Free Response - District Court of Arizona - Arizona

1 II TERRY GODDARD
ATTORNEY GENERAL II (FIRM STATE BARNo. 14000)

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AARON J. MOSKOWITZ ASSISTANT ATTORNEY GENERAL CRIMINAL ApPEALS SECTION 1275 II W. WASHINGTON PHOENIX, ARIZONA 85007-2997

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

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ATTORNEYS

FOR

RESPONDENTS

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

CIV 04-573-PHX-FJM (MS)

EXHIBIT K, PART 1, PGS.I-39 FOR ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA

STATE OF ARIZONA, Plaintiff,

) ) ) )

MARICOPA COUNTY SUPERIOR COURT NO. CR 94-92467 COURT OF APPEALS NO.1 CA-CR 96-0231

vs.
WILLIAM FLOYD SMITH,

) ) ) )

Defendant.

)

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REPORTER'S TRANSCRIPT OF PROCEEDINGS

Mesa, Arizona October 5, 1995

BEFORE:

THE HONORABLE LOUIS A. ARANETA

PREPARED BY: SALLY STEARMAN, Court Reporter

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APPEARANCES: FOR THE PLAINTIFF STATE Of ARIZONA: MARICOPA COUNTY ATTORNEY'S OFFICE MS. ANNE BOWEN

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FOR THE DEFENDANT WILLIAM FLOYD SMITH: MR. GREGG H. GRIFFITH

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PRO C E E D

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N G S

The record will show the

presence of State's counsel, State's agent, the Defendant Mr. smith. Apparently Mr. Griffith, defense

counsel, stepped out for a moment.

The court reporter

is also present, as is the court staff.
MS. BOWEN:

That concludes my argument,

Your Honor.
THE COURT:

All right.

The record will

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show Mr. Griffith has come into the courtroom about 20 seconds after I just came on the bench. Good afternoon, Mr. Griffith, counsel and Mr. smith.
matters.

I need to go ahead with any housekeeping I appreciate your memorandum on interpreting
It's

ARS 13-3407, 13-1205 in support of your Motion. not yet the time for the Rule 20 Motion, but anything

else and everything that you could provide ahead of time is appreciated.

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One housekeeping matter of timely importance, Counsel. My secretary received a call from

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Juror Jacqueline Emmons, I believe.

She called at mid

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morning this morning advising that she was extremely
ill, very sick to her stomach, had to leave her workplace for the morning and was home and was asking if it was necessary or absolutely required that she come to court. I had her -- I had my secretary say that we

would get back with her once I met with the two of you. Since we have the much-needed alternate, with one extra juror, since we have an alternate, my proposal is to have Ms. Emmons become the alternate.
MS. BOWEN:

I don't have an objection.

I

don't know who she is. MR. GRIFFITH: Your Honor.
THE COURT:

That sounds reasonable,

All right.

I'll have my staff

advise Ms. Emmons that she will be the alternate and she need not come back to court. MR. GRIFFITH:

Is it your standard

practice then, Your Honor, to go ahead and tell the juror that she has been designated the alternate?
THE COURT:

Yes, Counsel, because

otherwise they might wonder, and that will be one less thing for them to ponder so they can concentrate on the

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evidence being presented.
MR. GRIFFITH:

Is that acceptable to you?
Yes, that's fine.

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MS. BOWEN:
THE COURT:

Yes. I would like an update on the Is it today the

schedule of witnesses, Mr. Griffith.

day that you were trying to determine if you would have Mr. smith's wife or brother come to testify. MR. GRIFFITH: Mr. smith's wife talked to

my assistant yesterday and said she wasn't coming.
THE COURT:

Was not? Was not coming.

MR. GRIFFITH:

And given the rulings regarding character evidence, we will not be calling the Isaacsons because -- so we will not be calling them.
THE COURT:

Otherwise they would be

available given the end of the Yom Kippur holiday, they would be available today. MR. GRIFFITH:
They would be available

today but I have elected not to call them.
THE COURT:

Okay, all right.

And what is

the status of Vinnie Hughes?

I had signed an order.

What is the status of your calling him? I don't know if he's up here yet or what his status is.

I can call my secretary right now and

have her track that down but I don't know if he has been

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brought up or if he hasn't been or what.
MR. GRIFFITH: Well, see, this is the

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other thing, Judge, he's, he's also more of a character

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witness than anything else.

So given that we are not

going to be able to call any character witnesses, he's not going to be called.
THE COURT: All right.

Thank you,

Mr. Griffith.

I appreciate your candor.

