Free Response - District Court of Arizona - Arizona

1 II TERRY GODDARD
ATTORNEY GENERAL

2 (FIRM STATE BARNo. 14000)

3 AARON J. MOSKOWITZ 4 5
6
II

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

II

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

II

ATTORNEYS FOR RESPONDENTS

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

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

CIY 04-573-PHX-FJM (MS)

EXHIBIT J, PART 3, PGS. 80-119 FOR ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

23 24 25 26 27 28
Case 2:04-cv-00573-FJM Document 33-15 Filed 08/11/2005 Page 1 of 41

- -u ---------------------- u

80 1

It's in the evidence that I brought with A. me to court.

2 3

Q.
4

It's somewhere in the court building here? Yes.

A.
5 6 7 8

That was sent over to the crime -- that Q. other bottle, the one that's not here yet was the one that was sent over and checked for fingerprints; right?
A.

I don't believe it was, no. You didn't send over a bottle to have them

9
10 11 12 13 14 15 16

Q.

check for fingerprints to see whether or not Rachel's fingerprints were on that bottle? A. Are you speaking of the bottle that we I don't recall -

have here or the other bottle? Q. is.

I don't -- I can't say what bottle that

There is two bottles. we know that,A. To my knowledge, I don't recall sending

17
18 19 20 21 22 23 24 25

that bottle over for fingerprints, either one. Q. Okay. Have you had a chance as part of

your duties to fill out the requests for evidence investigation; do you not? A. Q. That's correct. And do you recall sending a bottle over to

check for benzodiazepines and cocaine, things like that?

A. Q.

Yes. And is that. the bottle we don't have with
Document 33-15 Filed 08/11/2005 Page 2 of 41

Case 2:04-cv-00573-FJM

81 1 2

us now?
A.
Q.

I don't believe so, no. So you think it's that bottle right there? If that's a partially opened bottle, yes, That's the one I sent,

3 4 5 6 7
8 9

A.

or -- or partial liquid in it. the bottle that was open.

Q.

Okay.

So if the bottle is partially

empty, then that's the on~ you sent over to check for benzodiazepines; right?

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

A.
Q.
A.

Yes. There was also a full bottle; correct?
Correct.

Q.
A.

Did you save the full bottle?
Yes.

Q. courtroom?
A.

Where is that?

That's somewhere in the

Yes.

I brought it with that me.

I don't

know where it is at the moment.
Q.

Was that bottle opened? No. When you were searching Mr. smith's home

A. Q.

did you find any hot chocolate? A.
take any. Q.

I don't recall. I know I certainly didn't
I

I don't recall if I saw it or not. All right. Of course, you were aware of

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 3 of 41

82 1 2 3 4 the allegation that he had offered her hot chocolate;

correct?
A.

Yes, I was. If you had seen hot chocolate would you

Q.

5
6 7

have grabbed it?
A.

Most likely. Isn't it fair to say that you would have

Q.

8
9
10 11 12 13

grabbed just about anything that looked like it might be
incriminating? A.
Q.

Yes. In fact, yo~ grabbed the bag of leafy

substance thinking it might be marijuana and it turned out to be potpourri; correct?

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

A.

Correct.

I can't say what it was.

I can

say it wasn't marijuana.

Q.

It was a very fragrant item, had various

colored leaves in it; right?

A. Q.

Yes. Now, as you're doing your search, do you

recall that you and I talked about that search when we did an interview on November 8th of 1994? A.

Yes, I recall our conversation. Do you recall telling me that Mr. smith

Q.

did not appear to be nervous?

A.

Right.

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 4 of 41

-- - -

--

-- -

83 1 2 3 4

Q.

And when Mr. smith went with you to do the

interview, he was polite and cooperative with you?

A. Q.

Yes. And he went with you voluntarily? Yes. And as we began the conversation he talked

5 6
7

A. Q.

to you about all the allegations that Rachel had made;

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

correct?

A.
conversation?

At the beginning of his and my I'm sorry. During the course of the interview;

Q.
correct, during the

Are you speaking of his and my interview

A.

or yours and my interview?

Q. A. Q.
questions; did he not?

His and your interview. Yes. We spoke.

And he answered, he answered all your

'A.

Yes. Have you had a chance to look at that

Q.
interview?

A. Q.
can go through it?

Yes. Are you familiar with that interview so we

A.

Do the best I can, sir. Document 33-15 Filed 08/11/2005 Page 5 of 41

Case 2:04-cv-00573-FJM

84 1 2 3 4 5 6
7

Q. A. Q.

Now, Yes.

it's tape-recorded;

right?

SO -- and you have had a transcript

prepared; correct? A.
Q.

Yes.
Who typed up the transcript, do you happen

to know that? A.

