EXHIBIT 1
Case 2:03-cv-01892-ROS
Document 169-2
Filed 11/17/2006
Page 1 of 16
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Daniel B. Treon - 014911 TREON & ASSOCIATES, P.L.L.C. 112700 North Central Avenue, Suite 1000 II Phoenix, Arizona 85004 Telephone: (602) 265-7100 Fax: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
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TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and II wife, for themseives and as parents and guardians for their minor child, MARCUS DAKOTA AUGUST
II
Plaintiffs,
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vs.
OF PHOENIX, a body politic of the State of Ii Arizona; OFFICER LYLE MONSON and JANE DOE MONSON, husband and wife; OFFICER 15 II NICHOLAS LYNDE and JANE DOE LYNDE, husband and wife; OFFICER TOBY DUNN and '6 II JANE DOE DUNN, husband and wife; OFFICER T. HEDGECOKE and JANE DOE HEDGECOKE, 17 II husband and wife; and R. GRiFFIN and JANE DOE GRIFFIN, husband and wife
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IJ II CITY
Defendants.
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) Case No. CV03-1892 PHX ROS ) ) ) PLAINTIFF TERESA ) AUGUST'S RESPONSE TO ) DEFENDANTS' FIRST ) REQUEST FOR ADMISSIONS ) & NON-UNIFORM ) INTERROGATORIES ) ) ) ) ) ) ) ) ) ) ) ) )
TO:
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DEFENDANTS AND THEIR COUNSEL OF RECORD.
Plaintiff Teresa August, by and through counsei undersigned, and pursuant to Rule
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36, Federal Rules of Civil Procedure, responds to Defendants' First Request for Admissions and Non-Uniform Interrogatories as foHows: REQUEST FOR ADMISSIONS
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Case 2:03-cv-01892-ROS
-1Document 169-2
Filed 11/17/2006
Page 2 of 16
1.
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Admit that you failed to complywith lawful police ordersfrom OfficersDunn,
Monson,Lynde,and Griffinon February 2002,a violationof A.R.S.§ 28-622. 6, "AdmitO Deny NUl's: 1. Reason for denial. witnesses. and exhibits in support: August complied with the officers' lawful orders. Theresa
[8J
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"
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Witnesses in
support of this statement will include DakotaAugust, and Sam Hickey. 2. Reasonable inquiry made in answerinQthis Request for Admission:
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Objection to wording of this interrogatory as Rule 36(a) does not
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require such explanation. Without waiving objection, Mrs. August relied on her vivid memory of the incident and review of ARS28-622.
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2.
Admit that Officer Hedgecokedid not arrive to the scene until after you had Admit 0 Deny
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beenarrested. NUl's:
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Theresa
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1. Reason for denial. witnesses. and exhibits in support:
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August does not know when officer Hedgecoke arrived on the scene.
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She may be able to answer this interrogatory upon seeing what Hedgecokelooks like.
2. Reasonable inquiry made in answering this Request for Admission:
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Objection to wording of this interrogatory as Rule 36(a) does not require such explanation. Without waiving objection, Mrs. August relied on her vivid memory in answering this interrogatory, and reviewedthe police reports.
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Case 2:03-cv-01892-ROS
Document 169-2 -2-
Filed 11/17/2006
Page 3 of 16
3.
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Admit that the olticers had probable cause to arrest you on June 10, 2002 for Admit
Resisting Arrest, a violation of A.R.S. § 13-2508. NUl's:
D
Deny
[2J
The officers
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& 7
1. Reason for denial. witnesses, and exhibits in support:
had obtained only the statement of Sam Hickey in coming to whatever conclusions they arrived at before deciding to arrest Mrs. August.
Moreover, the officers' explanation that an emergency existed because
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there was danger to Dakota August
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is an absolute, to justify their
after-the-fact outrageous
falsehood conduct.
concocted
by the officers
Dakota August never expressed fear of Theresa August, but
to the extent he was upset during contact between Theresa August and the officers at around the area of her door, which Theresa August states he was not, any such agitation in him was caused by the
officers' aggressive manner of dealing with his grandmother, Theresa
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August.
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Moreover, at no time did Mrs. August resist arrest, which in
any event was a wrongful act. The officers grabbed her and wrenched
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and torqued her arm so quickly and so violently that she had no opportunity to resist arrest, even if she had wanted. will be Sam Hickey and Dakota August. 2. Reasonable inauirv made in answerina this Reauest for Admission: as Rule 36(a) does not objection, Mrs. August Witnesses to this
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Objection to wording
of this interrogatory Without waiving
require such explanation.
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relied on her vivid memory of the incident.
