See also: Tracy Allen Rokes CFPD Report
See also:
Tracy Allen Rokes Criminal Trial

TRACY ALLEN ROKES
CIVIL TRIAL DEPOSITION

 

Page 4

 

1

 

2

 

3

 

4 TRACY ALLEN ROKES,

 

5 being produced, sworn as hereinafter certified and

 

6 examined on behalf of the Plaintiffs and Defendants

 

7 Farrell, testified as follows:

 

8 DIRECT EXAMINATION

 

9 BY MR. LIABO:

 

10 Q. Would you tell us your name, address and

 

11 Social Security number, please?

 

12 A. Tracy Allen Rokes, 3007 Alexis

 

13 Boulevard, Cedar Falls, 50613

 

14 Q. What is your Social Security number?

 

15 A. xxx xx xxxx.

 

16 Q. What is your date of birth?

 

17 A. 7-13-61,

 

18 Q. How are you employed?

 

19 A. Self-employed.

 

20 Q. And what is the name of your business?

 

21 A. Rokes Building and Supply.

 

22 Q. Do you have any other businesses besides

 

23 Rokes Building and Supply?

 

24 A. Rokes Development.

 

25 Q. Any other business besides Rokes

 

 

 

Page 5

 

1 Development and Rokes Building and Supply?

 

2 A. No.

 

3 Q. Is Rokes Building and Supply a

 

4 corporation?

 

5 A. Yes.

 

6 Q. Is it properly named in this lawsuit?

 

7 A. Yes.

 

8 Q. Was Rokes Building and Supply the owner

 

9 of the vehicle that you were driving at the time of

 

10 this collision on October 4th, 1996?

 

11 A. Yes.

 

12 Q. What is the nature of the business of

 

13 Rokes Building and Supply?

 

14 A. Mostly construction.

 

15 Q. Is it general contractor or otherwise?

 

16 A. Some as a general contractor, some as a

 

17 subcontractor.

 

18 Q. All right. What is it that Rokes

 

19 Building and Supply does with respect to

 

20 contracting?

 

21 A. Metal studs, drywall, stucco work.

 

22 Q. How long has it been in business?

 

23 A. Over forty years. Maybe not named

 

24 exactly Rokes Building and Supply, but the same.

 

25 Q. Who founded it?

 

 

 

Page 6

 

1 A. My father.

 

2 Q. How many employees does Rokes Building

 

3 and Supply have?

 

4 A. It varies a lot. From 4 to 75.

 

5 Q. Depending on the job?

 

6 A. Correct.

 

7 Q. How many shareholders are there?

 

8 A. Just one.

 

9 Q. And who is the shareholder?

 

10 A. I am.

 

11 Q. How long have you been the sole

 

12 shareholder?

 

13 A. I believe since it was converted to

 

14 Rokes Building and Supply.

 

15 Q. When was that?

 

16 A. I honestly don't know. I would guess

 

17 early '90s.

 

18 Q. What is the average annual income of

 

19 Rokes Building and Supply?

 

20 MR. BEVEL: Objection. I'm not going to

 

21 let him answer that. I don't think you have laid a

 

22 sufficient prima facie case to get into that

 

23 information.

 

24 I'm directing you not to answer.

 

25 Q. Have you ever had the value of your

 

 

 

Page 7

 

1 shares in Rokes Building and Supply determined?

 

2 MR. BEVEL: I'm going to object. Same

 

3 objection and I'm going to direct you not to answer

 

4 that question.

 

5 MR. GALLAGHER: If I may make a

 

6 statement for the record, I think it's appropriate

 

7 that you go into information, since punitive

 

8 damages have been alleged, Henry. I agree with you

 

9 that that information can't be presented to the

 

10 jury until we've made a prima facie case, but I

 

11 think the only way we have to get this information

 

12 is through discovery.

 

13 MR. BEVEL: I understand your position.

 

14 MR. GALLAGHER: Sure. I just wanted to

 

15 make my position clear so when we take it to the

 

16 Court everybody will know.

 

17 MR. BEVEL: Okay.

 

18 MR. LIABO: And I understand the

 

19 objection previously lodged to our discovery, and

 

20 we reserve the right to convene this deposition

 

21 if you are continuing to instruct Mr. Rokes not to

 

22 answer.

 

23 Q. Does Rokes Building and Supply own any

 

24 real property?

 

25 A. No.

 

 

 

Page 8

 

1 Q. Has it ever owned any real property?

 

2 A. Yes.

 

3 Q. Tell me when the last time was that it

 

4 owned real property and what property it owned.

 

5 A. I'm not exactly sure on the dates. It

 

6 owned an office/warehouse type building out on

 

7 Airline Highway, which would have been sold about

 

8 1994.

 

9 Q. Okay. Since this collision occurred

 

10 October 4th, 1996, has Rokes Building and Supply

 

11 divested itself of any property other than perhaps

 

12 the sale of materials in the normal course of

 

13 business?

 

14 A. No.

 

15 Q. It has not divested itself of any real

 

16 estate?

 

17 A. Not that I'm aware of.

 

18 Q. It has not transferred any personal

 

19 property of value other than in the normal course

 

20 of business?

 

21 A. Correct.

 

22 Q. What is Rokes Development?

 

23 A. It's a development company that does

 

24 miscellaneous developments, such as apartments,

 

25 condos, those types of things.

 

 

 

Page 9

 

1 Q. Does it own apartments and condominiums?

 

2 A. At this time it owns no apartments. At

 

3 this time it owns some condos for sale.

 

4 Q. Is it in the business of purchasing

 

5 apartment complexes or condominium complexes?

 

6 A. No.

 

7 Q. Is it in the business of building

 

8 apartment complexes and condominium complexes?

 

9 A. Basically it is in the business of building

 

10 condos and selling condos.

 

11 Q. Who are the shareholders of Rokes

 

12 Development.

 

13 A. Me.

 

14 Q. What is the average annual gross income

 

15 of Rokes Development?

 

16 MR. BEVEL: Same objection. I direct

 

17 you not to answer that. I'd also note that that

 

18 corporation is not a party.

 

19 MR. LIABO: That's true. But the

 

20 shareholder is.

 

21 Q. Do you know what the net worth of Rokes

 

22 Development is?

 

23 MR. BEVEL: Same objection. I'm going

 

24 to direct you not to answer that question.

 

25 Q. Have you ever had your shares in Rokes

 

 

 

Page 10

 

1 Development -- the value of your shares in Rokes

 

2 Development assessed or determined?

 

3 MR. BEVEL: Same objection. I'm going

 

4 to direct you not to answer that question.

 

5 Q. Do you have any other source of income

 

6 besides Rokes Development and Rokes Building and

 

7 Supply?

 

8 A. No.

 

9 Q. Do you have any income from investments?

 

10 A. Occasionally.

 

11 Q. Have you submitted or prepared a

 

12 financial statement within the last -- well, since

 

13 this motor vehicle collision?

 

14 To Who?

 

15 Q. Anyone.

 

16 A. Yes.

 

17 Q. To whom have you submitted a financial

 

18 statement?

 

19 MR. BEVEL: Objection. I'll direct you

 

20 not to answer that question.

 

21 MR. LIABO: I think we're entitled to

 

22 know if he has submitted a financial statement to

 

23 somebody, Henry.

 

24 Q. How many financial statements have your

 

25 prepared since this collision occurred?

 

 

 

Page 11

 

1 A. I'm not sure.

 

2 Q. Is that something you have to do

 

3 regularly to obtain financing?

 

4 A. Occasionally, yes.

 

5 Q. Have you transferred any property

 

6 yourself personally since this collision occurred?

 

7 A. No, I don't believe so.

 

8 Q. Has Rokes Building and Supply

 

9 transferred any property to your wife within the

 

10 last four or five years?

 

11 A. Not that I'm aware of.

 

12 Q. Would there be any business reason for

 

13 Rokes Building and Supply to have transferred

 

14 property to your wife?

 

15 A. Would you ask that again? I'm sorry.

 

16 Q. Would there have been any business

 

17 reasons for Rokes Building and Supply to have

 

18 transferred property to your wife?

 

19 A. Accounting reasons, I suppose, possibly.

 

20 if any.

 

21 Q. Accounting reasons. What do you mean,

 

22 accounting reasons?

 

23 A. If my accountant would recommend that

 

24 that's what would happen, that's probably what we

 

25 would have done

 

 

 

Page 12

 

1 Q. Would your wife have paid for the

 

2 property if it was transferred to her?

 

3 A. I'm not sure.

 

4 Q. What is Rokes Building and Supply's

 

5 place of business? What the address of it?

 

6 A. 1830 West 18th Street, Cedar Falls.

 

7 Q. Is that the only -- describe that

 

8 property for me, if you would. How large is it?

 

9 Are there buildings on it?

 

10 A. It's basically a development that is

 

11 known as Pointe-West. The buildings are some

 

12 apartment buildings, some condo buildings.

 

13 Q. Is Pointe-West a development that Rokes

 

14 Development established?

 

15 A. Yes.

 

16 Q. And does Rokes Building and Supply own

 

17 units or own buildings in that development?

 

18 A. No.

 

19 Q. Has it ever owned buildings or units in

 

20 that development?

 

21 A. No, I don't believe so.

 

22 Q. Where is the real estate that Rokes

 

23 Building and Supply does own?

 

24 MR. BEVEL: I'm going to object. I

 

25 think that's a misstatement of the record.

 

 

 

Page 13

 

1 Q. Does Rokes Building and Supply own any

 

2 real estate?

 

3 A. I believe it owns some in Waterloo, yes.

 

4 Q. What real estate does it won in

 

5 Waterloo?

 

6 A. An area called The Pointe.

 

7 Q. And what is The Pointe?

 

8 A. A condo development.

 

9 Q. How long has it owned The Pointe?

 

10 A. I believe since '96.

 

11 Q. How did it acquire The Pointe?

 

12 A. Made a purchase agreement.

 

13 Q. With whom?

 

14 A. I believe it's called Crossroads

 

15 Estates?

 

16 Q. And what's Crossroads Estates?

 

17 A. I don't know.

 

18 Q. Has Rokes Building and Supply given that

 

19 property to your wife?

 

20 A. No.

 

21 Q. Did she buy that property from Rokes

 

22 Building and Supply?

 

23 A. No.

 

24 Q. Did Rokes Building and Supply transfer

 

25 that property to your wife.

 

 

 

Page 14

 

1 A. No.

 

2 Q. Is The Pointe also known as The Pointe

 

3 III?

 

4 A. No.

 

5 Q. What's The Pointe III?

 

6 A. There is not The Pointe III.

 

7 Q. So your testimony is that the real

 

8 estate -- and is this real estate part of the

 

9 Crossroads Estate development? I mean is that

 

10 where it is derived from?

 

11 A. I believe so, yes.

 

12 Q. Your testimony is that Rokes Building

 

13 and Supply still owns that property?

 

14 A. I believe so, yes.

 

15 Q. And Rokes Building and Supply would not

 

16 have transferred it to your wife after this

 

17 collision and after this lawsuit began in order to

 

18 get it out of the ownership of Rokes Building and

 

19 Supply?

 

20 A. No.

 

21 (Deposition Exhibit 28 marked for

 

22 identification, as requested.)

 

23 Q. Mr. Rokes, I'm going to hand you what

 

24 has been marked as Deposition Exhibit 28 and ask if

 

25 you recognize the signature on that document?

 

 

 

Page 15

 

1 A. Yes.

 

2 Q. That signature you placed there in your

 

3 capacity as President of Rokes Building and Supply.

 

4 Inc.; correct?

 

5 A. Yes.

 

6 Q. And the document to which you affixed

 

7 your signature was a warranty deed transferring

 

8 certain property from Rokes Building and Supply to

 

9 your wife; correct?