8 9

It was one of our secretaries.

We have

two secretaries at the office and it would be one of them.
Q. Okay. And there are a number of typos as

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

often happens in transcripts; is that right?
A.
Q.

Yes.

And I want to ask you about the beginning

of the i~terview, because isn't it fair to say that at the beginning of the interview, Mr. smith indicates that something happened -- excuse me. Do you have a copy of thatitranscript in front of you, Officer? A . Q . correct? Do I have one prepared? A. You had one prepared? Q. A. Yes. No, I don't. Okay. You had one prepared though;

24 25

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 6 of 41

85 1

Q.

Okay, all right.

Well, let's go through

2 3

it. I have to ask the court clerk, does she have a document which is a transcript of the interview with Detective -- with Mr. smith? MS. BOWEN:
THE CLERK: It's 6 and 7. Exhibit 6.

4
5 6

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

MR. GRIFFITH:

It's number 6.

Yes, okay, 6 and 7. BY MR. GRIFFITH:

Q.

All right.

Sir, are these the transcripts

of the interviews which were prepared?
A. Yes. All right. And there are -- other than

Q.

the misspellings and various other small problems, there is an additional problem on page 6, is there not, if you could flip to page 6 of item 6.

A.

Of item 6, okay.
All right.

Q.

In that, you're discussing If

Mr. smith's older brother James; is that correct? you would look down at the bottom there.

A. Q.

Yes, sir, I see that. And Mr. smith is talking to you about how

his brother is two years older than Mr. Smith; is that correct?

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 7 of 41

86 1

A. Q.
A.

Yes. He says, I think he's 43 years? Yeah.
I see that.

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.

Do you think that's a typo or do you think

that Mr. smith was nervous or what do you think that is? MS. BOWEN:
speculation.
THE COURT:

Objection, calls for

If you know you can answer. I don't know.

THE WITNESS: BY MR. GRIFFITH:

Q.

Mr. smith is 49; right? MS. BOWEN: Obj~ction, testifying. It's cross-examination.

MR. GRIFFITH:
THE COURT:

It's a foundational question.

If you know the age of the Defendant. THE WITNESS: BY MR. GRIFFITH: Q. How old is Mr. smith?
Currently he's 50. How old was he on July 8th of 1994? 49. Yes, I do.

A. Q. A. Q.

So, if his older brother is two years

older than him, his older brother would not be 43; correct?

A.

That's correct.

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 8 of 41

87
1

Q.

And have you listened to the transcript to

2 3

determine whether smith says 53 or whether he's just nervous about talking to a police officer?

4
5 6

A.

I've listened to the transcript, but it

was over a year ago and I don't recall -- I have no way of knowing what he said.
Q.

7 8
9 10 11 12 13 14 15 16 17 18

Okay.

And it didn't strike you as

particularly important, so you don't know whether he
said 53 or 43?

A.

No. Okay. And that you begin with asking

Q.

Mr. smith if he knows that this conversation is being taped; correct?
A . Correct.

Q . he does? A . answer.

And he says he does?

He somehow indicates

He nodded his head.

It's not a verbal

19 20 21 22 23 24 25

Then you just kind of go into his Q . background; is that right?

A.
Q.

Yes. And why do you do that? This was an interview and so I was just

A.

trying to gather as much information as I could.
Q.

Were you trying to make him relaxed so he

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 9 of 41

88 1

could talk to you, or did. that enter into your consideration at all?

2 3

A.

No, it's important to, when you are

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

gathering information, to have a relaxed person that you
are speaking to. Q.

So you asked him where he was born and he

told you? A. Yes. You asked him if he was self-employed;

Q.
correct?

A. Q.
self-employed?
A.

Yes.
Did you check to see how long he had been

You mean prior to this interview or

subsequent to it?

Q.
A.

At any time.
Any time.

I became aware of it.

I can't

actually tell you how, how I know. Q. There is no dispute he has been

self-employed and running his own business for ten years; right?
A.

That's correct.

Q.

Now then, you told him about what the

charges were about Rachel saying she had been drugged; correct?

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 10 of 41

89

1

A.

Yes.
And then you, again, asked him

2 3
4 5

Q.

-- then

you

read him his Miranda Rights and asked him if he understood his Rights; correct? A.
Yes. He said he did?

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

Q. A. Q.
questions?

Yes. He said would he voluntarily answer your

A.
Q.

Yes. Then you asked him how he first happened

to get acquainted with Rachel; correct?

A. Q.

Yes. And he told. you that she worked at the

Fountain Restaurant as a waitress or bus girl; right?

A. Q. A. Q.

Yes. That was accurate? Yes. And he said that he had mentioned to a

couple of people at the Fountain Restaurant that he needed someone to help around the office and the house; correct?

A.

