Free Response - District Court of Arizona - Arizona

1 II TERRY GODDARD
ATTORNEY GENERAL

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

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

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RESPONDENTS

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ATTORNEYS

FOR

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

CIV 04-573-PHX-FJM (MS)

DORA B. SCHRIRO, et aI., Respondents.

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

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Case 2:04-cv-00573-FJM Document 33-14 Filed 08/11/2005 Page 1 of 41

40 1 2 Q.

Who was that?

A.

Detective Terry Young. Can you describe the physical facilities

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Q.

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where you were at?
A.

Well, as I described, it's a -- it's like And if it were used for living it would
Where the particular

a trailer.

probably be a two-bedroom trailer.

interview took place was in a small room approximately, I would say, ten feet by ten feet in dimensions.
Q. How is it outfitted as far as offices?

A.

In that particular room where we were, I'm trying to remember what was I believe there was the base

there is a telephone. in there at that time.

station for the radio and/or chargers, radio chargers, various equipment that the patrol deputies use. And

other rooms of the office, there is a desk in, in the main room you come into from the front door. there is an intoxilizer in the third room.
Q. And then

Is that facility used for other things

besides interviewing persons?

A. Q. A.

Yes, it is.

What is the purpose of that building? It's primarily used as a, as a base

station for the deputies who normally patrol Fountain Hills and the surrounding area. That's where the shift

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changes, they arrive or depart to get their patrol cars and get them out on the road. for them to store their stuff.
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There are a few lockers

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Q.

Does that fac~l~ty allow for complete

.

.

privacy when you are interviewing somebody? A. No. Were there interruptions during the time

Q.

you were interviewing Mr. smith? A. Yes, there were. What types of interruptions? There were several telephone calls that

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Q. A.
came in.

There is no way to really change the phones or And with the

turn them off, so you are interrupted.

various deputies coming in and but for whatever reason, to write reports or whatever, there were several interruptions.

Q.

Is there a secretary there that can handle

those interruptions so you're not disturbed?

A. Q.

No. Do you recall how long it was that the

interview lasted?

A.

I would -- it was approximately an hour

and 15 minutes, maybe an hour and a half total that we were there.
Q.

At the time that you were interviewing

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Mr. Smith, was he under arrest?

A.

No.

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Q.

From prior talking with him, did you read

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him his Miranda warnings? A.
Yes, I did.

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Q.

Reading, on the reading of those Rights,

did he agree to speak with you?

A.
Q.

Yes, he did.

You indicated another person was present

during the time you were talking with him?

A.

Yes.

other than for one brief period of

time when he stepped out of the room, I believe to answer a phone call, he was with us and that was Detective Young.

Q.
Mr. smith?

t 1 . . Dld Detectlve Young a so ask ques 10ns

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.

~

f

A.

I believe he asked several towards the end

of the interview.

Q.

At any time, either before or during the

interview you had with him, did you ever threaten Mr. smith?

A. Q.

No. Did you ever make any promises to him

regarding whether he talked with you?

A.

No.

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Q.
A.
Q.

Did you coerce him to talk with you? No. Or use any force in having you talk with

him? A. Q.
No.

Now, you're in plain clothes now.

Were

you also a plain-clothes officer at that time? A. Q. Yes. Did you carry a service weapon with you? Most likely. Did you use that in any fashion during the

A. Q.

time you were talking with the Defendant?

A. Q. A.
Q. Exhibit 19.

No. Did you record the interview?
Yes, I did.

I'd like to show you what has been marked

May I approach?
THE COURT:

Yes.

BY MS. BOWEN: Q. I'm handing you what is Exhibit 19. Do

you recognize that? A. Q.
Yes, I do.

How is it that you recognize it? It's a Olympus, XT 65 microcassette for a
Document 33-14 Filed 08/11/2005 Page 5 of 41

A.

Case 2:04-cv-00573-FJM

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mini recorder and on it -- may I open it -- I have written the name William smith 7/9/94.
Q.

Is that the recorder, or, recorded

conversation you had with. Mr. smith on the July 9th
time?

A.

Yes, it is.

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Q.
previously?

Have you listened to that recordation

A. Q.

Yes.
Does it accurately reflect the

conversation you had with him?

A.
Q.

Yes. Are there any interruptions in the course

of that recording?
A.

Yes.

Q.

