Free Response - District Court of Arizona - Arizona

1 II TERRY GODDARD
ATTORNEY GENERAL

2 II (FIRM STATE BAR No. 14000)

3 II AARON J. MOSKOWITZ 4 II

5 II TELEPHONE: (602) 542-4686 6
RESPONDENTS
II

ASSISTANT ATTORNEY GENERAL CRIMINAL ApPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007-2997 (STATE BAR NUMBER 022246) ATTORNEYS FOR

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

CIV 04-573-PHX-FJM (MS)

15 16 17 18 19 20 21 22 EXHIBIT J, PART 1, PGS.1-39 FOR ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

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Case 2:04-cv-00573-FJM Document 33-13 Filed 08/11/2005 Page 1 of 40

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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.

) ) ) ) ) )

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Mesa, Arizona October 4, 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

PRO C E E DIN G S

THE COURT:

The record will show the

presence of both counsel, the Defendant, the case agent, the court reporter. We have the rUling on motion in

limine regarding the purchase and consumption of beer and everything else that relates to that; Ms. Bowen?
,

correct,

MS. BOWEN:

That's correct,

Your Honor.

MS. BOWEN: Before I did the redaction, I wanted the Court to do a ruling on that, that I didn't take something out that should be left in.
THE COURT:

Mr. Griffith, good afternoon.

I know you just came in, or came in sometime a few minutes ago. Have you reviewed Ms. Bowen's MR. GRIFFITH: client's statement yesterday. I have. I reviewed my

I saw he did in fact say

he had been drinking beer"that day and so my motion apparently was in error.
I apologize.

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3 1 2 3 THE COURT:

No problem.

I relied on the

response that there was no evidence that the Defendant drank any beer on the day in question, July 7, 1994. The attachment of the copy of the transcript shows that Mr. smith did respond that he had been drinking beer on that day, so I am going to change my prior denial and change that to granting the State's motion to present
evidence that the Defendant drank beer on -- excuse me, that the Defendant purchased and drank beer on July 7th, 1994.
MS. BOWEN:

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Additionally, Your Honor, on

the same transcript, or 7 -- transcript number 7 there is reference to an inquiry whether the Defendant will take a polygraph or not, whether that should be
redacted. I don't think it has to be.

If he wants it

to be redacted, rather than oppose it, rather than make an issue for appeal, I would rather grant his concerns,
page 9 of 18 and 10 of 18 where there is a discussion,

would you take a polygraph, why he would or would not. And his concerns about taking a polygraph never resolves with, yes, I will, or we will offer one, just a general discussion.
THE COURT:

The polygraph issue hasn't

been based or brought to my attention before right now, Mr. Griffith.

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MR. GRIFFITH:

Your Honor, it is my

feeling, based on the previous case I was involved in, any mention of a polygraph is error. should be no mention of any polygraph. And any -- there Now, Ms. Bowen

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says she has tried plenty of cases where they have been
mentioned.

And I don't dispute that MS. BOWEN:

I said I tried a case where It doesn't I did the

information about a polygraph comes in. always have to be a polygraph was given.

redaction already, made a.copy with that taken out if that was the Court's ruling.
THE COURT:

Let me address that.

You

object to it; correct, Mr. Griffith? MR. GRIFFITH:
THE COURT:

Yes.

The objection is well-taken.

There is no reason to create an issue that is not necessary. I'm ordering that any reference to a

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polygraph be deleted from the tape, the audio tape and

the printed transcript of that tape.
MS. BOWEN:

.Okay. That brings me to that The tape in this case is a

audio tape, Your Honor.

microcassette, cannot be redacted without taking a full side, taking it downtown. tomorrow. I'm willing to do that

I won't be d~ing that -- we can admit it and The Court has allowed me to make
Document 33-13 Filed 08/11/2005 Page 5 of 40

play it later.

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reference to the Defendant talking to Randall Winkler,

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the foundation as to the letters to Randall Winkler. prefer not to use that tape other than for foundation, to admit it for the record. And, of course, it makes

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very clear identification the call is being made from jail, the process it goes through, the Defendant and friend talk at length about the time he's serving, disposition of the case, trial, plea agreements. very small portion of it: you willing to do it? A very

Did you get my letters, are But the

He responds to that.

majority I think is very prejudicial.

