; •• ·t• 2 '"'-.!' ' •) 3 4 5 STATE OF CA LIF OR NIA , COU NTY OF ALAMEDA BEFORE THE HONORABLE SCO TT PATTON, JUDGE 6 7 DEPARTMENT NUMBER 108 8 --- oo o- -- 9 10 THE PEOPLE OF THE STATE OF CALIFORNIA, 11 12 13 14 Pl ain tif f, vs . DAMIEN McDANIEL, DEANTE KIN CA ID, and JOS EP H PENNYMON, No . 58 44 63 A, B, C RCD - De pt. 11 De fen da nts . 15 16 17 PRELIMINARY EXAMINATIO N 18 VOLUME 1 19 20 JULY 22 , 201 3 WILEY W. MANUEL COURTH OUSE OAKLAND, CALIFORNIA 21 A P P E A R A N C E S 22 23 FOR THE PEOPLE: : FOR DEFENDANT McDANIEL: 24 25 26 ~. BEN BELTRAMO, De pu ty Br end an Wo ods , Pu bli c De fen de r By : LAUREN WILLIAMS, De pu ty FOR DEFENDANT KIN CA ID: By : ALBERT W. THEWS At tor ne y at Law FOR DEFENDANT PENNYMON: By : THEORDORE BERRY At tor ne y at Law 27 28 Na ncy O' Ma lle y, Di str ict At tor ne y By REPORTED BY: ROSALYN ROSSAW-MORRIS, CSR #67 63 > . PX TR AN S-0 00 1 INDEX EXAMINATION Witn ess Name Page OFFICER ERIC KARSSEBOOM Dire ct By Mr. Bel tram o . .. . . ... .. .. . . . . . .. . . . . ... ... . ..... . 4 Cros s. By Ms. Will iams ..... ..... ..... ..... ..... ..... ..... .. 55 Cros s By Mr. Thew s ..... ..... ..... ..... ..... ..... ..... ..... . 88 Cros s By Mr. Berr y ..... ..... ..... ..... ..... ..... ..... ..... . 113 EXHIBITS Exh ibit Page Defe nse Exh ibit A and B Mark ed for Iden tific atio n 113 PXTRANS-0002 1 1 P R 0 C E E D I N G S 2 3 4 THE COURT: Cou nsel , plea se stat e your appe aran ces for the reco rd. 7 MR. BELTRAMO: Ben Belt ramo for the Peop le .. 8 MS. WILLIAMS: Laur en Will iams with Mr. McD aniel 9 who 's pres ent in cust ody. 10 MR. BERRY: 11 who 's pres ent in cust ody. 12 MR. THEWS: 13 14 ~5 16 Theo dore Berr y for Mr. Penn ymon Albe rt W. Thew s for Mr. Kinc aid aka Wils on who is pres ent in cust ody in the jury box. THE COURT: Than k you, coun sel. MR. BELTRAMO: 18 MR. THEWS: Yes. 19 MR. BERRY: Yes. 20 MS. WILLIAMS: 21 THE COURT: 24 MR. THEWS: 27 28 Yes. cons ider befo re we get star ted? MR. BELTRAMO: 26 Yes. Any pend ing moti ons I need to 23 25 Good morn ing. I unde rstan d toda y is the date and time for the prel imin ary exam inati on; is that corr ect? 17 22 This is Peop le v McD anie l, Kinc aid, and Penn ymon , dock et -- excu se me? Dock et 5844 63 A, B, and C. 5 6 We'r e on the reco rd. None from the Peop le. Only a moti on to excl ude witn esse s. THE COURT: That moti on is gran ted. Mr. Belt ramo , if you coul d just make sure that you don 't have any witn esse s in the audi ence whil e PXTRANS-0003 2 1 anoth er witne ss is testif ying. 2 MR. BELTRAMO: 3 THE COURT: 4 Okay. Ready to call your first witne ss? 5 MR. BELTRAMO: 6 THE COURT: 7 8 I will. I am. Please go forwa rd. · MR. BELTRAMO: People call Offic er Eric Karsse boom. 9 (Wher eupon, Offic er Eric Karsse boom was sworn 10 in at 10 : 3 6 a.m. ) 11 THE CLERK: Thank you. Pleas e be seated . And 12 please state your name and could you spell your first 13 and last name for the record ? 14 15 THE WITNESS: Eric, E-R-I -C Karsse boom, K-A-R -S-S-E -B-0-0 -M. 16 THE COURT: 17 MR. BELTRAMO: 18 Mr. Beltra mo. Thank you. DIRECT EXAMINATION 19 MR. BELTRAMO: Morni ng, Offic er Karsse boom. 20 A. Good morni ng. 21 Q. Offic er, I'm going to be taking notes durin g the 22 course of your testim ony, so I'm going to be seated 23 while I ask you quest ion; okay? 24 A. Okay. 25 Q. Where do you work? 26 A. The Oakla nd Police Depar tment . 27 Q. What do you do for the Oakla nd Police 28 Depar tment? PXTRANS-0004 3 1 A. I'm a police office r. 2 Q. How long have you been a polic e offic er there at 3 the Oakla nd Police Depar tment? 4 A. Going on 18 years . 5 Q. Were you workin g as a police offic er on duty on 6 Janua ry 21st of this year? 7 A. Yes. 8 Q. What was your assign ment on that day? 9 A. Actua lly, I was off. I just finish ed workin g 10 the Warri or game initia lly. 11 Q. 12 were ,you curre ntly on duty at that time? 13 A. Yes. 14 Q. And what unit, what assign ment, 15 gener ally during that time frame? 16 A. 17 Force . 18 Q. 19 compl ete an assign ment? 20 A. Yes. 21 Q. What were you asked to do? 22 A. I was asked to drive to 1759 Semin ary Avenu e to 23 attem pt to locate a vehic le that was used in a shoot ing 24 the night prior to Janua ry 21st. 25 Q. Were you given a vehic le descr iption ? 26 A. Yes. 27 Q. What were you told? 28 A. I believ e it was a Dodge four-d oor white , and I At around 5:00 or 6:00 o'cloc k that evenin g, did you have I was assign ed to the Gang Inves tigati on Task At around those evenin g hours , were you asked to PXTRANS-0005 4 1 was given the licen se plate . 2 Q. Who gave you this infor matio n? 3 A. I belie ve it was Lt. Tony Jones . 4 Q. And in terms of the hiera rchy of your assig nmen t 5 gang unit, where does Lt. Jones fit in? 6 A. I'm sorry ? 7 Q. Is he head of the gang unit? 8 A. Yes. 9 Q. When Lt. Jones asked you to go see about this 10 vehic le at 1759 Semin ary, 11 13 shoo ting that occur red the night befor e, were you provi ded any other infor matio n abou t that assau lt or shoot ing? 14 A. 15 Q. 12 16 in regar d to the assau lt or No. Did you know any of the suspe cts that may have been invol ved or were thoug ht to be invol ved in that 17 shoot ing? 18 A. 19 Q, No. 20 After getti ng that infor matio n from Lt. Jones , what did you do? 21 A. 22 locat ion. 23 Q. What 's a UC vehic le? 24 A. Unde rcove r vehic le. 25 Q. And what was your unde rcove r vehic le on that 26 day? 27 A. It was a Chevy Tahoe Pewt er. 28 Q. Is that Tahoe , then, a four- door? I enter ed my UC vehic le and respo nded to the PXTRANS-0007 5 1 A. Yes. 2 Q. And were you -- your car was an unde rcove r 3 vehic le; were you under cover at that time? 4 A. 5 Q. 6 A. 7 cloth es. 8 Q. 9 it for us? Yes. · And what does it mean to be "unde rcove r"? Basi cally in plain cloth es or'm ostly in plain How were you dress ed that day; can you descr ibe 10 A. 11 was 12 botto ms, 13 Q. Did you have any firea rms with you? 14 A. Yes . 15 . Q. 16 A. 17 comp act glock in the cente r conso le of my Tahoe . 18 Q. Did you have a badge with you? 19 A. Yes. 20 Q. When you -- did you proce ed to the locat ion of 21 1759 to see if that car was there ? 22 A. Yes. 23 Q. When you went over to 1759 Semi nary, where was 24 your badge ? 25 A. 26 vehic le. 27 Q. 28 Semi nary, where were you drivi ng from? Since I had just finis hed worki ng the game, I weari~g duty boots , my wool duty unifo rm, the a black T-sh irt and black hoode d sweat shirt . What firear ms did you have? I had my duty glock in my holst er, and I had a It was I belie ve under my back seat of my Wher e did you- - when you went over to 1759 PXTRANS-0008 6 1 A. 2 subs tatio n. 3 Q. I was driv ing from the area of East mon t Can you desc ribe then the area of -- are you fam iliar with that area of 1759 Sem inary ? 4 5 A. Yes. 6 Q. Can you desc ribe it? 7 A. 8 9 I beli eve it's a thre e-st ory apar tmen t comp lex. The re's a narr ow driv eway on the nort h side of the com plex . 12 The fron t is prot ecte d by a blac k secu rity gate . One 's a walk -in gate , one 's a driv ewa y gate . The rear has an open lot, and I beli eve at the time ther e was a carp ort area . 13 Q. 14 15 ped estr ian, are they on diff eren t side s of the apar tmen t? 16 A. 17 18 sout h side of the comp lex and the driv ewa y or driv e-in gate is on the nort h side . 19 Q. 10 11 The two secu rity gate s, the one driv ing, Yes. the one The walk -in gate or pet gate is on the 22 The dire ctio ns that you 're givi ng, the nort h, sout h, east , and west dire ctio ns that we'l l talk abou t, are they orie nted towa rds -- wha t's nort h orie nted towa rds? 23 A. 24 Q. 20 21 25 26 The Oakl and hill s. Afte r gett ing the info rma tion from Lt. Jone s abou t the car driv ing from East mon t, wher e do you go? A. I was trav elin g to a loca tion when I saw a 27 patr ol offi cer driv e by my loca tion . 28 Q. You know who that was? PXTRANS-0009 7 1 A. Offic er Malco lm Mille r. 2 Q. What happe ned after seeing Offic er Mille r? 3 A. I called him by phone and advis ed him I was on 4 my way to 1759 Semin ary Ave to check on a vehic le and ask him that upon my arriv al within the vicin ity, I 5 6 would have him on phone as a cover unit. 7 Q. Why did you do that? 8 A. Since I was the only membe r of my squad , I 9 didn' t have any close cover s or close cover units , so I wante d someo ne from patro l to know where I was, what I 10 11 was doing . 12 Q. 13 offic er aware of what you were doing ? 14 A. Yes. 15 Q. After 16 over the phone ? 17 A. Yes. 18 Q. What happe ned next? 19 A. It was about 6:30 or so, so it was dark. 20 trave led southb ound Semin ary when I saw the apartm ent compl ex, but I wante d to confir m that it was the correc t 21 22 23 24 25 Does that enable your safety to have anoth er and did you talk with Offic er Mille r I apartm ent compl ex, so I made a U-turn at East 16th and Semin ary, contin ued northb ound Semin ary and right at the inters ectio n, I believ e of Harmo n and Semin ary, I made a U-tur n, so my light illum inated the apartm ent compl ex. 26 Q. What did you see? 27 A. I confir med that it was 1759 Semin ary. 28 saw a male black stand ing on the south east corne r of the Then I PXTRA NS-00 10 8 1 apart ment comp lex. 2 Q. 3 A. 4 What was that perso n doin g? He was stand ing with his back towa rds the wall . Basi cally , he appe ared to be a look out. 5 MS. WILLIAMS: 6 THE COURT: 7 10 11 12 13 The "app eared to be a look out" will be stric ken. 8 9 Obje ction , call s for spec ulati on. MR. BELTRAMO: What was this gentl eman doing stand ing with his back to the build ing? A. He was watc hing for all pede stria n and vehi cle traf fic pass ing the loca tion . MR. BERRY: Obje ction , that 's a conc lusio n on the part of the witn ess. 14 MR. THEWS: Join . 15 THE COURT: That is gran ted as well . 16 answ er will be stric ken. 17 is you saw, Offi cer. 18 19 20 21 THE WITNESS: That You can just desc ribe what it As I made the U-tu rn, the male blac k that I'm refe rring to shuf fled back ward s and kind of lean ed forw ard to see who was maki ng a U-tu rn in fron t of the apar tmen t comp lex. 22 MR. BERRY: Obje ction , same conc lusio n. 23 THE COURT: That 's over ruled . 24 MR. BELTRAMO: Did you see what this perso n was 25 wear ing? 26 A. Yes. 27 Q. What was he wear ing? 28 A. He was wear ing a blac k hood ed jack et, very ligh t PXTR ANS- 00 11 9 1 blue jeans and dark shoes or black shoes. MR. BELTRAMO: 2 At some point later in this 3 incident that we'll describe, did you get a closer look 4 at this person's face? 5 A. Yes. 6 Q. Do you see this person in the courtroom today? 7 A. Yes. 8 Q. Can you point to him and tell us what he's 9 wearing? 10 A. 11 with a green T-shirt underneath. 12 Q. Make sure the color difference. 13 A. Or light green T-shirt. Be's seated across from me wearing a red shirt MR. BELTRAMO: 14 15 Yes. May the record reflect that the officer has identified defendant Pennymon? 16 THE COURT: 17 MR. BELTRAMO: The record will so reflect. After Mr. Pennymon looked in your 18 direction, 19 A. Yes. 20 Q. What did you see happening, what was he doing? 21 A. He was taking short steps backwards as a defense 22 mechanism to see who was making a U-turn in front of the 23 complex. 24 25 26 you said he shuffled back; is that correct? MR. BERRY: Objection to the characterization as a defense mechanism as a conclusion. THE COURT: 27 is instructional. 28 Mr. Berry, I'm going to allow it to stand. It You can cross-examine on this point, if you'd like. PXTRANS-00 12 10 1 MR. BELTRAMO: Did Mr. Penny rnon rema in in the 2 area then after looki ng towar ds your vehic le? 3 A. 4 5 comp lex at first becau se I was aware that he was aware of my prese nce. 6 Q. 7 A. 8 He did, but I decid ed not to enter the apart ment So what did you do? So I decid ed to wait a few more minu tes to retur n back to the apart ment comp lex. I drove 10 south bound Semin ary and made a long block back to the apart ment comp lex. 11 Q. What do you mean by "made a long block "? 12 A. I 13 belie ve East 17th and came back on 57th, 57th Ave all the way to Banc roft and came back aroun d Semi nary. 9 14 15 trave led south bound Semi nary, drove westb ound I Q. 16 So you esse ntial ly made a large r circl e, then, waiti ng? 17 A. Yes. 18 Q. What happe ned after that? 19 A. 20 As I was trave ling now south boun d Semi nary, I was appro achin g the apart ment comp lex when I saw that 23 the front gate or drive -in gate was close d, and I saw an older mode l, I belie ve, it was a Lexus brown or bronz e in the drive way just east of the gate. 24 Q. 25 had it been opene d or close d or do you reca ll if it was opene d or close d when you first passe d the locat ion? 21 22 26 The gate, had that same gate, the drive -in gate, 27 A. When I first passe d, I don't know. 28 Q. Okay. This Lexus that you saw in front of the PXTR ANS-0 0 13 11 1 gate, would that be in the portion of -- on the side of 2 the gate where the public street is? 3 A. Yes. 4 Q. What happene d after seeing this Lexus parked 5 there? 6 A. 7 Lexus. 8 to the front gate and opened the front gate, manually . 9 Q. What happene d next? 10 A. The front passeng er reentere d the Lexus and the 11 driver drove off westbou nd into the drivewa y to the rear 12 of the apartme nt complex . 13 Q. 14 it was parked in front of the gate or as it drove into 15 the gate? 16 A. Yes. 17 Q. What else did you see, what other vehicles did 18 you see? 19 A. 20 propert y, there was a newer model compact vehicle silver 21 facing northbou nd on Seminary just south of the drive-in 22 gate. 23. the propert y. 24 Q. Was it statione d then behind the Lexus? 25 A. Behind 26 Seminar y waiting to make the westbou nd turn into the 27 drivewa y. 28 Q. saw that there were two occupan ts in the I The front passeng er exited the Lexus, walked up Did you see any other vehicle s near the Lexus as As I was waiting for the Lexus to enter the It appeare d to be waiting for the Lexus to enter south of the Lexus, but actually on What did you do next? PXTRAN S-00 14 12 1 A. 2 into the drivewa y, 3 followed it, the Lexus, into the drivewa y area. 4 Q. What happene d after that? 5 A. As we traveled westbou nd in the drivewa y, I 6 reached the rear parking area of the complex . 7' did, 8 exited the Lexus and I saw the front passeng er of the 9 Lexus exit the Lexus, also. Once the driver of the Lexus entered or drove I followed the Lexus behind. I When I I saw that the driver of the Lexus parked and 10 Q. 11 passeng er was wearing ? 12 A. I don't specifi cally recall what he was wearing . 13 Q. What happene d after that? 14 A. It appeare d that they were carrying made food 15 items in their hands. 16 parking area and I saw that the vehicle that was used in 17 the shooting the night before was parked in the rear of 18 the apartme nt complex . 19 Q. 20 vehicle ? 21 A. The descrip tion and the license plate. 22 Q. After seeing that vehicle , what was your 23 intentio n? 24 A. 25 I advised him that I was going to exit the property and 26 I was -- I just had complet ed a U-turn when I saw the 27 silver compact vehicle travelin g westbou nd into the 28 drivewa y, and I just entered the rear parking area. At this point, did you see what the front I made a U-turn in the rear How did you identify it as the same suspect I was still on the phone with Officer Miller and PXTRAN S-00 15 13 1 Q. 2 seen on Seminary positione d as it was going to be 3 turning into the gated parking area? 4 A. I 5 Q. After seeing the silver compact then drive down 6 the alleyway towards the parking area, what did you 7 do? 8 A. 9 eastbound in the driveway. Was this the same silver compact that you had b~lieve Then I so. entered the driveway area and continued 10 Q. 11 to do that? 12 A. Yes. 13 Q. Were you able to -- when you passed 14 compact, was it in the alleyway or was it in the parking 15 area? 16 A. 17 is so narrow only one car can fit. 18 Q. Can you describe the length of that alleyway? 19 A. I 20 of the driveway, 21 maybe 200 feet long. 22 Q. 23 the same time? 24 A. No. 25 Q. As you drove down that alleyway, 26 then down toward Seminary? 27 A. Yes. 28 Q. What happens at this point? Were -- did you have to pass the silver compact th~ silver It was in the parking area because the alleyway would estimate its maybe depends which portion 12 feet wide, and I can estimate Is it a sufficien t area for two cars to pass at are you driving PXTRANS- 00 16 14 1 A. 2 realized that the gate was now closed again. 3 advised Officer Miller that the gate is closed. 4 stopped maybe about 6 to 8 feet west of the gate. 5 Q. What were you intendin g to do? 6 A. I intended to stop and then exit my vehicle , 7 open the gate manuall y and exit out or drive out. 8 Q. What happene d at this point? 9 A. As soon as I stopped , I As I approac hed the end of the drivewa y, I So I And I saw three individu als 10 walking westbou nd -- I'm sorry-- eastbou nd in the 11 drivewa y towards my vehicle or the front entranc e of the 12 drivewa y. 13 Q. 14 they walking from the area of the parking lot behind the 15 apartme nt complex ? 16 A. Yes. 17 Q. And the three individ uals that you see, can you 18 describ e what they look like? 19 A. 20 over his head, black peacoat , black T-shirt and dark 21 baggie jeans. 22 Q. 23 closer look at that individu al? 24 A. Yes. 25 Q. Talk about that in a moment. When you-- if they're walking eastbou nd, are The first one was wearing a multi-c olored scarf At some point during the inciden t did you get a Do you see that individ ual in court today? 26 27 A. Yes. 28 Q. Can you identify and tell us where he is seated PXTRAN S-00 17 15 1 and what he's dressed in? 2 A. 3 with a dark green shirt underneath. He seated to my left and wearing a red T-shirt MR. BELTRAMO: 4 5 May the record reflect that the witness has identified the defendant Damien McDaniel. 6 THE COURT: 7 MR. BELTRAMO: Record will so reflect. Can you describe what the other 8 two individuals were wearing? 9 A. The second individual was wearing a black hooded 10 jacket that was open with a white T-shirt, baggie 11 T-shirt, with black imprints or designs on it and dark 12 dark jeans. 13 Q. You see that person in court? 14 A. Yes. 15 Q. Can you tell us where he's seated, and what he's 16 wearing? 17 A. 18 yellow shirt with a dark colored T-shirt underneath. MR. BELTRAMO: 19 20 He's seated across from me, and he's wearing a May the record reflect that the witness has identified Deante Kincaid? 21 THE COURT: 22 MR. BELTRAMO: Yes, the record will so reflect. What happens at this point, 23 Officer? 24 A. 25 I told Officer Miller that three individuals were 26 walking towards my location, but I was not raised up at 27 this point because they were just walking normally. 28 Q. Um-um, so I was sitting in my driver's seat and What happened next? PXTRANS-00 18 16 1 A. 2 open the gate within a matter of seconds . 3 Q. Did you do that? 4 A. Initiall y, no. 5 Q. Why? 6 A. Because I thought that if I did exit my vehicle 7 abruptly open the gate, 8 get raised up on my behavio r and my location . 9 Q. What did you intend to do? 10 A. So I was going to basical ly what we call low key 11 the exit of the property . 