What are those interruptions? There are -- at one point in the tape

A.

there;was something happened, I believe Deputy Young, it

was, at the point he was out of the room and he came in and he asked me a question or something and I, I cut off the tape recorder. I said we are going off tape now. It had nothing

And I resolved whatever matter it was. to do with Mr. smith.

And then, at -- I don't remember, Anyway, we are back

I think it was -- I gave the time.

on tape now, gave the time, then we continued with the

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rest of the interview.
Q.

The time that you go off is not recorded

on the tapej is that correct?
A.
Q.

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No.

Do you know how long that break was that

you were off the tape?
A.

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No.

I don't believe it was for a very

long period of time, but I don't know how long it was.
Q.

Now, your start time is recorded on the

tapej isn't that correct? A. Q. That's correct.

And your finish time is recorded on the tapej isn't that correct? A. Q. I believe so, yes. One could determine how long you were off

by playing it through and subtract the time difference?

A. Q.

Yes.
Are you able to recognize the persons

speaking on the tape?

A. Q. A. Q.
A.

Yes. And identify their voices? Yes. Who are the various parties talking? Myself, William smith and Detective Young. Besides the time mechanically turned off

Q.

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the tape, were there any things regarding the recording itself that were prohibitive from recording it
accurately? A.

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No.

The tape, apparently there is -- I

don't know if it was a battery problem or whatever. It's got a few glitches in it. But essentially the

recording is as it was, and it was recorded straight through, other than the interruption that I mentioned.
Q.

Now, you've indicated a glitch.

Is the

recording device continually playing at that time?
A.
Q. A. at:1 times. ' The person that -- the
.
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.

Yes.

But the voi~es are indiscernible? Ye~,: She

secretary that transcribed.i~ wrote unintelligible.

apparently didn't understand the word and I, ,I can't recall if
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I listened to it, every word t~ see if I could discern what it was or not.

Q.

Is the tape virtually in the same

condition it was at the time it was recorded?

A.
Q.

Yes.
Did you do anything to alter the tape in

any fashion?
A. Q.

No. For the most part, is the tape audible and

discernible?

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For the most part, yes.
MS. BOWEN: The State moves to have

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Exhibit 19 into evidence.. MR. GRIFFITH:

I join in that motion.

That's fine.
THE COURT: All right.

Thank you.

No

objection being made, Exhibit 19 is admitted. BY MS. BOWEN:

Q. transcribed?

Did you also have that interview

A.
Q.

Yes.
Was that contained in Exhibits 6 and 7 -

if I may approach?
THE COURT:
I .

Yes.
Yes.

THE WITNESS: BY MS. BOWEN:

Q.

Why are there two separate transcriptions

for one recording?
A.

Well, when the secretary typed it for

whatever reason, she typed side A, which was the first half of the microcassette that the interview was recorded on -- is, is the first portion of the
interview.

And that's pages 1 through 35.

And then

side B, when the -- when it got to the end of side A, I turned the microcassette over and, again, taping on side

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B, and she more or less started a new transcription with a new heading and she started at page 1, and that portion on side B is pages 1 through 18. Q.
But the two separate transcriptions are

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just one complete record of the entire recording -

A. Q.

That's corr~ct, yes. Have you had the opportunity to compare

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the transcription with the recordation?

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A.

Yes. And is it an accurate transcription for

Q.

what was recorded?

A. Q. A.

Yes. For what was discernible on the tape? Yes.
MS. BOWEN:

The State moves to have

Exhibits 6 and 7 into evidence. MR. GRIFFITH:
THE COURT:

No objection, Your Honor. Exhibits'6 and 7

Thank you.

are admitted. BY MS. BOWEN:

Q.

In the course of speaking with the

Defendant, did you ask him about the time Rachel became sleepy at his house?

A. Q.

Yes. Did you specifically talk about the July

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7th date?

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A.
Q.

Yes, I did.

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During the course of that discussion, did

you ask him about the mug he had given her to drink from?
A.

Yes.

Q.
as Exhibit 22.

I'd like to show you what has been marked

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May I approi7ich?

THE COURT:

Yes.

BY MS. BOWEN:

Q. A. Q. A.

Do you recognize that mug? Yes. How is it that you recognize it? I seized that mug from Mr. smith's kitchen

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on July the 9th during the course of serving a search warrant. Q. that mug? Did you ever display or confront him with

A.
him.

I don't believe I actually showed it to

I believe I, I mentioned it in the interview as to

the mug that I found in the kitchen and he made some reference to the one -- he says, if that's the one I saw you with in the kitchen.
Q. So to the best of your confirmation, that

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was the mug that you believe was used in giving Rachel her drink that day?
A. Yes.