Yes. Did you ever check at the Fountain

Q.

Restaurant to determine whether or not other people knew

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 11 of 41

90
1

that he was looking to employ someone? A.
Q.

2 3 4 5 6 7 8 9 10 11 12 13

No. All right. Then we get into this

discussion about whether it was the 9th of July, and when it was that she would have started working for him;
correct? A.

Yes. And then you made a misstatement in which

Q.

you said, since today is the 9th of July you would say she started correct ? A. Sir, I'm on page 3. Q. down. I'm about halfway working for you in early July; is that

Okay.

What page are you on, sir?

14 15

If I could just read it for a second. A. Sure. Q. see. It starts where you say: Let's

16 17 18

Okay, yeah.

I see what you're saying,

A.
19

yeah.
20 21 22 23 24 25

Q.

And now, is that an intentional

misstatement to see if he would repeat what you would say or accidental mistake?
A.

No.

I just said, July and I corrected

myself to say or early June. Q. And Mr. smith said, yeah, it would say

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 12 of 41

- - -- --

--- -

- - - -

91 1

early July; correct? A. Yeah.

2 3

He repeated what I said.

He

repeated my misstatement.
Q.

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

Now, when a person repeats a mistake that

an officer makes, I think we are all in agreement, this is really not that important an area of discussion; right? As to when she started, whether it was early

June or early July?

A.

I was just curious when I talked to him

how long she had worked for him.
Q. And when a person who is being interviewed

~epeats an officer's mistake early on in an interview like that, does that tend to show that they are nervous about being there?

A.
Q.

Perhaps.

I don't -

You haven't had any training on purposely

making mistakes and seeing if the person follows your lead?

A.

I wouldn't say any of the training I have

is purposefully to make a.mistake, no.
Q.

You're certainly aware officers are

allowed to lie to people they are taking statements from; correct? A. Q. Yes. Do you do that?
Document 33-15 Filed 08/11/2005 Page 13 of 41

Case 2:04-cv-00573-FJM

92 1

A. Q. A.
Q.

Sometimes, yes. Did you do that to Mr. smith? No. So you To my knowledge -- let me clarify. To my

2 3

4
5 6

A.

knowledge I did not lie to him, no.

7
8

Q.

To your knowledge you didn't lie to

Mr. smith; correct?
A.

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

Reference this, this interview here? Yes. Yes. That's correct, did not lie to him.

Q.

A. Q.

Then you go into Mr. smith's wife's name

and his children; correct?

A. Q.
correct?

Yes. He tells you about Collin and Savannah;

A.
Q.

That's correct. Did you ever interview Kay, Collin or

Savannah?

A.

I have, I have spoken to Kay and Savannah

since this date, but it was not in close proximity to this interview with Mr. smith.

Q. A. Q.

Did you tape-record those interviews? The most recent ones? Yes.

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 14 of 41

93 1 2 3 A. Q.

Yes, I did. Did you ever ask Kay what Rachel was doing

when Kay got home that day?
A.

4
5 6

Kay told me.

I don't know as it came in

the form of a question but she told me.

Q.
that day?

What was Rachel doing when Kay got home

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

MS. BOWEN:
THE COURT:

Objection, hearsay. Is this part of the interview? Not this interview, no.

MR. GRIFFITH:
THE COURT:

Do you intend to introduce any

tape for foundation or any other source for this information, Mr. Griffith, such as from another person? MR. GRIFFITH: That's my intent, but I

think that we have already talked about this at side-bar.

I can't avow I'll be able to do that.
THE COURT:

will counsel approach, please?

(Side-Bar Conference, off the Record)
THE COURT:

The objection is sustained at

this time. BY MR. GRIFFITH:

Q.

And then you talked to Mr. smith about

what time -- when it was that Kay had gone to Texas; correct? A. Yes.

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 15 of 41

94 1

Q.
Mr. smith? A. Q.

Again, we are back on this interview with

2 3

Okay. You talked to him about why he needed a

4
5

runner or a gofer; did you not? A. Q. A what? A teenager to kick around the office and

6 7
8

around his house.

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

A. Q.

Sure. Did you ever check to see what the going

rate was for a teenager in Fountain Hills to do office work and things like that? A. Q. No. Do you know -- so you have no information

one way or the other whether $6 an hour is high or low for teenage-go fer-computer person? A. Q. No. All right. He indicated to you that he

needed her around the office and, and clean up the house and stuff like that; correct? A. Q. Yes. That's when he indicated to you his

brother was down there visiting and also working with Mr. Smith; correct? A. Yes.
Document 33-15 Filed 08/11/2005 Page 16 of 41

Case 2:04-cv-00573-FJM

n

95 1
2 Q.

And he said that he and his brother were

slobs and they needed some help; correct?