And I know

that sometimes defense counsel decides up to the minute as to who to call or not. For your witnesses today or this afternoon, Ms. Bowen, it would be the criminalist?
MS. BOWEN:

My redirect of Detective That's the conclusion of

Powers, then the criminalist. the state's case.
THE COURT:

After the remainder of

Detective Powers' testimony, then the criminalist, the
state would conclude, you can argue your Rule 20 Motion

and we will proceed at that point in time based on my
Rule 20 ruling. Is there anything else -- well, we need to -- need to remain aware that the same requirement that you connect up in someway or somehow the foundation for the leading question of a Halcion bottle missing continues to apply, Mr. Griffith, or else, as I ruled

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yesterday, I will order it stricken and advise the Jury not to consider it.

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MR. GRIFFITH:
MS. BOWEN:

Yes, sir.

Your Honor, we would -- I

would ask for an offer of proof or something to define it now because in the redirect examination we are going
to go through the portion of the transcript that directly talks about the Halcion bottle. There is no I would

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mention at that time about the missing bottLe.

bring that to the attention of the Jury at that time if
we are going to talk about it. If we are not going to

talk about it, I don't think it would be proper for me to regurgitate that during redirect. Mr. Griffith can link it up.
THE COURT:

I don't think

Okay.

Mr. Griffith?

MR. GRIFFITH:

Well, Your Honor, the plan

is this currently:

Mr. smith apparently is not going to Mr. smith's wife So

be testifying, due to the Rule 609.

apparently is not going to be coming in from Texas. what we are doing at this point is hoping to call, as

the prosecution did, a custodian of records, to come in and indicate that in fact Mr. smith had gotten a subsequent prescription filled, and that is the only way I'm going to be able to prove it, given the way the case now stands.

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Okay.

When you say hoping,

have you subpoenaed a custodian from the pharmacy or what is the status?
MR. GRIFFITH:

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No, I have not.

We are

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arranging that right now.

Once I learned Ms. smith was

not coming we began those arrangements.
MS. BOWEN:

On that basis, Your Honor, the

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State still objects primarily on the basis that there was no discovery as to pharmacy records, any information from any of the witness statements, since no witness statement provided that a witness would testify that a supposed prescription being filled or bottle being

missed.

There is no proof where that bottle was once it

was filled within the house or how frequently it would

have been used, no way to tie it up even through Mrs. smith's testimony. hearsay. That information is completely

So his initial idea that that was going to
I believe there

happen would not have been sustained.

is no discovery as to that issue and there is still no proof being proffered to the Court where these documentation is to show that the prescription was in fact filled at the relevant time and the prescription was within the vicinity of the house. And I also ask,

if that is the case, Detective Powers did do a thorough

search of the house looking for other drugs and they

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found other drugs not relevant to this issue here.

So

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we would have to get into what he found, what he didn't find, what cabinets he went into, whether this bottle was anywhere they could find within the house.
THE COURT:
All right.

Mr. Griffith, I

think calling the custodian of records from the pharmacy
only gets you halfway through. You can probably show

that the pharmacy issued a set number of prescriptions for Halcion to Mr. smith over a period of time. But

that doesn't take you the remainder of the way, that any prescription was missing from the household of Mr. smith. MR. GRIFFITH: I agree with that. All it

does is rebut the presumption from the prosecution that
a bottle dated in February would still have some pills

in it in July.
MS. BOWEN:

By the Defendant's testimony,

that was not elicited during the course of reading his transcript.
Detective Powers specifically asked him He said three

when was the last time he took the pills. days ago.

He's talking about the bottle in the kitchen.

Additionally, there are other problems because the chain of custody problem, Mr. smith indicated his brother James resided in that house as well as his wife and
children.

So it would be any number of people that

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could have access to it that aren't here to deny that
inference.

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It's an improper inference to put a piece of

evidence out there without any conclusion as to what it
is.
THE COURT:

All right.

Mr. Griffith, you

certainly are entitled to question and cross-examine as
you finish up with Detective Powers, about the extent of his search for any prescription containers or any Halcion bottles.

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But that does not, still not get you

to a witness stating that there was a bottle that was missing from the household of Mr. Smith, absent Ms. smith or someone else with knowledge of that to
testify.

MR. GRIFFITH:
THE COURT:

I agree with that.

So your offer, if that's what

it is, an offer of proof that you are making efforts to

have the pharmacy custodian of records come forward to testify a set number of prescriptions were dispensed to Mr. smith over the period of time in 1994, prior thereto, is not a sufficient foundation or connecting up of the leading question that you had asked: Isn't it

true that there is a prescription of Halcion that's missing
missing.