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MS. BOWEN:
Exhibit 22 into evidence.

The state moves to have

MR. GRIFFITH:
THE COURT:

No objection, Your Honor. Exhibit 22, the

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Thank you.

mug, is admitted. MR. GRIFFITH: I move to strike what he

mayor may not believe however.
THE COURT:

You can cross-examine.

Overruled. BY MS. BOWEN:
Q.

As part of your investigation, did you

also do a follow-up regarding Rachel having been seen at Scottsdale Memorial Hospital?
A. Yes.

Q. follow-up?

Do you recall at what time you did that

A.

I, I made some telephone calls, or a

telephone call on July the 8th, and I made an in-person visit to pick up medical +ecords. the date. thereafter. And I don't recall

It was perhaps that date or shortly

Q.

Was there also a time you obtained a urine

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sample from Scottsdale Memorial Hospital?

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A.
Q.

Yes, there was. Do you recall what day it was you obtained

that sample? A.

I believe that was July the 15th, I

believe, if I recall correctly. Q.
sample from?

Do you recall where it was you got that

A.

Scottsdale Memorial Hospital.
Specifically within the hospital, where

Q.

did you go to get it from?

A. Q.
from?

It was the laboratory. Do you recall who you obtained that sample

A.
(phonetic) .

I believe her name was Renchler

Q.

Regardless of her name, what was her

position at the hospital?

A.

She was one of the persons in the lab that

handles -- I don't know what her exact title is, but she is the one that finds things for people in the lab, you know, keeps track of it, the records person.

Q.

She handed you a sample that was somehow

identified as belonging to Rachel Tseko?

A.

That's correct.

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Q.
from her?
A.

Do you recall what it was you received

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Yes.

It was a small vial, I would

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estimate to be probably two to three inches in length, perhaps three-eighths to a half inch in diameter, and it was actually in the freezer. It was a frozen sample.

Q.

Was that vial marked in some way to

identify it as being, belonging to Rachel Tseko?

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A. Q. it was? A.

Yes. Do you recall what the identifying tag on

It had a Scottsdale Memorial Hospital There was Rachel's name, and also a

North label on it.

code number, which I can't remember off the top of my head, but apparently it was a code, patient code number.

Q.

You indicated the sample was frozen? Y~s. Do you recall what time it was that you

A.
Q.

received the sample, what time of the day?

A.

I believe it was mid to late morning.

Perhaps somewhere 10:30 to 1130 a.m.

Q. do with it?
A.

Once you received the sample, what did you

I immediately took it to the DPS lab on

Encanto Boulevard.

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Q.

Transporting it, did you take any special

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precautions to maintain it in the fashion that you received it?

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A. Q. A.

Yes, I did.

What was that? I got some ice cubes and I put it in a zip

lock type plastic bag and kept it as cold as I could while I was transporting it. Q. Was that vial sealed?
Yes, it was.

A. Q.

Did you do anything to disrupt the

integrity of that seal?

A.
Q~

No. Did you do anything to alter the condition

in which you received it? A. Q. lab? No. You indicated you took it to the DPS crime

A. Q.

Yes. And who is it that you would relay it to

once you got there?

A. Q.
custody it? A.

The property custodian. At that time do you have to sign off your

Yes.

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54 1 Q.

You indicated you took it to the crime lab

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on the same day you obtained it?
A. Q.

Yes. How many hours had passed during the time

you obtained it to the time you released it?
A. Q.

Probably at the most one hour. During the course of your investigation,

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did you become privy to a conversation the Defendant was having with a third party identified as Randall Winkler?
A. Q.

Yes. And did you have the opportunity to record

that conversation?
A. Q.

Yes. I'd like to show you what has been marked

as Exhibit 30. May I approach?
THE COURT: BY MS. BOWEN:

Yes.

Q.

Handing you what has been identified as

Exhibit 30, do you recognize that cassette? A. Q. A.
Yes, I do.

How is it that you recognize it? It's a cassette of phone calls that I

recorded and I marked it as such.

Q.

You have identified it from the persons

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that you recorded it?

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A.
Q.

Yes. At the time you were recording it you were

aware that the person speaking on it was Mr. smith? A. Q. A. Q. That's correct. He had identified himself on that tape? Yes. Additionally, you also came to understand

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that he was speaking to somebody named Randall Winkler?