3

A.
Q.

Yes. Those were his exact words, they were

4
5 6 7
8

slobs and so I needed some help? A.
Q.

Yes. According to the transcript you were

laughing at that point; correct?

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

A.

I think it was a humorous remark, so we

both perhaps were laughing. Q. The interview is relaxed, laughing, there

is not glowering or any attempt to force him to say something; right?

A.
Q.

No. And he's laughing along with you and not

showing any signs that he's feeling unduly pressured; right?
A.

I didn't observe him Then you asked what his brother's name was

Q.

and that's when he said it was James L. smith; correct?

A.
Q.

Yes. And that's when we have the mistake,

either the typo or the mistake by Mr. smith where he said, I think my brother is 43. A. Yes.
Document 33-15 Filed 08/11/2005 Page 17 of 41

Case 2:04-cv-00573-FJM

96
1

Q.

And then you started in on asking

2 3

Mr. smith about what Rachel's wage was; correct? A.
Q.

Yes. And he indicated to you that he was paying

4
5 6

her $6 an hour at the beginning; correct? A. That's correct. And Mr. smith said that was for office

7
8

Q.
work?

I'd pay her $10 an hour for housework and dirty

9
10 11 12 13 14 15 16

work around the office like cleaning and stuff; correct? A. Q. Right. Then you ask what kinds of things she does

at the office; correct?

A. Q.

Yes.
And he said that -- and you said: What

does she do there, just file things; correct? Yes.

A.
17

Then he repeated what you had said, she Q.

18

When she works there also cleaning up for
files things.

19

It's gunky work; correct?
$10 an hour.

20

You're on page 7?
A.

21 22 23 24 25

Q.

I'm on page 7 of 35. Yes?

A.

Yes, that's correct. You went to his office; correct? Yes.
Document 33-15 Filed 08/11/2005 Page 18 of 41

Q. A.

Case 2:04-cv-00573-FJM

97

1 2 3

Q.

And you saw that it is kind of gunky work

cleaning up in that office; right?
A.

It was -- wasn't too bad. Not too bad.
All right.

4 5
6

Q.

Then you asked

her -- asked Mr. smith how old she was?
A.

How old Rachel was? Yeah? Yes. And he said~ yeah, he does know.
And he said:

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

Q.
A. Q.

And then

you asked how old is she. 15.

I think she is

A. Q. A. Q.

Right. Then you asked how he paid her; correct? Right. Were you ever able to determine how many

times Mr~ smith had paid Rachel? A. Q. A. No. Did you ever investigate that at the time? No. He indicated that he didn't sound I mean, he paid

like it was a very regular arrangement.

her apparently whenever she happened to be around is the indication I got from him. Q.
He indicated he had paid her a couple of

times with checks; right? A.
Yes.

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 19 of 41

- -

98

1 2 3

Q.

Did you ever check on that to see whether

or not she had received more than one paycheck?
A. Q.

No. When was the first time you learned of the

4
5 6 7 8
9 10 11 12 13

allegation that she had only been paid once?
A. Q. Yesterday.

Mr. smith had said he paid her at least

once a week; correct?
A.

Yes. That's on page 8? Yes. And you and-I already went over about how

Q.
A.
Q.

often he paid her? A. Yes. Then you asked: Primarily, I mean, how

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

Q.

did she know she was supposed to be in the office or at your house. And what do you do, pick her up and take And then Mr. smith responded; right?

her to the office.

A. Q.

Yes.
He said:

That's just a call.

Sometimes I

believe her mother dropped her off from time to time, or sometimes her mother's boyfriend or uncle, I'm not sure which. You interrupted that, said, some relation. He said, I'm not sure.
Document 33-15

It might be two
Page 20 of 41

Case 2:04-cv-00573-FJM

Filed 08/11/2005

99 1

guys, like one is her uncle, one is a boyfriend.
You interrupted, nothing bad, you

2 3

interrupted and said, I think she has got an uncle and a cousin, a big guy, a pretty big guy; right?

4
5

A.

bn that, I'm not certain.

I would have to

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

listen to the tape to see if that's me or a continuation. That may be his thought. She may have

missed that in the transcription.
Q.

So where she has Powers written down it

may actually be Smith, just going on about A.
Q.

Yeah, because -- yeah.

In fact, Mr. Lundin is a fairly big guy;

correct?
A. Yes.

Q.

Then you went to -- then you had an

unrelated phone call, and you said, she basically worked at either place, whichever you just needed; is that right?

A.

I think that might be a typo there.

I

think probably what I said is basically would work at either place, whatever he just needed.
Q.

So you think that one is a typo? I believe so, yeah. Doesn't sound like

A.

something I would say.

Q.

