See also: Scott Braun
See also: Scott Braun Cedar Falls Police Report
1 SCOTT BRAUN
2 being produced, sworn as hereinafter certified and
3 examined on behalf of the Plaintiffs Farrell,
4 Kleinheksel and Hill and Defendants Farrell,
5 testified as follows:
6 DIRECT EXAMINATION
7 BY MR. LIABO:
8 Q. Would you tell us your name, address and
9 Social Security number, please?
10 A. Scott Edward Braun, 3412 Pheasant Drive,
11 XXX XX XXXX.
12 Q. What is your date of birth?
13 A. 12-18-57.
14 Q. You're married to Tracey?
15 A. Correct.
16 Q. And you have two children?
17 A. Correct.
18 Q. How are you employed?
19 A. Performance Bodies.
20 Q. And what does Performance Bodies do?
21 A. Mail order stock car parts company.
22 Q. What's your job with Performance Bodies?
23 A. President.
24 Q. How long has Performance Bodies been in
1 A. Oh, about 18 years.
2 Q. Did you start it?
3 A. Yes.
4 Q. Do you have any business relationship or
5 any sort of financial relationship at all with
6 Tracy Rokes?
7 A. No.
8 Q. How long have you known Tracy Rokes?
9 A. About ten years.
10 Q. How did you meet?
11 A. My wife and his wife knew each other,
12 I'm not sure how, and I became acquainted through
14 Q. Were you and your wife married at the
15 time that she became acquainted with Delonna?
16 A. No. We've been married seven years.
17 Q. I understand that you and the Rokeses do
18 things as couples from time to time?
19 A. Yeah, we have on occasion, yes.
20 Q. Do you and Tracy Rokes socialize
21 yourselves, apart from your wives?
22 A. Yes, we do.
23 Q. Tell me about that. What sorts of
24 things do you and Tracy Rokes do together?
25 A. Well, we've been playing racquetball
1 together the last couple years. We have
2 motorcycles, we've rode our motorcycles together.
3 Those are probably the two main things.
4 Q. Do you race motorcycles/
5 A. No.
6 Q. Do you regard Tracy Rokes as one of your
7 better friends?
8 A. He's a good friend of mine.
9 Q. How frequently do you and Tracy Rokes do
10 something together?
11 A. In the winter we're playing racquetball
12 about three or four times a week now.
13 Q. Okay. What about during the summer?
14 A. Oh, it depends if he's in town or out of
15 town. He has no interest in stock car races, so we
16 don't do anything together there. We'll ride our
17 motorcycles on occasion. Maybe I see him once a
18 week, once every other week, possibly.
19 Q. How often do you and your wife get
20 together with the Rokeses as couples?
21 A. Well, it depends on the situation. We
22 had a little girl a year ago, so when my wife was
23 pregnant we didn't hang out as much, do as many
24 things, and now Delonna is pregnant, so we don't
25 see them as often either.
1 Q. Before pregnancies intervened, how
2 frequently would you get together with the Rokeses?
3 A. Boy, once every two weeks, maybe. Maybe
4 we'd go out to eat or something.
5 Q. Okay.
6 A. We're busy with kids now, so we don't go
7 out to eat anymore.
8 Q. When you were out either with Tracy
9 separately or as couples, did you ever see him
10 drink alcoholic beverages?
11 A. Yes.
12 Q. What does he usually drink?
13 A. Beer.
14 Q. Have you ever seen him intoxicated?
15 A. Yes.
16 Q. How does he appear? What is it that you
17 observe about him that leads you to the conclusion
18 that he's intoxicated?
19 A. Well, like anybody, their attitude,
20 their mood, their -- I don't know how to describe,
21 you know, exactly what I would --
22 Q. How does his mood change? How is his
23 mood different when he is intoxicated?
24 A. Well, he would be laughing and joking
1 Q. Dancing?
2 A. No, not really.
3 Q. Talking more.
4 A. I don't know, that's a hard question for
5 me to answer. You know as well as I do how to tell
6 when somebody is intoxicated.
7 Q. Have you ever seen him stumbling drunk?
8 A. Not that I can recall.
9 Q. Okay. Have you ever seen him under the
10 influence to the point where you were concerned
11 that he might not be able to drive a car safely?
12 A. I can't -- I can't pinpoint a situation,
13 but if I did, I would have said something to him,
14 or anybody else, for that matter too.
15 Q. So your answer is you can't recall?
16 A. I can't recall.
17 Q. Have you ever driven Tracy Rokes
18 somewhere because you thought that he was -- that
19 it was not safe for him to drive because he had
20 been drinking?
21 A. I can't recall a time that I've driven
22 him, no.
23 Q. Do you know if your wife, Tracey Braun,
24 has ever driven Tracy Rokes somewhere because Tracy
25 Rokes had been drinking and it was felt that it was
1 not safe for him to drive?
2 A. Well, if we would go out as couples and
3 neither one of our wives would be pregnant and not
4 drinking anything, then we would have them drive.
5 So I'm sure that either Delonna or my wife has
6 driven both of us before.
7 Q. You're sure that your wife, Tracey, has
8 given Tracy Rokes a ride home because Tracy Rokes
9 had been drinking?
10 A. I'm not positive on that. I said if we
11 would have went out as couples, whoever was
12 pregnant at the time would be the person that would
13 drive. If we would go to the Skyway and eat and
14 have some beers or whatever, we would always have
15 the person that's not drinking naturally drive.
16 Q. If you were all in the same car?
17 A. Right.
18 Q. Are you aware of any situation where
19 either you or your wife Tracey and given Tracy
20 Rokes a ride somewhere because Tracy Rokes had had
21 too much to drink and Tracy Rokes had come in
22 another car?
23 A. I can't think of one.
24 Q. Do you recognize that someone can be
25 under the influence of alcohol and not be overtly
2 A. Legally drunk, you mean, is that what
3 you're saying?
4 Q. Well, just stumbling and slurred speech
5 and that sort of thing. In other words, somebody
6 can be feeling the effects of alcohol, but not be
7 stumbling and slurred speech and staggered walk and
8 have obvious outer signs of intoxication.
9 A. I guess that I would need a better
10 definition of under the influence, what you're
11 trying to ask me. I've had one beer and I'm
12 sitting on my porch talking with a neighbor and I'm
13 in a good mood. Is that under the influence of is
14 that --
15 Q. You recognize that it takes a higher
16 state of sobriety to operate a car safely than walk
17 across the room successfully?