 

10 A. I'd have to look at it. Yes.

 

11 Q. The property that Rokes Building and

 

12 Supply, Inc., transferred to your wife is the

 

13 Crossroads Development condominium project that we

 

14 just talked about; isn't it?

 

15 A. Yes.

 

16 Q. What is the date of the deed?

 

17 A. July, 1997.

 

18 Q. After this lawsuit was filed; correct?

 

19 A. Yes.

 

20 Q. What did your wife pay Rokes Building

 

21 and Supply, Inc. for that property?

 

22 A. It says one dollar.

 

23 Q. One dollar. Did you transfer that

 

24 property on behalf of Rokes Building and Supply,

 

25 Inc. in order to avoid having to satisfy a judgment

 

 

 

Page 16

 

1 in this lawsuit?

 

2 A. No. That property has no value.

 

3 Q. Has it ever been assessed?

 

4 A. You mean taxwise?

 

5 Q. For tax purposes. Does it have an

 

6 assessed value?

 

7 A. I'm sure it does, yes.

 

8 Q. Do you know what that assessed value is?

 

9 A. No, I don't.

 

10 Q. Do you know how much Rokes Building and

 

11 Supply paid for that property initially?

 

12 A. Not -- I don't recall exactly, no.

 

13 Q. When you say that it has no value, you

 

14 mean that it has -- that a dollar would represent

 

15 the fair market value of that property?

 

16 A. When you consider the loan against it

 

17 that's probably true, yes.

 

18 Q. But you're not suggesting that it has no

 

19 market value?

 

20 A. It has little or no positive value once

 

21 the debt is considered.

 

22 Q. All right. But it has a market value, I

 

23 mean, it's worth something to sell on the open

 

24 market; correct?

 

25 A. As any land, yes.

 

 

 

Page 17

 

1 Q. You're not testifying that it's a

 

2 nuclear waste site or a toxic dump, are you? I

 

3 mean, it's a valuable piece of property, is it not?

 

4 A. Would you restate that? I'm sorry.

 

5 Q. It's a valuable piece of property, is it

 

6 not?

 

7 A. Not at this point, it's not.

 

8 Q. Because of the debt?

 

9 A. Yes.

 

10 Q. But apart from the debt that's against

 

11 it, it has a market value; correct?

 

12 A. Right.

 

13 Q. Did your wife pay the market value for

 

14 that property?

 

15 A. I doubt it.

 

16 Q. Did your wife assume the debt on that

 

17 property?

 

18 A. No.

 

19 Q. Does Rokes Building and Supply, Inc.

 

20 hold the debt to that property?

 

21 A. Yes. I believe also there has been --

 

22 this was wrongly transferred and has been

 

23 transferred back, but I may be mistaken, since

 

24 this.

 

25 Q. Oh. So now you recall a transfer of

 

 

 

Page 18

 

1 this property? I mean, not that I've shown you the

 

2 deed, you remember the transfer?

 

3 A. I don't remember this transfer, no.

 

4 Q. All right. But you have some

 

5 recollection of a transfer back from your wife to

 

6 Rokes Building and Supply?

 

7 A. The only recollection I would have is we

 

8 sold the condo there and when it became time to

 

9 close, we then discovered it was in the wrong name

 

10 and was subsequently changed, I believe. You'd

 

11 have to ask Mr. Galles.

 

12 Q. Do you know the reason for the transfer

 

13 of this property to your wife?

 

14 A. No.

 

15 Q. Rokes Building and Supply did sell a

 

16 condominium in that area, in that development?

 

17 A. Correct.

 

18 Q. What was that sale?

 

19 A. I believe there was one mid-October of

 

20 this year.

 

21 Q. Just a few weeks ago?

 

22 A. Correct.

 

23 Q. I thought I asked you if Rokes Building

 

24 and Supply had transferred any property since this

 

25 collision? Do you recall my question to that

 

 

 

Page 19

 

1 effect?

 

2 A. No.

 

3 Q. So now you recall a transfer of property

 

4 just a few weeks ago?

 

5 A. Yes.

 

6 Q. Do you recall any other transfers of

 

7 property since this collision occurred?

 

8 A. Not to my recollection, no.

 

9 Q. If one occurs to you during the course

 

10 of this deposition, will you let me know?

 

11 A. Yes.

 

12 Q. What have you done to prepare for this

 

13 deposition?

 

14 A. Looked at the information I had.

 

15 Q. What information did you have?

 

16 A. Information from going through the

 

17 trial?

 

18 Q. Did you look at the trial transcript?

 

19 A. I believe so, yes.

 

20 Q. The entirety of it or just your

 

21 testimony?

 

22 A. No, not the entirety for sure. I

 

23 glanced over my testimony.

 

24 Q. Did you look at any statements that were

 

25 given to the police?

 

 

 

Page 20

 

1 A. I believe I looked at mine, yes.

 

2 Q. Did you review any depositions that have

 

3 been taken in this case?

 

4 A. No.

 

5 Q. Did you review any photos?

 

6 A. Other than these photos I saw today, no.

 

7 Q. Okay. Have you reviewed any other

 

8 material?

 

9 A. No, I don't believe so.

 

10 Q. Have you discussed this matter with

 

11 anyone who has been retained as an expert in this

 

12 case, other than your lawyer?

 

13 A. No.

 

14 Q. I'm talking about an expert witness

 

15 like your toxicologist, Mr. Jensen. Have you

 

16 talked to Mr. Jensen recently?

 

17 A. No since the last day of the trial in

 

18 May, I believe it was.

 

19 Q. Have you talked to anyone about this

 

20 case to prepare yourself for this deposition other

 

21 than your attorney?

 

22 A. No.

 

23 Q. Prior to the collision of October 4th

 

24 1996, what were your drinking habits?

 

25 A. Are talking alcoholic beverages?

 

 

 

Page 21

 

1 Q. Yes. By the way, before we go on with

 

2 that question, when I say drinking habits and an

 

3 using that term, you understood what I meant,

 

4 didn't you?

 

5 MR. BEVEL: I'm going to object. That's

 

6 argumentative.

 

7 Q. Did you understand what I meant?

 

8 A. No. That's why I asked the question.

 

9 Q. You thought maybe I might have been

 

10 talking about water or milk or pop?

 

11 A. I wanted to be sure. That's why I asked

 

12 the question.

 

13 Q. When you use the term "drinking" in

 

14 normal parlance. "I had a lot to drink." or "I was

 

15 drinking," or "We went someplace for a drink," when

 

16 you normally use that phrase, what do you mean?

 

17 What are you referring to?

 

18 A. Typically, it would be probably

 

19 alcoholic beverages, yes.

 

20 Q. Do you recall during the trial one of

 

21 the officers testified that you told him that you'd

 

22 had too much to drink?

 

23 A. Say that again. I'm sorry.

 

24 Q. MR. LIABO: Why don't your read that

 

25 back.

 

 

 

Page 22

 

1 (The reporter read the last question.)

 

2 A. Yes, Officer Wilson said that, yes.

 

3 Q. All right. If you had used that phrase

 

4 "too much to drink," would you have been referring

 

5 to alcoholic beverages?

 

6 A. The phrase was, "I've had one too many."

 

7 Q. All right. Well, when you said one too

 

8 many, were you referring to alcoholic beverages?

 

9 A. No. I was referring to stitches.

 

10 Q. You had one too many stitches?

 

11 A. Yes, Dr. --

 

12 MR. BEVEL: Wait for a question.

 

13 Q. You're telling us that you told Officer

 

14 Wilson that you had had one too many stitches?

 

15 A. What I said was when Dr. Robitaille was

 

16 in the emergency room and as he was finishing up

 

17 giving me stitches, he told me that I did a good job on

 

18 getting the stitches. At that particular moment I

 

19 already said, "Well, I've already had one too

 

20 many," which was the time that Mr. Wilson I believe

 

21 might have walked in.

 

22 Q. All right. In any event, and we can

 

23 maybe get back to this in more detail in a minute,

 

24 but you recall the testimony at trial was that you

 

25 said, "I had had too much to drink?"

 

 

 

Page 23

 

1 A. I believe it was "one too many."

 

2 Q. If you did use the phrase, and I'm not

 

3 asking you to admit that you used it, but if you

 

4 did use the phrase "too much to drink," would you

 

5 have been referring to drinking alcohol?

 

6 A. I didn't use that phrase.

 

7 Q. Well, if you do use it, if you did,

 

8 would you have been referring to alcohol?

 

9 A. If you said -- ask it one more time,

 

10 I'm sorry.

 

11 Q. If you used the phrase, "I had too much

 

12 to drink," would you mean it in the sense that I'd

 

13 had too much alcohol to drink?

 

14 A. No, not necessarily.

 

15 Q. You might say,"I might have had too

 

16 much water to drink," "I might have had too much

 

17 milk t drink," "I might have had too much Pepsi to

 

18 drink?"

 

19 A. Yes.

 

20 Q. You've used that phrase in that sense

 

21 often?

 

22 A. I did today. I said, "I've had too much

 

23 coffee to drink," I needed to use the bathroom.

 

24 Q. And would you use that in explaining

 

25 your conduct in a car crash?

 

 

 

Page 24

 

1 A. No.

 

2 Q. Let's get back to your drinking habits a

 

3 minute. How often would you consume alcoholic

 

4 beverages prior to the collision?

 

5 A Probably two times a month.

 

6 Q. All right. Was this day at Brooster's

 

7 or this evening at Brooster's before the accident

 

8 occurred the first time that month, October of

 

9 1995, that you had had any alcohol to drink?

 

10 A. The first time that month, yes.

 

11 Q. By the way, under what circumstances

 

12 would you drink? I mean, what would prompt you on

 

13 those two occasions a month to drink?

 

14 A. Socially. Friends.

 

15 Q. Did you ever drink at home, just have a

 

16 beer in the evening?

 

17 A. Very, very rarely.

 

18 Q. You limited your drinking mostly to the

 

19 weekend?

 

20 A. Correct.

 

21 Q. And typically how much would you drink

 

22 on a weekend when you did drink?

 

23 A. Three or four beers.

 

24 Q. Did you ever drink more than that?

 

25 A. I'm sure there's times I have, yes.

 

 

 

Page 25

 

1 Q. How frequently?

 

2 A. I don't know.

 

3 Q. What's your height and weight?

 

4 A. five-eleven, 250.

 

5 Q. Has your weight changed since October

 

6 4th, 1996?

 

7 A. It probably went up a little, yes.

 

8 Q. How much was it then? Or '96, I meant.

 

9 How much has it gone up since October 4th, 1996?

 

10 A. I would say I vary ten or fifteen

 

11 pounds.

 

12 Q. Did you ever get drunk prior to October

 

13 4th, 1996?

 

14 A. Yes.

 

15 Q. How frequently would you get drunk prior

 

16 to October 4th, 1996?

 

17 A. Rarely.

 

18 Q. When was the last time prior to October

 

19 4th, 1996, that you got drunk?

 

20 A. I have no idea.

 

21 Q. Who were you with?

 

22 A. I have no idea.

 

23 Q. How much did it take to get you drunk?

 

24 A. I don't know.

 

25 Q. How often did Delonna drink prior to

 

 

 

Page 26

 

1 October 4th, 1996?

 

2 A. Probably the same as I.

 

3 Q. Did she get drunk fro time to time?

 

4 A. Yes.

 

5 Q. How frequently?

 

6 A. I would say about the same as I

 

7 did.

 

8 Q. Would it be generally the case that you

 

9 both got drunk together, if one would get drunk,

 

10 the other one would too?

 

11 A. No.

 

12 Q. Sometime one got drunk and the other

 

13 didn't?