Well, you know, she was working, she was

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 21 of 41

100 1

still working at the restaurant; right? A. Yes. She was making, including tips, she was

2 3

Q.

4
5 6 7 8 9
10 11 12 13

making more than $6 an hour at the restaurant; wasn't MS. BOWEN:
speculation. THE COURT: Overruled.

Objection, calls for

If you know you

can answer the question. THE WITNESS:
BY MR. GRIFFITH: I don't know.

Q.

All right.

Then that's when he said -

you're asking whether or not it would be primarily days or when it was; correct?

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

A.
Q.

Yes.
And you say, mostly mornings, afternoons, He says, just a mixture of

maybe one or the other. both; correct?

A.

Correct. THE COURT:

I believe the answer was

correct.

MR. GRIFFITH: THE WITNESS: MR. GRIFFITH: BY MR. GRIFFITH:

Okay.
I'm sorry.

I didn't hear it.

Q.

Then when he says, she is one of these

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 22 of 41

101 1

lazy teenagers that like to sleep late; correct? A.
Q.

2 3
4

That's what he said. You talked to her mother about the fact

she does sleep late; did you not?
A. Q. Yes.

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

All right.

Then you asked whether or not

anybody had called about the job, did he get any other responses. And he said, yes, he thought that two of the girls knew about it. You said two of the girls you met at the Fountain Restaurant?

A. Q.

Yes.
You already told us you didn't follow up

on that; right?

A.
Q.

Correct.

Then he said, it's hard to find MS. BOWEN: Your Honor, I'm going to

object to the form of impeachment, every line of the transcript. If he wants to play the tape or have the

transcript read to the Jury, this is not the proper way to do it in cross-examination.
THE COURT: Overruled.

MR. GRIFFITH: having the transcript read.

Well, I wouldn't mind

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 23 of 41

102 1 2 MS. BOWEN:

It's already been moved into

evidence.

The Jury can review it at their leisure.
THE COURT:

3
4

Either counsel can elicit

answers, references to specific parts of the typed

5 6 7
8

written transcripts that have been, have been admitted.
BY MR. GRIFFITH:

Q.

All right.

Let's speed this up a little.

Detective Powers, if you would, would you read, if the court will allow this, I'll read Mr. smith and you read Detective Powers, if that's acceptable to the Court.
THE COURT:

9
10 11 12 13 14 15 16 17 18 19 20

For how many pages and how

long, Mr. Griffith? MR. GRIFFITH:
for 43 pages.
THE COURT:

We are going to be going

Does that already cover the

answers you've elicited so far? MR. GRIFFITH: pages.
THE COURT:

So far we have done 10

Ms. Bowen, the request by

Mr. Griffith is to read the question and answer narrative for approximately 43 pages. Apparently

21 22 23 24 25

through the question, the direct question process that Mr. Griffith has used so far he's covered about ten pages. Do you have any o~jection to the question and

answer presentation to the Jury?

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 24 of 41

103 1 MS. BOWEN:

Your Honor, this is evidence It's already admitted into Redundant,

2 3 4 5 6 7
8

already admitted into trial. evidence.
repetitive.

The Jury can review it.

He doesn't need to outline anything further

than the Jury can glean for themselves.
a waste of time.
THE COURT:

I find it to be

will counsel approach, please?

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

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

All right.

The objection to

the question-and-answer reading is overruled. MR. GRIFFITH:
THE COURT:

Thank you.

Mr. Griffith, you can proceed.

Detective Powers you have the exhibits there, I believe. Just indicate what page you're

starting on, Mr. Griffith.
MR. GRIFFITH: All right. Detective, I'd

like to start on page 10, and just where we finished with the two girls at the Fountain Restaurant, and where

he's just said it's hard to find help, especially high school type people.
A.
Q.

Okay. What was your response?

A.

Yeah.

You got a limited market in

Fountain Hills for one thing, cuz they are not mobile. So if they don't live right almost in the neighborhood,

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 25 of 41

104
1

it's pretty tough. Okay.

I understand that. Everything went along fine. I mean I

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

mean, while she was working.
Q. A.

Yeah. Pretty much, you didn't have any real

problems or anything.
Q.

Nope. Okay. She was lazy like all teenagers, but

A.

Q.

nothing unusual about that.

A. Q.
to -

It's unintelligible.
Qkay.

They have too.

Not'to a point where you ever had

A. Q. A.

I'm sorry. That's you. Okay.

Sorry.

Go ahead.

Not to a point where,You ever had

to tell her what to do, or she didn't straighten up, you wouldn't have her any more or anything like that. I

mean, was she ever a problem like that?
Q.

No, not really. Okay. So by lazy, you mean she likes to

A.

sleep in late pretty much?

Q.

Yeah.

And kind of went slow with the

things that she was doing. A. Um hum.

