IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PASCO COUNTY, FLORIDA
CRIMINAL DIVISION
CASE NO. 04-04412CFAWS
STATE OF FLORIDA,
: A P P E A L
:
:
Plaintiff,
vs.
:
JOE FRANK DAIAK JR.,
:
:
Defendant.
:
------------------------------x
BEFORE:
HONORABLE JOSEPH BULONE, J.
Sixth Circuit
PLACE:
Pasco County Government Center
7530 Little Road
New Port Richey, Florida
DATE:
November 27, 2006
TIME:
Commencing at 9:00 a.m.
REPORTED BY:
P. ALECIA COX-WILKINS
Sixth Circuit
COURT REPORTER
Notary Public, State of Florida
Pages 1 - 147
D A Y
O N E
V O L U M E
J U D Y
I
M O U K A Z I S & A S S O C I A T E S
C O U R T R E P O R T E R S
8624 Massachusetts Avnue
New Port Richey, Florida 34654
(727) 942-9793
A P P E A R A N C E S
EVA VERGOS, ESQUIRE
Assistant State Attorney
7530 Little Road
New Port Richey, Florida
Attorney for the State
JOHN AMBROSE SHAHAN, ESQUIRE
536 E. Tarpon Avenue, Suite 3
Tarpon Springs, Florida
Attorney for the Defendant
I N D E X
PAGE
Opening to the Jury Panel
29
Voir Dire
55
Jury Impaneled
130
4
1
Thereupon,
2
THE COURT:
What's the updated situation?
3
MR. SHAHAN:
We're ready to go.
4
MS. VERGOS:
I gave the information, the witness
5
list, and also amended the information to read Joe Frank
6
Dyaik Jr.
7
THE COURT:
8
pretrial motions do we have?
9
MR. SHAHAN:
10
13
And what sort of
I have a Motion in Limine, another
motion for Statement of Particulars.
11
12
All right.
THE COURT:
Let's hear the Motion in Limine
first.
MR. SHAHAN:
Okay.
Your Honor, basically, our
14
Motion in Limine is as it relates to some depositions
15
that were taken in the case.
16
depositions of --
17
MS. VERGOS:
Ms. Vergos took the
Judge, I apologize for
18
interrupting, but I believe that the Defendant's fiancee
19
or girlfriend is in the courtroom.
20
21
22
MR. SHAHAN:
That's fine.
We haven't started
the trial yet.
MS. VERGOS:
I understand, but some of the
23
things that we're going to be discussing are things that
24
are going to be included in her testimony; so I would
25
invoke the rule and ask her to step outside.
5
1
THE COURT:
If it's going to involve her
2
testimony, I'll go ahead and invoke the rule.
3
involves the testimony of someone else, I'll allow her to
4
stay.
5
6
MS. VERGOS:
The motion that Counsel is arguing
right now involves her, and she's listed in his motion.
7
MR. SHAHAN:
8
THE COURT:
9
MS. VALENCOURT:
10
11
12
If it
THE COURT:
That's fine.
All right, if you can step out.
Okay.
Can I get a copy of the motion, or
the original?
MR. SHAHAN:
Your Honor, I delivered those
13
motions today.
I thought we laid them up here.
14
As you know, Your Honor, the State has charged multiple
15
counts of aggravated assault on law enforcement officers
16
and, basically, Florida Statutes 784.021 and 784.072, as
17
well as the jury instructions show there are seven
18
element of intentional acts that must be proven in order
19
for the jury to convict the Defendant of the charge
20
alleged that he intentionally fired a firearm; that he
21
intended that he would put these folks in fear; that he
22
knew they were law enforcement officers, et cetera.
23
Now, when Ms. Vergos took depositions of defense
24
witnesses, Donna Vaillancourt, fiancee; Ella Hancock, her
25
mother, and Dennis Hancock, Ms. Vaillancourt's brother,
6
1
she asked them all kind of questions about Mr. Daiak's
2
impairment, whether he drank, what he drank, what he was
3
looking like, and that type of thing.
4
Now, we have over 20 plus police officers that
5
did reports in this case.
We have the original affidavit
6
of probable cause, and we have a second affidavit of
7
probable cause.
8
the shooting occupied dwelling charge, they came back
9
later with an amended affidavit of probable cause saying
Basically, after Judge Andrews threw out
10
that my client had said the words, "die, die, die" as
11
part of the shooting incident.
12
But in none of those documents did anybody
13
advise that he smelled of alcohol; nobody gave him a
14
breath test; nobody gave him a blood test.
15
ones that said he was a danger to himself or others, and
16
took him to the hospital.
17
to give him a blood test, urine test, any kind of test
18
about alcohol.
19
They're the
They didn't ask the hospital
They never collected any alcohol.
My concern is that she was asking these
20
questions about the alcohol situation, because she's
21
going to try to put into evidence that my client was
22
under the influence and drunk, which explains his
23
actions, and somehow argue that his alcohol impairment
24
caused him to use the firearm recklessly, and then tried
25
to substitute by getting into that angle of questioning,
7
1
which isn't legitimate, that recklessness for the
2
intentional acts specifically required by the statute;
3
that he intended to shoot; that he intended to shoot at
4
law enforcement officers; that he knew they were law
5
enforcement officers; he intended to put them in fear.
6
And I'm asking the Court not to allow this
7
evidence because it's irrelevant; this is not legitimate.
8
The fact basis that they can argue the level of his
9
impairment, they collected no facts, they collected no
10
scientific evidence, and it will allow the jury to
11
consider irrelevant evidence to overcome what I think is
12
going to be overpowering evidence on our side that these
13
folks, these cops that -- to be able to prove that they
14
were in fear, have to say that they say Mr. Daiak, that
15
he shot at them, that they knew that, you know, they were
16
in eminent fear that they were going to get hit by the
17
shots.
18
None of the shots even left the house; two of
19
them don't even agree that they saw any shots and, in
20
fact, the two officers say that they saw something, they
21
just saw a big puff or cloud.
22
another said I don't know, a CD size.
23
through one of those who says there's a big dark green
24
wooden door that my client is behind, and off to the side
25
on one side is some '50's kind of art deco glass that's
One says a pizza size,
And this is
8
1
kind of like they have at nightclubs and stuff.
2
that's all that he could even see.
3
Court to deny any alcoholic references in voir dire, or
4
at the end, at the closing statement.
5
THE COURT:
6
MS. VERGOS:
So
So I'm asking the
What says the State?
Judge, we don't intend to argue the
7
level of his alcohol intake, or what that level may have
8
been regarding his intoxicated condition, if any at all,
9
but if there is evidence that, during the course of the
10
night, and that they were drinking, that they were doing
11
different things, that is likely to come out in regards
12
to what they're doing that night.
13
And what they're doing leads up to the course of
14
this incident.
15
responded as a result of a domestic call that came out,
16
and that was the basis that they were initially at the
17
residence.
18
Defendant come out, et cetera, that's how this occurs
19
afterwards.
20
The law enforcement in this case
Once they got there and requested that the
As far as whether or not it leads to the
21
elements of the offense, anything of that nature, Judge,
22
the act is an intentional act, so I'm certainly not going
23
to be arguing that he was too intoxicated to know what he
24
was doing, that would be contrary to anything that I
25
would certainly be saying.
But if it does become
9
1
necessary for me to talk to the jury about what was going
2
on, I would not want to be precluded from that.
3
The Defense is arguing that the Defendant has
4
been using that entire day to prepare for the hurricanes
5
that were coming; that he was boarding up the house
6
getting ready for this major storm.
7
were just hanging out having a couple of beers.
8
think that it goes especially to rebut the defense that
9
they're bringing forth in the case that there was such a
In fact, Judge, they
So I
10
big concern about this hurricane that was coming that
11
this was the focus of the day; this was the focus of the
12
evening; this was the focus of the night.
13
And that in fact when the officers got there,
14
the Defendant's claim was that he thought it was looters
15
who were attempting to hide as a result of the
16
hurricanes, and taking the opportunity from the
17
hurricanes to loot the residences, and that's why he
18
fired his firearm.
19
The facts of the day as are told to us by his
20
fiancee, by other people that were involved with him that
21
day are not that -- they are not -- they don't paint that
22
picture, Judge.
23
preclude the State from rebutting those inferences, or
24
speak about those facts in the case in chief, or any
25
rebuttal case, if that becomes necessary.
I would certainly ask the Court not to
10
1
THE COURT:
All right, the facts that lead up to
2
this incident, I believe are relevant based upon what the
3
State just mentioned; so I'm going to allow them to get
4
into what the Defendant and others at his house were
5
doing immediately before this happened.
6
includes having a couple of beers, then it includes
7
having a couple of beers.
8
bring out through the police officers that they didn't
9
notice an odor of alcohol, or they didn't notice that he
And if that
And if Mr. Shahan wants to
10
had the classic signs of being impaired, then he
11
certainly can do that.
12
But I think, as I said, that what the Defendant
13
was doing immediately before this is relevant to show the
14
jury a whole picture, and to rebut any possible -- a
15
defense that the Defendant has, or to corroborate any
16
possible defense that the Defendant has; so that motion
17
is denied.
18
MR. SHAHAN:
Could I ask for a clarification of
19
the Court's ruling?
Will the Court order that they
20
cannot say that he was under the influence to the extent
21
that his faculties were impaired because they, like I
22
said, made no note in any of the 26 police reports that
23
he had odor on his breath; they did not give him a
24
breathalyzer test, and they did not give him any blood or
25
urine test.
11
1
2
THE COURT:
question?
3
4
Does the State plan on asking that
MS. VERGOS:
Whether he was under the influence,
or the fact that his normal faculties were impaired?
5
THE COURT:
Since there's no objection, I'll go
6
ahead and grant that motion to the extent that they
7
cannot ask anyone if the Defendant's normal faculties
8
were impaired by alcohol.
9
MR. SHAHAN:
10
11
THE COURT:
MR. SHAHAN:
13
a copy for the Court.
14
Honor.
16
17
Thank you, Your Honor.
All right.
And then you had another
motion, Statement of Particulars?
12
15
THE COURT:
Yes, Your Honor, and I need to get
I'm approaching with it, Your
They don't have attachments on it,
Exhibits A and B?
MR. SHAHAN:
Yes.
Your Honor, I need to check
18
for a minute to make sure I gave you the right one,
19
because it was amended.
20
No.
Your Honor, I want to make sure that -- does
21
your No. 4 say the information according to the sworn and
22
notarized signature of Assistant State Attorney, Mary
23
Hansel was signed January 18th?
24
THE COURT:
25
MR. SHAHAN:
Yes.
I wanted to make sure.
Thank you,
12
1
Your Honor.
2
MS. VERGOS:
Did you give him the right one?
3
MR. SHAHAN:
I hope so.
4
Okay, you got the right one.
5
6
Let me see.
We all got the
right one.
Your Honor, this might seem a little unusual
7
this late in the game, but there are certain aspects that
8
even though taking the deposition, are missing, in my
9
opinion, basically, we were pointing out in No. 3, that
10
the correct legal name of the Defendant was not in there
11
identifying him, but now I understand from Ms. Vergos
12
that she has amended the information; so that's not
13
really a point of relevance.
14
THE COURT:
15
MR. SHAHAN:
Correct.
The other thing that is defective
16
about the information is that Mary Hansel signed the
17
thing under oath, notarized on January 18th, 2004; that's
18
like seven months before the alleged offense was
19
committed.
20
bit of a deficit in terms of being prepared for this
21
trial is that they're required to specify as definitely
22
as possible, state facts, other material facts of the
23
crimes charged, and the material facts of the crime
24
charged is what's missing here.
25
aggravated assault on four different police officers.
But the thing that's putting us in a little
They've charged us with
13
1
THE COURT:
2
MR. SHAHAN:
Uh-huh.
In the initial affidavit for
3
probable cause, there was no mention of anything other
4
than the fact that my client was in the house and shot
5
off two bullets.
6
threw out the initial charge, they came back and did an
7
amended affidavit of probable cause in which Officer
8
Barrington and another officer stated my client had said
9
the word "die, die, die."
10
As I mentioned, after Judge Andrews
Now, in determining how did the Defendant
11
unlawfully threaten to do violence to each of the alleged
12
victims, and what did he say or do, two of the other
13
police officers in their depositions more or less said
14
they didn't hear anything, all they heard was two shots.
15
So I would like the prosecuting attorney upon
16
order of this Court, to detail how those particular
17
officers are going to be testifying, how it was created
18
in their mind a well-founded fear that violence was
19
eminent when they admit that in -- all four admit that
20
they didn't see the Defendant, they just saw -- two of
21
them just saw this puff, cloud after the shots.
22
But I don't want to be surprised when they get
23
on the stand about how they have a well-founded fear; two
24
that said they didn't see him; they didn't hear anything;
25
that violence was eminent, and how they are going to
14
1
testify that they felt it was eminent when the two shots
2
that were shot were shot into a couch inside the house;
3
he never left the house, and the other shot went into a
4
bookcase that then ricocheted off into the wall.
5
And those are things that they have to prove in
6
the case.
7
haven't got any answers on that, and so I think that they
8
should have to tell us specifically in advance so we know
9
when the man gets up on the stand what he's going to
10
11
But in even taking their depositions, we
testify to.
And the senior officer, Mr. McVey said they were
12
out there in their lawful performance, lawful duty, they
13
were out there to do was -- allegedly Mr. Daiak was a
14
threat to himself, because he had pointed a gun at his
15
head, and McVey testified that this is usually the kind
16
of situation under the general orders
17
in a hostage negotiator and someone acquainted with
18
mental illness, they didn't do that.
19
where they bring
Instead, they brought seven or eight officers
20
with machine guns, all kinds of large firearms, and that
21
type of thing, and some of the others didn't.
22
weren't really sure they were out there except McVey told
23
them to be out there.
24
know ahead of time as to each of the four victims.
25
are the ones I'm concerned about, the four people named
They
So I think she should be able to
Those
15
1
in the charged information, as to what they thought
2
their lawful duty they were doing was at the particular
3
time.
4
And one of the things that came out in my
5
client's Motion to Dismiss, and his testimony in the
6
Motion to Dismiss, amended Motion to Dismiss, is that he
7
is saying that, you know, there was an opening of the
8
front door, the screen door of the house before he shot
9
his shots off.
And we would like the Court to order them
10
to see what law enforcement person in performance of his
11
duties included the opening of the front door, screen
12
door of a house, especially since they came back two
13
hours later than the alleged situation where he
14
supposedly was putting a gun to his head.
15
It seems that if it was an emergency situation,
16
they would have been out there immediately, or they would
17
have went to a Judge like yourself, and got a search
18
warrant, arrest warrant, or some kind of warrant; so we
19
need that information to be able to understand what
20
they're going to say on the stand.
21
And even if the officers in their deposition
22
agreed that the hallway is offset from the door where
23
those -- where that little light situation is, those
24
squares I'm talking about, and that they never saw the
25
Defendant, they never saw him.
And if he didn't see
16
1
them, we need to know with particularity how they're
2
going to attempt to prove that my client had knowledge
3
that they were law enforcement officers.
4
them, then how can they see him?
5
they have to prove as elements of the case; that he knew
6
they were law enforcement officers.
7
If he can't see
And that's something
And this is especially important, because in all
8
the depositions, they admitted there was no megaphone
9
used by McVey or anybody else; there was no loud speaker
10
used; there was no device, amplified sound, and this is
11
all happening during hurricane Frances with squirreling
12
winds, and that type of thing.
13
couldn't or wouldn't answer those questions in their
14
depositions.
15
And, basically, they
Another interesting thing about these police
16
reports, in none of the police reports do they state at
17
all what time of the night that they came back when the
18
firearm was allegedly used.
19
they were there actually twice, or maybe three times.
20
They were there allegedly once with Donna, where Donna
21
said well, she thought she saw him off to the room at the
22
side there, and that the gun was to the head, but they
23
didn't go in then.
That's important, because
24
They came back later, and then there were these
25
shots, and then came back later on, took a battering ram
17
1
to the house, and did a percussion thing, the SWAT team
2
jumped on him with their suits on.
3
have a right to know what exact time they're claiming
4
that these alleged offenses occurred, because it could
5
impact our defenses, and that type of thing.
6
So I think we should
And as to the two -- well, as to the two
7
officers that don't even agree that they saw any after
8
effects of the shots, we want to have this Court order
9
that they tell us how they had actual knowledge that a
10
firearm was actually discharged such that to put them in
11
fear.
12
And that pretty much covers it, Judge.
THE COURT:
All right.
Well, as far as the
13
amended information is concerned it's, obviously, a
14
Scribner's error.
15
however, the notation at the top says "Fall term, 2005,"
16
and then it also has a stamp from the clerk's office,
17
that being filed with the clerk on January 18th, 2006; so
18
I would assume that this amended information was filed in
19
January of 2006; is that right, State?
20
21
22
It says the 18th day of January, 2004,
MS. VERGOS:
It was filed in January of 2006, it
was signed on January of 2000 -- yes, Judge, of 2006.
THE COURT:
Right, it just says 2004.
It has
23
the correct date on the information as far as what the
24
allegations are concerned, but just where Ms. Hansel
25
signed it, it says 2004 for whatever reason.
18
1
MS. VERGOS:
Well, Judge, what happened was,
2
they pulled the old information and amended the old
3
information, and just didn't change the date, the year on
4
the bottom.
5
error.
6
I agree with the Court, it's Scribner's
THE COURT:
All right, so I'm going to find that
7
there's no prejudice at all in that, because I'm sure
8
that you got that in January of 2006, shortly after it
9
was filed, or you got notice of it.
And as I said, it
10
was filed with the clerk's office in January of 2006.
11
So, obviously, it was filed in 2006, although it was
12
signed by Ms. Hansel in 2004; so I'm going to find
13
there's no prejudice involved at all.
14
As a matter of fact, I don't even think the
15
State has to amend the information, because that's not
16
part of the charging document, that's just when it was
17
signed by Mary Hansel, who is an Assistant State Attorney
18
in Pasco County.
19
What says the State about the rest?
20
MS. VERGOS:
21
THE COURT:
22
MS. VERGOS:
I don't know.
Anything?
I'm not --
All right, well -I'm not sure what the rest is,
23
Judge.
Everything that Counsel is talking about are
24
things that were covered in depositions, things that he
25
could have asked in depositions.
I don't recall a single
19
1
detective, or deputy, or sergeant saying they're not
2
going to answer a question, or refused to answer a
3
question.
4
I believe everybody answers the questions posed
5
to them.
I'm not sure Counsel posed those questions to
6
them during the course of the deposition and, frankly,
7
Judge, I haven't looked to find out whether or not he
8
did.
9
sufficient, I believe that all the information that is
As far as what the information needs in order to be
10
needed to make the valid charging document is included in
11
the charging document.
12
information that is missing from the
13
that would render that charging document insufficient, or
14
would fail to give the defense sufficient notice of what
15
the charges are.
16
Counsel pointed them out, but that's certainly not an
17
issue for the Court at this point.
18
I don't believe that there's any
charging document
I disagree with some of the facts as
THE COURT:
All right, the status of the law on
19
this is that the motion has to track the language of the
20
statute, and the motion clearly does that.
21
to that, the defense has numerous police reports -- I
22
believe they said twenty.
23
took the depositions of all four of the victims in the
24
case along with other witnesses, so they've had plenty of
25
opportunity to find out what those witnesses observed and
In addition
And in addition to that, they
20
1
what they did not observe.
2
Now, obviously, if they say something different
3
in court than what they said in the deposition, then the
4
defense obviously will have the opportunity to impeach
5
that witness.
6
going to say something different before they testify in
7
the trial than what they said in the deposition, please
8
let the defense know in advance.
9
If the State finds out that any witness is
MS. VERGOS:
10
THE COURT:
Sure.
Because you always have a continuing
11
duty to provide the defense with discovery as does the
12
defense have the continuing duty to provide you with
13
discovery.
14
question about when this happened, and it's not in any of
15
the twenty police reports.
16
affidavit, it indicates that the aggravated assault on a
17
law enforcement officer occurred on September 5th at
18
12:11 a.m.
19
true?
And the last issue is there may be some
And the probable cause
Is there anything to indicate that that's not
20
MS. VERGOS:
21
THE COURT:
No.
All right, so it was 12:11.
And,
22
obviously, this is not an alibi case, which is the main
23
function of the Statement of Particulars.
24
fact, the Statement of Particulars isn't nearly as
25
important as it was in the old days before we had the
As a matter of
21
1
liberal discovery rules back.
Back in the old days, the
2
defense got a copy of the information and statement of
3
particulars, and not much else.
4
police reports, and they weren't able to take
5
depositions; then eventually they got what is called a
6
miniaturized portion of the police report, which means
7
they possibly got a copy of the police reports.
8
course, they get all the police reports, any statements
9
made by anyone in the case, along with the right and
They didn't get the
Now, of
10
opportunity to take depositions of all listed witnesses.
11
And I believe that the State listed all their witnesses,
12
eight witnesses as opposed to one or two witnesses.
13
MS. VERGOS:
14
THE COURT:
That's correct.
So the defense had an opportunity to
15
take depositions of everybody; so I'm going to deny the
16
defense motion for a statement of particulars.
17
MS. VERGOS:
Judge, I will attempt to make all
18
the additional witnesses I added today available for
19
deposition tomorrow for Counsel.
20
seven that I added.
21
THE COURT:
22
I know that there's
Are they all police officers who
were at the scene?
23
MS. VERGOS:
Yes, they're all police officers.
24
They all have police reports.
25
say anything different than their police reports.
I can't imagine they would
22
1
Counsel has copies of all their reports.
2
3
THE COURT:
All right, so tomorrow at this --
what time can you have them here?
4
MS. VERGOS:
I don't know yet.
5
MR. SHAHAN:
We'll wait.
6
apologize, Judge.
I'm sorry, I
My client asked me something.
7
THE COURT:
The witnesses that she just added,
8
they're all police officers.
9
she's going to call all of them.
Obviously, I don't know if
They've listed all of
10
them, and they've done police reports; you know who they
11
are; she's going to have them available tomorrow to take
12
their depositions.
13
MR. SHAHAN:
Judge, that's not going to help me
14
at all.
I talked to your judicial assistant a little
15
before lunch.
16
was letting the Court know that I have a trial, Jamell
17
(ph.) Brown's that's going tomorrow in Pinellas County.
She was going to look for the faxes.
18
THE COURT:
19
MR. SHAHAN:
20
I
In front of which Judge?
That's interesting.
There's a new
judge.
21
THE COURT:
22
THE WITNESS:
23
THE COURT:
24
MR. SHAHAN:
25
THE COURT:
Judge Campbell?
Yes, Judge Campbell.
We'll get that continued for you,
Pardon?
We'll get that continued for you.
23
1
MR. SHAHAN:
2
THE COURT:
3
4
5
about it.
Oh, okay.
That's a done deal; don't worry
As a matter of fact -MR. SHAHAN:
It was continued a couple of weeks
ago with a civil trial, Judge Boyer.
6
THE COURT:
7
MR. SHAHAN:
What was the name of the Defendant?
Jimell Brown.
Like I say, my
8
assistant has faxed to your judicial assistant the actual
9
case number.
10
11
It's Jamell Brown.
THE COURT:
in misdemeanor division, right?
12
MR. SHAHAN:
13
THE COURT:
14
MR. SHAHAN:
15
THE COURT:
17
MR. SHAHAN:
18
THE COURT:
19
MR. SHAHAN:
20
THE COURT:
22
Yes.
What's the charge there?
Charge is possession of marijuana
and cocaine.
16
21
That's a misdemeanor, because she's
Cocaine?
It's a misdemeanor?
It may just be marijuana.
Okay.
Marijuana plus paraphernalia.
Possession of marijuana, possession
of paraphernalia?
MR. SHAHAN:
There's a lawyer called Dittmer,
23
who is going to be very unhappy because it got continued
24
two weeks ago.
25
THE COURT:
Mr. Dittmer?
24
1
2
MR. SHAHAN:
Dittmer, or something.
Let me look
and see if I can get his name.
3
THE COURT:
4
MR. SHAHAN:
He's the Assistant State Attorney?
If it's not Dittmer, it's a name
5
similar to that.
6
Courtroom 22, third floor.
7
trying to get it continued two weeks ago, first, thank
8
God, it went to a different judge than the original
9
Kaddell -- and no, I think it's going to be done by the
10
11
12
13
But, anyway, okay.
Yeah, and it's in
And when Judge Boyer was
one you just mentioned, Judge Campbell.
THE COURT:
Who is it normally in front of,
whose division?
MR. SHAHAN:
Normally, Judge Kaddell, because
14
it's Courtroom 22, third floor.
15
assistant has the case number and everything.
16
THE COURT:
17
care of that.
18
that cleared up.
19
I think your judicial
All right, so we're going to take
I'll be back in five minutes after we get
MR. SHAHAN:
Okay.
Thank you, Your Honor.
20
- - -
21
(Short recess.)
22
- - -
23
(Court reconvened, whereupon, the following took place:)
24
25
- - THE COURT:
All right, so that's not quite a
25
1
done deal yet, but I'm sure it will be.
2
3
4
5
6
MR. SHAHAN:
My fax, did it get to you, Your
Honor?
THE COURT:
I don't know, because I can't find
my J.A. right now.
MR. SHAHAN:
I'm just saying before lunch, she
7
just said fax it to the old number.
8
it to the old number, and have it faxed to the -- and she
9
thinks that fax is now on the second floor.
10
THE COURT:
She told me to fax
We'll take care of that.
So I'll
11
try and make it so that you don't have to go down to
12
Pinellas at all tomorrow, but if you do, it will only be
13
for the morning.
14
your witnesses here at 1:00; is that good?
15
So, State, why don't you have all of
MS. VERGOS:
I'll do the best I can, Judge.
We
16
also spoke briefly about the witness that Mr. Shahan
17
listed, the doctor, Dr. Dylan.
18
reports; I don't have any of his documentations; I don't
19
have any of the medical charts; I don't have anything
20
from this doctor, and I don't know if he's going to be
21
available to be deposed tomorrow.
22
MR. SHAHAN:
I don't have any of his
We're having trouble that he's
23
going to be available as a witness, so we'll withdraw him
24
as a witness.
25
THE COURT:
All right, that takes care of that.
26
1
All right, Mr. Shahan, make sure you have a
2
Court Reporter there tomorrow at 1:00, and State, can you
3
do that in your office?
4
MS. VERGOS:
5
THE COURT:
Yes, in my office.
So 1:00, State Attorneys Office.
6
Mr. Shahan, makes sure you bring a Court Reporter, and
7
State make sure you bring the witnesses.
8
All right, so that takes care of all the preliminary
9
matters.
10
MS. VERGOS:
Judge, as far as the Motion in
11
Limine is concerned, I want to read through some of the
12
information that Mr. Shahan has provided to the State,
13
some supplemental, reciprocal evidence and things of that
14
nature, and I assume if there are any additional motions
15
that need to be heard by the Court, that they can be
16
heard either tomorrow or Wednesday morning?
17
THE COURT:
Sure.
I mean, if you want to hear
18
anything on the case, obviously, I'll be here in the
19
morning.
20
1:00, I'll make myself available in the afternoon.
21
anything that needs to be heard, I'll be available to
22
hear it.
23
If Mr. Shahan is not going to be here until
MR. SHAHAN:
So
The way I understand it, Judge,
24
basically, if you don't hear anything back before we
25
leave here today, then I'm just going to go down to
27
1
Pinellas and tell that Judge that under state/federal
2
conflict rule, criminal jury trials of a felony nature
3
take precedence, and that's why I'm supposed to get my
4
continuance.
5
THE COURT:
6
to her before then.
7
she's in court right now, and the only thing that she was
8
able to do was quick conference back to me so far the
9
fact that she's in court.
10
Right.
I expect to be able to talk
I did court conference her, but
And I'm sure that she's paying
attention to what's going on in court.
11
MR. SHAHAN:
12
THE COURT:
Yes.
So I anticipate they will speak to
13
her later in the day.
14
technological doohickeys here.
15
these things do?
16
THE BAILIFF:
17
THE COURT:
18
THE BAILIFF:
19
Now, I do have all kinds of
Do you have any idea what
None of them work yet.
Do we have the chart?
I'm probably also going to have to
walk the jurors up, because the elevators may not work.
20
THE COURT:
I'm sure they're going to be in a
21
very good mood, but let's bring them up as soon as we
22
can.
23
THE COURT:
24
MR. SHAHAN:
25
Is there something else?
One more thing before we take a
breakaway from the jury.
Mr. Daiak wants me to bring
28
1
this up, and I just wanted to make sure it's clarified.
2
I told him it's my normal procedure with any client, if
3
I've got questions to ask the Judge, to have a moment,
4
Your Honor to go back and talk to my client and see if he
5
has additional questions, because he is an attorney,
6
retired; he's done a lot of work on this case.
7
to make sure that I told you that I would have that right
8
to go back and ask him if he has any questions.
He wanted
9
THE COURT:
That's fine.
10
THE COURT:
Was an offer ever made in this case
11
by anybody?
12
13
MS. VERGOS:
The defense offered to plead to a
misdemeanor, and that was rejected.
14
THE COURT:
15
MS. VERGOS:
That's it?
That's the only offer that was
16
made.
17
realistic offer, and that was, apparently, rejected by
18
the defense.
19
20
21
The State spoke about what we believed to be a
THE COURT:
So there's really no offer on the
table by anybody, so -MR. SHAHAN:
No, and I encouraged my client to
22
consider taking the aggravated assault of three-year
23
mandatory, and he thought it over, and he declined.
24
that right, Mr. Daiak?
25
MR. DAIAK:
That's correct, sir.
Is
29
1
THE COURT:
All right, that's fine.
All right,
2
so we will reconvene as soon as we have the perspective
3
jurors in here.
4
THE BAILIFF:
5
THE COURT:
Yes.
Thank you.
6
- - -
7
(Jury Panel Entered the courtroom.)
8
- - -
9
( J U R Y
P A N E L
10
S W O R N)
- - -
11
O P E N I N G
T O
T H E
J U R Y
P A N E L
12
13
THE COURT:
Good afternoon.
14
THE JURY PANEL:
15
THE COURT:
Good afternoon.
How is everyone today?
Very good.
Everyone all
16
thrilled about being here?
You should be
17
thrilled because here's your opportunity to make history
18
today.
19
courthouse is open, and you can be a juror on the very
20
first day.
21
years from now, you can tell your children, your
22
grandchildren, and your great grandchildren that very
23
first day that the courthouse opened, I was a juror in
24
there, and believe it or not, it was nice and neat, and
25
clean back then, and it's a big mess now.
And it's the very first day, obviously, that this
And then when you drive by the courthouse
And that might
30
1
be a week or two from now that you get to say that.
2
Anyway, it's a miracle that we're in here.
If
3
you saw the courthouse a week ago, you would say there
4
was no way we'd be in here, but they kind of threw things
5
together and everything appears to be working.
6
that we have is that the microphones were not working
7
this morning; now we have one microphone that works right
8
here, so that's good.
9
he'll get the microphone, and I won't have to talk loudly
10
11
One thing
And when a witness is testifying,
when the witness has the microphone.
And the other problem is that there's no clock
12
in here, and I know that the lawyers were complaining
13
about that, so I got this from my office.
14
put this over here.
15
the wall.)
16
How's that?
(Referring to clock on
Everybody can see that?
All right, good.
All right, my name is Judge Bulone, and I'll be
17
presiding over this case.
18
and thank you for being here.
19
I guess we can
I would like to welcome you,
You're being asked to perform one of highest
20
duties that we have in our system of government; that is
21
to sit in judgment of the facts and determine whether
22
someone who has been accused of a crime is guilty or not
23
guilty under the law.
24
duty, and I appreciate all of you being here to perform
25
that duty.
That is an extraordinarily high
31
1
The case that is set for trial today is State of
2
Florida versus Joe Frank Daiak.
3
case is charged with four different counts.
4
four counts of aggravated assault on a law enforcement
5
officer.
6
7
The Defendant in this
There are
Is Counsel for the State ready to proceed to
trial?
8
MS. VERGOS:
9
THE COURT:
10
to proceed to trial?
11
MR. SHAHAN:
12
THE COURT:
Yes, Judge.
Is Counsel for the Defendant ready
Yes, Your Honor.
In a few moments, Counsel for the
13
State, and Counsel for the Defendant, will be asking you
14
some questions concerning your qualifications to serve as
15
jurors in this particular case.
16
selection is to select six jurors who will fairly and
17
impartially try the evidence in this case based on the
18
evidence presented during the trial, and the law
19
applicable in the case.
20
The purpose of jury
The intent is not to embarrass anyone or pry
21
into the personal life of anyone.
However, some
22
information is needed so that a fair and impartial jury
23
may be selected.
24
I would ask that you be honest and candid, and
25
straightforward in answering the questions of the Court
32
1
and the attorneys.
2
want to share with a whole group, you certainly don't
3
have to do that, just raise your hand, and we'll allow
4
you to approach the bench.
5
be up here, the Court Reporter will be up here, and I'll
6
be up here, and the Court Reporter will be taking down
7
what you say, but you won't have to share it in front of
8
the whole group if you don't want to.
9
privately and confidentially.
10
If there's any information you don't
Obviously, the lawyers will
It will be spoken
After the question and answer period, the
11
attorneys may then exercise a number of what are called
12
challenges that they can use to excuse you from the jury
13
without any reason.
14
this jury, please do not be overwhelmingly disappointed.
15
I know we have that a lot.
16
jury, and then when they're not, they become overwhelmed
17
with disappointment.
18
that sort of thing, but please try not to be overly
19
disappointed.
20
If you are not selected to be on
Everyone wants to be on the
A lot of people need therapy and
Most of you actually are not going to be on the
21
jury.
There are going to be six people on the jury.
22
We're going to have one alternate, and there are
23
twenty-four people so, obviously, chances are you're not
24
going to be on the jury.
25
that we're actually sharp enough to figure out that some
But let me say this.
That is
33
1
of you have one goal today, and that is to get out of
2
jury duty, and don't think we don't know that.
3
It seems like whenever a lawyer or Judge goes
4
anywhere, they find out what you do, their first question
5
is, can you get me out of jury duty, and the answer is,
6
no.
7
to get out of jury duty.
8
in the world, and the only way the jury system is going
9
to work is if we have jurors.
And it, obviously, hurts the system when people try
It's the best judicial system
I also think that it
10
shortchanges yourself, because every time I've had a jury
11
trial, afterwards the jurors always tell me that it was a
12
great experience for them, and they're really glad that
13
they did it.
14
This trial is going to actually begin after we
15
pick the jury on Monday, and then we'll have the trial on
16
Wednesday and Thursday, and we should be done by
17
Thursday.
18
19
Do the lawyers agree with that, or you think it
may go into Friday?
20
MS. VERGOS:
21
THE COURT:
22
MR. SHAHAN:
23
24
25
I would agree with that, Judge.
Mr. Shahan, do you agree?
I'm not sure what she agreed to.
I'm saying it might go into Friday, barely.
THE COURT:
We think there would be a trial on
Wednesday first, and it might barely go into Friday.
34
1
Now, the formal charging document in this case
2
is called the Information, because it informs the
3
Defendant of the accusations against him.
4
Information is not evidence, and it carries no inference
5
of guilt.
6
Defendant of what he is charged with, and as I said,
7
there are four counts.
8
9
The
All it does, as I said, is inform the
In Count One, it alleges that in the County of
Pasco, in the State of Florida on the 5th day of
10
September, in the year of our Lord, 2004, Joe Frank Daiak
11
did intentionally and unlawfully threaten to do violence
12
to Deputy Meizo, a law enforcement officer of the Pasco
13
County Sheriff's Office, while then having the apparent
14
ability to carry out said threat, and did create a
15
well-founded fear in Deputy Meizo that such violence was
16
eminent, and in the commission of said assault did
17
discharge a deadly weapon to wit, a firearm while the
18
said Deputy Meizo was involved in the lawful engagement
19
of his duties.
20
Mr. Daiak, at the time of the assault, did not
21
have the intent to kill Deputy Meizo.
The said Joe Daiak
22
knowing Deputy Meizo to be a law enforcement officer,
23
contrary to Florida law.
24
Count 2 alleges the same thing, except for a
25
different victim, and it states that in the County of
35
1
Pasco, State of Florida on the 5th day of September,
2
2004, the Defendant did intentionally and unlawfully
3
threaten to do violence to Deputy Mitchell, a law
4
enforcement officer with the Pasco County Office, while
5
having the apparent ability to carry out said threat, and
6
did create a well-founded fear with Deputy Mitchell that
7
such violence was eminent, and in the commission of said
8
assault, did discharge a deadly weapon, to wit, a
9
firearm while Deputy Mitchell was engaged in the lawful
10
discharge of his duties; the said Joe Frank Daiak not
11
having the intent to kill Deputy Mitchell; the said Joe
12
Frank Daiak knowing Deputy Mitchell to be a law
13
enforcement officer contrary to Florida law.
14
Count 3 alleges that on the fifth day of
15
September, 2004, Pasco County, Florida, the Defendant did
16
intentionally and unlawfully threaten to do violence to
17
Deputy Barrington, a law enforcement officer of the Pasco
18
County Sheriff's Office while then having the apparent
19
ability to carry out said threat, and did create a
20
well-founded fear in Deputy Barrington that such violence
21
was eminent and in the commission of said assault, did
22
discharge a deadly weapon, to wit, a firearm while Deputy
23
Barrington was engaged in the lawful performance of his
24
duty; said Joe Frank Daiak at the time of the assault not
25
having the intent to kill Deputy Barrington, the said Joe
36
1
Frank Daiak knowing Deputy Barrington to be a law
2
enforcement officer contrary to Florida law.
3
And, finally, in Count 4, it's alleged that
4
again on the fifth day of September, again in 2004, again
5
in Pasco County, Florida, the Defendant did intentionally
6
and unlawfully threaten to do violence to Deputy McVey, a
7
law enforcement officer of the Pasco County Sheriff's
8
Office, while then having the ability to carry out said
9
threat, and did create a well-founded fear in Deputy
10
McVey that such violence was eminent and in the
11
commission of said assault, did use a deadly weapon, to
12
wit, a firearm with Deputy McVey who was engaged in the
13
lawful performance of his duty.
14
Daiak, at the time of the assault, not having the intent
15
to kill Deputy McVey; the said Frank Joe Daiak knowing
16
Deputy McVey to be a law enforcement officer.
17
The said Joe Frank
Now, I would like to introduce you to the court
18
personnel that will be assisting us during these
19
proceedings.
20
Sheriff Bob White.
21
bailiff, and he will assist the court in making sure that
22
things are run in an orderly fashion.
23
will be able to help you with the location of areas in
24
the courthouse and other concerns, and if you have any
25
questions, he has all the answers.
Deputy Robert Hatcher is employed by
Robert Hatcher is the court's
And Deputy Hatcher
He knows everything
37
1
about the new courthouse.
2
Hatcher?
3
THE BAILIFF:
4
THE COURT:
Isn't that right, Deputy
I can guess, Judge.
All right.
He either knows
5
everything about the courthouse, or he can guess anything
6
about the courthouse.
7
Now, how was parking today?
8
THE JURY PANEL:
9
THE COURT:
Terrible.
Still terrible.
Okay.
Well, they
10
have a new parking lot, which I guess improves things
11
from incredibly terrible to just terrible.
12
more people who want to park than there are spaces, and I
13
don't think that's going to change for a long time.
So there are
14
So if you are on the jury, it may be a good idea
15
that you be here early on Wednesday, or there's plenty of
16
parking down by the sheriff's office and down by the
17
government center.
18
down there, but people don't like to park down there
19
because then you have to walk.
20
supposed to rain or anything, so you can always find a
21
space down there.
22
may not want to wear heels, and wear some comfortable
23
shoes.
24
25
There's actually always open spaces
But I don't think it's
So if you want to park down there, you
Seated to my right is the Court Clerk.
two, now we only have one, Barbara.
We had
The function of the
38
1
Court Clerk is to assist us in documenting any evidence
2
that's introduced at the trial.
3
Seated in front of me is the Court Reporter.
4
The Court reporter will be recording these proceedings
5
and will be taking down everything that is said.
6
with that mind, please remember during jury selection to
7
always give verbal answers and speak loudly and clearly.
8
There's two reasons for this, that you speak loudly and
9
clearly, and you answer verbally.
And
One reason is that so
10
the Court Reporter can take down what you say, because if
11
you just shake your head, the only thing that she may
12
have heard is some voice and put that down.
13
answer verbally yes or no, obviously, she can take that
14
down.
But if you
15
And the other reason is that if you speak loudly
16
and clearly and verbally, it will keep the person next to
17
you awake, which is an important function throughout the
18
jury selection process.
19
20
The prosecutor will please rise and introduce
herself.
21
22
MS. VERGOS:
gentlemen.
23
Good afternoon, ladies and
My name is Eva Vergos.
THE COURT:
Ms. Vergos is an Assistant State
24
Attorney in the office of the State Attorney, Bernie
25
McCabe.
Bernie McCabe is the State Attorney for Pasco
39
1
and Pinellas County.
2
Does anyone know either Ms. Vergos or Bernie
3
McCabe, or anyone associated with the State Attorneys
4
Office?
5
THE JURY PANEL:
6
THE COURT:
7
No.
First of all, those of you who are
saying no, didn't quite say it loud enough.
8
THE JURY PANEL:
9
THE COURT:
No.
And John Botelho?
10
PERSPECTIVE JUROR BOTELHO:
11
THE COURT:
12
PERSPECTIVE JUROR BOTELHO:
13
THE COURT:
14
PERSPECTIVE JUROR BOTELHO:
The "H" is silent.
And you do know someone?
Yes.
And who do you know?
I had brought some
15
charges against a person on behalf of our association,
16
and at that time, I was introduced to Mr. McCabe, and he
17
brought us back in the second time.
18
really met him, because we weren't needed, but they kept
19
us here for about four hours.
20
apologized; so that was my interface with him.
21
22
THE COURT:
So he came out and
All right, was that down in
Clearwater?
23
PERSPECTIVE JUROR BOTELHO:
24
THE COURT:
25
But that's when I
were you represented?
All right.
Here.
And what association
40
1
2
PERSPECTIVE JUROR BOTELHO:
It was Homeowner's
Association at Country Place Village.
3
THE COURT:
Okay.
Now, the fact that you've had
4
contact with the State Attorneys Office, and the fact
5
that you've had contact with Mr. McCabe, is that going to
6
affect your fairness or impartiality as a juror here
7
today?
8
PERSPECTIVE JUROR BOTELHO:
9
THE COURT:
10
No.
All right, that's not going to
affect you either way as a juror; is that correct?
11
PERSPECTIVE JUROR BOTELHO:
12
THE COURT:
That's correct.
All right, is there anyone else who
13
knows either Ms. Vergos, or anyone from the State
14
Attorneys Office?
15
- - -
16
(No response.)
17
18
19
20
- - If counsel for the Defendant would please rise
and introduce himself and his client.
MR. SHAHAN:
Good morning.
21
afternoon.
22
is my client, Frank Daiak, otherwise known as "JJ," we
23
may refer to him.
24
25
I apologize.
Maybe it's the
THE COURT:
I'm attorney John Shahan, this
Does anyone know either Joe Shahan
or Defendant Joe Frank Daiak?
41
1
- - -
2
(No response.)
3
- - -
4
THE COURT:
The State would please read a list
5
of all the potential witnesses that may be called to
6
testify in this case.
7
has is to list all of the witnesses that may be called in
8
the case.
9
knowledge in the case.
Now, the obligation that the State
These are all people who may have some
They won't all necessarily be
10
called as witnesses in the case, but please listen to all
11
of these names, and then I'm ask you afterwards if you
12
know any of these potential witnesses.
13
MS. VERGOS:
Thank you, Judge.
Potential
14
witnesses are Donna Vaillancourt, Ellen Hancock, Dennis
15
Hancock, Lieutenant Nagy, Corporal Mitchell, Corporal
16
Barrington, Deputy Meizo, Sergeant Mills, Sergeant McVey,
17
Deputy Curtis; Crime Scene Technician Tepedino, Deputy
18
Norman Gage, Deputy Peter Roehrig, Deputy Kling, Deputy
19
Cooley, Sergeant Tanner, Deputy Scalla, Deputy Bricatta
20
(ph.), Deputy Carrol, Deputy Lienan (ph.), Deputy
21
Fitchemaier, Deputy Heinemann, Deputy Wood, and Deputy
22
Lockner.
23
24
25
THE COURT:
Does anyone know any of these
potential witnesses?
- - -
42
1
(No response.)
2
- - -
3
4
THE COURT:
And Mr. Shahan, are there any
additional witnesses that may be called?
5
MR. SHAHAN:
Your Honor, I think maybe perhaps
6
just two.
My client, Mr. Daiak, and I don't believe that
7
the prosecutor mentioned Dennis Hancock.
8
MS. VERGOS:
9
THE COURT:
10
11
12
13
MR. SHAHAN:
I did.
All right.
Otherwise, they're the same.
I
think she mentioned Ella Hancock and Donna Vaillancourt.
THE COURT:
So no one knows any of the potential
witnesses?
14
THE JURY PANEL:
15
THE COURT:
16
Does anyone have any knowledge or information
17
Thank you.
about this case?
18
THE JURY PANEL:
19
THE COURT:
20
No.
No.
Anyone read or hear anything about
this case at all?
21
THE JURY PANEL:
22
THE COURT:
No.
At this point, I would like to go
23
over this crucial concept of our system of justice.
24
First of all, every Defendant in every criminal case is
25
presumed to be innocent.
Does everyone understand that?
43
1
THE JURY PANEL:
2
THE COURT:
3
THE JURY PANEL:
4
THE COURT:
5
THE JURY PANEL:
6
THE COURT:
Yes.
Does everyone agree with that law?
Yes.
And can everyone follow that law?
Yes.
The burden of proof in a criminal
7
case lies solely on the State of Florida; the Defendant
8
does not have to prove anything, and the burden of proof
9
on the State of Florida is beyond and to the exclusion of
10
every reasonable doubt.
11
beyond a reasonable doubt?
12
THE JURY PANEL:
13
THE COURT:
Has everyone heard that before,
Yes.
Now, if anyone has ever been
14
involved in a civil case, that's where one Plaintiff or
15
one party, which is known as the Plaintiff, will sue the
16
other party which is known as the Defendant usually for
17
money damages, and in a civil case, the Plaintiff has the
18
burden of proof, and that's by a preponderance of the
19
evidence where by -- or by the greater weight of the
20
evidence; in a criminal case, it's more than that, it's
21
beyond a reasonable doubt.
22
that?
23
HE JURY PANEL:
24
THE COURT:
25
Does everyone understand
Yes.
And if you've been watching any
dramas on television or any movies, which I'm sure
44
1
everyone has, you may have heard in the past the narrator
2
or one of the characters say that the State or the
3
government has the burden of proving the case beyond a
4
shadow of a doubt, where the government has proven the
5
case beyond a shadow of a doubt.
6
before?
7
THE JURY PANEL:
8
THE COURT:
9
Has anyone heard that
Yes.
Now, that is very popular in dramas,
and that, apparently, is the burden of proof in dramas;
10
however, it's not the burden of proof in Florida, or any
11
place in Florida, or any place in the United States, or
12
anywhere in the world.
13
beyond all doubt, or beyond a shadow of a doubt, it's
14
beyond a reasonable doubt.
15
to its burden of beyond a reasonable doubt and not any
16
more and not any less?
It's not beyond any doubt or
17
THE JURY PANEL:
18
THE COURT:
Okay.
Can everyone hold the State
Yes.
Just to make things easier
19
for you, perhaps it will make things easier for you, I
20
will instruct you now on what I will instruct you on at
21
the end of the case.
22
it defines what a reasonable doubt is, and what a
23
reasonable doubt is not, and this is the burden that the
24
State of Florida has.
25
And what this instruction does is
A reasonable doubt is not a mere possible doubt,
45
1
a speculative, imaginary, or forced doubt; such a doubt
2
must not influence you to return a verdict of not guilty
3
if you have an abiding conviction of guilt.
4
hand, if after carefully considering, comparing, and
5
weighing all the evidence, there is not a conviction of
6
guilt, or if you have a conviction, and it is one which
7
is not stable but one which waivers and vacillates, then
8
the charge is not proved beyond a reasonable doubt and
9
you must find the Defendant not guilty because the doubt
10
11
On the other
is reasonable.
It is to the evidence introduced in this trial
12
and to it alone that you're to look for that proof.
13
reasonable doubt as to the guilt of the Defendant may
14
arise from the evidence, conflict in the evidence, or the
15
lack of evidence.
16
should find the Defendant not guilty; if you have no
17
reasonable doubt, you should find the Defendant guilty.
18
A
If you have a reasonable doubt, you
So, again, I ask can everyone hold the State to
19
its burden of beyond and to the exclusion of every
20
reasonable doubt?
21
THE JURY PANEL:
22
THE COURT:
Yes.
The Defendant in every criminal case
23
has the absolute right to remain silent.
At no time is
24
it the duty of the Defendant to prove his innocence.
25
Since the State has the burden of proof, the Defendant
46
1
doesn't have to prove anything, and the Defendant doesn't
2
have to say anything.
3
exercise his right to remain silent, a jury is not
4
permitted to draw any inference of guilt, and it cannot
5
influence your verdict in any way.
6
understand that law?
If the Defendant chooses to
7
THE JURY PANEL:
8
THE COURT:
9
THE JURY PANEL:
10
THE COURT:
Does everyone
Yes.
Does everyone agree with that law?
Yes.
Is there anyone who's going to have
11
any problem with that, or is there anyone who's going to
12
say that the Defendant exercised his right to remain
13
silent, so I'm going to hold it against him?
14
anyone who's going to feel that way?
Is there
15
THE JURY PANEL:
No.
16
THE COURT:
17
determine what the facts are.
18
instruct you on the law.
19
apply the facts to the law, and determine if the State
20
has proven its accusations beyond a reasonable doubt.
21
Having that in mind, is there anyone who would rather not
22
sit on an aggravated assault of a law enforcement officer
23
charge for any reason?
Now, the role of the jury is to
The Judge is going to
It's going to be your job to
24
PERSPECTIVE JUROR DAVIDSON:
25
THE COURT:
Yes.
And what particular reason is that?
47
1
PERSPECTIVE JUROR DAVIDSON:
Because I met Bob
2
White on a few occasions, and if this was somewhere else,
3
Port Richey or something, maybe, but he holds his boys up
4
to a pretty high standard, and I don't know if I could be
5
objective to that.
6
7
THE COURT:
All right.
Now, these deputies do
work for Bob White; you understand that?
8
PERSPECTIVE JUROR DAVIDSON:
9
THE COURT:
10
But you understand that Bob White
wasn't there?
11
PERSPECTIVE JUROR DAVIDSON:
12
THE COURT:
13
Yes.
Correct.
That his deputies were.
Do you have
such an opinion of his family that --
14
PERSPECTIVE JUROR DAVIDSON:
15
too.
16
in law enforcement, Tampa and stuff like that; his
17
deputies behave a lot better than most law enforcement,
18
as far as Pasco County's deputies.
19
20
21
I haven't met a deputy yet.
Of his deputies,
THE COURT:
I have friends who are
All right, so you think you might
have trouble being fair in this case?
PERSPECTIVE JUROR DAVIDSON:
Like I said, if it
22
was anywhere, if it was Port Richey, Pasco County, I
23
would probably be biased, but I've told Bob face-to-face
24
that I think that he's got one of the best group of boys
25
here, and I don't think I can be unbiased.
Also, I lost
48
1
my dad in June and he had federal arrest authority; he
2
worked for DOD and DOE.
3
know the crap he had to put up with, and I don't think I
4
could be partial with someone who was charged with
5
firing, discharging a firearm.
6
THE COURT:
He trained SWAT teams, and I
You understand that that's what the
7
allegation is.
8
fact or not.
9
because you're going to naturally believe the police
10
11
officers over
It's up to you to determine whether its
Do you think you're unable to do that
anyone else?
PERSPECTIVE JUROR DAVIDSON:
I would try to be
12
factual and logical, but at the same token, I can't say
13
that I wouldn't have some kind of something in the back
14
of my head.
15
THE COURT:
All right, thank you.
Anyone else
16
who would rather not sit on an aggravated assault on law
17
enforcement officer case for any reason?
18
- - -
19
(No response.)
20
21
- - All right.
Now, the role of the jury, as I
22
said, is to determine what the facts are, and to follow
23
the law that I instruct you on.
24
that there's going to be any problems at all, but it's
25
possible that when I instruct you on the law at the end
Now, I don't anticipate
49
1
of the case, that you may say that that's not what you
2
thought the law was when you came in here.
3
Can everyone still follow the law even though
4
it's not what you thought the law was before you came in
5
here?
6
THE JURY PANEL:
7
THE COURT:
8
THE JURY PANEL:
9
THE COURT:
Yes.
Anyone have any problem with that?
No.
Now, it's entirely possible --
10
again, I don't anticipate a problem with this, but it's
11
entirely possible that after I instruct you on the law,
12
that you could say that you don't agree with the law.
13
Can you still follow the law even though you don't agree
14
with the law?
15
THE JURY PANEL:
16
THE COURT:
Yes.
Is there anyone who is going to try
17
and make a new law this week?
18
the legislature and appellate courts.
19
Appellate Courts, not me, that make the laws, and it's
20
everyone else's job to follow the law; that includes the
21
jury; correct?
22
THE JURY PANEL:
23
THE COURT:
Everyone understand that's
I emphasis
Yes.
Does anyone have any physical
24
problems such as hearing, eyesight, or being on
25
medication that may make it difficult for you to serve as
50
1
a juror?
2
THE JURY PANEL:
3
PERSPECTIVE JUROR PATROSSO:
4
THE COURT:
5
PERSPECTIVE JUROR PATROSSO:
6
THE COURT:
7
PERSPECTIVE JUROR PATROSSO:
8
No, sir.
Yes.
You are?
All right.
Earnest Patrosso.
Thank you.
Can I talk to you
for a minute?
9
THE COURT:
10
bench, that's fine.
Sure.
If you'd like to approach the
11
- - -
12
(Sidebar discussion on the record.)
13
- - -
14
PERSPECTIVE JUROR PATROSSO:
I just started --
15
problems with
-- I've been going to see some doctors,
16
having some tests done, urinary problem.
17
Sometimes I get real bad cramps, and I just had a CAT
18
scan last Monday.
They're still doing tests.
19
THE COURT:
20
PERSPECTIVE JUROR PATROSSO:
21
Prostate?
THE COURT:
23
PERSPECTIVE JUROR PATROSSO:
25
I've been taking
medicine for that.
22
24
I don't know.
what's wrong yet.
THE COURT:
Okay.
I really don't know
They're doing tests.
Let me ask you this.
Are you so
51
1
concerned with that, that you may not be able to focus on
2
this case?
3
4
PERSPECTIVE JUROR PATROSSO:
it's just when I get restless, I have to go.
5
THE COURT:
6
PERSPECTIVE JUROR PATROSSO:
7
Okay.
Well --
THE COURT:
9
PERSPECTIVE JUROR PATROSSO:
11
I just wanted to
bring this up.
8
10
No, it isn't that,
Okay, that's fine.
I just wanted you
to know.
THE COURT:
What I do, I don't go any longer
12
than an hour and a half, because everyone, including the
13
jurors tend to lose focus, and if you end up with that
14
problem, just go ahead and raise your hand; we'll just
15
take a break.
16
PERSPECTIVE JUROR PATROSSO:
Okay.
I just
17
wanted to bring it up.
Sometimes I could go awhile,
18
sometimes when I'm talking -- I go to Publix, when I'm
19
doing -- standing up, it's just when I get home, relax at
20
night more or less, it bothers me.
21
THE COURT:
22
PERSPECTIVE JUROR PATROSSO:
23
24
25
Okay.
I just wanted to
bring it up.
THE COURT:
That's fine.
If you need a comfort
break at any time, just raise your hand; we'll take one.
52
1
PERSPECTIVE JUROR PATROSSO:
2
THE COURT:
That's good.
I've done it for jurors in the past,
3
done it for lawyers in the past, so it's nothing to be
4
ashamed of.
Okay?
5
PERSPECTIVE JUROR PATROSSO:
6
THE COURT:
7
MS. VERGOS:
No, Judge.
8
MR. SHAHAN:
No.
Thank you.
Any questions?
9
- - -
10
(End of sidebar discussion.)
11
- - -
12
THE COURT:
I've been informed that we're going
13
to have some technological advances where you won't be
14
able to hear what is being said up here, and then I heard
15
that as recently as this morning, that none of that is
16
true.
But either way, we're not going to have it this
17
week.
If we're going to have the technological advances,
18
it won't be this week.
19
So when there is a bench conference, please do
20
your best not to pay attention to what's going on up
21
here.
22
that you can't hear, because it's either a personal
23
issue, or it's a legal issue that you're not supposed to
24
hear.
25
then just go ahead and raise your hand, and then Bailiff
The reason we're having a bench conference is so
If it's so loud that you can't help but overhear,
53
1
Hatcher will let me know, and we'll do what we can so
2
that you can't hear it.
3
Now, if you do end up paying attention up here
4
when you should not be, there is one way that we can deal
5
with that, and that is we can have Bailiff Hatcher
6
entertain you by singing and dancing to divert your
7
attention, but I can tell you that's not something that
8
you want to see.
9
attention.
10
11
So please do your best not to pay
And it's actually good to hear that the
acoustics is very good.
Yes, it is very good; it's good in that you hear
12
whatever it is you're supposed to hear, and bad that you
13
hear something you're not supposed to.
14
If the trial goes today, we'll have you out of
15
here by five today, and Wednesday and Thursday, and
16
possibly Friday.
17
Does anyone have any pressing family or business
18
or personal matters which might cause you to be
19
preoccupied to the extent that you would not be able to
20
give this trial your full attention?
21
THE JURY PANEL:
22
THE COURT:
23
No.
No one is going to have a problem
being here this week then?
24
THE JURY PANEL:
25
THE COURT:
No.
I knew we had someone who had a
54
1
problem.
2
3
Yes, Mr. Sampson.
PERSPECTIVE JUROR EDMUND SAMPSON:
Just work,
Your Honor.
4
THE COURT:
Okay.
And are you self-employed?
5
PERSPECTIVE JUROR EDMUND SAMPSON:
No, I'm a
6
foreman for an electrical contractor locally.
7
six jobs right now, and need to be there, obviously,
8
right now, but I tried to clear as much as I could this
9
week, but I've got inspections as early as tomorrow
10
morning.
11
THE COURT:
12
this case tomorrow.
13
and give us the rest of the week?
14
will be done by Thursday.
15
hardship for you?
16
17
18
THE COURT:
25
Can you get a lot done on Tuesday,
Hopefully, this case
But is it going to be a real
For my
Anybody else?
- - (No response.)
21
24
We're not going to court on
company and my family, yes.
20
23
Okay.
PERSPECTIVE JUROR EDMUND SAMPSON:
19
22
I've got
- - THE COURT:
All right, Ms. Vergos with the State
Attorneys Office, you may inquire.
MS. VERGOS:
Thank you, Judge.
V O I R
D I R E
55
1
- - -
2
O P E N I N G
3
MS. VERGOS:
B Y
T H E
S T A T E
I know the Judge has talked to you
4
a lot about being a juror, and who got the summons, and
5
is there anyone who just couldn't wait until November
6
27th to come around?
7
- - -
8
(Jury panel laughed.)
9
- - -
10
11
12
MS. VERGOS:
you.
Nobody.
We are excited to have
I hope that counts for showing.
I know the Judge spoke about the fact that some
13
women definitely don't want to speak.
14
who absolutely does want to sit on the jury?
15
you're really starting to disappoint me.
16
Is there somebody
Guys,
All right.
I know that you heard this case does include a
17
firearm; this case does include a discharge of a firearm.
18
I know that according to your jury sheets, that we have a
19
couple of retired law enforcement officers, and then a
20
couple of people in here who have family that are law
21
enforcement officers.
22
23
Does anybody here own a firearm currently?
Let me just go on that side of Mr. Davidson.
24
Yes, do you own a concealed weapons permit?
25
UNKNOWN PERSPECTIVE JUROR:
Yes, ma'am, I do.
56
1
2
MS. VERGOS:
And how long have you owned a
firearm?
3
PERSPECTIVE JUROR:
4
MS. VERGOS:
5
PERSPECTIVE JUROR:
Pretty much all my life.
What kind of gun do you have?
I have about eleven rifles,
6
probably about fifteen handguns, about six shotguns, and
7
I have one Colla (ph.).
8
MS. VERGOS:
Okay.
9
PERSPECTIVE JUROR:
Are they kept in your house?
Yes.
10
MS. VERGOS:
11
PERSPECTIVE JUROR:
Yes.
12
MS. VERGOS:
Third row, Mr. Patrosso?
13
PERSPECTIVE JUROR PATROSSO:
14
MS. VERGOS:
15
Are they kept in a locked area?
Okay.
Do you have a concealed weapons
permit?
16
PERSPECTIVE JUROR PATROSSO:
17
MS. VERGOS:
18
19
20
Yes.
And how long have you had a
concealed weapons permit?
PERSPECTIVE JUROR PATROSSO:
a month ago, and I had the
I just got it about
weapon about a year.
21
MS. VERGOS:
22
PERSPECTIVE JUROR PATROSSO:
23
Yes.
I'm sorry?
I had my weapon
about a year.
24
MS. VERGOS:
Firearm, handgun?
25
PERSPECTIVE JUROR PATROSSO:
Yes.
57
1
MS. VERGOS:
2
PERSPECTIVE JUROR PATROSSO:
3
MS. VERGOS:
4
PERSPECTIVE JUROR PATROSSO:
5
MS. VERGOS:
6
PERSPECTIVE JUROR PATROSSO:
7
MS. VERGOS:
8
PERSPECTIVE JUROR PATROSSO:
9
10
Just one?
Yes.
Did you do the training class -Yes.
-- for the weapons permit?
Yes.
Where did you do it?
Okay, I'm trying to
think of the name where I took the firearms class.
It's
on 19; I believe it's Tarpon Springs.
11
MS. VERGOS:
12
PERSPECTIVE JUROR:
Yeah.
13
MS. VERGOS:
Mr. Sampson, let's start
14
What about the first row, nobody?
Okay.
with you.
15
PERSPECTIVE JUROR EDMUND SAMPSON:
16
MS. VERGOS:
17
PERSPECTIVE JUROR SAMPSON:
18
MS. VERGOS:
19
PERSPECTIVE JUROR EDMUND SAMPSON:
20
MS. VERGOS:
21
PERSPECTIVE JUROR EDMUND SAMPSON:
22
MS. VERGOS:
23
Concealed weapons permit?
No.
You just own that one?
Yes.
How long have you had it?
Four years.
Have you ever taken a training
class?
24
25
Own a weapon.
PERSPECTIVE JUROR EDMUND SAMPSON:
course.
Just a safety
58
1
MS. VERGOS:
2
PERSPECTIVE JUROR EDMUND SAMPSON:
3
What?
course.
4
MS. VERGOS:
5
PERSPECTIVE JUROR ERNEST PATROSSO:
6
MS. VERGOS:
7
And Mr. Patrosso?
Do you have a concealed weapons
PERSPECTIVE JUROR ERNEST PATROSSO:
MS. VERGOS:
11
PERSPECTIVE JUROR ERNEST PATROSSO:
I'm sorry?
MS. VERGOS:
14
PERSPECTIVE JUROR ERNEST PATROSSO:
15
MS. VERGOS:
So you were out there to get that?
class down here?
PERSPECTIVE JUROR ERNEST PATROSSO:
18
MS. VERGOS:
19
PERSPECTIVE JUROR ERNEST PATROSSO:
Is it just a handgun that you own?
MS. VERGOS:
Several
What about the second row?
Mr.
Capek?
23
PERSPECTIVE JUROR JOHN CAPEK:
24
MS. VERGOS:
25
No.
handguns.
21
22
Yes.
Did you have to do another training
17
20
I had one in
Arizona; I did not renew it.
13
16
I had one in
Arizona.
10
12
Yes.
permit?
8
9
Just a safety
officer; right?
Yes.
You're also retired law enforcement
59
1
PERSPECTIVE JUROR JOHN CAPEK:
2
MS. VERGOS:
3
PERSPECTIVE JUROR JOHN CAPEK:
4
Highway Patrol, Long Island, New York.
5
6
MS. VERGOS:
Yes.
What agency?
Nassau County
Do you have a concealed weapons
permit?
7
PERSPECTIVE JUROR JOHN CAPEK:
8
MS. VERGOS:
9
PERSPECTIVE JUROR JOHN CAPEK:
10
MS. VERGOS:
Yes, federal.
How many years with Nassau County?
Twenty years.
I don't need to ask you about your
11
training in firearms; right?
12
row?
Anybody else on the second
13
How about the third row?
14
PERSPECTIVE JUROR THOMAS HIELSCHER:
15
MS. VERGOS:
16
Is that Mr. Hielscher?
Yes.
You have a concealed weapons
permit?
17
PERSPECTIVE JUROR THOMAS HIELSCHER:
18
MS. VERGOS:
19
PERSPECTIVE JUROR THOMAS HIELSCHER:
20
MS. VERGOS:
21
PERSPECTIVE JUROR THOMAS HIELSCHER:
22
MS. VERGOS:
23
PERSPECTIVE JUROR THOMAS HIELSCHER:
24
hunter safety class.
25
MS. VERGOS:
No.
Did you ever take a class?
No.
Is it a handgun that you own?
Shotgun.
Shotgun?
I took a
Anybody belong to any gun
60
1
organizations, NRA, anything of that nature?
2
Nobody?
Anybody have any issues with firearms?
Anyone
3
who just simply just really is opposed to firearms?
4
can't hear.
5
THE JURY PANEL:
6
MS. VERGOS:
7
THE JURY PANEL:
8
MS. VERGOS:
9
No.
No?
No.
Ms. Dunlop, how long have you been
in Pasco County?
10
11
I
PERSPECTIVE JUROR SUSAN DUNLOP:
Since 1985,
June 15th, 22 years, and whatever.
12
MS. VERGOS:
That's pretty good.
I'm impressed.
13
You indicated on your sheet that you were a victim of a
14
burglary?
15
PERSPECTIVE JUROR SUSAN DUNLOP:
16
MS. VERGOS:
17
PERSPECTIVE JUROR SUSAN DUNLOP:
18
MS. VERGOS:
19
20
Was that in Pasco County?
approximately, was that?
PERSPECTIVE JUROR SUSAN DUNLOP:
It was a home break-in.
22
or robbery.
24
25
Yes.
And was that -- when,
21
23
Yes.
MS. VERGOS:
happened with that?
June 1st 2006.
I'm not sure if that's burglary
Pretty good with dates.
What
Were you home?
PERSPECTIVE JUROR SUSAN DUNLOP:
No, we were not
61
1
home, we were at work; our house was broken into.
2
favorite jewelry, and all my favorite colognes, and my
3
best camera.
4
MS. VERGOS:
5
PERSPECTIVE JUROR SUSAN DUNLOP:
6
MS. VERGOS:
7
PERSPECTIVE JUROR SUSAN DUNLOP:
8
MS. VERGOS:
9
PERSPECTIVE JUROR SUSAN DUNLOP:
10
11
MS. VERGOS:
My
Anyone caught?
No.
Sheriff's office come out?
Yes.
Was it the sheriff's office?
Yes,
Did you make contact?
I assume you
did with the officer, the deputies?
12
PERSPECTIVE JUROR SUSAN DUNLOP:
13
MS. VERGOS:
14
PERSPECTIVE JUROR SUSAN DUNLOP:
Yes.
How was your experience with that?
I don't recall
15
his name, but he was very nice, and he didn't make a mess
16
with fingerprint dust despite the reputation.
17
18
MS. VERGOS:
So you did allow them to dust for
prints and everything?
19
PERSPECTIVE JUROR SUSAN DUNLOP:
20
MS. VERGOS:
21
PERSPECTIVE JUROR SUSAN DUNLOP:
22
MS. VERGOS:
23
Yes.
Were they able to lift any?
Okay.
Smudgy.
Was there anybody located,
or any charges ultimately brought?
24
PERSPECTIVE JUROR SUSAN DUNLOP:
25
MS. VERGOS:
No.
Anybody else who's had any
62
1
experience with a burglary?
Mr. Dueringer?
2
PERSPECTIVE JUROR RICHARD DUERINGER:
3
MS. VERGOS:
4
PERSPECTIVE JUROR RICHARD DUERINGER:
Yes.
When was that?
Three
5
years ago when I moved down here from Buffalo, three kids
6
broke into my bar and took my four --
7
8
MS. VERGOS:
That's the theft you talked about
on the sheet?
9
PERSPECTIVE JUROR RICHARD DUERINGER:
10
MS. VERGOS:
11
PERSPECTIVE JUROR RICHARD DUERINGER:
12
Were they charged?
MS. VERGOS:
Was it the sheriff's office that
investigated that?
15
PERSPECTIVE JUROR RICHARD DUERINGER:
16
MS. VERGOS:
17
Yes, and I
was paid restitution.
13
14
Yes.
Yes.
And how was your contact with the
sheriff's office?
18
PERSPECTIVE JUROR RICHARD DUERINGER:
19
good until they tried to get in my house, and they got
20
stuck and had to pull them out.
21
MS. VERGOS:
22
PERSPECTIVE JUROR RICHARD DUERINGER:
23
Had to go pull them out?
Yes,
under my house.
24
25
It was
MS. VERGOS:
it?
And I assume my office prosecuted
63
1
2
PERSPECTIVE JUROR RICHARD DUERINGER:
three.
3
MS. VERGOS:
4
PERSPECTIVE JUROR RICHARD DUERINGER:
5
MS. VERGOS:
6
Yes, all
their hand.
Did you have an outcome?
I believe somebody else raised
Mr. Capek?
7
PERSPECTIVE JUROR JOHN CAPEK:
8
MS. VERGOS:
9
PERSPECTIVE JUROR JOHN CAPEK:
10
north.
11
that.
Yes.
Yes.
Was that here in Pasco or up north?
No, that was up
I'm sorry, I didn't see anything to fill out for
12
MS. VERGOS:
That's okay.
13
PERSPECTIVE JUROR JOHN CAPEK:
When we first
14
moved here, we were robbed by the open garage door
15
burglars two years ago -- a year ago.
16
MS. VERGOS:
17
PERSPECTIVE JUROR JOHN CAPEK:
18
Two years
September 23rd.
19
MS. VERGOS:
20
dates.
21
take?
22
How long have you been in Florida?
You guys are pretty good with
Okay, I'll have to remember that.
What did they
Anything?
PERSPECTIVE JUROR JOHN CAPEK:
My brand new
23
fishing poles and rods, and left the old ones behind and
24
kept the new ones.
25
Little rats.
MS. VERGOS:
Was it investigated?
Did you call
64
1
the sheriff's office or --
2
PERSPECTIVE JUROR JOHN CAPEK:
Actually, we
3
didn't realize it until we went to go fishing, and then
4
we saw that they were gone, and there just happen to have
5
been a sheriff down the street, and we flagged him down,
6
and he came over and took care of it for us.
7
catch them.
8
MS. VERGOS:
9
PERSPECTIVE JUROR JOHN CAPEK:
And he did
They did?
10
didn't find my fishing poles.
11
MS. VERGOS:
12
PERSPECTIVE JUROR JOHN CAPEK:
Yeah, but they
Were charges ultimately brought?
You know, I
13
really don't know.
14
on that, couldn't get them back; so what are you going to
15
do?
16
17
MS. VERGOS:
PERSPECTIVE JUROR JOHN CAPEK:
MS. VERGOS:
Anybody else in that last row?
Anybody on this side of the room?
22
23
Very good,
very congenial.
20
21
How was your contact with the
sheriff's office?
18
19
All I know is they didn't follow up
UNKNOWN PERSPECTIVE JUROR:
I had a car
break-in.
24
MS. VERGOS:
Okay.
25
UNKNOWN PERSPECTIVE JUROR:
Is that the same
65
1
thing as a burglary?
2
MS. VERGOS:
3
a burglary.
It is actually a different level of
But is it Ms. Robinson?
4
PERSPECTIVE JUROR LAURIE ROBINSON:
5
MS. VERGOS:
6
PERSPECTIVE JUROR LAURIE ROBINSON:
7
It was on my sheet.
MS. VERGOS:
9
PERSPECTIVE JUROR LAURIE ROBINSON:
10
MS. VERGOS:
Here in Pasco?
Was it Pinellas County Sheriff's
PERSPECTIVE JUROR LAURIE ROBINSON:
13
actually, my son caught them.
14
caught them.
Well,
They ran away, and my son
The sheriff's department responded.
15
MS. VERGOS:
16
PERSPECTIVE JUROR LAURIE ROBINSON:
17
MS. VERGOS:
19
Yes.
Office that responded?
12
18
It was a car
break-in by juveniles.
8
11
Yes.
How was your contact with them?
Very good.
Anybody else on this side of the
room?
Anybody had any contact with the Sheriff's
20
office that was not positive?
I don't mean a regular
21
thing where you're driving down the street, and you see
22
lights behind you; you think the worse things in the
23
world and slam on the brakes and try to figure out what
24
excuse you're going to give them, but any contact with
25
the sheriff's office, or any law enforcement officer that
66
1
was negative for some reason?
2
THE JURY PANEL:
3
MS. VERGOS:
4
THE JURY PANEL:
5
MS. VERGOS:
6
September of '04?
7
first.
No.
Ladies?
No.
Did anybody not live here during
I mean, let's talk before Pasco County
Ms. Stanutz, you did not?
8
PERSPECTIVE JUROR ANNETTE STANUTZ:
9
MS. VERGOS:
Where did you live?
10
PERSPECTIVE JUROR ANNETTE STANUTZ:
11
MS. VERGOS:
12
PERSPECTIVE JUROR ANNETTE STANUTZ:
13
No.
Wisconsin.
When did you come to Florida?
April 4th of
'05.
14
MS. VERGOS:
15
PERSPECTIVE JUROR ELIZABETH MCGLAUGHLIN:
16
MS. VERGOS:
Now, I saw on your form that you
worked for the New Jersey Public Defender's Office.
19
PERSPECTIVE JUROR ELIZABETH MCGLAUGHLIN:
20
MS. VERGOS:
21
PERSPECTIVE JUROR ELIZABETH MCGLAUGHLIN:
22
25
Yes.
What did you do for them?
Fiscal Analyst.
23
24
I
lived here June of '05.
17
18
And Ms. McGlaughlin?
MS. VERGOS:
What do you mean exactly, fiscal
analyst?
PERSPECTIVE JUROR ELIZABETH MCGLAUGHLIN:
67
1
Fiscal.
2
3
MS. VERGOS:
Fiscal Analyst.
Okay, I
understand.
4
PERSPECTIVE JUROR ELIZABETH MCGLAUGHLIN:
5
MS. VERGOS:
6
was wondering.
7
Florida?
8
9
I thought you said "physical."
New
Jersey.
MS. VERGOS:
That was kind of a silly question;
11
right?
12
often; that's probably one of them.
You read those things that lawyers say every so
13
Mr. Capek?
14
PERSPECTIVE JUROR JOHN CAPEK:
I owned property
here, but I wasn't here physically, I was up north.
16
MS. VERGOS:
17
PERSPECTIVE JUROR JOHN CAPEK:
18
I
Where were you before you came to
PERSPECTIVE JUROR ELIZABETH MCGLAUGHLIN:
10
15
Okay.
You were what?
I was up north
for the summer.
19
MS. VERGOS:
And the other side of the room?
20
UNKNOWN PERSPECTIVE JUROR:
21
Massachusetts for the summer.
22
MS. VERGOS:
23
UNKNOWN PERSPECTIVE JUROR:
24
MS. VERGOS:
25
UNKNOWN PERSPECTIVE JUROR:
I was up in
What part of Massachusetts?
Massachusetts.
When did you get back?
In October, we come
68
1
back.
Well, I'm not sure that year.
Sometimes we come
2
back later, but I'm not positive on that, that year.
3
MS. VERGOS:
4
PERSPECTIVE JUROR THOMAS HIELSCHER:
5
And Mr. Hielscher.
here August of '05.
6
MS. VERGOS:
7
PERSPECTIVE JUROR SARA LAVERDE:
8
9
10
I moved
Who else?
Ms. Laverde?
Yes.
November
of '05.
MS. VERGOS:
else on this side?
Anybody else on that side?
Anybody
Mr. Lundy?
11
PERSPECTIVE JUROR SEAN LUNDY:
12
MS. VERGOS:
13
PERSPECTIVE JUROR SEAN LUNDY:
14
MS. VERGOS:
15
PERSPECTIVE JUROR SEAN LUNDY:
16
MS. VERGOS:
17
PERSPECTIVE JUROR SEAN LUNDY:
18
MS. VERGOS:
19
PERSPECTIVE JUROR SEAN LUNDY:
20
MS. VERGOS:
21
PERSPECTIVE JUROR SEAN LUNDY:
22
MS. VERGOS:
23
PERSPECTIVE JUROR SEAN LUNDY:
24
MS. VERGOS:
25
PERSPECTIVE JUROR SEAN LUNDY:
New York.
When did you move here?
Summertime.
So you just went up for the summer?
Yes.
And then you came back?
September.
Do you go every summer?
Yes.
Do you have family up there?
Yes.
Do you have a house down here?
Yes.
Do you rent or own?
Own in Florida.
69
1
MS. VERGOS:
By yourself, or with anybody else?
2
PERSPECTIVE JUROR SEAN LUNDY:
3
MS. VERGOS:
By myself.
Who recalls the hurricanes that
4
were occurring in 2004, the summertime of 2004?
5
anyone affected by any of the hurricanes?
6
THE JURY PANEL:
7
UNKNOWN PERSPECTIVE JUROR:
8
MS. VERGOS:
9
PERSPECTIVE JUROR LYNN STILWELL:
No.
Yes.
Ms. Stilwell?
10
MS. VERGOS:
11
PERSPECTIVE JUROR LYNN STILWELL:
12
in the bathroom.
13
it.
14
15
16
Francis.
I'm sorry?
A little water
There was some soft swell.
MS. VERGOS:
Was
Okay.
That was
Anybody else on this side?
And Mr. Lundy?
PERSPECTIVE JUROR SEAN LUNDY:
Took the whole
17
roof, the in door pool, and took off the roof of my spare
18
bedroom, and water --
19
MS. VERGOS:
Everyone?
20
THE JURY PANEL:
21
MS. VERGOS:
22
PERSPECTIVE JUROR RICHARD DUERINGER:
No.
Anybody else?
Mr. Dueringer?
Yeah, we
23
had a tree come down on the edge of our roof, and messed
24
up the roof, and then it hit another tree.
25
recall which one it was, Francis, or which one.
I don't
70
1
MS. VERGOS:
2
PERSPECTIVE JUROR JOHN CAPEK:
3
Mr. Capek.
interior.
4
MS. VERGOS:
5
PERSPECTIVE JUROR JOHN CAPEK:
6
7
8
9
Water damage,
which one.
Do you know which one?
Three, I think.
MS. VERGOS:
saw another hand.
Okay.
No, I don't know
I don't remember which one.
Somebody else?
I thought I
Okay.
Who watches those T.V. shows that the Judge was
10
talking about before, Law and Order, CSI, Criminal
11
Intent, SPU?
12
to record it, and just can't wait to see them?
13
everybody here understand that they're for entertainment
14
value only?
Who loves those T.V. shows, has the VCR set
15
THE JURY PANEL:
16
MS. VERGOS:
Does
Yes.
There's a lot of screaming,
17
yelling, a lot of foot-swelling stuff on those shows, and
18
I guarantee none of it is going to happen here.
19
everybody understand that?
20
THE JURY PANEL:
21
MS. VERGOS:
Does
Yes.
Everybody understand that we will
22
not be trying this case in an hour; you won't get
23
commercial breaks, and popcorn is not provided, okay?
24
Everybody got that?
25
THE JURY PANEL:
Yes.
71
1
MS. VERGOS:
Okay.
Who -- especially that one
2
show -- what is it?
3
York; CSI, Las Vegas, whatever it is, who just loves CSI?
4
Okay.
5
that having been said, you ladies know that most of the
6
things they do on those shows are just completely for
7
dramatical purposes.
8
cameras on every street corner that are going to catch
9
every single incident that happens; everybody understands
10
CSI, I believe, Miami; CSI, New
All right, we're going to come down here.
With
They're really, you know, aren't
that; right?
11
THE JURY PANEL:
12
MS. VERGOS:
Yes.
And that, you know, most crimes
13
aren't caught on video; right?
14
that the burglaries that you're telling me about, those
15
things weren't caught on video; everybody understands
16
that?
17
THE JURY PANEL:
18
MS. VERGOS:
I mean, you ladies know
Yes.
Is there anyone here -- let me ask
19
this.
Ms. Cummings, I haven't spoken with you.
20
can prove beyond a reasonable doubt that the Defendant in
21
this case did commit these offenses, but I don't do it
22
with a video or with, you know, some forensic evidence,
23
will you be able to return a verdict of guilty?
24
PERSPECTIVE JUROR DOLORES CUMMINGS:
25
MS. VERGOS:
Okay.
If I
Yes.
And Ms. McGlaughlin, do you
72
1
agree with that?
2
PERSPECTIVE JUROR ELIZABETH MCGLAUGHLIN:
Yes.
3
Well, this I can't -- I got to tell the Judge.
I'm here,
4
and I like to be here; I like have some experience, but I
5
don't understand that much English.
6
MS. VERGOS:
Where are you from?
7
PERSPECTIVE JUROR ELIZABETH MCGLAUGHLIN:
8
MS. VERGOS:
9
PERSPECTIVE JUROR ELIZABETH MCGLAUGHLIN:
Where?
10
MS. VERGOS:
11
PERSPECTIVE JUROR ELIZABETH MCGLAUGHLIN:
12
MS. VERGOS:
How long have you been here?
Ten
You sound like my dad, and he would
say the same thing you're saying.
15
16
Italy.
years.
13
14
Italy.
PERSPECTIVE JUROR ELIZABETH MCGLAUGHLIN:
Right.
We're the same.
17
MS. VERGOS:
You and I can speak a lot slower
18
for him.
19
understanding what I've been saying so far?
20
So I understand.
Have you had a problem
PERSPECTIVE JUROR ELIZABETH MCGLAUGHLIN:
No, no
21
problem.
But certain words about law, I don't understand
22
the right; so to me it means a right either defend or the
23
other one to come down that give that -- person.
24
me it's, I can't understand the difference between the
25
lawyer, the Judge, and those things.
So to
73
1
2
MS. VERGOS:
You mean, like what the role is of
everybody?
3
PERSPECTIVE JUROR ELIZABETH MCGLAUGHLIN:
4
whole -- I understand, but such words I don't understand.
5
Such words, I don't understand the law, but -- and to me
6
it is something that -- oh, he's guilty or not guilty.
7
So after they -- I prefer they exclude me from the jury.
8
9
MS. VERGOS:
So you don't think you would be
able to make that determination?
10
11
The
PERSPECTIVE JUROR ELIZABETH MCGLAUGHLIN:
cannot.
No, I
I came because they call me; that was it.
12
MS. VERGOS:
Is there anybody else who feels the
13
same way, that for whatever reason you cannot sit in
14
judgment of the facts in this case?
15
THE JURY PANEL:
16
MS. VERGOS:
No.
All right, what we're talking
17
about?
We were talking about criminal mischief, right?
18
Ms. Morris, would you agree with Ms. Cummings that if I
19
could show to you beyond a reasonable doubt that the
20
Defendant
21
forensic evidence, would you agree that you can find the
22
Defendant guilty?
committed these offenses, but I don't use any
23
PERSPECTIVE JUROR ANNA MORRIS:
24
MS. VERGOS:
25
PERSPECTIVE JUROR ANNA MORRIS:
Maybe.
What do you mean by that?
I might need
74
1
more evidence.
2
MS. VERGOS:
So if the testimony proved to you
3
beyond a reasonable doubt, to the level that I'm supposed
4
to meet, the standard that I'm supposed to meet that this
5
happened, are you still going to want more evidence; are
6
you still going to want something extra, I guess, is the
7
question?
8
PERSPECTIVE JUROR ANNA MORRIS:
9
MS. VERGOS:
10
Now, you got me.
Maybe not.
Tell me what you
mean.
11
PERSPECTIVE JUROR ANNA MORRIS:
12
MS. VERGOS:
When you say --
If it's beyond a reasonable doubt.
13
If you know, you go back into that jury deliberation
14
room, you say you know what, Ms. Vergos proved to me the
15
things she had to beyond a reasonable doubt, but I didn't
16
do it by showing you a videotape, I didn't do it by
17
putting up there some CSI guy who's going to tell you all
18
these crazy dramatic things; I didn't do those things,
19
but you still believe he did it beyond a reasonable
20
doubt; could you check that guilty box and come back?
21
PERSPECTIVE JUROR ANNA MORRIS:
22
MS. VERGOS:
23
PERSPECTIVE JUROR ANNA MORRIS:
24
MS. VERGOS:
25
PERSPECTIVE JUROR ANNA MORRIS:
I guess.
Are you married?
No.
You're not?
No.
75
1
MS. VERGOS:
Have you ever been married?
2
PERSECTIVE JUROR ANNA MORRIS:
3
MS. VERGOS:
4
PERSPECTIVE JOROR ANNA MORRIS:
5
MS. VERGOS:
6
PERSPECTIVE JUROR ANNA MORRIS:
7
MS. VERGOS:
8
PERSPECTIVE JUROR ANNA MORRIS:
9
MS. VERGOS:
No.
Have you ever been to a wedding?
You have?
Yes.
Best friend's wedding?
Yes.
Sister's wedding, brother?
Yes.
And when they're up there taking
10
their vows, do you swear to honor and love this woman and
11
cherish her, and the guy says I guess, would you think,
12
what are we doing here?
13
PERSPECTIVE JUROR ANNA MORRIS:
14
MS. VERGOS:
Yes.
I guess this is kind of a lucky
15
marriage.
For the next week the jury and I are going to
16
be married to each other.
17
one another and to the defense, we have a responsibility
18
to make certain things -- and to decide certain things,
19
and I have a responsibility to prove to you certain
20
things.
21
week, will you be able to follow the law and do the
22
things you're supposed to do?
We have a responsibility to
So Ms. Morris, if you make this marriage this
23
PERSPECTIVE JUROR ANNA MORRIS:
24
MS. VERGOS:
25
Yes.
And are you able to do that
regardless of that forensic issue, the CSI issues that I
76
1
told you?
2
PERSPECTIVE JUROR ANNA MORRIS:
3
MS. VERGOS:
4
Yes.
Does everyone agree with that, or
does anyone have any problems with that?
5
THE JURY PANEL:
6
MS. VERGOS:
No.
Having said that, the Judge told
7
you before that it is my burden of proof to prove to you
8
beyond a reasonable doubt everything that you need to
9
know in this case.
10
Having said that, you understand
that; correct?
11
THE JURY PANEL:
12
MS. VERGOS:
13
nothing?
Yes.
You understand they have to do
Does everybody understand that?
14
THE JURY PANEL:
Yes.
15
MS. VERGOS:
16
when it comes from me; right?
And everything you need to know is
17
THE JURY PANEL:
18
MS. VERGOS:
Yes.
So whatever your questions are,
19
whatever the issue is that you need to know, whatever the
20
evidence is that you need to know is going to come from
21
me.
Everybody got that right?
22
THE JURY PANEL:
23
MS. VERGOS:
24
a reasonable doubt.
25
Can anybody tell me?
Yes.
Those shows, they talk about beyond
Judge says, what's the difference?
Who haven't I talked to?
Ms. Wood,
77
1
we haven't talked yet.
What's the difference between
2
beyond a doubt and beyond a reasonable doubt?
3
PERSPECTIVE JUROR LISA WOOD:
4
MS. VERGOS:
5
Okay.
I'm not sure.
Well, is every doubt
reasonable?
6
PERSPECTIVE JUROR LISA WOOD:
7
MS. VERGOS:
Could be.
What if I told you that somebody
8
told me before that at 4:15 this afternoon a great big
9
wave is going to come and just go all over the
10
courthouse, bring the courthouse down; is it reasonable
11
to believe that would happen?
12
PERSPECTIVE JUROR LISA WOOD:
13
MS. VERGOS:
No.
Did someone say yes?
Those
14
wonderful acoustics, they add to this courthouse.
15
said yes?
16
it's okay if it is, but that's why we're here.
17
18
Who
Ms. Cummings, that's reasonable to you?
PERSPECTIVE JUROR DOLORES CUMMINGS:
And
I thought
the building already got hit by a wave, but would it be?
19
MS. VERGOS:
Is it something that you would
20
consider reasonable?
21
hall on my way here to jury selection, and he told me
22
that we need to be done before 4:15 Monday, a big wave is
23
going to come at 4:15 and bring the courthouse down, and
24
all of you guys don't have to worry about it; is that
25
reasonable?
You know, I met this guy down the
78
1
2
PERSPECTIVE JUROR DOLORES CUMMINGS:
Considering
the location in Florida?
3
MS. VERGOS:
The Judge tells him that, the
4
forecast tells him there's not even going to be rain this
5
week but, I mean, forecasting, some of it -- some people
6
don't have to deal with the stressers, I guess.
7
agrees with Ms. Cummings?
Nobody?
Okay.
8
PERSPECTIVE JUROR LISAGAIL OLEARY:
9
MS. VERGOS:
10
Ms. Oleary?
Yes.
You would agree that some things
are just not reasonable?
11
PERSPECTIVE JUROR LISAGAIL OLEARY:
Yes.
12
I don't watch those T.V. shows you talk about.
13
T.V. person.
14
15
16
17
18
19
20
21
Who
MS. VERGOS:
You're not?
I'm not a
You're perfect; we'll
take her.
PERSPECTIVE JUROR LISAGAIL OLEARY:
I only watch
the weather.
MS. VERGOS:
Do you think sometimes that's not
reasonable?
PERSPECTIVE JUROR LISAGAIL OLEARY:
I like to
know if I need an umbrella.
22
MS. VERGOS:
23
Were you in Florida?
Where were you in September of '04?
24
PERSPECTIVE JUROR LISAGAIL OLEARY:
25
MS. VERGOS:
Have we met before?
Yes.
79
1
PERSPECTIVE JUROR LISAGAIL OLEARY:
2
MS. VERGOS:
3
PERSPECTIVE JUROR LISAGAIL OLEARY:
4
MS. VERGOS:
5
Are you sure?
7
MS. VERGOS:
8
family?
9
your family?
10
Does anybody, or is anyone in law enforcement in
My
brother-in-law.
MS. VERGOS:
Do you talk to him a lot, Ms.
Robinson?
14
PERSPECTIVE JUROR LAURIE ROBINSON:
15
MS. VERGOS:
16
PERSPECTIVE JUROR LAURIE ROBINSON:
No.
Hardly ever?
17
I haven't seen him for years.
18
MS. VERGOS:
19
PERSPECTIVE JUROR LISA WOOD:
Hardly ever.
Ms. Wood, did you raise your hand?
Cousins who are in
law enforcement.
21
MS. VERGOS:
22
PERSPECTIVE JUROR LISA WOOD:
23
MS. VERGOS:
24
PERSPECTIVE JUROR LISA WOOD:
25
No.
Any law enforcement from your
PERSPECTIVE JUROR LISAGAIL OLEARY:
12
20
Did
you get any calls from the hurricanes?
PERSPECTIVE JUROR LISAGAIL OLEARY:
13
Positive.
You look very familiar to me.
6
11
No.
be from a distance.
Locally?
No, State of Ohio.
Are you close?
As far as you can
80
1
2
MS. VERGOS:
law enforcement?
3
4
Couple of
cousins; one is in Arizona, one is in Indiana.
MS. VERGOS:
Anybody else on this side?
PERSPECTIVE JUROR JOHN STANLEY:
8
father, very good friend of mine, and two others.
9
UNKNOWN PERSPECTIVE JUROR:
MS. VERGOS:
have to be biological.
Who are we talking about?
UNKNOWN PERSPECTIVE JUROR:
14
MS. VERGOS:
duty?
UNKNOWN PERSPECTIVE JUROR:
17
MS. VERGOS:
18
UNKNOWN PERSPECTIVE JUROR:
19
MS. VERGOS:
20
UNKNOWN PERSPECTIVE JUROR:
21
MS. VERGOS:
22
UNKNOWN PERSPECTIVE JUROR:
24
25
My cousin.
Did your cousin die in the line of
16
23
Does deceased family
Sure, I mean close friend, doesn't
13
15
Son-in-law's
count?
11
12
Mr.
Stanley?
7
10
Family
Ms. Stanutz?
PERSPECTIVE JUROR ANNETTE STANUTZ:
5
6
Anybody else on that side?
No.
What about military police?
My son.
Your son?
He was.
For how long?
About two, three
years.
MS. VERGOS:
Anybody have any personal
experience with a weapon being pulled on them, firearm
81
1
being pointed at you, discharged in your presence of
2
anything of that
nature?
3
THE JURY PANEL:
4
MS. VERGOS:
5
No.
Anybody have any family members who
have been involved in a similar situation like that?
6
THE JURY PANEL:
7
MS. VERGOS:
8
THE JURY PANEL:
9
MS. VERGOS:
No.
Friend?
No.
I know that Mr. Davidson indicated
10
before that he has a lot of friends and close
11
acquaintances in law enforcement, and that you,
12
apparently, have some contact with Mr. White, Sheriff
13
White?
14
PERSPECTIVE JUROR DAVIDSON:
15
couple of occasions.
16
MS. VERGOS:
17
18
19
20
Yes, I met him on a
Are you friends with him, or just
acquaintances?
PERSPECTIVE JUROR DAVIDSON:
I'm not friends,
probably acquaintances.
MS. VERGOS:
And I realize that you think that
21
the sheriff's office has some really great people in it,
22
and I'm sure you would have --
23
PERSPECTIVE JUROR DAVIDSON:
I didn't hear
24
anybody say anything bad.
When you asked did anybody
25
hear anything about the Pasco Sheriff's Office -- no.
82
1
MS. VERGOS:
I'll say they keep on going;
2
they're doing a great job out here.
3
the same, I guess -- I guess that's the question for you,
4
as far as that is concerned, you hold true to them
5
testifying to the same standards?
6
PERSPECTIVE JUROR DAVIDSON:
Can you hold them to
Standards, I mean,
7
would -- I guess because I don't particularly care about
8
abusive insofar as the tactics -- there are certain
9
people that use excessive force and abuse the badge, so
10
possibly.
11
things I'm partial to.
12
of good character.
13
But I do -- I am partial -- that's one of the
MS. VERGOS:
I have yet to meet one that isn't
Okay.
I guess the issue for you,
14
is not whether you like them, but it's great that you
15
do --
16
17
18
19
PERSPECTIVE JUROR DAVIDSON:
I can be factual
about it.
MS. VERGOS:
Can you be fair and impartial
regarding it?
20
PERSPECTIVE JUROR DAVIDSON:
21
MS. VERGOS:
Yes.
Will you look at the testimony of
22
an officer as each one of them gets on the stand, and
23
hold them to the duty of telling the truth and weighing
24
that evidence?
25
PERSPECTIVE JUROR DAVIDSON:
Like I say from the
83
1
Judge, I can, but I'm not saying there ain't going to be
2
something at the back of my head.
3
MS. VERGOS:
Okay.
If the Judge tells you, you
4
can't give them the benefit of doubt because they have a
5
badge?
6
7
8
9
PERSPECTIVE JUROR DAVIDSON:
I got to judge it
on the facts.
MS. VERGOS:
You can follow the law and not
question that?
10
PERSPECTIVE JUROR DAVIDSON:
11
MS. VERGOS:
12
PERSPECTIVE JUROR DAVIDSON:
13
MS. VERGOS:
14
THE JURY PANEL:
15
MS. VERGOS:
I will.
Can you be fair and impartial?
Yes.
Does everyone else agree with that?
Yes.
Does anyone have a problem weighing
16
evidence and weighing the testimony of a lay witness and
17
an officer differently than anybody else?
18
THE JURY PANEL:
19
MS. VERGOS:
Yes.
You can hold them at the same
20
standard; right?
At the end of the day, they're people
21
just like anybody else; they're entitled to carry a gun
22
and badge; right?
23
THE JURY PANEL:
24
MS. VERGOS:
25
issues in the house?
Yes.
Anybody ever have any domestic
84
1
THE JURY PANEL:
2
MS. VERGOS:
3
Domestic abuse, things of that
nature?
4
Do you want to approach?
5
6
- - (Sidebar discussion out of the hearing of the jury.)
7
- - -
8
9
No.
UNNAMED PERSPECTIVE JUROR:
by my husband.
10
THE COURT:
11
PERSPECTIVE JUROR:
12
THE COURT:
13
PERSPECTIVE JUROR:
14
I have been abused
prosecuted.
Is that here in Pasco County?
No.
Was your husband prosecuted?
I don't know that he was
They came to our house.
15
THE COURT:
Okay.
He was never arrested for it?
16
PERSPECTIVE JUROR:
17
THE COURT:
18
MS. VERGOS:
19
PERSPECTIVE JUROR:
20
MS. VERGOS:
Oh, no, no.
Any questions by the State?
I was more interested in the same.
No, no.
No, she's fine.
21
- - -
22
(Sidebar discussion concluded.)
23
24
25
MS. VERGOS:
moment?
Judge, if I could just have a
85
1
THE COURT:
2
MS. VERGOS:
Yes.
I guess what I'm interested in is
3
spousal abuse.
4
had family experience with it, friends, things of that
5
nature?
6
7
MS. VERGOS:
Okay.
Was your family the giver or
the receiver, I guess I should say?
PERSPECTIVE JUROR FISCELLA:
MS. VERGOS:
Okay.
Did law enforcement
respond?
14
PERSPECTIVE JUROR FISCELLA:
15
MS. VERGOS:
16
PERSPECTIVE JUROR FISCELLA:
17
MS. VERGOS:
18
PERSPECTIVE JUROR FISCELLA:
19
MS. VERGOS:
20
PERSPECTIVE JUROR FISCELLA:
21
MS. VERGOS:
22
PERSPECTIVE JUROR FISCELLA:
23
MS. VERGOS:
24
PERSPECTIVE JUROR FISCELLA:
25
I was a child in a
home where abuse was a factor.
12
13
Yes, family that's
had issues with it.
10
11
Ms. Fiscella.
PERSPECTIVE JUROR FISCELLA:
8
9
Anybody had any experience with it, or
Yes.
Once, multiple times?
Several.
Was your mom the victim?
Yes.
Were charges pressed?
I don't recall.
Did the batterer go away?
No.
Did your mother stay with him?
divorce and separation.
They were --
86
1
MS. VERGOS:
2
PERSPECTIVE JUROR FISCELLA:
3
Did they get back together?
stepfathers.
4
MS. VERGOS:
5
PERSPECTIVE JUROR FISCELLA:
6
MS. VERGOS:
7
PERSPECTIVE JUROR FISCELLA:
Your stepfather?
occasion she did.
9
comes to the bad stuff.
10
I think on one
I have a great blackout memory when it
MS. VERGOS:
I wish I did.
Okay.
PERSPECTIVE JUROR LISAGAIL OLEARY:
13
got -- they're divorced.
14
I just know it happened.
15
MS. VERGOS:
wife?
18
MS. VERGOS:
19
PERSPECTIVE JUROR LISAGAIL OLEARY:
20
MS. VERGOS:
21
PERSPECTIVE JUROR LISAGAIL OLEARY:
Yes.
Did he stay with her?
No.
It was one time?
I believe
so, yes.
23
25
My cousin
Your cousin got -- battery by his
PERSPECTIVE JUROR LISAGAIL OLEARY:
24
Ms. Oleary?
I don't know when it happened,
17
22
Anybody else
that's had any kind of experience like that?
12
16
Yes.
Did your mom go back with him?
8
11
They were
MS. VERGOS:
hand.
I think somebody else raised their
Mr. Lundy?
PERSPECTIVE JUROR LUNDY:
Yes, my daughter was
87
1
abused by her husband.
2
years.
She stayed with him for seven
He was in law enforcement.
3
MS. VERGOS:
4
PERSPECTIVE JUROR MARILYN JORDAN:
5
And Ms. Jordan?
childhood abuse, family.
6
MS. VERGOS:
7
PERSPECTIVE JUROR MARILYN JORDAN:
8
MS. VERGOS:
10
Yes.
Was it your mother?
PERSPECTIVE JUROR MARILYN JORDAN:
No, it was
all of us children.
12
MS. VERGOS:
13
you guys stay there?
14
15
Same as Lundy.
No police ever involved.
9
11
Same,
And did your mom stay there?
PERSPECTIVE JUROR MARILYN JORDAN:
Did
Oh, yes.
That was the thing to do in those days.
16
MS. VERGOS:
No?
It hasn't changed much.
Anybody on
17
this side?
Outside of the people that we spoke to
18
regarding the concealed weapons permit, anybody ever been
19
fingerprinted?
20
Ms. Stilwell, for what?
21
PERSPECTIVE JUROR LYNN STILWELL:
22
For work --
military.
23
MS. VERGOS:
Okay.
Who else, Ms. Robinson?
24
PERSPECTIVE JUROR LAURIE ROBINSON:
25
MS. VERGOS:
What kind of work?