18 A. Well, there's laws against operating a
19 motor vehicle under the influence. There's not a
20 law against -- I suppose public intox, but walking
21 across a room, I guess I don't understand the
22 question what you're asking me.
23 MR. LIABO: I'm not asking you for a
24 legal opinion. Why don't you read the question
1 (The reporter read the last question.)
2 A. Driving a car would be more dangerous,
3 I'll agree with that.
4 Q. Do you recognize that somebody might be
5 able to walk without stumbling, but yet not be able
6 to operate a vehicle safely as a result of drinking
7 alcoholic beverages?
8 A. Well, they have a law that says you can
9 have a certain amount of alcohol and still operate
10 your motor vehicle.
11 Q. I don't think that's the law, but I'm
12 not asking for a legal opinion, and I don't think
13 anything in the law give a person a license to
14 operate with any amount of alcohol in the blood.
15 But that's beside the point. From a standpoint of
16 just common sense of what you know to be the case,
17 driving a motor vehicle requires better judgment,
18 the ability to make quicker and more complex
19 decisions and to respond with better and quicker
20 motor skills than just walking across the room,
21 doesn't it?
22 A. That's why you have to have a license to
23 drive a car, yes. Correct.
24 Q. Just because somebody isn't stumbling
25 drunk doesn't mean that it's safe for them to
1 operate a motor vehicle, isn't that a fair
3 A. Okay, that's a fair statement.
4 Q. Do you remember October 4th, 1996?
5 A. Uh-huh.
6 Q. Yes?
7 A. Yes.
8 Q. Do you remember what you had been doing
9 that day?
10 A. I was at work. I got home from work
11 around I thing it was like 5:30. My neighbor came
12 over and told me that my wife was over at Rokeses'
13 house. I went over to Rokeses' house, I walked in
14 the door, I went to the refrigerator, got myself a
15 beer, and I remember this distinctly, asking Tracy
16 Rokes if he wanted a beer and he said no. He was
17 sitting on the couch drinking a Pepsi. He had been
18 in Mason City working all week and he looked like
19 he'd been working all week.
20 Q. Okay. Who all was there at the Rokeses'
21 house when you arrived/
22 A. This is two years ago, so I'm trying to
23 remember everybody that was there. My wife was
24 there, Delonna was there. There was one other
215 friend of theirs, it was either Connie or Kim, I'm
1 not sure which one, and at one point in time there
2 was three, me, Tracy Rokes and another guy there
3 too. I believe it was Mark, but I'm not sure.
4 Q. Mark?
5 A. Their neighbor.
6 Q. Okay.
7 A. And I could be wrong.
8 Q. Do you know his last name?
9 A. Schliesman.
10 Q. Okay. Do you think Connie Young was
12 A. It was either Connie or Kim. I'm not
13 sure which one.
14 Q. Kim?
15 A. Their neighbor, Mark's husband. And
16 maybe they weren't there. They were back and
17 forth, I mean they were neighbors, so they were
18 around each other a lot.
19 Q. Was anybody else having anything
20 alcoholic to drink?
21 A. I believe the girls were.
22 Q. Was that beer the first alcoholic
23 beverage you had had to drink that day?
24 A. Yes.
25 Q. All right. Did Tracy Rokes ever have an
1 alcoholic beverage to drink while you were there?
2 A. No.
3 Q. All right. I understand that the
4 conversation sort of turned towards plans for the
5 evening, is that correct/
6 A. Yeah. The three -- the women were
7 talking about going to Brooster's and I said
8 that's fine with me. And I asked my wife if she
9 had a sitter lined up, and she said she did. So I
10 said that will be fine.
11 Q. Okay. What time did you leave the
13 A. I believe it was around 6:15, 6, 6:15.
14 Went home, the sitter came. Me and my wife had
15 left. We went to Rudy's Tacos and ate. And I
16 remember watching my watch at Rudy's, because it
17 took forever to get food, and we must have got
18 there around 7 and left there around 8.
19 Q. Did you have an alcoholic beverage to
20 drink at Rudy's?
21 A. Yeah, I had a beer at Rudy's.
22 Q. Just one or more than one?
23 A. Just one. I had one with my food.
24 Q. Okay. You left for Brooster's then
25 around 8 o'clock?
1 A. Uh-huh. Yes, we did.
2 Q. All right. And Brooster's, it takes
3 about how long to get there?
4 A. Five minutes.
5 Q. When you arrived at Brooster's, who was
6 there that you recognized?
7 A. Craig Young, Tracy Rokes and Bill
8 Bradford and their wives, which was Connie, Delonna
9 and Lisa.
10 Q. Lisa Bradford?
11 A. Yeah.
12 Q. As I understand it, the gals were at one
13 table and the guys were up at the bar watching the
14 game; right?
15 A. Yeah, standing around watching the game.
16 Q. Okay. Did you have a beer after you
18 A. Yes.
19 Q. Did you see Tracy Rokes drinking
21 A. He was drinking a beer at that time when
22 I got there.
23 Q. You don't know -- you would have no way
24 of knowing how many beers he had by the time you
25 got there?
1 A. No, no idea.
2 Q. Okay.
3 A. I don't know if he'd been there -- I
4 have no idea how long ha had even been there. They
5 didn't go out to eat with us, so I have no idea.
6 Q. Now did you stand around and just watch
7 the game and talk while you were on the Brooster's
8 side of the bar?
9 A. Yeah. The other guys were more
10 interested in the World Series. I believe it was
11 the World Series. There was some sporting event on
12 TV that they were watching and they were more
13 interested than I was and they were talking about
14 whatever it was on TV. Me and Tracy would talk
15 about work back and forth a little bit, because
16 he's, you know, kind of his own boos and has things
17 going on and I've got my business, so we tend to
18 talk about business every so often, just something
19 to talk about.
20 Q. Okay. While you were on the Brooster's
21 side, did you observe Tracy Rokes drinking more
22 than one beer?
22 A. I would assume so, but I wouldn't know
24 how many and for sure if he did.