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Case 2:03-cv-01892-ROS
Document 169-2 -3-
Filed 11/17/2006
Page 4 of 16
4.
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Admit that the officers had probablecause to arrest you on June 10,2002 for
DisorderlyConduct,a violationof A.R.S. § 13-2904. Admit NUl's:
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Deny
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1. Reason for denial, witnesses. and exhibits in support: While Theresa August threw a remote control at her grandson, it was done as a
defensive measure as he was looming and would neither follow her
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instruction nor leave her house. She was afraid for her safety and had no intent either to insuft, injure or provoke Mr. Hickey. Mrs. August had no intent or knowledge of disturbing anyone in the neighborhood, or in her family, particularly as it was Sam Hickey who was not being peaceful himseff and was causing a ruckus by not following his
grandmother's orders. Further, any actions she took once the officers
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arrived or noise she made was entirely reasonable given the officers'
out-of-control conduct. Witnesses: herseff and Sam Hickey.
2. Reasonable inquiry made in answerina this Request for Admission:
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Objection to wording of this interrogatory as Rule 36(a) does not
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require such explanation. Without waiving objection, Without waiving objection, Mrs. August relied on her vivid memory of the incident, and she reviewed the police reports, the transcript of the 911 tapes and the
interviews.
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5.
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Admit that the officers had probablecause to arrest you on June 10, 2002 for Admit
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the Assaultof your grandson,a violationof A.R.S. § 13-1204. NUl's: Case 2:03-cv-01892-ROS Document 169-2 -4Filed 11/17/2006
D
Deny
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Page 5 of 16
1.,
2
Reason for denial. witnesses. and exhibits in support: While Theresa
August threw a remote control at her grandson, it was done as a defensive measure as he was looming and would neither follow her
4 5 6 7
instruction nor leave her house. She was afraid for her safety and had no intent either to insult, injure or provoke Mr. Hickey. Witnesses: herself and Sam Hickey.
2. Reasonable inquiry made in answerina this Request for Admission:
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Objection to wording of this interrogatory as Rule 36(a) does not
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require such explanation. Without waiving objection, Without waiving
objection, Mrs. August relied on her vivid memory of the incident, and
she reviewed the police reports, the transcript of the 911 tapes and the
interviews.
6.
Admit that the 911 transcript attached hereto as Exhibit "1", is a true and
accuratetranscriptionof the audiotape attachedas Exhibit"2". Admit D Deny ~ 1. Reasonfor denial, witnesses, and exhibits in support: Theresa August
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has no way of authenticating the 911 tape, a recording made by police
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and in police custody and control, and thus subject to possible tampering, thus she cannot know if the tape is actually what was said to the 911 operator, thus she cannot authenticate the transcript of the tape prepared by agents of the police. 2. Reasonable inquirv made in answerinq this Request for Admission: Objection to wording of this interrogatory as Rule 36(a) does not
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require such explanation.
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Given the nature of the denial and
explanation therefore, this interrogatory is inapplicable. Case 2:03-cv-01892-ROS Document 169-2 -5Filed 11/17/2006 Page 6 of 16
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7.
Admit that the police officer interviewsattached hereto as Exhibits"3 through
4", are true and accuratetranscriptionsof the aUdiotapes attachedas, Exhibits"5 through 6". Admit
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0
Deny
[gJ
Theresa
1. Reason for denial. witnesses. and exhibits in support:
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August has no way of authenticating the tape recordings, which were recordings made by pollee and in police custody and control, and thus
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subject to possible tampering, thus she cannot know if the tape is
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actually what was said to the police interrogators, thus she cannot authenticate the transcript of the tapes prepared by agents of the police. 2. Reasonable inQuiry made in answerina this Reauest for Admission: Objection to wording of this interrogatory as Rule 36(a) does not require such explanation. Given the nature of the denial and
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explanation therefore, this interrogatory is inapplicable.
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NON-UNIFORMINTERROGATORIES
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1.
If you did not unequivocallyadmit any of these Requestsfor Admission,please
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identify why you denied the Admission and provide each and every reason why the Admissionwas denied,includingeach witnessand/or exhibitwhich supportsyour denial. RESPONSE: see answers above. 2. If you responded that you were unable to admit or deny any Requests for
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Admission, identify the reasonable inquiry made pursuant to Rule 36(a), including all witnessesor exhibitsexaminedin order to answerthe Requestsfor Admission.
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RESPONSE:
see answers above
Case 2:03-cv-01892-ROS
Document 169-2 -6-
Filed 11/17/2006
Page 7 of 16
RESPECTFULLY SUBMITTED thiS·
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.}·lday of May, 2004.
