Free Response - District Court of Arizona - Arizona

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1 II TERRY GODDARD

2 II (FIRM STATE BAR No. 14000) 3 " AARON J. MOSKOWITZ
ASSISTANT ATTORNEY GENERAL CRIMINAL ApPEALS SECTION 1275 ARIZONA 85007-2997

ATTORNEY GENERAL

4 II W. WASHINGTON PHOENIX,
5 " TELEPHONE: (602) 542-4686

(STATE BAR NUMBER 022246)

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RESPONDENTS

II

ATIORNEYS

FOR

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
WILLIAM FLOYD SMITH,
Petitioner, -vs

CIV 04-573-PHX-FJM (MS)

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13 14 15 16 17 18 19 20 21 22 23

DORA B. SCHRIRO, et aI., Respondents.

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

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of the conversation have been between -- I know you had obviously had conversations with her mother and her. I

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think that you should ask Rachel again. A.
These are mine.

I'm talking again to Detective Young. Those are my keys. I think you should ask Rachel again if her

Q. mom knew. A.
believe me.

Oh, it will be followed up, Mr. smith,
Like I told you before, you know, when we

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get involved in these things, sometimes it's like a tennis match, you know, it goes back and forth. And I concluded with: now. Q. That's the entire interview you had with We are off tape

Mr. smith; is that correct?

A. Q. you had told correct? A. Q.

Yes.

At the time of your discussion with him, him previously he would be tape-recorded;

Yes.
I'd like to go through some portions of

the transcript that are inconsistent with a version of events.

I'd like to draw your attention first to

page -- on the transcript number 6, page 2 of 35. You were asked previously how it came that

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Rachel worked for Mr. smith; correct? A. Q. That's correct. And you were asked whether or not he told

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you he had put up a sign or indication that he wanted
help at his office; correct?

A. Q.

I believe so, yes. Now, in the time that you are talking with

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Mr. smith you do ask him how it is Rachel comes to work with him?

A.
Q.

Yes.
At the time he explains it to you he does

not indicate he had posted any information at the Fountains?

A. Q.

No. The restaurant?
In fact, he indicates he had talked to her

a couple of times about working for him?

A.

Yes. At that time he does not mention there had

Q.

been other responses or that he had asked that of
anybody else; did he?

A.
Q.

No. And it wasn't until you brought up the

fact that you left word, that Mr. smith had left word at the Fountain Restaurant that he finally indicates that,

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yes, that's how things happened.

Do you remember that?

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A.
Q.

Yes, yes.

If I could draw your attention to page -

page 9 of that transcript, page 9 of 35. Now, between page 3 of 35 and 9 of 35 when

you ask him how Rachel comes to talk with you, he does
not mention at all he had put a notice up at the

Fountains Restaurant?
A.

No.

Q.

The first time he says that's the way it

happened is in response to a question you ask in leaving word at the Fountain Restaurant, the lastA. Q. I see that, yes. Did you also ask Mr. smith how long it was

that Rachel worked for him?

A.
Q.

Yes. In fact, you established a time frame when

Rachel came to work for him; is that correct? A. Yes. Now, under -- according to Mr. smith's

Q.

version of events, Rachel came to work with him after his wife left for Texas?

A.

Yes. He gave you the time frame at which she

Q.

left; is that right?

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A. Q.
of 35.

Yes.
If I could draw your attention to page 5

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Now, Mr. smith knew the timeframe in which
his wife left?

A. Q.
June?

Yes, did he. He indicates that's around 12th or 13th of

A. Q.

Yes. He specifically mentions Rachel worked for

him after that time?

A. Q.

Yes. So, we are talking about a timeframe of

approximately four weeks?

A. Q. A. Q.

Approximately.
From July -- from June 12th to July 7th? Yes.

At the time that Mr. smith is explaining

to you his wife left, did you inquire how it is she got up to Texas? A. I believe at some point in the

conversation I asked if she drove.

Q.
is driving? A.

You know at the time she comes backs she

Well, that's correct.

I asked how she

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returned, yes.
Q.
Did you ever confront Mr. smith why he

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would let his wife drive to Texas and back, then pay $400 to a girl he's known less than five weeks?

A. Q.

No.
Did he give you explanation why he had

money for the clothing but not for airplane tickets?

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A.

No. You also inquired from Mr. smith what his

Q.

range of pay was for Rachel?

A. Q.
paid her?

Yes.
What was the range of pay he indicated he

A.