For work.
88
1
PERSPECTIVE JUROR LAURIE ROBINSON:
2
MS. VERGOS:
3
PERSPECTIVE JUROR LYNN STILWELL:
4
MS. VERGOS:
5
PERSPECTIVE JUROR LYNN STILWELL:
6
MS. VERGOS:
7
PERSPECTIVE JUROR LYNN STILWELL:
8
MS. VERGOS:
9
10
11
12
Post office.
Ms. Stilwell, did you say military?
Yes.
What did you do in the military?
Records.
How long were you in the military?
Two years.
Anybody over here, Mr. Davidson,
for your concealed weapons permit?
PERSPECTIVE JUROR DAVID DAVIDSON:
No, ma'am.
Can we approach the bench?
MS. VERGOS:
Yes.
13
- - -
14
(Sidebar discussion on the record out of the hearing of
15
the panel.)
16
17
- - PERSPECTIVE JUROR DAVID DAVIDSON:
18
suspended license.
19
department.
20
fingerprinted me for that.
21
than driving under suspended license.
22
points, and that's why it was suspended.
Driving under
I was fingerprinted by Bob's White
I was a civilian at the time, and he
23
THE COURT:
24
MS. VERGOS:
25
THE COURT:
But nothing criminal other
I got up too many
Any questions by the State?
No, Your Honor.
Questions by Mr. Shahan?
89
1
MR. SHAHAN:
2
THE COURT:
3
Thank you.
- - -
4
(End of sidebar discussion.)
5
- - -
6
7
No, Your Honor.
MS. VERGOS:
Ms. Morris?
Anybody on this side fingerprinted?
Mr. Sampson, is that right?
8
UNNAMED PERSPECTIVE JUROR:
9
bonding purposes, and also when I was a kid,
10
For work, for
fingerprinted, but no charges were ever filed.
11
MS. VERGOS:
12
PERSPECTIVE JUROR SEAN LUNDY:
13
MS. VERGOS:
14
PERSPECTIVE JUROR SEAN LUNDY:
15
MS. VERGOS:
16
PERSPECTIVE JUROR SEAN LUNDY:
17
MS. VERGOS:
18
Anybody else?
Mr. Lundy?
What kind of work?
Maintenance.
You were fingerprinted for the
church?
PERSPECTIVE JUROR SEAN LUNDY:
20
MS. VERGOS:
21
PERSPECTIVE JUROR JOHN BOTELHO:
Yes.
Mr. Botelho?
Military, and I
work for Internal Revenue Service.
23
MS. VERGOS:
24
PERSPECTIVE JUROR JOHN BOTELHO:
25
Work at church.
What do you do?
19
22
Work.
in the infantry.
What did you do for the military?
I was a grunt,
90
1
MS. VERGOS:
2
PERSPECTIVE JUROR JOHN BOTELHO:
3
How long?
I spent four
years in the Marine Corps.
4
MS. VERGOS:
5
PERSPECTIVE JUROR HOWARD BAMBERG:
6
MS. VERGOS:
7
PERSPECTIVE JUROR HOWARD BANBERG:
8
9
Mr. Bamberg?
Military.
How many years were you in?
Eight years
Reserves, Navy Reserves.
MS. VERGOS:
Mr. Stanley?
10
PERSPECTIVE JUROR JOHN STANLEY:
11
MS. VERGOS:
12
PERSPECTIVE JUROR JOHN STANLEY:
13
MS. VERGOS:
14
PERSPECTIVE JUROR JOHN STANLEY:
15
MS. VERGOS:
16
PERSPECTIVE JUROR ELIZABETH MCGLAUGHLIN:
17
Military.
How long?
Three years.
What branch?
Airborne, Army.
Ms. McGlaughlin?
it was for the job.
18
MS. VERGOS:
19
PERSPECTIVE JUROR MARILYN JORDAN:
20
MS. VERGOS:
21
PERSPECTIVE JUROR THOMAS HIELSCHER:
22
23
24
25
RCA;
And Ms. Jordan?
School.
Mr. Hielscher?
Amscot,
cash a check.
MS. VERGOS:
Your thumb print.
Who else?
Ms. Oleary?
PERSPECTIVE JUROR LISAGAIL OLEARY:
For my job.
91
1
MS. VERGOS:
2
PERSPECTIVE JUROR EDMUND SAMPSON:
3
MS. VERGOS:
You are a foster parent; is that
what you're telling me?
6
PERSPECTIVE JUROR EDMUND SAMPSON:
7
adopted.
8
the sheet.
9
10
MS. VERGOS:
And the reason stated on the sheet.
And I asked you whether you're still a foster parent?
PERSPECTIVE JUROR EDMUND SAMPSON:
12
MS. VERGOS:
13
PERSPECTIVE JUROR EDMUND SAMPSON:
14
MS. VERGOS:
15
PERSPECTIVE JUROR EDMUND SAMPSON:
16
MS. VERGOS:
17
UNNAMED PERSPECTIVE JUROR:
21
Correct.
And you indicated?
Yes.
That you have now adopted?
Okay.
Yes.
And -Also, an agent with
the Internal Revenue Service.
19
20
Currently,
Navy foster parent, and the reason stated on
11
18
Navy and job,
and foster parent.
4
5
And Mr. Sampson?
UNNAMED PERSPECTIVE JUROR:
Reserve.
I was in the Naval
It's been so long ago, I don't remember.
MS. VERGOS:
After we begin the trial, we won't
22
be able to talk about this; we won't be able to talk
23
when we see each other wherever; so if anybody has any
24
questions or anything, this is the time to ask them.
25
Having said that, has anybody thought of
92
1
anything that we need to address, or any questions that
2
you'd like to ask of me at this time?
3
THE JURY PANEL:
4
MS. VERGOS:
No?
No.
Okay.
I don't have anything else.
5
Thank you so much for your attention, ladies and
6
gentlemen, and for those of you who are selected, I hope
7
that you do enjoy it.
8
THE JURY PANEL:
9
- - -
10
THE COURT:
11
MR. SHAHAN:
12
Thank you.
Mr. Shahan, you may proceed,
Your Honor, may I approach a
minute?
13
THE COURT:
Yes.
We're going to take a
14
ten-minute comfort break.
And if you're near that,
15
please raise your hand, and I'll have no problem giving
16
everyone a comfort break.
17
hand, chances are there are a number of other people who
18
would like one too, but they're too ashamed to do it.
19
don't be ashamed to raise your hand if you need one, all
20
right?
Because if you do raise your
So
21
And probably the most important thing to
22
remember as a juror is that if you get a break, go ahead,
23
take advantage of it.
24
and you're about to go on a long trip and your parent
25
makes you go even though you don't have to go.
Kind of like you're a little kid,
It's a
93
1
really good idea to go because five minutes into the
2
trial or five minutes into the evidence, you are going to
3
have to go, so this is a comfort break for everybody.
4
please go ahead and take advantage of it.
5
restrooms on the third floor; right?
6
THE BAILIFF:
7
THE COURT:
So
Now, we have
Yes.
All working, and on first floor, I
8
understand there's a little bit of a disaster, so if the
9
restrooms on the third floor are too busy because of the
10
large group, you can go on the second floor, but don't go
11
on the first floor.
12
Okay?
Then come back here in ten minutes.
And part of
13
the jury selection process is an IQ test to see if you
14
can remember which row and which seat you're in; so
15
please remember where you're at, and please return to the
16
same seat, all right?
17
And please do not discuss the case with anyone
18
including yourselves.
I'm going to give you that
19
instruction numerous times, and it plays from now all the
20
way until the end of the case, and after I give you the
21
jury instructions and you go back and deliberate.
22
from now until that time, which will be late Thursday,
23
early Friday, please do not discuss the case with anyone,
24
including yourselves.
25
fellow potential jurors about anything besides the case,
So
If you would like to speak to your
94
1
that's fine.
If you want to talk about the Bucks
2
performance on Thursday, if you'd like to talk about
3
that, you may, or the weather, or title wave that's
4
coming, or anything else, you may.
5
MS. VERGOS:
6
THE COURT:
7
In two minutes?
Assuming we don't have a title wave,
be back here at 4:25, all right?
Thank you.
8
- - -
9
(Short recess.)
10
11
- - (Court reconvened, whereupon, the following took place:)
12
- - -
13
(Out of the hearing of the Jury Panel.)
14
- - -
15
16
THE COURT:
approach the bench, and the lawyers, also.
17
18
Arlene Richardson, if you could
Are you sure -- you believe you may know the
Defendant?
19
PERSPECTIVE JUROR RICHARDSON:
20
THE COURT:
21
PERSPECTIVE JUROR RICHARDSON:
22
worked at my house.
23
THE COURT:
24
MR. SHAHAN:
25
lawyer.
Possibly.
Okay.
He might have
Has he ever worked for folks?
No, he's just been a retired
95
1
THE COURT:
2
MR. SHAHAN:
3
PERSPECTIVE JUROR RICHARDSON:
4
THE COURT:
Yes.
I just kept
Okay.
Hang on a minute, because we
have to make sure everybody is here.
7
8
Doing installation?
thinking.
5
6
Okay, go ask him.
MR. SHAHAN:
No, he never worked in that type of
work.
9
THE COURT:
10
What was the other thing?
PERSPECTIVE JUROR RICHARDSON:
The other thing
11
was my husband was retired from the fire department in
12
this new beach community, and their station was below the
13
courthouse, and we used to go up and visit them day after
14
day.
15
officers there that would be there, and I'm not sure just
16
how I feel about the whole thing.
17
it right, but I do know a lot of them that, you know, I
18
just felt it wasn't fair the way they got treated.
You go there and you see all the friends and police
19
20
THE COURT:
I mean, I'll try to do
Well, is that going to affect you as
a juror?
21
PERSPECTIVE JUROR RICHARDSON:
22
I really don't think so, but I just --
23
THE COURT:
24
PERSPECTIVE JUROR RICHARDSON:
25
say that, also.
I don't think so.
All right.
I just wanted to
96
1
THE COURT:
Anybody have any questions?
2
MS. VERGOS:
As far as that's concerned, can you
3
hold all law enforcement officers to the standard that
4
you hold every witness?
5
6
PERSPECTIVE JUROR RICHARDSON:
guess I couldn't.
7
8
PERSPECTIVE JUROR RICHARDSON:
Some that scared
me; yeah, I did.
MS. VERGOS:
So you understand that they're just
all --
13
14
Did you ever meet any law
enforcement officer you didn't like?
11
12
They're all different.
MS. VERGOS:
9
10
Actually, no, I
PERSPECTIVE JUROR RICHARDSON:
They're all
people, yeah.
15
THE COURT:
So you would have to weigh each one?
16
PERSPECTIVE JUROR RICHARDSON:
17
MS. VERGOS:
Yes.
So you might think that guy is
18
honest, straightforward, and then you think about another
19
one, I don't know about that one?
20
PERSPECTIVE JUROR RICHARDSON:
I think it's more
21
the thing that I heard them, you know, they got a bum
22
wrap.
23
MS. VERGOS:
24
PERSPECTIVE JUROR RICHARDSON:
25
I don't know what you mean.
Well, one in
particular was a really good officer, but people drove
97
1
him to the point where -- that he killed somebody, you
2
know; so I mean --
3
MS. VERGOS:
Was that in self-defense?
4
PERSPECTIVE JUROR RICHARDSON:
No, he just blew
5
him away, and then went back to work and pretended he
6
didn't do it for like a year, and then finally he gave
7
himself up.
So, I mean, I know there's good and bad.
8
MS. VERGOS:
9
PERSPECTIVE JUROR RICHARDSON:
10
Right.
I think I would
be all right, but I did want to mention that.
11
MS. VERGOS:
Okay.
As far as the Judge at the
12
end is going to give you certain standard things that you
13
should use in weighing credibility of the witness.
14
you use those things, common sense and determine who's
15
telling you what?
16
17
18
19
PERSPECTIVE JUROR RICHARDSON:
MS. VERGOS:
Sure, your own personal experiences
and common sense in determining -PERSPECTIVE JUROR RICHARDSON:
21
MS. VERGOS:
Yes.
-- whether this person testified
straightforward or not.
23
PERSPECTIVE JUROR RICHARDSON:
24
MS. VERGOS:
25
Yes, my own
belief?
20
22
Could
Yes.
You wouldn't have a problem doing
that because your husband was in --
98
1
PERSPECTIVE JUROR RICHARDSON:
2
THE COURT:
3
Yes.
All right, any questions by Mr.
Shahan?
4
MR. SHAHAN:
No.
5
THE COURT:
6
MR. SHAHAN:
I would like to approach the bench.
7
MS. VERGOS:
I believe that the record should
Thank you, ma'am.
8
indicate that the Defendant actually has been suspended
9
from the Florida Bar, not fired from the Florida Bar.
I
10
ask that Counsel be prohibited as an attorney, because my
11
recollection is that his license was actually suspended,
12
if not revoked by the Florida Bar.
13
practice and retire.
14
THE COURT:
He didn't just
All right, I don't even really see
15
any reason to bring it up at this point, but if it's
16
brought up by the defense that he is this retired
17
attorney, that's going to open the door to the fact that
18
he is suspended; so if you want to call him an ex-
19
attorney, I guess you can do that.
20
MS. VERGOS:
21
THE COURT:
22
MS. VERGOS:
Judge, he was sanctioned.
Is he not an ex-attorney?
That would say he voluntarily is no
23
longer an attorney; that would imply he is no longer
24
voluntarily an attorney.
25
talking about this permissible -- it's not even a
He's not.
If we're going to be
99
1
dispute.
It's true that he practiced, and here before he
2
was disbarred or suspended.
3
THE COURT:
4
MS. VERGOS:
Do you have any idea when?
I can find it relatively easily.
5
But I don't think off the top of my head -- I think it
6
was sometime in 2000 that he was suspended, Judge, and I
7
believe this is inherent that he was actually disbarred.
8
9
MR. SHAHAN:
The acute point should be that he
had an allegation against him never answered, so he is no
10
longer an attorney.
11
there was no finding of unethical attorney.
12
just say he's no longer an attorney?
13
14
15
THE COURT:
There's no finding unethical -Why can't we
Why do we have to say he's an
attorney at all?
MS. VERGOS:
It bears no relevance to this
16
charge, bears no relevance to this offense in this case.
17
It just, basically, put him in a light a little bit more
18
favorable in the eyes of the public.
19
THE COURT:
Sure.
20
MS. VERGOS:
Some, I assume.
21
MR. SHAHAN:
The reason it's important I think
22
is that he's not some redneck running around with a bunch
23
of guns and no prior charges, no different than the
24
policemen.
25
MS. VERGOS:
Judge, I think that's a
100
1
mischaracterization, because at the same time Mr. Shahan
2
says that I can tell the Court after he is disbarred,
3
that he does have a mental history; according to his
4
fiancee, he's been in and out of the hospital with mental
5
issues; so it determines what kind of person he is,
6
whether he's running around with firearms.
7
would not be permitted to say that he is running around
8
with firearms on any other occasion besides this
9
occasion.
I certainly
10
I believe Mr. Shahan should be prohibited from
11
saying he's an upstanding member of the community other
12
than that day.
13
Defendant, which he is not.
14
It's improper bolstering of the
MR. SHAHAN:
I guess we need to have a Motion in
15
Limine.
The police took third-hand hearsay from somebody
16
and twisted it.
17
in Tarpon Springs when they had a gun.
18
evidence that he was Baker-acted for a gun, and it
19
shouldn't be alluded to in this case anyway.
20
issue of what happened,
Donna was the one that got Baker-acted
21
MS. VERGOS:
22
THE COURT:
There is no
This is an
The same -I'm going to leave it up to Mr.
23
Shahan.
If you want to bring out the fact that he is a
24
former lawyer in order to show good credibility or
25
character, I will allow that, but then I will allow the
101
1
State to bring out the fact that he is a disbarred
2
lawyer.
3
not to bring out the fact that he's a former lawyer, but
4
if you want to do that, and you know what the
5
ramifications are, but I will not allow you, the State to
6
bring it out before you do.
7
So I think it's probably in your best interest
MR. SHAHAN:
Okay.
Your Honor, this is a little
8
unusual for this circumstance.
9
important that I -- can we have him come up here now to
10
I think it's very
hear what you're saying?
11
THE COURT:
Sure.
12
I'll have it on the record so there's no 3.850.
13
- - -
14
(Sidebar discussion.)
15
- - -
16
MR. SHAHAN:
I'm going to summarize what the
17
discussion was.
If I'm wrong, the Judge will tell me.
18
But, in essence, we were up here for something else,
19
okay?
20
to be able to bring up that you were an ex-attorney, and
21
I explained to the Judge that I was going to bring up you
22
were an ex-attorney, also, an economist.
What Ms. Vergos said is that she does not want me
23
MR. DAIAK:
24
MR. SHAHAN:
25
Economist, a trolling economist.
And that I wanted to show that you
were a professional person as relates to -- for her side,
102
1
the technical side, said that if it's brought up, if she
2
wants to let the jury know that you're a suspended
3
attorney --
4
THE COURT:
5
MR. SHAHAN:
6
MR. DAIAK:
Or disbarred, whatever it was.
I don't have a -I don't have a problem with it,
7
with the truth of the matter.
8
THE COURT:
All right.
9
MR. DAIAK:
I'm sorry.
10
THE COURT:
We just want you to know that if you
11
do not bring out the fact that you are a former attorney,
12
then it won't be brought out by anyone.
13
up the fact that you're a former attorney, then the State
14
is going to be allowed to bring up the fact that you're
15
disbarred.
If you do bring
16
MR. DAIAK:
Not suspended.
17
THE COURT:
You're still suspended?
18
MR. DAIAK:
I believe.
19
MR. SHAHAN:
20
21
You failed to answer bar
complaints, you automatically got suspended; right?
MR. DAIAK:
The full and short, I didn't like
22
law; I didn't pay my dues; I got e-mail from the Bar; I
23
tossed it.
I was just through with the lawyer business.
24
THE COURT:
All right.
25
MR. DAIAK:
Whatever they did, I don't know what
103
1
they did.
2
I never got paperwork.
THE COURT:
This is how it comes up.
He wants
3
me to let them know you're proficient as it relates to
4
credibility; you're not some Redneck running around with
5
a bunch of guns; on the other hand, they have a right to
6
get into you're an ex-attorney, and whatever the Bar says
7
is the reason.
8
9
MR. DAIAK:
Bar with anything.
10
call it?
11
with it.
That's fine.
I never replied to the
It was one of these -- what do you
A default judgment.
I don't have a problem
12
THE COURT:
All right.
13
MR. DAIAK:
I walked away from a law practice;
14
it didn't agree with me after I had a few civil cases.
15
I'll be truthful if you ask me, say why did you quit; I
16
don't really like lawyers; I don't like them as people.
17
I'm more of a creative person.
18
THE COURT:
All right.
19
MR. DAIAK:
I'd say present company aside,
THE COURT:
But if you're asking to ask that
20
21
but --
22
question by the Defense or the State, let's make sure we
23
know the right answer.
24
find out exactly what the status is --
25
MR. SHAHAN:
If the lawyers call the Bar and
I believe it's entered in the
104
1
public record, Pinellas County, that you can pull up on
2
the Web site.
3
I finally looked into it a year ago.
MS. VERGOS:
I can find it, or on the Florida
4
Bar web site.
As far as the reasons, Judge, I would have
5
to make some inquiries about status.
6
the Web site; it tells you.
7
THE COURT:
We can determine by
All right, so let's not ask him the
8
question, isn't it true that you were disbarred when in
9
fact he was suspended.
10
11
MR. SHAHAN:
economist?
12
13
Why don't we say you're a former
MR. DAIAK:
No, I spent, I'm sorry -- five
years -- I went to law school.
14
MR. SHAHAN:
That's why I had the Judge have you
15
come up here.
16
ineffectiveness of counsel that I let it get in.
17
18
MR. DAIAK:
21
22
23
24
25
No, I never responded, didn't send
dues in.
19
20
I don't want a .3850; that's
MR. SHAHAN:
It was some kind of complaint;
right?
THE COURT:
You have him explain it, so if we go
down that road -MR. SHAHAN:
I'm not going to go down that road
in opening statement.
MR. DAIAK:
I used to be a member of the
105
1
Pennsylvania Bar.
2
Bar; I quit paying dues because I never intended to go
3
back.
4
That's where I took the Pennsylvania
MS. VERGOS:
The other thing, I hear counsel
5
saying a little bit of this, but if counsel is planning
6
on showing, I guess the Defendant's reputation in the
7
community for non-violence, or something of that nature,
8
there has to be reputation testimony.
9
THE COURT:
10
right now.
11
the jury?
12
now.
13
We're not going to go into that
Why don't we go ahead and complete selecting
I'm sure he's not going to go into any of that
MR. SHAHAN:
I was upset that she was going to
14
get involved with domestic violence.
15
phone call, not from Donna.
16
THE COURT:
17
Let's go ahead.
18
Thank you.
- - -
19
(End of sidebar discussion.)
20
21
It was a third
- - D E F E N S E
O P E N I N G
T O
T H E
P A N E L
22
23
MR. SHAHAN:
Good afternoon, ladies and
24
gentlemen.
I'm sorry I can't get this any further.
25
bailiff has told me that it's hooked up to this
The
106
1
2
microphone, and that's as far as it goes.
Can everybody hear me okay?
You've heard a lot
3
of questions that I might have asked, but the Judge and
4
Ms. Vergos did a good job of asking it, so I'm going to
5
get into some other areas, but try not to go into areas
6
that they've already asked you about.
7
Ms. Vergos indicated, though, this is a case,
8
and as the Judge read to you the charging information,
9
where my client is charged with intentionally and
10
specifically knowing that these folks were law
11
enforcement officers, committing an aggravated assault
12
against them by discharging a firearm.
13
We are before this jury today because he has
14
filed a not guilty plea, and they're going to be issues
15
in this case as to whether he knew they were law
16
enforcement officers or not, and whether he was acting in
17
self-defense of what he thought were burglars.
18
Now, I was happy to see that the prosecutor got
19
into the issue of Hurricane Francis, because all this
20
happened at the time of --
21
22
MS. VERGOS:
Judge, I would object.
I would ask
to approach.
23
- - -
24
(Sidebar discussion on the record.)
25
- - -
107
1
THE COURT:
2
MS. VERGOS:
3
Where are you going?
4
MR. SHAHAN:
Okay.
I'm not sure where you're going.
Where I was just going is, is there
5
someone to automatically determine that if someone is
6
wearing a law enforcement uniform outside a home, that
7
the first person inside is going to automatically know
8
they're law enforcement.
9
THE COURT:
You can't get into the facts of the
10
case.
11
but you're not going to go get into the facts of the
12
case.
13
You got to ask them about their qualifications,
MR. SHAHAN:
I understand, Judge.
I'm puzzled
14
because of the fact why was she allowed to get into
15
domestic violence, and that wasn't part of the charge?
16
THE COURT:
All she asked was has anybody ever
17
been the victim of domestic violence, and that was it.
18
If she had said the facts of the case are blah, blah,
19
blah, blah, is anybody going to automatically believe a
20
person that these facts occurred blah, blah, blah, but
21
she didn't do any of that.
22
the hurricanes, if you want to ask about law enforcement
23
officers in general, that's fine, but you're not going to
24
get into the specific facts of the case.
25
MR. SHAHAN:
So if you want to ask about
The only thing, I saw women look
108
1
totally different at Mr. Daiak, about domestic violence.
2
What has this got to do with this case?
3
THE COURT:
That's all right.
If the facts are
4
determined that there is no domestic violence -- I'm sure
5
they're not going to hold it against him, so there was no
6
implication that Mr. Daiak has been charged with domestic
7
violence.
8
which is especially the reason that the call was made
9
originally, was because of a domestic violence
That was just a question asked by the State,
point,
10
but it will all come out in the evidence, and all come
11
out beginning with the evidence, not beginning now.
12
We're not going to talk about the facts of the case.
13
MR. SHAHAN:
14
THE COURT:
Okay.
If you want to ask general
15
questions, you went to ask them about the qualifications
16
to serve and whether or not they would be a good juror is
17
fine; that's the only things that are proper, not the
18
facts of the case.
19
20
MR. SHAHAN:
But I can ask them about the
defense of self-defense; right?
21
THE COURT:
Sure.
22
MS. VERGOS:
I don't know what that means
23
exactly.
I'm objecting to the scenarios that are about
24
to be coming out.
25
there, started talking about ladies in the case, the
The defense may blink it out, go up
109
1
intentional pulling of a firearm in front of law
2
enforcement, knowing the person is law enforcement
3
officer, all those things, and he goes with the fact that
4
this happens around hurricane Francis, it sounds like an
5
opening argument, like beginning of opening argument.
6
THE COURT:
You can ask about self-defense, but
7
you can't get into the facts of the case, just
8
self-defense in general, all right?
9
MR. SHAHAN:
I can get into the idea that they
10
have to prove that he was a law enforcement officer, so
11
how do you get into that without touching on the facts?
12
MS. VERGOS:
He can't.
13
MR. SHAHAN:
Or observations, how do you
14
15
determine?
THE COURT:
Well, the answer is you can't.
If
16
you want to ask them again, if they would follow the law
17
that the Judge instructs them on the elements of the
18
crime that the State's burden of proving each and every
19
element of the crime now, and then ask then specifically
20
can they follow the law.
21
MR. SHAHAN:
22
THE COURT:
Right.
Because I'm going to instruct them
23
on the law.
At the end, you will argue the law in
24
closing argument, but we're not going to talk about the
25
facts of the case, not get into specifics of the law.
If
110
1
you want to get into generalities of -- into the State's
2
burden of proof, about the facts they have to prove each
3
and every element about self-defense in general, that's
4
fine, not going to get into specifics, all right?
5
6
MR. SHAHAN:
Self-defense in general.
you.
7
- - -
8
(End of sidebar discussion.)
9
10
Thank
- - MR. SHAHAN:
One of the issues that's going to
11
be in this case is related to my client's self-defense.
12
Is there anybody here that has a problem with the idea of
13
self-defense, that if someone is in their castle, they
14
believe they're being attacked, they can't use
15
self-defense?
16
THE JURY PANEL:
17
MR. SHAHAN:
No.
Is there anybody here -- I know a
18
couple of you said that you were victims of burglary, but
19
is there anybody here that's been in a situation where
20
somebody, Narco crashing on your door, you're kind of
21
wondering if you're going be a victim of a burglary?
22
that ever happened to anybody?
23
THE JURY PANEL:
24
MR. SHAHAN:
25
Has
No.
If in fact that occurred, does
anybody here have any problem with the person that's in
111
1
their castle trying to use self-defense instead of trying
2
to find a phone and call the police?
3
there and it's eminent, does anybody have a problem with
4
a person protecting themselves and their property in
5
their home under those circumstances?
6
THE JURY PANEL:
7
MR. SHAHAN:
If they're right
No, no.
Ms. Vergos asked several of you
8
folks whether you had guns, and whether you had concealed
9
weapons permits, and is there anybody here that just
10
because of their moral beliefs and/or their fear of guns,
11
that you don't believe that you really should be sitting
12
on this jury?
13
something else, but maybe your fear of guns or you're not
14
likely to use the gun that you should, that might impact
15
you in weighing the evidence that comes before you as to
16
who somebody reasonably thought they needed to use a gun,
17
or reasonably felt that it was something they should do?
18
Not that you're not a good juror or
Is there anybody here?
This is what voir dire
19
is about.
We're not going to hold it against you.
I
20
would never want to be in a drunk-driving situation as a
21
juror, because my brother was injured by a drunk driver;
22
cut off his legs; so I would never agree to sit on that
23
kind of jury.
24
like to say they would rather not sit on a jury with the
25
considerations that are before us today?
But is there anybody, honest, who would
112
1
THE JURY PANEL:
2
MR. SHAHAN:
No.
Now, in every trial there are going
3
to be conflicts in the evidence.
Someone is going to
4
observe something from a certain point and say, well, the
5
dirt was blue, but there was no rain; somebody else might
6
observe it from a different angle saying it was raining
7
cats and dogs.
8
someone said, it didn't come up yet.
9
believe that police officers, just because of their
Somebody else might say the sun was up;
Does anybody here
10
training or their desire to go into that type of work,
11
that automatically if there's a difference in testimony
12
from the defense versus a difference in testimony from
13
the police that, you know, the other guy must have
14
observed it wrong; we can't believe the other guy?
15
THE JURY PANEL:
16
MR. SHAHAN:
No.
Now, I'm not allowed by the law to
17
get into specifics of the case, real specific facts in
18
this particular case, but I just want to talk in terms of
19
independent judgment and a juror's duty.
20
gave you some kind of little questionnaire to not only
21
fill out, but probably a book you read about jury duty,
22
and that type of thing.
23
THE JURY PANEL:
24
MR. SHAHAN:
25
I'm sure she
No.
Well, see I'm wrong.
they do in Pinellas County.
That's what
They give you a little book.
113
1
They didn't give you a little book today?
2
THE JURY PANEL:
3
MR. SHAHAN:
No.
I apologize.
Forget that.
But I
4
want to talk about independent judgment.
5
the way as this trial progresses, the Judge is going to
6
tell you that each of you are to go back there and review
7
the evidence, and in your mind review what you think you
8
heard that came from the witness stand in the way of
9
testimony, or maybe different documents that may be put
10
11
Somewhere along
into evidence, and listen to the other jurors.
But each person is supposed to make up their own
12
mind as to what their verdict will be.
13
here that has been so ingrained with any corporate thing
14
about being a team player, if you're not a team player,
15
you're not going to get a raise; if you're not a team
16
player that things are not going to go right, you just
17
honestly want to let us know.
18
shove, really don't like to get out there and confront
19
the rest of the group like this.
20
Is there anybody
If there's a push and
Is there anybody here, and it's not a bad thing,
21
a lot of times, it's a good thing.
22
here that would honestly let us know whether you feel
23
like you can't stick to your guns if you get back there?
24
THE JURY PANEL:
25
MR. SHAHAN:
But is there anybody
No.
Now, if you, ladies and gentlemen,
114
1
had to vote now, right now, based on what Judge Bulone
2
told you about the law so far, how would you vote from
3
what you heard so far?
4
THE JURY PANEL:
5
MR. SHAHAN:
6
UNKNOWN PERSPECTIVE JUROR:
7
8
evidence.
Not guilty.
Why is that?
Because we have no
You're innocent until otherwise proven.
MR. SHAHAN:
Very good.
Now, throughout the
9
trial, there might be from time to time objections from
10
Ms. Vergos or myself, and then things will be taken and
11
handled at the bench like you've seen we've done so far.
12
Is there anybody here that feels that's just not fair,
13
that you should be able to hear everything?
14
THE JURY PANEL:
15
MR. SHAHAN:
No, no.
Now, only the Judge can instruct
16
you on the law as to self-defense.
And what that means,
17
Mr. Sampson, what is your concept of self-defense?
18
PERSPECTIVE JUROR EDMUND SAMPSON:
19
in my house, I take them out.
20
MR. SHAHAN:
21
PERSPECTIVE JUROR EDMUND SAMPSON:
22
23
24
25
Someone come
Pardon?
If somebody
comes in my house, Florida law says I can take them out.
MR. SHAHAN:
In other words, when they cross
that threshold of your castle, you can take them out.
PERSPECTIVE JUROR EDMUND SAMPSON:
I can shoot
115
1
them in the leg, yeah.
2
MR. SHAHAN:
3
PERSPECTIVE JUROR EDMUND SAMPSON:
4
MR. SHAHAN:
5
Ms. Robinson, what's your concept
PERSPECTIVE JUROR LAURIE ROBINSON:
Defend
myself and my property.
8
9
Yes.
of self-defense?
6
7
Can you defend your property, too?
MR. SHAHAN:
And do you see anything wrong if I
had one next to you, a gun to do that?
10
PERSPECTIVE JUROR LAURIE ROBINSON:
11
MR. SHAHAN:
12
PERSPECTIVE JUROR ROBINSON:
No, I don't.
You seem to hesitate for a minute.
Yeah -- well, I was
13
trying to think of the scene, you know, trying to figure
14
it out.
15
MR. SHAHAN:
16
PERSPECTIVE JUROR LAURIE ROBINSON:
17
18
19
20
21
22
23
I didn't tell you the scene.
Shoot them
in the leg.
MR. SHAHAN:
Mr. Rhinehart, what is your concept
of whether the police can make mistakes?
PERSPECTIVE JUROR HARVEY RHINEHART:
Can you
repeat that?
MR. SHAHAN:
Can police officers make an
innocent error or mistake?
24
PERSPECTIVE JUROR HARVEY RHINEHART:
25
MR. SHAHAN:
Yes.
Does anybody here believe that a
116
1
police officer is beyond upgrading the charge to a charge
2
different than what's appropriate?
3
4
PERSPECTIVE JUROR HARVEY RHINEHART:
Can you
repeat that again?
5
MR. SHAHAN:
Sergeant --
6
MS. VERGOS:
Judge, I'm going to object to that
7
8
9
10
question.
THE COURT:
I'll sustain that objection.
I
don't think it's relevant.
MR. SHAHAN:
Now, both the Judge and the
11
prosecutor told you about how they have the complete
12
burden of proof in this case.
13
elements of this aggravated assault on a police officer.
14
The Defendant intentionally, unlawfully threatened them
15
by word or deed that he apparently had the ability to
16
carry out the threat.
They have to prove all the
17
MS. VERGOS:
Judge, I'm going to object.
18
MR. SHAHAN:
May we approach, Your Honor?
19
THE COURT:
Yes.
20
- - -
21
(Sidebar discussion on the record.)
22
- - -
23
THE COURT:
Mr. Shahan, you can say the elements
24
of a crime; the State has to prove each and every element
25
of the crime; we hold the State to the burden, and if you
117
1
want to say the State, there are seven elements, for
2
example, and you want to prove five or six, then can you
3
find the Defendant not guilty, but you got to understand
4
that the State has to prove all, but you can't get into
5
specific elements now.
6
MR. SHAHAN:
Okay.
7
MS. VERGOS:
I don't know what the defense is
8
planning on going into, a little more different issues,
9
but one of the issues in this case is going to be
10
regarding self-defense and whether or not the Defendant
11
is acceptable to --
12
THE COURT:
13
Well, I think there are self-defense
issues, aren't there?
14
MR. SHAHAN:
15
THE COURT:
16
Yes.
Okay, proceed.
- - -
17
(End of sidebar discussion.)
18
- - -
19
THE COURT:
Please proceed.
20
MR. SHAHAN:
21
Ladies and gentlemen, there are going to be a
22
number of elements that the State has to prove in this
23
particular case, and Judge Bulone will tell you those
24
elements.
25
and just, hypothetically, if there were seven elements,
Thank you, Your Honor.
In the event that you sit here and you listen
118
1
and you feel like the State has put in a lot of time in
2
this case, put a lot of witnesses on the stand, but I
3
don't believe a couple of elements have been proven, what
4
do you do, Mr. Sampson, at that time?
5
6
PERSPECTIVE JUROR EDMUND SAMPSON:
seven?
7
MR. SHAHAN:
8
PERSPECTIVE JUROR EDMUND SAMPSON:
9
MR. SHAHAN:
I'd probably
So what would your verdict have to
be?
12
13
Yes.
still need seven, and that's what reasonable doubt is.
10
11
Five out of
PERSPECTIVE JUROR EDMUND SAMPSON:
Well, it
would be not guilty.
14
THE COURT:
All right, just to clarify for a
15
moment.
Each of the charges that the Defendant is
16
accused of are going to have certain elements, and it's
17
the burden of the State to prove each and every element
18
beyond a reasonable doubt.
19
prove one element beyond a reasonable doubt, then you
20
should find the Defendant not guilty of that particular
21
charge, all right?
So, obviously, if they don't
Everyone understand that?
22
THE JURY PANEL:
23
UNKNOWN PERSPECTIVE JUROR:
24
25
Yes.
Would you repeat
that again, Judge, please?
THE COURT:
Sure.
Obviously, I'm not going to
119
1
instruct you on the law yet.
2
law at the close of the case, and I will instruct you
3
that certain offenses have what's called elements of the
4
crime that the State has to prove the following elements
5
beyond a reasonable doubt.
6
one, two, three, and four.
7
I'll instruct you on the
And let's say there's four,
The State has to prove each and every element
8
beyond a reasonable doubt.
If they don't, if they just
9
prove one, two, and three, and they don't prove four,
10
then you have to find the Defendant not guilty of that
11
particular charge, because they have to prove each and
12
every element, all right?
Everyone understand that?
13
THE JURY PANEL:
Yes.
14
THE COURT:
15
MR. SHAHAN:
16
Now, the prosecutor, the Judge, and I have asked
Thank you.
Thank you.
17
you questions so far.
18
there anybody here that would just like to tell us
19
straightforward for whatever reason, they don't believe
20
they can give the State a fair trial, or for whatever
21
reason they don't believe they can give Mr. Daiak a fair
22
trial based on what you've heard so far, and you'd just
23
like to hold up your hand and ask the Judge to be excused
24
from this jury?
25
Based upon all those questions, is
Is there anybody that has that feeling?
THE JURY PANEL:
No.
120
1
MR. SHAHAN:
Now, Mr. Davidson, you've told us a
2
little bit about how you had a pleasant experience with
3
Bob White and various officers.
4
election campaign, or anything like that?
Did you work on his
5
PERSPECTIVE JUROR DAVID DAVIDSON:
6
MR. SHAHAN:
No.
You said that you were a slight
7
acquaintance, more than a friend, but not a real good
8
acquaintance, but slight acquaintance.
9
you've been out to dinner with him, or anything like
10
Does that mean
that?
11
PERSPECTIVE JUROR DAVID DAVIDSON:
No, it's not
12
like I have barbecues, or anything like that with his
13
family.
14
15
MR. SHAHAN:
When they call on the sheriff's
fund for money for the PDA, have you contributed?
16
PERSPECTIVE JUROR DAVID DAVIDSON:
17
MR. SHAHAN:
No.
As we sit here today, I appreciate
18
your honesty in the past and, you know, telling us what
19
you told us, it seems to me your words were something
20
like if you're going to make a decision, you're going to
21
be leaning a little bit more toward the sheriff from the
22
beginning.
23
terms of just considering the evidence in this case?
24
25
How is that going to impact you as a juror in
PERSPECTIVE DAVID DAVIDSON:
I can judge it by
the facts, but they had to feel they had enough of a case
121
1
to press charges.
2
MR. SHAHAN:
So you have the belief as a
3
citizen, that if in fact the State attorney files charges
4
that involve police officers as victims, that there must
5
be something there, or they wouldn't file charges; is
6
that what you're, basically, saying?
7
PERSPECTIVE JUROR DAVID DAVIDSON:
8
mean, it still has to go to trial, still has to be
9
proven.
10
MR. SHAHAN:
Possibly.
I
Based upon your entire experiences
11
with this sheriff's deputies and Bob White, do you feel
12
like the law enforcement as a victim has, should have a
13
better coverage of the evidence than any other victim
14
that might come before the Court?
15
PERSPECTIVE DAVID DAVIDSON:
16
MR. SHAHAN:
What do you mean?
Well, if you had similar facts come
17
before you, and the person claiming that they were a
18
victim of aggravated assault, that they were in fear of
19
some shots that were shot, that if the person, the police
20
officers because of the nature that they're in and, you
21
know, you just can't figure out whether it should be
22
guilty or not guilty, you lean a little bit more because
23
they're out there protecting?
24
25
PERSPECTIVE JUROR DAVID DAVIDSON:
Are you
talking about if a civilian broke into a house of law
122
1
enforcement?
2
MR. SHAHAN:
No, I'm talking about a civilian
3
claiming somebody shot a gun, and they had fear that they
4
were going to get shot versus these police officers
5
claiming that they were -- they had fear that they were
6
going to get shot.
7
8
PERSPECTIVE JUROR DAVID DAVIDSON:
Not
necessarily.
9
MR. SHAHAN:
Credibility is going to be an issue
10
in this case as to what people saw, what they observed,
11
what their beliefs are.
12
the information that you have so far, is of the opinion
13
that they have to give one particular type individual, or
14
one side a leg-up on credibility?
15
THE JURY PANEL:
16
MR. SAHAN:
Is there anybody here that with
No.
Now, you've been in here for a few
17
hours, and you've observed my client over the last few
18
hours.
19
mind right now about my client based upon anything that
20
Ms. Vergos has said, or I've said, or the Judge has said?
Is there any stereotype that you have in your
21
THE JURY PANEL:
22
MR. SHAHAN:
23
PERSPECTIVE JUROR ARLENE RICHARDSON:
24
MR. SHAHAN:
25
No.
Ms. Richardson?
Yes.
What do you believe about whether
emotions should play any part of this case in terms of
123
1
your consideration of the facts in evidence?
2
UNKNOWN PERSPECTIVE JUROR:
3
MR. SHAHAN:
What do I believe?
Yeah, what part do you believe
4
emotion should play in this trial in terms of
5
consideration of the evidence?
6
UNKNOWN PERSPECTIVE JUROR:
7
MR. SHAHAN:
8
None.
Is there anybody that feels that
there's a place for emotion in this trial?
9
THE JURY PANEL:
10
MR. SHAHAN:
No.
Whatever the Judge instructs you on
11
in terms of what the law of self-defense in Florida is,
12
is there anybody here that after thinking about this a
13
little bit feels like well, I don't know if I could
14
follow it,
I don't like it?
15
THE JURY PANEL:
16
MR. SHAHAN:
17
So that hasn't changed from when he
asked you a little while ago, things are the same?
18
THE JURY PANEL:
19
MR. SHAHAN:
20
THE COURT:
22
MR. SHAHAN:
24
25
Yes.
May I have a moment with my client,
Your Honor?
21
23
No.
Yes, you may.
Your Honor, may we approach for a
moment?
THE COURT:
Yes.
- - -
124
1
(Sidebar discussion on the record.)
2
- - -
3
4
MR. SHAHAN:
I just don't want to get an
objection if I ask this question.
5
THE COURT:
6
MR. SHAHAN:
All right.
My client is saying, basically, he
7
wants me to ask them do you know that legally a law
8
enforcement officer has legal obligation to (inaudible)
9
specifically from a crime as it relates to his acting
10
immediately, not sitting around calling on the phone, and
11
whatever, you know, trying to find a policeman, and boom!
12
boom! boom!
13
14
THE COURT:
For the record, I have tried, but
I'm not going to allow you to ask the question.
15
MR. SHAHAN:
16
THE COURT:
Good.
I got a record of it.
By the way, Mr. Daiak, he's been up
17
here for some of it; let him know if he wants to be up
18
here for any of the bench conferences.
19
matter of fact, why don't you bring him up here right
20
now?
He may.
21
- - -
22
(Defendant to the bench.)
23
- - -
24
25
THE COURT:
As a
If you would like to be up here for
any of the bench conferences, you may.
If you're asked
125
1
to approach the bench and you don't, I'm assuming you're
2
waiving, giving up the right to be here, all right?
3
MR. DAIAK:
Yes.
4
THE COURT:
Any time there's a bench conference,
5
you can come up here.
As long as you're here, you
6
usually ask the Judge to entertain the question.
7
THE DEFENDANT:
8
THE COURT:
No.
Thank you.
9
- - -
10
(End of sidebar discussion.)
11
- - -
12
MR. SHAHAN:
The Judge and prosecutor and I have
13
had a chance to ask questions of you.
Is there any other
14
question you would like me to ask of you as it relates
15
to, that you think is important as to you as an
16
individual, as to whether you can be a fair and impartial
17
juror?
Is there any question that you'd like me to ask?
18
MR. DAIAK:
19
MR. SHAHAN:
20
THE COURT:
No.
Thank you for your time.
All right, ladies and gentlemen, we
21
are now going to actually select who's going to be on the
22
jury.
23
do that, so I'm going to give you a 15-minute break and
24
ask that you be right outside these doors in fifteen
25
minutes.
And, obviously, you can't be in here for when we
126
1
Obviously, in the next fifteen minutes, if you
2
want to run all the way to the snack bar and grab a snack
3
or something, you can.
4
restrooms, you can do that; if you want to call your
5
family, you can do whatever you want in fifteen minutes,
6
just be right outside in 15 minutes, all right?
7
you.
Obviously, if you want to use the
8
Thank
- - -
9
(Jury panel excused for short recess.)
10
- - -
11
THE COURT:
Mr. Daiak, take as much time to go
12
over things with Mr. Shahan, and then when you're ready,
13
let me know.
14
MR. DAIAK:
Yes, sir.
15
THE COURT:
Ms. Vergos, take as much time as you
16
17
18
19
20
need.
MS. VERGOS:
THE COURT:
Yes.
Do you have any challenges
for cause?
MS. VERGOS:
22
THE COURT:
23
MR. SHAHAN:
25
Just six
challenges each?
21
24
I'm ready to go.
Judge, No. 22.
Any objection?
That's the man who says he has
trouble with English.
THE COURT:
No objection.
Any others by the State?
127
1
MS. VERGOS:
2
THE COURT:
3
MR. SHAHAN:
4
THE COURT:
MR. SHAHAN:
8
THE COURT:
9
What says the State?
10
MS. VERGOS:
11
THE COURT:
MR. SHAHAN:
THE COURT:
16
9.
17
State?
MS. VERGOS:
19
THE COURT:
10.
21
25
No.
All right, so let's go 1 through 6.
No. 3.
All right, so 1, 2, 4, 5, 6, and 7.
We would like to use a peremptory
All right, so that brings us up to
What says the
Number 8.
Brings us up to 10; 1,2,4,5,9 and
What says the Defense?
MR. SHAHAN:
We would like to use a peremptory
on No. 10.
23
24
Any others?
So it's number 1, 2, 4, 5, 8 and 9.
18
22
I didn't see that, but I will grant
on 6 and 7.
15
20
I think he's
What says the Defense?
13
14
Yes, David Davidson.
the challenge for cause.
7
12
Any by Defense?
got cause written all over.
5
6
No.
THE COURT:
11.
All right, that brings us up to No.
What says the State?
MS. VERGOS:
Accept.
128
1
2
THE COURT:
MR. SHAHAN:
4
THE COURT:
5
in construction.
6
something.
7
anybody want him?
8
10
Samson?
Now, Mr. Sampson said that he works
It's going be a hardship for him.
Does
Do you want to take a risk on
What he said about how he's got all his foreman
activity stuff that he's got to do with inspections.
MR. DAIAK:
I agree.
He's a straight shooter,
but work problems.
13
14
We accept.
I think he's an electrician or
MR. SHAHAN:
11
12
It will be No.
1, No. 2, No. 4, No. 5, No. 9, and No. 11.
3
9
What says Defense?
MS. VERGOS:
I'll stipulate to cause, so
somebody has to use a peremptory.
15
THE COURT:
No one uses a peremptory.
It was
16
done for compassion reasons, but by all parties involved.
17
All right, so now we've got 1, 2, 4, 9, 11, and 12.
18
says -- I think we're up to the Defense.
19
Defense?
20
MR. SHAHAN:
21
THE COURT:
22
MS. VERGOS:
23
THE COURT:
24
25
MS. VERGOS:
What says the
We have no problem.
What says the State?
Strike 12.
Instead of 12, we have 13.
says the State?
Accept.
What
What
129
1
THE COURT:
2
MR. SHAHAN:
3
THE COURT:
All right.
So now we're up to 14.
What stays the State?
6
MS. VERGOS:
7
THE COURT:
8
Use a peremptory on John Capek,
retired cop.
4
5
What says Defense?
Strike 14.
All right, so now we're up to 15.
What says Defense?
9
MR. SHAHAN:
10
THE COURT:
11
MS. VERGOS:
12
THE COURT:
Accept.
What says the State?
Accept.
All right, so we've got No. 1, Mr.
13
Botelho; No. 2, Harvey Rhinehart; No. 4, Susan Dunlop;
14
No. 9, Howard Bamberg; No. 11, Elizabeth McGlauglin, and
15
No. 15, Lisa Wood.
16
alternate.
Dolores Cummings; what says the State?
17
MS. VERGOS:
18
THE COURT:
19
20
21
Stanley.
MR. SHAHAN:
All right.
And we're up to John
I've got to check with my client.
He's an alternate in case somebody gets sick.
- - Counsel conferring with client.)
24
25
Strike her.
What's says the Defense?
22
23
You get one strike each for the
- - MR. SHAHAN:
We accept him.
130
1
THE COURT:
All right, he's an alternate.
2
- - -
3
(Jury panel entered the courtroom.)
4
- - -
5
THE COURT:
Ladies and gentlemen, I will now
6
call the names of those of you who have been selected to
7
serve on this jury.
8
forward and take a seat as directed by the Bailiff.
9
As your name is called, please come
And I would point out that if you are selected
10
to be on the jury, you're going to get a very comfortable
11
chair.
12
How about that?
They look pretty good.
John Botelho, Seat No. 1; Harry Rhinehart, seat
13
No. 2; Susan Dunlop, Seat No. 3; Howard Bamberg, Seat No.
14
4; Elizabeth McGlaughlin, Lisa Wood, and John Stanley.
15
For those of you who were not selected to be on
16
the jury, I would like to thank you very much for your
17
participation, and I would like to sincerely thank you
18
for your jury service.
19
inconvenience to be here.
20
time before we got started, and once you got started, it
21
took a while, and I appreciate greatly your
22
participation.
23
right?
I know it's been a great
I know you had to wait a long
And I think they're done for the week;
24
JURY PANEL MANAGER:
25
THE COURT:
You bet.
You're going to have to hand in your
131
1
jury badges, and Nancy will give you all of the details.
2
But on behalf of everybody involved in this case, and
3
Pasco County, thank you very much.
4
- - -
5
(JURY PANEL EXCUSED.)
6
- - -
7
(J U R Y
8
9
I M P A N E L E D.)
- - -
THE COURT:
All right, you will be our jury, and
10
we're going to start Wednesday morning at 10 o'clock.
11
think we can start right at 10:00.
12
don't start right at 10:00, it's not because we're
13
goofing off or anything, it's because I have other
14
motions on other cases which are set, and every once in a
15
while a lawyer tends to be verbose, and things take a
16
little longer than we hope.
17
Wednesday, we can get started right at 10:00.
18
I
If for some reason we
But I really think that on
And then on Thursday, we're going to get started
19
right at 9:00, and so that's the schedule.
As far as
20
Wednesday is concerned, I will have you out of here by
21
5:00, and on Thursday, assuming that the case is
22
completed on Thursday, there's really no way for me to
23
predict when you'll be done because, obviously, you will
24
have to deliberate, and that will take as long as it
25
takes you.
132
1
Now, if we do go into Friday, on Thursday, we'll
2
be done by 5:00, because it will be an awfully long day,
3
and you can only concentrate so long, and then we'll have
4
the completion of the trial on Friday, if it goes into
5
Friday.
6
predict when you're done on Friday, because that will be
7
up to you, and how long your deliberations take.
And, again, on Friday there's no way for me to
8
Anybody have any questions?
9
UNKNOWN JUROR:
10
THE COURT:
Well, good question.
- - (Sidebar discussion out of the hearing of the jury.)
15
- - -
16
17
18
And lawyers,
please approach the bench on that.
13
14
Would we be allowed
to take notes?
11
12
Yes, sir.
THE COURT:
Mr. Shahan, how to you feel about
that?
MR. SHAHAN:
I think it's a great idea to let
19
them take notes as long as we have some protection and
20
stuff, they do in Pinellas collecting of notes at the end
21
of breaks and different things.
22
home to their children.
23
but it's, basically, because there's offensive things and
24
defensive.
25
THE COURT:
So they don't take them
It's going to be kind of tough,
Any objection from the State?
133
1
MS. VERGOS:
I don't think it's necessary,
2
Judge.
3
be law enforcement; it's not going to be anything
4
complex.
5
6
The case is going to be two days.
THE COURT:
MS. VERGOS:
8
THE COURT:
10
11
12
In the last trial, didn't you say
you wanted them to take notes?
7
9
It's going to
trial.
I don't believe I did.
I'm just trying to think of the last
No, it was the Beaton and Genner test (ph.) in
the middle of it.
MS. VERGOS:
I think I said, no.
something else I wanted.
13
THE COURT:
14
MS. VERGOS:
There was
I don't know what it was.
All right.
I think it was you that had said
15
that some people tend to rely on people that take good
16
notes or bad notes; I think tend to agree with you.
17
so I guess I hold the same position that you do at this
18
point that it's just not necessary.
19
20
THE COURT:
And
In the Beaton and Genner (ph.) case,
that question was asked toward the end of the case.
21
MS. VERGOS:
22
THE COURT:
That's true.
I thought it would be a bad idea
23
taking notes at the end, because then they would place
24
more emphasis to the witnesses at the end than beginning.
25
So if the defense wants me to do it, I'll go ahead and do
134
1
that, especially since we're starting from the beginning.
2
MR. SHAHAN:
Thank you.
3
MS. VERGOS:
Would the Court ask them whether
4
they want to take notes or not, because if everybody
5
doesn't want to take notes --
6
THE COURT:
7
to take notes.
8
opportunity.
9
Well, everyone has the opportunity
They don't have to, but they'll have the
MS. VERGOS:
Okay.
10
THE COURT:
11
MR. SHAHAN:
Eva --.
12
MS. VERGOS:
What is your question?
13
MR. SHAHAN:
I just want to make sure someone is
14
going to be here.
15
permission to.
16
17
THE COURT:
He asked -- requested if we get
After the jury leaves.
I'm going to
excuse them.
18
- - -
19
(End of sidebar discussion.)
20
21
Okay.
- - Would everyone like the opportunity to take
22
notes in the case?
All right, is there anyone who is
23
against that?
24
one is being verbal anyway, but no one has raised their
25
hand for the record, so this is the instruction I'm going
Anyone raising their hand?
Of course, no
135
1
2
to give you on note-taking.
If you would like to take notes during the
3
trial, you may do so.
4
are not required to take notes if you do not want to.
5
That will be left up to you individually.
6
provided with a note pad and pen for use if you wish to
7
take notes; any notes that you take will be for your
8
personal use.
9
On the other hand, of course, you
You will be
However, you should not take them with you from
10
the courtroom.
11
possession of your notes and will return them to you when
12
we reconvene.
13
deliberations, the bailiff will deliver your notes to me;
14
they will be destroyed; no one will ever read your notes.
15
During recesses, the Bailiff will take
After you have completed your
If you take notes, do not get so involved in
16
note-taking that you become distracted from the
17
proceedings.
Your notes should be used only as an aid to
18
your memory.
Whether or not you take notes, you should
19
rely on your memory of the evidence, and you should not
20
be unduly influenced by the notes of other jurors.
21
are not entitled to any greater weight than each jurors
22
memory of the evidence.
23
Notes
Now, I'll tell you what the counter-argument is
24
to allowing jurors to take notes.
And, obviously, I'm
25
going to allow you to take notes, so I don't subscribe to
136
1
this argument, but the argument is that if any one juror
2
is busily taking notes, then the other jurors are going
3
to assume that the juror visibly taking notes is doing an
4
excellent job and, therefore, you don't need to focus on
5
the case.
6
instruct you to please not have that happen in this case.
7
Well, hopefully, that doesn't happen, and I'll
If someone is taking really good notes, that's
8
good.
So different people learn differently.
9
when you're in school.
It's like
Some people write down everything
10
that the teacher says, or the professor says, and that's
11
how they learn.
12
people just take a little bit of notes; so it all depends
13
what works best for you, but I'll ask you to rely upon
14
your memory, and not rely upon the memory of any other
15
jurors.
16
Other people just listen, and some
Of course, when you go back and deliberate you
17
all can discuss what it is that each of you recalls.
18
What I'll ask you to do on page 1, we'll have you just
19
write your name, and then you can start taking notes on
20
page 2, and as I instructed you on, those are for your
21
personal use.
22
to any of the jurors, even if it's extremely funny.
23
right?
24
Any questions on note-taking?
25
Don't write little notes on it and show it
All
It's your own personal notes, all right?
All right.
So when you do come back, we want
137
1
you back in the jury pool room, which is where you were
2
originally, which is Courtroom 2-A.
3
reason we have you do that is because if we just have you
4
come in, we may be discussing a legal issue on this case,
5
or may be discussing another case, and you're, obviously,
6
just supposed to hear what you're supposed to hear, and
7
not things you're not supposed to hear.
8
ready for you, we'll go ahead and bring you up.
9
All right?
The
So when we're
As I said, I'm hopeful that we'll be able to
10
start at 10:00 on Wednesday, and I know we'll be able to
11
start right at 9:00 on Thursday, because I don't have
12
anything else; so we'll start right at 9:00.
13
All right, anybody have any questions?
14
15
- - -
16
(No response.)
17
18
- - All right.
No response.
There's a number, and
19
if you call that number and Nancy tells you that you
20
don't have to appear on Wednesday or Thursday, then,
21
obviously, you don't have to appear.
22
problem, and I never thought this would come up where we
23
had a jury in a week-long case call, I think it was on a
24
Wednesday night after we had been in trial all week, and
25
Nancy did not say do come in on Thursday at 9:00, even
But we had one
138
1
2
though I told them to come Thursday at 9:00.
So then he just didn't come in, so then we
3
didn't know what happened to him; so we sent the
4
authority out there to make sure he was okay.
5
whole thing -- and that was his explanation.
6
obviously, if I tell you to be here on a day and time,
7
please be here unless Nancy specifically states on the
8
recording that you don't have to be here, all right?
9
Any questions?
And the
So,
And I do apologize for keeping
10
you here later than I would have liked.
11
disadvantage of having a clock in here, is the fact you
12
know how long we've been in here.
13
Wednesday at 10:00.
All right?
I guess that's a
So we'll see you
Thank you.
14
15
(Jury excused at 6:15 p.m.)
16
- - -
17
18
19
20
21
THE BAILIFF:
The jury is out of the hearing of
the court.
THE COURT:
Anything else we need to talk about
at this point?
MR. SHAHAN:
Yes.
I just want to know whether
22
or not the State had planned on bringing the gun that was
23
at issue here.
24
MS. VERGOS:
I don't know.
25
MR. SHAHAN:
Okay.
Well, then I do want to go
139
1
on with my client's motion.
One of the issues in this
2
case is why were they out there?
3
enforcement purpose?
4
suicide thing.
5
with the sheriffs department; he was for a year.
6
trained the people how to clean a gun; he trained him;
7
that was how he got his concealed weapons permit.
8
wants them to bring his gun.
9
authorize the sheriff's office to bring their red
What was their law
They thought they were there for a
Kirk Geld (ph.), I guess he is no longer
10
training practice gun.
11
jury what he was doing.
He
He
If not, we want you to
He wants to demonstrate to the
12
MS. VERGOS:
Who wants to do that?
13
MR. SHAHAN:
My client.
14
MS. VERGOS:
He wants to use an actual firearm
15
16
17
It's part of the case.
to demonstrate for the jury?
MR. SHAHAN:
That he was cleaning the gun; he
wasn't trying to kill himself.
18
THE COURT:
If there's no bullet left in there.
19
MR. SHAHAN:
20
THE COURT:
21
THE BAILIFF:
Empty of bullets.
If there's no bullets on there -I'm required to put a safety
22
device to keep it in court, so there's going to be a
23
cable lock.
24
MS. VERGOS:
25
MR. DAIAK:
It won't let it actually -Your Honor, I was doing that, the
140
1
trained pistol that I did have was filled with lead and
2
passed around the police academy.
3
and they know it's plugged, and they know that the
4
chamber will open.
5
girlfriend thought I was committing suicide.
6
Revolvers -- I know you guys don't use revolvers, but if
7
you haven't used it for a while --
I wanted to demonstrate.
8
MS. VERGOS:
9
fiancee step out of the room.
10
11
THE COURT:
Judge, I'm going to ask that the
You don't think they're not going to
MS. VERGOS:
I'm sure, but the rule has been
13
invoked.
14
in violation of the Court rule.
16
17
My
talk?
12
15
They know it's red,
I'm sure the Court would tell them it would be
THE COURT:
I don't know if it's invoked yet.
We haven't started with the testimony.
MR. DAIAK:
Anyway, go ahead.
Pistol was not used for a while, a
18
revolver you need to check.
Bugs could crawl in there,
19
gum, lots of things.
20
make sure there's, you know, six cartridges in the
21
standard, and then you look at it from the other side to
22
see that they're not empty cartridges.
23
thing, I need to look through, down the barrel, and the
24
easiest way, if you don't -- put your thumb there, put it
25
under the light and get a reflection and make sure no one
You swing open the chambers and you
And one final
141
1
has stuck gum or some spiders there.
2
thing that you should check out --
It's a standard
3
THE COURT:
All right.
4
MR. DAIAK:
-- in a pistol.
5
THE COURT:
The safety is put on there, or what
6
did you call it?
7
THE BAILIFF:
We use a cable lock.
It would go
8
through the cylinder, and the way I would wire it, it
9
would keep the cylinder from being able to be closed.
10
So, I mean, we could do it, and the cylinder would still
11
be on, but you would not be able to close the cylinder.
12
MR. DAIAK:
That would work.
We could instruct
13
with it; we could pretend this is closed even though it's
14
not closed.
15
I'll pretend there are bullets there.
16
end, and then you look at it through the light and put
17
your thumbnail in it to make sure it's not plugged.
18
the standard thing I was taught, and I took the concealed
19
weapons at Garren's (ph.) Corner Police Academy in 1987.
20
I want this whole thing explained, because Dina walked in
21
the room; she was going to ask me -- policeman asked me
22
to come outside, make sure there wasn't a domestic
23
argument.
24
25
Okay, here's the release; now it's open, and
And look at this
It's
I was getting ready for bed; I had taken the
pistol off of the safety, just checking; Donna walked in
142
1
the room.
2
me, she just turned around and went back and said, he's
3
pointing a gun at his head, and that's what started the
4
whole thing, and 26 officers end up at my house that
5
night.
6
I never saw her.
THE COURT:
She never said anything to
All right, I will ask the State to
7
please have the firearm brought over unloaded.
8
something you're probably going to put in evidence
9
anyway; if not, the defense can put it in evidence.
10
11
MS. VERGOS:
THE COURT:
I don't
Why wouldn't they have it in the
evidence?
14
15
Judge, I have no problem.
know where this firearm --
12
13
That's
MS. VERGOS:
The Beaton trial, it was destroyed
after a certain period of time by the sheriff's office.
16
THE COURT:
It was three co-defendants in that
17
case.
18
should know this case is still ongoing.
19
bad things can happen, but assuming it still exists.
20
They thought all the cases were done, but they
MS. VERGOS:
But I realize
I will have it here.
I will object
21
to the Defendant demonstrating to the jury with the
22
actual firearm, pointing the firearm in any direction.
23
THE COURT:
That will be overruled.
I will say
24
this.
That you're not going to point the firearm at
25
anyone; if you're demonstrating what you did with the
143
1
firearm, I'll allow that.
2
MR. DAIAK:
Your Honor, there's no such thing as
3
an unloaded weapon; even if it's unloaded, it's still
4
loaded.
5
THE COURT:
All right, so I am going to instruct
6
you that you're not going to point that firearm at
7
anyone.
8
THE DEFENDANT:
9
THE COURT:
No, sir, except myself.
It's not really pointing.
What
10
you're saying, you're going to be showing the jury how it
11
was you were inspecting the gun, or cleaning the gun?
12
THE DEFENDANT:
13
MS. VERGOS:
Yes, yes, Your Honor.
The other thing I would ask, and I
14
guess we can discuss this on Tuesday or Wednesday,
15
whatever the Court wants, but the Defendant kept saying
16
right now that this is the way he was taught, how I was
17
shown.
18
and I'd ask that he not be permitted to talk about
19
what --
Those type of statements are hearsay statements,
20
THE COURT:
I'm going to allow him to do that,
21
because it's not to prove the truth of the matter
22
asserted.
23
MR. SHAHAN:
24
THE COURT:
25
whatever he did.
Right.
It explains why he was doing
144
1
2
MS. VERGOS:
asserted.
3
THE COURT:
4
MS. VERGOS:
5
MR. SHAHAN:
10
THE COURT:
It explains to the jury why it was
because he was taught to do it that way.
MS. VERGOS:
The name of the person who taught
him this, the school where he was given his permit.
13
14
Just the background of the
he was doing what he was doing, and he was doing it,
11
12
No, that he was proving the truth
circumstances.
8
9
No, it's not.
of the matter what?
6
7
To prove the truth of the matter
MR. SHAHAN:
Kirk Shellen (ph.), the same guy
that trains at the police department.
15
MR. DAIAK:
He's now retired.
I was in the original class in 1987,
16
when the law came into effect before they started giving
17
class at every gun store in town.
18
19
MR. SHAHAN:
22
Kirk Geld (ph.) is the
one who's the guy.
20
21
Recently.
THE COURT:
Mr. Shahan, do you have service on
him?
MR. SHAHAN:
I listed him as a witness.
We
23
didn't get service on him.
He told us even though he
24
knows it's only about training purposes, that he wouldn't
25
feel comfortable being a witness for either.
145
1
MS. VERGOS:
Judge, I have not listed him, but
2
if it becomes necessary, then I will, or if it becomes
3
necessary for me to list anybody else regarding that
4
issue, any other training officer from the sheriff's
5
office, or anybody else regarding that issue, then I
6
suppose the Court is going to allow leave for that
7
rebuttal.
8
9
10
MR. SHAHAN:
he just retired.
You need to get CID on it, because
I'm just telling you.
MR. DAIAK:
It's a gun record for people who
11
have concealed weapons permits, the requirement, it's
12
usually one week, 10 weeks --
13
MS. VERGOS:
Judge, I took that class, and
14
nobody ever told me to point the gun at my face, and most
15
of the people in my office took that class.
16
THE COURT:
You took that class fairly recently,
17
so I don't know how much things have changed, but I guess
18
you get a hold of that witness.
19
20
MR. SHAHAN:
somebody else?
21
MR. DAIAK:
22
MS. VERGOS:
23
24
25
Was it the sheriff's office, or
Was the revolver locked?
I'm going to use the restroom, if
we're done.
MR. SHAHAN:
One more thing.
I had lined up a
certain court reporter person to do the depositions, and
146
1
then they said that there's some rule in Pasco County
2
that you can't use anybody except the Court Reporters.
3
thought that was changed.
4
depositions that you want to?
5
up for you, Mr. Shahan, but we are sorry, we heard we can
6
do that in Pinellas; they said we can't do it in Pasco.
7
THE COURT:
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
I
Can you use anybody for
Now, they said we signed
Off the record.
- - -
(After further discussion, court was adjourned
at 6:30 p.m.)
- - -
147
1
CERTIFICATE OF REPORTER
2
3
STATE OF FLORIDA
)
COUNTY OF PASCO
)
4
5
6
7
8
9
I, P. ALECIA WILKINS, Court Reporter, in and for
the Sixth Judicial Circuit, State of Florida,
10
stenographically reported the foregoing proceedings and
11
that the transcript is a true and complete record of my
12
stenographic notes.
13
14
15
DATED this ________day of _____________,2007, at
New Port Richey, Pasco County, Florida.
16
17
__________________
18
P. Alecia Wilkins
19
Court Reporter
20
Sworn to and subscribed before the
21
undersigned officer this ___ day
22
of_____________,2007.
23
Notary Public
24
State of Florida at Large
25
My commission expires:
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PASCO COUNTY, FLORIDA
CRIMINAL DIVISION
CASE NO. 04-04412CFAWS-3
STATE OF FLORIDA,
Plaintiff,
vs.
:
:
:
:
:
JOE FRANK DYAIK,
:
:
Defendant,
:
------------------------------x
BEFORE:
HONORABLE JOSEPH BULONE, J.
Sixth Circuit
PLACE:
Pasco County Government Center
7530 Little Road
New Port Richey, Florida
DATE:
November 29, 2006
TIME:
Commencing at 9:00 a.m.
REPORTED BY:
P. ALECIA COX-WILKINS
Sixth Circuit
COURT REPORTER
Notary Public, State of Florida
Pages 148 - 297
D A Y T W O
V O L U M E I I
J U D Y
M O U K A Z I S & A S S O C I A T E S
C O U R T R E P O R T E R S
8624 Government Drive, Suite 102
New Port Richey, Florida 34654
(727) 842-9793
A P P E A R A N C E S
EVA VERGOS, ESQUIRE
ERIC ROSARIO, ESQUIRE
7530 Little Road
New Port Richey, Florida
Attorneys for the State
JOHN AMBROSE SHAHAN, ESQUIRE
556 E. Tarpon Avenue, Suite 3
Tapon Springs, Florida
Attorney for the Defendant
I N D E X
Page
151
152
155
163
Jury Impaneled
Opening by the Court
State's Opening to the Jury
Defense Opening to the Jury
S T A T E' S
Deputy Curtis
E V I D E N C E
Direct, Ms. Vergos
174
Cross, Mr. Shahan
193
Direct, Ms. Vergos
224
Cross, Mr. Shahan
242
Redirect, Ms. Vergos
287
State's No. 1
E X H I B I T S
Gun
185
State's No. 2A-D
Evidence Bag
189
State's No. 3
Evidence Bag
190
State's No. 4
Photo
241
Sgt. McVey
Thereupon,
THE COURT:
Good morning.
Sorry for the delay.
I thought we were going to start right at 10 o'clock
central time, but I didn't realize that was Monday.
We're ready to go, and where is Mr. Shahan?
THE DEFENDANT:
Your Honor, he stepped outside
for a second.
THE COURT:
We'll send someone out to find him.
Is there anything I need to know about before we begin?
MS. VERGOS:
THE COURT:
No.
If you can go ahead and write your
name on page 1 of the note pad, and then if you are going
to take any notes, please begin on page 2.
And then what
will happen, any time you take a break, you can just
leave your note pad on your chair.
And, again, these
notes are for your own benefits, and not for the benefit
of others.
And whether or not you do take notes, I would
ask each and everyone of you to pay very close attention
to everything, obviously.
THE COURT:
Madam Clerk, would you please swear
in the jury?
COURT CLERK:
Yes.
- - -
152
1
(Jury impaneled.)
2
- - -
3
-
O P E N I N G
4
THE COURT:
B Y
T H E
C O U R T
Ladies and gentlemen of the jury,
5
you have been selected and sworn as the jury to try the
6
case of State of Florida versus Joe Frank Daiak.
7
a criminal case.
8
counts of aggravated assault on a law enforcement
9
officer.
10
This is
The Defendant is charged with four
The definition of the elements of these
offenses will be explained to you later.
11
It is your solemn responsibility to determine if
12
the State has proven its accusation beyond a reasonable
13
doubt against Joe Frank Daiak.
14
based solely on the evidence or lack of evidence, and the
15
law.
16
considered by you as any proof of guilt.
Your verdict must be
The information is not evidence, and is not to be
17
It is the Judge's responsibility to decide which
18
laws apply to this case, and to explain those laws to
19
you.
20
of this case may be, and to apply the law to those facts.
21
Thus, the province of the jury and the province of the
22
Court are well-defined, and they do not overlap.
23
one of the fundamental principles of our systems of
24
justice.
25
It is your responsibility to decide what the facts
This is
Before proceeding further, it would be helpful
153
1
if you understand how a trial is conducted.
2
beginning of the trial, the attorneys will have an
3
opportunity, if they wish, to make an opening statement.
4
Opening statement gives the attorneys a chance to tell
5
you what evidence they believe will be presented during
6
the trial.
7
you're not to consider it as evidence.
8
9
At the
What the lawyers say is not evidence, and
Following the opening statements, witnesses will
be called to testify under oath.
They will be examined
10
and cross-examined by the attorneys.
11
exhibits may also be produced as evidence.
12
evidence has been presented, the attorneys will have the
13
opportunity to make their final argument.
14
Documents and other
After the
Following the arguments by the attorneys, the
15
Court will instruct you on the law applicable to the
16
case.
17
retire to consider your verdict.
18
After the instructions are given, you will then
You should not form any definite or fixed
19
opinion on the merits of the case until you have heard
20
all of the evidence, the arguments of the lawyers, and
21
the instructions on the law by the Judge.
22
time, you should not discuss the case among yourselves.
23
Until that
During the course of the trial, the Court may
24
take recesses, during which you will be permitted to
25
separate and go about your personal affairs.
During
154
1
these recesses, you will not discuss the case with anyone
2
nor permit anyone to say anything to you, or in your
3
presence about this case.
4
anything to you, or in your presence about this case,
5
tell him or her that you are on the jury trying the case,
6
and ask him or her to stop.
7
him or her at once, and immediately report the matter to
8
the bailiff who will advise me.
9
If anyone attempts to say
If he or she persists, leave
The case must be tried by you on the evidence
10
presented during the trial in your presence, and in the
11
presence of the Defendant, the attorneys, and the Judge.
12
The jurors must not conduct any investigation of their
13
own.
14
described in the evidence, and you must not read or
15
listen to reports about the case.
16
discuss this case with any person, and you must not speak
17
with the attorneys, the witnesses, or the Defendant about
18
any subject until your deliberations are finished.
19
Accordingly, you must not visit any of the places
Further, you must not
In every criminal proceeding, a Defendant has
20
the absolute right to remain silent.
At no time is it
21
the duty of the Defendant to prove his innocence.
22
the exercise of the Defendant's right to remain silent, a
23
jury is not permitted to draw any inference of guilt.
24
And the fact that a Defendant does not take the witness
25
stand, must not influence your verdict in any manner
From
155
1
2
whatsoever.
The attorneys are trained in the rules of
3
evidence and trial procedure, and it is their duty to
4
make all objections they feel are proper.
5
objection is made, you should not speculate on the reason
6
why it is made; likewise, when an objection is sustained
7
or upheld by me, you must not speculate on what might
8
have occurred had the objection not been sustained, nor
9
what a witness might have said had he or she been
10
11
12
permitted to answer.
State, you may proceed with your opening
statement.
13
MS. VERGOS:
14
THE COURT:
Judge, may I have just a moment?
Yes.
15
- - -
16
(Sidebar discussion off the record.)
17
18
19
20
When an
- - THE COURT:
Ms. Vergos, you may proceed with
your opening statement.
MS. VERGOS:
Thank you, Judge.
21
22
23
S T A T E' S
O P E N I N G
MS. VERGOS:
T O
Die, die, die.
T H E
J U R Y
Those are not my
24
words, members of the jury, those are the words of the
25
Defendant.
Those were the words that he uttered just
156
1
moments before firing a .357 Magnum at four officers.
2
Those are not the words of a fearful man, they are the
3
words of an angry man: Die, die, die.
4
In the early morning hours of September 5th,
5
2004, Pasco County Sheriff's Office was dispatched to the
6
Defendant's home.
7
it was of a domestic nature, and they responded.
8
what they do.
9
just after midnight on September 5th, and he made contact
10
with a woman who resided there, a woman who turned out to
11
be the fiancee of the Defendant, Donna Vaillancourt.
12
he spoke to that woman, and he got some information from
13
her.
14
They were dispatched through a call;
That is
Deputy Curtis responded to that location
And
And then keeping an open mind said, well, let me
15
talk to him; let me talk to the Defendant.
16
inside to tell him, hey, come on outside; there's an
17
officer here.
18
instead is that Donna comes running back out with her
19
hands to her face saying, "He has a gun to his head."
20
But that doesn't happen.
So Donna goes
What happens
Well, members of the jury, that's also what they
21
do.
So with his safety in mind, Deputy Curtis called out
22
other units.
23
his head; I don't want him to blow his head off;
24
So several other deputies responded.
25
that one of the units that was close by was the Street
I've got a guy in there who's got a gun to
Help!
And you'll hear
157
1
Crimes Unit, and the Street Crimes Unit has several
2
members, two of which responded, also SWAT members,
3
Specialty Weapons and Training, I believe it stands for.
4
They respond, they're told of the situation, and
5
they go to help, to help him with his safety being the
6
first thing on their minds.
7
calling the house, calling the house, trying to talk him
8
out.
9
on the Street Crimes Unit, trying to talk him out, you
So they start calling,
There's also a negotiator present who happens to be
10
know, calling his home, trying to get an answer.
11
answer, no answer, no answer.
12
No
You'll hear that four of those officers, Deputy
13
McVay, Deputy Mitchell, Deputy Barrington, and Deputy
14
Maiso go to the front of that house; go to try and make
15
sure that he's safe.
16
And you'll see some photos, and you'll see that the front
17
door on one side has a wall, and on the other side has a
18
small wall, a pane of glass windows, and then another
19
small wall and a regular window.
20
are right there by that door.
21
And they go to that front door.
And so the four of them
Now, what you'll hear is that front door was
22
opened; that when Donna Vaillancourt came running out of
23
the house, she didn't bother to close the door behind her
24
before going to tell the officers that the guy has got a
25
gun to his head.
She just ran out, and so that front
158
1
door was left wide open.
2
screen door outside of that, and that door was closed.
3
You'll hear that there is a
Deputy McVey, a corporal with the Pasco County
4
Sheriff's Office, does what is called a
5
knock-and-announce.
6
what you're doing; so he did.
7
door and said, Pasco County Sheriff's Office; this is
8
Sergeant McVey, or Corporal McVey.
9
Come out; we just want to talk.
You knock and announce who you are;
He banged on that outside
Are you all right?
Deputy Heinemann (ph.)
10
opens that door; so now both doors to that residence are
11
wide open, members of the jury, and remember that.
12
is going to be quite important.
13
And they're still talking.
This
Deputy McVey is
14
still talking to him.
15
not in a manner in which we're talking.
16
he's trying to let the person in there know who's there.
17
Now, you'll hear that house is not a very big house; it's
18
a single story, residential family unit.
19
huge; it doesn't have too many corridors, or anything of
20
that nature.
21
only person inside that house, and that he actually
22
responded to the deputy, "Get out of my house."
23
Come on out, sheriffs office, and
He's screaming;
It's not overly
And you'll hear that the Defendant was the
And Deputy McVey says, We're not in your house.
24
We just want to talk to you.
Come on out."
25
Defendant again responds: "Get out."
And the
And, again, Deputy
159
1
McVey tries to talk to him, trying to get him out of the
2
house safely says, "JJ", which is what he goes by, "JJ
3
,come on out.
4
there?"
We just want to talk.
Response:
5
How you doing in
"Do you want to die?"
Well, no, no, members of of the jury, Deputy
6
McVey did not want to die, and so that's what he said,
7
"No, I don't want to die.
8
And, again, "Do you want to die?"
9
die."
10
I just want to talk to you."
And then, "Die, die,
And, members of the jury, he's not talking
11
anything like I'm talking right now.
You'll hear that
12
his level of agitation, the Defendant's, that is, and the
13
tone of his voice was increasing and increasing to the
14
point where Deputy McVey at that point starts saying, "We
15
got to back up.
16
safe".
We need to start backing up.
This isn't
That's what they started doing, and then a shot.
17
Where does that shot go?
Right by the glass of
18
pane, by the pane of glass where Deputy Mitchell is
19
standing.
20
there.
21
home that night, too, and so they do.
22
up, getting out.
23
Now, they're scared; they are getting out of
After all, members of the jury, they want to go
They start backing
Second shot.
Where does that one go?
Inches.
Inches from the door
24
where they were standing.
Not at the wall in
25
another room, not at the backyard, not at the ceiling, or
160
1
anything like that, inches from where these four officers
2
were standing.
3
back up; they take cover, and they call out for help.
4
They don't wait.
They get out.
They
SWAT Team is called out, Crisis Management is
5
called out.
6
not just themselves, but the Defendant, too.
7
minutes later, another shot comes out.
8
you'll hear from the officers that were by that door, the
9
four victims in this case, that some of them saw both of
10
the muzzle flash, the bright spark of light that happens
11
when a gun is fired.
12
they weren't in view of it; that's how close that gun was
13
fired at them.
14
but in a room that they were standing right in front of.
15
After all, they want everybody to be safe,
Forty
You'll know, and
Some of them only saw one, because
Not another room, members of the jury,
So they take cover and they wait, and the SWAT
16
Team comes out, Crisis Management Team comes out, and
17
they start again.
18
to get him out?
19
are we going to get him unarmed?
20
doesn't hurt himself.
21
Let's get them out.
How are we going
How are we going to get him down?
How
Let's make sure he
They start calling and calling and calling, and
22
calling.
They designate a line through the phone company
23
so that this way they have a clear line in without
24
interference from any other calls or anything of that
25
nature, and they call, and they call, and they call.
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1
Nothing.
2
cars.
3
and they speak over it, and it amplifies everything, and
4
it sounds from a block away, calling out "JJ, sheriff's
5
office, come on out; how you doing in there?
6
with us?
7
going to be okay."
8
9
They use the P.A. system, the system in the
You know the one that they push down the button
Come on out and talk to us, JJ.
You still
Everything is
Nothing.
And then they go in and get him.
You'll see
that he was not hurt, he was not injured; he didn't have
10
a scratch on him.
11
used were the only tactics that they could have used at
12
that point.
13
strategy of guns, went in through the front door and got
14
him safely; put cuffs on him and got him out, got the gun
15
away from him, and that's it.
16
But you'll hear that the tactics they
They blew out the back window, deployed a
Members of the jury, what you will know is that
17
this wasn't a man who was afraid that night.
18
man who didn't know what was going on; this was a man who
19
had every indication in the world that those people
20
outside his door were the sheriff's office; had every
21
indication in the world that they just wanted him to come
22
outside; had every indication in the world of where they
23
were, and fired two rounds, live rounds at them.
24
25
This was a
Members of the jury, those deputies that night
went there to help him, not to get killed.
You'll also
162
1
hear, members of the jury, which is quite interesting,
2
that after he shot those two shots, after he shot that
3
last shot that went inches from where the officers were,
4
he slammed the door closed.
5
Now, he slammed the door closed; didn't pick up
6
the phone and call anybody, or make any report of any
7
kind of indication of intruders, or anything like that,
8
just slammed the door closed and went back in his room,
9
and that's where he was when they went in and got him.
10
And because they did, he's standing here today; because
11
they did, he's not dead; because they did, he got to live
12
through the night, too.
13
Now, on Monday, the Judge read to you the
14
charging document in this case, what we call the
15
Information.
16
case is charged with four separate counts of aggravated
17
assault; one for each of the people that was standing at
18
the door when he fired the gun.
19
And he read to you the Defendant in this
Members of the jury, at the end of the trial,
20
you'll know that's what he's guilty of is four separate
21
counts of aggravated assault with a firearm at law
22
enforcement, and there won't be any doubt about that.
23
That's what he did.
24
of anything, and it wasn't because he didn't know what
25
was going on, it was because he was mad, and he was
And it wasn't because he was afraid
163
1
angry, and he just didn't want to deal with it.
2
didn't care.
3
That's not acceptable.
He
It's not lawful.
And
4
you'll know this, members of the jury, beyond a
5
reasonable doubt through the evidence, through the
6
testimony, through the things you see and hear and at
7
that time, I will go -- I will stand right back up here,
8
and I will ask you to go into that jury deliberation room
9
to deliberate, and use your common sense, your God given
10
common sense, and return those verdicts of guilty because
11
what he did on September 5th of 2004, is a crime.
12
Those officers were there to protect him, and he
13
had no right, and no authority to put them in danger, to
14
put them in that kind of fear.
15
16
Thank you for your attention, members of the
jury.
17
THE COURT:
18
Mr. Shahan, you may proceed.
19
MR. SHAHAN:
20
21
Thank you, Your Honor.
- - -
D E F E N S E
22
MR. SHAHAN:
23
THE JURY:
24
MR. SHAHAN:
25
All right, thank you, Ms. Vergos.
O P E N I N G
Good morning, ladies and gentlemen.
Good morning.
Ladies and gentlemen, you will
hear, as Ms. Vergos had indicated, you will hear
164
1
testimony from various parties; you will have documentary
2
evidence; I assume you're going to have pictures, and a
3
variety of different things.
4
when you hear all of the evidence, the facts are going to
5
be substantially different than Ms. Vergos predicted.
6
And I suggest to you that
And the things she didn't tell you are going to
7
be the significant facts that I believe that, after
8
you've heard all the evidence and all the instructions of
9
the Court, you will find in your conscience and under the
10
law and the facts, that my client is not guilty of these
11
horrendous crimes that they suggest.
12
The evidence will show that Mr. Daiak has
13
degrees in Economics and Law, and was with his fiancee on
14
Saturday, September 4th, 2004.
15
that prior to these events, Mr. Daiak had a gathering of
16
which his fiancee, Donna Vaillancourt was there; there
17
was a brother that was there, also.
18
show that his brother was quite obnoxious, and because of
19
being obnoxious, both his sister and Mr. Daiak asked that
20
he leave the residence.
21
The evidence will show
The evidence will
So then what happens is that out of spite, he
22
leaves the residence, calls Donna's mother and claims in
23
some way that Donna's mother should call the police to go
24
over there.
25
So that's how the police station starts out.
After Donna left the residence to go see either
165
1
a friend or acquaintance, I'm not sure which, Mr. Daiak
2
went to his bedroom to sleep.
3
the police; he wasn't expecting to see Donna; he wasn't
4
expecting to see anybody.
5
that happens for him is he hears all this loud pounding
6
on his door.
7
He wasn't expecting to see
He was asleep.
The next thing
And days before, you have to realize this was
8
during hurricane Francis.
During those days before, even
9
the sheriffs department, and other entities, Pinellas
10
police, Pasco County are putting it on the news casts;
11
this is the environment that you get.
12
situations like this, there are looters, people that try
13
to take advantage of you who might try home invasion
14
burglary, and the police can't be everywhere.
15
are the kinds of things, the background that will be
16
coming in.
17
In hurricane
So these
So he hears these three knocks, like I said.
18
There is no voice that he hears that suggests to him it's
19
the police.
20
the police admitted they didn't use a megaphone; they're
21
claiming that they're there to help some guy that might
22
be suicidal; they didn't use a megaphone; didn't use a
23
public address system; they didn't use any sound
24
amplifying device at that time, nor sirens, nor lights.
25
And in the testimony that you will receive,
So they had at their disposal a variety of
166
1
things that they really weren't trying to let him know
2
that the police are there.
3
he just hears (sound of noise) violence against his door.
4
That's all he hears.
5
He had a gun.
So he doesn't hear any words,
It's in a safe, as he was trained
6
when he went to a training school, actually put on by the
7
Pasco County Sheriff's Department.
8
show that he respectfully didn't try to shoot the police;
9
he went to the training session, and he passed the course
The evidence will
10
given by the same officers that trained the Pasco County
11
Sheriff's Office.
12
The interesting thing here is that as the
13
prosecuting attorney pointed out, one of the very first
14
people there is this Deputy Curtis.
15
he has an opportunity to memorialize what my client said,
16
he says that my client said, "Get out of my house,"
17
twenty some days later after my client is already
18
arrested falsely, as far as we're concerned, twenty some
19
days later, he changes it to say that my client said,
20
"Get out of my house.
21
die?"
22
And the first time
Do you want to die, and die, die,
Credibility is going to be a very, very
23
important part of this case.
And the Judge will instruct
24
you on the law.
25
there's going to be an instruction it's not the number of
I'm just telling you the facts.
I know
167
1
witnesses that come in here.
2
your common sense and weigh the evidence, and if sixteen
3
people say one thing, and one person said something else,
4
and you find that the one person's version is more
5
likely, then you can go with that.
6
You have the right to use
That's your decision.
But during the trial, we will be bringing out
7
why Mr. Curtis might have changed his testimony.
8
Now, angry man or not angry man, is not an element that
9
has to be proven or disproven in this case.
It is
10
correct, as the prosecutor pointed out, that they have
11
the burden of proving through the facts, and their
12
witnesses, and their documents, and their pictures, that
13
my client intentionally and unlawfully threatened by word
14
or act to do violence to the sheriff's deputies, and that
15
he did it intentionally, and that he did it in such a way
16
that they had a reasonable fear that this aggravated
17
assault was an attempt to harm them in a very serious
18
way.
19
We believe the facts will show that they can not
20
prove these elements, because they're not there, those
21
elements are not there.
22
through our witnesses, including the Defendant himself.
23
He's trained in his class with firearms; he's used
24
firearms in the past.
25
come into evidence, show that this house had a huge
The evidence will be presented
The pictures that undoubtedly will
168
1
picture window.
2
officers, you could open up that window, boom! boom!
3
and shot them.
4
If someone really wanted to shoot these
Huge picture windows.
Their own friends, people will tell you there's
5
no bullet holes in the picture window.
6
green door, is the door that's in front of the place, and
7
off to the one side are these big square kind of art
8
glass things and, you know, like you might see at a dance
9
place or something; there's no bullet holes in there
10
11
either.
You got a solid
He didn't shoot through there.
There's another smaller window you're going to
12
see in the pictures; he didn't shoot through that.
The
13
evidence is going to show that my client thought that
14
these people, (loud noise), said get out of my house a
15
couple of times, and they didn't leave, were in fact
16
possible home invasion burglars, the very worry that
17
everybody had.
18
And the evidence is going to show the prosecutor
19
said he's the only one in the house, he's the only one in
20
there; got all this firing noise; sounds like there's a
21
group of people to him.
22
people away, to suggest to them they might want to
23
burglarize somebody else?
24
his gun, and he, having knowledge of firearms, having
25
lived through the training, having passed the course, not
So what can he do to warn these
So what he does, is he gets
169
1
just some Mickey Mouse course that these gun places put
2
out, but a course given by the Sheriff.
3
He decided the best thing he can do is make some
4
noise that let's them know that he's serious; that they
5
don't need to keep coming any further; that they could be
6
in jeopardy if they came any further.
7
And so he shoots off a couple of rounds.
Their
8
own forensics is going to show you that the evidence
9
shows, the physical evidence, now physical evidence is
10
something that can't be told what to say or shade the
11
truth, it's just there, he shot a couch.
12
his own couch, and then the bullet came out through the
13
couch, and it went into a drywall.
14
He shot into
The evidence is going to show you that this is a
15
neighborhood that was just a typical neighborhood that
16
had concrete block homes.
17
the drywall, and it never even made it into the concrete
18
wall on the inside, because it's a concrete wall.
19
So it went from the couch into
The evidence is also going to show that my
20
client, not willing to hurt anybody, only to warn, put
21
hollow point bullets in there, so there's no way they're
22
going to go through a concrete wall.
23
shot was right after that; hits a book case, and it hits
24
the little gray wall, whatever, drywall.
25
And the second
The evidence is going to show through their own
170
1
forensics man, Mr. Tepedino, I think that's his name,
2
that there were two holes in the wall after he checked
3
the couch and the bookcase.
4
somehow show what went into the wall, could it be
5
bullets; was it bullets as they suspected?
6
holes at the very bottom of each of those sites by the
7
door, figuring that if there's, you know, if there's some
8
kind of bullets, they're going to fall to the bottom.
9
And after he does those holes, he didn't find anything,
And he's going to see
He dug two
10
and then some superior said, well, don't go any further,
11
no more destructive testing.
12
You're done.
Okay.
So the evidence is clear that there is no way
13
that my client, the physical evidence, intentionally and
14
unlawfully attempted to assault or kill these officers.
15
Aggravated assault.
16
is -- there's one thing if you slap him or try to slap
17
him, and they dodge it, that's regular assault.
18
it's aggravated -- (inaudible).
19
clearly that my client attempted to warn what he
20
thought -- what he thought were burglars, and then he
21
went back to sleep.
22
some 40 minutes later, they came back and decided to do
23
the destructive device, and the other situation.
24
25
They're saying aggravated assault
But if
The evidence shows very
And it's suggested by the State that
And the evidence will show that they took this
battering ram and knocked out the center of this green
171
1
door, and they did that around about, or maybe right
2
after they put what they call some kind of noise device
3
in the back window.
4
some kind of can that has a loud noise.
5
that, my guy is asleep still.
6
to say that the guy came in, and his eyes were closed,
7
and he's in the bedroom.
8
9
What they do is they try, to me it's
And even after
Their own witness is going
Now, with those facts, I believe that you'll
determine beyond a reasonable doubt that he's not guilty
10
of aggravated assault.
11
even attempted to shoot toward the police officers, his
12
other defense is self-defense.
13
that he believed he was shooting to defend himself
14
against burglars.
15
However, if you decide that he
Self-defense, meaning
And it's very interesting, we took a bunch of
16
depositions, and all the cops agree that they could not
17
see my client, yet the State is going to have to prove as
18
an element of the offense, that my client thinks he's
19
shooting police officers.
20
them.
21
officers, or a burglar, or whatever unless they can see
22
him?
He's got to be able to see
How is he going to know that they're police
23
They didn't see him.
Everybody said they didn't
24
see him.
The most that they can say is, one guy says he
25
saw after the first shot, a pizza-type cloud through that
172
1
glass.
2
was a little smaller than a CD that you would play, a
3
music CD.
4
Another guy says no, it wasn't a pizza size, it
That's it.
But they filed the highest possible charge that
5
they can file, and it's going to come out in the trial
6
some suggestions why they moved to trial.
I mean, you
7
got a house that is officially destroyed.
When they
8
come, they said they secured it.
9
a nice little event; bunch of guys jump all over him
10
while he's asleep, injurying him, and take him away.
11
After he gets out of the hospital, they arrest him.
12
They make it sound like
And please remember that all of this is
13
happening while the hurricane is going on.
14
is going to testify to you he did not swing open the
15
door, he didn't close the door.
16
door was closed, and if it was open, the wind blew it
17
open.
18
there's these lawn chairs in the front that are blown
19
over like there's a wind, and he's going to tell you it
20
was windy; it was a lot of noise; he heard nothing other
21
than (three noises made).
22
had as an opportunity to let him know they were police.
23
And my client
As far as he knows, the
You're going to see the pictures first that
They didn't use what they've
Now, there's a suggestion, too, in fact, they
24
called this house.
They have an answering machine, and
25
there's nothing on this answering machine that they ever
173
1
called.
2
the police phone; somebody claimed they used a cell
3
phone; they can't remember what the phone number is; so
4
there can't be any evidence to prove it.
5
6
And the evidence will show that they didn't use
THE COURT:
Thank you.
All right, State, please call your
first witness.
7
- - -
8
S T A T E' S
E V I D E N C E
9
10
MS. VERGOS:
The State calls Deputy Curtis.
11
- - -
12
D E P U T Y
M A R K
C U R T I S,
after being
13
first duly sworn by the Notary Public, testified as
14
follows:
15
- - -
16
THE COURT:
Good morning, sir.
17
THE WITNESS:
18
THE COURT:
19
MS. VERGOS:
20
May we approach?
21
THE COURT:
Good morning.
State, you may proceed.
Thank you, Judge.
Yes.
22
- - -
23
(Sidebar discussion on the record.)
24
- - -
25
MR. SHAHAN:
He's going to look at his police
174
1
report out there.
Could we make sure that she's just
2
going to talk about the report, to refresh, predicate
3
first -- he has to refresh his memory.
4
THE COURT:
5
MS. VERGOS:
Ms. Vergos.
Yes.
6
- - -
7
(End of sidebar discussion.)
8
- - -
9
THE COURT:
10
State, you may proceed.
MS. VERGOS:
11
- - -
12
13
14
15
Thank you, sir.
D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
Q.
Good morning, sir.
Could you please state your
name for the record?
16
A.
Mark Curtis.
17
Q.
And looking at this jury, could you tell us how
18
19
20
21
22
you are employed?
A.
Corporal with Pasco County Sheriff's Office
assigned to Youth Services Division.
Q.
How long have you been with the Pasco County
Sheriff's Office?
23
A.
Six years and eight months.
24
Q.
How long have you been with Youth Services?
25
A.
Since the 1st of August.
I transferred from
175
1
Patrol.
2
Q.
You transferred from Patrol to Youth Services?
3
A.
Yes, I was at Youth Services.
4
Q.
Okay.
5
A.
Wel, I worked as a School Resource Officer at
6
7
8
What is Youth Services?
Thomas D. Maitland (ph.) Middle School, Westley Chapel.
Q.
So before August of this year, you were on
regular road?
9
A.
Yes.
10
Q.
And back in December of 2004, were you also with
11
your road unit then?
12
A.
Yes.
13
Q.
Now, turning your attention to September 4th of
14
2004, sometime during the late night hours, beginning of
15
September 5th, 2004, were you dispatched to a residence
16
in Holiday, Florida?
17
A.
Yes.
18
Q.
And your reason for the dispatch?
19
A.
Domestic dispute.
20
Q.
Okay.
21
So you responded.
Do you recall exactly
what time you responded to the residence?
22
A.
I arrived eleven minutes after midnight.
23
Q.
And once you arrived to the residence, did you
24
25
make contact with anybody?
A.
Yes, Mrs. Vaillancourt was -- she met me in the
176
1
front yard.
2
3
4
5
Q.
Were you able to determine who Ms. Vaillancourt
A.
At that -- she -- yes, as I got out of the
was?
patrol car, she approached me as I approached her.
6
Q.
And is this Donna Vaillancourt?
7
A.
Yes.
8
Q.
Who is Donna Vaillancourt?
9
A.
The girlfriend of Mr. Daiak.
10
Q.
Okay.
11
She shared the residence with him, I
suspect?
12
A.
I believe -- she was there.
13
Q.
Okay.
I believe so.
So you make contact with Ms. Vaillancourt
14
in the front yard, and does she tell you what's been
15
happening?
16
A.
Yes.
17
Q.
Did she look surprised to see you?
18
A.
I don't recall any element of surprise, no.
19
Q.
Okay.
20
21
22
And as she approaches you, what does she
tell you?
A.
She advised she had been in an argument with her
boyfriend, Mr. Daiak; she calls him JJ.
23
Q.
Did she indicate to you where Mr. Daiak was?
24
A.
He was inside the residence.
25
Q.
Did she tell you anything else about the
177
1
argument?
2
A.
Yeah.
She said that Mr. Daiak was upset with
3
her.
I guess they were -- I don't know if they were at a
4
party somewhere else earlier, and she had lifted up her
5
shirt in front of his brother.
6
Q.
That's why he was upset with her?
7
A.
Yes.
8
Q.
Okay.
9
10
11
After you spoke to her, did you leave, or
did you want to do anything else?
A.
No, I just took her statement, and then
explained to her that I needed to speak to Mr. Daiak.
12
Q.
And so what did she do at that point?
13
A.
She stepped in to ask him to step out, and
14
then -- so I could get her -- his side of the story.
15
Q.
I'm sorry?
16
A.
She stepped out to have him step in so I could
17
interview.
18
Q.
19
house?
20
A.
Yes.
21
Q.
And were you still outside the residence?
22
A.
Yes, I was in the front yard.
23
Q.
Does he come outside with her?
24
A.
No.
25
Q.
What happens?
When you say she stepped in, you mean in the
178
1
A.
She comes out, you know, moments very soon
2
thereafter with both hands on each side of her face.
It
3
was a surprise look; immediately said you're not going to
4
believe this.
5
Q.
And?
6
A.
And then she turned to her mother -- her mother
7
was there, and told them, mom, leave; don't have any
8
questions, just get out of here.
9
drastically wrong.
So I knew something was
So I told the mother to leave, and
10
then escorted Ms. Vaillancourt to the adjacent residence
11
on the north side.
12
Q.
Did you speak to her at that residence?
13
A.
Yes.
She told me that Mr. Daiak was sitting on
14
the edge of the bed with a loaded .357 pointed at his
15
head.
16
Q.
Did she indicate that it was a .357?
17
A.
Yes.
18
Q.
That's how you got that information, she told
19
you --
20
A.
Yes.
21
Q.
-- what kind of gun it was?
22
A.
Yes.
23
Q.
And she stated it was a loaded .357 --
24
A.
Yes.
25
Q.
-- pointed to his head?
Yes.
179
1
A.
Yes.
2
Q.
What did do you from there?
3
A.
I got on the police radio, and requested some
4
back-up units, and they kept her in a safe position away
5
from her residence.
6
Q.
And why would you do that?
7
A.
Just in case he decided to fire shots, then we
8
would be -- we would be out of the line of fire.
9
Q.
So does anybody respond to the location?
10
A.
Yes, several deputies responded.
11
Q.
And do you remember who those deputies were?
12
A.
I know the first group was Lieutenant Queen
13
(ph.), Sergeant McVey, and at the time, Corporal
14
Barrington, which he's now Sergeant, and then Corporal
15
Mitchell, and then Deputy Mason.
16
17
Q.
And what happens once they arrive?
Do you brief
them on the situation?
18
A.
Yes.
19
Q.
And do you tell them what's happened, and what's
20
going on inside the residence, to your knowledge?
21
A.
Yes.
22
Q.
Now, at this point, what is your primary
23
24
25
concern?
A.
know.
Primary is protecting Mrs. Vaillancourt, you
180
1
Q.
So what happens from there?
2
A.
I escort her to the north end of Honor (ph.)
3
Drive at the intersection of Panorama.
4
Q.
And do you see where the other deputies go?
5
A.
No.
Well, prior to -- they approached, they
6
approached the front door to try to make contact with Mr.
7
Daiak.
8
Q.
Who approached the Defendant?
9
A.
It was Lieutenant Queen, Sergeant McVey,
10
11
12
13
14
15
16
17
Corporal Barrington, Corporal Mitchell, and Deputy Meizo.
Q.
And when they approached the front door, where
were you and Donna Vaillancourt?
A.
As they approached, we was heading to the north
end of Honor Drive.
Q.
What happens while they're at your front door?
Do you see or hear anything?
A.