A. Q.

Yes. At the time that conversation was being

recorded, was it accurately recorded for the conversation that was being had?

A. Q. A.
1995.

Yes. Do you know which dates were recorded? I beli~ve the calls were September 4th,

And I have the times if you'd like those.

Q.

During the course of the conversation, did

you learn that Mr. smith was asking Mr. Winkler to do him a favor?

A. Q.

Yes.
And in the course of the conversation did

Mr. smith indicate to Mr. Winkler he had sent him letters?

A.

Yes.

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56 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 letters? A .
Q.

Q . letters? A . Q .

That Mr. Winkler was in receipt of those

Yes.

They discussed in part the contents of the

Yes. After the conversation did you contact

Mr. Winkler? A. Q. A. Q.
Yes, I did.

Where does Mr. Winkler reside? In the state of Washington. Did you discuss with him the conversation

he had had with Mr. smith?

A. Q.
referring?

Yes, I did. And the letters to which they were

A. Q.
letters?

Yes. Did Mr. Winkler indicate he had those

MR. GRIFFITH:

Objection, calls for

hearsay.
MR. GRIFFITH:
THE COURT:

I'll lay foundation.

will counsel approach?

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

The objection is overruled.

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You may go ahead, Ms. Bowen. BY MS. BOWEN: Q.

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Again, did Mr. Winkler indicate he had

those letters? A.
Q. you? Yes, he did.

Did you request Mr. Winkler send them to

A.
Q.
A.

Yes. Did he do that?
Yes, he did.

MR. GRIFFITH: calls for speculation.
THE COURT:

Objection, Your Honor,

Overruled.

MS. BOWEN: .I'd like MR. GRIFFITH: I'd also raise the ones

again throughout this whole line of questioning, I object upon my clients Constitutional Right to confront and cross-examination witnesses against him.
THE COURT: All right.

The Court finds

that the questions that have been asked regarding the transmittal of the letters have the foundational objection, overruled. Your ongoing objection will be

noted for the record, Mr. Griffith. MR. GRIFFITH: BY MS. BOWEN:
Thank you.

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Q.

The state would like to show you what has

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been marked as Exhibits 11, 12 and 13.

May I approach?
THE COURT:

Yes.

BY MS. BOWEN:

Q.

I hand you Exhibits 11, 12 and 13.

could

you just review all three. of them quickly for what they

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are.

A.

These are the three letters that were

provided to me by Randall Winkler.

Q.
Mr. Winkler?

How is it that you received them from

A.
Q.

He sent them by fax machine. Did he include his cover letter or

identification as Mr. Winkler?

A. Q.
Randy?

Yes, he did. Do those letters reflect they were sent to

A. Q.
Bill?

Yes. They were sent from a person identified as

MR. GRIFFITH:

I continue to object, Your It's all

Honor, so we are clear, I continue to object. hearsay, non-confrontational.
THE COURT:

Overruled, Mr. Griffith.

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Proceed, Ms. Bowen.
MS. BOWEN:
.

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Thank you.

BY MS. BOWEN:

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Q.

Do those records reflect the conversation
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you had heard within the recorded conversation?
A.

Yes.

And to answer your prior question,

they are from Bill.
MS. BOWEN:

The State moves to have

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Exhibits 11, 12 and 13 into evidence.

MR. GRIFFITH:
THE COURT:

Your Honor, I object.

Your objection has been noted

previously.

The objection is overruled based on the

Court's prior ruling. BY MS. BOWEN:

Q.

During the course of your investigation

did you conduct a search of the Defendant's home?

A. Q.

Yes, I did.

In the course of that search did you

attempt to locate a prescription bottle for Halcion?
A. Yes.

Q.
A.

Did you in fact do that?
Yes, I did.

Q. as Exhibit 23.

I'd like to show you what has been marked

May I approach?

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THE COURT:

Yes.

BY MS. BOWEN:

Q.
23.

I have handed you a bag marked as Exhibit

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Do you recognize that bag?
A. Q. A. Yes, I do.

How is it that you recognize the bag? It's a paper bag that I placed into

evidence following the serving of that search warrant.

Q.

Did you mark it in some fashion so you

could identify it?

A.

Yes, marked item 108, and has the

departmental report number on it and it's in my handwriting.

Q.
bag?

Do you know what are the contents of that

A. Q.

Yes. Is that -- the contents of that bag were

seized from Mr. smith's home; is that correct?