He indicated to me that he, he was

initially paying her $6 per hour when she went to work for him in the office and then when I asked him about

the pay at home, he stated $10 an hour I think.

Q.
hour?

Did he ever make any mention of the $8 an

A. Q.

No. Did he indicate why it was he had elevated

the pay from 6 to 10 within five weeks? MR. GRIFFITH: object. Your Honor, I'm going to

Yesterday when I attempted to do this type of

questioning, it was objected to on the basis that the

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transcript is the best evidence of that, and the tape is

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the best evidence, and I would make that same occasion.
THE COURT: sustained.

Unless this

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witness has knowledge beyond what has already been read in the transcript, the interview of the Defendant, the objection is sustained.
BY MS. BOWEN:

Q.

Did Mr. Smith ever indicate to you why he

did not hire a cleaning service for $10 an hour? MR. GRIFFITH:
MS. BOWEN: Objection.

Goes to the extent of request

and extent of information Mr. smith gave to him.
THE COURT:

Overruled as to that question.

You may proceed. THE WITNESS:
BY MS. BOWEN:

The answer is no.

Q.

Throughout the course of the interview

Mr. smith has indicated to you he believes Rachel is lazy; correct?

A. Q.

Yes. Did you confront him why he was paying a

lazy person $10 an hour? MR. GRIFFITH:

Your Honor, I'm going to

object on the same grounds.
THE COURT: sustained.

Counsel, again,

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the information that this witness apparently knows is derived from his notes and from the transcript that's been read. BY MS. BOWEN:
sustained.

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Q.

Now, at the time you're talking with

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Mr. smith he indicates he is aware Rachel is still working at the Fountain Hills Restaurant; correct?
MR. GRIFFITH:
THE COURT:

Objection, same objection.
Overruled.

This witness can

answer based on his understanding whether or not it was stated.
THE WITNESS:

That was my understanding.

BY MS. BOWEN:

Q.

He also indicated to you he was aware how

many hours she was working there?

A. Q.

Yes. He also indicated at the same time she was

working there, Rachel was working for him? A. Q. Yes.
He gave the break-down of time she was

working for him; correct?

A. Q.

Yes.
Did you confront him at all whether or not

that made sense, she was working two jobs yet he perceived her as lazy?

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47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MS. BOWEN: objection. THE COURT: Overruled.

MR. GRIFFITH:

Objection, Your Honor, same

THE WITNESS:

No.

Q.

At any time did Mr. smith present to you

the cancelled checks that he had paid Rachel?

A. Q.

No. Or employment records? No.

A. Q. A. Q.

Or any verification for having paid her? No. You did question Mr. smith about the

clothing he purchased Rachel?

A. Q.

Yes. He indicates to you he has a record

regarding that transaction; correct?

A. Q.

Yes. Is the record he is talking about the

receipt we have been -- referred to as Exhibit 14? May I approach?
THE COURT: THE WITNESS:

Yes. Yes, that's it.

BY MS. BOWEN: Q. Did he present that to you?

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A. Q.

Yes, he did. When he presented it to you, did he

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describe it as the receipt he was referring to? A. I believe he stated something to the

effect, back at his office he had an invoice or
withdrawal sheet or something to that effect.

Q.
what that was?

Is that what he gave you in response to

A.

Yes. Is that at all marked as an office

Q.
letterhead?

A. Q.

No. Or any official documentation regarding

how it pertains to his business?

A. Q.

No. It also indicates that he expected Rachel

to pay him back at the rate of $50 per week?

A. Q.

That's correct. At the time that Mr. smith had purchased

the clothes, Rachel had worked for him approximately

four weeks, or at most four weeks?

A. Q.
maximum?

Yes. She was getting paid $10 an hour at the

A.

Correct.

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Q.

How many hours per week did he say she was

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going to be working for him?
A.

He said it varied. If I can refer you to page 9 of 35 as the

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Q.

number of times per week she would work for him. A. Two or three days a week she worked at the

restaurant and a couple of days.

Q. A. Q.

For him? Yes. So it's two times per week. And the

number of hours per time she work for him as referenced on page 8 of 35?

A. Q.

A couple, maybe three hours at a time. Total of six hours per week? MR. GRIFFITH: Assumes facts inconsistent

with the transcript.
THE COURT: Overruled.

BY MS. BOWEN: According to Mr. smith's calculation, Q.
be making approximately $60 an week with

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Rachel would
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him?
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That's correct.