25 Q. You weren't keeping track?
1 A. I wasn't keeping track, right.
2 Q. How long were you on the Brooster's
4 A. Well, there was a band that started
5 sometime, the band was setting up and the band
6 started right after 9 o'clock. And I have a
7 tendency to wander around and don't really like to
8 stand in one place much, and I wandered over next
9 door and saw on the Celebration's side there was a
10 band setting up, so I went back and tried to
11 convince everybody to go to the Celebration's side.
12 Q. Okay. Do you know abut what time you
13 went over to the Celebration's side?
14 A. I would assume it was between 9 and
16 Q. By the time you went over to the
17 Celebration's side, how much beer had you had to
19 A. I had been there since 8, so I suppose a
20 couple beers.
21 Q. Do you know how much beer Tracy Rokes
22 had had to drink?
23 A. No.
24 Q. You don't know whether it was more or
25 less than what you had had?
1 A. I can't believe it was more, but I have
2 no idea. I don't know. Generally what will happen
3 is somebody will walk up to the bar and buy a round
4 of beer.
5 Q. What happened on the Celebration's side?
6 A. We watched the band. I danced with my
7 wife, I danced with Delonna, and we sat around and
8 the guys kind of formed a group and the girls
9 formed their group again talking.
10 Q. All right. Were you keeping track of
11 what Tracy Rokes was going while you were dancing?
12 A. No.
13 Q. Were you keeping track of how much he
14 had to drink on the Celebration's side?
15 A. No.
16 Q. Do you know how much he had to drink on
17 the Celebration's side?
18 A. No.
19 Q. All right. What time did you leave?
20 A. About 20 to 11 my wife told me we had a
21 baby-sitter until 11 o'clock and we needed to think
22 about getting going.
23 Q. Okay.
24 A. We left about five minutes after that,
25 about a quarter to 11.
1 Q. When you left, by the time you left, how
2 much had you had to drink?
3 A. I don't know the number of beers, but I
4 personally felt like I was okay to drive home.
5 Q. Did you have more beer on the
6 Celebration's side?
7 A. I know I had one for sure on the
8 Celebration's side.
9 Q. Did you talk to Tracy Rokes while you
10 were still on the Celebration's side?
11 A. I'm sure I did.
12 Q. Did you have enough contract with him to
13 be able to tell one way or the other whether in
14 your view he was under the influence of the alcohol
15 that he had consumed?
16 A. Well, my personal thought was I didn't
17 think I was under the influence and I didn't think
18 he was under the influence. And if I did, I would
19 have had Connie Young, who was pregnant at the
20 time, give us a ride home.
21 Q. So you figured -- you thought you were
23 A. Sure.
24 Q. And Tracy must be okay too?
25 A. He didn't seem to me like he was under
1 the influence and I certainly didn't think I was.
2 Q. Okay. So you left the bar.
3 A. Uh-huh.
4 Q. And you drove?
5 A. Yes.
6 Q. And I assume you went home and --
7 A. I went out University Avenue, because I
8 took University just to kind of cruise on home. I
9 used to drive up and down University when I was a
10 kid. I like to drive University Avenue. I drove
11 University Avenue, went on home, look at the
12 scenery, woke up bright and early next morning,
13 felt great, called up my dad to go out for breakfast,
14 and it was shortly after that I found out Tracy
15 Rokes had been involved in an accident.
16 Q. How did you find out about the accident?
17 A. It's been two years, but I believe my
18 wife told me. Or I called Tracy. I'm not sure.
19 Q. Okay. Did you talk to Tracy Rokes that
20 Saturday morning?
21 A. What time of the morning are you talking
23 Q. Well, any time did you talk to Tracy
24 Rokes on Saturday morning?
25 A. Before noon for sure I talked to Tracy
2 Q. Over the telephone?
3 A. Yes.
4 Q. Okay. Did you call him or did he call
6 A. I don't remember. I assume I called
7 him, but I don't remember.
8 Q. Okay. What did he tell you in that
10 A. That they had been involved in an
11 accident on the way home at Greenhill and whatever
12 that highway is.
13 Q. All right. Did he tell you anything
14 more about the details of what had happened?
15 A. Yeah. He told me that he was talking to
16 Delonna, they were driving down the road, and the
17 next thing he saw was a car in front of him, he hit
18 his brakes, and they collided and it happened.
19 Q. Did he tell you or say anything to you
20 about the traffic light at the intersection?
21 A. I asked him about the light, and that
22 was when he said, gosh, he thought there was a
23 green light. I mean, he felt -- he felt terrible
24 at the time and he was I think questioning himself
25 as to, you know --
1 Q. What color the light was?
2 A. -- how it could have happened or what
3 happened or whatever.
4 Q. All right.
5 A. But he told me, he said, "I swear there
6 had to be a green light there" or whatever.
7 Q. Okay. Did he indicate who was at fault
8 or whether he thought he was at fault?
9 A. No. He didn't know at that point.
10 Q. Did he make any comment about drinking
11 or his having been drinking prior to the collision?
12 A. I made a comment to Tracy about it's a
13 good thing we didn't have much to drink. And we
14 never really had much other conversation about
16 Q. Did he say anything to you about
17 drinking and about his having consumed alcoholic
18 beverages before the collision?
19 A. Well, he told me that they had tested
20 him and they had taken him to the hospital and they
21 stitched his forehead up. And Delonna I believe
22 was okay, she just had bumps and bruises.
23 Q. Okay. Is that it? I mean, have you
24 told me everything you can recall about that
1 A. I believe so.
2 Q. Have you had any other conversations
3 with Tracy Rokes about this collision?
4 A. You mean in the last two years?
5 Q. Uh-huh.
6 A. Oh, yeah.
7 Q. Tell me about those. How many times?
8 A. Many times.
9 Q. All right. What has he told you about
10 the collision?
11 A. Well, we found out later or he found out
12 later that the light was flashing, he had a
13 flashing red light and the other vehicle I believe
14 had a flashing yellow light. And the lights before
15 that I believe were functional lights, red, green,
16 yellow. I mean, I was personally concerned trying
17 to figure out how this happened and what happened
18 and why that light was flashing. You know, I've
19 had some concerns too with it.
20 Q. How so?
21 A. Because I think it's a dangerous
22 intersection. I don't think that light should
23 flash. That's my personal opinion.
24 Q. When did Tracy Rokes tell you for the
25 first time that there was a flashing light at that
2 A. Oh, I don't know the exact date or how
3 many days it was after that.
