Helm?[/ch - COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, SS SUPERIOR CON Q,q/ Docket 3/ (go COMMONWEALTH vs. (Trial - Court and Jury) DARRELL JONES BEFORE: BYRON, J. Brockton Superior Court 72 Belmont Street Brockton, Massachusetts 'September 29, 1986 "a FILED - . APPEARANCES . ?gnwu nvuoun-lg?um Kevin Cunningham, Esq. Assistant District Attorney 32 Belmont Street Brockton, Massachusetts 02401 "a Kenneth Elias, Esq. .North Main Street Brockton, Massachusetts 02401 RICHARD L. BENDIXEN - Official Court Reporter In.) RICHARD L. BENDIXEN Official Court Reporter COMMONWEALTH VS DARRELL JONES 29. 1986 ESWORN TESTIMONY OF -E- EDirect 1 Exhs -E- Exhs 20A-20J1Cross -E- . lRedirect ISWORN TESTIMONY OF 1Direct. -1- a lCross lRedirect a TESTIMONY OF 1Direct -E- ?ICross -: [Redirect ESWORN TESTIMONY OF lDirect lCross SIXTH DAY Side.Bar: JOSEPH W. SMITH By Mr. Cunningham Side Bar: Side Bar: Side Bar: Photographic Array Lineup Photographs Side Bar: Side Bar: Video Interview Transcript of Video Side Bar: By Mr. Elias Side Bar: Side Bar: Side Bar: By Mr. Cunningham ANDREW AUGUSTINE By Mr. Elias Side Bar: By Mr. Cunningham_ By Mr. Elias Side Bar: VINELLE DUKES By Mr. Elias By Mr. Cunningham By Mr. Elias EVELYN ANDERSON By Mr. Elias Side Bar: By Mr. Cunningham Side Bar: PG LN RICHARD L. BENDIXEN - Official Court Reporter 29, 1986 DAY (Monday, September 29, 1986, Sixth Day) THE COURT: Good morning, ladies and gentlemen. JURORS: Good morning. THE COURT: Hope all had a nice weekend. MR. CUNNINGHAM: Good morning, your Honor. 5 THE COURT: Good morning. MR. ELIAS: Good morning. Judge THE COURT: Mr. Elias. Ready to proceed? MR. CUNNINGHAM: Yes, your Honor. I am. If we may approach side bar first, your Honor?? THE COURT: All right. Side Bar: MR. CUNNIKGHAM: Judge, I have the edited e, THE Have you seen them? LIAS: Just gave them to me. Seem to' 3 D: THE COURT: Do you have one for me? MR. CUNNICGHAM: Yes, I do, sir. RICHARD L. BENDIXEN - Official Court Reporter til COURT: Do you have one for the jurors? At the appropriate time, of course. MR. CUNNINGHAM: Yes. MR. ELIAS: I think what the purpose of this is, we?ve got to have somebody dry-run this to make sure whoever does this knows what they're doing, because Ben's not going to do it. THE COURT: I thought you were going to do .it. MR. CUNNINGHAM: I have someone from my office who works with the video cameras. He's done it on other machines, but not this one. THE COURT: Why not? I've been in here since 8:30 at least. MR. CUNNINGHAM: I?ve been here: he hasn?t. THE COURT: Well, what's the matter? You have got to get here in morning if you are going to try cases. We have to have the preliminaries, anyway. I don't understand it sometimes: it's necessary to be here. RR. CUNNINGHAM: I realize that, Judge. We went over it On Friday. I spoke with Mr. Elias, and he would prefer to have a dry run the machine, too. MR. ELIAS: I think you have to before you RICHARD L. BENDIXEN - Official Court Reporter Ir is 23 24 25 show it to them so that they don't listen things we spent hours culling out. MR. CUNNINGHAM: I went over it with him and I spoke to Kenny and he would prefer a dry run. can't do it. MR. ELIAS: He's never done it. How do we know MR. CUNNINGHAM: He's done it on the machines over there. MR. ELIAS: If the thing blows and goes before the jury, where are we after all this time? THE COURT: That's right, we may have a mistrial and have to start all over. Quite frankly, this has been poor preparation right along. Let's get on. Okay? Call your witness. Do you have a witness? MR. CUNNINGHAM: Yes, yourM. 3 pm 1985?? Detective SmithISWORN TESTIMONY OF W. OralTHE CLERK: Do you solemnly swear that the evidence you shall give to the Court and jury in the issue now depending between the Commonwealth and the defendant shall be the truth. the whole RICHARD L. - Official Court Reoorter FA a a truth nothing but the truth, so help you God? THE WITNESSCUNNINGHAM: Good mbrning, sir. Would you identify yourself for the jurors, the Court and the record? Joseph W. Smith, police officer for the City of Brockton. And how long have you been a police officer? 20 years. I And what's your current rank, sir? I'm patrolman assigned to the time Detective Bureau. ?How long have you been a detective? 18 years. Detective, directing your attention to November 5th, did you have an occasion to become involved with an investigation into the shooting of G?illermo Rodriguez? Yes. And could you tell us how it came to be that you were involved with this investigation? It was assigned to me. Originally it was assigned; RICHARD L. BENDIXEN - Official "our? ?enorter 1. I . . gnaw-w _12 13 14 to Detective Donald LaGarde, and he had a commitment that was going to take him out of the city for a couple of days, so it was assigned or reassigned to me. And is it fair to say that you became involved with the investigation after the initial shooting, a day after the initial shooting? The third day I believe after the shooting. And did you have an occasion to know the victim Guillermo Rodriguez? Yes. How did you know him? I had arrested him before. For what? He was charged with distribution oi Class B, cocaine. Did you become aware of that Guillermo Rodriguez actually died? To my knowledge, several days after the initial shooting. New, in furtherance of the investigation, Detective, did you have an occasion to speak to any of the witnesses in this.case? Yes, I did. With whom did you Speak? RICHARD L. BEKDIXEN - Official Court Reporter . . spoke first with Lisa Pina at her apartment on North Warren Avenue. - When was that, if you remember? (No answer) If I were to suggest to you the date of November 17th. would that refresh your memory? Possibly. Was anyone else present when you spoke with Lisa Pine? Yes. Who? Detective Paul Washek. Anyone else? No. And could you tell us-what you spoke to Lisa Pina about? I spoke to her regarding any observations she might have made on the night of the shooting. at the time of the shooting, because I had information she was in a motor vehicle parked in cf?se proximity to where the shooting actually occurred. And did you speak to her as to her observations? Yes. Of that evening? RICHARD L. BENDIXEN Official Court Reoorter mun-involved in it, whether she wanted to be or not, .you don't have to associate with these people, I Yes. What did she say to you about those observations? She originally said that she didn't know anything, she didn't see anything, she didn't want to become involved in this. I told her that she was due to the fact that she was where she was. She said she didn't want to become involved, she said do, you don't go to Pete's, meaning MR. ELIAS: Judge, I'm going to object to the testimony. It's clearly a hearsay sitnation. If it's an identification thing, we ought to get to that, your Honor. THE COURT: What happened when she failed to. identify at that ime? MR. ELIAS: I'm not sure that's where we're headed. THE COURT: So far the witness said she didn't see anything. Okay? That means a failure o??identification at that time: MR. ELIAS: I move to strike it anyway, judge. THE COURT: Motion to strike is denied. Get to the heart of the matter. RICHARD L. BENDIXEN - Official Court Reoorter MR. CUNNINGHAM: Yes, your Honor. Did you have any further conversation with Lisa Pina as to any photographs of the persOn who shot Guillermo Rodriguez? Yes. And could you tell us what that conversation was regarding those photographs? I said I'm going to put down a series of photographs, l?d like you to look at them, I'd like you to pick out the man who shot Guillermo Rodriguez. What did you do then? I laid the photographs down on the couch. How many photographs did you put dOwn? Six. -What did those photographs depict? Black males in their early twenties, late, early to middle twenties. When you put those photographs down, did you say anything further to Lisa Pina? Igasked her if she would look at the photographs. When you asked her that, did you make any observations of Lisa Pina? She turned her head away from the photographs and said she didn't want to look at them. RICHARD L. BENDIXEN - Official Court Reporter What happened next? Isg?id I'm going to leave them here until you look at the pictures, that's the least you can do is lookvat them. Did she do something then? She looked at them and picked up one and said it's not him and she picked up another and said it's not him, and then she looked at the remaining four and she didn't do anything for awhile and I said, well, can you pick him or not, and she reached down and she picked up-the defendant's photegraph and slid it off to the side to-me. MR. ELIAS: Judge, I?m going to object to his response that she picked out the defendant's .photograph and slid it to him. She picked a photograph. Isn't it for the jury? THE COURT: Yes, it's for the jury to decide whose photograph it is. - MR. ELIAS: I also would object at this time, Judge, to his testimony, as it appears to me t??be,being offered as the truth of the matter when in fact Lisa Pina said I did not identify anybody as the one who did the shooting. It seems to me the most he's doing now is impeaching her testimony and we ought to be aware of that. RICHARD L. BENDIXEN - Official Court ?eoorter THE COURT: I understand that but I don?t know what's coming. though. I MR. ELIAS: I thought it's already ended. THE COURT: Let's see i: there is any identification. She picked up a photograph? She picked up -- she slid a photograph over to me and I asked her is this the man that did the shooting and she said I picked him out. didn't I. Did you have any further conversation of Lisa Pine: regarding that matter at that time? Concerning the identification? Yes. No. And the same day, Detective, November 17th, 1985 MR. ELIAS: Judge. I'm again going to ask for a limiting instruction right now that this .jury might know that Officer Smith is not making an identification. He is impeaching what another witness said. who said I did not pick out anyone. He's also told us, he also told us that this person, Lisa Pina, identified a photo, she picked it out and slid it over to him he said, he asked if it was him and she said I picked him out, didn't There is some evidence RICHARD L. BENDIXEN Official Court Reporter identification. MR. ELIAS: I don't quarrel with that, Judge. THE COURT: All right. MR. ELIAS: What I'm saying is she testified she did not identify anybody. All he can do is impeach her, he can't establish the fact that the probative value of MR. CUNNINGHAM: I object to this, your Honor. 