I don't need it I

to admit to the Jury in order to get the letters in. justifeel that we should ~llow the state to do leading questions for the foundation of the tape to avoid

getting into areas that are concerning, admit it for the record and then reference it only for foundation as to the letters.
THE COURT:

All right.

Thank you.

Mr. Griffith? MR. GRIFFITH: Well, if she is not

introducing it in front of the Jury I don't care what she does with it.
MS. BOWEN: .1 still need it for foundation to the letters, or references to that tape for the

letters, the conversations contained on the tape.
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otherwise there is no reason how we even got the
letters.

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It makes no sense how we came into possession

of the letters.
MR. GRIFFITH:

I don't think how they came If

into possession of the letters is all that critical.

they have to prove that Mr. smith wrote them, they can't prove that he wrote them by reference to this tape. He

makes reference to some letters but I don't believe he says, did you get the letters in which I said XYZ. MS. BOWEN: listened to the tape.
Will you do that?

He does, Your Honor.

I

He did.

Did you get my letters?

His friend says, you know, I can't do

that.! He says, what is it ,you exactly you want me to do?
"I.

think it's spelled out in the letter what I want

you to do, arrangements, fly down, talk to 'my attorney, testify.

It's enough of ~n inference we are talking

about the same letters.
THE COURT:

Counsel, I'm going to order

that the portion of the tapes that make reference to Mr. smith calling from the jail, or being incar~erated, be redacted prior to any of portion of that tape being played to the Jury.
MS. BOWEN:

Your Honor, I would prefer not

even play the tape to the Jury, lay the foundation, admit it for the record for purposes of appeal. It

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isn't necessary for the Jury to -- if they are willing to stipulate a conversation took place -- to have it. Because what is going to happen, they are going to have ten minutes of blank. Did you get the letters and you It's going to go off

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have conversation about that.

again.

It won't make any sense as to what they are They are talking about this case. He's

talking about.

talking about trying it in front of the judge.
THE COURT: All right.

Thank you.

What

I'm saying is in case Mr. Griffith wanted to have a portion of the tape played to the Jury, that's tied to

the letters, Mr. Griffith, I would assume you would not want either direct statements or inferential information played to the Jury that would reveal that your client is calling from the jail; is that correct? MR. GRIFFITH: Right. And also, this

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whole business about what charges he's facing and how much time he's facing and all that is also irrelevant. And I think Ms. Bowen has said that.
THE COURT:

Right now I will grant the

state's request to introduce the taped phone conversations between Mr. smith the Defendant and the individual Randy Kendal.
MS. BOWEN: THE COURT: Winkler. Pardon me.

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MS. BOWEN: THE COURT:

winkler.

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Winkler, thank you. And

For foundational purposes only.

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should you, Mr. Griffith, want to have the Jury listen to a portion of the tape, at that time we will redact any portion that makes reference to your client being in
custody. MR. GRIFFITH:

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For the record, I do want It was a

to object to the admission of this tape.

private telephone call tape-recorded without my client's knowledge. MS. BOWEN: If he's making a challenge to

the substance of the evidence itself, Your Honor, that
has to be addressed by the Court with a hearing. For an

offer of proof, Your Honor, it was made from the jail. There is a sign right by the phone these conversations
are taped.

Whether the Defendant chooses to ignore Apparently a lot of them do. The

that, it's up to him.

phone calls are taped in toto and he decided to talk from the jail to a friend about his intentions.
THE COURT:

All right.

Your objection, One, being

Mr. Griffith, is denied, on two grounds:

that your client is apprised of the phone calls being taped at the jail; number two, that the objection is not brought timely as a motion to suppress.

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MR. GRIFFITH:

All I can say about the All I can say about

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timely -- I understand the ruling.

the timeliness is we just found out about this phone call, what was it, three days ago, four days ago. It's

not like I knew 30 days prior to trial, I could file a motion on this case.
THE COURT:

All right.

Mr. Griffith, your

record is noted.

Any motions that you chose to file

such as the motion in limine that you filed yesterday before the presentation of evidence, could have and should have been presented before the start of the
evidence.

Thank you.

All right.

Anything else before

we bring the Jury in?
MS. BOW,EN:

Not from the state, Your

Honor. MR. GRIFFITH:
(Jury present)
THE COURT:

No, Your Honor.

Good afternoon.