A.
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Of which he was going to subtract 50 to

Q.
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pay for the clothing?

A.

That's correct.

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3 Q.

At the rate of $50 per week for a bill of

$450 -- is that what this receipts indicates, almost -

A. Q.

$439.
Let's give him the benefit, $400. It

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would take eight weeks to pay it back?

She was going to

work for him twice as long as she already had in order to pay back that money; is that correct? A. Q. Yes.
Is not it true he indicated that he was

hiring her for summer help?

A.
Q.

Yes.
That was referenced on page 2 of 35 where

he says he needs help from time to time in the summer?

A.
Q.

That's correct. At the time she is working for him there

isn't eight weeks left in the summer; are there?

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A. Q.
correct?

No. She was still going to school at the time;

A.
Q.

Yes.
Now, at the beginning of Rachel's

testimony, do you recall that Mr. smith -- Mr. Griffith

inquired whether or not Rachel had lied to her mother
about who paid for the clothes?

A.

I recall that.

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Q.

Throughout the transcript, isn't it true

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that Mr. smith indicates the mother is well aware who
purchased the clothes?

A.

Yes.

Q.
lie to her? A.
Q.

So it would not be necessary for Rachel to

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That's correct.

In fact, did Mr. smith indicate to you

when it was he had told the mother about the clothing?
A.

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It was some time prior to when they went

there, when they went shopping, at the dinner I believe. Q. It was Mr. smith's recollection they had

talked about it at the dinner at Macayo'si correct? A. Q. Yes, yes. When Mr. smith explained this to you, that did he tell her about

he told the mother at Macayo's,

this arrangement of Rachel paying her back -- him back?

A. Q.

No. Did you try to ascertain exactly what

Rachel's mother's supposed understanding was of this arrangement?

A.
Q.

Yes. When Mr. smith is indicating that Rachel's

mother knew about the arrangement, how did he explain it
to Rachel's mother he would be purchasing the clothes?

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MR. GRIFFITH:

Your Honor, I object.

This

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is all in the transcript. and earlier today. MS. BOWEN:

Same objection made yesterday

There are inconsistencies I'd

like to point out, two inconsistencies to the Jury.
MR. GRIFFITH: that.
THE COURT: Overruled.

I wasn't allowed to do

THE WITNESS: BY MS. BOWEN:

I'm sorry.

Q.

If I could refer you to page 14 of 35, the

first time Mr. smith indicates he told Rachel's

mother, starts with him saying: was anything out of line?

I didn't feel like it

A. Q.

Yes. And he indicates she knew. Then there is

a larger paragraph explaining exactly the extent for which she knew?

A. Q.

Yes. Could you please read the portion that

Mr. smith indicates how Rachel's mother knew?

A.
the bottom.

I believe that's the large paragraph near

Q. A.

Correct, I told Rachel Well, I told Rachel, I said, you need some

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clothes to wear to work.

I think the day before me and

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her mother and she went out to dinner -- the night before -- either the night before or a couple nights before.

I can't remember exactly when.

And the subject

of going shopping came up.

I planned on going shopping,

buy me some clothes and told myself, I'll buy her some clothes at the same time and she can have something nice to wear.

Q.

Then the explanation, he says he tells

himself he's going by to buy Rachel's clothes?

A.
Q.

Yes. He didn't indicate he told Rachel's

mother; did he?

A.
Q. A. Q.

Yes. It goes on to the next page; correct? Yes. And when you are questioning him about how

much he had told her the mother, he responds again as to what exactly he told Rachel's mother; correct?

A. Q.

Yes. Indicate what Mr. smith said he told

Rachel's mother.

A.

Okay.

I, I asked him the question:

So

you spoke to the mother about clothes and did you say anything about, oh, I would like to take her out and buy

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her some clothes. And he replied:

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I don't know if that I mean, it

subject ever came up exactly like that.

was -- she knew that I was going to buy Rachel some clothes and I think that's probably as far as the conversation went.

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Q. A. Q.

That's the entire conversation; correct?

Yes.
I'd like to draw your attention to page 7

of 18 of the second transcript where you are again

asking him whether or not Rachel's mother knew about this arrangement.

A. Q.

Okay. And at the time you're asking -- it's,

again, the night that they are at the restaurant; correct?

A.

Yes. He said that she was aware of it that

Q.

night; correct?