12 Q. What does that mean? 13 A. Wait and see, make contact with the individu al 14 and then slowly exit and open the gate. 15 Q. Did the three individ uals approach your car? 16 A. Yes. 17 Q. How did they approac h; where was each of them 18 position ed? 19 A. 20 passeng er door, and I'm referrin g to McDanie l. 21 second person was -- walked on my driver's side door and 22 stopped on my driver's side window, and I'm referrin g to 23 Kincaid , 24 door, but stopped on my left rear door, and I'm 25 referrin g to Pennymo n. 26 Q. Was anything said when they approach ed you? 27 A. Initiall y, no, because my windows were closed, 28 but my doors were unlock because I was going to exit my I told him that I was going to exit my vehicle , then .the three individ uals would Urn-urn, the first person approac hed my front The and the third person walked to my driver's side PXTRAN S-00 19 17 1 vehicle . 2 Kincaid knocked on my window. 3 Q. What happened at this point? 4 A. I lowered my window, not sure if it was fully or 5 partial ly, and then he asked me "Who's you," basical ly. 6 Q. "Who's you"? 7 A. Yes. 8 Q. What did you say? 9 A. I I was on the phone with Officer Miller when told him that nobody. I'm here to see-- I'm 10 just here to see a female. 11 Q. Why did you tell him that? 12 A. Basical ly giving reason for me being at that 13 location since they probabl y have never seen me before. 14 Q. 15 see a female? 16 A. Then McDanie l asked me, what's her name? 17 Q~ What did ybu say? 18 A. I carne up with a name. 19 Q. And what happene d after that? 20 A. Then McDanie l said, 21 here." 22 Q. What did you say in response ? 23 A. And I 24 And at that point Kincaid asked me, again, who was I 25 here to see. 26 inquire d further. 27 Q. They inquired further? 28 A. Yes. What happened after you said you were there to I believe i t was Keisha. "There ain't no Keisha told him that I believe d that there was.· And I repeate d, "A female" and they PXTRANS-0020 18 1 Q. Who's "they "? 2 A. Urn-urn, prima rily McDan iel and Kinca id. 3 point Pennym on had said anyth ing. 4 Q. What else did they ask, 5 A. Then Kinca id asked me who was I 6 with. 7 Q. Then what did you say? 8 A. I told him I was on the phone with one of my 9 boys. At this if anyth ing? on the phone 10 Q. Why did you say that? 11 A. To basic ally answe r all of his quest ions witho ut 12 trying -- raise anybo dy up or anyon e up. 13 Q. What were you hopin g to accom plish? 14 A. That they would realiz e that I was not there for 15 them. I was basic ally there for a female and move 16 along . 17 Q. 18 a friend of yours or a buddy of yours on the phone? 19 A. 20 one of my boys if I'm lookin g for a femal e. 21 Q. What did you say? 22 A. I 23 of my boys becau se he knows the addre ss of where she 24 lives and that's what I was trying to get the addre ss. 25 Q. 26 as a polic e office r? 27 A. No. 28 Q. And you're in an under cover capac ity doing What happe ned after you tried to say that it was Then Kinca id asked me why am I on the phone with said -- I told him I was on the phone with one Now at this point you didn' t ident ify yours elf PXTRANS-0021 19 1 surveillance trying to determine whether or not a 2 vehicle was used, that particular vehicle, that was 3 potentially used in the shooting was parked in that ' 4 area? 5 A. Yes. 6 Q. Why didn't you identify yourself as a police 7 officer at this point? 8 A. 9 hindered the investigation going to the shooting, since Several reasons. One is it would have possibli 10 I was looking for the vehicle that was used in the 11 shooting. 12 identify as a police officer because you don't know what 13 people's reactions are at that point. 14 Q. 15 relation .to where you're positioned? 16 A. At this point I didn't know. 17 Q. Are there any other officers near you at this 18 time? 19 A. None. 20 Q. After you explained to either McDaniel or all 21 three individuals why you were talking to your friend on 22 the phone what happened next? 23 A. 24 and McDaniel kept on looking inside my vehicle. 25 Q. Go ahead. 26 A. What I didn't know is because the driveway is 27 not lit, that my rear site to my compact glock which was 28 in this center console was illuminated due to the Two, it initially is not a good idea to And do you know where Officer Miller is in As I'm talking to him, I noticed that Kincaid PXTRANS-0022 20 darkness. 2 MR. BERRY: Objection, move to strike on the 3 grounds that it's conclusory as to what he didn't 4 notice. 5 he didn't notice, he can't testify to it. He's talking about what he didn't notice. If 6 MR. THEWS: 7 MS. WILLIAMS: Join. 8 MR. BELTRAMO: I think I can clarify with the 9 officer, your Honor. THE COURT: 10 11 Join. Yeah. I'm going to overrule that objection at this point. 12 Go ahead, Mr. Prosecutor. 13 MR. BELTRAMO: Now, Officer Karsseboom, when you 14 said you had two firearms.wit h you that day; is that 15 right? 16 A. Yes. 17 Q. And I think you mentioned earlier that one was 18 holstered on your duty belt; is that right? 19 A. Yes. 20 Q. And the other was in the center console of your 21 car? 22 A. Yes. 23 Q. Can you describe where it was on the center 24 console? 25 A. 26 partially covered by, I believe, a booklet, but the 27 front of it was covered. 28 Q. It was on the center console, and it was The rear was not. At some point were you able to look down and see PXTRANS-0023 21 1 that the rear of that firearm wasn't covered? 2 A. Yes. 3 Q. And what portion of it was sticking out from 4 underneath paper or whatever it was covering it? 5 A. The rear site. 6 Q. You could see defendant McDaniel and defendant 7 Kincaid looking into the interior of your car? 8 A. Yes. 9 Q. What happened after they were looking into the 10 interior of your car? 11 A. 12 "a trapper." 13 Q. And that was Mr. Kincaid that said that? 14 A. Yes. 15 Q. And where was Kincaid when he said that? 16 A. Maybe about 8 inches away from me, my driver's 17 side window. 18 Q. And is your window up or down at this point? 19 A. It's down. 20 Q. And did you roll it down at some point? 21 A. Yes. 22 Q. When did you roll that down? 23 A. After he knocked on my window and initiated a 24 cdnversation. 25 Q. 26 what do you know that term to mean "trapper"? 27 A. Means a firearm. 28 Q. After he said that, what happened next? Then Kincaid said something to the effect about· Okay. "He's got a trapper." After Kincaid said, "He's got a trapper," PXTRANS-0024 22 1 A. 2 Kincaid and Pennyrnon brandished three firearms on me. 3 Q. What happened after they pulled their firearms? 4 A. Urn-urn, Pennymon then got closer to my location. 5 He walked from the left rear door panel to the front 6 window, also, so when I had Kincaid and Pennymon at my 7 driver's side window. 8 Q. 9 faces? Then within a matter of two seconds, McDaniel, At this point, are you able to see their 10 A. Yes. 11 Q. And you've described the scarf that was wrapped 12 around Mr. McDaniel's face. 13 Mr. Kincaid and Mr. Pennymon at this point, did they 14 have anything blocking their face, their eyes, nose, or 15 month, chin? 16 A. No. 17 Q. Were either of them wearing a hoodie; that is, 18 Kincaid or Pennyrnon? 19 A. Both of them had their hoodies up. 20 Q. At some point did either of them take their 21 hoodies down or did you see their hoodie go down? 22 A. 23 have come off, but it was after, shortly after. 24 Q. 25 Mr. Kincaid move up toward your driver's window; is that 26 correct? 27 A. Yes. 28 Q. Can you have I Just talking about believe at some point Kincaid's hoodie may At this point when both Mr. Pennymon and ~- do you have a clear view of PXTRANS-0025 23 1 their face? 2 A. Yes. 3 Q. How far are their faces from your face? 4 A. No more than a foot. 5 Q. And what are they doing at this time when 6 they're togethe r in that driver' s side window? 7 A. 8 at my head. 9 from my head. Kincaid and Pennymon two firearm s pointed at me, They were probabl y about four inches away 10 Q. Did you ever get a look at those firearms ? 11 A. Yes. 12 Q. Can you describe what they looked like to your 13 recollec tion? 14 A. 15 the second one was I believe chrome and black. 16 Q. The dark colored pistol, who held that? 17 A. I don't specific ally recall. 18 Q. The chrome and black, did you say, do you have a 19 clear recall of that or is that to the best of your 20 recollec tion? 21 A. To the best of my recolle ction. 22 Q. Was that a semiauto matic as well or was that a 23 revolve r? 24 A. It was a semiaut omatic. 25 Q. As· they're pointing those guns towards your 26 head, what is Mr. McDanie l doing? 27 A. 28 firearm at me through the window, opens the front One was a dark colored semiaut omatic pistol and At that point McDanie l, as he's pointing his PXTRANS-0026 24 passenger door with his left hand as he's keeping his 2 mussel pointed at me as he's entering my vehicle. 3 Q. What does he do? 4 A. He reaches in and remove the compact glock from 5 my center console and takes custody of it. 6 Q. 7 glock? 8 A. It was a 40 glock. 9 Q. And why do you have two service weapons with And can you describe the caliber of that 10 you? 11 A. 12 off duty, 13 Q. 14 firearm, 15 next? 16 A. 17 vehicle. 18 Pennymon on the driver's side door of my vehicle. 19 Q. 20 that firearm off your center console; is that right? 21 A. 22 had two semiautom atic pistol about four inches away from 23 my head. 24 Q. What are you thinking at this time? 25 A. I'm thinking about -- I'm looking at the 26 surroundi ng, 27 I'm looking in front of me about six feet -- three feet 28 away from the gate, and I'm realizing that there's no One's on duty and off duty and since I was going initially , I had my compact glock with me. After Mr. McDaniel grabs th~ glock or the the 40 caliber from the console, what happens He exit my vehicle, then walks around my So walks westbound and then joins Kincaid and Now, you weren't able to stop him from grabbing No, due to the fact that Kincaid and Pennymon any contingen cy plans, but at this point PXTRANS-0027 25 1 way I could put my car in drive and get enough momentum 2 to drive through that front gate. 3 behind me, and then the driveway is so narrow that 4 there's no way I can drive backwards about 200 feet or 5 so at fpll speed without colliding into either the walls 6 of the apartment complex or the fence. 7 to my left and I see about a 12-foot fence, plywood. 8 Then I look to my right, 9 complex. So I realize that I was basically trapped in my car in that driveway. 11 Q. 12 passenger side? 13 A. Yes. 14 Q. What happens at this point? 16 After -- does Mr. McDaniel then go over to the MS. WILLIAMS: I'm going to object as leading and or misstating the testimony. MR. BELTRAMO: 17 18 Then I'm looking I see a three-story apartment 10 15 Then I'm looking I think it does dismiss state what he said. 19 THE COURT: 20 MR. BELTRAMO: 21 THE COURT: 22 MR. BELTRAMO: I'm going to sustain that objection. Does Mr. Go ahead. Does Mr. McDaniel then -- I think 23 I believe you testified Mr. McDaniel came over to the 24 driver's side; is that correct? 25 A. Yes. 26 Q. What happens at that point? 27 A. Then at that point Kincaid tells me to exit the 28 vehicle. PXTRANS-0028 26 Q. What do you do? 2 A. Which at that point I feel a little bit more 3 comfortable exiting the vehicle, so I exit the vehicle, 4 and he keeps me at the V of the door. 5 Q. Why do you feel more comfortable exiting? 6 A. That's less -- because initially I was trapped 7 in my vehicle in the driveway versus now I'm on foot. 8 So I'm not actually just trapped in the driveway. 9 Q. What are you thinking at this point? 10 A. Urn-urn, I'm more looking at 360. t1 exit the 12 looking up, looking out windows, not only to see if 13 anybody's out there, but also to look at additional 14 possible threats besides the three that I have. 15 Q. 16 individuals in the front of you, to their physical 17 appearance? 18 A. Yes. 19 Q. Why? 20 A. Because I know at some point if I do recover 21 from the incident, 22 Q. 23 identify them? 24 A. 25 demeanor, firearms. 26 Q. 27 experience, Officer, but have you been trained then to 28 identify individuals in the field? vehicl~, As soon as I I'm looking around the driveway, Now, you're paying attention to the three I would have to identify them. What are you doing to help you be able to Look at height, weight, facial features, build, Just listening and looking. I'm not going through your training and PXTRANS-0029 27 1 A. Yes. 2 Q. Once all three individual are then now on your 3 driver's side, what's the next thing that happens? 4 A. 5 believe, possible additional firearms. 6 Q. What happens at this point? 7 A. Then McDaniel reaches in immediately towards my 8 waistband and feels my holster and my duty glock on me. 9 Q. You feel his hand then on your firearm? 10 A. Yes. 11 he's holding on to his firearm in his right hand. 12 Q. Does he say anything? 13 A. Then he says "trapper" again. 14 Q. What happens after that? 15 A. Then Kincaid tells me to basically hand over my 16 trapper. 17 Q. What do you do? 18 A. I tell him, "No." 19 Q. Why? 20 A. I can't. 21 Q. Why not? 22 A. It's not an option. 23 Q. What do you do at this point? 24 A. So at that point then McDaniel, he's trying to 25 remove my duty glock from my holster as he's pointing 26 his firearm at my abdomen or waist area, and I could 27 feel basically the mussel of his firearm against my 28 abdomen. Then Kincaid orders McDaniel to search me for, I He's reaching in with his left hand as PXTRANS-0030 28 Q. Is anything being said to you at this point? 2 A. Kincaid keeps on saying basically, 3 you know, 4 "Hand it over." "Give it up," McDaniel at this point is not , saying anything and Pennymon is not saying anything. 5 It's basically Kincaid who's coordinated the incident. 6 Q. He seems to be saying the most? 7 A. Yes. 8 Q. What happens now? 9 A. McDaniel is unable to remove my holster or my 10 firearm from my holster. 11 around. 12 And he's trying to remove it. 13 gets frustrated or appears to be frustrated and takes 14 his firearm and then slightly turns it and then hits me 15 on the left side of my head with his firearm. 16 Q. Can you describe how he slightly turns it? 17 A. Physically or describe it? 18 Q. Yeah. 19 A. Basically, he does this towards (witness 20 indicating) my -- top of my head and using the front 21 site, basically, to hit the left side of my head. 22 Q. 23 using your right hand holding it in an upward position 24 as if you were holding a gun with your index finger on 25 the trigger, 26 palm was down, in that same position; is that correct? 27 A. Correct. 28 Q. How many times did Kincaid hit you in the head So we're basically wrestling I'm trying to keep him from removing my pistol. At that point Kincaid So the gesture you made on the witness stand and then you put your hand horizontally , PXTRANS-0031 29 at that point with his weapon? 2 A. I believe two, possibly three times. 3 Q. Did anyone else hit you at that point? 4 A. Yes. 5 Q. Who hit you? 6 A. Pennymon hit me, 7 Q. And how did he hit you? 8 A. Same manner. 9 Q. All right. 10 A. Yes. 11 Q. And what portion of his gun did he hit you 12 with? 13 A. The mussel or the front side. 14 Q. And where did he hit you? 15 A. More -- all the hits were on the left side of my 16 head or partially on my head. 17 Q. 18 in hitting you? 19 A. It was intentionall y forceful, 20 Q. Hard? 21 A. Hard. 22 Q. What happened next? 23 A. .Then Kincaid told me to give up my firearm and I 24 still wouldn't do it. 25 frustrated because he wasn't able to remove it. 26 was holding on to my firearm when I saw he had his 27 firearm cocked to the right side, and I saw him point 28 the firearm towards my forearm, and he fired one round. I believe, twice. Did he with his firearm? Can you describe the force these two people used yes. So McDaniel appeared to get So I PXTRANS-0032 30 Q. Did you see where the round entered in your 2 body? 3 A. Yes. 4 Q. Where did it enter in your body? 5 A. My left forearm. 6 Q. Did you feel it? 7 A. Yes. 8 Q. How quickly did you feel it, I should say? 9 A. Instantly. 10 Q. What did you see and feel? 11 A. Actually saw the clothing of my sweat shirt 12 open. And I felt a sting and then I heard one pop. 13 Q. Did you see blood? 14 A. Yes. 15 Q. Can you describe the amount of blood that came 16 out? 17 A. 18 coming down my left hand. 19 Q. 20 a result of being pistol whipped or hit with the gun by 21 Mr. 22 A. Yes. 23 Q. I'm going to talk about those injuries at a 24 later point, but at this point that initial time that 25 Kincaid hit you two or three times on the left side of 26 your head and Pennymon hit you two times, did you feel 27 or see any blood coming from those blows to your head? 28 A. Initially it wasn't much until blood started Incidentally the -- did you sustain injuries as Pennymon and Mr. Kincaid? Yes. PXTRANS-0033 31 1 Q. Where did you feel it or see it? 2 A. I 3 Q. Where did you feel it coming from? 4 A. Left side of my head. 5 coming down, left side my eyes, nose. 6 Q. 7 Mr. McDaniel? 8 A. 9 were before being shot. felt it and saw it. I actually felt the blood And was that before or after being shot by That was initially it was before. The blows 10 Q. 11 the gun pointed at your abdomen; is that correct? 12 A. Yes. 13 Q. How did you -- let me ask this way. Now you mentioned one time that Mr. McDaniel had Did you see him move the gun to your forearm or 14 15 did your forearm move to your abdomen? 16 A. I saw the gun move to my forearm. 17 Q. When he shot you in the forearm, 18 gun pressed against your arm? 19 within an inch to my forearm? 20 Q. 21 body? 22 A. It was partially on my left side of my abdomen. 23 Q. Now you're sitting at a chair right now with 24 your arms -- your elbows on each of the armrests of that 25 chair and your left forearm is at an angle next to your 26 abdomen. 27 you show us the position of your forearm at that 28 point? how far was the It was -- I would say And where was your forearm in relation to your When you were shot, can you describe -- can PXTRANS-0034 32 A. Sure. 2 Q. Sure. 3 A. (Witness indicating.) 4 was here. 5 forearm cocked to the right side. 6 Q. His pistol then is cocked to the right side? 7 A. Right side. 8 Q. That was angled down to the right? 9 A. Yes. 10 Q. So you're standing up, Officer, your arm is bent 11 or left elbow is bent. 12 below a 45 degree angle or rather below a 90 degree 13 angle, and it's approximatel y four inches away from your 14 waist area; is that right? 15 A. Yes. 16 Q. All right. Do you want me to stand up or ... When I saw him bring his THE COURT: 17 So McDaniel was here. pi~tol I to my left I can't estimate an angle, but And before he made that gesture, he indicated that the defendant was on the right side. 18 19 MR. BELTRAMO: 20 THE COURT: 21 MR. BELTRAMO: Thank you, your Honor. So shooting across his body. What are you thinking after 22 you're shot in the arm? -23 A. 24 up. 25 Q. What happened next% 26 A. So after I'm shot, he-- I'm referring to 27 McDaniel -- he attempts to remove my firearm again from 28 my holster. Actually at the time I was thinking not to give He's unsuccessful . I PXTRANS-0035 33 1 Q. What happens then? 2 A. Then Kincaid gets frustrated again. MR. THEWS: 3 Objecti6n to the statement that he 4 gets frustrated. 