1 1 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 2 IN AND FOR THE COUNTY OF MARICOPA 3 4 5 STATE OF ARIZONA, 6 7 8 9 10 ) ) Plaintiff, ) ) ) vs. ) ) ) DARREN MALLORY SHARPER, ) ) Defendant. ) _____________________________ ) CR2014-001293-001DT 11 12 13 14 REPORTER'S TRANSCRIPT OF PROCEEDINGS 15 (Simpson Hearing) 16 Phoenix, Arizona April 16, 2014 11:00 a.m. 17 18 19 Before: The Honorable Warren J. Granville, Judge 20 21 22 23 (COPY) 24 PREPARED BY: 25 Elva Cruz-Lauer, RMR, CRR Arizona Certified Reporter No. 50390 2 1 APPEARANCES: 2 For the State: 3 MR. YIGAEL COHEN, MS. KATHLEEN CAMPBELL, Deputy County Attorneys, 4 5 For the Defendant: 6 MR. ALFRED S. DONAU, III, MR. BRIAN F. RUSSO, Attorneys at Law, 7 8 (Whereupon, Elva Cruz-Lauer, was first duly 9 sworn to act as the Official Reporter herein.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 2 3 4 5 INDEX 6 7 STATE'S WITNESS: D C 8 Kevin Mace 8 38 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 THE COURT: This is the time set for 2 Simpson Hearing in State versus Darren Sharper, 3 CR2014-001293. 4 Appearances please. 5 MR. COHEN: Good morning, Your Honor. 6 Yigael Cohen for the State. Also with the State is 7 Kathleen Campbell. 8 THE COURT: Good morning. 9 MR. DONAU: Morning, Your Honor, Skip Donau 10 and Brian Russo appearing for Mr. Sharper, whose 11 presence we have waived. 12 THE COURT: Good morning. 13 MR. DONAU: The Court has received a camera 14 request to televise or video the proceedings. Any 15 objection, Mr. Cohen? 16 MR. COHEN: State takes no position, Your 18 THE COURT: Mr. Donau? 19 MR. DONAU: Defense takes no position, Your THE COURT: The presumption is that 17 Honor. 20 Honor. 21 22 proceedings may be video recorded, so go ahead. 23 With the permission of the parties, the 24 Court has reviewed submissions by both counsel. 25 State had submitted both paper and disk. The 1 5 I will tell the parties I have reviewed all 2 of the paper and none of the disks. I have read the 3 defense materials, which included the grand jury 4 transcript. So I will defer to the parties as to 5 what exhibits they wish to submit as exhibits for the 6 purposes of the hearing. 7 And if counsel wants, I can rereview the 8 list or just submit as an exhibit the cover sheet of 9 what I had reviewed, so I defer to you, Mr. Cohen, 10 what record you want to make as to what I reviewed so 11 far. 12 MR. COHEN: The State would simply ask that 13 everything that has been previously submitted to you 14 be introduced as an exhibit for the purpose of this 15 hearing only and that those exhibits be placed under 16 seal. 17 THE COURT: Mr. Donau? 18 MR. DONAU: Yes, Your Honor. For purposes 19 of this hearing, we would request our submission be 20 marked as an exhibit and that it be placed under 21 seal. 22 THE COURT: Okay. Well, I will give them 23 exhibit numbers after -- the ones that may be shown 24 through the course of the testimony part of the 25 hearing today. I will admit them as exhibits. 6 1 To the extent that they have identifying 2 information, the Court believes that the victim bill 3 of rights would supersede the presumption of public 4 disclosure, so would order that the submissions by 5 both counsel, including the grand jury transcript, 6 will be filed under seal. 7 For purposes of the hearing, as the 8 indictment alleges, we will have victim A as the 9 alleged victim in count 2; victim B as the alleged 10 victim for count 4. A's roommate, roommate's 11 boyfriend, A's boyfriend, and MN be the references 12 made for purposes of this public hearing. 13 Mr. Cohen, do you wish to make an opening 14 statement or you just want to proceed? 15 MR. COHEN: The State will simply proceed, 16 Your Honor. 17 THE COURT: You may. 18 MR. COHEN: The State will call Detective 19 Kevin Mace. 20 THE COURT: There had been an objection to 21 the detective hearsaying other witnesses' testimony. 22 I read your pleading, Mr. Donau, is there anything 23 else that you want to add to that. 24 MR. DONAU: No, Your Honor, we will submit 25 it on the basis of the pleading which is before the 7 1 Court. 2 THE COURT: All right. Mr. Cohen, you 3 hadn't had a chance to file a response. Do you wish 4 to make a response? 5 MR. COHEN: Your Honor, the Court indicated 6 in chambers that it was going to deny that motion. 7 If the Court is going to entertain any portion of 8 that motion, then the State would ask for its 10 days 9 in which to file a written response. 10 THE COURT: The Court perceives the Simpson 11 hearing akin to a preliminary hearing, so would allow 12 a testifying witness to present hearsay statements of 13 witnesses that testifying witness believes is 14 available later for trial. 15 (Whereupon, Kevin Mace is sworn by the 16 clerk.) 17 THE COURT: Mr. Cohen. 18 MR. COHEN: Thank you, Your Honor. 19 20 KEVIN MACE, 21 called as a witness herein and having been first duly 22 sworn, testifies as follows: 23 24 25 8 1 D I R E C T E X A M I N A T I O N 2 3 BY MR. COHEN: 4 Q. Please state your name. 5 A. Kevin Mace. 6 Q. Where do you work? 7 A. Tempe police department. 8 Q. In what capacity? 9 A. I am a detective in the special victims 10 unit. 11 Q. Could you give the Court an overview of 12 your duty history with Tempe police? 13 A. I was hired in December of 2007, attended 14 the Mesa police academy, worked patrol for 15 approximately five, six years, and been in special 16 victims unit since January of 2007 (sic)? 17 Q. And what specific training have you had 18 with regards to investigating sex crimes? 19 A. Basic from the Mesa police academy. 20 Training includes training from the Arizona POST on 21 sexual assaults, child crimes, other various 22 trainings. 23 24 here? 25 MR. DONAU: Your Honor, may I move over I am having a hard time hearing. THE COURT: Yes, and we also have a 9 1 headphone, if that would help as well, but you could 2 sit over there if that will help. 3 4 MR. DONAU: A. Thank you, Your Honor. I have to make a correction. 5 BY MR. COHEN: 6 Q. Go ahead. 