--

prescription container of Halcion that's So, for those reasons I'm going to go ahead

and strike that question and advise the Jury not to

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consider it. MS. BOWEN: Your Honor, I need to confer
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with my investigator.

Are you allowing Mr. Griffith to

explore the extent of the search?
MR. GRIFFITH: I have no intention of

doing anything further.

I did ask him, I intend to
It's my understanding

argue he did a thorough search. he did do a thorough search. MS. BOWEN:

I would want to get a

pre-question ruling, since you never can tell what is
going to happen, if there is any inferences of the search and whether or not this Halcion bottle was
missing.

As I indicated previously, there were other Mr. Griffith is inferring

drugs found in the house.

this child cannot restrain herself from stealing somebody else's drugs.

If she had wanted to have taken

drugs of much more quality of, quality than Halcion
also, the drugs that were left behind and not seized were of more recreational type use, such as the

percocets and those type of drugs.

So I would ask the

Court, if he gets into that line of questioning, can I explain the fact the drug was not taken, not reported as missing, not showing up in this girl's urine, if she is such a drug addict that they are trying to imply, she had opportunity and it never was acted on.

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Mr. Griffith, do you intend to

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question Detective Powers further about whether he found any Halcion prescription bottle bearing a date after
February 1994? MR. GRIFFITH: THE COURT: No.

Do you intend to ask him

anything else about whether he -

MR. GRIFFITH:
further about the search.

I intend to ask him nothing

However, I don't -- I don't

think there is anything objectionable about Ms. Bowen's asking about other drugs being present in the house, as long as it's made clear, they weren't william's drugs, I wouldn't have any objection. are not William's drugs, they are James' drugs. They As long

as that would be clear, it would be perfectly reasonable and proper to introduce that.
THE COURT:

Well, we are going off

somewhat on what I originally was trying to focus on, that was whether there is any basis forthcoming to support a question that was asked. that you

Yet, you've told me
or, at least

-- you told me that you do not --

I've ruled you do not have a Mr. Griffith, I

sufficient basis, Bowen,

don't think Ms. -- tell me, Ms.

do you intend to question Detective Powers about his search revealing the presence of other drugs in the

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household?
MS. BOWEN:

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It isn't planned in my initial

redirect.

If he had gone into the second part of it Are we taking,

I didn't know where that was going.

backing out that other statement and that other inference, we are not going any further. to go back and take it out of the record?
THE COURT:

Are we going

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Am I directing the court Isn't it true a The

reporter to strike from the record:

prescription container for Halcion is missing?
answer is, yes, am I considering, am I directing the

Jury not to consider the importance of that statement, the answer is yes. Anything else? MR. GRIFFITH: No, Your Honor. Just the

argument, the correctness of the statute in which Mr. Smith had been charged.
THE COURT:

All right.

You've laid out

part of your argument and part of your basis for your

argument in your memorandum, Mr. Griffith. MR. GRIFFITH: I don't think that this

issue will necessarily take a great deal of time.
THE COURT:

Maybe we can deal with the

argument on the Rule 20 Motion during our midafternoon

break rather than break my word to the Jury, that we

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would be starting as close to 1:30 as possible.

I'd

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rather not run that risk.

So if, if there is nothing

else, I'll take a break for a couple of minutes, then we will start with the Jury. MS. BOWEN: MR. GRIFFITH:
Thank you.

I would want to say, the

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reason I gave you the memorandum, we had talked about it, I realized I filed it as a Rule 20 Motion is
premature. THE COURT:

You're filing it in support of

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Rule 20 Motion. MR. GRIFFITH:
THE COURT: Correct. That's fine.

We need to check

to see if all the jurors are here. Do you need to take another quick break? Counsel have agreed one juror will be
excused.

Gayle, that would leave us with eight jurors. Would you see if eight people are in the Jury

room?
THE COURT:

The record will show the

presence of the Jury, the Court reporter, both counsel, the Defendant Mr. smith and the Detective Powers back on the witness chair. Before we continue with the rest of your

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cross-examination, Mr. Griffith, let me go ahead and advise you, Members of the Jury, that Ms. Emmons, one of you, one of the persons who was seated next to you in

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the Jury box called and is quite ill and she has been excused from further service in this case, which whereby
makes her the alternate. 80 all of you are going to be

and are the Members of the Jury, and we will proceed without an alternate. Also, for introduction purposes,

my bailiff today is Ms. Gayle Barton, filling in and helping out Manny Bustamante. Counsel, are you ready to proceed?
M8. BOWEN: MR. GRIFFITH: THE COURT:

Yes, Your Honor. Yes, Your Honor.
Thank you.