5 the officer cannot draw. This is an opinion and conclusion that THE COURT: 6 Well, I think it is a useful term, 7 but you can certainly cross-examine on this point when 8 it's your turn, Mr. Thews. 9 overruled. MR. BELTRAMO: 10 So that objection is Can you describe what Mr. Kincaid 11 did? 12 A. 13 remove my firearm or have someone or for me to give up 14 my firearm. 15 Q. 16 irritated or antsy? 17 A. 18 movements. 19 Q. What was he saying? 20 A. "Give up." 21 lines. And then shortly after then he points his 22 firearm and places the mussel against my -- the nose of 23 my bridge or the bridge of my nose, 24 Q. And is there gun to skin contact? 25 A. Yes. 26 Q. What are you thinking at this point? 27 A. At this point I'm just trying -- I just have to 28 buy time to my cover units get there, and it's pretty He was getting irritated, antsy, impatient to What led you to believe that he was getting Rapid speech, more movement, more rapid He was getting antsy. You know "Give it up." Along those sorry. PXTRANS-0036 34 1 much kind of out of my hands. 2 Q. 3 Officer Miller? 4 A. 5 phone on and I believe on speaker. 6 driver's seat. 7 focused again on the phone. 8 phone. Yes. As soon as I exited my vehicle, I left my It was on my· And during this time period, Kincaid MS. WILLIAMS: 9 10 Did you still have that open telephone line with And asked me who was on the I'm going to object as vague and ambiguous at this time. 11 THE COURT: 12 MR. BELTRAMO: That objection is sustained . After Mr. Kincaid puts the mussel 13 of his gun up against the bridge of your nose, what's 14 the next thing you remember happening ? 15 A. 16 hand, 17 his finger on the trigger, and he tells me, 18 to kill you." 19 Q. What do you remember next? 20 A. Tells me to give up my firearm again. 21 still don't. 22 Q. What's your fear of giving up your firearm? 23 A. It's a, urn-urn, then you have nothing. 24 mind set. 25 Q. 26 on to your firearm at this point? 27 A. Yes. 28 Q. And is Mr. McDaniel still strugglin g with your I'm looking at the -- Kincaid, looking at his firearm. looking at his I could see that he has "I'm going And I It's a After you refused to give it up, are you holding PXTRANS-0037 35 1 firearm? 2 A. Yes. 3 Q. What about your injury, your -- the gunshot 4 wound to your left forearm, is there still blood 5 coming? 6 A. Yes. 7 Q. What happens at this point? 8 A. Then after that, at this point, 9 time line is very limited. If my cover units don't get 10 there shortly I'm going to I won't have any options. 11 So I made the decision to try to remove my firearm out 12 of my holster, and that's my last option as far as 13 either I get in a shooting or because it's a matter of 14 time that one of the three defendants will shoot at me 15 again and this time may not be deformed. 16 head. 17 Q. 18 out? 19 A. 20 blood on my left hand, 21 lS 22 Q. 23 his hand? 24 A. Yes. 25 Q. I don't know if I asked you. 26 did, but did you get a look at what kind of firearm he 27 had? 28 A. I know that my Might be my What happens after you try to get your gun I partially take it out, but then due to the I loose drip of it, and McDaniel able to take custody of it. What does he -- does he have his own firearm in Forgive me if I Yes. PXTRANS-0038 36 1 Q. What did he .have? 2 .A. He had a black and chrome semiautom atic pistol. 3 Q. And again I don't recall if I asked you, but I 4 don't believe I did. 5 see that same scarf around his head at this point? 6 A. 7 corning off. 8 Q. 9 you? What was Mr. McDaniel -- did you Yes, but I believe at this point his scarf was And this point we're talking about after he shot 10 A. Yes. 11 Q. Do you recall when in the sequence of events you 12 saw his scarf coming off? 13 A. Not specifica lly. 14 Q. Can you describe what the scarf looked like? 15 A. It was a multi-col ored scarf, light colored and 16 I believe light blue, also, or blue with some kind of 17 design or print. 18 Q. 19 shoots you, 20 described ? 21 A. Yes. 22 Q. When Mr. McDaniel takes your gun, what hand is 23 he holding your gun in; do you remember? 24 A. No. 25 Q... What happens after this? 26 A. Then he makes a furtive movement towards 27 Kincaid, which led me to believe he handed over my duty 28 gun or weapon to Kincaid. And is he still wearing -- after the time he is he still wearing that peacoat that you PXTRANS-0039 37 1 Q. Can you describ e that moveme nt? 2 A. It was basica lly like he's passin g over 3 someth ing to Kincai d, but I was lookin g up, so I didn't 4 see exactl y what he handed to him. 5 Q. What happen s -THE COURT: 6 Mr. Beltram o, we've been going for 7 about 55 minute s, would the be a good time to take our 8 recess ? MR. BELTRAMO: 9 THE COURT: 10 11 Yes, your Honor. We will be in recess for 15 minute s. We'll reconv ene at 20 minute s to 12:00. 12 (Where upon, there was a break taken. ) 13 THE COURT: Record should reflec t that we are 14 back in sessio n on the People v McDan iel. 15 has been identi fied in court as Mr. Kincai d. 16 compla int says Glenn Wilson , also known as, Deante 17 Kincai d and Mr. Pennym on is also presen t. 18 are presen t. The All counse l Office r Karsseb oom is still on the witnes s 19 20 Mr. Wilson stand. 21 Mr. Beltram o, please contin ue your examin ation. 22 MR. BELTRAMO: 23 Office r Karsseb oom, when we left off after you Thank you, your Honor. 24 had describ ed being shot in the forearm by Mr. McDani el 25 and having your holste r duty pistol taken from you by 26 Mr. McDan iel, I believ e you left off descri bing that at 27 this point you were trying to buy time until cover units 28 arrive d. PXTRANS-0040 38 1 What did you do in order to try to buy time? 2 A. 3 interacting with them basically keeping them talking. 4 Q. 5 speaker. I was trying to remain calm and poised and You described having your phone open and on Was that on the driver's seat or passenger seat 6 7 of the car or center console? 8 A. It was on my driver's seat. 9 Q. Does any of the three defendants after you're 10 shot, do either of the three defendants make reference 11 to your phone again? 12 A. Yes. 13 Q. Who does? 14 A. Kincaid. 15 Q. What does he say? 16 A. He said, 17 talking to?" 18 Q. How many times did he ask you that? 19 A. I believe while the phone was on my driver's 20 seat, twice. 21 Q. And is this after you'd been shot? 22 A. Yes. 23 Q. What do you say in response? 24 A. I didn't answer. 25 Q. As you were trying to remain poised, did you say 26 anything to them, 27 time? 28 A. "Who you talking to?" or "Who were you to the defendants in order to buy Shortly after, I told them that I was the PXTRANS-0041 39 police. 2 Q. How did you tell them you were the police? 3 A. Just like that; "I'm the police." 4 Q. Why did you tell them that? 5 A. Because at that point there wasn't too much left 6 as far as buying time 'cause they were -- I'd been shot, 7 hit, and there wasn't too much left. 8 going to leave or I was going to get killed. 9 Q. Either they were How many times did you tell them you were the 10 police? 11 A. About three times. 12 Q. How did you tell them that? 13 A. The first time I said, "I'm the police." 14 then second time I said, 5-0, and then third time, 15 a cop." 16 Q. Why did you tell them three times? 17 A. So there was no misunderstanding of who I was. 18 Q. What reaction if any did the defendants have? 19 A. Um-um, Kincaid took his pistol, put it on the 20 nose of my 21 don't care if you're the police." 22 Q. 23 described; right? 24 A. Yes. 25 Q. And you described wearing your uniform pants; is 26 that correct? 27 A. Yes. 28 Q. Are you wearing those same uniform pants And "I'm The last time, "I'm a cop." on the bridge of my nose, and said, "I Now in addition you're wearing a sweat shirt you PXTRANS-0042 40 today? 2 A. Yes. 3 Q. And you described wearing boots; is that 4 correct? 5 A. Yes. 6 Q. Are those department issued or uniform boots? 7 A. Yes. 8 Q. And are you wearing those today? 9 A. Yes. 10 Q. Can you stand up so the court and counsel can 11 see those pants and boots? And for the record, if counsel would agree with 12 13 me the pants are dark blue appearing to be wool pants 14 with a distinctive blue stripe down the side. 15 record, would you agree to that? 16 MS. WILLIAMS: I don't know that the stripe is 17 distinctive. 18 stripe goes, but otherwise submitted. I think it's dark on dark as far as the THE COURT: 19 For the Yeah. And in this light, I can see 20 that there's a blue stripe running down his pant leg. 21 It is a fairly subtle difference between the darker 22 slacks and the lighter strip, and he is wearing what 23 look like black low top boots. 24 MR. BELTRAMO: 25 Now as this event is happening as you identify Thank you. Thank you, Officer. 26 yourself as a police officer, are you in a standing 27 position? 28 A. Yes. PXTRANS-0043 41 1 Q. And are all three defenda nts facing you? 2 A. Yes. 3 Q. What happens next? 4 A. Then Kincaid. and Pennymo n both struck me with 5 their firearms again about -- between both of them, 6 three to four times. 7 Q. Where do they hit you? 8· A. Still the left side of my head. 9 Q. At this point, do you have -- are you armed So maybe once or twice each. 10 at all? 11 A. At that point, no. 12 Q. What happene d next? 13 A. And while this is going on, Kincaid asked me, 14 "Where' s your badge at then?" 15 truck. 16 Q. Is this before or after he hits you? 17 A. Right before. 18 Q. Did he ask you to get your badge? 19 A. No. 20 Q. Were you given the opportu nity to retrieve your 21 badge? 22 A. No. 23 Q. Inciden tally, Mr. Pennymo n strikes you the 24 second time as well after you've identif ied yoursel f as 25 a police officer? 26 A. Yes. 27 Q. Did Mr. Pennymo n through out this episode say 28 anythin g to you? And I told him in my PXTRANS-0044 42 1 A. 2 initial contact when he told me that when Kincaid was 3 asking me who is you, he said, 4 you made that U-turn in front of the complex." 5 Q. 6 initially approached? 7 A. 8 that's when Pennymon said, I saw you, basically, make 9 that U-turn. The time that he said anything was at the "I seent [sic] you when Mr. Pennymon said that, and is that when they Yes. When they were asking me who I was and 10 Q. 11 second time, and have identified yourself as a police 12 officer, what happens? 13 A. Um-um, besides there -- the strikes? 14 Q. Yes. 15 second time? 16 A. 17 Pennymon take off running eastbound in the driveway. 18 Q. 19 is eastbound; towards the parking lot or away from the 20 parking lot? 21 A. 22 Westbound. 23 Q. But towards the rear parking lot? 24 A. Yes. 25 Q. And what does McDaniel do? 26 A. McDaniel was still in front of me when he 27 realized that Kincaid and Pennymon ran off, and he 28 attempted to run off. Going forward, then, after you were struck that What happens after being struck that At the end for unknown reason, Kincaid and And in reference to that rear parking lot, where Towards the -- I'm sorry -- not eastbound. PXTRANS-0045 43 1 Q. What did you do? 2 A. As he was running off, 3 the shoulder and brought him back to my vehicle, 4 rear of my vehicle. 5 Q. Why did you do that? 6 A. To attempt to take him into custody until my 7 close cover units arrived. 8 Q. What happened? 9 A. I penned him against the driver's seat of my I grabbed him, then by to the 10 vehicle with his back against the seat. 11 still holding his firearm in his right hand. 12 Q. What did you do about the firearm. 13 A. I grabbed his 14 took his firearm away from him.. 15 doing that I kept on looking back westbound towards the 16 driveway to see if Pennymon and Kincaid were going to 17 return back to my location. 18 Q. Were they coming back? 19 A. I didn't see them come back. 20 Q. What happens after you grab Mr .. McDaniel' s 21 firearm? 22 A. 23 holding on to him with my right hand. 24 Q. What happened next? 25 A. Then when I was looking peeking back and forth 26 towards the rear parking lot, McDaniel spun in the 27 driver's seat area, the V of the door, and I held on to 28 his jacket as he basically slid out of his jacket as he firear~ And he was from his right hand and I was doing -- as I was I held on to it with my left hand, and I was PXTRANS-0046 44 1 ran off westbound. 2 Q. 3 Mr. McDaniel, are you still bleeding from your 4 forearm? 5 A. Yes. 6 Q. Can you describe the amount of blood? 7 A. I 8 hooded sweat shirt forearm area was damp. 9 Q. What happens after Mr. McDaniel spun? 10 A. He was able to basically point his arms 11 backwards and slide out of his jacket. 12 Q. Was it that peacoat jacket you described? 13 A. Yes. 14 Q. What happens after he slides out his jacket? 15 A. He runs off westbound without the jacket and 16 without the scarf. 17 Q. What do you do at this point? 18 A. As soon as he took off running, 19 left or eastbound, then I first -- I saw the first 20 patrol unit arrive on scene. 21 Q. What happened at this point? 22 A. I opened the gate and advised them quickly and 23 briefly what happened. 24 Q. What do you do with your car? 25 A. Since I wanted to clear the driveway, I jumped 26 into my vehicle, and I parked it on the street so the 27 responding unit could enter the driveway. 28 Q. During this course of struggling with could see it on my hands and at this point my I looked to my Physically, how were you feeling at this point? PXTRANS-004 7 45 1 A. Numb. 2 Q. After 3 A. Right in front of the apartment complex, 4 north of it. 5 Q. What's the next thing you remember happening? 6 A. Then shortly after EMS arrived and transported 7 me to Highland Hospital. 8 Q. 9 hospital? where do you pull your car to? just Were you treated for your injuries at the 10 A. Yes. 11 Q. What injuries did you have? 12 A. I had -- I suffered a gunshot wound to my left 13 forearm and three lacerations to the top left of my head 14 and laceration resulted in about 13 or 14 stitches. 15 Q. Those lacerations on your head leave scars? 16 A. I believe two out of the three did. 17 Q. The gunshot wound to your forearm, was the 18 bullet left in your arm? 19 A. 20 that it hit the -- my brake pedal of my vehicle. 21 Q. 22 Highland Hospital? 23 A. I was released I believe by 1:00, 1:00 a.m. 24 Q. Other than the scarring on your head, do you 25 have any other lasting effects of these injuries? 26 A. Nerve damage in my left forearm. 27 Q. Can you describe what that damage is? 28 it a sense of feeling that's lost? No. It was a through and through, and I believe Do you have -- how long did you remain in I mean lS PXTRANS-0048 46 A. More actually an increasin g feelings if that 2 makes sense. 3 Q. How long did you stay at the hospital? 4 A. To about 1:00 a.m. 5 Q. ' Can you describe your mental state while you 6 were at the hospital? 7 A. I think I was fine for a while. 8 Q. Were you medically treated; were you given 9 medicine? It's kind of numb, like a numb feeling. 10 A. Yes. 11 Q. What were you given? 12 A. I believe morphine. 13 Q. Did you have family visit you? 14 A. Yes. 15 Q. How was that seeing your family in the hospital 16 after being shot? 17 MS. WILLIAMS: Objection , relevance . 18 MR. BELTRAMO: Goes to his state of mind. 19 THE COURT: 20 21 How would his state of mind be relevant to say that? MR. BELTRAMO: Your Honor, I would offer it 22 subject to a motion to strike. 23 going to testified about the photo line-up that was 24 shown to him while he was under treatment and being 25 visited by the family in the hospital. 26 THE COURT: 27 THE WITNESS: 28 Okay. I believe the officer's That objection is overruled . I was fine until my younger sister came in the room. PXTRANS-0049 47 MR. BELTRAMO: 1 How did that impact you? 2 A. 3 did impact me. 4 Q. Did you become emotional after seeing her? 5 A. Yeah. 6 Q. At some point were you -- did officers from the 7 Oakland Police Department come and see you at the 8 hospital? 9 A. Yes. 10 Q. Was your family still there at this time? 11 A. Yes. 12 Q. Do you know which officers that was that came to 13 see you? 14 A. 15 Officer Sanchez and Sgt. Nolan. 16 Q. 17 you were in the hospital? 18 A. Yes. 19 Q. Was your family present during that photographic 20 line-up? 21 A. 22 while the photo line-up was in -- was being done and 23 then they were allowed back into the room. 24 Q. 25 was asked to leave? 26 A. Yes. 27 Q. How soon after your sister arriving was the 28 photographic line-up shown to you? Impacted me because she's my baby sister, so it I believe it was Sgt. Basa, Officer Milina, Was a photographic line-up shown to you while They were, but they were asked to exit the room Was this -- did that include your sister that PXTRANS-0050 48 1 A. I don't know exactl y. 2 Q. The photog raphic line-up , was that also shown to 3 you after you receiv ed the morphi ne? 4 A. Yes. 5 Q. Do you recall whethe r or not you were able to 6 identi fy anyone in that photog raphic line-up ? 7 A. I did not. 8 Q. Were any other photog raphic line-u ps shown to 9 you other than that one that you recall that day? 10 A. No. 11 Q. When you were release d from the hospit al, where 12 did you go? 13 A. I went home. 14 Q. At some point did fellow office rs come and see 15 you at your home? 16 A. Yes. 17 Q. And did you give a statem ent to those office rs 18 as to what happen ed to you? 19 A. Yes. 20 Q. Do you rememb er how soon after the shootin g 21 those office rs came to see you? 22 A. 23 days after I was releas ed. 24 Q. 25 they were? 26 A. 27 Sgt. Brandw ood and Office r Sanche z. 28 Q. I believ e two days or three days after -- two And which office rs were they; do you know who It was Office r Nolan. I'm sorry. Sgt. -Nolan At the conclu sion of telling them what happen ed, PXTRANS-0051 49 1 did they show you any photographic line-ups? 2 A. Yes. (Sharing exhibits about each counsel.) 3 4 MR. BERRY: Thank you. 5 THE COURT: Officer, would you like some water? 6 THE WITNESS: 7 MR. BELTRAMO: 8 Thank you. Officer, I'm showing you what's been marked People's 1 for identificati on. MR. THEWS: 9 10 I'm good, sir. Your Honor, could we wait a moment? I'm still looking at the exhibits. 11 THE COURT: Sure. 12 MR. THEWS: Thank you. 13 MR. BELTRAMO: Officer, I'm showing you what's 14 been marked People's 1 for identificati on. 15 and white copy. 16 It's a black Do you recognize what that is a copy of? 17 A. Yes. 18 Q. What is it? 19 A. It's one of the photo line-ups that was handed 20 over to me on January 24th. 21 Q. 22 individual in that photo line-up? 23 A. Yes. 24 Q. And did you memorialize that or mark that person 25 on the photo line-up? 26 A. Yes. 27 Q. How did you mark that person? 28 A. I circled the photo, initialed it, and also And did you make an identificati on of an PXTRANS-0052 50 included my serial number and date it. 2 Q. 3 line-up? 4 A. McDaniel. 5 Q. And is that the person that's positione d in the 6 No. 7 A. Yes, 8 Q. I'm showing you what's been marked People's 2 9 for identific ation. 10 And who did you identify in that\photo graph 2 position? sir. That's another black and white copy. 11 Do you recognize or what do you recognize that 12 to be a copy of? 13 A. 14 me on January 24th. 15 Q. 16 individua l that was involved in the shooting robbery of 17 you on the 21st of January? 18 A. Yes. 19 Q. And who did you identify? 20 A. No. 21 Q. And how did you -- did you mark something on No. 22 1? 