The record

will show the presence of the Jury, both counsel, the Defendant Mr. smith and the case agent Detective Powers, the court reporter and court staff. start on time. Jury. We didn't quite

Again, my apologies, Members of the

Thank you for your patience.
Are both counsel ready to proceed?
MS. BOWEN:

Yes, Your Honor.

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10 1 MR. GRIFFITH:

Yes. Ms. Bowen, you may call your

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THE COURT:

first witness.
MS. BOWEN: Thank you. The state calls

Ron Lundin. (Witness sworn.)
THE COURT: There you go.

Sir, there is a microphone.

If you just bring it in front of you, it

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will pick up your voice five, six inches away.

Thank

you. Ms. Bowen?

RON

L U N DIN

called as a witness herein, having been first duly sworn, was examined and testified as follows:

D IRE C T BY MS. BOWEN:

E X A M I N A T ION

Q.
A. Q.
A.

Please state your name. Ron Lundin.

Are you employed? I'm self-employed. What is your occupation? Residential builder. Are you married?
Document 33-13 Filed 08/11/2005 Page 11 of 40

Q.
A. Q.

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1 A. Q.

Yes.

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You have a wife and children? Right. Do you know persons by the name of Susan

A.
Q.

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and Rachel Tseko?
A. Q. A.

Yes. How is it that you know of them? Susan is my first cousin and Rachel would

be my niece.

Q.

Was there ever a time she lived with you? Yes.

A.
Q.

For what period of time was that? I believe that was from November of '93 to

A.

February, if I am not mistaken, of '94.

Q.

When Rachel was living with you, did you

have the opportunity to see and talk with her on a daily basis?
A.

I saw her on a daily basis.

I probably

didn't talk with her every day.

Q.

Did you become familiar with her

performance in school as far as how she was as a student?

A. Q. A.

Yes. What was her academic standing? Her academics has been and remains above

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average. in there.

I would say probably above A plus or somewhere

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Q. 4
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At some point during the time that you've

known Rachel did you become aware of a business opportunity she had to work for Mr. William Floyd smith?
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A.
Q.

Yes, I did.

How is it that you became aware of that

potential job?

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A.

Rachel called me.

And because of her

concern of how -- I guess that she was approached to go to work for someone and she was just -- was not sure
about it.

She figured that the money was -- that was

being offered was quite good so she called to ask me to investigate to see what was -- how I felt about the person that was approaching her.

Q.

Did she indicate to you this job

opportunity was through an advertisement or some type of flyer she was answering?

A. Q.

No. Do you know how it is she was approached

for the position?

A.

She was approached at the job she was

working at at the time which was a little ice cream shop.

And I guess the individual came in there

frequently and approached her at that shop.

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13 1 Q.

Did she indicate she had to complete or

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fill out some application for that employment?
A. Q.

No.

As far as you knew she was the only person

who was asked to be employed? A.
Q.

As far as I know. Did you also become aware of what the

money offer was for her employment?

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A.

I don't remember the exact figures but it

was about the normal that a young person would be
offered.

Q.
A.

Did that strike you as unusual?

I

guess at the time it may have, but, but

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on the other hand, knowing that it's sometimes tough to
get work -- or, help, maybe that was the case. I

figured ~- just kind of didn't give it any more thought. Q. So b~sed on Rachel's concern_did you in

fact follow-up on this and contact Mr. smith about the employment?

A.

Yes, I did make a phone .call to the

business to find out if there was a legitimate business being operated and more or less satisfied my curiosity there to find out there was a business and there was employees, and it seemed to be a legitimate situation.

Q.

Did you ever speak directly to Mr. William
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Floyd smith?
A.

No, I didn't. Do you know who it is you spoke with? Just the secretary or whoever answered the

Q.
A.

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phone, receptionist.

Q. A. Q.

Did you ever go meet Mr. smith? No, I didn't. Did you ever find out the details of

Rachel's job that would entail her to work somewhere besides that business?

A. Q.

I'm sorry.

.Could you repeat that?

Did you ever find out the details of

Rachel's business that would require her to work some place besides that business?

A. Q.

No. Were you aware she would be working at

Mr. smith's home?

A. Q.

No, I wasn't. At any time -- at any time have you met

Mr. William Floyd smith?

A. Q.

No. And from this person that you talked with

did you learn anything about the structure of Rachel's job?