4 Q. Did he tell you that it was flashing --
5 well, what color was the light for traffic
6 traveling his direction?
7 A. I believe it was flashing red.
8 Q. Okay. Did he ever explain to you why he
9 had gong through a flashing red light?
10 A. I don't think he still knows. No, he
11 never explained to me why. Obviously, he didn't do
12 it on purpose. I wouldn't run a flashing red
14 Q. Well, no, he's supposed to stop at a
15 flashing red light; right?
16 A. Correct. The only explanation I ever
17 came across, and this is just my personal opinion,
18 was if he looked up and saw the red light flash
19 from red off, subconsciously you would think a
20 green light was going to come on.
21 Q. All right.
22 A. If he just had went through a green,
23 red, yellow light. I mean, if you're driving and
24 not watching the road and you look up and see a red
25 light and it goes off and it's a red, green, yellow
2 Q. That's the only explanation you can come
3 up with?
4 A. That's the only one I've ever been able
5 to come up with, yes.
6 Q. After you found out that Tracy had a
7 flashing red light -- well, let me ask you this:
8 we discussed earlier how alcohol can have an
9 influence on somebody and impair their ability to
10 make decisions and react in a what that drivers have
11 to react and make decisions driving a motor
12 vehicle, even though they're not stumbling drunk.
13 Would you include on your list of possible
14 explanations for Tracy Rokes not recognizing the
15 flashing red light and stopping the effects of the
16 alcohol he consumed?
17 A. I wouldn't make that judgment, because
18 people get in wrecks everyday that they have absolutely
19 nothing to drink.
20 Q. Isn't it possible that the alcohol that
21 he consumed played a role and was a contributing
22 factor to him not recognizing that red light and
23 stopping in time?
24 MR. BEVEL: Objection. It calls for an
25 improper opinion by this witness. Actually, I
1 think it calls for an expert opinion. This witness
2 has not been qualified as such.
3 MR. LIABO: You can go ahead and
5 THE WITNESS: Oh, I can answer?
6 MR. LIABO: Sure.
7 THE WITNESS: Say the question again
9 (The reporter read the last question.)
10 A. I personally don't think so, but I have
11 no way to know that.
12 (Deposition Exhibit 43 marked for
13 identification, as requested.)
14 Q. Do you recognize Exhibit 43 which is in
15 front of you now?
16 A. Uh-huh. Yes.
17 Q. All right. Is that a copy of a
18 statement you gave to the Cedar Falls Police
19 Department on October 7th, 1996?
20 A. I believe it is. I haven't read it.
21 Q. All right. Well, take you time. Take
22 a look at it if you need to look it over.
23 A. Sure. Read the whole thing? You want
24 me to read it?
25 Q. Sure.
1 A. Okay. That's fine.
2 Q. I want you to be able to tell me whether
3 it is your statement or not.
4 A. Sure, I'll look.
5 Yeah, that's my statement.
6 Q. Okay. Does this statement accurately
7 reflect your recollection of the events and what you
8 were told by Tracy at the time that you gave it on
9 October 7th, 1996?
10 A. To the best of my recollection it does,
12 Q. Before you went down to the Police
13 Department, did you know -- you knew that there had
14 been a wreck; correct?
15 A. Correct.
16 Q. Did you know that the people in the
17 other vehicle had been seriously injured?
18 A. Yes.
19 Q. And you knew that the police wanted to
20 take a statement and find out what you knew?
21 A. Yes.
22 Q. Did you and your wife, Tracey Braun
23 both go to the Police Department together?
24 A. Yes.
25 Q. Before going to the police station, did
1 you talk about the events and compare notes on what
2 you knew?
3 A. No.
4 Q. You didn't coordinate your stories that
5 you were going to give to the police?
6 A. No.
7 Q. Look on page 2 of your statement, would
8 you, please?
9 A. Okay.
10 Q. The paragraph second from the bottom.
11 A. Okay.
12 Q. I'm looking at the sentence that begins,
13 "I asked Tracy what had happened and he told me
14 that he was going down the road and that Delonna
15 had started crying and he was trying to calm her
16 down." Do you see that?
17 A. Correct. Yes.
18 Q. You then state: "He said that he had a
19 green light or that he swore he had a green light
20 and the next thing he knew he saw a car and that he
21 tried to hit the brakes, but wasn't sure if he
23 A. Correct. I mean, if he had time is I
24 believe -- you know, if he hit the brakes or if he
25 had time to hit the brakes.
1 Q. Okay. Now had both you and your wife
2 spoken with Tracy Rokes over the telephone on
3 October 5th, 1996?
4 A. I don't know if she spoke to Tracy.
5 Q. Okay. Mr. Braun, take a look at
6 Exhibit 42, which is the statement your wife gave
7 to the police that evening of October 7th.
8 A. Okay.
9 Q. And take a look at the second page, the
10 last two paragraphs.
11 A. Okay.
12 Q. Do you see her statement, "Tracy called
13 me Saturday morning around 9:30 to 10 a.m. and had
14 told me that he was in an accident"; correct?
15 A. Okay. I see that.
16 Q. Were you aware of that conversation
17 between Tracy Rokes and your wife?
18 A. I'm sure I would have been.
19 Q. According to your statement, you talked
20 to Tracy Rokes at 8 a.m. on October 5th, 1996.
21 A. No, I said I'm not sure what time I
22 talked to Tracy. Two years ago I did. Are you
23 talking about right now or are you talking about
24 two years ago?
25 Q. Well, just listen to my question.
1 A. Okay.
2 Q. According to your statement, you told
3 the police that you had spoken with Tracy Rokes at
4 8 o'clock a.m. on October 5th, 1996; correct?
5 A. Okay.
6 Q. Yes?
7 A. Correct. Correct. That's what the
8 statement says. Okay, I talked with Tracy Rokes,
10 Q. Do you know if there was another
11 conversation then between Tracy Rokes and your wife
12 about an hour or hour and a half later?
13 A. Well, she said there was. There must
14 have been.
15 Q. Okay. She also said in her statement
16 that "Tracy swore the light was green and when he
17 looked up he saw a vehicle in the intersection and
18 that he hit it." Do you see that statement, the
19 last statement?
20 A. Yes, I do.
21 Q. That's the same thing he told you, is
22 that correct?