9 THE COURT: If you want any discussion along that line, I'll hear you at side bar. MR. ELIAS: Thank you. Side Bar: MR. ELIAS: Judge, Lisa Pina's testimony was. as I recall it, he asked me to pick out Diamond or Darrell Jones and I did and said. here, that's him. never indicated he was the person she saw do the shooting. He's trying to establish through this witness. who isn't the identifying witness. who wasn?t there, that she picked out the one that did the shooting. THE COURT: She said she picked out Diamond's picture, but then said she would not say RICHARD L. BENUIXEN Official Povrt 'MR. ELIAS: So the most he can do is impeach what she said. He can?t be offering it for the truth of what was done. She disagrees with him, in addition to which I will offer her grand jury testimony corroborating her prior inconsistency. THE COURT: What do you say to that, Mr. Cunningham? MR. CUNNINGHAM: He's testifying to the .events that happened as he recalls them. THE COURT: I know what he's testified to. The question is whether it's probative of substantive evidence or just to impeach the credibility. That?s what we're discussing now. MR. CUNNINGHAM: I believe it's going to impeach her credibility in the fact THE COURT: All right, then you agree it's only admissible'to impeach her credibility, is that it? MR. CUNNINGHAM: Portions are and portions (THE COURT: You are talking the identification? MR. CUNNINGEAM: Actual identification, yes, I'm offering it to impeach -- THE COURT: That's all Mr. Elias is asking RICHARD L. BENDIXEN - Official '?r'mr't -make a ruling on. MR. LIAS: At this time, yes. THE COURT: Want me to say anything to them now? MR. ELIAS: Just that they should accept it for that reason and not as probative value of it. (END OF SIDE BAR CONFERENCE) THE COURT: Mr. Foreman and ladies and gentlemen of the jury, at the time that Lisa Pina testified. it is my recollection that she said that she picked out Diamond's picture and that she would not say it is the person that she saw who shot Rodrigues. That?s my recollection. Of course, it is your recollection that counts. Detective Smith says or gives us testimony to the contrary, and this testimony is being offered to impeach the credibility of Lisa Marie Pina insofar as she denied identification of a photograph, and it is for that reason that this eyidence is admissible and presented to you. Detective, directing your attention to November 17th, again, did you have an occasion to speak with an Edna Levine? YES. RICHARD L. BENDIXEN Official Court Reporter And where did you speak her? I believe it was Bo Bo Watson's apartment. Where was that? 45 Fuller Street on the second floor. Is that in the City of Brockton? Yes. Could you tell us what you did when you first arrived at that address? Knocked on the door. We were allowed into the living room. Detective Washek and myself again told Edna and Bo Bo that I had some photographs I'd like to show them. i said we had just come from Lisa Pina's apartment and Lisa had -- MR. Judge, I'm going to object to any of this conversation he had with Lisa that he is now telling to Edna and Bo Bo. THE COURT: The objection is sustained. Did you have an occasion to have a conversation with Edna Levine regarding the events of November 17th, 1935? Yes. Did you speak to her regarding her observations? Yes. Of the shooting that evening? Yes? RICHARD L. BENDIXEN Official Court Reporter . .Would you tell us what the she said regarding her observations of any individual that she saw that evening? She said she saw two men come across the street, stop at the back of the car, one man had a gun, the other man fell down, the remaining man, the shorter of the two, turned and ran up Ward Street. Did you have an occasion to show Edna Levine any photographs, Detective? Yes. Approximately how many photographs? Six, I believe. I What did those photographs depict? It was the same series of photographs that I had showed Lisa Pina, black males, young black males. Did you ask Edna Levine to do something regarding those photographs? I asked if she could pick out the man she saw running from the scene. What if anything did she do at that time? She picked out a photograph. - MR. ELIAS: Judge, may we see you at side bar? I would ask for the same ruling that you made earlier on Lisa Pina. THE COURT: You may approach the side bar.? RICHARD L. BENDIXEN Official Court ?enort?r 9..) Side Bar: THE COURT: This is not This is not contrary to what Edna Levine testified to. MR. ELIAS: Edna said she never saw the person. she froze and looked straight ahead, never picked out a photograph. He asked her to pick cat a picture of Diamond, and she did. THE COURT: She was asked to pick out a photograph. asked if MR. D1 LIAS: She never was asked ifgthat was the man that did the shooting: she said I can't say that, and he just said he asked her to pick out the man who did the shooting and never said that. THE COURT: But there was testimony that 'someone in the car said Diamond has a gun. MR. ELIAS: All right, THE COURT: She froze in the car. MR. ELIAS: Right. THE COURT: She heard the victim say help me: help me and nobody understood Spanish. MR. I know. Terri says the same thing, too. THE COURT: I know it. That's my first opportunity to make the comment, though. RICHARD L. BENDIXEN - Official Court Renorter .wrmd MR. ELIAS: I think you?ll find Edna Levine said she never picked him out, she knew Diamond. THE COURT: She identified the photo as -- MR. ELIAS: Darrell Jones. Diamond. THE COURT: What is this witness going to say? MR. CUNNINGHAM: That she picked out a photograph of Darrell Diamond Jones and that .photograph was the person she saw shoot Guillermo Rodriguez. THE COURT: Okay. MR. ELIAS: The same instructions? THE COURT: Yes same instructions. MR. CUNNINGHAM: I think Smith's testimony corroborates the fact that they picked out his picture. MR. ELIAS: That's all it does. THE COURT: What picture? MR. CUNNINGHAM: The defendant. MR. ELIAS: He can't make -- of COURT: Only Edna. The other one didn't: know it anyway. Lisa didn?t know either. so it would have been identification of the person who shot -- MR. ELIAS: Except Edna Levine says I RICHARD L. BENDIXEN Official Court Reporter rnever saw the guy, i know Diamond, that's Diamond, is all she said. THE COURT: Okay. All right. I thought in Commonwealth vs. Day MR. ELIAS: Commonwealth and Day says this testimony has no probative value whatsoever. When' he is the witness witnessing an identification, when it's denied by other people that made it -- MR. CUNNINGHAM: I think we have a little twist in here. In Day the witness originally identified the defendant and denied it on the stand and the police testified to impeach them and? did, in fact. Here they're saying they made the identification but Lisa said she made it.because it was a lucky guess and MR. ELIAS: She didn't say it was a lucky guess; she said I can't even say that's the guy that did the shooting. THE COURT: My memory is that in Day this has not yet been decided. hR. ELIAS: think it has. I think it's clearly -- THE COURT: Okay, I'll make the same ruling here. (END OF SIDE BAR CONFERENCE) BENDIXEN - Official Court Reporter Detective, could you tell us what happened when you showed a photo array to Edna Levine on - November 17th, 1985? She picked out a photograph. And what conversation did you have with her -regarding that photograph? I asked is this the man that you saw running from the scene, and she said yes. MR. ELIAS: Excuse me, I would THE COURT: Just a moment, please. Ladies and gentlemen of the jury, again it's my recollection that Edna Levine testified that she did not see who this person was, she froze in the car, that's my memory of what OCCurred; and she also said she was asked if she knew Diamond- Jones, and she said, yes, and identified this photograph. IThat's my recollection of her testimony. Obviously, Detective Smith's version is different, it's contradictory, and this evidence is admitted to impeach her credibility on that issue. Continue. Did you have any further conversation with Edna Levine on November 17th, 1985 regarding those photos? RICHARD L. BENDIXEN - Official Court Reporter new asked yes, I did have some turther conversation. And could you tell us what that conversation was just regarding those photographs? (No answer) Or excuse me, regarding any identification that she made? She told me that she did not see the man full-face, that she saw the man's profile when he turned to run up the street and that she recognized his profile. MR. CUNNINGHAM: It I might approach the witness, your Honor? THE COURT: Yes, you may. Detective Smith, I show you that packet and ask if ?you can look inside and if you recognize its contents. Yes, I do. What are the contents of that package? It's six photographs of black males shown to Levine and Pina and Watson. MR. ELIAS: Judge, may we approach the side bar for a short discussion? THE COURT: Yes. sir. Side Bar: RICHARD L. BENDIXEN - Official Court Reporter MR. ELIAS: Judge, other than some of the information that appears, such as the Policel Department, City of Brockton, on the front of all of them, and the information on the back. I probably don't have a problem with the fact that it's got the police department on the front, but I think the back ought not to contain names or in some cases somebody's friend, nicknames and that sort of thing, if they can be sanitized. THE COURT: Those are ordered to be sanitized; otherwise they are admitted. Is the picture purported to be the defendant' in here? MR. ELIAS: Yes, and his name is written on the back of it. The judge just identified him, we: picked them up. THE COURT: It's rare that I can do that. Do you want his name off there? ELIAS: I think they all should be blacked out on the back before they go to the jury. THE COURT: All right, they are admitted. And the clerk will take care of that before they go to the jury. (END OF SIDE BAR CONFERENCE) RICHARD L. BENDIKEN - Official Court 2e?nrt=r Detective, showing you the photographs in exhibit 19, if you oould just show the jury the photograph that Lisa Pine and Edna Levine picked from that array. (Doing so). 'Perhaps if you stepped down and showed the jury, with the Court's permission. (Did so)- THE COURT: Did you take that photograph? No, I did not. THE COURT: 'Were you there when it was taken? No, I was not. Detective, at some point after November 26th, 1985, did you have an occasion to go to D'Angelo's on Montello Street in Brockton and take measurements of that area? Ygsi I did. And did you go there with anyone else? The first time I went alone. The first time I went I believe I was alone the first time; the second time I went with Trooper Downey. ?gg; -: ??o?vh ?-gvh?u-u-hr-v T. nt'v??'vt'v I23 you recall when that was? MR. ELIAS: Which one? When either event took place. The first time probably six months ago and the most recent time, last week, I believe. What distance What distances did you take when you went to that area, Detective? I paced in paces from Pete and Mary's on the corner of Montello and Franklin to the Colonial Spa. Walking, it would be westerly toward Main Street. And what was the distance that you had paced off? Approximately two hundred yards. Did you take any other distances of that scene? No. Now. directing your attention to November 26th, 1985, did you have an occasion to see to Terri Starks regarding the investigation into the shooting of Guillermo Rodriguez? Yes. and where was it you first spoke with Terri Lynn? The conversation took place in the police station in the conference room on the second floor. And what was that conversation regarding? Regarding any observations she might have made the n'rpu'hp'n 1' nag: a: ?-u?mL-w Hanan?wow night of the shooting and any identification that she might possibly be able to make. And did you in fact have a conversation with her regarding her observations of November 11th, 1985? Yes, I did. And. Detective, did you have an occasion to show Terri Starks some photographs? Yes, I did. Approximately how many photographs did you show her? I believe ten. ten to twelve photographs, color Polaroid photographs. What did those photographs depict? Black males between the ages of late teens to mid twenties. 'Did she do something regarding those photographs? Yes. -What was that? She picked out a photo. Before she picked out a photographsomething? She related to me what she had MR. ELIAS: "Yes THE COURT: Judge, I suppose the answer is "Yes" or "no".r Detective._ pr?gARn ?R'Ffbf??l'vwm g'l Far-vi- Dg??v'h?fhv Yes. What was that? If she would relate to me the events of the evening of the shooting and what she had observed. And did she in fact do that? Yes. After_she represented those facts to yousomething? Take a look at the pictures, see if she could identify the man who did the shooting. And in response to that request. did she do something? I She picked out a paragraph. And whose photograph was that? MR. ELIAS: Objection. THE COURT: Sustained. MR. CUNNINGHAM: If I might approach the witness, your Honor? THE COURT: You may. Detective, I show you a package and I ask if you can identify that for us. Yes. And what do you recognize it to_be? That's the lineup I showed to Terri Starks. THE COURT: Did you take any of those RICHARD L. BENDIXEN Official Court Peoorter photographs?