. Well, I think you -- I believe you stated the

19 implied consent was offered at 11:43. My time would have

20 been just shortly prior to that, between that time and

21 the time of the blood withdrawal.

 

22 Q. Let me say, did you follow the ambulance, I

23 mean, within vision distance of the ambulance?

 

24 A. Yes, I did. I believe so.

 

25 Q. And if the records that I've reviewed

 

125

 

1 indicate that the paramedics arrived at the scene at

2 about 11:08, would that be generally consistent with your

3 understanding?

 

4 A. It's possible, but I don't know exact time.

 

5 Q. Okay. They arrived after you did obviously?

 

6 A. They did arrive after me, yes.

 

7 Q. And if their records indicated they arrived

8 at 11:08, do you have any reason to think that is wrong?

 

9 A. No.

 

10 Q. And if their records indicate that they

11 departed from the scene at 11:19, would that seem

12 consistent with your recollection generally?

 

13 A. It would appear so.

 

14 Q. And if the records would indicate that they

15 then departed the scene at 11:19 and arrived at Sartori

16 Hospital at 11:25, would that again be consistent with

17 your recollection?

 

18 A. Yes, it would.

 

19 Q. And would it be consistent with your

20 knowledge of the city of Cedar Falls and the streets that

21 it would take approximately six minutes in an ambulance

22 to go from Highway 58 and Greenhill to Sartori Hospital?

 

23 A. Yes. When there is an emergency and when

24 you're going through lights, yeah, you're going to get

25 there halfway quick.

 

126

 

1 Q. So at the time you would have seen him, it

2 would have been between 11:25 after he got there and we

3 know before 11:43 because that's when he signed the

4 consent, correct?

 

5 A. If that's what the forms say, then, you know,

6 that would be correct.

 

7 Q. Okay. And in that period of time,

8 approximately 15, 18 minutes, you would have had

9 conversation with him, wouldn't you?

 

10 A. Yes.

 

11 Q. And during that period of time other people,

12 the nurse and people would have been attempting to attend

13 to him as well; would that be correct, sir?

 

14 A. Correct.

 

15 Q. With regard to the condition of Mr. Rokes at

16 that period of time, between 11:25 and 11:43, is it not

17 true that your reports indicate that Mr. Rokes, in

18 quotes, was cooperative and fully coherent while

19 answering questions from the nurse?

 

20 A. Yes.

 

21 Q. And that would have been at that time frame,

22 would it not?

 

23 A. Correct.

 

24 Q. At no point in time did he ever stop or try

25 to break off his questions with you; isn't that a fact?

 

127

 

1 A. Correct.

 

2 Q. When you were at the scene, sir, did you go

3 over and check his vehicle at all?

 

4 A. I don't recall going directly up to his

5 vehicle, no.

 

6 Q. Did you ever find any evidence or see any

7 evidence at the scene outside the car, anything that

8 would indicate that Mr. Rokes or Mrs. Rokes had consumed

9 any kind of alcohol in their vehicle?

 

10 A. Well, odor for number one when I was talking

11 with them. His eyes, I mean, I was looking pretty close

12 in his eyes because he did have a gash in his nose and

13 above his eye, so I could see that his eyes were

14 bloodshot.

 

15 Q. He also had a bag explode, one of those air

16 bags came -- exploded in his car, didn't it?

 

17 A. About -- if you say so. I don't know for

18 sure. I can't recall if I heard that at the time. I may

19 have and just don't remember.

 

20 Q. Isn't it a fact that you didn't find any

21 containers that would indicate that there was any

22 alcohol --

 

23 A. No.

 

24 Q. -- in containers or --

 

25 A. I did not look in his vehicle.

 

128

 

1 Q. At the hospital, you chose also there not to

2 ask him to perform any field sobriety tests; is that

3 correct?

 

4 A. Correct.

 

5 Q. And does the Cedar Falls Police Department

6 have a questionnaire that is basically referred to as

7 a -- the questionnaire where intoxicated or suspected

8 intoxicated drivers are questioned?

 

9 A. Correct.

 

10 Q. Do you know the form I'm speaking of?

 

11 A. Drivers intox report.

 

12 Q. And that has a variety of questions that are

13 specifically asked to people, does it not?

 

14 A. Yes.

 

15 Q. Such as, what time did you get up and what

16 time did you last eat?

 

17 A. Right.

 

18 Q. And that form, you did not follow that form

19 or ask questions from that form, did you?