No, while I was at the north end of Honor and
18
Panorama (ph.), I overheard what I appeared to be
19
gunshots.
20
Q.
How many?
21
A.
I heard two.
22
Q.
What happened after that?
23
A.
We -- I stayed with her -- a lot of time goes
24
by; this is a long event and eventually I go to the
25
command post, which is at the Holiday substation.
181
1
Q.
Yes.
2
A.
And not too far from the Forest Hills Community,
3
and then stay there until the scene is clear, and then I
4
return back to the residence.
5
6
Q.
Okay.
So you're not part of the whole SWAT
call-out, or anything of that nature?
7
A.
Correct.
8
Q.
You're at some other location during that time?
9
A.
Yes.
10
Q.
Is Ms. Vaillancourt with you at that other
11
12
location during the entire incident?
A.
Yeah, the Crisis Management, Deputy Kleg.
I
13
introduced her to him, and he starts -- he stays with her
14
for the rest of the time from the substation.
15
16
17
18
Q.
Can you describe her demeanor during this time
as this is happening?
A.
Not really.
Kind of anxious -- not anxious, but
it's hard to describe exactly.
19
Q.
Okay.
20
A.
Yes.
21
Q.
Was she --
22
A.
Yeah.
23
Q.
Does she appear worried or concerned?
24
A.
She was looking to go back to the residence, I
25
know that much.
Was she pacing?
182
1
Q.
Did she tell you why?
2
A.
No, I don't recall.
3
Q.
After the scene was clear, did you end up going
4
back?
5
A.
Yes.
6
Q.
And at that time, did you end up taking into
7
custody the .357 magnum?
8
A.
Yes, one of the SWAT Team members handed it to
10
Q.
And it was in fact a .357 Magnum?
11
A.
Yes.
9
me.
12
MS. VERGOS:
13
THE COURT:
14
15
Judge, may I approach?
Yes.
BY MS. VERGOS:
Q.
Deputy, I'm handing you what's been marked for
16
identification as State's Exhibit B.
17
this evidence box?
18
19
20
21
A.
Do you recognize
Just from picking the box up itself, I didn't
package it; I recognize the box from property evidence.
Q.
Okay.
Can you go ahead and open that box,
please?
22
A.
(Witness complying.)
23
Q.
Deputy, can you tell where that box has been
24
25
prior to today?
A.
No, it appears it has the original evidence tape
183
1
on here.
2
additional tape has been added.
3
4
Q.
It appears the seal hasn't been broken;
Okay.
Without taking the contents of the box
out, can you just look inside the box for me, please?
5
A.
(Witness complying.)
6
Q.
Do you recognize the contents of the box?
7
A.
Yes.
8
Q.
What do you recognize the contents to be?
9
A.
A silver color, stainless steel Smith and Wesson
10
11
12
revolver with a rubber grip Packmier (ph.) grip.
Q.
That's probably more than I understand.
But is
that the .357 we're talking about here?
13
A.
Yes.
14
Q.
Okay, great.
Does that firearm look to be in
15
the same condition today as it was on the day of this
16
incident?
17
18
A.
Yes, it appears to be in the same condition.
MS. VERGOS:
Okay.
And, Judge, I would seek to
19
introduce it into evidence after the court deputy makes
20
the firearm safe.
21
THE COURT:
22
MR. SHAHAN:
23
24
25
Any objection from Defense?
I haven't been shown the evidence,
Judge, so if I could take a moment with my client.
THE COURT:
All right, go ahead.
Well, why
don't we have Deputy Hatcher secure it before anyone else
184
1
handles it.
2
3
- - (Weapon being secured by Bailiff Hatcher.)
4
- - -
5
BAILIFF HATCHER:
6
THE COURT:
7
Deputy Hatcher, can you explain to
the jury what it was you did with the weapon?
8
9
The weapon is safe, Judge.
BAILIFF HATCHER:
The first thing I did, point
the weapon in a safe direction, made sure the cylinder
10
was clear, barrel was clear, no objects in the barrel, no
11
rounds in the barrel, and then I inserted a cable lock
12
through the barrel up through the cylinder so the gun
13
could not function properly.
14
THE COURT:
All right, thank you.
Mr. Shahan
15
and Mr. Daiak, if you want to take a look at the weapon,
16
you may.
You can go ahead and bring that over to them.
17
MR. SHAHAN:
18
THE WITNESS:
19
THE COURT:
20
THE WITNESS:
21
22
23
24
25
Okay.
Thank you.
Thank you, sir.
May I use it, Your Honor?
Sure.
I don't have the serial number
identified.
MS. VERGOS:
Your Honor, I'm going to object to
the Defendant speaking to the Court.
THE COURT:
Right.
Speak to Mr. Shahan about
any issues that you have, and then if Mr. Shahan has an
185
1
objection, he'll let us know.
2
- - -
3
(Defendant speaking with counsel.)
4
- - -
5
6
MR. SHAHAN:
THE COURT:
8
MR. SHAHAN:
THE COURT:
(Whereupon, the above-referred to Item was
admitted into evidence as State's Exhibit 1.)
15
17
18
19
All right, so it will be admitted as
- - -
13
16
We have no objection to it going
State's Exhibit No. 1.
12
14
So you have no objection then?
into evidence.
10
11
We can
stipulate to the best of our knowledge this is the gun.
7
9
Thank you, Your Honor.
- - BY MS. VERGOS:
Q.
Deputy, after you took the firearm into custody,
what did you do after that?
A.
I secured it in the trunk of my patrol car prior
20
to turning it over to the crime scene technician Debra
21
Dina.
22
Q.
Did you observe whether the firearm was loaded?
23
A.
Yes.
24
Q.
And was it?
25
A.
Yes.
186
1
Q.
Can you describe how many rounds were in it?
2
A.
When it was handed to me, it had six
3
miscellaneous brand .38 caliber round in it.
4
Q.
Okay.
Were all of them live?
5
A.
No, two appeared to be discharged because the
6
primers, two primers had the indentation with the
7
appearance that they had been fired.
8
Q.
What does that mean?
9
A.
Meaning I didn't pull the rounds out to observe
10
to see if they still had a projectile in them.
11
noticed two primers were dented in, indicating that the
12
firing pin had struck the two rounds.
13
14
MS. VERGOS:
17
Judge, may I approach the witness
again?
15
16
But I
THE COURT:
Yes.
BY MS. VERGOS:
Q.
Deputy, I'll show you what has been marked for
18
identification as Exhibits O and M.
19
at those for us?
20
those exhibits look like they are the original seals?
21
A.
Can you take a look
And, again, do both of the seals on
Correct.
22
MR. SHAHAN:
23
THE JUDGE:
Your Honor, can we approach?
Yes.
24
- - -
25
(Sidebar discussion on the record.)
187
1
- - -
2
3
MR. SHAHAN:
show it to me before they take it up there.
4
5
MS. VERGOS:
I can't show it.
It's been
MR. SHAHAN:
Show me the outline of what you're
received.
6
7
Typically, the State is supposed to
taking up.
There's something in the bag.
8
THE COURT:
9
MS. VERGOS:
10
THE COURT:
11
Correct.
I can show you the bag.
All right, that's fine.
- - -
12
(End of sidebar discussion.)
13
14
BY MS. VERGOS:
15
Q.
Deputy, you may continue.
16
A.
Do you want these open?
17
Q.
Please.
18
A.
(Witness complying.)
19
Q.
Again, without taking the contents of the bags
20
out, can you just look inside the bags?
21
A.
(Witness complying.)
22
Q.
Do you recognize the contents in the bags?
23
A.
Yes, the ammunition has been stored in the film
24
containers; that's also been sealed with the evidence
25
tape.
188
1
2
Q.
Okay.
Can you go ahead and take out the film
containers?
3
A.
(Witness complying.)
4
Q.
Deputy, let's do one bag at a time.
So the
5
containers you've just removed are from what's been
6
marked as State's "M"; is that correct?
7
A.
Yes.
8
Q.
And can you just open the containers?
9
A.
(Witness complying.)
10
Q.
Is that cotton sealed in?
11
A.
Yes, it appears that each round has been encased
12
13
14
in some sort of cotton.
Q.
jury, Deputy, just for your own identification purposes?
15
16
17
18
19
20
21
Can you take that out without showing it to the
Deputy, can you tell us what the containers held
inside the bag contain?
A.
The containers held four live rounds of
ammunition.
Q.
Are they the four rounds you observed inside the
weapon, inside the .357, to the best of your knowledge?
A.
I would have to look at -- I remember the
22
miscellaneous brands.
23
cylinder.
24
Q.
Okay.
25
A.
I could now.
I never removed them from the
189
1
Q.
Okay.
2
A.
I believe there's two different brands, three
3
4
5
different brands here.
Q.
Are those the ones that were inside the weapon?
Do they appear to be the same ones inside the weapon?
6
A.
Yeah, they appear to be.
7
Q.
Okay.
8
9
MS. VERGOS:
introduce State's exhibit into evidence.
10
THE COURT:
11
MR. SHAHAN:
12
THE COURT:
13
20
So it will be admitted as a
(State's Exhibit 2 (a) through D, admitted into
evidence.)
17
19
No objection.
- - -
15
18
Any objection from the defense?
composite exhibit, State's Exhibit 2 (a) through d.
14
16
Judge, at this time, I seek to
- - BY MS. VERGOS:
Q.
And now, Deputy, can you do the same thing with
the other bag that you have in front of you?
21
A.
(Witness complying.)
22
Q.
Do you recognize those?
23
A.
Yes, they appear to be -- yes, I recognize them.
24
Q.
Do they appear to be the spent rounds from
25
inside your revolver?
190
1
A.
Yes.
2
Q.
And do they appear to be in substantially the
3
4
same condition today as they were back on September 4th?
A.
5
6
Yes.
MS. VERGOS:
introduce State's Exhibit 3 into evidence.
7
THE COURT:
8
MR. SHAHAN:
9
THE COURT:
10
And, Judge, at this time, I seek to
Any objection from the defense?
No objection.
It will be admitted as State's
Exhibit 3, Composite Exhibits A and B.
11
- - -
12
13
(Whereupon, State's Exibit 3, Composite Exhibits
A and B admitted into evidence.)
14
15
16
- - BY MS. VERGOS:
Q.
Deputy, after you took the firearm into custody,
17
and secured the firearm in your vehicle, did you also go
18
inside the residence and observe any bullet holes?
19
A.
Yes.
20
Q.
And can you please describe where they were?
21
A.
I didn't measure but, approximately, one was a
22
foot away from the door.
23
MS. SHAHAN:
24
THE COURT:
25
BY MS. VERGOS:
Objection, speculation.
Overruled.
191
1
Q.
Go ahead, Deputy.
2
A.
One was a few feet off of the -- no,
3
approximately, a foot south of the doorjamb, or the edge
4
of the door.
5
Q.
The door where the four deputies were standing?
6
A.
Yes.
7
Q.
Go ahead.
8
A.
And the other was behind the book case in the
9
And the other?
southeast corner of the living room.
10
Q.
Is there a window right there?
11
A.
Yes.
12
Q.
Close to there?
13
A.
Yes.
14
Q.
Is it close to that window?
15
A.
Yes.
16
Q.
Did you also enter the Defendant's bedroom?
17
A.
Yes.
18
Q.
And did you observe anything inside the bedroom?
19
A.
No, just a beer bottle, and the bed.
20
Q.
Okay.
21
The location of this incident, Deputy, do
you recall whether that was in Pasco County?
22
A.
Yes.
23
Q.
And did you actually ever make contact with the
24
Defendant?
25
A.
No.
192
1
2
Q.
Were you the one that took him into custody
after SWAT entered the residence?
3
A.
No.
4
Q.
Were you the one that ultimately ended up
5
6
transporting him to the county jail?
A.
No.
7
MS. VERGOS:
8
THE COURT:
9
the bench a minute.
I have nothing further, Judge.
All right, the lawyers may approach
10
- - -
11
(Sidebar discussion on the record.)
12
- - -
13
THE COURT:
Deputy Curtis is the one who drafted
14
the initial probable cause affidavit, and then the second
15
probable cause affidavit; right?
16
MS. VERGOS:
17
THE COURT:
Yes.
And I ruled that the whole probable
18
cause affidavits were not legal, were not going to come
19
into evidence.
20
inconsistent on the stand with the probable cause
21
affidavits?
22
anything like that; so as far as I can tell, there's
23
nothing that he testified to on the stand that is
24
inconsistent with what he said in the probable cause
25
affidavits.
What else?
He said something that was
Well, he didn't say anything about Daiak,
Any comment on that?
193
1
MR. SHAHAN:
Yes, I'm not trying -- my only
2
comment is I want to ask him whether at this point and
3
time the statement as -- at this point and time, I'm not
4
doing it for -- I'm just making a record.
5
THE COURT:
Well, I'm not going to let you go
6
there, because I don't think it's relevant for anything
7
at all.
8
MR. SHAHAN:
9
THE COURT:
Okay.
All right, thank you.
10
- - -
11
(End of sidebar discussion.)
12
- - -
13
THE COURT:
14
MR. SHAHAN:
Mr. Shahan, cross-examination.
Yes, Your Honor.
15
- - -
16
17
C R O S S
E X A M I N A T I O N
BY MR. SHAHAN:
18
Q.
Good afternoon, sir.
19
A.
Good afternoon.
20
Q.
Sir, did I understand you right that you said
21
there's, basically, six rounds available with that gun?
22
A.
I observed 6 rounds in it, yes.
23
Q.
It holds six rounds?
24
A.
Yes.
25
Q.
Okay.
And two rounds were spent?
194
1
A.
Yes.
2
Q.
Okay.
3
A.
Yes.
4
Q.
Okay.
5
And four rounds were not?
And how did you determine whether two
rounds were spent?
6
A.
Going by the primers on the rounds.
7
Q.
Okay.
8
A.
They appear to be spent.
9
10
11
What do you mean by that?
They're indented or
dented, it appeared where the firing pin, where the
hammer struck him.
Q.
Okay.
And did I also understand on direct
12
examination, you said you heard what you thought were two
13
shots?
14
A.
Yes.
15
Q.
So the gun evidence is consistent with what you
16
thought you heard two shots?
17
A.
Correct.
18
Q.
Okay.
Now, in terms of looking at the
19
ammunition, are those hollow point bullets that were
20
spent?
21
A.
They was, with the live ones that were left,
22
from observing them, they was -- not all of them was
23
hollow points, no.
24
25
Q.
Okay.
The live ones that were left were,
obviously, not the two that were shot?
195
1
A.
Yes.
2
Q.
So my question is, the two that were shot, can
3
you tell from that ammunition that you have testified to
4
was used, were those hollow point bullets can you tell
5
from --
6
A.
No.
7
Q.
You can't tell one way or the another?
8
A.
Correct.
9
Q.
Okay.
And examining the ammunition was -- were
10
there various types of ammunition between the spent and
11
unspent shells?
12
A.
Yes.
13
Q.
And you talked about what you saw in the house.
14
Did you see a hole in the couch?
15
A.
Yes.
16
Q.
And did that hole in the couch seem to be
17
consistent with after it goes through the couch, it
18
ending up in the wall?
19
A.
Yes.
20
Q.
Either while you were outside the house, or
21
while you were inside the house, did you observe whether
22
there was a big picture window in front of the house?
23
A.
Yes.
24
Q.
Was there a big picture window in front of the
25
house?
196
1
A.
Yes.
2
Q.
Were there any bullet holes in that picture
3
window?
4
A.
I didn't observe any, no.
5
Q.
The door, is it fair to say that outside front
6
door was a green wooden door?
7
A.
Yes.
8
Q.
And did you observe any bullet holes through
9
that door?
10
A.
No.
11
Q.
Next to the green door, would you agree that --
12
I'm not sure which -- what term you would use, but there
13
were like square glass -- would you kind of call it art
14
glass singles, things like that next to the green door?
15
A.
I'm not one hundred percent certain.
16
Q.
Okay.
17
Fair enough.
hear three shots?
18
A.
No.
19
Q.
Thank you.
20
Now, you said that Ms. Vaillancourt,
you saw her physically go back into the house; correct?
21
A.
Yes.
22
Q.
Okay.
23
So definitely you didn't
Now, when she went back into the house,
can you see any part of her body?
24
A.
After being inside the house?
25
Q.
When she went inside.
197
1
A.
No.
2
Q.
In other words, the door wasn't left open or
3
anything?
4
A.
That I don't recall.
5
Q.
Okay.
6
But either way, once you went in the
house, you couldn't see her body?
7
A.
That's correct.
8
Q.
So you don't know how far inside the house she
9
went?
10
A.
Correct.
11
Q.
You don't know whether she went in the kitchen,
12
bedroom, or whatever?
13
A.
Correct.
14
Q.
And you couldn't hear what she said in the
15
house; right?
16
A.
Correct.
17
Q.
Or whether she talked to anybody; correct?
18
A.
Correct.
19
Q.
I believe you just said you can't tell whether
20
these bullets were hollow point, but your experienced
21
with a variety of ammunition in your line of work;
22
correct?
23
A.
Correct.
24
Q.
Would hollow point bullets be the kind that
25
would not penetrate a concrete wall?
198
1
A.
That's a general -- it's -- if it was a hollow
2
point in a 30 -- hunting rifle, it would have been
3
straight, in my opinion.
4
Q.
It's a primer?
5
A.
Yeah, that's a variable question.
6
Q.
Okay.
I understand.
But the particular gun in
7
evidence is the gun that you took into evidence that
8
particular day; right?
9
A.
Yes.
10
Q.
And it's definitely not a hunting rifle; right?
11
A.
Correct.
12
Q.
With your experience with firearms, if hollow
13
point bullets were shot through that particular gun,
14
would it go through a concrete wall?
15
A.
With a hollow point that's -- with some of
16
those, I believe one of those was a plus, which is a more
17
powerful .38 caliber round.
18
Q.
Okay.
19
A.
In a concrete block, there's cavities in there,
20
so I wouldn't want to make a statement, because I believe
21
there's a chance that it couldn't, and then there's a
22
possibility that if all circumstances was right --
23
24
25
Q.
So you don't want to speculate whether it could
or couldn't?
A.
Yes, I don't want to speculate.
199
1
Q.
All right, thank you.
Now, in terms of what you
2
observed, did you observe any bullet hole that went
3
through the concrete wall that was facing the street?
4
5
A.
I mean -- you mean, penetrated the wall
completely?
6
Q.
The concrete wall behind the drywall, yes.
7
A.
No bullet exited from what I observed, exited
8
9
10
11
12
13
14
the residence.
Q.
Okay.
And the holes that you say were in the
drywall; correct?
A.
It was -- I believe the house had plaster and
concrete -- placed over slab, penetrated the plaster.
Q.
Okay.
And behind the plaster was concrete
block; correct?
15
A.
Yes, there's a space, and then a concrete block.
16
Q.
But once you get threw the plaster and space,
17
you didn't find any bullet holes impinging the concrete
18
wall; correct?
19
Q.
20
21
Yes.
MR. SHAHAN:
No further
questions.
22
THE COURT:
23
MS. VERGOS:
24
THE COURT:
25
Thank you, sir.
excused?
Any redirect?
No, Judge.
All right, may the witness be
Would you like him to remain?
200
1
MS. VERGOS:
2
THE COURT:
3
He can remain on standby.
All right, sir.
- - -
4
(Witness excused.)
5
- - -
6
THE COURT:
So it looks like a good time for a
7
lunch break, and I can give you from a half hour to an
8
hour.
9
That will give the lawyers some time to organize some
I think forty-five minutes is probably the best.
10
things that they have to do that, and that should give
11
you plenty of time to eat and not a whole lot of down
12
time because of -- I'm sure you'd like things to proceed
13
as expeditiously as possible, and we're going to try and
14
do that.
15
And there is a snack bar in the old part of the
16
building which, by the way, looks even more disgusting
17
now than they did when they were moving everything out.
18
But the snack bar has some pretty good food.
19
know what the special is today, because it's hard for me
20
to get over there nowadays.
21
and pizza.
22
you don't -- obviously, you're allowed to drive anywhere
23
you want.
24
you know, there are various establishments close by.
25
if you want to do that, you may as well know the only
I don't
But they do have sandwiches
So if you want to stay on the premises, if
Just be back within forty-five minutes, and as
So
201
1
potential problem may be parking; so you may want to keep
2
that under consideration.
3
And I would instruct you not to discuss the case
4
with anyone, including yourselves until you deliberate;
5
so if you want to talk about things over lunch not
6
involving the case, that's fine.
7
back to the jury poolroom unless you think it would be
8
easier to have them report to another courtroom up here
9
on the third floor.
10
THE BAILIFF:
11
THE COURT:
And you will report
I don't know the usage -Maybe they won't have to go up and
12
down if we take a short recess or something.
13
right now, be back in the jury poolroom, which is now
14
Courtroom 2A in forty-five minutes, all right?
15
anyone have any questions?
16
MS. VERGOS:
- - -
18
(Jury excused.)
19
- - -
21
22
23
24
25
THE BAILIFF:
Does
No, Your Honor.
17
20
But as of
The jury is out of the hearing of
the court.
THE COURT:
All right, anything that we need to
talk about at this point?
MR. SHAHAN:
Nothing to talk about, but I just
want to deliver something to the Court, and I've given it
202
1
to Ms. Vergos.
Your Honor, I've got a case called In re:
2
Standard Jury Instructions, Criminal Cases SC305361,
3
corrected opinion from the Supreme Court of Florida,
4
which goes into the various new instructions about
5
justifiable use of deadly force or non-deadly force.
6
And I've given that to Ms. Vergos, and I've
7
given you one copy of the proposed justified use of
8
deadly force versus non deadly, because it talks about
9
taking out the parts that are inappropriate.
10
11
So I'm just
delivering that to you.
MS. VERGOS:
I had a copy of the jury
12
instructions drafted already, and I gave a copy to
13
Judge and to Counsel.
14
THE COURT:
There's the old instructions and new
15
instructions.
16
October 1, 2005.
17
And there is a case called State of Florida versus
18
Robert Lee Smiley, 31 Florida Law Weekly, D1049-A, which
19
is a Fourth DCA case.
20
1, 2005, or for offenses that occurred before October 1,
21
2005, the applicable jury instruction, which is the old
22
jury instruction, and that the new jury instruction only
23
applies to cases that occurred after October 1, 2005.
24
25
The new instructions took effect on
This occurred before October 1, 2005.
And it states that before October
Now, they did certify this as an issue of great
public importance, which means that the Florida Supreme
203
1
Court is going to rule on it, and I'm going to check
2
during lunch to find out if they have.
3
that they have yet, but I will check on that.
4
I don't believe
And, by the way, the new jury instruction, I
5
don't think is going to help the defense at all, or hurt
6
the State at all because, basically, it's always been the
7
law that the owner has no duty to retreat in his own
8
home, and the new law basically states that he has no
9
duty to retreat anywhere.
So I think the facts are going
10
to be agreed upon that the Defendant was in his own home;
11
so I don't think the new jury instruction is going to
12
hurt the State or help the defense any.
13
MS. VERGOS:
To be honest, in all honesty, I
14
didn't even look at that issue when I -- I just told the
15
word processer to put these instructions together, and I
16
think they put the new one in.
17
THE COURT:
I think they put the old one.
18
why don't we deal with that at a different time.
19
are things we can think about now.
But I
These
20
MS. VERGOS:
Okay.
21
THE COURT:
22
maybe at the end of the day.
23
ahead and allow everyone to take lunch, and I'm sure
24
everyone would, and I'm sure the attorneys would like to
25
organize evidence and witnesses, and I'm sure that the
That's something we can talk about
As of right now, I'll go
204
1
2
court staff wants to eat.
All right, but those are issues that we will
3
deal with.
4
after I said I'm not going to say anything anymore, I'm
5
going to go eat, but the case law from the second DCA is
6
that the only jury instruction that would be applicable
7
is justifiable use of deadly force if there is a firing
8
of a firearm.
9
10
And, by the way, I'm sorry to say something
MS. VERGOS:
THE COURT:
That's the only one I included.
Right.
So I think that that is the
11
law, and I will give that cite to the defense, and if
12
they want to look at those cases, and if they want to
13
research the issue, but the two cases are Caruthers
14
versus State, which is at 721 So. 2d. 371, and Stewart
15
versus State, which is at 672 So. 2d. 865.
16
And both of those state that when there is a
17
firing of a firearm, by law that is deadly force, and
18
therefore the only instruction that the Defendant would
19
be entitled to for self-defense is justifiable use of
20
deadly force.
21
obviously, I'll consider that.
22
MR. SHAHAN:
So if anyone comes up with anything else,
All right?
One question, Your Honor.
23
going to have the paralegal -- is this Stewart,
24
S-t-e-w-a-r-t or S-t-u-a-r-t?
25
THE COURT:
S-t-e-w-a-r-t.
Probably
205
1
MR. SHAHAN:
2
THE COURT:
Thank you, Your Honor.
All right, so we'll all be back by
3
1:05, because that's when the jury is coming back, and
4
we'll start at that time.
5
6
- - (L U N C H E O N
7
8
11
R E C E S S)
- - (Court reconvened following lunch recess.)
9
10
Thank you.
- - THE COURT:
Anything we need to talk about
before we bring the jury back in?
12
MR. SHAHAN:
13
serious matter to talk about.
14
Ms. Vaillancourt said that all the officers out in the
15
hallway, after Curtis went in, were discussing her home,
16
where the bullet holes were, where they were in
17
configuration as to where the shots were fired, et
18
cetera, totally violating your rule.
19
talking about it, so I want to have them brought in and
20
give their names, and move to strike them as witnesses.
21
THE COURT:
22
them about the rule?
23
MS. VERGOS:
24
THE COURT:
25
MS. VERGOS:
Unfortunately, Your Honor, I have a
While out in the hallway,
They were all
All right, State, did you inform
No, I didn't.
No?
I didn't.
I didn't.
206
1
THE COURT:
All right.
2
MR. SHAHAN:
They know about the rule, Judge.
3
MS. VERGOS:
Well, Judge, I didn't go out there
4
specifically after the rule was invoked, and tell them
5
anything.
6
which I typically do, but --
7
THE COURT:
I didn't discuss it with them in any way,
All right, now, the rule isn't
8
necessarily invoked in every case, it's just invoked when
9
it's invoked, and they could have spoken about this thing
10
before the trial even started, like they could have
11
gotten together for dinner last night and talked about
12
the whole thing.
13
this?
Now, was Deputy Curtis involved in
14
MR. SHAHAN:
15
not sure about that.
16
17
THE COURT:
I'm not sure about that.
No, I'm
I'll have to ask to know for sure.
All right, well, let's go ahead and
bring her in.
18
MR. SHAHAN:
But I think it's kind of
19
interesting that Curtis said, well, I didn't talk to them
20
about it.
21
wouldn't even let my client hear our arguments pretrial,
22
and she didn't tell them about it.
23
any excuse.
24
25
She was so serious about the rule that she
I don't think that's
They've been doing these trials for years.
MS. VERGOS:
hear something.
I never asked that his client not
I believe his client has been coming to
207
1
the bench to hear.
2
MR. SHAHAN:
I didn't say my client.
You made
3
sure Ms. Vaillancourt couldn't even hear pretrial motions
4
today.
5
6
MS. VERGOS:
yes, I did make sure Ms. Vaillancourt didn't hear it.
7
8
THE COURT:
MS. VERGOS:
10
police officers, no.
11
THE COURT:
I didn't go outside and tell the
All right, let's bring in Ms.
Vaillancourt.
13
14
And you forgot to tell the police
officers?
9
12
I don't think I said client, but
MR. SHAHAN:
I think the Judge ruled you could
go up to bench conference.
15
THE COURT:
What I ruled is you have the option
16
to come up for every single bench conference.
17
don't come up, I'm going to assume that you are waiving
18
or giving up that right; otherwise, any time we have a
19
bench conference, you're allowed to come up.
20
MR. DAIAK:
Your Honor, I apologize.
21
that was only true for picking a jury.
22
come up.
23
THE COURT:
If you
I thought
I would like to
All right, that's fine.
Thank you.
24
By the way, were you satisfied with the jury selection
25
process, and with the jurors that were eventually
208
1
selected?
2
MR. DAIAK:
Yes, I consulted -- a lot of
3
information from this guy, and by a jury anomaly; he came
4
out pretty close, almost identical.
5
6
THE COURT:
All right.
So are you satisfied
with Mr. Shahan so far?
7
MR. DAIAK:
So far.
8
THE COURT:
Well, if there's any point where
9
you're not satisfied, let us know, all right?
10
MR. DAIAK:
Yes.
11
THE COURT:
Ma'am, please raise your right hand.
12
- - -
13
D O N N A
V A L E N C O U R T,
14
15
s w o r n.
- - BY THE COURT:
16
Q.
Please state your name.
17
A.
Donna Hancock Vaillancourt.
18
Q.
All right.
And during the lunch break, which
19
was only forty-five minutes, I understand that you may
20
have observed something?
21
A.
Verbally, yes, I did.
22
Q.
And so you didn't see anything, you just heard
23
something?
24
A.
Yes.
25
Q.
And where was this?
209
1
A.
I was sitting in the first chair right at the
2
wall, and I heard deputies that were over on that side of
3
the hall speaking of the particular case.
4
that because of how they were speaking of things that
5
were in my house, where they were standing outside. I've
6
read all of the police reports and everything.
And I know
7
Q.
Uh-huh.
8
A.
And so I know that they were talking about this
9
10
particular case, and like where the bullets were, book
cases, where the hall is in my house.
11
12
Q.
And do you know what deputies were
involved in this conversation?
13
14
All right.
A.
Well, I believe that the first gentleman,
Curtis, I believe came in.
15
Q.
Uh-huh.
16
A.
I'm not really sure if there was conversation at
17
that point.
18
forth and all kind of noise, but the conversation went on
19
for quite some time.
20
they would start talking again.
21
Q.
There's ladies with heels going back and
There would be a pause, and then
So you don't know if Deputy Curtis was one of
22
the individuals that was involved in the conversation or
23
not?
24
25
A.
I'm not sure, to be totally honest, but I know
that before lunch, there was -- I sat out there, you
210
1
know, for pretty much the whole time right before you
2
guys took lunch; I had went outside, and their
3
conversation had pretty much ended, but like I said, it
4
went on for quite some time.
5
THE COURT:
6
MS. VERGOS:
8
THE COURT:
9
THE WITNESS:
10
THE COURT:
THE BAILIFF:
13
MS. VERGOS:
14
released.
15
leave.
16
MR. SHAHAN:
19
THE COURT:
out there.
21
23
24
25
You're welcome.
All right, let's see if Deputy
Yes, Judge.
I doubt he is, Judge.
He was
I didn't release Curtis from my
side of the case.
MS. VERGOS:
22
All right, thank you.
He was told to be on standby, that he could
18
20
No.
Curtis is out there, if you would bring him in.
12
17
Anybody have any
questions?
7
11
All right.
He's on standby.
He's on standby.
Let's see if he's
Let's sound the halls for him.
THE BAILIFF:
I've been informed that he's left,
Judge.
THE COURT:
What deputies are out there, do you
know, Ms. Vergos?
MS. VERGOS:
I thought Deputy McVey and Deputy
211
1
Mitchell, maybe.
2
MR. SHAHAN:
And Deputy Barrington.
3
MS. VERGOS:
Deputy Barrington, he left earlier.
4
He had to be somewhere at three o'clock, and I told him
5
he had to be back here at 4:00; he'd be late.
6
MR. SHAHAN:
I don't know what she's talking
7
about when five minutes before I came up, Deputy
8
Barrington was eating in the lunch room.
9
THE COURT:
So any one of those deputies,
10
Barrington, NcVay, or Mitchell, bring one of them in, all
11
right?
12
MS. VERGOS:
13
leave.
14
be back.
I told him he could leave; that he just needs to
15
THE BAILIFF:
16
THE COURT:
17
20
McVey, Your Honor.
Good morning, sir.
You can stay
right there.
18
19
I didn't watch Deputy Barrington
- - D E P U T Y
W I L L I A M
M C V A Y,
s w o r n.
BY THE COURT:
21
Q.
If you can please state your name?
22
A.
William John McVey.
23
Q.
All right.
During the course of the day, I'm
24
sure you've been speaking with other deputies about
25
particular facts of this case?
212
1
2
A.
Yes, sir.
This morning when I first got up
here, I spoke with --
3
Q.
Ms. Vergos?
4
A.
Yes.
5
Q.
Have you spoken to any other deputies at all?
6
A.
No, sir.
7
Oh, I spoke to other deputies, but not
about this case.
8
Q.
Not about the facts of the case?
9
A.
No.
10
Q.
All right.
11
12
morning?
A.
13
14
17
18
Nine o'clock.
THE COURT:
Okay.
Anybody have any questions,
State?
15
16
And what time did you get here this
MR. SHAHAN:
Yes, Your Honor.
BY MR. SHAHAN:
Q.
While you were out there, were you standing
around with the other deputies that are in this case?
19
A.
I was sitting close to them.
20
Q.
They were talking about bullets and where they
21
were in relationship to the house, et cetera, weren't
22
they?
23
A.
I don't believe so.
I wasn't paying attention
24
to what everybody was saying. I was reading my
25
deposition.
213
1
2
3
Q.
Okay.
So they were talking, but you didn't pay
attention to what they were saying?
A.
We also talked about one deputy, Deputy Eddie
4
Moore; I spoke to another deputy, Chris Maiso about his
5
family; we was talking about my unit.
6
to Special Operations.
7
MR. SHAHAN:
8
THE COURT:
9
We moved our unit
Thank you, sir.
All right.
Was Deputy Curtis out
there at all this morning with you guys?
10
THE WITNESS:
11
THE COURT:
12
THE WITNESS:
13
THE COURT:
Yes, he was.
Okay.
And --
At the beginning, before.
All right, now after he testified,
14
did he sit down and have conversations, or not sit down
15
and have conversations with any of the deputies?
16
17
THE WITNESS:
he was --
18
THE COURT:
19
after he testified?
20
21
THE WITNESS:
THE COURT:
23
THE WITNESS:
25
Do you know how long he was there
No.
I'm not sure.
Ten, fifteen
minutes --
22
24
He sat down, but I don't know what
All right.
-- I guess it was, and then he
went out to lunch.
THE COURT:
Okay.
Anybody have any additional
214
1
questions?
2
3
4
MS. VERGOS:
Judge, just let him know about the
rule.
THE COURT:
All right.
The rule has been
5
invoked now, so you can't talk to any of the witnesses
6
about the facts of the case.
7
Vergos, or Mr. Shahan about it, but no one else at the
8
this point.
9
10
All right?
THE WITNESS:
THE COURT:
Okay.
Thank you.
11
- - -
12
(Witness excused.)
13
14
15
- - THE COURT:
All right, let's bring another one
in, Mitchell or Barrington.
16
MS. VERGOS:
17
THE COURT:
18
You may talk to either Ms.
He wasn't even here this morning.
Okay.
What time did you get here
this morning?
19
THE WITNESS:
20
MS. VERGOS:
21
THE COURT:
22
THE WITNESS:
23
THE COURT:
24
THE WITNESS:
25
THE COURT:
I was told to be here at 1:00.
He just got here.
You just got here?
I just got here.
What time were you told to be here?
I got here at 12:45.
I'll go ahead and put you under
215
1
oath, we have a question before you before we get
2
started.
3
- - -
4
5
6
(D E P U T Y
S W O R N.)
BY THE COURT:
Q.
Now, when you got here at 12:45, did you
7
congregate with the other deputies who are witnesses on
8
the case?
9
10
A.
I just was out there with the one deputy waiting
for everybody to get back.
11
Q.
What deputy was that?
12
A.
Sergeant McVey.
13
Q.
All right.
14
And did you or he discuss the facts
of the case at all?
15
A.
Not the facts of the case, no.
16
Q.
All right.
17
18
Did you overhear any other deputies
discussing the facts of the case?
A.
No.
19
THE COURT:
20
MS. VERGOS:
No.
21
MR. SHAHAN:
No, Your Honor.
22
THE COURT:
23
MS. VERGOS:
24
25
Anybody have any questions?
All right, thank you.
The rule has been invoked.
You
can't discuss the case while the case is in progress.
THE WITNESS:
Yeah.
216
1
THE COURT:
All right, thank you.
2
- - -
3
THE BAILIFF:
4
THE COURT:
5
Deputy Meizo, Your Honor.
I just have a quick question for you
before we get going.
6
- - -
7
8
D E P U T Y
M A I S O,
s w o r n.
BY THE COURT:
9
Q.
Could you please state your name?
10
A.
Chris Meizo.
11
Q.
And you've been here since, approximately, what
12
time today?
13
A.
Nine o'clock.
14
Q.
All right.
And during the time period today,
15
have you discussed the facts of the case with any of the
16
other witnesses or other deputies?
17
A.
Yes.
18
Q.
And who was that?
19
A.
Bunch of people out there, Sergeant McVey,
20
Sergeant Barrington.
21
Q.
Uh-huh.
22
A.
I can't remember the rest of the names.
23
Q.
All right, what about Deputy Curtis?
24
A.
Yes, Deputy Curtis.
25
Q.
Was that before or after you testified?
217
1
A.
Before.
2
Q.
All right.
3
4
all after he testified?
A.
5
6
9
No.
THE COURT:
All right.
Anybody have any
questions?
7
8
Did you discuss the case with him at
MS. VERGOS:
No.
BY MR. SHAHAN:
Q.
Do you understand that the rule is invoked in
10
this case not to discuss your testimony with any other
11
people?
12
THE COURT:
13
going to object.
14
right?
15
BY MR. SHAHAN:
16
Q.
Well, it never was invoked; so I'm
That's the Court's objection, all
Do you want to rephrase your question?
Did you know whether or not before you were out
17
there talking with these folks, whether Ms. Vergos had
18
invoked a rule against my client's witness, Donna
19
Vaillancourt?
20
A.
I heard nothing about anything being invoked.
21
THE COURT:
22
MS. VERGOS:
23
24
25
All right, any further questions?
No.
And the rule has been invoked,
so you can no longer talk about the case.
THE COURT:
All right, thank you.
- - -
218
1
(Witness excused.)
2
- - -
3
THE BAILIFF:
4
THE COURT:
5
THE BAILIFF:
6
THE COURT:
7
THE BAILIFF:
8
MS. VERGOS:
I think that's it, Your Honor.
No one else is here?
No one else is in the hallway.
What about Mitchell?
I'll have to sound the halls.
I may have gotten the name wrong,
9
which is very likely.
10
THE BAILIFF:
11
room.
12
Deputy Mitchell is in the lunch
I'll have to sound the halls also for him, Judge.
THE COURT:
All right, we'll deal with that
13
later.
14
failed to inform the deputies that the rule was invoked,
15
and they were not aware of the rule being invoked, and
16
I'm not sure if we initially invoked the rule or not;
17
I don't think we actually did.
18
knew, they were free to discuss the case and, of course,
19
the only one who has testified so far is Deputy Curtis,
20
and the fact at least so far, indicates that Deputy
21
Curtis did not talk about the facts of the case after he
22
testified.
23
the defense.
24
25
What it sounds that happened is that the State
But so as far as they
So I don't see any prejudice whatsoever to
At this point, I will allow the defense to get
in the fact that the deputies have discussed the case
219
1
with each other before court started today.
2
defense wants to get into that, they can.
3
into the fact that it was a violation of a Court Order,
4
because it wasn't.
5
Anybody have any questions?
6
MS. VERGOS:
No.
7
MR. SHAHAN:
No, Your Honor.
8
THE COURT:
9
If the
They can't get
Then if you want me to bring in
Deputy Mitchell when we find him, and get into that -- do
10
you want to get started, or do you want us to drag him
11
out of the lunch room?
12
13
MR. SHAHAN:
We might as well get started,
Judge.
14
THE COURT:
Then once he's back, do you want
15
to interview him, or do you want to waive that at this
16
point?
17
18
19
MR. SHAHAN:
us
I think just for protection of the
record, for my client, I should have him interviewed.
THE COURT:
All right, so when he comes back --
20
well, when the second witness is done, if Bailiff Hatcher
21
can let us know when Deputy Mitchell is here, then we'll
22
go ahead and deal with that.
All right?
23
MR. SHAHAN:
Thank you, Your Honor.
24
MS. VERGOS:
They don't know about the rule
25
being invoked, so --
220
1
THE COURT:
So there's more than just Deputy
2
Mitchell downstairs?
3
MS. VERGOS:
I don't know.
4
MR. SHAHAN:
I don't mean to interrupt. I
5
definitely know Deputy Harrington is in the cafeteria, so
6
if Mitchell is there, then it's the two of them.
7
THE COURT:
All right.
Why don't you do this,
8
Ms. Vergos.
Wy don't you go outside and tell the
9
deputies that are here to go and tell the deputies that
10
aren't here, that the rule is invoked, and none of the
11
deputies, and none of the witnesses should talk about the
12
facts of the case hence forth, all right?
13
MS. VERGOS:
14
THE COURT:
15
THE BAILIFF:
16
THE COURT:
17
you.
Sure.
Why don't you go ahead and do that?
Deputy Mitchell is here.
We just have a quick question for
If you could please raise your right hand.
18
D E P U T Y
M I T C H E L L,
19
20
21
22
s w o r n
- - BY THE COURT:
Q.
And you've been in the courthouse since,
approximately, what time?
23
A.
Since 9 o'clock.
24
Q.
During that time period, have you discussed the
25
facts of the case with other deputies who are witnesses
221
1
in this case?
2
A.
Just I'm reading over my deposition.
3
Q.
Okay.
4
Did you discuss the facts of the case
with any of the other deputies?
5
A.
Just reading my depositions.
6
Q.
Do you know if any of the other deputies were
7
8
9
10
That's all.
discussing the facts of this case with each other?
A.
No, they were reading the depositions out loud,
if you hear what I'm saying.
I wasn't just reading, I
was reading parts of it out loud.
11
Q.
And that was in front of the other deputies?
12
A.
Yes.
13
Q.
After Deputy Curtis testified, did he discuss
14
the facts of the case with either you, or any of the
15
other deputies that you're aware of?
16
A.
No, we broke for lunch after he testified.
He
17
testified, he went out the door, went to lunch; we stayed
18
in the courthouse.
19
20
THE COURT:
All right, anybody have any
questions?
21
MS. VERGOS:
No.
22
MR. SHAHAN:
I do.
23
THE COURT:
24
25
Yes, go ahead.
BY MR. SHAHAN:
Q.
So you were discussing out loud what was in your
222
1
deposition?
2
A.
I was reading what was in the depositions.
3
Q.
Out loud to the others?
4
A.
Yes.
5
Q.
And they were reading out loud what was in their
6
deposition to you?
7
A.
Yes.
8
Q.
So you were comparing notes then?
9
A.
We were reading our depositions out loud, yes.
10
Q.
Did you discuss the differences between what you
11
said in your deposition versus what someone else said in
12
their deposition?
13
A.
Just reading our depositions.
He would read
14
ours; if we were on the same topic, then I would read
15
what my deposition said.
16
17
18
19
20
21
22
23
24
25
Q.
If yours said something different than the other
one, what did the other officer do?
A.
If that didn't come across -- it was exactly the
same.
Q.
What was the purpose of reading out loud your
deposition?
A.
I was reading what was going on in court, and
reading what was in my deposition.
Q.
And they were reading what they testified to in
court as compared to you; right?
223
1
2
A.
They were reading some others that didn't
compare to mine.
3
MR. SHAHAN:
4
THE COURT:
5
THE WITNESS:
6
THE COURT:
7
THE WITNESS:
8
THE COURT:
9
MS. VERGOS:
10
day.
11
I see.
Thank you.
All right, thank you.
You're welcome.
Is Deputy Barrington out there yet?
Yes.
He had to go back to work.
He had to go back to work?
He'll be back at the end of the
He'll be back around 4:00.
THE COURT:
Okay.
All right, and so the rule is
12
invoked now; so if you can inform deputy or is it
13
Lieutenant Barrington?
14
THE WITNESS:
15
THE COURT:
Sergeant.
Sergeant.
If you can inform him
16
when he gets here that he's not to talk about the case
17
with anyone except for the attorneys henceforth.
18
right?
19
else too; right?
All
And, obviously, that goes for you and everyone
20
THE WITNESS:
21
THE COURT:
Yes.
Thank you, sir.
As I said, I will
22
allow the defense to get into the fact that these
23
witnesses may or may not have been comparing notes, and
24
may or may not have been discussing the case before they
25
testified here today.
But I won't allow you to get into
224
1
the fact that they may have violated a Court Order,
2
because I don't think there's any evidence that they did
3
violate a Court Order, because they were never informed
4
that they could not talk about the case.
5
MR. SHAHAN:
I understand, and I respect that
6
ruling but, obviously, now they've all been informed so
7
that shouldn't be happening; right?
8
THE COURT:
9
MR. SHAHAN:
10
11
THE COURT:
Absolutely, yes.
Thank you, Your Honor.
All right, let's bring the jury back
in.
12
- - -
13
(Jury entered the courtroom.)
14
- - -
15
THE BAILIFF:
16
THE COURT:
The jury is seated, Your Honor.
Thank you.
Ladies and gentlemen, I
17
apologize.
However, I will point out that we're less
18
untimely every time, and that we're not goofing off or
19
anything.
20
have to deal with, so we do, and those things oftentimes
21
are not anticipated, and I apologize, and we'll try and
22
get started right on time.
23
advance, but we are dealing with many issues.
There are legal issues that come up that we
If we don't, I apologize in
24
State, you may call your next witness.
25
MS. VERGOS:
State calls William McVey.
225
1
- - -
2
3
4
W I L L I A M
M c V A Y,
duly sworn, testified as follows:
5
- - -
6
THE COURT:
7
THE WITNESS:
8
THE COURT:
9
MS. VERGOS:
Good afternoon.
Hello.
State, you may proceed.
Thank you.
10
- - -
11
12
13
14
15
16
17
18
after being first
D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
Q.
Good afternoon, sir.
Could you please look at
the jury and introduce yourself?
A.
My name is William John McVey; I'm a Sergeant
with the Pasco County Sheriff's Office.
Q.
How long have you been with Pasco County
Sheriff's Office?
19
A.
Twenty-three years.
20
Q.
What capacity?
21
A.
Since '91, I've been a Sergeant.
Prior to that,
22
I was a sergeant out on the road for a year, and went
23
into Narcotics.
24
years; I was on the Federal Task Force for three years; I
25
came back; I've been in the Traffic Unit for three years
I was in Narcotics for twelve and a half
226
1
as a sergeant, and then I've been in the Narcotics Street
2
Crime Unit, and I've been doing that since -- this is our
3
sixth year now as a Street Crime Unit.
4
Q.
What is a Street Crime Unit?
5
A.
We target areas that are having problems, drug
6
problems, burglaries, people that are of, you know
7
someone is doing burglaries, do surveillance on them.
8
Also, if they have a spring of bank robberies, armed
9
robberies, we'll set up on those.
10
11
12
Q.
Okay.
at the sheriffs office?
A.
I also have the Crisis Management Team, act as
13
negotiators.
14
Team.
15
16
17
Are you a supervisor over any other unit
Q.
I'm team leader on the Crisis Management
And what are the duties of the Crisis Management
Team?
A.
We do -- we get called out with the SWAT Team.
18
Basically, we make contact with either suicide attempts,
19
someone holding a hostage, or if there's a domestic
20
violence, domestic -- they're holding the wife, or
21
something to that effect, we respond, get called out with
22
the SWAT Team.
23
24
25
Q.
How long have you been supervisor of the Crisis
Management Team?
A.
A couple of years.
I've been on the team for
227
1
about nine, eiht, nine years.
2
leader for at least about four years.
3
4
Q.
Okay.
I mean, I've been the team
And as part of that, do you have any
specialized training?
5
A.
The Crisis Management Team?
Yes.
6
Q.
What does that include?
7
A.
You go to a school; they have 40-hour block
8
schools up in Jacksonville.
We attend those, and every
9
year we do refresher courses either in Orlando, and the
10
last couple of years, they've been in Orlando; I've
11
attended those.
12
Q.
13
to do?
14
A.
How many?
Is this a yearly thing that you have
No, it's not required.
Once you get the first
15
course out of Jacksonville, IPTM is the school, you're
16
good.
17
least once a year.
18
19
Q.
My team likes to do a year refresher course, at
And you've been going at least once a year for
the last nine years then?
20
A.
Yes.
21
Q.
Now, turning your attention back to September
22
5th, the early morning hours of September 5th, 2004, were
23
you were working that night?
24
A.
Yes, I was.
25
Q.
And were you in the Street Crimes Unit that
228
1
night?
2
A.
Yes, I was.
3
Q.
Were you on patrol?
4
A.
Yes.
5
Q.
And at some point did you end up getting called
6
out to a residence in Holiday, Florida?
7
A.
Yes, I did.
8
Q.
And -- excuse me, was that as a backup type of
9
situation?
10
A.
Yes.
11
Q.
What were you called out for?
12
A.
The reason -- it came over as a domestic call;
13
then I heard Deputy Curtis describe the subject was
14
inside the residence, and that he was holding a gun to
15
his head.
16
17
Q.
Now, you're a member of the Street Crimes Unit.
Were you ever in a nearby area?
18
A.
We were in a nearby area, yes.
19
Q.
How many of you responded to the residence?
20
A.
I believe there was six at the time, counting
21
22
23
24
25
myself.
Q.
Counting yourself.
And once you arrived at the
residence, did you meet with Deputy Curtis?
A.
No, Deputy Curtis and Lieutenant Kling were
already there.
229
1
Q.
And were you briefed on the situation at that
2
point?
3
A.
Yes.
4
Q.
And during that briefing, did you decide that
5
you were going to do something, that you were going to
6
take some kind of action?
7
A.
After talking to Lieutenant Kling, we decided
8
that we needed to try to make contact with the subject
9
inside the house to see if he would talk to us, or go up
10
to the front of the house, and make contact.
11
I had Deputy Scala, who is also on my team, on
12
the Street Crime Unit, he was also on the Crisis
13
Management Team, and he was already attempting to make
14
phone calls to the residence, and there wasn't any
15
answer.
16
17
Q.
So there was no response from trying to make
contact by telephone?
18
A.
No.
19
Q.
Did you ultimately end up going to the front
20
door of the residence?
21
A.
Yes.
22
Q.
Did you respond with any other members of the
23
24
25
team?
A.
Corporal Barrington, now Sergeant Barrington,
Deputy Meizo, and Corporal Mitchell.
230
1
Q.
And the four of you went where exactly?
2
A.
Up to the front of the house by the front door.
3
Q.
Now, the front door of this residence, was it
4
5
open or closed?
A.
It had a screen door, and the main door of the
6
house was standing open, was open all the way; the screen
7
door was closed.
8
9
Q.
Once you got to the front of the residence, can
you just describe for the jury what positions you took
10
there?
11
A.
Corporal Barrington was, basically, in the
12
doorway crouched down; Meizo was just to my right, and I
13
was a little bit over by the door frame.
14
Q.
And Mitchell?
15
A.
Mitchell was more to my left, the next one down,
16
and he was also further down toward the window of the
17
front of the house.
18
19
20
Q.
So what do you do once you respond to the front
door?
A.
First thing I did, I knocked on the door, on the
21
screen door, and announced that I was Sergeant Bill McVey
22
with the Pasco County Sheriff's Office, and member of the
23
Crisis Management Team.
24
25
Q.
Okay.
Sergeant, now, we're doing this in the
courtroom today and, of course, we're being very
231
1
civilized and very portly, but on the night of September
2
5th, 2004, is that the way that you introduced yourself?
3
I mean, did you kind of like tap on the door?
4
5
A.
I usually -- with a flashlight, tapped on it; it
was fairly loud.
6
Q.
Magnum?
7
A.
Yes.
8
Q.
The tall black ones that you guys have?
9
A.
Yes.
10
Q.
Okay.
11
A.
And then I announced through a loud voice.
And go ahead.
12
Right after I did that, then I had Corporal Barrington
13
open the screen door so you would have a better view for
14
our own safety, and again he propped the screen door
15
open, and again he announced, that is Sergeant McVey,
16
Crisis Management Team, and sergeant from the sheriffs
17
office that he needed to talk to him.
18
Q.
Okay.
19
A.
Yes.
And was there a response?
The subject at first told me to get out of
20
the house; I advised him that we were not in the house
21
and we weren't going to come in.
22
like him to come to the front door where we could talk
23
about a problem that he had with his girlfriend.
I told him that I would
24
Q.
And did he respond to that?
25
A.
He yelled again to get out of the house, and I
232
1
again advised that we were not in the house, so we were
2
not coming in, and I just needed to talk to him.
3
asked -- he stated, do I want to die, and I said, no, I
4
don't want to die, I just want to talk to you, and come
5
to the front of the room where we can talk.
6
7
Q.
Then he
Now, the during this exchange, was anybody
talking over you?
8
A.
Anybody talking over me?
9
Q.
Is he, the person inside the residence, speaking
10
over you?
11
A.
He was answering my -- talking to me.
12
Q.
So you would finish your question or statement,
13
and then he would respond?
14
A.
Yes.
15
Q.
Okay.
So he wasn't just talking over you, or
16
responding, or anything of that nature while you were
17
speaking?
18
A.
No.
19
Q.
Okay.
So is it fair -- I'm just trying to
20
understand how it was all going out there on that
21
night -- would you make your question or statements, and
22
then he would respond to that?
23
A.
Yes, he would.
24
Q.
Okay.
25
Now, once he tells you, or once he says
to you, do you want to die, what are you thinking of at
233
1
this point?
2
A.
I was definitely concerned.
3
Q.
Are you aware that he had a .357 Magnum in
4
there?
5
A.
6
I was told that he had a gun, and he was holding
it to his head prior to going up to the door.
7
Q.
So you know then that he's armed?
8
A.
Yes.
9
Q.
Okay.
10
And so he tells you -- he says, do you
want to die, and what are you thinking?
11
A.
I was concerned about getting injured or getting
12
shot.
I advised him no, I don't want to; I would just
13
like to talk to you.
14
said twice, he repeated, "Die, die."
15
turned to Corporal Barrington, and I said we need to back
16
up.
Then he yelled it out again, and he
At that point, I
17
Q.
Why?
18
A.
I felt his aggression level was going up, and we
19
weren't getting anywhere; for safety reasons to get out
20
of the area.
21
Q.
22
point?
23
A.
Yes, I was.
24
Q.
Were you concerned for the safety of your team
25
members?
Were you were concerned for your safety at that
234
1
A.
Yes, I was.
2
Q.
And you indicated you started to retreat then?
3
A.
At that time I just said to him, we need to back
4
5
6
up, and there was a flash of light and a gunshot.
Q.
The flash of light that you indicated, where was
that?
7
A.
It came from inside the house.
8
Q.
Do you know from where inside the house?
9
A.
The first one, I'm not positive.
I felt it was
10
coming out of the hallway, but I'm not positive where it
11
was coming from.
12
Q.
Okay.
13
A.
Later on, I mean, I did.
14
Q.
At that point did you know?
15
A.
At that point, it sounded like it hit the wall
16
Fair enough.
Do you know where it went?
where we were standing.
17
Q.
Okay.
18
A.
But I wasn't a hundred percent sure at that
19
20
21
point, but it sounded like it hit the wall.
Q.
Sure.
So you see this light.
Is that what you
typically call a muzzle, the flash?
22
A.
Yes, a muzzle flash.
23
Q.
That's just a flash from the gun powder that
24
25
goes off in the weapon; is that what we're talking about?
A.
It's discharged from the round from the gun.
235
1
2
Q.
Okay.
And so you see that.
What are you
thinking then?
3
A.
That's when I said we need to retreat, and we
4
started to back up.
We took one step back, and there was
5
another round that went off.
6
Q.
Why did you start retreating?
7
A.
For safety, because I didn't want to get shot,
8
or anybody else get hurt.
9
Q.
Were your scared?
10
A.
Yes.
11
Q.
Was everyone else concerned with their safety as
12
well?
13
A.
Definitely.
14
Q.
So you guys started retreating, and then what
15
happens?
16
17
A.
second shot.
18
19
20
We took one step back, and then that was the
Q.
And the second shot, can you describe that for
A.
Again, it was a muzzle flash; it kind of lit up
us?
21
from the inside and, again, sounded like it hit right
22
around the door where we were.
23
Q.
Right where you were standing?
24
A.
Yes.
25
Q.
Now, the door, was that still open?
236
1
A.
Yes, it was.
2
Q.
And the screen door, was that open as well?
3
A.
The screen door is open at this time, yes.
4
Q.
The muzzle flash that you see go off, where does
5
6
7
8
9
10
11
12
13
14
15
16
that go off from, do you know?
A.
I believe it was from down the hallway, the
second one.
Q.
The hallway that you're talking about, where is
it in relation to where you are standing?
A.
Well, looking in the front door, it would be
straight ahead and to the right.
Q.
Okay.
So the second shot goes out, and then
what?
A.
We retreated across the Street, and got behind a
patrol car.
Q.
Now, you're talking here very calmly today.
17
Were you this calm back on the midnight hours of
18
September 5th?
19
20
A.
Well, I felt my heart pounding in my chest, I
can tell you that.
I definitely was scared.
21
Q.
Did you run away from the house?
22
A.
We did a tactical retreat, walking backwards
23
facing the house.
I already had my gun drawn at that
24
point, and we took a step back, and we walked back to the
25
street.
237
1
Q.
You said you took cover behind a vehicle?
2
A.
Yes, we did.
3
Q.
Why?
4
A.
So we wouldn't get shot head-on.
5
Q.
After you retreated and went back to the
6
vehicle, behind the vehicle, did you see anything at the
7
house?
8
A.
9
At that point, Lieutenant Kling (ph.) called out
a call -- oh, after we retreated, the front door slammed
10
close.
That's right.
11
slammed closed.
The door that was standing open,
12
Q.
Did you see how?
13
A.
No, I don't know how it closed.
14
Q.
Do you remember what the weather was like that
A.
Oh, yeah.
15
16
day?
We had bands of rain coming in; it
17
would rain super hard for five, ten minutes, and then it
18
would stop raining; the winds were pretty gusty.
19
20
Q.
When you first approached the residence, and
during the time the two shots went out, was it raining?
21
A.
No, it was not.
22
Q.
It was dry at that point?
23
A.
Yeah.
24
Q.
How was the wind during that time frame, the
25
time you were at the front door, and the time that the
238
1
gun was fired?
2
A.
It was brezzy.
3
Q.
Okay.
Was it breezy, the breeze that -- the
4
door, the front door that you're talking about, the main
5
door to the house, does it open out, or in?
6
A.
It opens in.
7
Q.
Into the house?
8
A.
Yes.
9
Q.
And the area where it opens into, when the door
10
is open, does it sit up against anything?
11
A.
The door would open up to the wall on the house.
12
Q.
A wall?
So you retreat, go back toward the car;
13
you're taking cover and shelter by the vehicle; the front
14
door slams closed, and then what happened?
15
A.
Lieutenant Kling advised over radio that he was
16
calling out the SWAT Team at that point.
I got back with
17
Rick Skala, which I told him to start making calls again,
18
trying to make contact with him over the phone; there was
19
no answer.
20
Q.
Did you take any other steps to make contact?
21
A.
Upon the SWAT Team arriving and deploying,
22
myself and Deputy Skala moved down to the patrol car
23
again.
24
Q.
The P.A. system, what is that?
25
A.
It's a microphone and loud speaker inside the
We used the P.A. system on the car, and now --
239
1
patrol car, and you turn it on and you key up, and it
2
really puts your voice out.
3
Q.
How really does it put your voice out?
4
A.
It's loud.
Part of the siren, or you talk
5
through it, too.
6
on -- I don't know, I can't describe it.
7
works the same way as that.
8
9
Q.
It's like a megaphone that they use
You start using the P.A. system.
The handle, it
What do you
say through the P.A. system again?
10
A.
We ask him to come to the front door.
11
Q.
During the time you were talking to him, and him
12
being the person inside the residence, do you address him
13
by name?
14
A.
"JJ," I was told he goes by.
15
Q.
And "JJ" is the name that the girlfriend or
16
fiancee used that he goes by?
17
A.
I believe I got that from Deputy Curtis.
18
Q.
Okay.
19
So you're actually referring to him by
his name?
20
A.
Yes.
21
Q.
You said you used a P.A. system.
22
Did he respond
to the P.A. system?
23
A.
No, he did not.
24
Q.
What happens from there?
25
A.
At that point, the SWAT Team made entry into the
240
1
house.
2
Q.
3
Were you part of that entry, or anything of that
nature?
4
A.
No, I was not.
5
Q.
Did you ultimately make contact with the
6
Defendant?
7
A.
Once he was in custody, I walked into the
8
residence, and I looked down into his bedroom where he
9
was, and I saw the medic with him.
10
I just saw him for
about two seconds, and I walked out.
11
Q.
12
residence?
13
A.
I'm sorry, I didn't hear what you said.
14
Q.
The rear of the residence, did you go to the
15
Did you ever respond to the back of the
I believe you just indicated you did.
rear of the residence?
16
A.
No, I did not.
17
Q.
I'm showing you what's been marked as State's
18
Exhibit K-1 for identification.
19
photograph?
Do you recognize this
20
A.
It should be the front of the house.
21
Q.
It's the front of the residence that you're
22
talking about?
23
A.
Yes.
24
Q.
That you responded to on September 5th?
25
A.
Yes.
241
1
Q.
And -- excuse me.
Does that accurately depict
2
the way the front of the residence looked on September
3
5th of 2004?
4
A.
5
6
Yes.
MS. VERGOS:
into evidence K-1.
7
THE COURT:
8
MR. SHAHAN:
9
THE COURT:
10
It will be admitted as State's
(Whereupon, the above-referred-to Document was
moved into evidence as State's Exhibit 4.)
14
16
No objection.
- - -
12
15
Any objection?
Exhibit No. 4.
11
13
Judge, I would seek to introduce
- - BY MS. VERGOS:
Q.
Now, Corporal, do you recall, approximately, how
17
long, what kind of time period we're talking between the
18
time that shots were fired and the time that the
19
Defendant was secure?
20
21
A.
Seemed like the night went really fast, but
probably a couple of hours.
22
MS. VERGOS:
23
THE COURT:
24
MR. SHAHAN:
25
I have no other questions, Judge.
All right, any cross-examination?
Yes, Your Honor. Thank you.
- - -
242
1
2
3
4
C R O S S
E X A M I N A T I O N
BY MR. SHAHAN:
5
Q.
Good afternoon, sir.
6
A.
Hi.
7
Q.
I believe you said, sir, that for several years
8
including this year, 2004, you were the team leader for
9
the Crisis Management Team?
10
A.
Yes.
11
Q.
And did I understand you to say that the Crisis
12
Management Team is called out whenever there is a
13
question that someone might hurt themselves or --
14
15
16
A.
We're usually called out with the SWAT Team,
when the SWAT Team responds.
Q.
And so you were the head of the Crisis
17
Management Team, and that's why you were sent there that
18
particular day?
19
A.
I responded that day because I heard the
20
divisional call.
We responded -- my squad responded
21
before the call that was made.
22
Q.
Okay.
Did you bring a psychiatrist with you?
23
A.
No.
24
Q.
Did you bring a psychologist with you?
25
A.
No.
243
1
Q.
Did you bring anybody trained in understanding
2
whether a person might or might not want to harm
3
themselves?
4
A.
You mean as in a doctor?
5
Q.
Okay.
6
7
8
9
No.
And you didn't even bring a psychiatric
nurse; right?
A.
We don't have any assigned to the team, and
there's no reason to.
Q.
So this is a Crisis Management Team as it
10
relates to a person that might be suicidal; there's no
11
nurse assigned; you didn't bring a doctor, nurse,
12
psychiatrist or psychologist; is that correct?
13
A.
That's correct.
14
Q.
And when you came, you didn't just come in
15
uniform like today, you came carrying a couple of guns;
16
right?
17
A.
I had a sidearm with my leather duty belt.
18
Q.
And a sidearm is what, a .9 millimeter?
19
A.
No, it's a 40-caliber Glock.
20
Q.
40-caliber Glock.
21
bring?
22
A.
That's all I had.
23
Q.
And when you came, you came with Officer
24
25
Barrington; correct?
A.
Yes.
What other guns did you
244
1
Q.
And he brought a machine gun, didn't he?
2
A.
He has a .9 millimeter MP-5 that he has also on
3
the SWAT Team.
4
Q.
Well, the 9-millemeter MP-5 --
5
A.
MP-5.
6
Q.
It is a submachine gun.
7
A.
It s a yhree-fire, single round, three round
8
9
10
It's a submachine gun.
burst or fully auto.
Q.
Right.
And he's a SWAT Team member, too;
corret?
11
A.
Yes, he is.
12
Q.
So he came with the Crisis Management Team with
13
a submachine gun; he had some other fire power with him
14
too, didn't he?
15
16
17
A.
You said he came with Crisis Management, no.
responded with my squad.
Q.
He
He's on the street.
I'll rephrase the question.
Your are the head
18
of the Crisis Management Team, and it was the team leader
19
that day; right?
20
A.
Yes.
21
Q.
But at the same time you arrived, Barrington
22
arrived with the submachine gun and some other fire
23
power, didn't he?
24
A.
Yes, the MP-5.
25
Q.
Okay.
So were you the total Crisis Management
245
1
Team?
2
A.
No.
3
Q.
Okay.
4
Who were the other members of the Crisis
Management Team that came at the same time you did?
5
A.
Rick Skala.
6
Q.
Okay.
7
A.
He has an issued weapon, yes.
8
Q.
What issued weapon did he bring?
9
A.
The Glock handgun.
10
Q.
Is that a Glock 9-millimeter?
11
A.
No, it's a 40-caliber.
12
Q.
Who were the other people with the Crisis
13
Did he bring guns with him, too?
Management Team that came up?
14
A.
At that time before the call out, that was it.
15
Q.
So everybody came that day, whether you want to
16
call him Crisis Management or SWAT Team, they all came
17
with their fire power, didn't they?
18
A.
19
equipment.
20
with a firearm.
21
22
Q.
Every deputy is issued with a firearm with our
We respond to every type of call we go to
And how many machine guns, submachine guns were
out there besides the one that Barrington brought?
23
A.
At that point, I believe that was it.
24
Q.
That was it?
25
Okay.
And Officer Mitchell was
out at the same time also; correct?
246
1
A.
Corporal Mitchell, yes.
2
Q.
Okay.
3
And there was another officer named
Meizo, too; right?
4
A.
Yeah, Deputy Meizo.
5
Q.
Right.
6
A.
His side-arm.
7
Q
Pardon?
8
A.
His sidearm.
9
Q.
Before these two shots that you talked about
10
And he had his gun too, didn't he?
that went off, you didn't use your megaphone, did you?
11
A.
I didn't need it.
12
Q.
Please answer the question.
13
I was at the front door.
Did you use the
megaphone, sir?
14
A.
No.
15
Q.
Did you use a public address system to try to
16
get the attention of this person?
17
A.
I used my voice.
18
Q.
Okay.
19
A.
No, public address system as in a loud speaker
20
Did you use the public address system?
or --
21
Q.
Yes.
22
A.
No, I did not at that point.
23
Q.
You didn't use a megaphone?
24
A.
Not at that point, no.
25
Q.
And you didn't use a loud speaker?
247
1
A.
It would be the same thing, isn't it?
2
Q.
Maybe not.
3
Did you have your sirens on when you
were out there?
4
A.
No, I did not.
5
Q.
So the person wouldn't know that you're a police
6
officer through the siren then.
7
8
MS. VERGOS:
Did you have flashing?
Objection, Judge.
That wasn't even
a question.
9
THE COURT:
10
MR. SHAHAN:
11
THE COURT:
Right.
Let's --
I'll rephrase it.
I'll instruct the jury to ignore any
12
statements by Counsel that are not a question, all right?
13
So please proceed.
14
15
MR. SHAHAN:
Thank you.
BY MR. SHAHAN:
16
Q.
And you didn't have the flashing blue and red
17
lights on your vehicle flashing into the home either, did
18
you?
19
20
A.
I had my cruiser which was parked at the north
end of the street, and I had my overhead lights.
21
Q.
On the north end?
22
A.
On the north end.
23
24
25
MR. SHAHAN:
Honor?
May I approach the exhibits, Your
May I have the exhibits?
THE WITNESS:
Yes.
248
1
2
3
BY MR. SHAHAN:
Q.
This home on Honor Drive, how far is it from the
end of the street that you just talked about?
4
A.
About several houses down.
5
Q.
Okay.
6
A.
Yes.
7
Q.
More than three?
8
A.
I don't know exactly how many houses, but it was
9
Is it several more than two?
several down the street.
10
Q.
At least more than two?
11
A.
They would either have to come outside, probably
12
13
14
15
16
out to my cruiser.
Q.
Okay.
So, in other words, Mr. Daiak did not see
these lights on that are down the street?
A.
I would probably say not unless he came to the
front door and looked outside.
17
Q.
And he never came to the front door, did he?
18
A.
I don't believe so.
19
Q.
You didn't see him anyway; right?
20
A.
I didn't see him.
21
22
MR. SHAHAN:
the exhibit, Your Honor?
23
24
25
And may I approach the witness with
THE COURT:
Yes.
BY MR. SHAHAN:
Q.
Now, this picture ere shows a big picture window
249
1
here; correct?
2
A.
Yes.
3
Q.
And did my client ever come to the picture
4
window?
5
A.
I never saw him.
6
Q.
And were the blinds on the picture window just
7
like they are a taken by Tepedino that day?
8
A.
Yeah, I believe so.
Yes.
9
Q.
And then there's another window to the -- if
10
you're facing the door, to the right of the door, there's
11
another window; correct?
12
A.
13
14
Yes.
MR. SHAHAN:
Honor?
15
THE COURT:
16
MR. SHAHAN:
17
THE COURT:
18
MR. SHAHAN:
19
THE COURT:
24
25
Just so they can see it.
Yes.
I think we're going to have a
For the record, this is State's
Exhibit No. 4 that we've been talking about?
22
23
Yes.
blowup later.
20
21
May I show this to the jury, Your
MR. SHAHAN:
Yes, Your Honor.
BY MR. SHAHAN:
Q.
Now, you didn't see my client come to that
window either, did you?
250
1
A.
No, I did not.
2
Q.
The blinds were crossed just as taken by your
3
forensic technician; right?
4
A.
I'm not sure.
5
Q.
Okay.
6
I imagine it was.
And in this picture, does it appear that
the green door is propped open a little bit?
7
A.
That way, yes, I would say it's open.
8
Q.
And is that the way it was when you were there?
9
A.
No, it was opened all the way.
10
Q.
Opened further?
11
A.
Yes.
12
Q.
Even with it further opened, you did not see the
13
man over here, Mr. Daiak, the Defendant; right?
14
A.
No, I did not.
15
Q.
And do I see chairs that are falling over in
16
this picture?
17
A.
Yes.
18
Q.
And was that from the wind that you described
19
that day, do you know?
20
A.
I do not know.
21
Q.
You do not know.
22
23
24
25
MR. SHAHAN:
May I approach again?
pass this picture over to the jury?
THE COURT:
Yes.
- - -
Can I just
251
1
(Photographs published to the jury.)
2
3
4
5
6
7
8
9
10
- - BY MR. SHAHAN:
Q.
And Mr. Barrington had his submachine gun fully
drawn, didn't he?
A.
He had it in front of him.
I call it in a
ready-gun position.
Q.
What's a ready-gun position?
Tell the jury what
that means.
A.
When you have it, you're in a position here; if
11
you're going to fire it to come up, like this -- like
12
that.
13
14
15
16
17
Q.
And in terms of the rows of officers, were you
in the first row?
A.
I'm not sure what you mean by the rows of
officers.
Q.
Well, how did you all position yourself in front
18
of the house, or at least as far as you were positioned
19
in front of the house.
20
A.
Can I show you on the picture?
21
Q.
Absolutely, no problem.
22
A.
I was standing right off of here.
23
Q.
Okay.
24
25
Thank you, sir.
So tell me if I'm correctly describing.
You're describing to the left of the door?
A.
Facing it would be to the left of the door.
252
1
2
3
4
Q.
And the left of these lights, what are these art
light things by the door; right?
A.
Well, it was between the lights and this wall.
I was going back and forth right in here.
5
Q.
And definitely before the big picture window?
6
A.
Yes.
7
Q.
Okay.
8
And where was Officer Barrington in
relationship to you?
9
A.
He was right in the middle of the doorway.
10
Q.
Okay.
11
A.
Meizo was -- at one point, he was on this side,
And where was Officer Meizo?
12
and then I believe I moved over to this other side of
13
Barrington.
14
Q.
Okay.
So at first, he was to the right of the
15
door as you face it, and then he moved to the left side
16
of the door?
17
A.
Yes.
18
Q.
Okay.
19
A.
He was over by this corner over there.
20
Q.
Okay.
21
22
23
Where was Officer Mitchell?
Was he by the corner, kind of peeking
around the side of the house, or do you know?
A.
I think he was looking, trying to look into the
window.
24
Q.
Were the blinds are in the picture window?
25
A.
The way I took it, the windows.
253
1
2
Q.
Okay.
And my client never said the words,
"Police," did he?
3
A.
No.
4
Q.
So you're claiming he said the word "die," but
5
he never said like, "die, police," or "police die,"
6
he?
7
8
A.
Q.
A.
I don't think -- I didn't see anybody, and I
don't believe it was the wind that closed it.
13
14
And you're not sure how the doors ended up being
closed, whether it was the wind, or what caused it?
11
12
I heard, "Do you want
to die, " and then it was "die, die."
9
10
I never heard "police."
did
Q.
So you didn't see anybody close it, but you
don't think that it was the wind?
15
A.
That's right.
16
Q.
And this was during hurricane Francis, wasn't
A.
The storm was coming into the area.
17
18
19
20
it?
It wasn't
here yet.
Q.
Okay.
But did you describe on direct
21
examination when asked by the prosecution that at times
22
it was raining, at times it was gusty winds?
23
A.
We had bands of rain that would come in; it
24
would rain real hard for ten, fifteen minutes, and then
25
stop.
It was breezy, sometimes the wind would pick up,
254
1
what I call gusty, and dropped back down and stop raining
2
all together.
3
Q.
I wanted to make sure I heard right in the new
4
courtroom here.
5
were in front of the door, there were gusty winds;
6
correct?
7
8
9
10
A.
You said at some point and time when you
Not when I was in front of the door, no.
I believe during the night.
Q.
During the night.
Okay.
After my client was
secured, did you actually go inside the house?
11
A.
Yes, I did.
I walked in.
12
Q.
Did you see a hole in the couch?
13
A.
Yes, I did.
14
Q.
Did you see a hole in a bookcase?
15
A.
I believe there was, yes.
16
Q.
And at any time on that particular day or event,
17
do you know from an examination of the gun how many
18
bullets were actually shot that day?
19
20
21
22
A.
I didn't see the firearm, and I didn't examine
the firearm.
Q.
Okay.
I believe you testified today you heard
two shots; right?
23
A.
Yes.
24
Q.
And they were like, boom! boom! weren't they,
25
right after each other?
255
1
2
A.
They were a little bit longer than that, a
second or longer.
3
Q.
4
apart?
5
A.
Step back, step back, and there's the next shot.
6
Q.
I understand.
7
From your demonstration, can you tell us how far
Just do a count thing like I did,
about how far apart they were, please?
8
A.
Bang, bang, taking a step back.
9
Q.
Thank you, sir.
10
Did we have a chance to chat
before today, you and he?
11
A.
At a deposition.
12
Q.
Did I take your deposition, approximately, April
13
7, 2005?
14
A.
I don't know.
16
Q.
Did you bring a copy with you?
17
A.
Yes, I did.
18
Q.
So you have your copy.
15
I'd have to look at the date but,
yes.
Thank you, sir.
19
Could you please go to page 9?
20
All right, are you there, sir, page 9?
21
A.
Yes.
22
Q.
I'm going to read something from there, and ask
23
you if you if I read it correctly.
24
MS. VERGOS:
25
THE COURT:
Judge, I would object.
What's the basis of the objection?
256
1
MS. VERGOS:
2
don't know what he's reading.
3
impeachment testimony here.
4
THE COURT:
I think it's improper, Judge.
- - -
6
(Sidebar discussion on the record)
7
- - -
8
10
I don't think there's any
Approach the bench.
5
9
I
MR. SHAHAN:
First of all, all I'm trying to do
in this courtroom -- I was going to start with, which was
going to go 13 through 20.
11
MS. VERGOS:
I don't understand.
12
MR. SHAHAN:
He said he didn't know exactly how
14
MS. VERGOS:
No.
15
MR. SHAHAN:
Please let me --
16
MS. VERGOS:
He indicated Corporal Barrington
13
far --
17
opened the door, and he doesn't know how much the door
18
closed.
19
was what Corporal Barrington said, he opened the door,
20
and he doesn't speak about how the door closed there.
21
That's exactly what his deposition says.
THE COURT:
That
Right, and my notes indicate that he
22
testified that Barrington opened the screen door, and
23
then lines 13 through 20 says that Corporal Barrington
24
opened the screen doors, but I don't see how that's
25
inconsistent with what he said on the stand.
257
1
MR. SHAHAN:
2
THE COURT:
Okay.
Thank you.
3
- - -
4
(End of sidebar discussion.)
5
6
7
8
Thank you.
- - BY MR. SHAHAN:
Q.
Sir, you said you were scared when you heard
those shots; right?
9
A.
Absolutely.
10
Q.
Now, no bullet whizzed by you, did it?
11
A.
Sounded like the sledge hammer hit the wall
12
13
14
15
where I was standing.
Q.
Okay.
So once again, did any bullet get close
to your body in any way?
A.
I wasn't able to see a bullet flying in the air.
16
It was one on the other side of the wall, I believe from
17
inside of the house where it hit.
18
Q.
Okay.
In fact, forensics, even though they made
19
four holes, there were two holes in the wall; they made
20
another two; they never found any bullets inside the
21
house, did they, any bullets inside the wall itself?
22
A.
I have no knowledge of that.
23
Q.
So you're not familiar with the Depadino's (ph.)
24
25
forensic report at all?
A.
No.
258
1
2
Q.
No bullets were found outside in front of the
house, were they, any spent bullets or casings?
3
A.
I have no knowledge of that, no.
4
Q.
And Officer Barrington was next to you, I think
5
you said; right?
6
A.
He was at the front door with me, yes.
7
Q.
And at the time of the events, Barrington didn't
8
9
claim that the bullet came close to him, did he?
A.
I'm not sure what you mean by came close to him.
10
We heard the gunshots.
11
right where we were standing, and we started to back up,
12
and heard the second gunshot.
13
14
Q.
Okay.
One sounded like it hit the wall
Did any bullets come through the big
picture window?
15
A.
No.
16
Q.
Did any bullets come through the smaller window?
17
A.
I don't believe so, no.
18
Q.
Did any bullets come through the door, or the
19
open doors?
20
A.
I don't know.
21
Q.
There were no bullet marks in front of the
22
screen right in front of you either; right?
23
A.
The screen door was open at this point.
24
Q.
Okay.
25
And there were no bullets in the lights
that go along the side of the door either; right?
259
1
A.
No.
2
Q.
And did Officer Barrington claim any bullets
3
came close to him, or fell next to him on the ground?
4
A.
I don't know.
5
Q.
Did Officer Meizo claim any bullets came next to
6
him, or were found on the ground, or spent casings?
7
A.
Spent casings?
8
Q.
Yeah.
9
A.
No.
10
Q.
Okay.
You understand that there's four
11
officers, you and three others that are claiming that my
12
client intentionally and unlawfully shot at you, putting
13
you in fear of great bodily harm or death; correct?
14
A.
Yes.
15
Q.
Okay.
16
But you agree that no bullets went
outside the confines of this concrete house?
17
A.
I'm sorry, what?
18
Q.
No bullets came outside the confines of this
19
20
concrete block home; correct?
A.
I don't really believe so.
I know there was a
21
bullet in the wall, right on the inside of the house
22
where I was standing from the outside.
23
24
25
Q.
You didn't make any measurements about how far
away from you it wasat all; right?
A.
I just remember seeing a hole in the wall right
260
1
where the wall, the doorway where I was standing.
2
Q.
But you didn't do any measurement?
3
A.
No, I did not.
4
Q.
And if Depadino did some measurements, would
5
that be more accurate you think, as to where the bullet
6
hole was?
7
A.
I'm not sure who he is.
8
Q.
Okay.
9
the forensics person for the sheriffs office.
10
A.
11
12
I'm led to believe that Mr. Depedino is
Okay.
MS. VERGOS:
Judge --
BY MR. SHAHAN:
13
Q.
So you've never discussed this with him?
14
A.
No.
15
Q.
And you never started using a megaphone or
16
public address system, or anything until after the shots;
17
right?
18
A.
Once we retreated and the SWAT Team deployed, we
19
started using the Mega system, the P.A. system in the
20
car.
21
Q.
The Crisis Management Team is supposed to handle
22
crises that involve people that have some kind of mental
23
difficulty; correct?
24
A.
There's a variety of things.
25
Q.
Could that be one of the variety of things?
261
1
A.
Yes, it is.
2
Q.
And, yet you didn't bring any psychiatrist,
3
psychologist, psychiatric nurse?
4
MS. VERGOS:
5
THE COURT:
6
7
8
Objection, asked and answered.
Sustained.
BY MR. SHAHAN:
Q.
Sir, do I understand that you said on direct
examination you've been a sergeant since 1991?
9
A.
Yes.
10
Q.
And as a sergeant then, you have some
11
supervision over other officers; correct?
12
A.
Yes.
13
Q.
Okay.
As part of your supervision, training, et
14
cetera, is it normal that you're supposed to be aware of
15
certain special operations orders, and general orders of
16
the sheriff's office?
17
A.
Yes.
18
Q.
And are you aware of the general order of 46.2
19
as it relates to the Crisis Management Team?
20
A.
Yes, I am.
21
Q.
And, in fact, did you just put it in front of
22
yourself?
23
A.
Yes, I did.
24
Q.
Okay.
25
Very good, sir.
Thank you.
Now, on page 4 of that General Rule 46.2, one of
262
1
the situations, No. 1, under "a," this is Roman number
2
4-A1, where the Crisis ManagementTeam might be involved
3
in where there is a barricaded subject; is that correct?
4
A.
Okay.
5
Q.
Is that correct?
6
Does it say that No. 1,
barracaded subject?
7
A.
Barracaded subject.
8
Q.
When you went out there, there were no
9
barracades over there by anybody?
10
A.
No.
11
Q.
And were you told a head of time that someone
12
13
was barricaded in there?
A.
No, I was told that there was a subject in the
14
bedroom that had a gun to his head, and the sergeant
15
wanted to talk to him.
16
Q.
Okay.
It wasn't a call at that point.
I appreciate that.
And under 482,
17
another place that recommends the Crisis Management Team
18
is if there's a hostage situation; correct?
19
A.
Yes.
20
Q.
And that wasn't the case here; right?
21
A.
No.
22
Q.
So you were called in under 483, suicide
23
24
25
attempt; correct?
A.
That was just -- what I believed at the time
that we were told he was holding a gun to his head.
263
1
Q.
Okay.
Now, I may not have heard everything, but
2
I don't think I heard you say anything about whether you
3
asked this person whether they had a gun to their head
4
when you were out there talking to them, did you?
5
6
A.
No, I asked them to come to the main room where
we could talk.
7
Q.
So you didn't ask him about a gun to his head,
8
you didn't rush in there and try to take a gun away from
9
him; right?
10
11
12
13
A.
I would not rush into a house with a man with a
Q.
And you didn't even talk to him, do you have a
gun.
gun to your head, sir?
14
A.
The conversation didn't last that long.
15
Q.
How long was this whole conversation?
16
How long was the whole conversation, you talking to him,
17
and when you said, he said this, how long did that
18
conversation last?.
19
A.
About five minutes.
20
Q.
In that whole five minutes, you never asked him,
21
sir, do you have a gun to your head; sir, do you feel
22
like you don't want to live, or anything like that?
23
A.
I never got to that.
24
Q.
Now, I understand you said you didn't bring him
25
out, my question is are there any psychologists,
264
1
psychiatrists, psychiatric nurses assigned to the
2
sheriff's office in Pasco County back in September of
3
2004?
4
MS. VERGOS:
5
THE COURT:
6
THE WITNESS:
7
Overruled.
I'm sorry.
BY MR. SHAHAN:
8
9
Objection.
Q.
Okay.
Are there any -- back in September of '04
when this occurred, were there any psychologists,
10
psychiatrists or psychiatric nurses assigned to the Pasco
11
County Sheriff's Office?
12
A.
No.
13
Q.
Sir, in terms of general order 46.2 on page 5,
14
would you go to that page, sir?
15
A.
Did you say 46.2, page 5?
16
Q.
Yes, sir.
17
A.
Yes.
18
Q.
Is there a Subsection J on that page about
19
Are you on that page, sir?
midway down on the right-hand side?
20
A.
"J" under 3?
21
Q.
Yes.
22
A.
Yes.
23
Q.
And I'm glad you brought up three.
24
sir.
25
correct?
Thank you,
On No. 3, it's titled "First supervisor on scene,"
265
1
A.
Yes.
2
Q.
And that was you?
3
A.
No.
4
Q.
Who was the first officer on the scene, sir?
5
A.
When I got there, Depedino was already on the
6
scene.
7
Q.
8
And Lieutenant Kling, was he by the door asking
questions of Mr. Daiak, also?
9
A.
No.
10
Q.
Now, under 3-J, does it say that one of the
11
things the first supervisor on the scene is supposed to
12
do is to "assign one deputy to record all events in
13
chronological order?"
Is that in the general rules, sir?
14
A.
Yes, sir.
15
Q.
Nobody ever did that, did they?
16
A.
It wasn't a call-out at that point.
The
17
call-out started when Lieutenant Kling called for the
18
SWAT Team and the Crisis Management Team.
19
20
21
Q.
I'm a little confused.
Isn't Mr. Barrington on
the SWAT Team?
A.
Yes, he's also on the Street Crimes Unit.
We
22
responded as a Street Crimes Unit; we have like two hats.
23
That's how you have to look at it.
24
Street Crimes Unit, backing up the deputy that advised
25
that there's a subject in the bedroom with a gun, and
We responded to
266
1
that he needed some more people.
2
Pededino (ph.) was on the scene to see if he could make
3
contact with him before they have to do a call-out.
4
We responded there,
Myself, I had two deputies -- I had one deputy
5
trying to make phone contact, who was on the Crisis
6
Management Team, and also on the the Street Crimes Unit;
7
I had also Deputy Maser and Barrington who were on the
8
SWAT Team.
9
and the training that they had, I felt a lot safer having
10
I wanted to use them because their tactics
them up there with me when I was trying to make contact.
11
Q.
Who did you assign to make the phone contact?
12
A.
Rich Skala.
13
Q.
Could we spell that?
14
A.
S-k-a-l-a.
15
Q.
Okay.
16
seeing that in the Court's thing.
17
18
19
Thank you, sir, because I don't remember
Thank you, sir.
So when you say you assigned him to make phone
contact, what does that mean?
A.
When I arrived, Skala was there for me, and
he
20
was going to try to make phone contact.
He had the phone
21
number; I'm not sure if he got the phone number from
22
Deputy Curtis.
23
number to the house, and he was trying to call the house.
I believe that's who gave the phone
24
Q.
Okay.
But did you say he got there before you?
25
A.
Rich Skala, yes, I did.
267
1
2
3
Q.
You didn't assign him to make contact?
You
weren't even there yet; right?
A.
When -- he was part of the team, and when I got
4
there, he said he was going to make the phone contact.
5
I, basically, gave him the go ahead.
6
Q.
Did you see him actually make the phone call?
7
A.
He was making a call on the cell phone, yes.
8
Q.
So you actually saw him use the telephone?
9
A.
Yes.
10
Q.
You didn't look to see what number he was
11
calling on the cell phone; right?
12
A.
No, I did not.
13
Q.
And did you hear him talking on the cell phone?
14
A.
He didn't get an answer.
15
Q.
Okay.
16
A.
He might have had -- he didn't have any answers
17
18
on the phone.
Q.
Now, was he talking on the cell phone right next
19
to you, next to Barrington with the machine gun, or where
20
was he talking on the cell phone?
21
22
A.
No, he was down the street by, where my car was
parked at the north end of the block.
23
Q.
So you can see him right down the street to --
24
A.
I was with him earlier before I went down there
25
in the street to the house when he was making phone
268
1
calls.
2
Q.
I don't mean to be confusing.
So whenever he
3
made the telephone call before you arrived in front of
4
the door with Barrington with the machine gun; right?
5
A.
Before we approached the house, he was trying to
6
make calls to the house.
7
told him to hold off while we're trying to make contact
8
with the person.
9
10
Q.
Okay.
When we approached the house, I
Thank you. sir.
General Report 46.2, please?
Do you have page 6 of
Are you there, sir?
11
A.
Yes.
12
Q.
On the middle of the page, No. 6, it says,
13
S.W.A.T. Commander.
Do you see that, sir?
14
A.
Yes.
15
Q.
Who was the SWAT commander out there with you
16
17
18
that day with you?
A.
It would have been either Capt. Neal or
Lieutenant Stone.
19
Q.
Okay.
20
A.
I believe it was Capt. Neal, but I'm not
21
22
positive.
Q.
You don't recall.
So either Neal or Stone, they
23
weren't standing around there with the other three guys
24
in front of the house; right?
25
A.
No.
269
1
Q.
And then on that same page 6, off to the right,
2
a little higher up, No. 9, it says "CNT Leader."
3
stands for Crisis Management Team.
That
4
A.
That's right, that day.
5
Q.
That's you; right?
6
A.
I'm a Team Leader, yes.
7
Q.
Were you the approving supervisor for all the
8
various reports of the other folks there?
9
A.
I approved, I believe, Mr. Meizo.
There's a
10
couple of the guys on my squad I approved, not all of
11
them.
12
Q.
What?
13
A.
I'd have to go through the list of reports to
15
Q.
Do you have that with you?
16
A.
I approved Ben Barrington's; I approved Dan
14
17
see.
Tonners.
18
Q.
Thank you, sir.
19
A.
And I approved Rick Skala.
20
Q.
I appreciate it, sir.
Now, in this supplemental
21
report, is it fair to say that in the bottom right-hand
22
corner, your report is page 15, 16, and my -- there's an
23
unnumbered page, is the rest of it.
24
25
A.
I'm not sure what you're asking.
MR. SHAHAN:
I'm sorry.
May I approach the witness, Your
270
1
Honor?
2
3
4
THE COURT:
Yes.
BY MR. SHAHAN:
Q.
Sir, I've got what is known as discovery from
5
the State; it's got some reports.
This is what I'm
6
talking about with your name on it.
7
A.
Okay.
8
Q.
And that's got a last page with -- do you have
9
those reports?
10
MS. VERGOS:
Judge, I'm sorry, I can't hear you.
11
MR. SHAHAN:
I'm just asking him if he had these
12
reports.
I'm showing them to him because he was confused
13
to what I'm talking to him about.
14
THE WITNESS:
15
MR. SHAHAN:
16
THE WITNESS:
These?
Yes, sir.
This is the same report, but in a
17
different format, different computer printed it out.
18
BY MR. SHAHAN:
19
20
Q.
So when you printed it out, the computer just
printed it out a little bit differently?
21
A.
Yes.
22
Q.
Let me ask you something there.
23
this first.
24
people's reports?
25
A.
Let me ask you
What's the purpose of you approving other
What's the purpose of it?
It's part of my job.
271
1
Q.
Okay.
And by approving of it, if they have
2
something in the report that you say is incorrect, you
3
tell them to change it, and that type of thing?
4
A.
It depends what it is.
5
Q.
Okay.
6
7
8
9
Now, is it unusual for those folks to be
able to approve their own report?
A.
Supervisora approve reports; the deputies can't
approve their own reports.
Q.
Oh, thank you, sir.
I approve my own reports.
So why did you approve your
10
own report instead letting your supervisor approve your
11
reports?
12
13
A.
Because I read it, and when they was checking
reports, I approved it, yes.
14
Q.
So it sounded good to you?
15
A.
Yes.
16
Q.
Now, before you came out -- well, how long
17
before you came out to the house were you aware of the
18
situation?
19
the call that you needed to go out there, what was the
20
period of time?
How long before you arrived after your got
21
A.
From hearing the call to responding?
22
Q.
Yes, sir.
23
A.
I believe I was up around Trouble Creek and 19,
24
so it would have been driving time, maybe ten minutes,
25
I'm guessing.
272
1
Q.
And because you're head of the CMT, no one else
2
could respond before you, or how does that work?
3
the policy of the sheriff's office?
What's
4
A.
The shift commander calls out the CMT or SWAT.
5
Q.
Okay.
6
A.
And that was -- (inaudible)
7
Q.
Okay.
So during that time, you didn't call a
8
judge to get a warrant, or anything to go inside the
9
home, or anything like that; right?
10
11
12
13
MS. VERGOS:
Judge, I'm going to object.
BY MR. SHAHAN:
Q.
You didn't call any of the judges to get a
warrant to go inside that home; correct?
14
A.
No.
15
Q.
In fact, you ordered Corporal Barrington to open
16
17
18
19
20
21
22
23
the door; correct?
A.
I told Corporal Barrington to open the door for
our safety so we could have a better view inside.
Q.
So when you say you weren't inside, you mean
somebody opened the door?
A.
We were outside and the door the screen door
opened out.
Q.
Okay.
In a different context, if you're
24
investigating a neighbor next door saying someone is
25
breaking into my house and they hoped the door without
273
1
2
consent, that's a burglary; isn't it?
A.
Under these circumstances, exigent circumstances
3
where the subject is possibly going to hurt himself, I
4
felt for our safety,opening the door was the proper thing
5
to do.
6
Q.
7
8
9
10
11
But the opening of the door occurred before
anything shot at you?
A.
Yes, and at that point, I was concerned with his
own safety, because I was told he was holding a gun to
his head.
Q.
I appreciate the answer, but my question to you
12
is let's just make believe you lived next door to this
13
place, correct, and the neighbors said I just saw
14
somebody open JJ's door; that's a burglary, isn't it
15
without their consent?
16
17
18
19
A.
Burglary is the entering and taking items
inside, theft from within.
Q.
And I believe you said you pounded on the door;
correct?
20
A.
I knocked on the door, yes.
21
Q.
Is this the green door or screen door?
22
A.
Screen door.
23
Q.
Can you please explain to the jury how loud you
24
25
pounded on the door, please?
A.
I had a metal flashlight, and I hit up.
274
1
2
3
Q.
I understand the device but could you just
demonstrate how loud you thought it was.
A.
I don't have the flashlight or metal frame door
4
here.
5
or hear me.
6
Barrington to open the door, and with my voice, I was
7
hoping he would respond.
8
9
10
Q.
I felt it was loud enough for someone to answer,
And then we opened the door.
I told
The time period before you responded, did you
check with anybody about how many rooms there were in
this house?
11
A.
No, I did not.
12
Q.
Did you know specifically yourself where this
13
person allegedly had this gun to their head, whether it
14
was in the front living room in front of the door, or
15
whether it was in a side room or garage, or whatever?
16
A.
I was told he was in the bedroom.
17
Q.
Okay.
18
And how many bedrooms were you told were
in the house?
19
A.
I don't recall what I was told.
20
Q.
Were you told whether it was back bedroom, side
21
bedroom, front bedroom?
22
A.
I was told a bedroom in the house.
23
Q.
So you can't really say for sure, not knowing
24
the hearing acuity of Mr. Daiak if he was in the back
25
bedroom, whether he heard any of these knocks, can you?
275
1
A.
I know he heard my voice because he replied.
2
Q.
But you don't know because you're not him,
3
whether he heard your voice, he heard the word "police,"
4
do you?
5
6
A.
I didn't use the word "police," I said sheriff's
office.
7
Q.
Okay.
So you don't know, not knowing his
8
acuity, whether he heard the word sheriff's office, do
9
you?
10
A.
I'm not sure what you mean by "acuity."
11
Q.
How well he can hear.
12
A.
Okay.
13
Q.
You never knew this man before; right?
14
A.
No.
15
Q.
And you didn't check when you went there,
16
whether as a residence there, he was a person who had a
17
concealed weapons permit, or was, you know, a cop, a
18
shoeshine boy, or anything; you didn't know who he was;
19
right, other than a name?
20
A.
Correct.
21
Q.
So you definitely didn't know whether he could
22
hear very well;
right?
23
A.
I do not know.
24
Q.
And you don't know what room he was in in that
25
house?
276
1
A.
I was told the bedroom.
2
Q.
And you're saying that he did talk back to you?
3
A.
Yes.
4
Q.
He didn't say police officer die, sheriff's
5
office die; he didn't use the word "police" at all, did
6
you?
7
A.
No.
8
Q.
And you're telling us that you were pretty loud?
9
A.
Yes.
10
Q.
And how long a sustaining of this did this
11
occur?
12
A.
No, it was quick.
13
Q.
Quick?
14
A.
Yes.
15
Q.
Like less than a minute?
16
A.
Yes, sir, it was one rapid, one rapid like --
17
(noise) like real quick one time.
18
19
One minute, two minutes, three minutes?
THE COURT:
Okay.
BY MR. SHAHAN:
20
Q.
And you saw a muzzle flash; right?
21
A.
Yes, I did.
22
Q.
Okay.
23
24
25
Would your hand please demonstrate to the
jury how big was that muzzle flash your saw through?
A.
First one was like a flash camera.
room lighted up.
The whole
That's what I saw in the first one,like
277
1
a flash of a camera went off, and a loud bang.
2
second one, it seemed like it was closer, because there
3
it was even more light to it.
4
5
Q.
The
Even with all that light, you couldn't see Mr.
Daiak, could you, behind that flash?
6
A.
I did not see him, no.
7
Q.
So you can't tell this jury that he saw you,
8
can you?
9
A.
I don't know if he saw me or not.
10
Q.
I mean, if he's shooting a gun, and the flash
11
that you see, that flash is going to be in front of his
12
face, too?
13
A.
14
he saw me.
15
Q.
You're asking me if he saw me.
I know.
I don't know if
I'm sorry I'll move on to the next
16
question.
I apologize.
I appreciate you answered that
17
question.
The next question, this flash being, like you
18
said, a bright flash to the jury, a camera flash, right?
19
A.
It was a bright flash, yes.
20
Q.
And with that flash in your face, you couldn't
21
see the body behind the flash, right, man, woman, child?
22
A.
No, you can't see a preson.
23
Q.
So you can't say with any certainty that Mr.
24
Daiak, who is on the other side of the flash, saw you
25
either; right?
278
1
A.
I do not know what he saw.
2
Q.
And you were asked to describe the hallway, you
3
described you described it off to the side of the door,
4
correct, a little bit to the right or left of the door?
5
6
7
A.
What I described like walking down, I would be
to the (inaudible).
Q.
So you definitely didn't have a direct eye of
8
this flash in that hallway that was off to the right in
9
that hallway?
10
A.
I believe so.
11
Q.
And that's where the gunshot came from, the
12
13
14
15
hallway, right?
A.
I didn't see the gun, I saw it was a flash, and
a loud bang, and then flash, and a loud bang.
Q.
So you're really not sure where this person was
16
that shot the gun, whether it was in the hallway, living
17
room, the other end of the bedroom, or wherever?
18
A.
And the second one, it was coming from the
19
hallway just by more of the flash, but I'm not sure where
20
the person was.
21
Q.
Okay.
Now, when the SWAT Team made entrance
22
into the residence and took Mr. Daiak into custody, his
23
eyes were closed; right?
24
A.
I have no idea.
25
Q.
Did you have -- you weren't present at that
279
1
time?
2
A.
I have no idea.
3
Q.
Did you see him at any time after he was taken
4
5
into custody?
A.
No.
As I said before, I had walked into the
6
house and looked down into the bedroom, and he was
7
sitting on the bed, and people from the SWAT Team, and
8
medical on the SWAT Team was with him.
9
for like two seconds.
I just saw him
10
Q.
11
right?
12
A.
No.
13
Q.
And he didn't make any spontaneous statemnts in
14
15
your presence; right?
A.
16
17
And you didn't take any statements from him;
No.
MR. SHAHAN:
with my client?
18
THE COURT:
19
MR. SHAHAN:
20
23
24
25
Yes.
May I approach the witness, Your
Honor.
21
22
May I have a moment, Your Honor,
THE COURT:
Yes.
BY MR. SHAHAN:
Q.
Sir, I'm back with that same reports, except
it's my client's copy this time.
Do you see the supplemental report?
It says,
280
1
page 15 there, and next is 16, which might be on a
2
different form.
3
MS. VERGOS:
Judge?
4
MR. SHAHAN:
I'm sorry.
5
MS. VERGOS:
I don't know if Counsel is asking
6
the witness a question, or if they're having
7
conversations among themselves, but I can't hear
8
anything.
9
MR. SHAHAN:
10
THE COURT:
I apologize.
It sounds like they were having
11
whatever conversation off the record, and I'm not even
12
sure if the Court Reporter was able to hear it.
13
we're going to have a conversation, let's have a
14
conversation so it's loud enough so we can all hear.
15
16
17
MR. SHAHAN:
Yes, Your Honor.
So if
I apologize.
BY MR. SHAHAN:
A.