- I don't believe I did, your Honor. THE COURT: Were you present when any of them were taken? I don't believe I was. MR. CUNNINGHAM: Commonwealth moves to admit these as Commonwealth exhibit 20, your Honor, MR. ELIAS: I have no objection, Judge. THE COURT: They may be admitted and marked. a I I Detective, showing you exhibit 20, I?d ask you to identify the picture that Terri Starks picked out MR. ELIAS: Objection. -- on November 26th 1985. MR. ELIAS: I objec?? that; Judge. THE COURT: Overruled. MR. ELIAS: May I be heard? .THE COURT: 'Yes, you may. Side Bar: MR. ELIAS: Judge, inasmuch as when Terri Starks was on the stand no one asked her at the time to look at the pictures and pick out the RICHARD i. n?nae one she identified, the best the officer can be doing now is corroborating something that hasn't been done. Shouldn't she pick out the picture so I know if the one she picked out is the same one he says? THE COURT: She said she picked out the picture. MR. ELIAS: Okay. THE COURT: And he's telling us which one she picked out. MR. ELIAS: Why shouldn't she tell_us%' He is either corroborating or impeaching. THE COURT: Thisrone can be probative because she said she identified him. MR. ELIAS: Let's see who she identified. That's not my obligation, to establish who she identified so they can offer this as probative value. They should have done it, and they didn't. THE COURT: They should have, you?re right. Why should he be able to say that's the one she picked out? It could have been another one she picked out. I don?t know which one. It could have been another one; isn't that right? MR. CUNNINGHAM: She testified -- RICHARD L. BENDIXEN - Official Court Peportnr THE COURT: A photograph, that's all. MR. CUNNINGHAM: And DeteCtive Smith -- THE COURT: We're talking about hers. It says she picked out a person who shot Rodriguez, that's all. She never said who it was. MR. CUNNINGHAM: She picked out a photograph of the person that she identified -- THE COURT: Which photograph did she pick out? MR. ELIAS: On the state of the evidence, we don't know. THE COURT: She didn't tell us. MR. CUNNINGHAM: She said it was the person who shot Guillermo Rodriguez. THE COURT: Who is that, which photograph? MR. CUNNINGHAM: I believe that?s a matter left up to cross-examination, Judge. MR. ELIAS: Oh THE COURT: Okay, look, I think the better course would have been, she's here and you can ask but there have been a lot of gaps here, quite; frankly, and that's why I ordered her to be here today. I'm going to allow it in. (END OF SIDE BAR CONFERENCE) Detective, what photograph did Terri.Lynn Starks D-rr-quE-Dn . . -pick that out from that photo array? It's marked A9098. THE COURT: What's the exhibit number? F, your Honor. THE COURT: 20F, is that correct? Yes, your Honor. THE All right. With the Court's permission, would you step down and show that to the jurors. please? (Doing'so). Detective, during your interview on November 26th with Terri Starks, was there a video camera present? There was. And have you had an occasion to use a video camera: in the past? Yes. And have you used it during -- in a professional sense? Yes. Ag?a member of the police department? Yes, I have. And approximately how many times have you done that? On,'a dozen, 15, 20. It's hard to it's hard to T4. :1 Dsz-Mh'av say exactly, but I have used it. Have you ever had experience in your personal life using a video camera? Yes. Approximately how many times? 0h, half a dozen, perhaps. And on November 26th, 1985, who set the video camera up? I did. And could you tell us the procedure that you used before you started your interview regarding the video camerathe conference table, approximately eight feet from where we were seated, I set it on an angle.r so I tried to get -- There were three people there: myself, Miss Starks and Detective LaGarde. I tried to include all in the frame: I set it on a tripod and got it ready to go. IDid you make any Observations as to whether the videotape camera was operational when you began its use? Yes, it was. How did you know that? A red light comes on. pTr'Uapn 1' ?EHT?va'??r . A . . v- humusNow. how long did you have the videotape running? Altogether, approximately a half an hour. Did you stop the tape, video camera, at any time during that interview with Terri Starks? No. What did you do with the videotape at the end of. the interview. I marked it "Terri Starks Interview" and the date of the interview. Detective, after your interview with Terri Starks. did you have an occasion to review that tape? That I have. And was that a fair and accurate representation of your interview with Terri Starks? Yes. MR. CUNNINGHAM: If I might approach the witness. your Honor? THE COURT: Yes. sir. Detective, showing you exhibit A marked for identification, I?d ask if you can identify that videotape for us. Yes, I can. What do you recognize that to be? Terri Starks' interview of 11/26/85. RICHARD L. BENDIXEN - ??vrt - that a fair-and accurate representation of the interview as you conducted it on November 26, 1985? Yes, it is. MR. ELIAS: I can?t tell by looking at that. THE COURT: It's been marked for identification. Mr. Elias. MR. ELIAS: I know, but I can't tell -anything by looking at it that way. THE COURT: Do you doubt it's the same one you viewed last week? MR. ELIAS: No. Judge, I have no reason to. THE COURT: All right. MR. CUNNINGHAM: Commonwealth moves to introduce this, your Honor. MR. ELIAS: object to it. Judge, if I could be heard: THE COURT: I'll hear you. Side Bar: MR. ELIAS: Aside from objections that have aiready been put on the record, I now object to it again.as being-duplicio?s. He's already gone through the whole_identification, how he did it, who was there. the picture she picked out. She said she did it, he was there. said she did it, nzcunp? 1_ ?nvuh One-v*-v A twig,?- haven't doubted it. THE COURT: How is it any different than if someone describes damage to an automobile and would then bring in a photograph afterwards? MR. ELIAS: Wouldn't we have objected to that on the best evidence and said show me the picture? And the picture is what it is. THE COURT: We don't know that. MR. ELIAS: I do that. THE COURT: The best evidence is the car itself. LIAS: The best evidence here would MR. have been the testimony. not his testimony,.but he. elected to go with that. I didn't object to it. Why now etch it in stone? THE COURT: Yenmcoh?ection-is overruled. MR. ELIAS: Excuse me. Judge, may we Should not we break now to let him practice with that thing? THE COURT: _We're going to do that: let?s do a3; thing at a time. (END OF SIDE BAR CONFERENCE) THE REPORTER: May that may be marked. your Honor? THE OURT I t? rk ed . nT?wawn nFF4?4a? "Anvh De?nvt~v CUNNINGHAM: Detective, directing your attention to the videotape marked as exhibit 21. did you have an occasion to show a videotape to Attorney Elias at some point in January 1986? MR. ELIAS: Wait a minute. I object to that, I don't know what possible purpose that can have in this proceeding.l THE COURT: I know of one purpose. It's to explain Sergeant Bilko. Don't you think they ought to know why Sergeant Bilko is on that tape. MR. ELIAS: If that's the only purpose. I don't want to give it any more credit than he showed it to me after he took it, that I had an opportunity to explain that -- THE COURT: That's the only purpose. MR. ELIAS: I don't have any problem with that,rJudge. Did you have occasion to view that videotape with. Attorney Elias? Yes. Where did you view that videotape? 5*5?13?3?1 Brockton Police Academy. At some point in time. through either a malfunction of the equipment or inadvertence on the operator's part, did somethin happen to that tape? Yes. What happened? I inadvertently pressed record button rather than the play button at one point along about the middle of the interview, I would say, and there is about 15 seconds. 20 seconds, of a network show that was recorded over a portion of the Terri Starks interview, it's when? Sergeant Bilko comes charging in. Is that the only difference in the videotape that you have observed? That's the only difference, yes. MR. have no further questions at this time. your Honor. I'd be moving to introduce the tape. I .THE COURT: The tape has been introduced and it is in evidence. MR. CUNNINGHAM: I nould move to show it to' allow the jury to view it. All right. Detective Smith, you may sit down, please. THE COURT: Ladies and gentlemen of the jury, you have heard some testimony from Detective Smith that during the course of his interview of one person, it was done before a video camera, and we have the tape. I have seen it and the lawyers have seen it. At the time that Detective Smith was interrogating this witness, there were no lawyers present, there was not a judge present to rule on the admissibility of evidence, on what questions were proper, what questions were not 'proper, so we have a transcript of that tape. In your absence, the lawyers and I reviewed it. There are some portions wnich I ruled were inadmissible and the way it's going to work is, the operator is going to turn down the volume at those places where something is not inadmissible. I even sat in one of your seats last week to see if I could hear it when the volume was turned down. Obviously, the operator will have to hear what's going so he'll know when to turn up the volume again. We have here, I understand, someone- today who has done this in the past but not on this particular set, and we're going to have a recess to give him some familiarity with this 1' we!particular set. There will be portions, in other words, where you will be getting the silent movie treatment and, as has already been indicated, there is a few seconds of a network program that maybe some of you had seen years ago and maybe now see on The Late, Late Show from time to time. You each will be given a transcript of the testimony, and the the sound sometimes may not be ?legible or audible to you from where you are, these are not done in sound studios with upeto-date equipment, but everyone has agreed - that is, the lawyers have agreed - that this transcript is accurate. I think I'm correct in that; is that right, gentlemen? MR. ELIAS: Yes, Judge. MR. CUNNINGHAM: Yes, your Honor. THE CQURT: In fact, there are a couple of places where it says "inaudible". They've agreed that's inaudible at least to them. Now, of course, if you can read lips or detect what's sadible, why, then, it's for you to say. But I think there are a couple of places where it says "inaudible", at least one place, and it may be juSt be a nodding of a head and it?s explained later by the witness. 1- H-j-nv-H-wv?n- InAll right, We'll have a recess, then, and set up for the early morning show. (Recessed at 9:55 (Reconvened at 10:30 THE COURT: Officer, would you pass out transcripts of this tape? THE COURT OFFICER: (Doing so). THE COURT: What this means is that the notes of this witness in effect have been taken for you. THE COURT: Should we shut off some of the lights? Is there anybody in the jury that cannot read with that light? You should concentrate, anyway, on the video, that's more important. All right, you may proceed, sir. MR. CUNNIHGHAM: Thank you, your Honor. (Whereupon at 10:34, Exhibit 21, videotape, was played.) THE COURT: You had cut off that last line,. the photograph number. LIAS: Judge, that was with your D1 MR. permission, by our agreement, and we would indicate that the jurors may consider that last line as having been -- Pg'l'r?tt'rl'p? ?r .4..1 .- 52wTHS COURT: The operator turned it down too soon, just one line too soon. Had the volume been up a little longer, Detective Smith would have said, the lawyers agree, indicating a photograph marked with the identification number A98089. MR. ELIAS: That is correct, Judge. MR. CUNNINGHAM: That's correct, your Honor. THE COURT: Put the lights back on. Mr. Cunningham, you want the edited copy marked for identification? MR. CUNNINGHAM: Yes, Your Honor, I have submitted one THE COURT: Did you? MR. CUNNINGHAM: I submitted one already, your Honor. THE COURT: It hasn't been marked yet. MR. CUNNINGHAM: Your Honor, if the. transcript of the tape which has been stipulated to would be marked for identificationMR. CUNNINGHAM: May we approach side bar? THE COURT: All right. -1-: Side Bar: evnvgao? 1- ?rnn-r-u-w ?cc: - MR. CUNNINGHAM: Your Honor. in light of the: fact that the exhibit 21, the tape itself, is not going into the jury room, I would ask that the transcript that the jurors had be admitted into evidence as opposed to being marked for identification. THE COURT: No, it's not going to be marked as evidence. You use it as a chalk, that's all it; is. MR. ELIAS: Very well. (END OF SIDE BAR CONFERENCE) THE COURT: Mr. Foreman, ladies and gentlemen of the jury, you may consider the edited transcript that you have as a chalk to assist-you during your deliberations, but the transcript that- -you have is not evidence itself. The official evidence is the tape that you saw a viewing of: that is official evidence. As a matter of fact, I noted some discrepancies mySelf in-the transcript on the tape. Perhaps some of you didi-rWhether they were major or minor, that's for you to decide. MR. CUNNINGHAM: Detective Smith. please. If I might just have a moment, your Honor. THE COURT: Yes. 1' ?ERFH-Fxr-fmv ass: 3-.. ii i 42 -w El 1 (Detective Smith back on the stand) j? 2 MR. CUNNINGHAM: I have nothing further of _j 3 Detective Smith, your HonorICross Mr. Elias ?ELIAS: 8 Q. Detective Smith. would it be fair to say that you $1 9 probably got involved in this matter closer to the ii 10 15th and 16th of November rather than the 14th or 11 13th? a} 12 A. I believe it was, perhaps. it might have been -l 13 three days after the initial incident. 