A.

No, I didn't really question concerning

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her work.

I was just more or less calling to find out

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if it was a real business and that there was people employed and it was, you know, business being conducted
as normal.

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Q.

How frequently do you have contact with

Susan and Rachel?

A. Q.

Daily. Has that been the custom of your

relationship for some time?

A. Q. A. Q.

Yes. Is Yes. Id like to draw your attention to the it still ongoing to that extent?

night of July 7, 1994. Do you recall having contact with them on that day? A.
Yes, I do.

Q.

Do you recall what it was that first

brought you into contact with them that day? A. Q. A. Yes. What was that? It was a phone call at first. Susan

called me concerned something was wrong with Rachel and she had feelings that she had been drugged or something had happened to her in that way. And I asked her to

bring her up to my house immediately so we could discuss

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the situation and see what had happened.
Q.

other than the phone call, were you

already anticipating seeing them that day regardless?
A.

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I would have probably gone down to the

house later that evening, which would be my customary
type thing to do.
Q.

Do you recall whether or not on that

particular night they were expecting a phone call from Rachel's father?
A. Yes.

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Q. house?
A. Q.

Would that phone call have come to your

Yes,

it would. for them to come to your

Were there plans
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house that evening to receive that phone call? A. Yes. Q.

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time would that have been they were What supposed to come? A. I believe that was around 7:00 p.m. if I can remember right. Q. when was that?
A.

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And the call you got from Rachel's mom,

It seemed to me that call was somewhere -

this is going back over a year, so it's kind of difficult to remember. But it was, it was earlier than

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the expected time of this other phone call. been around 5:30 to 6:00.

Must have

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Q.

Do you recall whether or not Rachel

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actually did have contact with her father that evening?
A. Q.

I believe she did, yes. Do you know what time it was that Rachel

and her mother came to your home? A. It would have been shortly after the phone

call, so I would have to guess between 5:30 and 6:00. That would just be a guess.

Q.

How close are they to your residence? Maybe five'minutes. So whenever the phone call is finished, it
I

A.
Q.

wouldn't take them very long to get over to your house?

A. Q.

Right. When they arrived, were you there to

observe Rachel?

A.
Q.

Yes. Can you describe her demeanor and

appearance at the time yo~ first saw her?

A.

Her demeanor was not like I had

ever witnessed before as far as seeing anyone in the condition she was in. thing. It was not like a drunk type of

It ,was -- she just looked, what I would think to

be drugged.

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n-

- -- -

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Q.
A.
Q. A. consciousness.

Was there

anything specific about

her

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appearance that gave you that impression?
I guess

her eyes.

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And She was coming in and out of

Q.
you were doing?
A. Q.

Was she having difficulty focusing on what

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Yes. When you were talking to her did she

appear to have difficulty concentrating on what you were saying?

A. Q.
A.

Yes. Did you try to talk with her?
Yes.

Q.

Did she respond to what you were asking? She would respond and fall back asleep, And it was just like

A.

wake up and respond a little more.

a -- in and out of consciousness type of thing where she would say a few words and then go back out.

Q.

Did you do anything to arouse her during Was it necessary to arouse

the time she was sleeping?

her in order to talk with her again?

A.

We just continued to talk to her,

continued to try to talk with her and get what
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19 1

information we could from her that she could remember.

2
Q.

How long a period of time was Rachel at
your home? A.

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That evening?

Q.
5 Yes.

A.
6

Very shortly because we rather immediately put her in the car and took her down to Scottsdale
North.

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Q.

If Rachel arrived at your home sometime

between 5:30 and 6:00, she is expecting a phone call from her dad, you believe at 7:00, you believe she stayed there for her phone calli is that correct?

A.

No.

I believe that phone call -- if I am

not mistaken, I believe she called her father back later that evening.
positive.

The phone call at 7:00 came in.

I'm not

I'm trying to go back a year, over a year.

But I believe -- I know that she did speak that evening

with him and I believe it was after she got out of the
hospital.

Q.

Do you know what time it was that you went

to the hospital?
A. No.

I don't remember.

Q.

From the time that Rachel first got to

your home until the time you went to the hospital, did her demeanor change at all other than what you've

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already described? A.
Q.

2 3

No.

When you were at the hospital do you know

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how long you were there?
A.

Seems like quite a while.