By ~ /--/---
_.,.
rn",~.~4LC
Daniel B. Treon Attorney for Plaintiffs Original of the foregoing filed this C>LI day of May, 2004 with:
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Kathleen L. Wieneke, Esquire Jones, Skelton & Hochuli, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, AZ 85012 Attorneys for Defendants City of Phoenix, Officers Monson, I"ynde. Hedgecoke & Griffin
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Case 2:03-cv-01892-ROS
Document 169-2 -7-
Filed 11/17/2006
Page 8 of 16
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STATE OF ARIZONA County of Maricopa
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) ss.
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I, Teresa August, being first duly sworn, upon oath depose and say: I am the Plaintiff herein; I have read the foregoing Plaintiffs' Response to Defendants' First Request for Admissions and Non-UnifonmInterrogatories and know
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contents thereof; the same are true to my knowledge. except as to such matters are stated upon infonmationand belief, and as to such matters I believe the same
to be true.
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SUBSCRIBED AND SWORN to before me this;t.Lday
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IITeresa August.
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II
II My Commission Expires:
~!!f'~~,,_IU-
JL
Of~.
2004. by
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Case 2:03-cv-01892-ROS
Document 169-2
Filed 11/17/2006
Page 9 of 16
EXHIBIT 2
Case 2:03-cv-01892-ROS
Document 169-2
Filed 11/17/2006
Page 10 of 16
104
1
(Exhibit Q. BY MS. WIENEKE:
6 and 7 marked Mrs. August,
for
identification.) you what
2
r'm giving
3 II've had marked 4 II'd like
as Exhibits off with
6 and 7 to your Exhibit Number 6.
deposition. That on the
to start you
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6
right-hand
Teresa
see the title of the document
Response to Defendants' First
"Plaintiff
Request Do you for see
August's
7 IAdmissions 8 Ithat?
9
and Non-Uniform
Interrogatorieslt?
A. Q.
And
that's
an interrogatory? And on the last your Mine signature doesn't page again 6? we see
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That's page
6.
right. with
signature A. Q. A. Q. A. Q. A. Q.
5,
on Exhibit
have a page.
Okay.
One more
page over. not 6
6,
Oh, then it's
It's
Exhibit
not page
6,
I'm sorry.
Yes, that's me. That's your signature?
M'hum. Correct?
I 'ct like you to turn to page number
5
20 lof
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Exhibit Number 6.
A. Q.
Okay. Number 6 asks you to "admit that the 9-1-1 attached hereto as Exhibit 1 is a true and of the audiotape attached as
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transcript accurate
transcription
2S IExhibit 2U?
LEA, SHERMAN & HABESKI Case 2:03-cv-01892-ROS Document 169-2
(602)
257-8514
Filed 11/17/2006
Page 11 of 16
105
1 2 3
4
A. Q. A. Q. A. Q. A. Q.
Yes.
And your Deny?
Yes.
answer
was
"deny" ?
5 6 7 8
Where
IIDeny"
is my answer? is checked; Yes. Exhibit
Okay.
right?
Okay. All
right.
Number
7 in front
of
you, the
9 [here 10 11 12
13
is the transcript I think
of the 9-1-1
call. you had
That's
Itranscript learlier A. Q. A.
you told me that you
reviewed
before M'hum.
nYesl1?
to prepare
for your
deposition?
14 15
Yes. MS. WIENEKE: permission have to take What I'd like that to do with reporter
16 ICounsel's 17 18 19 20 21 22 23 24 25 I lit, enough doesn't
a stipulation down what
the court played
is being
on the for
tape, but what you
Ifar
I'd like of the whether
to do, Mrs. tape
August,
is play
a portion the record that's
9-1-1 your
and ask you is heard
to identify on that tape.
voice to do.
I Okay,
what
I'd like
1'm not going
to play
Ithe entire A.
tape.
Okay. MS. WIENEKE: for you to hear 1111 it. just playa portion of
If you want
to you can
LEA,
SHERMAN
& HABESKI
(602)
257-8514
Case 2:03-cv-01892-ROS
Document 169-2
Filed 11/17/2006
Page 12 of 16
106
, )
1 Ifollow
2 3 4 5
along
with
the transcript. is this Chris?
A.
Excuse
me, who
MS. WIENEKE: A. Okay. Okay. Okay.
That is the 9~1-1 operator. Who's That D-o-r-r is that from the I-e? fire of
MS. WIENEKE: We're And, not just
is someone
6 I department. 7 Ithis tape.
going with
to playa your
little
portion
Counsel, take
it
stipulation,
the court
8 Ireporter
9
need
down? That's Okay. makes fine. It will be on the audio
MR. TREON: MS. WIENEKE: the videotape, if that
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any sense. Theresa, what call; I'm going okay?