1f 14 - Q. And Rodriguez died -- 15 A. I don't know what date he died. :5 16 Q. And you don't know whether you were investigating ii 17 a murder or a shooting when you went out to -T 18 talk ?1 19 A. I knew I was investigating a murder at the time. Ni 20 Q. Yd??knew you were? 21 A. Yg?. 3) 22 Q. So he died before you got involved? if 23 A. YesAnd the officer who was originally doing the ii I 25 investigation was just taken off of it completely? a .- q?uq?u-?q-u-u?u- -. prior commitment, at which time he had to be out of state, so it was given to me, and then I think at one point it was given to another detective. Who else? Detective Washek had it. The purpose now was to get an identification of the person who allegedly did the shooting? That was the purpose from the onset, yes. Well, for three or four days after the shooting nobody went about looking for Lisa Pina or Edna Levine or Terri Starks, did they? canft tell you what anybody did prior to my being assigned the case. Well, you didn't start cold turkey, you picked you the Detective Bureau file and looked at it? I started pretty much cold turkey, yes. Was there a file? There was a file. Didn't you look at it? . So now we're three days, anyway, maybe more, from the original shooting and no one has gone out to interview witnesses, Pina, Levine or Starks? We didn't know who they were. RICHARD L. BENDTXEN -- Official ?hurt 22 23 24 25 44 You didn't know who they were? No; When did you find out who they were? Sometime after I became assigned, familiar with. the case. How did you find out who they were? (No answer) I mean you're the detective. how did you detect -who they were? Through the motor vehicle: i was told whose motor vehicle it was. Who told you that? It might have been Lieutenant Moreau. I'm not sure. What did he have to do with it? What did he have to do with it? He is in charge of the Detective Bureau; he and Captain Sproules are in charge of the Detective Bureau. Did he have something you could look at so you could determine the state of the investigation so fg?? Detective LaGarde had a folder on it, yes. Lieutenant Moreau? Lieutenant Moreau, no, I'don't think he did. Three or four days later. he's dead. you're going RTCHARD ??F?o?ai onwe+ ?=oorter .find someone who is going to be_ arrested for the death? MR. CUNNINGHAM: Objection. THE COURT: Sustained. Wasn't it part of your purpose to investigate and see it you could find out the person who did it? All right, now, you talked to Lisa Pina? Yes. You say she picked out a photograph of the person Yes. You know she doesn't agree with that? I do. . You say you went to Edna Levine and she picked out a photograph of a person who did it? That's correct- Showdoesn't agree with that? That's right. And?you talked to Bo Bo Watson, all the others. lgoking to see if somebody could identify the body who did it? I talked to Bo Bo Watson. He couldn't? Bo Bo Watson has always maintained that he cannot. o-Prtrap? act: cmu-a- Okay. You're saying that Lisa Pine and Edna? Levine. however, have not always maintained that they could not? That's correct. You're saying they changed their mind? Yes, they have. From when you say you talked to them? Yes. But you know they testified under oath here and elsewhere as to their ability to identify the party. don't you? MR. CUNNINGHAM: Objection. THE COURT: Sustained. Officer Smith, now we get to the home run. We get Terri Starks. CUNNINGHAM: Object to that. your Boner. How did you get her? THE COURT: Sustained: the jury should dismegard it: it?s excluded. Howwdid'you get Terri Starks, did you have her agrested? MR. Objection. THE COURT: Sustained. Was she arrested? YES. -r warrants-from the Brockton District Court? That's right. They were being held by the Brockton Police Department? I believe that's correct. For a number of failures to appear in court MR. CUNNINGHAM: My objection, your Honor. THE COURT: Sustained. Do you know what the default warrants were for? MR. CUNNINGHAM: Objection. THE COURT: Sustained. Did you indicate to anyone that they should seek to arrest Terri Starks? MR. CUNNINGHAM: Objection. THE COURT: Overruled. Would you give me the question again? THE COURT: Would you repeat the question? MR. ELIAS: I forgot exactly what I aSked him. - THE COURT: It may not be that important. r: i Ash another question. Did you seek to have Terri Starks arrested? MR. CUNNINGHAM: Objection. THE COURT: Overruled. Did I seek to have her arrested? Not necessarily, N, DJ 24 25 48 not Did you want her brought in so you could question her about what she may have seen that night? MR. CUNNINGHAM: Objection. THE COURT: Overruled. Of course. Now, in fact, was she arrested in Billerica or Methuen on a Brockton District Court warrant held ?by the Brockton Police Department? She was arrested. yes. 9 Was she brought to Brockton Police Department? Yes. Was she held there overnight? I believe she was. And the next morning was she brought to the District Court before you interviewed her? MR. CUNNINGHAM: I object to this. your Honor. I THE COURT: Overruled. She was interviewed first and then brought to District Court. What time.is the Brockton District Court open for business? 9:00 o'clock they start trials. Is it not customary to take prisoners held orruao? nuv?rvev niuvt a_i-ur_u overnight directly to court in the morning so they- may be admitted to bail? MR. CUNNINGHAM: Objection. THE COURT: Overruled. Generally, that is the procedure, yes. But Terri wasn't going there because you wanted to interview her about her status as a witness in this case? ?She was going to go there, yes. She was_not going to go there until you were done with her? I wanted to interview her before she went there, sure. And she knew that she wasn't going to the Court_toE answer to the default warrant until you were done ?with her? MR. CUNNINGHAM: Objection. THE COURT: Sustained. Did you tell her before the interview that after she finished she would be taken over to court to? see if she could be admitted to bail or personal recognizance? MR. CUNNINGHAM: Objection. Overruled. THE COURT: I told her that we wanted to speak with her ACE: nih?w?l 1-311 voluntarily on her part. she didn't have to, and that if she did, after the interview, she would be brought over to the District Court. How come none of that is on the tape? Because it's not on the tape. Why not? Isn't it a reason for her to_want to tell you something so she could go afterwards? I wasn?t being followed with a video oamera. Why didn't you say when you are finished we'll bring you to the Brockton Distriot Court? I already told her that, but not before. But you didn't think that would be important enough for these people to conclude that is a voluntary stateme?t?she's making there. did you? MR . CUNNINGHAM: Ob?zemtion . THE COURT: Susonined. In footysdid-you take her over to the Brockton D?i??iotweourtxafterwards? She went to Brockton District Court. Brocktoanolice Department took her over when you wgre done with her? forget who took her over. She didn't go over by herself, did she? No. Would it have been a member of the Brockton Police bf?unp? ruin-..? \Department that would take her over? Of course. And was she released? I don't know. Didn't you make a recommendation as to what kind of bail should be applied? I don't believe I made any recommendation. Do you know what recommendation was in fact made? No, I don't. In any event, she got out? At some point she was released. When you wanted her again here, you arrested her yourself, didn't you? MR. CUNNINGHAM: Objection. THE COURT: Sustained. You arrested her yourself thereafter, did you not?' MR. CUNNINGHAM: Objection. THE COURT: Sustained. Did you have occasion to arrest Terri Starks since the date of that interview? CUNNINGHAM: Objection. THE COURT: Sustained. MR. ELIAS: Judge, may I be heard on an offer of proof? THE COURT: Yes, you may be heard on the 1' offer of proof. -1-: Side Bar: MR. ELIAS: I expect the answer would be, yes, that she was arrested the night before the date this trial was to commence and the purpose by him and the purpose of that arrest was to secure her attendance here as a witness in addition to the fact there were outstanding warrants and it would have some bearing on her testimony in open court today as to whether or not she ought to testify in a manner to please the police department because she had seven pending charges with the Brockton ?olice Department. THE COURT: 'That?s not what you asked her. Incidentally. there is nothing to show that he would only let her go after she told a story that he wanted. MR. ELIAS: I know. THE COURT: Just tell us what happened. Even if she didn't identify him, she would have ggne there, right? MR. ELIAS: I don't know. THE COURT: Well. if that's so, how can they infer the other, then? MR. ELIAS: I don't know. THE COURT: Isn't that the inference you?re trying to get? - MR. ELIAS: I'm trying to let them hear what the facts are. THE COURT: Aren't you trying to get the jury to infer she wouldn't go unless she told a favorable story. MR. ELIAS: She may not go under the same circumstances as she went. THE COURT: Okay. (END OF SIDE BAR MR. ELIAS: Did your Honor rule on the offer_ of proof? THE COURT: never rule on an offer of proof. MR. ELIAS: That doesn't change the offer atj all. Officer Smith. Officer LaGarde was showing photographs to witnesses which are different from the ones you showed to the witnesses? H?vtold me that he had, yes. And you took a different array to show to witnesses? I took what was in the folder. Was there a picture missing from that array in his RICHARD L. BENDIYPM affinin1 tenet ?=oorter Ifolder? I-don't believe I ever seen the array that he showed. What do you mean you took it from his folder? I took the black and white. series of black and white folders - photographs. excuse me - that were in the folder that was presented to me. Is that the series of six photographs that you ?have that have been introduced here? Yes. And if there is another series. there shouldn?t then be a series_of photographs that Detective LaGarde was showing the people? I don't know what Lieutenant LaGarde showed. Well, the ones that you took out of his folder were the only ones that were in the folder. I believe that's right. All right. So to your knowledge there was not another array that is being exhibited to people? MR. CUNNINGHAM: I object to that. your Hon-or THE COURT: Sustained. Did Detective LaGarde to your-knowledge have some other photographs other than the ones that were in the folder? q?nnvn?co?n- - MR. CUNNINGHAM: Objection. THE COURT: Sustained. Do you know of another array of photographs that was shown to witnesses? MR. CUNNINGHAM: Objection. THE COURT: Sustained. MR. ELIAS: There is marked for identification exhibit B. May I see those, please? It's a photo array. Officer, I'm going to ask you to look at these for a moment. (Did so) Do you have any memory of having seen that array before? MR. CUNNINGHAM: Objection. THE COURT: Overruled. I have not seen them before, no. You don't remember taking a photograph from any place-other than Detective LaGarde's folder? MR. CUNNINGHAM: Objection. THE COURT: Sustained. Did you take photographs that you showed witnesses other than the ones you said you took from Detective LaGarde's folder? Are you asking me if I had another set of - photographs?