It was probably

two to three hours maybe.
Q.

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Did you have contact with Rachel during

that two to three hours?
A. Q.

No.

I don't believe I did, no.

Did you see Rachel at the time that she

was discharged from the hospital?
A. Q.

Yes. And had her demeanor and appearance

changed at all during that time?
A.

She had improved, somewhat. Was she with you or escorted by you back

Q. home?

A.
Q.

Yes. Did you go back to your house or their

house?
A.

I believe we went back to their house. At the time that you last saw Rachel,

Q.

describe for us her demeanor and appearance at that

time.

A.

After the hospital?

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Q.

Yes.

A.

She was basically in the same condition,

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staying awake longer periods at this point, staying conscious longer, but still going -- fading out for a few seconds or sometimes a minute or so I guess.
MS. BOWEN:
Thank you.

I have no further

questions of this witness.
THE COURT: Thank you.

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.

Mr. Lundin, where had Rachel been prior to

being over Mr. smith's house, .if you know?

A. Q. A.

At her home. What makes you think that? Her brother had told me she was -- had

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left home that morning, that he had picked her up.

Q.

Did you talk to Dr. Suchor about whether

or not benzodiazapine is a common form of recreational drugs?

A.
doctor.

No.

I haven't discussed anything with the

Q.
doctor?

Haven't discussed anything with her

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3 A.

No.

Q.

You do not have first-hand knowledge about

where she was prior to going over to Mr. smith's house; is that correct?
A.

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That's correct. Okay. Now, apparently your sister did

Q.

not -- your sister -A. Cousin. Your cousin is her mother; is that

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Q.
correct?

A. Q.

Right.
And her mother apparently didn't think it

was necessary for certain to take her to the hospital
until they went over to your house; is that right?

A.

She was concerned.

And had I not been

there to call upon, I'm sure she would have-- that would have been the first thing she did.

Q.

Now, as far as the -- did you have any

discussion with Susan regarding what Mr. smith had said, if you want to take her to the hospital, she has been acting strangely all day -- did you have any conversation with Susan about that?
A.

Afterwards she mentioned that, yes. All right. Now, you were the one that

Q.

called to check up on the business; right?

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A.

Right. The business has been in full force and

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Q.

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effect for ten years; right? A.
I didn't find out the length of time.

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

Q.

And Rachel is the 10th or 11th teenager

they have hired to be -

MS. BOWEN:
knowledge.

Objection, foundation as to

THE COURT: .sustained. BY MR. GRIFFITH:

Q.

You checked it out; right?
Correct.

A. Q.
teenagers

Did you find out how many other

MS. BOWEN: THE COURT: Objection.

May we approach?

Yes.

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

The objection is sustained at

this point.
BY MR. GRIFFITH:

Q.

All right.

Now, Mr. Lundin, were you

present in the hospital room when the catheter was taken? A. No, I was not. You did not see any bottles marked or

Q.

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24 1

anything like that; is that correct?
A.

2 3
4

That's correct. Do you know from first-hand knowledge

Q.

whether or not Rachel had had any contact with her boyfriend prior to going over to Mr. smith's house? A. First-hand knowledge, no. MR. GRIFFITH: questions.
THE COURT: Thank you.

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

I have no further

Any redirect?
MS. BOWEN:

No, Your Honor. Your Honor, I would ask he

MR. GRIFFITH:

be subject to recall based upon our discussion at
side-bar. THE COURT: All right. You do not have

any redirect?
MS. BOWEN: THE COURT:

No, Your Honor. Thank you, Mr. Lundin. You

are subject to recall.

But what that means is you are You

not completely excused as a witness in this case.

could be recalled as a witness, in which case I'll ask the attorney to give you as much advance notice as possible.
THE WITNESS: THE COURT:

Today is finished then? Today, at least for right now

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25 1

is finished.

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

THE WITNESS:
THE COURT:

Okay.

Thank you.

Your next witness, Ms. Bowen?
MS. BOWEN: .Thank you.

The State calls

the custodian of records from Scottsdale Memorial
Hospital.

And I don't know her name, Your Honor.
THE COURT: MS. BOWEN:

All right.

Your Honor.