Sir, you're saying you have the exact same
18
report, and it's just printed off your printer a little
19
bit different; right?
20
A.
Yes.
21
Q.
I'm asking you is page 15 on my copy of your
22
report, do you see something about a third gunshot?
23
A.
Yes, I do.
24
Q.
Does it proceed on to the next page of your
25
report?
281
1
A.
I had it all on the same page of my report.
2
Q.
Okay.
Very good.
Thank you.
Now, is it fair
3
to say on this record, you indicate that while you were
4
waiting for the SWAT Team arrival --
5
6
7
MS. VERGOS:
Judge, I'm going to object, and ask
to approach.
THE COURT:
All right, approach.
8
- - -
9
(Sidebar discussion on the record.)
10
11
- - MS. VERGOS:
Judge, I don't know if this
12
question is being asked as to set up impeachment but,
13
basically, I'm not sure what Counsel is doing.
14
MR. SHAHAN:
Well, --
15
MS. VERGOS:
Let me finish.
Basically, havoing
16
a conversation with the detective or sergeant, and I
17
can't hear -- we addressed that.
18
whether or not it's written in the report there was a
19
third shot, he asked that before.
20
opportunity to impeach or use some extrinsic evidence to
21
ask the question, but he asked the question of a
22
witness -- another witness' answer to that question
23
before some other evidence is used to try and
24
(inaudible).
25
MR. SHAHAN:
And now going into the
He's had the
Her confusion is because she won't
282
1
let me finish the question.
2
MS. VERGOS:
3
THE COURT:
4
Also, ask him to lower his voice.
Whose police report are we talking
about?
5
MR. SHAHAN:
I'm showing him his police report.
6
MS. VERGOS:
Judge, I really ask him to lower
7
his voice.
8
MR. SHAHAN:
9
THE COURT:
10
In his police report, it indicates
three shots?
11
MR. SHAHAN:
12
THE COURT:
13
I'm too low, too high.
Third gunshot, yes.
That certainly is not inconsistent
with what he said on the stand
14
MR. SHAHAN:
I'm not trying to show
15
inconsistency, I'm trying to use that as a lead-in to
16
another question.
17
THE COURT:
18
MR. SHAHAN:
What's the next question?
My next question is going to be how
19
does he explain that there were only two shots used out
20
of the gun as it relates to that.
21
question.
22
MS. VERGOS:
It's an observation
What I'm saying is that this is a
23
report recording a third shot.
24
to try and make that situation, trying to use that.
25
THE COURT:
Counsel is using a report
I'm going to ove rule the objection.
283
1
What he's testified to is that he has only heard two
2
shots, and only seen two shots, so if there's a mention
3
of a third shot, that is inconsistent with his testimony;
4
so I'll allow him to impeach him with that, and I'll
5
allow him to ask the question.
6
overruled.
7
MS. VERGOS:
8
(End of sidebar discussion.)
10
- - -
11
13
Okay.
- - -
9
12
So your objection is
THE COURT:
Please proceed.
BY MR. SHAHAN:
Q.
Sir, once again, do you have in our report that
14
"While we were waiting for the SWAT Team's arrival, I
15
heard a third gunshot inside the residence?"
16
A.
Yes.
17
Q.
But today you testified that you heard only two
18
shots; correct?
19
A.
Up by the house, by the front door, there was
20
two shots.
21
we were waiting for the SWAT Team, I heard another
22
gunshot, and I was concerned that maybe he shot himself.
23
But I just heard another gunshot.
When we went back, retreated back, I was --
24
Q.
So everybody is away from the door then?
25
A.
Yes, we were not up by the door then.
284
1
2
3
Q.
So worse case scenario, you think he might have
shot himself?
A.
It was a possibility.
4
MR. SHAHAN:
5
THE COURT:
6
No further questions.
All right, Ms. Vergos, do you have
any redirect?
7
MS. VERGOS:
8
THE COURT:
9
MS. VERGOS:
Yes.
Is it going to be lengthy or short?
I think I heard somebody mention
10
that they need to use the restroom, and I agree, so we
11
might as well just take a break.
12
THE COURT:
All right, so the answer is it's
13
not going to be short.
14
take a realistic fifteen minute break.
15
that is that we'll be in the courtroom in fifteen
16
minutes, and if there's anyone who is not here, then
17
we're just going to start without them.
18
can't start without the jury.
19
20
All right, we will go ahead and
Of course, we
So did we ever find out if one of these other
courtrooms is open?
21
THE BAILIFF:
They're being used for maintenance
22
throughout the day, yes, Judge.
23
quick and see the courtroom next door.
24
25
What I mean by
THE COURT:
this.
I can step out real
Just to save time, why don't we do
Be back in the jury room, which is right there in
285
1
fifteen, then when it's time to get you, it will be a lot
2
closer here than going all the way downstairs.
3
A JURY MEMBER:
4
THE COURT:
How far do we walk?
Walk through the courtroom, and just
5
go in there, all right?
And I don't want you hanging
6
outside this courtroom, or in the courtroom, just walk on
7
through because you may overhear something that you're
8
not supposed to overhear.
9
to happen.
We certainly don't want that
So if you want to go down to the snack bar
10
and get something to eat or drink real quick, that's
11
fine.
12
Since this is a brand new courthouse, please
13
don't bring anything in here, because we don't want
14
things all over the new carpet and new facilities, and
15
everything.
16
door right there in fifteen minutes, and hopefully we'll
17
get started right at that time.
18
Courtroom 3-B, right, Deputy Hatcher?
So just be back in that jury room; it's that
19
BAILIFF HATCHER:
20
THE COURT:
21
22
25
This is
Yes, Judge.
All right.
- - -
(Jury excused for 15-minute recess.)
23
24
All right?
- - THE BAILIFF:
of the court.
The jurors are out of the hearing
286
1
- - -
2
(Out of the hearing of the jury.)
3
- - -
4
THE COURT:
At this time, please do not discuss
5
your testimony with even the lawyers, right?
6
you're in the middle of your testimony.
7
and take a 15-minute break.
8
to go and get something to eat or drink, you go ahead.
9
make sure that the jurors don't overhear anything, all
10
right.
- - -
12
(End of sidebar.)
13
- - (Court reconvened, whereupon, the following took place:)
15
- - -
16
17
You may go ahead
And, obviously, if you were
11
14
Because
THE BAILIFF:
The Jury is present and seated in
the jury box.
18
THE COURT:
19
THE JURY:
20
THE COURT:
How was that?
Nice.
Anyway, there was a question from
21
one of the jurors of the Bailiff.
And the question was
22
how long are we going to go tonight?
23
lot depends upon you.
24
How's that?
25
continue.
And the answer is a
We'll go as long as you want.
So be thinking about that, and we shall
287
1
Ms. Vergos, any redirect?
2
MS. VERGOS:
3
THE COURT:
Yes, Judge.
All right.
4
- - -
5
6
7
R E D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
Q.
Sergeant, I just wanted to clear up a couple of
8
things.
You indicated before that you're on the Street
9
Crimes Unit?
10
A.
Yes.
11
Q.
You also indicated you're on the Crisis
12
Management Team?
13
A.
Yes.
14
Q.
Are those two things one and the same?
15
A.
No, two different.
16
Q.
When you respond to a scene, does it always have
17
to be a Crisis Management Team type of situation?
18
A.
No.
19
Q.
When you initially responded to the scene in
20
this case, was it as a Crisis Management Team member?
21
A.
No.
22
Q.
Was it sa a Crisis Management Team supervisor?
23
A.
No.
24
Q.
Did you just respond as a deputy who was at a
25
nearby location when the call came out?
288
1
A.
As backup to, because the deputy was calling in,
2
advised that there was a subject inside holding a gun to
3
his head, and I needed more people there.
4
Q.
Okay.
So as far as all the things regarding
5
what to do when SWAT and Crisis Management were called
6
out, they weren't applicable when you first arrived on
7
the scene; right?
8
A.
That's right.
9
Q.
And when did they become applicable?
10
A.
When Lieutenant Kling called Dispatch, advised
11
12
13
to have a call out for SWAT and CMT.
Q.
From my understanding that was after the two
shots were fired when you were over by the door?
14
A.
Yes.
15
Q.
So when you were at the front door and all of
16
this happened with the Defendant firing that gun twice in
17
your direction, you were there as a regular deputy
18
working in a nearby unit coming as a backup deputy?
19
A.
Yes.
20
Q.
Now, you indicated when you came, there was no
21
lights, no sirens on in your car, or I believe that you
22
said that you had your lights on, but it was further down
23
the street?
24
A.
Yes.
25
Q.
Is there a reason why you don't come up to a
289
1
2
situation like this with lights and sirens blazing?
A.
Well, if he's in the house, and he's already
3
upset, and you draw more attention, sometimes it's better
4
not to have the sirens coming.
5
requested not to have sirens going while we were en
6
route.
7
Q.
8
Also Deputy Curtis
Is it a vulnerable situation that you're
approaching?
9
A.
It could be.
10
Q.
And when somebody is in the house on their own
11
with a loaded weapon to their head, are you cognizant of
12
the fact that it's a vunerable situation?
13
A.
Yes.
14
Q.
And are you doing what you can to try and make
15
it as safe a situation as possible for everybody
16
involved?
17
A.
Like to diffuse the situation, right.
18
Q.
Okay, diffuse the situation.
19
20
word.
That's a great
What does that mean?
A.
To calm the subject down.
Basically, if you can
21
get him talking, and if you'd be willing to come out and
22
talk to you, and once you get him talking, usually you
23
can get, you know, a response out of him, favorable
24
response.
25
Q.
And do you find that it's easier to get him
290
1
talking when there are sirens everywhere?
2
A.
No.
3
Q.
You don't?
4
A.
No.
5
Q.
Now, Counsel also spoke to you about the fire
6
power, as he's put it, that everybody had?
7
A.
As --
8
Q.
Fire power.
9
A.
Okay.
10
Q.
Okay.
11
A.
I have several.
Are you issued an agency weapon?
I have an agency weapon; I have
12
a Glock that I carry in my side; in my trunk of my
13
cruiser, I have a semi-auto M-16.
14
15
16
17
Q.
You didn't take that semi automatic M-16 out,
did you?
A.
No, I did not.
I have a shotgun in my trunk; I
did not take that out. So --
18
Q.
So you have fire power?
19
A.
Yes.
20
Q.
You are a law enforcement officer?
21
A.
Yes.
22
Q.
And you come up to scenes where you may need
23
that power; correct?
24
A.
Yes.
25
Q.
Okay.
On this night, what did you use?
291
1
A.
I had my sidearm, my holster, my Glock.
2
Q.
And that's it?
3
A.
Yes.
4
Q.
Did you have on a holster?
5
A.
I've had it in the holster until my first shot.
6
When I heard the first shot, I drew my weapon.
7
Q.
Before he started shooting at you --
8
A.
It was holstered.
9
Q.
It was holstered.
10
A.
Mine was holstered, yes.
11
Q.
All right.
Now, I know you showed Counsel a
12
couple of things with the house and the door, and things
13
of that nature, but let's show it to the jury, okay?
14
May I approach the witness, Judge?
15
THE COURT:
16
17
Yes.
BY MS. VERGOS:
Q.
I'm showing you what's been marked for
18
identification as State's Exhibit C.
19
this?
Do you recognize
20
A.
Yes.
21
Q.
And this is an accurate picture of the
22
residence?
23
A.
Yes.
24
Q.
And is it an accurate representation of how the
25
residence looked on that night?
292
1
A.
2
3
Yes.
MS. VERGOS:
evidence?
4
THE COURT:
5
MR. SHAHAN:
6
Any objection?
No objection, Your Honor.
It looks
great.
7
8
Judge, may we admit this into
THE COURT:
All right, it will be admitted as
State's Exhibit No. 5.
9
MS. VERGOS:
And, Judge, may the witness step
10
down from the witness stand and use the exhibit to
11
demonstrate to the jury where everybody was?
12
THE COURT:
13
MS. VERGOS:
14
15
He may.
Thank you, Judge.
BY MS. VERGOS:
Q.
Now, Sergeant, using what's been introduced as
16
State's 5, let's help the jury figure out where
17
everything was going on.
18
19
MR. SHAHAN:
THE COURT:
21
MR. SHAHAN:
23
24
25
Excuse me, Your Honor.
May we move
to a place where we can also see what's going on?
20
22
Can you just show the jury --
Yes.
Thank you.
BY MS. VERGOS:
Q.
Can you show the jury where you were, where the
other officers were, and where everything was happening?
A.
I was standing right here between this glass
293
1
here and this door where the cement right here; Deputy
2
Barrington was right here in the front on the sidewalk
3
right there; Meizo at one point was over here, and then I
4
believe he moved over here, and I moved down a little bit
5
and Corporal --
6
Q.
Mitchell?
7
A.
Thank you.
Corporal Mitchell was over here by
8
the window trying to see inside.
9
moved closer.
10
11
Q.
Okay.
And then I believe he
He was down here most of the time.
And once everything was controlled, and
the scene was under control, did you enter the residence?
12
A.
Yes.
13
Q.
And did you observe the bullet holes?
14
A.
Yes.
15
Q.
And showing us from the outside of the
16
residence, can you tell us, approximately, where the
17
bullet holes were?
18
A.
There was one right about here on the wall.
19
Q.
Right.
20
A.
Inside of the house.
21
Q.
And where were you?
22
A.
Right about here, the outside of the house.
23
Q.
Were you standing up, or crouched down?
24
A.
I was crouched a little bit, yes.
25
Q.
And where was the second hole?
294
1
A.
I believe it was over in this corner.
2
Q.
By the window?
3
A.
Yes.
4
Q.
That's where Deputy Mitchell was?
5
A.
Yes.
6
Q.
Okay.
7
your seat.
Thank you.
8
- - -
9
(Witness resumed the witness stand.)
10
11
12
You can go ahead and resume
- - BY MS. VERGOS:
Q.
Now, Counsel asked you why you didn't just rush
13
in and get the gun when you first got there.
Why didn't
14
you, or I guess he indicated that you didn't, and you
15
agreed that you didn't.
16
A.
That's right.
17
Q.
You agreed that you didn't rush in and get the
18
19
gun when you got there?
A.
Why not?
Tactically, that's suicide.
20
at the ending of the night.
21
it's how we did it.
I want to go home
Safety is how we work, and
We did it the safest way.
22
Q.
Okay.
And it just wouldn't be safe?
23
A.
No.
24
Q.
In you just rushed in to get the gun?
25
A.
No.
295
1
2
Q.
Did you know anything about the situation
inside?
3
A.
No.
4
Q.
Other than what Deputy Curtis had informed you
6
A.
That's right.
7
Q.
And you also said that, I guess the question was
5
of?
8
something to the effect you didn't know who the Defendant
9
was; you didn't know if he was a law man, or whatever the
10
scenario was; correct?
11
A.
Uh-huh.
12
Q.
Yes?
13
A.
Yes, that's right.
14
Q.
Okay.
That's what he asked me.
You were responding to a pretty
15
vulnerable situation, as you indicated before, and is
16
timing an issue here?
17
A.
I would say, yes.
18
Q.
All right.
19
And do you try to respond to that
situation as quickly as possible?
20
A.
Yes.
21
Q.
If there's a person inside a house with a gun to
22
their head, do you try and get there and help that person
23
kind of quick?
24
A.
Yes.
25
Q.
Do you take a break to run his employment
296
1
2
history?
A.
I really don't see why it would matter to even
3
run employment history at that point.
It could be if it
4
was someone that was depressed or suicidal; it could be a
5
cop, a school teacher, a nurse.
6
Q.
It doesn't make any difference.
7
A.
It doesn't matter.
8
Q.
Now, you talked a little bit about this general
9
operation, general order with defense counsel, and you've
10
had an opportunity to look through this Order, or I
11
assume you know it pretty well?
12
A.
Pretty well.
13
Q.
Okay.
And I know Counsel asked you a number of
14
times about psychiatric nurses and psychologists and
15
psychiatrists.
16
the Crisis Management Team?
Is this the general order that applies to
17
A.
Yes.
18
Q.
And does this cover everything regarding Crisis
19
Management Team?
20
A.
I believe so.
21
Q.
And does this Order cover the procedures of the
22
Crisis Management Team?
23
A.
Yes.
24
Q.
And who is to be on a Crisis Management Team.
25
A.
Yes.
297
1
2
Q.
And how the person is going to be selected to be
on the Crisis Management Team?
3
A.
Yes, it does.
4
Q.
And what the requirements are?
5
A.
Yes.
6
Q.
And what the procedure is once the person is out
7
there?
8
A.
Yes.
9
Q.
Everything?
10
A.
Yes.
11
Q.
Okay.
12
Does it say in here that you have to have
a psychiatric nurse?
13
A.
No.
14
Q.
Does it say in here that you have to have a
15
psychologist?
16
A.
No.
17
Q.
Does it say in here you have to have a
18
psychiatrist?
19
A.
No.
20
Q.
Any doctors or anybody of that nature that it
21
requires to be present in the unit?
22
A.
No, it doesn't.
23
Q.
It also covers SWAT; right?
24
A.
Yes, it does.
25
Q.
Same thing for SWAT.
Does it require a
298
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
psychologist or psychiatrist to go out with SWAT?
A.
No.
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PASCO COUNTY, FLORIDA
CRIMINAL DIVISION
CASE NO. 04-0442CFAWS
STATE OF FLORIDA,
Plaintiff,
vs.
:
:
:
A P P E A L
:
JOE FRANK DAIAK, JR.,
:
:
Defendant.
:
------------------------------x
BEFORE:
HONORABLE JOSEPH BULONE, J.
Sixth Circuit
PLACE:
Pasco Coounty Government Center
7530 Little Road
New Port Richey, Florida
DATE:
November 29, 2006
TIME:
Commencing at 9:00 a.m.
REPORTED BY:
P. ALECIA COX-WILKINS
Sixth Circuit
COURT REPORTER
Notary Public, State of Florida
Pages 298 - 423
D A Y T W O
V O L U M E I I I
J U D Y
M O U K A Z I S & A S S O C I A T E S
C O U R T R E P O R T E R S
8624 Massachusetts Avenue
New Port Richey, Florida 34654
(727) 842-9793
A P P E A R A N C E S
EVA VERGOS, ESQUIRE
Assistant State Attorney
7530 Little Road
New Port Richey, Florida
Attorney for the State
JOHN AMBROSE SHAHAN, ESQUIRE
536 E. Tarpon Aveue, Suite 3
Tarpon Springs, Florida
Attorney for the Defendant
I N D E X
Recross Examination
Mr. Shahan
PAGE
303
Deputy Mitchell
Direct, Ms. Vergos
Cross, Mr. Shahan
311
322
Deputy Meizo
Direct, Ms. Vergos
Cross, Mr. Shahan
Redirect, Ms. Vergos
332
347
358
Sgt. Barrington
Direct, Ms. Vergos
Cross, Mr. Shahan
Redirect, Ms. Vergos
362
392
412
IN EVIDENCE
State's Exhibit 6
Exhibit 1
Exhibits 7,8,9
State's 10, 11
E X H I B I T S
Photograph
Photograph
Photographs
Photographs
301
352
383
391
301
1
2
3
Q.
nature, they go out with the SWAT Unit?
A.
4
5
8
9
10
No.
MS. VERGOS:
Judge, may I approach the witness
again?
6
7
Or that if somebody is present on a call of that
THE COURT:
Yes.
BY MS. VERGOS:
Q.
I'm showing you what's been marked for
identification as State's Exhibit J-5.
Do you recognize
that?
11
A.
Yes.
12
Q.
And is that an accurate depiction of the bullet
13
hole in the wall as it appeared on that day?
14
A.
Yes.
15
Q.
And that's the wall in the Defendant's
16
residence?
17
A.
18
19
Yes.
MS. VERGOS:
Judge, I would seek to introduce
State's Exhibit J-5 into evidence.
20
THE COURT:
Any objection?
21
MR. SHAHAN:
No objection.
22
THE COURT:
23
Exhibit No. 6.
24
BY MS. VERGOS:
25
Q.
That will be admitted as State's
And, Judge, may the Sergeant step down again?
302
1
A.
Yes.
2
Q.
Okay.
Sergeant, using this photo to the jury,
3
this -- the brown piece that we see here toward the right
4
of the photograph, is that the door frame?
5
6
A.
That's the trim on the window on that larger
picture.
7
Q.
The Green window, is that what you're talking
8
about?
9
A.
Yes.
10
Q.
Okay.
11
A.
This here is the trim of the window right here.
12
Q.
I think we understand.
Show us.
Okay.
And so let's do
13
it this way, okay?
So this is the trim for this window
14
right here inside the residence; so it's kind of on the
15
other side, all right?
16
was caused on this night?
And this is the bullet hole that
17
A.
Inside the house.
18
Q.
Is this the one you indicated sounded like a
19
sledge hammerr hit the ball?
20
A.
Yes.
21
Q.
And this wall, where would that be on the
22
outside?
23
A.
About there.
24
Q.
Where were you?
25
A.
Right about there.
303
1
2
MS. VERGOS:
witness.
I have no other questions for the
Thank you.
3
THE COURT:
4
MR. SHAHAN:
5
May I approach the witness, Your Honor?
6
THE COURT:
7
8
9
10
Any further questions by Mr. Shahan?
Yes, Your Honor.
Yes.
R E C R O S S
E X A M I N A T I O N
BY MR. SHAHAN:
Q.
So, basically, this whole -- this is like about
a knee-high length; right?
11
A.
I believe it's a little bit higher.
12
Q.
You didn't actually measure it, did you?
13
A.
No.
14
Q.
Deputy Dependito, the forensics guy did; right?
15
A.
I'm not sure.
16
Q.
Without measuring -- you're not sure whether it
17
18
19
was knee height or not?
A.
I would say, remembering back it was probably
more like couch level.
20
Q.
And in the same picture there's a couch; right?
21
A.
Yes.
22
Q.
And, in fact, there's a hole in the couch that
23
matches up with that; right?
24
first, and then went into the wall; right?
25
A.
It went through the couch
There was a hole in the couch; I don't know
304
1
2
3
what -Q.
You're not sure one way or the other where that
couch --
4
A.
Where that matches up.
I didn't match it up.
5
Q.
You didn't match it up, and since you didn't,
6
you don't know who the forensic guy is; you don't know if
7
he matched it up?
8
A.
I'm not sure. I wasn't there for that.
9
Q.
Thank you.
And with the big picture, I think
10
you, if I could see right, you described for the jury
11
that these holes are on the other side of this concrete
12
wall; right?
13
A.
Yes, one was right about right there.
14
Q.
And right in there you're showing like about
15
maybe three light spots up, to the other way; correct?
16
A.
I believe it was right about in there, yes.
17
Q.
So that's like a third light; is it one, two,
18
three?
19
A.
Yes.
20
Q.
And where did you say the other one was, sir?
21
A.
I believe it was over in this corner.
22
Q.
Once again over in that corner, that's on the
23
other side of this concrete wall?
24
A.
Oh, on the inside of the house.
25
Q.
Yes, andthis is a concrete wall; right?
305
1
A.
It's brick.
2
Q.
Right.
3
And you said there was an officer on the
other side of the concrete wall?
4
A.
Mitchell was by the window trying to look in.
5
Q.
But his head wasn't actually in the window, was
7
A.
Eye below.
8
Q.
So if somebody is really trying to shoot
6
9
10
he?
somebody outside, wouldn't it be better to shoot through
this window rather than the concrete wall?
11
A.
I'm not sure.
12
Q.
I mean, this is a common sense thing.
13
from your experience as a law inforcement.
14
15
I mean,
A.
Fortunately, I'm glad it hit the wall;
otherwise, the two of us might not be here today.
16
Q.
Well, that's true.
That's good.
But just as a
17
common sense thing with your experience with firearms, if
18
somebody is trying to actually shoot you wouldn't it be
19
better to shoot threw a window that's less porous than a
20
concrete wall, again, because it's less porous than a
21
concrete wall, yes, but bullets have gone through walls,
22
too.
23
Q.
But these bullet didn't, did they?
24
A.
No.
25
MR. SHAHAN:
Thank you.
306
1
2
THE COURT:
excused?
3
MR. SHAHAN:
4
THE COURT:
5
All right, may this witness be
I have a couple of more questions.
Oh, you have a couple of more
questions.
6
MR. SHAHAN:
I have a couple of more questions
7
based on her questions.
8
BY MR. SHAHAN:
9
Q.
Now, if I understand you right on
10
cross-examination, you told the prosecutor that you
11
didn't have the lights and sirens on, because you're
12
trying to diffuse the situation of something that
13
supposedly got a gun to their head; right?
14
15
16
A.
No, we were told -- Deputy Curtis advised us
over the radio not to respond with sirens.
Q.
But you didn't use lights or sirens because you
17
thought it would diffuse the situation if you didn't have
18
lights and sirens; right?
19
A.
Yes.
20
Q.
But if you had lights and sirens, then it's much
21
more likely the person would know there's cops out there,
22
wouldn't they, with lights and sirens than without lights
23
and sirens?
24
25
A.
Well, my speaking through the door, telling him
I was Sergeant William McVey, or Bill McVey with Pasco
307
1
County Sheriff's Office, that way I would assume they
2
would realize that the sheriffs office was outside.
3
Q.
Yeah, I appreciate your answer, sir, but my
4
question to you is, if I'm a civilian inside a house, is
5
it more likely that I'm going to know it's cops if
6
they're using lights and sirens like cop sounds usually
7
are, or if I'm quiet and don't have lights and sirens,
8
which is more likely that I would know that there's cops
9
and sirens out there, do you think?
10
A.
It depends on the situation and the person.
11
Q.
So you really can't tell us honestly whether you
12
think if you're inside your house and there's lights and
13
sirens, that that's more likely or less likely that it's
14
cops versus a civilian person?
15
A.
Sometimes you use lights and sirens, it could
16
push the person over the edge where they end up hurting
17
themselves, or end up taking flight.
18
Q.
Okay.
But if you're sitting in your house, and
19
you hear lights and sirens, does that sound more
20
indicative that there's either cops or firefighters
21
outside, or just like the plumber?
22
A.
I would, if I heard lights and sirens outside my
23
house, or heard sirens outside my house, I would assume
24
it was either police officer, fire rescue, or some type
25
of emergency vehicle.
308
1
Q.
And by not using them, you felt you could
2
diffuse the situation better by not having them out
3
there?
4
A.
Yes.
5
Q.
But you brought submachine guns and other guns.
6
Is that going to diffuse somebody that's got a gun by
7
bringing a submachine gun, and say, okay, you got your
8
firearm, I got mine; is that going to diffuse the
9
situation?
10
11
A.
That is there for our safety trying to make
contact at the front door.
12
Q.
I appreciate your safety.
I'm glad you're here.
13
My question is, is that going to diffuse the situation to
14
have people with submachine guns and other fire power
15
when there's a guy you think is in there that's got a
16
gun?
Is that going to diffuse the situation?
17
A.
That is for officer safety.
18
Q.
So that escalates the situation, doesn't it?
19
A.
I don't believe so, no.
20
Q.
Okay.
21
Now, attorney Vergos brought out -- could
we go to page 4 of the Crisis Management, please?
22
A.
(Witness complying.)
23
Q.
Ms. Vergos brought out questions about were you
24
there in a variety of capacities -- on her
25
cross-examination, I believe you said you were there in a
309
1
variety of capacities; right?
2
A.
Yes.
3
Q.
Did I understand right that you told her you
4
weren't really in the crisis management mode of your
5
operations until after he shot the two shots?
6
A.
Yes.
I wanted to make contact with him at first
7
to see if we could make contact before we have to call
8
out.
9
He wasn't answering the telephone.
Q.
And under general order 46.2, Subsection 4,
10
Crisis Management Team, Subsection 3, it says one of
11
reasons a Crisis Management Team would be out there is
12
"suicide attempts," correct?
13
A.
14
15
MS. VERGOS:
THE COURT:
20
21
22
All right.
Well, I assume it's a
foundation question, so I'll overrule it for now.
18
19
I'm going to object, asked and
answered.
16
17
Yes.
MR. SHAHAN:
Yes.
BY MR. SHAHAN:
Q.
And your initial call was that somebody had a
gun to their head; right?
A.
Initial call, I believe was domestic, and then
23
when I arrived, I was told subject was inside the bedroom
24
with gun to his head.
25
Q.
So by the time you arrived, you knew there was
310
1
somebody with a gun to their head allegedly?
2
A.
That's what I was told.
3
Q.
Okay.
4
And does that sound reasonable that might
be a suicide attempt?
5
A.
Yes.
6
Q.
Okay.
Are you still holding to your answers to
7
Ms. Vergos' questions that you weren't in a crisis mode
8
that boom, boom, he shot two shots?
9
A.
There's a way they call out the unit, and it
10
wasn't called out yet.
11
commanders go through before they call out the SWAT Team
12
and the Crisis Management Team.
13
Q.
There's procedures that shift
I believe on cross-examination, Ms. Vergos
14
established that in this general order here, there's
15
nothing here that says you have to a psychiatrist or
16
psychologist or a psychiatric nurse; right?
17
A.
That's right.
18
Q.
Based upon your experience in law enforcement
19
all these years, would -- that might be helpful in a
20
suicide attempt situation?
21
MS. VERGOS:
22
THE COURT:
23
Objection.
Overruled.
BY MR. SHSHAN:
24
Q.
You may answer.
25
A.
Sometimes it takes doctors years of examining
311
1
people to decide what they have.
2
MR. SHAHAN:
3
THE COURT:
4
All right, may this witness be
excused, or would you like him on standby?
5
6
No further questions.
MS. VERGOS:
I would ask that he remain on
standby, Judge.
7
THE COURT:
Thank you, sir.
8
- - -
9
(Witness excused.)
10
- - -
11
12
THE COURT:
State, please call your next
witness.
13
MS. VERGOS:
Deputy Robert Mitchell, Judge.
14
- - -
15
16
D E P U T Y
R O B E R T
after being first duly sworn, testified as follows:
17
- - -
18
THE COURT:
19
THE WITNESS:
20
THE COURT:
21
MS. VERGOS:
Good afternoon, sir.
Good afternoon, Judge.
State, you may proceed.
22
25
Thank you, Judge.
- - -
23
24
M I T C H E L L,
D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
Q.
Good afternoon, sir.
Could you please look at
312
1
the jury and introduce yourself?
2
A.
My name is Robert Mitchell.
3
Q.
How are you employed?
4
A.
I work for sheriff's office.
5
Q.
In what capacity?
6
A.
I'm a Corporal on the road.
7
Q.
How long have you been with the sheriff's
8
office?
9
A.
Fourteen years.
10
Q.
And were you with the sheriff's office back in
11
December of 2004?
12
A.
Yes, I was.
13
Q.
Were you on road patrol during that time as
14
well?
15
A.
Yes, my regular patrol duties.
16
Q.
Were you part of any specific unit during that
17
time?
18
A.
No.
19
Q.
Now, back on September 5th of 2004, did you end
20
up responding to a Holiday address in the early morning
21
hours?
22
A.
23
Drive.
24
Q.
What was the reason for that?
25
A.
I wasn't the supervisor, but I'm corporal so I
I responded back up to that address on Honor
313
1
2
3
4
went to help out, and they also needed extra units.
Q.
Was that regarding a specific incident, or
specific event?
A.
It was with regard to a person with a gun
5
pointed his head, and a female that ran out of the house.
6
I met with the responding deputy.
7
Q.
Deputy Curtis?
8
A.
The original deputy, yes, Deputy Curtis.
9
Q.
Did anyone respond with you?
10
A.
No, I was in the car, and I just went on my own.
11
Q.
Do you remember what number you were as far as a
12
13
14
response?
A.
I believe, normally, I'm -- since I'm a
corporal, I'm 2 Baker X-ray.
15
Q.
I'm sorry, I must have -- I didn't make myself
16
clear.
17
sequence of people responding?
Do you remember what number you were as far as
18
A.
No, I have no idea.
19
Q.
Okay.
20
21
And so you get there.
Do you recall who
else was at the scene?
A.
When I got there, Deputy Curtis was there,
22
Lieutenant Kling was there, and some other deputies that
23
I don't remember.
24
Q.
Okay.
25
A.
Yes.
Ultimately, did Sergeant McVey arrive?
314
1
Q.
And did Deputy Mitchell arrive?
2
A.
That's me.
3
Q.
I'm sorry.
4
A.
Yes, I did.
5
Q.
Glad to see you.
6
Did Deputy Barrington arrive?
7
A.
Yes.
8
Q.
And what about Meizo?
9
A.
Meizo, yes.
10
Q.
Okay.
And after everybody did get there -- by
11
the way, now, by the time everybody is there and those
12
four people are present, how many cars are we talking
13
about?
14
A.
We were all parked at the end, the north end of
15
the Street, and we had one blocking traffic; there was
16
probably four other cars at the end of the street on the
17
north end where I was at.
18
Q.
Okay.
So once everybody arrived, do you
19
actuality ultimately make a decision to approach the
20
front door of the residence?
21
A.
That's correct.
22
Q.
And were you part of the four that approached
23
the front door of the residence?
24
A.
I was one of them, yes.
25
Q.
And when you did approach the front door, can
315
1
you tell us whether the door was opened or closed?
2
A.
The front door, interior door was open.
3
Q.
Was there a screen door as well?
4
A.
Screen door was closed, and one of our deputies
5
propped it open with a lawn chair.
6
Q.
Was that Deputy Barrington?
7
A.
Yes.
8
Q.
And prior to Deputy Barrington propping it open
9
with a lawn chair, did Sergeant McVey knock-and-announce?
10
A.
Yes.
11
Q.
That's, basically, he pounded on the door and
12
announced his presence?
13
A.
Correct.
14
Q.
Do you recall what he said?
15
A.
He said it's the sheriff's office, and said
--
16
basic word was "Joe, come on out.
We'd like to talk to
17
you; you're not in any trouble; we just want to talk to
18
you," and he kept repeating stuff like that.
19
Q.
So did he use the Defendant's name?
20
A.
Yes.
21
Q.
And he identified himself as a sheriff's
22
officer?
23
A.
Yes.
24
Q.
Do your recall whether the Defendant responded?
25
A.
One time I heard him yell to get off the
316
1
2
3
property.
Q.
And did Sergeant McVey continue his
conversation?
4
A.
Yes.
5
Q.
And did the Defendant respond again?
6
A.
I didn't hear any other conversation, because I
7
left the group.
8
Q.
You left the group.
Where did you go?
9
A.
I went around the van that was parked, used it
10
for cover, and got up on to the porch on the south side,
11
and trying to look through the windows, or the end of the
12
blinds, because you can usually see through at the
13
corners.
14
Q.
It doesn't fit through perfectly -Okay.
Deputy -- or using this photograph that's
15
been marked, that's been introduced into evidence as
16
State's Exhibit 5, can you just show the jury where,
17
approximately, he moved to?
18
19
A.
To where this stain is right here on the left
side of the window by the shutter.
20
Q.
And where was everybody else?
21
A.
Everybody else was coming up to where this open
22
dirt mark is, there was like a van, and they were going
23
up along side the van right up there to the front porch
24
of the area where the cemnt starts going to the grass.
25
Q.
Okay.
And was Deputy Barrington, he was the one
317
1
you said open the door?
2
A.
He's the one that propped it open, yes.
3
Q.
Did you ultimately end up going inside the
4
residence after everything was secured?
5
A.
Yes.
6
Q.
And did you ultimately end up observing the
7
bullet wound, or the bullet holes inside the residence?
8
A.
Yes, I did.
9
Q.
Showing us from the outside of the residence,
10
did you see the one going through the bookcase?
11
A.
Yes, I did.
12
Q.
And where, approximately, would it have been on
13
14
15
from the inside (inaudible) to the outside?
A.
Approximately, it would have been right about
where the edge of the shutter is.
16
Q.
On the left side of the window?
17
A.
Approximately, maybe eight inches to twelve
18
inches from the corner of the window.
19
Q.
How away from that were you?
20
A.
I was standing right there at the end of the
21
22
shutter.
Q.
So you -- let's go back a little.
You said that
23
you went to the front with everybody else, and then
24
ultimately you left and went by the shutter area that you
25
just pointed out for the jury; right?
318
1
A.
Correct.
2
Q.
And while you were in there, is Sergeant McVey
3
4
5
still talking to the person inside?
A.
He continued on with trying to make contact with
him, and --
6
Q.
Was he speaking -- I'm sorry?
7
A.
And he tried to get him to come out.
8
Q.
Was he speaking in a low voice?
9
A.
No, he was yelling.
10
Q.
He was yelling?
11
A.
He was yelling where everybody could hear.
12
Q.
Okay.
13
14
window.
A.
And you ultimately ended up moving by the
Did something happen at that point?
At that point, I started, since I couldn't see
15
anything through the blinds as far as hunting for the
16
person, the only thing I could see was mostly the living
17
room.
18
window, and as I was coming off of the porch, I heard a
19
shot.
20
21
Q.
I didn't see the person at all.
So I left the
And is that the shot that hit right by where you
were standing?
22
A.
That's the one that I would have been hit right
23
there.
24
Q.
Once you heard that shot, what did you think?
25
A.
I continued on to --
319
1
Q.
Well, before you took cover behind the van --
2
A.
Ran behind the van.
3
Q.
Why?
4
A.
Because I didn't want to get shot.
5
Q.
Were you afraid you were going to?
6
A.
Yes, I was already shot once.
7
Q.
Were you scared at this point?
8
A.
Yes.
9
Q.
Were you concerned for your safety?
10
A.
Yes, I was.
That's why I used the van for
11
cover, and went around to the back, and got back with the
12
group.
13
Q.
And were you armed?
14
A.
Yes, I was armed with my service revolver, a
15
40-caliber Glock.
16
Q.
Just what you carry on your belt?
17
A.
Yes.
18
Q.
Did you have it drawn?
19
A.
Yes, I did.
20
Q.
From the time you approached or --
21
A.
From the time we approached the door.
22
Q.
And you indicated that you ran behind the van
23
24
25
and took cover?
A.
Used it for cover, and then I come behind the
van, and then come up to the back of the wheel where it
320
1
was about the last person was, which was me, and that's
2
where I took my original position.
3
Q.
At what point -- was there another shot?
4
A.
At that time I started to squat down behind the
5
rest of the deputies that were thereand at time I heard
6
the shot and seen the flash.
7
Q.
The muzzle flash?
8
A.
Yes.
9
Q.
Did you see where it was coming from?
10
A.
Straight in front of me.
11
Q.
Straight in front of you?
12
A.
Uh-huh.
13
Q.
Deputy, once the second shot went out, is it
14
safe to assume that you were concerned?
15
A.
Yes.
16
Q.
Is it safe to assume that you were afraid?
17
A.
Yes.
18
Q.
And what happened at that point?
19
A.
When I come back from behind the van, I just got
20
into the kneeling position, and that's when the shot went
21
out, and Sergeant McVey was already saying to move back.
22
Before the shot, we were starting to move back, and then
23
when the shot went out, we exited kind of quickly, and
24
all took cover.
25
Q.
Okay.
So somebody called SWAT at that point?
321
1
A.
SWAT was called after we went back for cover,
2
and for me, that was at the end of the street where I
3
originaly started at the north end.
4
5
6
7
Q.
And did you participate in the tactical
decisions made by SWAT?
A.
We talked about what occurred, and we all talked
for a second, and SWAT was called out.
8
Q.
I'm sorry?
9
A.
We talked for a second what had happened, and
10
11
12
13
then SWAT was called out immediately.
Q.
Did you participate in the things that occurred
with the SWAT team after that?
A.
No, I did not.
I was stationed at the north end
14
and for the people that were responding on call for the
15
SWAT Team to advise them where to go.
16
17
Q.
And did you make contact with the Defendant
after he was taken into custody?
18
A.
No, I didn't make any contact.
19
Q.
After the second shot was fired, did the door --
20
21
22
the front door stay open?
A.
As far as I know, it stayed open, but I wasn't
really looking back, I was just more or less --
23
Q.
Getting out of there?
24
A.
-- moving for cover, and I couldn't tell you if
25
that door stayed open at that time or not.
322
1
Q.
Okay.
Thank you.
2
MS. VERGOS:
3
THE COURT:
4
MR. SHAHAN:
I have nothing else.
Cross-examine.
Thank you, Your Honor.
5
- - -
6
7
C R O S S
E X A M I N A T I O N
BY MR. SHAHAN:
8
Q.
Good afternoon, sir.
9
A.
Good afternoon.
10
Q.
Now, Officer Mitchell, when your first went out
11
12
13
14
15
there, Officer Barrington was out there too; right?
A.
Officer Barrington, I believe was responding, or
already there.
Q.
I'm not for sure.
Now, your understanding, you're listed as one of
the victims in this case; correct?
16
A.
That's correct.
17
Q.
And Officer Barrington is also listed as a
18
victim in this case; correct?
19
A.
Correct.
20
Q.
So Officer Barrington must have been there;
21
right?
22
A.
23
24
25
He was there, but he was -- when you asked the
question was, I believe is when I arrived.
Q.
All right.
Okay.
I'll ask you were the
question when you heard two shots, was Officer Barrington
323
1
there?
2
A.
Yes, he was.
3
Q.
He was there with a submachine gun?
4
A.
He had some type of automatic weapon.
5
I have no
idea what it was called.
6
Q.
It didn't look like a submachine gun to you?
7
A.
I said it was an automatic weapon.
8
know the name of the weapon that he had.
9
member of the SWAT Team.
I do not
I'm not a
10
Q.
Well, was it like a pistol size, or bigger?
11
A.
No, it was a rifle type automatic weapon
12
Q.
And he's part of the SWAT Team?
13
A.
Right.
14
Q.
When you say the SWAT Team was called out, part
15
16
of the SWAT team was already there, weren't they?
A.
That's because SWAT members or made up from the
17
department working various shifts, and various different
18
agencies, detectives and road units, and special
19
operation units.
20
Q.
I appreciate that.
And so before the two shots,
21
one SWAT member was there for sure, Barrington, and
22
others came later; correct?
23
A.
Right.
24
Q.
And both in your report and today, you,
25
basically, said the only thing my client said was, "Get
324
1
out of my house," right?
2
3
A.
That's what I heard, yes.
Not get out of the
house, get off the property.
4
Q.
Okay.
Get off the property.
Thank you.
And he
5
never said the word "sheriff's office" or "police,"
6
right?
7
A.
Sergeant McVey or the Defendant?
8
Q.
No, the Defendant.
9
A.
I never heard him say anything like that.
10
Q.
So he just said get off the property, he didn't
11
say, "police, get off the property; "he didn't say,
12
"sheriff, get off the property?"
13
A.
No, I never heard him say that.
14
Q.
You never heard him say, "die, die, die," did
16
A.
I heard that was said, but I didn't hear that.
17
Q.
Someone else told you it was said, but you
15
18
19
20
21
you?
didn't hear it?
A.
I did not hear it, because I was up
concentrating on what I was doing at the window.
Q.
When you were at the window to your right,
22
crouched down under the door was Officer Barrington,
23
right?
24
A.
25
Crouched down in front of the door at the edge
of the cement at the grass, yes.
325
1
Q.
How far was Barrington from you?
2
A.
Probably fifteen feet.
3
Q.
About as far as we are now, or closer?
4
A.
A little bit farther than we are now.
5
Q.
How about now?
6
A.
Close to it, yes.
7
Q.
Now, he said that my client said, "die, die,
8
die," but you didn't hear that; right?
9
A.
No.
10
Q.
You didn't hear one die, did you?
11
A.
I didn't hear anything.
12
Q.
Thank you, sir.
13
14
15
16
17
And I think you described that you saw the
bullet holes inside the house; correct?
A.
It's in my report that I'm one of the deputies
that found it.
Q.
Thank you, sir.
And besides the bullet hole in
18
the wall, the one bullet had first gone through the
19
couch, correct, that was the one by the front door?
20
A.
Yes.
21
Q.
And it's about knee high; right?
22
A.
About eighteen inches off the ground or so, yes.
23
Q.
Would that be knee high?
24
A.
Whatever eighteen inches would be, yes.
25
Correct.
326
1
Q.
It definitely wouldn't be waist high, would it?
2
A.
No.
3
Q.
And then the other bullet, how high was that?
4
A.
The one that was over where I was standing?
5
Q.
Yes, sir.
6
A.
It was, approximately, on the second shelf down.
7
Q.
Okay.
8
A.
That was probably about three feet up in the air
9
from the floor.
10
Q.
So thirty-six inches?
11
A.
Approximately, three feet, yes.
12
Q.
Okay.
13
And that bullet had first went through a
book case before it hit the wall; right?
14
A.
It went through one of the walls of the book
15
case, yes.
16
Q.
And since you had the opportunity to look for
17
the bullets, did you also see how many bullets had been
18
used in the chamber?
19
A.
No, because I wasn't in that room.
20
Q.
Okay.
21
Thank you.
Now, when Officer McVey was attempting to talk
22
to the person inside the house, he wasn't using any
23
amplification; correct?
24
A.
What do you mean?
25
Q.
He didn't use a bullhorn, did he?
327
1
2
3
4
5
A.
No, he was just using his voice at the time when
we were at the front door.
Q.
Okay.
And he didn't use a publish address
system, did he?
A.
Yes, he did before he went down there.
6
I was talking to him over the public address system on
7
our speaker in our cruiser.
8
Q.
And where was your cruiser?
9
A.
The cruiser they were using at that time was in
10
11
12
front of the house.
Q.
That was Deputy Curtis.
So you're saying that you saw McVey talk on a
public address system that was in Curtis' car?
13
A.
That was on police radio, that type of car.
14
Q.
And this police car was in front of the house?
15
A.
That's the only one that was there was the
16
original officer.
17
Q.
And you were present at the time?
18
A.
Yes, I was.
19
Q.
Did you bring your report with you today, sir?
20
A.
My supplement, yes.
21
Q.
And when we say supplement, in Pasco County, the
22
main officer does the original report and every other
23
officer has a report they call a supplement; correct?
24
25
A.
Yes, sir.
MR. SHAHAN:
And may I approach the witness,
328
1
Your Honor?
2
3
4
THE COURT:
Yes.
BY MR. SHAHAN:
Q.
I just want to make sure we're looking at the
5
same thing.
I have here a typed report that says
6
supplemental report at the top left.
7
A.
Same one.
8
Q.
It's the same one.
9
A.
Okay.
10
Q.
And is it, basically, a one-page report?
11
A.
Yes, it is.
12
Q.
Okay.
13
And this was made, it says on the bottom
right, report date 9/21/04.
14
A.
That's correct.
15
Q.
Okay.
16
A.
Correct.
17
Q.
So you've had time to go through the event,
18
Now, that's what 16 days after the event?
think about it, and do this report; correct?
19
A.
Correct.
20
Q.
And did you put in the report what you thought
21
was important as to what you saw and heard?
22
A.
Yes, I did.
23
Q.
Thank you.
24
25
And in this report, you said we
could not see Joseph; correct?
A.
I could not see Joseph, no.
329
1
2
Q.
And did you say you could not see Joseph due to
him being in the bedroom, and the layout of the house?
3
A.
Correct.
4
Q.
And then when you went onto the porch area near
5
the front window, you looked through a crack in the edge
6
of the blind, and you couldn't see Joseph then either,
7
right?
8
A.
No, I could not.
9
Q.
And this is right before the shots; right?
10
A.
Yes.
11
Q.
Did you see a muzzle blast?
12
A.
The first shot?
13
Q.
Yes, sir.
14
A.
No, I told you I was leaving the porch area when
15
16
17
I heard the shot behind me.
Q.
Okay.
By the second shot, you could see a
muzzle blast; right?
18
A.
That's correct.
19
Q.
Is that similar to a camera flash kind of thing?
20
A.
Bright flash, right.
21
Q.
Okay.
22
And could you see a person on the other
side of that flash?
23
A.
No, I could not.
24
Q.
And presumably the person on the other side of
25
the flash couldn't see you either; right?
330
1
A.
Not necessarily.
2
Q.
Okay.
3
A.
If he was in the hallway, I wouldn't have been
4
5
able to see him.
Q.
Now, nowhere in the four corners of this one
6
page report do you talk about Mr. McVey talking honor a
7
public address system; correct?
8
9
10
11
A.
Because I wasn't the one talking on a public
address system.
report.
Q.
That would be in Sergeant McVey's
This report is from what I did.
All right.
Are you, basically, advising us that
12
the reason why you think there's a public address system
13
used by McVey because he had it in his report?
14
A.
No, I was there.
15
Q.
Okay.
16
A.
I heard him use it, talk over police radio, what
17
the P.A. is hooked to, trying to tell the subject to come
18
on outside.
19
20
Q.
And if he's using a P.A. system of a motor
vehicle, then he's out in the street; right?
21
A.
He's behind a car, street.
22
Q.
He's out in the street behind your car.
23
distant are those lots?
24
street from your personal observation?
25
A.
And how
How deep are those lots on that
I couldn't give you the exact amount how far
331
1
that would be, but it was probably maybe a distance maybe
2
from here to back there where the doors are.
3
4
Q.
So, basically, you're saying McVey was using the
public address system from back here at this door?
5
A.
Yes.
6
Q.
And you believe he was, because that's what your
7
recollection is?
8
A.
I heard it, yes.
9
Q.
And you didn't put it in your report because you
10
believe he should have it in his report if it happend;
11
right?
12
A.
13
Because I wasn't the one using the public
address system.
That's not my report.
14
MR. SHAHAN:
15
THE COURT:
16
MS. VERGOS:
17
THE COURT:
18
Redirect?
excused and placed on standby?
MS. VERGOS:
20
THE COURT:
21
THE WITNESS:
22
THE COURT:
24
25
No.
All right, may this witness be
19
23
Thank you, sir.
Yes.
Sir, please remain on standby.
Thank you, Judge.
Thank you.
- - -
(Witness excused.)
- - -
332
1
2
THE COURT:
State, please call your next
witness.
3
MS. VERGOS:
Christopher Meizo.
4
- - -
5
C H R I S T O P H E R
6
first duly sworn, testified as follows:
7
THE COURT:
9
THE WITNESS:
10
THE COURT:
11
MS. VERGOS:
Good afternoon, sir.
Good afternoon.
State, you may proceed.
Thank you, Judge.
12
- - -
13
15
16
after being
- - -
8
14
M E I Z O,
D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
Q.
Good afternoon, sir.
Could you please introduce
yourself to the jury?
17
A.
Christopher Daniel Meizo.
18
Q.
And Mr. Meizo, are you currently employed with
19
the Pasco County Sheriff's Office?
20
A.
No.
21
Q.
Were you employed with the Pasco County
22
Sheriff's Office back in September 2004?
23
A.
Yes.
24
Q.
What capacity?
25
A.
I was a deputy sheriff, worked on Road Patrol.
333
1
Q.
Road Patrol?
2
A.
Yes.
3
Q.
How long were you with the Pasco County
4
Sheriff's Office?
5
A.
Since 2004.
6
Q.
I'm sorry, is that when you left of the county?
7
A.
I'm sorry, since 2000.
8
Q.
Okay.
9
A.
Sorry.
10
Q.
Okay.
11
I left in 2004.
Thank you.
Bringing you back to 2004, September,
September 5th, were your working that night?
12
A.
Yes.
13
Q.
In the early morning hours of September 5th,
14
2004, did you respond to the Holiday address?
15
A.
Yes.
16
Q.
And when you did respond to that address, did
17
you make contact with several other deputies that were
18
there?.
19
A.
Yes.
20
Q.
Did you ultimately get briefed on the situation?
21
A.
Yes.
22
Q.
And did you learn there was a subject inside the
23
residence that was holding a firearm to his head?
24
A.
Yes.
25
Q.
At that point, were up one of the deputies that
334
1
approached the front door of the residence?
2
A.
Yes.
3
Q.
Can you take us through that?
4
A.
We were advised -- do you want me to walk you
5
6
through the approach or -Q.
I guess from the time that you were told about
7
the fact that there was somebody inside with a gun to
8
their head.
9
A.
Okay.
After briefing with the lieutenant, my
10
sergeant and my corporal, we discussed making verbal and
11
physical contact with the subject in the residence
12
because they were not able to make contact via the phone.
13
So we decided to go to the residence and attempted to
14
make contact with him that way.
15
Q.
I'm sorry.
Go ahead.
16
A.
Corporal Barrington brought along an M-5, a long
17
gun rifle for protection.
He was going to take point
18
just in case there were any situations with a firearm.
19
Q.
What does it mean to "take point?"
20
A.
He was the first person in line going in the
21
direction that we were going.
22
Q.
I understand.
Go ahead.
23
A.
As we approached the residence, you could see
24
into the residence.
The front door was wide open.
I
25
believe the screen door, it was actually closed, but you
335
1
could see into the residence.
2
the front door where we staged outside the residence to
3
the south side using part of the doorjamb as cover to
4
protect ourselves.
5
6
Q.
We walked cautiously to
Did you situate yourselves right outside that
door frame area?
7
A.
Yes, outside the residence, correct.
8
Q.
Well, were you present when Sergeant McVey did
9
the knock and announce?
10
A.
Yes.
11
Q.
And can you tell us how that went?
12
A.
Sergeant McVey knocked, I believe with his
13
flashlight on the screen door, announcing himself as
14
Sergeant McVey, Pasco County Sheriff's Office.
15
Q.
16
using now?
17
A.
18
19
20
21
22
23
24
25
Was he doing it in the same tone of voice you're
No, using a loud voice, trying to make contact
with the subject, and announcing himself.
Q.
And once he announced himself, did he say
anything else?
A.
I believe he mentioned it, and identified
himself several times.
Q.
And when he initially did that, did the person
inside the residence respond to him?
A.
The subject -- may I refer to my notes?
336
1
2
Q.
If you need to refer to your notes, you can.
Just let us know when you're done with that.
3
A.
Okay.
4
Q.
Deputy --
5
A.
I'm sorry.
6
Q.
Once you're done looking at your report, is that
7
The subject inside the residence --
a copy of your report?
8
A.
Yes, it is.
9
Q.
And is that the copy of the report that you
10
authored back on September 9th of 2004?
11
A.
Yes.
12
Q.
So four days after this incident occurred?
13
A.
Hold on one second.
14
Q.
Now, assuming that the events are clear in your
15
Yes.
mind at that time than they are today --
16
A.
Correct.
17
Q.
-- and is it helpful to use your report to
18
refresh your recollection regarding some of those events?
19
A.
Yes.
20
Q.
And you may do so.
21
Just let us know when you're
done so we can continue, okay?
22
A.
Okay.
23
Q.
Did you do that already?
24
A.
Yes.
25
Q.
Now, you were, I believe responding to my
337
1
question regarding whether the subject inside the
2
residence replied to Sergeant McVey.
3
A.
Yes.
He responded, "Go away."
Deputy, or
4
Sergeant McVey again identified himself trying to invoke
5
a conversation with him to check on his status and his
6
safety.
7
times, go away, go away.
8
Sergeant McVey again tried to check on his status, see if
9
he would come visibly to see him to check on his safety,
10
The subject inside the residence stated several
At that point, Deputy or
he seemed to become more and more agitated.
11
Q.
Could you hear that?
12
A.
Yes, you could tell in his tone of voice,
13
stating go away, go away, or die.
14
was becoming agitated.
You could tell that he
15
Q.
Were you getting nervous?
16
A.
Yes.
17
Q.
And you were aware of that he had a .357 Magnum
18
in there; right?
19
A.
That's what was reported.
20
Q.
And was that making you cautious or concerned?
21
A.
Yes, absolutely.
22
Q.
So what happened?
While this exchange is
23
happening, is the person inside the residence responding
24
to Sergeant McVey, or is he talking over him, or how is
25
that going?
338
1
A.
I believe he was -- he was stating --
2
responding.
They weren't talking over each other, but he
3
was responding, stating go away, go away, die.
4
Q.
Okay.
So what happens after that?
5
A.
As I said, he -- from the tone of voice, he
6
became more agitated, kept repeat going away or die, go
7
away or die.
8
clear, more distinct, indicating that he was stepping
9
further out of the location he was, closer to our
The sound of his voice to me became more
10
location.
11
sound, which I identified as a firearm discharging.
12
13
14
15
16
Q.
And then shortly afterward, I heard a popping
And that firearm discharging, did you see the
muzzle flash as well?
A.
I don't believe I seen a muzzle flash on that
particular shot.
Q.
On that firearm, on that shot, excuse me.
When
17
that shot first got out, when that shot first fired, what
18
did you think?
19
A.
At first, it took me a second to register what
20
had just happened, and then at that point, we just
21
decided to back out for safety.
22
Q.
Were you concerned about your safety?
23
A.
Absolutely.
24
Q.
Were you concerned about the safety of the
25
other people you were there with?
339
1
A.
Yes.
2
Q.
Did you want to go home that night?.
3
A.
I wanted to get out of there right now.
4
Q.
Okay.
5
A.
Yes.
6
Q.
What then what happened?
7
A.
Very shortly after the first shot, we began
So you started backing up?
8
backing out, we heard a second shot.
9
when I saw the muzzle flash.
10
11
Q.
At that point is
The second shot is that the one that hit the
wall that you guess were standing by?
12
A.
I don't recall.
13
Q.
Okay.
14
A.
We retreat to safety behind the vehicle that was
So then what happens?
15
parked in front of the residence, the police cruiser,
16
where Lieutenant Kling decided to make a SWAT call out
17
and activate the Crisis Management Team and the SWAT
18
team.
19
Q.
So is that the activating call, if you will?
20
A.
At that point, that's when the lieutenant made
21
22
23
the decision to activate those responding units.
Q.
Now, were there members of the SWAT and Crisis
Management Team actually already present?
24
A.
Yes.
25
Q.
Were they present and responding to an
340
1
activating call for those teams, or were they present for
2
other reasons?
3
4
5
6
A.
They were presently responding to that call
because they were working on my squad that day.
Q.
So they were responding to the same squad that
you were working with?
7
A.
Yes.
8
Q.
Is that the Crisis Management Unit?
9
A.
Yes.
10
Q.
So the activated call for the SWAT Team and
11
Crisis Management with Lieutenant Kling came after the
12
first, after the gun fired?
13
A.
Yes.
14
Q.
At that point, does anybody attempt to make
15
16
contact with the Defendant again?
A.
The Crisis Management Team, when they were
17
there, again, I believe tried to make contact via the
18
P.A. system, but I'm unaware if they were making any
19
contact between when they retreated and when the Crisis
20
Management Team arrived.
21
Q.
And the P.A. system that was being used, is that
22
the P.A. system that was in Deputy -- what P.A. system
23
was being used?.
24
25
A,
The P.A. system that was in the cruiser that was
parked directly in front of the vehicle.
341
1
2
Q.
That vehicle was parked in front of the house,
or one of the ones that was parked further down?
3
A.
In front of the house.
4
Q.
Now, once SWAT and Crisis Managemnt arrived, did
5
you participate in that process with the SWAT Team Unit?
6
A.
Yes.
7
Q.
You were?
8
So you were one of the SWAT members
that was present?.
9
A.
Yes.
10
Q.
So you were one of the SWAT members that was
11
12
present during the initial shoot-out, if you will?
A.
I am a SWAT member; I was a SWAT member at the
13
time.
I was in there when the shots were -- I was there
14
in the capacity as a road deputy who just happened to be
15
a SWAT member.
16
Q.
Okay.
17
A.
After the shots had been fired, then I joined
18
the team; that was in a SWAT capacity.
19
Q.
Is there a difference?
20
A.
I would say, yes.
21
Q.
Can you tell us about it?
22
23
What's the
difference?
A.
As a responding deputy, I'm working with my
24
sergeant, working with the lieutenant; at this point,
25
just attempting to make contact with the subject for him
342
1
to check the safety.
As a squat evolution, you're going
2
more into no harms way; it's a different chain of
3
command, different procedures.
4
Q.
Different weaponry?
5
A.
Yes.
6
Q.
Different armor?
7
A.
Yes.
8
Q.
Different body armor?
9
A.
Yes.
10
Q.
Different --
11
A.
Different tactics.
12
Q.
-- tactics, devices, everything?
13
A.
Yes.
14
Q.
Okay.
When you first arrived at the residence
15
and first approached the door of that residence, what
16
kind of weapon were you using?
17
A.
A handgun, my service Glock.
18
Q.
Was it activated?
19
using?
20
A.
My MP-5.
21
Q.
Totally different weapons?
22
A.
Yes.
23
Q.
Much bigger weapon?
24
A.
Yes.
25
Q.
Okay.
What kind of weapon were you
So you take position then where when SWAT
343
1
is initiated?
2
A.
At the southeast corner of the residence.
3
Q.
Where is that?
4
A.
I believe it would be, from my recollection of
5
to the photo, right near the driveway by the vehicle that
6
was parked in the driveway.
7
Q.
And what is your duty at that point?
8
A.
To take a perimeter location just to insure no
9
one comes into or out of the residence; to collect any
10
kind of intelligence, any kind of movement inside the
11
residence.
12
Q.
So you're not with the entry team?
13
A.
At that time, no.
14
Q.
Did you ultimately become part of the entry
15
team?
16
A.
Yes.
17
Q.
And was that as a directive of somebody?
18
A.
I don't recall.
19
Q.
The entry team, can you tell us about that?
20
A.
When entry was made got residence, I went and I
21
22
checked the living room.
Q.
May I refer to my notes?
Yes, but what I was asking is before that,
23
before you do that, I guess inside SWAT you had a
24
designated different teams; is that safe to say?
25
A.
There's different job assignments for members.
344
1
Q.
So there's the perimeter people?
2
A.
Correct.
3
Q.
And you were part of the perimeter at one point;
4
correct?
5
A.
Yes.
6
Q.
And those are just the people who end up holding
7
posts around the instant location?
8
A.
Yes, sir.
9
Q.
And then there's the entry team; right?
10
A.
Yes.
11
Q.
And are they the people that enter the location
12
Correct.
at some point?
13
A.
Yes.
14
Q.
Okay. And then that's the team that you
15
ultimately became aware of, is the entry unit?
16
A.
Yes.
17
Q.
Okay.
18
19
20
Do you need to refer to your notes or
something you indicated?
A.
Just to see which rooms I actually searched
inside the residence.
21
Q.
How do you make entry?
22
A.
After the entry is made, again, the front door
23
24
25
is open -- front door or screen door was propped open.
Q.
Do you know if that door was ultimately closed
by anybody, or anything after the shots rang out?
345
1
2
A.
door was shut; by what means, I'm unaware.
3
4
Actually, I believe after we had backed out, the
Q.
Do you know whether a battery ram was used to
open the door ultimately?
5
A.
I do not recall.
6
Q.
Okay.
7
door then?
8
A.
Correct, I did not open the door.
9
Q.
Okay.
10
Where were you as far as the people who
were part of that Entry Team?
11
12
You weren't the person that opened the
A.
Toward the end of the line.
I had filed in
initial entry, after the initial entry had been made.
13
Q.
Once you went into the residence, what did do
14
you?
If you need to, you may refer to your report.
15
let us know when you're done.
Just
16
A.
Okay.
17
Q.
Where did you go?
18
A.
I searched the living room, the bathroom, and
19
the northeast bedroom.
20
Q.
How many bedrooms were there?
21
A.
I believe there was two.
22
Q.
Two bedrooms?
23
A.
I'm not positive.
24
Q.
Okay.
25
Defendant in?
I believe there was two.
Which bedroom, to your knowledge, was the
346
1
A.
I believe the northwest.
2
Q.
So you did not search that bedroom?
3
A.
No.
4
Q.
You said the living room, the hallway --
5
A.
The bathroom, the kitchen.
6
7
8
9
10
11
I'm sorry, the
bathroom, living room, and the northeast bedroom.
Q.
I understand.
Did you ultimately end up
observing the bullet holes in the wall?
A.
door.
Q.
I observed the bullet hole nearest the front
I did not observe the one, the second bullet hole.
And once you made entry, were you part of the
12
team -- did you ultimately enter the bedroom where the
13
Defendant was, and take him into custody or anticipated
14
taking him into custody --
15
A.
No.
16
Q.
-- a securing the firearm?
17
A.
No.
18
Q.
Did you do anything regarding that situation, or
19
clearing that situation?
20
A.
No.
21
Q.
Did you, basically, scan the rest of the house
22
to make sure nobody else was in the house?
23
A.
Correct.
24
Q.
And there wasn't anybody else in the house?
25
A.
No.
347
1
2
Q.
Did you make contact with the Defendant at any
time?
3
A.
Not that I recall.
4
Q.
Did you do anything else as a result of your
5
call that day?
6
A.
Not that I recall.
7
Q.
Okay.
Thank you.
8
MS. VERGOS:
9
THE COURT:
10
MR. SHAHAN:
I have nothing else, Judge.
All right, cross-examination.
Thank you, Your Honor.
11
- - -
12
13
C R O S S
E X A M I N A T I O N
BY MR. SHAHAN:
14
Q.
Good afternoon, sir.
15
A.
Hello.
16
Q.
Officer Meizo, what department are you in now?
17
A.
I'm self-employed.
18
Q.
In police work?
19
A.
No.
20
Q.
When you were out there, Barrington was out
21
there, too?
22
A.
Yes.
23
Q.
Did you say he was on the point?
24
A.
Yes.
25
Q.
That means he was closest to the door, correct?
348
1
A.
2
3
Correct.
MR. SHAHAN:
the
exhibits, Your Honor?
4
THE COURT:
5
MR. SHAHAN:
6
THE COURT:
7
Your Honor, may I approach
Yes.
May I approach the witness?
Yes, sir.
BY MR. SHAHAN:
8
Q.
Does this appear to be the house that you were
10
A.
I believe so.
11
Q.
Okay.
9
12
at?
And I think you said that you believe
that Mr. Daiak was in the northwest bedroom; correct?
13
A.
Correct.
14
Q.
The house faces east; is that right?
15
A.
Yes.
16
Q.
So east, west -- so that would be the back
17
18
bedroom then; right?
A.
It would be the bedroom in this picture, not
19
this bedroom here toward the front of the residence, but
20
toward the back.
21
Q.
22
just said.
23
door, is the front bedroom?
24
25
A.
bedroom.
Okay, I need help with the jurors with what you
This window here that's to the right of the
That's what I believe to be the northeast
349
1
Q.
Okay, the northeast bedroom is here?
2
A.
Yes.
3
Q.
So my client was in the northwest building --
4
bedroom?
5
A.
I believe so.
6
Q.
So, in other words, he's in the back bedroom on
7
the left?
8
A.
No, on the back side of this.
9
Q.
Okay.
10
So the bedrooms are stacked.
the front bedroom, and here's the back bedroom?
11
A.
I believe so.
12
Q.
Okay.
13
And it was kind of gusty and windy that
day, wasn't it?
14
A.
Later on it appeared to be.
15
Q.
Okay.
I wasn't talking about the rain, I was
16
talking wind.
17
particular time you were out there?
Are there winds out there at the
18
A.
At times, possibly.
19
Q.
Okay.
20
turned over that are in the picture?
A.
No, I do not.
22
Q.
Okay.
24
25
I don't recall.
And do you recall how these chairs got
21
23
Like here's
Thank you.
And did you say you had an
MP-5?
A.
When I joined the SWAT Team, I did, but during
the initial contact, I did not.
350
1
Q.
And an MP-5 is a submachine gun?
2
A.
Yes.
3
Q.
So the initial contact, you had what kind of
5
A.
I had a gun, SWAT.
6
Q.
Was it a Glock 9-millimeter?
7
A.
Forty caliber.
8
Q.
Pardon?.
9
A.
Forty caliber.
10
Q.
And after you got into the residence, you
4
gun?
11
observed a bullet hole, I believe you said in your
12
report, in the couch, the left corner of the couch; is
13
that correct?
14
A.
Yes.
15
Q.
Okay.
The State has been kind enough to show me
16
a marked exhibit called State's Exhibit J-4 for
17
identification, which matches the copy, but this is the
18
one I got.
19
that you're talking about?
Does this appear to be the couch bullet hole
20
A.
I believe so.
21
Q.
And then the bullet hole went through the couch
22
and into the wall; right?
23
A.
Yes.
24
Q.
And in observing -- may I just show this to the
25
jury just for a moment, if I may?
351
1
2
THE COURT:
into evidence.
3
4
MR. SHAHAN:
Without objection, I'd like to move
into evidence for the State J-4 for identification.
5
THE COURT:
6
MS. VERGOS:
7
No, because it's not been introduced
Any objection.
I have no objection to it being
introduced into evidence, Judge, but I don't know that --
8
THE COURT:
9
Well, approach the bench.
- - -
10
(Sidebar discussion out of the hearing of the jury.)
11
-- -
12
MS. VERGOS:
I have no objection to Counsel
13
introducing it into evidence, Judge.
14
to him moving it in for the State, and during the State's
15
case in chief.
16
THE COURT:
All right.
But I would object
Well, I think that is
17
actually the proper way to do it, is for you to introduce
18
it during your case in chief.
19
show it to the witness and ask any questions that he may
20
have, and I'll allow you to show it to the jury, and
21
publish it to the jury, and move it into evidence during
22
the case.
But I will allow you to
23
MR. SHAHAN:
Okay.
24
MS. VERGOS:
I can do it.
25
Typically, motions
are usually made so that we can preserve our right, but
352
1
that isn't necessary an issue anymore.
2
problem with him introducing it, but I think the way it
3
was presented, he was going to introduce it for the
4
State, I don't want him to introduce it for the State.
5
THE COURT:
6
MR. SHAHAN:
7
8
9
10
11
All right.
We can use it as demonstrative
evidence at this point.
MS. VERGOS:
We could introduce it as Defense
Exhibit 1.
THE COURT:
You don't have a problem with it
being introduced now?
12
MS. VERGOS:
13
THE COURT:
14
No.
I will allow it to be introduced as
Defense Exhibit 1.
15
MS. VERGOS:
That's fine.
16
MR. SHAHAN:
Okay.
17
18
- - (End of sidebar discussion.)
19
20
21
- - THE COURT:
MS. VERGOS:
23
THE COURT:
25
State, is there any objection to the
introduction of this photograph into evidence?
22
24
So I don't have a
No, Judge.
All right, so it will be admitted as
Defense Exhibit No. 1.
353
1
2
3
4
BY MR. SHAHAN:
Q.
Sir, Defense Exhibit 1 into evidence, do you
recognize that as being the couch with the bullet hole?
A.
I believe it it is.
5
MR. SHAHAN:
6
THE COURT:
May I show it to the jury then?
Yes.
7
- - -
8
(Defense Exhibit 1 published to the jury.)
9
10
11
- - BY MR. SHAHAN:
Q.
And, sir, basically, after you observed this,
12
you also observed that this lined-up bullet hole through
13
the couch then ended up inside this entry wall here;
14
right?
15
A.
It had -- I seen a bullet whole that appeared to
16
be a bullet hole; it would be the east interior wall of
17
the residence, correct.
18
19
Q.
All right.
About the same height as this;
correct?
20
A.
I don't recall.
21
Q.
You don't recall.
Okay.
22
Would you agree the height on this couch, though, looks
23
like about a knee-high height?
24
A.
It's hard to tell without the scale.
25
Q.
Okay.
But it's definitely a little bit above
354
1
the first crease in this couch?
2
A.
Yes.
3
Q.
Okay.
4
5
6
7
8
9
Thank you.
And did you say you saw any other bullet holes
inside the house once your got inside?
A.
Just on the couch and the wall.
I did not see
the second bullet hole.
Q.
Okay.
And at no time did you hear my client say
"police," right, or "sheriff"?
10
A.
I did not hear your client state that, no.
11
Q.
And I believe you said that the first couple of
12
times he said, "go away?"
13
A.
Yes.
14
Q.
And the next time he said "go away or die?"
15
A.
Yes.
16
Q.
And that's even in your report; right?
17
A.
Yes.
18
Q.
And I believe you testified you heard a voice
19
coming from the northwest corner of the residence?
20
A.
Correct.
21
Q.
But you didn't see a person?
22
A.
No.
23
Q.
And when the muzzle flash went off, did you see
24
25
a person then?
A.
No.
355
1
2
3
4
5
6
7
8
9
Q.
And presumably then, the person on the other
side of the muzzle flash didn't see you either; right?
A.
I do not know the vantage point they had; I did
not see them.
Q.
Okay.
And when you saw the muzzle flash, were
you in front of the door?
A.
I was to the south side of the door using the
doorjamb as cover.
Q.
Okay.
The south side of the door.
So you were,
10
as you face it, then you're on the left side of the door;
11
correct?
12
A.
Correct, I was over here allowing a vantage
13
point toward that direction where the voice was coming
14
from.
15
16
17
18
19
Q.
Okay.
So you were, basically, standing in front
of this concrete outside wall?
A.
Yes, to a point where I could still see inside
the residence, but using that as part of my cover.
Q.
Okay.
And did you see the muzzle flash through
20
this art glass on the left, or did you see the muzzle
21
flash to the center of the door?
22
23
24
25
A.
Just from inside the residence, I just seen a
flash of light inside the residence.
Q.
Okay.
And can you describe the size?
big as a pizza, smaller?
Was it as
356
1
A.
I just seen a flash of light.
2
Q.
Did it fill the whole room?
3
A.
I don't recall.
4
Q.
You don't.
5
Did you see any holes in the
bookcase when you were in there?
6
A.
No, I did not.
7
Q.
Now, did I understand you to say that you did
8
see or hear someone using a P.A. system system?
9
A.
Yes.
10
Q.
That was after the first two shots; right?
11
A.
Once the SWAT Team and the Crisis Management
12
Team arrived, I did hear the P.A. System being used.
13
Q.
Right.
14
A.
Correct.
15
Q.
No P.A. System was used at the front door by
16
17
McVey before the shot?
A.
18
19
No, not that I recall.
MR. SHAHAN:
THE COURT:
21
Yes.
- - -
22
(Brief pause.)
23
25
May I have a moment with my client,
Your Honor?
20
24
After the shots?
- - BY MR. SHAHAN:
Q.
Did you ever hear a third gunshot?
357
1
A.
I don't recall.
2
Q.
You don't recall that you heard one, or you
3
4
5
6
7
8
don't recall one way or the other?
A.
either way.
Q.
A.
13
If that's of the date that is stated on there.
MR. SHAHAN:
10
12
But your report was made -- let me see here.
your report was made five days after on 9/9/04; correct?
9
11
I did not state one in my report; I don't recall
THE COURT:
Can I approach?
Yes.
BY MR. SHAHAN:
Q.
Is that the date that's on your report on the
bottom right-hand side?
14
A.
Yes, date of report, 9/9/04.
15
Q.
So five days after the event, you told somebody
16
the facts, and they typed this up; right?
17
A.
Correct.
18
Q.
Okay.
19
And at that time, it was a lot closer
than the time we're in now; right?
20
A.
Correct.
21
Q.
So you believe if you heard a third shot, you
22
23
24
25
would have put it in there?
A.
Possibly, yes.
It may have been at that time.
I'm not sure.
MR. SHAHAN:
Thank you, sir.
358
1
THE COURT:
2
MS. VERGOS:
3
THE COURT:
4
MS. VERGOS:
Any redirect?
I need a second, Judge.
All right.
Thank you.
5
- - -
6
7
8
9
10
11
R E D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
Q.
Deputy, did you enter the back bedroom at all,
the one where the Defendant was?
A.
I do not believe so.
I did not enter it while
he was there.
12
Q.
Did you enter it afterwards?
13
A.
I don't recall.
14
15
MS. VERGOS:
Thank you.
16
17
THE COURT:
MR. SHAHAN:
19
THE COURT:
20
MR. SHAHAN:
22
All right.
Any questions in regard
to that?
18
21
I don't have any further questions.
No, Your Honor.
No?
No, Your Honor.
No further
questions.
THE COURT:
All right.
23
witness to remain on standby?
24
MS. VERGOS:
25
THE COURT:
And would you like this
Please.
All right.
You're on standby.
359
1
Thank you.
2
THE WITNESS:
Thank you, sir.
3
- - -
4
(Witness excused.)
5
- - -
6
THE COURT:
7
bench for a moment.
If the lawyers could approach the
8
9
- - (Sidebar discussion out of the hearing of the jury.)
10
- - -
11
MS. VERGOS:
12
THE COURT:
13
Judge, I really -Why don't we just do one more
witness?
14
MS. VERGOS:
I think Deputy Barrington is here.
15
I'd like to finish him.
16
to come back tomorrow.
17
THE COURT:
And I think I may have the other
All right.
Well, I'll ask the jury
18
if they went to do one more witness, or two more
19
witnesses, and we'll leave it up to them.
20
you have two here, or you don't know?
21
22
MS. VERGOS:
Do you think
I think I have three witnesses
outside.
23
THE COURT:
24
MS. VERGOS:
25
THE COURT:
Are you ready to go on all three?
Yes.
Okay.
State --
360
1
2
MS. VERGOS:
witnesses.
3
THE COURT:
4
MS. VERGOS:
5
THE COURT:
6
I can go for as long as I have
All right.
You made me get ready.
All right, I'll ask them what they
want to do.
7
- - -
8
(End of sidebar discussion.)
9
- - -
10
THE COURT:
Members of the jury, this is the
11
situation.
12
building, and I want to do at least one, and we could do
13
up to three; so I'm going to give you a short comfort
14
break.
15
either one witness, or two witnesses, or three witnesses,
16
and it really depends upon how you feel, because we can
17
accommodate you in any way.
18
and expedite things as much as we can, we'll go ahead and
19
do that.
20
There are three witnesses that are in the
This will be a short one, and then we'll do
If you want to do all three
If you're totally exhausted and want to do one
21
more, and start fresh in the morning, we can do that.
22
Why don't you talk among yourselves about that only, and
23
then let me know what it is you want to do.
24
- - -
25
(Jury conferred.)
361
1
- - -
2
THE COURT:
3
THE JURY:
4
All right.
One more?
Six o'clock, whatever you get in
until 6:00.
5
THE COURT:
Okay, that's what we'll do.
So
6
we'll take a brief ten-minute break.
And by a brief
7
ten-minute break,
8
normally happens is I say it's going be a ten-minute
9
break, and it ends up being twenty minutes, because not
I mean exactly ten minutes.
What
10
everyone is here.
But we will start in ten minutes; so
11
please be back in the jury room in ten minutes, and then
12
if any of the parties are not here, we're going to start
13
without them, all right?
14
- - -
15
(Court in recess for ten minutes.)
16
- - -
17
(Proceedings resumed, following recess.)
18
- - -
19
20
THE COURT:
THE BAILIFF:
25
The jury is present in the
courtroom, Your Honor.
23
24
All right, let's bring the jury back
in.
21
22
We'll see you in ten minutes.
THE COURT:
State, please call your next
witness.
MS. VERGOS:
The State calls Corporal Ben
362
1
Barrington.
2
- - -
3
4
S E R G E A N T
- - -
6
THE COURT:
7
THE WITNESS:
8
THE COURT:
9
MS. VERGOS:
Good afternoon, sir.
Good afternoon.
State, you may proceed.
Thank you, Judge.
10
- - -
11
D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
13
14
B A R R I N G T O N,
after being first duly sworn, testified as follows:
5
12
B E N
Q.
Good afternoon, sir.
Please look at the jury
and introduce yourself.
15
A.
My name is Ben Barrington.
16
Q.
And how are you employed?
17
A.
As a Deputy Sheriff with the Pasco Sheriff's
18
OfficeH.
19
Q.
And you're currently a corporal?
20
A.
I'm currently -- no, my rank is Sergeant.
21
Q.
Sorry.
A.
It goes deputy, field training officer, which is
22
23
What is the ranking system; how does it
go?
24
one stripe; a corporal is two stripes, and then three
25
stripes is sergeant; then lieutenant, captain.
363
1
2
Q.
Okay.
How long have you been with the Pasco
County Sheriff's Office?
3
A.
Twelve years.
4
Q.
And in what capacity have you been with them?
5
A.
I have been a road deputy in the District One,
6
7
It was twelve years in August.
or the New Port Richey side of the county.
Q.
And during that time -- well, actually, going
8
back to September of '04, were you a road deputy at that
9
time?
10
A.
Yes, at the rank of corporal.
11
Q.
And were you also a member of the SWAT Team?
12
A.
Yes, I was.
13
Q.
As a member of the SWAT team, do you receive
14
specialized training?
15
A.
Yes, we do.
16
Q.
Can you describe that training to us?
17
A.
Well, there's a selection process just beyond
18
SWAT, which is a physical, an oral board, and a shooting
19
qualification.
20
to be accepted on the team, we go through a basic SWAT
21
School, which is anywhere between 40 and 80 hours, at
22
which time, we go over entry, techniques of entry.
23
in reference to barricaded subjects.
24
trained on certain automatic rifles, submachine guns and
25
machine guns; we get extensive training; movement of
Once we get that specific basic qualified
It's
We're especially
364
1
fire, and able to shoot with the submachine gun while
2
moving, as well as our handgun.
3
4
5
6
We're also trained on certain CN grenades, and
also flash bags, discretionarydevices, et cetera.
Q.
Now, the members of SWAT, is SWAT composed of
members of a whole bunch of different units?
7
A.
Yes, it is.
8
Q.
So there's people that are there from Road?
9
A.
Yes.
10
Q.
And from Banks (sic)?
11
A.
Yes.
12
Q.
Major Crimes?
13
A.
Yes.
14
Q.
Property Crimes?
15
A.
Yes, ma'am.
16
Q.
I don't know what else is there, but all the
17
different units of the sheriff's office, anyone is able
18
to apply for the SWAT Team; correct?
19
A.
That's correct.
20
Q.
And the SWAT Team is made up of all of those
21
different people?
22
A.
Yes.
23
Q.
On September 5th, 2004, in the early morning
24
hours, you responded to a Holiday address; is that
25
correct?
365
1
A.
Yes.
2
Q.
In Pasco County?
3
A.
Yes, it was.
4
Q.
And at that time when you initially responded,
5
were you responding as a SWAT Team call-out?
6
A.
No, just that I heard a unit needed backup, so I
7
responded.
8
Q.
Over the radio?
9
A.
Yes.
10
Q.
What was the backup in regard to?
11
A.
It was in regards to a situation which I believe
12
came out as a domestic situation to a subject being armed
13
with a handgun.
14
15
Q.
And once you responded, did you make contact
with anybody on the scene?
16
A.
Yes, I did.
17
Q.
And who was that?
18
A.
Deputy Curtis and Lieutenant Kling.
19
Q.
When you did that, did they brief you on the
20
situation?
21
A.
22
23
24
25
Yes, not only me, but there was five or six of
us there.
Q.
When they did that, did you learn that the
subject was alone inside the residence with a handgun?
A.
Yes, we did.
366
1
2
Q.
Did you also learn that there was a witness who
indicated that he had put that handgun to his head?
3
A.
Yes, there was.
4
Q.
And were you responding as a result, or
5
6
7
8
9
10
attempting to do what at that point?
A.
Then it changed from a suicide -- from a
domestic to an attempted suicide.
Q.
Did your purpose in there change at that point?
Did you, and what I mean by that is, were you activated
as a SWAT Team member at that point?
11
A.
At that point, no.
12
Q.
Did you become activated in such a capacity
13
later?
14
A.
Yes, we were.
15
Q.
As a SWAT team member, are you armed with
16
different firearms, guns, machine guns, different fire
17
power than other road deputies?
18
A.
Yes, I am.
19
Q.
And those firearms, do you carry them with you?
20
A.
Yes, in my patrol vehicle, I do.
21
Q.
And where?
22
A.
It's -- they're both -- they're kept in the
23
24
25
trunk of my vehicle.
Q.
Kept in your trunk.
And when you approached the
scene on this day, did you approach with any specific
367
1
2
weapon?
A.
Yes, I have submachine gun and a fully automatic
3
M-4, which is an M-16.
That day, I actually took my
4
submachine gun, MP-5, which is a 9-millimeter automatic
5
rifle.
6
Q.
Now, we understand that you were a point person?
7
A.
I provided cover, and this was only done after
8
numerous attempts on the phone.
9
make contact via the phone, we decided to approach the
10
As soon as we couldn't
front of the house.
11
Q.
12
there?
13
A.
Correct.
14
Q.
Is there a reason for that?
15
A.
Obviously, we'd rather make contact via phone.
16
17
MR. SHAHAN:
Objection to the question as
hearsay.
18
19
So you didn't approach once you initially got
THE COURT:
Overruled.
BY MS. VERGOS:
20
Q.
Go ahead, Corporal.
21
A.
We'd rather make contact with him on the phone
22
so it doesn't put anybody at risk, us or the barricaded
23
subject; the subject refused to come out.
24
25
Q.
When you say "barricaded subject," what do you
mean by that?
368
1
A.
Well, this subject knew that police were
2
outside, and he didn't come out, so we didn't try to make
3
contact with him to see what situation we had, to check
4
his welfare.
5
6
7
Q.
Why do you say that he knew that police were
outside?
A.
Because after the initial call came out, and
8
Deputy Curtis arrived on the scene, Deputy Curtis
9
parked his patrol vehicle right in front of the house,
10
and was talking to the girlfriend, or the other half of
11
the argument.
12
Q.
Okay.
13
A.
So -- and then she went back in to get him to
14
15
16
17
come out, what I was told, at which time he had -MR. SHAHAN:
Objection to all that testimony.
May I approach?
THE COURT:
All right.
18
- - -
19
(Sidebar discussion on the record.)
20
- - -
21
MR. SHAHAN:
That is getting in hearsay.
She
22
was asking him to come out, from what was I was told.
23
understand is, he said Curtis talked to her;
24
talked to her except Curtis.
25
THE COURT:
My
Nobody else
Well, if he was there when he
369
1
observed that, obviously, he can testify to that.
2
was told that's what was going to happen, then that's
3
it's hearsay, although it has been admitted into evidence
4
through Deputy Curtis.
5
MS. VERGOS:
If he
I believe he stated that Deputy
6
Curtis told him that, however, and it's not for the truth
7
of the matter asserted, I'm just asking him what he
8
believed was the situation at the time he was approaching
9
to indicate what his reaction to the situation was.
I
10
know Counsel is arguing that the Defendant wasn't
11
attempting to (Inaudible).
12
are in dispute, but it's for the sake of the officers,
13
not for the truth of the matter asserted.
14
THE COURT:
So, of course, those facts
All right, well, I will sustain the
15
objection, because I don't think that his state of mind
16
based upon what people told him is really relevant at
17
this point.
18
aggravated assault after the shouts are fired; so I'm
19
going to sustain the objection. Okay?
20
Obviously, his state of mind is relevant an
MS. VERGOS:
21
- - -
22
(End of sidebar discussion.)
23
24
25
Okay.
- - BY MS. VERGOS:
Q.
Corporal, you were saying that you were briefed
370
1
by Deputy Curtis?
2
A.
Yes.
3
Q.
And then you -- there was attempted contact via
4
telephone, I believe you said?
5
A.
Yes.
6
Q.
Was that contact successful?
7
8
9
Were you present
for that?
A.
I knew that it had been delegatd to Detective
Curt (ph.) -- Deputy Scala at the time.
10
Q.
Detective now?
11
A.
Yes.
12
Q.
And was that contact successful?
13
A.
No, it was not successful.
14
phone.
15
Q.
So is that why you proceeded to the door?
16
A.
And tell us about that.
17
18
19
Nobody answered the
Who proceeded to the
door with you?
A.
I, being armed with my MP-5, was the point, or
the first person; I provided cover at the front door.
20
Q.
Is that what "point" means?
21
A.
Yes.
22
Q.
What --
23
A.
It's the No. 1 man.
24
Q.
Is the first person approaching?
25
A.
First, yes.
371
1
Q.
And you provided cover?
2
A.
I provided cover.
3
Q.
I'm sorry interrupting you.
4
A.
Then we approached the front door, and Sergeant
Go ahead.
5
McVey attempted contact, identified himself, was
6
asking -- I believe we, if I can just refer back.
7
Q.
Is that your report that you're looking at?
8
A.
Yes, it is.
9
Q.
And is that a report that you authored back on
10
September 9th of 2004?
11
A.
Yes, it was.
12
Q.
And that was what, four days after the incident?
13
A.
Yes, it is.
14
Q.
So I assume that the events were clearer in your
15
mind at that point than they are today?
16
A.
Yes.
17
Q.
Fresher in your mind at that point?
18
A.
Yes.
19
Q.
And if you need to, Corporal, if you need to
20
refresh your memory with that, you certainly may.
21
let us know when you're done reading through it.
22
A.
Yes, ma'am.
Just
I was just making sure of his name.
23
It was relayed to us as "JJ."
Sergeant McVey introduced
24
himself, and called for "JJ" to come out so we could make
25
contact with him.
372
1
Q.
So you were using his name?
2
A.
Yes.
3
Q.
And did "JJ" respond?
4
A.
Yes, he did.
5
6
7
He, after a few minutes or
moments, he had asked the question, "You want to die?"
Q.
Was that the first response, or was that in the
course of the conversation?
8
A.
That was in the course of the conversation.
9
Q.
Were the two actually conversing?
10
A.
Yes, they were.
11
Q.
And during that time, was the Defendant
12
responding to Sergeant McVey?
13
was there a statement or a question by Sergeant McVey,
14
and then an answer from within the house, and so on and
15
so forth?
16
A.
Yes.
And what I mean by that,
There was a conversation where the subject
17
inside, "JJ," had told us not to enter his house, and to
18
go away.
19
Sergeant McVey, obviously, answered, no.
20
after that, the first shot rang out.
21
22
Q.
Then it was posed, "Do you want to die?"
And shortly
Now, could you hear the entire conversation as
it was happening?
23
A.
Yes.
24
Q.
And while it was happening, could you tell
25
whether the Defendant was -- when the voice was changing,
373
1
2
whether his tone was different, anything of that nature?
A.
From his initial response to get out of my
3
house, don't come into my house, it was definitely
4
getting aggravated, absolutely to the point where he
5
says, "Do you want to die?"
6
Q.
And then what happened at that point?
7
A.
After Sergeant McVey had told him no, and he
8
said, you want to die, after the first shot, it was like,
9
did he just shoot at us?
Obviously, being surprised, I
10
was standing, just to give you an idea where, I was --
11
the front door was open; I was standing towards -- expose
12
in the front door, but towards the left side.
13
McVey was immediately to my left exposed in the left side
14
of the door.
15
the guys stacked -- looking at the window.
16
17
20
And then we kind of stacked, or the rest of
MS. VERGOS:
Judge, may I approach the witness,
and may he actually step down?
18
19
Sergeant
THE COURT:
Yes, he may.
BY MS. VERGOS:
Q.
Corporal, come over here with me.
I'm showing
21
you what's been introduced as State's Exhibit 5, and
22
you're welcome to use that to demonstrate to the jury.
23
A.
When we made contact, I was standing to the left
24
side of the door exposed -- more than half of my body
25
exposed to the open door.
Sergeant McVey was to my
374
1
immediate left, and I believe Chris Meizo was behind me,
2
and I know Corporal Mitchell was to the left over here
3
somewhere.
4
much as I could see into the house.
5
6
7
Q.
But, again, all my focus was in the door as
And the first shot that you were speaking of,
were you standing or squatting, or how were you?
A.
I was in a steady position, which is not a squat
8
down, but it was a kneeling, more stable position to
9
apply target issue.
10
11
Q.
And when the first shot came out, that's where
you were?
12
A.
That's right.
13
Q.
And did you see the first shot?
14
A.
I saw a quick flash, and I didn't hear where the
15
bullet hit.
It was definitely enough to look at Sergeant
16
McVey and say, well, that was definitely a shot.
17
Q.
So what happened after that?
18
A.
After that, we started backing up a little bit.
19
Q.
Why?
20
A.
Well, fear of being shot.
21
That's the last thing
we expected.
22
Q.
Were you in fear?
23
A.
Oh, absolutely.
24
Q.
And at that point after the first shot came out,
25
were you concerned for your safety?
375
1
A.
Yes.
2
Q.
Were you concerned for ther safety of the other
3
4
5
people that were there?
A.
Yes, because we were wide open; we had no
shield, no protection other than the wall.
6
Q.
So that MP-5, does that make you feel any safer?
7
A.
No, it wouldn't stop a round.
8
Q.
So you're saying you're scared, and you start
9
backing up?
10
A.
Yes.
11
Q.
And what happens then?
12
A.
We hear "die, die, die" being yelled out from
13
inside the house, and then another shot rings out.
First
14
of all, this time I saw the muzzle flash, the bright
15
light, and then it sounded like somebody took a baseball
16
and threw it against the side of the house, and I heard
17
that impact, which would have been my knee level right
18
into this side of the wall.
19
immediately got out.
So after that, we
20
Q.
You bolted?
21
A.
Yes, we retreated tactfully.
22
Q.
You are saying everything very calmly here
23
today; you're standing here in front of this jury and
24
demonstrating in a very calm collected way.
25
way that you were feeling back on September 5th of '05?
Is that the
376
1
A.
Of course, not.
My adrenalin was pumping and,
2
again, just more shocked than anything, because I think
3
that was the first time I actually been shot at, where I
4
could have easily been shot.
5
Q.
Okay.
6
your seat.
7
(Witness resumed the witness stand.)
9
11
You may return to
- - -
8
10
Thank you, Corporal.
- - BY MS. VERGOS:
Q.
Now, you indicated Sergeant McVey -- excuse
12
me -- was having this conversation with the Defendant.
13
Was he having a conversation in the tone that you're
14
using here?
15
16
17
18
A.
No, his voice was, you know, raised because we
didn't know exactly where in the house "JJ" was located.
Q.
Now, when you first approached the house, I
think you indicated the front door was open?
19
A.
Yes, the front door was opened.
20
Q.
After you retreated, where did you retreat to
21
22
after the second shot was fired?
A.
We retreated to the north end of Honor Drive
23
long enough to make sure that the SWAT call-out was going
24
to be activated, then I took up a perimeter position
25
along side the house after I suited up with all my SWAT
377
1
2
3
4
5
gear.
Q.
Before that, as you were retreating, did you
notice that door remained opened, or it was closed?
A.
As we were retreating back, if I may explain,
there was a --
6
Q.
Yes.
7
A.
There was a van or truck parked in the front
8
yard on the grass probably fifteen to twenty feet away
9
from the front door.
We immediately -- and it was pulled
10
in; so if you're looking at the house, the driver's side
11
door was on the left side; it was pulled in straight.
12
We immediately hugged that left side of the van
13
of the truck as I was still -- I couldn't see the house,
14
but I provided cover as we backed out and went to the
15
north end of Honor Drive.
16
17
18
19
Q.
And during that time, did the front door stay
open or closed?
A.
As soon as we got to about the back of that
truck, the front door was slammed shut.
20
Q.
Now-- I'm sorry, go ahead.
21
A.
It was a front wooden door, it wasn't the screen
22
23
24
25
door.
Q.
The screen door, was that each or closed when
you first got there?
A.
It was closed when I first got there.
378
1
Q.
And did anybody open it?
2
A.
I propped it open before Sergeant McVey, or
3
Sergeant McVey started making contact, then I propped it
4
open because I could not see through, or I couldn't see
5
through the screen very well.
6
7
8
9
Q.
When you say you started making contact, how did
you do that?
A.
He went up there and introduced himself that he
was Sergeant McVey from the sheriff's office.
10
Q.
Did he knock, or pound, or anything?
11
A.
He used his flashlight and tapped on the screen
12
13
door.
Q.
Okay.
So now you've retreated back, and you
14
indicated that you did so to -- well, to make sure that
15
SWAT -- long enough to make sure SWAT was going to be
16
called out?
17
A.
Yes.
18
Q.
Was the SWAT call initiated?
19
A.
Yes, it was.
20
Q.
Was the Crisis Management Team initiated?
21
A.
At the same time that SWAT is called out, the
22
Crisis Management --
23
Q.
They're done simultaneously?
24
A.
Yes.
25
Q.
Once that's done, do you, basically, switch into
379
1
a SWAT capacity?
2
A.
Yes,
3
Q.
I'm sorry, is there a difference?
4
A.
Yes, because right then, we set up a perimeter
5
around the house, meaning in case someone ran out the
6
back or, you know, we had deputies around the house,
7
which is called -- it's like a light inner perimeter.
8
Well, when SWAT Team gets on the scene, we take up that
9
inner perimeter then we send the road deputies to an
10
outer perimeter, which could be -- it could be several
11
hundred feet away, or it could be, you know, depending on
12
the location we're trying to maintain, or to set up a
13
perimeter around.
14
15
Q.
So how many people are we talking about at this
time?
16
A.
On the scene at the time?
17
Q.
Yes.
18
A.
I couldn't tell you.
I knew there was
19
probably -- my unit was there, and it was probably two or
20
three road units, because at that time we had to block
21
Honor Drive from any traffic being driven up and down.
22
Q.
When you say units, you don't mean people?
23
A.
Well, Patrol Unit.
24
Q.
I understand.
25
person; correct?
But a unit isn't made up of one
380
1
A.
Yes, they are.
A unit would be -- well, a
2
patrol unit is made up of one deputy.
My unit, at the
3
time, I think we had myself and my sergeant, and three
4
other deputies.
5
Q.
Okay.
6
A.
I should call it a squad maybe.
7
Q.
Okay.
8
9
So do you change or add anything to your
uniform when the SWAT is initiated?
A.
Well, at that time, I evaluate to see if --
10
normally, I'm armed with my tessor (ph.).
11
a determination whether I want to go with my fully
12
automatic machine gun, or keep my sub-gun.
13
different attack vest and helmet and gas masks, and stuff
14
like that that we generally take on a call-out.
15
normally change our uniform to fatigues or a BU uniform.
16
Q.
What's that?
17
A.
It's a battle dress uniform.
18
military who use.
I have to make
We have a
We
It's more like the
It has (inaudible) pockets.
19
Q.
Did you do that?
20
A.
No, I kept my uniform pants on.
21
Q.
Did the other SWAT Team members respond in
22
uniform?
23
A.
Yes.
24
Q.
And with armor?
25
A.
Yes.
381
1
Q.
You also have shield, things of that nature?
2
A.
Yes, ma'am.
3
Q.
And were the shields taken out?
4
A.
When our SWAT Team got there, yes.
5
Q.
Are they both with shields?
6
A.
Yes.
7
Q.
Were they set up around the perimeter as well.
8
A.
They are brought up to the front of the house in
9
10
11
12
case we need to do an entry, or once we do do an entry.
Q.
As far as the SWAT team is concerned, what role
did you take in that?
A.
With that, I stayed on a permanent position, and
13
we eventually located several hours later, what bedroom.
14
We ended up looking in the window that we thought where
15
he was; that window eventually ended up getting broken
16
out, so we could see him.
17
using my taser, which is a less than lethal.
18
had to immobilize him, we could have shot him with the
19
taser in lieu of shooting him and killing him as another
20
SWAT officer covered him with his automatic gun.
21
that time, the entry was made, contact was made with him.
And then I provided cover
So if we
Then at
22
Q.
Were you part of the entry team?
23
A.
No, I was not.
24
Q.
You stayed in the backyard?
25
A.
I stayed in the backyard and provided cover on
382
1
2
3
4
5
"JJ" as the SWAT Team came into the house.
Q.
Were you part of the team that broke out the
window?
A.
I didn't break it out but, yes, I was standing
next to Sergeant Mills who broke it out.
6
MS. VERGOS:
7
THE COURT:
8
9
Judge, may I approach the witness.
Yes.
BY MS. VERGOS:
Q.
What I'm showing you with is what's marked for
10
identification State's Exhibit K-2, K-3 and E-3.
11
K-3, do you recognize those?
K-2 and
12
A.
Yes.
13
Q.
And are they photographs of the backyard of the
14
residence?
15
A.
Yes, they are.
16
Q.
And do they accurately depict the backyard of
17
the residence?
18
A.
To the best of my -- yes.
19
Q.
As it appeared on September 5th of 2004?
20
A.
Yes.
21
Q.
And Exhibit E-3, is that a photo of the bedroom
22
of the residence where the Defendant was located?
23
A.
Yes.
24
Q.
And does it accurately depict the window that
25
was broken out in the bedroom?
383
1
2
3
A.
Yes, ma'am it does accurately depict it as it
appeared on September 5h, 2004?
A.
4
Yes.
MS. VERGOS:
Judge, at this time, the State
5
would seek to introduce State Exibit K-2, K-3 and E-3
6
into evidence.
7
THE COURT:
8
MR. SHAHAN:
9
THE COURT:
Any objection?
No objection.
Would you like these introduced as a
10
composite or three separate?
11
It's probably easier.
12
13
All right, they will be admitted as State's
Exhibit No. 7, No. 8, and No. 9.
14
- - -
15
16
(Whereupon, the above-referred-to exhibits were
moved into evidence as State's Exibits 7, 8, and 9.
17
18
19
- - BY MS. VERGOS:
Q.
20
21
22
How about three separate?
Corporal Barrington -- may he step down, Judge?
THE COURT:
Yes.
BY MS. VERGOS:
Q.
I'm showing you what's been now entered into
23
evidence as State's Exhibit 9, and State's Exhibit 8.
24
Can you, using those photographs, show the jury where you
25
were positioned, and what was going on in the back of the
384
1
2
residence at that point.
A.
This is the north side of the house.
I was
3
positioned on the north side of the residence as a
4
distractionary device was deployed.
5
Q.
What is that?
6
A.
It's a loud brillant bright light.
