Free Response - District Court of Arizona - Arizona

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1 II TERRY
GODDARD
ATIORNEY GENERAL

2 (FIRM STATE BAR No. 14000)

3 AARON J. MOSKOWITZ ASSISTANTApPEALS SECTION 1275 CRIMINAL ATIORNEY GENERAL 4 W. WASHINGTON PHOENIX,
II

5 II TELEPHONE: (602) 542-4686
(STATE BAR NUMBER 022246)

ARIZONA 85007-2997

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II

ATIORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
WILLIAM FLOYD SMITH,
Petitioner, -vs DORA B. SCHRIRO, et aI., Respondents.

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CIV 04-573-PHX-FJM (MS)

EXHIBIT I, PART 2, PGS 40-79 FOR ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

25 26 27 28 Case 2:04-cv-00573-FJM
Document 33-9 Filed 08/11/2005 Page 1 of 41

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40 1 2 3 4 5 we have

pane 1.

But deal with that, and no other legal

instruction, Mr. Griffith.
MR. GRIFFITH:

Thank you, Your Honor.
as

since we are dealing with administer, already gone over, it means, apply, inject or

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facilitate the ingestion.

That's what they are alleging

in this case, is somehow this is a facilitation of
ingestion.

You have to ask yourself, what does that

word facilitate mean.

Facilitate means to make it They are going to present

easier or to assist someone.

no evidence that he assisted her in her efforts to

ingest this drug.

So they just have the wrong Statute.

There is a statute about forcing someone, or tricking someone into taking a drug.
statute.

But that's not this

Now let's talk about the evidence in the case. First of all, let's talk about Mr. smith and also You're going to hear testimony that He's had a business

about this child.

Mr. smith lived in Fountain Hills.

for quite some time where he is a construction draftsman. Every summer he just gets swamped with work.
On

He has 70, 80 hours of work a week he has to do.

this particular summer he had brought his brother out, James

L. Smith,

to help him out doing all this work.

Every summer when he gets swamped, his wife goes back to
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41 1 2 3 Texas for about a month. So what you're going to hear,

of course, the testimony she is back in Texas, and that

she is leaving. He goes out, tries to find somebody to come in, help around the office and help around the home
because we now have two men, two 50-year old guys living

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in a house with no female supervision.
imagine, the house begins to look a little slip-shod.
The next thing that happens

As you can

is that he finds someone to

work for him.

That's Rachel. Now, you heard the prosecution say it was

kind of a pick-up, but the evidence is actually going to be he didn't select her out. He just put out word he

was looking for somebody who would be willing to work for $6 an hour. up.
She called him.

They eventually set it

She agreed to come in, start working for $6 an hour And she is working at

as the gofer for his business. the business.

She said, well, there wasn't a lot to do. Yet, he and his brother both They will

I didn't do very much.

work 70 hours a week, busting their tail. agree, she wasn't doing very much.
helpful.

She wasn't all that

But she is hanging around the office and

clients are meeting her. You'll hear testimony that she is not wealthy. That's fine. A lot of us didn't grow up
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wealthy.

She doesn't have very good clothes.

Her

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clothes are not representative of what you would want to see in a business office. Bill's office. Clients are coming over to

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I

They are seeing this girl running around You'll hear testimony, we

in inappropriate clothing.

expect to be able to prove that just prior to her making this allegation, she incurred a debt to him of almost
$500.

We expect the evidence is going to show that a

day or two prior to her making this allegation, he took her to the Paradise Valley Mall, and he said, you know, we've got to get you some more appropriate clothing for around the office. And he bought her 490-some-dollars

worth of clothing, all of which is appropriate for working in an office.
like that.

N9 sexy clothing, nO'anything

So, she goes home that night and she lies to her mother about how she got the clothes. And the

circumstantial case I think, we are going to ask you to take a look at the circumstances surrounding why she is lying to her mother about where she got these clothes. The evidence will show she told her mother she paid for these clothes herself.
We expect to be able to prove

Mr. smith paid for those clothes.

Mr. smith told her

she would have to pay him back at $50 a week.

Well, what happens the very next time that

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they get together?

Well, his wife is now coming home There is

from Texas after having been away for a month. no dispute she is coming home that day. home that very afternoon.

She is coming

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As I told you, the two

50-year old men have been in the house alone for a month
without female supervision and the house doesn't look good at all.