 

14 A. Yes, I suppose.

 

15 Q. Did it take as much for Delonna to get

 

16 drunk as you?

 

17 A. Obviously not. She doesn't weigh as

 

18 much as I do.

 

19 Q. Did you ever get drunk around either

 

20 Scott Braun or Tracy Braun, B-r-a-u-n?

 

21 A. On occasion.

 

22 Q. How frequently?

 

23 A. I don't know.

 

24 Q. If you were drunk or if you got drunk

 

25 with others, would the Brauns be among the group

 

 

 

Page 27

 

1 that you'd get drunk with?

 

2 A. We did many things together, yes.

 

3 Q. Did you ever drive a motor vehicle while

 

4 under the influence?

 

5 A. Not that I'm aware of.

 

6 Q. On those occasions when you were drunk

 

7 did you ever drive your car?

 

8 A. No.

 

9 Q. How would you get home?

 

10 A. If someone else were going, I would ride

 

11 with them.

 

12 Q. Would three or four beers cause you to

 

13 feel -- would you feel the effect of three or four

 

14 beers?

 

15 A. I guess it's probably hard to say.

 

16 Q. Sometimes you would, sometimes you

 

17 wouldn't?

 

18 A. Yeah. After learning through this

 

19 process, there's many variables.

 

20 Q. Well, would three or four beers be

 

21 sufficient to alter your mood or to affect you in

 

22 some way?

 

23 A. I don't believe so.

 

24 Q. is could be three or four beers or three

 

25 to four glasses of water so far as its effect on

 

 

 

Page 28

 

1 your?

 

2 A. No,I didn't say that.

 

3 Q. What would be the difference in terms of

 

4 effects on you between drinking three or four

 

5 beers and drinking three or four glasses of water?

 

6 A. Obviously, beer has alcohol in it and

 

7 water doesn't. I don't know what -- I can't answer

 

8 that. I don't know what the effects would be.

 

9 Q. Would it make you feel different

 

10 drinking three or four beers as opposed to three or

 

11 four glasses of water?

 

12 A. I don't believe so.

 

13 Q. So it would be the same? In other

 

14 words, you could drink three or four glasses of

 

15 water or three or four beers as opposed to three to

 

16 four glasses of water?

 

17 A. There would be many, many variables.

 

18 Q. What does that mean? Sometimes you'd

 

19 feel the effects and sometimes you wouldn't?

 

20 A. Time.

 

21 Q. Time.

 

22 A. Frequency.

 

23 Q. In other words, how long you drank those

 

24 beers or how long it took you to drink them?

 

25 A. Correct.

 

 

 

Page 29

 

1 Q. Do you have any sense of how long it

 

2 takes you -- how frequently or how quickly you'd

 

3 have to drink those three or four beers before you

 

4 would feel their effects?

 

5 A. No, I don't know.

 

6 Q. Do you know when to quit?

 

7 A. Yes.

 

8 Q. When do you have to quit? In you own

 

9 mind, when do you have the sense of when to quit

 

10 drinking?

 

11 A. There again, it would vary on what you

 

12 were doing.

 

13 Q. So you can't give me a rule of thumb

 

14 three or four beers over the course of "X" amount

 

15 of time and I know I have to quit?

 

16 A. No.

 

17 Q. Is there a way you feel or do you notice

 

18 problems walking or holing thins or your mood or

 

19 the way you speak, anything else that tells you

 

20 that you need to quit?

 

21 A. No, I don't know.

 

22 Q. Was Brooster's a place that you

 

23 frequented?

 

24 A. Occasionally.

 

25 Q. How frequently would you go to

 

 

 

Page 30

 

1 Brooster's?

 

2 A. Three or four times a year.

 

3 Q. Usually with the same group, or not?

 

4 A. Or at least probably some part thereof,

 

5 yes.

 

6 Q. Who would be among the group that you

 

7 would regularly go to Brooster's with?

 

8 A. Some of the people that were there that

 

9 night.

 

10 Q. Can you give me some names?

 

11 A. Tracey and Scott Braun?

 

12 Q. Anybody else? Who else?

 

13 A. Connie and Craig Young. Bill and Lisa

 

14 Bradford.

 

15 Q. You regard those people as among your

 

16 closer friends?

 

17 A. Yes.

 

18 Q. Now as I understand it, on October 4,

 

19 1996, arrangements had been made for you to meet

 

20 these folks at Brooster's?

 

21 A. Yes.

 

22 Q. You'd been working that day?

 

23 A. Correct.

 

24 Q. You'd been at a job in Mason City, is

 

25 that right?

 

 

 

Page 31

 

1 A. Correct.

 

2 Q. Had you spent the night in Mason City?

 

3 A. Not the night before, no.

 

4 Q. Where had you been the night before?

 

5 A. Cedar Falls.

 

6 Q. So you drove to Mason City from

 

7 Cedar Falls?

 

8 A. Are you talking on October 4, 1996?

 

9 Q. Yes.

 

10 A. Yes.

 

11 Q. All right. What time had your day begun

 

12 on October 4th, 1996?

 

13 A. I would guess 6:30 a.m.

 

14 Q. Is that when you woke up or is that when

 

15 you left the home?

 

16 A. I'm assuming that's when I got up, yes.

 

17 Q. Is that typically when you get up?

 

18 A. Yes.

 

19 Q. And how long does it take you to get

 

20 over to Mason City from Cedar Falls?

 

21 A. About an hour and a half.

 

22 Q. And did you put in a full day in

 

23 Mason City?

 

24 A. No.

 

25 Q. All right. How long were you in

 

 

 

Page 32

 

1 Mason City?

 

2 A. I believe about three hours.

 

3 Q. What time did you leave?

 

4 A. I left to go to Mason City somewhere in

 

5 the 11:30 range.

 

6 Q. So you went to the office here first in

 

7 Cedar Falls first?

 

8 A. I went and checked on some other jobs,

 

9 yes.

 

10 Q. What time did you leave Mason City?

 

11 A. I'm not exactly sure, but around 3:30.

 

12 Q. And then did you come straight back to

 

13 Cedar Falls?

 

14 A. I believe stopped at a Quick Trip, I

 

15 guess.

 

16 Q. And what did you do at the Quick Trip?

 

17 A. Used the bathroom and got a pop.

 

18 Q. Then you returned to Cedar Falls?

 

19 A. Correct.

 

20 Q. What time did you arrive back at

 

21 Cedar Falls?

 

22 A. Sometime around 5 p.m.

 

23 Q. Did you eat along the way?

 

24 A. I ate in Mason City, yes.

 

25 Q. Was that -- what was it, a cheeseburger

 

 

 

Page 33

 

1 or hamburger or something like that?

 

2 A. I believe it was a McDonald's quarter

 

3 pounder with cheese meal, yes.

 

4 Q. All right. Then did you go home at

 

5 around 5 o'clock?

 

6 A. Yes.

 

7 Q. And you had some french fries, is that

 

8 correct?

 

9 A. Later on, yes.

 

10 Q. About what time?

 

11 A. Somewhere around 7.

 

12 Q. Was the only thing you had to eat for

 

13 supper the french fries?

 

14 A. Yes. It was probably the equivalent of

 

15 two orders of McDonald's french fries.

 

16 Q. Did you have anything to eat the rest of

 

17 the evening?

 

18 A. No, not that I recall.

 

19 Q. Okay. What time did you leave for

 

20 Brooster's?

 

21 A. Somewhere around 7:45.

 

22 Q. Prior to leaving for Brooster's, had you

 

23 had anything to drink of an alcoholic nature?

 

24 A. No.

 

25 Q. Did you drive?

 

 

 

Page 34

 

1 A. Yes.

 

2 Q. And Delonna went with you?

 

3 A. Correct.

 

4 Q. What dime did you arrive at Brooster's?

 

5 A. Somewhere around 8.

 

6 Q. What was the first thing you had

 

7 to drink at Brooster's?

 

8 A. A bottle of beer?

 

9 Q. Twelve-ounces?

 

10 A. Yes.

 

11 Q. And was that pretty much right away when

 

12 you arrived?

 

13 A. Yes.

 

14 Q. What kind of beer were you drinking?

 

15 A. But Light, I believe.

 

16 Q. All right. Brooster's is divided into

 

17 two parts, of the building is divided into two

 

18 parts?

 

19 A. Correct.

 

20 Q. One part is Broosters, the other part

 

21 is known as Celebrations?

 

22 A. Yes.

 

23 Q. What's the reason for that? Is it owned

 

24 by two different people or do they just have two

 

25 different arrangements there or what?

 

 

 

Page 35

 

1 MR. GALLAGHER: One is classical, maybe.

 

2 Q. Yeah, one has chamber music, the other

 

3 country and western?

 

4 A. I believe that Brooster's had opened

 

5 years before Celebration's was added on.

 

6 Q. An add-on?

 

7 A. I believe it was actually Nino's prior

 

8 to that.

 

9 Q. Okay. In any event, the crowd can flow

 

10 from one end to the other?

 

11 A. Yeah.

 

12 Q. While you were on the Brooster's side,

 

13 how many beers did you have?

 

14 A. Two, I believe.

 

15 Q. And you were talking to some people?

 

16 A. Yes. I had had numerous conversations

 

17 with people.

 

18 Q. How long were you on the Brooster's

 

19 side?

 

20 A. I would guess somewhere in the (;45

 

21 range, until then.

 

22 Q. Hour and 45 minutes or so?

 

23 A. I would suppose that's true, yeah.

 

24 Q. And your testimony is you had two beers

 

25 during that entire time?

 

 

 

Page 36

 

1 A. Correct.

 

2 Q. That's all?

 

3 A. Correct.

 

4 Q. And that's all you had to drink? You

 

5 didn't have mixed drinks or anything else of an

 

6 alcoholic nature?

 

7 A. No.

 

8 Q. Now are you certain that you only had

 

9 two beers?

 

10 A. Yes.

 

11 Q. Who was with you on the Brooster's --

 

12 when you were in the Brooster's side?

 

13 A. Throughout that time?

 

14 Q. Yeah. Just give me some names.

 

15 A. Initially when I walked in, I talked to

 

16 a man by the name of Dave Claus, then went back and

 

17 met those people we named earlier, and saw other

 

18 people and had a conversation.

 

19 Q. Did you buy those two beers yourself or

 

20 was somebody buying them for you?

 

21 A. I believe I bought them, yes.

 

22 Q. Was there anything else going on there?

 

23 Was there pool or darts or any activities?

 

24 A. I believe there was a baseball playoff

 

25 game, yes.

 

 

 

Page 37

 

1 Q. On television?

 

2 A. On TV, yes.

 

3 Q. Were you watching that?

 

4 A. We were. We were standing very near

 

5 that TV.

 

6 Q. Okay. What time did you go over to

 

7 Celebration's? About (:45?

 

8 A. Yes.

 

9 Q. Okay. And was there a band over there?

 

10 Is that what was going on?

 

11 A. Correct.

 

12 Q. And you had more to drink there?

 

13 A. Yes.

 

14 Q. How much did you have to drink there?

 

15 A. Two beers.

 

16 Q. That's all?

 

17 A. A. Yes.

 

18 Q. And you're certain of that?

 

19 A. Yes.

 

20 Q. How long were you on the Celebration's

 

21 side?

 

22 A. Until approximately 10:45.

 

23 Q. Okay. And then you left?

 

24 A. Correct.

 

25 Q. At the time that you left, your

 

 

 

Page 38

 

1 testimony is that you had four beers?