The State calls

Barbara Knutson, K-n-u-t-s-o-n.
(Witness sworn)

MR. GRIFFITH: moment, Your Honor.
THE COURT:

If I could have just a

Yes. Your Honor, this woman We might want to

MR. GRIFFITH:

isn't on the list read to the Jury.

inquire whether anyone already knows her.
THE COURT: All right.

Thank you.

Members of the Jury, the witness has been identified as the custodian of record, but more specifically, today as Barbara H. Knutson. You are an employee, ma'am, of the THE WITNESS:

scottsdale Memorial Hospital

North.
THE COURT:

.Does anyone on the Jury

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26 1

believe they know this witness, Ms. Knutson? No one has raised their hand. All right. with that, anything else? You can proceed, Ms. Bowen.
MS. BOWEN: Thank you.

2 3

Thank you.

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

MR. GRIFFITH:

At this point, at this

point I object on the Rul~ 15 grounds.
THE COURT:

Your objection is denied.

You

may proceed, Ms. Bowen. MS. BOWEN:
Thank you.

BAR BAR A

K NUT SON

called as a witness herein, having been first duly
sworn, was examined and testified as follows:

D IRE C T BY MS. BOWEN:

E X A M I N A T ION

Q.

Please state your name.
Barbara H. Knutson. Again, where are you employed?

A.
Q.

A.

Scottsdale Memorial Hospital North. In what capacity? I'm the manager of the medical records

Q.
A. department.

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--

-

-

-

-

-- .-

- -

-

27 1 2

Q.

Do you have some

training and experience

that qualifies you for that position?
A.

3

Yes.

I'm a registered record

4
5 6
7

administrator.
Q.

Can you briefly describe your background

and experience that qualifies you for that position?

A.

I have

been in the health information

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

field for approximately 20 years, supervising and managing medical record departments in various types of health care facilities.

Q.
A.

within your. job itself can you describe

what your job description entails? My job description entails being custodian

of the medical records that are created for patient care for patients that are admitted both as inpatient and out patients to Scottsdale Memorial Hospital North.

Q.
that role? A.

within your position are you licensed for

Yes.

I, I'm a registered record

administrator, an RRA.

Q. A.

Does that require state licensure? It requires a four-year bachelor degree There is no state licensure.

and national examination.

Q.
certified?

Are you currently, I guess, nationally

25

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28
1 2 3

A. Q.

Yes, I am.

I am an active member.

within your job itself are you regulated

by law or something as to how the records are maintained?

4 5 6 7
8 9

A. Q. A.

Yes, I am. What are those parameters? The Arizona state statutes that cover There

redemption of records, release of information. are both state and Federal regulations that govern the release of information.

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

Q.

Do you comply with those regulations

within your job at Scottsdale Memorial North?

A. Q.

Yes, I do. Were you asked to bring some records to
!

this location pursuant to a subpoena?

A. Q.

Yes, I was. Do those records concern the events of a

hospital stay regarding Rachel Tseko of July 7, 1994?

A.
Q.
YOUj

Yes. Now, you had brought those records with

correct?

A. Q.

Yes, I did.

Is that the complete and total record with

regards to the stay of Ra9hel Tseko?

A.

Yes.

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29 1

Q. as Exhibit 8.

I'd like to show you what has been marked

2 3

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

4
5 6
7

Yes.

I'd like to show you a copy of the records

that the State has marked in evidence regarding the hospital stay of Rachel Tseko. Can you please compare

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

Exhibit 8 to the records you brought and tell me if the

same records are contained in Exhibit 8.

A.
I

Yes.

They do compare, except the records

I brought had one more additional piece of information.

Q. A.

What was that page? Th~ consent to test blood, urine and other

bodily substances. Q.
Are the records you've indicated that are

Exhibit 8 essentially the same records you've kept at

your hospital; is that correct?

A. Q. A.
Q.

Uh huh.
I'm sorry?

Yes. Are the medical records made at or near

the time of the event they record? MR. GRIFFITH: speculation. Objection, calls for

I'd like more foundation before she

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30 1 2 3

answers yes or no.
THE COURT:

sustained at this time.

Why

don't you rephrase as to foundation. BY MS. BOWEN:

4
5 6

Q.

Are you aware of the process by which a

record is made at the hospital?

7
8
9 10 11 12 13

A.
Q.

Yes, I am.

Are there requirements from the persons

entering information into the records that they be made

at or near the time of the event they are recording?
A. Yes, there is.