Then you can

continue with your cross-examination, Mr. Griffith.
MR. GRIFFITH:

Thank you, Your Honor.

ROB E R T

POW E R 8

called as a witness herein, having been first duly

sworn, was examined and testified as follows:

C R 0 8 8 - E X A M I N A T ION BY MR. GRIFFITH:

(Cont)

Q.

Detective, are you familiar with illegal

or recreational drugs?

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A.

In my experience with my profession, I'm

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somewha familiar with them. t Q. Have you always been in the Fountain Hills

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area?
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A.
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No . Have you been in a more metropolitan area

Q.
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where there is a lot of use of drugs? A. No. My two areas where I've primarily worked as a detective were out of the Sun city office,
which was primarily the small communities towards Wickenburg, and then in this district here. work in Fountain Hills. I primarily

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Q.

Is there a drug problem in Fountain Hills?
MS. BOWEN: THE COURT:

Objection, irrelevant.
Sustained.

BY MR. GRIFFITH: Q. Sir, do you feel that you are familiar

with the illegal or recreational use of benzodiazepines?
MS. BOWEN: THE COURT: THE WITNESS:

Objection, irrelevant.
Overruled.

No.

BY MR. GRIFFITH:

Q. A.

You're not familiar with that? No. And do you have any knowledge of

Q.

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recreational use of triazolam?

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A. Q.

No. Sir, now, you introduced into evidence

yesterday letters which may have been received from

Mr. Winkler; is that correct? A. Q. A. Q.
Correct.

You've never met Mr. Winkler? In person, no.
And all you've done is talk to somebody

who identified himself as Mr. Winkler?

A.

That's correct. In the letters from -- they are from Bill According to your testimony in it he

Q.

Smith, apparently.

claims he's not guilty of these charges; is that correct? A. That's correct. MR. GRIFFITH:
questions, Your Honor.
THE COURT:

I don't have any other

All right, thank you,

Mr. Griffith. Your redirect, Ms. Bowen?
MS. BOWEN: Thank you.

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17 1 2 3 4 RED IRE C T BY MS. BOWEN: E X A M I N A T ION

Q.

Detective Powers, you recall that during

your cross-examination you were readirig from a

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transcript of side two of the conversation you had with
Mr. smith?

A.

Yes. I'd like to present to you again Exhibits May I approach?
THE COURT:

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Q.
6 and 7.

Yes.

BY MS. BOWEN:

Q.

During the course of your

cross-examination yesterday you finished the entire

transcripts from Exhibit 6; isn't that right?

A.
Q.

Yes.
You got barely into the interview that's

contained on Exhibit 7; correct?

A.
Q.

Correct, that's correct.

Once again, those are the same

tape-recordings, only one side and the other side of the tape?

A.
Q.

Yes.
I have marked on my transcript the portion I would like to continue

which you stopped yesterday.

and introduce the rest of this record in the same manner

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introduced yesterday, with you assuming the part indicated what you said and I'll do the part that Mr. Smith is talking; okay? I'll draw your attention to page 2 of 18

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on that transcript. A. Okay.
MR. GRIFFITH: I do not object to this.
THE COURT:

Your Honor, for the record,

Okay.

Your non-objection is

noted.

Thank you.

BY MS. BOWEN:

Q.

I had marked the last thing you were No, it was Thursday. This is

you had said was:
Saturday.

So that would have been yesterday morning

that I And Mr. smith responded to that. follow along where I am in the transcript? Can you

A. Q.

Yes, I did.

See Mr. smith responded:

I think it was.

I called to see what time she was coming to work and she was doing okay.

A.
Q. A.

Okay.
I talked to her mom.

Okay.

You talked to her mother.

Okay.

What did she tell you?

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Q.
A.

She said that she was still sleeping.
Okay.

Q.

And I think this was, like, 10:30 in the

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morning or something like that.
A. Okay.

Had you -- when you took her home

did you mention anything at all about her -

Q.

Yeah.

Her and her mom talked about it,

told her she -- what she was doing and how she was acting. And I told her if she wanted to take her to the

doctor, to let me know and I would be glad to help.

Because I didn't know what kind of transportation she had. A. Okay. You say you were on the phone quite

a bit that afternoon and she was over there when she was either talking or drowsy or whatever. You -- was it

business calls that you were calling or something or what?

Q.

Just calling customers at random,

potential customers trying to solicit business.
A. Do you -- was your business local,

national, or Q. A. Q. A. I do most of my stuff here in town. Okay. By town, I mean Phoenix area. Ah hum. You just have that one phone
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number for that house?
Q.