 

20 A. I don't think I read that form to him, no.

21 That was a mistake I made.

 

22 Q. None of the questions that appear on that

23 form were asked of Mr. Rokes, were they?

 

24 A. No. If I didn't read the form, I didn't ask

25 any of the questions, no.

 

129

 

1 Q. He was not videotaped at the hospital --

 

2 A. No.

 

3 Q. -- is that correct? And there was no audio

4 tape taken from him at the hospital, tape recording?

 

5 A. I don't believe so. I don't believe Officer

6 Anderson had a tape player. I don't believe he did.

 

7 Q. Okay. The Cedar Falls Police Department has

8 though both video and tape voice recording devices, don't

9 they?

 

10 A. They do out of the car, correct.

 

11 Q. And they have them back at the police

12 station; isn't that correct as well?

 

13 A. Yes, they do.

 

14 Q. And there is an Intoxilyzer breath machine at

15 the Cedar Falls Police Department, is there not?

 

16 A. Yes, there is.

 

17 Q. And he was never asked to go down and take

18 that, was he?

 

19 A. No. Just withdrawal of blood is all we

20 asked.

 

21 Q. Okay. And is it fair to say that at no point

22 in time did he ever refuse to provide you information?

 

23 A. No.

 

24 MR. CORRELL: That's all I have, sir. Thank

25 you.

 

130

 

1 COURT: Mr. Wadding?

 

2 MR. WADDING: Thank you.

 

3 REDIRECT EXAMINATION

 

4 BY MR. WADDING:

 

5 Q. You indicated that the defendant had stated

6 that he was consoling his wife because her mother was ill

7 in the hospital --

 

8 A. Yes.

 

9 Q. -- is that correct? And did you have the

10 impression that they had just learned that news?

 

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

12 going to object to the form of the question. That's that

13 the impression of the witness is not proper questioning.

14 That calls for speculation.

 

15 COURT: If you know, you can answer.

 

16 A. No, I don't know.

 

17 Q. Did they ever indicate to you -- did he

18 indicate to you that they were going home so that they

19 could go to the hospital to see his wife's mother?

 

20 A. No, they didn't.

 

21 Q. Indicate that they were in a hurry because

22 the defendant's wife's mother was ill?

 

23 A. No.

 

24 Q. Have you ever given the implied consent

25 procedures before?

 

131

 

1 A. Yes, I have.

 

2 Q. And about how many times have you given them?

3 Just approximately.

 

4 A. Thirty. I -- give or take. I -- I don't

5 know how good of a number that is, but roughly.

 

6 Q. Get the impression that people understand

7 what you're talking about when you read the implied

8 consent?

 

9 A. Yes, I do.

 

10 Q. And some of those people have been found to

11 be in -- over the legal limit?

 

12 A. Yes, they have.

 

13 Q. Is it unusual in your mind for a person to

14 understand the implied consent procedures and may be

15 intoxicated?

 

16 A. No. I wouldn't say it's unusual for them not

17 to understand. Some may ask questions and -- you know,

18 real simple, brief questions before they make a decision

19 on what they want to do.

 

20 Q. And, in fact, didn't Mr. Rokes ask you some

21 questions about the implied consent procedures?

 

22 A. After the fact, after he had signed them.

 

23 Q. And how would you describe Mr. Rokes after he

24 signed the implied consent procedures and he started

25 asking you questions about it?

 

132

 

1 A. He just asked some questions about -- I hate

2 to bring this up again, but he initially asked questions

3 about the PBT and -- but after that just asking, you

4 know, what he had just signed, you know, what that dealt

5 with, and I explained it to him.

 

6 Q. And didn't -- didn't you describe Mr. Rokes

7 as appearing to be edgy and disoriented?

 

8 MR. CORRELL: Excuse me. That is leading,

 

9 Your Honor.

 

10 COURT: Sustained.

 

11 Q. After Mr. Rokes had given permission to take

12 blood, he asked you some questions; is that correct?

 

13 A. Yes.

 

14 Q. And when he asked you those questions, did

15 you make any observation about how he appeared?

 

16 A. He appeared to me that he may be having

17 second thoughts. However, I don't know Mr. Rokes, so

18 I -- you know, his mannerisms or what not. That's the

19 way I perceived it. But he didn't make a big stink about

20 it. He just said, I just was curious, and, you know,

21 that's about it.