 

2 A. Yes.

 

3 Q. Total?

 

4 A. Yes.

 

5 Q. And you're certain of that?

 

6 A. Yes.

 

7 Q. Were you feeling the effects of those

 

8 four beers when you left Brooster's or

 

9 Celebration's?

 

10 A. No.

 

11 Q. Was Delonna drinking?

 

12 A. Yes.

 

13 Q. Was she intoxicated?

 

14 A. I really don't know.

 

15 Q. You're aware that Tracey Braun thought

 

16 she was?

 

17 A. I haven't read that, no.

 

18 Q. Well, if Tracey Braun thought Delonna was

 

19 drunk, would you disagree with Tracey?

 

20 A. No, I wouldn't have any reason to

 

21 disagree.

 

22 Q. When you left Brooster's you drove your

 

23 vehicle, correct, or the vehicle owned by Rokes

 

24 Building and Supply?

 

25 A. Yes.

 

 

 

Page 39

 

1 Q. And can you describe that vehicle for

 

2 me?

 

3 A. A Toyota 4-Runner.

 

4 Q. What year?

 

5 A. I believe '96.

 

6 Q. What route did you take from Brooster's?

 

7 A. The same route we took coming there.

 

8 Q. Tell me what that route was.

 

9 A. Basically, down Greenhill Road to Hudson

 

10 Road and continuing on to home.

 

11 Q. A familiar road?

 

12 A. Very.

 

13 Q. How was traffic as you drove along

 

14 Greenhill road?

 

15 A. Very few cars.

 

16 Q. Lighting?

 

17 A. You mean streetlights?

 

18 Q. Yeah, streetlights. Is it a well-lit

 

19 street, roadway?

 

20 A. I would say no, not really.

 

21 Q. How is the visibility along Greenhill

 

22 Road.

 

23 A. Throughout, or which particular part?

 

24 Q. Just throughout. How would you describe

 

25 it?

 

 

 

Page 40

 

1 A. Basically, open fields, I believe, on

 

2 either side. It's a four-lane road.

 

3 Q. Where did you get onto Greenhill Road?

 

4 A. I don't remember the particular street

 

5 name, but it's the street that runs kind of behind

 

6 Brooster's that enters onto Greenhill Road.

 

7 Q. How far from the intersection of

 

8 Greenhill Road and Highway 56 was the point where

 

9 you entered Greenhill Road?

 

10 A. It's Highway 58, I believe.

 

11 Q. Excuse me Highway 58.

 

12 A. I'm sorry, say that one more time.

 

13 Q. What's the distance between the point at

 

14 which you entered Greenhill Road and Highway 58?

 

15 A. I believe it's somewhere around three

 

16 miles.

 

17 Q. At some point along Greenhill Road as

 

18 you're traveling toward Highway 58, the direction

 

19 you were traveling, the intersection where this

 

20 collision occurred comes into view; correct?

 

21 A. Yes.

 

22 Q. How far from the intersection where this

 

23 collision occurred does it come into view as you're

 

24 traveling along 58?

 

25 A. Somewhere near the intersection of South

 

 

 

Page 41

 

1 Main and Greenhill.

 

2 Q. How far away is that?

 

3 A. If I remember right, it's about 1858

 

4 feet.

 

5 Q. And you know that because prior to your

 

6 criminal trial you took a wheel and went out and

 

7 measured it?

 

8 A. Correct.

 

9 Q. From that distance you can see the

 

10 intersection of Greenhill Road and Highway 58, is

 

11 that correct?

 

12 A. Yes. You'd have to turn your head

 

13 slightly. Yes.

 

14 Q. Well, turn your head slightly. If you

 

15 were on Greenhill Road, you have turn your head?

 

16 A. Greenhill Road turns slightly, veers off

 

17 to the south, yes.

 

18 Q. Can you see the stoplights from that

 

19 intersection?

 

20 A. Yes.

 

21 Q. Tell me what you were doing as you were

 

22 traveling toward the intersection of Greenhill Road

 

23 and Highway 58 on the night of October 4th, 1996.

 

24 A. Consoling my wife.

 

25 Q. Because of the news that her father --

 

 

 

Page 42

 

1 or her mother, rather, would need angioplasty?

 

2 A. Yes.

 

3 Q. Was she emotional?

 

4 A. Very.

 

5 Q. Does alcohol make her more emotional?

 

6 A. Not that I'm aware of.

 

7 Q. Well, do you know one way or the other

 

8 whether alcohol makes her emotional?

 

9 A. No.

 

10 Q. Did you ever as you drove along

 

11 Greenhill Road toward Highway 58, did you ever

 

12 notice the stoplights of the lights controlling

 

13 traffic traveling in your direction at the

 

14 intersection of Greenhill Road and Highway 58?

 

15 A. Yes.

 

16 Q. When did you notice them? Where were

 

17 you when you noticed them?

 

18 A. I don't know.

 

19 Q. Well, then in relation to the crash?

 

20 A. What do you mean?

 

21 Q. Well, did you notice them well in

 

22 advance of the crash; did you notice them just

 

23 right at the time of the crash; did you notice them

 

24 just before the crash? When?

 

25 A. It would have been some distance back.

 

 

 

Page 43

 

1 Q. How far back?

 

2 A. I don't know.

 

3 Q. What did you observe with respect to the

 

4 lights at that intersection?

 

5 A. I saw a red light go off.

 

6 Q. A red light go off.

 

7 A. Yes.

 

8 Q. And what happened when it went off?

 

9 A. I don't know. I turned my hear. I was

 

10 talking to my wife.

 

11 Q. so this was some distance back from the

 

12 intersection itself?

 

13 A. Yes.

 

14 Q. So you turned your head -- you saw the

 

15 red light go off, you turned your head to the right

 

16 toward your wife and kept driving?

 

17 A. Yes.

 

18 Q. Did you have both hands on the wheel or

 

19 were you also -- did you also -- were you also

 

20 holding you wife's hand?

 

21 A. I believe I had my left hand on the

 

22 wheel and had my other hand on my wife.

 

23 Q. You can't tell me as you sit here today

 

24 how far you were from the intersection when you saw

 

25 that red light go off?

 

 

 

Page 44

 

1 A. Not in feet. Not in any distance, no.

 

2 Q. Okay. Did you see any other traffic in

 

3 the area when you saw that red light go off?

 

4 A. No, not that I recall.

 

5 Q. Do you know how fast you were going when

 

6 you saw that red light go off?

 

7 A. I think I was going 45.

 

8 Q. And what's the basis for that?

 

9 A. I was traveling the speed limit most of

 

10 the way home.

 

11 Q. How do you know that? Did you look at

 

12 the speedometer?

 

13 A. I looked at the speedometer as I was

 

14 traveling, yes.

 

15 Q. The speed limit is 45?

 

16 A. Correct.

 

17 Q. What lane were you in when you saw that

 

18 red light go off?

 

19 A. I was in the right lane.

 

20 Q. Greenhill is a four-lane road?

 

21 A. Correct.

 

22 Q. And when you say the right line, you

 

23 mean the outside lane for the two --

 

24 A. The furthest to the north.

 

25 Q. The furthest to the north. You were

 

 

 

Page 45

 

1 traveling west?

 

2 A. Yes.

 

3 Q. Okay. did you ever see the red light go

 

4 back on?

 

5 A. No.

 

6 Q. Did you ever see a green light?

 

7 A. No.

 

8 Q. What's the next thing you remember about

 

9 the roadway after you saw the red light go off?

 

10 A. I would say being in the intersection.

 

11 Q. Do you have any sense of how much time

 

12 elapsed between the time you saw the red light go

 

13 off and you were in the intersection?

 

14 A. No.

 

15 Q. When you found yourself in the

 

16 intersection -- well, were you looking towards your

 

17 wife that entire time? In other words, between the

 

18 time you saw the red light go off and the time you

 

19 became aware that you were in the intersection,

 

20 were you looking at your wife the whole time?

 

21 A. I would say, so.

 

22 Q. How did you happen to become aware then

 

23 that you were in the intersection?

 

24 A. As I looked up.

 

25 Q. You looked up and all of a sudden you

 

 

 

Page 46

 

1 were in the intersection?

 

2 A. Right.

 

3 Q. Did you see any traffic, any cars when

 

4 you looked up?

 

5 A. I believe I first looked to the left. I

 

6 didn't see any.

 

7 Q. Okay. And then when you returned you

 

8 eyes forward, what did you see?

 

9 A. Prior to impact I saw something coming

 

10 from the right and turned my vehicle to the left.

 

11 Q. But you were' able to distinguish its

 

12 features?

 

13 A. Not at all.

 

14 Q. You entered the intersection, you looked

 

15 up, turned to your left, turned your head back

 

16 towards the front and noticed this object coming at

 

17 you from the right?

 

18 A. Correct.

 

19 Q. So you turned your vehicle to the left,

 

20 and what happened next?

 

21 A. The impact.

 

22 Q. Prior to the impact did you slow down or

 

23 brake your car at all?

 

24 A. I think I went to put on my brakes. I

 

25 do not know whether I ever had my brakes on.

 

 

 

Page 47

 

1 Q. Okay. So as far as you know, you

 

2 collided with that other vehicle at 45 miles an

 

3 hour?

 

4 A. As far as I know, yes.

 

5 Q. Tell me about the collision itself.

 

6 What do you recall?

 

7 A. I remember holding the wheel and going

 

8 forward and the air bag going off, or what I later

 

9 knew as the air bag going off, and then nothing

 

10 until I was -- until sometime after I got out of

 

11 the vehicle.

 

12 Q. Do you remember getting out of the

 

13 vehicle?

 

14 A. Yes.

 

15 Q. Is it your testimony that you have no

 

16 memory of a certain -- for a certain period of time

 

17 following the air bag going off?

 

18 A. I'm not exactly sure whether I did or

 

19 didn't.

 

20 Q. Do you claim that you lost

 

21 consciousness?

 

22 A. No, I've never claimed that.

 

23 Q. All right. Do you claim that you hit

 

24 your head on anything?

 

25 A. Obviously I did, yes.

 

 

 

Page 48

 

1 Q. All right. What part of your head

 

2 struck what?

 

3 A. I don't know what it struck exactly. I

 

4 assume it was the air bag. I know I got stitches

 

5 in later above my eye.

 

6 Q. Were those cuts caused by the air bag or

 

7 something else, if you know?

 

8 A. I really don't know.

 

9 Q. Okay. Do you remember where your car

 

10 came to rest?

 

11 A. Yes.

 

12 Q. Where did it come to rest?

 

13 A. It would have been on the south side of

 

14 Greenhill west of the intersection pointing to the

 

15 north, the front.

 

16 Q. Do you recall where the other vehicle

 

17 came to rest?

 

18 A. I do not know exactly at that time, but

 

19 it was over on the west side of the intersection

 

20 south of the intersection.

 

21 Q. Let me show you what was previously

 

22 marked as Deposition Exhibit 1. It's an aerial

 

23 photo of the intersection where this collision

 

24 occurred with the vehicles added. The photograph

 

25 was taken after the collision itself, but the

 

 

 

Page 49

 

1 vehicles involved in the collision have been

 

2 added.

 

3 Can you tell me whether or not

 

4 Deposition Exhibit 1 accurately depicts the

 

5 positions of your vehicle as it approached and then

 

6 entered the intersection?

 

7 A. As near as I can tell, yes.

 

8 Q. Does Exhibit 1 accurately depict the

 

9 position of the vehicles at the point where they

 

10 collided?

 

11 A. I believe so, yes.

 

12 Q. And I realize that you're not very clear

 

13 about this, but as far as you can recall, does

 

14 Exhibit 1 accurately depict the path of the Farrell

 

15 vehicle prior to the collision?

 

16 A. I really don't know.

 

17 Q. Okay. Now do you see the rest position

 

18 of the vehicles, where they came to rest after the

 

19 collision?

 

20 A. Yes.

 

21 Q. Does Exhibit 1 accurately depict where

 

22 those vehicle came to rest?