In fact, I think it was two days prior to

this that Mr. smith had decided, hey, I better get some
carpet cleaners in here.

I better get people in here so

when my wife and kids get back everything looks okay. So there is no dispute that that very day the carpet cleaners have been in and Mr. smith and his brother had to move all the furniture out of the way. They had moved all the furniture out of the way. carpet cleaners had come in and done that. The

Of course,

the kitchen still didn't look all that hot, a couple other things still had problems that needed to be
cleaned.

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So he took Rachel over there to help with the And there is no dispute as well. Now, there is a time dispute as to what

cleaning.

time they actually got there. o'clock, some people say 1:00.

Some people say 11:00 I don't know that's all

that important, but that's for you to decide. Then, as they get there, there is also no dispute that Rachel helps put all the furniture back.

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They do that for a while.

When it comes time to clean

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up, there is -- you know, "she is not very helpful. She starts acting rather peculiar. You're going to hear

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testimony that she is alleging apparently, although she never saw anything -- the State's case apparently is that Mr. smith then took Halcion and put in her apple cider. We expect the state, or our office will be doing When you add Halcion to apple

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a little experiment.

cider, see what it tastes like, what it looks like, why
somebody would drink such a liquid.

The next thing that happens, of course, right on time, Mrs. smith"arrives home. on the phone talking to her friends. She sees Rachel

Her mother gets a

call -- and her mother calls Rachel, talking to Rachel. Her mother decides well, maybe something ought to get done. But then her mother starts talking to her

boyfriend in Colorado, forgets all about her daughter,
pays no more attention to her daughter. So when you

hear testimony that Rachel was acting extremely strange, remember, the mother doesn't think she was acting strange enough not to talk to her boyfriend in Colorado. All right. she comes home. The next thing that happens is

She acts strange for while, finally And at the hospital, you're

take her to a hospital.

going to hear evidence apparently that there was a urine

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test taken.

When you get to that portion, you have to

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remember quite a number of things.

First of all, you're

not going to be allowed to hear the doctor's testimony.

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You're not going to be presented a lot of evidence you
may want to hear.

And you're also going to hear

Detective Powers went over and he searched Bill's house. When you hear that he searched Bill's house, you're going to ask yourself, what did he find and what didn't
he find.

It's true, he found an old old bottle of And the evidence will also

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Halcion, very old bottle.

show that there had been'several prescriptions ordered since that last bottle

-- sinc~

that bottle had expired.

You will also hear evidence there is no reason to suspect

-- no evidence

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that Mr. smith had You'll

cleaned out his house or thrown anything away.

hear that he kept the mug and he kept the apple cider that's allegedly involved. But they never found the You'll also hear

current prescription of Halcion.

testimony from Detective Powers that he never !searched Rachel's purse, that he never searched her apartment, never searched where she lived to see whether or not she
had the bottle of Halcion.

Basically then, you're going

to be left with the question

-- you have

two

circumstantial cases, one circumstance points to innocence; one circumstance which may point to guilty.
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In that case I would ask you to vote not 'guilty. Thank you.
THE COURT:

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Thank you, Mr. Griffith. Members of the Jury, what we

All right.

are going to do now is proceed with the presentation of evidence through the witnesses to be produced and presented by the state.
Both sides -- or, the Rule, excuse me, on the exclusion of witnesses has been invoked. What that

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Rule means is that except for the Defendant and the case

agent, any witnesses who testify in a trial need to wait outside the courtroom until it's their turn to testify. The reason for that is that a witness who hears a preceding witness, someone who goes in front of them, say things, may be influenced either directly, consciously or subconsciously by what they hear prior to their taking the stand. So, the Rule on exclusion of At this time, Ms. Bowen,

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witnesses has been invoked. your first witness?
MS. BOWEN:

Thank you.

The State calls

Rachel Tseko.
THE COURT:

All right.

If you would come forward to the clerk here in the blue dress she will swear you.
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THE COURT: You need to move the microphone just a little bit in front of you. need to move it real close to your mouth. You don't

It will pick

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up your voice about five inches away if you put it right in front of you.
Thank you.

Ms. Bowen?
MS. BOWEN:

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Thank you.