7 A. I have been in special victims since 8 January 2013, not 2007. 9 Q. Okay. Now, you were the case agent in an 10 investigation involving the defendant, Darren 11 Sharper? 12 A. Yes, I was. 13 Q. How did this matter get assigned to you? 14 A. It was assigned from Sergeant Breckow, as 15 we would call it, a call out, on November 21st, 2013. 16 Q. How did this matter first come to the 17 attention of the Tempe Police Department? 18 A. It was called in by the hospital staff at 19 Tempe St. Luke's Hospital. 20 Q. And where did you go first? 21 A. I went to Tempe St. Luke's Hospital. 22 Q. And who did you see there? 23 A. There were various responding officers, as 24 well as the victims A, B, and C. 25 Q. And what was the first thing you did once 10 1 you arrived at the hospital? 2 A. We received a briefing from the first 3 responding officers and they gave us a briefing on 4 what had occurred, what the victims were initially 5 saying. 6 Q. And the Tempe police officers, if 7 subpoenaed will appear at trial? 8 A. Yes. 9 Q. Now, from the hospital, what happened next? 10 A. From the hospital, the -- two of the 11 victims went to get SANE exams conducted, both in 12 Scottsdale and Mesa, and victim C responded along 13 with the witness to the Tempe police department for 14 further interviews. 15 Q. And for the purposes of this hearing, 16 victim C is a roommate? 17 A. Yes, she is. 18 Q. Okay. Now, at some point, forensic 19 interviews were done of victims A and B? 20 A. Yes. 21 Q. Where was victim A interviewed? 22 A. She -- 23 Q. The forensic interview? 24 A. She was interviewed at the Tempe police 25 department -- are you talking forensic exam? 11 1 Q. Interview. 2 A. Interview was conducted at the Tempe police 3 department. 4 Q. And who conducted that interview? 5 A. Victim A? 6 Q. Yes. 7 A. That was Detective Breckow. 8 Q. And you observed the interview? 9 A. Yes. 10 Q. And victim A, if required will respond to 11 subpoena and testify at trial? 12 A. Yes, she will. 13 Q. What did victim A relate? 14 A. Victim A indicated that she was a previous 15 friend -- or a friend of Darren Sharper and they had 16 arranged to meet in Phoenix, and she invited him back 17 to stay at her apartment over the night of November 18 21st. 19 Q. How long had she known the defendant? 20 A. Approximately a year prior to the incident. 21 Q. And had they had a previous sexual history? 22 A. Yes, they had. 23 Q. So she invited the defendant to come to 24 Arizona? 25 A. Yes, she did. 12 1 Q. And when did he arrive in Arizona? 2 A. November 21st. 3 Q. And what did they do? 4 A. They went back to her apartment, had 5 dinner, then two of the other friends, victim B and a 6 witness, came to the apartment. They had some 7 drinks, and then proceeded to a bar in Scottsdale. 8 Q. And what bars did they go to? 9 A. They first went to The Mint in Scottsdale. 10 And then American Junkie in Scottsdale as well. 11 Q. And victim A consumed alcohol? 12 A. She consumed alcohol, yes, at the apartment 13 and at the bar. 14 Q. And have you had the opportunity to review 15 or determine how much she had to drink that night? 16 A. Based on her statements. 17 Q. And based upon her statements, how much did 18 she have to drink that night? 19 A. Approximately 3 to 5 drinks. 20 Q. And what was her state when they left the 21 second bar? 22 A. They were asked to leave because she was 23 passed out on the table. 24 Q. Had she been throwing up as well? 25 A. Yes. 13 1 Q. And this occurred at the bar? 2 A. Yes. 3 Q. Now, have you had the opportunity to review 4 surveillance tapes? 5 A. I have reviewed pictures, not the whole 6 surveillance tapes. 7 Q. Where were these pictures taken? 8 A. There's pictures from The Mint as well as 9 from the apartment complex? 10 Q. And what do these pictures reveal? 11 A. The group was together at The Mint, as well 12 as victim A and witness were with Darren and victim B 13 at the apartment. 14 Q. So these pictures do indicate that the 15 defendant was with victim A? 16 A. Yes. 17 Q. That night? 18 A. Yes. 19 Q. And was victim B out as well? 20 A. Yes, she was also with the group. 21 Q. And from the pictures, what did victim A 22 look like? 23 A. Victim A was needing to be helped into the 24 apartment, being held up by Mr. Sharper and victim B. 25 Q. What did victim B have to say about the 14 1 state -- and victim B has been contacted? 2 A. Yes. 3 Q. And if subpoenaed, she will appear at 4 trial? 5 A. Yes, she will. 6 Q. What did victim B have to say about victim 7 A's state? 8 A. That she was acting -- she had seen her 9 intoxicated before and she had said that she was more 10 than she had seen her before, she was acting strange. 11 Q. Okay. So after the second establishment, 12 where did they go? 13 A. After American Junkie, they went back to 14 the apartment complex. 15 Q. And that's in Tempe? 16 A. Yes, it is. 17 Q. In Maricopa County? 18 A. Maricopa County, yes. 19 Q. What happened once inside of the apartment? 20 A. Once inside of the apartment, victim B, 21 witness, and victim C all assisted victim A into bed, 22 changed her clothing, and placed her in her bed. 23 Q. And victim C has also been contacted? 24 A. Yes, she has. 25 Q. And she will appear if subpoenaed to 15 1 testify? 2 A. Yes, she will. 3 Q. What did they say about the state of victim 4 A, once inside of the apartment? 5 A. That she was -- she appeared extremely 6 intoxicated, and that they had to change her clothes 7 because she wasn't able to do it herself. 8 Q. And what clothes did they put her into? 9 A. They put her in shorts and a T-shirt. 10 Q. And where did they leave her? 11 A. In her bedroom. 12 Q. And when they left the bedroom, was the 13 door open or closed? 14 A. The door was opened. 