- I asked you if you took another photograph to show the witnesses other than the ones that were contained in Detective LaGarde's folder? If I took a photograph to show witnesses? Yeah. I believe I got a photograph of the defendant from Detective LaGarde. You believe you did? Yes. When did you do that? I don?t recall. Well, in the series that you took out of his folder, the defendant was not in that arrayit? Yes. He wasn't in there? I donft believe he was. And you went somewhere else to get a photograph to add to it? Tg/the other photographs. yes. And you think you got that from LaGarde? I believe so, I'm not sure. hR. ELIAS: Judge, I'm going to offer these, if we might at the side bar have a discussion on them. THE COURT: Any objection? MR. CUNNINGHAM: There is at this point, your Honor, yes. MR. ELIAS: I thought your Honor ruled earlier on that, however. THE COURT: All right, I'll see you at side bar. Side Bar: MR. ELIAS: I thought, your Honor -- THE COURT: Why do you need -- MR. ELIAS: Just because Just to sanitize the back, that's the only thing I wanted to see you about. THE COURT: What is your objection? MR. CUNNINGHAM: At this point, the defendant's picture is not in there and I believe- the impression is giyen it never was in there. THE COURT: What's that? MR. CUNNINGHAM: I said at this point the dgfendant's picture is not in that photo array. THE So? What's the purpose? MR. CUNNINGHAM: Because it's not a complete photo array. That wasn't the photo array that was shown 1- av?v?-?ivg??y Inca; THE COURT: Was this array shown to somebody? MR. ELIAS: I don't know. THE COURT: Why are they admissible? MR. ELIAS: Detective LaGarde said he showed them to somebody; these are his photos, not mine. THE COURT: Is that what he said? MR. ELIAS: Yeah, and you said they?d be admissible by either party. THE COURT: Is he here today? 9 MR. CUNNINGHAM: LaGarde is not, no. MR. ELIAS: He testified he showed these to people, that he took the picture of the defendant out of here and gave it to Joe Smith. THE COURT: All right, then, that array included MR. ELIAS: I don't know, that's what he testified to. I am not trying to establish anything different than that other than you said they were admissible I thought you were trying to show there was never any picture of him in there. MR. ELIAS: don't know. THE COURTthe evidence, that's it, but I thought you were trying ??r?q-Hw-wrn-Iv show the evidence was that those are the ones he showed me, that's what you told me right now. MR. ELIAS: No. THE COURT: Now, you changed it a little. I don't mean intentionally to mislead me. MR. ELIAS: He said exactly what Joe Smith agreed to, I took it out of here and gave it to Joe Smith to put with his pictures. All I want is -that these are the series he showed -- THE COURT: Right now these are being submitted out of context and there ought to be some explanation. MR. ELIAS: You were the one that ruled it was admissible by either party. I asked for them and asked them be marked for identification and you said they would then be admissible THE COURT: qunderstand that, but I think the jury are entitled to an explanation. MR. ELIAS: Why can't their memory be su?dicient? That is all they ought to be able to h3?e.. THE COURT: My memory was faulty because of our conversation. I don't mean you intentionally tried to mislead me. You said this is the array. that's what you told me. 1- .31 ugh?vh?u .HFMR. ELIAS: It is. THE COURT: That is not the array, there was another picture in there. MR. ELIAS: I will withdraw the request. THE COURT: That's the impression you gave me. I don't mean you intended to mislead me MR. LIAS: You ruled they would be admissible; THE COURT: They still area MR. ELIAS: Then I offer them. THE COURT: All right, and I am going to explain to them that these were -- And the defendant?s picture was in there? MR. ELIAS: No. another picture was in here: we don't know who the hell it was. They never said there was another picture in here. THE COURT: Didn't the detective say that it. was in there and he gave it to Detective Smith? MR. ELIAS: But we don't know who it was. THE COURT: Then they ought to know that ageording to -- didn't he say it was the defendant? MR. CUNNINGHAM: Yes, he did. THE COURT: Of course he did. MR. ELIAS: No. They picked out some ?fnr?-P-ty?tqf mtg.- HAHVJ. pi?tures and they couldn't be sure that was the guy, that's Jones and Perkins.? MR. CUNNINGHAM: And the picture he took out THE COURT: Just a moment, he said that one of the defendants -- the defendant's photo was in that array. MR. ELIAS: Right, I agree. THE COURT: And he also said he gave it to Detective Smith. MR. ELIAS: He didn't say it was the same photo, your Honor. THE COURT: What? MR. ELIAS: He didn't say it was the same photo. THE COURT: We don't know yet what photo they picked out. THE COURT: Well, maybe we ought to clear that up. I'm not going to go further. then. I think it's going to be confusing. Get Detective over here. Can you get him over here? We'll have a recess. MR. CUNNINGHAM: I just asked MR. ELIAS: I'll withdraw my request. We'll go forward. RICHARD L. Offioia? Cowrt Pannvtav THE COURT: You'll withdraw it? MR. ELIAS: Yeah. THE COURT: Okay, all right. (END OF SIDE BAR CONFERENCE) MR. ELIAS: Judge. I'll withdraw my request and offer them as an exhibit. I am not offering it as an exhibit; Officer Smith, the series of photographs you showed to Terri Starks was a different set from the ones that were shown to other witnesses? Yes. And she's the only one that those were shown to? Yes. And that was shown to her on November 26th, the date of your interview?. Yes. A couple weeks after the shooting? Yes. And by that time there had appeared in the Brockton Enterprise a picture of the person that had been.arrested for the crime prior to November 26th? I don't recall the date of the arrest. Well. if I suggested to you it was either November} 17th or November 18th. would that refresh your ?nuvh memory at all? MR. CUNNINGHAM: I object to this line of questioning, your Honor. THE COURT: Sustained. You knew he was arrested, Diamond Darrell Jones had been arrested. before your interview with Terri Starks? Yes. He was then in custody? .Yes. And you know that the photograph that you used in your identification process with her was the photograph that appeared in the Brockton Enterprise before that date? MR. CUNNINGHAM: Objection. THE COURT: Sustained. something and ask you if you recognize that at all. Do you recall having seen that? MR. CUNNINGHAM: I object to this, your Honor? THE COURT: Overruled. I've seen it. COURT: "Yes MR. ELIAS: Judge. may we see you at side bar for a moment? THE COURT: Yes. Side Bar: MR. ELIAS: Judge, I'm going to offer an article in the Brockton Enterprise dated November 18th with the picture of the defendant as having been arrested; and I have a certified letter, not certified, but a letter from the Enterprise indicating the publication date was November 18th. It's also stamped on there,.November 18th. And I suggest to you that's the identical picture that is included in the colored photo lineup for Terri Starks to choose from. THE COURT: Is there an objection? MR. CUNNINGHAM: Yes. your Honor. THE COURT: If there isn't, I don't want to waste time. If there is an objection. the objection is sustained. MR. ELIAS: _May I suggest I have to bring the Enterprise in THE COURT: I'm not suggesting anything. MR. ELIAS: I thought we agreed i wouldn't have to do that. Okay.? MR. ELIAS: don't have any further HfQV?-I-wr??o questions, Judge. SIDE BAR CUNNINGHAM: Detective, when you were interviewing Terri Starks on November 26th, 1985. after the interview, where did you bring her? (No answer) Or, excuse me, where did someone from the Brockton Police Station bring her? She would have been taken to the lockup area of the Brockton District Court. And at that time did you do anything on her behalf? I never done anything on her behalf. MR. ELIAS: Judge, may that be stricken? I assume the answer is THE COURT: Motion denied. Dgtecbive, if Terri Starks did not choose to speak with you, what would you have caused to be. done with her? MR. ELIAS: Objection. THE COURT: Overruled. She would have been taken directly to the courthouse. And if she hadn't made an identification, what would have happened to her? MR. ELIAS: Objection. THE COURT: Overruled. If she had not made an identification what would have happened to her? Yes. I suppose she'd be a witness for the purpose of whatever -- Just that day, Detective. THE COURT: Physically -- That morning, November 26th, if Terri Starks did not make an identification, what would have happened to her? If she had not made an identification, she simply with not have made an identification and she would. have gone to court. MR. CUNNINGHAM: Nothing further. thank you. I have nothing further, Judge; THE COURT: You may step down, officer. Thank you. THE COURT: Mr. Cunningham, anything further. sir? - MR. CUNNINGHAM: If I might just have a moment. your Honor. THE COURT: You may. MR. CUNNIBGHAM: I have nothing further. your Honor. That will be the Comnonwealth's case. MR. ELIAS: Judge. the defense would ask for a 15 minute recess in order to prepare and present its first witness. THE COURT: The request is granted. MR. ELIAS: Thank you, Judge.l (SEORT RECESS) MR. ELIAS: Judge, with your permission, I would call Andrew AugustineTHE CLERK: Do you solemnly swear the evidence you shall give to the Court and jury in the issue now depending between the Commonwealth and the defendant shall be the truth. the whole truth; nothing but the truth, so help you God? THE WITNESS: I_dolDirect Mr. Elias 68- ELIAS: Would you tell us your name and address, please? Andrew Augustine. I live at 19 Wilmington Street. Brockton. How old are you? 22 years of age. Are you presently under arrest? Yes. And you're being.held at the House of Correction in Plymouth in lieu of making bail? Yes. You've also been in the past convicted of crimes in the Brockton District Court? Yes. What crime. do you remember? Possession of marijuana. 'Anything else? Yeah, larceny of a motor vehicle. All right. Do you know Darrell Jones? I don't know him_but I've seen him around. f; he'in the courtroom? Yeah. Would you point him out. please? He's right there. On the night of November 11th. 1935, did you have II II 91-?1qu 1315 -r occasion to be in Pete and Mary's.Bar? Yes, sir. What time did you get there that night, do you remember? I don't exactly remember the time but I know I was there before the incident. Did you see Darrell Jones there that night? Yes, I did, sir. Did you know him by name then? I just knew him by the name as Diamond. Had you ever talked to him before that night? No, I just said "hi" and "bye" to him. Ever socialize with him before? No, we're not really friends. Where did you see him that night in Pete and Mary's? I seen him in the corner booth, they have booths in Pete and Mary's. I seen him in the corner booth. Did you see him with somebody? YZE, I saw him with a girl named Vinelle. (Phonetically spelled) Anybody else at that table? Another girl, but I don?t know her name. Did you notice anything that the defendant was n?n-w-q-unn. .. doing? Yes. What was he doing? He was eating a sub. Did something happen then? Excuse me? Did something happen at that time? Yeah. What? _There was something that took place outside of the bar. And how did you know that? Because the cops came in and alerted everybody. Was it a shooting, do you remember? Yeah. At that time did you see Darrell Jones? Yes. I did. .Where was he then? He was in that booth. MR. CUNNINGHAM: If we could have a afarification as to what time, your Honor. When the police came and said there was a shooting outside, did you see him? Yes, I did. Where was he? was sitting in the booth. MR. ELIAS: You may inquire. MR. CUNNINGHAM: If we may approach side bar 3h this, your Honor? THE COURT: All right. Side Bar: MR. CUNNINGHAM: Judge. this morning I found out Mr. Elias was going to call this witness. I asked Detective Smith to check on his record. and it's my understanding Smith checked with the Brockton District Court and he has 16 convictions.' If Mr. Elias is going to elicit his prior record, I think it should be in total as opposed to possession of marijuana THE COURT: You want Mr. Elias to put on the' record, is that what you are suggesting, Mr. Cunningham? MR. CUNNINGHAM: No. THE COURT: What, then? MR. CUNNINGHAM: I don't think Mr. Elias can pick and choose crimes. MR. ELIAS: I didnit. THE COURT: What are you suggesting now? Let's get to the point. MR. CUNNINGHAM: Well. to remedy that I would suggest that if I could have a few minutes before cross examining this witness so that I could at least obtain the court records from Brockton District Court to impeach him. THE COURT: Didn't you know he was going to be a witness this morning? MR. CUNNINGHAM: I just found out. MR. ELIAS: You knew Friday. I told everybody Friday. THE COURT: Not necessarily. not Friday, you didn't know. MR. ELIAS: I told you Friday I had a witness who was we THE COURT: -You wanted to talk to him. that's all. MR. ELIAS: I'm not trying to preclude it. THE COURT: Why didn't you have the records brought over so they'd be here by now? MR. CUNNINGHAM: I asked Detective Smith if he would do it and one of the other troopers and the woman Gladys at Brockton District Court was gathering them. THE COURT: They are not ready yet, is that it? 1 MR. CUNNINGHAM: I don't believe so, no. THE COURT: All right. How much cross-examination can you do without the records? MR. CUNNINGHAM: None. Probably five or ten minutes. that would be about it. THE COURT: Why don't we go as far as you can and I'll call a recess. MR. CUNNINGHAM: Thank you. MR. ELIAS: After looking at them, I may file a motion in limine. too. I don't know what the convictions are. 3 THE COURT: Nothing has been offered yet. MR. ELIAS: I know, okay. (END OF SIDE BAR COHFERENCEMr. Cunningham MR. CUNNINGHAM: How old are you? 22 years of age, sir. It's your testimony that you -- you are not fiiendly now with the defendant? No, I know him. you know, I know him. How long have you known him? I just know him by, you know. "hi" and "bye", that's about it- RICHARD r. nee=~4=1 c~nve aancrter What name did you know him by? By the name of Diamond. Did you know his name, Darrell No, I didn?t. You just knew him as Diamond? (Nods head) A Where did you first meet him? Down the bar. 