I don't know
7
what the illumination is, but it's really bright, and
8
it's extremely loud.
9
when it's deployed, you have a problem hearing.
I can't tell you the decimal, but
That was
10
deployed outside as the entry team came into the house.
11
At that point, the back window was ripped out,
12
and then I went up to the position on the left side of
13
the window and had my taser out and pointed it at "JJ"
14
who was on the bed unresponsive to any verbal.
15
Q.
Now, this is a picture of inside of the
16
residence which is now admitted as State's Exhibit 7.
17
that the window right above the bed as you guys actually
18
raked out as you indicated?
19
A.
Yes.
20
Q.
And where was the Defendant when you took your
21
22
Is
position?
A.
He was -- I don't remember if he was in a prone
23
position, but he was laying down on the bed in this
24
manner right here, because what I could see, I could see
25
his back was toward me.
I don't know if he was in a
385
1
fetal position, or if he was just laying on the side.
2
Q.
Could you see the firearm?
3
A.
Not until the SWAT Team got in and rolled him
4
over, and at that time, I could see the firearm.
5
Q.
6
Thank you.
7
A.
(Witness complied.)
8
Q.
Corporal, let me back up for just a couple of
9
minutes.
You may go ahead and resume your seat, Corporal.
When you initially started retreating after the
10
second shot was fired, you indicated that the door was
11
closed?
12
13
A.
The door was still open.
Both doors were open
at the time we were starting to back up.
14
Q.
I apologize.
Did they somehow close afterward?
15
A.
Yes, when we got to the rear of that truck or
16
van that was parked in front of the yard, you could hear
17
the door being slammed shut, with the door being slammed
18
shut.
19
Q.
On the inside?
20
A.
On the inside, yes.
21
Q.
Now, that door was into the residence?
22
A.
Yes.
23
Q.
And the back of the door was at a wall, to my
24
25
understanding?
A.
Yes.
386
1
2
3
4
Q.
Did anything else happen inside the residence at
that point?
A.
At that time, after the second shot, we still
were unable to make contact via the phone.
5
Q.
Were the lights on in the residence?
6
A.
There were two lights on; I believe a bathroom
7
and kitchen light when I was at the front door.
8
living room and hallway lights were out.
9
10
11
Q.
The
At the time that the doctor was slammed shut,
were any lights turned off?
A.
Eventually all the lights were turned off.
I
12
can't time you exactly when, but it was after the front
13
door was slammed shut the lights went out in the house.
14
15
16
17
18
19
20
21
22
23
Q.
Just for clarification, I know that this was
sometime around the time of Hurricane Francis?
A.
It was the night that Hurricane Charlie came
through.
Q.
Was there a power shortage that turned off the
lights?
A.
No, no, we never lost streetlights, which is
well illuminated in that area.
Q.
So it wasn't as a result of the hurricane or
storm, or anything like that?
24
A.
No.
25
Q.
And the weather that night when you first made
387
1
contact, when you first went up to the door, what was it
2
like?
3
A.
When we first made contact, it was -- at times
4
the bands would come through, the wind bands -- it would
5
get gusty, but at that time, there was no rain.
6
Q.
There was no rain?
7
A.
There was no rain at the time we made contact.
8
Q.
What about the wind, was it high?
9
A.
It was gusty.
It would gust and be a real gusty
10
wind; it would stop, and then there would be no wind.
11
Again, it was how the bands came through.
12
Q.
Okay.
From my understanding, there's a certain
13
wind level that the sheriff actually pulls you guys in
14
from the road?
15
A.
Yes.
16
Q.
And what is that?
17
A.
At 40 miles an hour.
18
Q.
So were you pulled in that night?
19
A.
No, we were not.
20
Q.
And am I to assume that that means that the wind
21
level didn't reach that?
22
MR. SHAHAN:
23
THE COURT:
24
25
Objection, calls for speculation.
Sustained.
BY MS. VERGOS:
Q.
Okay.
Are you always pulled in at 40 miles an
388
1
2
hour when the wind gusts get to that?
A.
It's preferred but, again, it would depend on
3
what kind of calls we were on.
4
service holding, or no serious situation, yes, we would
5
seek shelter at 40 miles an hour, or higher sustained
6
winds, not gusts.
7
8
Q.
If there was no calls for
And that night, was any unit called in, or
anything of that nature?
9
A.
No.
10
Q.
Now, going back to where you were before, you
11
took that back perimeter position, and the window was
12
open, broken out, the entry team, did they go in through
13
the front of the house?
14
A.
Yes.
15
Q.
You couldn't see that entry; right?
16
A.
Not until they entered the bedroom.
17
Q.
When they did enter the bedroom, can you tell us
18
19
what you saw?
A.
I remember Sergeant Brosden (ph.) was the first
20
deputy to make contact.
Initially, he was still
21
unresponsive, but as soon as he rolled him over, they
22
struggled and, again, I could have probably been
23
justified in hitting him with the taser, because as soon
24
as he was pulled over, the gun was exposed and they
25
didn't have control over him, but Sergeant Brosden and
389
1
several other SWAT Team members put hands on him, and
2
were able to overpower him, and get him handcuffed.
3
4
Q.
Did anybody discharge a firearm outside of him
that night?
5
A.
No.
6
Q.
Did any other officers discharge a firearm?
7
A.
No.
8
Q.
Anyone discharge a taser, anything of that
9
nature?
10
A.
11
residence.
12
Q.
13
We just employed a flash bag outside thee
And that's the distractionary device you were
talking about?
14
A.
Yes.
15
Q.
Once the SWAT Team members took the Defendant
16
17
into custody, what did do you from there?
A.
After that, I secured the perimeter around the
18
house, and I went in, I wanted to see where that round
19
had actually impacted close to me, and that's the actual
20
time where I saw the impact.
21
and it impacted into that wall approximately a foot away
22
from the door, or thereabouts.
It had actually hit a couch
23
Q.
Where you were?
24
A.
Yes.
25
Q.
Did you also see the other round in the book
390
1
2
3
case?
A.
Yes.
It was near where Corporal Mitchell was
standing to the left side of the window.
4
Q.
And did you go through the bedroom of the
5
residence?
6
A.
No, I did not.
I never entered the bedroom, I
7
just walked in the front door and to the living room area
8
to see where those rounds had hit.
9
Q.
Corporal, I'm going to show you what's been
10
marked for identification State's Exhibit J-2, and I-1.
11
Do you recognize those?
12
A.
Yes.
13
Q.
And are they photographs of the areas where the
14
bullet wound -- the bullet holes actually wound up going?
15
A.
Yes.
16
Q.
And do they accurately represent what you saw
17
when you entered the residence on that day?
18
A.
Yes.
19
Q.
Okay.
20
MS. VERGOS:
Judge, at this time, the State
21
would seek to introduce State Exhibit I-1 and J-2 into
22
evidence.
23
MR. SHAHAN:
24
THE COURT:
25
Exhibits 10 and 11.
No objection.
They will be admitted as State's
391
1
- - -
2
(Whereupon, the above referred-to exhibits
3
previously marked as I-1 and J-2, were moved into
4
Evidence as State's Exhibits 10 and 11.)
5
- - -
6
7
THE WITNESS:
If I could explains one other
thing?
8
MS. VERGOS:
Yes.
9
MR. SHAHAN:
Objection.
10
the floor.
11
12
THE COURT:
Q.
14
point?
15
A.
17
Sustained.
BY MS. VERGOS:
13
16
There's no question on
Did you make contact with the Defendant at any
No, I did not, except seeing him through the
window, but I never had any contact with him.
Q.
When you first approached the house, or at any
18
point while you were there, did you see any windows
19
covered, or any boarded up, or anything like that?
20
21
A.
No, there was nothing covering the window as far
as for protection against wind or flying debris.
22
MS. VERGOS:
23
THE COURT:
24
MR. SHAHAN:
25
I have nothing else, Judge.
Cross-examination.
Thank you, Your Honor.
- - -
392
1
2
C R O S S
E X A M I N A T I O N
BY MR. SHAHAN:
3
Q.
Good afternoon, sir.
4
A.
How you doing?
5
Q.
Sir, what was the date you did your report?
6
A.
If I could refer back to my notes.
7
Q.
Yes, sir.
8
A.
I called it in on September 9th.
9
Q.
So that would have been four days after the
10
event?
11
A.
Yes, sir.
12
Q.
Now, this particular night was the night that
13
14
15
16
17
Hurricane Francis came through; correct?
A.
I believe it was Charlie, but it could be.
I
could be mistaken.
Q.
Definitely, it was a hurricane that came through
that night?
18
A.
Yes, sir.
19
Q.
And at times it was very, very windy; correct?
20
A.
Yes.
21
Q.
And was there a down pouring of rain that
22
23
24
25
evening?
A.
On and off, yes, as the bands would come
through, it would rain.
Q.
And it was you that pried open the door; right?
393
1
A.
I opened the screen door.
2
Q.
Okay.
3
A.
I propped it open.
4
Q.
And what did you prop it open with?
5
A.
I believe it was a lawn chair, or a chair that
6
7
8
9
was on the front porch.
Q.
Now, when McVey was there and knocked, he just
went up knock, knock, knock, (making sound) once; right?
A.
No, he had knocked on the screen door with his
10
flashlight several times trying to get someone's
11
attention.
12
Q.
Okay.
So it's not correct to say that several
13
times was all at once like (making sound) three times,
14
one event?
15
A.
I don't know how many times he knocked, but
16
there was repetitive knocks.
17
knocked three times, introduce himself, and knocked three
18
more times, but there was a reasonable amount of time
19
given between each knock.
20
21
22
23
Q.
For instance, he could have
But you're not sure whether it was one set of
three or not?
A.
Well, there was more than one set of either;
repetition of two or three knocks.
24
Q.
25
right?
And you had a submachine gun in your hand;
394
1
A.
I had it slung on my body, yes, sir.
2
Q.
So you weren't looking at your watch to see how
3
long those knocks took; right?
4
A.
That would be correct.
5
Q.
And at no time before the first shot, before the
6
7
8
9
second shot, did you ever see him; correct?
A.
I never saw him until I saw him through the
window on the bed.
Q.
And when you say you saw him through the window
10
on the bed, that's after the two shots, and after you
11
went around the back and used the rake device; right?
12
A.
It's in the back of the house, yes.
13
Q.
And it was more than an hour later before you
14
15
went to the back of the house after the two shots; right?
A.
No, I almost immediately took up a position on
16
the perimeter, but I was on the south side of the wall.
17
After the SWAT Team got there, I took a perimeter
18
position on the rear.
19
20
MR. SHAHAN:
Honor?
21
22
23
May I approach the witness, Your
THE COURT:
Yes.
BY MR. SHAHAN:
Q.
Sir, I have a typed version of your report, and
24
I know that somebody else's -- their version is more
25
pages because of the way it came out of the printer.
Is
395
1
this in fact your one-page report that on the second
2
page, it just says "JJ" was taken into custody and turned
3
over to Deputy Curtis?
4
A.
That's my report, yes.
5
Q.
That is the same one you got up here?
6
A.
Yes.
7
Q.
Okay.
8
9
Thank you.
Now, I believe in your report, you say, "I was
armed with the MP submachine gun, and provided cover for
10
Sergeant McVey on the approach to the front door of the
11
residence."
Is that right from your report?
12
A.
Yes, it is.
13
Q.
So how could McVey be talking to the gentleman
14
that knocked (sound of knocking), if you're in front of
15
him covering him?
16
A.
17
file line.
18
exposed than Sergeant McVey, but I was toward the left
19
third of the door; Sergeant McVey was to my right.
20
were shoulder to shoulder as I had him covered as he was
21
trying to make contact.
22
Q.
23
ahead?
24
A.
25
When we approached the house, we were in single
When we got in front of the door, I was more
We
Shoulder to shoulder, but you were a little bit
Not at the front door, we were standing shoulder
to shoulder.
396
1
Q.
2
3
Okay.
Now, you saw a muzzle flash, but you didn't see
a person behind it; right?
4
A.
That's correct.
5
Q.
And how many muzzle flashes did you see?
6
A.
Two.
7
Q.
Both of them?
8
A.
Yes.
9
Q.
And was one bigger than the other, or were they
10
about the same?
11
A.
No, for the first one, it was like a flash of
12
light, and I'm like thinking to myself, if I may explain,
13
was that a shot?
14
time, I was much more aware that a shot was fired.
15
definitely -- I believe I saw the muzzle flash, as well
16
as the flash, and I definitely heard it hit --
Because I was surprised.
The second
I
17
Q.
Okay.
18
A.
-- a foot or so away.
19
Q.
And what size is this muzzle flash, the first
A.
The easiest way to explain it is like if you're
20
21
one?
22
taking a photograph and a flash goes off, just a
23
brillance of light very quickly, and then it just fades
24
very quickly.
25
Q.
Okay.
And this morning before you testified,
397
1
were your talking to the other officers about this flash
2
that you just talked about, this camera-type flash?
3
A.
As far as talking about --
4
Q.
That testimony outside out front here?
5
A.
No, we had -- I had discussed it with the
6
7
8
prosecutor in her office.
Q.
Okay.
Were you reading your deposition out
front out loud with the other officers present?
9
A.
Out here?
10
Q.
Yes, sir.
11
A.
No, sir.
12
Q.
Was any other officer reading his deposition out
13
loud while you were present?
14
A.
Not to my knowledge, no.
15
Q.
Okay.
And do you agree that this chair that you
16
used to prop up the door was clanging around with the
17
wind?
18
A.
Yes, it at times was.
Yes.
19
Q.
And it was a metal chair; right?
20
A.
Yes, sir.
21
Q.
So you've got the wind gust, and you got this
22
clanging, clanging, clanging while Officer McVey is
23
trying to talk?
24
25
A.
At times it would clang, yes, sir.
But, yes,
sir, Sergeant McVey was again talking over, talking in a
398
1
louder voice.
2
Q.
And Sergeant McVey wasn't using a megaphone, was
4
A.
Not at that time, no, sir.
5
Q.
When he was saying who he was, he wasn't using a
3
6
he?
public address system at that time either; right?
7
A.
That's correct.
8
Q.
And he wasn't using any amplification other than
9
his voice; right?
10
A.
Yes.
11
Q.
Now, Mr. Daiak never ever said any words like
12
"police" or "sheriff:
Did he?
13
A.
No, sir.
14
Q.
And did I understand you on direct to describe
15
the shot level is about knee level when you went and
16
actually looked at the bullet holes inside?
17
A.
I believe it was around knee level, yes.
18
Q.
And that was both shots; right?
19
A.
No, the first shot I couldn't tell you.
20
it was up; I don't know how high it was.
21
couldn't testify.
I saw
I mean, I
22
Q.
You didn't do any measurements or anything?
23
A.
That's correct, I did not.
24
Q.
And even though you and McVey were in the front
25
of the green door, after you propped open the green door,
399
1
there is no bullet holes that came through that screen
2
door; right?
3
A.
No, the screen door, I had propped open.
4
opened out; I opened it as far as I could make it,
5
opened up.
6
Q.
So when you propped it open, was the screen
7
door -- it was outside the green door; right?
8
words, closer to the street?
9
A.
It
In other
The inside wooden door opened in, and the
10
outside opened out towards us, and it was propped open
11
in the open position.
12
13
Q.
So once you propped open the screen door, were
both doors open?
14
A.
Yes.
15
Q.
One inside, and one outside?
16
A.
Yes, sir.
17
Q.
Okay.
18
A.
I didn't see anybody, correct.
19
Q.
And as you looked through, straight through that
And you never saw Mr. Daiak or anybody?
20
opening, there's no hallway directly, it's off to the
21
right; correct?
22
itself is off to the right; correct?
23
A.
24
25
As you're facing the doors, the hallway
I can't answer that.
MR. SHAHAN:
Honor?
I'm not quite sure.
May I approach the exhibit, Your
400
1
THE COURT:
2
MR. SHAHAN:
3
4
Yes.
Thank you.
BY MR. SHAHAN:
Q.
And after the shots and the time of waiting, and
5
you went to the back where you looked through the back
6
window, that was a back bedroom, correct, on the left
7
side here?
8
this side; right?
Like here's the garage, and it's closer on
9
A.
No, it would be on the north side.
10
Q.
Okay.
11
A.
North side.
12
Q.
Now, this front, to the right of the door, this
13
window here, is that a bedroom also?
14
A.
I don't know.
15
Q.
You don't really know?
Okay.
But was the --
16
what I call the back bedroom, which I guess you just said
17
is on the north side --
18
A.
Yes.
19
Q.
-- is it like this bedroom, then a hallway, then
20
a bedroom, or is there a bedroom, bathroom, bedroom, how
21
did that look?
22
A.
When you looked in the front door --
23
Q.
Okay.
24
A.
-- the living room, which had no light on it,
25
directly in front of the door was a bathroom with a
401
1
light, and then off to the right there was a kitchen or
2
another room with a light on it.
3
didn't walk through the house afterwards.
4
Q.
Okay.
Other than that, I
But as you're outside here, you can see a
5
kitchen with a light a little bit to the light you said;
6
right?
7
A.
Yeah, that's the bathroom straight ahead.
8
Q.
Bathroom straight ahead.
9
10
It looks like green
here or something up at the top.
A.
Yes, directly down is the bathroom; you can see
11
it through.
12
the right of the bathroom, to the north side of the
13
residence which he was essentially located.
14
Q.
And we were assuming he was in a bedroom to
Okay.
And like you said, this little thing
15
where it says green at the top, that's the bathroom you
16
can see straight through?
17
A.
Yes.
18
Q.
Your assumption turned out to be true that he
19
20
21
22
was to the right of that back in here?
A.
He was located on the north side, northwest side
of it -- it was to the right of that.
MR. SHAHAN:
Your Honor, since I'm showing the
23
picture, this way the jury can't see, can we go over
24
there and clarify it?
25
THE COURT:
Yes.
402
1
2
MR. SHAHAN:
Thank you.
BY MR. SHAHAN:
3
Q.
To help the jury understand what you were
4
saying, I think you advised this part here looks like
5
yellow at the bottom and green at the top, is the
6
bathroom that you can see straight through?
7
A.
Straight through to the front door.
8
Q.
And then to the right, you believed he might be
9
in the bedroom back here; right?
10
A.
That's what we were told initially.
11
Q.
And then once you went around to the back, it's
12
true he was over that way?
13
A.
That's the back bedroom on the backside not this
14
front, but the back is the window we ended up breaking
15
out.
16
17
Q.
Okay.
And once you saw the muzzle flashing, you
didn't see him?
18
A.
Never saw.
19
Q.
So you don't really know to this day from where
20
he shot the shots; correct?
21
A.
That's correct.
22
Q.
Thank you, sir.
And once you got in the back
23
bedroom and saw him in a fetal position, or whatever you
24
said, his back to you, his eyes were closed; right?
25
A.
Yes.
403
1
2
Q.
And you said that's a pretty loud flash bomb or
whatever, right?
Flash distraction?
3
A.
It's extremely loud, yes.
4
Q.
But his eyes are still closed?
5
A.
Correct.
6
Q.
And he never said a word, did he, as they're
7
putting him in custody?
8
9
A.
Did he say any words?
When the struggle was taking place, I believe
there was some type of -- because they kept telling him
10
not to resist.
11
though.
I don't know what the conversation was,
12
Q.
And the struggle, is it one or two seconds?
13
A.
It was -- it was fairly quick, because again, I
14
was determining if I was justified tasering him at that
15
time, because as soon as I saw the gun, and there was a
16
struggle, obviously, I don't want him to grab the gun,
17
because I don't want deadly force to be applied.
18
again, he was being covered by Sergeant Mills with
19
another automatic rifle.
20
21
Q.
Okay.
And,
And then he -- this bed he was laying on,
it was actually a mattress on the floor; right?
22
A.
I couldn't tell you.
I never went into --
23
Q.
Can you refresh your memory with your report,
24
sir?
If you could look at your report, the last
25
paragraph, do you say "JJ" was seen lying on his back on
404
1
a mattress inside the bedroom?
Is that in your report?
2
A.
Just give me one second.
3
Q.
Yes, sir.
4
A.
Yes, he was.
He was on the mattress, but I
5
don't know if there was a frame. I never went into that
6
back bedroom.
7
8
MR. SHAHAN:
Honor?
9
10
11
May I approach the witness, Your
THE COURT:
Yes.
BY MR. SHAHAN:
Q.
I've got State's Exhibit 7 in evidence that you
12
assisted Ms. Vergos getting into evidence.
Isn't it true
13
that you told her this was a fair and accurate
14
representation of what you saw?
15
A.
Yes, sir.
16
Q.
Doesn't it appear this mattress is directly on
17
18
19
the floor to you?
A.
The mattress is on top of a box spring, which
appears not to have a frame underneath it.
20
Q.
So two mattresses on the floor then; right?
21
A.
Yes, sir.
22
Q.
Is that a fair description?
23
A.
Yes.
24
25
MR. SHAHAN:
Your Honor?
May I show this again to the jury,
405
1
2
3
4
5
THE COURT:
Yes.
BY MR. SHAHAN:
Q.
And this is how you saw the place as soon as you
broke out the back window; right?
A.
Well, no, because the light wasn't on, and I
6
only saw it through the vantage -- through the back
7
window.
8
Q.
Would you describe this as a little bit messy?
9
A.
Again, I don't -- no, I don't know.
10
11
I can't
honestly answer.
Q.
Okay.
Now, in your report, did you put,
12
approximately, 130 hours, there was a sound or a third
13
shot from the residence?
14
A.
Yes.
15
Q.
This was after you all had backed away and were
16
17
18
hiding behind vans; right?
A.
This was after the SWAT Team was activated, and
we took up a permanent position close around the house.
19
Q.
And was that after your van --
20
A.
Actually, I was on the south side of the front
21
22
of the residence.
Q.
And when you say 130 is that -- what it sounds
23
like to me; I mean, in lay people's time, that's 1:30 in
24
the morning?
25
A.
Correct.
406
1
Q.
At th very start of the report at the top, you
2
stated on 9/5/04, at approximately 030 hours, you
3
responded as a backup?
4
A.
Yes.
5
Q.
So I'm not very good at math, but is that an
6
hour after you responded that you heard this third shot?
7
A.
Correct.
8
Q.
And not everybody heard that third shot, did
9
they?
10
MS. VERGOS:
11
THE COURT:
12
13
14
15
Objection, Judge.
Sustained.
BY MR. SHAHAN:
Q.
But there was nobody by the door when this
happened, this third shot; right, by the front door?
A.
I couldn't tell you.
The SWAT Team members were
16
gradually arriving on the scene, and placed in certain
17
areas around the inside of the perimeter, which would
18
have been the outside of the house.
19
but I can't testify where everybody else was.
20
Q.
I know where I was,
Well, when you were at the front door and you
21
were the point man, and McVey was asking some questions,
22
Mr. Mitchell was to your left; correct?
23
A.
Yes, sir.
24
Q.
And how far to your left, approximately?
25
A.
I would say within 10 feet, the front width of
407
1
2
3
the front porch.
Q.
So presumably he should have been able to hear
the words that you heard then; correct?
4
MS. VERGOS:
Judge, objection, speculation.
5
THE COURT:
6
THE WITNESS:
Overruled.
I can't testify what he heard.
7
don't know what every had heard.
8
BY MR. SHAHAN:
9
Q.
I
I understand that but, you know , I'm going to
10
walk toward you and tell me how close would I be Mitchell
11
then, except I'd be to the left?
12
13
A.
Oh, no, he was probably as far as you and I are
from the podium.
14
Q.
Right here?
15
A.
Probably.
16
Q.
And this voice that was saying these words from
17
18
That's probably reasonable.
inside, what level was the voice, this level?
A.
No, it sounded like it was -- I could clearly
19
hear it, but it was at a distance, meaning walls and --
20
but, again, I don't know where he was standing.
21
no idea where he was when he shot.
22
Q.
I have
Can you just give us the level of voice?
Give
23
us a demonstration of the level of the voice inside when
24
they were saying the words that you heard?
25
A.
I probably can't.
I mean, it was loud enought
408
1
for me to clearly hear you.
2
it was.
3
4
5
Q.
I can't tell you exactly how
Your voice won't go as loud, is that whatyou're
saying?
A.
For example, when I heard him say, "die, die,
6
die," again after that first shot, it seemed like
7
everything was much clearer, and I was much more intuned,
8
you know, to the situation at that time, and I heard,
9
"die, die, die," and then that second shot rang out.
10
Q.
Okay.
11
A.
He's in front of the closed front window to my
12
13
14
And Mitchell is 10 feet away?
left.
Q.
And did you just tell me a minute ago that he's
10 foot away, wherever he was?
15
A.
Yes.
16
Q.
Thank you.
17
MR. SHAHAN:
18
THE COURT:
19
20
21
22
23
May I have a moment with my client?
Yes.
BY MR. SHAHAN:
Q.
About what time did you guys use the distraction
flash bag device?
A.
Distractionary device, if I could look through
the report.
24
Q.
Take your time, sir.
Go ahead.
25
A.
What I'm doing is, I'm looking for Sergeant
409
1
2
3
4
5
6
7
Mills' supplement.
Q.
Okay, that's fine.
When you're ready, let me
know.
A.
I don't have that, so I wouldn't be able to tell
you an accurate time.
Q.
Okay.
But at least the flash bag is sometime
after you heard this third shot; right?
8
A.
Yes.
9
Q.
And you heard the third shot an hour after you
10
first arrived?
11
A.
Correct.
12
Q.
And you arrived, you say, at 030 hours.
13
14
15
16
17
How
soon after 030 hours did these two shots go off?
A.
Just taking a guess, probably within ten
minutes.
Q.
So your estimate is ten minutes after you got
there, these two shots went off?
18
A.
Probably pretty accurate.
19
Q.
So based upon that estimate then, that's at 040
20
hours?
21
A.
Yes, sir.
22
Q.
And the third shot that you talked about didn't
23
happen until 1:30?
24
A.
Yes, approximately, 1:30.
25
Q.
So in that 50-minute time, you're telling us
410
1
that you were in fear that somebody tried to kill you,
2
and did anybody call for an arrest warrant authority from
3
a judge, or anything like that?
4
5
6
7
8
9
A.
No, that's not the way we handle barricaded
subjects.
Q.
Okay.
And you waited all that time without
trying to take him into custody?
A.
Before -- yeah, well, we tried to use the P.A.
system to make contact with him; we tried to telephone
10
again.
11
back into the house until SWAT got the entrance shield,
12
et cetera.
13
Q.
14
shots?
15
A.
Yes.
16
Q.
And where was the P.A. system located?
17
A.
It was in Deputy Curtis' patrol vehicle, which
18
19
There were attempts made.
We weren't going to go
The P.A. system was used after the first two
was parked near the front of the house.
Q.
And is that like the standard P.A. system, like
20
if you're following behind some loud kids, or drunk
21
driver, you might say, "Sir, pull over, pull over" that
22
kind of thing?
23
24
25
A.
It's the public address system that is installed
in our police cars.
Q.
But is that where it's used for those type of
411
1
2
3
4
5
6
things?
A.
I guess it could be.
I don't use mine to
address people.
Q.
How is it normally used in your years of
service?
A.
I suppose in a barricaded subject, or if I was
7
trying to get somebody's attention who was in a pasture
8
across the field that I couldn't shout loud enough.
9
Q.
It's -- let's go back to the barricaded subject
10
thing, because that's originally what the call was,
11
right, you got a call there was a barricaded subject;
12
correct?
13
A.
No.
14
Q.
Yes.
15
A.
I don't know.
16
As far as Deputy Curtis?
It came out as subject armed with
handgun.
17
Q.
Okay.
18
A.
From a domestic to a suicidal subject armed with
19
a gun.
20
Q.
21
22
23
24
25
So your call that you heard, it didn't talk
about a barricaded subject?
A.
That's how the SWAT page went out, but that's
not how -- when I initially responded as backup.
Q.
Okay.
But however it went out, you didn't find
a barricaded subject, did you?
When you first got there,
412
1
nobody barricaded the door, it was free and open;
2
correct?
3
A.
That's correct.
4
MR. SHAHAN:
5
THE COURT:
No further questions.
Any redirect?
6
- - -
7
8
9
R E D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
Q.
Corporal, I just want to -- I'm assuming you
10
probably weren't watching your watch throughout the
11
course of this; right?
12
A.
Yes, I don't even wear a watch.
13
Q.
I'm sorry?
14
A.
I don't wear a watch, so --
15
MS. VERGOS:
16
THE COURT:
17
18
19
20
May I approach the witness, Judge?
Yes.
BY MS. VERGOS:
Q.
Deputy or Corporal, I'm showing you a printout
of the call.
A.
Do you know what that is, for the jury?
Every time -- well, now with the computer
21
automated system, whenever we're dispatched to a call, it
22
recognizes not only what call, but it recognizes what
23
unit, what time everything is dispatched, meaning the
24
first time we get the call to the first time the unit
25
accepts the call and goes in route, to the time we arrive
413
1
on the scene.
2
it via agency radio.
3
4
Q.
Then everything is documented as we relay
So when you first get to the scene, do you tell
the dispatcher you're there?
5
A.
Yes.
6
Q.
And when you get dispatched to the scene, does
7
Dispatch document that as well?
8
A.
Yes, they do.
9
Q.
And when you leave or clear a scene, does that
10
get documented?
11
A.
Yes, it does.
12
Q.
And when there's a 911 call and things of that
13
nature, do each of those things get documented?
14
A.
Yes.
15
Q.
And is that CAD printout the list of those
16
documentations, if you will?
17
A.
Yes, it is.
18
Q.
Now, using that, if you need to in order to give
19
us a more accurate time line, can you tell us when you
20
responded?
21
MR. SHAHAN:
22
THE COURT:
23
24
25
Objection, may we approach?
Yes.
- - -
(Sidebar discussion out of the hearing of the jury.)
- - -
414
1
MR. SHAHAN:
I don't have any problem when she
2
tries to put this in.
3
the other shot.
4
to get in page 2, which talks about hospital
5
Baker-acting.
6
This is about the two shots and
I go a big problem if she's going to try
MS. VERGOS:
I'm not going to go into that.
I
7
don't have an issue with the Baker-act part later, but
8
I'm not introducing the document.
9
document can be introduced, just like a police report, or
I don't think the
10
anything like that; so I don't think we can introduce
11
that at all.
12
13
MR. SHAHAN:
But the questions are going to be
asked of page 1, though?
14
MS. VERGOS:
No, his time dispatch, I'm not on
15
page 1.
16
page 3, which is -- I won't bring him or anything
17
regarding -- we're on page 2.
18
with him until I talk to the Court about it.
19
20
I don't want to say yes to that.
THE COURT:
25
All right, sounds like there's no
- - -
22
24
I won't talk about that
issue, so please proceed.
21
23
He's back on
(End of sidebar discussion.)
BY MS. VERGOS:
Q.
that?
Corporal, did you get a chance to look through
415
1
A.
Yes.
2
Q.
And did you find where your dispatch and arrival
3
time are?
4
A.
Yes, ma'am, I did.
5
Q.
And can you tell us what time were you
6
7
8
dispatched to the location?
A.
I was dispatched to it at 0024 minutes after
midnight.
9
Q.
So layperson terminology, 12:24 a.m.?
10
A.
Yes.
11
Q.
And what time did you get to the scene?
12
A.
I arrived there three and a half minutes later
13
14
15
16
17
18
19
at 12:27 a.m.
Q.
check."
A.
All right.
So the next entry is "stop unit time
What does that mean?
Honestly, I'm not sure what that means.
I don't
know what that means.
Q.
Okay.
But you became available again back at
5:34 in the morning?
20
A.
That's when I left the scene, right.
21
Q.
So you get to the scene at 12:27 and thirty-two
22
seconds a.m., correct?
23
A.
Yes, ma'am.
24
Q.
And according to the CAD records, can you tell
25
when the first two shots were fired?
416
1
2
A.
Just give me a second.
I'm just not used to
seeing this.
3
MR. SHAHAN:
Then I object to any further
4
questions on it, because he's, obviously, not qualified
5
to interpret it by his own testimony.
6
7
THE COURT:
objection.
8
MS. VERGOS:
9
THE COURT:
10
11
12
13
14
15
16
17
18
All right, I'll sustain the
Judge, may I follow up on it?
All right.
BY MS. VERGOS:
Q.
Corporal, can you interpret what the document
says?
A.
Yes, it's just takes me time to read through
each entry.
Q.
The entries, are they lined up separately for
you, or do they kind of just blend all together?
A.
Well, it looks like a big paragraph, but a lot
of things are abbreviated and 10 codes.
19
Q.
And the 10 codes, can you read them?
20
A.
Yes.
21
Q.
And the abbreviations, can you read them?
22
A.
Yes.
23
Q.
Do you recognize the CAD logs?
24
A.
Yes.
25
Q.
Have you seen CAD logs in the past?
417
1
A.
Yes, I have.
2
Q.
Have you read CAD logs before?
3
A.
On a nightly basis.
4
Q.
And do you know what's contained in it, and
5
6
where the information comes from?
A.
Yes.
7
MS. VERGOS:
8
THE COURT:
9
10
Judge, may he?
You may proceed.
BY MS. VERGOS:
Q.
Corporal, take the time you need to read through
11
the paragraphs that are listed there, but can you tell us
12
the time that the shots were originally fired?
13
14
A.
At 107:24; so 1:00 a.m. seven minutes after 1:00
twenty-four seven.
15
Q.
And what time was the SWAT called out?
16
A.
At 108:52.
17
18
19
So just over a minute after the
first two shots, we initiated the call-out.
Q.
And the third shot that you mentioned before,
can you tell us when that shot came out?
20
A.
At 1:50 a.m. and 35 seconds.
21
Q.
So 43 minutes later?
22
A.
Yes.
23
Q.
Now, if you look on the second page of that, can
24
you tell us at some point during that night after the
25
scene is cleared -- what I mean by cleared --
418
1
MR. SHAHAN:
2
THE COURT:
Objection.
Yes.
3
4
- - (Sidebar discussion out of the hearing of the jury.)
5
- - -
6
7
THE COURT:
MS. VERGOS:
9
THE COURT:
10
MS. VERGOS:
It's going to the Baker-act.
What's it about?
It's about when forensics was
called out.
12
13
First I want to find out what the
question is.
8
11
THE COURT:
Okay.
Do you think you a problem
with that?
14
MR. SHAHAN:
No, I just remember she said she
15
wasn't going to pitch to --
16
THE COURT:
17
(End of sidebar discussion.)
19
21
All right.
- - -
18
20
May we approach?
- - BY MS. VERGOS:
Q.
Corporal, at some point that night, after the
22
scene was cleared and by that, I mean that the suspect
23
was in custody and secured, the weapon was secured, was
24
Forensics called out?
25
A.
Was the Forensics Unit called out?
Yes, ma'am, it was.
419
1
Q.
And what time was the Forensics Unit called out?
2
A.
At 3:40 a.m. 44 seconds.
3
Q.
At 3:40 a.m. Forensics Officer Tepedino was en
4
route?
5
A.
Yes.
6
Q.
And right above that, the need for forensics
7
call, what time did that go out?
8
A.
That went out at 3:31 a.m.
9
Q.
So an hour and forty minutes after the second
10
shot -- after the third shot, and two hours and ten
11
minutes, or thirteen minutes after the first two shots;
12
correct?
13
A.
Yes, ma'am, that's correct.
14
Q.
Thank you.
15
Now, after this first -- after those first two
16
shots came out, or were fired, and SWAT was called out,
17
how long did it take to establish that perimeter and make
18
the entry way, and do those things?
19
A.
We initially right after that second shot, we
20
had a tighter perimeter; so it was just within several
21
minutes.
22
post, they're assigned to respond to the team and take up
23
the row deputies who aren't as equipped as we are on
24
SWAT, the positions around the house.
25
imagine -- again, I would just speculate that the first
Again, as SWAT Team members get to the command
So I would
420
1
2
SWAT officer probably got there within thirty minutes.
Q.
Okay.
3
MS. VERGOS:
4
THE COURT:
May I have just one moment?
Yes.
5
- - -
6
(Brief pause.)
7
- - -
8
MS. VERGOS:
9
THE COURT:
10
MR. SHAHAN:
THE COURT:
No further questions of this
And would you like this witness to
remain on standby for the rest of the trial?
15
MS. VERGOS:
16
THE COURT:
17
Anything further from
witness.
13
14
Thank you.
Mr. Shahan?
11
12
I have nothing else, Judge.
Yes, Judge.
All right, have a good evening.
Thank you.
18
THE WITNESS:
19
Thank you.
- - -
20
(Witness excused.)
21
- - -
22
THE COURT:
All right, we'll get you out of
23
here.
It's twelve minutes before 6:00, so how about
24
that?
So that will be all for today.
25
Again, please do not discuss the case with
421
1
anyone, including yourselves.
2
promptly at 9:00 tomorrow, hopefully.
3
not jury pool room at 9:00 tomorrow, which is 2-A.
4
know what it is better than I do.
5
yet.
6
7
We're going to start
Anybody have any questions?
All right, have a good evening, get a good
nights sleep, and we'll see you tomorrow at 9:00.
- - -
9
(Jury excused.)
10
12
13
You
I haven't been there
8
11
So you can be back
- - THE BAILIFF:
Your Honor, the jury is out of the
courtroom.
THE COURT:
The jury is out of the hearing of
14
the court.
15
record, and that is at this time, the attorneys and
16
myself, and the Defendant are going to talk briefly about
17
jury instructions, and we'll do that off the record, and
18
then if there's a census on all jury instructions, then,
19
obviously, we'll put that on the record.
20
any objection to what the Court ultimately decides to
21
instruct the jury on, then that will be placed on the
22
record by the objecting party.
23
I'm just going to put one thing on the
If anyone has
But as of right now, everyone can go except for
24
the lawyers and the Defendant.
The Defendant can even go
25
if he'd like, but if he'd like to stay and hear what
422
1
we're going to talk about on jury instructions, he may
2
stay as well.
3
MS. VERGOS:
Judge, at some point, we need to
4
talk about the Baker-act situation, and I don't know if
5
the Court wants to do it today, or tomorrow morning.
6
THE COURT:
All right, let's just briefly go
7
over the Baker-act situation off the record, if you'd
8
like, and then we can talk about it on the record
9
tomorrow, or we can just talk about it on the record
10
tomorrow, whatever you want to do.
11
MS. VERGOS:
That's fine.
12
MR. SHAHAN:
No problem.
13
14
15
16
17
18
19
20
21
22
23
24
25
- - (Off the record discussion about jury
instructions took place.)
- - (Court Adjourned.)
423
1
CERTIFICATE OF REPORTER
2
3
4
STATE OF FLORIDA
)
COUNTY OF PASCO
)
5
6
7
8
9
I, P. ALECIA WILKINS, Court Reporter, in and for
the Sixth Judicial Circuit, State of Florida,
10
stenographically reported the foregoing proceedings and
11
that the transcript is a true and complete record of my
12
stenographic notes.
13
14
15
DATED this ________day of _____________,2007, at
New Port Richey, Pasco County, Florida.
16
17
__________________
18
P. Alecia Wilkins
19
Court Reporter
20
Sworn to and subscribed before the
21
undersigned officer this ___ day
22
of_____________,2007.
23
Notary Public
24
State of Florida at Large
25
My commission expires:
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PASCO COUNTY, FLORIDA
CRIMINAL DIVISION
CASE NO. 04-04412CFAWS
STATE OF FLORIDA,
Plaintiff,
vs.
:
:
:
:
JOE FRANK DAIAK,
:
:
Defendant.
:
------------------------------x
BEFORE:
HONORABLE JOSEPH BULONE, J.
Sixth Circuit
PLACE:
Pasco County Government Center
7530 Little Road
New Port Richey, Florida
DATE:
November 30, 2006
TIME:
Commencing at 9:00 a.m.
REPORTED BY:
P. ALECIA WILKINS
Sixth Circuit
COURT REPORTER
Notary Public, State of Florida
Pages 424 - 597
D A Y T H R E E
V O L U M E I V
J U D Y
M O U K A Z I S & A S S O C I A T E S
C O U R T R E P O R T E R S
8624 Massachusestts Avenue
New Port Richey, Florida 34654
(727) 842-9793
A P P E A R A N C E S
EVA VERGOS, ESQUIRE
Assistant State Attorney
7530 Little Road
New Port Richey, Florida
Attorney for the State
JOHN AMBROSE SHAHAN, ESQUIRE
556 E. Tarpon Avenue, Suite 3
Tarpon Springs, Florida
Attorney for the Defendant
I N D E X
WITNESS
J. Fitchemaier
Direct Examination
Ms. Vergos
Cross, Mr. Shahan
PAGE
428
439
Sgt. Tanner
Direct, Ms. Vergos
Cross, Mr. Shahan
Redirect, Ms. Vergos
Recross, Mr. Shahan
445
451
459
465
James Nagy
Direct, Ms. Vergos
Cross, Mr. Shahan
466
476
Peter Roehrig
Direct, Ms. Vergos
Cross, Mr. Shahan
486
497
David Tepedino
Direct, Ms. Vergos
Cross, Mr. Shahan
Redirect, Ms. Vergos
507
519
550
Ella Hancock
D E F E N S E E V I D E N C E
Direct, Mr. Shahan
Cross, Ms. Vergos
Redirect, Mr. Shahan
Dennis Hancock
Direct, Mr. Shahan
Cross, Ms. Vergos
Redirect, Mr. Shahan
566
573
577
584
587
594
S T A T E' S
E X H I B I T S
Nos. 12, 13, 14
Photographs
Nos. 15-21
Photographs
473
512
D E F E N S E E X H I B I T S
Photograph
Photographs (ID.)
Photo
Photo
Photo
479
524
525
528
544
No. 2
Nos. A-E
No. 3
No. 4
No. 6
427
1
2
- - Thereupon,
3
4
THE COURT:
5
MR. SHAHAN:
6
Remember you asked him to bring his
medical expenses.
7
8
Are we ready for the jury?
THE COURT:
Why don't we deal with that during
the break?
9
THE BAILIFF:
10
THE COURT:
Ready, Judge?
Yeah, let's bring them in.
11
- - -
12
(Jury entered the courtroom.)
13
- - -
14
15
THE BAILIFF:
the courtroom.
16
17
The jury is present and seated in
THE COURT:
Members of the jury, how is
everyone?
18
THE JURY:
19
THE COURT:
20
MS. BEGNESKI:
21
24
25
State, call your next witness.
The State calls Jerry Victameyer
(ph.)
22
23
Very good.
- - J E R R Y
F I T C H E M A I E R,
first duly sworn, testified as follows:
- - -
after being
428
1
THE COURT:
2
THE JURY:
3
THE COURT:
Good morning, sir.
Good morning.
State, you may proceed.
4
- - -
5
6
7
8
D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
Q.
Good morning, sir.
Would you please look at the
jury and introduce yourself to the jury?
9
A.
I am Deputy Jerry Fitchemaier.
10
Q.
You're employed with the Pasco County Sheriff's
11
Office?
12
A.
Yes.
13
Q.
How long have you been with the Pinellas County
14
Sheriff's Office?
15
A.
A little over six years.
16
Q.
How long as a deputy?
17
A.
I was a road deputy.
18
Q.
How long as a member of the SWAT Team?
19
A.
I was, not now.
20
Q.
How long were you a member of the SWAT Team?
21
A.
Yes.
22
Q.
Were you a member of the SWAT Team in 2004?
23
A.
Yes.
24
Q.
I assume you were also with the Pasco County
25
Sheriff's Office on the early morning of September 5th,
429
1
2004; were you on duty?
2
A.
Yes.
3
Q.
And did have you occasion to respond to the
4
Holiday address --
5
A.
Yes, I did.
6
Q.
-- in Pasco County?
7
A.
Yes.
8
Q.
When you did respond to the Holiday address, did
9
you make contact with Deputy Curtis?
10
A.
Yes.
11
Q.
And I believe that was the initial responder?
12
A.
I guess -- I believe it was.
13
Q.
Did you also make contact with anyone else?
14
A.
Deputy Curtis was with another female.
15
Q.
Valarie Davenport?
16
17
18
CHECK FIRST NAME.
A.
I don't know her name.
I didn't ask her name; I
spoke with mainly Deputy Curtis.
19
Q.
Did you also speak to the female at any point?
20
A.
I believe I asked her a little bit of what and,
21
22
23
but very brief.
Q.
When you made contact with Deputy Curtis, did he
brief you on the situation?
24
A.
Yes, he did.
25
Q.
And when you made contact with the female, did
430
1
she confirm what Deputy Curtis had told you?
2
me ask you this.
3
MR. SHAHAN:
4
questions asking for hearsay.
5
6
7
8
THE COURT:
Deputy, let
Objection to both as being
Overruled.
BY MS. VERGOS:
Q.
The report that you're looking at, is that a
report that you authored as a result of this incident?
9
A.
This is my supplemental report.
10
Q.
And is that a report dated September 8th of
11
2004?
12
A.
The report itself?
13
Q.
The supplement that you authored?
14
A.
I don't know.
15
I don't think mine shows an exact
date of when I did mine.
16
Q.
Okay.
17
A.
It shows the initial call of 9/5.
18
MS. VERGOS:
19
THE COURT:
20
21
22
Judge, may I approach the witness?
Yes.
BY MS. VERGOS:
Q.
Deputy, I'm showing you my copy of your report.
Is that the same copy that you have?
23
A.
Mine is a little different.
24
narrative.
25
Q.
Okay.
It just has a
Is this an accurate copy of your report
431
1
in a different printout method?
2
A.
Well, the narrative is, yes.
3
Q.
Okay.
4
it indicate to you?
5
A.
Yes.
6
Q.
Okay.
7
And the bottom of the second page, does
I don't have that -- the date.
The bottom of the second page, does it
indicate to you the report date?
8
A.
Yes, it does.
9
Q.
And the report date indicated -- would that be
10
September 8th?
11
A.
Yes.
12
Q.
Now --
13
A.
I assume that back in September 8th of 2004,
14
Your recollection of the events were clearer in your mind
15
than they are today?
16
A.
Yes.
17
Q.
Would it help you to refresh your memory by
18
looking at your report?
19
20
21
A.
It does help, because it's a couple of years
Q.
Okay.
ago.
Sure.
We understand that.
So my initial
22
question to you is whether you -- when you made contact
23
with the female that was with Deputy Curtis, whether she
24
confirmed what Deputy Curtis had told you?
25
A.
According to my supplement, she did, yes.
432
1
Q.
Now, after you did that, what was your duty on
2
the scene?
3
A.
What?
Arriving on the scene, it showed that,
4
obviously, with what I was told, I tried to **safety, so
5
is blocked off the street with my cars, so no other cars
6
could go down there, and that was my initial what I did,
7
and then other units were coming in to kind of brief them
8
with what he had told me.
9
female.
10
11
Q.
Deputy Curtis was with the
Now, you indicated you responded as a road
deputy?
12
A.
Yes.
13
Q.
Does that mean you did not respond as part of
14
the Swat Team?
15
A.
Initially no,
16
Q.
Was the SWAT Team ultimately activated?
17
A.
Yes.
18
Q.
And at that point, did you transfer
19
responsibility to a SWAT member, so to speak?
20
A.
Yes.
21
Q.
Was that before or after the gun shots were
22
fired?
23
A.
That would have been after.
24
Q.
Were you present at the time the gunshots were
25
fired?
433
1
2
3
4
A.
I think I got thereafter that.
I'm not positive
on the time frame for that.
Q.
Okay.
Were you down the street, blocking that
street?
5
A.
Yes, I was at an intersection.
6
Q.
You can't necessarily tell us what happened back
7
Yes.
at the house?
8
A.
No.
9
Q.
Once SWAT was activated, did you activate with
10
them?
11
A.
Yes.
12
Q.
And what did do you as a result of that?
13
A.
I had Deputy Curtis and the female, I drove them
14
to where we were going to meet so they could brief the
15
commander of the SWAT Team.
16
Q.
And you drove them there in --
17
A.
In my patrol car.
18
Q.
In your patrol car, the car that was parked at
19
the end of the street as you indicated?
20
A.
Yes.
21
Q.
Okay.
22
23
24
25
So you drove them there.
Did you respond
back to the residence?
A.
Afterward, because I initially went with the
meeting, but then I would respond back as a SWAT member.
Q.
And when you did respond back as a SWAT member,
434
1
what were your duties?
2
A.
Initially, I was assigned duty on --
3
Q.
SWAT team?
4
A.
I usually would carry the shield, would be the
5
first one in.
6
Q.
What is the shield?
7
A.
The ballistic shield.
8
Q.
Is it bullet proof?
9
A.
Yes.
10
Q.
And how big is it?
11
A.
We have a couple.
One is like this tall, and
12
the one I think had was usually -- I usually grab the big
13
one; so it covers everything except my leg.
14
15
Q.
So we're talking about four and a half, five
feet?
16
A.
Probably four and a half.
17
Q.
How wide?
18
A.
Usually it's like this wide.
19
Q.
Two and a half, three feet?
20
A.
Yes, enough to cover my body.
21
Q.
Okay.
22
And so were you the first one going in
then with that shield?
23
A.
Usually that would be the case, yes.
24
Q.
Do you recall if that specifically was done on
25
September 5th?
435
1
A.
I did not end up going inside the house.
2
Q.
Where were you stationed or positioned?
3
A.
Initially, I went to the front door to try to
4
make contact because I would use the shield to put up
5
against the window or door to protect the other members
6
and myself.
7
Q.
How did you attempt to make contact?
8
A.
One of the deputies had knocked on the door,
9
10
knocked on the door and tried to make contact, voice
contact or something.
11
Q.
Was that while you were holding the shield up?
12
A.
Yes, just for protection.
13
Q.
And do you know what the deputy was saying?
14
A.
I remember him knocking on the door; I don't
15
remember verbally.
16
what he said.
I didn't put that in my supplement,
17
Q.
Okay.
So was that successful?
18
A.
No.
19
Q.
What did do you after that?
20
A.
All right, after that, I was relocated to the
21
back of the residence where it was believed he was in a
22
room, again with the shield to have on a window.
23
Q.
Now, let me ask you this, deputy.
You relocated
24
to the back of the residence you indicated, because
25
that's where you believed that he was, toward the back.
436
1
2
Had you had any knowledge about the layout of the house?
A.
A little bit initially when I met with Deputy
3
Curtis and the female, I asked him to sketch out the
4
house.
5
Q.
So the female did a sketch for you?
6
A.
A real brief one, yes.
7
Q.
When they did that, did she also indicate what
8
9
room she had seen the mail suspect in?
A.
I don't recall that exactly.
I think I just
10
started her with the sketch, because I usually get the
11
briefing through the commanders, and we would go do
12
whatever they tell me to.
13
14
Q.
And when you did that, you had a general layout
of the house inside?
15
A.
Very general, yes.
16
Q.
So you went to the back of the residence, and
17
18
you were situated there.
A.
What happens from there?
According to the supplement, a distraction
19
device was not put in the house, but underneath the
20
window to try to get some response.
21
Q.
The distraction device, is it like-- what is it?
22
A.
It's a loud bang.
23
Q.
It's a loud bang?
24
A.
Very loud bang.
25
Q.
Was the window left intact prior to the
437
1
distraction device being deployed?
2
A.
At that time, it was, yes.
3
Q.
And was the window broken out at some point?
4
A.
Yes, we brought the shield up, the window was
5
broken; I put the shield up so I could try to look in the
6
house.
7
to reach in and move them aside, but the window was broke
8
by the device.
9
10
Q.
I moved the blind, curtains were there, so I had
When you did look inside, were you able to see
anybody inside the residence?
11
A.
Yes.
12
Q.
The room you were looking inside, what kind of
13
room was it?
14
A.
It was a bedroom.
15
Q.
And in that bedroom, were you able to see
16
anybody?
17
A.
I saw a male subject.
18
Q.
Where was he?
19
A.
He was on the bed.
20
Q.
Did the male subject open his eyes?
21
A.
Yes, he opened his eyes briefly, but then they
22
closed.
23
Q.
Did you also see a firearm?
24
A.
I saw a firearm on the bed.
25
Q.
How near the subject?
438
1
2
3
4
A.
It was near his stomach area.
I could see part
of the gun.
Q.
Now, at that time, did other SWAT members make
entry into the house?
5
A.
Yes.
6
Q.
Were you part of that entry team?
7
A.
No, I was still on the window, and maintained a
8
9
10
visual of the subject.
Q.
Did you maintain that visual throughout the
Entry Team making contact with him?
11
A.
Yeah, until they had put him in custody, yes.
12
Q.
Okay.
13
A.
Yes.
14
Q.
And they successfully put him in custody, I
15
And you stayed there until that happened?
assume?
16
A.
Yes.
17
Q.
Any firearm discharged by the police?
18
A.
No.
19
Q.
Any other type of device discharged by the law
20
21
22
23
enforcement officers that were present?
A.
Not that I know of.
MS. VERGOS:
I have no other questions, Judge.
Thank you.
24
THE COURT:
25
MR. SHAHAN:
Cross examine.
Thank you, Your Honor.
439
1
THE COURT:
Cross examine.
2
- - -
3
4
C R O S S
E X A M I N A T I O N
BY MR. SHAHAN:
5
Q.
Good morning.
6
A.
Good morning.
7
Q.
Officer, what time did you get dispatched to
8
Honor Drive?
9
A.
I have an approximate time.
10
Q.
Yes.
11
A.
The units arrived after midnight, eleven minutes
12
after midnight, but I don't have a page showing when I
13
specifically arrived.
14
Q.
That's, approximately, what it was, 12:11?
15
A.
Oh, eleven minutes after midnight it shows
16
arrival time.
17
Q.
Okay.
18
A.
So around midnight.
19
Q.
Okay.
Did I understand that you did not hear
20
any gunshots from the scene when you were a couple of
21
blocks away?
22
23
24
25
A.
I don't recall hearing them.
I don't know
whether -- if I was even in at the time.
Q.
When you were on the perimeter area before you
came to the house with your shield, what was the
440
1
condition as it relates to Hurricane Francis in terms of
2
weather that day?
3
A.
I don't know.
4
Q.
So you don't know if it was windy, raining or
5
6
not, what was going on?
A.
I just remember it being dark, obviously,
7
because it was night, but I don't remember the weather
8
conditions.
9
Q.
Do you know whether you were wearing any -- I
10
don't know what they call them slickers, or whatever, in
11
case it would rain and that type of thing?
12
A.
Rain gear?
13
Q.
Yes.
14
A.
I don't think I was.
15
Q.
So when you were looking through the window, it
16
appeared as if the Defendant was sleeping; right?
17
A.
Well, he was on the bed.
18
Q.
Okay.
19
A.
No.
20
Q.
He wasn't listening to the radio, was he?
21
A.
No.
22
Q.
Okay.
23
Well, he wasn't watching TV, was he?
And I think you said his eyes opened and
then closed again?
24
A.
Yes.
25
Q.
And this is after this noisy flash bomb device;
441
1
right?
2
A.
Yes.
3
Q.
Now, had you ever had any contact with Mr. Daiak
4
before that day?
5
A.
No.
6
Q.
So you don't know if he's a deep sleeper or not;
7
right?
8
A.
No.
9
Q.
Was he in pajamas, or what kind of outfit was he
11
A.
I don't recall that.
12
Q.
It's not in your report?
13
A.
No.
14
Q.
Did you ask him any questions?
15
A.
I did not.
16
Q.
You stayed outside with the shield?
10
17
in?
Not that I recall.
You just looked in the bedroom, you didn't go in?
18
A.
I never went in the house.
19
Q.
And I believe you said that you had talked to
20
the lady about the events that happened before you got
21
there?
22
A.
I believe I talked to Deputy Curtis --
23
Q.
Okay.
24
A.
-- with her there, and I think I just asked if
25
after he told me what had happened, I had my response,
442
1
she confirmed it, and I think I just asked her is that
2
about what happened.
3
Q.
But your report is kind of brief.
It just says
4
she confirmed it; so it doesn't indicate that she
5
confirmed a, b, c, or d; right?
6
7
8
A.
It doesn't, no.
But she didn't tell me anything
different than what Deputy Curtis said.
Q.
Okay.
And did Deputy Curtis say that she said
9
her brother Dennis had made up this thing about there's a
10
domestic, "I told his mother to call 911, say there was a
11
domestic --" do you remember that part?
12
A.
Never heard anything about that, no.
13
Q.
And you didn't write down what she confirmed, so
14
that would be hard to know exactly what they told you
15
word-wise; right?
16
A.
Word-wise?
17
Q.
No, no, what Donna Valencourt told you.
18
A.
Well, she just confirmed what he said, what he
19
20
21
had told me, because she was right next to him .
Q.
24
25
Okay.
And this report -- may I approach the
witness, Your Honor?
22
23
What Deputy Curtis told me.
THE COURT:
Yes.
BY MS. VERGOS:
Q.
My copy of your report is a, like a one-page
report; is that correct?
It starts with 9/5/04, correct?
443
1
And it ends at, "I then left the scene and had no further
2
action."
3
A.
Yes.
4
Q.
Thank you.
So, basically, in this one page
5
report, you don't even tell us what Officer Curtis told
6
you that Donna confirmed , correct?
7
A.
In my report, it says Deputy Curtis initially
8
announced over the radio that there was a subject armed
9
with a handgun inside the residence, and the deputy was
10
outside with the girlfriend.
11
at the intersection that I described prior; I made
12
contact with Deputy Curtis who told me there was a
13
domestic verbal call at the residence, and the boyfriend
14
is still in the house armed with a .357 handgun.
15
Q.
Right.
Okay.
I arrived, put my vehicle
And -- but Curtis doesn't tell
16
you -- well, let me ask it.
So it says in here domestic
17
verbal call.
18
call was Ella Hancock, Donna's mother calling because
19
Dennis Hancock told her to call?
Did Mr. Curtis tell you that the verbal
20
A.
No.
21
Q.
And did you listen to the 911 call at all
22
yourself?
23
A.
The 911 tape?
24
Q.
Yes.
25
A.
No, I was working that night, so I heard what
444
1
2
3
was said by him, but I didn't listen to the tape.
MR. SHAHAN:
THE COURT:
5
MS. VERGOS:
6
THE COURT:
Any redirect?
No, Judge.
Would you like the witness to remain
on standby?
8
MS. VERGOS:
9
THE COURT:
10
Thank you.
Yes.
All right, you'll be on standby.
Have a good day.
11
- - -
12
(Witness excused)
13
- - -
14
THE COURT:
15
MS. VERGOS:
Please call your next witness.
Deputy Jeff Tanner.
16
17
18
No further
questions.
4
7
Thank you, sir.
- - S E R G E A N T
J E F F
T A N N E R,
being first duly sworn, testified as follows:
19
- - -
20
THE COURT:
21
THE WITNESS:
22
THE COURT:
State, you may proceed.
23
MS. VERGOS
Thank you, Judge.
24
25
Good morning, sir.
Good morning.
- - -
after
445
1
2
3
4
5
6
7
8
D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
Q.
Good morning, sir.
Would you introduce
yourself to the jury?
A.
My name is Jeff Tanner.
I'm a sergeant with the
Pinellas County Sheriff's Office.
Q.
How long have you been with the Pasco County
Sheriff's Office?
9
A.
10
years.
11
Q.
You just came off the night shift?
12
A.
Yes.
13
Q.
I'll get you out of here as quickly as possible.
14
A.
Thank you.
15
Q.
Just over twelve years.
16
I've been with the sheriffs office just over 23
Are you also a
member -- you just said over 20 years?
17
A.
Twenty.
18
Q.
Are you also a member of the SWAT Team?
19
A.
That's correct.
20
Q.
How long have you been a member of the SWAT
21
22
23
24
25
I am.
Team?
A.
Currently, I've been a member of the SWAT Team
for over 20 years.
Q.
SWAT, you guys are on calls with shift or 365
days a year?
446
1
2
A.
We're on call all the time, 365 days a year.
We
always carry pagers, so we're always on-call.
3
Q.
Is your pager designated as a SWAT pager?
4
A.
That is correct, yes.
5
Q.
Now, back in September of 2004, what unit were
6
7
you with?
A.
I was actually permanently assigned to the road
8
at that time; I was rode sergeant, but I was also a
9
member of the SWAT Team.
10
11
12
Q.
When you responded, do you respond as a SWAT
member or road sergeant at the time?
A.
It depends on what capacity I'm called.
If I'm
13
off duty, if there's a call, I respond as a SWAT member,
14
but there's other calls.
15
I initiated a SWAT-out, I just changed my uniform, and
16
take my roleas a SWAT member.
17
18
Q.
When I was a sergeant on duty,
When you were on the road as a SWAT member, is
is that what you wear, what you're wearing here today?
19
A.
Yes.
20
Q.
So it's short-sleeve usually in Florida, long
21
shirt, and shirt with badge on it; correct?
22
A.
Yes.
23
Q.
And you have your belt with all of your
24
communication devices and firearm, and taser, bullets,
25
whatever else you guys carry; right?
447
1
A.
Yes, ma'am.
2
Q.
Like 40 pounds worth of stuff on that?
3
A.
Close to 40 pounds worth of stuff, yes.
4
Q.
Okay.
5
6
7
8
9
On September 5th of 2004, in the early
morning hours, were you on duty?
A.
No, actually I was off duty at the time of the
call-out.
Q.
Okay.
And so you actually were active.
Were
you actually activated as a SWAT member at that point?
10
A.
Yes, ma'am, I was.
11
Q.
How did you get that activation?
12
A.
Through my pager.
13
Q.
So your pager goes off, you're home, relaxed and
14
15
fed, and you get up and do what?
A.
Put on my SWAT uniform, got to the scene from --
16
and I responded to the scene of the drill post, which we
17
initially gather to equip ourselves with whatever gear,
18
equipment which I need to carry into that particualr
19
call-out.
20
Q.
What did the SWAT uniform consist of?
21
A.
It's, basically, green BDU pants with kind of
22
cargo pockets, and black long-sleeve shirt which I wear
23
under a large tactical vest, very large vest, has sheriff
24
writing along the front and the back, and on the shoulder
25
covers.
448
1
Q.
So clearly it indicates who you are?
2
A.
That's correct, it's about at least three or
3
four inches tall letters that are white navy contrasting
4
background that says "Sheriff" on all four sides.
5
6
Q.
Okay.
So do you recall around what time you
were activated to the scene?
7
A.
I just recall it was during the nighttime.
8
Q.
Out of bed?
9
A.
Yes.
10
Q.
Do respond to the scene in Holiday?
11
A.
That's correct, yes.
12
13
14
15
16
17
18
19
I responded to Holiday
Square which is a plaza there at Flora Drive and US 19.
Q.
And, ultimately, do you end up going to the
residence that was involved in this on North Court?
A.
Yes, I equipped myself with that call-out that
was assigned, and I proceeded to North Drive.
Q.
Do you recall what the equipment was for that
specific call back?
A.
My equipment that I was designated to carry was
20
both my sidearm, which at the time, was our regular
21
issued Glock Model 23, a .40 caliber handgun, and my
22
empty "5," which is a submachine gun, and I carry 60
23
rounds of ammunition, two separate 30 rounds, which I was
24
designated as a cover person to go in with a deputy
25
carrying the ballistics shield.
449
1
Q.
So would that have been Deputy Fitchemaier?
2
A.
Yes, that would have been Deputy Fitchemaier.
3
Q.
Tell us what happened once you get to the
4
residence?
5
A.
Originally, when we arrived at the residence, we
6
we were positioned near the front of the residence in a
7
position where we could observe the front of the
8
residence; however, during the course of the call-out, we
9
we were assigned to a team to go to the rear of the
10
residence, and deploy a distraction device through the
11
bedroom window.
12
Q.
Tell us about that distraction device.
13
A.
The distraction device is a device that's made
14
of higher grade aluminum about the size of 12 inch cans
15
on the bottom and, basically, the charge is screwed into
16
the device, like a large firecracker.
17
tossed, it has a delay; after the delay, you have a
18
bright flash and very loud boom coming from the device.
19
Nothing fragments and comes apart like a hand grenade.
20
It stays been pretty much intact, and produces a loud
21
distraction,w which is something we use typically in SWAT
22
and search warrants to create the element of surprise.
23
If we move in somewhere after deploying it, we have the
24
advantage tactically with a surprise element.
25
Q.
When the device is
This device that you're describing to us, it's
450
1
not deployed to -- it can't harm somebody or injure
2
somebody, it's deployed for other purposes all together?
3
A.
If we deploy it in the right way, we deploy it
4
away from any people in the room, and it doesn't harm
5
anybody.
6
you wanted to get up and run across the room and go get a
7
gun, the air pressure waivers within the room, and the
8
effect on your inner ear drum will prevent you from
9
standing up right away and being able to move, because it
It, basically, sets off your equilibrium; so if
10
will throw you completely off balance.
11
are caught totally unawares
12
they're in a moment of shock for several seconds that
13
this goes off.
14
And most people
when we toss this in, so
So they're not sure what's going on, what's
15
happened; so it gives us time to move in and take people
16
into custody, you know, get control of the weapon, if
17
there's weapon in the residence, or in the room.
18
Q.
Is that the reason you deployed it on this day?
19
A.
Absolutely, that's exactly the reason because we
20
know there was a weapon involved in the residence; we
21
wanted to move in to take control.
22
23
Q.
Normally after the device was deployed, did the
entry team make their way into the residence?
24
A.
Yes.
25
Q.
Were you present at that back window when they
451
1
entered the bedroom area?
2
A.
Yes, I was.
3
Q.
Were you able to observe them take the Defendant
4
into custody and securing the firearm that was in his
5
possession?
6
A.
Yes, I did observe that.
7
MR. VERGOS:
8
Nothing else, Judge.
9
THE COURT:
10
Thank you, Sergeant.
Cross-examination.
MR. SHAHAN:
Yes, sir.
11
- - -
12
13
Thank you.
C R O S S
E X A M I N A T I O N
BY MR. SHAHAN:
14
Q.
Good morning, sir.
15
A.
Good morning.
16
Q.
Officer Tanner, at the time you were looking
17
through your back window, the bedroom lights were out;
18
correct?
19
A.
That is correct.
20
Q.
And the entry team, as you call them, they were
21
22
23
Yes, the lights were out.
wearing night vision goggles, weren't they?
A.
Not that I recall.
I didn't see anyone with
night vision goggles.
24
Q.
Were they wearing helmets with facial shields?
25
A.
We recently purchased a number of facial shields
452
1
that are put on the weapon, but the time of this
2
call-out, we didn't have any.
3
a call-out, we (inaudible) hiring police, wearing full
4
gear as relates to military.
But typically when we get
5
Q.
Explain what you mean.
6
A.
Ballistics is one of four men carry, like over
7
in Iraq, Afghanistan, coverage around, toward the ear,
8
lower neck as possible, and it does need to withstand
9
initial impact from firearms.
After repeated shots with
10
a firearm, it tends to disintegrate, but it will offer
11
protection initially.
12
Q.
Now, the team that was inside that you were
13
looking at from the outside window, they were using laser
14
lights pointed at the subject; correct?
15
A.
Well, we didn't have any laser rights on any of
16
our weapons; we've got regular bright light elumination
17
on some of the weapons.
18
Q.
How would it show as far as next to the person
19
that had the light admitted toward them, what would it
20
look like from their end?
21
A.
As far as if a light was aimed toward me?
22
Q.
Nobody on the SWAT Team came -- you have to have
23
good exercises planned how these things work out, and
24
plan those different roles on those exercises; right?
25
A.
Yes, sir.
And in training, we do have several
453
1
2
SWAT role play exercises.
Q.
Okay.
And at the time then, some of you play
3
like you're the person rather than the SWAT Team person,
4
right?
5
A.
That is correct, right.
6
Q.
How would those lights show from the SWAT Team
7
8
9
10
11
Yes.
onto the person that they're being directed at?
A.
I would in response to your question, if I'm
answering it correctly, I would guess that I would be
seeing white light.
Q.
Okay.
And it would be kind of white light
12
that's used to reduce them so that a bright white
13
light -- so that they're disoriented; right?
14
A.
Well, more -- the lights and the guns are not
15
that bright, they're more to light up our target so we
16
can define and identify what the threat is.
17
Q.
So if someone were lying on the bed sleeping,
18
this happened with -- it looked like military people that
19
was in there, didn't it, with the helmets, military style
20
ballistics helmets, others --
21
A.
Well, you're asking for an opinion?
22
Q.
Yes, with your experience.
23
A.
I would say it looks more like a SWAT Team
24
25
coming.
Q.
Okay.
But the helmets are the same?
454
1
A.
The helmets are the same design as military.
2
a matter of fact, we purchased them years ago from
3
military surplus in Farkey, Florida.
4
Q.
And this particular team that you watched
5
through the window, they're wearing what kind of shirt,
6
black shirts, aren't they?
7
8
A.
As
Well, they have black shirts, black longsleeve
t-shirts; they're worn underneath a large tactical vest.
9
Q.
What's the tactical vest look like?
10
A.
It's black, and it's all over the gear, so we
11
can retrieve any pocket to hold different parts -- our
12
equipment.
13
you actually have a pouch for carrying any type of extra
14
equipment.
15
pouch, gas mask pouch that carries a gas pouch.
16
Essentials that we may need at any given call-out are
17
fastened onto the vest with all these different pouches.
18
Q.
They also have extra couch, handcuff pouch;
We may need a utility pouch; we have a red
And were you there initially when there was
19
somebody at the front door trying to get the person
20
inside's attention?
21
22
23
24
25
A.
That was my first position that I was deployed
to where I could observe the front door.
Q.
This was after the alleged two shots were fired,
though; right?
A.
No, that was prior to two shots being fired.
455
1
Q.
Well, prior.
2
A.
No.
3
Q.
And at what time did you initially arrive at
4
5
6
this house?
A.
I don't recall exactly what time it was.
It was
during the course of the call-out.
7
Q.
Was it after midnight?
8
A.
I have no recollection exactly what time of the
9
night it was; it was just during the nighttime hours.
10
Q.
And was it raining and gusty wind at that time?
11
A.
I don't recall.
12
rain coming down.
13
and --
14
Q.
15
16
17
18
19
I don't think there was any
I don't recall being soaking wet,
Was Officer Tanner part of your team that first
came out?
A.
I recall Officer Tanner being upon the scene.
I
don't recall what role each played on the scene.
Q.
Okay.
Did you see him get off the roof because
of the wind?
20
A.
I don't recall if he was on the roof.
21
Q.
Were there any negotiators on the scene when you
22
got there?
23
A.
Yes.
24
Q.
And who were they?
25
A.
Sergeant Bill McVay.
And was there a
456
1
negotiator on the scene?
2
A.
3
scene.
4
Q.
That's the one negotiator that I recall on the
And when they first got there, Sergeant McVey
5
never attempted to actually go inside to try to talk to
6
Mr. Daiak, did he?
7
A.
He did not attempt to go inside, no.
8
Q.
And you don't recall exactly the course of the
9
negotiations, exactly what he said, and how ever said it;
10
right?
11
A.
12
13
14
That's correct.
I don't recall the details on
the consideration, or if there was any conversation.
Q.
And else it true and correct that there are
about 10 or 12 team members out there at the same time?
15
A.
That is correct, yes.
16
Q.
And did you try to do any negotiating out there?
17
A.
No, sir, I sure didn't.
18
Q.
And Mr. McVey, when he was talking, he wasn't
19
20
21
using a loud speaker, was he?
A.
or anything else.
22
23
24
25
No, I don't recall him using the loud speaker
MR. SHAHAN:
May I approach the exhibit, Your
Honor?
THE COURT:
Your Honor?
Yes.
May I approach the witness,
457
1
2
3
4
THE COURT:
Yes.
BY MR. SHAHAN:
Q.
Sir, does this appear to be a picture blown up
of the house that you were at?
5
A.
Yes, sir, that appears to be the front view.
6
Q.
Okay.
7
And there's a big picture window there;
correct?
8
A.
That is correct.
9
Q.
Nobody said to shoot out, through that window,
10
11
12
13
did they?
A.
I don't know exactly where any shots were fired
from within the residence.
Q.
Okay.
So you don't have any recollection one
14
way or the other other than hearing the shots where they
15
were fired?
16
17
A.
That is correct.
I just knew there were two
shots fired inside the residence.
18
Q.
Okay.
Thank you, sir.
19
Q.
You couldn't actually see any shooter; correct?
20
Did you see an actual shooter in the house before,
21
during, or after the shots?
22
A.
I observed the Defendant within the house, yes.
23
Q.
Okay.
24
A.
That was after the shots, because after the
25
Was that after the shots?
shots, irrelevant was redeployed to the rear of the
458
1
house.
2
Q.
But during the time before the shots, during the
3
time of the shots, you didn't see the Defendant; is that
4
correct?
5
A.
That's correct.
I didn't see the Defendant.
6
Q.
And in terms of being in front of the house,
7
were you in the front row or second row, or what was your
8
placement in front of the house?
9
A.
Actually, I was on the inner perimeter, which
10
would put me in one of the positions where I had visual
11
observation of the front of the house, and being in a
12
position to hear activity at the house.
13
14
Q.
words whatsoever from the man inside the house, did you?
15
16
And in that information, you didn't hear any
A.
I don't recall hearing anything from the
occupants of the house.
17
Q.
Where was Officer Barrington in relationship to
19
A.
I don't recall where he was in relation to me.
20
Q.
So you don't know one way or the other whether
18
you?
21
he was in a position to hear anything from inside the
22
house?
23
A.
24
25
No, I sure don't.
MR. SHAHAN:
Your Honor?
May I have a moment with my client,
459
1
2
3
4
5
THE COURT:
Yes.
BY MR. SHAHAN:
Q.
Did you actually hear the actual words that
McVey said that particular evening?
A.
I was able to hear Sergeant McVey at the front
6
door, but as far as specifically what he stated in the
7
course of negotiation, no, I don't have a specific
8
recollection of that.
9
MR. SHAHAN:
10
THE COURT:
11
MS. VERGOS:
No further questions.
Any redirect?
Just briefly, Judge.
12
- - -
13
14
15
16
17
18
R E D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
Q.
Sergeant, do you know how many times Sergeant
McVey attempted contact with the subject inside?
A.
It was quite a while they was at the front door
attempting to make contact.
19
Q.
Do you know how many times, not how long?
20
A.
No, I sure don't.
21
Q.
Okay.
22
23
When you responded, there was an attempt
at the contact at the time that you responded?
A.
That's correct.
While I was in my position
24
observing the front of the residence, there were attempts
25
to make contact.
460
1
Q.
2
3
MS. VERGOS:
6
7
And may I approach the witness,
Judge?
4
5
Okay.
THE COURT:
Yes.
BY MS. VERGOS:
Q.
Sergeant, do you recognize this CAD call
information sheet?
8
A.
Yes, I do.
9
Q.
Are you familiar with the CAD location?
10
A.
Yes, I am.
11
Q.
Are you familiar with the printout method of the
12
catalogue?
13
A.
Absolutely.
14
Q.
And with the information that's utilized in it?
15
A.
Yes.
16
Q.
So, basically, from our understanding, every
17
time something happens, law enforcement calls it into
18
dispatch, and dispatch keeps a record; right?
19
A.
That is correct.
20
Q.
And so as you're heading somewhere, or as you're
21
being dispatched, it's getting documented somewhere;
22
right?
23
A.
Absolutely.
24
Q.
Is that mostly for your safety as well, so
25
somebody knows where you are at all times?
461
1
A.
That is correct, yes.
2
Q.
So according to this CAD call from this day, and
3
this is the CAD call from this day; right?
4
A.
That is correct, this is it.
5
Q.
According to the CAD calling from this day, can
6
7
8
you tell when the two shots were fired?
A.
According to the information these two shots
were fired at 1:07 and twenty-four seconds.
9
Q.
A.m.?
10
A.
That is a.m., yes.
11
Q.
And then is that the same time that the request
12
for SWAT and negotiators went out?
13
A.
That's correct.
14
Q.
Timely 1:08 and 50 seconds?
15
A.
That is correct.
16
Q.
Okay.
Now, if you turn to page 10 of the
17
printout for me, on that page, do you see where your
18
information specifically is located?
19
A.
Yes, I sure do.
20
Q.
And it has your badge number and your I.D.
21
number, and everything?
22
A.
That is my report, I.D. No. 291.
23
Q.
Okay.
And it indicates you, and what time you
24
were dispatched, what time you arrived on the scene;
25
right?
462
1
A.
Yes, that is correct.
2
Q.
What time were you dispatched to the scene?
3
A.
That shows 1:19.
4
Q.
And 59 seconds?
5
A.
Fifty-nine.
6
Q.
What time does it say you arrived at the scene?
7
A.
It's 052.
8
Q.
And 04 seconds?
9
A.
And 04 seconds.
10
Q.
Go ahead and turn back to that CAD call for me.
11
You arrived on the scene at 1:52, you indicated?
12
A.
That is correct.
13
Q.
Do you see where there was another shot fired
14
sometime around 1:50?
15
A.
That's correct.
16
Q.
About, approximately, two minutes after you
17
arrived at the scene?
18
A.
Yes.
19
Q.
May I?
20
A.
Sure.
21
Q.
Thank you.
22
Does the SWAT Team -- do you guys have like a
23
different set of clothing, or anything if it's raining or
24
stormy outside?
25
A.
Basically, we wear the same clothing except that
463
1
we may throw on a poncho for extra protection.
2
Q.
Did you throw on a poncho this night?
3
A.
I really don't remember if I did or not.
4
Q.
Do you recall being wet?
5
A.
Not specifically.
There are some SWAT call-outs
6
that really stand out in my mind, because I got called,
7
and was out there on a call for a long period of time,
8
very uncomfortable, but in this one I don't recall either
9
way.
10
Q.
The light that you were talking about on the
11
weapons, describe that for us, because I don't know that
12
I understood.
13
fixed onto or the firearm?
14
A.
Is it like a light that's attached to, or
It's actually incorporated into the forestock,
15
which is where I hold the weapons.
So when I arrived on
16
the scene, I unscrew, put on the batteries, screw it back
17
together, and there's little contact measure foot on the
18
side of the forestock, and as I press that little
19
pressure foot, it activates a little flashlight.
20
light probably an inch and a half in diameter.
It's a
21
Q.
Is it a plain flashlight?
22
A.
This is just like any other type of flashlight.
23
Q.
Does it look like those flashlights that are, I
24
don't know, about 10, 12 inches long that are thin and
25
the kind that people use in smaller spaces?
464
1
2
3
4
A.
Correct, mapping light; that's one of the brand
names, yes.
Q.
The kind of light that eluminates like a
regular flashlight where the lights flow out?
5
A.
Yes.
6
Q.
It doesn't go down into a little point; right?
7
A.
That's correct.
8
9
It's a great light that spreads
white light for you.
Q.
And you indicate -- did you indicate that you
10
actually didn't have any laser lights or weapons at that
11
point?
12
A.
13
No, we used to many years ago, but we don't have
laser lights anymore.
14
Q.
Did you have laser lights in '04?
15
A.
No, we didn't use them at all.
16
Q.
And you indicated there were no face shields in
17
this --
18
A.
No, I don't recall any face shields.
19
Q.
No night vision goggles?
20
A.
No, I don't recall any use of night vision
21
goggles.
We only have a few pair of night vision
22
available to us, but it's used pretty selectively,
23
depending on the call-out.
24
MS. VERGOS:
25
any other questions.
Thank you, Sergeant.
I don't have
465
1
THE COURT:
Cross-examination.
2
- - -
3
4
R E C R O S S
E X A M I N A T I O N
BY MR. SHAHAN:
5
Q.
The prosecutor had you read from a log that
6
somebody said that there were shots fired.
7
hear a shot, did you?
8
9
MS. VERGOS:
THE COURT:
THE WITNESS:
13
I recall.
14
BY MR. SHAHAN:
16
17
18
19
20
21
22
23
You didn't hear a third shot, did
you?
12
15
I'm going to object to the
question, the form of the question.
10
11
You didn't
Q.
Well, no, I heard three shots that
Three shots you heard; none of those shots ended
up in any vehicle; is that correct?
A.
That is correct.
No shots ended up in any
vehicle.
Q.
You didn't see any shots hit anywhere else;
correct?
A.
No, sir, I didn't.
MR. SHAHAN:
Thank you, sir.
No further
questions.
24
THE COURT:
25
MS. VERGOS:
May the witness be put on standby?
Yes, yes.
Go home, good bye.
Have
466
1
a good day.
Thank you.
2
- - -
3
(Witness excused.)
4
- - -
5
6
THE COURT:
State, please call your next
witness.
7
MS. VERGOS:
State would call James Nagy, Judge.
8
- - -
9
10
J A M E S
N A G Y,
after being first duly
sworn, testified as follows:
11
- - -
12
THE COURT:
Good morning, sir.
14
THE COURT:
State, you may proceed.
15
MS. VERGOS:
13
sir.
Thank you, sir.
16
- - -
17
18
19
20
Good morning,
D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
Q.
Good morning, please introduce yourself to the
jury?
21
A.
My name is James Nagy.
22
Q.
How are you employed?
23
A.
Pinellas County Sheriff's Office.
24
Q.
What capacity?
25
A.
Patrol Unit, plus I have different things I do
467
1
on the side.
2
Q.
What kind of things?
3
A.
I'm on SWAT, and depending on the circumstances,
4
I'm on entris where I actually go inside the house.
5
6
Q.
Were you with -- over how long have you been
with the sheriff's office did you say?
7
A.
Nineteen years.
8
Q.
How long have you been with SWAT?
9
A.
About eight years.
10
Q.
Back in September of 2004, in the early morning
11
hours of September 5th, were you working that day?
12
Were you ultimately dispatched to a residence on Honor
13
Drive?
14
A.
I received a page on my agency pager to respond
15
there and, yes, I did.
16
for the night, but wound up coming out there because of a
17
situation I had.
18
19
Q.
I think I was off duty actually
The pager you're talking about, is that your
SWAT pager?
20
A.
Yes, it is.
21
Q.
So you received a call?
22
A.
Yes.
23
Q.
And do you recall approximately what time that
A.
Early morning hours, I'd say -- I'm not exactly
24
25
was?
468
1
sure of the time.
It was around midnight.
2
I didn't make a notation on that.
3
Q.
I'm sorry, I mean --
4
A.
I didn't make a notation on the time.
5
Q.
Okay.
6
7
So when you responded, can you tell us
what happened?
A.
I responded to the Holiday substation.
I met
8
with SWAT Team commanders, and at that point, we were
9
told of the barricaded situation where something was
10
inside.
11
residence, and we took a position.
12
residence, we give it numbers.
13
would be considered No. 1; the left side, we consider No.
14
2; the back, three, and the right side, No. 4.
15
told to go over to the garage side of the house, which
16
would be No. 2.
17
the house, No. 1.
18
19
20
Q.
Myself and Deputy James Nagy responded to the
When there's a
The front of the house
We were
We were to keep our eyes on the front of
What did you do once you arrived at that
location?
A.
We waited until the rest of the team got in, and
21
just maintained the front of the house, the integrity
22
just to make sure nobody came and left out of there.
23
Q.
What kind of weapon did you have?
24
A.
To the best of my knowledge, I believe I had a
25
handgun.
Most of the time when we're doing an entry into
469
1
a house, we have certain people that have submachine
2
guns, or machine guns commonly known as machine guns.
3
Some of the guys have to go hands-on, that will just
4
carry their regular sidearms.
5
Q.
Were you one of the ones that went hands-on?
6
A.
I went hands-on.
7
Q.
Sidearm?
8
A.
Yes.
9
Q.
So you go to the front, and do you remember the
10
At the time it was a 40 caliber.
weather?
11
A.
It was a little inclimate.
It was windy; I
12
think there might have been a little bit of rain, or it
13
had been wet, but I do remember it being windy and damp
14
out.
15
16
17
Q.
So you stood outside at that perimeter for a
while, I take it?
A.
Yes, I'm not sure of the exact time frame.
As an
18
entry person, you don't make decisions; you don't -- just
19
so you understand, you do what you're told.
20
there for ten minutes; I might sit there for 10 hours
21
depending on what the commanders decide they want to do.
22
Given I was tactical, I was to sit there on that
23
assignment until you're told otherwise.
I might sit
24
Q.
Do you have radios?
25
A.
Yeah, radio and telephone, different kinds of
470
1
2
3
communciation.
Q.
Okay.
So at some point, are you given the
command to enter the house?
4
A.
Yes, I was.
5
Q.
And is that after a distraction de --
6
A.
Distraction.
7
Q.
Thank you.
8
9
deployed.
A.
A distraction device is employed is
How loud was it?
It's extremely loud.
If you throw it in the
10
air, it's designed to overpower the senses and give the
11
entry team a chance to get inside there; we know what's
12
happening.
13
still going to cringe a little bit, because it's loud.
14
15
Q.
And then when you know it's happening, you're
And the device was employed to get you, actually
make it inside the residence?
16
A.
Yes.
17
Q.
Were you the first one in the front door, or in
18
breaking that entry.
19
A.
I was first or second in.
I breached the door.
20
Q.
What does that mean?
21
A.
We have a ram approximately 40 pounds maybe 24
22
inches long.
I was designated as the entry guy to breach
23
the door.
24
command, told to go ahead and breach a door.
25
the door by hitting the door, and you try to hit it as
When you breach the door, you're given a
I breached
471
1
close to the locking mechanism as possible.
2
door is actually breached, you can enter.
3
4
Q.
Once the
And once you did breach that door, did you go
ahead and enter the residence?
5
A.
Yes, they did.
6
Q.
Did the rest of the entry team go through?
7
A.
Followed through.
8
Q.
Once you gaind entry, what did you do?
9
A.
Went through to the back bedroom; it would be
10
11
12
13
14
going to the right.
Q.
Was there anybody else inside the residence, as
far as anybody outside the sheriff's office?
A.
There was one other person in the house, the
occupant of the home.
15
Q.
And who would that have been?
16
A.
The gentleman right here to the right.
17
Q.
Would you describe the color of his tie?
18
A.
It's red with little, or maroon with diamond
19
type things.
20
Q.
Where was he located inside the residence?
21
A.
In his bedroom.
22
23
MS. VERGOS:
Judge, let the record reflect that
the witness has identified the Defendant.
24
THE COURT:
25
MS. VERGOS:
It shall so reflect.
Judge, may I approach the witness?
472
1
2
3
THE COURT:
Yes.
BY MS. VERGOS:
Q.
Deputy, I'm showing you what's been marked for
4
identification as State's Exhibit Q, State's Exhibit E-2,
5
E-1, and what's been entered into evidence as State's
6
Exhibit 7.
7
A.
Yes, that's the bedroom.
8
Q.
Those are photographs of the bedroom you
9
10
Do you recognize those photographs?
entered?
A.
Yes, this is the window that's raked out here.
11
He was laying in the bed here, and the doorway should be
12
right over here --
13
Q.
Okay.
14
A.
-- coming into it.
15
Q.
Are they accurate representations of the
16
17
18
bedroom?
A.
I'm trying to figure this one out here.
This is the hallway.
19
Q.
This is the doorway looking in?
20
A.
Yeah, that's accurate, yes.
This would have
21
been taken -- it looks like it would have been taken
22
shortly after we removed him out of
there.
23
Q.
Okay.
24
A.
Because that's about the way it was.
25
MS. VERGOS:
Judge, at this time, the State is
473
1
seeking to introduce E through Q, and E-1 into evidence.
2
I just want to ask him which picture he just
3
told us is not the way it was.
4
THE WITNESS:
5
it was.
6
7
MR. SHAHAN:
Did you say this must have been
taken after we took him out of there?
8
9
I did not say it was not the way
THE WITNESS:
just after.
I said this would have been taken
More than likely, this would have been taken
10
just as we took him out of there, because that's about
11
the way it was when I got there.
12
MR. SHAHAN:
Didn't you say it must have been
13
taken when we took it out of there, because this doesn't
14
look right?
15
16
THE WITNESS:
No, I never said this doesn't look
right.
17
MR. SHAHAN:
18
THE COURT:
That's fine.
They'll be admitted as State's
19
Exhibit 12, 13, and 14.
20
BY MS. VERGOS:
21
Q.
No objection.
When you made entry into that residence and
22
into that bedroom, can you tell about how you went about
23
securing the suspect inside?
24
25
A.
I saw him residing in the bed, close; I asked
him to show his hand.
He just laid there, refused to
474
1
open his his eyes.
2
hand; he refused to.
3
pulled him off the bed, looking at the left side of the
4
bed, and handcuffed him.
5
6
MS. VERGOS:
9
10
11
Finally, I grabbed him by the leg,
Okay.
May he step down for a
second, Judge?
7
8
I told him several times to raise his
THE COURT:
Yes.
BY MS. VERGOS:
Q.
Deputy, go ahead and explain to the jury the
photograph.
A.
The photograph here, the entry coming in here,
12
this window here is the window that was actually bruised.
13
Everybody see this here?
14
window.
15
front door was breached.
16
through the house, through here, on the back right-hand
17
side.
18
would have been coming in this way from this side of the
19
bed, and as I came in, he was laying in the bed here.
20
What we do is we break the
Once the window is broken and opened up, the
I hit the front door, came
So can you see this?
Okay.
The entry coming in
I stood here at this side of the bed and asked
21
him several times to show me his hands, and he just laid
22
there.
23
him by the leg; I pulled, and once I got him down along
24
the edge of the bed, he -- I sat him on the edge of the
25
bed and handcuffed him.
Finally, after receiving no response, I grabbed
475
1
Q.
Where was the firearm?
2
A.
To be honest with you, I don't recall the
3
firearm.
4
Q.
How many other people were in the room with you?
5
A.
It was at least one other person.
The only way
6
I can explain it is tunnel vision; you get focus on an
7
individual, and that's what you see.
8
pay attention to too many other things.
9
10
11
12
13
Q.
Sure.
Okay.
You don't really
Once you secured the subject
inside, the Defendant, where did you go from there?
A.
I left.
I secured him, waited for somebody to
turn him over to, and I left.
Q.
Okay.
When you were in the residence, is it
14
safe to assume you didn't, you know, do anything with any
15
of the clothes, pillows, anything, everything just stayed
16
where it was?
17
A.
No, my specific job was to secure him, and then
18
left the officers doing the investigation, their
19
investigation.
20
conduct any interviews; I didn't, you know, try to
21
question him.
22
the residence, anything like that, I just went in got
23
him, and I left.
This is not my investigation.
I didn't
I didn't do an investigation as far as in
24
Q.
And then you were done?
25
A.
And I was done.
476
1
2
MS. VERGOS:
THE WITNESS:
4
THE COURT:
5
MR. SHAHAN:
11
Yes, Your Honor.
- - -
7
10
Thank you.
Any cross-examination?
6
9
I have nothing
else.
3
8
Thank you, Deputy.
C R O S S
E X A M I N A T I O N
BY MR. SHAHAN:
Q.
This flash device, it's designed to throw
someone into shock, isn't it?
A.
No, it's a distraction device, it's not
12
designed -- I don't know what the desire is.
13
got some literature, found some location, it's designed
14
to throw somebody into shock.
15
this distraction -- that's not what they told us.
16
they taught is it's designed to temporarily overload the
17
senses that when you get inside there, that you've got
18
one step over the individual.
19
so many search warrants and used the distraction device
20
many, many times.
21
EMT, and I know of no research
22
shock by it.
23
24
25
Q.
I've gone to school for
What
But as far as shock, done
I never had to call the paramedic and
where a person went into
When you had the training, and they say overload
the senses, what did you temporarily mean?
A.
If you've
Temporarily overload the senses
477
1
Q.
Like they won't be able to do a the thing;
2
they'll hurt their eyes; their equilibrium is off or
3
what?
4
5
A.
That's what it does, is cause an overload of the
senses as far as your inner interolocking of senses.
6
Q.
What sense are we talking about, sight, sound?
7
A.
What happens is, when it's thrown, you don't
8
know what happened.
9
flight or fight syndrome, most people don't know what to
10
do.
11
do I do next.
12
13
It's bright intense light, and that
They just sit there temporarily waiting to see what
Q.
Okay.
Go ahead.
And as you're looking in, and this is
happening, he's sleeping, looks like he's sleeping?
14
A.
No, looks like his eyes are close.
15
Q.
But you couldn't tell if that meant he was also
16
sleeping?
17
A.
No, I couldn't tell.
18
Q.
Definitely his eyes were closed?
19
A.
His eyes were closed.
20
Q.
No T.V. was on?
21
A.
Not that I recall.
22
Q.
No radio?
23
A.
Not that I recall.
24
Q.
And you're the one that did the breaching the
25
door with the ram; right?
478
1
A.
The front door, yes.
2
Q.
The front green door?
3
A.
Yes.
4
Q.
And this is what the door looked like when you
5
were done; right?
6
7
Can I approach the witness?
THE COURT:
Yes.
BY MR. SHAHAN:
8
Q.
Is this the after effect of the ram?
9
A.
Yeah, that's pretty accurate.
10
Q.
Okay.
11
12
MR. SHAHAN:
Honor?
13
14
May I show this to the jury, Your
THE COURT:
Has it been introduced into
evidence?
15
MS. VERGOS:
No, it hasn't, Judge.
16
MR. SHAHAN:
I'd like to move it into evidence
17
as Defense No. 2.
18
THE COURT:
19
MS. VERGOS:
20
THE COURT:
21
22
25
Judge, can we approach?
Yes.
- - -
(Sidebar discussion out o fthe hearing of the jury.)
23
24
Any objection from the State?
- - MS. VERGOS:
I don't have any objection, just so
it's his exhibit being moved now for efficiency.
The
479
1
State goes first and last.
2
MS. VERGOS:
As defense exhibit.
3
- - -
4
(End of sidebar discussion.)
5
- - -
6
7
THE COURT:
admitted into evidence as Defense Exhibit No. 2.
8
9
10
11
12
MS. VERGOS:
Q.
17
18
19
20
21
22
Does Defense Exhibit 2 fairly and accurately
represent what the door looked like after the ram?
A.
Yes.
MR. SHAHAN:
May I pass it around to the jury,
Judge?
15
16
No objection.
BY MR. SHAHAN:
13
14
All right, the photograph will be
THE COURT:
Yes.
BY MR. SHAHAN:
Q.
Basically, that door was just left that way when
you left; right?
A.
When I left, there were many deputies, sheriffs
office employees there.
Q.
Okay.
That's not my responsibility.
But do you know even though we had a
hurricane going on, that that door was repaired?
23
A.
I have no clue.
24
Q.
No --
25
A.
I have no clue.
480
1
Q.
I didn't know if you said crew or clue.
2
And you mentioned that the weather was windy and rain,
3
and that type of thing.
4
the SWAT members got off a roof next door, got off the
5
roof, Mr. Tanner got off the roof?
Was it windy enough that one of
6
A.
I don't know.
Did you ask him?
7
Q.
Well, I can't testify. I'm just talking about
8
something I read in discovery.
9
Mr. Tanner on the roof, and then him getting off the
10
roof?
11
A.
No, I do not.
12
Q.
Thank you.
13
14
MR. SHAHAN:
17
18
May I approach the witness, Your
Honor?
15
16
Do you remember seeing
THE COURT:
Yes.
BY MR. SHAHAN:
Q.
Showing you State's Exhibit 7 in evidence.
Do
you see this little square blue box by the headboard?
19
A.
Yes.
20
Q.
Did you ever lift that covering off to see what
21
was under there?
22
A.
No, I did not.
23
Q.
Did you later determine what was under there?
24
A.
No, I did not.
25
Q.
Okay.
Did you look at any of the bullet holes
481
1
in the house?
2
A.
No.
Like I said before, I don't do
3
investigations on this.
4
competent investigator, detectives for some years, but
5
that's not my job function capacity here.
6
7
Q.
I don't -- believe me, I'm a
Does that appear to be the front of the house
that you went to with the ram?
8
A.
Hold it up.
9
Q.
Yes, absolutely.
10
A.
I'm not that good anymore.
11
Q.
And these chairs are blown over; correct?
12
A.
I don't know that they're blown over or not, but
13
Yes, that is.
they're over.
14
Q.
Thank you.
Do you remember whether this was --
15
while Hurricane Francis was coming through New Port
16
Richey?
17
A.
18
19
MR. SHAHAN:
THE COURT:
MS. VERGOS:
23
THE COURT:
25
Thank you,
Any further questions from the
State?
22
24
No further questions.
sir.
20
21
I believe so.
No, Judge.
All right, would you like this
witness placed on standby?
MS. VERGOS:
Yes.
482
1
THE COURT:
Thank you, sir.
2
- - -
3
(Witness excused.)
4
- - -
5
6
Have a good day.
MR. SHAHAN:
Your Honor, could we take a short
five-minute comfort break?
7
THE COURT:
At this time, we're going to take a
8
short 15-minute comfort break, and it's actually going to
9
be fifteen minutes.
Again, that should give you time to
10
get a snack or some caffeine, whatever it is your need.
11
Just don't be hanging outside, or in the courtroom, just
12
come right through here, and within fifteen minutes be
13
back in the jury room.
14
If you would just like to take advantage of the
15
comfort part of the comfort break, there are comfort
16
stations also known as restrooms in the jury room, and
17
they're actually pretty nice.
18
in there.
19
Everything is pretty nice
I checked it out yesterday.
I would also informed the parties involved,
20
please don't have any discussion in the courtroom that
21
the jury should not be hearing, because they could be
22
walking in and out.
23
discuss things, Deputy Hatcher will find one for you, all
24
right?
25
weather, or anything like that, you can do that.
If there's a place where you want to
But if you're talking about sports, or today's
But if
483
1
you're talking about the case, please don't do it in
2
here, because the jury may be walking through at some
3
point.
4
All right, be back in fifteen minutes, which is
5
ten minutes of by the courtroom clock.
6
you.
7
All right, thank
- - -
8
(Court in recess.)
9
- - -
10
(Court reconvened out of the presence of the jury.)
11
- - -
12
THE COURT:
All right, Bailiff Hatcher has
13
informed me that Juror Lisa Wood informed him that she
14
didn't know that she knew James Nagy until he took the
15
stand, and she knows him only because her son and his son
16
played on the same little league baseball team; correct?
17
THE BAILIFF:
18
THE COURT:
Correct.
So would anyone like to further
19
inquire about that, or would you like to waive your right
20
to further inquire on that?
21
22
- - (Defense counsel conferring with client.)
23
- - -
24
MS. VERGOS:
25
THE COURT:
Which one?
She's the last one on the list, is
484
1
all I know.
2
MR. SHAHAN:
We don't have any problem with that
3
female juror having known Mr. Nagy, but he said that the
4
family friend, Gary, that was in here yesterday, was
5
saying they saw several times juror No. 1 falling asleep;
6
so we just want to make sure that someone is watching
7
him.
That's all.
8
9
I just found out right now.
THE COURT:
The way this courtroom is
configured, I'm always facing this way, which made it
10
uncomfortable when we were picking the jury.
11
a number of jurors on this side, and then a number of
12
jurors on this side; so I naturally go this way.
13
spending most of my time looking at the jury, and I
14
haven't seen anyone falling asleep.
15
MR. SHAHAN:
16
THE COURT:
And we had
So I'm
Okay.
So if I see that, I will make a note
17
of it and let the parties know, but I haven't seen that
18
at all.
19
MR. SHAHAN:
Okay.
If we see one we think is
20
falling asleep; so do we have permission to make some
21
kind of noise?
22
THE COURT:
23
MR. SHAHAN:
24
THE COURT:
25
observed anyone?
No, no, approach the bench.
Okay.
Thank you.
Deputy Hatcher, have you ever
485
1
BAILIFF HATCHER:
No, Judge.
I've been looking
2
quite extensively yesterday to make sure none of the
3
jurors were sleeping . I didn't see any.
4
5
THE COURT:
So would you like me to inquire of
Ms. Wood or not?
6
MR. SHAHAN:
7
THE COURT:
8
All right, Ms. Vergos has an issue where she has
9
10
No.
All right, then let's go ahead.
one witness who is here, and then one went who can't be
here for an hour.
11
MS. VERGOS:
Right, he was at that murder
12
suicide scene last night, got home at 7:00.
We just woke
13
him up, you said be here in twenty minutes.
He lives in
14
Springhill; it's going to take him thirty minutes to get
15
here, but beside that, I mean, he literally -- we just
16
dragged the guy out of bed.
17
MR. SHAHAN:
I have no problem taking one
18
witness, and he can wake up.
19
suicide.
That's what we were going to talking about.
20
THE COURT:
21
MS. VERGOS:
22
23
He was in the murder
What's he going to testify about?
He was a crime scene detctive.
He's got all of that information.
THE COURT:
So --
Bring the jury back.
24
- - -
25
(Jury entered the courtroom.)
486
1
- - -
2
3
THE BAILIFF:
the courtroom.
4
5
The jury is present and seated in
THE COURT:
All right, State, please call your
next witness.
6
MS. VERGOS:
Peter Rohrig.
7
- - -
8
9
P E T E R
R O E H R I G,
duly sworn, testified as follows:
10
- - -
11
THE COURT:
12
THE WITNESS:
13
THE COURT:
14
MS. VERGOS:
Good morning, sir.
Good morning.
State, you may proceed.
Thank you, Judge.
15
- - -
16
17
18
19
after being first
D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
Q.
Could you please introduce yourself to the jury?
state your name.
20
A.
Peter Roehrig.
21
Q.