R A C H E L

T S E K 0

called as a witness herein, having been first duly

sworn, was examined and testified as follows:

D IRE C T

E X A M I N A T ION

BY MS. BOWEN:
Q.

Please state your name. Rachel Tseko. How old are you, Rachel?
16.

A. Q.
A.

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Q.

What is your date of birth? June 11th, 1979. Are you currently employed?
Yes.

A.
Q. A.

Q.
A.

Where is that? At Taco Bell in Fountain Hills. Do you go to school?

Q.

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A.
Q. A.

Yes, I do.

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What grade are you in? I'm a junior, 11th grade, Fountain Hills. What is you~ grade point average? It varies from 4.0 to like a 4.5. Is that under some special grading system

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Q.
A. Q.

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you're allowed to get more than a 4.0? A. I'm in mostly honor classes, and I'm

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taking college credit.

Q.
accumulated?

How much college credit have you already

A.
first year.

Right now, I'm in EP calculus.

This is my

Q.

In addition. to school, do you belong to

any extra-curricular activities?

A.
volleyball.

Yeah.

I have been in softball,

I'm in yearbook and student government.

And I can't handle very much more than that.

Q.

Have you been previously employed by a

person known to you as William Floyd smith?

A. Q.

Yes, I have. Is that person that you know as Mr. smith

in the courtroom today?

A. Q.

Yes, he is..

will you please point him out, tell us

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what he is wearing?

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stripes on it.
Q.

Right there in the suit with the tie,

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Yeah, with the glasses? Yes.
MS. BOWEN: Record will reflect the

A.

witness has identified the Defendant?
THE COURT: BY MS. BOWEN:

The record will so show.

Q.

Can you recall the period of time which

you worked for him?

A.
varied. months. Q. A. Q.

I

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I have to say, probably about -- 1t

I don~t know, like, two months maybe, three

What year was that? In '93 I believe. Do you know what months of the year you

worked for him?

A.
Q.

I think it was '94, sorry. '94? What months was that?

A.
July.

It was probably, I think, May, June and

Q. A.

How was it that you first met Mr. smith? I had another job at the Fountain

Restaurant and I worked there, and he approached me and
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asked if I wanted another job. me Q. When you worked at the Fountain

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Restaurant, what was your job there?

A. Q. A. Q.

I bused tables, and I scooped ice cream. Is it a sit-down type of restaurant?
Yes, it is.

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Did you have the occasion to serve

Mr. smith at all? A. Yeah.

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When customers came in, we gave

them water, menus, talked to them, friendly.
Q.

How many times had you seen him previously

to him inviting you to work for him?

A.

He had been in probably, that I noticed,

he was like a regular kind of thing, like I noticed him, probably three times. Q. How did the discussion come up about you

potentially working for him?
A.

I don't know, like small talk kind of

thing, how long had I been working there, and if I had any extra time, would I like to come work for him.
Q.

Did he put up a notice for employment or

solicit via a general notification to everybody there?
A. Q.

No.

Just me.

Did you answer an ad in a paper? No.

A.

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Q.

Did he indicate to you what that type of

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employment might be? A. Q.

He said to help him organize his office. Was he more specific as to what your

duties would be? A.
Q.

No. Did he indicate to you how much he would

pay you to work for him?
A.

He said -- he asked how much I had been

paid at that restaurant and said that he would pay me $6 an hour.

Q.

Did you contract with him or sign an

agreement to work for him?

A. Q.

No, I didn't.
Did he indicate to you how many hours per

week you could work for him?

A.

No, he didn't. What was the set schedule of w~en you

Q.

would work for him?

A.

Whenever I had free time, if -- whenever I

could get a ride there, basically.

Q.

Were there any definite times that you

needed to be there to work for him?

A.

No.

Just as long as I wasn't working at

the restaurant.

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Q.
Fountains? A.
Q.

You maintained your employment at the

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Yes, I did. This was a second job on top of that? Yeah. Where was it that you would be working for

A.
Q.

Mr. smith?
A.

I would be working at his office.

It was

Detech Detailing. Q. A. thing. Is that a business office? Yeah. It's like an architectural kind of

Q. A. Q.

Was that located also in Fountain Hills?
Yes, it was.

Now, you indicated you might have

difficulty getting there for transportation?

A.
yeah.

Yeah.

Because my mom worked and so -

Q. A. Q.

You didn't have a car at the time?