A. Q.

Yes. From that point down to the bottom of that

page, does he give any other explanations of how much conversation went on? A. Q. No. But at the end of that conversation he

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says it was totally discussed; correct? A. Q. Yes. He's referring to discussed, he's

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referring to the point she knew he took her shopping? A. Q.
schedule?

Yes. No discussion about this repayment

A. Q.

No. Did you ask Mr. smith specifically how

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much he had spent on the clothing?

A. Q. A. Q.

I believe I did. Was he able to give you an exact figure? No. I don't believe so.

In the first time you're discussing about

how much he paid for the clothes, do you recall that he

told you he didn't know exactly because he didn't have the receipts?

A. Q.
add it up?

Right.
He was waiting to get them from Rachel to

A. Q.
that correct? A. Q.

Yes. Page 16 of 35 in the first transcript; is

Yes.

In fact, he says he never added it up;

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correct?

A.
it up.
Q.

He says:

I don't

remember and never added

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Now, at the same time he told you that he

had a receipt, that repayment bill for the total, did you ask him how he could get a repayment bill for the total when he didn't have the receipts? A. Q. No.
In fact, he also indicated he was going to

take it off an invoice from his billing department; correct?

A.
Q.

Yes.
Did he indicate to you how he could do

that without having the total?

A. Q.

No.
As to the chronology of the day of July 7,

did Mr. Smith indicate that he was aware in fact his

wife would be home on July 7?

A.

He indicated he knew she was coming home

the next day or even that day, as I recall.

Q.

So it wasn't clear in your conversation

that he had a definite date and time in mind?

A. Q.

No. When he picks up Rachel what was the time

he gave for picking her up?

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A. 12:00 o'clock.

He stated it was somewhere around 11:00 to

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I think it was closer to 12:00 o'clock.
When he gets Rachel to the house, does he

Q.

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indicate at that time that she is working for him?
A.

Yeah.

I think he indicated they were

there for an hour or so doing something.
Q.

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Now, immediately when they get past the

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Adobe Liquor store and buying beer, they come to the house; correct?

A. Q.

Yes.

At that point he says there was some

cleaning to do?

A. Q.
the cleaning?

Yes. Does he indicate who it is that's doing
If I can refer you to page 23 of 35, the

bottom paragraph?

A.
furniture.

He indicated they started rearranging the

Q.

He says we?
We, yes.

A. Q. A. Q.

Meaning he and Rachel? Yes.
At the time they get to the house she is

doing some work for him?

A.

Yes.

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Q.
that time?

Does he indicate what else she is doing at

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A.
Q.

Only dusting. When in relationship to this cleaning and

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dusting does he go to get her something to drink?

A.

Early.

Apparently either during it or,

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you know, near the end of the first phase of when they were working on it.

Q.

At the time he's indicating that the apple

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cider is in the refrigerator?

A.
Q.

Yes.
Did he indicate where it was they were

drinking, that Rachel was drinking the cider?

A.

In the living room. When he opened the bottle to give it to

Q.

her, where is Rachel supposed to be at that time?

A.
Q.

According to him, standing next to him.
And he indicates that he opened the bottle

and pours it for her; correct?

A. Q.

Yes. Is it clear in your mind whether it's a

fresh bottle or used bottle? It was my -- I'm not certain ifI -- if I or have an understanding whether it was fresh or, opened already I believe it was not opened but I can't be ,
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A.

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sure.

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Q.

He refers to opening it several times, but

it doesn't indicate a fresh bottle at that point; does it?
A.

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Right, yeah. I would like to show you what has been

Q.

marked, discussed previously as Exhibit 21, and, and introduce to you Exhibit 31.

May I approach?
THE COURT: BY MS. BOWEN:

Yes.

Q.
Exhibit 21.

Now, we have talked previously about

A.

Yes. And that's the bottle that you seized from

Q.

Mr. smith's house; correct? A. Q. Yes.
Up there is the second bottle that you

were discussing previously with Mr. Griffith during the cross-examination?

A.

That's correct.
Can you identify 31 other than the green

Q.

tag that's on there? A. Yeah. It's -- there is a Maricopa County

Sheriff's Office evidence label on this, dated -- I'm

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sorry, with the departmental report number, and also
item number 117.

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Q.

Indicating the number you're referring to,

is that a piece of evidence? A. Q. Yes.
And the bottle that we referred to

previously as Exhibit 21, does that have an evidence

label on it also? A. Yes. What number of evidence does that contain

Q.

under the Maricopa County identification? A. Q.
correct? Number 116. And they are the same brand, bottle type;

A. Q.

Yes, the same brand, yes. And Exhibit 31 shows it in an unopened

pristine condition? A. Q.
Correct. Of those two bottles, which did you submit

to the DPS crime lab for analysis?