23 A. That's what it says.
24 Q. In fact, the words that your wife used
25 in her statement are substantially the same as the
1 words you used in your statement; correct?
2 A. It says he swore the light was green in
3 both statements.
4 Q. Right.
5 A. That the only thing that's the same.
6 Q. And you and your wife had not compared
7 notes and told each other what Tracy had told you
8 in the second conversation?
9 A. I'm not sure about that. I'm sure if I
10 talked to Tracy or she talked to Tracy, we would
11 have asked how it happened and how is everybody
13 Q. Okay. Based upon these statements,
14 Tracy Rokes had told each of you separately that
15 the light was green; he made that statement to you
16 in the conversation earlier that morning and to
17 your wife later in he morning?
18 A. I know he told me. I know he told me
19 and her statement says that he told her. Whether
20 he told her or I told her, it says in the statement
21 Tracy called me Saturday morning and told me that
22 he had an accident.
23 Q. Are you familiar with this roadway, this
24 stretch of Greenhill Road where the collision
1 A. Yeah. I've been by it many times. I
2 drove by there many times nights after the accident
3 happened just to try to see what did happen.
4 Q. Try to sort it out in your own mind?
5 A. Yeah. Tracey was very upset about it,
6 my wife was upset about it, Tracy Rokes was upset
7 about it and I was upset about it. I'm still upset
8 about it. Still to this day I've told many people
9 about that light flashing and nobody seems to care
10 about it. Nothing's been changed that I know of.
11 Q. Do you know when the lights began
12 flashing at that intersection on the night of this
14 A. That was one of the reasons I drove out
15 there was to find that out, like the next night or
16 the night after. And my theory was the lights
17 started flashing at 11, but they had started
18 flashing sooner than that.
19 Q. When did they start flashing?
20 A. I believe I was told they started at
21 10. I'm not sure.
22 Q. When did you -- you say you went out
23 there the next night or the night after that?
24 A. Yes.
25 Q. What time did you go there?
1 A. About 11 o'clock.
2 Q. Okay. And were they flashing when you
3 went there?
4 A. I'm sure they were. Yeah, I'm sure they
6 Q. Did you drive that stretch from say
7 Main, South Main?
8 A. I've driven that stretch both ways.
9 Q. All right. Did you have any trouble
10 any trouble seeing the flashing red lights all the way up to
11 Main, South Main?
12 A. I was looking for them.
13 Q. So your answer is no, you didn't have
14 any trouble seeing them?
15 A. I was looking for them. No. I didn't
16 have any trouble seeing the flashing yellow, the
17 flashing red. I mean when I come to that
18 intersection now, I slow down. I don't like that
20 Q. All right. But if you're paying
21 attention to what's going on in front of you, the
22 flashing red lights are clearly visible, are they
24 A. If there is a flashing red light and
25 you're looking at it, you surely will see it, yes.
1 Q. Answer my question, please. If you're
2 paying attention as you're driving along that
3 roadway, the flashing red lights are clearly
4 visible; correct?
5 A. Correct.
6 Q. For some reason, Tracy Rokes was not
7 paying attention that night when he drove through
8 that intersection, would you agree with that?
9 MR. BEVEL: Objection. It calls for
11 A. If that light was flashing and he wasn't
12 looking at it or for whatever reason you just said,
13 then I agree he didn't see it. He obviously didn't
14 run it on purpose.
15 Q. He wasn't paying attention, thought?
16 MR. BEVEL: Objection. Calls for
18 A. He missed a flashing red light for
19 whatever reason.
20 Q. So your answer is "yes"?
21 A. No, my answer isn't "yes." My answer is
22 he didn't see the flashing red light. You can't be
23 a thousand percent sure that the light was
25 Q. He told you it was green; right?
1 A. Well, why else would he go through an
2 intersection? He wouldn't run a red light and the
3 wouldn't run a flashing red light. He felt
4 terrible when he was telling me this. I mean, he
5 wasn't giving me testimony of what happened. He
6 was only telling me as a friend how he felt and
7 what -- you know, what he thought had happened.
8 Q. All right. And his first statement to
9 you, his first explanation to you was that he
10 light was green; correct?
11 A. I asked him what had happened.
12 Q. No, com on. Answer my question. Was
13 his first explanation to you that the light was
15 A. He told me and my statement says he
16 thought the light was green.
17 Q. Was the first statement he made to
18 you by way of explanation for why he ran through
19 that light and struck that other car?
20 A. I can't say that for sure, no. I don't
21 know if that's the first thing he said to me.
23 Q. Was that the first thing he said by way
24 of explanation for what happened?
25 A. All right
1 A. He was driving down the road, just like
2 it says.
3 Q. All right. So Delonna was upset. His
4 attention was on Delonna?
5 A. I'm going to try to find this in my
6 statement, because I can remember a lot better,
7 this happened two years ago.
8 Q. Let me tell you what you aid in the
10 A. Where is it?
11 Q. Second paragraph from the end on the
12 second page.
13 A. Okay.
14 MR. BEVEL: I'm going to object -- well,
15 go ahead.
16 Q. you state in the statement, "I asked
17 Tracy what had happened and he told me he was going
18 down the road and that Delonna had started crying
19 and he was trying to calm her down."
20 Do you see that statement?
21 A. No, I don't. I'm looking for it.
22 Q. Second paragraph from the bottom, page
24 A. Okay, here we go. I'm with you, okay/
25 Q. The third sentence. "I asked Tracy what
1 had happened and he told me that he was going down
2 the road and that Delonna had started crying and he
3 was trying to calm her down."
4 Do you see that statement?
5 A. Yes.
6 Q. Did you infer from that statement that
7 Mr. Rokes was paying more attention to Delonna than
8 the roadway?
9 A. I infer from the statement exactly what
10 it says, he wasn't paying a hundred percent
11 attention to the roadway, because he was talking to
13 Q. You then state, "He said that he had a
14 green light or that he swore he had a green light
15 and the next thing he knew he saw a car and that he
16 tried to hit the brakes but wasn't sure if he
17 had." That is your statement; correct?
18 A. Correct, yeah.
19 Q. Have you ever experienced yourself or
20 observed in others who have been drinking that they
21 lose track of time?
22 A. Ask me what you're trying to ask me.
23 Q. I just did. Answer the question.
24 A. Do people that are drinking lose track
25 of time?