15 Q. Now, after they put victim A to bed, what 16 happened next? 17 A. Mr. Sharper was in the living room making 18 shots, which the victims indicated he was calling 19 Frat Shots, and when they exited the bathroom -- or 20 the bedroom, he was insisting that they drink -21 continue to drink with him. 22 Q. And what did victim B and C do after that? 23 A. Victim B and C both took shots, the witness 24 did not take a shot. 25 Q. And what did victim -- how did victim B 16 1 related how did she feel after taking the shot? 2 A. Victim B, what she remembered after taking 3 the shot she has no recollection of what happened 4 shortly there after. 5 Q. What's the next thing she does remember? 6 A. She remembers waking up the next morning on 7 the couch. 8 Q. Now, did victim B indicate that -- how much 9 had she drank previous to arriving at the apartment? 10 A. She had very minimal, she had had a drink 11 at the apartment. She shared a drink at The Mint, 12 and then had a vodka and water at American Junkie, so 13 approximately three drinks over the course of the 14 night. 15 Q. And how long did the night last? 16 A. From approximately 10:00 o'clock to when 17 they got back to the apartment around 2:00 a.m. 18 Q. And she said after taking the shot, she 19 began to feel strange? 20 A. She -- last thing she remembers is waking 21 up the next morning. 22 Q. And does she believe she had drank enough 23 to cause that without anything else? 24 A. No. 25 Q. Victim C then, what did she see and do that 17 1 evening in the apartment, or shall we say the 2 roommate? 3 A. The roommate, victim C, was at work during 4 the day and did not accompany the group to the bars. 5 She is only 20 years old and when the group returned 6 to the apartment, she was sleeping and she was awoken 7 by the loud noise they were making. That's when she 8 came out and then helped her roommate into bed with 9 the rest of the group. 10 Q. And after she had helped putting victim A 11 to bed, what happened next, as far as she was 12 concerned? 13 A. She went out, also took one of the shots, 14 had said Darren was very insistent on -- to continue 15 drinking. After she took the first shot, she didn't 16 want to drink any more. And she stated that 17 approximately five minutes after victim B had taken 18 the shot, she passed out on the couch. 19 Q. And what was victim C feeling at this 20 point? 21 A. Victim C -- 22 Q. The roommate, again? 23 A. The roommate, she said it was strange 24 because she didn't know Darren, so she felt like that 25 situation was somewhat awkward. After victim B had 18 1 passed out on the couch, she wanted to go to her 2 room. Darren insisted that she take another shot. 3 And upon his insistence, she agreed to take half a 4 shot. Where she then took half a shot, went directly 5 to her room, and closed and locked the door. 6 Q. And what happened next for her? 7 A. For her she was laying on her bed. 8 started to feel, what she described as weird. 9 limbs were heavy. She Her She was having a hard time with 10 her motor functions. That's when she had called her 11 boyfriend. 12 Q. And what did she talk to her boyfriend 13 about? 14 A. She talked to her boyfriend about the 15 symptoms that she was feeling. He had suggested that 16 she open a window to get some fresh air. 17 having trouble even doing that. She was And then he 18 suggested that she go out to the bathroom and splash 19 some water on her face. 20 Q. What happened next? 21 A. When she exited her bedroom, she entered 22 the living room, where she observed Darren on top of 23 victim B, said that he was naked, making thrusting 24 movements and she believed that he was having sex 25 with victim B. 1 Q. 19 And what did victim B look like while this 2 was going on? 3 A. 4 see her. Victim B, the witness victim C could not She could only see Darren from behind and 5 could not testify to the state of the victim B. 6 Q. And after observing this, what did the 7 roommate do next? 8 A. The roommate went back, she went into the 9 bathroom, came back out, still observed Darren on top 10 of victim B. Then she went back to her bedroom, 11 where she, again, closed and locked the door. 12 time later she heard a knock on her door. Short She was on 13 the phone with her boyfriend and asked the boyfriend 14 what she should do. 15 He said, go ahead and answer the door and I 16 will stay on the phone with you, if something 17 happens, I will call 911. She then answered the door 18 and Darren had made the statement that, about that -19 referring to what she had seen -- me and victim A 20 don't have a relationship, and me and this girl have 21 something going on and we are going to tell victim A 22 in the morning. 23 Victim C felt like it was a strange 24 comment, not knowing much besides the roommate, she 25 closed her door and locked her door. 1 Q. 20 And just to be clear, was it victim A that 2 had the previous relationship with the defendant? 3 A. Yes. 4 Q. Had victim B known the defendant or met the 5 defendant previous to this evening? 6 A. No. She had mentioned she had very little 7 interaction with him during the night. 8 Q. And boyfriend of the roommate has been 9 contacted? 10 A. Yes. 11 Q. And has confirmed that these telephone 12 conversations did take place? 13 A. Yes. 14 Q. And that was the last thing victim C had 15 observed that evening? 16 A. Victim C, after she was in her bedroom had 17 heard Darren go to the bathroom, at which time she 18 exited her bedroom and tried to get victim B off the 19 couch to try to bring her into her room. 20 unsuccessful. Victim B was unresponsive. She was She also 21 attempted to make some phone calls, but didn't really 22 know anybody in the complex and she eventually just 23 went to bed. 24 Q. And what happened the next morning? 25 A. The next morning, victim B woke up on the 21 1 couch, said Darren was also on the couch. She went 2 to victim A's bedroom to try to contact her and her 3 door was locked. 4 Q. Did she find that unusual? 5 A. Yes, she did. 6 Q. Why? 7 A. Because of the way victim A locks her door, 8 she doesn't lock it in a manner that would not allow 9 her to get back in the room. 10 Q. And eventually, the door was opened? 11 A. Yes. Victim A came out of the bedroom 12 after waking up with her shorts and underwear off, 13 and she was positioned on the edge of the bed with 14 her legs hanging off, which she found strange? 