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 26 of 41

105 1 2 3 Q.

Like she wasn't really interested.

which

I really couldn't blame her. in anything either.
A.

I wouldn't be interested

4
5 6 7 8 9
10 11 12 13

Yeah.

At that age, kids don't have a

whole lot of choice in the jobs they get, and sometimes, you know, they like to get the money, but the job is kind of boring.
I paused.

What would -- I'll read it

exactly as it's transcribed. Q.
Okay.

A.

What would say your relationship was to

her then, I mean, as far as -- I mean, was it, like, strictly business, I mean, I'm the boss, you work for me. Here is what you -- or did you guys -

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

Q.
seriously.

I'm a BSer.

I don't take things too

A. Q.
customers.

Okay. I BS with everybody who comes in. I cuss them out and they cuss me out. I do my And

the next minute we are friends.

I just don't -- I used

to take things too seriously, so I didn't take the laziness seriously or lack of interest. I told her the

things that need to be done, and she would eventually get them done. activities, no. As far as any extra-curricular Sometimes during the day, I have to get

away from the office, out of self-defense, cuz I would

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 27 of 41

106 1

go in, like, around 1:00 or 2:00 in the morning sometimes, and I'll take a couple of three hours in the

2 3

afternoon and go back that night.
A.

4
5
6

Apparently, you know, she said you guys

just basically were -- you know, she worked for you, but you were just friends. I mean, she didn't -- okay.

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

Did you ever compliment her, try to boost
her spirits? herself? Is she the kind of girl who was down on

Q.

She was depressed and she would get

very -- see, her mother and her father separated or divorced, whatever. And she calls her dad a psycho. He

obviously threatened to beat her mother and stuff like that. So obviously her mother kind of sneaked off from And I guess I just kind

California and moved out here.

of befriended her because she kind of reminded me of a homeless type person, even though she had a home. didn't seem to have a lot of things. very neat clothes to work. They

She didn't wear

I usually try to encourage

the people to wear at least neat-appearance clothes to work since it's an office. If you are working out in

the yard or something like that, it would be no big deal. Let me stop right there. Detective

Powers, he indicated that she didn't wear neat clothes

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 28 of 41

107 1

to work. MS. BOWEN:

2 3

objection, the testimony is

self-evident. MR. GRIFFITH: fine. BY MR. GRIFFITH:
Q. A. Go ahead.

4
5 6

Okay, all right.

That's

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

continue?
Yeah.

Q.

A.

Well, I imagine at the office she probably

would be there when the public came in, or your clients; is that right?

Q.
to.

Yeah.

That's why I usually encouraged her

A.

Did you do anything to help her out in

that regard or anything? Q. A.
Q.
Yeah, I did.

What did you do?
I, matter of fact, I got a receipt at the

office where I deduct a certain amount of money from her paycheck every week cuz I have to buy some clothes so she would be neat-appearing and because they couldn't afford to buy clothes.
A.

You got her some clothes? Yeah. I don't feel that's against the

Q.

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 29 of 41

108 1 2 3

law

A.
No.

Q.
A.

-- especially.
I'm kind of familiar with Title 13 which

4

5
6
7

is the criminal code, and I don't know if buying clothes
for anyone as being against the law.

Q.

Just to help -- up here at the office, so

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

she would have something to wear that is nice and neat
appearing. cut-offs.

Basically all I ever saw her in was

A. Q.

I see.
That's not good office apparel, and did

spend a lot of money, but~ you know, $50 a week, it
didn't take long to pay it back.

A.
her paycheck?

So you were taking how much a week out of

Q.
check.

I was going to take $50 a week out of her

A. Q.

Okay.

Did you ever actually do that?

Well, It has never happened.

I mean, I

bought her some clothes, but -

A. Q. A. Q.

When did you buy them, do you remember?
Last week.

Oh, shoot

-

Where did you buy them at? At Various stores.

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 30 of 41

109
1

A.
Q. A.

In Fountain Hills or No, in Paradise Valley Mall. Okay. I didn't feel it was anything out of line.

2 3

4
5 6

Q.

Matter of fact, her mother knew I was going to.
A. Q. A. before? Q . A . Q . Yes.

Her mother knew. Yes, she did.
Okay.

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

And approved.

You discussed it with her mother

Kind of semi.

I mean, nothing -

I mean, either you did or you didn't. Well, I told Rachel, I said, you need some I think the day before me and

clothes to wear to work.

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

A.

Okay.

Let me ask you this:

You say you

three went out to dinner.
Q.

Where did you go dinner?

We went to Macayo's Restaurant, off

Scottsdale Road, Mexican food place.

A.

You drove?

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 31 of 41

--- --Un -u

110 1

Q. A. Q.
is the real name.

Yes. What is her mother's name? Susie.
I'm not sure, I'm not sure Susie Susan?