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Right.

I got an office number.

My wife

has the telephone that is a cordless or remote whatever

you want to call them. A. I've got two numbers.
I got

--

well, both

837, but one 7283
Q.

-- that's your home?

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That's your home number.
Then 1818 is your business. Is that also

A.

at the house, or is that Q. No. It's strictly business. So the house, if I wanted to call

A.

Okay.

you at the house, the only number to call you or you
callout is the 7283 number. Okay.

Q. A.

Yeah. All right, sir. Okay. I remember when we

were over at the house, and we were in the kitchen and I
walked out of the room and you said something about how

you have been stressed or tired or something. that remark you made? Q. A. Yes.

Remember

And then I come back and you started I don't

saying that again, and I got interrupted again.
think I -- for the third time.

Maybe I can get to that.

Q.

I do work a lot of hours.

A matter of

fact, my brother and I work basically the same hours and

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he worked 77 hours last week.

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A. Q. A.

Ah hum.

Okay.

And I think 77 the week before that. Was your brother at the house the day that

she was over there?

Q. A. Q. A.

Not that particular day. Where was he at? He was at the office working. Okay. Who -- among the items that I took
And

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out of your home -- I took some prescription medications out of the bathroom and also out of the kitchen.

right there in the kitchen there was an empty bottle of Halcion tablets. Whose are those?

Q. A. Q.

Those are mine.
What is the purpose for the Halcions? Ah, as I said, I get very stressful

because of business, customers suck, a lot of the

customers expect us to do work but they really care too much whether they ever pay us or not. And, I can be

dead-dog tired, and still lay there and not be able to go to sleep. So I take one or two of those and it

relaxes me to a point where I can get some sleep.

A.
them?

When is the last time you took any of

Q.

I probably take one about once most every

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couple three days.

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A. Q. A. Q. A.

Okay. They are a legal drug. Oh, I'm not arguing with you.
That's the only thing -

Yeah.

Do you remember which doctor that was?

I

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know it's on the bottle, and it's out in my car and
that.

Q.

It seemed like it was one of the Fountain Dr. Reedy left. I

Hills doctors, a doctor -- okay.

think it must have been Dr. O'Brien. may have been on the prescription. A.

Dr. Reedy's name

He took over the practice.

Do you know

when that prescription was filled?

Q. A.
days?

Three or four months ago I guess. Did you take a couple every two or three

Do you recall the last time you took any of them?

Q. A.

A couple three days ago.

Okay.

What would you say if I told you

that the stuff Rachel has in her system is from a large

group of one of which could be Halcion? Q. Well, I don't know what to say, and I know And you can check anything that

I didn't give her any.

is in my house, and I guarantee you, whatever bottle you took, or anything else you took, and you are not going

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to find anything from mine.
A.

2
3

Okay.

But -

Q.

I don't know.

She mentions that she goes

4 5 6

to the drug parties and she didn't say she did drugs,

cuz I don't know whether she does or not.

A.
Q.

Ah hum. But she seemed like she is very
but she did mention she does go to to parties where drugs are

7
8 9 10 11 12 13 14 15 16 17

level-headed person,

drug parties and stuff -- or, being done,

let's put it that way.

I do know she was drowsy and very slow-moving when I picked her up.

A. Q. A.
clothes , at her mother was purchased. Q.

Back when you bought her the clothes.

Uh-huh.
You told me that you bought her the

your statement is that clothes were discussed

this dinner meeting with her and her mother and that aware that these clothes were to be And the

18 19 20 21 22 23 24 25

She was aware of that that night.

day that I picked Rachel up and when we actually went to the store she knew. A. So, if I say that Rachel told me that you

told her not to say anything about where she got those clothes, you're saying that Rachel is lying?

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Q.

Yeah.

I suggested that she not tell Her mother already knew.

2
3

anybody except her mother. A. Uh huh.

Okay, so -

4
5

Q.

So I didn't want other people thinking

that I was buying somebody something when I am not buying them anything.
A. Q. A. Okay.

6
7

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

simple as that.
How many people do you have working

-

Q . A.
Q.

This is not for publication.
Okay.

But her mother already knew, and it was

totally discussed.

A. Q.

Okay.
And I believe if you were -- if you asked

Rachel again, I guarantee, she'll tell you that her

mother did know.

A.

Oh, there will be follow-up done.

That's

the way these things work, you know.