Q.

Is there a requirement also the person

records the information do it accurately?

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

A. Q.
accurate?

Yes. Is there a law that requires that that be

A. Q.

Yes. Are you aware of whether or not your

hospital is in compliance with those laws?

A. Q.

Yes. Were you supervised or monitored in any

third-party way to make sure that is happening in your hospital?

A.

We have a hospital attorney that would

oversee any, you know, any omissions and documentation

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and that sort of thing.

We also have a peer review, QA

2 3 4
5

process, quality assurance where we review records for documentation.
Q.

So with that, the parameters of the

constraints of Scottsdale Memorial Hospital North, are the hospital records made at or near the time of the event they record?
A.

6

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

Yes.

Q.

Are the records also from information

transmitted from a person first-hand knowledge of what

is contained in those records?
A. Yes.

Q.

Are the records made and kept entirely

within the course of the regularly conducted business at that hospital?
A. Q.

Yes.

Are the records kept pursuant to a regular

practice at that business?
A. Q.

Yes.

Do those requirements go to the entire

medical record?
A. Yes.
MS. BOWEN:

The State moves to have

Exhibit 8 admitted into evidence. MR. GRIFFITH:

We will object on 803(6)

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which is what she is trying to use, foundation.
THE COURT: Evidence.

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

I've reviewed 803 Rules of

Based on this objection and prior objection,

your objection is overruled. You may proceed, Ms. Bowen.
MR. GRIFFITH:

May we approach on that,

Your Honor?

They haven't said this record was made until

at -- or made at or near the time of this event. they say that it can't come in.
MS. BOWEN:

The final question, the

requirements go to the entire medical record for that
patient.

The first question asked, are the medical

records made at or near the time of the event recorded.
THE COURT:

Why don't you specifically

rephrase and ask that question as to the entire record being made at or near the time of the underlying event.
BY MS. BOWEN:

Q.

Okay.

Ms. Knutson, does the requirement

that the medical record be made at or near the time of the event recorded go to the entire medical record? A. Q. A. Yes, it does. it go for these Does records? Yes, it does.
MS. BOWEN: Exhibit 8 into evidence.

Again, the State moves to have

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MR. GRIFFITH:

Same objection.

Request

2
3

voir dire of the witness.
THE COURT:

All right.

You may voir dire

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

the witness only on this issue. MR. GRIFFITH:
THE COURT:

Thank you, Your Honor.

Members of the Jury, when an

attorney requests to voir dire, they are allowed -- that
person's attorney is allowed to question the witness only on a specific evidentiary issue.

Mr. Griffith may

proceed on the v"ery specific and limited basis.

v 0 I R
BY MR. GRIFFITH:

D E

I

~

E X A M I N A T ION

Q.

Ms. Knutson, do you have personal

knowledge as to what day or d~ys 'this report was made?
MS. BOWEN:

Objection, not required under

the Rule.
THE COURT: sustained. ,

BY MR. GRIFFITH:

Q.

Do you have knowledge in any fashion from

what day this particular record was made?
MS. BOWEN: objection.

Not required under

the Rule. MR. GRIFFITH: the Rule. Yes, it is required under

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MS. BOWEN:
THE COURT:

Your Honor, may we approach? Yes.

2 3

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

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

Ms. Knutson, how do you know

that the records were made at or near the time of the underlying event?
THE WITNESS:

Each entry in the record is

dated and quite often there is also a time documented. Whether it's the nurse documenting or the physician in the notes, they will document the time that they make an entry on the dictated report or the report that's typed. At the bottom of that report you would have the date it was dictated and then the" date it was also transcribed.
That is how we tel~ that we are following the rules as far as what our record completion requirements are.
THE COURT: All right.

Thank you.

On

that basis the objection is sustained. Anything else, Mr. Griffith? MR. GRIFFITH:
THE COURT:

No, Your Honor.

The objection is overruled,

pardon me.

MR. GRIFFITH:
yes, I do. BY MR. GRIFFITH:

Well, in that case, then,

Q.

Again, just on this same issue, having

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35 1

looked at all these records, not all these records
reflect July 7th, '94; is that right?

2 3 4 5 6

Some of them were

apparently written on July 7, some of the others may not have been; is that correct or not correct?
A.

I guess I don't understand the question. You said on. the bottom narrative, it will Is that

Q.