No, I didn't. Did Mr. smith volunteer to get you back

and forth from work?

A. Q.

Yes. Would he pick you up at your residence in

order to take you to work?

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Q.

Yes. Did you ever work for him anyplace besides

the business location?
A. Q. A. Q. A. Q. A. address.

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Yes, I did. Where was that? In his home. Where was his home located? In Fountain Hills. Do you know the address? It was on Shagbark. I don't know the

Q.

Was the definition of what your job was

the same at his home as it was at his business?,
A. Q. A.

No.
How did it vary once you got to his home?

I'm not big on housework, so he said he

needed some done, like vacuuming, dusting, just any odds and ends like that, sweeping. Q. A. Q. Did he agree to pay you for that? Yes. Was it the same $6 an hour you had been

paid at the business?

A. Q. A.

No. Wha was the rate of pay at his house? t $8.

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When you were to work at his house, was it

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strictly housework?

A. Q.
A. Q.

No. What else would you do? Often we talked. We watched movies.

Did he ever have you do business work at

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his home?
A.

No.

Q.

Was there a business set up at his home

that you could tell, as far as filing cabinets, phones, that type of thing?
A. Q.

No. So if you were at his home you definitely

knew it would be an $8 an hour position?
A.

Yes. If you were at the business it would be $6

Q.

an hour?

A. Q.

Yeah.

When he would pick you up to work, did you

know at that time how long you would be working that

day? A. Q.
No. Did you make a preset agreement if he

picked you up you would be home in an hour, two hours, three hours?

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A. Q. A.

Usually I'd get home around 5:00. Home from where? Home from -- usually we were at the

office, and then we would go to his house for like an hour or two, and then go home.

Q.

That's how you would know what your rate

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"

of pay would be, depending on which location you were at?

A.

It wasn't like really set in stone kind of

thing, just basically whatever he wanted to pay me.
Q.

What basis, or what frequency would he pay

you?

A.

I only got paid once.

And it was, like,

for a week's time, working three days.
Q.

Did h~ write you a personal check for

that?
A. Q.

Yes, he did. Did he ever consult you regarding the

number of hours you thought you should be paid?
A. No.

Q.

Did he have any contention or did you

disagree with what he thought you worked that night?
A.

No, I was happy. Was it more than you deserved to get paid

Q.

for what you had worked?
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A. Q.
by him? A.
Q.

Yeah. Now, you indicated you only got paid once

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Yes. That was supposed to be for one week's

worth of work?
A. Q.

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Yeah. How many weeks had you worked for him at

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the time that occurred? A.
for him. Q.

I think that was the first week I worked

First week you worked for him you get

paid, you're happy; correct?
A. Q.

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Yeah. Did you continue to work for him after

that point?

A.

Yeah.

I had gone on vacation, came back

and worked for him. Q. Now, you indicated also that there were

times at his home you would do other things besides work, such as watch videos? A. Yes. I'm sorry? Yes. Whose idea was it to watch videos?

Q. A. Q.

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A. Q.
idea to watch videos?

His. How would you understand that it was his

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A.

Because if there was not anything else to

do he said that I could watch, first my soap operas,
then he said he had a chest full of movies, if I wanted to watch I could.

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Q.

Did he ever tell you while you were

watching videos to stop doing that and work for him?

A. Q.

No. Did he ever complain you were not

basically earning your wages while you were there?

A. Q.

No. Had he ever referred to you in any

derogatory manner such as being lazy?

A. Q.

No. Were you ever approached by him to perhaps

end this business arrangements because it just wasn't working out?

A. Q.

No, not a at all. Was it your impression that Mr. smith was

pleased with you as an employee?

A. Q. A.

Um hum, yes.'

While at his home -- did Mr. smith work? He would help clean or whatever I was
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doing.
Q. home?

Did he do his usual business work while at

A.
Q.

No.
Such as tal~ to clients on the phone? No. Did clients come to the house? No. Did you ever meet any of his business

A.

Q. A. Q.

persons at the residence?
A.
Q.

No.
What was the general condition of his

house like?

A.

It was, it was a nice, like, cozy house.

It was kind of messy because he said he didn't -- his

wife was on vacation, so it was a bachelor pad kind of thing. Q.
of disrepair?

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Was it -- can you describe it, in a state How much cleaning did it require when you

went there?