A. Q.

That's correct. If you could please open up that bag and

identify the contents. A. Q. A. Removing a plastic bag. What is within that plastic bag? It is a prescription -- plastic, brown

plastic prescription bottle.

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61 1 Q.

Where in the home did you seize that? I seized that from the kitchen cabinet

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A.

that was adjacent to the refrigerator. Q. was? A. It was on the bottom shelf. It's a small Do you know where within the cabinet it

corner-type cabinet that kind of runs cattycorner where
the corner of the cabinets were. the bottom shelf. second shelf up.

I believe it was on

It possibly could have been the

Q.

And the bottle that you have contained in

that envelope, is it in the same condition it was at the time you seized it?

A. Q. A.

No. How is it different?
There 1S what appears to be powder from
.
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fingerprinting on it.

Q.

other than that powder, j ,was there anything

with the structure of the bottle that has been changed? A. No. At the time you first observed it, were

Q.

there any contents in that bottle?

A. Q. A.

No. Are there any currently? No.

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62 1 Q.

Does that bottle also indicate to whom the

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prescription is made out? A. Q. Yes, it does. And does it identify William Floyd smith

as the person for that prescription? A. Q. A. william smith, yes. Is that a prescription for Halcion? Yes.
MS. BOWEN:

The State moves to have

Exhibit 23 into evidence. MR. GRIFFITH:
THE COURT: admitted. MS. BOWEN:

No objection, Your Honor. Exhibit 23 is

Thank you.

The State has no other

questions of this witness, Your Honor.
THE COURT: All right.

Mr. Griffith, I'm Can you give

not going to hold you to the exact minute.

me your best estimate as to how long you believe your cross-examination will be? MR. GRIFFITH: Honor.
THE COURT: All right.

45 minutes to an hour, Your

Let's take our mid

afternoon break now, Members of the Jury, for 15
minutes.

Please remember the admonition.

We will be

starting back up in 15 minutes.

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(Break) THE COURT:

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The record will show the

presence of the Jury, the two attorneys, the Defendant Mr. Smith, case agent back on the witness chair, and the court reporter and court staff.
All right.

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We will proceed with your

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

cross-examination then, Mr. Griffith. MR. GRIFFITH: Thank you, Your Honor.

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

Q.

All right.

Detective Powers, did you have

a chance to interview both Rachel and Susan?

A. Q.
A.
Q.

;

I I
' I

Yes.
No.

,

:,

, I,.

Did you tape-~ecord th6se {nterview~?

!

:

I

!

You did not tape-reco~d any of those

interviews?
A. No.
I
~

:

Q.

You did write down a report sometime soon

after yo~ spoke with them?
A.

Yes.

Q.

since this happened 15, 16 months ago, is

it fair to say you can't remember everything that was said in that conversation?

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64 1 A. Q.

That's fair.

2 3

Have you had a chance to review your

interviews with those two persons?
A.
Q.

4
5 6
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1994.

Yes. Do you feel comfortable testifying about

them at this time A. Q.

Yes.

-- or would you like to have your report? Let's talk about when you first became

involved in the case.
involved?
A.

What day was it you first became

I believe it was Friday, July the 8th,

Q.

And you were assigned the case because you

were the detective on calli is that correct?

A.
to th'e case.

At that time I basically assigned myself I was acting in my boss' behalf. He was

out of town.

Q.

Is it fair to say that Mr. Lundin had

called a number of times very upset about the fact that no one had come out and spoken to them on the 7th?
A.

That's my understanding. Were you the first officer on the scene

Q. so-to-speak?

A.

No.

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65 1

Q.

All right.

Now, when you went and 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

interviewed Rachel and Susan, you talked to them about this clothes situation; did you not?
A.
Q.

Yes. And when you interviewed Mr. smith he

talked to you about the clothes situation as well?

A. Q.

Yes.

Now in your notes, on your interview with

both Rachel and Susan, they indicate to you two different stories; do they not?

A. Q.

Possibly.

I don't -- if you could -

Is it fair to say -- and do you have your

reports with you?
A.

No, I don't. Are they in some sort of case notebook? They would be underneath my clipboard

Q.

A.
there.

MR. GRIFFITH: him, Your Honor.
MS. BOWEN:

If I might take that to

All the applicable reports

have been marked into evidence. MR. GRIFFITH:
THE COURT:

That's fine. Thank you.