A. Q.

Item number 116. Is that referenced in your report as to

the one you were requesting for analysis?

A.

Yes.
MS. BOWEN:

The State moves to have

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Exhibit 31 into evidence.

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MR. GRIFFITH: not sure if 21 is in yet. in. MS. BOWEN:
THE COURT:

That's fine, Judge.

I'm

If it isn't, I would move it

It's in, Your Honor.
21 is already admitted.

Exhibit 31 is admitted also. BY MS. BOWEN:

Q.

Between the first glass of sparkling cider

and the second glass of sparkling cider, where does Mr. Smith indicate he put the bottle of sparkling cider?

A. Q.
out?

In the freezer. Does he indicate when it is he takes it

A.
Q.

Well, when she requests another drink. At the time he takes it out, he's

indicating it's already semi-frozen?

A. Q.

Yes. At the time she is getting the second

drink, where is she getting the second drink? A. second drink? Where is she when she is getting the

Q. A.
Q.

Yes. In the living room. Mr. smith had to bring it to her and pour

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it for her?

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A.
Q.

Yes. How much of the bottle did Mr. smith

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indicate Rachel had drank? A. gone from it. Q. A. So when you he says she drank it all He says all that was gone.
He also indicates she was drinking it out

He indicated she had drank whatever was

Q.
of the bottle?

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A. Q.
bottle? A. Q.

Yes. Did he indicate how it was she got the

No. Well, you indicate that -- did you ask

Mr. Smith what he did with the bottle when he was done with it?

A. Q.

No.

Didn't he indicate he had put it back in

the refrigerator? A.
I believe so.

He made reference to it

being in the refrigerator.

Q.

You confirmed that by saying that's where

you found it when you seized it? Did he give you an explanation why Rachel

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was drinking out of the bottle when she had a glass
there?

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A.

No. Prior to the time of drinking from the cup

Q.

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of cider, did Mr. smith refer to Rachel's demeanor as being goofy or giddy? MR. GRIFFITH: Your Honor, I'm going to This is all in the

object, again, on the same grounds.
transcript.

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

He shouldn't be having to guess as to where

it is, what it is.
THE COURT: Overruled.

THE WITNESS:

I believe he made some

reference to her, when they got to the house, acting goofy or something to that effect. BY MS. BOWEN:

Q.

I'd like to draw your attention to the Now, this is the

transcript that, on page 28 of 35.

portion where you're talking, she has already had her drink of apple cider; correct?

A.

Yes. About midway through that paragraph -

Q.

transcript, he mentions a change in her behavior; isn't that right?

A.
Q.

Yes. What does Mr. smith indicate?

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A.

Okay.

I just asked:

After she had that

2
3

second drink, did you remember her making any statements or anything then. And he replied: was feeling drowsy. She mentioned that she

4 5
6

Sometime later I know she was

acting -- looking kind of like a goofy, like her -- she

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

was grinning. Q. And prior to that time didn't he indicate

that Rachel was tired but not goofy?

A.
Q.

Yes, I believe that's correct. Did he indicate he knew why she was tired?

A.

I think he referred to the fact she stayed

up late at night. Q. A. Q.
Didn't he say the prior, night before -

Yes.
-- this is that Thursday, they had gone

shopping and Macayo's on Wednesday; isn't that correct? MR. GRIFFITH:
THE COURT:

No, objection, incorrect.

sustained as to your If you know, go

testifying for the witness, Ms. Bowen.

ahead and ask this witness what the timeframe was. BY MS. BOWEN:

Q.

I'd like to draw your attention to page 14

of 35 where they are discussing when they were at Macayo's.

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65 1 A.

Page -- okay, at the bottom, yes.

2 3 4 5 6 7 8
9

Q.

Doesn't Mr. smith indicate the night

before they had been shopping? A. Yes.
MR. GRIFFITH:

Your Honor, I'm going to If he

object, Your Honor.

That is just not accurate.

wants to read the transcript, that's fine.

But she is

asking leading questions, and they are misleading
questions.

I object to the leading nature of them.
THE COURT:

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

Ms. Bowen, where is the

inconsistency between a timeframe of having gone shopping the night before with some prior statement elicited from the Defendant?
MS. BOWEN:

Rachel's mother and Rachel

indicate they went shopping on Wednesday.