1 Q. Answer the question.
2 MR. LIABO: Why don't you read it back,
4 (The reporter read the last question.)
5 A. That would depend on how much you've had
6 to drink. If I have a couple of beers, I'm not going
7 to lose track of time.
8 Q. So the answer is yes, is it not, that
9 alcohol can affect a person's sense of time?
10 A. I'm not going to answer yes to that,
11 because that's -- that's not a fair question for me
12 to answer.
13 Q. Tracy told you that he was trying to
14 comfort Delonna, trying to calm her down, and then
15 he went into an intersection where he thought he
16 had a green light; correct?
17 A. That's what he said. That's what I
19 Q. Do you deny the possibility that the
20 reason that Tracy wasn't aware of the true color of
21 the light, that he was not paying attention the way
22 he should have been, was because of the alcohol he
23 had consumed and he had lost track of where he was
24 and he lost track of time and didn't recognize the
25 light controlling his intersection for what it
2 MR. BEVEL: That's objected to. it
3 calls for expert opinion, also calls for the
4 witness's speculation.
5 THE WITNESS: Answer?
6 MR. BEVEL: Yes.
7 A. I agree he wasn't paying full attention
8 to the road. I don't think alcohol played a part
9 in the accident.
10 Q. And the basis for that opinion is what?
11 A. I drove myself home and I didn't feel
12 that I was intoxicated or that I had had too much
13 to drink.
14 Q. And you didn't run any red lights, did
16 A. No.
17 Q. And you didn't take your eyes off the
18 road for an extended period of time, did you?
19 A. Well, I'm not sure of that. I don't
20 know about that.
21 Q. While you were driving along?
22 A. What's an extended period of time?
23 Q. An extended period of time, long enough
24 not to realize where you are and not to recognize a
25 flashing red light.
1 A. I've been driving down University Avenue
2 somewhere in the middle of the day before and ran a
3 stop sign.
4 Q. So your testimony is that in the
5 condition you were in that night you think you --
6 A. But my condition --
7 Q. The thing you have to do is answer the
8 questions. We have a judge here and I will assure
9 you that I will ask a judge to order you to answer
10 the question posed.
11 MR. BEVEL: I'm going to object. First
12 of all, Mr. Liabo, I think you're arguing with
13 the witness at this point and also I think getting
14 pretty close to harassing this witness.
15 Q. You were driving home that night from
16 the bar after you had had a few drinks. Did you
17 take your eyes off the road for an extended period
18 of time?
19 A. We just went through this. You just
20 asked me this question. And I asked you what's an
21 extended period of time. If I'm driving down the
22 road --
24 Q. Mr. Braun, I'm going to give you fairy
24 warning right now.
25 A. Okay.
1 Q. You are under subpoena here today.
2 A. Okay.
3 Q. You're under jurisdiction of the Court.
4 I will conclude this deposition and I will take it
5 up with a judge, in front of a judge, and you will
6 be subject to a contempt of court citation if you
7 do not answer my questions. You do not answer a
8 question with a question. You must answer it
9 truthfully and fully as posed.
10 MR. BEVEL: To be fair to the witness,
11 first, I'm going to object, and, secondly, I think
12 it's a misstatement to say that this witness cannot
13 ask a question, particularly if he doesn't
14 understand what's being asked.
15 Q. I will give you one more change. I will
16 ask the court reporter to read the question back
17 and ask that you answer it.
18 (The reporter read the last question.)
19 A. Can I get a definition on what an
20 extended period of time is?
21 Q. I'm asking you the question. You can
22 answer it as posed.
23 MR. BEVEL: I object. Counsel is
24 arguing with the witness and I think also, to be
25 fair, that the witness can inform counsel whether
1 or not he understands the question.
2 A. I don't understand the question. I need
3 a definition on what an extended period of time is.
4 Q. You do no know yourself what an
5 extended period of time is?
6 A. Is that one second, two seconds, five
7 seconds? I'm not trying to argue with you. I'm
8 trying to ask a question so I can answer it. Not
9 to my knowledge did I take my eyes off the road for
10 five seconds. Did I take my eyes off the road for
11 one or two seconds to glance over at something
12 while I was driving down the road? I'm sure I did.
13 Q. You regard taking your eyes off the road
14 for five seconds to be an extended period of time
15 when you're operating a motor vehicle?
16 A. Yeah. Yes.
17 Q. Would you regard taking your eyes off
18 the road for more than five seconds while operating
19 a motor vehicle to be negligent?
20 MR. BEVEL: Objection. It call s for a
21 legal opinion.
22 A. Five seconds is a long time. Yes.
23 Q. Would you regard taking your eyes off
24 the road while operating a motor vehicle for five
25 seconds or more to potentially be reckless?
1 MR. BEVEL: Objection. Calls for a
2 legal opinion.
3 A. I'm not sure where we're getting the
4 five seconds time from, but five seconds is an awful
5 long time when you're driving down the road.
6 Q. Could it be reckless to take your eyes
7 off the road?
8 MR. BEVEL: Objection. Asks the witness
9 for a legal opinion.
10 A. If you did it a lot, it would be.
11 Q. What if you did it out of obliviousness
12 and weren't paying attention?
13 MR. BEVEL: Objection. Asks the witness
14 for a legal opinion.
15 A. Can you ask me that again, what you just
16 asked me? Or rephrase it.
17 Q. Would you regard someone who -- would
18 you regard taking your eyes off the road as you're
19 traveling down the roadway for five seconds to
20 potentially constitute reckless conduct?
21 MR. BEVEL: Objection. Calls for a
22 legal opinion.
23 A. I can't imagine intentionally taking my
24 eyes off the road for five seconds.
25 Q. Did you hear the word "intentional" in
1 my question, sir?
2 A. I must not have.
3 MR. LIABO: Why don't we have the
4 question read back.
5 (The reporter read the last question.)
6 MR. BEVEL: I want to note that I raise
7 the same objection, that it's asking for the
8 witness to testify as to a legal standard.
9 You can answer.
10 A. I would say that would be unsafe
11 driving, yes.
12 Q. Potentially reckless driving?
13 MR. BEVEL: Same objection.
14 A. There are a lot of things involved in
15 reckless driving. Going over the speed limit. To
16 me, reckless driving is intentionally doing
18 Q. In your opinion?
19 A. In my opinion, correct. If I'm driving
20 down the road and I run into the back end of the
21 car in front of me, I don't necessarily have to be
22 doing something reckless.