Go ahead.

BY MR. GRIFFITH:

Q.

I'll show you now what has been marked as

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66 1

Exhibit 15 and ask you if you recognize this document.
A.

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

Yes, I do. What is that document? It's a supplement I wrote regarding my

Q. A.

interview with Susan Tseko.
Q.

Do you see page 2 of that?

All right? A. Q. yourself? Yes. Does it -- could you read that to
Primarily the first page is what I'm Can you read that to yourself for a

concerned with. second?

A. Q.

Okay.
Does that refresh your recollection as to

the conversation, or do you still -- since it was 15 months ago, do you still not have a recollection and you would only be telling us what is written in your report?

A.

I have a basic recollection of the

conversation, but it helps to refresh my memory.

Q.

And based on that report would you say

that you can remember the conversation or would you only say that you were just telling us what you wrote down?

A.

Because of the time lapse, I would say

that probably it helps to have my memory refreshed by reading the report.

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67 1

Q.

Okay.

Well, Detective, for purposes of -

2 3

it sounds silly, for legal purposes, I need to know, can you now remember or can you not remember A. I can remember.

4
5 6 7

I can remember parts of

the conversation I had with her from memory and other parts I would need to refresh my memory.

Q.

Okay.

At that time did Susan indicate to

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

you she had no discussion with smith about buying Rachel
clothes?

A. Q.

I believe, yes, at the dinner. And she later became aware smith was going

to take Rachel to the mall with him while he shopped?

A. Q.

Yes. Did she tell you Rachel had about $300

worth of'her own money and was prepared to buy her own clothes?

A.
Q.

Yes.

She stated she had the money.

Did she also tell you it was her

impression smith was providing Rachel a ride?

A. Q.

Yes. And also that Rachel showed Susan the

credit receipts that same night?

A. Q.

Credit receipts or receipts? That's what it says in your own police

report; correct?

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68 1

A.
Q.

Yes. Now, did you -- after talking to Mr. smith

2 3 4 5 6 7

did you do a follow-up interview with Rachel?
A.

Yes.

Q.

Did you ask her about some of these things

that Mr. smith had talked about?

A.
Q.

I believe so, yes. All right. -And what did they tell you

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

about whether or not she had her own money with her?

A.

I don't recall Rachel telling me.

Again,

I could refer to my report, but I don't recall Rachel I believe it was Susan that stated she had the money.

Q. A.

I'm sorry? I believe it was her mother that had told I don't recall if Rachel

me she had the money with her.

had told me she had money or not.

Q.

Do you recall doing a reinterview of

Rachel Tseko on July 18th~ 1994, at what lay people would call 3:30 in the afternoon?

A.

Yes. Well, let's take a look then at Exhibit

Q.
Number 4;

Showing you what has been marked as Exhibit Number 4, I'm asking you if you recognize it.

A.

Yeah.

It's a supplement that I did

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69 1

following my interview with Rachel.
Q.

2 3

And could you flip to page 2 and read that

portion of the report that has to do with the clothes?
A.

4
5

I believe the whole page is page 2.
Fine. Go ahead and read that to yourself.

Q.

6 7 8
9

Have you gotten to the second full sentence yet? A.
Q.

Yes. What does Rachel tell you about whether or

not she had her own clothes -

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

A.
Q.

Her own clothes or money? Her own money. Yeah. It refreshes my memory. She did

A.

state she had her own money.

Q.

All right.

I want to go over a few things
Do you recall her

from Rachel's testimony yesterday. ,

testifying yesterday that she brought no money with her to the mall?
I

A. Q.

Yes.

That is not consistent with what she told

you; is it?
A. Q.

That's correct. Do you recall her testimony yesterday that

Mr. smith made no offer of money to sunbathe with him?
A.

I believe she stated that, yes.

Q.

That's not consistent -

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70 1

MS. BOWEN: impeachment.
THE COURT:

Objection, improper

2 3 4 5 6

Overruled.

BY MR. GRIFFITH:
Q.

That's not consistent with what she told

you; is it?

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

A.
Q.

No. Do you recall her testimony that Mr. Smith

supposedly said she had a beautiful body?

A.

Yes. That was not consistent with what she told

Q.
you; was it?

MS. BOWEN:

Objection, again, improper

impeachment, improper vouching.
THE COURT: THE WITNESS: BY MR. GRIFFITH: Q.

You can redirect. No.

Overruled.