Says the

night before, she went out to dinner, either the night before or a couple nights before. exactly when. up. I can't remember

And the subject of going shopping came

He's talking about the night before, before this

event they are discussing. MR. GRIFFITH: the whole transcript. No, he's not. We can read

He's talking about the night

before they went shopping.
THE COURT: sustained.

We will leave it

to the Jury to draw their own inference, the context

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which the statement is said, the night before.
Go ahead, Ms. Bowen.
MS. BOWEN: Thank you.

2 3 4 5 BY MS. BOWEN:

Q.

You've indicated previously that Mr. smith

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

had indicated that he and Rachel were moving furniture, used the term we; correct? A. Q. Yes.
Do you know how many times he said they -

we were moving furniture?

A.

I don't know specifically.

I recall the

one instance we just were looking at, but I can't tell you how many other times he did.

Q.
there that day?

Did you ask him the purpose for her being

A.

Yes.
At that time on page 22 of 35, did he

Q.

indicate why he had Rachel there that day? A.
the house.

Yeah.

He indicated she was there to clean

Q.

And to rearrange the furniture? Yes.
Did he change that later to say in fact he

A.
Q.

had done the rearranging and Rachel did not help?

A.

Yes.

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MR. GRIFFITH: most of it.

Objection.

He said he did

2 3

He did not say all of it.
THE COURT: sustained.

The Jury can drawn

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

their own conclusions as to any inconsistencies. BY MS. BOWEN: Q.
Did Mr. smith indicate that he had told

Rachel to lay down or to lay her head down? MR. GRIFFITH: object again. Your Honor, I'm going to

I think this is up to the Jury to decide

whether this is an inconsistency.
THE COURT:

Ms. Bowen, where are you going

with this?
MS. BOWEN: THE COURT:

May we approach? Yes.

(Side-Bar Conference, off Record)
THE COURT: MS. BOWEN:

All right, Ms. Bowen.
Thank you.

BY MS. BOWEN:
Q.

Do you know how many times Mr. smith

indicated he told Rachel to lay her head down?
A. Well, I can't remember specifically how

many times he told me that. once. Q.

I know it was more than

If I could draw your attention, please, to

page 30 of 35, the second entry from the bottom?

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A.

Okay.
Mr. smith indicates he directly told her

Q.

to lay her head down; correct?

A. Q. A. Q.

Yes.
He didn't say: Lay her head down.
If I could draw your attention to page 31

Lay down?

of 35, how does he phrase it that time?

A.

I suggested that she lay her head down. If I could draw your attention to page 32

Q.
of 35.

A.
that's me.

Last large paragraph from the bottom

-

I'm sorry.

Q.

Just a second, please.

On page 33 of 35,

about three inches from the bottom regarding Mr. smith.

A.

He indicated that:

Suggested again that

she lay her head down.

Q.
correct?

He uses the phrase head each time;

A. Q.

Yes.
Did he indicate she complied with his

request to lay her head down?

A.

No. MR. GRIFFITH:

Objection, to the word

request, Your Honor.

\
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69 1 THE COURT:

sustained.

2
3

BY MS. BOWEN: Q. Did he indicate whether he was telling her

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

to do it or asking her to do it?

A. Q.

He indicated he suggested she do it.
Did he indicate whether or not she

followed his suggestion?

A.

According to what he told me, he said she

sat there and was talking.

Q.

Did he indicate the period of time they

were sitting there talking?

A.

Well, he indicated it actually was for She was there until later in the day.

most of the time.

Q.

Was it -- did he ever have a clear

understanding when it was she finally went to sleep?

A.

I think he said it was somewhere around MR. GRIFFITH: I object as speculating.

We have the transcript.
themselves.
THE COURT:

The Jury can decide for

If you have the specific point

in the transcript, you can refer it to, Ms. Bowen. otherwise, the witness doesn't have a specific recall. BY MS. BOWEN:

Q.
of 35.

If I could draw your attention to page 32

Now, you're questioning whether or not she had

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laid her head down as of 2:00 o'clock, or 3:00 o'clock?

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.

Yes. What did he indicate whether or not she

had laid her head down by that time?

A.

Okay.

So you figure somewhere

--

it could

be as early as 2:00 o'clock or you say it might have been as late as 3:00 o'clock. She got kind of drowsy,

you suggested she lay her head down.
He stated:

Uh hum.