'What bar was that? Pete and Mary's. Now, directing your attention to November llth, Jones? 74. 1985, do you recall what day of the week that was? No, I don?t, sir. Do you recall what time you arrived at the bar that evening, Pete.and Mary's? I arrived at around 6, 6 or 6:30, in between there. Do you recall what time you left Pete and Mary?s that evening? Yes, I left right after the cops had came in. Do you know what time that was? That was around -- Do you have a memory or are you guessing, sir? No, I have a memory. What time? was about. 9, 9:30 when I left the bar that night. So it was 9:30 when you left the bar that evening? Yeah, or a little bit later. And you were drinking while you were in the bar? No. I don't drink. sir. What were you doing in Pete and Mary's that night? Excuse me? What were you doing? Playing pool. And you went there at 6:30 to begin playing pool or six o'clock, whatever. Yeah. Well. my brothers would be down there, too, so I go down there to see them. Were you in the poolroom the whole time you were in Pete and Mary's? No. I wasn't. What were you doing when you weren't in the poolroom? I was standing by the juke box, sir. do you recall what What time did you first see the defendant in Pete and Mary's that evening? A little while after I got there. Do you have an idea what time it was? No, I really don't have any. What was he wearing? He had on a brown leather jacket and a pair of blue jeansr light blue jeans. And did you speak with him? No, I just said "hi" and "bye". How many other people were in the barroom that evening at the time you first saw the defendant? There wasn't that much people in the bar that night. There was only a couple of people. Do you remember seeing Do you know a Bo Bo Watson? No. No, I don't. Do you know a Guillermo Rodriguez? Is that the guy who got shot? An individual by the name of Pow? Yeah. Do you know that person? I don't know him personally. but-I know him from seeing him in the bar. Did you see him in the bar that evening? I did? Where was he seated? Over where you first come in by the door, the back door to Pete's, sitting in a booth. Did you see the defendant ever speak to Pow? 76 ACE: No. There are no windows in the poolroom, are there, sir? Yes, there is. Where do they overlook? D'Angelo's parking lot. Now, you testified that at some point in time the police came into Pete and Mary's, is that correct? Yeah. Where were you when you first saw the police? I was standing over by the front door to Pete and Mary?s. You weren't in the poolroom at that time? No, I wasn't. And you have no idea what time the police came in, do you? They had to come in around, I can't exactly say- what time but I know it was somewhere around 9 or something like that. Somewhere around 9? Y3?h.r And is that somewhere around 9 o'clock. is that when you saw the defendant? Yeah. And he was sitting at a table eating a sub? .. Yeah. Do you know when he purchased that sub? Yeah, that was awhile before after I came in. Did the defendant purchase the sub? Yes. Did he leave and get a sub and come back with it? Yeah. Did he go with someone else? No. he didn't. He went to get a sub by himself? Hm*hm. Did you see him do that? Yes, I did, sir. Did you see him with a black woman? No. Where were you watching the defendant from when he went to get a sub? That's when I was sitting by the juke box, sir. Was he in your sight the entire time he went to get the sub? . You watched him cross the street? No, I didn't watch him cross the street but, you know, I was standing over by the juke box, then I started down and stood by the window. Did Diamond ever go into the poolroom that evening? No. I didn't see if he went into the poolroom. Did he ever use the men's room that evening? I couldn't tell you that. Did he ever go out the back door that evening? The back door to Pete and Mary's? YES. Yes, that would have to be when he got the sub, sir, He went out the back door? Yeah, Did he enter through the back door? No, I think I'm being confused. What door are vou_ talking about? ?There are two doors to Pete and Mary's, is that correct? Right, true. A door that opens onto Montello Street and a -- Right. Ahd a.door that opens onto Franklin Street, is that correct? Okay, I seen him go out the door to Montello Street going over to D'Angelo's. Did you ever see him use the back door? I q?H-uq??q you know an individual by the name of Terri Starks? I don't know her personally but I've.heard of her. sir. Did you see her in the bar that evening? No, I didn'tt Do you know an Edna Levine? No. Do you know Lisa Fina? No. You testified that you observed the defendant with Vinelle (phonetic), is that correct? Yes. Do you know her last name? I think it's Dukes. And did you see what Vinelle was doing before the deiendant sat down to have a sub with her? No. Has anyone else at that table? Tgere'was two girls sitting at the table. Do you know who the other one was? No, i didn't. Did you speak to them at all? No. When the police came into the bar that evening, What did you do? Well, everybody had to stand, you know, there, and I think they was looking for who was supposed to be identified -- Just what did you do, sir? What did I do? Yes. I just stood right there. At some point in time did you leave? stay right somebody No, couldn't nobody could leave the bar at that time, sir, So you stayed in the bar? Yes. And at some point in time did you leave? Yeah, I left after the cops had left. Did you go with anyone, did you leave with anyone? No. You left with yourself? Hm-hm. a? yourself, I should say? Yeah. Sir, when was it that you first discovered that the defendant Darrell Diamond Jones was under arrest for the murder of Guillermo Rodriguez? 1- Ant?3 .: long time ago, sir, Could you tell us when? When the case first started. But you knew that he had been arrested, is that correct? Yes. I did. And you knew that you had seen him in the bar that evening, is that right? Yes, sir. And did you tell anyone you had seen the defendant: at that time? No, I didn't. When was the first time that you told someone that: you had seen the defendant in the bar that evening? - When was the first time? Yes. When I came here to court the other day, sir, Friday. 'Who did you tell that to? I?told that to his lawyers. THE COURT: Friday, you said? Yes. And that's the first time that you told anyone that you had seen the defendant in Pete and Mary's ?rm-r?w-VyI-Isv ACE: - 83 on November 11th. 1985? A. Well. I told an officer that was at Plymouth, too. Q. When was that? A. That was when I got arrested that's when I went in, on Monday. MR. CUNNINGHAM: Nothing further at this time, your Honor{Redirect Mr. Elias' 11 BY MR. ELIAS: Q. In fact. Mr. Augustine, you volunteered the fact that you were a witness only after you were under arrest? A. Yes. sir. Q. And you told that to one of the transportation officers here that was going to transport you back to Plymouth? A. Yes. sir. Q. That was just a few days ago? A. Yes, sir. MR. CUNNINGHAM: Again, your Honor, I have- nothing further at this time except -- MR. ELIAS: Thank you. Mr. Augustine. you may step down. THE MR. Judge. I THE associate MR. 84 COURT: Now, wait a minute. ELIAS: I should never be presumptuous, apologize. COURT: Why don't you talk to your first? CUNNINGHAM: Those items aren't here as of yet. your Honor. THE him? MR. THE COURT: You?re going to be wanting to 'question the witness later: you want to recall CUNNINGHAM: I may. your Honor. COURT: Do you have any objection to that procedure, Mr. Elias? MR. THE step down. MR. THE THE fello?? MR. THE MR. over that ELIAS: 'No, I do not, Judge. COURT: All right, then the witness may ELIAS: Thank you, Judge. COURT: I'll see counsel at side bar. Side Bar: COURT: .When did you first talk to this ELIAS: Today. COURT: He said you saw him Friday. ELIAS: Right. I think he's confused because he thinks it was Monday he was arrested. He was arrested apparently Thursday because my guy saw him maybe even Friday, but I never talked to him until this morning. THE COURT: All right. MR. CUNNINGHAM: Judge, there was another area that I felt uncomfortable getting into at the; time, and that?s when he first or if he first spoke with the defendant. MR. ELIAS: You should have asked him. I think he would have told you. MR. CUNNINGHAM: I didn't want to get into the area of when he had the opportunity to speak to the defendant. I don't think the jury is aware he's being held -4 MR. ELIAS: Well, he THE COURT: Well, was he wanted back in Novemberthat time, Mr. Cunningham. MR. CUNNINGHAM: This witness, your Honor? THE COURT: Yeah. CUNNINGNAM: I believe he said there were default warrants out on him. THE COURT: At that time, or don?t you know. MR. CUNNINGHAM: I don't know. That's what Mr. Elias brought out. 1- n-f-I - . THE COURT: That's good, should get your evidence from, MR. THE some more MR. THE MR. ELIAS: Well, it was COURT: I know. Are evidence now? ELIAS: Yeah. COURT: All right. ELIAS: 86 that's where you the defendant. my witness -- you going on submit Defendant calls Vinelle DukesTHE CLERK: Do you solemnly swear the evidence you shall_give to the Court and jury in the issue now depending between the Commonwealth and the the defendant shall be the truth. whole truth, God? THE WITNESS: Yes. Mr. nothing but the truth' the so help you Elias will you state your name and address, please? I'm Vinelle Dukes. I live at 47 Plymouth Street RICHARD L. BENDIXEN Official Court Reporter Brockton. How old are you. Vinelle? 27. Do you know Darrell Jones? Yes. Is he in the courtroom now? Yes. Would you point to him please? He's right there. Do you also know him by a nickname? Yes. How is it that you know him? ?ell, I know him through seeing him out on the streets. Are you socially friendly with him in any way? 'Oh, no, I know him but we don't like hang together. On November 11th, Saturday 1985, did you happen to be in Pete and Mary's Bar? Yes. deyou,remember what time you got there? It was about nine. And did you see Darrell in there when you got there? YES. 7 . Where did you see him? He was sitting with me at the table. When you came in, was he there at the he join you? No, he joined me afterward. Who else was at your table? Me and a friend of mine. What's her last name? Evelyn Anderson. Did you two go there together? Yes. table or What was he doing at the table with you and Evelyn? He was just sitting there talking with us. Did he leave and come back? Yes. What did he come back with? A sandwichsomething with that sandwich? He sat with us and ate it. Did something happen while he was eating the sandwich? No. Did something happen shortly after that? There was a shooting outside. - How did you know that? When he was getting ready to leave. Who was with you at that time? Me, Evelyn and Darrell. Was he going to go somewhere with you? Yeah, we were going down the projects; he was walking us home. What happened as you were leaving? 