23 A. Yes. 24 Q. What did you do? 25 A. I circled the photo, 26 serial number and the date. 27 Q. 28 line-up by Officer Brandwood on that same day? A copy of a photo line-up that was presented to And did you make an identific ation of an 1 as Kincaid. including my initials, Do you recall being shown a third photograp hic PXTRANS-0053 51 1 A. Yes. 2 Q. And did you identify anyone in that third 3 photographical array as being involved in the incident 4 on the -- the 21st of January? 5 A. No. 6 Q. And that third photo array that I've handed to 7 you and it's been marked as People's 3 for 8 identification. 9 A. Yes. 10 Q. Thank you. Were you later asked, Officer, to look at 11 12 another photographic array on February 21st? 13 A. Yes. 14 Q. Do you know where you were when you looked at 15 that photographic array? 16 A. i was at the Criminal Investigation Division. 17 Q. And who showed you that photo array? 18 A. Sgt. Brand wood. 19 Q. I'm showing you what's been marked as People's 4 20 for identification. Do you recognize what that is? 21 22 A. Yes. 23 Q. What is it? 24 A. The photo line-up that was presented to me on 25 February 21st. 26 Q. 27 individual in that photographic line-up? 28 A. And did you make an identification of an Yes. PXTRANS-0054 52 1 Q. And who did you identify? 2 A. No. 3 as Pennymon. 3 Q. And you recognize that today as the same person 4 you've described as Joseph Pennymon in court today? 5 A. Yes. 6 Q. Okay. 7 any of the individuals in any of these photographic 8 arrays when they were shown to you; were you? 9 A. No. 10 Q. I note that in People's 4 for identification, 11 this is the last photo array I asked you to look at. 12 Each of the six individuals has the same looks like 13 photo shopped black hoodie placed around their face. You weren't told the identifications of Do you see that as well? 14 15 A. Yes. 16 Q. And did you make a request that the individuals 17 in the photo array have a black hoodie? 18 A. Yes. 19 Q. Why did you ask for that request? 20 A. Because the third person or Pennymon never took 21 off his hoodie. 22 Q. 23 him then with a black hoodie the entire time? 24 A. Yes. 25 Q. Now prior to being shown these photographic 26 line-ups, were you ever told the names or 27 identifications of any suspects in your case? 28 A. And as you saw him on the 21st, then did you see No. PXTRANS-0055 53 1 Q. 2 any of the defendants before to your knowledge? 3 A. Not that I recall. 4 Q. Had you ever investigated any cases that they 5 were involved in to your knowledge? 6 A. Not that I recall. MR. BELTRAMO: 7 8 Before this happened to you, had you ever seen Officer, just give me one moment. I may be done asking you questions for right now. Thank you, Officer. 9 Only questions I have. 10 THE COURT: Thank you, Mr. Beltramo. 11 Ms. Williams, cross-examination. CROSS-EXAMINATION 12 13 MS. WILLIAMS: Yes, thank you. 14 Morning, Officer Karsseboom. 15 A. Morning. 16 Q. I want to go back to the beginning of the 17 evening on January 21st 2013. You said that you were working the Warriors 18 19 game? 20 A. Yes. 21 Q. What capacity were you working the Warriors 22 game? 23 A. As a uniformed officer. 24 Q. So on January 21st, were you wearing a duty top 25 as well as your duty pants? 26 A. While I was working the Warriors game, yes. 27 Q. And. then at some point you changed into a sweat 28 shirt? PXTRANS-0056 54 1 A. Yes, just a black T-shirt and the black hooded 2 sweat shirt. 3 Q. 4 or logos on it? 5 A. None. 6 Q. And was this an undercover ensemble or it was 7 just your personal clothing that you were wearing? 8 A. 9 undercover,·no. Did the black hooded sweat shirt have any print I was wearing the clothing home, so is it fully It's partial. 10 Q. When you left the Warriors game, you weren't 11 going to any undercover operation; correct? 12 A. Correct. 13 Q. You were just going home? 14 A. Yes. 15 Q. You received a text message from Sgt. Jones of 16 the gang task force; is that right? 17 A. Lt. Jones. 18 Q. Lt. Jones. And what did his communication to you say? 19 20 A. It was a group text to my squad basically 21 requesting us to come in to work, because we're 22 basically on stand by or on call. 23 Q. 24 report to to come in for work? 25 A. No. 26 Q. And were you intending to go on to duty to 27 respond to this text? 28 A. And was there a location you were supposed to Yes. PXTRANS-0057 55 1 Q. 2 you were supposed to respond to, how did you end up at 3 the address of 1759 Seminary? 4 A. 5 don't have a location. 6 location where we have to respond. 7 line-up or a meeting. 8 or from home or from where ever to the actual 9 location. If you weren't told or if there was no location Cause usually when we're called in, often we We usually respond nearby the So we don't have a We just respond to from the field 10 Q. 11 address of 1759 Seminary? 12 A. 13 I had several phone conversations after the initial 14 text. 15 Q. With Lt. Jones? 16 A. I believe it was Sgt. Kevin Reed. 17 Q. Sorry? 18 A. With Sgt. Kevin Reed. 19 Q. Reed? 20 A. Yes. 21 Q. So after you received the initial group text, 22 did you respond by text to anyone? 23 A. I believe I did. 24 Q. And did you respond back to the group? 25 A. Yes. 26 Q. And then following that, was there more text 27 exchange or was there 28 A. So in this case, Lt. Jones had texted the I don't recall if it was specifically text, but ~ phone call from that point? I believe there were more texts exchanged, but PXTRANS-0058 56 1 then end up in phone calls. 2 Q. And you spoke with Sgt. Reed? 3 A. Sgt. Reed and Officer Steve Valle. 4 Q. And can you explain how those -- those 5 communic ations led to you being at 1759 Seminary? 6 A. 7 used ln the shooting prior or the night prior was parked 8 at 1759 Seminary. 9 Q. Because we were told that the vehicle that was And how did you come to be at 1759 Seminary with 10 no other members of the gang task force? 11 A. 12 Everybody else was off duty so they were in various 13 cities. 14 Q. You were also off duty; correct? 15 A. Technica lly, yes. 16 Q. And how many members are there in the gang task 17 force that you're a part of? 18 A. Six officers, a sergeant and a lieutenan t. 19 Q. And at that time no other Oakland police officer 20 was in Oakland? 21 Because I was the only one in Oakland. So I was the closest one. Let me -- that assumes something . So were all the gang task members Oakland police 22 officers? 23 A. Yes. 24 Q. So at that time you made your way to 1759 25 Seminary, there were no other members of this task force 26 that were in Oakland? 27 A. To my knowledge , yes. 28 Q. Were you specifica lly directed or ordered by PXTRANS-0059 57 your superiors to go to this location by yourself? I was asked. 2 A. Not ordered. 3 Q. And was there a plan in place for you as a task 4 force member to go 5 used in. a shooting by yourself? 6 A. 7 notify them where I was going and the purpose. 8 knew where I 9 Q. go to the location of this car The plan was to contact someone from patrol and So they was. Is the area of Seminary where you went, lS that 10 a high crime area? 11 A. Yes. 12 Q. And is it an area known to the gang task force 13 as being a problem area? 14 A. Yes. 15 Q. And did you have a partner with you in your 16 vehicle that night? 17 A. We almost always never have partners. 18 Q. So, no? 19 A. No. 20 Q. And at the time that you made your way to 1759 21 Seminary, you did not know who the suspects associated 22 with this vehicle were? 23 A. 24 except the vehicle, the description, 25 and the location. 26 Q. 27 you're traveling in that night as your undercover 28 vehicle; is it your personal vehicle? I didn't know anything about the investigation the license plate Were you -- when you describe the vehicle, PXTRANS-0060 58 A. No. 2 Q.. You described you had two firearms in your 3 possession when you were traveling to 1759 Seminary; 4 correct? 5 A. Yes. 6 Q. You had one duty glock that was in your 7 holster? 8 A. Yes. 9 Q. Can you describe the make and model and 10 description of that firearm? 11 A. It's a glock 40 caliber. 12 Q. What color? 13 A. Black. 14 Q. Do you know the dimensions of it, 15 it? 16 A. No. 17 Q. So a standard barrel or thin barrel? 18 A. A standard barrel. 19 Q. Standard barrel or stip magazine? 20 A. It's the standard law enforcement magazine. 21 Q. And you had another firearm that was on your 22 center console; correct? 23 A. Yes. 24 Q. And is that the console that's between your 25 front -- your driver's seat and your passenger seat? 26 A. Yes. 27 Q. In the Chevy Tahoe you were in, the area where 28 the firearm was, the length of is that an -- is it an open area or was PXTRANS-0061 59 1 it covered with a hinge top? 2 A. It was open. 3 Q. Can you describe the firearm that was in that 4 console? 5 A. 6 version and it was black. 7 Q. 8 compact? 9 A. It was a glock 40 caliber, but the compact When you say "compact, " what part of it is The entire firearm is shorter barrel, shorter 10 magazine, not as bulky. 11 Q. And this is your personal firearm? 12 A. Yes. 13 the duty glock was that it had a rubber grip attached to 14 it. 15 Q. What color is the rubber grip? 16 A. Black. 17 Q. And that's not standard on that type of 18 firearm? 19 A. It's not standard. 20 Q. Did the compact glock have a rubber grip? 21 A. No. 22 Q. Was the compact glock in a holster? 23 A. No. 24 Q. Do you generally carry your compact glock in 25 that location or was there a reason it was in your 26 console? 27 A. 28 to switch. And the only thing that is not factory on It's after factory. Because I was getting off work, so I was going PXTRANS-0062 60 1 Q. 2 the car? 3 A. 4 Q. 5 A. 6 the back seat. 7 Q. 8 or 9 A. You indicated that your police badge was also in Yes. ·It was under a seat? No. It was in -- I believe in the back seat, on Maybe in my bag. Do you remember specifically seeing it there That's usually where I keep it. So I believe 10 that's where it was. 11 Q. What kind of bag when you say it's by a bag? 12 A. Like a shoulder bag, like a backpack. 13 Q. And it was inside the bag or outside the bag? 14 A. Inside the bag. 15 Q. You indicated that you're familiar with 1759 16 Seminary? 17 A. Yes. 18 Q. How are you familiar with it? 19 A. When I was in patrol, I 20 once or twice. 21 Q. 22 apartment complex? 23 A. I believe so. 24 Q. Have you ever been to the third story of it? 25 A. Actually, never went inside of it. 26 were 27 parking lot. 28 Q. responded there maybe And it's your understandin g it's a three-story either in front or in back. The call It was in the As you were driving to 1759 Seminary, you PXTRANS-0063 61 1 indicated you saw Officer Miller on patrol; correct? 2 A. Yes. 3 Q. Where did you see him? 4 A. It was by -- it was 73rd and or Edwards and 5 Mountain area. 6 Q. So not 73rd? 7 A. No. 8 Q. And did you stop to talk to him or did you just 9 pass by him? It's Edwards on the top of 73rd. 10 A. I -- he drove by me, 11 Q. Called him? 12 A. By phone. 13 Q. Was there a radio dispatch device 14 your vehicle? 15 A. There was, but in a locked container. 16 Q. Where was the locked container located? 1.7 A. Towards in the back seat area, there's a locked 18 container on my vehicle. 19 Q. Is Officer Miller part of the gang task force? 20 A. No. 21 Q. Now you asked Officer Miller to act as a cover 22 unit for you; correct? 23 A. Yes. 24 Q. Were you concerned about your safety? 25 A. Initially, no, 26 checks routinely. 27 Q. 28 checks, are they usually -- usually do the viewing from and I called him. ~nywhere in He's a part of patrol. 'cause we do these drive bys or And when you routinely do these drive bys or PXTRANS-0064 62 1 public streets or do you go onto private property? 2 A. We go onto private property. 3 Q. Just jumping ahead just a bit. 4 What is the practice when you're doing these 5 routine checks if they are locked gates or -- 6 A. We usually -- 7 MR. BELTRAMO: 8 THE COURT: 9 of the usually practice? Ms. Williams, what's the relevance MS. WILLIAMS: 10 Objection, relevance. I'm just trying to get a sense of 11 how he found his way in there and into this predicament 12 inside a locked gate. THE COURT: 13 Well, I don't know that the usually 14 practice would be relevant, so I'm going to sustain the 15 objection. 16 MR. BELTRAMO: 17 If the gate had not been closed, what is your Well, let's get it this way. 18 way of entering a locked gate? 19 A. 20 in. 21 because I was wearing partially uniform, so I probably 22 in this case, I'm not sure because I was wearing uniform 23 pants. 24 was in plain clothes, I would have opened it, ·walked in 25 or drove in. 26 Q. 27 correct? 28 A. I would have opened it and drove in or walked But probably wouldn't have walked in this time So I probably wouldn't have walked in. But if I Now you indicated that at 6:30 it was dark; Yes. PXTRANS-0065 63 So you drove by where you believed the location 1 Q. 2 to be traveling southbound on Seminary? 3 A. Yes. 4 Q. Okay. 5 and Seminary? 6 A. Yes. 7 Q. Was that a legal U-turn at a light? 8 A. Yes, at a ,intersection. 9 or East 17th, one of those two. And then you made a U-turn at East 16th It was either East 16th 10 Q. 11 individuals outside of the area of 1759 Seminary? 12 A. Not in front I didn't see anyone. 13 Q. Did you see anyone anywhere in the back of 1759 14 Seminary? 15 A. 16 because I believed that was the apartment, and I came 17 back to confirm. 18 Q. 19 17th, you made aU-turn again; correct? 20 A. That was my first U-turn. 21 Q. And so then you made a second U-turn once you 22 started traveling northbound on Seminary? 23 A. 24 a U-turn so that my headlights would illuminate the 25 apartment complex, 26 confirm that was the right apartment complex. 27 Q. 28 Bromley or Seminary and Harmon? First time you drove by, did you observe any I wasn't really looking. I just drove by Once you carne back after turning on East 16th or Right. Yes, right at the T intersection I made and I could see the numbers to And was that intersection at Seminary and PXTRANS-0066 64 1 A. Harmon. 2 Q. And did you observe anyone when you made the 3 U-turn to illuminate the address? 4 A. Yes. 5 Q. That's when you saw the person you've identified 6 as Mr. Pennymon? 7 A. Yes. 8 Q. Did you see any individual walking a dog in that 9 area? 10 A. No. 11 Q. Now once you saw the man's reaction who saw you 12 as you illuminated the address, he appeared like he was 13 watching you; correct? 14 A. He was watching me. 15 Q. And at that point did you -- did you consider 16 canceling this intelligence assignment? 17 A. 18 happens all the time. 19 Q. 20 all the time? 21 A. Yes. 22 Q. And in your training and experience, is that 23 because there's a general concern for one's being in 24 danger in that area of Seminary? 25 A. Yes. 26 Q. And this individual looked as though he thought 27 he might be in danger? 28 A. No because incidents, that behavior or reaction And in your training and experience, it happens He felt that my vehicle was a threat. PXTRANS-0067 65 1 Q. Well, 2 A. No. 3 saw my vehicle make a U-turn. 4 Q. 5 though he might be in danger? 6 A. Or was concerned, yes. 7 Q. Now once you started traveling passed 1759 8 Seminary, again, you noticed a brown Lexus parked in 9 front of the gate? you don't know what he felt; correct? I can only describe his reactions once he And the reaction was one that made it appear as 10 A. Yes. It was stopped in front of the gate. 11 Q. So the front of the Lexus was directed towards 12 the rear of the building? 13 A. Yes. 14 Q. But it was -- but the gate had not yet been 15 opened for it; correct? 16 A. Correct. 17 Q. You saw the front passenger get out? 18 A. Yes. 19 Q. Correct. And can you describe the front passenger of that 20 21 car? 22 A. 23 I would estimate maybe 180, 190, mid 20's, short hair, 24 medium to dark complected. 25 hooded sweat shirt that was open. 26 T-shirt underneath with black prints like rectangular or 27 square, dark blue jeans. 28 Q. He was male black about roughly about 6 -- 6' 2". He was wearing a black He had a white And when you saw that passenger get out, it was PXTRANS-0068 66 1 in the drivew ay of 1759 Semina ry? 2 A. 3 up to the front gate, opened the front gate manua lly and 4 reente red the Lexus. 5 Q. 6 you first saw him? 7 A. 8 was approx imately at best 30 feet. 9 Q. No. I saw him when he exited the Lexus, walked That's when I saw him. And how far away were you from him were you when I was stoppe d, waitin g for them to enter, so I And how were you able to see this individ ual 10 like what was the illumi nation that you were able to see 11 him by? 12 A. 13 exactl y where they were that night or steril e lights , 14 but I 15 Q. 16 poorly lit? 17 A. 18 additio n to street lightin g or exteri or lightin g, I was 19 facing the Lexus. 20 illumi nating the drivew ay. 21 Q. 22 brown Lexus got out, were you able to see the driver? 23 A. 24 I 25 couldn 't really see his feature s or anythi ng like that. 26 Q. Could not see his clothin g? 27 A. No. 28 Just I believ e the street lights . I'm not sure couldn 't tell you where each light was. And was it well lit or was it moder ately lit, Well, that portio n was well lit becaus e in So my headli ghts were actual ly At the time that the front passen ger of the I saw him, but I couldn 't really really see him. knew there was a male driver , male black driver , but I THE COURT: Ms. William s, it's -- go ahead, PXTRANS-0069 67 1 Officer. THE WITNESS: 2 3 I just know that he was smaller stature or appeared to be smaller. MS. WILLIAMS: 4 5 shorter than 6'2". 6 A. No, like shorter than 6'2". THE COURT: 7 Smaller like a child or just Ms. Williams, 8 after 12:30. 9 cross-examination for lunch? 10 MS. WILLIAMS: 11 THE COURT: it's a little bit Is this an appropriate time to break for 12 o'clock. 13 we are in recess. Yes. We will be in recess until 2:00 All parties should be back at that time. So Thank you. 14 (Whereupon, there was a lunch break taken.) 15 THE COURT: We are back on the record. 16 McDaniel, Wilson, 17 docket 584463 A, B, and C. 18 All the defendants are present in custody and Officer 19 Karsseboom is back on the witness stand. This is All counsel are present. Ms. Williams, please resume your 20 21 aka, Kincaid and Pennymon. People v cross-examination. MS. WILLIAMS: 22 Thank you. Good afternoon, 23 Officer Karsseboom. 24 A. Good afternoon. 25 Q. When we last spoke this morning, we were talking 26 about the individuals that were in the brown Lexus that 27 was parked in front of the gate when you were turned on 28 your third pass of Seminary at 1759 Seminary; is that PXTRANS-0070 68 right? 2 A. 3 third pass, yes. 4 Q. 5 passenger side of the Lexus, did you see at that time 6 the first black male that you saw leaning against the 7 wall when you drove by? 8 A. Second time? 9 Q. Second time. 10 A. No, ·r did not. 11 Q. And the passenger you've described with the 12 black hoodie and white 13 testimony that that is one of the individuals, one of 14 the defendants here today? 15 A. Yes. 16 Q. Was that Mr. Kincaid? 17 A. Yes. 18 Q. So now after the Lexus enters the gate, you 19 follow behind it; correct? 20 A. Yes. 21 Q. Did anyone -- when the Lexus entered the gate, 22 did it pause at all before it continued to the rear 23 parking lot? 24 A. It did not. 25 Q. Did you notice whether anyone closed the fence 26 behind you? 27 A. I did not see anyone. 