Q. A. Q.

But she didn't, she stayed up; correct?

Yeah.
On 31 of 35, previously when did she

indicate she had laid her head down?

A.

I suggested that she lay her head down and

relax for a few minutes. And I asked what time would he say that was.
And he said:

That could have been even as I don't know.

late as 3:00 o'clock, I guess.

Q.

During the time from when he had given her

the cider until the time he laid her head down, they were talking? A. Q. Yes.
In any of this conversation did he

indicate he was on the phone?

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71 1 2 3 4 5 6
7 8 BY MS. BOWEN:

A.

No.
MR. GRIFFITH:

Objection, Your Honor.

That's not accurate.
MS. BOWEN:

Did he ever describe

Overruled.

THE COURT:

Just a second.

Q.

Did he ever describe the interruptions he

was having in between telling her to lay her head down,

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

talking to her and talking on the phone?

A.

No.
MR. GRIFFITH:
THE COURT:

Objection.
will counsel please approach?

(Side-Bar Conference, off Record). THE COURT: BY MS. BOWEN: Go ahead, Counsel.

Q.

When you asked Mr. smith before his phone

calls he described, the types of calls he was placing; correct?

A.
Q.
to them?

Yes.
And do you recall how it was he referred

A.
Q.

They were business calls.
If I could draw your attention, please, to

3 of 18 in transcript 7, the fourth entry from the

bottom regarding Mr. smith.

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A.

Yes.
How does he refer to them? Would you

2
3

Q.
please read that entry?

4

A.

Okay.

I asked him:

You

-- was it

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

business calls that you were calling or something or
what? He replied:

Just calling customers at

random, potential customers, trying to solicit business.

Q. A.

That's referring to a cold call?

Yes?

Yes.
MR. GRIFFITH:
Objection.

That's pure Says

speculation as to whether it's a cold call or not. he was calling customers at random, doesn't say was calling potential MS. BOWEN:

It does say potential. He says, potential

MR. GRIFFITH:

customers trying to solicit business.
THE COURT:

The Jury can draw their own

inference what cold calls refers to, given the inference and the transcript.
Go ahead, Ms. Bowen.

BY MS. BOWEN:

Q.

Previously when he described his business

day on page 22 of 35, he described a little bit

differently regarding the phone calls he would receive;

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1

correct?

2 3 4 5 6

A. Q. A.

Yes. At that time, what does he indicate? That the phone starts ringing at 7:00

o'clock and he gets nothing done.

Q.

Now, you eventually get your discussion

7
8
9 10 11 12 13 14 15 16

around to the bottle of Halcion at his residence;
correct?

A. Q.

Yes.
He identified that as being his? Yes.

A. Q.

He indicated to you why it was that he

needed the bottle of Halcion?

A.
Q.

Yes. What was that? He, he was under stress from business and

A.

17 18 19 20 21 22
23 24 25

he indicated that even though he was very tired at night he couldn't sleep so he needed the medication to help him sleep.

Q.

Did that contradict what he had told you

previously on page 19 of 35? MR. GRIFFITH: THE COURT: Objection, leading.

Well, the whole purpose of the

redirect is to attempt or allow counsel to attempt to demonstrate inconsistencies. Whether or not they are is

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up to the Jury. BY MS. BOWEN:

Overruled.

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

Q.

Drawing your attention, please, to page 19

of 35, the first entry regarding Mr. smith.

A.

Okay.

He stated that he liked to layout

and snooze during the day a lot, during when I take breaks from the office.

Q.

I'd like to show you what has been marked,

admitted previously as Exhibit 23. May I approach?
THE COURT:

Yes.

BY MS. BOWEN:

Q.

Do you recognize, again, that as the

Halcion bottle you retrieved from Mr. smith's home? A. Q. Yes.
And from that label it indicates the

number of pills that were provided in that prescription?

A. Q.

Yes. At the time that you were talking with

Mr. smith did he indicate that that prescription was empty?

A.
23

I don't recall. Did you inquire when the last time he had

Q.
24 25

taken a pill from that bottle? A. Yes.

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MR. GRIFFITH: from that bottle. Halcion.
THE COURT:

Objection, he did not say

2
3

Asked when the last time he had taken

4 5
6

sustained as to the wording.

BY MS. BOWEN:

Q.
of 18.

I'd like to draw your attention to page 5

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

Now, you've indicated at that time to Mr. Smith,

what bottle of Halcion you're talking about; correct?