Because, you know,
That's

all I got is originally one side of the story.

why I needed to talk to you to find out. Q. I didn't care for my brother to know, and

didn't care for my wife to know, because it doesn't look good. I suggested that I buy her some clothes, again,

so she would have something decent to wear to work,

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1

because I guarantee she had nothing but cutoffs to wear. She had one little scroungy dress that I can think of that I've ever seen her in.

2 3 4 5 6 7 8
9

And she gone to work, or if

anybody comes work in my office, they are going to look

halfway decent and presentable in case in case customers
come over.

A. Q.

When a And if we leave here tonight, we can go

straight to my office, and I guarantee show you -

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

matter of fact, I know I've got a withdrawal tab in my invoices that I can show you, just start taking money
off her paycheck.

A . Q . A . Q . words. A . about -Q . A . Q . call? A . Q .

Okay. It was not like I was giving them to her. Okay. It was not a gift. It was a loan in other

Back when you recall we were tal~ing

Okay.

I'm sorry -

We will wrap this up then you can call. At that time you're interrupted by a phone

Yes. You take that phone call?

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A. Q. A. Q.

That's correct. You come back to speaking to Mr. smith? Yes.
At the time that, you're taking the phone

2 3 4 5 6 7 8 9 10 11

call, the second officer that you had mentioned being there, Officer Young, now interjects a question? A. Q.
that correct? Yes, yes.

The next question is by Officer Young; is

A. Q.

Right . And then you step back in? Okay. There is no response from -I didn't step out. It was he that stepped

12

A.
13

Q.
14 15 16 17 18 19 20 21 22 23 24 25

A.
out.

Then I stepped back into the conversation.

Q.

So Officer Young makes the statement:

I

will step out here to answer any calls, so you can continue this interview. Then you speak; correct?

A.

Okay.

What I started to go back to was

the incident when, you know, when she was out sunbathing in her bra and panties. According to what I was told

was that you kind of actually kind of encouraged this. In fact, I'll even give her a direct quote, that you said you would be willing to pay her a little extra if

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she would layout in the sun with 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. A. Q.

Mr .

smith laughs

in response to that.

So she is lying? As far as I'm concerned she is lying. I

tell her, and matter of fact, when she was in I said, look, I don't care if you go in your bra -- I don't care if you go in your panties and bra, I am not going to
look.

It doesn't matter to me.

Because panties and bra

were conservative as the damn bathing suits that are worn these days, if not more so. As far as I'm No,

concerned, that's as far as the conversation went. I did not offer to pay her any more to lay in the sun.

There was a portion at that time, that you went off the tape?
You can flip to the next page.

A.

Yes, okay.

Yes.

Q.
A. Q.

You are on page 10 of 18?
10 of 18.

It indicates now there had been a break in

the tape, you're coming back?

A.

Yeah.

I don't know if -- my copy starts

about a third of the way down.

Q.

That's correct. You indicated you cut the tape off at that

point?

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A.
Q.

Yes.
You had mentioned that earlier in your

2
3

testimony there was a portion of time you did turn the tape off?

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. Q. A. Q.

Yes.
This is the part you're talking about?

Exactly, yes.
You indicate now you went back on tape?

Right.
Do you recall how long of a period of time

you were off of the tape?

A. Q.

I would estimate that, maybe five minutes. And do you recall what it was that you

went to do during that time?

A.

I was thinking of it and someone came in
I thought perhaps it might have

and interrupted me.
been Detective Young.

But in thinking about it, it may

have been one of the patrol deputies that came into the

office, for whatever reason, had a question or
something.

And if it was, whatever, the matter was I'm not so certain it had a lot

resolved and he left. to do with me.

It was an interruption coming in that

office and then leaving.

Q. Mr. smith?

During that time nothing was asked of

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A. Q.

No. When you go back on tape you start up

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

again; is that right? A. Yes.
And I said: It's now 1443 hours and

we are back on tape.
Okay. William, I would like to say, I'm

pretty well done going through everything with you, but there are some things that need to be cleared up. you agree? Do

Q.

And whatever response he gave was not able

to be discerned by the transcriber; correct?

A. Q.

Correct.

Put in that position there it's

unintelligible?

A.

Yes. I say: Okay.
Let's start -- you know,

let's just kind of hone in on the timeframe, the afternoon when she is at your house. As I understand

it, you said that it -- you understand you said that she was drowsy before she ever got to your house, and that you suggested that she lay down and she wouldn't do it;

is that correct? Q. Yeah. Okay. When she was sitting there and she

A.

was having conversation with you, okay, and nothing

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happened.
Q. A.

Then you said, but she never did lay down.

2 3

Not at that particular time, no.
Okay.

When did her brother call? I didn't really

4
5 6

Q.