 

23 A. As far as I know, it accurately depicts

 

24 the Rokes vehicle, but I don't know exactly where

 

25 the other one was.

 

 

 

Page 50

 

1 Q. Okay. Did both you and Delonna get out

 

2 of your vehicle?

 

3 A. Yes.

 

4 Q. Do you remember having a conversation

 

5 with anybody at the scene prior to getting out of

 

6 the vehicle?

 

7 A. Not prior to getting out of the vehicle,

 

8 no.

 

9 Q. Do you recall having a conversation with

 

10 people after you got out of the vehicle?

 

11 A. Yeah, there was a few people that came

 

12 up, yes, and talked.

 

13 Q. Do you know who those people are?

 

14 A. I don't remember, I believe -- I

 

15 believe it was Amy Abels, someone else, and David

 

16 Zarifis, I believe. A police officer Michael, I

 

17 believe.

 

18 Q. Okay. Did you tell anyone that you

 

19 thought the accident was your fault?

 

20 A. I don't know if I said that I thought it

 

21 was my fault. I said I made a distinct statement

 

22 when I saw the light blinking, or it made a

 

23 distinct impact in my mind.

 

24 Q. You noticed the light blinking after the

 

25 collision occurred?

 

 

 

Page 51

 

1 A. Yes. Prior to the collision I saw the

 

2 light go off. Afterwards I saw it blinking.

 

3 Q. And what impression did it make when you

 

4 saw that it was blinking?

 

5 A. That originally I thought I had a green

 

6 light and, obviously, I must not have.

 

7 Q. Well, did you tell anybody at the scene

 

8 that "I guess it's my fault'?

 

9 A. I think I may have said something like

 

10 that, yes.

 

11 Q. Who did you tell?

 

12 A. I have no idea.

 

13 Q. Did you tell your wife?

 

14 A. Well, it would have been my wife, yes.

 

15 She was standing right by me.

 

16 Q. Do you believe that, that the accident

 

17 was your fault?

 

18 A. I was part of it, yes.

 

19 Q. Do you believe that the collision was

 

20 you fault?

 

21 MR. BEVEL: Asked and answered.

 

22 I'm making an objection you've already

 

23 answered that. If you can answer it again, go

 

24 ahead.

 

25 A. I'm sorry, ask again.

 

 

 

Page 52

 

1 Q. Do you believe that the collision was

 

2 your fault?

 

3 A. I played a part in it, yes.

 

4 Q. I know you played a part in it. Were

 

5 you at fault?

 

6 MR. BEVEL: I'm going to object. It

 

7 calls for improper opinion, calls for an opinion on

 

8 the ultimate fact, and it's been asked and

 

9 answered.

 

10 MR. LIABO: I don't think it has.

 

11 Can you answer the question?

 

12 MR. BEVEL: If you can answer it, answer

 

13 it.

 

14 THE WITNESS: Ask it to me one more

 

15 time. I'm sorry.

 

16 MR. Liabo: Why don't you read it back.

 

17 (The reporter read the last question.)

 

18 A. I went through a red blinking light.

 

19 Yes.

 

20 Q. Do you recall making a statement to

 

21 somebody at the scene to the effect that you only

 

22 had three beers?

 

23 A. No.

 

24 Q. Did you say anything to anyone at the

 

25 scene about whether you had had anything to drink

 

 

 

Page 53

 

1 that night?

 

2 A. Yes.

 

3 Q. Who did you make a statement to about

 

4 drinking?

 

5 A. I believe it was Officer Michael.

 

6 Q. Other than Officer Michael, did you make

 

7 a statement to anyone about what you had had to

 

8 drink?

 

9 A. No, I don't believe so.

 

10 Q. What did you tell Officer Michael about

 

11 how much you had to drink?

 

12 A. I believe he initially asked where we

 

13 had came from, and answered, and then he asked me

 

14 if I had had anything to drink and I said yes.

 

15 Q. What did you say?

 

16 A. I said, "I think I had a few beers."

 

17 Q. did you tell him how many you had had?

 

18 A. I don't believe so.

 

19 Q. Did you believe that the beers that you

 

20 had consumed at Brooster's and/or Celebration's

 

21 played any role in this collision?

 

22 A. Absolutely not.

 

23 Q. Do you believe that the beers that you

 

24 consumed at Brooster's and/or Celebration's played

 

25 any role for your failure to pay attention and

 

 

 

Page 54

 

1 watch the roadway ahead of you?

 

2 A. Absolutely not.

 

3 Q. Do you believe that the beers that you

 

4 consumed at Brooster's and/or Celebration's played

 

5 any role in your failure to keep a proper lookout

 

6 and in your failure to observe that you did not

 

7 have a green light, but that you, in fact, had a

 

8 red flashing light for traffic in your direction?

 

9 A. Absolutely not.

 

10 Q. Did you ever observe the other vehicle,

 

11 the vehicle that your vehicle had struck after the

 

12 collision?

 

13 A. No. Other than I saw something over

 

14 there, yes.

 

15 Q. Did you see the occupants?

 

16 A. No.

 

17 Q. Go ahead.

 

18 A. While in the vehicle or at some later

 

19 time?

 

20 Q. Well, did you see the occupants while

 

21 they were still in the other vehicle?

 

22 A. No.

 

23 Q. Did you see the occupants after any of

 

24 then had gotten out?

 

25 A. Yes.

 

 

 

Page 55

 

1 Q. Who did you see outside of the vehicle?

 

2 A. I believe we rode in the same ambulance

 

3 as Tamara to the hospital.

 

4 Q. Did you have any conversation with Tammy

 

5 Kleinheksel?

 

6 A. No.

 

7 Q. You didn't say anything to her and she

 

8 didn't say anything to you?

 

9 A. We were in an ambulance. My wife and

 

10 myself was sitting in the back and Tamara was on

 

11 the bed being attended to.

 

12 Q. So no comments were made or statements

 

13 made by Tammy that you can recall?

 

14 A. No.

 

15 Q. At the hospital a sample of your blood

 

16 was withdrawn for purposes of testing, is that

 

17 correct?

 

18 A. Yes.

 

19 Q. Have you had any other blood or bodily

 

20 fluids withdrawn for purposes of alcohol in

 

21 connection with that collision?

 

22 A. No.

 

23 Q. Do you recall the results of that blood

 

24 test?

 

25 A. Yes.

 

 

 

Page 56

 

1 Q. What were they?

 

2 A. The DCI laboratory's results were I

 

3 think .087 or something like that.

 

4 Q. Were you asked to do any other sobriety

 

5 tests, touching your fingers to your nose, walking

 

6 a straight line, that sort of thing?

 

7 A. No, I assume not, because I was

 

8 bleeding.

 

9 Q. In connection with your hospital care

 

10 was there any blood withdrawn?

 

11 A. No, I don't believe so.

 

12 Q. Were you released from the emergency

 

13 room that night?

 

14 A. Yes.

 

15 Q. When you were released from the

 

16 emergency room that night, what was your

 

17 understanding of the physical condition of the

 

18 occupants of the other vehicle?

 

19 A. All the occupants?

 

20 Q. Yes.

 

21 A. Okay. Well, first, I learned there was

 

22 three. That Tamara had some serious head injuries,

 

23 and I believe they said they had taken her to

 

24 another hospital. I had asked about the other

 

25 girls and they told me Kristina Hill, I

 

 

 

Page 57

 

1 believe, had some minor abrasions and the Juli

 

2 Farrell had some broken ribs.

 

3 Q. You did not give a formal statement to

 

4 the police that night, is that correct?

 

5 A. Yes. They said they would get back to

 

6 us later in the week.

 

7 Q. You were next contacted by the police

 

8 the following day?

 

9 A. I believe it was Saturday at 7 p.m.,

 

10 approximately.

 

11 Q. On the 5th of October?

 

12 A. Correct.

 

13 Q. And you were asked to come down to the

 

14 Cedar Falls Police Department, is that correct?

 

15 A. Yes.

 

16 Q. Prior to giving the statement down to the

 

17 police, were you told that Juli Farrell had died?

 

18 A. After I was at the police station they

 

19 told me that, yes.

 

20 Q. And you were told that before you gave

 

21 the statement to the police?

 

22 A. Yes.

 

23 Q. Do you have a copy of that statement in

 

24 front of you?

 

25 A. Yes.

 

 

 

Page 58

 

MR. LIABO: Why don't we mark that as

 

2 the next exhibit.

 

3 (Deposition Exhibit 29 marked for

 

4 identification as requested.)

 

5 Q. Mr. Rokes, has the cur reporter marked

 

6 as Exhibit 29 a copy of your statement to the

 

7 police?

 

8 A. I believe so, yes.

 

9 Q. In that statement, the second to the

 

10 bottom paragraph on the first page, you state that

 

11 you left the house around 7:39, you went to

 

12 Brooster's to meet some friends, you met Craig and

 

13 Connie Young, Bill and Lisa Bradford, Scott and

 

14 Tracey Braun; correct?

 

15 A. Yes.

 

16 Q. You told the police you had three to

 

17 four beers at Brooster's from 8:30 p.m. to

 

18 10:30 p.m., is that correct?

 

19 A. Yes.

 

20 Q. And then in the next paragraph you --

 

21 well, you said, "We were on the Brooster's side for

 

22 awhile and about 9:30 went over to the

 

23 Celebration's side of the business"; correct?

 

24 A. Yes.

 

25 Q. In the next paragraph you said you could

 

 

 

Page 59

 

1 tell your wife was not her normal self, you

 

2 believed she was thinking about her mother, and

 

3 about 10:30 you all decided to leave, is that

 

4 correct?

 

5 A. Yes.

 

6 Q. You went to Greenhill Road and turned

 

7 west, is that correct?

 

8 A. Yes.

 

9 Q. And then on the next page you state that

 

10 you were in a hurry, and in the second paragraph

 

11 on the second page you state, quote: When I

 

12 approached the intersection with Main Street I had

 

13 a green light, end quote. Is that correct?

 

14 A. Yes.

 

15 Q. You go on to state that "There was

 

16 little or no traffic at that time on Greenhill

 

17 Road. As was approaching, "I assume there's a word

 

18 missing there, "As was approaching Highway 58 I saw

 

19 that the light for east-west traffic. I was close

 

20 enough to the light that when I saw it was green I

 

21 thought I had sufficient time to proceed." Is that

 

22 correct?

 

23 A. Yes.

 

24 Q. In the following paragraph you state

 

25 after the collision now you notice that the traffic

 

 

 

Page 60

 

1 lights were blinking red for east-west and yellow

 

2 for north-south; correct/

 

3 A. Yes.

 

4 Q. You told the officer, quote: I made a

 

5 distinct question in my mind as to when did the

 

6 light change, end quote; correct?

 

7 A. Yes.

 

8 Q. You did not tell the officer that you

 

9 had seen a red light go off; correct?

 

10 A. No. What I said was I thought I saw a

 

11 green light, had a green light.

 

12 Q. What you said was, "I had a green

 

13 light"; correct?

 

14 A. Yeah, what I said was I thought I had a

 

15 green light.

 

16 Q. No, it's not. Look at your statement

 

17 Where do you see "I though I had a green light"?

 

18 A. It doesn't say that, no.

 

19 Q. It says, "I had a green light"; correct?

 

20 A. Yes.

 

21 Q. And then you elaborate. You say, "As

 

22 was approaching Highway 58 I saw that the light for

 

23 east-west traffic. I was close enough to the light

 

24 that when I saw it was green I thought I had

 

25 sufficient time to proceed"; correct?

 

 

 

Page 61

 

1 A. Yes.

 

2 Q. You told your wife you had a green

 

3 light; correct?