A. Q.
from the house?

Yes. You describe where it is you retrieved it

A . Q . A . Q . correct?

Yes. Where it was located? Yes. You said it was in the kitchen cupboard;

In the kitchen, yes.

A From there on you're now discussing that . Q bottle; is that correct? .
A. Q.
Correct.

At the time you asked him the last time he

took a pill from that bottle; correct?
MR. GRIFFITH: No, objection, let's have

him read the transcript. questions.

Let's not have misleading

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76 1 THE COURT: Overruled.

The foundation has

2 3 4 5 6 7
8

been made, reference to the interview, was this bottle.
Overruled.

MR. GRIFFITH:

The question isn't about

this bottle, the question is about took any Halcion.
THE COURT: I understand.

Your objection

is overruled. THE WITNESS: probably BY MS. BOWEN: He stated that he

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

Q.

If I could draw your attention to page 6

of 18, he indicates his answer when he last took -

A.

I asked him:

Do you recall the last time

you took any of them. And he stated: A couple three days ago.

Q.

He also indicated the frequency with which

he took the pills; correct?

A. Q.

Yes. Now, Mr. smith indicated to you he does

not know for a fact that Rachel ever used drugs; correct?

A.
Q.

That's correct.
I'd like to show you what has been marked May I approach? Yes.

as Exhibits 11, 12 and 13.
THE COURT:

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

BY MS. BOWEN:

Q.

Now, we referred to these previously as

the letters that Mr. smith -- is that to Randall winkler? A. Q. Yes.
If you could please, start with Exhibit 11

and read that for the Jury?

A.
very desperate.

Dear Randy:

I hate to ask but I am so

I need you to call my attorney and tell

him that I just now told you all the details of my case
concerning Rachel Tseko and that you remember being in

on a conversation with her.

That I told you about being
Plain and

accused of drugging her just a few days ago.

simple, I need you to lie for me because I can't find the real person. I need you to tell my attorney that

you were down visiting in the last week of June and the first week of July. And on the left in the margin, 1994 You remember a good-looking

is an indication there.

short girl named Rachel because she asked you if you knew where she could get some drugs. You told her no

because you were just visiting.

End of conversation. If he, if

You tell him you don't remember exact date.

he asks, can you prove you were down with receipts, just say, no, you pay cash. Over. In parentheses, no credit cards.

Then on the other side it was, but that you were

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in Phoenix and Fountain Hills and you do remember the

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

name and conversation.

This may sound scummy to you but

my life and my family is at stake.
Bill. Please help.

Your good friend,

There is no way anyone can prove Do not tell anyone about this I won't let you down. I am

you were not here.
request.

I am desperate.

very sorry to ask this of you but I need the extra
testimony. Call Mike Turner and ask him to come and see

me the week of August 27 to August 31st.

Q. A.

Does that complete Exhibit 11?

There is one more line.
MS. BOWEN: THE COURT:

Should I read it?

If I may approach?

Yes, it's pursuant to my

ruling, the remaining line should not be read.
BY MS. BOWEN:

Q.
Exhibit 12.

If I could draw your attention, please, to Read that to the Jury.

A.
really lie.

Randy:

What I am asking you to do is not

I just don't know who was really there to This is underlined. Your true friend, Bill. This between me This is easy to My kids' You have no No way can

hear this stuff. and you only.

do as many lies you told me over the years. future depends on you a lot. idea how much.
I need this.

I'll do anything for you.

anyone know if you were here or not.

I lose track of

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time.

The exact date can agree on later with attorney.

2 3 4 5 6

Then it's got kind of a swirly thing that says:
can use a sworn affidavit. father and husband. Okay.

Mike

You know I am a good

In parentheses, my kids need me.

Q. A.

You can then please read Exhibit Randy:

13?

Please take my call and let me

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

know where I stand. I did not desert you when you were
into drugs and needed help.

Everybody tried to get me
Even Kay.

to turn my back on you but I would not.

I am

not guilty of any of the charges, only poor judgment in people. I'm sorry you feel the way it appears you do.

The favor I ask of you really happened. know who the person was.
MS. BOWEN:

I just don't

I'm sorry, Bill.

I have no other questions of

this witness.
THE COURT: All right.

Counsel, will you

please approach?
THE COURT:

Members of the Jury, we will

proceed with the recross-examination of the witness by Mr. Griffith. Mr. Griffith, you can proceed. MR. GRIFFITH:
Thank you, Your Honor.

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