A.
Q.

Not very much. Were there piles of dishes in the sink? No. Were you required to do bathrooms? No.

A.

Q. A.

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Q.
Scrub floors?
A.

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No. Q. Were there those items that needed to be done, but just not done by you?
A. done.

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Not really.

They didn't really need to be

Q.

On the days that you would work for

Mr. smith how would it be. you got home from his
residence?

A. Q.

He would give me a ride.
And generally that would be around 5:00

o'clock in the evening?

A. Q. A. Q. A. Q.
vacation.

Yes. Did he ever have you work weekends? I don't recall. Or late into the evening? No. You mentioned that Mr. smith's wife was on Had you met her prior to her leaving? No. Had you met her during the course of the

A. Q.

time you worked for him?
~.

No. Was there ever an occasion you did meet

Q. his wife?

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No.

Q.

Prior to hiring you, did Mr. smith discuss

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with you what he would consider appropriate apparel for you to work -- to wear to work?
A.

No. Once you started working for him, did he

Q.

ever discuss that with you?

A.

He said that he would like to see me in

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more dresses and more office wear, because I would go in cutoff jeans and things of that sort since it was summer.

Q.

At the time that you were at his business

office and working, did you have the opportunity to meet
the people that" he worked for?

A.
name.

Yes.

I met one guy.

I don't recall his

Q.

Was it the kind of business people would

come into the office on regular business and meet with Mr. smith?
A. No.

Q.

Was there a.lot of walk-in clients, people

from the street coming in to ask questions about the business?

A. Q.

No. How frequently would you have contact with

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the public?

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A.
Q.

Not at all. Was your job in, in the front office the

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kind of thing, if people came in, you would be the person they would talk to or see?
A.

No. Did Mr. smith tell you to buy clothes in

Q.

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order to be more appropriately dressed for work?

A.

No. Was there ever a discussion regarding

Q.

shopping for clothes?

A. Q. A.
7th.

Yes. Do you recall when that occurred? It was probably the week prior to July

Went shopping Wednesday, July 6th.

Q. A. Q. A. Q.

You went shopping with whom? William smith. Was anyone besides the two of you present? No. Had there been a discussion about shopping

prior to the time of going shopping?

A. Q.
mother?

He said that we would go shopping. Had he discussed the matter with your

A.

No.

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62 1 Q.

Were you prepared to go shopping that day? Yes. How was it that you were prepared to go? We set a certain time and stuff, and I was

2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A.
Q.

A.

going to get ready and we went shopping together.
Q.

Did you bring any money with you to go

shopping? A.

No, I didn't.
Was there an agreement with you and

Q.

Mr. Smith as to how the clothing would be purchased?

A. Q.

No.

He paid for it.

Did he discuss with you prior to going

shopping that you would be required to pay him back?

A. Q.

No.
Did he discuss with you any formal

arrangement for how he would get reimbursed for this

clothing?
A.
q.

No.

Was it your understanding that you were

going to pay him back for this? A. No. Where did you go shopping? We went to Paradise Valley or Fashion

Q. A.

Square. I don't recall which one. Q.
And how many stores did you go to once you

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63 1 2 3

were there? A.
Q.

Probably went to like seven or eight. Can you describe for us the various types

4
5 6

of clothing he purchased for you? A.
like that.

Dresses and skirts and T-shirts and stuff

7 8
9 10 11 12 13 14 15 16

Q. was purchased?
A.

Did he have any say-so in what it was that

Yes. Did he pick it out? Yes. Did you have any say-so in whether or not

Q.

A. Q.

you wanted that item?

A. Q.

Yes. And if there was a disagreement whether

you wanted it or he wanted it, would your opinion prevail?

17 18 19 20 21 22 23 24 25

A.

Yes. Was the clothing purchased appropriate for

Q.
work?

A. Q.

Yes.
Can you give us an estimate how many

outfits you think were purchased?

A. Q.

Probably between 12 and 15.
10 to 12?

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64 1

A.

10 to 12.

2 3 4 5 6 7 8
9

Q.
A.

Different pieces of clothing? Yeah. Different pieces of clothing. No

more than that, like,

probably had seven dresses and

then, between seven and eight shirts and skirts. Q. that evening?
A. Q.