How long have you been with the Pasco County
22
23
24
25
Sheriff's Office?
A.
I've been with the Pasco County Sheriff's Office
twenty-two and a half years.
Q.
And during your twenty-two and a half years with
487
1
the sheriff's office, have you been assigned to a
2
specific unit?
3
A.
Yes, ma'am, I have.
4
Q.
Different units throughout the times?
5
A.
Yes, ma'am.
6
Q.
In December of 2004, what unit were you
7
assigned.
8
A.
The SWAT Team.
9
Q.
Was that the only unit you were assigned to?
10
A.
No, ma'am.
11
Q.
What else?
12
A.
Hostage negotiator.
13
Q.
Anything else?
14
A.
Field training officer.
15
Q.
Fell training officer.
16
A.
Training new recruits.
17
Q.
Were you also on the road, anything of that
18
19
20
nature?
A.
Yes, ma'am, that's my primary responsibilities
at this time.
21
Q.
22
SWAT Team?
23
A.
24
25
What is that?
Okay.
How long have you been a member of the
SWAT Team as in negotiators is also assigned
with the SWAT Team, or just specific SWAT itself.
Q.
Specifically, SWAT?
488
1
A.
About six, seven years now.
2
Q.
And what about the negotiators?
3
A.
Six years.
4
Q.
Are you also -- I guess inside the SWAT Team,
5
are you one of the SWAT medics?
6
A.
Yes, SWAT medic.
7
Q.
SWAT medic.
8
A.
At that time --
9
Q.
What does that mean?
10
A.
The SWAT medic's responsibility is to take care
What does that --
11
of any medical need and any kind of call-out, both
12
involving the team and/or any defendants or anybody at
13
the scene pending I'll do the evaluation, and at that
14
time notify the emergency medical service, which is
15
usually on standby command post, and they come hand do
16
their advance life support procedures; so whatever the
17
incident calls for.
18
19
20
21
Q.
So before and beyond your regular SWAT training,
do you receive medical training of some sort?
A.
Yes, ma'am, I'm a certified emergency medical
technician basic tactical (ph.).
22
Q.
What does that mean?
23
A.
One is basic emergency medical medicine, and one
24
deals with emergency medical medicine on a tactical
25
basis, such as gunshot wound, and more serious injuries.
489
1
2
Q.
Okay.
And what kind of training have you
received for those things?
3
A.
I'm sorry, I don't understand the question.
4
Q.
Is it a schooling or --
5
A.
Yes, constant schooling.
6
Q.
Okay.
A.
Yes, ma'am.
7
8
9
Is it an ongoing course that you have to
do?
I just recertified my State of
Florida Emergency Medical Technician license.
10
Q.
And how often do you have to do that?
11
A.
Every two years.
12
Q.
And every two years there is a process that you
13
go through in order to recertify?
14
A.
Yes, ma'am.
15
Q.
What is that?
16
A.
Required to take a 40-hour class, and then two
17
hours of HIV and contageous diseases class.
18
Q.
Classes?
19
A.
Yes, ma'am.
20
Q.
And what is initially required in order to
21
obtain the license, the same thing that's initially
22
required?
23
A.
Initially.
24
Q.
Uh-huh.
25
A.
If you initially take this particular license,
490
1
it's long indepth training on emergency medical medicine.
2
Q.
Did you do that long indepth training?
3
A.
Yes, ma'am, in 1975.
4
Q.
And so that's why we update you every two years?
5
A.
Yes, ma'am.
6
Q.
So back in September of '04, you were the SWAT
7
medic then?
8
A.
Yes, ma'am.
9
Q.
And were you dispatched to respond to the
10
Holiday address?
11
A.
Yes, ma'am, I was.
12
Q.
As the SWAT medic?
13
A.
That was my primary responsibility at that time.
14
Q.
You did dispatch there.
What did you do -- were
15
you there while entry was made to the residence, anything
16
of that nature?
17
A.
My primarily location in the formation is on --
18
I'm part of the Entry Team, however, I do not make entry
19
into the house unless I'm needed, and I do not make entry
20
until the scene is safe.
21
22
23
Q.
Now, when you arrived after residence, what were
you informed?
A.
Prior to arriving at the residence, I received
24
information that the Defendant had indicated suicidal
25
tendencies.
491
1
2
3
Q.
Were you informed that there was a firearm
involved?
A.
Yes, I was.
4
MR. SHAHAN:
5
THE COURT:
Objection.
May we approach?
Yes.
6
- - -
7
(Sidebar discussion on the record.)
8
- - -
9
MR. SHAHAN:
I don't want to be presumptuous,
10
because I don't want to cause a mistrial.
11
try to into -- he made statements to other parties in the
12
arrest.
That's not in anything in discovery that I got
13
before.
All it was -- all they said, he had a gun to his
14
head, not -- so I don't want them to get into stating
15
that, because there is nothing in evidence, no
16
prediscovery, none of that.
17
THE COURT:
18
MS. VERGOS:
He's going to
All right, what says the State?
I think he said he was informed
19
there was some suicidal tendencies, and I started asking
20
about the gun.
21
statements, or anything that that nature.
22
I didn't ask him about any specific
MR. SHAHAN:
I was afraid he was going to blurt
23
it out, because he did in his deposition two days ago.
24
don't want it to come out.
25
THE COURT:
I think the State went beyond that
I
492
1
in the questioning.
2
3
MS. VERGOS:
and go on.
4
THE COURT:
5
(End of sidebar discussion.)
7
9
Proceed.
- - -
6
8
I'm going to ask who he knew about,
- - BY MS. VERGOS:
Q.
You were talking about what information you had
10
about a weapon.
11
firearm?
Did you have any information regarding a
12
A.
Yes, I did.
13
Q.
And the information regarding the firearm, were
14
you informed that someone mad seen the Defendant with a
15
firearm to his head?
16
A.
Yes.
17
Q.
Once you made your entry, and then you
18
ultimately went in, did you make contact with the
19
Defendant?
20
A.
Yes.
21
Q.
Did you do that in your medical capacity?
22
A.
Yes, I did.
23
Q.
What can you tell about that?
24
25
Tell us what
happened after that.
A.
When I first made contact with the Defendant, I
493
1
observed that he was somewhat on the incoherent side, and
2
was steadily staring in space.
3
any of my verbal stimuli.
4
get further information to make sure he was okay.
5
smelled a strong odor of alcoholic beverage coming from
6
his person.
7
Q.
Okay.
He wouldn't respond to
At that point I was trying to
I
When you said that he was somewhat
8
incoherent, do you have the regular SWAT pager that means
9
that you're getting paged in the middle of the night,
10
getting out of bed, going to where you need to go?
11
A.
Yes.
12
Q.
And do you often make contact with people who
13
are asleep, or who were asleep prior to your arrival?
14
A.
I'm sorry?
15
Q.
During the course of your responding as a SWAT
16
team member --
17
A.
Yes.
18
Q.
-- have you often made contact with people who
19
have either been asleep, or were asleep prior to your
20
arrival?
21
A.
Arrival to the scene?
22
Q.
The scene, yes.
23
Q.
Okay.
And in doing so, when you observed the
24
Defendant on this day, the state that he was in, was that
25
like a sleeping-type stage?
494
1
2
3
4
A.
No, from my experience, it appeared that he
was -- something was not right.
Q.
Okay.
You indicated that you smelled a strong
odor of alcohol?
5
A.
Yes, ma'am.
6
Q.
Was that coming from his person?
7
A.
Yes, ma'am.
8
Q.
Did you see any evidence of alcohol in the
9
residence, or alcohol use?
10
A.
I don't recall, ma'am.
11
Q.
Once you were inside the bedroom, did you see
12
13
14
15
16
any other indication of what could be impaired?
A.
Yes, ma'am.
I observed an empty pill bottle on
the dresser next to the bed.
Q.
And the pill bottle, what kind of pills was it?
Was it a prescription?
17
A.
Yes, ma'am, it was prescription medication.
18
Q.
And the medication, do you recall what it was?
19
A.
Adderal (ph.) 10 milligrams.
20
Q.
What is that?
21
A.
It's an amphetamine that's used, it affects the
22
23
24
25
central nervous system, and it's a stimulant.
Q.
Now, you indicated before that you had
information regarding this was a possible suicide?
A.
That's correct.
495
1
Q.
What's that a concern of yours, these pills?
2
A.
Yes, ma'am, it was.
3
Q.
And did you proceed in accordance with that
4
5
concern?
A.
Yes, ma'am, I attempted to find out if there
6
were pills in that bottle or not through his girlfriend,
7
and I was advised she couldn't tell whether there was or
8
was not pills in there.
9
condition, the only other option available was to assume
10
that he may have taken those pills with a possibility of
11
alcohol.
12
13
14
15
16
17
Q.
Okay.
So at that point with his
Now, while you were there, how long were
but with him, approximately, do you recall?
A.
Ma'am, I don't know time.
It either goes fast
or slow on these missions.
Q.
When you were with him during that time, did you
see any scrapes on him?
18
A.
No, ma'am, nothing visual.
19
Q.
Once you were with him, that was after he was
20
already taken into custody; is that correct?
21
A.
Yes, ma'am.
22
Q.
Did you see any abrasions?
23
A.
No, ma'am.
24
Q.
Any bruises?
25
A.
No, ma'am.
496
1
2
Q.
Did you see any open cuts or wounds, anything
of that nature?
3
A.
That, I can recall.
4
Q.
Broken bones, anything?
5
A.
He didn't respond.
We kept asking for -- all he
6
kept asking for was his attorney.
7
as far as any type of evaluation, was extremely limited.
8
9
Q.
And, Mr. Shahan, and
Did you see any joint out of place, anything of
that nature?
10
A.
Not that were obvious, ma'am.
11
Q.
Did you see any physical injury to him that was
12
apparent to you at the time of your examination?
13
A.
No, ma'am.
14
Q.
Any bleeding?
15
A.
No, ma'am.
16
Q.
Nothing?
17
A.
Nothing.
18
Q.
And the person that you made contact, do you see
19
him here in the courtroom?
20
A.
Yes, ma'am.
21
Q.
Can you identify him for the jury?
22
A.
Sitting over there at the defense table.
23
Q.
Can you describe an article of clothing?
24
A.
Blue jacket.
25
Q.
What about his tie?
497
1
A.
2
3
Maroon with silver diamond in it.
MS. VERGOS:
that the witness has promptly identified the Defendant.
4
THE COURT:
5
MS. VERGOS:
6
And, Judge, may the record reflect
It shall so reflect.
I have no more questions. Thank
you.
7
- - -
8
9
C R O S S
E X A M I N A T I O N
BY MR. SHAHAN:
10
Q.
Good morning, Officer.
11
A.
Good morning, Mr. Shahan.
12
Q.
Now, Adderal, you know is prescribed for
13
attention deficit disorder; right?
14
A.
Yes.
15
Q.
And you said that this bottle -- well, strike
16
that.
I don't know if you said that today or not.
17
May I approach the witness, Your Honor?
18
THE COURT:
19
20
Yes.
BY MR. SHAHAN:
Q.
Sir, I just want to make sure that the police
21
report you have in front of you is the same police report
22
I have.
23
24
25
A.
Is this in fact your report?
It's a little bit different, yes.
It's all the
same, it's just a different format.
Q.
It was just printed out by your computer printer
498
1
a little bit different; correct?
2
A.
Yes.
3
Q.
Because it starts out with --
4
A.
This is the beginning page.
5
Q.
Right.
6
A.
Yes, this is all the same.
7
Q.
And then it goes to this page here, which would
8
be that's right.
9
same, yes.
10
11
Q.
On Sunday, 9/5/04 --
That's right.
It looks like it's the
And then it says, "I then secured from the scene
no further action," right?
12
A.
Yes.
13
Q.
Good.
14
A.
Uh-huh.
15
Q.
Now, in that report you indicate that bottle
16
We've got the same one.
Good. Thank you.
should have had sixty pills in it; correct?
17
A.
Yes.
18
Q.
Do you know that sixty pills was the monthly
19
dosage for this particular problem for attention deficit;
20
right?
21
A.
I don't remember if the prescription was one a
22
day, or two a day, but there was supposed to be a
23
quantity of sixty in the bottle.
24
25
Q.
Is it fair to say that the prescription bottle
you looked at had a prescription date of May 31st, 2001?
499
1
A.
Yes, it did.
2
Q.
So that's like more than four years before this
3
event; correct?
4
A.
That's correct.
5
Q.
Okay.
6
Now -- so did you have any personal
contact with Mr. Daiak before this particular evening?
7
A.
No, I did not.
8
Q.
Okay.
9
10
So you have no way of knowing whether in
four years he just used this as prescribed over that
four-year period, somewhere along the way; right?
11
A.
No, I did not.
12
Q.
All right.
13
14
15
16
17
And you came in after the flash bang
device; correct?
A.
Usually -- I came in after the scene was secure,
which is after the flash bang.
Q.
And the flash bang is designed to disorient a
person, right, and mess up their senses?
18
A.
For a short period of time, yes.
19
Q.
You don't know how soon before you came in that
20
the flash bang was used, do you?
21
A.
No, sir, I don't.
22
Q.
And in terms of being able to determine whether
23
he had any orthopedic issues from the event were right
24
before that, you aren't qualified as an orthopedic
25
surgeon, or as an orthopedic person to determine those
500
1
2
3
4
things; right?
A.
That is correct.
That's why I went to the
hospital.
Q.
In fact, in your report, didn't you say in there
5
he was transported to Community Hospital for medical
6
clearance?
7
A.
That is correct.
8
Q.
So with your expertise, you thought -- 2ell, we
9
better send him to the hospital for medical clearance;
10
right?
11
A.
I wanted to send him to the hospital because he
12
was incoherent, would not respond to my stimuli, could
13
not determine whether indeed he had any of these
14
medications left over like people usually have.
15
didn't -- he didn't act normal.
16
wrong.
17
Q.
You wanted to be safe?
18
A.
That's correct.
19
Q.
But in the report, you weren't as detailed, you
It just
There was something
20
just say he was transferred to Community Hospital for a
21
medical clearance; right?
22
A.
That is correct.
That's usually what it means
23
to make sure the patient isn't injured, nor is there any
24
other difficulties.
25
Q.
And after he was -- did you do the transporting?
501
1
A.
No, I did not.
2
Q.
Did you go visit him after that?
3
A.
No, I did not.
4
Q.
So you don't know if he got any medical
5
treatment after that, or not?
6
A.
I'm assuming he went to the hospital with the
7
ambulance, and what treatment that was there, is between
8
him and the officers who were on the scene at the
9
hospital.
My primary responsibility, sir, is take care
10
of patients on the scene, and then transferred patient
11
care to the ambulance.
12
Q.
And even though you said there was an odor of
13
alcohol, you didn't any blood tests, breath tests, urine
14
tests?
15
A.
You can't do that out in the field, sir.
16
Q.
You didn't ask for that later on, did you?
17
A.
That's not my responsibility.
18
Q.
So is the answer no blood test, no urine test?
19
A.
No.
20
Q.
Okay.
21
scrapes and abrasions.
22
23
A.
What was he wearing?
I couldn't tell you, sir.
It was too -- it's
too far back, and it wasn't documented.
24
25
Now, the prosecutor asked were there
Q.
him?
Did you document how many minutes you were with
502
1
A.
No, sir, I did not.
2
MR. SHAHAN:
3
THE COURT:
4
MS. VERGOS:
5
THE COURT:
6
No further questions.
Any questions by the State?
No.
Would you like this witness to
remain on standby,
7
MS. VEGOS:
Yes.
8
THE COURT:
Have a good day, sir.
9
THE WITNESS:
10
- - -
11
(Witness excused.)
12
13
Thank you.
- - THE COURT:
All right, members of the jury,
14
because of logistical concerns, we're going to give you
15
an early and somewhat extended lunch break.
16
time, the State and the defense and the Court are going
17
to be preparing the written jury instructions for you.
18
During that
The jury instructions will be read to you by
19
myself, and I will provide written copies of those jury
20
instructions for you, and you will be able to read along
21
as I read those jury instructions to you.
22
also have the opportunity to take a copy of those jury
23
instructions back with you when you deliberate.
24
25
And you will
And in the old days when judges did not do that,
it created a lot of confusion for the jury because they
503
1
would hear the jury instructions once, and perhaps their
2
first reaction would be to say what?
3
ask numerous questions after that where the Judge would
4
then have to read and reread the jury instructions over
5
and over again.
6
benefit of the State and the defense and everyone
7
involved if you have a clear understanding of the law,
8
and if you're able to take those jury instructions back
9
with you.
10
And then after --
So it is to your benefit and to the
And it will also save a lot of time in the long
11
run.
So while your taking your extended lunch break,
12
we'll be working on those written jury instructions for
13
you and, quite frankly, the State has one other witness,
14
and he just got back from another call and he won't be
15
available until tomorrow, 12:30.
16
you to take a lunch break until 12:30, and if you can
17
appear back in the jury poolroom, which is downstairs at
18
12:30, then we should get you promptly then.
19
So I'm going to allow
And, again, for lunch, it's the same situation
20
as yesterday.
The snack bar is open if you want to go
21
there; if you were want to go off the premises, you can
22
do that.
23
you want to go as individuals, or if you want to go as a
24
group, in partial groups, that's fine.
25
not talk about the case.
The only issue may be parking and, again, if
Please just do
You can talk about anything
504
1
else, but the case.
2
Does anyone have any questions?
One question
3
you may be asking is are we going go go into Friday; the
4
answer is we'll see how things go, and as soon as we
5
figure it out, we will let you know because, obviously,
6
if you have children that you have to care for, or
7
children that you have to pick up, then you're going to
8
want to know sooner rather than later.
9
Obviously, if we go into Friday, then I will
10
excuse you by 5:00 today.
11
today, there's no way for me to predict when you will be
12
finished today, because it will take us long as it's
13
going to take you to deliberate in the case.
14
see how things go, and I will let you know as soon as I
15
know.
16
room at 12:30.
All right?
If we're going to complete it
So we'll see you back in the jury pool
17
- - -
18
(Jury excused.)
19
- - -
20
21
22
23
So we'll
THE BAILIFF:
The jury is out of the hearing the
the Court.
THE COURT:
Mr. Shahan, have you had a chance to
look at the jury instructions,
24
MR. SHAHAN:
25
THE COURT:
Yes.
I'll put on the record we're going
505
1
to go off the record, and we're going to discuss the
2
jury instructions, and then if everyone agrees, and we
3
have a consensus, we'll put that on the record.
4
there's anything that anyone objects to, then we'll put
5
that on the record later.
6
having a whole lot of babble on the record right about
7
jury instructions and correcting typographical errors,
8
and that sort of thing, and we'll put all the objections
9
on the record later.
But I don't see any point in
10
- - -
11
(Off the record.)
12
- - -
13
14
15
16
17
18
19
20
21
22
23
24
25
(L U N C H
If
R E C E S S.)
506
1
2
- - Thereupon,
3
MS. VERGOS:
I spoke to Mr. Tepedino
4
after the afternoon session.
5
was testifying, and Deputy Tepedino said he didn't know
6
if I was calling him because I hadn't confirmed anything
7
yet.
8
point bullets, and whether he wasn't sure if hollow
9
bullets went through concrete, and had a little
10
Deputy Curtis asked if he
And Deputy Curtis mentioned something about hollow
conversation about that subject.
11
I don't plan on talking to Deputy Tepedino about
12
hollow point bullets, or whether they have the ability to
13
go through concrete or anything of that nature.
14
was the extent of their conversation.
15
everything else, I figured I would bring that to the
16
court's attention.
17
18
THE COURT:
MR. SHAHAN:
20
THE COURT:
22
But in light of
All right, would you like me to
bring him in and inquire about that issue, Mr. Shahan?
19
21
And that
No.
All right, thank you.
Bring the jury in.
THE BAILIFF:
Yes, Your Honor.
23
- - -
24
(The jury entered the courtroom.)
25
- - -
507
1
THE BAILIFF:
2
THE COURT:
3
MR. VERGOS:
The jury is seated, Your Honor.
State, call your next witness.
State calls Davd Tepedino.
4
- - -
5
6
D A V I D
T E P E D I N O,
duly sworn, testified as follows:
7
- - -
8
THE COURT:
9
THE WITNESS:
10
THE COURT:
11
MS. VERGOS:
Good afternoon, sir.
Good afternoon.
State, you may proceed.
Thank you, Judge.
12
- - -
13
14
15
16
after being first
D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
Q.
Good afternoon.
Would you please introduce
yourself for the record?
17
A.
David Tepedino.
18
Q.
What position do you hold?
19
A.
Forensics technician specialist.
20
Q.
What kind of schools?
21
A.
Crime scene school, photography schools,
22
evidence technician, collection technician, things of
23
that nature.
24
25
Q.
Approximately, how many hours of schooling do
you have to date?
508
1
A.
It's 642, approximately.
2
Q.
And with 14 years, I assume that you're out in
3
the field in helping to train extensively?zing
4
5
MR. SHAHAN:
Your Honor, we'll stipulate to his
qualifications as a forensic scientist.
6
THE COURT:
All right, I'll allow the State to
7
ask whatever it is they wanted.
8
BY MS. VERGOS:
9
10
Q.
Were you dispatched to a location in Holiday,
Florida, in 2004?
11
A.
Yes, I was.
12
Q.
As a result of your dispatch, did you collect
13
some evidence and gather some information from the scene?
14
A.
Yes.
15
Q.
Upon your arrival, is it safe to assume that the
16
scene had already been cleared?
17
A.
Yes, it was.
18
Q.
And it had been secured?
19
A.
Yes.
20
Q.
And at the time you arrived, did you ultimately
21
take into custody the .357 Magnum?
22
A.
Yes.
23
Q.
You took that into custody, and then what did
24
25
you do with it?
A.
Okay, it was given to me by Deputy Curtis.
509
1
Q.
Okay.
2
A.
I photographed it, and I impounded it.
3
Q.
Was it loaded?
4
A.
Yes, I photographed the cartridge and cartridge
5
cases that were in the barrel; I photographed it.
6
Q.
And then did you also unload the firearm?
7
A.
Yes.
8
Q.
And package it separately?
9
A.
Yes.
Correct.
10
MS. VERGOS:
11
THE COURT:
12
Judge, may I approach the witness?
Yes.
BY MS. VERGOS:
13
Q.
And is it Mr. Tepedino?
14
A.
Yes.
15
Q.
I'm showing you what's been marked for
16
identification as State's Exhibit G-1.
17
that?
Do you recognize
18
A.
Yes, I do.
19
Q.
And is that a photograph of -- well, part of the
20
21
22
firearm in this case?
A.
The barrel, and it shows the cartridges and
cartridge cases.
23
Q.
That are included the barrel?
24
A.
Correct.
25
Q.
And is that an accurate presentation of how the
510
1
firearm looked when you loaded the cartridge of the
2
firearm?
3
A.
Yes, it was like that.
4
Q.
Okay.
Other than taking the firearm into
5
custody, what else did do you as part of your
6
responsibility?
7
8
9
A.
I'd just like to say that it was opened when I
photographed it.
Q.
Okay.
And other than doing -- other than taking
10
that firearm into custody, what else did you do as part
11
of your responsibilities on the scene?
12
A.
I photographed, and I took measurements of.
13
Q.
Of the --
14
A.
Of the holes in the wall.
15
Q.
Did you also photograph other things inside the
16
location?
17
A.
The interior, and interior of the residence?
18
Q.
Including the areas where the bullet holes were?
19
A.
Yes.
20
MS. VERGOS:
21
THE COURT:
22
23
And, Judge, may I approach again?
Yes.
BY MS. VERGOS:
Q.
I'm showing you what's been marked for
24
identification as State's Exhibit F-1, F-2, I-4 and I-3.
25
Do you recognize those photographs?
511
1
A.
Yes, I do.
2
Q.
And are they all photographs of scenes within
3
the residence?
4
A.
Yes, it is.
5
Q.
Do they accurately represent what you saw inside
6
the residence upon your arrival?
7
A.
Yes, it does.
8
Q.
And as far as F-2 and F-1, are they the accurate
9
10
representation of the beer bottles and things of that
nature inside the residence?
11
A.
Yes, it is.
12
Q.
And as far as photographs, I-3 and I-4, are they
13
an accurate representation of one of the bullet holes
14
inside the residence?
15
A.
Yes, it is.
16
Q.
I'm also showing you what's been marked for
17
identification as State's Exhibit R and S.
18
recognize those photographs?
Do you
19
A.
Yes, I do.
20
Q.
And are those accurate depictions of the kitchen
21
area within the residence?
22
A.
Yes, it is.
23
Q.
Does it accurately depict the way the kitchen
24
25
appeared when you arrived on the scene?
A.
Yes, it is.
512
1
MS. VERGOS:
Judge, at this time, State would
2
seek to introduce into evidence State's Exhibit G-1, I-3,
3
I-4, F-2, Exhibit R, F-1, and Exhibit S.
4
THE COURT:
5
MR. SHAHAN:
6
THE COURT:
Mr. Shahan?
No objection.
All right, they will be admitted as
7
State's 15, 16, 17, 18, 19, 20 and No. 21.
8
BY MS. VERGOS:
9
10
Q.
Mr. Tepedino, you indicated you took some
measurements of the bullet holes?
11
A.
Yes.
12
Q.
Do you know where the bullet holes were?
13
A.
Yes, as stated in the report.
14
Q.
If you need to refresh your recollection about
15
that, please do so, and let me know when you're done.
16
Can you do without it here, look through it?
17
A.
I can do both.
18
Q.
The first bullet hole, do you recall the first
19
hole you observed near the bookcase?
20
A.
Yes, the first hole I observed was by the couch.
21
Q.
Okay.
22
A.
By the couch area, yes, in the northeast corner
23
By the couch area?
of the couch.
24
Q.
Did it go through the couch?
25
A.
Yes.
513
1
Q.
It did.
2
A.
The east wall.
3
Q.
What wall would that be?
4
A.
That would be facing the house, when you go in
5
Where did it end up through the couch?
the house -- where the front door is.
6
Q.
Right by the front door?
7
A.
Yes.
8
Q.
Do you recall the measurements of that bullet?
9
A.
Yes, I do, if I may read from my report.
10
Q.
You can refresh your recollection, yes.
11
A.
Well, from the back of the northeast corner of
12
the hole in the couch was 20 inches from the floor.
13
Q.
So 20 inches up from the floor?
14
A.
Yes, ma'am.
15
Q.
And what other measurements did you take of that
16
17
18
bullet?
A.
From the east side of the couch, this would be
also also 20 inches.
19
Q.
I don't understand what that means.
20
A.
From the back to the front.
From the -- it's a
21
measurement from the rear of the couch to where that was
22
the point of entry to the point of exit --
23
Q.
Okay.
24
A.
-- which would be on the east side of the couch.
25
Q.
So is it your understanding that the bullet
514
1
entered the couch first, and then traveled out of the
2
couch and into the wall?
3
A.
Correct.
4
Q.
Okay.
5
6
And any other measurements regarding that
bullet, or that hole?
A.
Yes.
From the frontal molding on the east wall,
7
if you go south 27 and a half inches from the floor, the
8
hole was 20 inches.
9
Q.
Now, you've really lost me.
10
A.
If you go over here -- facing the east wall, you
11
would go south 27 and a half inches; I'm plotting the
12
hole, and it's up from the floor 20 inches.
13
Q.
Okay.
So let me see if I get this right.
14
I'm showing you what's been introduced as State's Exhibit
15
5, and I know that this is the outside of the residence.
16
A.
Right.
17
Q.
But if we were talking the inside, are we
18
talking about 20 inches up?
19
A.
Yes.
20
Q.
And 27 inches over from the -- 27.5 inches over
21
22
from the door frame?
A.
From the front door molding on the east wall
23
it's south of twenty-seven and a half inches, and up 20,
24
and from the floor up 20 inches.
25
Q.
So this is the front door molding you're talking
515
1
about?
2
A.
3
4
5
6
Yeah, well, over here.
Okay, so you'd be going
south 27 and a half inches, and up 20 inches.
Q.
Okay.
I understand.
And what about the second
bullet hole that you observed?
A.
Well, the second bullet hole was located in the
7
shelving in the southeast corner of the living room.
8
was from the floor to a hole 37 and a half inches.
9
hole in the wall was located 38 inches from the floor,
10
11
It
The
and from the south wall going north nine inches.
Q.
Okay.
That second hole that you're talking
12
about, how close was it to the window that's located over
13
there on that wall?
14
15
A.
It wasn't too far away.
I don't exactly
remember how far it was, but it wasn't too far.
16
Q.
Close.
17
A.
Yes, it wasn't too far.
18
Q.
The first hole that you're talking about, how
19
far was it from the door and the doorjamb right there?
20
A.
Twenty-seven and a half inches.
21
Q.
So about this far?
22
A.
Yes.
23
Q.
Okay.
24
25
Did you -- once you located the bullet
holes, did you attempt to remove the bullets?
A.
Yes, I did.
516
1
Q.
And in order to do that, what did you do?
2
A.
I made a hole in the wall to try to extract the
3
bullet, and I observed that it probably deflected
4
usually downward.
5
Q.
What does deflected mean?
6
A.
Change course.
7
Q.
Okay.
8
A.
So you made another hole in the floor directly
9
10
11
below the hole in the wall to try to extract the bullet.
Q.
In the floor or at the lower portion of the
wall?
12
A.
I'm sorry, in the wall by the floor level --
13
Q.
Okay.
14
A.
-- to try to extract the bullet.
15
Q.
And were you able to do so?
16
A.
No, I was not.
17
Q.
So it's safe to assume you didn't see the bullet
18
lying over there?
19
A.
Correct.
20
Q.
Now, is this the type of structure that has --
21
this is what, is it the drywall?
22
A.
Drywall.
23
Q.
And is there a gap?
24
A.
A little gap and a cinder block.
25
Q.
And a cinder block.
So the bullet was not in
517
1
that gap on the floor besides the drywall and the cinder
2
block?
3
A.
4
5
I couldn't find it.
I made a diligent attempt,
but I could not find it.
Q.
What about the bullet in the book case,
6
did that bullet go through the book case and into the
7
wall?
8
A.
Yes, it did.
9
Q.
Same thing on that side?
10
A.
Made a hole -- where the hole was, a large hole
11
to try to extract it.
If it was imbedded in the wall, I
12
couldn't observe the bullet.
13
thing.
14
see if the bullet fell down.
There was -- I did the same
I made a hole on the lower portion of the wall to
15
Q.
And you couldn't locate it there either?
16
A.
No, ma'am.
17
Q.
Were you going to actually continue making the
18
19
20
hole in the wall bigger?
A.
Yes, I had a larger, really large hole to try to
extract the bullet.
21
Q.
And did you in fact make that really large hole?
22
A.
Well, it was curtailed. I made a hole in the
23
wall, two holes in the wall, one high, one low.
24
Q.
No, after that, did you?
25
A.
No, I stopped.
518
1
2
Q.
Did you continue to make any other holes or any
small holes?
3
A.
No.
4
Q.
And why did you stop that search?
5
A.
Because it would have been a lot of damage to
6
the wall.
7
Q.
8
residence?
9
A.
Four-fifty hours.
10
Q.
And do you recall the weather conditions that
11
night?
12
A.
No, I do not.
13
Q.
Was it raining?
14
A.
I don't recall it raining, no.
15
Q.
Do you recall wearing a, like a rain suit or
16
Approximately, what time did you arrive to that
It was dark.
anything like that, a raincoat?
17
A.
No.
18
Q.
Okay.
19
A.
No, I do not.
20
Q.
Did you do anything else as part of your
21
22
23
24
25
I usually don't, though.
Do you recall getting wet?
investigation or as part of your evidence collection?
A.
No, just as stated in my report, photographed,
took measurements, and collected the evidence as stated.
Q.
Okay.
MS. VERGOS:
Thank you, Deputy.
I have nothing
519
1
else.
2
THE COURT:
3
MR. SHAHAN:
All right, cross-examination.
Thank you, Your Honor.
4
- - -
5
C R O S S
E X A M I N A T I O N
6
Q.
Good afternoon, sir.
7
A.
Good afternoon, sir.
8
9
MR. SHAHAN:
check, make sure we got the same report?
10
THE COURT:
11
MR. SHAHAN:
12
13
May I approach the witness to
Yes.
Thank you.
BY MR. SHAHAN:
Q.
Mr. Tepedino, do you have the incident report
14
you're talking about here?
Fourth page, start at 35,
15
and the last page starts with No. 63, photograph?
16
A.
Correct.
17
Q.
And then it's a property receipt; right?
18
A.
Correct.
19
Q.
Okay.
20
Thank you.
Now, this couch where this bullet hole went
21
through, it faced north; correct?
22
report, that it faced north?
23
A.
Is that what's in your
Well, that's where the northeast corner --
24
that's where I plotted it, yes.
25
of the couch.
That's how I -- the back
520
1
Q.
The back of the couch?
2
A.
Yes.
3
Q.
Okay.
And part of your studies, as part of your
4
studies and training, you studied how to determine
5
whether something is an entry hole or an exit hole;
6
correct?
7
A.
Yes.
8
Q.
Okay.
9
10
And so there's no doubt in your mind that
the one bullet first entered the couch, and then after it
went through the couch, ended up in the wall, right?
11
A.
Yes, it's how it appeared to me.
12
Q.
Okay.
And in looking for these bullets, let's
13
start with the first one went through the couch.
I
14
believe you indicated in your report that bullets were
15
angled into the wall; correct?
16
A.
Yes, that's how it appeared to me.
17
Q.
So, in other words, pretty clear someone didn't
18
shoot straight at the wall, the bullet was angled into
19
the wall; after it went through the couch, it went in at
20
an angle.
21
22
Q.
Yes.
And then this book case, what wall was
this bookcase on, sir?
23
MR. SHAHAN:
24
THE COURT:
25
THE WITNESS:
May I approach, Your Honor?
Yes.
It was over here.
521
1
BY MR. SHAHAN:
2
Q.
Over here?
3
A.
Yes.
4
Q.
That was the south wall then?
5
A.
Yes.
6
Q.
Okay.
7
MR. SHAHAN:
8
THE COURT:
9
10
11
May I show this to the jury?
Yes.
BY MR. SHAHAN:
Q.
You're saying where in -- it was on the south
wall?
12
A.
13
again.
14
Q.
Did you bring the photographs back?
15
A.
Yes.
16
Q.
Ma'am, could we have the photographs she just
17
Yes, but I would have to refer to the photograph
I don't recall if it was angled or not.
used?
18
A.
Yes.
19
Q.
Okay.
20
I have it right here, sir.
Thank you so much.
21
MR. SHAHAN:
22
THE COURT:
23
24
25
May I approach, Your Honor?
Yes.
BY MR. SHAHAN:
Q.
the wall?
Okay.
And does it appear to be flush against
522
1
A.
Yes.
2
Q.
And you described that as the south wall?
3
A.
Yes.
4
Q.
Okay.
5
Yes, it does.
And do you agree that this house was
facing east?
6
A.
Easterly direction, yes.
7
Q.
Thank you.
8
9
10
Okay.
So, basically, this bookcase would have been
inside the house, but it would be like that?
A.
Right.
11
MR. SHAHAN:
12
THE COURT:
13
MR. SHAHAN:
14
THE COURT:
May I approach the jury?
Yes.
He's indicating that.
All right.
15
indicate that, have him do that.
16
BY MR. SHAHAN:
17
18
Q.
Oh, come on down, sir.
Well, if you want to
I apologize.
You're
exactly right.
19
Sir, you're telling the jury that this is on
20
this wall which you just said was what, the north wall or
21
south wall, I'm sorry?
22
A.
South.
23
Q.
And the bookcase would have been where?
24
A.
Right here.
25
Q.
Inside there, come out like that?
523
1
A.
Yes.
2
Q.
Thank you.
Appreciate it.
3
- - -
4
(Witness returned to seat.)
5
- - -
6
7
Q.
And the wall to the book case, was that --
after
it went into the bookcase, it went into the wall?
8
A.
Well, it went through the paper.
9
Q.
Okay.
10
A.
Yes.
11
Q.
So you saw paper here, there's a little hole?
12
A.
Yes.
13
Q.
Come over here, show it to the jury, please.
14
15
16
That one of the pictures?
after it went in the bookcase -A.
Well, it went back through here firsts, and then
here.
17
MR. SHAHAN:
18
UNNAMED JURORS:
19
20
21
Everybody see that?
No.
BY MR. SHAHAN:
Q.
So you got a white piece of paper, and put
that -- is that what you're saying?
22
A.
It was a whole, yes.
23
Q.
Thank you.
24
25
So
And from there, it went into the
northeast wall; right?
A.
Correct.
524
1
2
Q.
And I believe you said one of the bullets was 27
and one half inches off the floor?
3
A.
Correct.
4
east wall.
5
Q.
Wait.
From the south door molding,
You go south 27 and a half inches, not up.
Oh, you go south 27 and a half inches.
6
And from the floor, it was 20 inches, and you measured
7
that out with a measuring ruler?
8
A.
Yes.
9
Q.
And do we have a picture with you -- actually,
10
having a picture, in the picture --
11
one.
12
MR. SHAHAN:
13
THE COURT:
14
MR. SHAHAN:
15
THE COURT:
16
Because I have a set of pictures.
Can we mark these for
(Photographs marked as Defense Exhibits A
through E for identification.)
20
22
Sure.
- - -
18
21
May I go here for a moment, Judge?
identification, please, a, b, c, d, and e.
17
19
I'm sure we have
- - BY MR. SHAHAN:
Q.
Sir, I'm going to show you something that's
23
marked for purposes of identification that's "I" for
24
identification.
25
A.
Do you recognize that picture?
Yes, I recognize it.
But from this, I can't
525
1
2
3
tell you if it was, you know, which hole it was.
Q.
Oh, okay.
A.
No.
5
Q.
Okay.
Now, the "D" is one of the holes that you
made to see if one of the bullets fell down --
7
A.
Correct.
8
Q.
-- to the floor, correct?
9
A.
Yes.
10
Q.
Okay.
11
you
can't tell which hole?
4
6
So from this particular picture,
And excuse me, I'm sorry.
This is "C,"
a picture of one of the bullet holes in the wall?
12
A.
Yes.
13
Q.
Can you tell whether or not that was the bullet
14
hole, with the couch there?
15
A.
Yes, yes.
16
Q.
Okay.
17
18
19
20
Now, is this the one that's twenty
inches off the floor?
A.
Yes, that's what I stated.
MR. SHAHAN:
THE COURT:
22
MS. VERGOS:
24
25
I'd like to move this in as, I
think it's No 3, Judge.
21
23
Yeah, 20 inches.
Any objection?
No, with the previous
understanding.
THE COURT:
Exhibit 3.
It will be admitted as Defense
526
1
2
MR. SHAHAN:
Honor?
3
4
5
6
May I approach the jury, Your
THE COURT:
Yes.
BY MR. SHAHAN:
Q.
So twenty inches off the floor, that's knew
high, isn't it?
7
A.
Approximately.
8
Q.
Okay.
9
10
And in terms of the concrete between the
wall, between the door and this big picture windows, can
you tell us whether it was in the middle between --
11
A.
I really can't say.
12
Q.
But you don't see any picture window in the
13
No.
picture; there was definitely no window; right?
14
A.
No.
15
Q.
Do you know what happened to it?
16
A.
It would have been somewhere in here.
This is
17
outside, but underneathe this.
18
from this, 27 and a half inches, I don't see in this --
19
any part of the window.
20
Q.
However, I can't tell
And this one marked for identification as "D."
21
this is the hole that you made to show if the projectile
22
had fallen down to the floor?
23
A.
Right, correct.
24
Q.
And after you made the hole, up couldn't find
25
anything; correct?
527
1
A.
Correct.
2
Q.
Okay.
3
And we see the big hole in here, so did
you have to go through drywall first?
4
A.
And then clean up.
5
Q.
There were these pieces down on the ground.
6
they concrete wall --
7
A.
Not that I'm aware of.
8
Q.
Let me finish my sentence.
9
So this is before
the concrete wall?
10
A.
Yes.
11
Q.
Okay.
12
Are
And so you'd be like looking -- did you
get down like with a flashlight?
13
A.
Yeah, I did, to give a thorough search.
14
Q.
So then when you're looking with the flashlight,
15
you could see the concrete wall there; correct?
16
A.
Yes.
17
Q.
And was it a concrete block type wall from your
18
19
20
21
22
observation?.
A.
I couldn't say.
I mean, I tried dilligently,
you know, to extract this.
Q.
Okay.
MR. SHAHAN:
I'd like to put what has been
23
marked for identification -- the picture that is marked
24
for identification as Exhibit D, I want to introduce as
25
Defense Exhibit 4, Your Honor.
528
1
THE COURT:
2
MS. VERGOS:
3
THE COURT:
4
Any objection?
No, Your Honor.
It will be admitted as Defense
Exhibit No. 4.
5
MR. SHAHAN:
6
(Defense exhibit previously moved into evidence
as Defense Exhibit 4.)
9
10
11
12
Thank you.
- - -
7
8
Yes, Your Honor.
- - BY MR. SHAHAN:
Q.
In looking at the ammunition, could you tell
whether they were hollow point bullets or not?
13
A.
I don't recall, sir.
14
Q.
Can you look at your report to refresh your
15
16
17
18
19
memory?
A.
Yes, but it doesn't state.
It just states
what's on the head of the cartridge casings.
Q.
So you just took the identifying data off of the
cartridge head?
20
A.
Yes.
21
Q.
So at this point and time, you couldn't say one
22
way or the other whether they were or were not hollow
23
point?
24
A.
I don't recall, sir.
25
Q.
Okay.
This is not to scale, but this is like an
529
1
inside view of the home, about the door being here, the
2
window being there, which you get the picture; I show you
3
the other side.
4
5
We're trying to see from your inside view, once
you're on the inside.
6
A.
Right, close the door.
Okay.
7
Q.
Is there any way based -- this is not to scale,
8
but is there any way that you could plot this, do you
9
believe, based upon the numbers you did take down in your
10
report as to whether these shots ended up in -- I mean,
11
you're a trojectory expert.
12
A.
Well --
13
Q.
And if you can't, just let me know.
14
wondering.
15
A.
Yes, all the pictures are from the outside.
16
Q.
I'm just wondering.
17
A.
The inside, there's no ability -- I wouldn't
18
19
feel comfortable doing it, but I'll try.
THE COURT:
Let's approach the bench a minute.
20
- - -
21
(Sidebar discussion on the record.)
22
- - -
23
24
25
I'm just
THE COURT:
All right.
On the record, that
appears to be a sketch that was made by you, Mr. Shahan.
MR. SHAHAN:
Actually, by Mr. Daiak, inside
530
1
looking out.
2
THE COURT:
I'm not so sure that you ought to be
3
using that sketch unless he can say that fairly and
4
accurately depicts the inside of the house, first of all.
5
MR. SHAHAN:
That's a good point.
Maybe we
6
should see if I can do his own, this sketch with any
7
fairness of accuracy.
8
9
10
THE COURT:
His answer is a little strange.
He
said he wouldn't feel comfortable, but he would do it
anyway.
11
12
If he can't --
MR. SHAHAN:
He wouldn't feel comfortable, but
he would do his best.
13
THE COURT:
Could he trace over the actual
14
photograph on a piece of paper so the dimensions would be
15
the same?
16
the inside of the house, and he feels that he can do the
17
trojectory from there, he can do it.
18
his own sketch, that's fine.
19
equipped apartment this point to do it, then that's fine,
20
too.
If he feels it's an accurate representation of
If he'd rather draw
If he feels that he's not
So why don't you explore his options right now.
21
MR. SHAHAN:
Yes.
22
MS. VERGOS:
Can I get a verification what
23
counsel is asking him to do?
24
THE COURT:
25
I think he's asking him to show the
trajectory of the bullet as far as where it went through
531
1
the bookcase and where it went through the couch in the
2
wall; is that right?
3
MS. VERGOS:
4
there is no bookcase --
5
THE COURT:
6
MS. VERGOS:
7
Somewhere --- in the sketch, so how is he
supposed to indicate where it went?
8
9
But there is no couch in there;
MR. SHAHAN:
Actually, I wasn't very good.
What
I'm asking him to do is see if he can plot -- he went
10
through the various items, the two bullets where they are
11
in the wall, because I'm sure you're going to argue
12
they're close to the door where the guys were, and he
13
says way over here.
14
MS. VERGOS:
But I think we have photographs
15
that indicate that.
16
indicate how close those things were.
17
MR. SHAHAN:
18
THE COURT:
19
MS. VERGOS:
20
THE COURT:
21
them.
By the window?
Are they in evidence now?
Some may be.
I have to look.
Why don't you see if we can find
I'll take a look at them.
22
- - -
23
(Brief pause.)
24
25
I think we have photographs that
- - THE COURT:
All right, back at sidebar.
532
1
2
For the record, this has already been introduced.
MS. VERGOS:
These two are State's Exhibit H-6,
3
and State's Exhibit D-11, and State's Exhibit 6 shows --,
4
this is the stained glass window that's right here on the
5
inside of the wall; that's that brown molding; there's
6
the bullet hole.
7
then for like it's a point of reference, this is the
8
entire door frame; that made this hole right there that
9
we see kind of small, is where the bullet hole is, which
I'm not sure what you want to do.
10
is what this shows close up.
11
THE COURT:
12
MS. VERGOS:
And
Okay.
So that's this one, and the other
13
one, this hasn't been admitted, Judge, but this is
14
State's 2 for identification that shows the two other
15
walls that are -- and there's the bullet hole that he was
16
talking about.
17
hole -- there's a hole behind that.
18
we have to draw a sketch, or anything of that nature.
19
And I assume he's going to say that the
THE COURT:
So I'm not sure why
And the fact that this that is
20
not -- drawing is not to scale, really I think what the
21
jury -- it doesn't assist the jury at all in determining
22
the answer to the question.
23
the trajectory.
24
MS. VERGOS:
25
THE COURT:
I know they'r drawing into
He can't.
But where the bullet hole is located
533
1
in relationship to the house, that sketch isn't to scale.
2
That's going to warp --
3
MR. SHAHAN:
4
THE DEFENDANT:
5
MS. VERGOS:
photographs speak.
8
THE COURT:
9
MR. SHAHAN:
10
On this one, he can identify.
He uses measurements based on the floor up.
6
7
May I?
I don't think he needs to -- the
I think it's about plotting.
Okay.
We're trying to establish the
bullets are well away from the door.
11
THE COURT:
If you want to ask him about the one
12
bullet hole placed upon these two, I believe -- then if
13
you want to introduce this because that's an accurate
14
presentation, then you may.
15
to say.
16
MS. VERGOS:
17
THE COURT:
18
19
And hopefully, he'll be able
He knows.
He took the picture.
There's no close-up of the second
bullet hole?
MS. VERGOS:
There is.
They moved the bookcase.
20
They moved the bookcase in the side paneling.
The hole
21
is right there, but you can't see that with the bookcase
22
in place; so it has to be moved.
23
moved out of the way, the bullet hole is right behind it.
24
There's photos of that, but you can't see both
25
simultaneously.
Once the bookcase is
534
1
THE COURT:
Understand.
So that's bullet hole
2
one.
That's already in evidence, and this is bullet hole
3
two, which hasn't been; if you want to try with those,
4
you may.
5
MR. SHAHAN:
6
THE COURT:
7
Okay.
Which one is not in evidence.
book case one is not in evidence.
8
MR. SHAHAN:
Can we stipulate it in?
9
MS. VERGOS:
That's fine.
10
I don't mind.
That will be marked as "F."
11
MR. SHAHAN:
12
stipulating it into evidence.
13
MS. VERGOS:
14
THE COURT:
It's State's sticker.
We're
That's fine.
Well, it can be marked as State's
15
Exhibit whatever for identification, and it can be
16
admitted as Defense Exhibit 5.
17
COURT CLERK:
18
The
Can we do that?
I'm sorry, I didn't hear the bench
conference.
19
THE COURT:
So the defense would like to
20
introduce this photograph, and the State has no
21
objection.
22
and it was previously marked as State's Exhibit I-2 for
23
identification.
24
25
It will be admitted as Defense Exhibit No. 5,
MR. SHAHAN:
that.
Yes, Your Honor, we'd like to do
And there's no objection from the State?
535
1
MS. VERGOS:
That's correct.
2
MR. SHAHAN:
Thank you so much.
3
THE COURT:
Let's make sure that the witness
4
can identify what's represented in the photograph, and
5
make sure it's a fair and accurate representation of what
6
he saw that night first, all right?
7
MR. SHAHAN:
8
THE COURT:
9
10
Yes, Your Honor.
May I approach?
Yes, sir.
BY MR. SHAHAN:
Q.
I'm going to show you what's in evidence as
11
State's Exhibit 6.
12
that night?
Is that one of the pictures you took
13
A.
Yes.
14
Q.
What does it show?
15
A.
It shows a hole in the wall.
16
Q.
Okay.
And the hole in the wall represents the
17
first bullet that went through -- well, a bullet that
18
went through the couch and then ended up in the wall;
19
correct?
20
A.
Right.
21
Q.
And you in your report have laid out some
22
measurements about how far off the floor, I should say,
23
that bullet hole is; correct?
24
A.
Yes.
25
Q.
Is that the one you said was 20 inches off the
536
1
floor?
2
A.
Yes.
3
Q.
And you've also indicated in your report that
4
that's 27 and a half inches from something?
5
A.
From the front door molding.
6
Q.
From the front door molding.
And we see
7
something in the picture here -- there's something brown;
8
right?
9
A.
I don't know.
10
Q.
So you're not sure if that's the molding, or
What's this brown in the picture?
11
that's the skylight thing -- for the skylight, but those
12
little lights that are brown, the --
13
A.
I couldn't tell, sir.
14
Q.
You couldn't tell?
15
A.
No.
16
Q.
So you really couldn't plot where using your
17
measurements that are in your report on here, how far it
18
was from the actual door; on this picture you can't do
19
that?
20
21
22
23
A.
Correct.
But -- no, but from our report, from
the front door molding.
Q.
Thank you.
Just so there's no ambiguity, let me
get a picture of the front door.
Thank you so much.
24
I mean, I know in general what you're talking
25
about; maybe this isn't going to help, because this is
537
1
the outside picture of the door, isn't it?
2
A.
Correct.
3
Q.
But if he were inside from the front door
4
molding, it went 27 and a half inches.
5
these square boxes?
6
that?
What do you call
What do you -- what would you call
Hard --
7
A.
Yeah.
8
Q.
And do you consider that part of the door
9
10
11
molding then?
A.
No, by the front -- by the front door.
The
molding right down there.
12
Q.
Okay.
13
A.
All right.
14
Q.
Can you tell how far the bullet hole is from
15
Let's put it another way.
this art glass?
16
A.
No, I couldn't.
17
Q.
And I do actually have a picture here that shows
18
when you say about the molding, what we're talking about,
19
because I don't know if the molding is an inch wide, two
20
inches.
21
the molding?
22
23
24
25
A.
Is there anything that would actually show us
The molding near the front door, near the front
door?
Q.
two-inch?
But nothing in the door, say one-inch molding,
538
1
A.
I'm not following you, sir.
2
Q.
I'm not sure I am either.
I'll start over.
You
3
really don't know how wide the molding is from anything
4
that you've measured, you don't know how wide the door
5
molding was for this door?
6
7
8
9
10
A.
No, I just use that as a point of reference, and
I don't have a problem with that.
Q.
And all you're saying is bullet was 27 and a
half inches short of the door molding?
A.
Yes, 27 and a half from the front door molding,
11
I know is what goes around the door; it frames the doors;
12
I'm not talking about.
13
Q.
Are you talking about molding that's on the
14
floor?
15
A.
Yes.
16
Q.
Oh, okay.
So your measurements can't tell us
17
how far the bullet was from the door opening -- somebody
18
would walk through?
19
A.
It's 27 and a half inches from the molding.
20
Q.
From the molding?
21
A.
Yes, on the floor.
22
Q.
But we don't know how wide the molding is?
23
A.
I don't see --
24
Q.
I guess what I'm saying is, if you have 3-inch
25
wide molding, thirty and a half inches from the opening
539
1
2
of the door; right?
A.
No, sir, I'm not following you.
What I'm saying
3
is from the door, the molding from the front door, 27 amd
4
a half inches.
5
6
Q.
Okay.
Is this an inside measurement or an
outside?
7
A.
An inside.
8
Q.
An inside measurement.
9
Now, I understand inside
measurement?
10
A.
Yes, sir.
11
Q.
And did you measure any of these bullet holes as
12
they related to the outside of this window here?
13
A.
No, sir.
14
Q.
Picture window?
15
A.
No, sir.
16
Q.
And, in fact, the other bullet that went through
17
the book case first and then the paper, and then into the
18
wall, this is on this southeast wall we decided?
19
A.
Yes.
20
Q.
Okay.
21
Q.
Let's see.
Thank you.
I have another one.
Thank you.
22
And the second hole that had gone through the
23
book case was 37 and one-half inches off of the floor;
24
right?
25
A.
Yes.
540
1
2
Q.
Would you still describe that as being still
being a new height --
3
A.
37 and a half inches?
4
Q.
Thirty-seven and a half inches; right?
5
A.
Yes.
6
MR. SHAHAN:
7
THE COURT:
8
MR. SHAHAN:
9
Yes.
I'd like to have this picture
marked for identification as, I think we're up to "G."
10
COURT CLERK:
11
MR. SHAHAN:
12
May I have a moment?
"G."
Thank you.
BY MR. SHAHAN:
13
Q.
Mr. Tepedino, here's another picture that is
14
from the group that I gave you on that subpoena the other
15
day.
Do you recognize that picture?
16
A.
Yes, I do.
17
Q.
Is that a picture you took?
18
A.
Yes.
19
Q.
Does it fairly and accurately represent what you
20
saw on that day?
21
A.
It's the holes I made.
22
Q.
Okay.
23
A.
Yes.
24
Q.
The one on the bottom is the hole you made;
25
right?
541
1
A.
No, the one on top, too.
2
Q.
The one on top, too.
3
A.
So I had to extract the bullet; I didn't know at
4
that time if it was buried in the wall at that time.
5
Q.
All right, so the hole, the one that's higher
6
up, you just made a small hole bigger to look at for the
7
bookcase?
8
A.
Yes.
9
Q.
Before you did that, this bookcase was on the
10
right of the hole?
11
A.
Yes.
12
Q.
So you had to move it out of your way to do the
14
A.
Correct.
15
Q.
And this 37 and a half inch hole that we just
13
16
17
18
job?
talked about?
A.
Yes.
No, sir, the hole in the wall was 38
inches.
19
Q.
Okay.
20
the floor.
21
A.
Yes.
22
Q.
Okay.
Okay.
This is 38-inches in height from
And way off to the brother on the bottom
23
here, that is the window molding for that picture window
24
here, the green molding.
25
Yes, I believe so.
So this picture would fairly and accurately
542
1
represent the bullet that went through the bookcase, and
2
the piece of paper once it got into the wall, how far
3
away it was from this picture window molding, right?
4
A.
I don't know if I can tell you that.
5
Q.
Visually, it isn't the measurement, you can
6
visiby see.
7
A.
How far away, I do not know.
8
Q.
You did not make that --
9
A.
I do believe so.
10
Q.
Would you please look and make sure.
11
colors match you.
12
A.
Yes.
13
Q.
Would that be the same color?
14
A.
That would be over here on the inside.
15
There was another photograph.
16
tell from.
17
Q.
18
same area?
19
A.
20
21
These
Okay.
It's difficult for me to
There was the photograph that's along the
Well, the ones I previously saw, I can probably
get a better idea of the color.
Q.
And those ones you said you previously saw, were
22
the ones you saw today that Ms. Vergos showed to you, or
23
do you think that you that you today?
24
A.
I believe, yes.
25
Q.
Already, let me go get the pictures.
Thank you,
543
1
because overnight got a bigger set, the whole set.
2
sir.
3
for today, so take your time and look through that.
4
Sir, are you ready?
I'm told by the clerk these are all the pictures
5
A.
Yes.
6
Q.
Have you found the picture that you thought
7
would be more helpful?
8
A.
This photograph over here?
9
Q.
Yes, sir.
10
11
MS. VERGOS:
Judge, if we could know which one
he's talking about.
12
13
MR. SHAHAN:
Photograph, these exhibits in
evidence is Defense Exhibit 5 in evidence.
14
A.
These would be the ones closer to the --
15
in front, the glass from the front door in the wall.
16
BY MR. SHAHAN:
17
Okay,
Q.
I appreciate that, sir.
What I was trying to
18
establish is whether this green molding here was as to
19
this picture, this width to there.
20
talked about, which is Defense Exhibit 5 in evidence,
21
that's got the house; it shows the picture window, does
22
it not?
The one picture you
23
A.
Yes.
24
Q.
This picture here is the inside view, this big
25
picture here.
544
1
A.
Yes.
2
Q.
Looking at that picture you just described, and
3
look at the other defense exhibit for identification "G,"
4
do you feel comfortable now that this molding is the
5
molding on that picture window?
6
A.
I can't say.
7
Q.
Well, is that the only picture window, that part
8
of the molding?
9
A.
Yes.
10
Q.
Would it be any other kind of molding other than
11
the picture window molding?
12
A.
No, sir.
13
Q.
Okay.
14
Thank you.
MR. SHAHAN:
At this time, we'd like to move in
15
Defense Exhibit G for identification as Defense Exhibit
16
6, I believe.
17
18
THE COURT:
objection.
19
MS. VERGOS:
20
THE COURT:
21
22
23
I believe they stated they had no
No objection.
So it has been admitted as Defense
Exhibit 6.
MR. SHAHAN:
Once I get her to put a sticker No.
6 on it, may I show it to the jury, Your Honor?
24
THE COURT:
Yes, sir.
25
Now, Defense Exhibit No. 5 was admitted by
545
1
stipulation, but I'm not sure if this witness ever
2
mentioned anything about it, as far as saying what it
3
represents.
4
MS. VERGOS:
I have no idea.
5
MR. SHAHAN:
Well, he did, Your Honor.
6
over it, because the two are going to go together.
7
8
9
I'll go
THE COURT:
All right, very well.
Good point.
BY MR. SHAHAN:
Q.
This is Defense Exhibit 5 in evidence. This is
10
the one you're looking at to help determine whether this
11
is the molding in the picture window; correct?
12
A.
Correct.
13
Q.
And are you telling us in Defense Exhibit 5 that
14
this is the picture window that is this molding in
15
Exhibit 6?
16
A.
It appears to be, yes.
17
Q.
Okay.
Thank you.
18
19
20
21
MR. SHAHAN:
May I show both of these pictures
to the jury, publish them both to the jury?
THE COURT:
You can go ahead and show them, but
22
you can't say anything to the jury.
23
point out, I'll allow it and ask him to sit down.
24
25
MR. SHAHAN:
That's fine.
If you would like to
546
1
BY MR. SHAHAN:
2
Q.
Sir, we have Defense Exhibit 6; correct?
3
A.
Yes.
4
Q.
And this is where you say in the upper hole,
5
you have a little hole; you made it bigger to see if you
6
could see if that was the projectile inside?
7
A.
Correct.
8
Q.
And then in Defense Exhibit 5, you took a
9
picture of this picture window and the bookcase; right?
10
A.
Correct.
Yes, sir.
11
Q.
And before you moved the bookcase in Exhibit 5
12
to make a bigger hole, the bookcase was against this wall
13
here; right?
14
A.
Correct.
15
Q.
Southeast wall.
16
So this is the front of the
house, and this is the side of the house;
right?
17
A.
This is the front, right.
18
Q.
And the bookcase is on the side wall?
19
A.
Yes, sir.
20
Q.
And after looking at both those, and examining
21
your report, you agree that this molding here is the
22
molding from this picture window; correct?
23
A.
Correct, it appears to be; yes.
24
Q.
So this fairly and accurately represents how far
25
this projectile or bullet hole is from that bullet?
547
1
A.
I don't know how many inches.
2
Q.
Yeah.
3
4
MR. SHAHAN:
The jurors are circulating the
pictures, Your Honor, so they can all see them.
5
6
Okay, thanks.
UNKNOWN NAMED JUROR:
I don't even know what I'm
looking at.
7
THE COURT:
8
with each other.
9
once you deliberate.
All right, please don't communicate
You'll have an opportunity to do that
Right now, the photographs are
10
being published, which means that you'll have an
11
opportunity to look at them now.
12
in and deliberate, you'll take back with you the verdict
13
forms, the instructions on the law, and any all evidence,
14
so you'll have plenty more opportunity to examine all
15
other photographs, and all the evidence in the case.
16
BY MR. SHAHAN:
17
Q.
And when do you go back
Mr. Tepedino, how is the bullet hole in the
18
drywall different from any other hole in the drywall?
19
How can you tell one being a bullet hole, and one not a
20
bullet hole from your experience and training?
21
A.
Well, it depends.
I mean, you'd have to extract
22
the projectile from the wall to find out what caused it,
23
what it was that penetrated the wall.
24
25
Q.
So you can't say with certainty that this
particular hole is a bullet hole then; right?
548
1
A.
I was told by Deputy Curtis it was as stated in
2
my report.
3
Q.
Deputy Curtis is one of the alleged victims that
4
supposedly was outside the house at the time the noise
5
they felt was a shot was shot; right?
6
MS. VERGOS:
7
Curtis in this case.
8
THE COURT:
9
MR. SHAHAN:
10
wrong person.
11
BY MR. SHAHAN:
12
Q.
Judge, I object.
There's no Deputy
I'll sustain the objection.
I got it wrong, Judge.
I said the
You spoke to Deputy Curtis before you started
13
your forensic examination; is that what you're saying,
14
sir?
15
A.
Yes, he indicated to me that the weapon used two
16
shots fired to create the holes in the walls from the
17
.357 Magnum.
18
19
20
Q.
But Deputy Curtis didn't claim he was inside the
house at the time the shooting occurred?
A.
I don't know.
I don't know that.
21
I have no idea.
22
I think that's a bullet hole.
23
said?
24
25
A.
the wall.
I have no --
I just told you to look for some holes.
I think that's what he
He indicated to me that, you know, the holes in
549
1
2
Q.
Okay.
But I didn't say that the Defendant
agreed that was a bullet hole; right?
3
A.
I don't know anything about that, sir.
4
Q.
And he didn't of whether he saw the projectile
5
come from the gun into the wall; correct?
6
A.
Yes, I don't know anything about that, sir.
7
Q.
And do you know whether or not he's claiming to
8
be one of the persons that was shot at?
9
A.
I do not know that.
10
Q.
So because you didn't remove a slug, do you know
11
for sure if that's a bullet hole or not, do you?
12
A.
13
that, sir.
14
Q.
15
I was just given the information, and I went on
So the answer is yes or no as to whether that's
a bullet hole.
16
A.
I can't say for sure.
17
Q.
Thank you.
18
Q.
And in terms of the hole that's knee-high by the
19
door, you didn't pull a projectile out there either;
20
correct?
21
A.
Correct, sir.
22
Q.
And did you attempt to take any of these bullet
23
holes that were -- he matched it with the twenty-seven
24
inch hole that you saw, as far as diagram, diameter,
25
anything like that?
550
1
A.
I can do --
2
Q.
Okay.
3
And did you do any gun powder residue
tests on the Defendant's hands?
4
A.
No one was there except the deputy.
5
Q.
So the answer is no, then?
6
A.
I would say, no.
7
8
MR. SHAHAN:
Thank you, sir.
questions.
9
- - -
10
11
No further
R E D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
12
Q.
No one was there except the deputy or Defendant?
13
A.
When I went inside the residence, I was in the
14
residence with Deputy Curtis.
I did not see anyone else.
15
Q.
So you never examined the hand of Joe Daiak?
16
A.
No.
17
Q.
Thank you so much.
In the bookcase that he's
18
looking at this morning -- the back of that house -- on
19
the side wall, and the side of that is on the wall
20
external to the house, the front wall of the house?
21
A.
22
the right.
23
Q.
24
25
No, it's on the south wall; the east wall faces
This is the bookcase; correct?
bookcase was on what wall?
A.
The south wall.
The back of the
551
1
Q.
The wall -- the south, what about the side of
2
the pictures, it was close to the east wall, the front
3
wall of the house, and the bullet went into what side of
4
the bookcase?
5
6
7
8
9
A.
room.
Q.
So it was -- it came through the side of the
bookcase to the back of the bookcase?
A.
10
11
It was on the southeast corner from the living
Right, from the side.
MR. SHAHAN:
anything else.
THE COURT:
13
MR. SHAHAN:
14
THE COURT:
15
MS. VERGOS:
16
THE COURT:
MR. SHAHAN:
19
THE COURT:
20
MS. VERGOS:
22
Any further questions by Mr. Shahan?
No, Your Honor.
May this witness be excused?
Yes.
All right, sir, this witness is
excused.
18
21
I don't have
Thank you.
12
17
That's it, Judge.
Judge, can he remain on standby?
What says the State?
Judge, at this time, the State
would rest.
THE COURT:
All right, members of the jury,
23
we're going to take a 15-minute break.
I'll ask at this
24
time that you report to the jury pool room down on the
25
second floor in fifteen minutes.
All right?
Thank you.
552
1
- - -
2
(Jury excused for recess.)
3
- - -
4
THE COURT:
5
MR. SHAHAN:
6
Any motions by the Defense?
Yes, Your Honor, but could I have
like two minutes?
7
THE COURT:
8
MR. SHAHAN:
9
THE COURT:
All right.
I want to gather my papers up.
All right, I understand that should
10
I deny the motion, that Defense is going to put on some
11
witnesses; is that right?
12
MR. SHAHAN:
13
THE COURT:
14
Yes.
Who are you going to put on first?
Is that probably Donna Vaillancourt?
15
MR. SHAHAN:
16
THE COURT:
Yes.
All right, and my understanding is
17
the Defendant is going to testify in this case; is that
18
correct?
19
20
21
22
MR. SHAHAN:
Yes, yes.
he will testify.
THE COURT:
All right, Mr. Daiak, if you could
please raise your right hand.
23
24
25
When we put on our case,
- - J O S E P H
D A I A K,
- - -
s w o r n.
553
1
THE COURT:
I understand that whether or not
2
you're going to testify in this case is a decision that
3
is strictly up to you.
4
your attorney.
5
own behalf?
You get input and advice from
And is it your desire to testify on your
6
THE DEFENDANT:
7
THE COURT:
8
9
At this point it is, yes.
All right, and are you making this
decision because you believe it's in your best interest?
THE DEFENDANT:
10
THE COURT:
11
THE DEFENDANT:
Yes, Your Honor, I do.
Is anyone forcing you to do this?
Your Honor -- no, Your Honor.
12
think to answer the question, I've pretty much given my
13
testimony in the twenty-five Motions to Dismiss under
14
3.190-C that was denied.
15
THE COURT:
16
THE DEFENDANT:
17
18
Uh-huh.
My testimony will pretty much
reflect exactly the same thing.
THE COURT:
All right.
Now, you realize that
19
if you take the stand and say anything that's different
20
than what I agree to in the motion, that the State can
21
impeach you on that.
Do you understand that?
22
THE DEFENDANT:
23
THE COURT:
Yes, Your Honor.
So they can bring out their
24
inconsistent statements, and if you choose not to
25
testify, as we've gone over in the jury selection
I
554
1
process, and in the initial instructions to the jury, I
2
would instruct the jury that they cannot hold that
3
against you in any way; do you understand that?
4
5
THE DEFENDANT:
THE COURT:
7
THE DEFENDANT:
Year, go ahead.
And this is just a new thought
to me, if the decision is made that I do not testify --
9
THE COURT:
10
11
I do
have one question, though.
6
8
I understand that, sir.
Uh-huh?
THE DEFENDANT:
Would the Motion to Dismiss that
I made earlier be entered into evidence, or would it not?
12
THE COURT:
Well, that really depends upon if
13
the State wants to do it or not.
14
be able to do it, because that would be self-serving
15
hearsay.
16
MS. VERGOS:
17
THE COURT:
Your attorney would not
No, Judge.
The State may want to do that, but
18
I'm hearing from them that they have no intention of
19
doing that.
20
MS. VERGOS:
21
THE COURT:
No.
The State has no intention of doing
22
that; so the State is not going to do it, and Defense
23
could not do it, because it would be self-serving
24
hearsay.
25
THE DEFENDANT:
Okay.
Then, Your Honor, I
555
1
would have those -- I may change my mind about testifying
2
at this exact moment, and up to this point, I had planned
3
to testify.
4
I need to consult my attorney.
THE COURT:
So perhaps we should have that
5
discussion right when you're either going to testify or
6
not testify.
7
All right, thank you.
MS. VERGOS:
Judge, I did redo the instructions,
8
but they include the Defendant testifying, if that
9
becomes necessary, a change becomes necessary, that's not
10
a problem, several for the jury, one for you, and I'm
11
going to give defense counsel two.
12
13
THE COURT:
Very good.
Mr. Shahan, are you
ready for the Motion on Judgment of Acquittal.
14
MR. SHAHAN:
Yes, Your Honor.
15
Your Honor, I'm asking for a directed verdict on the
16
aggravated assault on law enforcement officer for these
17
reasons:
18
elements necessary through any of their witnesses, or any
19
of their documents so far.
20
I don't believe the State has proven all the
In terms of the evidence, to go with aggravated
21
assault on a law enforcement officer, element three, I
22
think has not been proven.
23
says that they would have to show that my client create
24
in the mind of deputy, a well-founded (inaudible) that
25
the violence was about to take place.
In that element three, it
And the reason I
556
1
suggest to the court that they have not proven item three
2
is that all of the various deputies, victims, testified
3
that no bullets exited the house; that no bullets went
4
through the front window where Mitchell was standing
5
around; no bullets went through the screen that
6
Barrington, McVey, and the other victims said they were.
7
They admitted that no bullets were found out in
8
the ground near them.
Officer Tanner today testified
9
that no bullets came to the outside, nothing got close to
10
him, and nothing got close to Barrington that was near
11
him and, therefore, I don't think they're proven that any
12
of these people could have have created in their mind a
13
well-founded fear that the violence was about to take
14
place.
15
Now, I'm not suggesting that they didn't say
16
they were in fear because they did, but since no bullets
17
came outside, I guess I could say that, you know, in
18
Miami a guy threw a football 100 some miles an hour, and
19
I saw it on T.V, and boy that scared me.
20
was going to hit me, but does not say in fact that has
21
any reasonableness to it.
22
to these guys, too.
23
I thought he
That's what I'm suggesting as
I mean, they cannot have a well-founded fear;
24
they have to prove a well-founded fear, or that's the
25
same thing as saying 20 yards away, a guy took a Samurai
557
1
knife and said I'm trying to cut your head off.
2
reasonably suggest that I have a well-founded fear when
3
it's that far away.
4
I can't
And all of these officers are outside, they're
5
outside a concrete building.
6
testified that any of these bullets left the concrete
7
building.
8
flashes, or what they thought was muzzle flashes; all of
9
them agree that they couldn't die.
10
There's no one that
All of them agree that all they saw was muzzle
I can't say right now without my notes which
11
one, but at least two of them agree that they couldn't.
12
I asked each of them, but only two agree that it's
13
probable that my client didn't see them either.
14
Now, the other aspect I think you have to grant
15
as to this highest charge, directed verdict, is that
16
through forensic evidence, no one has placed any physical
17
evidence into this Court of the actual bullets that this
18
allegedly would have caused this well-founded fear that
19
violence is about to take place.
20
that, you know, that they think that he's trying to kill
21
four officers.
22
you got a caliber that holds six bullets, four still in
23
there, only two shots were fired, and I guess if you're
24
really trying to kill four officers, you ought to at
25
least use four of those shots.
They're all saying
What they have put in evidence is that
558
1
THE COURT:
If we're going to argue motion for
2
judgment of acquittal, it ought to be on what the actual
3
charges are.
4
the Defendant attempted to kill anyone in this case;
5
right?
6
I don't think there's any allegation that
MR. SHAHAN:
Aggravated assault.
You're right,
Okay, so four, the assaults made.
With a deadly
7
Judge.
8
weapon, a gun that is used to shoot a couch and shoot a
9
bookcase in where the bullets never leave the concrete
10
building is not an assault made with a deadly weapon,
11
because just shooting it, I mean, I guess if they're at
12
the driving range, I mean, at the gun range as far away
13
as where they were when they shot this inside the house,
14
I guess anyone would say there was an assault made on
15
this deadly weapon, because at the distance we have in
16
this case, somebody shot off the gun, and I (inaudible)
17
the gun.
18
So I think with all the evidence even in the
19
best light for the State, not having any bullets,
20
not even having a forensics person to say, to be able to
21
say that the holes are from bullets, and none of the four
22
officers having been inside where these holes were made,
23
that you shouldn't let this go to the jury on anything
24
higher than an assault, if that.
25
THE COURT:
All right, in the light most
And
559
1
favorable to the State, when the police officers
2
overheard the Defendant say, do you want to die, and die,
3
die, die, and then they heard two gunshots, and they saw
4
the light from the muzzle of the firearm, I will find
5
that there is sufficient evidence that the fear that they
6
expressed is a well-founded fear, and they didn't find
7
out until well afterward that the bullets didn't actually
8
exit the home but, obviously, they didn't know that at
9
the time.
10
favorable to the State, I'm going to deny the motion.
11
12
All right, so we'll give ourselves ten more
minutes, all right?
13
14
Based upon all the evidence in the light most
MS. VERGOS:
Judge, I'm looking at the
information.
15
THE COURT:
16
MS. VERGOS:
Yes.
And Count One indicates in that
17
that threatened to do violence, and in doing so, in the
18
commission of said assault, did discharge a deadly
19
weapon.
20
weapon, as does Count three; however, Count 4 indicates
21
did use a deadly weapon.
22
error on the part of my office, but I want to bring it to
23
the Court's attention.
24
25
Count 2 also indicates did discharge a deadly
I believe that was a scribner's
I know I rested, so I don't know what the Court,
if the Court would allow me to amend the information at
560
1
this point.
2
figure as an officer of the Court, I should, so I am.
3
I indicated, I believe it's a scribner's error in that we
4
had amended the information specifically to include the
5
discharge language for every count, but it isn't included
6
in Count 4.
7
decide what to do with that.
8
THE COURT:
9
about that?
I know Counsel hasn't brought it up, but I
As
So I'm giving it to you so that you can
All right, what says the defense
If the State is allowed to amend the
10
information, is there any prejudice to you as far as your
11
preparation of the case?
12
MR. SHAHAN:
Well, I appreciate it that they
13
brought this out to the court.
The jury has been sworn,
14
he's in jeopardy, and they've been sworn on this, my
15
amended motion that you read to them, so I do object to
16
amending it.
There would be a prejudice.
17
THE COURT:
18
MR. SHAHAN:
Okay, tell me what the prejudice is.
Because there's cases out there
19
that I can use a gun in a manner which is not deadly,
20
such as whacking me over the side of the head, or
21
hitting me in the knee.
22
is different than a discharge.
23
THE COURT:
It's not going to kill me.
Hurt
And how would you have tried your
24
case differently in, or how did you try your case
25
differently based upon the scribner's error?
In other
561
1
words, is there anything you would have done differently
2
had Count 4 been alleged correctly?
3
4
MR. SHAHAN:
I would have just said he used the
weapon supposedly, correct?
5
THE DEFENDANT:
Yes.
6
MR. SHAHAN:
7
that you discharged.
8
MS. VERGOS:
That's by the officer.
9
MR. SHAHAN:
I really can't speculate, how I
And it's not alleged in here by you
10
would have done it differently.
11
honesty say it.
12
and he's in jeopardy, it would be totally unfair to amend
13
it anyway.
14
thing went on.
15
I have to, in all
With all honesty, once he's been sworn
They've already amended it twice as this
THE COURT:
The State is allowed to amend
16
information to be in conformity with the evidence, so
17
motions are allowed to be amended during the middle of
18
the trial.
19
MR. SHAHAN:
Your Honor, excuse me.
20
just remembered.
21
only proving two discharges, they're claiming four,
22
they're saying discharge against victim one, two, three,
23
four; that's what we're going to be able to do if you
24
allow him to amend.
25
I know how I'm prejudiced.
I know I
MS. VERGOS:
They're
there's only two discharges.
Your Honor, I believe Counsel has
562
1
been under the impression that we have asserted for
2
discharging all along, from the time the amendment was
3
charged and up to and including the moment I spoke about
4
Count 4, didn't allege discharge.
5
no indication from
6
believe that all four counts included a discharge element
7
up until right now.
8
THE COURT:
9
So I think I have had
Counsel at least, that he did not
Right.
I think all of us were under
the impression that it was in there, and it was the
10
intent of the State to have it in there because of a
11
secretarial error, I would presume, although lawyers are
12
always responsible for everything that their secretary's
13
do.
14
It was not put in there.
Now, I'm going to find that if the State is
15
allowed to amend count 4 so that it's consistent with
16
Counts one, two, and three, it would not be prejudicial
17
at all for the defense, because it would not change
18
anything they have done, or anything that they have would
19
have done.
20
involving two different shots, so it involves, basically,
21
the same actions in all four counts just involving four
22
different alleged victims.
23
These are four different alleged victims
So I will allow the State to amend Count 4 to
24
include not only the use of the firearm, but the
25
discharge of the firearm consistent with that are what
563
1
their original intent was, and what everyone's
2
understanding was, and consistent with the allegations in
3
Counts one, two, and three.
4
that information, you may.
5
THE COURT:
So if you'd like to amend
And, of course, it was very good
6
that the State read over the information at the this
7
point; however, for future reference it's better the
8
State read it over before the trial actually starts, and
9
I'm sure the State will.
10
And thank you for telling us.
Ten minute recess.
11
- - -
12
(Short recess.)
13
- - -
14
(Following recess.)
15
- - -
16
THE COURT:
17
MR. SHAHAN:
Bring the jury in, please.
This is the problem, Judge.
I've
18
looked at the detail affidavit of this now, but I haven't
19
had a chance to look at her deposition, and I don't know
20
that she's going to tell me her strategy, but his
21
evidence is in.
22
going to take the stand, and I need to check her
23
affidavit -- not her affidavit, not in there, but
24
deposition, whether or not -- whether the prosecutor
25
asked her what's JJ's version, and what happened.
Now debating whether he is or is not
564
1
MS. VERGOS:
Version what?
2
MR. SHAHAN:
JJ's version, and I don't think if
3
she really asks him, it would be hearsay -- did say would
4
be either an admit, or it would be a statement by a
5
party -- third-party opponent, so anything that he told
6
anyone would be admissible if the State wanted to bring
7
it in now.
8
9
Now, if he wanted to bring it in, then I
continue to do it because it would be self-serving
10
hearsay.
11
able to bring in whatever the testimony of the Defendant
12
(inaudible).
13
So to answer your question, the State would be
MR. SHAHAN:
Correct.
I apologize.
I need to
14
look at the deposition to see what she said under oath.
15
In fact, he already asked me earlier to see if you would
16
just start at one o'clock tomorrow so he could have a
17
longer time to decide because --
18
THE COURT:
We're not going to do that.
But I
19
will allow you to go ahead and read over the deposition.
20
About how many pages is it?
21
MS. VERGOS:
It's about sixty something.
I
22
don't think the Defendant needsto make a decision right
23
now.
24
25
MR. SHAHAN:
Yeah, he does.
I'll be honest.
Our view of the evidence right now is they didn't put any
565
1
residue in, didn't put any bullets in, and at best it
2
might be a circumstantial evidence case about whether he
3
shot a gun or not.
4
he's going to take the deposition or not.
5
one that's going to say no.
6
THE COURT:
He has to make a decision whether
He's the only
All right, so I can -- I can give
7
you twenty minutes to read over the deposition, if you'd
8
like.
9
10
11
12
13
14
15
MR. SHAHAN:
Okay, thank you.
years.
THE DEFENDANT:
Starting out Donna's mother will
be here by then, if you want to -MR. SHAHAN:
Okay.
And can I read that, say
twenty minutes.
THE COURT:
Yes.
16
- - -
17
(End of sidebar.)
18
- - -
19
We're talking 40
THE COURT:
Members of the jury, we're not quite
20
ready to go at this point, so we're going to take another
21
twenty-minute break, and I apologize.
22
up in the jury pool room right here, since that's more
23
efficient in 20 minutes, that will be fine.
24
- - -
25
(Short recess.)
If you can be back
Thank you.
566
1
- - -
2
(Court resumed.)
3
- - -
4
THE COURT:
5
MR. SHAHAN:
6
THE BAILIFF:
7
THE COURT:
The jury is present and seated in
All right, the State having rested,
what says the defense?
10
11
Yes, Your Honor.
the courtroom, Your Honor.
8
9
Are we ready for the jury?
MR. SHAHAN:
Your Honor at this time, we would
call Ella Hancock as our first witness.
12
- - -
13
D E F E N S E
14
- - -
15
16
E L L A
H A N C O C K,
after being first duly
sworn, testified as follows:
17
- - -
18
THE COURT:
19
MR. SHAHAN:
Mr. Shahan, you may proceed.
Thank you, Your Honor.
20
- - -
21
22
E V I D E N C E
D I R E C T
E X A M I N A T I O N
BY MR. SHAHAN:
23
Q.
Good afternoon.
24
A.
Good afternoon.
25
Q.
How are you doing today?
567
1
A.
Okay.
2
Q.
Great.
3
Could you please state your full name
for the record?
4
A.
Ella Mae Hancock.
5
Q.
Okay.
6
And are you related to a Donna
Vaillancourt?
7
A.
Yes, my daughter.
8
Q.
And how many sons and daughters do you have?
9
A.
I got three sons and four daughters.
10
Q.
Is she the youngest daughter?
11
A.
Yes, she's my youngest.
12
Q.
Okay.
13
And do you have a son named Dennis
Hancock?
14
A.
Yes, I do.
15
Q.
Okay.
Do you remember anything happening back
16
in September of '04, around Hurricane Francis about
17
Dennis coming over to your house?
18
A.
Yes.
19
Q.
And about what time did he come over?
20
A.
Must have been about maybe 2:30 in the morning.
21
Q.
Okay.
22
And did he pound kind of loudly on your
door?
23
A.
Yes, he did. I was sleeping; woke me up.
24
Q.
Okay.
25
And after he woke you up, did he ask you
to do something for him?
568
1
2
A.
Yes, I answered the door, and he said call 911,
and it frightened me.
3
Q.
I said, why?
4
A.
He said that JJ and Donna were fighting.
5
Q.
Okay.
Had you ever called 911 before?
6
MS. VERGOS:
7
THE WITNESS:
8
THE COURT:
9
MS. VERGOS:
10
Judge, I'm going to object.
No.
All right, overruled.
Judge, I would ask that the witness
wait for my objection.
11
THE COURT:
All right, when there's an
12
objection, then just wait until I rule on it before you
13
answer the question.
14
THE WITNESS:
15
THE COURT:
16
THE WITNESS:
17
18
19
Okay?
Okay.
Thank you.
You're welcome.
BY MR. SHAHAN:
Q.
And did Dennis say they had some kind of verbal
disagreement or argument?
20
A.
Yes.
21
Q.
And did he tell you why he wouldn't call 911
22
instead of having you do it?
23
A.
He just didn't want to use their phone, I guess.
24
Q.
Oh, I see.
25
Okay.
And did he have a residence
of his own separate from your residence?
569
1
A.
Dennis lives in St. Pete.
2
Q.
Okay.
3
A.
I lived 1516 Landale Street in Holiday.
4
Q.
Okay.
5
And where did you live at that time?
And so when you dialed 911, did you talk
to the 911 people, or did Dennis talk to them?
6
A.
I talked to them.
7
Q.
Okay.
8
And you had no personal knowledge whether
there was or was not an argument, right, yourself?
9
A.
That's right.
10
Q.
So did you just tell the 911 people whatever
11
Dennis told you to tell them?
12
A.
Yes.
13
Q.
Okay.
14
15
16
17
MS. VERGOS:
Objection, non-responsive.
BY MR. SHAHAN:
Q.
So you go inside; you see the scene, and then go
back out; right?
18
A.
Correct.
19
Q.
Now, your words were that you were shaken and
20
shocked.
Did I understand that correctly?
21
A.
Yes.
22
Q.
And before you started to tell us is because you
23
24
25
lost a brother in a similar-type incident.
Q.
Yes.
At that point you're within inches of
being petrified; is that safe to say?
570
1
A.
Yes.
2
Q.
And you go outside and convey those concerns to
3
that officer; right?
4
5
A.
what I saw.
6
7
I didn't tell him about my brother, I told him
Q.
Your concerns about how you feel about what's
happening there with JJ?
8
A.
Yes.
9
Q.
And what you think is happening?
10
A.
Yes.
11
Q.
At that moment, right?
12
A.
I told Deputy Curtis that JJ was sitting on the
13
bed with a gun.
14
15
Q.
of harm himself?
16
17
18
19
20
I also told him that you thought he was going to
A.
I never said they was going to commit suicide,
Q.
Well, the answer to my question was whether you
no.
told him that he was going to harm himself?
A.
I don't know if -- I don't think I said that.
I
21
told Deputy Curtis that I saw "JJ" sitting on the edge of
22
the bed with a gun pointed at his head; right?
23
A.
Pointed.
He was looking at it.
It was there,
24
like I said.
It was a split second that I saw.
I didn't
25
say anything; you can't say anything in a split second.
571
1
2
3
I'm sorry, I did it again.
Q.
I apologize.
Now, once you went outside, and you told this to
Deputy Curtis, you actually left there; right?
4
A.
Took me away, yes.
5
Q.
And you didn't see anything else that was
6
happening at that residence; correct?
7
A.
Correct.
8
Q.
Now, this isn't the first time that you saw that
9
gun; right?
10
A.
I've seen the gun before.
11
Q.
And you've seen it before on a number of
12
occasions?
13
A.
14
15
Correct, yes.
And relieved me from 3:30 to
5:00.
Q.
Apparently, from my understanding, JJ usually
16
takes an object out and keeps it by the bed at night;
17
right?
18
A.
Not all the time.
19
Q.
On the nights where it's just -- just two of you
20
in the house?
21
A.
Yes, well, not every night, you know.
22
Q.
Okay.
23
A.
He especially wanted to take it out because of
24
the --
25
How often -- often enough?
MR. SHAHAN:
Judge, I'm going to object and ask
572
1
her to respond to my question.
2
THE WITNESS:
3
MR. SHAHAN:
4
I'm sorry.
Rather than speculating as to why
he took it out that night.
5
THE WITNESS:
6
THE COURT:
7
question again?
8
BY MR. SHAHAN:
I apologize.
Ask the question.
What was the
9
Q.
He has taken it out on occasion before; correct?
10
A.
Yes.
11
Q.
And put it by the bed?
12
A.
Yes.
13
Q.
And you've seen it there before; correct?
14
A.
Yes.
15
Q.
In fact, when you went outside and told Deputy
16
Curtis what was going on, you even told him it was a .357
17
Magnum, and you knew that information; correct?
18
A.
Yes.
19
Q.
And you were not unfamiliar with this weapon?
20
A.
I've never held it in my hands.
21
Q.
You've never held it, or fired it?
22
A.
No.
23
Q.
You never fired any weapon?
24
A.
I have fired weapons, yes.
25
Q.
Okay.
And so you're familiar with firearms
573
1
then?
2
A.
Yes.
I don't like them.
3
Q.
Well -- thank you.
4
A.
You're welcome.
5
- - -
6
7
8
9
C R O S S
E X A M I N A T I O N
BY MS. VERGOS:
Q.
Now, when you were talking to the officers
outside, to the deputy outside, you in fact gave them
10
some information on that night in response to their
11
questions; correct?
12
A.
They were asking me a lot of questions.
13
Q.
And you were responding to those questions?
14
A.
Yes.
15
Q.
And they were asking questions about medications
16
and things of that nature?
17
A.
Uh-huh.
18
Q.
And you told them that he's on medication?
19
A.
When I said that?
20
Q.
Yes, did you tell them that he was on
21
Yes.
medication?
22
A.
I possibly could have said that.
23
Q.
Possibly, or you did?
24
A.
I could have.
25
Q.
The deputy wouldn't be wrong about what he told
574
1
us.
2
A.
I'm sorry?
3
Q.
The deputy wouldn't be wrong if -- necessarily
4
5
be wrong if he told us that; correct?
A.
Not necessarily the question.
6
MR. SHAHAN:
7
THE COURT:
8
9
Objection to the question.
Sustained.
BY MS. VERGOS:
Q.
Now, as far as the firearms is concerned, you've
10
been taught, basically, to treat it as if it's loaded;
11
correct?
12
A.
Yes.
13
Q.
And you've been taught that by the Defendant?
14
A.
JJ has told me to always treat a gun as if it's
15
loaded even if you know it's not.
16
Q.
And take those necessary precautions; correct?
17
A.
Absolutely.
18
19
20
He took -- I'm doing it again.
He's taking class.
Q.
And when you were speaking to deputies, they
actually had you draw a diagram; correct?
21
A.
Say it again?
22
Q.
Draw a diagram, they made you draw a diagram of
23
the house, the deputies?
24
A.
Not at the house, of the house.
25
Q.
Of the house.
575
1
A.
Yes.
2
Q.
Now, you and your mom Ellen Hancock --
3
A.
Ella Hancock.
4
Q.
You've talked about this case before; correct?
5
A.
We have.
6
Q.
And you and JJ, you've actually talked about
7
this case a lot and about these incidents a lot; correct?
8
A.
This case, and in September of '04.
9
Q.
Is that a yes?
10
A.
So yes, yes, we do, you know, we have spoken of
11
this case.
12
Q.
And you've spoken about it often; right?
13
A.
We speak of it, but not -- but not since this
14
15
has been going on, this trial.
Q.
I was told not to.
And you've had over two years to kind of go
16
through all of this stuff with JJ right, not since the
17
trial started, but before to talk to him about all of
18
this; right?
19
A.
Ms. Vergos, I took the oath.
20
Q.
Is that a yes, no, what is that?
21
A.
Repeat the question again.
22
Q.
You've had over two years to talk about this
23
case with JJ?
24
A.
Yes, we've talked about the case.
25
Q.
You saw the bullet holes in the house;
right?
576
1
A.
After they let me back in the house, yes.
2
Q.
Okay.
And I believe there was one right by the
3
-- like a little, I guess 27 inches by the front door;
4
does that sound right?
5
A.
6
floor.
7
in the couch; they went through two, and they went into
8
the cinder block.
9
Q.
It was inch, approximately, two feet off the
Tepedino's pictures show that.
There was a hole
The discovery in this case, you've had a chance
10
to look through all of it; right?
You've read every
11
police report, you've seen every photograph?
12
A.
Yes.
13
Q.
And as you indicated, Tepedino's photos indicate
14
that it's about, what, 20 inches off the ground, and like
15
--
16
A.
I would't say twenty, no.
17
Q.
That bullet hole by the door, was it about yeah
18
high?
19
A.
Knee, yeah, probably.
20
Q.
And it was about what two and a half feet from
21
the door frame; does that sound about right?
22
A.
Approximately.
23
Q.
And then there was another one by the bookcase
24
25
where the bookcase was; correct?
A.
It was in the bookcase, and in the center of
577
1
the --
2
Q.
And behind the bookcase into the wall;
4
A.
Yes.
5
floor.
3
yes?
6
7
And that was about three feet off the
MS. VERGOS:
moment?
8
THE COURT:
9
MS. VERGOS:
10
And, Judge, can I just have a
questions.
Yes.
Judge, I don't have any other
Thank you.
11
THE COURT:
12
MR. SHAHAN:
Any redirect?
Yes, Your Honor.
13
- - -
14
15
16
R E D I R E C T
E X A M I N A T I O N
BY MR. SHAHAN:
Q.
Ms. Vaillancourt, I believe you mentioned in
17
cross-examination that you had done some taping of things
18
for the storm?
19
A.
Yes.
20
Q.
And what did you tape again?
21
A.
I taped the, I believe it was the front windows
22
that we taped from the inside.
23
Q.
Okay.
24
A.
And then we also taped the windows that didn't
25
have the awnings on, which was the one I was more
578
1
concerned about.
2
that was --
I believe it was my children's window
3
Q.
Is this the tape you used, this right here?
4
A.
Yeah, that's it.
5
Q.
Okay.
6
So what other hurricane precautions did
you use?
7
A.
We had sandbags that actually -- we started
8
getting sandbags in for Charlie, and we had some of those
9
at home.
And we had given some away to my mother and her
10
next door neighbor, so we were working with those that
11
day.
12
Q.
Okay.
13
A.
And --
14
Q.
You said you had had sandbags for Charlie.
15
do you mean by that?
16
A.
Hurricane Charlie.
17
Q.
I know what you meant, they didn't.
18
A.
There were a lot of hurricanes that season.
19
Q.
And what other types of things did you do to
20
21
What
I'm sorry.
prepare for Hurricane Francis?
A.
I did some later on that evening, I did some
22
cooking on the grill, and I did a lot of preparing for
23
food, you know, cooking eggs and getting water bottles,
24
just different things; running to the store, getting some
25
supplies, you know.
579
1
2
Q.
Okay.
How long have you lived in the Holiday
area?
3
A.
Altogether?
4
Q.
Yes.
5
A.
Well, I used to live there with my Ex -- well,
6
my husband at the time.
7
fourteen -- no, fifteen years, and then I moved to
8
Tarpon, and now I'm back.
9
10
Q.
We lived there twelve,
So --
So overall in 2004, about how many years had you
lived in the Holiday Tarpon Springs area?
11
A.
Five, six years.
12
Q.
Did you have any traditions as it relates to
13
hurricanes because of that experience?
14
A.
Traditions?
15
Q.
Yes.
16
A.
Well, usually people have like little hurricane
17
parties.
18
getting prepared, you know, just like any other time, you
19
know, as you're preparing, you have beers or something.
20
21
Q.
You just sit around, you prepare, but as you're
Is that what happened this particular day that
we're talking about?
22
A.
Yes.
23
Q.
Okay.
24
Q.
And do you have any children?
25
A.
Yes, I do.
580
1
Q.
And did they used to hang around with you and
3
A.
Yes.
4
Q.
And did I ask you to go get Tepedino's records?
5
A.
Yes.
6
Q.
Have you been involved in this case in terms of
2
7
8
9
JJ?
getting evidence that I asked you to get?
A.
Yes.
I'm sorry, I need a tissue.
Asked me
about -- asked me about my kids.
10
Q.
I'm sorry?
11
A.
I told myself I wasn't going to do this.
12
sorry.
13
A.
Go ahead.
14
Q.
Is it okay if I ask you some more questions?
15
A.
Yes, go ahead.
16
Q.
Your brother Dennis, how old is he?
17
A.
How old is he?
18
Q.
And are you the little sister?
19
A.
Yeah.
20
Q.
When he's drinking, does Dennis tell the truth?
21
A.
No.
I'm
He's fifty-four, I believe.
22
MS. VERGOS:
I object.
23
THE COURT:
Sustained.
24
MS. VERGOS:
25
THE COURT:
Ask for a curative.
Please disregard that last question
581
1
and answer.
Thank you.
2
Please proceed, Mr. Shahan.
3
MR. SHAHAN:
4
Yes, Your Honor.
BY MR. SHAHAN:
5
Q.
I believe that Ms. Vergos got into it in a
6
general way, but did your brother kill himself with a
7
gun?
8
A.
Apparently, my brother Ronnie.
9
Q.
And did that impact you on this particular night
10
11
that we're talking about with JJ?
A.
Yes.
12
MR. SHAHAN:
13
THE COURT:
14
excused.
No further questions.
All right, ma'am, you may be
Thank you.
15
- - -
16
(Witness excused.)
17
- - -
18
THE COURT:
All right , members of the jury, I
19
don't think it was going to come to this one, but
20
unfortunately we have the same question today that we had
21
yesterday, and that is how late would you like to go?
22
If you would like to be done now, that's fine; if you
23
would like us to present one more witness, we can do
24
that.
25
Now, I don't know how long one more witness is
582
1
going to be, so we're not going to be able to stop right
2
at 6:00, if it goes that long.
3
among yourselves about that only, and let me know if you
4
want to stop for the evening, or if you'd like to go
5
forth with one more witness.
6
7
THE JURY:
How many more witnesses after the
one?
8
THE COURT:
9
THE JURY:
10
So why don't you talk
I think two.
I think two.
So we're go into tomorrow no matter
what.
11
MR. SHAHAN:
12
THE COURT:
Total is two.
Because tomorrow is going to be
13
closing arguments, and then I'll instruct you on the law,
14
and then you will deliberate.
15
THE JURY:
16
THE COURT:
Let's do one more.
Elizabeth McGlaughlin, if that's the
17
wrong person.
18
back in the middle, you were speaking about your children
19
yesterday, and the fact that you had to get home to them?
20
21
I guess people aren't in order.
JUROR McGLAUGHLIN:
Yes, I am okay for this
evening.
22
THE COURT:
23
JUROR McGLAUGHLIN:
24
THE COURT:
25
In the
Okay.
So we shall proceed.
So one more will be fine.
One more witness, and we've been
going for awhile, and the way things are going, nothing
583
1
has been quick so far, so we might as well take a quick
2
comfort break, and we'll be back in ten minutes in the
3
jury room over here, so you may not want to venture too
4
far.
5
some caffeine.
6
minutes, all right?
Snack machines are open if you really need to get
Please be back in the jury room in ten
Thank you.
7
- - -
8
(Ten-minute recess.)
9
- - -
10
(Proceedings resumed.)
11
12
- - THE COURT:
Go ahead and bring the jury back in.
13
- - -
14
(Jury entered the courtroom.)
15
- - -
16
17
THE BAILIFF:
courtroom.
18
THE COURT:
19
MR. SHAHAN:
20
23
I'd like to call at this time,
- - D E N N I S
H A N C O C K,
after being first
duly sworn, testified as follows:
24
25
All right, what says the defense?
Dennis Hancock, please.
21
22
The jury is entering the
- - THE COURT:
Good afternoon, sir.
584
1
THE WITNESS:
2
THE COURT:
3
MR. SHAHAN:
Good afternoon.
Mr. Shahan, you may proceed.
Thank you, Your Honor.
4
- - -
5
6
D I R E C T
E X A M I N A T I O N
BY MR. SHAHAN:
7
Q.
Good afternoon.
8
A.
Good afternoon.
9
Q.
Please state your full name for the record?
10
A.
Dennis Paul Hancock.
11
Q.
And, Mr. Hancock, what kind of work do you do?
12
A.
I do sheet metal air-conditioning work.
13
Q.
And how long have you done that?
14
A.
Been probably a good thirty years.
15
Q.
Okay.
16
A.
Yes, sir, I do.
17
Q.
And do you have a sister named Donna
18
And you live in St. Petersburg?
Vaillancourt?
19
A.
Yes, I do.
20
Q.
Who is your mother?
21
A.
Ella May Hancock.
22
Q.
And have you had an occasion to meet JJ Daiak
23
through your sister?
24
A.
Yes.
Yes, I have.
25
Q.
Have you ever been over to their house?
585
1
A.
Oh, yes.
2
Q.
How many times?
3
A.
Several times.
4
Q.
Have you ever gone fishing with JJ?
5
A.
Yes, I have.
6
Q.
Was there a time when things were such that they
7
asked you to leave on a particular occasion?
8
A.
Yes.
9
Q.
That's the only time, though?
10
A.
That's the only time.
11
Q.
Did you ever go to a hurricane party at Donna's
12
house?
13
A.
Yes.
14
Q.
And did you ever go there when JJ was there?
15
A.
Yes.
16
Q.
Was that the same time that they asked you to
17
leave?
18
A.
Yes, it was.
19
Q.
And did you go to Donna's hurricane parties
20
other years?
21
A.
No, I haven't.
22
Q.
Okay.
23
No.
In 2004, did you help Donna or JJ get
their house ready for the Hurricane Francis?
24
A.
No.
25
Q.
That particular day when they asked you to
586
1
leave, did that kind of upset you in any way, or anything
2
like that?
3
A.
A little bit.
4
Q.
Did you do something later maybe based upon
5
that?
6
A.
No.
7
Q.
Okay.
8
A.
Yes.
9
Q.
Did you ask her to make a 911 call?
10
A.
Yes, I did.
11
Q.
Now, you never saw JJ that day do anything
12
Did you go to your mom's afterward?
physically to Donna, did you?
13
A.
No, sir.
14
Q.
Did they have an argument in front of you?
15
A.
No.
16
Q.
Did you get into an argument with them?
17
A.
Not with them, no.
18
Q.
Did they explain to you why they wanted you to
19
leave that day?
20
A.
No.
21
Q.
And when you asked
22
-- strike that.
So you didn't make that 911 call, Ella did?
23
A.
Right.
24
Q.
Did you go back that night to get your bill
25
fold?
587
1
A.
Yes, I did.
2
Q.
Did they give it to you?
3
A.
Yeah, I went and got it.
4
Q.
And who was there at the time?
5
A.
JJ and Donna.
6
Q.
And did you go to the door to ask for the
7
It needed it.
wallet?
8
A.
Yes, I did.
9
Q.
And they let you in to get the wallet, or you
10
just walked in?
11
A.
No, I knocked on the door and they let me in.
12
Q.
Okay.
13
Q.
Have you ever known JJ, if he does or doesn't
14
have a gun in the house?
15
A.
I didn't know.
16
Q.