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

say what time it was dictated; is that correct?
a yes for the court reporter?

A.
Q.

Yes, yes. Now, the non-narrated ones, they should

also have a time on them; correct?

A.

Right.

At the time of the entry the

medical personnel would put a time and date they make that entry. MR. GRIFFITH: All right. I don't object

to those items which are marked as having been done on July 7.
THE COURT:

Okay.

You do object to other

entries that may have a date other tha~ July 7, 1994? MR. GRIFFITH:
THE COURT: overruled.

Yes.
YI)ur obj ection is

All right.

You may proceed with the rest of your direct

examination.
MS. BOWEN: Again, the State moves to have

Exhibit 8 entered into evidence.

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36 1 THE COURT:

subject to your objection

2 3 4 5 6 7
8 9 10

limiting as you just indicated, your objection is
overruled. This exhibit, Exhibit 8 is admitted.

D IRE C T BY MS. BOWEN:
Q.

E X A M I N A T ION

(CONT)

One final question:

When a patient's

dictation is indicated for the date she has been there but the dictation date indicates another date, the event has been recorded at or near the time of the event;
l

11 12 13 14 15 16 17 18

isn't that right? A. Yes. There is a requirement that the

emergency room reports be dictated immediately, at the time that they are examining the patient. And then once

they are transcr~bed, the hard copy then goes to the medical record.
Q.

As far as how that's designated, the

dictation date is the DD entry with a time?
19 20 21 22 23 24 25

A.

That is correct.

Q. And the dictation transcript date is noted with a different time?

A.

That's correct.
MS. BOWEN: Thank you.

I have no other

questions.
THE COURT: Thank you.

Any questions of

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this witness, Mr. Griffith? MR. GRIFFITH:
THE COURT:
be excused?

2 3
4

No, Your Honor. May this witness

All right.

5 6

MS. BOWEN:
THE COURT:

Yes, Your Honor. May this witness be excused,

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

Mr. Griffith?
MR. GRIFFITH:
THE COURT: Oh, yes. Thank you.

Ma'am, you're excused as a witness. Ms. Bowen? MS~ BOWEN: .Thank you. Detective Powers.
'J;'HE COURT: i

The State calls

Thank you.

(Witness sworn)
THE COURT: MS. BOWEN:

Any time, Ms. Bowen.
Thank you.

ROB E R T

POW E R S,

called as a witness herein, having been first duly sworn, was examined and testified as follows:

D IRE C T
BY MS. BOWEN:

E X A M I N A T ION

Q.

Please state your name.

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A.

Robert Powers. Where are you employed? Maricopa county Sheriff's Office. In what capacity? currently a detective. How long have you been employed with the

2 3 4

Q. A. Q. A. Q.

5 6 7 8 9
10 11 12 13 14 15

Maricopa County Sheriff's Office? A. Q. Nine years. I notice that you are in plain clothes.

Is that your normal work apparel? A. Q.
Yes',ma'am.

During the course of your employment, were

you called to an investigation'regarding Rachel Tseko and William Floyd smith? A. Q. A. Q. A. Yes. Wqat was your role in that investigation? I was the primary investigator. What would that entail? It would be my duty to contact the deputy

16 17 18 19
20 21 22 23 24 25

that took the initial report, gather information, and then continue the investigation from that point forward. Q. A. Q. A. Does that include interviewing witnesses? Yes.
The suspect himself? Yes.

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Q.
analyzed?
A.

As well as obtain evidence and have it

2 3

Yes. During the course of this investigation,

4
5 6 7
8 9 10 11 12 13

Q.

did you interview the Defendant? A.
Q.

Yes, I did.

Do you recall when that interview took

place? A.

I believe it was July 9th, 1994.
And do you recall where it took place? It was at the Maricopa County Sheriff's

Q. A.

Office in Fountain Hills. Q. A. Is that a specific building or location? Yes. It's a -- it's actually a doublewide

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

mobile home -- not a doublewide, but a mobile home type

of building in Fountain Hills. Q. Basically it's a temporary building? Well, it's ~een a permanent home for us

A.

many years, but it's temporary.

Q.

Do you know how it is that the Defendant

got to that location?

A. Q.

Yes.

He rode with me to that location.

Was there anyone else present during the

time you interviewed him?

A.

Yes.

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