Do you recall her testimony yesterday that

Mr. smith supposedly, quote, pushed my head down and told me to stop fighting it?
MS. BOWEN:

Objection, Your Honor.

May we

approach?
THE COURT:

Yes.

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

The objection is overruled.

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71 1

You may proceed, Mr. Griffith. MR. GRIFFITH:
BY MR. GRIFFITH:
Q.

2 3 4 5 6 7 8 9
10 11 12 13 14
I

Thank you, Your Honor.

DO you recall her testimony -- Rachel's

testimony yesterday that during the incident where she was falling asleep at his house, that he, quote, pushed my head down and told me to stop fighting it? A. Q. Yes. That also is not inconsistent with, with

what she told you?

A. Q.

She did not tell me that. She told you she couldn't remember him

saYlng anything to her about falling asleep or not falling asleep; is that correct? report if you want.
You can check your
I

15 16 17 18 19 20 21 22 23 24 25

A.

I recall her telling me that he said,

lay -- you know, why don't you lay down or something to that effect. Q. Nothing to the effect of him pushing her

head down; correct?

A. Q. A.
Q.

No.

Essentially he told her to lay down.

But nothing about pushing her head down? No. In fact, she said she couldn't remember

anything else; right?

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72 1 2 3 4 5 6 7
8

Now, you also heard the testimony yesterday that Rachel said that smith supposedly took the tapes home for her, correct, videotapes? A.
Q.

As I recall that's what she said. That wasn't consistent with what you had

been told earlier; was it?
A. me, no.

Not consistent with what Mr. smith told

9
10 11 12 13

Q.

Now, when you had your conversation with

Mr. Smith, you talked to him about these he-said/she-said cases being kind of a tennis match; is that right?

A. Q.

I think I referred to it that way, yes. Now, now, you had occasion to tape-record Did you tape-record

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

Mr. Smith's telephone conversation.

any of Ms. Tseko's telephone conversations?

A.

No.
MS. BOWEN: THE COURT: THE WITNESS: MS. BOWEN:

Objection, irrelevant.
Overruled.

No. Objection, Your Honor. May we

approach?
THE COURT:

Yes.

(Side-Bar Conference, off Record) BY MR. GRIFFITH:

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n

73

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

Q.
you not? A.
Q.

You did a search of Mr. smith's home; did

Yes. Did you search Ms. Tseko's home for the

missing Halcion bottle?
A.

No.

Q.
Halcion bottle?

Did you search her purse for the missing

A. Q.

No.

It is fair to say there is a prescription

bottle of Halcion that is missing?

A.

I'm not aware of MS. BOWEN: Move to strike, without

foundation, without offer of proof, speculative. MR. GRIFFITH:
proof. Be happy to make offer of

I can do it right now.
THE COURT:

Why don't you.

BY MR. GRIFFITH:

Q.
drowsy?

sir, what day was it Ms. Tseko was feeling

July 7th?

A. Q. A.
1994.

July 7th of 1994.

What date was the prescription filled? I don't recall. It was a February date in

Q.

February date?
Document 33-14 Filed 08/11/2005 Page 35 of 41

Case 2:04-cv-00573-FJM

74
1

And you later learned from Mr. Smith, did you not, he took these three or four times a week?
MS. BOWEN:
THE COURT:

2 3 4 5 6

objection, hearsay.
Overruled.

MR. GRIFFITH: Your Honor.
THE COURT:

It's already in evidence,

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

Overruled.

THE WITNESS:
BY MR. GRIFFITH:
Q.

He stated that, yes.

Did you check with the pharmacy to

determine how many times it had been refilled since
February of 1994?

A. Q. many times 1994?
A .

I believe it states no refills.

Did you check with the pharmacy to see how
there had been refills since February of

No. You asked to have that MS. BOWEN:

Q .

objection renewed, Your Honor.

Move to strike without foundation and improper offer of proof.
THE COURT:

You're refetring to the

statement taken by -- of the Defendant by this witness; correct? MR. GRIFFITH: Right.

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75 1 2 BY MR. GRIFFITH: THE COURT:

Overruled.

3 4 5 6
7

Q.

You asked to have this bottle checked for

fingerprints; correct? A.
Q.

Yes. You sent it to the crime lab just like

you're supposed to; right? A. Q. Yes. And you wanted to see whether or not the

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

victim's fingerprints were on there; is that right?
A. That's right.

Q.