15 Q. That's how she woke up? 16 A. That's how she woke up. 17 Q. And did -- victim A had no recollection of 18 what happened during the course of that evening, once 19 she arrived at her apartment? 20 A. No, she does not. 21 Q. And there's no indication as to how her 22 clothes had been removed? 23 A. No, there's not. 24 Q. So what happened next? 25 A. Next, victim B left, went to witness's 22 1 apartment and exchanged conversation with her. The 2 witness confirmed that victim B had passed out 3 shortly after taking the shot. And then victim B 4 went home. 5 Q. And what did victim A do the rest of that 6 morning? 7 A. Victim A came out. She noticed that Darren 8 was on the couch and she didn't understand why, he 9 was there to stay with her. She told him he could 10 come, you know, sleep in my bedroom, where they went 11 to sleep until approximately noon. 12 Q. Did anything occur between victim A and the 13 defendant once he had gone into her bedroom that 14 morning? 15 A. No. Victim A said that he attempted to 16 kiss her, but she felt sick and denied any kind of 17 contact with Mr. Sharper. 18 Q. And how did Mr. -- how did the defendant 19 leave the apartment? 20 A. After victim B went home, victim C then 21 went up to one of the witness's apartments, talked to 22 her about the incident, told her what she saw, and 23 then they decided that they should contact victim B 24 and let her know what they saw. 25 Q. And then what happened next? 23 1 A. Then victim B told them that she doesn't 2 remember what happened during the night and she 3 didn't consent to any sexual contact with 4 Mr. Sharper, and she also mentioned that she felt 5 pressure in her vaginal area, indicating that she had 6 sex but she had no memory of it. 7 Q. And ultimately, how did this matter get 8 reported to the police? 9 A. After victim C contacted victim B, they had 10 decided to confront Mr. Sharper at victim A's 11 residence. They went down there, talked to victim A. 12 Told her what they had found out what happened. And 13 they also asked that Mr. Sharper come out and speak 14 with them. He denied any of the allegations and said 15 that -- he acted like he didn't remember. 16 Q. What did they do next? 17 A. Then victim B and C went to the hospital, 18 and victim A took Mr. Sharper to his friend's in 19 Scottsdale. 20 Q. And then what did victim A do after that? 21 A. Then victim A joined them at the hospital. 22 Q. And once at the hospital, what happened? 23 A. At the hospital they contacted police. 24 That's when our initial patrol officers arrived. 25 Then our unit was contacted, and that's when we 24 1 arrived at the hospital. Then victim A and B were 2 transported for the sexual assault examination. 3 Q. And where were those examinations done? 4 A. One was done in Scottsdale, the other one 5 was done in Mesa? 6 Q. Who conducted those examinations? 7 A. I don't recall off the top of my head the 8 nurses. 9 Q. Would it help if you refreshed your 10 recollection by looking at your report? 11 A. Yes, it would. 12 Q. Okay. 13 A. (Indicating.) Do you have your report available? 14 MR. COHEN: May he -- 15 THE COURT: Yes. 16 MS. CAMPBELL: 17 THE COURT: 18 A. May I approach? Yes. The exam, according to my report was 19 conducted on victim A by Sandra Salomon, if I am 20 saying that correct. Spelling of her last name is 21 S-A-L-O-M-O-N. 22 THE COURT: Just a little bit louder, 23 detective. 24 25 A. Sorry. And then I have to find victim B. And for victim B, Myeisha Andrews. 25 1 BY MR. COHEN: 2 Q. And these nurses are specifically employed 3 to conduct or perform forensic medical exams, SANE 4 exams? 5 A. Yes, they are. 6 Q. And if subpoenaed, they would appear at 7 trial? 8 A. Yes, they would. 9 Q. Just touching on victim A, how did she come 10 to believe that she had sexual intercourse the night 11 before? 12 A. Because the way she woke up, without her 13 clothes on, and then she indicated she had the 14 feeling she had sex. 15 Q. From her genitals? 16 A. From her genitals, yes. 17 Q. What did the -- what -- how were these 18 exams conducted? What were the findings? First of 19 victim A. 20 A. For victim A, there was no injuries to the 21 vaginal area. They were the same for both A and B. 22 Q. Victim B had no injuries either? 23 A. No injuries. 24 Q. Is that unusual in these types of cases? 25 A. No. 26 1 Q. Now, there were swabs taken of their 2 genitals and clothing? 3 A. Yes, there was. 4 Q. And has there been a DNA analysis done on 5 the victims? 6 A. Yes. 7 Q. What were the findings with regard to 8 victim A? 9 A. Victim A, there was -- sperm was located, 10 which was to her consensual sex partner, which was 11 not Mr. Sharper. 12 Q. And she, during the course of the exam or 13 prior to the exam was asked some preliminary 14 questions? 15 A. Yes. 16 Q. And she was asked when she had last had 17 prior consensual sex? 18 A. Yes. 19 Q. And how did she respond to that? 20 A. Approximately three days prior. 21 Q. And through your experience, is it your 22 understanding that sperm may be viable inside of the 23 genital vault for up to five days? 24 A. Yes. 25 Q. What were the findings with regard to 27 1 victim B? 2 A. Victim B, there was a partial match to 3 Darren Sharper on the external genital swabs, and 4 then a match to Darren Sharper on her leggings that 5 she was wearing at the time of the incident. 6 Q. When you say a match, what do you mean by 7 that? 8 A. Based on the DNA report from DPS. It is 9 a -- they call a 16 YSTR loci, which is basically the 10 familial DNA of a man. 11 Q. And what were the -- what was the match 12 with regards to the external genitals? 13 A. It was a partial. 14 Q. And when you say partial, what do you mean 15 by that? 16 A. I believe she said it was 4 of the YSTR. 17 Q. Okay. 18 MR. DONAU: 19 that. 20 I am sorry. I didn't hear It was what? A. 21 4. THE COURT: 4. 22 BY MR. COHEN: 23 Q. Well, if you could refer to the report? 