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.

You call her Susie.

Yeah, it's Susan.
So you

Apparently Susie must be her nickname then. spoke to the mother about clothes, and did you say anything about, oh, I would like to take her out and buy
her clothes?

Q.
exactly like that.

I don't know if that subject ever came up

She knew I was going to buy Rachel

some clothes, and I think that is probably as far as the conversation went.

A.
remember?

Okay.

When was that dinner; do you

Q.
think.

On either Monday or Tuesday night, I

A. Q.

Of

Today being Saturday, you were

Last week. Last one.

A.

talking about last Monday.

Q.
not real sure.

Right.

It might have been Tuesday.

I'm

A. Q.

Okay.

Remember how much you spent?

I would say probably $40 or $50.
Document 33-15 Filed 08/11/2005 Page 32 of 41

Case 2:04-cv-00573-FJM

111
1 A.

$40 or $50?

2 3

Q.

Yes.

When you eat at a Mexican

restaurant, you know, three people, so that's 40 bucks.

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

A.
Q.

Oh, that's at the restaurant? Yeah. How about the clothes? Oh -- then Mr. smith chuckled according to

A. Q.

the transcript. A. That's what I was referring to the I'd say, you don't get much for $40 or $50

in clothes. Q. I don't remember and never added it up. I

figured I would get the receipts from her, but I know it was A. Q. A. Q. Okay. How did you pay for it?

I would say $300 to $400 anyway.

That was at various stores? Right. Did you pay it on a card or Yeah. I think I paid cash for some of it.

A.
Q. A.

And you think that was -- well, dinner
So it. was sometime -

Monday or Tuesday.

Q.

I think it was.

I think it might have

been Wednesday that we were actually into the store. A. Wednesday?

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 33 of 41

112 1 Q.

Yeah.

2 3

A.
Q.

Yeah, okay. I lose track of time because of the hours

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

I work.
A.

Do you keep a log, like, do you bill your

customers, you know, like Q. A. I invoice them, like monthly. Like, if you spent -- if you were spending

an hour on, like attorneys do? Q. A.
Q.

No.

Do you do that kind of a thing? All our jobs are lump sum bids. Cost

plus.

A.

You say, here is what, what it will cost
Right?

you and you just do the j~b and you get paid.

It's not a matter of having to account for every i

16

17

Q.
A.
somebody.

No. -- minute or hour that you work for Okay. Okay. Now, as I mentioned, at the house,

18

19 20 21 22 23 24 25

she had mentioned -

Q.

Hold it, hold it.
THE COURT:

Just a second then, Detective. Yeah. I think we need to

MR. GRIFFITH:
approach the bench briefly.

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 34 of 41

113 1 THE COURT:

All right.

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

(Side-Bar Conference, off the Record)
THE COURT:

All right.

Detective, based

on my conversation with the two attorneys, Mr. Griffith is going to refer you to the next page and why don't you refer to the specific question or response, Mr. Griffith. BY MR. GRIFFITH:
Q.
All right.

Then we started talking about Do you see that?

the pool at the bottom of page 18. A.
Q.

Yes.

And he says, I was in and out of the house

a lot because I was working on the pool.

A.

OkaY.

I noticed that you do have a,pool. You're pretty brown.

Do you like to swim a lot?
Q. Yeah.

I haven't a -- I haven't got to go I layout and

out and actually swim in it that much.

snooze during the day, take a lot of breaks from the office.

A.

How about Rachel?

Did she ever use the

pool while she was there?
Q.

She came out one time.

I'm trying to

remember when it was, I guess a couple of weeks ago I think.

A.

What happened on that occasion; do you

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 35 of 41

114
1

remember?

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.

Nothing, nothing spectacular.

out there

maybe 30 minutes to an hour.

A . Q . A . Q . A .
came out. Q. A. Q. A.

Okay.

Finished cleaning. She was She was lazy.

You were outside and she was lazy and she What was she wearing that time?
Clothes. Clothes?

Yeah.

Then chuckles.

What kind of clothes? I tried to find her a bathing suit. I

Q. couldn't, and wasn't sure where my wife kept hers.

A. Q.
A. look?
Q.
A. Q.

Did you look for it? Yeah.

Did Rachel help you look, or did you just

Yeah. okay.

She helped me look.

She came out in her clothes. Okay. No. What kind of clothes was it? Was that her regular clothes?

A.

Q. A.

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 36 of 41

115 1

Q.

She came out in her panties and bra.

2 3 4 5 6

These days, panties and bra are probably more
conservative than the bathing suits. A.

Did you think anything unusual about

15-year old at your house wearing nothing but panties and a bra while you were alone with her?
Q.