MS. WIENEKE: do now A. is playa M'hum. (Portion A. Q.
Yeah, BY MS. that's
Okay,
13 Ita
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portion
of the 9-1-1
15 16
17
of tape played.)
me.
WIENEKE:
Okay.
Now,
for the
record, Exhibit
I
18 Istopped
19
the tape
7
at page
3 of the transcript,
I Number
A. Q.
Ime.
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22 23
'\
Yes. -- at the end where listen. Yes, of Hello.
I
n
it says,
"Theresa,
listen
to
Okay, A.
Q,
Do you see that?
I
Okay. First
see it.
your voice on the
24 25
all, did you recognize
tape?
LEA,
SHERMAN
& HABESKI
(602)
257-8514
Case 2:03-cv-01892-ROS
Document 169-2
Filed 11/17/2006
Page 13 of 16
107
1
A. Q.
Yes,
I did recognize
my voice.
2
There was also another female voice on the tape
3 Iwhich was the 9-1-1 operator who was identified on the
4 itranscript 5 Ivoice, 6 Itape
7 8 9
as Chris
Whitted.
There was another male
and during nthat!s the playing of the to
though,
on the tape you said
at one point
effect?
Baron or something
I that
A. Q. A. Q. transcript note
Yes.
Did you hear Yes. Sam Hickey's voice on the tape?
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Okay.
When you reviewed the tape and the
to prepare were for your deposition that were inaccurate did you
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together there
whether
any transmissions
14 I attributed
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to you on the transcript
which were
lin any way?
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MR. TREON:
Ididn't A. Q. review Did the entire It I don't
Object to foundation.
tape. think so. No, I didn't.
She
BY MS. WIENEKE:
With respect to what you
20 I listened to though -21
A.
Q.
I listened to that part, yes. -- did you note any errors in the transcript to you? In other words was the
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about what was attributed transcript A.
accurate with the tape as you listened to it?
Right here it says "refused to answer questions LEA, SHERMAN & HABESKI
(602)
257-8514
Case 2:03-cv-01892-ROS
Document 169-2
Filed 11/17/2006
Page 14 of 16
108
1
I and hung up.
II
I didn't
hang
up.
I went
up to the -- I
2 Iwent outside.
3
Q.
Oh, okay.
Well,
what
you're
talking attributed about
about
is on
4 Ipage 3 and 4. 5 land Chris 6 Ishe refused
7 8
That's
a transmission
to Chris injuries,
says
"I'm not too positive questions hang up. that,
like
to answer I didn't
and hung
up.n
A. Q.
No,
Okay. said.
I understand
but
that's
actually
9 Iwhat Chris 10
11
A. Q. litems A. Q.
Okay. My question in this Yes. -- do you have any information that any of those for you that is: With respect your to those
12
13 14
transcript
are after
name
15 lare inaccurate
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in any way? to the tape and this?
A. Q. A. Q. IExhibit ever
According
17
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Yes, ma'am. It's Okay. Number accurate so far. I want requests to know is when you got did you
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Now what 6, these
for admissions,
listen
to the tape which
and compare have been
it to the transcript
at that A. Q. A.
time,
would
No.
sometime prior to May 21st --
24 25
No.
LEA,
Case 2:03-cv-01892-ROS
& HABESKI (602) 257-8514 Document 169-2 Filed 11/17/2006 Page 15 of 16
SHERMAN
109
1
Q. A. Q. No.
2004?
,
./
2
3
So you to the
never
made
an attempt
as of May
it
2004
to
4 Jlisten 5 lof
6 7 8 9
transcript call?
and compare
to the audiotape
the 9-1-1 A.
True. MR. TREON: Object True? listen to the tape and compare it to foundation.
Q. A. this. Q.
BY MS. WIENEKE: Yes, I did not
10 Ito
11
And
the
same
question
goes
for the audiotape
and
12 laccompanying 13 Iscene
14 lei ther?
15
transcript
for the interview ever make that
of you at the comparison
of your
homer
did you
MR. TREON: MS. WIENEKE: A. Q. A. Q. Yeah. BY MS. WIENEKE: I made Okay.
it
Object to foundation. You can answer.
16
17 18
19 20
You made yeah.
that
comparison?
yesterday,
Prior
to yesterday
had you made
that
21 Icomparison? 22
23
A. Q. Iyesterday
No. Okay. With respect to the comparison that was you made about
24 25
did you
find
anything
inaccurate
Ithe audiotape
and transcript
of the interview?
LEA, SHERMAN & HABESKI Case 2:03-cv-01892-ROS Document 169-2
(602)
257-8514
Filed 11/17/2006
Page 16 of 16