Free Motion in Limine - District Court of Arizona - Arizona

EXHIBIT 1

Case 2:03-cv-01892-ROS

Document 169-2

Filed 11/17/2006

Page 1 of 16

,I
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
7

2

J 4

5

8

9 10
II

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,

12 II

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
14 18

IJ II CITY

Defendants.
20

) Case No. CV03-1892 PHX ROS ) ) ) PLAINTIFF TERESA ) AUGUST'S RESPONSE TO ) DEFENDANTS' FIRST ) REQUEST FOR ADMISSIONS ) & NON-UNIFORM ) INTERROGATORIES ) ) ) ) ) ) ) ) ) ) ) ) )

TO:
21

DEFENDANTS AND THEIR COUNSEL OF RECORD.

Plaintiff Teresa August, by and through counsei undersigned, and pursuant to Rule
22 2J 24

36, Federal Rules of Civil Procedure, responds to Defendants' First Request for Admissions and Non-Uniform Interrogatories as foHows: REQUEST FOR ADMISSIONS

25
26

Case 2:03-cv-01892-ROS

-1Document 169-2

Filed 11/17/2006

Page 2 of 16

1.
2 1

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

4
5

"
7

Witnesses in

support of this statement will include DakotaAugust, and Sam Hickey. 2. Reasonable inquiry made in answerinQthis Request for Admission:

g 9

Objection to wording of this interrogatory as Rule 36(a) does not
III II

require such explanation. Without waiving objection, Mrs. August relied on her vivid memory of the incident and review of ARS28-622.

11
11

II

2.

Admit that Officer Hedgecokedid not arrive to the scene until after you had Admit 0 Deny

14
15

beenarrested. NUl's:

[8J
Theresa

16

1. Reason for denial. witnesses. and exhibits in support:
17

August does not know when officer Hedgecoke arrived on the scene.
18 19

She may be able to answer this interrogatory upon seeing what Hedgecokelooks like.
2. Reasonable inquiry made in answering this Request for Admission:

20
21

22
23 24

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.

25
26

Case 2:03-cv-01892-ROS

Document 169-2 -2-

Filed 11/17/2006

Page 3 of 16

3.
2 3

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

'4 5
& 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
H

there was danger to Dakota August
9 10 II 12 1.\ 14 15

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
16

August.
17

Moreover, at no time did Mrs. August resist arrest, which in

any event was a wrongful act. The officers grabbed her and wrenched
18 19

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

20
21

22 23 24

Objection to wording

of this interrogatory Without waiving

require such explanation.
25

relied on her vivid memory of the incident.
26

Case 2:03-cv-01892-ROS

Document 169-2 -3-

Filed 11/17/2006

Page 4 of 16

4.
2

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:

D

Deny

i:8J

4 5

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

"
7 H 9 10

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

"
12 13 14 15
16

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:

17

Objection to wording of this interrogatory as Rule 36(a) does not

"
19

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.

20
21 22

"
24

5.
25
26

Admit that the officers had probablecause to arrest you on June 10, 2002 for Admit

II
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

i:8J

11

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:

8

Objection to wording of this interrogatory as Rule 36(a) does not
9 10 II 12 \3 14 15

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

16
17

has no way of authenticating the 911 tape, a recording made by police
18 19

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

20
21 22

23 24 25

require such explanation.
26

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

2
.1

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

·
5

0

Deny

[gJ
Theresa

1. Reason for denial. witnesses. and exhibits in support:

o
7

August has no way of authenticating the tape recordings, which were recordings made by pollee and in police custody and control, and thus

8

subject to possible tampering, thus she cannot know if the tape is
9

10
II

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

12 13 14

15
10

explanation therefore, this interrogatory is inapplicable.
17

NON-UNIFORMINTERROGATORIES

"
19

1.

If you did not unequivocallyadmit any of these Requestsfor Admission,please

20
21 22

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

23

2'
25

Admission, identify the reasonable inquiry made pursuant to Rule 36(a), including all witnessesor exhibitsexaminedin order to answerthe Requestsfor Admission.

26

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·
2 3
4

.}·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:

5

/")/.5f

6

1 8
9 10

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

"
12
13 14 15 16

11
18 19

20
21

22 23 24
25

26

Case 2:03-cv-01892-ROS

Document 169-2 -7-

Filed 11/17/2006

Page 8 of 16

1 2

STATE OF ARIZONA County of Maricopa

)

) ss.
)

3
4

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

5
6 7

8 II the
9 II as 10 ··
II
12

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.

13 14

II

.·

iJJ.-

15 II

SUBSCRIBED AND SWORN to before me this;t.Lday

16

IITeresa August.

AI

·

17

II
II My Commission Expires:

~!!f'~~,,_IU-

JL

Of~.

2004. by

18
19

20 11..;;])"'0) J ~ I· cYOO7-21 22 23 24
25 26

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

5
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

10 Ilia
12 13 14 15 16 17 18 19

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
21

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

22 I 23 24

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

10 11 lof
12

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
14

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.

20 21
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?

10
11

Okay.

When you reviewed the tape and the
to prepare were for your deposition that were inaccurate did you

12 13

together there

whether

any transmissions

14 I attributed
15

to you on the transcript

which were

lin any way?

16 17 18
19

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

22

23 24
25

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
16

in any way? to the tape and this?

A. Q. A. Q. IExhibit ever

According

17
18

Yes, ma'am. It's Okay. Number accurate so far. I want requests to know is when you got did you

19 20 21 22
23

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