28 Q. When you got to the back of the apartment Actually, second pass. Actually, I'm sorry, When you saw the individual get out of the T-sh~rt with print, is it your PXTRANS-0071 69 1 complex, 2 A. Yes. 3 Q. Approximately, how many cars were parked in the 4 parking lot? 5 A. 6 against the west wall of·the parking lot. 7 four on the east side of the parking lot, so I 8 estimate maybe a total of ten. 9 Q. I you were ln a parking lot; correct? would estimate six or so on the west -And maybe would Other than the Lexus that you followed in, did 10 you see any occupants in any other vehicle that was in 11 the parking lot? 12 A. No. 13 Q. Now you said after you came into the rear 14 parking lot, a silver newer model compact car came 15 behind you; correct? 16 A. 17 driveway, 18 and was entering the rear parking lot to where we were 19 crossing each other. 20 Q. 21 turned into the -- through the gate? 22 A. 23 northbound on Seminary waiting for the Lexus to enter 24 the driveway. 25 Q. 26 was also planning to turn into the driveway? 27 A. Yes. 28 Q. And you turned in front of it? Yes. I was -- as I was about to enter the that silver compact car was in the driveway Had you seen that silver car when you initially Yes. It was a vehicle that was facing From where you were, did it appear that that car PXTRANS-0072 70 1 A. Yes. 2 Q. Did you look to see whether that silver car 3 followed behind you when you drove in? 4 A. 5 was ahead of me on the rear of the parking lot. 6 Q. 7 Seminary, could you see any of the occupants inside 8 it? 9 A. No. 10 Q. So with respect to the occupants of the silver 11 car, while it was on Seminary Avenue, 12 gender, race, anything? 13 A. Nothing. 14 Q. When you passed it again as you were leaving the 15 parking lot, were you able to see the occupants of the 16 car? 17 A. 18 I was focusing on Kincaid and the 19 exiting the Lexus. 20 Q. 21 exiting? 22 A. Yes. 23 Q. What is the description of that person? 24 A. It was a male black. 25 Q. Could you tell what kind of clothes he was 26 wearing? 27 A. Not today, no. 28 Q. And so as you passed the smaller silver car, you No. 'Cause at the time I was focusing on what When you saw the silver car parked'or sitting on you couldn't see I could have if I was really focused on it, but driver~ of the Lexus Were you able to see the driver of the Lexus He was smaller in stature. PXTRANS-0073 71 1 were not pay attention to the occupants of that car, 2 correct? 3 A. No. 4 Q. You said it appeared that they were leaving 5 that the occupants of the Lexus had food in their 6 hands? 7 A. 8 to be food. 9 Q. And are they bags or plates or ... 10 A. It was more bq.gs. 11 Q. Can you describe the lighting in the rear 12 parking lot? 13 A. 14 lighting, but I 15 coming from. 16 Q. 17 parking ·lot? '18 A. 19 U-turn in the rear parking lot, that's when my 20 headlights were facing the Lexus, Kincaid and the driver 21 of the Lexus as they were exiting the car. 22 Q. 23 towards the gate, did you see that first black male you 24 saw leaning against the building? 25 A. No. 26 Q. Did you see anyone towards the front of the 27 driveway? 28 A. They were carrying looks like to be -- appeared Like they went out to get some food. It was nighttime, but there was some light -couldn't tell you where the lighting was You didn't note any street lights in the rear Not that I recall. But as I was making my As you were driving back down the driveway No. PXTRANS-007 4 72 1 Q. 2 was closed, 3 were walking eastbound down the driveway toward your 4 vehicle? 5 A. Yes. 6 Q. Did any of them have any bags in their hands? 7 A. Not that I saw. 8 Q. And just to back up a little. 9 driver get out of the Lexus, Once you got to the front of the gate and saw it you noticed that three -- three black males When you saw the what prevented you from 10 being able to make any further identificatio n of what 11 they were wearing or features about that driver? 12 A. 13 was wearing. 14 Q. 15 that you described walking towards you down the driveway 16 was wearing a multi-colore d scarf over his head? 17 A. Yes. 18 Q. And it was partially blue? 19 A. I recall some blue lines, and it was light 20 colored with some blue lines. 21 Q. 22 a -- was it a dress scarf or was it -- well 7 23 all was it sort of a thin rectangular scarf or was it a 24 larger appearing scarf? 25 A. 26 wide. 27 Q. 28 suspect's head? 'Cause today I'm not 100 percent sure what he The first person you saw walking towards you or And can you describe from your memory was it first of A larger appearing scarf, maybe a foot or so And i t was -- can you describe how it was on the PXTRANS-007 5 73 1 A. Kind of draped around his head like in the 2 Middle East. 3 Q. So a portion of the scarf was lying on his head? 4 A. Basically in view of a hoodie, except for the 5 bottom was wrapped around or a least a piece was wrapped 6 around his neck kind of like Middle East. 7 Q. 8 then all the way around his neck as well? 9 A. Correct. 10 Q. And how tall was that individual? 11 A. Estimate about 5' 6", 12 Q. What was his weight? 13 A. I would estimate about one -- maybe 160. 14 Q. Build? 15 A. I would say medium. 16 Q. Were there any other features about his face 17 that stood out to you? 18 A. 19 Medium complected, but it was a distinctive face. 20 Q. 21 identification you've just talked to us about of the 22 description of the first suspect, meaning were you able 23 to see that as they were walking up to your car or were 24 you only able to see these features once he was at the 25 window? 26 A. 27 altercation with McDaniel at the end where when his 28 scarf was off, and I was inches away from him. So the scarf itself was touching his head and Draped around his neck. 5 '7". Urn-urn, it was distinctive, clean-cut, mustache. When were you first able to make this It started at the window and ended when I was in PXTRANS-007 6 74 1 Q. And what was the hair style like at that time? 2 A. It was either very short or bald, going bald. 3 Q. And at the time that you saw the three suspects 4 walking toward you, they were walking normally? 5 A. Yes. 6 Q. Once they approached, the suspect you've 7 identified as Mr. Kincaid knocked on the window; 8 correct? 9 A. Yes. 10 Q. And that was your front driver's side window? 11 A. Yes. 12 Q. Did any of the individuals at that point try to 13 make entry into your vehicle? 14 A. No. 15 Q. Did anyone else knock on your window? 16 A. McDaniel did, but he wasn't actually knocking. 17 His face was against my window, front passenger window. 18 So his hands were actually on my driver -- my front 19 passenger window. 20 Q. But he didn't knock? 21 A. No, 22 Q. Now when they asked you what you were doing 23 there, you lied to them; correct? 24 A. Yes. 25 Q. And they did not believe you? 26 A. No. 27 Q. And as you're having this conversation with them 28 about the -- a woman you're there to see, did they seem Normally but as a group. I don't recall him specifically knocking. PXTRANS-0077 75 to be getting more agitated with you? 2 A. 3 questions on name, address. 4 woman I was trying to see. 5 Q. 6 as though they thought you were lying; correct? 7 A. Yes, 8 Q. At that point had any of the suspects at your 9 windows identify themselves by name? They were -- they were -- they continued to ask They were inquiring which And you were aware for yourself that it seemed towards the middle, yes. 10 A. No. 11 Q. Had any of them identified themselves as a 12 gang? 13 A. No. 14 Q. Up to this point, they're just inquiring why 15 you're 16 driveway; correct? 17 A. Correct. 18 Q. Now as you're having this conversation in the 19 driveway, what is the -- is there any lighting? 20 A. 21 from which source. 22 Q. 23 corning? 24 A. No, not today. 25 Q. But at some point while you're having this 26 conversation, Mr. Kincaid sees that you have a gun in 27 your center console; correct? 28 why you were in the parking lot and in the There was some lighting, but I couldn't tell you Could you tell from what direction it was Yes. PXTRANS-0078 76 Q. And it's at that point that things escalate; 2 correct? 3 A. Yes. 4 Q. After the 5 firearm, did they ask again who you were? 6 A. No. 7 Q. Did they ask why you were there? 8 A. Not that I recall after that. 9 Q. The person you've identifie d as Mr. McDaniel at ~hree suspects brandishe d their own 10 your passenger window, what kind of gun, did he point at 11 you? 12 A. 13 chrome or silver semiautom atic pistol. 14 Q. 15 silver? 16 A. 17 was chrome or silver. 18 Q. 19 grip, like whether it was rubber or metal? 20 A. I believe it was rubber or plastic. 21 Q. And how could you tell that it was a 22 semiautom atic weapon without handling it? 23 A. By the look of it. 24 Q. Now you said that the other two suspects had 25 one had a dark colored pistol and one had another silver 26 and black pistol; correct? 27 Q. 28 the same silver frame, black grip? I don't know the make and model. It a black and And which part was black and which part was I believe that the grip was black and the frame Could you tell anything in detail about the The features. And did the silver and black pistol, was that PXTRANS-0079 77 A. I don't recall specifically. 2 Q. I want to jump ahead just a minute before 3 continuing. After this incident, you went to the hospital; 4 5 correct? 6 A. Yes. 7 Q. And you were shown a line-up there; right? 8 A. Yes. 9 Q. And you were also shown three different line-ups 10 on January 24th? 11 A. Yes. 12 Q. And another line-up on or I'm sorry February 13 21st, correct? 14 A. Yes. 15 Q. Between the time of this incident on January 16 21st and February 21st, did you have occasion to look up 17 any of the three defendants who are in cdurt on CRIMS 18 yourself? 19 A. No. 20 'Q. Did you look them up in any way to learn -- to 21 look at their photos by name? 22 A. No. 23 Q. Did you look at any computer database or paper 24 database or other report in order to learn the physical 25 descriptions of the individuals who are here in court 26 today? 27 A. No. 28 Q. Prior to January 24th, did you give a suspect PXTRANS-0080 78 1 description to any police officer or other 2 administrator? 3 A. I did right after the incident happened. 4 Q. Do you know who you gave that description to? 5 A. To several officers who responded to the scene. 6 ·Q. 7 A. No. 8 Q. And this is right just after the incident 9 occurred, you gave a description; correct? Did· you sign any written statements, ever? It was verbal. 10 A. Yes. 11 Q. And that was to assist in finding them right at 12 that moment? 13 A. Correct. 14 Q. As you were engaging with these three suspects, 15 did it appear as though the suspect you identified as 16 Mr. Kincaid was giving orders to the other two suspects 17 who were there? 18 A. Definitely. 19 Q. At some point, the suspect you've identified as 20 Mr. McDaniel began to search you; correct? 21 A. Yes. 22 Q. And he located your holster with your gun in 23 it? 24 A. Yes. 25 Q. This is your duty -- your duty glock; correct? 26 A. Yes. 27 Q. And what side of your body was -- were you 28 I holstered? PXTRANS-0081 79 1 A. My right side. 2 Q. You're right handed? 3 A. Yes. 4 Q. And at some point that suspect begins to try to 5 remove your firearm; right? 6 A. Correct. 7 Q. Was he able to get underneath your sweat shirt 8 or was this over your sweat shirt? 9 A. At some point he was able to get underneath my 10 sweat shirt and actually touching my firearm. 11 Q. Was your T-shirt tucked in or untucked? 12 A. I don't recall. 13 Q. Was your firearm secured into its holster that 14 evening? 15 A. Yes. 16 Q. And how does it secure into it's holster? 17 A. I 18 so there's a strap on the top of the firearm. 19 Q. And is it a-- I guess ... 20 A. Button. 21 Q. Button connection? 22 A. Correct. 23 Q. So you unsnap or snap the button? 24 A. Yes. 25 Q. Was the suspect trying to take your gun standing 26 on'your left side or your right side? 27 A. 28 had the same exact holster I did on the 21st, He was standing on my right side facing me. And he had a firearm in his hand? PXTRANS-0082 80 A. Yes. 2 Q. Which hand was 3 A. Right hand. 4 Q. And was he using both hands to unsnap your 5 holster? 6 A. 7 of his firearm was pushed against my abdomen as he was 8 attempting to remove my firearm. 9 Q. He was using both hands. That's why the mussel And at this point that suspect has been directed 10 to remove your firearm; correct? 11 A. Yes. 12 Q. Did he -- did the suspect who was removing your 13 firearm say anything to you directly? 14 A. 15 he did, but I'm not 100 percent sure. 16 Q. 17 firearm; correct? 18 A. Not once. 19 Q. The other two individuals, the other two 20 suspects were they standing on your left side? 21 A. 22 Pennymon was standing to my left and McDaniel to my 23 right. 24 so basically I was stuck at the V of the door. 25 Q. 26 was he separated from you by the car door? 27 A. 28 McDaniel on my right side, Kincaid in front of me, and Regarding removing the firearm, I don't believe And he never struck you in the head with a Kincaid was standing directly in front of me and And my -- the driver door of my vehicle was open Was the suspect who was removing your firearm, No. He was basically in the V of the door, PXTRANS-0083 81 1 Pennymon on my left side. 2 Q. 3 firearm, 4 A. And then Kincaid. 5 Q. And suspect you've identified as Mr. Kincaid 6 standing in front. So then the door, suspect who's removing your you, Mr. Pennymon? As you were trying to prevent the removal of 7 8 your duty firearm, 9 area of your firearm? did you have one or both hands in the 10 A. 11 had two hands. 12 Q. 13 grip it or were you trying to hold it over your sweat 14 shirt? 15 A. Over my sweat shirt. 16 Q. Now soon after the struggle for the firearm 17 begins, you look down and you see that the person you 18 identified as McDaniel has his gun directed towards your 19 forearm? 20 A. Yes. 21 Q. Okay. 22 how long that gun had been in that position? 23 A. 24 I 25 Q. 26 anything immediately before that? 27 A. No. 28 Q. Did you hear him say anything immediately after Vary. Sometimes I had one hand. Sometimes I And had you lifted up your own sweat shirt to Could you tell how long or did you see It wa.s the most instant that I saw it, and then heard the round go off. Okay. And you didn't hear Mr. McDaniel say PXTRANS-0084 82 that? 2 A. Not that I recall today. 3 Q. Were you able to tell -- see any facial 4 expression on his face at the time that -- or just after 5 you heard the sound? 6 A. No. 7 Q. And after that, after that first shot, you still 8 had your right hand on your firearm; 9 A. Yes. 10 Q. And did he still have both the hand he was 11 holding his gun in and his other hand on your firearm, 12 still? 13 A. He came back with both hands on my firearm. 14 Q. Now eventually you tried to remove or you go 15 forward and remove your firearm from its holster; 16 correct? 17 A. Yes, 18 Q. And you did that with your right hand? 19 A. Actually, both hands. 20 Q. Now, when you remove your duty firearm, do you 21 always use two hands? 22 A. It depends. 23 Q. Do you have a primary hand; is there a hand 24 that's usually first on the grip, and then another hand 25 that covered it? 26 A. Yes. 27 Q. Which hand is usually the primary grip? 28 A. My right hand. Because I was looking down at my arm. correct? I started to, yes. PXTRANS-0085 83 Q. After you lost possession of your duty firearm, 2 you did not see what happened to it immediately after; 3 correct? 4 A. 5 to Kincaid, but I was looking up, so I didn't see what 6 was handed. 7 Q. 8 secreting a firearm somewhere on his person? 9 A. I just saw McDaniel make like a handing motion Did you see Kincaid make a motion as if Of receiving it, yes, or taking custody of it, 10 yes. 11 Q. 12 see that? 13 A. The waist area (witness indicating.) 14 Q. At this point the phone, your cell phone is 15 still in use with Officer Miller; correct? 16 A. 17 driver's seat. 18 Q. 19 speaker; is that correct? 20 A. 21 on speaker, but it was open or active on my seat. 22 Q. On your driver's seat? 23 A. Correct. 24 Q. After you lost possession of your duty firearm, 25 did Mr. McDaniel back away or did he stay up close to 26 you? 27 A. He remained close to me. 28 Q. And did he -- he didn't say anything at that And where did -- what area of his body did you I believe so. It was open or active on my And on direct I think you said it was on I believe -- I'm not 100 percent sure if it was PXTRANS-0086 84 1 point; correct? 2 A. No. 3 Q. He didn't strike you in any way? 4 A. No. 5 Q. You finally disclosed to the suspects that you 6 were a police officer; correct? 7 A. Yes. 8 Q. And were you able -- and what was the person 9 you've identified as Mr. McDaniel doing at the point 10 when you said you were a police officer? 11 A. 12 me. 13 Q. Which part of you? 14 A. Still at the right side. 15 Q. But which part of your body was he holding on 16 to? 17 A. Oh. 18 Q. And what happened with respect to him after you 19 identified yourself as a police officer? 20 A. He didn't say anything. 21 Q. Mr. Kincaid continued to be the primary person 22 you were communicating with? 23 A. 24 It was just Kincaid. 25 Q. 26 you were a police officer Mr. Kincaid and Mr. Pennymon 27 turned and ran; correct? 28 A. He was partial holding on to me. Yes. He was next to My sweat shirt. I don't believe Pennyrnon said anything. Now you said that soon after you disclosed that Yes. PXTRANS-0087 85 Was there anything that you noticed in the 1 Q. 2 surroundings that you believed led them to run or 3 prompted them to run? 4 A. 5 they had heard sirens, police sirens, approaching the 6 area. 7 Q. Did you hear sirens? 8 A. Not at the time, but that's the only thing 9 that --and that's possibly. The only thing I believed prompted them to run, I'm not saying it is. 10 Q. So there's nothing that you noticed? 11 A. No. 12 Q. And you indicated that the suspect you believe 13 to be Mr. McDaniel didn't notice initially that they had 14 run? 15 A. No. 16 Q. And how was he positioned so that he would not 17 have noticed that they had run? 18 A. 19 of a suddenly he realized that they were no longer 20 there, then he turned around and saw them running and he 21 appeared to be surprised that they were running. 22 Q. 23 passed between the two who initially ran and when you 24 saw Mr. McDaniel run? 25 A. 26 running in the driveway, running westbound. 27 turned around, saw them running and he appeared 28 surprised like, what's going on, why are they running? 'Cause he was facing me and he probably -- all About how much time passed, how many seconds Just a couple of seconds because they were still So he PXTRANS-0088 86 You said that you believed the bullet that hit 1 Q. 2 you also hit the brake pedal of your vehicle? 3 A. Yes. 4 Q. And why do you believe that? 5 A. 'Cause when I took custody of my vehicle later, 6 I saw that there was a dent on the pedal. 7 rubber, and it was an indentation in the metal 8 consistent with the bullet on the actual brake pedal and 9 that wasn't there before. MS. WILLIAMS: 10 11 I removed the That's all I have at this time. Thank you, Officer Karsseboom. 12 THE WITNESS: 13 THE COURT: Thank you. So we've Thank you, Ms. Williams. 