I don't know what time.

keep track of the time.

A. Q. A.
Q.

Okay.

But she was asleep when he called.

7 8
9

I don't know if she was asleep or not. Well, you told him to call back?
Yeah.

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

A.
Q.
A.

So I assume she was asleep? Well, you assume she was asleep. Well,

how -- where were you?

Q.

Well, I wasn't in there watching her if

that is what you mean. A. Q. A. So you were in another room?

I was in the room. Okay. And her brother called and you

suggested that he call back later without ever checking to see if she was there.

Q.

No.

Because I knew she was supposed to be

A.

But, you told me she was sitting there

Q.

No.

That was when she was talking to me.

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She

-- we talked

for a long time.

I don't

remember the time.

I never really thought I was going

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

to have to remember the times, and to even put the
sequences together. I mean, it was so insignificant and

trivia at the time I never just really just tried to program this stuff in my mind.

A.
Well, go ahead.

Okay.

I'm speaking to Detective Young: I thought you

He was doing something.

were going to say something.

That's my remark to

Detective Young.

Q.

At that

time Detective Young responds to

you; is that correct?
A.

Yes.

And he states:

I'm confused and I

was just following the conversation you and Detective Powers are having, and I'll just run through it with you
like he just did.

Q.

Now Detective Young is talking to

Mr. Smith; correct? A. Q. Yes. And it indicates it's okay for Detective

Young to ask him questions?

A. Q.

Yes.
Now, would you please read the portion

that Detective Young mentioned?

A.

Okay.

He stated:

Here is what I

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understand was -- you asked her to lay her head down

2 3 4 5 6 7
8

because she was acting kind of silly. Q. Yeah. This was within an hour or hour and

a half after we got there.

A.
timeframe.

No, no, not so concerned with the It doesn't matter, at least for what I am
And the brother called and you said I'm

talking about.

specifically, this is your statements I'm going by. not going by anything other than what I heard you say. You told the brother:
call back.

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

Well, she is resting right

Then you later said she never did lay her She stayed there and talked to

head down at your place. you.

Then he called an hour later, and still he left a

message instead of you allowing her to talk to her
brother.

So we know for sure that the brother called She never did talk to him, but

twice.

-

And then an interruption, they were both
talking.

It was unintelligible.

Q.

Then Smith continues and says:

But he

didn't want to talk to her the second time. ask to.
for you.

He didn't

I said, let me go -- I said, let me go get her He said, no, just give her a message.

A.

The second time you offered to go get her

and he didn't want you to? Q. Yeah. Melissa

--

he said, just have her

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call Melissa later on or whatever, and she -- if she is

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

going to go to this fellowship with her. A. Q. A. Okay. And that's what the conversation went? Okay. Well then, you clarified that.

Now, on the first one, you asked her to lay down but she
never did.

Q.

Mr. smith's response, again, not able to

be discerned by the transcriber?

A. Q.
customers.

You didn't go check on her?

No.

Cuz I was on the phone calling

A.

And then later you guys kept having a Well, she

conversation and Detective Powers asked you:

is obviously not getting any work done with the way she is. Q.
But she -- she had layed down and gone to She actually went to sleep. I

sleep at that time.

think -- I mean, she was quiet and she was still. never said she didn't go to sleep.
that time.
some rest.

I

I said she didn't at

But I told her to lay her head down and get But she did -- she laid down and went to

sleep.

Matter of fact, she was probably asleep up

until, oh, probably 30 minutes before my wife got there. And I woke her up because it was already getting late

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and I need to pick my brother up.

And, well, we are not

2
3

getting anything done here, I'll wake her up and take
her home.

And that's some of the conversation too.

I

4 5
6

told you I woke her up. A.
Q.
Urn hum.

No, I'm not saying that she never did lay

7
8

her head down to go to sleep, but she did.

A.

Okay.

Well, prior to that you guys were

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

having a pretty lengthy conversation.

Q.

If you want to call that a conversation,

we were talking.

A.
Q. A. Q.
dad.

That's a conversation. Yeah.
Talking, that's a conversation. She wasn't a -- she was talking about her

Basically that's the same subject she talked about

before.

A.

But you had stated the reason you let her

stick around was cuz you thought maybe you can still get some work done?

Q.

Yeah.

I needed to get work done, if

that's not -- I mean -

A.

So, on one hand you felt like that maybe

she is okay to do some work; and on the other hand you were concerned enough about her to ask her if she needed

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to go to the doctor.

2
3

Q.

I asked her if she wants to go home, and

I -- yes, I did, I asked her if she wanted to go to the
doctor. I said, are you feeling bad enough that you And she said no.