Do you know how much money Mr. smith spent

It was between 400 and 450. Were you aware of that from having seen

10 11 12 13 14 15 16 17 18 19 20 21 22
23 24 25

the receipts?
A.

Yes. As well as watching it be rung up at the
I

Q. I register?

A.
Q.

Yes. Did you discuss at'all, this seemed to be

extraordinary amount of money?

A. Q. A.

Yes. What did you tell him? I wasn't used to being spoiled like that

and I didn't think it was necessary to buy so much. Q. What was his response to that? Don't worry about it. It's okay. You've

A.

never been spoiled. kind of thing.
Q.

This is your day out, basically

Were you concerned at all about bringing

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--

65 1

that amount of clothing home?
A.
Q.

2 3

I was excited. Did you feel at some point in time you

4
5
6

would have to explain this to your mother?
A.

No.

She would not -- I didn't think she

would care.

7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

Did you intend to hide the fact that you

had gotten clothing?

A.

No. Did you show your mother what had been

Q.
purchased?
A.
Q.

Yes.

Did you tell her at that time that

Mr. smith had purchased it for you?
A. Q.

Yes. At that time, did you indicate to your

mother there was an agreement between you and Mr. smith that you pay him back? A.
No.

Q.

Was it your understanding at the end of

buying all the clothes you were supposed to pay Mr. smith back?

A. Q.
as Exhibit 14.

No. I'd like to show you what has been marked

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66 1

May I approach?
THE COURT:

2 3

Yes.

BY MS. BOWEN:
Q.

4
5 6 7 8 9 10 11 12
13 14 15 16 17 18 19 20 21 22 23 24 25

Ms. Tseko, I'm handling you an envelope. Could you please

In that envelope is a piece of paper. read that document to yourself?

Have you read that to yourself? A. Q. Yes.

Do you recognize that piece of paper? No.
Were you shown that piece of paper by

A.
Q.

Detective Powers during the course of this investigation?

A. Q.
paper?

I think I saw it once or twice. Do you recognize the printing on that

A.
Q.

Yes.
Is that the printing of Mr. smith?

A.
Q.

Yes. Now, that exhibit basically detailed that

he purchased some clothes for you and you will be paying him back; is that correct? A. Q. A. Yes. Did you sign that document? No.

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67 1 2 3
Q.

Had you seen that document prior to the

time you went shopping?
A. Q. shopping? A.

No. Had you seen that document after you went

4
5 6 7 8 9
10 11 12 13 14 15 16

No. On the day you went to his house, the next

Q.

day, did he present that document to you? A.
Q.

No. At any time did Mr. smith indicate to you

you would be paying him back for the clothing he purchased for you? A. No.
MS. BOWEN:

The State moves Exhibit 14

into evidence.
THE COURT:

Any objection? No, Your Honor.

17 18 19 20 21 22 23 24 25

MR. GRIFFITH:

I join in

that motion.
THE COURT:

Thank you.

Exhibit 14 is

admitted. BY MS. BOWEN:
Q.

Of the times you worked for Mr. Smith, how

frequently would you work' at his home?
A.

I started working at his home more than at

his office.

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68 1 2 3 4 5 6

Q.
worked for him?

Do you know the total number of times you

A. Q.

Maybe 10 or 15 times.

Was there ever an occasion you were at

Mr. smith's house and he asked you to sunbathe? A. Yes. Do you recall what time -- what day it was

7 8
9

Q.

that you were there? A. Q. No. Was this

10
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

during the formal work hours that

you were with him?

A . Q . A . Q . that day? A. Q.
wearing?

Yes. This is at his home? Yes. Do you recall wh~t the weather was like
I

Very hot.

Do you recall what it was you were

A. Q.

Shorts and a shirt. Did Mr. smith indicate to you why it was

he wanted you to sunbathe?

A.

He had done it regularly, every day. Would it be a normal practice for him to

Q.

sunbathe while you were there?

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69 1

A.
Q. A.

He only did it once. Is it the time we are talking about now? Yes. How was it the conversation evolved you

2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

should join him to sunbathe? A. I was in the house working, and he had

been out there, and he came in, and he said, you're just

slaving away, why don't you come out and join me. didn't think it was right. for me to go out there.

And I

Q. A. Q.

Does Mr. smith have a pool at his house?
Yes, he does. On that occasion ,were you prepared -- had

you prepared, prior to going over there, to sunbathe?