23 Q. Do you recognize that you can be just so
24 grossly negligent, just so oblivious, that your
25 conduct might be considered reckless, though not
2 MR. BEVEL: Objection. Calls for a
3 legal opinion.
4 A. You lost me there.
5 MR. BEVEL: And calls for the witness to
6 give an answer as far as a legal standard.
7 Q. By the way, do you know how much time it
8 takes to travel at the speed limit from South Main
9 to the intersection of Greenhill Road and
10 Highway 58?
11 A. No, I don't.
12 Q. Do you know how much time Tracy Rokes
13 would have had those flashing red lights in view
14 had he been paying attention as he drove that
15 evening towards the point where this collision
17 A. No, I don't.
18 Q. Would you regard operating a motor
19 vehicle while under the influence of alcohol as
20 being reckless?
21 MR. BEVEL: Objection. It calls for a
22 legal opinion.
23 A. It is illegal, so, yes, it is reckless.
24 Q. In your statement to the police, the
25 bottom paragraph on page 2, you said, "I told Tracy
1 that it was a good thing that he hadn't been
2 drinking much and I asked him they had checked him
3 out." Do you see that statement?
4 A. Yes, I do. I assume that should have
5 read "I asked him if they had checked him out." Is
6 that correct?
7 A. Let me read this. If they had, yeah,
9 Q. Okay. When you made the statement that
10 you told Tracy that it was a good thing that he
11 hadn't been drinking much, good for whom,
12 Mr. Braun.
13 A. Well, it's a good thing for Tracy from a
14 legal standpoint. There was nothing good about the
16 Q. Did you think it made much of a
17 difference to the people who were killed and
18 injured in that other car?
19 A. I didn't know at that time anybody was
20 killed. I know I was very concerned with the
21 people that was injured.
22 MR. LIABO: That's all I have.
23 CROSS EXAMINATION
24 BY MR. HELLMAN:
25 Q. Mr. Braun, I just have a couple
1 questions for you.
2 A. Okay.
3 Q. My name is Jim Hellman and I'm
4 representing the estate of Juli Farrell, the young
5 girl that was killed.
6 A. Okay.
7 Q. You indicated both here in your
8 testimony today and in the statement you gave
9 the police officers the day after the accident that
10 Tracy Rokes swore that he had a green light, and
11 then you said today you have had many conversations
12 with him in the past couple of years and that he
13 indicated in those conversations that he found out
14 later that he had a flashing red light. Can you
15 tell us, what did Mr. Rokes tell you that was the
16 basis of him finding out later that he had a
17 flashing red light?
18 A. I don't recall how he found out. I
19 would assume the police told him. I don't know.
20 Q. Well, if he told you initially that, you
21 know, he had a green light and he swore he had a
22 green light and he comes up later on and says, "I
23 found out it was a flashing light," did you ask
24 him, "How did you find out if you thought you
25 had a green light'?
1 A. I'm sue he told me either the police
2 told him or -- I would assume it would have been
3 the police. I don't know exactly who told him he
4 had a flashing red light, but I remember him when
5 he was telling me that he had a flashing red light,
6 he felt bad about the situation that the light was
8 Q. Did he tell you the basis for that
9 statement that he found out he had a flashing red
11 A. When he found out it was a flashing red
12 light, he felt much worse than when he thought he
13 had a green light.
14 MR. LIABO: I'd like the court reporter
15 to read back that answer.
16 THE WITNESS: Okay.
17 MR. LIABO: If I could, please. I'm
18 sorry for interrupting.
19 MR. HELLMAN: I'm conducting this
21 MR. LIABO: I know you are.
22 MR. HELLMAN: That's fine. I'll have
23 the court reporter read it back. I don't think you
24 were responsive.
25 Would you read it back, please, Dwight.
1 THE WITNESS: I'm trying to be.
2 MR. LIABO: Let the question be read
4 (The reporter read the last question.)
5 MR. LIABO: I just would like to go on
6 record --
7 MR. HELLMAN: You don't need to go on
8 record. He hasn't answered it.
9 MR. LIABO: -- Mr. Braun hasn't answered
10 the question as posed.
11 MR. HELLMAN: I think that's evident
12 here. Can you answer the question?
13 A. The basis is he told me the assumption
14 he felt worse about the light being flashing red
15 than a green light.
16 Q. First of all, he swears to you his light
17 was green. Then later on --
18 A. I didn't swear him in and take an oath.
19 It was a matter of conversation.
20 Q. Let me finish my question, please.
21 A. Okay.
22 Q. You have in your statement that he first
23 swore to you that the light was green.
24 A. He sad he had a green light or he swore
25 he had a green light, something like that. That's
1 what my statement says.
2 Q. Well, did he swear that he had a green
3 light or did he say he thought he had a green
4 light? Which was it?
5 A. My statement says he said that he had a
6 green light or that he swore he had a green light.
7 Q. All right. So then later on he come
8 and tells you that he had a flashing red light.
9 A. Yes.
10 Q. I want to know what basis, what did he
11 tell you, why is he now saying, oops, I didn't have
12 a green light but I had a flashing red light?
13 A. He was confiding in me as a friend that
14 he felt bad that he had found out he had a flashing
15 red light and he had ran a flashing red light.
16 Q. Well, did he tell you how he found out
17 instead of having a green light all of a sudden his
18 light is a flashing red light?
19 A. I would assume the police had told him
21 Q. I'm asking you what he told you.
22 A. I specifically don't remember who told
23 him he had a flashing red light, but the reason he
24 told me was because --
25 Q. Mr. Braun, you're not answering my
1 question either, and I'm trying to be polite to
2 you. Okay?
3 A. Okay.
4 Q. I'm gong to say it again. I want you
5 to tell me in the subsequent conversation with
6 Mr. Rokes where he told you that he had a flashing
7 red light or that he found out he had a flashing
8 red light rather than a green light, what did he
9 tell you at the time was the basis for him making
10 that determination or finding out that the light
11 was red and flashing red? I want to know what he
12 told you.
13 A. He told me that he had a flashing red
14 light, he had went through a flashing red light, so
15 I know that if you go through a flashing red light
16 that it's your responsibility, it's your fault to
17 run a flashing red light.