 

22 Q. Do you recall how you described him?

 

23 A. Described him?

 

24 Q. Yes.

 

25 A. Oh, god. I don't know if I really have any

 

133

 

1 description for him. I mean, just asking questions

2 and -- but just the way he was asking them just kind of

3 appeared that he maybe was having second thoughts, but

4 beyond that I can't really give more of a description.

 

5 Q. Okay. Are you just not having a recollection

6 of how you described him?

 

7 A. I -- you know, I remember him sitting there

8 asking. I -- but I don't remember, you know, as far as

9 any facial expressions or maybe the tone of voice. You

10 know, I don't think it was a -- it wasn't anything

11 extreme any --

 

12 Q. Would your report assist you in remembering

13 how you described him?

 

14 A. It could. I think I described pretty much

 

15 the way I had in my report if I remember right, but I

16 could refer back to it if there's anything I missed.

 

17 Q. I'm asking that you take a look at your

18 report and review it to yourself and let me know when

19 you're done.

 

20 A. Okay. (Complied.) Okay. Yes, I do have

21 him --

 

22 Q. Do you recall how you described him?

 

23 A. I described him as edgy.

 

24 Q. Okay. Anything else?

 

25 A. Nothing more.

 

134

 

1 Q. You don't recall describing him as being

2 disoriented?

 

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

4 going to object. This is leading.

 

5 COURT: Sustained.

 

6 MR. WADDING: I think it's a pretty direct

7 question, Your Honor. I don't know that it's leading.

 

8 COURT: Well, you hadn't finished your

9 question, but it appeared as though you were leading him.

 

10 Q. And were you aware that a statement was later

11 taken of the defendant?

 

12 A. I believe so, yes.

 

13 Q. And who -- do you recall who took that

14 statement?

 

15 A. Oh, I don't. I'm guessing maybe Todd Wilson,

16 but I don't know for sure.

 

17 Q. Okay. And at the time that you left the

18 hospital, was this still a pending investigation?

 

19 A. Yes, it was.

 

20 Q. And had you received the results of the blood

21 sample at that time, at the time you left --

 

22 A. No, we hadn't.

 

23 MR. WADDING: That's all the questions I

24 have. Thank you.

 

25

 

135

 

1 RECROSS-EXAMINATION

 

2 BY MR. CORRELL:

 

3 Q. Mr. Michael, isn't it a fact in your report

4 that you say Tracy Rokes, and I'm going to use your exact

5 words, and follow me, correct me if I'm wrong, but "Tracy

6 Rokes was cooperative and fully coherent while answering

7 questions from the nurse." Isn't that exactly the words

8 from your report?

 

9 A. Yes, it is.

 

10 Q. And that observation would have been made

11 some time between 11:25 and 11:43, would it not?

 

12 A. Yes.

 

13 Q. Okay. Thank you, sir. That's all.

 

14 COURT: Mr. Wadding?

 

15 FURTHER REDIRECT EXAMINATION

 

16 BY MR. WADDING:

 

17 Q. Well, did your report -- did you state in

18 your report anything in reference to the defendant not

19 being coherent?

 

20 A. No.

 

21 Q. You don't recall making any statements like

22 that?

 

23 A. No. There was nothing -- no. He was

 

24 coherent. I mean, you know, he asked questions. He

25 was a little edgy, you know, after he had already

 

136

 

1 signed. But beyond that, I mean, everything, he was

2 cooperative --

 

3 Q. What do you mean by edgy?

 

4 A. Just, you know, having, like I said, possibly

5 second thoughts.

 

6 Q. Did he appear apprehensive?

 

7 A. A little bit, but it -- it didn't last very

8 long. I bet I would say that this only lasted maybe a

9 minute in that time.

 

10 MR. WADDING: I don't have any other

11 questions.

 

12 COURT: Mr. Correll?

 

13 MR. CORRELL: Nothing further.

 

14 COURT: Thank you. How do you spell your

15 last name?

 

16 WITNESS: M-I-C-H-A-E-L.

 

17 COURT: Thank you.

 

18 MR. WADDING: May I approach?

 

19 COURT: Sure.

 

20 (At which time a discussion was held off the

21 record between the court and counsel.)

 

22 COURT: We'll take five minutes and reconvene

 

23 at 2:55 -- or 1:55.

 

24 (At which time a recess was taken at

25 1:50 p.m., May 13, 1997; and proceedings commenced at

 

 

updated 12/22/16