A. Q. A. Q.

No. Did you bring your swimsuit with you? No. Did Mr. smith tell you to bring your

swimsuit that day? A. Q. sunbathe? A. Q. No. Was there any offer of money to encourage
No.

Was it part of your job description to

you to sunbathe?

A.

No.

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70
1 2
Q.

What was Mr. smith's recommendation for

you to sunbathe with him? A. He was going to try to find me a bathing

3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

suit in his wife's closet. Q. A. Q. A. Q. Did he make that attempt to look for it? Yes. You hadn't seen his wife previously? No. Do you know whether or not you're the same

build as she was?
A. Q. A Q. no suit?

No. Was he able. to find a swimsuit? No. I take it he returns, tells you there is

A We both looked for the suit. . Q Are you still encouraged to go swimming or . sunbathe at that time? A. Q. Yes. Well, what solution was offered for the

fact there is no suit for you? A. Q. A. Q. Just to go in my bra and underwear. Who made that suggestion? Him. How is it that he presents that to you?

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71 1 A.

Just said, can't you go in what you're

2 3 4 5 6 7

wearing kind of thing.
Q.

At the time aren't you wearing shorts and

a top? A. Q. Yes. Again, there would be a suggestion of less

than thatj is that right? A. Q. Yeah. I could go in my bra and underwear.

8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Did he actually say that to you, go in

your bra and underwear? A. I don't know if he said it in those words,

but it was implied. Q. A. What was your response to that?

I -- at the time, I didn't -- I thought it

was harmless, so I did. Q. Were you concerned at all about Mr. smith

seeing you in your bra and underwear?

A. Q.

Yes. Did he do anything to .alleviate your

concerns or fears?

A.

He told me not to be modest, and that I He wasn't even going to look at

had a beautiful body.

me. Q.
At the time that your -- did you comply

with that request?

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72 1 2 A.

Yes, I did. How long is it that you are sunbathing?

Q.
A. Q.

3 4 5 6

Ten minutes. During the time that you and Mr. Smith are

sunbathing, is anyone else present in the residence? A.
Q.

No. I'd like to turn your attention to the
Was

7
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

evening of July 6th, the night before July 7th. there anything in particular you did that evening?
A.

I think me and my mom and him went out to

dinner.

Q.
evening?
A.

Do you recall how late you stayed out that

Not very.

I don't recall.

Q.
A. with an M. Q.

Do you know where you went for dinner? We went to a Mexican restaurant, starts I don't know the name. How is it that you and your mother both

end up going out to dinner with Mr. smith?

A.

He wanted to get a chance to know my mom

since he had heard a lot about her and thought it would
be nice.

Q. A. Q.

Had he invited you to dinner? Yes. Did he make the request you invite your
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Case 2:04-cv-00573-FJM

73 1

mother?
A.

2 3

I don't recall. Do you know whether it was your idea for

Q.

4
5 6 7
8

your mother to come or his idea? A. Q. I don't know. On that evening, did you stay up

particularly late? A. Q.
I don't know. What would be your normal time to go to

9 10 11 12 13 14 15 16 17
18 19 20 21 22 23 24 25

sleep during the summer?

A.

It depended on if I worked the next

morning or -- it varied. Q. The next day would be July 7. Were you

expecting to work for Mr. smith that day?

A.
Q.

Yes, I was.

How would it be you would know whether you

would be working for Mr. smith the next day?
A. before. He would tell me the night before or day

Q.

Do you recall when it was he told you you

would be working on the 7th?

A.

Either while we were shopping or while we I don't recall.

were out to dinner.
Q.

What was your understanding what hours you

would be working for him the next day?

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74 1 A.

He said to be ready by 12:00.

That's all

2 3

he said.
Q.

Based on the fact you would have to be

4
5
6

ready to go to work by noon, does that affect what time you would go to sleep the night before?
A.

No.

I figured I had enough time to sleep

7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

in.
Q.

Would it be your practice to use anything

to help you sleep?
A. Q.

No. Have you ever used at that time, a

sleep-inducing agent? A. No. So far as you know, were you given any

Q.

Halcion at your home the night before?

A. Q.

No. Now, as to the next day, July 7, you

indicated that Mr. smith was going to pick you up that day for work? A. Q. Yes. He said be ready by noon? Yes. Did he come by at noon? Yes. Was it necessary to call you beforehand in

A. Q. A. Q.

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75 1

order to get you ready?
A.