24 A. It's not in this one. 25 MR. COHEN: May I approach, Your Honor? 28 1 THE COURT: Yes. 2 BY MR. COHEN: 3 Q. Rather than just from memory, could you 4 read from your report? 5 MR. RUSSO: 6 interrupting. Your Honor, I apologize for I don't think we have the specific 7 reports that list 16 or 4. We didn't receive any of 8 that in our discovery -- in our disclosure. Can I 9 see what he is referring to? 10 MR. COHEN: I think they were just received 12 MR. DONAU: Oh, well, that's why. 13 MR. COHEN: That's why they haven't 11 today. 14 received them. 15 16 A. You have your own copy. THE COURT: I made copies. You are entitled to look at 17 anything that he is using to reflect his 18 recollection. 19 MR. DONAU: May we have just a moment, Your 20 Honor, because we have not seen these. 21 THE COURT: Yes. For the record, for what 22 it is worth, I don't believe I have seen it either. 23 MR. DONAU: Your Honor, we have had a brief 24 chance to review this scientific examination report, 25 which is dated March 17th, 2014. And it is 29 1 incomprehensible why we are just receiving it today 2 at the exact time of the hearing, when obviously it 3 has been available for a month. 4 MR. RUSSO: Judge, may I point out, we 5 didn't receive it physically. It is on a disk. So 6 we haven't physically received that report. 7 THE COURT: Well, as I had told counsel 8 beforehand, anything on a disk I had not reviewed. 9 And in the papers that I did review, I don't 10 remember -- I remember reading DNA swabs being taken 11 and from where they were taken and generalized 12 references to the match, but I know I didn't see any 13 of the DNA report aspect, which I am familiar with it 14 in format, but I don't remember seeing it. 15 MR. COHEN: And as Your Honor knows, this 16 is a very unusual proceeding in that discovery 17 usually is not extended until after the defendant has 18 gone through his initial appearance and is actually 19 subject to jurisdiction of this Court. 20 THE COURT: I agree. I have not -- I 21 didn't hear Mr. Donau, other than make a record, ask 22 to do anything. 23 MR. DONAU: Well, Your Honor, the record 24 has already been made, I think. You informed the 25 prosecution at our last hearing, whatever they wanted 30 1 to use at this hearing needed to be disclosed in the 2 form of discovery. And disclosing it while the 3 witness is testifying is not in keeping, in my mind, 4 with the intent and nature of your ruling. 5 THE COURT: What are you asking for, 6 Mr. Donau? 7 MR. DONAU: That it be excluded. 8 THE COURT: That objection is -- that 9 motion is denied. 10 BY MR. COHEN: 11 Q. Moving to the report, detective, and we 12 will first touch on the vaginal swabs, and I believe 13 the paragraph relating to these swabs can be found on 14 the second page of the report, and it's the last full 15 paragraph. 16 THE COURT: Time out. Detective, are we 17 talking about victim A or B? 18 MR. COHEN: Victim B, Your Honor. 19 THE COURT: Thank you. 20 A. Would you like me to read it directly from 21 the report? 22 Q. Yes. 23 A. The YSTR DNA profile from item 24 TE165503-10.9A.B two vaginal swabs is a mixture. 25 YSTR DNA profile from the major component of the The 31 1 mixture matches the YSTR DNA profile from item 2 TE174305-001, Darren Sharper at 12 YSTR loci. 3 Q. And go on? 4 A. Inconclusive results were obtained at the 5 remaining 4 YSTR loci and from the minor component 6 due to insufficient DNA. This YSTR DNA profile has 7 not been observed in the Applied Biosystems Yfilter 8 (sic) haplotype database and is not expected to occur 9 more frequently than 1 in 1300 Caucasians, 1 in 640 10 African Americans, and 1 in 530 Hispanics. 11 Q. And just to be clear, victim B had no 12 contact with any other family, male family member of 13 the defendant the night of November 21st? 14 A. No. 15 MR. RUSSO: Objection, foundation. 16 THE COURT: Sustained. 17 BY MR. COHEN: 18 Q. To your knowledge? 19 A. No, not to my knowledge. 20 Q. Now, there was also DNA findings with 21 regards to the leggings? 22 A. Yes, there was. 23 Q. And what were those findings? 24 A. According to the report, paragraph -- 25 second paragraph. 32 1 Q. Okay. 2 A. The YSTR DNA profile from the first 3 epithelial fraction of item TE165151-7.A cutting from 4 leggings is a mixture. The YSTR DNA profile from the 5 major component of the mixture matches the YSTR DNA 6 profile from item TE174305-001 Darren Sharper at 16 7 YSTR loci. 8 Q. And what was the form of the -- what was 9 found -- exactly found on the leggings, if you know? 10 A. It was -- I would have to refer to one of 11 the other DPS reports. 12 Q. 13 Go ahead. THE COURT: Also the position of the 14 leggings, where -- if they documented where on the 15 leggings it was found. 16 A. 17 18 I have to see that report. THE COURT: A. Okay. I don't have it. I don't have it. It is not in this. 19 BY MR. COHEN: 20 Q. Do you have -- is your report here? 21 A. It is going to be in the disclosure for the 22 DPS forms, under serology. 23 THE COURT: While we are doing that. 24 Mr. Russo, you or Mr. Donau can object but not both 25 of you. 33 1 MR. RUSSO: Thank you, Your Honor. All 3 MR. DONAU: We can't tag team? 4 THE COURT: No. 5 MR. COHEN: May I approach again, Your THE COURT: Yes. 2 right. 6 Honor? 7 8 BY MR. COHEN: 9 Q. From the serology report, the prostate 10 specific antigen, the constitute of semen was 11 detected on item TE165151-7. 12 Q. So the DNA was in the form of semen? 13 A. Yes. 14 Q. And where were the leggings -- where were 15 the cuttings from the leggings taken? 16 A. I don't know exactly where they were taken 17 from. 18 Q. Okay. 19 A. That would be from the analyst. 20 Q. Okay. Now, victims A and B also had blood 21 and urine work done? 22 A. Yes, they did. 23 Q. And at this point, it is still 24 inconclusive, nothing has been finalized? 25 A. The -- 34 1 MR. DONAU: Objection to the leading THE COURT: Overruled. 2 nature. 3 4 BY MR. COHEN: 5 Q. You may answer. 6 A. The blood and urine is at a lab still being 7 analyzed. 