4 5 6

want to go to the doctor.

A.
Q. A.

You just got to understand it, it's I understand. It sounds kind of strange -- though on one

7
8
9

end I'm thinking that on one end, well, maybe I can get some work out of this girl; and on the other end you

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

think she is acting strange enough that she may need to see a doctor.

Q.

I needed to get some work done.

I needed

to make phone calls. order.

I needed to get the house in That

I didn't need to bring anybody home.

wasn't the reason I went and got her.

I'd -- I didn't

want to turn right back around and take her home.
A.

Um hum. I needed to get some work done. At this point you start questioning?

Q.

A.
Q.

Yes. So the portion in response to Mr. Smith

saying I needed to get some work done, it's now you talking?

A.

That's me.

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Ah -- when your wife went back to Texas was that just a vacation, I mean -

2
3

Q. A. Q.

Well, my wife Were you guys having some problems? My wife and I haven't really getting along

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

real well, and it's kind of a -- it wasn't a separation or anything like that, and a lot of people might twist and turn it to believe it was a separation. Matter of

fact, I think Rachel's mom -- as a matter of fact, when I was kind of shocked because when we went over there to take Rachel back, and my kids were there with me, she asked me -- Rachel's mom asked me, well, did your wife bring them back.
staying.

Yeah.

And she said, well,

is she

I said, yeah, I think so.

And he laughs at

that point; correct.

A.

Yes. I didn't have a reason to believe that she

Q.
is not.

We weren't separated.

A. Q.
in marriage.

Dm hum.

How long have you been married?
We just -- things change

Almost 16 years.

A.

Yeah.

Well, I just wondered cuz I knew That's a pretty

that she was gone for nearly a month. long time for Q. They go every summer.

Last summer they

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went for six -- ten weeks. A.
Q.

2 3 4 5 6

I see.
Because they know summers are a busy time

for me.

I don't get to spend a lot of time at home.

Why stay here and be bored with me when they can go and do some things in Texas and visit relatives, visit friends and have some fun.

7
8

A. Q.

Um hum. No. I never gave anybody the hint or
I think Rachel

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

anything else that we were separated.

mom mentioned at one time -- I'm not sure how the MR. GRIFFITH: prosecutor.
THE COURT:

Accidental error by the

Are you say it was incorrectly

read? MR. GRIFFITH:

It was incorrectly read.

BY MS. BOWEN:

Q.

No, I never gave anybody the hint or
I think Rachel

anything else that we were separated.

even mentioned at one time, I'm not sure exactly how the wording went, but she asked me, well, how long has your wife been gone, or something like that. for whatever. They been gone

Well, what are you going to do with your

kids, you know, this summer, you know, when they get back. I'll hire someone to watch them if I have to. I

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mean -- my wife stays busy. all the time.

She doesn't want to babysit

2 3 4 5
6

A.

Okay.

That conversation mean that maybe

your kids will come back and your wife will stay in
Texas? Q. it. That's the way -- now that you mentioned

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

A. Q.

Urn hum.

That's the way it sounded. Yeah.
My wife, you can ask her, she doesn't have

A.
Q.

any intention of not coming back. A. okay with you. I don't think I'll ask her today, if it's And I'm laughing.
I don't think she

wants to talk to me today.

Q.
coming back.

No, she never had any intention of not
And I never gave anybody that idea. I

mean, people have their own way of twisting and turning.
They assume that a man and wife are not together, that they are separated. shit. Well, that's, in his term, bull

A.

If you check I'm sorry.

Q.

Mr. smith continues then.

If you check and I -- I'm, I'm not
perfect.

I just stricken imagination, but Rachel's

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1 2 3 4 5
6

family has problems.

She won't even go stay with her

father, cuz she was afraid of him, and she calls him psycho. go off. She said her brother was a time bomb waiting to And just -- I don't know, I just befriended But I never

her, I guess, and maybe I shouldn't have. touched her. hell.

And if she says I did, she is lying like

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

A. Q.
I touched her?

Uh huh.
That's it.

I'm just curious, did she say

A. Q.

No. Okay.

Because if she did, she is lying.

A. Q. A.

At least, not to her knowledge. That's the way it is.
The main thing was the -- her sudden

incapacitated condition.

Q.

I cannot control how people's chemical

makeup -- I get tired and I don't try and blame that on somebody else.

A.
keys, Terry?

Well, tell you what, where is his car Is that what you handed to me? And I put it in my pocket. I'm laughing

and I say:

Okay. I don't know about this. This is very

Q. aggravating.

I don't know what the total, what extent

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