Okay.
17
MR. SHAHAN:
18
THE COURT:
19
22
No further questions.
Any cross-examination?
- - -
20
21
I didn't know he had one.
C R O S S
E X A M I N A T I O N
BY MS. VERGOS:
Q.
That night that you're talking about, Mr.
23
Hancock, you actually didn't see an argument between the
24
Defendant and your sister; correct?
25
A.
No, that's correct.
I did not.
588
1
Q.
But you and the Defendant got into an argument?
2
A.
Yes.
3
Q.
And that argument occurred, I believe while
4
{you're|your} sister was sleeping?
5
A.
Yes.
6
Q.
Now, you had gone over earlier that day;
7
correct?
8
A.
Yes.
9
Q.
Approximately, 6:00?
10
A.
Probably around that time.
11
Q.
And between 6:00, and then what -- they asked
12
you to leave maybe around 11:30, midnight?
13
A.
I really don't know what time it was.
14
Q.
Okay.
15
Would it be safe to assume it was shortly
before the 911 call came in?
16
A.
I think so.
17
Q.
Okay.
18
So you left between 6:00 o'clock that you
got there, and 11:30 you guys were drinking; right?
19
A.
Yes.
20
Q.
And I believe that you were drinking Natural
22
A.
Yes.
23
Q.
And the Defendant was drinking Bush?
24
A.
I think so.
25
Q.
And he had been drinking with you that time;
21
Ice?
589
1
correct?
2
A.
Yes.
3
Q.
And at some point, your sister went to sleep;
4
right?
5
A.
Pardon?
6
Q.
At some point, your sister went to sleep?
7
A.
Yes.
8
Q.
And during that time when she was asleep, you
9
guys actually went to the bar; right?
10
A.
Yes.
11
Q.
And while you were at the bar, you had a couple
12
of more drinks; right?
13
A.
Yes.
14
Q.
And so did the Defendant?
15
A.
Yes.
16
Q.
And you went next door to the bar; correct?
17
A.
Yes.
18
Q.
And JJ, the Defendant, brought a bottle of --
19
(garbled)
20
A.
Yes.
21
Q.
And you went back to the house after that?
22
A.
That's correct.
23
Q.
And you drank some of the Jose Corbo (ph.);
24
25
correct?
A.
Yeah, I drank one maybe.
590
1
Q.
And so did the Defendant?
2
A.
Yes.
3
Q.
Now, this argument that you had with the
4
Defendant occurred while you were at the bar?
5
A.
No.
6
Q.
At the house?
7
A.
At the house.
8
Q.
Was that after the bar, or before the bar?
9
A.
That was after the bar.
10
Q.
Okay.
And at some point you became aware of the
11
fact that there was an incident that happened with your
12
sister and JJ; correct?
13
A.
Yes.
14
Q.
Some flashing incident?
15
A.
Yes.
16
Q.
And JJ was mad about that yet?
17
A.
That's correct.
18
Q.
And he was actually, I believe you said very,
19
very mad?
20
A.
Yes, he was.
21
Q.
And you were getting concerned?
22
A.
Yes.
23
Q.
And am I safe to assume that you care about your
24
25
sister?
A.
Yes, I do.
591
1
Q.
You love your sister?
2
A.
Yes.
3
Q.
You certainly don't want any harm to come to
5
A.
No.
6
Q.
And you, I believe indicated before that you
4
7
her?
were quite worried about her?
8
A.
Yes, I was.
9
Q.
And you were quite worried because JJ was
10
getting very mad?
11
A.
Yes.
12
Q.
And he was angry, probably angrier than you had
13
seen him before?
14
A.
I'd say.
15
Q.
Yes?
16
A.
Yes.
17
Q.
Okay.
18
Now, during that day while you were
there, you didn't board up the house or anything; right?
19
A.
No.
20
Q.
During this hurricane party, you didn't, you
21
know, spend any time taking out boards for the windows or
22
anything like that; right?
23
A.
No.
24
Q.
You didn't spend any time taking out any paint
25
for the windows; right?
592
1
A.
No.
2
Q.
And, in fact, I believe you've indicated that
3
there was no covering on the windows or anything like
4
that?
5
A.
No.
6
Q.
No?
7
A.
No.
8
Q.
And you were there for over six hours, so I
9
assume that you saw the windows on a number of occasions;
10
right?
11
A.
Yes.
12
Q.
And you didn't see any covering on the windows;
13
right?
14
A.
No.
15
Q.
And, in fact, you didn't do anything as far as
16
any kind of precautions for the hurricane; right?
17
A.
Right.
18
Q.
Okay.
19
Now, when you left the house, it was
actually JJ that asked you to leave; right?
20
A.
That's right.
21
Q.
Not your sister?
22
A.
No, JJ.
23
Q.
And you did leave as a response to that, yes?
24
A.
Yes, I did.
25
Q.
But when you left, you were concerned about your
593
1
sister?
2
A.
Yes.
3
Q.
And you went to your mother's house?
4
A.
Yes.
5
Q.
Okay.
6
And when you went to your mother's house,
you told your mom to call 911, yes?
7
A.
Yes.
8
Q.
Now, that wasn't because you were angry or
9
anything like that, was it?
10
A.
No.
11
Q.
Okay.
12
A.
Because I was -- something was going to happen.
Why did you have your mom call 911?
13
I don't know, I had a feeling that something was going
14
to -- was going to go on; something is going on, and I
15
just wanted --
16
Q.
You didn't want your sister to get hurt?
17
A.
Right, I didn't want her to get hurt.
18
Q.
Okay.
19
Now, this argument that your sister had
with the Defendant, did you see that argument?
20
A.
No.
21
Q.
Were you there during that argument?
22
A.
No, I think I had already left.
23
Q.
The argument that, where your sister -- well,
24
25
let me ask you this.
Did you interfere in any argument that happened
594
1
that night?
2
A.
No.
3
Q.
Did you ever butt in and become obnoxious toward
4
them regarding anything?
5
A.
No.
6
Q.
Now, that bottle of Jose Carvo, you and Katie
7
had one drink out of there; right?
8
A.
I think so, yes.
9
Q.
But that bottle was pretty much emptied
10
throughout that night, yes?
11
A.
I don't know.
12
Q.
Okay.
13
A.
No.
14
Q.
Am I safe to assume that you don't want to call
15
I don't know how empty it was.
You didn't have a cell phone; right?
911 from the Defendant's house?
16
A.
No, I didn't.
17
Q.
Is that why you went to your mother's?
18
A.
Yes, that's correct.
19
20
MS. VERGOS:
I have no further questions.
you.
21
THE COURT:
22
MR. SHAHAN:
Any redirect?
Yes.
23
24
25
- - R E D I R E C T
BY MR. SHAHAN:
E X A M I N A T I O N
Thank
595
1
Q.
How much alcohol do you think you had that whole
3
A.
I don't know.
4
Q.
You don't have an estimate even?
5
A.
I have no clue.
2
day?
6
MR. SHAHAN:
7
THE COURT:
8
MR. SHAHAN:
9
Any further questions?
THE COURT:
11
MR. SHAHAN:
13
14
I said no further questions.
All right.
No further questions.
THE COURT:
All right, sir.
16
THE COURT:
17
Have a lovely evening.
(Witness excused.)
19
- - THE COURT:
21
I thought.
22
who says one more?
25
You're welcome, sir.
- - -
18
24
You're excused.
Thank you.
THE WITNESS:
23
Thank you.
I must not have talked loud enough.
15
20
I'm
sorry.
10
12
No further questions.
That was actually much quicker than
Do you want to go for one more?
All right, it's six to one.
Do you think it
would be all right going with one more?
THE JURY:
Let's go.
All right,
596
1
THE COURT:
Everybody had their hand up?
2
look like you're ready to go.
3
MR. SHAHAN:
4
some confusion.
5
Defendant.
I'm going to spend about two hours for him.
THE COURT:
7
MR. SHAHAN:
8
THE COURT:
tomorrow.
Your Honor, I think there might be
I think you said two more included the
6
9
You
Two hours?
Yeah, a lot to go over, Judge.
I do have a motion calendar
I'll try and go as fast as I can, but
By
10
Friday, I get a little tired, so why don't we plan on
11
starting at 10:20.
12
Let's do 10:20.
So, members of the jury, if you could be in the
13
jury room at 10:20, I anticipate we should be done at
14
10:00, and then we'll take a little break, and barring
15
anything unforeseen happening, hopefully, we'll start
16
at 10:20, or it could be later, but hopefully at 10:20.
17
18
19
20
21
22
23
24
25
Have a good evening, and we shall see you
tomorrow.
- - (Court Adjourned at 6:00 p.m.)
597
1
CERTIFICATE OF REPORTER
2
3
4
STATE OF FLORIDA
)
COUNTY OF PASCO
)
5
6
7
8
9
I, P. ALECIA WILKINS, Court Reporter, in and for
the Sixth Judicial Circuit, State of Florida,
10
stenographically reported the foregoing proceedings and
11
that the transcript is a true and complete record of my
12
stenographic notes.
13
14
15
DATED this ________day of _____________,2007, at
New Port Richey, Pasco County, Florida.
16
17
__________________
18
P. Alecia Wilkins
19
Court Reporter
20
Sworn to and subscribed before the
21
undersigned officer this ___ day
22
of_____________,2007.
23
Notary Public
24
State of Florida at Large
25
My commission expires:
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PASCO COUNTY, FLORIDA
CRIMINAL DIVISION
CASE NO. 04-0442CFAWS
STATE OF FLORIDA,
:
:
:
Plaintiff,
vs.
A P P E A L
:
JOE FRANK DAIAK JR.,
:
:
Defendant.
:
------------------------------x
BEFORE:
HONORABLE JOSEPH BULONE, J.
Sixth Circuit
PLACE:
Pasco County Government Center
7530 Little Road
New Port Richey, Florida
DATE:
December 1, 2006
TIME:
Commencing at 9:00 a.m.
REPORTED BY:
P. ALECIA WILKINS
Sixth Circuit
COURT REPORTER
Notary Public, State of Florida
Pages 598 - 791
D A Y F O U R
V O L U M E V
J U D Y
M O U K A Z I S & A S S O C I A T E S
C O U R T R E P O R T E R S
8624 Massachusetts Avenue
New Port Richey, Florida 34654
(727) 842-9793
A P P E A R A N C E S
EVA VERGOS, ESQUIRE
Assistant State Attorney
7530 Little Road
New Port Richey, Florida
Attorney for the State
JOHN AMBROSE SHAHAN, ESQUIRE
556 E. Tarpon Avenue, Suite 3
Tarpon Springs, Florida
Attorney for the Defendant
WITNESS
J. F. Daiak
I N D E X
Direct Examination
Mr. Shahan
Cross, Ms. Vergos
Redirect, Mr. Shahan
Deputy Curtis
No. 9
No. 22
Direct, Mr. Shahan
D E F E N S E E X H I B I T S
Diagram
S T A T E' S
NOAA
PAGE
602, 627
699
625, 695
705
771
778
699
E X I B I T S
778
601
1
2
- - Thereupon,
3
4
THE BAILIFF:
The jury is entering the
courtroom.
5
- - -
6
(Jury is entering the courtroom.)
7
- - -
8
9
THE BAILIFF:
the courtroom.
10
11
THE COURT:
Good morning.
THE JURY:
13
THE COURT:
14
MR. SHAHAN:
Good morning.
All right, what says the defense?
Good morning, Your Honor.
18
I'd like
to call Mr. Daiak.
16
17
How is everyone
today?
12
15
The jury is seated and present in
- - J O S E P H
F R A N K
D A I A K,
after being
first duly sworn, testified as follows:
19
- - -
20
THE COURT:
Good morning, Mr. Daiak.
21
THE DEFENDANT:
22
THE COURT:
23
MR. SHAHAN:
Good morning, Your Honor.
Mr. Shahan, you may proceed.
24
Thank you, Your Honor.
- - -
25
602
1
D I R E C T
E X A M I N A T I O N
2
BY MR. SHAHAN:
3
Q.
Please state your full name for the record.
4
A.
My legal name is Joe Frank Daiak Jr., spelled
5
Daiak.
6
in my 50's now.
7
someone calls me Joe, I'm not really talking to -- I
8
don't know who they're talking to.
But I've gone by JJ since I was 18 years old; I'm
I don't really respond to Joe, but if
9
Q.
Mr. Daiak, what degrees do you have?
10
A.
Degrees?
11
Q.
Yes.
12
A.
As far as education?
13
Q.
Yes, sir.
14
A.
I have college degrees in Economics and Law.
15
Q.
And how long have you lived in the State of
16
17
Florida?
A.
I moved here in 1981; I think twenty-five years
18
now, right around this area, Tarpon Springs, with the
19
exception of getting a little bit of education in
20
Gainsville.
21
Q.
Okay.
22
A.
But it's been my home for 25 years.
23
Q.
So you've seen hurricanes come and go in
24
25
Florida?
A.
Not until the 2004 hurricane.
I've seen 20
603
1
years of false alarmns.
The only damage that's been done
2
before the 2004 that I know of, were two unnamed storms
3
between 1981 and 2003.
4
season, they give the news men and weather people
5
something to talk about, but it never hit.
6
2004, whoever was living there then, but Charlie,
7
Francis, Ivan, and Jean weer all within about a month.
8
That's the first time I started taking hurricanes
9
seriously.
10
11
Q.
Every year during hurricane
And then
Now, these events occurred in September of 2004.
Do you remember that time period?
12
A.
Very well.
13
Q.
Do you remember which hurricane was in the area
14
at that time?
15
A.
Hurricane Francis.
16
Q.
And how do you have that memory, sir?
17
A.
How do I have that memory?
It was the year of
18
the hurricanes in Florida.
19
week or so before, then Francis, and Ivan in June.
20
Francis did a tremendous amount of damage as far as
21
flooding goes.
22
but it was moving slow, and just sat in one place.
23
the water caused a lot of damage.
24
25
Q.
Charlie had come through a
It did not have a huge amount of wind,
And
Well, during this time period before September
4, 2004, were you listening to any news or weather
604
1
2
reports, or any of that type thing?
A.
Yes, I was.
All the T.V. stations were talking
3
about it 24 hours a day.
4
is coming; Charlie just came; Francis is coming.
5
fifteen minutes, it would be another weather map on all
6
the T.V. stations.
7
8
Q.
Hurricane is coming, hurricane
Every
Do you have a computer at your house, or did you
have one back in September of 2004?
9
A.
Yes, sir.
10
Q.
Do you read any newspapers on the computers?
11
A.
I use Internet widely.
I mean, in my normal
12
morning hours I used to get up and, you know, read the
13
St. Pete Times, and the Tampa Tribune, and maybe the New
14
York Times.
15
have to pay for the subscription; have my coffee with me.
16
I'm an avid reader of the newspaper everyday thoroughly.
17
Q.
18
19
I do it from home on the Internet so I don't
Okay.
MR. SHAHAN:
Your Honor, we need to approach for
a moment, please.
20
- - -
21
(Sidebar discussion on the record.)
22
- - -
23
THE COURT:
Your Honor, I gave opposing Counsel
24
a supplemental evidence list on the 27th.
25
it is.
This is what
605
1
THE COURT:
2
MR. SHAHAN:
Uh-huh.
And these are news articles,
3
September 4th and 5th of that year.
4
come up here and approach first, and it's been identified
5
as Defense Exhibit H for identification; so I'm going to
6
ask him about reading these articles.
7
THE COURT:
8
MR. VERGOS:
9
And she suggested we
All right.
Here's my objection, Judge.
I have
really no problem with the force of the deputies, and the
10
(inaudible) of the state of mind requiring it, or
11
whatever.
12
he was in custody; September 6th, he was also in custody,
13
and so anything else out of the 4th, which would have
14
affected his state of mind, all of these are just,
15
basically, for nothing to show the jury what happened in
16
Florida at that point.
17
witness, that's fine, but nothing out of the 9th.
But the day of the hurricane, September 5th,
18
THE COURT:
19
MR. SHAHAN:
So if he were to use this for his
That makes a lot of sense.
So the 5th, I also read the
20
Internet personally, and the Internet version comes out
21
at 3:00 in the morning, and she hasn't put in any
22
evidence as to exactly the time of his arrest that I'm
23
aware of that's in exhibits.
24
25
MR. VERGOS:
Well, if he wants to say this came
out at 3:00 in the morning, let's go.
He can put in the
606
1
5th and say it came out at 3:00 in the morning; that
2
would be fine.
3
was asleep, dead asleep in the back bedroom; didn't have
Because everything else occurred when he
4
a clue what was going on in the room, and had no idea
5
that anything was going on.
6
read this on the Internet at 3:00 in the morning on
7
September 5th, then fine.
8
9
10
THE COURT:
So if he's going to say he
All right, but the 6th has to be out
because he was in the hospital on the 6th.
MR. VERGOS:
Yes.
And, actually, Judge, I have
11
evidence that indicates that the prime suspect was
12
responding at 3:31, which means he was in custody, and
13
that has come in through several of the witnesses.
14
There's the CAD logs and CAD record.
15
respect to defense counsel's strategy, I don't want to
16
interfere with that, but I still don't think anything
17
after the 4th is relevant.
18
THE COURT:
All right.
So with all due
State is not going to
19
argue that he was on the Internet at 3:00 in the morning
20
on 9/5/04, were you?
21
to argue that he was on the Internet on 9/5/04, were you?
22
MR. SHAHAN:
The defense is -- you're not going
That doesn't sound like a very good
23
argument, she's saying that's what the evidence says.
24
I'm looking at the exhibits; I don't see that.
25
Yes, that would not be a good idea.
607
1
MR. VERGOS:
If that comes attached to this
2
September 5th article, if that testimony comes attached
3
to it, then I don't have any objection, but if it does
4
not come attached to it, then I do.
5
MR. SHAHAN:
What attached to it?
6
MR. VERGOS:
If he doesn't -- I don't want this
7
coming in unless he's going to testify he was reading it
8
at that point.
9
10
11
THE COURT:
Why don't we go ahead and proffer it
and find out what he's going to say?
MR. SHAHAN:
That sounds like a good idea.
12
- - -
13
(Sidebar discussion concluded.)
14
- - -
15
THE COURT:
Well, members of the jury, we're off
16
to a tremendous start, and if you can go back there into
17
the jury room, hopefully, this won't take long.
18
a legal issue we have to deal with.
Thank you.
19
- - -
20
(Jury excused.)
21
- - -
22
(Out of the hearing of the Jury.)
23
- - -
24
25
THE COURT:
There's
All right, Mr. Daiak, what we're
going to do is something called a proffer, which means
608
1
outside of the presence of the jury, we're going to find
2
out what your answers to these questions are going to be,
3
and then we'll know more as far as the relevance of these
4
newspaper articles.
All right?
5
THE DEFENDANT:
6
MR. SHAHAN:
7
you, I'm giving you.
Yes, Your Honor.
Your Honor, for your assistant to
8
THE COURT:
All right, thank you.
9
If no one has an objection, I can cut to the
10
chase here and ask him a few questions.
If you would
11
rather ask the questions yourself, that's fine.
12
MS. VERGOS:
I don't have an objection to that.
13
MR. SHAHAN:
I don't have any objection to that.
14
15
BY THE COURT:
Q.
Mr. Daiak, we have newspaper articles here, and
16
some of them are dated September 4th and, obviously, you
17
could have read those before the incident in question,
18
because the incident in question occurred shortly after
19
midnight on September 5th.
20
A.
Yes, I did read that.
21
Q.
Now, the ones on September 5th --
22
A.
I did not read that.
23
Q.
You did not read that?
24
A.
I did not read that.
25
Q.
You did not read the ones dated September 5th?
609
1
2
3
4
A.
I had been Baker-acted; I had no access to
newspapers.
Q.
All right.
Now, every once in awhile, if you go
on line and you read newspapers, which I do, sometimes
5
their articles are on line before the morning of the
6
newspaper itself.
7
articles on the 4th that are actually dated the 5th?
8
9
A.
Do you know if you read any of the
Let me take a look at it.
I know there's one
newspaper reporter quoted Sheriff Bob White as saying on
10
Saturday, people go about your business, get ready during
11
the daytime as it's coming in, but after dinnertime, I
12
want you to -- everybody just honker down and stay in
13
your houses; we'll ride this thing out.
14
reading that.
15
16
MR. VERGOS:
I do remember
I don't believe that's part of the
packet.
17
THE COURT:
All right.
Well, you can testify to
18
reading that if in fact you did before this happened.
19
All right, so the one dated the 6th is out for sure.
20
21
THE DEFENDANT:
5th, if I could.
22
23
THE COURT:
No, I don't see any articles in here
at all that are dated the 4th.
24
25
Let me see what else is on the
MR. VERGOS:
Just the first one is dated the
4th.
610
1
THE COURT:
Right, and that's not even an
2
article that I have.
3
MR. VERGOS:
I don't understand.
4
MR. SHAHAN:
That's a special out of St. Pete.
5
THE COURT:
Francis has landed, and there's a
6
bunch of links, is that what you call it to click on?
7
But there's no actual article.
8
9
10
MS. VERGOS:
on the 4th.
That's the only thing that's dated
Everything else is dated the 5th, and the
last one is dated the 6th.
11
THE COURT:
The one that's dated the 5th, I
12
don't see anything in here about -- the only thing it
13
says about Sheriff Bob White, it says, "Sheriff Bob White
14
hopes the residents would take advantage of Saturday's
15
fair weather, and reasonably light traffic to run
16
errands."
17
Mr. Daiak?
18
19
That's not what you're talking about, is it
THE DEFENDANT:
No, I'm talking about what Mr.
Shahan just pointed out.
20
THE COURT:
The next sentence?
"Go ahead, make
21
your rounds to grocery stores and pick up supplies, or do
22
whatever you need to do, he was advising.
23
them to be honkered down dinnertime Saturday, prepared to
24
wait out the storm through Monday.
25
MS. VERGOS:
He advised
I guess my question to that would
611
1
be, I understand that that article is requoting the
2
sheriff, indicating that he advised previously to do
3
this.
4
article, or from a previous article, or previous news
5
briefing that was posted as a result of that advisement.
I don't know if he got that advise from this
6
7
MR. SHAHAN:
the witness.
8
9
I guess that's a good question for
THE DEFENDANT:
It would have been either from
the article or the news. The news was all hurricane all
10
the time, all channels.
11
was broadcasting.
12
said here's an interview with Sheriff Bob White Pasco
13
County.
14
going down towards the bottom, it says, "Pasco take
15
refuge until Monday, officials urge.
16
I didn't read the Bob White thing in the newspaper, but
17
it was being broadcast all day long.
18
I think Pasco emergency channel
They interrupted with a break, and
I think you see on the first page is the 4th,
THE COURT:
But I don't know --
All right, so you can't say if you
19
read the article that was published on September 5th,
20
right?
21
You can't say if you read this article or not?
THE DEFENDANT:
22
September 5th.
23
September 8th.
Well, I read it, but not on
I had access to newspapers starting on
24
THE COURT:
You cannot say that you read this
25
article before the incident.
612
1
THE DEFENDANT:
2
THE COURT:
3
THE DEFENDANT:
4
THE COURT:
Before the incident?
No.
Right.
It was published after.
It was published after the incident.
5
All right.
So I will -- I think we need a stapler
6
remover, and I'll allow the defense to put into evidence
7
if they would like, the article dated September 4th, but
8
not the one dated September 5th or September 6th, and
9
I'll allow him to talk about news reports or anything
10
that he read before the incident.
11
read after the incident isn't relevant.
12
MR. SHAHAN:
Right.
Obviously, anything he
But I can ask him did you
13
hear any broadcast from Bob White before the incident on
14
honkering down.
15
THE COURT:
Yes, anything that he read or heard
16
before the incident is admissible; anything he read or
17
heard after the incident is not.
18
MR. SHAHAN:
All right?
This is the one the Judge realy
19
wants to take, because this is the one that is read, the
20
first page.
21
THE COURT:
The first two pages are in, and the
22
rest is out.
You already did it.
It's a good idea if
23
you don't play with the evidence unless we tell you, or
24
ask you to do it ahead of time, all right?
25
fine.
But that's
613
1
2
MR. VERGOS:
separately.
3
4
5
6
You can just remarked it
COURT CLERK:
I'll just make a whole new
sticker.
THE COURT:
Good.
can bring the jury back in.
While we're doing that, we
7
8
THE DEFENDANT:
may I ask a question?
9
THE COURT:
10
11
Yes.
THE DEFENDANT:
I moved to Florida twenty-five
years ago.
12
THE COURT:
13
THE DEFENDANT:
Uh-huh.
14
okay?
15
nervous or lying sweats.
I've been a sweater.
I sweat,
I think some people think that when someone who is
16
THE COURT:
17
THE DEFENDANT:
18
Before the jury comes back in,
Uh-huh.
But if I'm wearing a T-shirt and
shorts, I'll sweat five minutes after I take a shower.
19
THE COURT:
All right.
20
THE DEFENDANT:
I mean, I think it's a medical
21
condition for it.
22
it's legal, if you could advise the jury not to hold that
23
against me.
24
25
With the 100 percent humidity, but if
THE COURT:
Well, I'm not going to do that.
If
your lawyer wants to ask you about that, if he wants to
614
1
say I notice you've been sweating a lot, and then gets
2
into why it is you're sweating, I don't have a problem
3
with that, but I'm not going to inform them of it.
4
MR. SHAHAN:
I'm glad you brought that up.
5
was going to ask you, and you're already up there.
6
stutter too, normally stutter?
7
THE DEFENDANT:
I'm nervous.
I
You
I've never been
8
here before.
9
MR. VERGOS:
10
THE COURT:
Judge -All right, let's bring the jury in.
11
- - -
12
(Jury in entering the courtroom.)
13
- - -
14
15
THE BAILIFF:
the courtroom, Your Honor.
16
THE COURT:
17
MR. SHAHAN:
18
19
The jury is present and seated in
Mr. Shahan, you may proffer.
Thank you, Your Honor.
BY MR. SHAHAN:
Q.
Mr. Daiak, before we go any further, I notice
20
throughout this trial that you've got a white towel
21
touching your brow.
22
A.
What's that all about?
I'm a sweater.
I've lived in Florida for
23
twenty-five years; I should be used to it.
It's not just
24
wearing a suit and tie, it might be a medical condition.
25
But five minutes after I'm out of the shower wearing
615
1
shorts and a T-shirt, I'll sweat through it.
2
been doing this for twenty-five years.
3
valve; that's why I'm doing it.
4
years.
5
Q.
6
7
And I've
I have a sweat
I've done this for 25
Thank you, sir.
Now, sir, back on September 4th, were you
listening to any T.V. broadcasts?
8
A.
Of 2004?
9
Q.
Of 2004, yes, sir.
10
A.
All day long, it was all Hurricane Francis on
11
all the channels; that was it.
12
stations live for this.
13
14
15
Q.
I mean, the local T.V.
Did you see your Sheriff Bob White up there on
the T.V. onn any of those broadcasts?
A.
I believe I listened to him.
You know, I had a
16
T.V. on, I heard him.
They had break-ins; they said,
17
okay, now we have an interview with Sheriff so-and-so.
18
They were covering all the different counties around
19
town.
20
White, Pasco County.
One of them was an interview with Sheriff Bob
21
Q.
And what did Bob White say?
22
A.
In effect, this would not be an exact quote, I
23
don't have it in front of me; he said, now, folks, look
24
Hurricane Francis is coming in, okay, but it's not going
25
to start hitting hard until tonight and tomorrow.
So go
616
1
on out, do your good shopping, get prepared, stock up on
2
any supplies.
3
down, then I want you to honker down and stay honkered in
4
the house for a couple of days.
5
6
7
8
Q.
But around dinner time, 6:00 when you sit
On September 4th, did you, as your normal
practice, read any newspapers on line?
A.
Yes, I did.
MR. SHAHAN:
May I approach the witness, Your
9
Honor?
10
11
THE COURT:
Yes.
BY MR. SHAHAN:
12
Q.
Sir, I've got something marked for
13
identification as Defendant's Exhibit H for
14
identification, and the ask you if you recognize that,
15
sir?
16
A.
Yes, I do.
17
Q.
What is it, sir?
18
A.
It's a printout from the Internet of a copy of
19
the special report that was done by the St. Petersburg
20
Times on Saturday, September 4th, 2004; headline:
21
"Francis has Landed."
22
23
24
25
Q.
Does it have any little dot caption things that
you read back on September 4th, 2004?
A.
I would have read the complete newspaper.
That's my normal habit.
617
1
2
3
4
Q.
But as far as what's in front of you, did you
read that back on September 4th, 2004?
A.
archives.
Well, yeah, this is a recreation from their
I read the actual newspaper --
5
Q.
Okay.
6
A.
-- on September 4th.
7
Q.
Okay.
8
MR. SHAHAN:
May I approach the witness, Your
9
Honor?
10
11
THE COURT:
Yes.
BY MR. SHAHAN:
12
Q.
Did you follow any of the directions that are on
13
that page?
14
A.
Let's see.
Only -- well, on this page, there
15
are no specific directions, it's more like the front page
16
and with a lot of little things; see page; Pasco Section,
17
see this, see that.
18
MR. SHAHAN:
Okay.
I'd like to move this into
19
evidence as the next Defendant's exhibit, which may I
20
have help from the clerk?
21
THE COURT:
22
COURT CLERK:
23
THE COURT:
24
MR. VERGOS:
25
THE COURT:
I think it's No. 7.
It is.
Any objection from the State?
No, Your Honor.
It will be admitted as Defense
618
1
Exhibit No. 7.
2
3
MR. SHAHAN:
BY MR. SHAHAN:
4
Q.
5
start out?
6
day?
7
Thank you, Your Honor.
A.
Back on September 4th, 2004, how did your day
What did do you from the first part of that
I woke up about 5:00 in the morning is my normal
8
wake-up time.
I had coffee, read the newspaper, started
9
out on line, and I ended up buying a regular copy of the
10
newspapers later to read.
And prepared the house a
11
little bit in case Francis was going to come in.
12
About two weeks prior to that, I think it was
13
Charlie was the first one that ran threw, and that one
14
we did go out and get some sandbags, get empty bags at
15
the fire station and you have to fill them up yourself.
16
we got about 20 of them, about 58 pounds, locked the
17
front of the garage doors in case the water would come
18
up.
19
sand bags in the backyard.
It was a total bust; nothing happened.
20
We put the
So we were waiting to see if Francis was going
21
to be a total bust too, but we had the sandbags there
22
ready to go if we needed them, and a tape dispenser.
23
first one Charlie, I taped the windows.
24
some people say you should, some people say you
25
shouldn't, but I use duct tape.
The
I know there's
But after it was over,
619
1
it's hard to pull off.
2
this time I used a clear packaging tape about this wide
3
that you seal boxes with, a little handle.
4
off easier.
5
6
7
Q.
It's got a lot of residue.
So
It just comes
Was that the tape that I showed to Donna
Vaillencourt yesterday?
A.
You showed her the dispenser, but just looking
8
at the dispenser without showing the tape, you can't see
9
there is a transparent tape.
You see the darkness of the
10
cardboard core.
11
Q.
Okay.
Anything else that you did?
12
A.
Plenty of water, bought a bunch of water, had
13
some can foods.
14
from Charlie, and that was a bust.
15
16
17
You know a lot of it we had left over
Q.
Okay.
And then what did you do later on in the
A.
Early in the afternoon, Donna, my fiance, you
day?
18
met yesterday, and we like to fish a lot.
We probably go
19
two to three times a week, not from the boat, but from
20
the rivers, Howard Park.
21
barometer either rises or falls when a hurricane is
22
coming, and the fish will take bait more at certain
23
barometer readings.
24
and we didn't catch a thing.
25
River.
And we had seen how the
So we went out for about an hour,
We were down o the Anclote
The sponge dock, there's a place you can fish
620
1
there, but we had no luck.
2
Q.
So what happened next?
3
A.
It was a normal day, you know, normal Saturday
4
day off; putter around the house, and we, basically,
5
honkered down.
6
invited some friends over, invited Donna's brother.
7
lives in a flood zone in St. Petersburg, and our house,
8
it's not in a flood zone; it's not in a mandatory
9
evacuation zone.
10
After 6:00, we weren't going out.
We
He
So he come up, a couple of Donna's
brothers were watching T.V. and the hurricane; all of us
11
12
13
14
about 50 years old.
Q.
And at some point and time, did you and Donna
decide that the brother should leave?
A.
Yeah, it was, you know, probably 11:30 midnight,
15
he started getting obnoxious, and I've known him for
16
eight years since I met Donna, and he's a nice enough
17
guy, but at a certain point when he drinks, he just
18
becomes obnoxious.
19
just didn't want him around the house.
20
physically or anything, but you just don't want him to be
21
around.
I've seen this eight or ten times; I
Not obnoxious
22
Q.
And so did you ask him to leave?
23
A.
Sir?
24
Q.
Did you ask him to leave?
25
A.
Yes, I did.
It wasn't much of a reason.
His
621
1
mother, Donna's mother lives maybe three blocks away, and
2
he spent the night at her house many, many times.
3
Q.
Okay.
4
A.
Oh, yes, she knows what her brother is like when
5
6
7
8
9
10
And was Donna in agreement with that?
he's obnoxious.
Q.
Everybody in the family does.
And then after he left, did Donna stay, or did
she go somewhere?
A.
Donna -- okay, now it's coming back.
Donna had
been taking a nap after we got back from fishing.
her day off.
It was
11
Q.
Okay.
12
A.
I think she woke up around 10:00 or 11:00; she
13
had a nice four, five-hour nap.
14
because I woke up at 5:00 a.m.
15
is up at 5:00 a.m. and I'm asleep by 10:00; so I'm tired.
16
So Donna had woken up, she was refreshed; I said I'm
17
going to bed, and she said I'm gonna go stay at my
18
sister's.
19
I was getting tired
That's my normal routine
Her sister -- her family is closer.
20
lives four, five blocks away.
21
to go to sleep.
Her sister
I said fine, go, I'm going
22
Q.
And did you go to sleep?
23
A.
Yes, I did.
24
Q.
Did go to sleep easy, or do you ever use
25
sleeping pills to go to sleep or --
622
1
A.
No, I go out with a light.
We have no T.V.s in
2
the bedroom; we don't read in the bedroom; we use the
3
bedroom for sleeping and doing other things that couples
4
do.
5
Q.
Right.
6
A.
But theory in that is true; Donna taught me
7
that.
They said if you're in the bedroom and you use it
8
for watching T.V. or reading, you can have problems
9
falling asleep.
We know when we are in the bedroom, it's
10
bang, bang, out go the lights; we're both sleep in two to
11
three minutes.
12
Q.
So did you turn out the lights?
13
A.
Yes, bedroom lights, of course.
14
Q.
And --
15
A.
Okay.
I did at a certain point and time turn
16
out the bedroom lights just as I was going to bed, and I
17
would have been sleep within five minutes; I did a few
18
things before then.
19
Q.
Like what?
20
A.
I have a pistol; you've seen it before, a Smith
21
and Wesson; I've had for 20 years.
And I have next to me
22
on my side of the bed, there's a Brinks safe, and I keep
23
it in there; they're for self-protection.
24
and, you know, and examined it, checked it, put it on the
25
bed.
I took it out
I haven't been through hurricanes until then, but
623
1
I've read about the ones in Miami and people saying
2
looters will be shot, and people sit there with shotguns
3
in front of their house.
4
And in the area where we lived, just two blocks
5
away, had mandatory evacuation, so there's $20,000 houses
6
that are empty.
7
my protection.
8
9
10
11
Q.
So I said I'm going to have a pistol for
Hold on for one moment, sir.
I need to have
something marked.
MR. SHAHAN:
Your Honor, I'd like to have this
marked as the next exhibit for identification, please.
12
Thank you.
13
BY MR. SHAHAN:
14
Q.
This has been marked by the clerk for
15
identification as Defendant's Exhibit "J".
16
something you prepared for this trial?
17
A.
Yes, it is.
18
Q.
Go ahead and hold it.
19
20
Is this
So you took those
pictures?
A.
Yes, I did.
21
MR. VERGOS:
22
THE COURT:
Judge, can we just -Well, first of all, here's how it's
23
supposed to work, right?
You don't show anything to the
24
jury until you show it to Mr. Daiak first, and if he can
25
identify it, and if you can recognize what's depicted in
624
1
the photographs, and if he says it fairly and accurately
2
represents whatever it is, then it can be introduced into
3
evidence, and then the jury can see it.
4
But the jury can't see evidence before it's
5
introduced, and before we have the proper foundation
6
questions asked, right?
7
MR. SHAHAN:
8
apologize.
9
BY MR. SHAHAN:
I apologize, Your Honor.
10
Q.
Sir, what is this item?
11
A.
That is a 200 pound Brinks safe.
12
I
It's about two
by two by two cube; it's got a visual combination lock,
13
and I keep it next to the bed.
It's about the same
14
height as a bedside table.
15
with a souvenir we got on a cruise we went on years ago.
16
So you couldn't see instantly that it was a safer; throw
17
some books on it.
I keep it covered with a --
18
Q.
Let me ask a question.
19
A.
Yes.
20
Q.
Did you take these four pictures shown here?
21
A.
I believe Donna did.
22
Q.
And were you present when she took those
23
pictures?
24
A.
Yes.
25
Q.
And do they fairly and accurately represent the
625
1
conditions in your bedroom on the night of the events
2
that are at issue in this case?
3
A.
4
5
Yes, and today as well.
MR. SHAHAN:
to introduce this in as Defendant's Exhibit 8.
6
THE COURT:
7
MR. VERGOS:
8
9
12
Any objection?
May I ask a couple of questions,
Judge?
THE COURT:
10
11
At this time, Your Honor, I'd like
Yes.
- - -
C R O S S
BY MS. VERGOS:
E X A M I N A T I O N
13
Q.
Mr. Daiak, you're saying these conditions --
14
these pictures accurately reflect the conditions in your
15
bedroom that night?
16
A.
17
later.
18
Q.
No, those are taken, approximately, three weeks
This isn't what your bedroom looked like that
19
night, I mean, you couldn't see that in your bedroom that
20
night; correct?
21
A.
You couldn't see the safe.
22
Q.
Right.
23
A.
This is exactly as it has been set up for five
24
years.
25
Q.
This picture right here, that's not.
626
1
A.
I rolled that back to show the safe, because he
2
had written on the police report, he said, I didn't see
3
anything."
4
Q.
5
6
7
8
9
10
My question was whether this is how your bedroom
appeared that night?
A.
On that night, it would have appeared like this
or this.
Q.
Okay.
And it didn't appear like the third
picture on that night?
A.
No, I just do the demonstration to show that
11
there is a safe where I keep the handgun, because Donna
12
has children.
13
Q.
So two of the four pictures on this do not
14
accurately represent how the bedroom appeared on the
15
night of September 5th?
16
A.
No. no.
That's correct.
17
THE COURT:
18
MS. VERGOS:
19
All right, any objection?
No, Judge, with the understanding
that that's not how the bedroom appeared on that night.
20
MR. SHAHAN:
Let's get some clarification here.
21
She's talking about four pictures, and she didn't say
22
which is one, two, three, four; I didn't get to either.
23
THE COURT:
Well, the top two he said are
24
consistent with what it looked like on September 4th, and
25
the bottom two are after he had the safe pulled out three
627
1
weeks later, and then took the photographs.
2
MR. SHAHAN:
3
THE COURT:
4
All right?
Correct.
So I will allow this into evidence
as Defense Exhibit No. 8.
5
MR. SHAHAN:
6
THE COURT:
Thank you, Your Honor.
And it will be a composite exhibit,
7
and I think we should have it marked as, the one on the
8
top left is A; top right, B; bottom left, C, and bottom
9
right, D.
10
board.
11
12
13
So you can write that right on the poster
MR. SHAHAN:
Do you want me to do it, or the
clerks?
THE COURT:
The clerks.
We ought to give them
14
something to do.
15
MR. SHAHAN:
Fine.
16
MR. SHAHAN:
Can you step down, sir?
17
THE DEFENDANT:
18
MS. VERGOS:
20
THE COURT:
Judge, may I?
Yes, you may.
21
23
24
25
I didn't know there was a step
there,
19
22
Thank you.
- - C O N T I N U E D
D I R E C T
E X A M I N A T I O N
BY MR. SHAHAN:
Q.
So what does Exhibit A represent, picture A in
this exhibit?
628
1
A.
This would have been how the corner of the bed
2
on the side I sleep on, how the night table would have
3
appeared at the time I went to sleep on September 4th, or
4
any night.
5
know, I'd open the safe, take a pistol out and then put
6
this back, lock the save up, and probably put a pistol
7
here.
8
you're going to need one.
9
Q.
You know, you hope you never need a pistol, but
What's number "b," letter "b", what does that
10
show, sir?
11
A.
12
13
14
That's how it would have been after I, you
It shows the same thing from a different angle
with no other bed.
Q.
Is that the bed you were sleeping on that night
when the police came into the back?
15
A.
Yes, sir.
16
Q.
Okay.
17
A.
I sleep on this side of the bed.
18
Q.
And these pictures are afterwards, but you took
19
20
picture C for what purpose for this case?
A.
21
22
Because later on, I was read.
MS. VERGOS:
Judge -- Judge, I'm going to object
to hearsay.
23
THE COURT:
24
MS. VERGOS:
25
THE COURT:
Later what he read?
Yes, what he read.
What do you mean by later?
629
1
2
3
MR. SHAHAN:
I'll rephrase the question.
BY MR. SHAHAN:
Q.
What was the purpose of this picture?
Don't
4
talk about what you read, but what was the purpose of
5
having the picture made, picture C?
6
7
A.
To demonstrate that there was a safe beneath
this; it's not just a box.
8
Q.
Okay.
9
A.
And also it's open at this angle to show that
10
it's a digital opening, and there's 10,000 possible
11
combinations, and I set it, and I'm the only one --
12
UNNAMED JUROR:
13
THE WITNESS:
14
blind.
What's the red on the wall?
I'm not sure. I'm a little color
15
MR. SHAHAN:
16
UNNAMED JUROR:
17
THE WITNESS:
18
photographs.
19
BY MR. SHAHAN:
On picture A?
Over here, right there.
That's dirt or something on the
20
Q.
And what's the purpose of picture D?
21
A.
To show one, it's a safe, and how it appears
22
23
24
25
locked, and how it appears opened.
Q.
So "C" is how it appears open, and "D" is how it
appears locked?
A.
Right, with the cover off of it.
The cover is
630
1
normally on it, so somebody would not instantly see a
2
safe.
3
Q.
4
5
Okay.
MR. SHAHAN:
around?
They've seen everything?
6
- - -
7
(No response from the jury.)
8
- - -
9
10
11
12
So would anybody want to pass this
MR. SHAHAN:
Okay.
Thank you.
BY MR. SHAHAN:
Q.
Approximately, what time did you go to bed that
night, sir?
13
A.
I would say about 12:15 I was asleep.
14
Q.
As I said, normally I go to sleep at 10:00, and
15
I -- I need no sleeping pills.
As soon as I hit the bed
16
and, you know -- like I say, we use the bedroom for
17
sleeping.
18
19
Q.
Okay.
Have you been prescribed anything,
Adderall?
20
A.
Excuse me?
21
Q.
Have you been prescribed any medications like
22
Adderall, something like that?
23
A.
Could you spell that, please?
24
Q.
No.
25
Do you remember the one officer talking
about a prescription box he saw; correct?
631
1
A.
Adderall.
2
Q.
There you go.
3
4
5
I've been wrong.
Have you been
prescribed that in the past?
A.
Yes, around the year 2000, 2001, by a licensed
doctor in Florida.
6
Q.
And what was it prescribed for?
7
A.
It's something called adult attention deficit.
8
It's something like -- with kids they give Ritalin; it's
9
in the same family of drugs; kids that are jumpy, calm
10
them down.
11
in adults, but the symptoms don't include hyperactivity.
12
It's a very prescribed drug.
13
14
15
Q.
And -- but there's a high incidence of that
And did you take it normally as prescribed by
the doctor?
A.
Yes.
16
17
18
Q.
Did you ever take less than they prescribed or
more?
A.
No, I believe the prescription was 20 milligrams
19
a day, and I in to get a month's supply, and then I get
20
another month's supply, 60 pills a month.
21
22
Q.
Okay.
Now, you did hear the EMT testify that he
found a bottle empty?
23
A.
Yes, I did.
24
Q.
Okay.
25
A.
It became empty -- what -- can you tell me again
And how did it become empty?
632
1
2
3
4
5
what the date was on the bottle?
Q.
He testified something -- my memory is it was
around 2001.
A.
I agree.
I think it was May 2001, but the pills
had been empty since June 2001.
6
Q.
And why is that?
7
A.
Because that was the last -- you know, I had
8
emptied the bottle; you know, it was the end of the
9
month. I don't know why I still had an empty bottle
10
around, and then with my clothes or something, we moved
11
recently.
12
13
Q.
that.
Just an old pill bottle.
So you didn't take any of those pills -- strike
Did you take any of those pills on September 4th?
14
A.
No, no.
15
Q.
And when you did take them, what did they do for
16
you, like how did you feel differently after you took
17
them versus before?
18
19
MS. VERGOS:
Judge, I object to relevance.
He
said he didn't take any back then.
20
THE COURT:
Overruled.
21
THE WITNESS:
It just gives you -- it helps you
22
focus, and focus on things better.
I mean, I could be
23
doing five things at once, multi-tasking, they call it
24
today, but to focus on one and stay with it, that's why
25
it was prescribed for me.
It started out when I -- you
633
1
know later in life, I mentioned I have a degree in law,
2
and you need a tremendous amount of concentration during
3
the educational process.
4
BY MR. SHAHAN:
5
6
Q
So, basically, that particular day
though, you hadn't taken those pills?
7
A.
8
years.
9
Q.
10
Okay.
I hadn't taken those pills in three or four
Now, after you went to bed, did anything cause
you to wake up?
11
A.
Oh, yes.
12
Q.
And what was the first thing that caused you to
13
14
Oh, yes.
wake up?
A.
Well, I'd been asleep for maybe half hour,
15
forty-five minutes and, you know, my bedroom door is
16
open; I know Donna had left to go to her sister's and,
17
you know, the T.V. is not on, and I heard what sounded to
18
be like voices or something.
19
Now, the hurricane is going, there's wind going
20
on, and I don't know if it shows someone in one of those
21
pictures.
22
to the bed that blows on, and then also helps sleep --
23
it's like background noise.
24
be like men's voices, and as I was gradually groggy up, I
25
didn't hear anything of what they were saying, but
We have a big pedestal fan, 20-inch fan next
But I heard what sounded to
634
1
someone broken into my house.
You know, there's nobody
2
who would be here at this time.
3
that would be in.
4
sorry.
5
Q.
That's okay.
6
A.
My reaction to that was to be scared, you
Donna is the only one
These are men's voices.
And -- I'm
Finish.
7
know, -- shit list.
I mean, I was afraid.
You know, I'm
8
in my house, it's dark; the hurricane is going on, and it
9
never happened to me before; I never had a break-in
10
occur.
And, you know, I stayed in the bedroom at first;
11
I didn't know how many people were out there; so I
12
started shouting at them and, you know, instead of
13
confronting them, if I could just get them out of house
14
by just yelling -- and excuse my language, but this is --
15
you know, I believed I was in serious danger; I was
16
saying
17
know. Because, you know, if I went out there, somebody's
"Get the fuck out of my house," I mean loud, you
18
got a gun, what if it's three people out there with guns?
19
If I could just get them out of the house because they
20
know now someone is awake; I don't know if it's
21
teenagers, looters, home invaders, whoever it was, should
22
not have been in my house.
23
Q.
How many times did you say that?
24
A.
I probably said it continuously until I didn't
25
hear any voices anymore.
Now, I never heard -- I was
635
1
talking so loud, I just kept repeating it until the
2
voices stopped.
3
on the edge of the bed; you know I had my handgun, you
4
know; I'm in my -- I sleep in my underwear, and I just
5
probably said five or six times "get out of my house," in
6
that tone of voice.
7
my house, get out of my house (loud).
8
9
Okay, I'm sitting there in the bedroom
If I could even more -- "Get out of
And then however many times it was, maybe a half
dozen times, I don't hear anything and, you know, the
10
voices are multiple; I can't tell what it is.
11
said, okay, they're gone, and then I could come out of
12
the bedroom.
13
then you can pair around the wall into the living room
14
where the door is, and I'm like that, and I don't see
15
anybody, okay?
16
17
And then I
You have to go like this, and this, and
So I run up and I lock the door.
I turn the
deadbolt; I figure they got in, you know they -- I wanted
18
the door locked; I didn't want anybody coming back.
Then
19
I go back, and I say, okay, good, they're gone; they went
20
away, you know, maybe they decided to break into someone
21
else's house during the hurricane.
22
hyperventilating, adrenalin going, pumping, pumping
23
pumping, and I'd say in a space of a minute later after
24
the door was bolted closed, was this tremendous pounding
25
on it.
And I'm
And as I'm looking at it from the inside of the
636
1
house, the hinges are on the left, the door knob is on
2
the right, and it's a solid wood door, there's no panes,
3
paint, glass frames or anything through it, and it's
4
being so hard on the hinge side like someone is using
5
their foot or -- I saw the hinges started to move loose,
6
and then
7
was scared to death.
They're coming back was to me meant they would
8
be armed, and I'm standing there in my underwear; a
9
hurricane going on.
And I thought they had left, but
10
then when they started, when the door started getting
11
boom, boom, like this -- I can't do it on that surface,
12
but it sounded like somebody putting their foot against
13
the door on the hinge side, and I can see the door
14
moving.
15
know, thinking fast on; these people are coming back;
16
I've got to let them know there's going to be trouble.
17
You know, I can defend myself; I do have a weapon.
18
I'm afraid it's about to go in, and I'm, you
You know, it's a legal weapon.
I've been around
19
weapons all my life.
I have training in it; I've never
20
used it before any place except, you know, shooting at
21
targets, but I say now, this is serious; they're coming
22
back in; they're going to be armed people.
23
most of my mind, through all of this, this happened less
24
than 28 days after the Ex-box murders in Orlando, where
25
four punks went into this house with baseball bats and
And the thing
637
1
beat six young adults to death because they thought, you
2
know, this 30-year old had stolen one guy's Ex-box.
3
like a Playstation or game.
4
And that sunk so far into my mind.
It's
I said, you
5
know, if one of the six young adults, you know, if their
6
parents or someone had taught them something about
7
firearms; they had a firearm, probably just one shot
8
fired wuld have got the punks running out.
9
was baseball bats, and I think the trial was in the last
10
two or three months.
All they had
It was all over the national news.
11
Q.
So what did you do?
12
A.
I fired two warning shots.
13
Q.
And --
14
A.
Well, yes.
16
Q.
Okay.
Tell me why you fired two?
17
A.
Okay.
The first shot, normally, this is
15
18
And there's a reason why I fired
two.
something that if you hear one gunshot out of the blue,
19
you're not expecting, not at a range, you're not exactly
20
sure where it is.
21
gunshot, or it could be a firecracker, or something like
22
that.
23
is.
24
two.
25
to defend myself.
I say it sounds like it could be a
But you hear a second one, then you know what it
Okay?
If, you know, if I've -- and I stopped at
If I didn't have a pistol, then I would have no way
So it's a six-shooter; most handguns
638
1
are; holds six bullets.
2
were going to continue to break in.
3
I didn't just empty the gun, go bam, bam, bam,
4
bam.
5
them?
6
So I had four in there if they
And then what am I going to do, throw the gun at
Q.
That's the reason why I fired two shots.
Okay.
And you said you have training in guns.
7
In fact, you have a concealed weapons permit that day
8
that you've had for quite a while; right?
9
A.
Since 1987, I believe the first year that the
10
law -- it became law in Florida that you could apply for
11
it and get a consealed weapons permit.
12
13
14
Q.
And to get a concealed weapons permit, what
process did you go through in terms of any training?
A.
I think the basics were the same as today.
But
15
first, you apply for it; they do an FBI background check
16
on you; felons aren't allowed to own --
17
MS. VERGOS:
18
THE COURT:
19
BY MR. SHAHAN:
Judge, I'm going to object.
Sustained.
20
Q.
Okay.
Don't get into the background check; it's
21
been sustained, just get into the items of training that
22
you took that resulted in this certificate.
23
24
A.
The training order requirement then in
1987, I
believe it's the same today,
25
MS. VERGOS:
Objection, objection as to
639
1
speculation.
2
3
THE COURT:
Sustained.
BY MR. SHAHAN:
4
Q.
Just what training you did.
5
A.
Ten hours of training in a classroom, and then
6
shooting off, I think it's 50 or 100 rounds of ammunition
7
under supervision.
8
Q.
And who did you get your training from?
9
A.
The Pasco County Sheriff's Office Facility at
10
Gowen Corner.
11
Q.
Do you remember your training officers there?
12
A.
Very much.
13
Q.
And they were?
14
A.
Kirk Geld (ph.), Kirk with a "K,", and I'm
15
pretty sure of he's not working at the force anymore.
16
went by Tex Shram (ph.) common spelling; he and his wife
17
were very involved in non-competitive shooting.
18
Q.
19
occur?
Over how many days or weeks did this training
He
20
A.
In one week, there was, as I recall, I could be
21
incorrect slightly, but it was like 7:00 to 9:00 Monday,
22
Tuesday, Wednesday, Thursday and Friday in the class room
23
part, followed by the Saturday, pretty much six hours at
24
the outdoor shooting range where, I mean, these are like
25
for me, you know, I just bought the gun.
This is the
640
1
first time I fired it. There were other people there that
2
had never fired guns before.
3
are waling around, showing people, not really being in
4
their aim but the safety part.
5
training was, the safety.
6
tell everybody there's no such thing as an unloaded gun.
7
Even if you emptied
8
unloaded.
9
10
MR. VERGOS:
THE COURT:
12
THE WITNESS:
14
That's what ten hours of
You kow, I think Donna -- I
it, and it and you know it's
Objection, nonresponsive at this
point.
11
13
So these two instructors
Sustained.
I apologize.
BY MR. SHAHAN:
Q.
Now, JJ, did I understand you to testify earlier
15
that you had actually used a gun in other parts of the
16
country before this?
17
MR. VERGOS:
18
19
20
Judge, I'm going to object to
relevance.
MR. SHAHAN:
approach the bench.
It goes to training.
Let's
21
THE COURT:
22
THE WITNESS:
23
Overruled.
Would you ask the question again?
BY MR. SHAHAN:
24
Q.
What's the youngest age you've used a gun?
25
A.
The youngest age?
641
1
Q.
Yes.
2
A.
I'd say 10 or 11 years in the Boys Scouts.
3
was living in the California at the time.
4
Q.
What kind of gun did you use then?
5
A.
The police had a program.
6
7
It was a .22 rifle;
included safety, and we would get a merit badge in it.
Q.
8
9
I
And then what's the next kind of gun?
MS. VERGOS:
Judge, I'm going to ask to
approach.
10
THE COURT:
All right.
11
- - -
12
(Sidebar discussion on the record.)
13
- - -
14
MS. VERGOS:
Juge, I think that his training
15
has, basically, been covered, and I believe we're getting
16
into, because of the motion that they've already filed,
17
it was at one point he was working for the Department of
18
Defense in Washington, D.C. and using firearms in that
19
capacity.
20
that he did the training class, he has the concealed
So it's going into -- he's already testified
21
weapons permit; even brought out things about firearms
22
that were discussed at least twice in the past.
23
the jury gets the understanding that he's familiar with
24
firearms, and he's had training with firearms.
25
THE COURT:
I think
Response.
642
1
2
MR. SHAHAN:
I'm not getting into that at all.
Obviously, in this case --
3
THE COURT:
If you're not going to get into, you
4
don't have to worry about it.
5
MR. SHAHAN:
I'm just telling you what I am
6
getting into, so we're not back here in the next ten
7
seconds.
8
important to know whether he just recklessly fired, he
9
knows how to aim, different things like that.
10
What I'm going to get into, in this case it's
is the whole case.
11
THE COURT:
All right, overruled.
12
- - -
13
14
15
16
17
Intention
(End of sidebar discussion.)
BY MR. SHAHAN:
Q.
Sir, continue.
What's the next type of gun
that you used?
A.
In my early twenties, going to undergraduate
18
school, community college, I bought a .22 caliber Reutger
19
long barrel revolver for protection.
20
bought it, I will.
21
Q.
If I can say why I
No, I think you just said for protection.
Did
22
you ever go and actually go to shoot the thing at the
23
target ranges and things like that over the years?
24
25
A.
Yes.
Yes, I did.
I mean, the day I bought it,
I fired off 100 rounds at a gun range.
643
1
Q.
The Leuger, you mean?
2
A.
No, the Ruger, R-u-g-e-r.
3
The Ruger was a Nazi
gun in World War II.
4
Q.
So how did you do with it?
5
it or not?
6
A.
Were you good with
I don't think I could compete with someone like
7
Herb Gallen (ph) competively, but I can pretty much hit
8
what I'm aiming> at.
9
immediately, it's a machinery --
10
11
MR. VERGOS:
THE COURT:
13
THE WITNESS:
15
16
17
Judge, I'm going to object as not
non-responsive.
12
14
The reason for shooting a hundred
Sustained.
I'm sorry.
BY MR. SHAHAN:
Q.
So as far as the center of the target, you got
close to that at times; right?
A.
Well, that's the idea to get exactly in the
18
center, and people like Herb Gallen and Tex Ram are
19
unbelievable.
20
21
Q.
Okay.
off this round?
Now, what did you aim at when you shot
Did you aim at different things,
22
different rounds?
Let us know that.
23
A.
Okay , now we're going back to --
24
Q.
The incident that you're here on trial for,
25
that's what I care about.
What were you shooting at when
644
1
2
you shot?
A.
I was shooting at the --- well, first the sofa
3
that was backed up into, you know, a cinder block wall,
4
and then a bookcase is backed up by a cinder block wall,
5
and where I shot, there's a door, there's a space, I'm
6
talking my point of view, interior of the house, if I
7
can, te door this size, and some space, then a window,
8
some space, and a wall going here.
9
turned out on -- I fired between the door and the window
And I fired, and it
10
and between, I think about nine inches away from the
11
wall, and thirty inches away from the window.
12
want to take a chance of a shot going through -- the
13
bullet would have penetrated the window for sure, the
14
door maybe.
15
16
MR. VERGOS:
THE COURT:
18
THE WITNESS:
22
Overruled.
I want to make the noise, okay?
It was a hurricane.
20
21
Judge, I'm going to object as
non-responsive.
17
19
I didn't
MS. VERGOS:
I think the question was where he
MR. SHAHAN:
Objection to your interpretation.
aimed?
23
THE COURT:
Object to her objection?
The
24
objection to her objection is overruled, and her
25
objection is overruled as well.
So please continue.
645
1
THE WITNESS:
Okay, I believe you asked me the
2
question before I make another mistake of where did I aim
3
and why did I aim there, is that --
4
BY MR. SHAHAN:
5
Q.
That's the question.
6
A.
Correct?
7
Q.
Yes?
8
A.
Okay.
9
Here's your answer, but I have to have a
few sentences to say first there's a hurricane coming,
10
think, Okay?
If there hadn't been a hurricane, I
11
probably wouldn't have sshot three out.
12
holes in the roff.
13
carpeted floor or something, I probably would have shot
14
it before but it's all tires in the whole house; it would
15
have rorroheted said , your can't tell what it's going to
16
do after it hits tile.
17
of is, you know, the cinder block, because I know these
18
bullets will not penetrate; they won't make a dent on
19
cinder block.
It's a hurricane, and if we had had a
the only other thing I can think
20
Q.
How do you know that?
21
A.
How do I know that?
22
I don't want
Experience, shooting
hundreds and hundreds of rounds.
23
Q.
What kind of bullets were in there?
24
A.
They were -- it was .357 Magnum, but a .357
25
has such a kick, you can also use .38 bullets in it.
So
646
1
I had -- you know, everyone has been calling .357, but
2
it might as well have been a .38, a smaller caliber.
3
Q.
And what kind of bullets?
4
A.
Bullets, the brand name, I don't remember.
5
know, I buy different brands over time.
6
of 50 -- whoever has them on sale.
You
They sell a box
7
Q.
What kind of points do they have?
8
A.
They were I think five hollow points, and one
9
solid point loaded in such a way where they call it
10
staggards (p.h.)
11
points, and the last one that would be fired if I needed,
12
would be a of solid bullet.
13
scenario if you're firing -- hollow points don't have a
14
lot of penetration.
15
do something and you can't -- the hollow points don't
16
penetrate, then you got one last bullet that may
17
penetrate to what you have to do.
18
19
20
Q.
I know the first five are hollow
It's a common self-defense
Someone in the car, if you happen to
So the two bullets you shot off, what type of
bullets were they?
A.
Those were hollow, specifically stacked that
21
way, the first two hollow points; the last one would be a
22
solid one.
23
Q.
Okay.
You can continue on.
I kind of got you
24
off to explaining bullets, because I don't know anything
25
about them.
647
1
2
3
4
5
THE COURT:
Well, is there a question?
BY MR. SHAHAN:
Q.
Well, okay.
the two shots?
A.
Have you explained were these shots
That was the question.
Yes, I did.
I split the difference between the
6
door and the window, and then as far away from the window
7
as I can, knowing that there's cinder block behind it; on
8
the way there was a bookcase right, top right in the
9
corner; I think you've seen pictures of it, and below the
10
level of the window, but it turned out to be exactly
11
halfway between the door and the window corner
12
measurements that Mr. Tepedino testified to.
13
Q.
You've examined the Tepedino report?
14
A.
Yes, I have.
15
testified.
16
Q.
17
18
And I was here yesterday when he
So when you say there were warning shots, what
do you mean by that?
A.
I wanted to -- whoever was out there who had
19
already entered my house once, and then they're coming
20
back, to know -- I was supposed to defend myself in my
21
home.
22
that night; I have very strong belief about your home
23
being your castle, and I have very strong beliefs about
I have a family; they didn't happen to be there
24
not just a right, a legal right to defend yourself, but a
25
moral right to defend yourself, not to let someone else
648
1
take your life or someone, a member of your family's
2
life, if you could resist.
3
4
5
Q.
Did you ever see these people as to whether they
were male, female, adult, children, what?
A.
I never saw anybody that night at that time.
6
think it was about 1:00 -- I'm guessing around 1:00 in
7
the morning.
8
Q.
You say at that time.
9
A.
I never saw anybody before firing the shots;
I
Is that preshot?
10
I never saw anybody after firing -- after I fired the
11
shots; the knock on my door ceased completely.
12
they were gone, and that's what I wanted them to do.
13
wanted them to go away.
14
I didn't want to shoot anybody; I just wanted them out of
15
my house and to leave me alone, and
16
death.
17
Q.
18
19
I thought
I
I didn't want to injure anyone,
I was scared to
After you fired the two warning shots, where did
you go next?
A.
Well, as soon as I fired the two warning shots,
20
I backed up into the alcove that I mentioned to see if
21
One someone was going to keep coming in.
22
that position for probably a half hour to make sure, you
23
know, that they weren't going to try again.
24
you know, this is way past my normal bedtime, so then
I stayed in
And again,
25
okay, the storm is getting worse, Hurricane Francis is
649
1
getting worse, and I just keep retreating backward into
2
my bedroom, and I remember lying down on the floor
3
between -- you saw the picture between the bed and the
4
wall as being the safest place in the house, with the
5
concrete blocks around, the bed is protection.
6
Now, again, I use the bedroom just for sleeping,
7
so there's no T.V., there's also no telephone.
I
8
couldn't make a telephone call from the bedroom, the
9
telephone is on the other side of the house, and there
10
are windows that are back windows that don't have
11
curtains on them.
12
back now waiting for me to walk by, so plus there's a
13
hurricane, who's going to respond?
14
it was, you know, they broke in but they left, they went
15
away; so I wanted to just wait until the morning, and
16
then call the police.
17
Q.
18
Honor?
19
20
21
I don't know if these people are out
I mean, there was --
Sir, State's Exhibit 7, may I approach, Your
THE COURT:
Yes.
BY MR. SHAHAN:
Q.
You said at one time you lied down on the floor
22
I believe by the bed.
Can you come over and show the
23
jury where that is in this picture if it's in the
24
picture?
25
MR. VERGOS:
Judge, may I?
650
1
THE COURT:
2
THE WITNESS:
3
between --
4
BY MR. SHAHAN:
Yes, you may.
Okay, right in this area here
5
Q.
I do want to move over.
6
A.
There's a bed, and it's about three feet over
7
this way.
I wanted protection, this wall, this wall, and
8
the mattress and the box springs.
9
scared, I was huddled in.
I was huddled; I was
10
Q.
So where were you?
11
A.
Well, later on, okay, the adrenalin finally
12
wears off, and sometimes I don't know the times at all.
13
I decided the tile floor is not real comfortable, you
14
know, hours had passed, and I just crawled back into bed.
15
Q.
Okay.
16
A.
I had -- I remember keeping the pistol with me,
17
not even putting it out on the nightstand.
18
they were coming back.
19
20
Q.
Okay.
- - -
22
(Witness returned to the stand.)
23
24
25
You can go back to your seat.
sir.
21
- - BY MR. SHAHAN:
Q.
I was afraid
And did you go back to sleep?
Thank you,
651
1
A.
Eventually, I fell asleep.
I don't know what
2
time, but my adrenalin had been up so high that, you
3
know, say one clock, I want to say 1:30 a.m. I don't
4
know, but sometime after that, you know, the adrenalin
5
wore off and I was exhausted, you know.
6
person, and I fell asleep.
7
8
Q.
I'm not a night
At any time after Donna left for her sister's,
did you ever see her again that evening?
9
A.
No, not that day.
10
Q.
At some point and time after you went to sleep
11
the second time, were you wakened again?
12
A.
Yes, I was.
13
Q.
And describe what you heard and saw.
14
A.
As I said before, it's in bits and pieces, okay?
15
It wasn't until days later that, you know, I knew what
16
happened.
17
light, and I'm disoriented -- what?
18
sudden there appears to be six or eight looked like
19
military commandos to me.
20
uniforms and machine guns, and they're pointing at me,
21
and then just, you know, in a flash, had me hog-tied face
22
down.
23
me, never said anything; I didn't see anything.
But I heard this bomb go off, and this bright
And then all of a
They're like all black
And they never identified --they didn't talk to
24
I just didn't know what was going on.
This
25
flash, this noise I learned later, it was only two feet
652
1
from my head what was set off.
But a lot of that, all of
2
that knowledge was told to me three days later.
3
idea what's happening at the time.
4
light, and I'm being tussled and taken away.
5
know -- I don't know why, I don't know who; I have
6
absolutely no clue.
I had no
I just knew a bomb, a
I don't
7
Q.
At this gathering, did Donna flip her top?
8
A.
She did flash me as a joke.
9
She's an attractive
woman; she's got a nice figure; I have seen her boobs
10
more than once in eight years -- okay.
What angered --
11
I'm sorry.
12
Q.
Go ahead.
13
A.
What angered me, this is after she had woke up
14
from her nap, she was probably taking a shower, and I was
15
watching T.V. with her brother-in-law, Gary Tobrasky
16
(ph.), and I don't know if Donna knew Gary was there or
17
not, but Gary saw her boobs too, and I said, no, I'm the
18
only guy that gets to look at this, so I was I set.
19
mean, she's not a stripper or, you know, an exhibitionist
20
or anything else, you know.
21
22
23
24
25
Q.
I
So how did you describe that to her that you
were upset?
A.
I said, what are you doing flashing Gary?
damn, you know, you don't do that.
Q.
And what did she say?
God
653
1
2
A.
really know Gary was there; I came around the corner.
3
4
5
She said, well, I was just joking, I didn't
Q.
And you didn't try to hit her or anything, did
A.
No, I was upset. I, basically, said to her, I
you?
6
said you can flash me anytime, please, you know.
7
a nice figure, but don't do it to another man.
8
not right, you know.
9
or anything like that where they're used to it.
You got
That's
Again, she's never been a stripper
I said
10
just don't do it; we've been together for eight years
11
monogamously, still together, still monagamous.
12
13
14
Q.
How long after that did she leave for her
sisters?
A.
She left between 11:30 and midnight, probably
15
closer to midnight. She spent some time preparing to go
16
to her sister's, because she said -- I said I'm ready to
17
go to sleep; I can't stay awake any longer.
18
a four-hour nap, wanting into go four blocks; her sister
19
is a late-night person, talking blah, blah, blah blah,
20
blah.
21
Q.
She just had
That's what she was intending to do.
So how long was it from the time you had this
22
discussion you don't do that, you know, flashing the
23
boobs, that she actually left?
24
25
A.
I'm going to guess she woke up at 11:00 from her
nap, I think.
And so I think she probably did a little
654
1
flash thing either before or after her shower; so either
2
between 11:15 and midnight, or 11:30 and midnight, in
3
that time frame.
4
and prepared to go visit her sisters, because I was a wet
5
blanket.
6
7
8
9
She would have been getting made up,
I was just going to go to sleep.
Q.
After the discussion when you told her you were
upset, how did she react to that?
A.
She said -- well, once she said I didn't know
Jerry was there, I was just going to surprise you.
And
10
then I said don't, you know, just don't do that, it's not
11
right.
12
Q.
And then was there a further reaction from her?
13
A.
She says, well, I didn't know he was there;
I don't want you doing that.
14
don't get so wound up about it, they're just boobs.
15
said something like, yeah, but they're supposed to be
16
for, you know, for my eyes only.
17
Q.
Well, were you and her having any kind of
18
argument before she went to her sisters after this
19
discussion?
20
A.
I
The only type of argument, come on over with me
21
to my sisters, have some fun; tomorrow is Sunday, we can
22
sleep in.
23
want an argument.
24
going to bed, that's where I'm going.
25
Q.
I said I'm going to sleep, I mean, I didn't
She's trying to get me to go.
I'm
Did anybody tell you whether it's the brother or
655
1
Dennis, or whether it's Donna, to anaylze the way you
2
reacted to this boob, saying I'm going to the police?
3
4
5
6
A.
No, no, it wasn't.
It wasn't Dennis, her
brother, it was her brother-in-law.
Q.
The brother-in-law is the one that saw her
boobs; right, Gary?
7
A.
The brother in-law not the brother.
8
Q.
My question to you is did anybody tell you
9
whether it's Donna, the brother-in-law, Gary, or Dennis
10
that I don't like you, JJ getting upset about this, or
11
talking to me about flashing my boobs, and I'm going to
12
the police?
13
A.
No, no, if I understand your question correctly.
14
Q.
Did you expect the police to be coming there
15
after Donna left?
16
A.
No, sir.
17
Q.
Did you order her to leave for her sisters?
18
A.
No, it was her idea.
She was trying to get me
19
to go and put me a party pooper.
20
it's tradition for those who live down here a long time,
21
to have a few friends over, couple of beers frozen
22
Marguerita, and play some Jimmy Buffet (ph.), and then
23
nothing happens.
24
25
Q.
It's a hurricane party;
When was the first time on September 4th or
September 5th that you thought you might have seen
656
1
police?
2
3
MS. VERGOS:
the question.
4
5
10
11
Maybe the reporter could read it
back.
THE COURT:
What was the first time on September
4th or September 5th that you thought you saw the police?
8
9
I didn't hear
If Counsel could just repeat it?
MR. SHAHAN:
6
7
I'm sorry, Judge.
THE WITNESS:
I didn't see the police on
September 4th, or September 5th.
BY MR. SHAHAN:
Q.
And on September 6 or September 7th, what did
12
you think you saw in your bedroom?
13
you saw in your bedroom after the flashback?
14
A.
What did you think
When they call it a flash back, I heard some of
15
the testimony of the officers, you know, describing after
16
it's spent, to throw the person into a sudden shock.
17
Well, I heard argument of the word "shock" by just like
18
"surprise," so officers can move in safely.
19
just so -- it just so disoriented me, and the one glance
20
I have before I'm tied up and face down, and I can't see
21
anything is, you know, my best guess is five or six; they
22
look like military people with machine guns. I don't know
23
who they were; they never said a word.
24
25
Q.
But it was
Later on you found out what this was all about
though, right?
657
1
2
A.
I found I didn't know about it until the
following Monday.
3
Q.
Two days later?
4
A.
Two days later, a couple of people had asked me,
5
well, what happened.
6
MR. VERGOS:
7
THE COURT:
8
9
I said -Judge, I'm going to object.
Sustained.
BY MS. SHAHAN:
Q.
You can't say what the people asked you, but did
10
you read any paperwork that told you what it was all
11
about?
12
A.
Eventually, probably the first I saw that in the
13
news was the Suncoast News, which is the local newspaper
14
that they throw on your lawn on Wednesdays and Saturdays;
15
it gets wet you have to take it and throw it away but
16
it's got good coupons on it.
17
MS. VERGOS:
18
THE COURT:
There was a story on it --
Judge, I'm going to object.
Overruled.
But try to just answer
19
the question without an editorial about everything, all
20
right?
21
THE WITNESS:
I apologize.
I'm not used to
22
this.
The Suncoast News published an article on the
23
Wednesday following the 4th, 5th, 6th, 7th -- would have
24
been the 8th of September, and either that day or the
25
next day, Donna brought a copy of the article in for me
658
1
to read, and it was an article --
2
MS. VERGOS:
3
THE COURT:
Approach the bench.
4
5
- - (Sidebar discussion out of the hearing of the jury.)
6
- - -
7
8
Judge, I object to hearsay.
THE COURT:
This is an article he read after the
incident.
9
MS. VERGOS:
10
MR. SHAHAN:
The 8th or the 9th.
It's a foundational question.
I'm
11
just -- I'm going to ask him did he have beefs with the
12
police before this; what was his attitude
13
about the police.
14
man, and that he knew the police was coming, and he just
15
shot it up, you know.
16
pre-incident
She's trying to show that he's a wild
THE COURT:
He already testified that he had no
17
idea that they were the police.
And then he didn't
18
realize it until I guess they came in in para-military
19
gear.
20
don't you move on?
So I don't any any of that is relevant; so why
21
MR. SHAHAN:
Hold on, Judge.
If that's your
22
ruling, that's fine.
23
record.
24
this case.
25
known it was the policet, they had uniforms, this, this
I want to make sure I got a good
It's relevant because that's the whole issue in
She is saying it's police, he should have
659
1
and that.
I just want to make sure, and she's made it
2
sound in her opening statement that he's angry, you know,
3
whatever; he was like angry enough to shoot the police.
4
So I just want to make sure -- I just don't want the
5
question, what was his attitude about the police before
6
the incident; that's it.
7
THE COURT:
8
MS. VERGOS:
9
10
11
12
13
after the incident.
Go ahead.
This was the article that he read
I don't think that's relevant to
anything.
THE COURT:
Well, I think he just wants to ask
that one question, so I'll allow him to do that.
MS. VERGOS:
Judge, as far as his attitude
14
towards the police before the incident, I think that's
15
improper questioning.
16
THE COURT:
17
MS. VERGOS:
Well -His attitude towards the police
18
before the incident also included the police had to
19
disarm him.
20
Can we talk about that?
MR. SHAHAN:
Yeah, let's talk about that.
What
21
happened is, there is an article that she has
22
misconstrued, I tried to show it to her, because she
23
miscontrued what happened.
24
where Donna did something with a gun and ran off, and he
25
showed the police the gun, and they took it into custody
Donna and him had a situation
660
1
from him, but it was Donna that was doing something with
2
the gun.
3
MS. VERGOS:
That's not my understanding.
4
MR. SHAHAN:
I know, but she didn't read the
5
6
whole article.
MS. VERGOS:
First of all, Judge, I never got
7
any discovery regarding that article but, nonetheless, my
8
understanding, according to the people, to Donna's
9
mother, is that they disowned him, not Donna.
10
11
12
THE COURT:
Where is this article anyway that
you're about to talk about in the Suncoast News?
MR. SHAHAN:
I wasn't trying to get into an
13
article, I'm trying to show when is the first time he
14
thought they were police, and he obviously has already
15
said before they had a military look to them that night
16
when he asked for the cell phone, or whatever, and that's
17
when he first realized he was in the hospital because of
18
the police.
19
talked about the shooting incident, they told the doctor
20
that, you know, this guy was whacco, or whatever; he was
21
going to kill himself.
22
thought he didn't know what he was talking about,
23
para-military, and after he found out about SWAT Teams,
24
he understood.
25
And the police that Baker-acted him, never
MR. VERGOS:
So that -- originally, the doctor
That's all hearsay.
661
1
2
MR. SHAHAN:
I'm not trying to get in the
newspapers, I'm just --
3
MR. VERGOS:
Judge, I think the question about
4
how he felt about the police before has been improper
5
bolstering altogether.
6
times tat he didn't know it was the police; he didn't
7
have any idea they were coming.
8
portion of the testimony.
9
to indicate he was bad towards the police in the past; I
10
11
He has indicated a number of
That's the relevant
I haven't put in any evidence
talked to him about this one day, this one incident.
MR. SHAHAN:
Yes, and my defense is he's not
12
angry at the police, he's not shooting at the police.
13
And she's trying to win this trial by keeping out any
14
evidence, anything that goes to my theory of the defense.
15
16
17
MS. VERGOS:
I'm trying to keep the trial
relevant evidence, Judge.
THE COURT:
All right, I will not allow him
18
to -- I will allow him to ask this question:
19
matter with the police there that night, what would he
20
have done, and why is that?
21
MR. SHAHAN:
22
THE COURT:
23
to the case.
He had no
Okay.
So then at least we make it relevant
Okay?
24
MR. VERGOS:
25
THE COURT:
Yes.
Thank you.
662
1
2
- - (End of sidebar discussion.)
3
- - -
4
5
THE COURT:
All right, please proceed.
BY MR. SHAHAN:
6
Q.
Mr. Daiak --
7
A.
Yes.
8
Q.
-- if you had known this these people outside,
9
the voices were the police that night, what would you
10
have done?
11
A.
I would have gone outside and talked to them;
12
say, "Hi, guys, what's up?"
13
well, you know, with police guys all my life.
14
know them personally, most of them have really funny
15
stories, and you share an interest in shooting, you know,
16
target range.
17
18
MS. VERGOS:
I've always gotten along
You get to
Judge, I'm going to object,
non-responsive.
19
THE COURT:
20
THE WITNESS:
Overruled.
No, I have nothing to hide.
They lead an interesting life.
I
21
like them.
Again, I know
22
them, you know, from gun ranges.
23
in -- like Pinellas County SWAT Team would be on their
24
own time doing practicing with different weapons, and I'd
25
go over and ask them questions about weapons and, you
I'd be at a gun range
663
1
know, just gun talk.
2
BY MR. SHAHAN:
3
Q.
Next question.
At any time that night, did
4
anyone identify themselves to you as a law enforcement
5
officer?
6
A.
No, sir.
7
Q.
Not by words?
8
A.
No, sir.
9
Q.
Did you see law enforcement uniforms before you
10
11
No, sir.
shot?
A.
I saw nobody.
I wanted them out of the house
12
with my voice; I didn't want to confront them; I didn't
13
know what was there.
I wanted to protect myself.
14
Q.
Did you ever say die, die, die?
15
A.
I don't -- no, no.
I might have said, and you
16
know, the most I said is get the "F" out of my house, you
17
know, just using my voice to try to get them, and they
18
didn't get out immediately.
19
if you don't get out of my house, you're gonna die.
20
know, implying that I have a weapon, or faking.
21
a choice, get out of my house or you've committed a
22
felony, and you're gonna --
23
MS. VERGOS:
24
THE COURT:
And then I might have said,
You
You have
Judge, I'm going to object.
Sustained.
25
664
1
2
3
BY MR. SHAHAN:
Q.
Did you ever use the word "police" in your
language, or sheriff in your language?
4
A.
5
6
MR. SHAHAN:
9
10
May I approach the witness, Your
Honor?
7
8
No, no, I had no idea who was out there.
THE COURT:
Yes.
BY MR. SHAHAN:
Q.
Sir, I'm going to show you what's been
identified as Defendant's Exhibit I.
11
Do you recognize that document, sir?
12
A.
Yes, I do, sir.
13
Q.
And what is it?
14
A.
It's entitled Pasco Sheriff's Office General
15
16
17
Orders, 10 pages, says "General orders 26.2, dated 2003.
Q.
Did you get that from the sheriff's office with
the public record request?
18
A.
Yes, sir, I did.
19
Q.
Is that the same order that they were talking
20
21
22
23
about in this trial in the last few days?
A.
Yes.
MR. SHAHAN:
Okay.
At this time, I'd like to
introduce this into evidence as Defense Exhibit --
24
THE COURT:
25
MS. VERGOS:
It's No. 9.
Any objection?
Yes.
665
1
THE COURT:
Approach then.
2
- - -
3
(Sidebar discussion on the record.)
4
- - -
5
THE COURT:
6
MS. VERGOS:
What's the basis of your objection?
The Defendant can't possibly lay a
7
foundation required for that document into evidence.
If
8
they're going to be entering it into public record, then
9
they need a custodian or somebody who knows.
He just got
10
it from a public records request.
11
what's in it, how it got in there, who put it in there.
12
He has nnone of the foundation requirements.
13
14
MR. SHAHAN:
He can't possibly know
That's all true, Judge, but I just
showed it to her, and she knows it's a legal document.
15
MS. VERGOS:
I know what it is.
16
MR. SHAHAN:
Everybody talked about it, we've
17
even talked about specific paragraphs, pages, just to
18
tell this jury they don't have to try to guess what did
19
this guy say about that.
20
notes, it's to aid them.
21
MS. VERGOS:
22
THE COURT:
Just like letting them take
I'm just a stickler for procedure.
You had a chance, even questioned
23
the officer about the specifics of that particular order;
24
so that's all in evidence.
25
authenticate this thing at all, and --
And, obviously, he can't
666
1
MR. SHAHAN:
I have a letter from Randall that's
2
sort of self-authenticating; there's a sheriff's letter
3
that goes with it.
4
THE COURT:
And that question of relevance to
5
the whole thing, and the parts that you wanted out,
6
you've already gotten out through the police officers, so
7
I'm going to this deny your request to have it placed in
8
evidence, and I shall sustain the objection.
All right.
9
MS. VERGOS:
Thank you, Judge.
10
MR. SHAHAN:
Wait just one clarification. I
11
don't plan to ask him any questions, I just wanted that
12
in.
13
Does it change your ruling?
THE COURT:
No, I will sustain the objection.
14
Obviously, the things that the police officers testified
15
to are regarding that; you may, obviously, bring up in
16
your closing argument because that's --
17
MR. VERGOS:
18
THE COURT:
Sure.
-- in evidence, and you may refer to
19
that during your closing as long as that was the part
20
that came into evidence --
21
MR. SHAHAN:
22
THE COURT:
Right.
-- through the officers.
And then
23
if you want to bring more into evidence, then you can put
24
the police officers back on, if you'd like.
25
MR. SHAHAN:
Thank you, Your Honor.
That's what
667
1
I was going to say that.
2
held back just for the defense side, I'd like Mr. McVey,
3
somebody let him know that I need him in about an hour.
4
I'll put it in through him.
5
MS. VERGOS:
I asked that those people be
He won't be able to authenticate it
6
either.
7
8
MR. SHAHAN:
MS. VERGOS:
He didn't authorize it.
He's read
it, but he --
11
12
He's the one that's
the head of it.
9
10
Sure he will.
MR. SHAHAN:
He said he read it, and used it,
and filed it.
13
THE COURT:
14
MR. SHAHAN:
Now, why is this relevance?
Like I say, Judge, I just want to
15
put it into evidence, and then when somebody's got their
16
notes -- he was talking about 4.63, I think he said such
17
and such -- they can look at it and see what it really
18
says.
19
trying to --
20
21
Two or three guys testified about that.
THE COURT:
I'm not
No, no, I'm not going to allowed it
to come into evidence.
22
MR. SHAHAN:
Okay.
23
THE COURT:
24
to it in closing arguments --
25
MR. SHAHAN:
If it's in evidence, you may refer
Okay.
668
1
THE COURT:
-- if you want to, and then you can
2
say, and then add Corporal McVey or Sergeant McVey, or
3
whoever, because it was so long ago, he testified
4
the parameters of what the Crisis Management Team was
5
supposed to do is blank, blank, blank, that's fine.
one of
6
MR. SHAHAN:
7
THE COURT:
8
9
10
All right.
Okay?
But the actual document is
not going to come into evidence, all right?
MR. SHAHAN:
Thank you, Your Honor.
I
understand.
11
THE COURT:
12
MR. SHAHAN:
13
THE COURT:
14
MR. SHAHAN:
All right.
Okay.
If you want it marked -I just want to make sure on the
15
record that it's Defendant's Exhibit I that you said will
16
not come into evidence.
17
THE COURT:
18
MR. SHAHAN:
19
20
THE COURT:
25
Thank you.
Thank you.
- - -
(End of sidebar discussion.)
23
24
Which is the Pasco Sheriff's Office
general order 4.62 (sic.).
21
22
Right.
- - THE COURT:
All right, members of the jury,
perhaps it's a good time for a lunch break.
669
1
MS. VERGOS:
2
THE COURT:
3
4
I guess not.
- - -
(Sidebar discussion out of the hearing of the jury.)
5
6
Judge --
- - MS. VERGOS:
He says he only has about ten
7
minutes left.
8
9
THE COURT:
All right, well, what do you want to
do then?
10
MS. VERGOS:
I'd rather finish with his direct
11
all together, and then take a lunch, and then just come
12
back for cross, if that's okay with the Court.
13
THE COURT:
14
MS. VERGOS:
That's fine with me.
All right.
Okay.
15
- - -
16
(End of sidebar discussion.)
17
- - -
18
THE COURT:
All right, I think we're going to do
19
this.
I know that at least one member of the jury would
20
like a comfort break, and according to Mr. Shahan, he
21
only has about ten more minutes with his direct; so what
22
we'll do is, we will take a five-minute comfort break, we
23
will complete the direct examination, then we'll take a
24
lunch break.
25
cross-examination and any redirect that may be
Then we'll come back for any
670
1
forthcoming, all right?
2
will, obviously, be back in the jury room.
3
So the five-minute comfort break
Now, is there anyone -- I don't know if I've
4
asked this, but there's no one who is a diabetic who
5
really needs food right now, is there?
6
UNIDENTIFIED JUROR:
We are, but I'm fine.
7
THE COURT:
8
UNIDENTIFIED JUROR:
9
THE COURT:
10
Are you sure?
Yes.
All right, so we'll take a
five-minute break.
11
- - -
12
(Jury excused.)
13
- - -
14
15
THE BAILIFF:
The jury is out of the hearing of
the court.
16
THE COURT:
And Mr. Shahan and Mr. Daiak, since
17
he's in the middle of his direct examination, I would ask
18
that you two not talk about the case during the brief
19
five-minute break, all right?
20
MR. SHAHAN:
You cannot talk about your
21
testimony with me, because you're in the middle of
22
direct.
23
24
THE DEFENDANT:
Will I be able to talk to him
after you're finished?
25
MR. SHAHAN:
You can talk to me after you're
671
1
finished.
2
3
THE DEFENDANT:
Yes, I mean before my testimony
is over.
4
MR. SHAHAN:
5
THE COURT:
Talk to who?
I'll tell you what.
I was thinking
6
about this while I was up here, and when the Defendant is
7
a witness, it may be a little bit different because he
8
has a Sixth Amendment right to counsel; so I'm not going
9
to allow you tou talk to him now in the middle of your
10
direct examination, because we're taking a five-minute
11
break here, but during the lunch break, I'll allow you to
12
talk to him about the case in between the
13
examination and the cross-examination, all right?
14
MR. SHAHAN:
15
THE COURT:
16
Yes, Your Honor.
All right.
So all we're doing now
is takinge a brief five-minute comfort break.
17
- - -
18
(Short recess.)
19
- - -
20
(Court reconvened, following a five-minute break.)
21
- - -
22
23
direct
THE COURT:
My Shahan, you may proceed.
BY MR. SHAHAN:
24
Q.
Sir, how is your hearing?
25
A.
My hearing ability?
672
1
Q.
Yes.
2
A.
My ears?
3
4
Probably about --
MS. VERGOS:
speculation.
5
THE COURT:
6
THE WITNESS:
7
Judge, I'm going to object to
years old.
Overruled.
About normal for someone that's 54
I have been to an otologist, and I'm right on
8
the borderline of needing a little assistance.
9
BY MR. SHAHAN:
10
11
12
Q.
Needing a little assistance in which ear, your
right or left?
A.
I'm right at the borderline for both ears.
They
13
say, no, you don't need any hearing aid.
14
little test in an isolated room, and they said -- but,
15
you know, it's normal for your age.
16
will -- eventually you'll probably need a hearing aid.
17
But as of now, it's adequate.
18
or --
19
Q.
They do a
It will happen; it
I don't have a hearing
What type of mechanical devices were on about
20
the time you heard these voices and these pounding things
21
in that home?
22
A.
There wouldn't be T.V., radio; the only one is
23
this fan, this pedestal fan about 20 inches around that
24
keeps the air-conditioning costs down, and background
25
noise.
673
1
Q.
Did you put that on before you went to bed?
2
A.
Sir?
3
Q.
Did you put that on before you went to bed?
4
A.
Every night.
5
6
7
8
MR. SHAHAN:
May I approach the witness, Your
Honor?
THE COURT:
BY MR. SHAHAN:
Yes.
9
10
11
12
Q.
Sir, State's Exhibit 14 in evidence shows a bed.
Does that show that fan in there?
A.
spinning.
Yes, it does.
I'm trying to see if it was still
I can't tell.
13
Q.
Was that the fan that was on that night?
14
A.
That's the fan, yes.
15
seven, eight years.
16
17
MR. SHAHAN:
May I publish this to the jury, and
let them look at it, Judge?
18
THE COURT:
Yes.
19
- - -
20
(Published to the jury.)
21
22
Been using those for
- - BY MR. SHAHAN:
23
Q.
Was the air-conditioning on or off?
24
A.
September 4th, it may have kicked on.
25
September is still hot.
It's like August.
No,
It would have
674
1
been set for about -- to kick on at 72, so it will
2
probably kicked on and off during the night.
3
Q.
You use any devices to clean the air in the
4
house?
5
A.
Air filter, change it once a month.
6
Q.
I'm not talking about an air filter in the
7
air-conditioner, but any of those little things they show
8
on T.V. that clean the air?
9
10
11
A.
that.
Q.
12
13
14
15
16
17
No, I wouldn't waste my money on anything like
Okay.
Thank you, sir.
Now, you heard forensics officer Tepedino
testify; correct?
A.
Yes, sir.
He was the last witness yesterday
with the goatee.
Q.
And you've heard him describe to the jury what
was in certain pictures;
correct?
18
A.
In certain pictures of the photographs.
19
Q.
Is that correct?
20
A.
Yes.
21
22
Yes, he had taken, I believe, 72
photographs.
Q.
Okay.
Now, did you describe -- did he describe
23
anything to the jury about the nature of the walls in the
24
front of this home?
25
A.
I want to say I don't remember if he mentioned
675
1
it verbally, but he did in his report, which was a public
2
record.
3
4
5
6
Q.
Now, how long have you and Donna lived in this
particular home?
A.
Since about December of 2001, after the World
Trade Center, that year.
7
Q.
And what type of home construction is it?
8
A.
It's a block construction, masonry block 8 inch
9
by eight inch, and about three quarters of an inch of
10
stucco on the outside, and then on the inside **fern
11
strips and -- these are older houses; it's better built,
12
drywall and plaster.
13
lot different than the houses built with 2 by 4's and
14
plywood on the outside.
They're very sound proof.
It's a
15
Q.
You're talking about a fern strip.
What's that?
16
A.
A fern strip?
17
Q.
Yes.
18
A.
It's a one by two -- one inch by two inch
19
international piece of wood; they come in eight foot
20
lengths.
21
you glue these fern strips usually every 16 or 24 inches
22
to the block, and then you have something that the
23
drywall will attach to, because the drywall screws one
24
hole in the block, and it also gives a little insulation
25
space.
If you want to put drywall on a masonry wall,
676
1
2
3
4
Q.
And the inside walls are -- did you just say
they're not drywall, they're plaster?
A.
That's what I was told by a professional
painter.
5
MS. VERGOS:
6
THE COURT:
7
8
9
Object to hearsay.
Sustained.
BY MR. SHAHAN:
Q.
Okay.
Did you for demonstrative purposes for
this jury, bring a section of that wall into this
10
courtroom, and is it here today?
11
12
A.
I brought in a representative sample.
I didn't
knock one out of the wall of the house.
13
Q.
How do you know it's a representative sample?
14
A.
Because I know how a concrete block house is
15
built.
16
three summers, worked my way through school working as,
17
what we call odd care, which is a laborer for masons
18
carrying these around all day in the sun.
19
about forty-five pounds each.
20
21
Q.
They're very solid, they're very quiet.
I spent
They weigh
Did you bring in here a concrete block with a
fern strip with a plaster wall?
22
A.
It doesn't have the plaster on it; that's the
23
only thing that is missing.
24
quarters of an inch thick.
25
Q.
Plaster is about three
What did you bring instead of plaster?
677
1
A.
I made -- for those people who don't know what a
2
cinder block house is, you know, I wanted them to see
3
what it is.
4
two fern strips and glued a standard sheet of drywall to
5
it.
6
I took a standard sized cinder block, cut
You can see in the pictures that Mr. Tepedino
7
presented, there's drywall, and there's a space, and then
8
the concrete.
9
Q.
And this fern thing takes the space up or what?
10
A.
It's a fern, which it separates, it's like a
11
one-inch separation between the block and the drywall.
12
13
Q.
Are you requesting that we be allowed to show
this to the jury?
14
A.
15
Yes, sir.
MR. SHAHAN:
Your Honor, we have that item over
16
here for demonstrative purposes.
17
show it.
18
THE COURT:
19
MR. SHAHAN:
20
and gets the cart?
21
THE COURT:
22
MR. SHAHAN:
23
That's fine.
Do you mind if this gentlemen goes
It's kind of heavy.
Forty-five pounds?
I've had two back surgeries, so to
me anything over five is violating.
24
25
I'd like permission to
THE COURT:
All right.
After, we'll have you
pick up a jeep at the end.
678
1
MR. SHAHAN:
With the Court's permission, I
2
guess we'd like to set it up over at the end of the jury
3
box.
4
5
THE COURT:
All right.
BY MR. SHAHAN:
6
Q.
Could you step down, sir?
7
A.
Yes.
8
Q.
And where did you get the cinder block?
9
A.
Home Depot.
10
Q.
Okay.
Where did you get the furring strips?
11
A.
Home Depot.
12
Q.
And where did you get the drywall?
13
A.
Home Depot.
14
Q.
Okay.
And did you -- well, you said you did
15
some construction in your younger years.
16
center block represent the same size that's in the home
17
that you --
18
19
MR. VERGOS:
THE WITNESS:
21
THE COURT:
22
MS. VERGOS:
Yes.
Overruled.
I would ask that he wait for the
Court's ruling.
24
25
Judge, I'm going to object,
speculation.
20
23
Does that
THE COURT:
Overruled.
We need to find out,
first of all, do you know the answer to that, sir?
679
1
THE WITNESS:
2
THE COURT:
3
4
5
6
7
Yes, Your Honor, I do.
All right, overruled.
BY MR. SHAHAN:
Q.
You can answer the question whether this is the
standard size cinder block or not.
A.
Yes, they make other sizes, but this is 95
percent of it.
It's 8 by 8 by 16 inches.
8
Q.
Is that what is in this house that you live in?
9
A.
Yes.
10
MS. VERGOS:
11
THE COURT:
Objection, lack of foundation.
Overruled.
12
13
14
15
BY MR. SHAHAN:
Q.
And this furring strip, how thick is that
furring strip?
A.
It's one by two.
They call it one by two; it's
16
an inch, few inches one way and one inch the other way.
17
The real measurement is a little different; inside it's a
18
little more.
19
20
Q.
How does that furring strip relate to the
furring strip in the home at issue?
21
A.
The photographs that Mr. Tepedino took --
22
Q.
Did he take measurements that are in the
23
24
25
photographs?
A.
If I could do one thing.
This is not how it is.
They are built like this, vertically.
This is inside of
680
1
the house, and what this is missing is outside is
2
plaster, a stucco effect outside, three quarters of an
3
inch thick.
4
Q.
That's the outside?
5
A.
That is the outside.
This would be the inside.
6
In the photographs that's all from Mr. Tepedino, he did
7
cut out sections, and I think in the photograph you can
8
see the gray concrete beneath it.
9
10
11
Q.
And when he cut out, when he had those
photographs, was there a space?
A.
Yes, a furring space.
I believe he mentioned
12
13
14
15
16
17
18
the word furring strip yesterday.
Q.
space that's at your home?
A.
About the same.
That's been the standard
building method.
Q.
Is that space wide enough to contain the
cylindrical bullets that you shot?
19
20
How does this space compare with the size of the
MS. VERGOS:
Judge, I'm going to object,
speculation.
21
MR. SHAHAN:
I'll rephrase the question.
22
Well, let's just go get one then.
23
the exhibit, Judge?
24
THE COURT:
25
MR. SHAHAN:
May I approach to get
Yes.
May I have the gun exhibit, please?
681
1
The ammunition is there.
2
From your index, can you tell?
3
BY MR. SHAHAN:
4
Q.
I just need the ammunition.
Sir, I'm going to show you what's in evidence as
5
State's Exhibit 3, and I guess they're both State's
6
Exhibit 3.
7
Exhibit 3?
There's no indication.
8
COURT CLERK:
9
MR. SHAHAN:
10
record.
11
BY MR. SHAHAN:
12
Q.
So they're both
No, separately.
Apologies.
It's on the bag.
I just want to make a
And State's Exhibit 2.
Sir, we got State's Exhibits 2 and 3.
Tell me
13
whether you agree that this is the ammunition that was in
14
that gun.
15
A.
That gun?
16
Q.
Yes.
17
A.
I can open it?
You may open it.
18
THE COURT:
19
THE WITNESS:
It's not a sealed --
You can open it.
Some kind of cotton.
Okay.
20
That's a shell casing on a .38 caliber bullet, federal
21
manufacturer.
22
BY MR. SHAHAN:
23
Q.
You have to speak up.
24
A.
I'm sorry, there's maybe five.
25
MS. VERGOS:
I would ask for a question to be
682
1
asked, Judge, before the witness just does a narrative of
2
whatever.
3
BY MR. SHAHAN:
4
Q.
5
Okay.
Can you describe --
THE COURT:
Well, I think it was a yes or no
6
question, do you recognize it, and the answer is, yes.
7
So we'll go on to the next question.
8
9
10
BY MR. SHAHAN:
A.
I can't recognize this as mine, but they all
look alike.
That's a 38. caliber.
11
Q.
It doesn't have a serial number on it then?
12
A.
No, it's one that's been fired.
The word I
13
think is spent.
14
15
Q.
Now, look at Exhibit 2 and tell me if you
recognize Exhibit 2, please.
16
A.
More than containers.
17
Q.
And what do you see there that you just pulled
18
out of your container, sir?
19
A.
The first one?
20
Q.
Yes, sir.
21
A.
This is a bent -- this is a .38 caliber bullet
22
hollow point. That's the hollow.
23
24
25
Q.
Is that similar to what was in your gun that
A.
Yes, that's -- yes.
day?
Do you want me to look at
683
1
the others?
2
Q.
Sure.
3
A.
Again, I can't say whether these were my
4
bullets.
5
Q.
They are similar to yours?
6
A.
Yes, same style, you know; there's no serial
7
number on them.
8
9
10
THE BAILIFF:
Keep them separate.
They got to
go back in the same package.
BY MR. SHAHAN:
11
Q.
What is that one you just opened?
12
A.
This is also a hollow point .38 caliber hollow.
13
Q.
Does it appear to be similar to what you shot
14
the two shots?
15
16
A.
one handgun.
17
18
This is the type of ammunition I use, and in my
Q.
Would you bring one of those hollow points over
here toward the cinder block, please?
19
A.
Okay.
This one?
20
Q.
Okay.
And could you place it, still hold on to
21
it; don't lose it or anything, but in between the cinder
22
block and the furring?
23
A.
No, I can't, because this part, the casing stays
24
in the revolver, it's not like a Glock, a semi-automatic
25
that eject cartridges, the revolver at that part stays
684
1
2
3
in.
Q.
OKay, that stays in.
The part in the your left
hand, would that be the part that is sent out?
4
A.
Just this little part.
5
Q.
The little black part?
6
7
I don't know anything
about guns, I'm just trying to ask you.
A.
Here's a casing, revolver where the casing stays
8
in; it doesn't go flying out.
9
strikes the back of it, it repels the bullet tip, what
10
11
12
13
And when the hammer
you're aiming at, or shooting at.
Q.
Do any of those still have the bullet tip on
them?
A.
Four of them do.
14
15
Q.
Can you just get one of them and bring it over
here toward the cinder block, please?
16
A.
That's this one.
17
Q.
And would it fit within, physically just
18
without?
19
A.
Just this matter of it, yes.
20
Q.
Okay.
21
A.
When -- if I can say this, when the hollow point
22
hits a hard subject, it deforms.
23
MS. VERGOS:
24
THE COURT:
25
THE WITNESS:
Judge, objection, non-responsive.