 

4 A. I could have. I don't remember that,

 

5 but yes.

 

6 Q. Did you see a green light at that

 

7 intersection that night?

 

8 A. What I thought was a green light, yes,

 

9 I saw the red light go off.

 

10 Q. Did you see a green light that night?

 

11 A. What I though was a green light, yes.

 

12 Q. Let me show you some photos that have

 

13 been taken by an accident reconstruction engineer.

 

14 MR. GALLAGHER: Those are all marked

 

15 there.

 

16 MR. LIABO: There aren't marked.

 

17 (Off-the-record discussion.)

 

18 Q. I'm going to show you a photo album or

 

19 police log that was prepared by John Goebelbecker,

 

20 who is an engineer that has reconstructed this

 

21 collision, and I'm going to refer you to

 

22 Photographs A-84 and A-85. Do you see those in

 

23 front of you?

 

24 A. Yes.

 

25 Q. Okay. Does Photograph A-84, in looking

 

 

 

Page 62

 

1 at it in conjunction with A-85, appear to be a view

 

2 to the west along Greenhill Road from South Main

 

3 Street, from the intersection of Greenhill Road and

 

4 South Main Street?

 

5 A. Yes, it looks like that.

 

6 Q. Can you see the intersection and the

 

7 lights for Greenhill Road and Highway 58 in the

 

8 distance in Photograph A-84?

 

9 A. Yeah, if you look to slightly off

 

10 center, yes.

 

11 Q. Okay. From this point at the

 

12 intersection of South Main and Greenhill Road as

 

13 you're traveling west towards the intersection with

 

14 Highway 58, is that intersection and are those

 

15 lights continuously within your field of view?

 

16 A. Yes.

 

17 Q. Now you have taken a wheel and measured

 

18 the distance between South Main Street and

 

19 Highway 58?

 

20 A. Yes.

 

21 Q. And the distance is what again?

 

22 A. Approximately 1858 feet.

 

23 Q. Have you timed how long it takes you to

 

24 travel that distance at 45 miles per hour?

 

25 A. If I recall, it like 28 seconds. But

 

 

 

Page 63

 

1 I might be mistaken.

 

2 Q. Okay. And during that entire time the

 

3 intersection would be in our view, is that

 

4 correct, if you were paying attention and looking

 

5 that direction?

 

6 A. It's not straight down the street, but

 

7 it's off to the left, yes.

 

8 Q. The stoplights are in your field of

 

9 view; correct?

 

10 A. Once again, if you're looking in a

 

11 straight line, no, but off to the left, yes.

 

12 Q. And if you're paying attention and those

 

13 lights are flashing red, you would be able to see

 

14 them as you travel that entire distance; correct?

 

15 A. Well, I don't know. This is a daytime

 

16 picture. I don't know what it would look like at

 

17 night as far as a picture.

 

18 Q. At night those flashing red lights would

 

19 make an even greater impression, wouldn't they?

 

20 A. I don't know.

 

21 Q. You don't know?

 

22 MR. GALLAGHER: He didn't answer, did

 

23 he?

 

24 Q. You're telling us you don't know whether

 

25 or not, and assuming it's a clear night, you don't

 

 

 

Page 64

 

1 know whether a red traffic light makes more of an

 

2 impression on the eye at night than during the day

 

3 when there's background lighting and daylight to

 

4 compete with?

 

5 A. No, I don't know that.

 

6 Q. In any event, if you're paying attention

 

7 to flashing red lights, the lights are in a

 

8 flashing mode, they would be clearly visible and

 

9 would attract your attention during that entire --

 

10 as you travel that entire distance from South Main

 

11 to Highway 58; correct?

 

12 A. I don't know.

 

13 Q. As you travel along Greenhill Road

 

14 from South Main to Highway 58, your testimony is

 

15 that it's a 28-second ride?

 

16 A. At one time I knew. If I recall, that

 

17 is correct, yeah.

 

18 Q. Well, however long it takes you, how

 

19 much of that time, lets go back to October 4th,

 

20 1996, as you traveled that distance that evening,

 

21 how much of the time were you looking and paying

 

22 attention to the road up ahead and how much of the

 

23 time was your head turned away from the roadway

 

24 towards your wife?

 

25 A. Well, as I was driving I was paying

 

 

 

Page 65

 

1 attention to my wife, glancing up at the road.

 

2 Q. So you were looking more at your wife

 

3 than at the roadway?

 

4 A. I would say that, yes.

 

5 Q. Was your ability to keep track of time

 

6 and realize how far you had gone without looking at

 

7 the roadway affected at all by the beer you had

 

8 consumed?

 

9 A. Absolutely not.

 

10 Q. Have you ever had so much to drink that

 

11 you've lost track of time?

 

12 A. No.

 

13 Q. Have you ever had so much to drink that

 

14 you just lost track of what you were doing?

 

15 A. No.

 

16 Q. Would you agree with me that it's

 

17 reckless to drive a car for a long distance without

 

18 looking at the roadway and paying attention to

 

19 what's up ahead?

 

20 A. Is this a theory?

 

21 Q. Yes.

 

22 A. Yes.

 

23 Q. Were you reckless that night in driving

 

24 along the roadway without paying attention and

 

15 paying more attention to your wife than what was up

 

 

 

Page 66

 

1 ahead?

 

2 A. No.

 

3 Q. By the way, you had more than four beers

 

4 to drink that night, didn't you?

 

5 A. No.

 

6 Q. Well, now did you testify that you had

 

7 more than four beers to drink?

 

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

 

9 Q. Before you testified at your trial, did

 

10 you reconstruct the accident?

 

11 A. You mean in my mind or what?

 

12 Q. No, in fact. I mean, I know you went

 

13 back to the scene before you testified.

 

14 A. Right.

 

15 Q. And you used your wheel to measure

 

16 distances; correct?

 

17 A. Yes.

 

18 Q. Al right. Did you do anything else to

 

19 reconstruct the accident?

 

20 A. No. We got I believe it was Officer

 

21 Baskerville that the Sate had employed from

 

22 Black Hawk County and went through his findings,

 

23 and basically they were exactly as we thought.

 

24 Q. Did you meet with Mr. Jensen, you

 

25 toxicologist?

 

 

 

Page 67

 

1 A. I believe we met the day before he was

 

2 in the trial, yes.

 

3 Q. Okay. And you learned what he had to

 

4 say about the collision or about your state of

 

5 sobriety, is that correct?

 

6 A. Yes.

 

7 Q. Prior to talking to Mr. Jensen, had you

 

8 ever heard of the term "retrograde extrapolation'?

 

9 A. I think I first hear of that term from

 

10 Mr. Correll, who has been my lawyer.

 

11 Q. All right. But that's in conjunction

 

12 with preparing for your criminal trial; correct?

 

13 A. Right. Yes.

 

14 Q. When you gave the statement to the

 

15 police, you didn't know what -- you had never heard

 

16 of the term "retrograde extrapolation"?

 

17 A. No.

 

18 Q. And I understand the theory behind --

 

19 well, what is you understanding of what the term

 

20 "retrograde extrapolation" means?

 

21 A. Well, what I understand about it is that

 

22 according to the people that publish written

 

23 articles, it can never be used, because no one

 

24 would ever know all the different components that

 

25 would go into trying to figure out what effect

 

 

 

Page 68

 

1 alcohol would have on the body.

 

2 Q. Does it have to do with trying to

 

3 determine the level of sobriety of somebody or a

 

4 person's blood alcohol level at some point in time

 

5 prior to when the blood was actually drawn?

 

6 A. Again, I think from the knowledge I

 

7 have, in theory that is correct. According to,

 

8 quote, the people that publish literature, they say

 

9 that it can never be used because you cannot have

 

10 enough of the components to accurately use that as

 

11 a calculation.

 

12 Q. Your expert's theory was that your blood

 

13 alcohol level was still on the rise at the time of

 

14 this collision; correct?

 

15 A. Boy, I don't really recall what -- what

 

16 he had said about that.

 

17 Q. Wasn't one of the theories that you

 

18 advanced at trial that the last beer you had drunk

 

19 didn't count or didn't affect you because it was

 

20 too soon or too close in time to the point of the

 

21 collision itself, so that by the time the blood

 

22 alcohol level was tested sometime after the

 

23 collision, it would not accurately measure your

 

24 blood alcohol at the time of the collision?

 

25 A. I think there was something said so that

 

 

 

Page 69

 

1 effect, yes.

 

2 Q. Wasn't that what the theory of defense

 

3 was, one of them, that your blood alcohol level was

 

4 still on the rise at the time of the collision?

 

5 A. No, I really don't know about that.

 

6 MR. LIABO: I think those are all the

 

7 questions I have.

 

8 (Recess taken.)

 

9 DIRECT EXAMINATION

 

10 BY MR. GALLAGHER:

 

11 Q. Mr. Rokes, my name is Ed Gallagher and I

 

12 represent Tammy Kleinheksel in this case. Just

 

13 some follow-up questions for you.

 

14 When you were in the ambulance with your

 

15 wife and you said Tammy was there in the ambulance

 

16 also, did I understand that right?

 

17 A. Yes.

 

18 Q. The evidence in this case is that Tammy

 

19 was in a coma for eight days. Was she talking at

 

20 all or was she out of it or what was your idea of

 

21 that?

 

22 A. I wouldn't say necessarily maybe

 

23 talking. Making noises, I guess.

 

24 Q. But you weren't carrying on any

 

25 conversations with her?

 

 

 

Page 70

 

1 A. No.

 

2 Q. Was there any thrashing on her part of

 

3 her legs or arms? In other words, did they have a

 

4 time to keep her quiet, or do you know that?

 

5 A. It seems like they did ask her, you

 

6 know, to lay till or something to that effect.

 

7 Q. Did you notice if she was bleeding from

 

8 anyplace?

 

9 A. No.

 

10 Q. Were there attendants then sitting with

 

11 her at the time?

 

12 A. Yes.

 

13 Q. I've got a little confusion about some

 

14 of the questions Mr. Liabo asked you. The

 

15 corporation Rokes Building and Supply transferred

 

16 some property to your wife and that's Exhibit --I

 

17 can't see it here, the number.

 

18 MR. BEVEL: Twenty-eight.

 

19 Q. Is that correct? That was signed by you

 

20 as President and this property went to your wife

 

21 Delonna?

 

22 A. Yes. As I said earlier.

 

23 Q. And I'm confused, what exactly was that

 

24 property? And you sure can look at that, if that

 

25 will help us out.

 

 

 

Page 71

 

1 A. Okay. I think that's a legal

 

2 description for an area called The Pointe.

 

3 Q. Okay. Is this a bunch of lots,

 

4 Mr. Rokes, or what is it?

 

5 A. It's an area of land for condos, not

 

6 individual lots.

 

7 Q. I don't think you were asked, where is

 

8 that located?

 

9 A. It was formerly I guess called

 

10 Crossroads Estates, which is located over to I

 

11 guess it would be the south of Crossroads, or like

 

12 behind Wal-Mart.

 

13 Q. Are there some apartments in there now?

 

14 There's streets there?

 

15 A. There's been streets there for I would

 

16 guess fifteen, twenty years.

 

17 Q. I'm asking about they are kind of

 

18 winding streets, because sometimes I go back there

 

19 and go out the other way. That's the area you're

 

20 talking about, thought?

 

21 A. Some portion of that area, yes.

 

22 Q. And there's kind of like some gray

 

23 apartment buildings or condos constructed in there?

 

24 A. Condos, yes.

 

25 Q. Okay. do you have any ideas how many

 

 

 

Page 72

 

1 lots you transferred in that deed, Exhibit 28?

 

2 A. Here again, I don't think it was -- it

 

3 was more or less tracts of land.