'The police stopped us and asked us did we see a dude in a long black trench coat because they said, whoever it was, he_shot him, shot the guy. Who was there when they asked you? Me, Evelyn, Darrell, and his name is Jerome, another dude. Did Jerome have a cast on? Yes. Where were you at that time, still in the bar or outside? Outside. On the sidewalk? y??s . Do you remember who the police officer was that was asking that? No. Did you see any other people outside? 89 Yes. Who did you see? Lucy. Clyde Coward. Did you see anybody else outside? No. Did you talk to anyone outside? No. Did you see any white people out there? Oh, yes. Did you talk to them? No. Anyone talk to them? The police was. What-were they seeing? I don't know. Was it a boy and girl? Yes. And were you standing close to them? Yes. How close? Lf?e from here to that post. And who was there? Me, Evelyn and Diamond. Do you remember what he was wearing that Yes. pru'l-p? q_ What? A. A short leather coat, brown one, with some gas jeans, they was like a khaki type, Q. By khaki you mean blue? A. Yeah, greenish color. Q. What elSe? A. Some high top boots, like, sneakers. Q. Do you recall what color they were? A. Blue, black. Q. Anything else? A. A cap, like a baseball cap turned to the back. Q. From the time he came in with the sandwich to the time you guys went out, did he leave yOur sight? A. No. Q. Do you know an Andrew Augustine? A. 'Yes. Q. Did you see him there that night? A. No. Q. You don't remember talking to him at all? A. No. ELIAS: You may inquire'Cross Mr. Cunningham MR. CUNNINGHAM: 1. Vinelle. you went to Pete and Mary's Barroom in Brockton on November 11th, is that correct? Yes. 1985? (Nods head) What time of the week was that. if you know. Monday night. And do you recall what time you arrived there? It was about nine. And you went there with Evelyn Anderson? Yes. And she also goes by the name of Evelyn. is that correct? Yes. Had you been drinking before you arrived at Pete and Mary's? No. And it's your testimony now that you had nothing to drink before you arrived there? You mean before I got to the bar? {25. Yes. It's your testimony now that you did not have anything to drink -- No: I had a drink when I got there. though. 92 you recall going down to Plymouth, Massachusetts, and testifying before the Plymouth County Grand Jury on December 2nd, 1985? Yes. You do recall that? Yeah. And do you recall that you took an oath when you testified at that time? Yes. vinelle, at the Plymouth County Grand Jury, do you recall being asked a question -- MR. ELIAS: Judge, I'm going to object to the procedure if it's intended to refresh her memory. THE COURT: Overruled. Do you recall being asked a question, "And had you been drinking before you went down to Pete and Mary's?" Do you recall being asked that question? I can't remember. MR. CUNNINGHAM: If I might approach the witness, your Honor? THE COURT: You may. I show you page 40 of the grand jury minutes of December 2nd. Hm?hm. ?zz: -- . -- you could just read from there to_the end of the page to yourself? All right. Did you finish reading that? Yes. Does that refresh your recollection? Hm-hm. And what is your answer now to the question. were ?you drinking that evening? Yes. You recall that you were drinking that evening? Yes. THE COURT: At what time? MR. CUNNINGEAM: Before -- What time 9- were you drinking before you went to Pete and Mary's that evening? I don't recollect. Maybe I was. See. I don't, you know. I don't remember. Well, having just shown you the grand jury minutes? . Miss Dukes, the question was, at the grand jury. had you been drinking before you went down to Pete and Mary's? MR. ELIAS: Judge, I'm going to object to his reading from that. He had her read it and asked her if it refreshed her memory and she said yes. Shouldn't he just ask her a question? THE COURT: Overruled. Do you recall being asked that question? Yes. And do you recall what your answer was at the Plymouth County -- Yes. Now I remember, yes. And is it fair to say that your memory at the time_ of the Plymouth County Grand Jury on December 2nd is better than it is now? Yes. And is it fair to say that you were intoxicated when you went to Pete and Mary's? INC. On that evening? (Shakes head) Again, do you recall testifying before the grand jury in Plymouth on December 2nd. 1985? YES. If 7 might approach the witness, your Honor? I'll show you that question and ask if you would read that to yourself and look at the answer. All right. Do you recall at the Plymouth County Grand Jury whether you were asked, "Would it be fair to say that you were intoxicated when you were in there?" _Do you recall whether you answered that or not at the Plymouth County Grand Jury? Yes. And what was your answer at that time? "Yes." Is it your testimony here today that you were intoxicated before you went to Pete and Mary's barroom on November 11th, 1985? I wouldn't say intoxicated. I wouldn't say I was so intoxicated I didn't know what was going on. But at the Plymouth County Grand Jury Right. you said you were intoxicated before you went to Pete and Mary?s? Right. And you had a couple of drinks at Pete and Mary's that evening, didn't you? I had one. .What was it, if you recall? A Heineken's. Okay. q-va?qq 9 Lama?(z: 5134 you know an individual by the name of Diamond or by the nickname of Diamond? Yes. And that's the defendant here today, is that right? Yes. And you saw him in the barroom that evening, didn't you, Pete and Mary's? - Yes. And would you tell us again what time you arrived at Pete and Mary's an evening? Around 9. If I were to suggest to you that your testimony at the grand jury was 9:30, would that refresh your' recollection? I Around 9:30? Yeah. It was around 9. That's your testimony now? It was around 9. i?d do you know an individual by the name of Pow? Yes. Did you see him in the bar that evening? Yes. And do you know an individual by the name of Bo Bo ?-p?ov-lq-n . uni?.Watson? Hm-hm. Did you see him in the bar that evening? Yes. Do you know an individual by the name of Terri Starks? Yes. Did you see her in the barroom that evening? Yes. Do you know an Edna Levine? a Yes. Did you see her in the barroom that evening? No. And do you know an individual by the name of Lisa Pina? Yesthat night? No. You didn't see those two people, is that correct? Yes. Add do?you know a woman by the name of Bridgette Struthers? Yes. Did you see her in the barroom that evening? Yes. You went to the bar that evening with Evelyn, is that correct? Correct. And at some point in time that evening the defendant sat down with you, is that correct? Hm-hm. Yes. And he had a submarine sandwich? Yes. ?Do you recall what kind of sandwich that was? It was a steak and cheese. Do you recall what time that was? I can't recall, but he did have one. Now, between the time that you arrived at Pete and Mary's and the time that you left Pete and Mary's. did you ever get up to go to the poolroom? Yes. And during the time that you were at Pete and Mary's, did you ever use the ladies room? Yes. And did you ever go up to the bar? . So is it fair to say that you were at different positions throughout the bar that evening? Yes. You weren't just sitting down at a table the whole q??ch?uI?n .time? No. Were you? (Shakes head). And is it fair to say that the defendant Darrell Diamond Jones wasn't sitting with you at the table the whole evening, was he? Yes. It is fair to say that, is that correct? You mean was he sitting there with us? (Nods head). He was in the bar there with us, yes. He was in the bar during that period of time? Yes. I Now; did you see Diamond go into the poolroom at any time that you were there? Yes. Did.you see him use the men's room at any timeany time during that egening while you were there? No. You don't know whether Diamond left the bar at any time during that period that you were there, do you? No. Nowr you told us that the defendant had a pair of boots. I believe you said, that he was wearing a pair of boots? They were like Reebok sneakers make; they was a high?top type shoe. What color were they? Blue. Once again. if I may approach the witness. your Honor? THE COURT: You may. I show you your testimony before the Plymouth County Grand Jury on the End, page 44, and ask if you could read that question and your answer. Okay. Have you had an opportunity to read that?- Hm-hm. The defendant's sneakers were not blue that evening, were they? They was blue and white. Blue and white. (Nods head). Didn't you testify at the grand jury they were white? They was blue in them. 102 You didn't say that at the Plymouth County Grand Jury. did you? Yes. I did. And you're saying your testimony is not the same as what I just showed you? Not what's on that paper, no. no. it's not the same. And you testified before the Plymouth County Grand_ Jury on December 2nd. 1985? Right. 1985. Yes. Do you know an individual by the name of Jerome? Yesthe barroom that evening? Yes. Do you know what Jerome's last name is? No. Once again I'll show you your testimony from one of the Plymouth County Grand Jury sessions and ask i? you would read those two sentences there. (Pause) Have you read those two sentences? Hm-hm. Do you recall what you testified to at the . .. 103 Plymouth County Grand Jury as to whether you had seen Jerome in the barroom that evening? Hm-hm. And what was that? I said no. MR. CUNNINGHAM: I have nothing further. Thank youMR. Mr. Elias 11 ELIASPlymouth to the grand jury in- the -- on the date Mr. Cunningham has been asking you? Yes. Whose car? Detective Snith?s. Who else was in the car? Me and Evelyn. Was Terri there too? Y?'s . Did she say something to Detective Smith while you were on your way to Plymouth? I can't recall. MR. ELIAS: I have nothing further of this - 104 witness. MR. CUNNINGHAM: Nothing further. THE COURT: You may step down, ma'am. MR. ELIAS: Evelyn Anderson, pleaseTESTIMONY OF ANDERSON THE CLERK: Do you solemnly swear the 'evidence you shall give to the Court and jury in the issue now depending between the Commonwealth and the defendant shall he the truth, the whole nothing but the truth, so help you God? THE WITNESSinirect Mr. Elias ELIAS. Would you identify yourself by name and address, please? A. Arcana (phonetically spelled} Evelyn Anderson and I live at 95 Stillman Avenue in Brockton. Q. How old are you? A. 37. Q. Are you employed? A. Yes, I am. 105 Where? Boston Public School System. What do you do there? I'm a reading specialist. Do you know Darrell Jones? Yes. Do you see him in the courtroom? Yes. right there. The defendant? Yes. Do you also know him as Diamond? Yes. And how do you know him? I have six children at home and at the time he was, you know, friendly, talking with one of my daughters, and met him with one of my daughters. How long ago was that? Maybe about, I don't know. maybe about 11 months or something like that, 10 or 11 months. Do you have a memory of November 11, 1985, while ygu were in Pete and Mary?s? Yeah. Do you know what time you got there? Not really. like between 8 and 9:00 o'clock, did you go with someone? ?Vac-qua.? n?I-??udvu?I?t 25' Yes. I went with Vinelle Dukes. Prior to going there, had you had a little something to drink? Yeah, at my house. And when you arrived at Pete and Mary's. did you see Darrell? Yes. When did you first see him? When he He was standing at the bar and he seen me, and at the time he was calling'me. and he came over and said hi. and he gave me a kiss on the cheek and he started talking to Vinelle, we went over to a booth and sat down. Sometime that evening did you see him with Bridgette Struthers? Yes, I did. Where did you see that? In the bathroom, ladies bathroom and I told him he had no business going in the ladies bathroom. and I told him to get out of there and he left. sometime that evening were you seated at a table with him while he had something? Yeah, he was eating a sandwich. Who else was there? Bridgette, Vinelle and me. in that particular n-Fn?ru?n 1- ?55? If107 booth. Do you know if Bridgette bought him that sandwich? I don't know but he was eating a sandwich with Bridgette, he was talking with her. Okay. Now, did something happen while you were there? No, we were just sitting there, we had a beer. Do you remember the police coming into the bar at sometime? We were leaving when the police stopped us at at the door. Who was we? Me, Vinelle, Diamond and another kid who had his arm in a cast. Did you know him? No, I didn't. When you say you were leaving, how far did you get? To the door on the Montello Street side? Yes. What happened? The policeman told us to stop and we stopped, and at that time he was asking us did we see anybody run through the bar and a car pulled up with were standing there 4- 108 Would this be a white guy? Yes. The Vinelle asked the man, she looked down and said do you have something to do with this -- MR. CUNNINGHAM: I object to this, your Honor. THE COURT: Sustained. Was there some people there that were looking for someone? Yeah, the policeman. Were there any other white people that were there looking around? Detectives. People in a car that you had reference to? Yes. And they are asking you whether someone ran into the bar, did they? Tell you somebody he looked like? No, they just said somebody in a long black coat. Was he standing with you at that time? Yeah. Cguld'you be mistaken about whether Bridgette was eating the sandwich in there or not that she had brought in there earlier? MR. CUNNINGHAM: Objection. THE COURT: Sustained. 