14 been going about 45 minutes. Why don't we take our 15 afternoon break at this time, then. 16 Mr. Thews' cross-examination. 17 o'clock. We'll start up with We'll .reconvene at 3:00 18 (Whereupon, there was a break taken.) 19 THE COURT: 20 McDaniel, Wilson, 21 Mr. Thews. 22 MR. THEWS: We're back in session. Pennymon. People v All parties are present. Thank you, your Honor. CROSS-EXAMINATION 23 MR. THEWS: 24 Officer, directing your attention to 25 the 21st of January 2013 in the afternoon, were you 26 security at a Warriors game? 27 A. Yes. 28 Q. And is that security detail an assigned detail PXTRANS-0089 87 1 by Oaklan d Police Departm ent? 2 A. Yes. 3 Q. And. so you were on duty, then, 4 A. Yes. 5 Q. And then when you got the call out from Lt. 6 Jones, you still remain ed on duty; right? 7 A. 8 placed back on duty. 9 . Q. Yes. right? Once we get called out, we're basica lly Well, it's not a continu ous flow of assignm ent 10 as duty? 11 A. 12 on the 21st, Depend s on if there' s a gap, but in this case, Q. Okay. A. No. Q. No. I don't think there was a gap. When you were assign ed on to the Warrio rs game 16 17 as securi ty, did you have a person al record ing device ? 18 A. No. 19 Q. That's require d, isn't it? 20 A. I don't think I had one that day. 21 issued one. 22 Q. 23 record ing device at all, huh? 24 A. I don't believ e I was on that day. 25 Q. All right. 26 been issued to you each and ever day or would it be 27 someth ing you'd be carryin g with you as part of your 28 equipm ent? Okay. I wasn't You weren' t issued a PR person al Is that someth ing that would have PXTRANS-0090 88 A. At that time my unit was not. I don't believe 2 we were issued a PDRD and furthermore, if you're in 3 plain clothes, you did not wear a PDRD. 4 Q. 5 1759 Seminary, Seminary is essentially a north/south 6 street; right? 7 A. Yes. 8 Q. Runs down to East 14th? 9 A. Yes. 10 Q. And if you're driving south on Seminary, would 11 1759 be on the right side or the left side? 12 A. On the right side. 13 Q. So when you talk about people fleeing down the 14 driveway westbound, are you saying that people would be 15 fleeing back to the parking lot behind 1759? 16 A. Correct. 17 Q. Now directing your attention to when you were 18 driving eastbound in that little driveway 12 feet wide 19 and you came up to the gate at the entrance from 20 Seminary, how close to the gate did you get before you 21 had to park your undercover vehicle? 22 A. I estimate about 6 to 8 feet. 23 Q. And was that at the point when the three persons 24 approached you? 25 A. 26 were walking towards my direction in the driveway. 27 Q. 28 towards you? All right. Now directing your attention to the That's when I noticed that the three persons Now were they corning eastbound or westbound PXTRANS-0091 89 A. They were walking eastbound towards my location. 2 Q. So they were coming from the gate portion of the 3 driveway? 4 A. 5 parking lot so eastbound towards my location. 6 Q. 7 parking lot heading to the gate at the narrow 8 driveway? 9 A. Correct. 10 Q. Now, in other words you -- did you notice them 11 through a rearview mirror or how did you happen to see 12 the three persons? 13 A. Through my side view mirrors. 14 Q. And about how far away when the three persons 15 when you first noticed they were walking in your 16 No. Okay. They were walking away from the, rear So that would be eastbound from the rear .direction? As soon as they exited the rear parking lot. So 17 A. 18 I would estimate maybe 200 feet or so. 19 roughly. 20 Q. 21 three people, did any of them appear to be -- to have a 22 firearm in their hand? 23 A. I did not see any. 24 Q. As they approached your vehicle at any point in 25 time did any of the three persons appear to have a 26 firearm in their vehicle -- I mean their hand? 27 A. I didn't see any. 28 Q. At what point did you notice that any one of And that's At that point in time when you first saw these PXTRANS-0092 90 these three persons had a firearm in their hand? 2 A. When all three of them were pointed at me and 3 two of them were about four inches away from my head. 4 Q. 5 vehicle; right? 6 A. Yes. 7 Q. Now after the incident took place, you gave a 8 suspect description to one of the officers, didn't you, 9 and you described three different suspects? So that's when they were right next to your 10 A. To several of the officers I gave descriptions. 11 Q. Okay. 12 1, what would that description be? 13 A. 14 the scene was that I gave. 15 Q. 16 description? 17 A. No. 18 Q. And as to suspect 3, did you recall that 19 description? 20 A. No. 21 Q. Now at that point in time during the incident, 22 did you know any of the three suspects by name? 23 A. No. 24 Q. How did you come to later find out that the 25 suspects had names? 26 A. After the photo line-ups. 27 Q. But not before; right? 28 A. No. Now as to your description as to suspect I don't recall exactly what the description at And as to suspect 2, do you recall that PXTRANS-0093 91 Q. Do you recall riding to the hospital with an (Words between the audience and the deputy.) 2 3 THE COURT: 4 This is on open courtroom. Thank you, Deputy. Anyone that wants to 5 watch the proceeding is welcome, but you have to conduct 6 yourself with the manner of being quiet and courteous 7 while any testimony is being taken. 8 Mr. Thews, can you reask your last question? 9 MR. THEWS: As you were riding to the hospital, 10 you recall riding with an Officer Windham, 11 W-I-N-D-H-A- M. 12 A. Yes. 13 Q. And do you recall giving him a description of 14 the suspects? 15 A. Her, 16 Q. And you recall saying suspect 1 tried to take 17 your gun away from you? 18 A. I don't recall that conversation . 19 Q. All right. 20 A. Or exactly what the content of the conversation . 21 I recall the conversation , not what did I tell her. 22 Q. 23 time? 24 A. No. 25 Q. All right. 26 occurred and that YQU said you were shot in the left arm 27 by suspect 1? 28 A. yes. And But the content you don't recall at the present Like I said, Do you recall that a struggle I don't recall exactly what I told PXTRANS-0094 92. 1 her. 2 Q. 3 Windham that suspect 2 and 3 pistol whipped you? 4 A. I don't recall specific;a lly what I told her. 5 Q. Do you recall you told Officer Windham suspect 1 6 was eventuall y able to take your gun away from you? 7 A. 8 what I told her because I spoke to several officers at 9 the time. All right. Again, Do you recall telling Officer I don't recall, especiall y specifica lly 10 Q. 11 Windham that you took suspect's gun away from him? 12 A. It'.s possible. 13 Q. Okay. 14 conversat ion at all? 15 A. 16 different officers, and I don't know which piece that I 17 tell to which officer. 18 Q. 19 shock at the time you gave those descripti ons to Officer All right. And do you recall telling Officer I couldn't tell you. So you don't recall the content of that No, because I had several conversat ions with And is it fair to say that you were somewhat in .20 Winqham? 21 A-. 22 several conversat ions so I can't tell you which officer 23 did I tell what. 24 Q. 25 you appeared dazed or confused? 26 27 28 I wouldn't say in shock, but, like I said I had Is it fair to say that right after the incident MR. BELTRAMO: Objection , in terms of his testimony about how he appeared to others. THE COURT: Yeah. ~'m going to sustain the PXTRANS-0095 93 1 objection. Could you rephrase, Mr. Thews? 2 MR. THEWS: I'll rephrase. 3 Is fair to say that you were dazed or confused .4 right after the incident? 5 A. 6 although the officer said I was calm. 7 who you talk to. 8 Q. 9 after the incident? That's -- I guess to somebody's perception, I~ So it depends on it fair to say that you were disoriented 10 A. Like I said, that's perception. 11 Q. I'm talking about your personal feeling? 12 A. No. 13 Q. You were not disoriented? 14 A. No. 15 Q. And you were not shaken? 16 A. No. 17 Q. And these would be the times when you gave 18 suspects description to the other officers; right? 19 A. Yes. 20 Q. You recall an officer applying a tourniquet to 21 your left arm? 22 A. Yes. 23 Q. We're off the record for a minute. 24 (Private discussion held off record.) 25 THE COURT: We're back on the record. 26 MS. THEWS: In your direct examination by the 27 District Attorney, you indicated suspect 2 had a black 28 hooded jacket with a white T-shirt underneath it; is PXTRANS-0096 94 that correct? ·MR. BELTRAMO: 2 THE COURT: 3 4 Object, vague as to suspect 2. Did you understand the question, Officer? THE WITNESS: 5 Yes. Kincaid, wear a white 6 T-shirt, but the answer was not complete. 7 specific black imprints or print on the whi'te T-shirt. MR. THEWS: 8 9 Fair enough. He had And he had a black hoodie jacket that was open so you could see the white 10 T-shirt? 11 A. Correct. 12 Q. At that point in time and in the District 13 Attorney's examination, you called him suspect 2; didn't 14 you? 15 A. I don't specifically recall. 16 Q. And then you also ident1fied the person Kincaid 17 which you had previously said was suspect 2; right? 18 A. Yes. 19 Q. So in terms of your description, it appears 20 fairly certain that suspect 2 is the person you've .21 identified as Kincaid at a later photo line-up; 22 MR. BELTRAMO: 23 THE COURT: right? Objection, vague as to suspect 2. That objection is sustained. I 24 don't know if you're talking about a suspect as he's 25 identified in the police report or a suspect as he's 26 been identified here in court chronologically as the 27 events unfold. 28 MR. THEWS: Your Honor, in court I believe the PXTRANS-0097 95 1 officer identified suspect 2 as the person with the 2 black jacket open with the white T-shirt with imprints 3 and he later identified that person as Kincaid. 4 have Kincaid as suspect 2, at least from my notes. THE COURT: 5 6 Suspect 2 being the person who was the passenger in the brown Lexus? The objection has been sustained. 7 8 So we You can ask your next question. MR. THEWS: 9 Yes, your Honor. Now at the time the three persons approached 10 11 your vehicle, before the incident where you were shot, 12 you didn't know the names of the persons; did you? 13 A. No. 14 Q. And what caused you to say that the person at 15 the front passenger door was McDaniel? 16 A. Could you repeat that? 17 Q. Sure. 18 You've told us on direct by the District 19 Attorney that the person at the front passenger door was 20 a man by the name of McDaniel. 21 A. 22 front passenger door. 23 Q. 24 24th? 25 A. Yes. 26 Q. Now going on to when a person asks you to exit 27 your vehicle or actually told you to exit your vehicle, 28 who again was that person? Because I identified him as the person at the You identified him from a photo line-up from the And from being present in court today. PXTRANS-0098 96 1 A. It was Kincaid. 2 Q. And that's the same person you called suspect 2 3 earlier; right? 4 MR. BELTRAMO: 5 MR. THEWS: 6 7 8 9 Objection, vague as to time. Earlier in testimony. Not as to the time at the incident. THE COURT: Do you understand the question as it's phrased, Officer? THE WITNESS: I do understand. I just want to 10 clarify that if I did use Kincaid as suspect 2 does not 11 mean whatever description I gave to the responding 12 officer as suspect 2. 13 3 at the scene, but they were not in any specific order. 14 So just because a person was explained or described as 15 suspect 2 at the scene does not mean that suspect 2 is 16 going to be today. 17 THE COURT: I gave descriptions of 1, 2, and If that makes sense. So as to the objection, I'm going to 18 overrule it, but as to future questioning on this 19 subject, if you could clarify in what -- categorize how 20 you're categorizing suspect 1, suspect 2 or suspect 3. 21 MR. THEWS: Thank you, your Honor. 22 THE COURT: Based on someone here in court or 23 some other reason. 24 MR. THEWS: 25 Now, directing your attention to when you were Thank you. 26 outside your undercover vehicle and you were not armed. 27 You say a person called Kincaid asked you where your bag 28 is; is that correct? You said, "It's in my truck." PXTRANS-0099 97 I don't believe that that comment was made when 1 A. 2 I was unarmed. 3 Q. All right. 4 A. Yes. 5 Q. And what was in the bag? 6 A. My personal items. 7 Q. Any other equipment? 8 A. No. Did you have a bag in your truck? MS. WILLIAMS: 9 I'm going to object a few Misstates the testimony the bag. 10 questions back. 11 believe it was badge to my understanding. THE COURT: 12 I It does seem to misstate the 13 testimony as to what his earlier testimony was, but 14 he's -- the officer now said that he did have a bag, so 15 I'm going to overrule your objection. 16 MR. THEWS: I didn't object. 17 THE COURT: Your co-counsel objected. 18 MR. THEWS: Thank you. 19 THE COURT: And I ruled in your favor. 20 MR. THEWS: Thank you, Judge. 21 Never appeal an acquittal. 22 As to the time shortly after again directing 23 your attention to when you were outside the truck 24 unarmed; okay? 25 ran westbound toward the parking lot; right? 26 A. Yes. 27 Q. And at this point in time where was McDaniel? 28 A. He was in front of me. Now you said that Kincaid and Pennymon PXTRANS-0 100 98 Q. And what if anything was he doing? 2 A. Holding to my sweat shirt. 3 Q. Is this the point in time where you engage in a 8 Q. I'm talking about between you and McDaniel and 9 when he grabbed his firearm? 10 A. Repeat that. 11 Q. Sure. Directing your attention to when Kincaid and 12 13 Pennymon had run westbound as you said toward the 14 parking lot, 15 A. Yes. 16 Q. At this point in time you had a conflict with 17 McDaniel, didn't you, over the firearm? 18 A. His firearm, 19 Q. Okay. 20 took it away from him? 21 A. Yes. 22 Q. Now directing your attention to when you arrived 23 at the hospital. right, that left you with McDaniel? yes. And that's when you took his firearm and Officer Windham was with you; right? 24 25 A. Mostly. 26 Q. And was he with you when you received treatment 27 for your gunshot wound? 28 A. Was "she" with me? PXTRANS-0 101 99 1 Q. She. 2 A. Yes. 3 the whole time. 4 Q. 5 to receive treatment, you were not under the influence 6 of any narcotics like morphine or anything like? 7 A. 8 ambulance at the scene. 9 Q. I -- I'm sure here and there, yes, but not And up until that point in time when you started I received my first shot of morphine in the Okay. That's as they loaded you into the 10 ambulance? 11 A. Could you repeat that? 12 Q. Sure. You received your first shot of morphine was at 13 14 the scene? 15 A. Yes. 16 Q. In the ambulance; right? 17 A. Yes. 18 Q. Was that just after they loaded you into the 1.9 ambulance? 20 A. Yes. 21 Q. So as you were being driven in the ambulance 22 from the scene to the hospital, you were under the . 23 influence of morphine; right? 24 A. I would say yes. 25 Q. And that was a point ·in time when you gave 26 descriptions to Officer Windham? 27 A. Yes. 28 Q. And the morphine affected your perception and PXTRANS-0 102 100 1 judgment; didn't it? 2 A. I don't know. 3 Q. At this point in time you can't recall saying 4 suspect 2 is a certain person or suspect 1 is a certain 5 person. 6 right? All you can recall is what you told Windham; 7 MR. BELTRAMO: 8 THE COURT: 9 I don't believe so. Objection, same objection. It's also compound. Please Sustained. rephrase. Okay. 10 MR. THEWS: 11 Considering you received your first shot of 12 morphine right when you got in the ambulance, you were 13 under the influence of morphine as the ambulance drove 14 you to the hospital; right? 15 A. Yes. 16 Q. And your descriptions could have been affected 17 by the morphine, is that correct, as you drove to 18 hospital? 19 A. 20 under the influence of morphine, so I don't know. 21 Q. Well, morphine is a narcotic; right? 22 A. Yes. 23 Q. And you've been through the school about 24 narcotics and how morphine affects people; right? 25 26 I don't know. MR. BELTRAMO: That was my first time ever being Objection, relevance and argumentativ e. 27 THE COURT: 28 THE WITNESS: Overruled. You may answer. Yes. PXTRANS-0 103 101 MR. THEWS: 1 So how does morphine affect your 2 judgment once you've been injected with morphine? 3 A. 4 of like heroin. 5 Q. 6 mean? 7 A. Kind of calms you, nod. 8 Q. Also takes away the pain? 9 A. Correct. 10 Q. And are you really thinking straight when you're 11 under the influence of morphine? To my understanding, When you say "slows you down," what do you 12 MR. BELTRAMO: 13 THE COURT: 14 THE WITNESS: 15 kind of slows you down kind Objection, foundation, relevance. Overruled. I thought it was. I couldn't tell you 100 percent. MR. THEWS: 16 Okay. Have you had occasion to 17 arrest people under the influence of morphine for being 18 unable to take care of themselves in public? 19 A. 20 influence of morphine. 21 Q. Did you ever do narcotics detail? 22 A. Yes. 23 Q. So you've seen people under the influence of a 24 narcotic who were unable to care for themselves; 25 right? 26 A. 27 occasionally unable to care for themselves, yes. 28 Q. I've never arrested anyone for being under the I've seen people under the influence. And That's a criteria for the arrest; isn't it? PXTRANS-0 104 102 1 A. No. 2 Q. Okay. 3 A. No, 4 Q. I wouldn't argue with you on that one, but now 5 as to the descriptio ns of people that you gave Windham, 6 is it fair to say that you gave those descriptio ns while 7 you were under the influence of morphine? 8 A. 9 officers. Unable to care for themselve s? it's not a criteria for an arrest. Yes, but again I gave descripti on to several I couldn't even tell you who they were today 10 because I spoke to several of them. 11 Q. Agreed. 12 A. Yes. 13 Q. Now as to the hospital, do you recall what 14 People's 1 photo line-up was about? 15 go get them, and I'll show them to you. 16 A. Yes. If you don't I'll It was regarding one of the suspects. MR. THEWS: May I approach the witness, 19 THE COURT: Yes, you may. 20 MR. THEWS: Thank you. 21 People's 1. 22 (Showing counsel.) 23 MR. THEWS: 17 18 your Honor? Officer, showing you what's 24 previousl y been marked as People's 1 for identific ation 25 is it's a two-page document. 26 photograp hs of six persons without any descriptio n. 27 the second page there's the same photograp hs again, but 28 with descripti ons. On the front page, there's On PXTRANS-0105 103 Do you recognize that document as the one that 1 2 the District Attorney originall y showed you? 3 A. One of them. 4 Q. Today? 5 A. Yes. 6 Q. And was that one of the documents that was shown 7 to you at the hospital? 8 A. No. 9 Q. Okay. That document was showed to you on the 10 24th? 11 A. Yes. 12 Q. So on the 24th, 13 out of the hospital? 14 A. Two days. 15 Q. Were you recoverin g at home? 16 A. Yes. 17 Q. Were you under any medicatio n? 18 A. Yes. 19 Q. And what sort of medicatio n were you under? 20 A. I believe Codeine. 21 Q. For pain? 22 A. For pain. 23 Q. Anything else? 24 A. No. 25 recall 26 Q. Whatever it was it worked, huh? 27 A. Somewhat. 28 Q. Okay. then -- how long had you been Two days. Either Codeine or ibuprofen . I don't Now that was one for the 24th. Now at PXTRANS- 0 106 104 1 the time you were shown that photo line-up, what 2 instructions were you given? 3 A. The general instructions from the waiver. 4 Q. And what was the general instruction? 