18 Q. Tell me --
19 A. So we never talked about it after that.
20 Q. I'm sorry, I don't mean to interrupt
22 A. That's okay.
23 Q. Tell me as best you can everything that
24 Mr. Rokes told you in this conversation where he
25 told you that he found out that the light was
1 flashing red rather than green. Tell me everything
2 he said in that conversation.
3 A. I don't remember the conversation,
4 exactly what we talked about.
5 Q. Tell me as best you can whatever was
7 A. Well, Mr. Rokes would have told me that
8 he had a flashing red light, and I would have known
9 that he felt bad about it, and I felt bad about it,
10 and we probably wouldn't have even talked about it
11 anymore. Me and Tracy, we don't -- you know, we
12 wouldn't have carried on a conversation.
13 Q. Did he say anything to you about how he
14 determined he had a flashing red light, rather than
15 a green light?
16 A. I'm pretty sure that he told me the
17 Police Department told him that, but I can't be
18 positive of that.
19 Q. Anything more than that?
20 A. Anything more as to how --
21 Q. Do you recall him saying anything more
22 than that?
23 A. You mean about how he found out the
24 light was flashing?
25 Q. Yes.
1 A. I don't recall anything about exactly
2 who told him.
3 Q. I just want to make sure that I get from
4 you everything that you can recall of your
5 conversation with Mr. Rokes when he told you he
6 found out the light was flashing red rather than
8 A. Okay.
9 Q. Have you told me everything?
10 A. You're asking me to tell you how
11 Mr. Rokes found out the light was flashing?
12 Q. No, no, no, I'm sorry. Have you ever
13 been deposed before?
14 A. No.
15 Q. Okay. This may be a little difficult.
16 A. I'm very nervous. I'm trying my best to
17 not get things --
18 Q. I appreciate that. Just try to listen
20 A. Okay, that's fine.
21 Q. I want to make sure I know that you tell
22 me here today everything that Tracy Rokes told you
23 on the day that he told you he found out the had a
24 flashing red light rather than a green light.
25 A. Okay. I don't exactly remember when he
1 told me he had a flashing red light. I don't know
2 if he found out that same day or the next day. I
3 don't know exactly when he found out. And about
4 the only thing I really remember was when he told
5 me that I probably said, 'Oh, darn," or swore
6 and --
7 Q. Do you remember anything else that
8 Mr. Rokes said to you other than he found out that
9 the light was flashing red?
10 A. Not when we had that conversation, no.
11 Q. Did he say to you again, "Gee, I could
12 have sworn the light was green," or something of
13 that nature?
14 A. Well, I remember my theory at that time
15 was maybe the light had changed --
16 Q. No, I'm asking exactly what he told
18 A. I don't remember anything else, no.
19 Q. Okay.
20 A. No, I really don't. I really don't.
21 Q. Okay. You mentioned with respect to
22 this intersection you apparently think the l
23 should not go to flashing when it does or something
24 of that nature.
25 A. I don't think it should ever flash.
1 Q. Okay. And you mentioned that you have
2 talked to or told a lot of people about the light
3 flashing and your opinion about it. Who have you
4 talked to?
5 A. I've called the Courier a couple of
7 Q. Have you talked to anyone in the
8 administration at the City of Cedar Falls.
9 A. I've asked Tracy Rokes before why that
10 light flashed.
12 Q. That's not my question again. You have
13 go to listen carefully.
14 A. No, I have not.
15 Q. Have you talked to anyone at the City of
16 Cedar Falls, the mayor, the councilmen, any public
17 officials or employees of the City of Cedar Falls
17 about your concern about that light?
18 A. I don't believe I have.
19 Q. Have you sent anything in writing to
20 anyone about your concerns about the lights?
21 A. No.
22 MR. HELLMAN: That's all I have. Thank
24 THE WITNESS: Okay.
25 MR. BEVEL: I don't have any questions.
1 FURTHER DIRECT EXAMINATION
2 BY MR. LIABO:
3 Q. Mr. Braun, when was it, to the best that
4 you can recall, that Tracy Rokes told you that the
5 light was flashing red at that intersection?
6 A. I truthfully can't tell you if it was
7 that same day or the next day. I really can't tell
9 Q. The same day as what?
10 A. When I first talked to him. It was a
11 Saturday morning.
12 Q. So you talked to him the day -- the
13 morning after the collision?
14 A. The morning after.
15 Q. And you can't recall whether he told you
16 that day or the next day that the lights were
17 flashing red?
18 A. I can't right now.
19 Q. All right.
20 A. That was two years ago.
21 Q. In any event, it was before you gave the
22 statement to the police on October 7th; correct?
23 A. I can't be sure of that, but I would
24 assume so. That was on a Monday when I gave the
25 statement, I believe.
1 Q. So you believe by that Monday you had
2 the information that Tracy Rokes had told you that
3 the light was flashing red; correct?
4 A. Correct.
5 Q. Did you tell the police in your
6 statement when you gave it that Tracy Rokes knew as
7 of the date of that statement that the light was
8 flashing red?
9 A. I don't believe they asked me. They
10 asked me what I put down here on the statement,
11 which was the day I talked to him.
12 Q. What you put down on the statement was
13 that Tracy Rokes told you that he thought it was
14 green; correct?
15 A. Yeah. That was -- correct.
16 Q. And you knew when you made that
17 statement if a person has a green light he has the
18 right-of-way and if he had a red flashing light he
19 doesn't have the right-of-way and it at fault in
20 causing the collision; correct?
21 MR. BEVEL: That's asking for a legal
22 opinion and asking a question to an ultimate fact.
23 A. I know that if you have a flashing red
24 light, you're supposed to stop at it.
25 Q. You wanted the police to believe when
1 you wrote down that statement that Tracy Rokes
2 thought he had a green light?
3 MR. BEVEL: Argumentative.
4 A. I told the police exactly what they
5 asked me, which is exactly what Tracy Rokes told
7 Q. You wanted to leave them with the
8 impression that Tracy Rokes had a green light?
9 A. What good would it do? They knew he
10 had a flashing red light. Me telling them he had a
11 green light doesn't change anything.
12 MR. LIABO: That's all.
13 MR. HELLMAN: I have no more questions.
14 Thank you, Mr. Braun.
15 THE WITNESS: You're welcome. Thank