109 THE COURT: Just a moment. What was he wearing that night, do you remember? A leather jacket, a pair of sneakers and a pair of jeans and a shirt. Anything on his head? Yeah, a cap that was turned around this way. Do you know Terri Starks? 'Yes, she's my next door neighbor. How long have you known her? I lived where I live now for three years and I've known her for three years. On the day when you were going to Plymouth to testify at the grand jury, how did you get there? I believe I don't see him in here. Yes, I do. This Detective right way back there in the back met us and gave us a ride there. Who is us? Me, Vinelle, Terri Lynn, he took us there. Was there some conversation on the way down about idEntification of the defendant? Yeah, a little bit. Did Terri say anything about that? Yeah. What did she say? nc?: MR. MR. side bar? THE MR. 110 CUNNINGHAM: Objection. COURT: ELIAS: COURT: ELTAS: Sustained. Judge, if might mane an offer at Yes, you may. Side Bar: I think, if permitted to answer,: the witness would say Terri said to the police officer I don?t know why you are taking me down there, I don't know nothing, I never saw anybody and can't pick anybody out. I think that would go to the weight of the taped interview and her stand testimony. MR. CUNNINGHAM: That's clearly hearsay, your Honor. MR. ELIAS: It's not being offered for the truth of the matter. THE COURT: credibility? MR. ELIAS: .THE COURT: prior to court MR. MR. ELIAS: It's offered to impeach her Yeah. Prior inconsistent statement Even a consistent statement. CUNNINGHAM: Terri was never asked that question. Hun--1qq THR COURT: I made a summary on identification, but it's in the lobby. I don?t remember what she said now. She testified that she picked out a photo of the person who shot Rodriguez. Okay, how is this inconsistent with what she testified? MR. ELIAS: That was in the courtroom. She's going down to the grand jury and going to testify under oath that she knows who is -- THE COURT: No, we're talking?about, it has to be inconsistent from what she testified to. MR. ELIAS: It is, she's going to go from that car and go under oath -- THE COURT: 'I'm not talking about the grand jury. You're trying to add the conversation in the car, you're saying that's inconsistent with her testimony. What do you say to that, Mr. Cunningham? MR. CUNNINGHAM: It's not inconsistent. THE COURT: Why? CUNNINGHAM: Because there was never any testimony as to what was said in the car. THE COURT: Wait a minute, she said that she identified him and she didn't know anything and: now she's saying at least at that time she didn't q?qoq?y-?q_ 112 know anything about it. Isn't that inconsistent? MR. CUNNINGHAM: Well, I would suggest, if Mr. Elias wanted to get into this area, he could have asked her that on his cross-examination. THE COURT: The objection is overruled. MR. ELIAS: Should I ask the question again. THE COURT: You may put the question again, sir. Q. Did Terri in the motor vehicle with Detective Smith, with yourself and Dukes, on the way to the grand jury in Plymouth, say something concerning her ability to identify the person who did the shooting on November 11, 1985? A. She said she didn?t know who who Diamond was, that whoever ran acroSs the front of the car, wherever it was, that this person went by the car, she said, Edna said, that's Diamond. Q. Did she say she could see that person? A. We didn't converse that much. MR. ELIAS: [You may inquire. lCross Mr. Cunningham 1! BY MR. CUNNINGHAM: Q. Miss Anderson, when was it that you first became 22 23 24 25 acquainted with Diamond? Maybe about around Halloween time. In October of 1985, is that fair to say? ?m-hm. Did you know him as Diamond Darrell Jones? Diamond. Did you know his full name at that time? No. Now, directing your attention to November 11th, what time was it that you arrived at Pete and Mary's? Like I said. I'm not really sure any more. but it was somewhere between 8 and 9:00 o'clock. Could it have been.later? I don't think so. And you went there with Vinelle Dukes, is that correct? Yes. You had been drinking before you went to the bar, is that correct? Yes. And did you have anything to drink when you arrived at Pete and Mary?s? A beer, a Heineken. And you didn't know what time it was that you had RICHARD L. BENDIXEN - Official Court Reporter new that Heineken? No, not exactly. Are there any clocks in Pete and Mary's? Yeah, there is one, but it's fast. And is it fair to say that you weren't paying attention to time while you were at the bar. Positive. At some point in time the individual you know as Diamond was in the ladies room, is that correct? Hm-hm. And a woman that you knew as Bridgette was there also? Hm-hm. And you told Diamond to get out of the bathroom, is that right? Hm-hm. Do you recall what time that was? No. Now, at some point did you have an occasion to go into the poolroom at Pete and Mary's? I?might have. Do you recall whether you did or you didn't? 1 don't recall whether I did or didn't. I might have. And did you also have an occasion to go to the bar RICHARD L. BENDIXEN - Official Court Reporter . Pete and Mary's? Yeah, I got my beer at the bar. And you were obviously in the ladies room at some point in time, is that correct? Yes. So you weren't positioned or seated in a booth the whole time you were at Pete and Mary's? No. So you were walking around? Yeah. Was Diamond at the bar when you first arrived there? Yeah. And you weren?t able to watch him the whole evening, were you? .No, but he was sitting there with us. When you were sitting down? Yes. Do you know an individual by the name of _Bo Bo Watson? Hurhm. Was he there that night? I didn't see him in the bar. How about Lisa Pina. do you know her? Yeah, I know Lisa. RICHARD L. BENDIXEN Official Court Reporter the bar that night? I believe so, I'm not sure. Do you know Edna Levine? Hm-hm. Was she at the bar that evening? I didn't see her in there either. How many people do you think were at Pete and Mary's that evening? I don't know, it was a little crowded in there. I would say maybe about 25, 30 people} if that many. Did you see an individual by the name of Pow or by the nickname of Pow? Hm-hm. Do you know him? Yes. Did you know of him? I knew of him. Did you ever see the defendant and Pow talk with each other during the night? Yes. Where has Pow? Where was he? Yes. The booths in Pete and Mary?s come out like 1, 2, 3, like, some other people were here, we were in RICHARD L. BENDIXEN Official Court Reporter 117 the middle, and Pow and another guy and Meko was in this group right here. And at some point in time the defendant sat down and had a submarine sandwich at your table. is that correct? Yes. And who was at the table at that point? When he was eating the sandwich? Yes. Me, vinelle, Bridgette and him. Did you see where he got the subject from? No. I think I had went to go to the bar to get the beer, and when I got back, him and Bridgette, and they were sitting there, and I don't know where he got it from. It's your testimony Bridgette was eating a sub? He was eating the sub, Bridgette was beside him, and I sat down on the end. At some point you left. isn't that correct? Me, him and Vinelle and this other kid who had the east: we left to go together. Where did Bridgette go? I don?t know, Bridgette didn't leave with us. But Bridgette was-there when Diamond had the sub, is that your testimony? RICHARD L. BENDIXEN Official Court Reporter .118 Hm-hm. After -- Did the police come into Pete and Mary's at some point in time that night? We were on our way out the door and, say, like there is a step right here, and we had stepped down on the sidewalk, and that's when the policemen stopped us. What door is that? Th6 door facing Montello Street. Do you know what time that was? A little.after ten o'clock, it was a weeknight and- I to work the next day and I don't stay out too late on weeknights. You're not positive as to the time, are you? No, like I said, the clock in there was fast, but it was a little after ten, because I think I got home about ten?thirty, and it's-not that far from there to there. So is it your testimony that it could have been before ten clock that you left the bar? N94 it was a little after ten. Now, your testimony on direct examination was that. you rode down to the Plymouth County Grand Jury with Terri Starks, is that correct? Hm-hm. RICHARD L. BENDIXEN Official Court Reporter 119 And she just told you that she didn't know what Diamond Jones' name was that evening, is that correct? Yes. She never said that she couldn't identify the person who shot Guillermo Rodriguez? She said I don't know him, her words were I don't know why I am going there, I don't know that boy, the only time I know is the statement Edna made that that was him. She said she didn't know the guy's name, is that correct? Right. MR. CUNNINGHAM: Nothing further. MR. ELIAS: Unless the Court has some further inquiry, I have no further questions. THE COURT: You may step down. MR. ELIAS: May we see you at side bar, Judge? THE COURT: You may. Side Bar: MR. ELIAS: Judge, I'd ask if we can recess now until tomorrow morning. I have not made a judgment, and I would like to talk about it with my client at length as to whether I intend to call RICHARD L. BENDIXEN - Official Court Reporter a 17 18 19 20 120 Terri starks. If I have anything further, it would be her, and not too long, anyway, so I think we could argue and charge THE COURT: Before I forget, is there anything you would like me to say concerning the defendant's failure to testify? MR. ELIAS: Can I think about that overnight, too? THE COURT: You.may think about it. So, right now you want to recess for the day? MR. ELIAS: With your permission, yes. THE COURT: What about Augustine, are the records here yet? THE COURT: They are not certified. MR. CUNNINGHAM: They are not certified. THE COURT: The original records. MR. CUNNINGHAM: I have a computer printout. THE COURT: If you summons them in, they I have to bring them. Otherwise, a warrant goes MR. CUNNINGHAM: I don't think Gladys would be too happy with that. THE COURT: I have done it for hospitals. That doesn?t mean they have to disclose it. All RICHARD L. BENDIXEN - Official Court Reporter meanS'is they have to be here, that's all, and a summons is a court order. That isn't a special order. That is a court order. MR. ELIAS: Mr. Augustine is in custody. They could bring him up tomorrow. MR. CUNNINGHAM: If I could have five minutes, I was handed the conputer printouts. THE COURT: All right, we will -- I'll recess then until tomorrow. (END OF SIDE BAR CONFERENCE) THE COURT: Mr. Foreman, ladies and gentlemen of the jury, there be no further evidence presented to you today. We're going to I?m going to excuse you until tomorrow morning at 9:00 o'clock in the morning, and again. I must remind you that you are not to discuss this. caSe with anyone, not even amongst yourselyes, until such time as you deliberate it after being- instructed by me on the law. Court will stand in recess. (Adjourned) CERTIFICATE 'This is to certify that I am a duly appointed Official Court Reporter to the Massachusetts Superior Court. and that the RICHARD L. BENDIXEN - Official Court Reporter 122 1 foregoing contains a true and accurate 2 transcription of my shorthand notes, taken in the 3 afore-mentioned matter, to the best of my skill 4 and ability. 5 I EA 5 Richard L. Bendixen X'f 7 Official Court Reporter :RICHARD L. BENDIXEN - Official Court Reporter