8 Q. Now, after the victims had underwent their 9 exams and were interviewed, what did you do next in 10 your investigation? 11 A. Then we conducted a search warrant at the 12 residence where the incident occurred. 13 Q. And what did you find? 14 A. During the course of the search warrant? 15 Q. Yes. 16 A. During the course of the search warrant, we 17 found several different items to include shot glasses 18 that the victims described that they used during the 19 night, and in one of the shot glasses white residue 20 was located. 21 Q. And was this residue subsequently tested? 22 A. It was tested. 23 Q. What were the findings? 24 A. That it would contain zolpidem. 25 Q. And what exactly is that? 35 1 A. Zolpidem is generic form of Ambien. 2 Q. I am sorry? 3 A. The generic form of Ambien. 4 Q. And through your investigation, did you 5 determine whether or not the defendant had access to 6 Ambien? 7 A. Yes. 8 Q. And how so? 9 A. From LAPD's investigation, it was confirmed 10 that -11 Q. What did they find? 12 A. They found, during their search warrant -- 13 MR. DONAU: Your Honor, I know we are doing 14 hearsay but he's now -- this is hearsay upon hearsay 15 upon hearsay with the LAPD. 16 THE COURT: That's all true. So you will 17 need to do the preliminary predicates to get there. 18 BY MR. COHEN: 19 Q. Have you had cooperation from the LA or Los 20 Angeles detectives? 21 A. Yes, I have. 22 Q. And they have indicated to you that they 23 will cooperate with this investigation? 24 A. Yes. 25 Q. And if necessary, they will appear in 36 1 Arizona to testify? 2 A. Yes, they will. 3 Q. What was the -- what did they find in their 4 investigation? 5 A. 6 They found that -MR. DONAU: Objection. Same objection, 7 Your Honor. 8 9 THE COURT: A. Overruled. They found that Mr. Sharper does have a 10 prescription for Ambien. 11 BY MR. COHEN: 12 Q. And were they able to find Ambien in the 13 defendant's residence? 14 A. Yes, they said they found approximately 20 15 pills. 16 Q. And was that the amount that he should 17 have, given the prescriptions that he had on record? 18 A. I'm not 100 positive on that. 19 Q. Now, through your investigation, you have 20 found that there were other investigations going on 21 around the country? 22 23 A. Yes. MR. DONAU: Your Honor, we are going to 24 object to any of this information. There hasn't been 25 the proper finding to have this information admitted. 37 1 It is not relevant for the four corners of this case, 2 whether presumption is great and evident. 3 THE COURT: He didn't answer the question 4 that -- the relevance objection, Mr. Cohen, from your 5 perspective? 6 MR. COHEN: Your Honor, it is relevant to 7 show under 404(B) that there's a motis plan, course 8 of conduct, and also under 404(C) that there's an 9 aberrant sexual propensity or a propensity for 10 aberrant sexual conduct and that if this case were to 11 go to trial, the State believes that it would present 12 sufficient evidence through the victims and other 13 jurisdictions that would be sufficient to meet the 14 standard of clear and convincing evidence. 15 THE COURT: The Court finds that in this 16 format, not to make any meritorious decisions 17 regarding trial, a 404(B), 404(C) finding requires a 18 separate hearing. So the Court would sustain the 19 relevance objection. The Court's focus today is 20 whether there were acts of intercourse alleged 21 against victim A or victim B. 22 MR. COHEN: Then just for the record, Your 23 Honor, 404(B) and (C) evidence has come in in the 24 past in Simpson hearings of this nature. 25 THE COURT: I don't want to in any way make 38 1 comment on any proceeding done by colleagues, but I 2 believe that 404(B) and 404(C) has its own 3 requirements of predicate hearings that we can't have 4 in this setting. 5 6 MR. COHEN: Q. Thank you, Your Honor. So in sum, detective, with regards to the 7 Judge's indication of whether sexual intercourse 8 occurred or not, would you please sum up the 9 evidence? 10 A. 11 Okay. MR. DONAU: Is he asking him to repeat the 12 evidence that's already been asked and answered? 13 THE COURT: I would sustain that objection. 14 MR. DONAU: Thank you, Your Honor. 15 MR. COHEN: Then no further questions, Your 16 Honor. 17 18 C R O S S - E X A M I N A T I O N 19 20 BY MR. DONAU: 21 Q. Good morning, Detective Mace, my name is 22 Skip Donau and I along with Mr. Russo represent 23 Mr. Sharper. 24 Detective Mace, much of what you testified 25 here today has been the result of what you've read or 39 1 heard or talked to other officers; is that correct? 2 A. Yes. 3 Q. Much of what you've testified here today is 4 not of your own personal knowledge; is it, sir? 5 A. I interviewed victim B. 6 Q. You interviewed victim B? 7 A. And victim C. 8 Q. Okay. 9 A. I did not interview victim A. 10 Q. Okay. How about victim A? Let's talk about victim A for just a 11 moment. 12 THE COURT: A little bit slower for the 13 court reporter, Mr. Donau. 14 MR. DONAU: Oh, I am sorry. Just hold up 15 your hand if I talk too fast, I will slow down. 16 BY MR. DONAU: 17 Q. Victim A. Let's start with victim A, 18 Detective Mace. 19 Victim A told your fellow officers that she 20 had met Mr. Sharper on several occasions, correct? 21 A. Yes. 22 Q. And she had met Mr. Sharper in Cabo, LA, 23 Las Vegas, correct? 24 A. Yes. 25 Q. And in every single time that she met 40 1 Mr. Sharper, including the first time she met him, 2 they had consensual sex? 3 A. I don't know if it's every time. 4 Q. Every time? 5 A. I can't testify to every time. 6 Q. All right. Do you not remember that, sir? So -- but it was certainly 7 almost every time? 8 A. She's had consensual sex with him in the 9 past, yes. 10 Q. And so if I have a report that says she had 11 consensual sex with Mr. Sharper every time, you 12 wouldn't dispute it, would you? 13 A. No, I would not. 14 Q. All right. And she also told the detective 15 that she talked to -- that at one time, that she and 16 Mr. Sharper voluntarily together took a, quote, 17 Molly? 