 

4 Q. Okay.

 

5 A. Not necessarily lots.

 

6 Q. Was that all of the land that the

 

7 building and supply company owned was transferred

 

8 to Delonna?

 

9 A. I believe so. And as I mentioned

 

10 earlier, I believe this was done wrongfully, not

 

11 anything to do with this.

 

12 Q. Okay.

 

13 A. And has since been corrected, which we

 

14 did not realize until we went to sell and actually

 

15 close a condo.

 

16 Q. So you went ahead and constructed some

 

17 property and then sold it to somebody and realized

 

18 or somebody pointed out, an attorney or somebody,

 

19 that Delonna owned the property and not you, is

 

20 that what you're telling me?

 

21 A. Basically, that's what it is, correct.

 

22 Q. What is the value of that property that

 

23 was transferred to her? Just roughly as you know

 

24 as a developer.

 

25 A. Net value, again, Is very close to

 

 

 

Page 73

 

1 nothing.

 

2 Q. Okay. I'm really not looking for net

 

3 value, I'm looking for what you would charge if

 

4 Mr. Liabo or I or Mr. Bevel wanted to buy it from

 

5 you. What would you ask for it?

 

6 A. I suppose it's somewhere over 400,000.

 

7 Q. And as I understood, you were talking

 

8 about net worth statements or financial statements,

 

9 you had give some financial statements right prior

 

10 to this collision in October of '96. I think you

 

11 did say that, isn't that right?

 

12 A. No, unless I had misspoken. I thought

 

13 the question was since then.

 

14 Q. Okay. you didn't do any prior to '96?

 

15 A. Yes, of course, just during the general

 

16 course of business.

 

17 Q. Sure. If you have an open line of

 

18 credit at your bank, you have to give those every

 

19 once in a while, don't you, or update them?

 

20 A. I think yearly.

 

21 Q. Okay. And the corporation, of course

 

22 and you individually, of course, file federal and

 

23 state income tax returns, do you not?

 

24 A. Yes.

 

25 Q. Another thing that I was confused about,

 

 

 

Page 74

 

1 does this development company that you own all the

 

2 stock in, does that own land?

 

3 A. I believe it does, yes.

 

4 Q. And is that its primary asset source in

 

5 the land?

 

6 A. I would say so, yes.

 

7 Q. And what would be the value of the land

 

8 it owns?

 

9 MR. BEVEL: I'm gong to object and

 

10 direct Mr. Rokes not to answer that question.

 

11 Q. But that land is not being developed, is

 

12 that right? In other words, are you building

 

13 condos or that land now or is it just sitting there

 

14 for future development?

 

15 A. MR. BEVEL: I'm going to direct you not

 

16 to answer that question.

 

17 Q. I don't know if we have ever asked you

 

18 this, but I guess it's something I've asked over

 

19 the years a lot, can you make a list of all the

 

20 relatives you have in Black Hawk County and their

 

21 addresses and their occupations and give it to

 

22 Mr. Bevel for me? Would you do that?

 

23 A. Sure.

 

24 Q. Okay. The reason we do it, we want to

 

25 know about jury selection and we don't want your

 

 

 

Page 75

 

1 aunts and uncles on the jury. Okay?

 

2 Have you had any prior accidents

 

3 involving personal injury at all, Mr. Rokes?

 

4 A. No.

 

5 Q. Has your license ever been canceled,

 

6 suspended or revoked?

 

7 A. No, I don't believe so.

 

8 Q. Have you ever been arrested for a

 

9 traffic offense -- not a traffic offense, an

 

10 indictable misdemeanor? You probably wouldn't know

 

11 what that was. Let me start over. Have you ever

 

12 been arrested for a felony of any kind?

 

13 A. No.

 

14 Q. You have never been arrested for OMVI?

 

15 A. No.

 

16 Q. Now as I understand, your company

 

17 employees varies from four to 75 people, is that

 

18 accurate?

 

19 A. It varies a lot, yes.

 

20 Q. And I suppose your season is grinding to

 

21 a halt now because of what we see out the window

 

22 here today, if it's outside construction?

 

23 A. Not necessarily.

 

24 Q. Okay. All right.

 

25 A. It depends on the job.

 

 

 

Page 76

 

1 Q. Sure. So would your employees be less

 

2 in the winter when it's January, February?

 

3 A. It totally depends on the job.

 

4 Q. You have children, don't you? How many

 

5 children do you have?

 

6 A. Yes, I have two.

 

7 Q. And they're at home?

 

8 A. Yes.

 

9 Q. Was the beer that you drank on that day,

 

10 was that 12-ounce was it car or bottle or what?

 

11 A. I believe it was a bottle, 12-ounce.

 

12 Q. What's your height and weight? What was

 

13 it in August of 1996? Or October, I'm sorry.

 

14 A. It was near what it is now.

 

15 Q. Give me what that is.

 

16 A. Five-eleven, 240 to 250.

 

17 MR. HELLMAN: Can we take a break for

 

18 just a second?

 

19 (Off-the-record discussion.)

 

20 Q. Mr. Rokes, on the matter of the light

 

21 that you saw, it's my understanding you told the

 

22 police you saw a green light. Do you recall that

 

23 testimony?

 

24 A. What I thought was green, yes.

 

25 Q. How far back from the impact point would

 

 

 

Page 77

 

1 you have been when you saw the green light?

 

2 A. I really don't know.

 

3 Q. What was the point that you said 28

 

4 seconds, what point was that?

 

5 A. I believe if you were traveling on that

 

6 particular route, beings that it's 1858 feet from

 

7 intersection to intersection in a car going 45

 

8 miles an hour, which here again if I recall is like

 

9 66 feet per second, and you do the division of

 

10 that, it come out to 28 and some odd seconds.

 

11 Q. But prior to impact you never saw the

 

12 red light flashing?

 

13 A. Prior --

 

14 Q. Prior to impact.

 

15 A. As I was going down the road I saw the

 

16 red light go off.

 

17 Q. Where were you when you saw the red

 

18 light go off.

 

19 A. I don't know.

 

20 Q. You don't have any idea?

 

21 A. If -- no, I don't.

 

22 Q. Well, it would still be fair that you

 

23 didn't see a red light flashing until after impact,

 

24 isn't that right?

 

25 A. I saw the red light go off prior to; I

 

 

 

Page 78

 

1 saw the red light blinking after impact, after I

 

2 got out of the car.

 

3 Q. And you don't -- you don't contest that

 

4 had you been watching, you would have seen that red

 

5 light blinking before the impact?

 

6 A. Correct.

 

7 Q. And I take it that basically is the

 

8 reason that you testified at your trial that "it's

 

9 our fault, I know I must have went through a red

 

10 flashing light?"

 

11 MR. BEVEL: What page are you looking

 

12 at?

 

13 MR. GALLAGHER: Page 867.

 

14 A. Can I look at it?

 

15 Q. Sure. Do you see, what I'm telling you

 

16 is correct, is it not?

 

17 A. Yeah. Is that what line number?

 

18 Q. It states at 14, Mr. Rokes, and goes

 

19 through to 20.

 

20 A. Yes.

 

21 Q. And you're not changing that testimony

 

22 today, are you?

 

23 A. No.

 

24 Q. I think you said you saw the Farrell car

 

25 prior to impact. Is that correct?

 

 

 

Page 79

 

1 A. Yes.

 

2 Q. And you turned?

 

3 A. I saw something prior to impact and

 

4 turned to the left.

 

5 Q. And you said, according to your trial

 

6 testimony or statement, you said, "Oh, shit," or

 

7 something like that?

 

8 A. I said something, yes. I don't know

 

9 exactly what.

 

10 Q. That's not my words, that's your words?

 

11 A. Correct?

 

12 Q. And then you started -- did your brake

 

13 ever contact or come on?

 

14 A. I don't know.

 

15 Q. Were there any skidmarks that you know

 

16 about?

 

17 A. Not that I know about. There were many,

 

18 many skidmarks out there in that particular

 

19 intersection.

 

20 Q. Okay. Did you go back there with

 

21 anybody to look for skidmarks?

 

22 A. I don't believe I did, no.

 

23 Q. Is Exhibit 1, is that to the best of

 

24 your knowledge about the location of where the cars

 

25 were at impact, that is, the angle?

 

 

 

Page 80

 

1 A. I believe so. The State's

 

2 reconstructionist said we were at a 13-degree turn

 

3 and the other car was on zero.

 

4 Q. At any rate, you did have time to turn

 

5 your vehicle somewhat?

 

6 A. Right.

 

7 Q. At any time were you able to make any

 

8 kind of judgment as to the speed of the Farrell

 

9 vehicle?

 

10 A. While I was driving?

 

11 Q. Well, I don't mean from what some expert

 

12 would say, I mean what you actually saw.

 

13 MR. HELLMAN: I'm going to object to

 

14 that question. Based on his previous testimony

 

15 there's no foundation for him to give that kind of

 

16 an opinion other than pure speculation.

 

17 MR. GALLAGHER: I think you can answer,

 

18 He has to make his objection for the record.

 

19 Q. My question to you was: Were you able

 

20 to make any kind of judgment as to the speed of

 

21 the Farrell car before impact?

 

22 A. No. The only information I have -- no.

 

23 Q. Okay. What's the only information you

 

24 have on that?

 

25 A. Baskerville, I believe his name is.

 

 

 

Page 81

 

1 Q. And what did he say?

 

2 A. He gave a range of speeds, I believe

 

3 fifty-something to sixty-seven.

 

4 Q. Okay. After the impact you didn't have

 

5 any conversation with, obviously, -- was the

 

6 Farrell girl conscious? You didn't see her, did

 

7 you?

 

8 A. No.

 

9 Q. Or Kristina Hill, did you see her?

 

10 A. No.

 

11 Q. You saw Tammy in the ambulance, is that

 

12 right?

 

13 A. Yes.

 

14 Q. I'm going to come over around there to

 

15 have you identify these. These are some pictures

 

16 Deposition Exhibit 21. They all have four

 

17 photographs. Do you recognize the pictures of the

 

18 left side of the photograph?

 

19 A. No.

 

20 Q. Do you recognize the scene in the

 

21 pictures on the right side of the photographs?

 

22 A. The top right looks like after impact.

 

23 Q. Which way is the road going there or

 

24 what road it is, if you know?

 

25 A. If you were traveling --

 

 

 

Page 82

 

1 Q. At the angle.

 

2 A. At the angle is south. The Toyota

 

3 4-Runner is basically pointing to the north, the

 

4 front.

 

5 Q. This would be Greenhill?

 

6 A. No.

 

7 Q. This is were your car ended up? Is

 

8 this the Roadrunner?

 

9 A. 4-Runner.

 

10 Q. 4-Runner, I'm sorry. And that was off

 

11 the highway, was it not, as were show on Exhibit 1/

 

12 A. Yeah. This is Greenhill.

 

13 Q. Okay. The next paragraph, did you ever

 

14 see that before?

 

15 MR. BEVEL: Did you say photograph or

 

16 paragraph?

 

17 MR. GALLAGHER: I mean photograph.

 

18 A. I haven't seen it, no.

 

19 Q. Do you know what it represents?

 

20 A. No.

 

21 Q. Okay. Exhibit 22 is two pictures.

 

22 Which way is the camera pointing on those two

 

23 photographs?

 

24 A. South on 58.

 

25 Q. Okay. And it show your car over on

 

 

 

Page 83

 

1 Greenhill; correct?

 

2 A. Yes.

 

3 Q. Exhibit 23, can you identify your car

 

4 and would you point out which side of the exhibit?

 

5 A. Well, it's in the upper left and the

 

6 lower right.

 

7 Q. Okay. And you don't recognize the blue

 

8 car as being the Farrell car?