We can't tell, the scientific test came

back, we don't know whether her fingarprints are on there; right?

A.
of anyone.

It was impossible to make a determination

Q.

Well, sir, didn't it come back that there

was one print, but it couldn't tell, couldn't tell what it was? A. According to the form I received, it said

there was one latent print that could not be identified to either Rachel or Mr. smith.

Q.
fingerprints?

Were we able to determine the size of the Does it belong to 15-year old child or

adult male fingerprint or anything like that?

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--

-

- -- - - -

76 1 2 3 4 5

A. Q.

I don't know.

Okay.

Now, when you interviewed Susan she

told you that she was taking some form of prescription medication; is that correct?

A.
Q.

Yes.
And you wrote down the name of that

6 7
8

prescription medication; did you not?

A. Q.
that a-m-i-p-r-i-m-i-n-e?

Yes.

9
10 11 12 13 14 15 16

And you wrote it down as amiprimine, is

A.

That sounds right, yes.
Did you attempt to look this drug up in

Q.
the PDR?

A.

Not at that time, no. Are you familiar with the PDR, sir, and do

Q.

you sometimes use it in your work?

17 18 19 20 21 22 23 24 25

A. Q. A.

Yes. Is there any such drug listed in the PDR

at a-m-i~p-r-i~m-i-n-e? I don't believe, ~o.
THE COURT:
Jury's benefit,

For reference, PDR, for the

refers to what?

BY MR. GRIFFITH:

Q.
for?

Since I can't testify, what does PDR stand

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d - - U

d -- -------- U-

77 1 2 3 A. Q.

Physicians' Desk Reference. Is the Physicians' Desk Reference a

listing of all the drugs manufactured in the united states?
A.

4
5 6

That's my understanding, yes. In it, does'it contain the effects and

Q.

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

chemical make-up of those drugs?
A. Q.

Yes. Okay. Were you able to ever determine

what drug it was that she actually was taking, if it's

not amiprimine?
A.

I believe I spelled it phonetically and I
I.

think it actually starts with an
you exactly how to spell it.
like that, begins with' an I.

And I can't tell

It's imipramine, something

Q.

Did you ever get a correct spelling of

this medication that she takes?

A. Q.
A.

From her, no.

From anyone? I spoke to someone at the DPS crime lab. Okay. Does this person at the DPS crime

Q.

lab have personal knowledge as to what is MS. BOWEN:

Objection hearsay. It's foundation, just

MR. GRIFFITH: trying to find out.
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78 1 THE COURT: Overruled.

2 3 4 5 6

BY MR. GRIFFITH:
Q.

Does this person have personal knowledge

as to what prescription drug Susan Tseko takes? MS. BOWEN:
THE COURT:

Speculative.

sustained as to the wording of

7
8 9
10 11 12 13

the question.
BY MR. GRIFFITH: Q.

Now, when -~ let's go to the urine sample.

The urine sample was not found at Scottsdale Memorial North; was it?

A.
Q.

No.
Somehow the urine sample had gone from

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

Scottsdale Memorial North to what we call Scottsdale Memorial Osborn?

A. Q.

That's correct. Those hospitals are separated by a

distance of how many miles?

A.
perhaps. Q.

Estimation of I would say 12 miles

Okay.

So when you took it to the DPS

crime lab at Encanto, you took it directly from Scottsdale Memorial Osborn; is that correct?

A. Q.

Yes. How did the urine sample get from

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n

79 1 2 3 4 5 6 Scottsdale Memorial North to Scottsdale Memorial Osborn? A.
Q.

I don't know. All right.

Now, let's talk about your That was tape recorded;

conversation with Mr. smith. was it not?
A.

Yes. And what happened was you went in and you

7
8 9 10 11 12

Q.

got a search warrant to look for evidence of Halcion and evidence of any kind of benzodiazapine; is that correct? A. Yes. In addition to finding this cup and this

Q.

Halcion bottle, you also found two bottles of Martinelli's; did you not?

13
14 15 16

A. Q.
correct?

Yes. That's Martinelli Sparkling Cider;

17
18 19 20 21 22 23 24 25

A.

One of them is.

The other one I don't

recall if it's sparkling -- I believe they are both sparkling cider. Q. A. Q. bottles? A. Q.
Yes.

But they may be different flavors.

But they are both non-alcoholic drinks?
Correct. All right.

-And you impounded both

Where is the other bottle?
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Case 2:04-cv-00573-FJM