18 A. Yes. 19 Q. And that Mr. Sharper didn't slip it to her? 20 A. No. 21 Q. That it was her -- with her full knowledge, 22 correct? 23 A. Yes. 24 Q. And that when Mr. Sharper came to Arizona, 25 she invited him to stay at her apartment? 41 1 A. Yes. 2 Q. And that she expected that he expected that 3 they might have sex? 4 A. I can't -- I don't know what he expected. 5 Q. Well, but didn't she tell that to your 6 associate? 7 A. She said she believed that he expected it. 8 Q. Right. All right. And so she -- and 9 towards that end, the next morning after what you 10 have testified to occurred, when she woke up, she 11 said, why are you on the couch, come to my bed? 12 A. Yes. 13 Q. And he did go into her bed, correct? 14 A. Yes. 15 Q. But she didn't feel so well? 16 A. No. 17 Q. And she said, I don't want to do anything, 18 and they did nothing. 19 A. Yes. 20 Q. And Mr. Sharper didn't try to force himself 21 on her, correct? 22 A. No. 23 Q. And so she had known Mr. Sharper for 24 approximately, a year? 25 A. Yes. 42 1 Q. And when he came to her apartment, she 2 prepared dinner? 3 A. Yes. 4 Q. And she prepared shots? 5 A. Yeah, they had drinks, yes. 6 Q. Pardon me? 7 A. Yes. 8 Q. And she prepared the shots with vodka that 9 she had purchased? 10 A. Yes. 11 Q. And you have the receipt for the vodka that 12 she had purchased from CVC (sic), correct? From the 13 pharmacy that sells alcohol? 14 A. Yes. 15 Q. You have that receipt. It was found during 16 the search? 17 A. Yes. 18 Q. And you have a picture of the bottle of 19 vodka? 20 A. Yes. 21 Q. And the vodka, the fifth of vodka is almost 22 completely consumed, is it not? 23 A. Yes. 24 Q. So she also had pineapple juice? 25 A. Yes. 43 1 Q. And she mixed these drinks that they had 2 before they went out? 3 A. Yes. 4 Q. Not Darren Sharper? 5 A. Not that I recall. 6 Q. Okay. And so they go out, and after she 7 and victim B and MN had consumed alcohol? 8 A. Yes. 9 Q. At her apartment? 10 A. Yes. 11 Q. And the first place that they went was to 12 The Mint? 13 A. Yes. 14 Q. And they consumed alcohol at The Mint? 15 A. Yes. 16 Q. And from The Mint, they went to the 17 American Junkie? 18 A. Yes. 19 Q. And at the American Junkie, both -- let me 20 back up. Both victim A and B consumed alcohol at the 21 apartment, then The Mint, and then the American 22 Junkie? 23 A. Yes. 24 Q. And at the American Junkie, it appeared 25 that victim A was getting highly intoxicated? 44 1 A. Yes. 2 Q. She threw up? 3 A. Yes. 4 Q. And she couldn't even make it to the 5 bathroom before she threw up? 6 A. Yes. 7 Q. She threw up at the table? 8 A. Yes. 9 Q. And when she threw up, American Junkie 10 asked her to leave? 11 A. Yes. 12 Q. And she had worked -- she was working for 13 American Junkie? 14 A. Yes. 15 Q. As a mood elevator; is that right? 16 A. Yes. 17 Q. And you recovered paystubs from the 18 American Junkie to victim A for working as a mood 19 elevator? 20 A. In -- during the search warrant are you 21 asking? 22 Q. Correct. 23 A. Yes. 24 Q. And when she threw up, they were basically 25 asked to leave -- the entire party, and at the 45 1 American Junkie was victim A, victim B, three or four 2 other gentlemen and Mr. Sharper; is that correct? 3 A. Yes. 4 Q. And MN? 5 A. MN, yes. 6 Q. Okay. And as they -- and they are seen 7 entering and leaving these places on video? 8 A. Yes. 9 Q. And on the video where she is seen leaving, 10 she is unsteady? 11 A. Yes. 12 Q. And when she gets to the apartment complex, 13 there's also video? 14 A. Yes. 15 Q. And the apartment complex has a security 16 man by the name of John Hooper, correct? 17 A. If that's -- yes. 18 Q. And Mr. Hooper observed that victim A was 19 unsteady and had to be helped into the elevator? 20 A. Yes. 21 Q. And they all passed him and he smelled a 22 strong odor of intoxicants coming from these people? 23 A. Yes. 24 Q. Yes? And when they got in the elevator, 25 they went up to victim A and victim -- and roommate's 46 1 apartment, correct? 2 A. Yes. 3 Q. What was the time that elapsed between when 4 she -- when victim A threw up at the American Junkie 5 and when they got back to the apartment? 6 A. I don't know the exact time. 7 Q. Well, it was 20 minutes? 8 A. Sounds fair. 9 Q. All right. 30 minutes? And when she got back to the 10 apartment, victim A threw up again? 11 A. Yes. 12 Q. In a trash can? 13 A. Yes. 14 Q. And she was helped into the apartment and 15 taken by her friends to her bedroom and passed out? 16 A. Yes. 17 Q. And she was undressed by her friends and 18 shorts were put on her; is that correct? 19 A. Yes. 20 Q. And she was not part of the party any more? 21 A. No, she was not. 22 Q. And she, therefore, had no shots at the 23 apartment made by Mr. Sharper? 24 A. No, she did not. 25 Q. And everybody agrees that was there that 47 1 she had no shots? 2 A. Yes. 3 Q. And the people that did, victim B who had 4 one shot, correct? 5 A. Yes. 6 Q. And roommate who had a shot and a half, 7 correct? 8 A. Yes. 9 Q. According to them, they were -- they were 10 feeling the effects within five to 10 minutes? 11 A. Yes. 12 Q. And victim A hadn't had any shots and 13 showed effects 30 to 40 minutes earlier? 14 A. Yes. 15 Q. So do you -- do you -- do you have a 16 suspicion she got drugs slipped to her sometime 17 earlier? 18 MR. COHEN: Objection, calls for 19 speculation. 20 THE COURT: Sustained. 21 BY MR. DONAU: 22 Q. Well, in any event, there's no evidence 23 that she got any kind of drug at the apartment when 24 she returned, correct? 25 A. Correct. 1 Q. All right. 48 So she's passed -- she's asleep 2 or passed out in her bedroom, and the next morning 3 she wakes up and she sees that her shorts are off? 4 A. She's naked from the waist down, yes. 5 Q. And she -- and as a result of that, she had 6 an exam, and during the SANE exam, there was no 7 evidence of contusions, abrasions, anything that 8 would indicate forced sex? 9 A. No. 10 Q. Right? 11 A. Correct. 