 

9 A. Not at the time, no.

 

10 Q. Okay. You do know it now, don't you?

 

11 A. Yes.

 

12 Q. And Exhibit 24 again is four pictures.

 

13 Your car is identified as the 4-Runner, is it not,

 

14 the Toyota?

 

15 A. Yes.

 

16 Q. Okay. And you recognize, you now know

 

17 that the other car in the right side of the picture

 

18 would be the Farrell car, both pictures?

 

19 A. As far as I know, yes.

 

20 Q. Okay. And Exhibit 25 in the upper

 

21 left-hand corner, is that your vehicle?

 

22 A. Yes.

 

23 Q. Okay. And the lower right-hand corner,

 

24 is that your vehicle?

 

25 A. Yes.

 

 

 

Page 84

 

1 Q. Was that, to the best of your knowledge.

 

2 where it came to rest?

 

3 A. I believe so.

 

4 Q. Okay. Then Exhibit 26 shows skidmarks

 

5 or black marks going in the -- you were going which

 

6 way, to the west that evening?

 

7 A. That's facing south again.

 

8 Q. Okay.

 

9 A. That was previous accidents.

 

10 Q. Those are previous accidents, all right.

 

11 A. Yes.

 

12 Q. That's nice to know that. What is the

 

13 tire here, does that represent from either one of

 

14 the vehicles?

 

15 A. I would only assume that it's the front

 

16 right tire of my vehicle.

 

17 Q. Okay. Because that whole wheel came

 

18 off, did it not?

 

19 A. Yes.

 

20 Q. Okay. And Exhibit 27 again is four

 

21 photographs, that shows the wheel, does it not?

 

22 A. Yes.

 

23 Q. It show the Farrell car and shows the

 

24 4-Runner in the upper left and the lower left, does

 

25 it not?

 

 

 

Page 85

 

1 A. Correct.

 

2 Q. Now Exhibit r, can you tell us what that

 

3 represents in the picture of the intersection?

 

4 A. I believe that would be on Greenhill

 

5 Road.

 

6 Q. Facing which way?

 

7 A. It would be east of the intersection

 

8 facing to the west.

 

9 Q. And Exhibit 3?

 

10 A. I believe Exhibit 3 is --

 

11 Q. Facing which way?

 

12 A. -- facing to the south on 58.

 

13 Q. Okay. And Exhibit 5?

 

14 A. I believe that's the same as the

 

15 previous photo.

 

16 Q. I'll hurry this up a little bit. Six,

 

17 7, 7, 9, are those pictures of your automobile at

 

18 the yard where it was hauled?

 

19 A. As far as I know, yes.

 

20 Q. So is Exhibit 11, is it not, and 12?

 

21 A. Yes.

 

22 Q. Is 13 the Farrell car and 14, 15, 16,

 

23 17, 18, 19 and 20, do those all appear to be the

 

24 Farrell car?

 

25 A. Nineteen and 20 are some other car.

 

 

 

Page 86

 

1 Q. Okay. Excuse me.

 

2 A. The other ones, 13, 15, 16, 17, 18, and

 

3 14 appear to be, yes.

 

4 Q. And how about Number 10, do you

 

5 recognize that?

 

6 A. That appears to be my car.

 

7 Q. All right.

 

8 (Off-the-record discussion.)

 

9 Q. Do you recognize Exhibit 20 as being a

 

10 car that was around there that night?

 

11 A. Not that I know of.

 

12 Q. Or Exhibit 19, is that right?

 

13 A. Not that I know of.

 

14 Q. Okay. You had quite a few questions and

 

15 answers regarding the drinking that you did and

 

16 whether or not the drinking affected you that

 

17 night, is that right? Do you remember those

 

18 questions and answers? There were quite a few. Do

 

19 you remember talking about that?

 

20 A. Today?

 

21 Q. Yeah.

 

22 A. Yes.

 

23 Q. Okay. And is it your contention here

 

24 that you handled yourself on that night in the same

 

25 manner as if you would have had nothing to drink?

 

 

 

Page 87

 

1 A. Yes.

 

2 Q. And that includes lookout, your speed

 

3 and the things that we're talking about here, is

 

4 that right?

 

5 A. Yes.

 

6 Q. Okay. You don't usually, however, go

 

7 through red lights, do you?

 

8 A. Not usually.

 

9 Q. Okay. To you, what is your

 

10 responsibility if there is a flashing red light

 

11 ahead of you? What are you supposed to do?

 

12 A. I believe you're supposed to come to a

 

13 complete stop.

 

14 Q. And yield to traffic coming the other

 

15 way, is that right, or coming through the

 

16 intersection from your right or left?

 

17 A. I believe you're supposed to come to a

 

18 complete stop as a stop sign, yes.

 

19 Q. And yield to the traffic going the other

 

20 way; right?

 

21 MR. BEVEL: Well --

 

22 Q. Let me rephrase it. And yield to the

 

23 traffic coming on the other street going from your

 

24 right or left, isn't that right?

 

25 MR. BEVEL: I object that it's vague.

 

 

 

Page 88

 

1 We don't know what the other traffic control is,

 

2 what --

 

3 Q. Well, let's just assume you have a

 

4 flashing red light. What do you understand your

 

5 obligation to be?

 

6 A. Come to a stop.

 

7 Q. Okay. And had you come to a stop that

 

8 night, we wouldn't be here today, isn't that right?

 

9 A. Yes.

 

10 Q. Now you've told Mr. Liabo about some

 

11 traffic. Could you tell us as you came up the

 

12 street on Greenhill whether you saw any traffic at

 

13 all or you were paying attention to your wife and

 

14 didn't notice?

 

15 A. Where are you talking, what part of

 

16 Greenhill?

 

17 Q. As you got close to the traffic light,

 

18 close to the impact point, did you see any other

 

19 traffic at all?

 

20 A. I glanced to my left and I glanced to my

 

21 right. No.

 

22 Q. So when was it that you glanced to your

 

23 right and glanced to your left: Where were you at

 

24 that point?

 

25 A. I believe I was in the intersection.

 

 

 

Page 89

 

1 Q. Okay. And at that point, is that when

 

2 you saw the Farrell car?

 

3 A. I saw something, yes.

 

4 Q. But you aren't able to tell me where you

 

5 were when you saw the Farrell car or how far the

 

6 Farrell car was from your car when you saw it?

 

7 A. No.

 

8 Q. Did you ever or do you now know, did you

 

9 ever check with the proper traffic authority as to

 

10 whether or not they had lights that were green and

 

11 then turned to flashing red at that particular

 

12 time? Did you ever look into that?

 

13 A. Yes.

 

14 Q. What did you find out?

 

15 A. That as I was on Greenhill through

 

16 three lights, all three have different sequences.

 

17 Q. Okay. But the intersection where the

 

18 accident occurred, did you check with them whether

 

19 or not the light could have been green, as you told

 

20 Mr. Liabo that you saw a green light, and then

 

21 started flashing red? Did you ever see if that was

 

22 the sequence that would have occurred?

 

23 MR. BEVEL: I object as a misstatement

 

24 of the record. Mr. Liabo was referring to a

 

25 statement in the police -- in a statement to the

 

 

 

Page 90

 

1 police.

 

2 MR. GALLAGHER: Okay.

 

3 Q. Well, as one time you told a police

 

4 officer that you saw this green light up there:

 

5 correct?

 

6 A. What I thought was a green light.

 

7 Q. Okay. But my question was: Did you

 

8 ever go to the traffic authority, to the Traffic

 

9 Department, and see whether that sequence was -- if

 

10 that was the sequence that evening on October 4th

 

11 of 1996?

 

12 A. What do you mean, the sequence?

 

13 Q. Well. that you had a green light and

 

14 then suddenly the green light switches to a

 

15 flashing red light.

 

16 A. I think there was questions of what time

 

17 that may have happened.

 

18 Q. Well, are you saying that that was a

 

19 sequence that usually occurred at that particular

 

20 time of the accident, that you have a solid green

 

21 light and then all of a sudden it would turn to

 

22 flashing red?

 

23 A. No. I don't know.

 

24 Q. You don't know.

 

25 A. Right.

 

 

 

Page 92

 

1 Q. Did you ever check with anybody about

 

2 that, whether that could be possible?

 

3 A. What that sequence would be?

 

4 Q. Yes, at that intersection.

 

5 A. I believe I did check, yes.

 

6 Q. Okay. What did you find out? did you

 

7 find out when the intersection lights started to go

 

8 flashing yellow and flashing red?

 

9 A. Yes.

 

10 Q. Okay. What did you find out as to when

 

11 that occurred?

 

12 A. Which intersection?

 

13 Q. At the intersection where the accident

 

14 occurred.

 

15 A. I believe 10 o'clock.

 

16 Q. Okay. And did you later find out that

 

17 the lights for the Farrell car were flashing

 

18 yellow?

 

19 A. Yes.

 

20 Q. What do you understand the obligation of

 

21 a car that comes up on a flashing yellow light,

 

22 what are they to do?

 

23 MR. HELLMAN: Objection. It calls for a

 

24 legal opinion and conclusion of the witness.

 

25 MR. GALLAGHER: You can answer, if you

 

 

 

Page 92

 

1 know.

 

2 A. It's my understanding that it's to be

 

3 treated like a yield sign, you give -- you yield to

 

4 other cars in the intersection.

 

5 Q. Okay. Do you slow down?

 

6 MR. HELLMAN: Same objection.

 

7 A. Yes.

 

8 Q. Was there any beer in your automobile

 

9 that night?

 

10 A. No.

 

11 Q. It's my understanding you kept -- how

 

12 many time did you look at your speedometer as you

 

13 went down the highway between the two

 

14 intersections, the intersection where the accident

 

15 occurred and the one immediately prior thereto?

 

16 A. I don't know.

 

17 Q. More than once?

 

18 A. I don't know.

 

19 Q. What kind of a time interval was there

 

20 between your seeing the Farrell car and the impact,

 

21 if you know? In seconds, if you can tell me.

 

22 A. Very short. I don't know.

 

23 Q. Was it less than five seconds?

 

24 A. Yes. Enough time to make a turn.

 

25 Q. Okay. And you can't give us your best

 

 

 

Page 93

 

1 opinion as to how long that took?

 

2 A. In my opinion, I guess I would have to

 

3 assume it would be somewhere around a second.

 

4 Q. And do you have any idea how fast your

 

5 car at 45 miles an hour travels in a second?

 

6 A. I believe it's 66 feet.

 

7 Q. Have you talked to my client, Tammy

 

8 Kleinheksel, since this collision occurred? Have

 

9 you seen her or talked to her?

 

10 A. Other than at the trial?

 

11 Q. Yeah.

 

12 A. No.

 

13 Q. Going back to the business about the

 

14 green light that you testified to in your police

 

15 statement, that you thought you saw a green light,

 

16 you now know that you didn't see a green light,

 

17 don't you?

 

18 A. Correct.

 

19 Q. You're not claiming you were rendered

 

20 unconscious either, are you?

 

21 A. I really don't know.

 

22 Q. Did you have any head injuries?

 

23 A. Abrasions, stiff neck.

 

24 MR. GALLAGHER: That's all I have

 

25 MR. ODEKIRK: No questions.

 

 

 

Page 94

 

1 MR. HELLMAN: No questions.

 

2 FURTHER DIRECT EXAMINATION

 

3 BY MR. LIABO:

 

4 Q. I just have one question.

 

5 Mr. Rokes, you learned that the traffic

 

6 lights switched from their sequence mode, green,

 

7 yellow, red, to flashing red at 10 o'clock after

 

8 you gave a statement to the police, is that

 

9 correct?

 

10 A. Yes.

 

11 MR. LIABO: That's all I have. Thanks.

updated 12/26/16