5 A. I don't know by heart, but basically people 6 don't focus on the color, lighting and 7 Q. 8 the sergeants; was it? 9 A. It was by Sgt. Brandwood. 10 Q. Now at that time did the sergeant tell you one 11 of the suspects was going to be in this line-up? 12 A. No. 13 Q. At the time that you observed People's 1 for 14 identification, first page, did you immediately 15 recognize anybody in those six photos? 16 A. No. 17 Q. None at all? 18 A. No. 19 Q. At any time after he showed you -- strike that. Was this photo line-up shown to you by one of After the sergeant showed you the photo line-up 20 21 in People's 1 for identification, did you identify 22 anybody? 23 A. Which one? 24 Q. People's 1 for identification, did you identify 25 anybody in that line-up? 26 A. Yes. 27 Q. And how long did it take you to find somebody in 28 the line-up that you felt that you knew? PXTRANS-0 107 105 I don't recall, but it was recorded, so ... I 1 A. 2 couldn't tell you. 3 Q. 4 in the line-up, what if anything did the sergeant do? 5 Did he show you the names or did he tell you the name or 6 how did you find out the name? 7 A. 8 day or another day what was his name. 9 Q. You're not sure? 10 A. No. 11 Q. But any way as to People's lA for 17 A. Yes. 18 Q. But.still you didn't have a name for that 19 person? 20 A. No. 21 Q. And about how much later did -- was it before 22 you found out a name for that person? 23 A. 24 date. 25 Q. No recollection? 26 A. I don't remember. 27 Q. Okay. 28 And at the time that you identified the person I found out maybe-- I'm not sure if it was that I don't know if it was that day or a future Showing you People's No. 2 for identification, a PXTRANS-0 108 106 1 two-page document six photos, top page, no names. 2 3 (Showing counsel.) Q. Second page, names. When did you first see that photo line-up? 4 5 A. It was on the same date. 6 Q. And that -- who was the person who showed you 7 the photo line-up? 8 A. Sgt. Brandwood. 9 Q. And at the time he showed you the photo line-up, 10 what instructions did he give you? 11 A. The same instructions as the previous one. 12 Q. He didn't tell you one of the people that beat 13 up on you was in that photo line-up? 14 A. No. 15 Q. Okay. 16 photo line-up, how long did it take you to recognize 17 someone in that photo line-up? 18 A. I don't know, but it was recorded. 19 Q. Okay. 20 A. Yes. 21 Q. But it did take you a little while; didn't it? 22 A. I don't remember. 23 Q. At the time that you made the identification, 24 did you write -- did you circle the photo? 25 A. Yes. 26 Q. And did you include your identification No. 27 8040? 28 A. Now at the time that he showed you that Sergeant recorded it? Yes. PXTRANS-0 109 107 All right. At the time that you made the 1 Q. 2 ident ificat ion on the blank when I use "blan k," I 4 mean witho ut ident ificat ion by names , on the blank photo line-u pi did you ever determ ine -- did the serge ant ever 5 show you what's page 2 here with ident ificat ions on 6 it? 7 A. No. 8 Q. How much later from the 24th did you find out 9 the ident ificat ion of perso n in place one of the photo 3 10 line-u p shown to you by the serge ant? 11 A. 12 believ e it was about the same time. 13 Q. 14 didn' t know names assoc iated with perso ns that attack ed 15 you; did you? 16 A. I didn' t know the names or the defen dants . 17 Q. Showi ng you photo line-u p which has been 18 previ ously marke d as Peopl e's 3 for ident ificat ion. Okay. So up until this point in time, you Showi ng you what' s been marke d as Peopl e's 3 for 19 20 I don't know if it was the same day, but I ident ificat ion. Was that line-u p ever shown to you? 21 22 A. Yes. 23 Q. And when was that done? 24 A. It was on the same day as the other two. 25 don't know which order , thoug h. 26 Q. Was that the same serge ant? 27 A. Yes. 28 Q. And as you looked at those three peopl e -- six I PXTRA NS-0 110 108 1 people, did you make an identificatio n? 2 A. No. 3 Q. Did you ever see the second sheet with the names 4 of the persons shown on the first sheet? 5 A. No. 6 Q. Showing you what's previously marked as People's 7 4 for identificatio n, a two-page document photo line-up 8 six people. (Showing counsel.) 9 MR. THEWS: 10 Now, the first page does not have 11 any identifying names on it; right? 12 A. No. 13 Q. And when were you shown that line-up? 14 A. On the 21st of February. 15 Q. 21st or 24th? 16 A. 21st. 17 Q. 21st. 18 A. No. 19 Q. February -- okay. 20 showed you the photo line-up that's depicted in People's 21 4 for identificatio n? 22 A. Sgt. Brandwood. 23 Q. And at the time he showed you the photo line-up, 24 what instructions did you receive? 25 A. The same ones as the other ones. 26 Q. Ones you told us previously? 27 A. Yes. 28 Q. And at that point in time did the sergeant tell That was the day of the incident? February. Now on February the 21st, who PXTRANS-0 Ill 109 1 you one of the people who attacked you is ln this 2 line-up? 3 A. No. 4 Q. Now, directing your attention, did you pick out 5 a person out of the line-up? 6 A. Yes. 7 Q. And which person did you pick? 8 A. No. 3. 9 Q. Did you identify it in the same fashion? 10 A. Yes. 11 Q. How did you identify it? 12 A. Circled the photo, my initials and date. 13 Q. Now did the sergeant on the 24th of February 14 ever show you the second page with the names of the 15 persons involved? 16 A. No. 17 Q. How did you come to find out that the name of 18 the person that you had circled on February the 24th was 19 Joseph Pennymon? 20 A. I was told either that day or sometime after. MR. BELTRAMO: 21 Objection, misstates the 22 testimony as to the date. 23 MR. THEWS: 24 MR. BELTRAMO: 25 MR~ 26 MR. BELTRAMO: 27 MR. THEWS: 28 THEWS: Pardon me? February 21st, I believe. I misspoke. Yes. Well, February 21st. Thank you very much. PXTRANS-0 112 110 THE COURT: 1 2 The date has been testified to as February 21st, not the 24th. 3. MR. THEWS: Thank you. 4 THE COURT: But it is 5 cross~examination, so I'm going to allow the answer to stand and the question. 6 MR. THEWS: Thank you, Judge. 7 MR. THEWS: Take a moment, your Honor. 8 Directing your attention to when I believe it was a 9 brown Lexus approached the gate to 1759 Seminary, you 10 were actually on the street at that point in time, 11 weren't you parked on the street? 12 A. I was in -- I was not parked. 13 Q. You were where? 14 A. I was not parked on the street. 15 Q. Where were you then? 16 A. I was in the middle of the roadway waiting for 17 the Lexus to enter the property to follow it. 18 Q. 19 into the property? 20 A. Yes. 21 Q. How far away from the Lexus were you if you can 22 estimate it in feet? 23 A. Approximately 30 feet. ~ Q. Was there anything between where you were on the 25 street and where the Lexus was like trees, shrubs, 26 bushes, anything like that? 27 A. No. 28 Q. As the person got out to open the gate, you've And was it your attention to follow the Lexus PXTRANS-0 113 111 How did you 1 previously said that it was Kincaid. 2 recognize Kincaid as the person who got out of the Lexus 3 and opened the gate? 4 A. 5 shirt that he was wearing. 6 said with some rectangular square black prints. MR. THEWS: 7 8 'Cause the clothing was so distinctive, that It was a white shirt like I All right. Let me take another moment, your Honor. 9 THE COURT: Take your time, Mr. Thews. 10 MR. THEWS: No further questions. 11 THE COURT: Thank you, Mr. Thews. 12 Mr. Berry, cross-examin ation. 13 MR. BERRY: CROSS-EXAMINATION 14 MR. BERRY: 15 16 I got two documents I'd like to be marked as an exhibit for purposes of identificatio n. THE COURT: 17 18 Thank you. That will be Defense A and Defense B. (Whereupon, documents were marked Defense 19 A and B for identificati on.) 20 That sounds good. 21 MR. BERRY: 22 I'd like to make this lA, A and this lB. 23 is lA and this lB. 24 Thank you. 25 Hello Officer Karsseboom, how you doing? 26 holding up all right? 27 A. 28 This You Of course. MR. BERRY: Okay. Showing you Exhibit A. PXTRANS-0 114 112 1 MR. THEWS: May I see A? 2 MR. BERRY: I'm sorry. 3 (Showing counsel.) 4 MR. BERRY: And B. 5 MR. THEWS: And B. 6 MS. WILLIAMS: 7 Mr. Berry, is there a Bates number associated with Defense A. MR. BERRY: 8 9 Show everybody. I'm afraid that the B is a product of Goggle. 10 MS. WILLIAMS: 11 MR. BERRY: Thank you. I'll show you A, and I'll ask you if 12 you recognize the scene depicted there? 13 A. Yes. 14 Q. What is that? 15 A. The building in the center is 1759 Seminary. 16 Q. And does that show the -- or the pedestrian 17 entrance? 18 A. It's not a very good picture. 19 Q. I didn't take it. 20 A. It's blurry. 21 of it. 22 Q. 23 entrance is? 24 A. The area is. 25 Q. Does it also show the driveway that you drove 26 into? 27 A. The driveway looks like a black mark. 28 Q. Like a what? So it shows barely the front gate Does it show the area where the pedestrian PXTRANS-0 115 113 Like a black mark. It really doesn't show the 1 A. 2 drivewa y. 3 Q. 4 Mr. Pennymo n before this inciden t on the street; is that 5 correct , or in the vicinity outside the building area? 6 A. He was on the southea st corner of the buildin g. 7 Q. Right. 8 photogra ph? 9 A. It's blurry. 10 Q. The approxim ate location ; is that shown? 11 A. Yes. 12 Q. Could you mark on that? 13 A. Sure. 14 Q. With an X and draw a line out to the side with 15 Pennymo n. 16 A. 17 draw it, but -- 18 Q. That's fine. 19 A. And here. 20 Q. Pennymo n. All right. You testifie d that you saw Does that shown in that particu lar Just draw it up to the side there. You're not going to be able to see it. I'll And that's general ly the area where you saw 21 22 Mr. Pennymo n? 23 A. Yes. 24 Q. And the area general ly where the drivewa y is, 25 althoug h it's somewha t obscure d in that photogra ph, 26 could you mark that, please? 27 A. (Witness complie s.) 28 Q. All right. May I show that to counsel? PXTRAN S-0 116 114 1 A. Sure. 2 Q. In the mean time, 3 which has been previ ously shown to coun sel. (Show ing couns el exhi bit which was mark ed on by 4 5 I ' l l let you look at Exhi bit B, witn ess.) MR. BERRY: 6 The Exhi bit B, can you disce rn from looki ng at it what it is? 7 that, 8 A. No. 9 Q. If I were to tell you that that is an aeria l 10 view of 5900 block of Semi nary, would that help to 11 clari fy for you? 12 A. I don't think there is a 5900 Semin ary. 13 Q. Okay. 14 occu rred, 15 know? 16 A. I don't see it off -- just by looki ng at it. 17 Q. You just can't see for sure or can't tell for 18 sure? 19 A. No. 20 Q. Okay. The build ing where this incid ent is that shown on that aeria l view, if you Thank you. When you saw Mr. Penny mon outsi de the build ing 21 from what dista nce did you 22 as you were drivi ng by, 23 ion obser ve him; that is, how far was it from his locat 24 to your locat ion? 25 A. 26 27 28 I saw him from the north boun d lane on Semin ary, at and he was on the south east corne r of the build ing So I would estim ate maybe 60 feet or so. 1759 Semi nary. And it was dark at the time; is that All right . Q. PXTR ANS-0 117 115 1 corre ct. 2 A. It was nightt ime, 3 Q. And was there a stree t light nearby ? 4 A. It was some lighti ng, but I could n't tell you 5 from where . 6 Q. 7 exten t to which the darkn ess obscu red his featu res as 8 you went by? 9 A. All right. yes. How would you chara cteriz e the As I drove by, it was -- it was night time. When 10 I made a U-turn , and my lights illum inated the buildi ng 11 and the front of the build ing becau se I made a U-turn 12 facing the build ing. 13 Q. 14 area where Mr. Pennym on was? 15 A. Yes, as I made a U-turn . 16 Q. All right. 17 car was makin g the U-tur n; is that corre ct? 18 A. Yes. 19 Q. How long would you say that that oppor tunity to 20 obser ve the indiv idual that you saw in the headl ights 21 occur red? 22 A. Coupl e secon ds, 23 Q. And you were also paying atten tion to your 24 drivin g as you were makin g the U-tur n; is that 25 corre ct? 26 A. Yes. 27 Q. What was it that you saw about Mr. Pennym on as 28 you observ ed him? So your headl ights on your car illum inated the And that was taking place as your a few secon ds. Could you tell us what you saw? PXTRA NS-0 118 116 Objectio n, vague as to time. 1 MR. BELTRAMO: 2 MR. BERRY: 3 were making your U-turn? 4 THE COURT: 5 THE WITNESS: At that particu lar time when you Objectio n overrul ed. What drew my attentio n to Pennymon 6 is, No. 1, he was the only person I saw on the property . 7 2, he was -- his back was towards the wall, the south 8 wall of the complex , like he was kind of partiall y 9 hiding or out of view or out of public view. Th~t's 10 what drew me to his attentio n and, 3rd, I was focused on 11 the apartme nt complex itself. MR. BERRY: 12 13 I'm going to move to strike the answer as being non-res ponsive . Answer may stand. 14 THE COURT: Overrul ed. 15 MR. BERRY: What about Mr. Pennymo n's features ; 16 that is, his facial features particu larly, did you 17 notice as you made your U-turn? 18 A. 19 about his feature s. 20 initiall y that stood him out. 21 Q. 22 out? 23 A. 24 the jeans that he had were not the average type of jeans 25 that he was wearing . 26 Q. What made them differe nt than average? 27 A. They were very light colored and more on the 28 designe r side type of jeans. There wasn't anything specifi c that I can say It was more about his cl.othing And what was it about his clothin g that stood The black with the sweat shirt was plain, but PXTRAN S-0 119 , ' 117 1 Q. What color were they? 2 A. Very light blue like, almost bleach blue. 3 Q. And you say they were designer jeans? 4 A. They appeared to be more designer jeans. 5 Q. You were 60 feet away? 6 A. I -- people know what designer jeans look like 7 without at the label or more. 8 Q. 9 made you think that they were designer jeans from that Maybe you can inform me as to what it was that 10 distance? 11 A. 12 designer purses. 13 it a Target? 14 Q. 15 and what was it about them that made them look like 16 designer jeans. 17 A. 18 fit than your regular jeans. 19 Q. 20 do with it? 21 A. Yeah, 22 Q. Okay. 23 to do with it? 24 A. Yes, 25 Q. When you saw Mr. Pennymon, was he -- could you 26 see his hair? 27 A. No. 28 Q. What was he wearing if anything that concealed You can tell by -- I mean can you look a Can you tell if it was designer or is I'm asking specifica lly about these jeans Well, They were more acid wash. They had a different So it was -- the color didn't have anything to it was a combinati on of things. All right. The color did have something it did amongst other things. PXTRANS- 0 120 118 1 his hair. 2 A. 3 hood was up. 4 Q. All right. 5 A. Yes. 6 Q. As we commonly know them? 7 A. Yes. 8 Q. And what -- how was it worn in the sense of what 9 portion of his face or skull did it cover? The only thing that concealed his hair was the Could you tell it was a hoodie? so basically their hairline 10 A. 11 was covered. 12 Q. Anything else, how about his cheeks? 13 A. No. 14 Q. Was it tied underneath? 15 A. Not that I saw. 16 Q. Did you notice if it was tied underneath? 17 A. If it was tied underneath, the fit would have 18 been a lot smaller. 19 smaller. 20 Q. You're familiar with hoodies; are you not? 21 A. Yes. 22 Q. And they have the draw strings so you can make 23 it either looser or tighter; is that correct? 24 A. Correct. 25 Q. Would you say this the average tightness as far 26 as your view of it was concerned? 27 A. 28 any tightness at all. The typical hoodie, The view would have been a lot I was say it's loose tightness. I didn't see PXTRANS-0 121 119 Do you recall that Officer Windham rode to the 1 Q. 2 hospital with you? 3 A. Yes. 4 Q. Did you talk to her while you were on the way? 5 A. Briefly. 6 Q. What did you talk about? 7 A. The description of the suspects and that was 8 basically it as I recall. 9 Q. Previous to talking to her about the description 10 of the suspects, had you talked to Officer Miller about 11 the description of the suspects? 12 A. Malcolm Miller? 13 Q. Officer Miller. 14 A. There's several Millers. 15 Q. All right. 16 Miller? 17 A. Malcolm Miller. 18 Q. He was first on the scene? 19 A. I don't even recall Malcolm Miller. 20 Q. Do you recall giving someone on the scene before 21 you rode in the ambulance a description of the 22 suspects? 23 A. 24 the scene. 25 Q. The same description? 26 A. I believe so. 27 Q. Did you give it to them simultaneously or 28 individually? Do you recall Officer Miller, M. I gave the description to several officers at I'm not sure 100 percent sure. PXTRANS-0 122 120 1 A. At least 2 to 3 were individually . 2 Q. And do you know if those descriptions or any of 3 them were broadcast over the police radio? 4 A. I didn't have a radio, 5 Q. Did you listen to the police radio at any time 6 between the time of the incident and when you arrived at 7 the hospital? 8 A. No. 9 Q. About how long were you at the scene before the so I don't know. I wasn't focusing on the radio. 10 ambulance took you to the hospital? 11 A. 12 wasn't long. 13 Q. 14 your incident that took place around the scene before 15 you deported? 16 A. No. 17 Q. Did you at any time learn that Mr. 18 been arrested 10 minutes or so after the incident? 19 A. 20 that night, but I 21 Q. 22 to the rear of the building 10 minutes or so after the 23 incident? 24 A. No .. 25 Q. While you were at the hospital, did you talk to 26 Sgt. Basa? 27 A. I spoke to Sgt. Basa, Sgt. Nolan, primarily. 28 Q. Did you give them descriptions of the incident I would estimate 10 minutes. It 5, 10 minutes. Did you become aware of any activity regarding No. I Pennymon had heard that several persons were arrested couldn't tell you where and for what. Nobody told you Mr. Pennymon had been arrested PXTRANS-0 123 "- 121 and the individuals who assaulted you? 2 A. I don't recall. 3 Q. Have you ever looked at the police reports 4 concerning this incident, particularly the report of an 5 Officer A. Manguy, M-A-N-G-U-Y? 6 A. 7 but I don't recall if I read his. 8 Q. 9 Officer Manguy, a portion of that report, would it help I looked at several reports, but just several, If I were to show you a copy of the report of 10 you to refresh your memory? 11 A. Yes. 12 Q. This is not a numbered page of the discovery. 13 The portion I intend to show the officer is highlighted. (Showing counsel.) 14 15 THE COURT: So the record is clear, Mr. Berry, 16 you're going to show the officer a single page 17 purportedly from a police report described in this 18 incident? I didn't hear all that. 19 MR. BERRY: I'm sorry. 20 THE COURT: So the record is clear, you're going 21 to show him a single page from a police report 22 purportedly about this incident? 23 MR. BERRY: That's my understanding, yes. 24 THE COURT: Okay. 25 (Showing counsel.) Go ahead. Showing it to counsel. 26 MR. BERRY: 27 Showing it to Mr. Thews. 28 Off the record. PXTRANS-0 124 122 (Whereupo n, there was an off-the-re cord 1 2 discussio n. ) MR. BERRY: 3 Your Honor and counsel, I did not have 4 propose to have these marked for identific ation. 5 a number of documents that may be used to refresh the 6 witness' recollect ion, unless the court or counsel wish 7 to have them marked for identific ation, I don't intend 8 to do so. THE COURT: 9 I I do not require exhibits that are 10 for documents that are only being shown to refresh a 11 witnesses recollect ion to be marked. 