2
3

Q.

No. Do you

recall what time it was you woke up

4
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the day of the 7th? A. I woke up early because my brothers were

loud downstairs. Q. A.

Can you give us a timeframe? Probably woke up at 9:00 o'clock.
What would be your normal practice to get

Q.

ready for work?

A.
breakfast.

Take a shower, and get dressed, and eat

i

Q.
or make-up?

~o you do anything special for your hair

A.

No. Would you also know beforehand whether you

Q.

would be working at the business or at his home?
A.

Yeah.

At his home.

Q.

He would also indicate to you previously

which location you would be at?

A. Q.
home that day?

Yeah. Okay. So you're expecting to work at his

A. Q.

Yes. And that's, again, is in Fountain Hills?

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76 1

A.
Q.

Yes.
Do you know what time it was you got to

2
3
4

his residence?

A.

Like between 12:00 and 12:15. Was there a set schedule that day for how

5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

long you would be working?

A.
Q.

No. Was there anything unusual about how you

felt on your way to or -- before you got to Mr. Smith's house?

A. Q.
A. Q.
A. Q. A.

No.

Were you particularly sleepy?
No. Or drowsy? No.

Were you ill at all? No. What work was it Mr. smith had you do that

Q.
day?

A.

I don't recall if it was moving his

furniture back or just watching movies.

Q.

Why would it be you would have to move his

furniture back?

A.

I know one time I worked for him he had One day I moved his furniture

his carpet shampooed.

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77
1

back.

2 3

Q. of July 7?
A.
Q. A. Q.

Do you recall watching videos on the day

4
5
6

Watching videos, no. Or going through the videos to watch? Yes. Why was there a discussion about videos or

7 8
9

going through the videos?
A.

He had a chest of movies, and I was going

10 11 12 13 14 15 16 17 18 19 20 21 22
23 24 25

to pick some out to take home with me so my mom could
watch some.
Q.

You were sorting through those videos? Yes. What was Mr: smith doing during the time

A.

Q.

you were looking through the videos and rearranging the videos?

A. Q.
business?

He was fixing us a drink in the kitchen.
Was he busy on the phone with his normal

A. Q. A. Q.

No.

Or any personal calls that you could tell? No. Were you interrupted at all during that

period of time with phone calls?

A.

No.

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78 1

Q.

Again, is there any business equipment at

2 3
4

that home for Mr. smith to be working on?
A.
Q.

No. Now, you indicated that he was fixing a

5

drink in the kitchen?
A. Q.

6 7
8

Yes. Where were you at the time he's in the

kitchen?

9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A.

Around the counter in the living room. Are you able to observe Mr. smith in the

Q.

kitchen during the time he's there?

A. Q.

No.

'

Is there a wall or partition there that

blocks your view?

A. Q.

Yes. What is it you're asking, or what is it

you're going to have to drink?

A. Q.

App~e cider. How is it you came to that decision to

have apple cider?

A.
chocolate.

Because, he had asked if I wanted hot That's what he was in the mood
for. I

thought he was crazy since it was, like, 120 outside.

Q. A.

He offered the hot chocolate? Yes. And I said I didn't want any.
Filed 08/11/2005 Page 40 of 41 So he

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79 1

offered me any other drink and I asked for that.
Q.

2 3

You asked for the cider yourself? Yes.

A.
Q.

4
5 6 7 8 9
10 11 12 13 14 15 16

How it is you knew there was cider to even

ask for? A. Because, when I clean his house, I could I saw a

eat or drink anything that was in his kitchen. bottle of sparkling apple cider in his fridge. Q.
as Exhibit 1. May I approach?
THE COURT:

I'd like to show you what has been marked

Yes.

BY MS. BOWEN:

Q.

I'm going to hand you a bottle.

Do you

recognize that bottle at all?

A. Q. A. Q.

Yes.

17 18
19 20 21 22 23 24 25

How is it that you recognize it? It was the one that was in his fridge. Is that what you believed you were having

to drink that day?

A.

Yes. MS. BOWEN: The State moves to have

Exhibit 21 into evidence. MR. GRIFFITH:
THE COURT:

No objection, Your Honor.

Thank you.

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