12 Q. And she received swabs and testing and all 13 those came back and there was in fact DNA inside of 14 her but that was from another man? 15 A. Yes. 16 Q. A consensual sexual partner from three days 17 before? 18 A. Yes. 19 Q. And not a single shred of DNA related to 20 Darren Sharper was found on or in her, correct? 21 A. Correct. 22 Q. And this, despite the fact that he 23 voluntarily laid down beside her that morning, 24 correct? 25 A. Correct. 49 1 Q. All right. And she -- you had DPS do an 2 analysis on her blood and her urine, correct? 3 A. Yes. 4 Q. And it came back negative -- negative for 5 Ambien? 6 A. Yes. 7 Q. And so when you say -- when you told the 8 prosecutor that results are pending, that -- the 9 results are in from Arizona, correct? 10 A. Yes. 11 Q. And it is negative for victim A? 12 A. Yes, yes. 13 Q. What is not negative for victim A is in her 14 blood was amphetamine and THC, correct? 15 A. Correct. 16 Q. And there's no suggestion, is there, and 17 you have no evidence that Mr. Sharper provided her 18 with amphetamine? 19 A. No. 20 Q. And she admitted smoking marijuana, didn't 21 she? 22 MR. COHEN: Objection, relevance. 23 THE COURT: Sustained. 24 MR. DONAU: Goes to her ability to 25 perceive, Your Honor. 50 1 THE COURT: Sustained. 2 BY MR. DONAU: 3 Q. All right. But there was THC in her 4 system, correct? 5 A. Correct. 6 Q. All right. And the next morning she was 7 asleep with Mr. Sharper and one of her friends called 8 and said that roommate had seen something? 9 A. Yes. 10 Q. And that they wanted to come back and 11 confront Mr. Sharper? 12 A. Yes. 13 Q. And we will get to the travels of victim B, 14 but the bottom line is before victim A or victim B 15 went for medical exams or called the police or did 16 anything, they came back and confronted Mr. Sharper? 17 A. Yes. 18 Q. And he denied doing anything? 19 A. Yes. 20 Q. And so then victim -- roommate and victim B 21 wanted him out of the apartment? 22 A. Yes. 23 Q. And so victim A said she would take him out 24 of the apartment and drop him off at some restaurant 25 to meet friends and she would be done with him? 51 1 A. Yes. 2 Q. And that's what she told her friends and 3 her friends, victim B, MN, and roommate, correct? 4 A. Yes. 5 Q. And, in fact, that's not what she did? She 6 went and had breakfast with Mr. Sharper, didn't she? 7 A. She spoke with the friends. 8 Q. And said she was going to drop him off but 9 instead of dropping him off, she had brunch with him? 10 A. Yes. 11 Q. And two other people? 12 A. Yes, where she also talked to him and 13 confronted him about what happened? 14 Q. Well, she said she told her friend she 15 talked to him about what happened, but you 16 interviewed both Mr. Johnson and the other individual 17 who had breakfast, did you not? 18 A. Yes, they were -- 19 Q. And they said that she made one mention of 20 something weird or something strange happening and 21 that was the end of the conversation? 22 A. That's what they said, yes. 23 Q. So it wasn't a big topic of conversation at 24 brunch? 25 A. Not amongst the group, I don't believe so. 1 Q. Okay. 52 Let's turn -- and so the -- the fact 2 is that her shorts were off and she felt like she had 3 sex are the totality of what you have to believe that 4 she may have had sex with Darren Sharper; is that 5 correct? 6 A. That's correct. 7 Q. That's it? 8 A. That's correct. 9 Q. And she was -- she was drunk -- or she was 10 intoxicated and you expected her to spend the night 11 without going to the bathroom and maybe taking her 12 shorts off voluntarily? I mean, there's a lot of 13 other explanations for her shorts being off, isn't 14 there? 15 MR. COHEN: Objection, calls for 16 speculation. 17 THE COURT: Sustained. 18 Mr. Donau, are you going now to change 19 topics? 20 MR. DONAU: Yes. 21 THE COURT: All right. I had hoped we 22 would be done, but we are not. 23 MR. DONAU: No. 24 THE COURT: But we are going to take the 25 lunch break. I have to give the troops their lunch 1 break. 53 I have a 1:30 hearing with an interpreter, so 2 if counsel and everybody is available, we will resume 3 this at 2:15, 2:20. 4 MR. COHEN: Your Honor, I am in trial. We 5 picked the jury yesterday. We are doing opening 6 statements this afternoon. Tomorrow is a dark day. 7 State would be available to reconvene this hearing at 8 any point tomorrow. 9 THE COURT: Mr. Donau. 10 MR. DONAU: Your Honor, I would -- I mean, 11 Mr. Cohen is here. I would hope that the judge would 12 be kind enough so that we can finish this today. 13 THE COURT: Well -- 14 MR. COHEN: Your Honor, I have small 15 children that are waiting to testify that had to be 16 facing this trial for two years, and it would be 17 unfair and inappropriate to tell them that they might 18 have to wait until Monday to testify. Where 19 everybody -- the State is available tomorrow at any 20 time. 21 THE COURT: 22 with jurors. Plan -- also, I am concerned I got 16 jurors in the case that were 23 psyched and ready to go, so are you available 24 tomorrow, Mr. Donau? 25 MR. DONAU: Whatever I have can be changed 54 1 so that I can be available. 2 THE COURT: Off the record for scheduling. 3 (Whereupon, a discussion is held off the 4 record.) 5 THE COURT: The Court had hoped that the 6 hearing would be completed in an hour. The Court 7 finds there's been no dilatory action by either party 8 but we are not finished. 9 afternoon. 10 that trial. The Court will accommodate his attending So we will resume at this point tomorrow 11 at 1:30. Thank you. 12 MR. COHEN: 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Cohen has a trial this Thank you, Your Honor. 55 1 2 3 4 5 6 I, Elva Cruz-Lauer, do hereby certify that 7 the foregoing pages constitute a full, accurate 8 typewritten record of my stenographic notes taken at 9 said time and place, all done to the best of my skill 10 and ability. 11 12 Dated this 17th day of April, 13 2014. 14 15 16 /S/ 17 __________________________________ 18 Elva Cruz-Lauer, RMR, CRR OFFICIAL COURT REPORTER AZ CERTIFIED REPORTER NO. 50390 19 20 21 22 23 24 25