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

Yeah.

A little bit unusual.

I never

touched her, if that's what you mean.

A.

Did you tell her to go inside and put

clothes on or anything? Q. No. Like I say, they're probably more

conservative than bathing suits.

A.
Q.

That's true, that's true. I know it's all a psychological thing, and

she doesn't sound like she is unwise to the world, the way she talks, the way she talks about other people, the way -

A.

Did she ever impart to you anything of

her -- what she does or doesn't do?

Q.

Pretty wild conversation.

I would say

lack of conversation, but statements, I guess.
Something that her teenager friends did, some of the parties they go to.

I guess it's no more than what

other teenagers do.

A.

Okay, okay.

Let's talk about the day

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 37 of 41

116 1

before yesterday, the day that she got sick. pick her up to go to work or whatever?
Q.

Did you

2 3

Yeah.

I put in -- I think I had already I needed to get

4
5 6 7 8 9

worked about 10 to 12 hours that day.

some stuff done.
A.

So you worked 10 or 12 hours before you

picked her up?
Q. A.

Um hum. Do you know what time you picked her up? It's about,-- I think maybe she even

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

Q.

worked a couple of hours at the -- then it's -- can't be understood, I guess.
12:00 and 1:00.

It was close to -- it was between

A . Q .
like that.

12:00 to 1:00 o'clock? Yeah. Between 12:00 and 1:00, something

You picked her up at her house? Yeah. She had no transportation.

A . Q . A at 2:00 in the . Q.
and ask him. A. you do.

So, that means you went over to the office morning?

My brother goes with me.

You can call him

No.

If that's what you do, that's what

Q.

I have to, to get things done.

When the

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 38 of 41

117 1

phone starts ringing at 7:00 o'clock I get nothing done.

2 3

A.

Okay.

You pick her up at her house, and

you don't clearly recall whether you went to the office first or you went to your home first?

4
5
6

Q.
Thursday.

That particular day, we're talking about I don't think we went to the office first.

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

We went strictly -- I knew my wife was coming into town,
and wanted to get -- had the carpet shampooed and get the furniture rearranged.

A.

So that was the purpose for her to be

there, clean the house?
Q.

Yeah.

,

And to get all the furniture back

in order.

A.
arrive?

Did you know when your wife was going to

Q.

I knew she was coming back iQ town eith~r

that day or the next day.

A.
Q.
through. A.

She was driving her car? She mentioned that she might try to drive

Do you recall -- according to what Rachel

told me when you picked her up you went to her house. Now, does that -- would you have any argument with that? I mean, you say you can't really clearly remember whether you went to the office first.

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 39 of 41

118
1 Q.

To her house? No. To your house. I may have mistaken.

2 3

A.

I meant, when you picked her up you went to your house.
Q. did.

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

Yeah.

On that particular day I'm sure we

A.

Okay.

Because you wanted to clean.

Do

you recall making any stops along the way? Q.
A.

I stopped and got me some cigarettes. Where did you stop at? At a drive-in liquor store, something in

Q.

our area of town. A . Q . A . Q . beer. A.
Up there on El Pueblo -- Adobe? Uh huh. Got cigarettes. What else did you -

Might have got -- maybe a six pack of

That's the beer I saw in the icebox.

And you saw a six-pack of beer sitting in Q. the icebox; right?
MS. BOWEN: Objection.

That's the

officers statement there that he saw it.
THE COURT: is on the typed transcript.
THE WITNESS:

Why don't you adhere to what

Now I lost my place.

I'm

sorry.

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 40 of 41

119 1

BY MR. GRIFFITH: Q.

2 3 4 5 6

You say that's the beer I saw in the ice

box and smith says yeah.
A.

I think it was Bud Light, if I remember

it.
Okay.

I was laughing and I said that looked pretty good. So then you ended up at the house. Okay, once

7
8 9
10 11 12 13 14 15 16 17 18 19 20 21

you got to the house, did" she go right to work? What was going on there then? Q.
cleaning. Yeah. As I say, I was there to do some

And so we started rearranging the furniture. I think she did do

She was going to do some dusting. some dusting.

And the counter was kind of messy from me

and my brother making our general mess in the afternoon for snacking and whatever.
straightening up in there. And she did some She asked if she could have

something to drink.

She has been putting stuff in the

refrigerator -- unintelligible -- and she asked if she could have some of that, this cider or whatever it is. Yeah, no problem.

I opened it for her.

A.
Q.

You opened the bottle? Um hum. I got a her a cup and poured her

22

some cider?
23

Was that the blue cup I had? A. Q. What I Seen it was the same one.
A.

24 25

It was the only blue mug I saw in there

Case 2:04-cv-00573-FJM

Document 33-15

Filed 08/11/2005

Page 41 of 41