12 is fine with the court. So this procedure 13 MR. BERRY: Thank you. 14 THE COURT: Please proceed. 15 MR. BERRY: Let me show the report that I've 16 been talking about, and I've shown the other attorneys 17 and if you would take a look at that. Does that refresh your recollect ion as to any 18 19 descripti on you might have given? 20 A. 21 descripti on to several officers, so whatever they relate 22 to dispatch, I don't know. 23 Q. So that wouldn't help you one way or another1 24 A. No. 25 Q. All right. 26 or perhaps two officers -- no Deandria Vantray 27 (phonetic )? 28 A. I couldn't tell you because you've given Do you recall speaking to an officer No. PXTRANS- 0 125 123 1 Q. You know who that is? 2 A. Yes. 3 Q. You have no recollection of speaking with her? 4 A. With him, no. 5 Q. Him or genders. Would it refresh your recollection if I were to 6 7 show you a document which appears to have information 8 pertaining to the description of the individuals? 9 A. I don't recall talking to him, so looking at his 10 report would not refresh my recollection. 11 Q. 12 the document? 13 A. All right. Not at all. MR. BERRY: 14 So it doesn't help you to look at All right. Thank you. This, again, 15 for counsel's benefit is an unmarked document as far as 16 the description is concerned. THE COURT: 17 Well, since his testimony is that 18 it's not going to help him, doesn't matter. 19 have to identify it further. 20 MR. BERRY: You don't After the three individuals left you 21 in the driveway area at 1759 Seminary, did you report to 22 anyone what had just happened? 23 A. I did with several officers quickly. 24 Q. How soon after the incident did you do that? 25 A. Immediately. 26 Q. And did you do that before you moved the vehicle 27 that you were driving on to the street? 28 A. I believe one or two before and then possibly PXTRANS-0 126 124 one or two after. 2 Q. 3 first officer show up, if you know? 4 A. Could you repeat that? 5 Q. Sure. And how long after you made that report did the After you made the reports, 6 you made several 7 reports to different officers, but how long after you 8 made that first report of the incident to an officer did 9 a first officer show up? 10 MR. BELTRAMO: 11 THE COURT: I'm going to sustain that objection. 12 MR. BERRY: I'm going to try it a different way. 13 Two questions. Objection, vague. One, you made a first report to 14 an officer at some point; is that correct? 15 A. Yes. 16 Q. And then after that, an officer showed up in 17 response to not necessarily the same, but your report of 18 the incident; is that correct? 19 A. Yes. 20 Q. How much time elapsed between when you made that 21 first report and when the officer first showed up? 22 THE COURT: Now you're confusing me. Isn't he 23 making a report to an officer that showed up, initially? 24 How can he make a report before somebody shows up? 25 MR. BERRY: Let's see if I can clarify. The 26 second question I'm going to withdraw and ask you a 27 slightly different form. 28 After you -- did an officer show up before you PXTRANS-0 127 125 1 moved your car out to the street? 2 A. Yes. 3 Q. All right. 4 when you saw the three individuals who had assaulted you 5 walk away and when that officer showed up? 6 A. 7 looking westbound. 8 first officer arrive on scene, 9 a matter of 30 seconds or so. And how much time elapsed between As soon as McDaniel fled out of view, I was All right. I looked eastbound when I saw the so it was at most within And when you saw that officer, could 10 Q. 11 you tell where the three individuals who had assaulted 12 you were? 13 A. 14 them was entering the rear parking lot of the complex. 15 Q. 16 anyone being arrested in connection with the assault 17 upon you? 18 A. 19 charges. 20 hospital. 21 Q. 22 there were a number of people arrested, but you didn't 23 know when they were arrested or for what purpose? 24 A. Exactly. 25 Q. Okay. 26 Jason Beasley, B-E-A-S-L-E-Y? 27 A. 28 who he was. I know the last time I -- last location I saw Okay. Did you at any time become aware of I heard several people were arrested for various I don't know who and where. I was at the So while you were at the hospital you heard Do you know an individual by the name of I heard of him now, but at the time I don't know I couldn't tell you exactly who he is. PXTRANS-0 128 126 Do you recall being shown a photo line-up 1 Q. 2 contain ing a photogra ph of Jason Beasley? 3 A. No. 4 Q. Looking for counsel 's benefit , 5 page 462 of the discove ry. 6 way down the page. And it is the third of the (Private discuss ion held off record.) 7 MR. BERRY: 8 9 I'm looking at Would it refresh your memory if I showed you a documen t which refers to the identi£ ication 10 of Jason Beasley? 11 A. 12 like. 13 Q. 14 memory? 15 A. It wouldn' t. 16 Q. Okay. 17 scene where you were assaulte d, did you observe a number 18 of Oakland police officer s come into the area? 19 A. I saw several . 20 Q. I'm sorry? 21 A. I saw several pull up to the scene. 22 Q. By several, how many would you say? 23 A. I saw maybe 5. 24 Q. Okay. 25 you, what was the height of the one that fired the gun 26. at you? 27 A. 28 5 ' 6" , I don't know even know what Jason Beasley looks So you're saying it wouldn' t refresh your I don't even know who he is, During the time that you were at the Of the three individ uals that assaulte d He was the shorter one of the three. So about 5 ' 7" . PXTRAN S-0 129 127 1 Q. What was the height of the other two? 2 A. I would say about six feet or so at the time. 3 Now I would say maybe a little taller. 4 Q. 5 feet or so and the other two were approxim ately the same 6 height and several inches shorter; is that correct? 7 A. No. 8 Q. One was probably about 5' 6", 9 other two were close right around six feet or so. So one person was noticeabl y taller, about six Q. 11 put his weight at? 12 A. 13 at the time. 14 Q. 15 you, he was about six feet tall? 17 And the The one that was six feet tall, what would you 10 I'd say both of them are right around six feet All right. So the one with the gun that shot MR. BELTRAMO: 16 5 .' 7". Objection , misstates the testimony . 18 THE COURT: Sustained . 19 MR. BERRY: I'm asking the question. Was the 20 one that shot you about six feet tall? 21 A. No. 22 Q. How tall was that person? 23 A. 5'6", 5'7". 24 Q. How much did that person weigh? 25 A. I would say maybe 160. 26 Q. Was there anything distincti ve about his face? 27 A. Before or after the scarf came off? 28 Q. I'm sorry? PXTRANS- 0 130 128 A. Before or after the scarf came off? 2 Q. Before. 3 A. He was clean cut. 4 features. 5 Q. 6 face after the scarf came off? 7 A. His ears. 8 Q. What about his ears? 9 A. Pointed ears. Was there something more distinctive about his THE COURT: 10 He had distinctive Mr. Berry, I'm not going to limit I'd just like to know 11 your cross-examination at all. 12 how much longer you think you have? MR. BERRY. 13 I have quite a bit more. My Court Reporter 14 going to take just a 5 minute break. 15 needs a break. 16 minutes. 17 We're going to take a brief 5 minute recess. 18 (Whereupon, there was a break taken.) We've been going for an hour and 5 The defendant can remain in the courtroom. THE COURT: 19- We're We're back on the record. 20 McDaniel, Kincaid and Pennymon. 21 present. People v All parties are 22 Mr. Berry, please resume your cross-examination. 23 MR. BERRY: 24 Officer, do you know a Thank you. Office~ John McDonell, 25 D-0-N-E-L-L? 26 A. Not offhand. 27 Q. Did you ever tell any officer that you were 28 assaulted by two male blacks wearing all dark clothing? PXTRANS-0 131 129 1 A. No. 2 Q. The scarf that you saw, did you ever see it 3 after the incident? 4 A. No. 5 Q. Did it come off of the individual that was 6 wearing i t at some point while you were struggling with 7 him? 8 A. Yes. 9 Q. Do you know what happened to it? 10 A. No. 11 Q. Would you be able from what you saw to describe 12 the length of the scarf if it were stretched out? 13 A. No. 14 Q. Do you know if that scarf had any blood on it? 15 A. No. 16 Q. You suffer from bleeding both on your arm and on 17 your head; is that correct? 18 A. Yes. 19 Q. Was there a fair amount of blood? 20 A. Yes. 21 Q. In your struggles did it -- did the blood come 22 in contact with any of the three individuals? 23 A. I assume, but I'm not sure. 24 Q. Did it come in contact with all of the three 25 individuals? 26 A. I don ' t 27 Q. Did you ever inquire to find out if your blood 28 had been found on any or all of the three individuals know. PXTRANS-0132 130 1 that attacked you? 2 MR. BELTRAMO: 3 THE COURT: 4 THE WITNESS: 5 Objection, relevance. Overruled. You may answer. I may have talked about it, but I don't have the answer for you. MR. BERRY: 6 There came -- after the incident on 7 January 21st of this year -- on the 31st of January, 8 were you asked by a police officer to sign a medical 9 release? 10 A. I did by Sgt. Brandwood, I believe, but I don't 11 know when. 12 Q. 13 people who had attacked you? 14 A. No. 15 Q. On January the 24th at approximately 3:00 in the 16 afternoon, were you interviewed by Sgt. Brandwell -- 17 Brandwood about the incident? 18 A. 19 believe three photo line-ups. 20 Q. 21 discussion of the photographs? 22 A. No. 23 Q. Did you ever give any instruction to anyone that 24 the photographs should be a depiction of individuals 25 wearing what appeared to be a hoodie? 26 A. Not at that time. 27 Q. The photograph that you identified Mr. Pennymon 28 in is altered so that it has a hoodie on each of the Did you discuss at that time the identity of the I was interviewed, yes. And I was shown I Prior to that interview, was there any PXTRANS-0133 131 1 individuals depicted; is that not true? 2 A. Yes. 3 Q. At whose instructions or under what 4 circumstances were those hoodies put on the individuals' 5 photographs? 6 A. On February 21st 2013. 7 Q. Who did that; not why did they do that? 8 A. I requested it. 9 Q. So you had previously been shown photographs 10 that you did not identify Mr. Pennymon? 11 A. 12 I don't know exactly when, after or before. 13 did request specifically for a hoodie. 14 Q. 15 hear and who did you hear it from? 16 A. 17 second photo line-up 'cause the day of the incident, I 18 didn't pick anybody. 19 Q. So whose idea was it to put the hoodie on? 20 A. It was mine. 21 Q. When you made the identification of the 22 individual in the photographs with the hoodies drawn in, 23 was that recorded? 24 A. 25 whether it was a physical line-up or a photo line-up. 26 Q. 27 correct? 28 A. I heard that he was in the initial line-up, but Well, you say you heard something. From Sgt. Brandwood. Yes. So -- but I What did you I believe it was after the I'm the one that requested the hoodie, But there never was a physical line-up; is that No. PXTRANS-0 134 132 Putting that affirmatively, there was not a 1 Q. 2 physical line-up? 3 A. Correct. 4 Q. Thank you. Do you recall that you were admitted to Highland 5 6 Hospital on the 21st of January of 2013, at 6:49 in the 7 afternoon or evening? 8 A. Yes. 9 Q. I'm sorry? 10 A. Yes. 11 Q. Okay. 12 from the hospital on that same day at 10 -- 9:59 just 13 before 10:00 o'clock? 14 A. I thought it was later. 15 Q. All right. 16 if you were to see the hospital record? 17 A. 18 later, so I don't know what time they put down there. 19 Q. Well, how long do you think you were there? 20 A. It was at least several hours. 21 midnight that I walked out of there. 22 discharged, but just because you're discharged at this 23 time doesn't mean you actually walk out of the hospital 24 at this time. 25 o'clock in the morning. 26 Q. 27 Vicodin tablets? 28 A. Now do you recall you were discharged Would it help to refresh your memory I don't know. I'm telling you I believe it was It was passed So maybe I was I recall leaving after midnight or 1:00 Do you recall that you were furnished with I don't recall specifically. PXTRANS-0135 133 Q. Did you get a prescription or did they give you 2 a container with the medicine in it? 3 A. I don't recall. 4 Q. Do you recall that when you were examined, the 5 doctor found that you were 6 distress and well appearing? 7 A. I don't know. 8 Q. You were off work for a week? 9 A. Yes. 10 Q. In your description of Mr. Pennymon or the man 11 that you now have identified as Mr. Pennymon, did you 12 ever describe to any of the investigating officers that 13 the iridividual was wearing designer jeans that were 14 light blue in color? 15 A. 16 sure when I give the description it was light blue jeans 17 on the 21st. 18 Q. What's "a thumper"? 19 A. My understanding is a firearm. 20 Q. Was that word used at the time that this 21 incident occurred? 22 A. 23 nicknames for firearms. 24 Q. 25 approached you until the time that they left you, what 26 was the time that elapsed? 27 A. I couldn't tell you exactly. 28 Q. You don't know? cooper~tive, in no acute I may not have used "designer jeans," but I'm Either "thumper" or "trapper." They're both The incident from the time that the three men PXTRANS-0136 134 1 A. No. 2 Q. You have no estimate? 3 A. Several minutes. 4 Q. The distance of the driveway from the parking 5 area to the gate, I think you said it was about 200 6 feet? 7 A. That's my estimate by looking at it. 8 Q. Are you presently a member of the gang unit at 9 the Oakland Police Department? 10 A. Yes. 11 Q. How long have you been a member? 12 A. Ever since June of this year. 13 Q. Were you a member back in January of this 14 year? 15 A. 16 June. Q. It was a different name. All right. It was renamed in But in January of in year it was 18 called the gang unit; is that correct? 19 A. 20 Force. 21 Q. 22 member of that elite organization? 23 A. Two years. 24 Q. During that period of time, did you have 25 occasion to work with gang intelligence? No. It was called the Gang Intelligence Task Now it's just a gang unit. Okay. And how long in January had you been a 26 MR. BELTRAMO: 27 THE COURT: What's the relevance, counsel? 28 MR. BERRY: Relevance is his knowledge or lack Objection, relevance. PXTRANS-0 13 7 135 1 of knowled ge of this particu lar -- these particu lar 2 individ uals and general ly speaking any gang activiti es 3 related to the area where the inciden t occurre d. 4 THE COURT: Well, he said that he did not know 5 any of these three individ uals before the inciden t, 6 didn't know who they were. 7 as an expert concern ing the gang clause, so I'm going to 8 sustain the objectio n. MR. BERRY: 9 10 And he's not being offered Let me ask another question . Were you aware before January 21st of this year 11 of a gang or the name Sem or Seminar y associa ted with a 12 gang in that area? MR. BELTRAMO: 13 14 Objectio n, relevan ce, beyond the scope. 15 THE COURT: It is beyond the scope. 16 MR. BERRY: No. 17 Sustaine d. That Mr. Pennymo n was a member of a gang before January 21st of this year? 18 MR. BELTRAMO: 19 THE COURT: Same objectio n. Could go to the credibi lity of his 20 identifi cation, so I'm going to allow it .. You may 21 answer. 22 23 THE WITNESS: I didn't know Pennymo n, so I couldn' t answer you. 24 MR. BERRY: I'm sorry. 25 A. I didn't know. 26 Q. Okay. 27 the area where your car was stopped in front of the gate 28 when the three individ uals approach ed you? I mean I don't know him. Was there any -- lighting specific ally in PXTRANS-0138 136 1 A. 2 from where. 3 Q. 4 it from in front? 5 A. 6 There was some lighting. 7 Q. 8 left it on the seat while it was on speaker phone, is 9 that correct. There was some lighting, but I couldn't tell you Was it from over head, was it from behind, was Like I said, I couldn't tell you from where. Your phone that you left on and you think you 10 A. I'm not sure it was on speaker phone. I just 11 know it was on. 12 Q. 13 calls at that time were recorded? 14 A. I know it wasn't recorded. 15 Q. It was being recorded? 16 A. It was not. 17 Q. How about on the other end with Officer 18 Miller? 19 A. I don't know. 20 Q. While you were at the hospital, how many 21 photographs were you shown, 22 A. Just six. 23 Q. You worked at the coliseum watching or attending 24 the Warriors game; is that correct? 25 A. I was working the Warriors game. 26 Q. How long did you work that day at the 27 coliseum? 28 A. Do you know if that call or any portion of the if you know? 5 or 6 hours. PXTRANS-0139 137 1 Q. What time did you start? 2 A. I don't know. 3 Q. But all together six hours? 4 A. Roughly, yes. 5 Q. And you were on your way where at the time you 6 received the call to go to the Seminary street address? · 7 A. 8 home. 9 Q. Before I responded to Seminary, I was on my way All right. And when you received the call to go 10 to 1759 Seminary, were you fatigued at that time? 11 A. No. 12 Q. You'd be working six hours plus the travel time; 13 is that correct? 14 A. That's a short day. 15 Q. When you went in the property at 1759 and drove 16 down the driveway, was there any way that an onlooker 17 can distinguish you from somebody that had business 18 there as opposed to being a trespasser? 19 MR. BELTRAMO: 20 THE COURT: Objection, speculation. Well, it does seem to call for 21 speculation as to what somebody else might perceive, so 22 I am going to sustain the objection. 23 description of the vehicle he's in and what he did 24 speaks for itself. MR. BERRY: 25 I mean his On the 21st of January this year, 26 did you see or have any contact with an individual by 27 the nickname of Taco? 28 A. I don't know who Taco is. PXTRANS-0 140 138 1 MR. BERRY: I think those are all my questions. 2 THE COURT: Thank you, Mr. Berry. 3 Any redirect examination, Mr. Beltramo? 4 MR. BELTRAMO: 5 THE COURT: 6 Off the record. (Private discussion held off record.) 7 THE COURT: 8 I 9 Let me just have a moment. So we Ire back on the record.' am going to not make you answer that question yet, Mr. Beltramo, because it looks like we will have 10 some more questioning of this officer. 11 we will be in recess this evening. Does any counsel have a problem with getting 12 13 here at 9:30 to start our preliminary examination? 14 MR. BELTRAMO: 15 MR. THEWS: None. 16 MR. BERRY: No. 17 THE COURT: Okay. 18 19 It's 4:39 and so No. So we're going to start back at 9:30. Officer Karsseboom, you are ordered to return 20 back at 9:30 back to this department and, Mr. Beltramo, 21 this isn't a loaded question, but are you going to be 22 asking for a holding order as to the complaint, the 23 second amended complaint, is written. 24 MR. BELTRAMO: No. There's some alterations to 25 it, but no substantive changes. 26 additional charges. 27 some enhancements. 28 THE COURT: In other words, no I did see some mischarging as to Okay. Thank you. We are in recess. PXTRANS-0 141 139 1 9:30 tomorro w mornin g. 2 Thank you, counse l. Thank you, Office r. 3 4 ---oOo --- 5 6 STATE OF CALIFORNIA ) 7 COUNTY OF ALAMEDA ) ) ss. 8 9 I, ROSALYN RUSSAW-MORRIS, Certifi ed Shortha nd 10 Report er, hereby certify that the foregoi ng is a full, true 11 and correct transc ript of my stenogr aphic notes of the 12 testimo ny given and proceed ings had in the above- titled 13 action. 14 15 16 DATE: August 2, 2013 17 18 19 20 ROSALYN RUSSAW-MORRIS C.S.R. No. 6763 21 22 23 24 25 26 27 28 PXTRA NS-0 142