Overruled.
It flattens and widens.
It's
685
1
obvious that even if it didn't flatten and widen, you
2
know, the space there.
3
4
5
6
MR. SHAHAN:
demonstration.
Okay, thank you.
Appreciate the
Thank you.
THE COURT:
All right, why don't everyone retake
their position.
7
Hatch, why don't you put everything back right.
8
THE BAILIFF:
9
THE COURT:
Yes, Judge.
Again, when you go back and
10
deliberate, you'll have all the evidence with you, and
11
then you can do a closer inspection at that time, if
12
you'd like.
13
UNIDENTIFIED JUROR:
14
THE COURT:
Okay.
Mr. Shahan, you may proceed.
15
MR. SHAHAN:
16
please have the gun?
17
BY MR. SHAHAN:
18
Q.
Thank you, Your Honor.
May I
Sir, I'm going to show you next what's been
19
placed into evidence as Exhibit No. 1, State's Exhibit
20
No. 1.
21
A.
Yes, sir, I do.
22
Q.
And what is it?
23
A.
It's a Smith and Wesson, Model 65 stainless
Do you recognize this item, sir?
24
steel .357 revolver with a chamber open, and accessory
25
hand grips for people with bigger hands.
I don't have --
686
1
it looks exactly like mine, but I'd have to have the
2
serial number to know for sure.
3
Q.
4
yours?
5
A.
6
works.
7
Q.
8
9
10
11
12
13
14
So -- do you have any reason to believe it's not
No, I do not.
Okay.
I believe that evidence chain
Now, could you please take it out of the
box, please?
A.
Could I have one thing?
MS. VERGOS:
I dislocated my --
Judge, I object.
There's no
question on the table.
THE COURT:
Well, I think he has a request about
something, so I'll hear it.
THE WITNESS:
I'm going to do it.
It will be a
15
little different how I normally would.
Since then I
16
dislocated my thumb; I'm sure you've noticed.
17
BY MR. SHAHAN:
18
Q.
Okay.
19
A.
You'll just have to imagine without a dislocated
20
thumb.
21
Q.
Okay.
22
A.
May I stand up?
23
Q.
Yes.
So please take it out of the box.
Now, of course, the safety matter that the
24
bailiff put on for us, wasn't there on that night, was
25
it?
687
1
A.
Oh, no, sir.
2
Q.
And you understood how your fiancee saw you do
3
something that made her concerned.
4
from her testimony, what you believe you were doing at
5
that time?
6
7
MS. VERGOS:
10
11
12
13
14
15
Judge, I'm going to object,
speculation.
8
9
Can you demonstrate
MR. SHAHAN:
I'll rephrase the question.
BY MR. SHAHAN:
Q.
Did you at some time that night chuck the gun in
any way?
A.
Yes, I did, before I went to sleep.
It was the
hurricane and looters, and self-protection.
Q.
Did at some point and time later, did you have
the gun out?
16
A.
Right before I went to sleep, I hoped the safe
17
and took it out, and I hadn't had it out in a wild --
18
while, so I performed basic safety check, maintenance
19
check --
20
Q.
Okay.
21
A.
-- on a firearm that hasn't been used for a
22
while.
23
Q.
24
25
Okay.
And at some point in time, did you ever
put the firearm in close vicinity to your head?
A.
Yeah, I may have.
688
1
Q.
And for what purpose?
2
A.
It's for seeing if the barrel is clear, you
3
know, if the gun is -- can I continue a little?
4
Q.
Yes.
5
A.
The gun has not been used in a long time, if you
6
don't check, there's a possibility of spiders or bugs, or
7
something crawling in there.
8
check.
9
weapon.
10
11
Q.
So it's just normal to
It's part of the safety check when you have a
And did you learn anything through Officer Geld
(ph.) at the concealed weapons permit class?
12
A.
Per Geld, yes.
13
Q.
And does that have anything to do with why you
14
15
might put it close to your head at some point?
A.
Well, can I -- there's a few steps before that.
16
If I could demonstrate it with the full --
17
Q.
Yes, please demonstrate.
18
A.
Okay.
Pretending this is closed, it can't be
19
closed because of this wire through it, but pretend it's
20
not here, okay?
21
just -- you can see the back of about four of the
22
bullets, okay?
23
switch here that opens the chamber, and you spin it to
24
make sure it's not binding.
25
precision mechanical piece; then you would check and make
It's closed.
When it's closed, you can
But first thing you do is there's a
It's a mechanical piece,
689
1
sure you have, you know, it's loaded by checking the back
2
and see the six cartridges.
3
And then you check the front too to see if it
4
it's -- you know, you fire the gun.
5
shooting last time, and you fired three rounds, but you
6
know you saw those bullets, okay; you can't tell from the
7
back of them whether the bullet part is in there until
8
you turn it like this.
9
You went target
And then as far as inspecting the barrel for
10
cleanliness, you can either use a dental mirror if you
11
have one, or what I was talking about, a dental mirror
12
works fine.
13
will give you enough reflection to see if the barrel is
14
clear.
15
Q.
Where were you taught that?
16
A.
At Pasco County Firearms Training course.
You just put your thumb in there, and that
Not
17
that.
There's a Pasco County Concealed Weapons course by
18
Deputy Kurt Gelb.
19
Q.
Okay.
20
A.
And then the last thing would be, you know, you
21
would put the chamber back, if this wasn't here, and I
22
would put it on the nightstand.
23
safety or anything.
24
off, and it revolves, and then the next round is lined
25
up.
A revolver, there's no
You pull the trigger, and it goes
690
1
Q.
And --
2
A.
I mean, that's --
3
Q.
Did you do something similar to what you just
4
5
demonstrated that evening?
A.
Yes, I did.
6
MR. SHAHAN:
7
THE COURT:
No further questions.
All right.
Members of the jury,
8
we're going to take lunch.
Believe it or not it's about
9
1:08, and I will ask you to be back in the jury pool room
10
which is downstairs at 1:45.
11
time?
12
if you want it.
Do you want more time?
Do you think that's enough
I'll give you more time,
13
- - -
14
(Jury talking.)
15
- - -
16
THE COURT:
So I'll give you then until 1:50,
17
because it sounds like you would not want to be rushed.
18
So be back in the jury pool room at 1:50, all right?
19
Thank you.
20
- - -
21
(Jury excused for lunch recess.)
22
- - -
23
THE BAILIFF:
24
THE COURT:
25
The jury is out of the hearing.
All right, Mr. Shahan, do you want
any additional witnesses?
691
1
MR. SHAHAN:
2
THE COURT:
3
Yes, McVey.
All right, so State have you called
him yet?
4
MS. VERGOS:
5
THE COURT:
No.
All right.
Why don't we try to
6
give him a call, and point out what time he can be here,
7
because then if he can't be here for a while, then we
8
might as well let the jury know they can go eat and take
9
their time, have a leisurely lunch.
So we will start at
10
1:50, because I forgot about the cross-examination of the
11
Defendant, and then by the time that's done, I'm sure
12
that Deputy McVey will be here.
13
- - -
14
(Lunch recess.)
15
16
17
707
1 read several other newspaper articles, or watched T.V.
2 broadcasts regarding what was going on; correct?
3
A. Correct.
4
Q. And one of the things that you indicated was
5 that, apparently, you heard Sheriff Bob White indicate to
6 you that you needed to stay in your residence; correct?
7 Honker down I believe was the word that you used.
8
A. I didn't hear him personally talk to anybody.
9
Q. On the news?
10
A. Yes.
11
Q. You did hear that broadcast; correct? That is
12 what you told this jury?
13
A. We had the T.V. on all day, yes.
14
Q. And you heard that broadcast; correct?
15
A. Yes.
16
Q. And in that broadcast, he indicated that you
17 should honker down. That's what you testified to;
18 correct?
19
A. That's part of what he -- the quote.
20
Q. And stay indoors until Monday, I believe you
21 said; correct?
22
A. Correct.
23
Q. And that was on Saturday that you heard this
24 broadcast?
25
A. Yes.
708
1
Q. Saturday or Friday, do you recall?
2
A. It was Saturday. It was the day Francis came
3 into town.
4
Q. And I assume this was early in the morning as
5 part of your routine?
6
A. No, I don't think he made that announcement
7 until, you know, 3:00 or 4:00 in the afternoon.
8
Q. But you certainly did read the newspaper earlier
9 in that morning as part of your routine has you
10 testified; correct?
11
A. Yes.
12
Q. And as part -- and did the Internet thing that
13 you were telling us about, as part of your routine, first
14 thing in the morning with your cup of coffee; right?
15
A. Yes.
16
Q. And, in fact, your attorney even put into
17 evidence something that you indicate you read through;
18 correct?
19
A. It's a representation of the St. Petersburg
20 Times that day. It's not the actual newspaper, but it's
21 a fair and accurate depiction.
22
Q. Well, thanks. But my question was whether your
23 attorney put into evidence something that you read
24 through on September 4th?
25
A. I read the newspaper, yes.
709
1
Q. Yes. And I'm talking about what's been
2 introduced as Defense Exhibit 7 for the record. And in
3 that Defense Exhibit 7, as part of your daily routine in
4 the morning, you read this article that indicates "take
5 refuge until Monday" officials urge; correct?
6
A. Yes, I would have read it.
7
Q. Saturday morning, first thing with your cup of
8 coffee; right? That's what you told us; correct?
9
A. Well, yes, I might not have -- sometime during
10 that day, early in the morning.
11
Q. Saturday morning your first meal -- you wake up
12 at 5:00, right, that's your daily routine?
13
A. Yes.
14
Q. And at 5:00, you make your cup of coffee; right?
15
A. Yes.
16
Q. And you start with your newspapers; correct?
17
A. I read the electronic version of them on the
18 Internet screen.
19
Q. Yes?
20
A. Yes.
21
Q. And as part of that day on September 4th, you
22 read this, which is what you told the jury a little while
23 ago; right?
24
A. I would have read everything.
25
Q. And you included the part, "take refuge until
710
1 Monday," officials urge; right?
2
A. Yes.
3
Q. And, of course, you would heed the warning to
4 that because you were very concerned about this storm;
5 correct?
6
A. No, that's not correct.
7
Q. No. So although you're very concerned about
8 this storm, you disregard this take refuge until Monday;
9 correct?
10
A. That's correct.
11
Q. And you in fact go out into the ocean; correct?
12
A. No, not correct.
13
Q. Well, you went into a port?
14
A. Not correct.
15
Q. Where did you go fishing?
16
A. On the --
17
Q. Intercoastal?
18
A. No, the river in Tarpon Springs.
19
Q. Okay. The waterways? Would you agree that it's
20 water, you went into the water?
21
A. The Anclote River.
22
Q. Okay.
23
A. Right by -- in the Greek neighborhood. And
24 there's a spot there that's open to the public like where
25 you can fish the river.
711
1
Q. And this is after you saw, especially this
2 picture, of all this flooding; right?
3
A. Yes.
4
Q. Okay. And so you go fishing, and you hang out
5 for about an hour fishing; right?
6
A. Approximately.
7
Q. And then you go home; right?
8
A. Yes.
9
Q. And you actually have people over, right?
10
A. Yes.
11
Q. And you start drinking; correct?
12
A. Drinking what?
13
Q. Beer.
14
A. We had -- we're all over 50; yeah, we had a few
15 beers.
16
Q. So the answer is yes, you started drinking?
17
A. Drinking beer.
18
Q. Beer?
19
A. Okay.
20
Q. And you had several beers in the course of that
21 day; correct?
22
A. Yes.
23
Q. And I believe that Donna yesterday, and Dennis
24 both indicated that you, basically, were drinking from
25 the time you got back until the time you went to sleep;
712
1 correct?
2
A. No.
3
Q. No. Well, you did in fact leave the house at
4 one point and go to a bar; correct?
5
A. Yes.
6
Q. And that was again after this "take refuge until
7 Monday morning" that you read earlier that morning;
8 correct?
9
A. Yes.
10
Q. And at that bar you continued to drink; correct?
11
A. I had one Ginnis (sic).
12
Q. You had one Ginnis?
13
A. Yes.
14
Q. So Dennis was wrong yesterday when he said you
15 had two drinks?
16
MR. SHAHAN: Objection, improper
17 cross-examination.
18
THE COURT: Sustained.
19 BY MS. VERGOS:
20
Q. After the Ginnis, or the drink, or whatever it
21 was you had at this bar, you went next door and got a
22 bottle of liquor, Jose Corbo, I believe?
23
A. Yes.
24
Q. And then you went back to the house; correct?
25
A. Correct.
713
1
Q. Now, this is all while Donna is sleeping; right?
2
A. That's correct.
3
Q. And you have more there to drink, alcoholic
4 beverages; I'm not talking about water or soda.
5
A. We're all adults.
6
Q. Is that a yes?
7
A. We had a beer or two.
8
Q. So that's a yes, you had more to drink at home?
9
A. Yes.
10
Q. Yes. And at some point Donna wakes up; correct?
11
A. Yes, at some point that night.
12
Q. Around 11:30, I believe you indicated?
13
A. She's not like Sleeping Beauty. Yes, she awoke
14 that night. I'm sorry, your question was kind of open
15 about did she ever wake up began.
16
Q. I'll see if I can tighten it up for you. Okay?
17
A. Please, please.
18
Q. Now, at some point during this day Donna flashes
19 you; right?
20
A. Yes.
21
Q. And she's not wearing a bra at that time;
22 correct?
23
A. Correct.
24
Q. And as you indicate to this jury, you got to see
25 her beautiful boobs; correct?
714
1
A. Correct.
2
Q. But so did Gary, her brother-in-law; right?
3
A. Correct.
4
Q. Somebody that you certainly would agree with me
5 with me has no business looking at Donna's beautiful
6 boobs?
7
A. Oh, no, no one else should look at them except
8 me.
9
Q. And I'm certain that that upset you a little
10 bit; correct?
11
A. It upset me a little bit, yes.
12
Q. And I'm certain that you voiced that concern to
13 her?
14
A. Yes.
15
Q. And I am also quite certain that it wasn't a
16 honey, I don't think anybody should see your boobs except
17 for me kind of conversation; am I correct?
18
A. You're correct, that's not the conversation I
19 had.
20
Q. Now, Dennis is there during that time; right?
21
A. That I'm not sure of. Either just -- I'm not
22 sure if Dennis was there.
23
Q. But at sometime during that day Dennis was
24 there; right?
25
A. Referring to Dennis her brother?
715
1
Q. Only Dennis we've heard about, yes.
2
A. Yes.
3
Q. And at some point around 11:30 or quarter to
4 12:00, you tell Dennis to go, yes
5
A. At night, yes.
6
Q. And he does leave; correct?
7
A. Correct.
8
Q. Now, you indicated Donna was going to go spend
9 the night at her sister's house that night; right?
10
A. She told me she was.
11
Q. Okay. And at the time that Dennis left, and at
12 the time of this argument, just as she said, she was
13 wearing a white T-shirt and a pair of boxer shorts; yes?
14
A. Yes.
15
Q. No shoes, yes?
16
A. Yes.
17
Q. And she was just kind of hanging out around the
18 house, yes?
19
A. She had woken up -- no.
20
Q. She woke up, and she was hanging out?
21
A. I believe she had taken a shower getting ready
22 to go to her sister's.
23
Q. Yes, I believe you indicated something about
24 makeup. She was putting on her makeup; right?
25
A. Preparing to leave the house.
716
1
Q. So you don't know if she was putting on her
2 makeup?
3
A. I don't remember if I saw her that night, but as
4 a habit.
5
Q. Well, you told this jury before that she
6 actually took a shower, got out of the shower, and she
7 was starting to put on her makeup, and that she was
8 getting ready to go to her sister's, and you in fact
9 actually indicated she put on her make-up, is that not
10 correct, did you not see that?
11
A. That's her routine. On that particular night I
12 did not see.
13
Q. You don't recall your attorney asking about your
14 routine? I believe he asked what you were doing, and you
15 told this jury a little while ago that she put on her
16 makeup. Did you not see that?
17
A. I wasn't in the bathroom with her, no.
18
Q. So you did not see that?
19
A. I don't have x-ray visitation.
20
Q. Well, sir, I assume that you know what Donna
21 looks like without her makeup?
22
A. Yes.
23
Q. And I assume you know what Donna looks like with
24 her makeup?
25
A. Yes.
717
1
Q. And I assume that you saw her at some point
2 after she got out of the shower, yes?
3
A. Yes.
4
Q. And, in fact, you indicated that's when the
5 argument occurred; yes?
6
A. No.
7
Q. That's what you told us before.
8
A. We had no argument, we had a discussion.
9
Q. Oh, that's when your discussion about her
10 beautiful boobs occurred?
11
A. We did not discuss the quality of her boobs.
12
Q. Is that when you discussed the incident with --
13
A. -- with Donna.
14
Q. After she got out of the shower?
15
A. Yes.
16
Q. You told her she had her makeup on, and she was
17 getting ready to go, yes?
18
A. She probably -- hit her I can up on?
19
Q. So you're assuming?
20
A. I was assuming because that's her routine.
21
Q. But she was still in that white T-shirt and
22 boxers, yes?
23
A. Yes.
24
Q. Just as she told us?
25
A. Yes.
718
1
Q. No shoes, yes?
2
A. No shoes.
3
Q. And you said that you were going to, and I
4 assume that Donna didn't, wasn't inaccurate when she told
5 us all of her clothes are in the bedroom, yes?
8
6
A. No.
7
Q. No, she was wrong?
8
A. Almost all her clothes near that bedroom, some
A. Almost all her clothes near that bedroom, some
9 of her other clothes near another closet in the house
10 outside that bedroom.
11
Q. And her shoes near the bedroom, her personal
12 belongings for the bedroom?
13
A. Yes.
14
Q. Yes, you would agree with me?
15
A. Yes. Again with the exception of snow boots
16 being in another room.
17
Q. Well, September in Florida, I assume no one is
18 going to put on snow boots; is that a safe assumption?
19
A. Not a -- it's a safe assumption for a normal
20 person.
21
Q. Great! I assume Donna is a normal person?
22
A. No, she's a wonderful woman.
23
Q. Wonderful. Her purse is on the counter just
24 like always?
25
A. I don't know where her purse was.
719
1
Q. All right. So you go into your bedroom; yes?
2
A. I go into the bedroom? At what time frame are
3 we talking about?
4
Q. I believe you indicated about 11:30, 12 o'clock?
5
A. Going into the bedroom to go to sleep; is that
6 your question?
7
Q. You went into the bedroom to go to sleep around
8 12 o'clock, yes?
9
A. Yes, approximately, 12 midnight.
10
Q. And at that point, you indicated that you were
11 going to lay down; correct?
12
A. No.
13
Q. You weren't going to go lay down? Well, you
14 were going to read or watch T.V., we know that for sure,
15 because when you go into the bedroom, you go there to
16 sleep; correct?
17
A. Sleep is different than laying down.
18
Q. Can I assume that you don't sleep standing up?
19
A. I wish I could. You can assume that.
20
Q. So is that a yes that I can assume that you
21 don't sleep standing up?
22
A. I cannot do that.
23
Q. Okay. So I assume just like any other person
24 you actually have to lay down to go to bed? Is this a
25 complicated question for you? Do you lay down to go the
720
1 sleep at night?
2
MR. SHAHAN: Objection, argumentative.
3
THE COURT: Overruled.
4 BY MS. VERGOS:
5
Q. Do you lay down in a horizontal position to go
6 to sleep at night?
7
A. Yes.
8
Q. Now, you didn't say good night to Donna that
9 night, just as she told us yesterday; yes?
10
A. I don't remember if I specifically said
11 good-bye. I knew she was going to her sister's.
12
Q. Okay. And the last time that you saw her, she
13 was in that white T-shirt and those boxers?
14
A. She had not finished dressing, correct.
15
Q. With no shoes?
16
A. Yes.
17
Q. Now, that's it. You don't see Donna again the
18 rest of that night; right?
19
A. Not after I retired to the bedroom to lie down
20 and sleep.
21
Q. So you don't see her again the rest of that
22 night?
23
A. No. No, after I was asleep, I did not see her.
24 Would you repeat the question I want to make sure?
25
Q. After you went to your bedroom to lie down and
721
1 go to sleep to go to bed, did you see Donna again the
2 rest of that night?
3
A. No, I did not.
4
Q. And the next thing you know is you're waken up
5 because there's something outside; right?
6
A. No, that's incorrect.
7
Q. Isn't that what you told us before? You fell
8 asleep?
9
A. I said that -- I believe I said that I heard
10 noises that I believed to be inside the house, not
11 outside the house.
12
Q. All right, inside the house. So they sounded
13 pretty close?
14
A. Inside the house is too close, yes.
15
Q. Inside the house is kind of close, yeah, isn't
16 it? Yes?
17
A. For strangers to be in my house?
18
Q. Sure, for strangers to be in your house.
19
A. That's too close for comfort.
20
Q. Certainly a lot clearer than they would be
21 outside the house, yes?
22
A. Clearer.
23
Q. The voices, they would be a lot clearer than
24 they would be on the outside of the house common sense.
25 Something that's inside and very close is clearer than
722
1 something outside and further away, would you agree with
2 that?
3
A. It would depend on the person, tone of voice. I
4 heard, as I was waking up, I heard voices I could not
5 identify.
6
Q. Yes, we got it. Yes. Now, you indicated to
7 this jury that you woke up because you heard voices;
8 right? Unidentifiable voices?
9
A. Yes.
10
Q. You previously wrote a sworn statement, yes?
11
A. Yes, I have.
12
Q. And in that sworn statement, you indicated I was
13 awoken from a deep -14
MR. SHAHAN: Objection, may I approach?
15
THE COURT: Yes. All right.
16
17
18
19
--(Sidebar discussion out of the hearing of the jury.)
--MR. SHAHAN: We did -- I'm not sure what the
20 Court's concern is, but my concern is that there are two
21 sworn statements. The original Motion to Dismiss, C-4,
22 and then a second, and she didn't really identify to him
23 which sworn statement she was talking about.
24
THE COURT: All right. Well, it appears as if
25 the Amended Motion to Dismiss charge of aggravated
723
1 assault on law enforcement officer pursuant to Florida
2 Rule of Criminal Procedure, 3.90C-4 and, specifically,
3 she's asking about paragraph 5. Okay?
4
MR. SHAHAN: Very good. Thank you.
5
---
6
(End of sidebar discussion.)
7
---
8 BY MS. VERGOS:
9
Q. Is that sworn statement, that sworn statement,
10 "I was awoken from a deep sleep about 1:00 in the morning
11 on Sunday, September 5th, 2004. I heard a vicious
12 pounding on the front door of our home."
13
A. I don't know what sworn statement you're talking
14 about.
15
Q. The second one. You have a copy in front of
16 you?
17
A. Would you identify what sworn statement?
18
Q. The second one you filed.
19
A. That was not filed -- identical to the one that
20 was filed. Okay. So we're talking about the amended
21 motion.
22
Q. Let me go ahead and read it for you, okay? "I
23 was awoken from a deep sleep about 1:00 in the morning on
24 Sunday, September 5th, 2004. I heard a vicious pounding
25 on the front door of our home as if someone was trying to
724
1 kick in the door. I went to the living room armed with
2 my revolver. I could hear no words from the outside of
3 the door, just violent pounding or kicking in the door,
4 shaking the door off its hinges."
5
Did I read that correctly?
6
A. Yes.
7
Q. And that was part of your sworn statement, yes?
8
A. Yes.
9
Q. And you don't see anything in there about waking
10 up hearing voices, unidentifiable voice outside; correct?
11
A. Not from what you read.
12
Q. Okay.
13
A. Right now.
14
Q. Well, a couple of lines down on No. 7, you say
15 "hearing no verbal response," correct?
16
MR. SHAHAN: Objection, it doesn't fully state
17 No. 7. Improper question.
18
THE COURT: Do you want to approach, because I
19 don't know if I have a copy of that,
20
MS. VERGOS: I'll move on, Judge. It's not
21 necessary that we approach.
22
THE COURT: All right, so you'll move on?
23
MS. VERGOS: Yes.
24
THE COURT: All right.
25 BY MS. VERGOS:
725
1
Q. So you woke up because of the kicking, the
2 banging, or the voices, which one?
3
A. The voices.
4
Q. The voices. And when you woke up from these
5 voices, they were voices that were really close to where
6 you were as you already told us, right? Too close for
7 comfort?
8
A. Close enough to hear.
9
Q. Yes?
10
A. Yes.
11
Q. Now, you said that earlier you were concerned
12 because of this hurricane about looters and burglars, and
13 things of that nature; yes?
14
A. Yes.
15
Q. Now, that's because you read some reports or
16 something of that nature; correct?
17
A. That's a prudent precaution, I have read.
18
Q. Is that a yes?
19
A. Yes.
20
Q. Okay. And when you did so, it indicated that
21 that is common, especially in a evacuated area; correct?
22
A. Yes.
23
Q. You were not in an evacuated area; correct?
24
A. My house is not an evacuation zone.
25
Q. Yes?
726
1
A. It's two blocks away from the evacuation zone.
2
Q. So, yes, you were not in an evacuation area?
3
A. That is correct.
4
Q. And you were in fact home?
5
A. I was at --
6
Q. Yes?
7
A. I was at home, yes.
8
Q. Some of the lights in the house were on, yes?
9
A. I can't see in the dark, yes.
10
Q. And your car was in the front yard?
11
A. If you call a van a car.
12
Q. Your automobile, your mode of transportation,
13 the vehicle that you use to drive to and from, wherever
14 it is you are going, was in the front yard; correct?
15
A. It would have been either in the front yard or
16 the drive-around; I don't remember which one.
17
Q. And I believe that you indicated that in fact
18 you had a fan on that night, yes?
19
A. Yes.
20
Q. Because it was hot?
21
A. Because it's a soothing breeze. Well, it was
22 hot, too, and for the noise, background noise.
23
Q. And your air-conditioner was going on when it
24 was 72 degrees you said?
25
A. I think it cycled off and on.
727
1
Q. At 72?
2
A. It's set at one number for the summer.
3
Q. That number would be 72, I assume, as you
4 testified?
5
A. Usually 72.
6
Q. Okay. And in fact on September 4th of 2004, the
7 high was 64 degrees; correct?
8
A. I have no idea.
9
Q. Well, showing you what's been introduced as
10 Defense 7. And in this nice article for Defense 7, it
11 indicates weather, 64 degrees and sunny, correct? Did I
12 leave out something?
13
A. That's part of what's there.
14
Q. And the rest says 64 percent humidity makes it
15 feel like 67 degrees; correct? Did I read that
16 correctly?
17
A. Yes. It does not say what time.
18
Q. So I read that wrong?
19
MR. SHAHAN: Objection.
20
THE WITNESS: I read the newspaper every day.
21
MS. VERGOS: I'm just asking for an answer,
22 Judge. Did I read that correctly?
23
THE WITNESS: You read what was on there.
24 BY MS. VERGOS:
25
Q. Correctly?
728
1
A. It was correct at the time they published it.
2
Q. Now, you said it was a normal Saturday; you had
3 the day off, and you weren't working; right?
4
A. No.
5
Q. Now, in fact, you weren't working at all during
6 2004 at that time; correct?
7
A. No.
8
Q. You weren't an economist; correct?
9
A. That's incorrect.
10
Q. You weren't practicing as an economist; correct?
11
A. I was not practicing as an economist.
12
Q. And you weren't practicing as a lawyer, or
13 anything like that; correct?
14
A. That's correct.
15
Q. And so it was a normal day, Saturday otherwise;
16 you were home most of the time, correct?
17
A. Two-part question. Can you break it down,
18 please?
19
Q. Certainly. Your Saturdays were mostly like
20 every other day?
21
A. Are you talking about this particular Saturday,
22 September 4th?
23
Q. As opposed to any Saturday in the year of 2004.
24
A. It was not a normal Saturday, because there was
25 a hurricane scheduled to come.
729
1
Q. Well you told this jury before that it was a
2 normal Saturdau.
3
A. Except for the hurricane, the threat of the
4 hurricane.
5
Q. Now, this hurricane, I assume that -- you said
6 you were watching the news religiously that day?
7
A. Incorrect.
8
Q. Well, you certainly had it on often; correct?
9
A . It was on all day, not religiously.
10
Q. And you were watching it, you were concerned
11 about the path of this hurricane?
12
A. More listening to it. They said something
13 interesting, I would go and listen to.
14
Q. Quite interesting that hurricane is hitting on
15 the east coast of Florida; yes?
16
A. Yes.
17
Q. In fact, Hurricane Francis did not hit directly
18 on the West Coast of Florida where we are; correct?
19
A. Yes, it did. No, that's incorrect.
20
Q. It traveled through, correct, the State of
21 Florida, did it not?
22
A. Yes, like a tourist.
23
Q. Started on the east coast by Palm Beach,
24 Jupiter, down there?
25
A. If you're saying where it came ashore, it came
730
1 ashore on the Atlantic ocean side of Florida.
2
Q. And that happened at about what, one o'clock in
3 the morning?
4
A. I'd have to look at notes though -- I don't have
5 the weather map for that day with me.
6
Q. Well, it's such a traumatic day for you, I would
7 assume you would recall?
8
MR. SHAHAN: Objection.
9
THE COURT: Sustained.
10 BY MS. VERGOS:
11
Q. And in fact by the time that the hurricane
12 touched land anywhere in the State of Florida it was a
13 category two hurricane; correct?
14
A. I don't have -- I'd have to look it up.
15
Q. You don't recall? Will you take my word for it?
16
MR. SHAHAN: Objection. She's supposed to be
17 asking questions.
18
THE WITNESS: If you --
19
MR. SHAHAN: Objection, she's supposed to be
20 asking questions not testifying.
21
THE COURT: Sustained.
22 BY MS. VERGOS:
23
Q. I'm going to show you what's been marked for
24 identification as State's Exhibit T. Do you recognize
25 that?
731
1
A. I have never seen this before.
2
Q. Well, you saw the path of Hurricane Francis
3 quite often during those days, did you not?
4
A. On different T.V. stations, but I never saw it
5 on this.
6
Q. Okay. And I assume that you recall the path of
7 Hurricane Francis during that time?
8
A. It came ashore on the Atlantic side, traveled
9 across the state to Orlando, and then traveled directly
10 through Holiday, Port Richey, and exiting the Gulf of
11 Mexico, and then going up to Georgia, and then up in
12 Pennsylvania.
13
Q. I see that you're relying on that forecasters
14 path, so I assume that you believe that's that's an
15 accurate representation of the path?
16
A. Well, I see -- I see you got off the Internet
17 from NOA, which is a government agency; so I assume it
18 would be correct, but I'm not a meteorologist. I assume
19 it's correct if that's the source.
20
Q. And would you agree with me that it made land
21 fall in Palm Beach, yes?
22
A. I do not know exactly where it made land fall.
23
Q. That side of Florida down closer to that area,
24 is that safe?
25
A. I remember reading it made land fall on the
732
1 Atlantic side instead of the Gulf coast side of Florida.
2
Q. Okay. And by the time that it traveled all the
3 way across to -- and you said that you did watch the news
4 broadcast, so I assume that you were watching as it was
5 telling us what time it would come over to this side?
6
A. I was more listening to it.
7
Q. Okay. Well, listening to it as they were
8 telling us approximately what time it would come over to
9 this side?
10
A. Yes.
11
Q. And do you know that it was scheduled to come
12 over to this side like about what, six 7:00 the next
13 morning, yes?
14
A. No, I heard it was scheduled to come in late
15 evening or early morning, late evening on September 4th,
16 or early morning of September 5th was the prediction I
17 remember hearing.
18
Q. On this side of Florida, is that what you're
19 telling us?
20
A. Here, specifically? I mean it passed right over
21 us; us being West Pasco County.
22
Q. And so as a combination of all these things,
23 that's why you took your gun out that night; right?
24
A. That's not quite correct.
25
Q. As a combination of the storm and what you
733
1 thought may occur; is that not correct? Is that not what
2 you told us?
3
A. It's almost correct. It's not the first time I
4 have ever taken the gun out of safe and put it -5
Q. I didn't indicate whether it was the first time
6 you took your gun out, I just asked you was that the
7 reason you took it out on this night?
11
8
A. Yes.
9
Q. And on this night, you said that you checked it;
10 correct?
A. Yes, as I had demonstrated.
12
Q. Opened the cylinder, yes?
13
A. Yes.
14
Q. And made sure there was bullets in it, yes?
15
A. Yes.
16
Q. And the bullets that you put in it, they were a
17 mix of hollow points and ball points; correct?
18
A. Five to one, yes.
19
Q. Okay. Now, you indicated that you know quite a
20 bit about firearms; correct?
21
A. Incorrect.
22
Q. Well, you've been shooting them since you were
23 ten; right?
24
A. I don't claim to be a expert in firearms.
25
Q. Have you been shooting them since you were ten?
734
1
A. That was the first time I shot.
2
Q. And the last was September 4th of '05,
3 hopefully?
4
A. That's incorrect. It was September 5th.
5
MR. SHAHAN: Objection, move to approach.
6
THE COURT: I'll sustain the objection.
7
MR. SHAHAN: Okay.
8 BY MS. VERGOS:
9
Q. So you take your gun out of your safe. How long
10 have you had the .357?
11
A. I think I bought it in '87.
12
Q. So now you've had had it for seven years?
13
A. '87.
14
Q. In '87. So you've had that gun for 17 years?
15
A. A while. I could have had it a little earlier,
16 let's say between '84 and '87. I know in 1987.
17
Q. So 17 to 20 years?
18
A. Yes.
19
Q. Okay. And in 17 to 20 years, you've pulled it
20 out on a number of occasions correct?
21
A. Pulled it out.
22
Q. Handled it?
23
A. Yes.
24
Q. Checked it?
25
A. Yes.
735
1
Q. Loaded it?
2
A. Yes.
3
Q. Fired it?
4
A. Yes.
5
Q. Used it in some manner?
6
A. Yes.
7
Q. And you've been with Donna as of 2004 for what,
8 eight and a half years, eight years?
9
A. Approximately.
10
Q. And I assume Donna has seen it on a number of
11 occasions?
12
A. Yes.
13
Q. And she has slept what, 10 feet away from it?
14
A. If that.
15
Q. Okay. She certainly has seen you handle it
16 before?
17
A. Repeat the question, please?
18
Q. She certainly has seen you handle it before?
19
A. Yes.
20
Q. Certainly has seen you check it, and load it,
21 and do whatever it is that you do with it?
22
A. No.
23
Q. No? In eight and a half years, Donna has never
24 seen you check your firearm? That's what you're telling
25 us?
736
1
A. That is correct.
2
Q. And as Donna indicated, she too is somewhat
3 familiar with guns; correct?
4
A. I have heard her say that she has shot guns in
5 hunting in the past.
6
Q. So would you agree with me yes, she has handled
7 firearms in the past?
8
A. I do not know. I know she has told me that.
9
Q. Okay. Well, would she lie to you?
10
A. Not about that, no.
11
Q. Okay. And she has fired a gun in the past?
12
A. That's what she has told me.
13
Q. She has loaded a gun in the past?
14
A. No, she never told me that.
15
Q. You indicated in your second sworn affidavit
16 that she's actually very intimidated by guns. That's not
17 actually correct, is it?
18
A. Would you tell me which paragraph so I can
19 refresh my memory?
20
Q. Eighteen.
21
A. Would you repeat the question on paragraph 18?
22
Q. You indicate in paragraph 18 that your fiancee
23 Donna is somewhat intimidated by handguns?
24
A. I wrote that.
25
Q. And, in fact, you are aware of the fact that she
737
1 has handled firearms in the past, correct, as you just
2 indicated?
3
A. She has told me she has.
4
Q. Now, you also told us, and you've told Donna on
5 a number of occasions that you should also assume that a
6 handgun is loaded; correct?
7
A. Yes.
8
Q. And you should always assume that a handgun is
9 operable; correct?
10
A. I have never said that.
11
Q. Well, isn't that general practice in training,
12 and anybody who has ever handled firearms will tell you,
13 right, would you agree with me that you should always
14 assume a firearm is loaded and operable?
15
A. I would agree with the first half of the
16 statement, I don't agree that as a standard measure you
17 check that as operable.
18
Q. Well, you would agree with me that it's a
19 standard -- standard rule that if you're going to pull
20 out your gun, you better be able to use it; correct?
21
A. Not in those words, but that's (inaudible).
22
Q. And if you're going to pull out that firearm,
23 you better be able to shoot it; correct?
24
A. Are you saying you better have the knowledge of
25 how to shoot it?
738
1
Q. You better have the desire to shoot it.
2
A. That's incorrect.
3
Q. That's incorrect. Have you -- you said you
4 took that training class, correct, from the sheriff's
5 office?
6
A. Yes.
7
Q. Same training class that everyone who gets a
8 concealed weapons permit takes; right?
9
A. That's incorrect.
10
Q. That's incorrect. You took a different class
11 for the special people?
12
MR. SHAHAN: Objection, argumentative. May I
13 approach?
14
THE COURT: All right.
15
---
16
(Sidebar discussion out of the hearing of the jury.)
17
18
--MR. SHAHAN: He testified that he took a class
19 with Kurt Gelb back then, and back then the sheriff's
20 office is the only one that could give the class.
21 There's also some testimony that now other people like
22 taking -- she indicated that she took a class, so I
23 don't -24
THE COURT: So what's the nature of the
25 objection?
739
1
MR. SHAHAN: Because she said you took a special
2 class, as if like she's being smart Alec, argumentative;
3 that's the objection.
4
THE COURT: You haven't laid the predicate to
5 make that objection, then I'll sustain the objection.
6
---
7
(End of sidebar discussion.)
8 BY MS. VERGOS:
9
Q. You took the training class; right?
10
A. Would you fill out that question a little more?
11
A. You took the training class in order to use a
12 firearm?
13
A. That's incorrect.
14
Q. In order to get your concealed weapons permit?
15
A. That's correct.
16
Q. And in that training class, you did what, a
17 hundred or so rounds you said; right?
18
A. It was either 50 or 100 was the state.
19
Q. And there was 10 hours of safety instructions
20 right, the course?
21
A. Classroom.
22
Q. Ten hours?
23
A. Not ten hours of safety instruction, no.
24
Q. You indicated it was a ten-hour course on
25 safety; is that not what you told us a little while ago?
740
1
A. That's not incorrect. That was part of the ten
2 hours.
3
Q. Okay. Well, how many hours of that time was
4 regarding safety?
5
A. I would say one full session.
6
Q. So it's two hours; you said 7:00 to 9:00 every
7 morning?
8
A. It was not in the morning.
9
Q. Seven to nine every night?
10
A. The classroom training portion, yes.
11
Q. So two hours of safety training?
12
A. The classroom training was a different matter.
13 It's more on the law. The safety training was on the -14 there's much more of it on the gun course.
15
Q. Are you telling us that somebody from the Pasco
16 County Sheriff's Office told you that if you're going to
17 pull out your gun, you don't have to be necessarily ready
18 to fire?
19
A. Yes.
20
Q. That's what they told you?
21
A. Pull it out to show it to your friend; you pull
22 it out -- there's a lot of reasons you can pull a gun
23 out.
24
Q. If you were going to pull your gun out to an
25 intruder, or when you're scared or nervous, or if you're
741
1 in a situation like you are faced with on September 5th,
2 are you telling us that the sheriffs office in your
3 training told you that you can just pull it and aim it,
4 and not do anything with it?
5
A. Yes. It doesn't fire automatically.
6
Q. Isn't it general practice that if you're going
7 to pull out a gun, you should be able to fire that gun?
8
A. You should be capable of making a decision.
9
Q. Isn't it general practice that if you're going
10 to pull out a gun and fire it, that you should be ready
11 and willing to kill somebody?
12
A. That's incorrect.
13
Q. That's incorrect. Isn't it standard practice
14 that you should never operate a firearm when you've been
15 drinking?
16
A. I don't believe I can answer that question.
17 I've already testified I'm not qualified as an expert in
18 weapons.
19
Q. I'm sure you would assume with me that it's a
20 very unsafe to pull out a firearm and fire it after
21 you've been drinking?
22
A. No.
23
Q. You would not agree with that?
24
A. Not for the question you asked.
25
Q. You indicated that you were using hollow point
742
1 bullets so that you would have less damage?
2
A. No.
3
Q. So that they are less penetrateable (sic)?
4
A. I can't answer that yes or no.
5
Q. That is what you told us, that you were using
6 hollow point bullets because you know from your training
7 and your experience that they cause less damage than ball
8 point bullets?
9
A. That's incorrect.
10
Q. That's not what you told us?
11
A. I said they don't penetrate.
12
Q. Less penetrateable (sic)?
13
A. I'm not sure that's a word.
14
Q. Did you tell us that you used hollow point
15 bullets because they penetrate less?
16
A. Yes, in a home-defense situation.
17
Q. Okay. Hollow point bullets, those are the kind
18 of bullets that actually have the hollow inside a little
19 bit; right? The kind you were showing to the jury?
20
A. Yes.
21
Q. And those types of bullets, actually when the
22 hammer hits that bullet and projects it out of the
23 firearm, when that bullet goes in the skin, say, that's
24 the kind of bullet that actually peels back; right?
25
A. It flattens and expands.
743
1
Q. Well, it actually opens and peels back to make
2 almost like a spinning razor-type situation; would you
3 agree with that?
4
A. No.
5
Q. You would not?
6
A. It doesn't spin around. When it hits something,
7 it's there; it doesn't spin around.
8
Q. And, in fact, most trainers and most experts
9 will tell you that hollow point bullets cause more damage
10 than a ball point bullet if it hits skin; right?
11
A. I have testified I'm not an expert firearms.
12
Q. Do you not know that? Are you telling us that
13 you're not familiar with that?
14
A. The purpose of the hollow point was for home
15 defense.
16
Q. My question is whether you are, or are not
17 familiar with that statement?
18
A. You'd have to qualify it more. There's a lot of
19 it depends. As Deputy Curtis said, are we talking about
20 thirty-odd 60 deer rifle, or are you talking about -21
Q. Let's talk about your .357? How long is your
22 barrel?
23
A. Three-inch barrel.
24
Q. Okay. A .357 Magnum with a three-inch barrel.
25 This gun can kill somebody; would you agree with that?
744
1
A. That's what guns are designed to do.
2
Q. Would you agree that when you pull the trigger
3 of this firearm, you can kill somebody?
4
A. It's possible.
5
Q. Would you agree that's the design; that is what
6 they're made for, to seriously harm or kill; would you
7 agree with that?
8
A. Basically.
9
Q. They are not made for warning; right?
10
A. No.
11
Q. They are not made so that we can play around
12 with them; right?
13
A. No.
14
Q. They are not made so that we can kind of think
15 about what we feel like that day; right?
16
A. Rephrase that?
17
Q. They're not made for anything else except for
18 the purposes of either injurying seriously, or killing?
19
A. That's incorrect.
20
Q. That's incorrect.
21
A. You haven't listed target practice, you haven't
22 listed hunting.
23
Q. Well, would you agree with me that you either
24 injure, or kill the animal that you are shooting at?
25
A. If you hit it.
745
1
Q. So you wake up, and it's about one o'clock in
2 the morning, and there's all this noise outside, right;
3 that's what you told us much?
4
A. I didn't say noise outside. I said I heard
5 voices that I thought were inside the house.
6
Q. Okay. So you wake up, and it's about one
7 o'clock in the morning, and you hear voices inside your
8 house.
9
A. That's what I believed at the time.
10
Q. Now, you still haven't seen Donna; right? The
11 last time you see Donna, she was in a white T-shirt and
12 boxers; right?
13
A. I don't believe it's possible. I think she
14 dressed; I had seen her when she left to go the first
15 time, she -16
Q. You didn't kiss her good night, and walk her out
17 the door?
18
A. No.
19
Q. The last time you saw her, as you told us, was
20 about 20 minutes ago she was in a white T-shirt and
21 boxers; right?
22
A. Yes.
23
Q. With no shoes on.
24
A. She was in her home.
25
Q. And that was the very last time you saw her, and
746
1 now you're up at one o'clock in the morning, and there's
2 voices inside your house; would you agree with me?
3
A. It sounded like voices to me. It was voices,
4 human voices.
5
Q. Yes, would you agree with me?
6
A. Repeat the question. I'm agreeing with you.
7
Q. The last time you saw Donna, she was in a white
8 T-shirt and boxer shorts, and the next thing you know,
9 you wake up at one o'clock in the morning, and it sounds
10 to you as if there are voices in side your house;
11 correct?
12
A. I don't remember if I saw Donna leave dressed.
13
Q. Well, that's what you told us before. I assume
14 what you told us before is accurate; I assume what you
15 told this jury 20 minutes ago is correct; is that a safe
16 assumption?
17
A. What question? You've asked 55 questions.
18
Q. That's okay. I think they got it. So you wake
19 up, it's one o'clock in the morning, there's
20 unidentifiable voices in your house, and you have no idea
21 who they are, or what they're saying; right?
22
A. I don't recognize the voices, the tones of the
23 voices.
24
Q. Right?
25
A. I do not recognize the tones of voices.
747
1
Q. Do you have any idea who they are?
2
A. Absolutely not.
3
Q. Do you have any idea what they're saying?
4
A. Absolutely not.
5
Q. When I say you don't know who they are and don't
6 have any idea what they're saying, am correct in that?
7
A. No, I know there are men's voices from the tone.
8
Q. And you're in your back bedroom at that point?
9
A. I only have one bedroom.
10
Q. Okay. You're in the bedroom furthest from the
11 front door; right?
12
A. That's correct.
13
Q. And instead of staying in that bedroom, you
14 actually go out to the living room area like you told us;
15 right?
16
A. Eventually.
17
Q. The living room is the closest room to the front
18 door; right?
19
A. Yeah, it opens -- the door opens into the living
20 room. What do they call it, the big open space? The
21 great room? I forget the term for it. They don't have
22 formal dining rooms, separate rooms anymore.
23
Q. The room that's the closest to the front door?
24
A. Is the big room, family room.
25
Q. Is the room closest to the front door?
748
1
A. Yes, that's the room.
2
Q. And that's the room that you decide to go to;
3 correct?
4
A. Eventually, after the voices ceased.
5
Q. And you don't see Donna sitting on the couch or
6 anything; right?
7
A. Donna had left the house.
8
Q. Is that a yes, you don't see Donna sitting on
9 the couch?
10
A. At what time?
11
Q. Yesterday at 4 o'clock in the afternoon. When
12 you woke up that night.
13
A. I'm just trying to answer specifically a
14 specific question of yours.
15
Q. When you woke up that night on September 5th,
16 2004, at approximately one o'clock in the morning, and
17 proceeded to go into the living room because you thought
18 there were people there, did you see Donna sitting on
19 your couch?
20
A. No, she wasn't there.
21
Q. And you indicated in a split second decision you
22 decided to fire two warnings shots; right?
23
A. Yes, I did.
24
Q. Okay. Now, that split second decision, let's
25 talk about that for a moment, would that be okay?
749
1
A. That would be okay.
2
Q. Okay. In that split second, you evaluated the
3 structure of your home; correct?
4
A. No.
5
Q. In that split second, you evaluated the
6 composition of your walls?
7
A. That's incorrect. I evaluated when I moved into
8 the house.
9
Q. In that split second, you were able to determine
10 the distance between the window and the wall?
11
A. Which wall are you referring to?
12
Q. The side wall of your house?
13
A. The window is in the side. Are you talking
14 about the window that's in the wall?
15
Q. In that split second, you were able to determine
16 the distance between your front door and wall, and that
17 window that's in the front of the home; correct?
18
A. Not in inches. I could determine the halfway
19 point.
20
Q. And in that split second, you were able to
21 check the cylinder of your firearm, make sure which
22 bullet was in which position so that you know; correct?
23
A. I had done that about the time Donna was leaving
24 the house.
25
Q. And you were able to determine that you have
750
1 hollow points in your chamber, in your cylinder; correct?
2
A. I was not able to determine that, I knew it.
3
Q. And you were able to consider what those would
4 do, and what kind of penetration power those have;
5 correct?
6
A. I'm aware of the penetration power of the hollow
7 point bullets.
8
Q. And these are things you're all considering in
9 that split second; correct?
10
A. No.
11
Q. No. But do you agree with me that you fired two
12 warning shots according to you; correct?
13
A. Yes.
14
Q. Okay. You pulled the trigger on your gun twice;
15 correct?
16
A. Yes.
17
Q. All right. And you indicate that you did that
18 in order to warn whoever was there?
19
A. Yes.
20
Q. And you did that instead of just, you know,
21 throwing something or whatever because you would agree
22 with me that a gun is loud?
23
A. And deadly.
24
Q. And deadly. And you would agree with me that a
25 gun, a shot from a gun is pretty much unmistakable?
751
1
A. I would not agree.
2
Q. Okay. Well, you would agree to a trained ear
3 who knows what it sounds like, it's pretty much
4 unmistakable; correct?
5
A. That's incorrect from my knowledge.
6
Q. Okay. Well, you would agree with me that the
7 reason, according to you, that you did this was so you
8 could make sure that whoever was there heard that
9 gunshot?
10
A. Yes.
11
Q. And, in fact, you fired a second one just to
12 make sure that they heard it clearly?
13
A. Yes.
14
Q. And you would agree with me that when you pull
15 your trigger, you pretty much know that it's audible?
16
A. Pulling the trigger is audible?
17
Q. What comes out.
18
A. The bullet is not audible.
19
Q. The sound that the gun makes when you pull your
20 trigger is audible; correct?
21
A. When you discharge a firearm, unless it has a
22 silencer on it, it makes a noise.
23
Q. We're talking about your gun. Does your gun
24 have a silencer?
25
A. No.
752
1
Q. So your gun, when you pull your trigger on your
2 gun, the sound that it makes is audible; would you agree
3 with that?
4
A. By definition anything that is audible, there's
5 a sound.
6
Q. And it's loud?
7
A. Compared -- it's relatively loud.
8
Q. It can be heard some distance away?
9
A. Yes. I wouldn't say what the exact distance.
10
Q. In fact, you've been to some firing ranges?
11
A. Yes.
12
Q. And they give you --
13
A. The last 20 years, sure.
14
Q. And they give you those ear pieces; right?
15
A. Yes.
16
Q. To make sure that your ears stay safe, because
17 it is loud?
18
A. Mostly to make sure they don't get sued.
19
Q. So they don't break your eardrum and you sue
20 them; would you agree with that? Don't worry, I'll move
21 on.
22
A. It depends on the room; it depends on the
23 structure.
24
Q. Well, when you pulled your trigger on September
25 5th of 2004, you wanted whoever was there to hear it?
753
1
A. That is correct.
2
Q. And you made sure that they would, and you
3 pulled it again; correct?
4
A. I fired one shot.
5
Q. Two shots?
6
A. And then I fired two shots. One deputy
7 testified yesterday; he was correct about one and a half
8 seconds apart. The one -- I forget the one bang, bang.
9
Q. I'll let him know you think he's accurate, okay?
10
A. Okay.
11
THE COURT: All right, why don't we go ahead and
12 take a ten-minute comfort break at this time. I think
13 we've been going quite awhile, all right?
14
15
16
17
--(Jury escorted out of the courtroom.)
--Mr. Daiak, you're in the middle of
18 cross-examination, so please do not speak to Mr. Shahan
19 about the case. All right?
20
21
22
23
24
25
THE DEFENDANT: Yes.
--(Ten-minute recess.)
--(Court reconvened out of the presence of the jury.)
---
754
1
THE COURT: The jury is still on break.
2 I just wanted to inform Mr. Dyaik of a couple of things
3 that I will be instructing the jury on. And one thing is
4 that you should apply the same rules to consideration of
5 the Defendant's testimony that you apply to the testimony
6 of the other witnesses.
7
And one of the things that I will be instructing
8 them on is that in evaluating the witnesses which would,
9 of course, include the Defendant, the jury is going to
10 look at this factor. Was the witness honest and
11 straightforward in answering the attorneys questions; so
12 I will allow Mr. Shahan to talk to you about that issue
13 at this time, if he would wish.
14
MR. SHAHAN: Yes, thank you.
15
THE COURT: All right.
16
17
--(Out of the hearing of the jury.)
18
19
--THE COURT: Mr. Daiak, I've already told Deputy
20 Hatcher a couple of people in the audience that Mr. Daiak
21 doesn't particularly get along with; is that right?
22
MR. SHAHAN: Your Honor, the ex-husband's son.
23
MS. VERGOS: The ex-husband of his fiancee is in
24 the courtroom.
25
MR. SHAHAN: The ex-husband three days after
755
1 this event has caused him not to be able to have
2 visitation with the kid, and they think -- he thinks he's
3 in here just to intimidate him.
4
5
THE COURT: All right.
MR. SHAHAN: He says because that litigation,
6 that he's not going to be able to -- he'll clam up or
7 something.
8
THE DEFENDANT: I'm going to clam up.
9
THE COURT: This is a court room; everybody is
10 allowed in here unless they do something improper. If
11 they do something improper, they'll be thrown out, held
12 in contempt; otherwise, I'm going to allow them to do
13 that.
14
Well, I'm sorry to hear that.
15
MR. SHAHAN: I told him that that's probably --
16 because it's a public courtroom. I was just going to ask
17 the Court, so he sits on the other side so he doesn't
18 have to look at them.
19
THE COURT: I will ask them, but I will not
20 order them to do it.
21
MS. VERGOS: I'll do it, Judge.
22
THE COURT: Okay.
23
24
--(Joe Frank Daiak resumed the witness stand.)
25
---
756
1
THE COURT: All right, for the record, those two
2 individuals in the audience have moved from direct eye
3 contact with the Defendant to the complete other side of
4 the room, so unless the Defendant seeks them out himself,
5 he should not even see those two witnesses.
6
All right, let's go ahead and bring the jury
7 back.
8
---
9
(Jury entered the courtroom.)
10
11
--THE BAILIFF: The jury is present and seated in
12 the courtroom, Your Honor.
13
THE COURT: Ms. Vergos, you may continue.
14
MS. VERGOS: Thank, Judge.
15
16
--CONTINUED CROSS EXAMINATION
17 BY MS. VERGOS:
18
Q. These two warning shots that you claim you
19 fired, you didn't do that from the bedroom, did you?
20
A. That's correct. And I apologize to the jury if
21 I seemed argumentative.
22
MS. VERGOS: Judge --
23
THE COURT: Sustained. Sir, the attorneys ask
24 the questions, and you answer the questions. You don't
25 give speeches after a question is asked, which is not an
757
1 answer to the question, all right? Do you understand how
2 that works?
3
THE DEFENDANT: Yes, Your Honor.
4
THE COURT: Okay. The role of the attorney is
5 to ask the questions, and your role else to answer the
6 questions that are asked, all right?
7
You may proceed, Ms. Vergos.
8
MS. VERGOS: Thank you, Judge.
9 BY MS. VERGOS:
10
Q. You did not fire those two shots from the back
11 bedroom; correct?
12
A. That's correct.
13
Q. And you indicated you did so because you were
14 scared for your life; that's why you fired those two
15 shots; correct?
16
A. Not from the back bedroom.
17
Q. From the living room where you fired them?
18
A. Yes, that's correct.
19
Q. Because you were scared?
20
A. I was in fear for my life.
21
Q. You thought there were burglars outside?
22
A. Someone was in my house, breaking in my home. I
23 don't know if they were burglars or home invaders or
24 murderers.
25
Q. I believe in your sworn statement you indicated
758
1 you thought they could be burglars, or looters, or even
2 possibly murderers; is that correct?
3
A. I don't know if I wrote that.
4
Q. Well, you did write the sworn statement;
5 correct?
6
A. You're correct in that is what I was in fear of,
7 the possibility.
8
Q. You did write the sworn statement; correct?
9
A. Those were the type of things I was afraid of.
10
Q. You did write the sworn statement; correct?
11
A. Yes, I did.
12
Q. And it was a sworn statement; correct?
13
A. That's correct.
14
Q. And you wrote it back in 2005, correct?
15
A. I don't have a date on this copy.
16
Q. Well -- August 10th of 2005.
17
A. That sounds right.
18
Q. And I assume that the events were clear in your
19 head back then than they are today; correct?
20
A. I tried to recall those situations from a year
21 ago as well as I could from memory.
22
Q. And, in fact, your sworn statement is 11 pages
23 typed; correct?
24
A. That's in -- my copy is more than that, 17 pages
25 -- 16 pages.
759
1
Q. Okay. Great. It's long; right?
2
A. If 16 page is long, it's long.
3
Q. Typed?
4
A. Yes.
5
Q. Very detailed?
6
A. As detailed as I could remember, as I could
7 write.
8
Q. Okay. And in that sworn statement, you
9 indicated that you fired your gun -10
A. Yes.
11
Q. -- because you were scared; correct?
12
A. Yes.
13
Q. And because you thought it could be possibly
14 looters or burglars, or murderers that were coming into
15 your house?
16
A. Basically. I don't have this memorized, but I
17 agree with what you're saying.
18
Q. Well, you wrote it, sir?
19
A. I don't have it memorized.
20
Q. If you refer me to a paragraph to be more
21 specific.
22
A. I assume that what you wrote would have been
23 what you consider to be the truth?
24
A. Yes.
25
Q. And I assume that wouldn't have changed?
760
1
A. Yes, you could assume that.
2
Q. Okay. Would that be a safe assumption, or are
3 you telling us that the truth has changed according to
4 you?
5
A. I'm saying I don't have the statement memorized.
6 I didn't know I had to memorize it.
7
Q. Mr. Daiak, let me ask this. Is this a statement
8 according to you of the facts that occurred on September
9 5th of 2004?
10
A. Yes, as I perceived them.
11
Q. And is this a statement according to how you
12 believed that occurred September 5th, 2004?
13
A. Yes.
14
Q. Is that statement according to the facts as you
15 say that you did them in 2004?
16
A. It was as I believe them.
17
Q. Now, would you agree with me that is something
18 you know, and don't have to memorize?
19
A. When you're asking a general question, I can
20 answer; if you're asking something specific, if I use a
21 certain word, I could not tell you off the top of my
22 head.
23
Q. So you're telling us that you can't tell us
24 today whether you thought they were looters or burglars,
25 or murderers until I give you a page and a number?
761
1
A. No, that's why I was afraid.
2
Q. Okay. And you were scared because of that?
3
A. Yes.
4
Q. Okay. So I assume that naturally you called
5 9-1-1?
6
A. No, I did not.
7
Q. I assume that naturally you grabbed the phone
8 and called the police?
9
A. No, I did not.
10
Q. You called a family member to come and help you?
11
A. I did not use a telephone.
12
Q. You didn't use the telephone, and that is
13 because you indicated you went straight back to that
14 bedroom, correct, after you shot the gun, you went right
15 back into your bedroom?
16
A. Yes.
17
Q. And in that bedroom you have no T.V. and you
18 have no telephone?
19
A. Yes.
20
Q. No telephone?
21
A. Nothing outside of the bed; correct?
22
A. No.
23
Q. No electronic devices outside of a fan?
24
A. Alarm clock.
25
Q. Alarm clock. Do you use that alarm clock?
762
1
A. Get up at 5:00 in the morning.
2
Q. You get up at 5:00 in the morning when it rings?
3
A. On a normal basis, yes.
4
Q. On a daily basis, 5:00 a.m.?
5
A. Normally, Monday through Fridays.
6
Q. Alarm goes off?
7
A. Alarm goes off.
8
Q. Do you wake up?
9
A. I wake up.
10
Q. Is it a beep you wake up to or music?
11
A. It's a real annoying alarm.
12
Q. Is it music?
13
A. Buzz.
14
Q. Okay. And you wake up to that; right?
15
A. Yes, that wakes me up.
16
Q. All right, so you have no phone and no T.V. in
17 the bedroom; correct?
18
A. That is correct.
19
Q. And that's two warnings shots. Well, let me ask
20 you this. You indicated that you know the composition of
21 your home, how it's made?
22
A. I know if by composition, you mean how is it
23 built, yes, I know it's a stucco frame house.
24
Q. And I assume it's a stucco frame house
25 throughout?
763
1
A. No, the interior walls are not.
2
Q. The external walls?
3
A. The external are all like this except on the
4 outside, there's about a three-quarter inch coat of
5 stucco.
6
Q. And insulation somewhere in there; correct?
7
A. It's possible. I didn't build the house.
8
Q. You indicated that you build or, you know, you
9 did something for the summers for three years?
10
A. I indicated that I was a laborer when I was in
11 college.
12
Q. You put that together and told this jury that
13 that's an accurate representation of your wall?
14
A. Yes, I did.
15
Q. And you're telling us now that you don't even
16 know if there's insulation in your wall.
17
A. I did not build the house.
18
Q. So you don't know if there's insulation in your
19 wall?
20
18
A. That's correct.
21
Q. So
Q. So you don't know if there's insulation in your
19 wall?
20
A. That's correct.
21
Q. So we don't know whether that's an accurate
22 representation or not?
23
A. If I would surmise, I would say --
24
Q. We're not asking you to surmise. I'm asking you
25 whether you know if that's an accurate reputation since
764
1 you don't know if there's even insulation in your house?
2
A. Yes, that is.
3
Q. That's an accurate representation?
4
A. It's not exact, it's a representation.
5
Q. But yet you don't know if there's insulation;
6 correct?
7
A. No, there's no insulation.
8
Q. There's no insulation in your home?
9
A. Not in these blocks, in the ceiling, yes, but
10 not in these blocks.
11
Q. So your external walls have no insulation at
12 all?
13
A. Not according to pictures the Tepedino and the
14 evidence tech took.
15
Q. That's not any question.
16
A. I never poked a hole to find out it's a round
17 the house.
18
Q. Am I safe then in saying that you can't tell us,
19 you have no idea whether that is accurate or not, because
20 you've never torn down any of the walls of your house to
21 know whether that's accurate?
22
A. Yes -- no, that is accurate. I've worked on
23 other houses; I've done thousands of -- carried thousands
24 of these blocks.
25
Q. Am I safe in saying that your bedroom has two
765
1 external walls?
2
A. Yes, it's a corner bedroom.
3
Q. And those two external walls are built in the
4 same makeup and same style as the other external walls of
5 your house?
6
A. Yes, with the stucco on the outside. I'm not
7 sure if the thickness of the drywall is different, but
8 this is the best I could come up with on a quick basis.
9 It's a fair representation; it's not an exact -- I didn't
10 cut it out of the house.
11
Q. My question is was whether or not your two
12 external walls in your bedroom are made up of the same
13 materials as every other external wall of your house?
14
A. Yes.
15
Q. And I assume that the bullet would penetrate the
16 same in those two walls as any other wall in the house
17 that's external; correct?
18
A. It would penetrate the same distance.
19
Q. Now, you said that you were pretty much
20 petrified after this experience when you had to fire your
21 gun?
22
A. I wasn't frozen petrified frozen.
23
Q. Scared?
24
A. I scared, I was scared to death, I was in fear
25 of my life, scared shitless.
766
1
2
Q. Scared shitless, in fear for your life.
Okay. And after you fired that gun, you did not
3 call 9-1-1?
4
A. That's correct.
5
Q. You in fact went back to your bedroom?
6
A. That's correct.
7
Q. And shortly thereafter you fell back asleep?
8
A. Apparently.
9
Q. Now, you didn't wake up after then until about
10 when, 3:30 in the morning, you said?
11
A. I would guess that's about the correct time.
12
Q. And that was because of a flash bang?
13
A. Among other things, yes.
14
Q. All right. Which was very loud; correct?
15
A. Yes.
16
Q. Very bright; correct?
17
A. Yes.
18
Q. And it startled you; right?
19
A. I wouldn't use the word "startled," but I'll
20 agree with you on that.
21
Q. Were you disoriented by it?
22
A. Totally disoriented.
23
Q. Scared, shocked? Were you scared by it straight
24 out of the middle of the night; there's a loud bang, a
25 loud -- a bright light?
767
1
A. No, I was too disoriented to be scared.
2
Q. You were too disoriented to be scared. You
3 didn't jump out of the bed and duck for cover, or
4 anything like that; right?
5
A. No.
6
Q. You didn't jump out of the bed and, you know,
7 grab your gun; right?
8
A. I was totally disoriented for a period of time.
9
Q. You didn't jump out of your bed and grab your
10 gun?
11
A. No, my gun was -- the gun was already in my hand
12 when I was on the bed.
13
Q. In fact, you just laid there; correct?
14
A. I contend, yes.
15
Q. And you laid there until the sheriff's office
16 came into the house; correct?
17
A. Correct.
18
Q. And when they did so, you indicated that you the
19 next thing you saw was what six, four to six men in your
20 bedroom?
21
A. That's what I -- that's what I remembered in
22 hindsight as my memory came back to me after the flash
23 bang.
24
Q. That's what you've indicated right, four to six
25 people?
768
1
A. That's my best indication what happened that
2 night.
3
Q. And those four to six people were wearing
4 military fatigued?
5
A. That's how it appeared to me.
6
Q. And helmets?
7
A. Helmets.
8
Q. And goggles?
9
A. Goggles.
10
Q. And you noticed four to six red dots on your
11 chest from laser sites?
12
A. That's what it appeared to be. I know I saw
13 dots on my chest of light. I didn't make the assumption
14 it was a laser light. I don't know what type of light it
15 was.
16
Q. They were red?
17
A. I don't remember.
18
Q. You don't remember? You do remember writing
19 that sworn statement though, right?
20
A. Yes, I do.
21
Q. And in that sworn statement --
22
MR. SHAHAN: Can you tell us which paragraph?
23
MS. VERGOS: Well, I'm about to.
24 BY MS. VERGOS:
25
Q. In that sworn statement, so you know where I'm
769
1 talking, page 8, paragraph 28.
2
3
4
A. (Witness reading.)
That would be my -Q. The fourth sentence in, you write, "I woke to at
5 least six men in unidentified military fatigue hemets and
6 goggles suddenly appearing in my bedroom and viciously
7 subduing me. I noticed at one point four or six dots
8 were on my chest directly over my heart from laser sites
9 on the machine guns carried by these troopers." Is that
10 an accirate representation of what you wrote?
11
A. Yes, it's an exact quote.
12
Q. I read that correctly?
13
A. Yes.
14
Q. Okay. So you saw goggles and six red dots on
15 your chest from laser sites on machine guns; correct?
16
A. That's what I thought I saw. I was totally
17 disoriented.
18
Q. Those are the same goggles that the sheriff's
19 office didn't have until 2005?
20
A. I have no idea.
21
Q. And those are the same red laser beams that they
22 actually don't have on any weapon?
23
A. I have no idea.
24
Q. Do you have an X-Box?
25
A. I'm sorry?
770
1
Q. Do you have an X-Box?
2
A. The game? No, I don't play video games. No.
3
Q. So you certainly weren't worried about the
4 action box murder thing?
5
A. Absolutely on my mind.
6
Q. You certainly don't have an X-Box; right?
7
A. I don't have the X-Box play consul.
8
Q. Now, let's talk about where you aimed that .357
9 Magnum. You have a leather sofa in your living room?
10
A. Yes.
11
Q. And you aimed it into that leather sofa?
12
A. Say again, please?
13
Q. Did you aim it right into that leather sofa?
14
A. I was aiming at a position in the wall, and the
15 sofa was partially in the way. It, apparently, went
16 through the sofa on the way to the target.
17
Q. Okay. And then you aimed it at a bookcase?
18
A. Same answer. I was aiming at a particular spot
19 on the wall, and it did penetrate a bookcase.
20
Q. So the important thing was to get that
21 particular spot on the wall then?
22
A. Those two spots as far as possible, the farthest
23 away from the door or window. I did not want to take a
24 chance on shooting through a door, window, and injurying
25 whoever was outside.
771
1
Q. Would you agree with me that two external walls
2 of your bedroom are even further from that door and
3 window?
4
A. Further than what?
5
Q. Than the spots where you shot the firearm.
6
A. Yes, it's a different room.
7
MS. VERGOS: I have nothing else, Judge.
8
THE COURT: Any redirect?
9
MR. SHAHAN: Yes, Your Honor.
10
11
--REDIRECT EXAMINATION
12 BY MR. SHAHAN:
13
Q. Mr. Daiak, the amended motion that she was
14 questioning you on is what's in front of you; correct?
15
A. Yes, to compare it.
16
Q. And there is some discussion over 11 pages
17 versus some other number of pages. All the way to the
18 end of the motion, how many pages are there?
19
A. If you go by paragraphs, they're the same.
20
Q. Sir, that's not the question. You got to listen
21 to the question. Go to the last page of that document.
22 What's that page number, sir?
23
A. This is page 26, is the last page.
24
Q. Okay. And after your sworn part, how many pages
25 is your sworn part, sir?
772
1
A. In this copy, this interest not an original.
2
A. On this copy, it goes to 16 in the signature
3 page.
4
Q. After the signature page for your sworn facts,
5 what's the next page title?
6
MS. VERGOS: Judge, I'm going to object.
7
MR. SHAHAN: I'm just clarifying the question.
8
MS. VERGOS: I object to hims asking about any
9 other portions, just the sworn statement.
10
MR. SHAHAN: The information was, he was lying
11 about how many pages the document was.
12
THE COURT: Well, I'll sustain the objection.
13
MR. SHAHAN: Sustain the objection? Okay.
14
THE WITNESS: I can easily tell you why.
15
MR. SHAHAN: He sustained the objection.
16 BY MR. SHAHAN:
17
Q. When you went fishing, did you go out in a boat?
18
A. No.
19
Q. Where did you go fishing?
20
A. I went fishing in Tarpon Springs, in Anclote
21 River.
22
Q. And was there a dock there?
23
A. Yes, there's docks all along. We were fishing
24 from the end of the street by Cox Seafood south.
25
Q. And Cox's Seafood let's people fish there?
773
1
A. It's a public street at the end of the street.
2 Cox Seafood allows you to fish on their dock.
3
Q. So you're on land flipping your pole into water;
4 right?
5
A. Into the Anclote River, yes.
6
Q. You didn't go motor boating in the middle of the
7 of river?
8
A. No.
9
Q. Didn't do any deep sea fishing?
10
A. No, just wanted to see how the barometer change
11 affected fishing.
12
Q. Okay. And you said something in your
13 cross-examination answers, something about the fan was a
14 soothing sound. What do you mean by that?
15
A. It's white noise.
16
Q. Okay. Does it assist you in sleeping or what?
17
A. It keeps out -- you don't hear cars going by.
18 White noise drowns out background sound.
19
Q. Now, there are some questions on
20 cross-examination about whether it was 64 degrees out
21 that day and sunny. Did you have a temperature gauge in
22 your bedroom right before these shots were fired?
23
A. I did not.
24
Q. If you had six shots in that gun, why did you
25 only shoot two?
774
1
MS. VERGOS: Object, Judge, asked and answered.
2
THE COURT: Sustained.
3 BY MR. SHAHAN:
4
Q. Did the voices outside sound like the familiar
5 voice such as Donna's voice?
6
A. Absolutely not.
7
Q. On cross-examination, the prosecutor asked you
8 whether the guns were used for killing and injurying.
9 Is there any other use for the gun that you were putting
10 it to that particular evening?
11
A. I just had it out for personal protection.
12
Q. Self-defense?
13
A. Self-defense.
14
Q. And I believe you testified -- strike that.
15
I believe in a sworn statement you said you saw
16 red dots; correct?
17
A. That's what I wrote on my sworn statement.
18
Q. So could they be a little different color than
19 red?
20
A. They could be. That night after the flash bang,
21 I had to re-create my memory. That's the best recreation
22 I could do. I was thrown into shock. When I wrote this,
23 and when I signed this is my best recollection of the
24 events.
25
Q. Whether they were red dots, green dots,
775
1 whatever, did they affect your eyesight?
2
A. No.
3
Q. Did they affect your -- strike that.
4
MR. SHAHAN: No further questions.
5
THE COURT: Thank you. You may step down.
6 Do you have anymore questions, or are you done?
7
MR. SHAHAN: No. Thank you.
8
THE COURT: All right, Mr. Daiak, you may step
9 down.
10
11
12
13
--(Witness excused.)
--MR. SHAHAN: Judge, I would just ask to approach
14 just momentarily, all right.
15
THE COURT: All right.
16
---
17
18
19
(Sidebar discussion out of the hearing of the jury.)
--MS. VERGOS: I have the -- it's from the
20 oceanic -- it's a government Website, and I would just
21 ask to introduce it into evidence, and ask the Court to
22 take judicial notice of it.
23
THE COURT: Okay. Any objection?
24
MR. SHAHAN: Yes, I object because it wasn't
25 provided in discovery, and it has no relevance to the
776
1 case at all.
2
THE COURT: Now you've seen it, is there any
3 prejudice to you?
4
MR. SHAHAN: I'd like to see it.
5
MR. VERGOS: Stated path and forecast chart,
6 Judge.
7
THE COURT: National oceanic? I can tell you
8 exactly what the Website is called. Why don't go ahead
9 and get that information?
10
MR. VERGOS: National Oceanic and Atmospheric
11 Administration.
12
MR. SHAHAN: For what purpose is it being
13 introduced?
14
MS. VERGOS: It's just tracking Hurricane
15 Francis, since the Defendant claims he was so concerned
16 about that night, I thinkn the jury would be
17 well-informed to have it in front of them being it's been
18 two years.
19
MR. SHAHAN: Then I don't object. Cut this off
20 because it's got up here 39 miles per hour, and she made
21 this big deal about it's 40 miles per hour, it's safe to
22 be out. I just don't want her to use it to bootstrap.
23 Obviously, according to this chart, 39 miles an hour,
24 and the SWAT and sheriff's people said they don't go out
25 in winds that are 40, because it's dangerous, the gusty
777
1 winds.
2
MS. VERGOS: That's not the purpose. I don't
3 even know that the wind was 39 miles an hour, it's just
4 so the jury knows it goes up and down.
5
THE COURT: Can we crop that out? Can I get a
6 pair of scissors? It has Hurricane Francis, and now it's
7 gone. I was just going to take out the part about the
8 wind.
9
THE CLERK: I can tape it.
10
THE COURT: Go ahead retape it. Why don't you
11 go ahead and reprint it. It's only going to hurt you,
12 because before it said Hurricane Francis, the track of
13 Hurricane Francis, and then you had the wind. I was just
14 going to take out the wind, and if you want me to just
15 allow this in -16
MS. VERGOS: As long as everybody stipulates
17 that that's the track of Hurricane Francis, I don't care
18 if it says it or not.
19
THE COURT: And you have no objection, all
20 right?
21
MR. SHAHAN: In fact, you can pin in Hurricane
22 Francis.
23
THE COURT: Have you no objection?
24
MR. SHAHAN: No objection.
25
THE COURT: All right, so it will be admitted as
778
1 State's Exhibit 22.
2
3
4
5
--(End of sidebar discussion.)
--THE COURT: All right, the track of Hurricane
6 Francis off of the Internet from NOAA, will be admitted
7 into evidence as State's Exhibit No. 22, National
8 Oceanographic Atmospheric Administration.
9
10
--(Whereupon, the above-referred-to Document from
11 the Internet from NOAA, was admitted into evidence as
12 State's Exhibit 22.)
13
---
14
All right, what's says Defense?
15
MR. SHAHAN: At this time, I'd like to recall
16 Deputy Curtis, please.
17
18
19
--D E P U T Y C U R T I S, recalled to the stand.
---
20
THE COURT: Sir, welcome back.
21
THE WITNESS: Yes. Thank you.
22
23
--D E P U T Y C U R T I S, after being first
24 duly sworn, testified as follows:
25
---
779
1
THE COURT: Mr. Shahan, you may proceed.
2
MR. SHAHAN: May I approach the witness?
3
THE COURT: Yes.
4
---
5
DIRECT EXAMINATION
6 BY MR. SHAHAN:
7
Q. Sir, I've got something marked for
8 identification as Defendant's Exhibit L, signed by you.
9 Is that something you recognize?
10
A. Yes, I believe it's a PC typed up. I didn't
11 have time to read it all.
12
Q. Take time to read it, please.
13
A. Okay.
14
Q. And do you recognize the document, sir?
15
A. Yes.
16
Q. And what is it, sir?
17
A. It's a Pasco County Complaint affidavit.
18
Q. Commmonly known as Probable Cause Affidavit?
19
A. Yes.
20
Q. And is that your signature?
21
A. Yes.
22
Q. And did you signed it under oath?
23
A. Yes.
24
Q. And what date did you execute it under oath,
25 sir?
780
1
A. Says 9/5/2004.
2
Q. Okay. And do you indicate in the middle of this
3 statement that the Defendant yelled something out?
4
MS. VERGOS: Judge, may we approach briefly?
5
THE COURT: Yes.
6
7
8
9
10
11
12
--(Sidebar discussion out of the hearing of the jury.)
--THE COURT: Take the jury out.
--(Jury escorted out of the courtroom.)
---
13
THE BAILIFF: The jury is out of the courtroom.
14
THE COURT: Mr. Shahan, where are we going with
15 this? We've already discussed this situation.
16
MR. SHAHAN: We discussed this situation in a
17 different context, Judge. All I want to do -- yesterday
18 she very easily crafted her questions so she didn't ask
19 him anything about what was said. So you indicated that
20 I couldn't get into this because there was no
21 impeachment. I'm not trying to do any impeachment. All
22 I want to do is put in the first one that Mr. Curtis said
23 a certain thing was said on a certain date under oath,
24 and then on a different date later in time, he said
25 something different.
781
1
And a crucial part of this defense, and a
2 crucial part, and you even indicated in denying the
3 motion for directed verdict, is whether there's enough
4 evidence of what he said, plus what he did to show that
5 he had any intent to harm someone. So it's very
6 important, I would think, that near in time this
7 gentleman says that he said "get out of my house" which
8 was also what Mr. Mitchell said was said. And it's
9 important because Mr. Tanner said he heard nothing, and
10 he was right next to Barrington, but both Barrington and
11 this gentleman later on say that he said, "die, die,
12 die."
13
So the fact that fifteen days later, and we're
14 not getting into anything about the Andrew's ruling, but
15 he said something different, is very important to the
16 defense, and very important to be able to make some
17 arguments about there's a variety of statements that were
18 said allegedly. One police officer said he heard
19 nothing; one next to him said he heard "get out of my
20 house" only; another person said he heard, "die, die,
21 die," and this gentleman said two different things at two
22 different times.
23
THE COURT: If I remember correctly, he didn't
24 hear anything, did he?
25
MS. VERGOS: No, he wasn't there. He was at
782
1 four houses down with the victim getting ready to set up
2 a substation.
3
THE COURT: Right. Here's what happened for the
4 record, is that this deputy filled out the probable cause
5 affidavit based upon I would assume what he knew about
6 the situation, not necessarily from what he heard
7 specifically, but what he may have learned from other
8 officers. And then it is not uncommon that at the
9 advisory hearing, that the advisory Judge will find that
10 there's insufficient probable cause for a particular
11 charge, and then the advisory Judge will inform the State
12 that they have a certain amount of time in order to redo
13 the arrest affidavit in order to show that there is
14 probable cause for a charge, which is what happened in
15 this case. And then Deputy Curtis redid the probable
16 cause affidavit, or the Complaint.
17
Now, I told you that you could get into what he
18 said in the probable cause affidavit if it is at all
19 inconsistent with what he said on the stand, and you
20 could use that for impeachment. But I ruled at the time
21 that he could not get into the fact that there were two
22 probable cause affidavits, and the first time the Judge
23 ruled that there was insufficient allegations for a
24 particular charge. And what he wrote down on there,
25 unless it's inconsistent with what he said on the stand,
783
1 is not relevant for anything.
2
I ruled that then, and nothing has changed.
3
MR. SHAHAN: I'm not trying to avoid that
4 ruling, I'm not getting into anything about what happened
5 between, but the case law -- well, first of all, the
6 thing that is important here is that he put quote, "under
7 penalties of perjury, I declare that I have read the
8 foregoing document, and that the facts stated in are true
9 to the best of my knowledge and belief in one, and let
10 me see if it's the same in the other.
11
MS. VERGOS: It's the same. It's the same.
12
MR. SHAHAN: For the record, it appears to be
13 the same in the other one, and these are two conflicting
14 statements, and the only thing I care about is the words.
15 I guess it could be argued nobody should have ever found
16 probable cause because if he didn't really hear these
17 things, and he's not the one being who shot at, then it
18 probably shouldn't have been allowed. But that's not the
19 problem here. The problem is the case law out there.
20
THE COURT: Hang on. Let's stop. Because
21 probable cause affidavits all the time are based upon
22 what police officers are told. So, for example, they
23 interview a victim, and then they put what the victim
24 said in the probable cause affidavit; the victim himself
25 who is there, does not fill out the probable cause
784
1 affidavit. All right, so let's clear that up for the
2 record. Please continue.
3
MR. SHAHAN: Okay. Well, another way of putting
4 it then, is that there are two statements; there are
5 different -- okay. There are different versions from the
6 alleged victims of the words of my client 15 days apart.
7 And it's not like the first probable cause affidavit;
8 they didn't say any wording, and Judge Andrews says if
9 there's any words, tell me about it.
10
They had wording of a certain type, "get out of
11 my house; do you want -- get out of my house. And then
12 the other one, they've got, "get out of my house," the
13 second one, "Do you want to die, and die, and die?" So
14 conflicting statements under oath is an appropriate area
15 of inquiry, and I think you're cutting me off at the
16 knees if you don't let me put it in, especially you
17 yourself at the time of directed verdict, you said it's
18 not just the actions, and it doesn't matter that maybe
19 you're suggesting the bullets didn't go offside, or get
not just the actions, and it doesn't matter that maybe
19 you're suggesting the bullets didn't go offside, or get
20 near him, the fact that he said die, die, die, you
21 yourself.
22
So you've taken a version of the evidence in the
23 best most light to the State that he said die, die, die,
24 but there's another area of the evidence. And I think
25 that it's prejudical, and I'm getting cut off at the
785
1 knees, and it hurts and harms, and prejudices our
2 defense.
3
THE COURT: All right. Well, I don't believe
4 that they're in conflict. I think that the second one
5 adds to what was included in the first one, so I don't
6 think they're contradictory at all, there's just more
7 information in there. And I cannot even think of a legal
8 theory about how you could possibly get that in. I can't
9 even think of one.
10
MR. SHAHAN: Well, you yourself have said that
11 okay, this isn't what Curtis heard, it's what the victim
12 said. It's victim's story, number one; victim story No.
13 2 under oath, and they're telling him this is what
14 happened; so that's the theory.
15
THE COURT: All right, well --
16
MR. SHAHAN: All I want to do is -- I'm sorry.
17
THE COURT: I guess what you could have done is,
18 as far as the police officers who claim that they heard
19 "die, die, die," I guess you could have asked them, did
20 you tell Deputy Curtis anything different at the time.
21 You could have impeached him with that, but that would
22 have been, of course, not an easy thing to go through all
23 of that, but I guess that could have been done.
24
What you're trying to do now, you can't do. So
25 I'm going to deny the request to continue on with this
786
1 question. Now, if you have something else for Deputy
2 Curtis, that's fine. But I'm not going to allow you to
3 get into the probable cause affidavits which we discussed
4 before this trial started several months ago, or at least
5 it seems like several months ago.
6
MR. SHAHAN: Your Honor, I understand your
7 ruling, and I'd just like to have these put on here so we
8 have a record of what's not being let in. I guess we do
9 have a record of.
10
Your Honor, at this time, asking then that we
11 call whatever the four officers are that are trying to
12 convict my client, I would like to be able to call all
13 four of them and ask the same questions that you just
14 suggested.
15
THE COURT: Unfortunately, you're are Allowed
16 to impeach your own witnesses, but you're not allowed to
17 call them solely for the purpose of impeaching them, so I
18 will not allow you to do that.
19
MR. SHAHAN: I don't want to do it as
20 impeachment, I just want to ask him did you ever tell
21 Curtis this, or did you ever tell Curtis that, one of the
22 two statements, and then I would do it in closing.
23
THE COURT: That would be hearsay, wouldn't it?
24 So that would not be admissible. So I cannot think of a
25 legal reason how you could possibly do anything that you
787
1 want to do with those probable cause affidavits right
2 now.
3
MS. VERGOS: Judge, if the Court is going to
4 enter these into the trial record for any reason, I would
5 just ask that the police reports be removed from them,
6 because right now the police reports are what is
7 actually -8
THE COURT: What we can do is, the Second DCA or
9 whoever it is who wants to read this, can just take
10 judicial notice of the fact that the two affidavits are
11 in the court file. And I believe that when we had the
12 Motion in Limine, and we went over this before the trial
13 started, and I ruled on it before the trial started, we
14 definitely went over all the dates of them.
15
MS. VERGOS: Yes.
16
THE COURT: And the fact that they're both in
17 the court file.
18
MS. VERGOS: Yes, okay.
19
MR. SHAHAN: Your Honor, that's fine. We can
20 just detach it, either way.
21
MS. VERGOS: That's fine.
22
THE COURT: All right. If you want to detach it
23 and you want it marked -24
MR. SHAHAN: It's marked on the back. Okay,
25 we'll leave them. Because I think you've made the
788
1 ruling; for appellate purposes all we care about is the
2 Probable Cause Affidavit.
3
COURT CLERK: We do not keep them if they're not
4 entered into evidence. Mr. Shahan, they've got to go
5 back to you.
6
MR. SHAHAN: You keep a record of what was
7 identified; it's still in the records; right?
8
THE COURT: I think I should be but,
9 apparently -10
COURT CLERK: Do you want to make it as a Court
11 exhibit and part of the file?
12
THE COURT: Right.
13
MR. SHAHAN: To preserve anappellate review, and
14 if I later decide there should be reversal of something
15 because a certain exhibit wasn't a allowed, then you have
16 to have something in the record to show what it was that
17 wasn't allowed.
18
THE COURT: All right, so if you'd like to have
19 a copy of those probable cause affidavits marked, then I
20 will allow you to have them marked, although they are
21 still in the court file. So if you want to have them
22 marked for identification, they will not be admitted, and
23 if we can make sure that they are part of the evidence.
24
COURT CLERK: Yes.
25
MR. SHAHAN: And she's already marked this, and
789
1 this one doesn't have any attachments, but just take this
2 stuff off of here and do a new "L," I guess, throwing
3 this one away, or giving it back to you. The new "L"
4 will just be on the back of this.
5
THE COURT: All right. Well, go aheadand mark
6 whatever it is you want to mark, and then go ahead and
7 put on the record what the letter or the number is of the
8 marking for identification -9
MR. SHAHAN: Yes.
10
THE COURT: -- for identification, so we have it
11 for the record.
12
MR. SHAHAN: Yes, sir.
13
MS. VERGOS: You asked that it not be attached
14 to the rest of the police report.
15
THE COURT: Yes, she's giving that back.
16
MS. VERGOS: Okay. Judge, I need a couple of
17 minutes to talk to a witness. I don't know if you want
18 me to do it now while he's doing that.
19
THE COURT: How long is a couple of minutes?
20
MS. VERGOS: Literally, a couple of minutes.
21
22
23
--(Brief recess.)
---
24
THE COURT: All right, go ahead.
25
Why don't you go ahead and announce for the
790
1 record what they're being marked as.
2
MR. SHAHAN: Yes, Your Honor. For the record,
3 the first probable cause affidavit signed by Deputy
4 Curtis is being marked as Defendant's Exhibit L, and that
5 is the probable cause affidavit dated September 5th,
6 2004.
7
The next Defense Exhibit M, is being marked,
8 which is the second probable cause affidavit signed by
9 Deputy Curtis, which was file-stamped September 30, 2004,
10 at 7:29 p.m.
11
THE COURT: All right. And for the record, I'm
12 going to find that these probable cause affidavits are
13 not inconsistent with each other. I'm also going to find
14 that they're not inconsistent with what any of the
15 witnesses have testified to so far; that they are
16 different statements, but they're not inconsistent.
17
THE COURT: All right, are you going to have
18 anymore questions for Deputy Curtis?
19
MR. SHAHAN: No.
20
THE COURT: Already. So then when the jury
21 comes back in, you'll just let the jury know that you
22 have no further questions for him.
23
MR. SHAHAN: Your Honor, something has come up.
24 I need to do something before the Court and with the
25 attorneys before the jury is brought in.
791
1
THE COURT: All right. I know it's unusual, but
2 I want to make a record of it.
3
THE COURT: All right.
4
MR. SHAHAN: Mr. Daiak has blown up. In fact,
5 could we have Mr. Curtis not be here?
6
THE COURT: That's fine, if he can step outside.
7
MR. SHAHAN: Just as the Defendant testifying or
8 not testifying is a very important thing, and I need to
9 make a report just like you did yesterday.
10
THE COURT: Yes.
11
MR. SHAHAN: This particular item is a strategy
12 situation where he wants me to do a certain thing, which
13 I think it would be outrageously bad for his case, and I
14 want to make a record of it, and then if he still decides
15 that he want me to go forward with this, and if you find
16 it admissible or whatever, fine. But I'm just figuring
17 this is a 3.850 waiting to happen.
18
Mr. Daiak, and there has been testimony of
19 somebody saying there's two shots or three shots; we know
20 there's only two shots from the gun.
21
THE COURT: Right.
22
MR. SHAHAN: In this particular report of law
23 enforcement by Mr. Curtis on 9/5/2004, which is just a
24 blow-up of one page of the Baker-Act proceeding, or
25 petition that you have to sign to get somebody
792
1 Baker-acted if you're not the family member; being a
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
(CONTINUED TO PAGE 792 - VOLUME VI)
18
19
20
21
22
23
24
25
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PASCO COUNTY, FLORIDA
CRIMINAL DIVISION
CASE NO. 04-0442CFAWS
STATE OF FLORIDA,
:
Plaintiff,
:
vs.
:
:
JOE FRANK DAIAK JR.,
:
Defendant.
:
------------------------------x
:
BEFORE:
HONORABLE JOSEPH BULONE, J.
Sixth Circuit
PLACE:
Pasco County Government Center
7530 Little Road
New Port Richey, Florida
DATE:
December 1, 2006
TIME:
Commencing at 9:00 a.m.
REPORTED BY: P. ALECIA WILKINS
Sixth Ciruit
COURT REPORTER
Notary Public, State of Florida
Pages 792 - 941
DAY FOUR
VOLUME VI
JUDY MOUKAZIS & ASSOCIATES
COURT REPORTERS
8624 Government Drive, Suite 102
New Port Richey, Florida 34654
(727) 842-9793
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PASCO COUNTY, FLORIDA
CRIMINAL DIVISION
CASE NO. 04-0442CFAWS
STATE OF FLORIDA,
Plaintiff,
vs.
:
:
:
:
JOE FRANK DAIAK JR.,
:
:
Defendant.
:
------------------------------x
BEFORE:
HONORABLE JOSEPH BULONE, J.
Sixth Circuit
PLACE:
Pasco County Government Center
7530 Little Road
New Port Richey, Florida
DATE:
December 1, 2006
TIME:
Commencing at 9:00 a.m.
REPORTED BY:
P. ALECIA WILKINS
Sixth Ciruit
COURT REPORTER
Notary Public, State of Florida
Pages 792 - 941
D A Y F O U R
V O L U M E V I
J U D Y
M O U K A Z I S & A S S O C I A T E S
C O U R T R E P O R T E R S
8624 Government Drive, Suite 102
New Port Richey, Florida 34654
(727) 842-9793
A P P E A R A N C E S
EVA VERGOS, ESQUIRE
Assistant State Attorney
7530 Little Road
New Port Richey, Florida
Attorney for the State
JOHN AMBROSE SHAHAN, ESQUIRE
556 E. Tarpon Avenue, Suite 3
Tarpon Springs, Florida
Attorney for the Defendant
I N D E X
S T A T E' S
R E B U T T A L
E V I D E N C E
WITNESS
Direct Examination
PAGE
Sgt. Tanner
Ms. Vergos
Cross, Mr. Shahan
Redirect, Ms. Vergos
Recross, Mr. Shahan
803
813
822
823
State's Closing
Defense Closing
State's Rebuttal
839
848
870
Charge of the Court
885
Verdict
921
795
1
certain type, certain frame, all the same size, talked
2
about the fact that there were two round shots.
3
two rounds it says on this line.
4
he squeezed in, in smaller writing, three rounds were
5
fired at the deputies, and he wants me to introduce this
6
in terms of impeachment, and to show that Curtis is
7
adding this later on.
8
purpose for saying "don't go there" is because in here,
9
Curtis, obviously, on hearsay basis, is claiming that the
He fired
But then at the bottom,
That's his purpose for it.
10
girlfriend, Donna Vaillencourt advised he had been
11
Baker-Acted in the past.
12
THE COURT:
13
MR. SHAHAN:
And my
Uh-huh.
The prosecutor is already trying to
14
show that he's probably a little crazy, a little drunk,
15
and that's why he did what he did.
16
would be devastating to his case, and a very bad strategy
17
move.
18
can make that decision, and tell is us he's voluntarily
19
doing it, then that's fine; otherwise, I think it's an
20
outragous decision, and I don't want to do it.
21
22
23
I just think this
If you decide that's it's both relevant, and he
THE COURT:
And I just don't see how in the
world that's going to help you, Mr. Daiak.
THE DEFENDANT:
I just don't.
Your Honor, the two people that
24
said they heard the words, "die, die, die," which sounds
25
like that's what this case is turning on, they also are
796
1
the two that, when they did their deposition, when they
2
gave live testimony, said two shots were fired, and in
3
the police report, they said three shots were fired.
4
want to question their credibility.
5
imaginary gunshots, what else -- sounds are they hearing?
6
Are they hearing imaginary die, die, die?
7
the only two people there that heard gunshots.
8
9
THE COURT:
I
If they were hearing
And those are
Well, I think that your attorney can
certainly argue that in closing argument.
We know that
10
only two shots were fired based upon the forensic
11
evidence, and somebody heard three shots.
12
the third bang that they heard was not a shot.
13
lawyer already has "all the ammunition" that he needs for
14
that.
15
So, obviously,
So your
So that document will add absolutely nothing
16
except for the fact that the jury will know that you have
17
been Baker-acted before, and that you may be mentally
18
unstable enough to do exactly what it is the State is
19
accusing you of doing.
20
21
22
THE DEFENDANT:
Understand,
It's not a good strategy
decision.
THE COURT:
I would say it's a very bad strategy
23
decision; that it adds absolutely nothing, because as I
24
said, only two shots were fired, and there are at least
25
two witnesses who thought they heard three; so the third
797
1
thing that they heard was not a shot.
2
evidence that they're incorrect about hearing that third
3
shot, at least from your gun.
4
shot, but it may have been from some other gun, or with
5
all the wind, it may have been a trash can that hit a
6
tree or something; right?
7
because it doesn't help your case one iota, and it would
8
be very harmful to you.
9
THE DEFENDANT:
10
THE COURT:
11
MR. SHAHAN:
12
THE COURT:
13
It may have been a third
So I'm not going to allow it
Thank you, Your Honor.
Thank you.
Thank you, Your Honor.
Do you think you need Deputy Curtis
in?
14
MR. SHAHAN:
15
THE COURT:
16
I have no further questions.
17
18
So it's already in
MS. VERGOS:
No.
Yes, then at that point you can say
Deputy McVey.
As long as the jury
is out, we might as well go over that, too.
19
THE COURT:
20
MR. SHAHAN:
All right.
I had attempted one other point
21
with a different witness; in fact, I guess with my client
22
to put in that.
23
24
25
THE COURT:
What is the importance of that
anyway?
MR. SHAHAN:
General order 6.2.
798
1
THE COURT:
Yes, I remember you referred to it,
2
but to be quite honest with you, while I was listening I
3
didn't really think it made a whole lot of points for
4
yourself -- maybe it did, and I just missed it, but
5
what's the point of the whole thing?
6
MR. SHAHAN:
They're out there for a barricaded
7
subject, hostage situation, suicide attempt, and certain
8
procedures that they follow.
9
they're supposed to do is assign one deputy who reports
And that one of
thethings
10
events in chronological order; that wasn't done.
11
suicide, it might be odd to bring five or six machine
12
guns and no psychiatric nurses whatever.
13
purpose.
14
THE COURT:
15
MR. SHAHAN:
For a
That's the only
All right.
I thought that since Mr. McVey is
16
the team leader, that we might be able to put it in
17
evidence through him.
18
THE COURT:
19
MR. SHAHAN:
20
THE COURT:
21
MS. VERGOS:
All right.
That they existed at that time.
Any objection from the State?
I still don't think the proper
22
foundation was laid for it, and I don't believe Deputy
23
McVey can lay that foundation for the Court.
24
25
THE COURT:
Well, I think that as a member of
the Crisis Team, that he's aware of this document, and
799
1
that he has to follow the mandates of this document.
2
if that foundation is laid, I'll allow it in.
3
MS. VERGOS:
So
All right?
I don't think it's necessary to
4
call him.
If that's the case, Judge, I know he's going
5
to say he's aware of the document; he's already indicated
6
that.
7
THE COURT:
8
MR. SHAHAN:
9
All right.
He has already indicated he has
read through it, so if the Court is ruling, if those two
10
questions are answered in the affirmative, the Court is
11
going to allow it, then I'll stipulate that those two
12
questions have already been answered in the affirmative.
13
THE COURT:
All right, I will leave it to Mr.
14
Shahan then.
Either this can be introduced without the
15
testimony of Deputy McVey, or if you want to put Deputy
16
McVey on the stand so that the jury can hear that he's
17
authenticating it, I'll allow you to do it.
18
it up to you.
19
MR. SHAHAN:
20
THE COURT:
21
Curtis back on.
22
he can go.
23
24
25
I'll leave
Just put it in without.
All right, so let's put deputy
No one will have any questions, and then
MS. VERGOS:
Judge, can we release Deputy McVey?
Is that okay if we release Deputy McVey?
THE COURT:
Mr. Shahan?
800
1
MR. SHAHAN:
2
THE COURT:
Yes, sir.
That will be done.
3
and get this marked.
4
unless you have a copy.
5
COURT CLERK:
6
THE COURT:
7
COURT CLERK:
8
9
I don't see that it's marked yet,
No, I don't.
I thought there was one.
For identification.
It was a
10-page document.
THE COURT:
10
COURT CLERK:
11
THE COURT:
12
we're up to No. 11.
13
Let's go ahead
Why did it go?
I don't have to keep it.
You have it back then.
I think
Bring the jury back in.
14
- - -
15
(Jury escorted into the courtroom.)
16
- - -
17
18
19
20
THE BAILIFF:
The jury is present and seated in
the courtroom, Your Honor.
THE COURT:
All right, any further questions by
Mr. Shahan?
21
MR. SHAHAN:
22
THE COURT:
23
MS. VERGOS:
24
THE COURT:
25
MS. VERGOS:
No, Your Honor.
Any questions by the State?
No, Judge.
May this witness be excused?
Yes.
801
1
2
THE COURT:
All right, sir, you're excused.
Have a good weekend.
3
- - -
4
(Witness excused.)
5
- - -
6
THE COURT:
7
MR. SHAHAN:
8
THE COURT:
9
10
What says the defense?
We rest at this time, Your Honor.
All right, before you do that, would
you like this Pasco County Sheriff's Office General Order
introduced into evidence?
11
MR. SHAHAN:
It is a 10-page document.
Oh, yes, Your Honor.
Off the
12
record, we thought we had already stipulated.
13
Honor, I would.
14
15
THE COURT:
MS. VERGOS:
THE COURT:
19
MR. SHAHAN:
20
THE COURT:
MS. VERGOS:
23
THE COURT:
25
Thank you.
Now we rest.
All right, what says the State?
Any
rebuttal?
22
24
There's no objection to that,
Judge.
18
21
All right, so it will be introduced
as Defense Exhibit 10.
16
17
Yes, Your
Yes, Judge.
Please call your first rebuttal
witness.
MS. VERGOS:
Can we just come up for a second?
802
1
THE COURT:
2
3
- - (Sidebar discussion out of the hearing of the jury.)
4
5
6
- - MS. VERGOS:
Defense asked for a judgment for
acquittal.
7
THE COURT:
8
MS. VERGOS:
9
Sure.
Right.
In order to preserve it for appeal,
he has to --
10
THE COURT:
All right, are you doing it?
11
MR. SHAHAN:
Yes, my motion for acquittal
12
based upon all the additional evidence that we put in in
13
the defense.
14
THE COURT:
15
MS. VERGOS:
16
17
20
21
22
23
24
25
Thank you.
- - -
(End of sidebar discussion.)
18
19
All right, that's denied.
- - THE COURT:
State, please call your first
rebuttal witness.
MS. VERGOS:
State would call Jeff Tanner.
- - -
803
1
S T A T E ' S
R E B U T T A L
2
- - -
3
4
S E R G E A N T
THE COURT:
7
THE WITNESS:
8
THE COURT:
Thank you.
State, you may proceed.
- - -
10
14
15
16
17
after
Sir, welcome back.
9
13
T A N N E R,
- - -
6
12
J E F F
being first duly sworn, testified as follows:
5
11
E V I D E N C E
D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
Q.
Good afternoon, Sergeant.
Can you just go
ahead and refresh the jury as to who you are.
A.
My name is Jeff Tanner.
I'm a Sergeant with the
sheriff's office for 23 years.
Q.
Twenty-three years, okay.
And in that 23 years,
have you also had the position of firearms trainer?
18
A.
Yes, ma'am, I sure have.
19
Q.
And how long have you been a firearms trainer
20
21
22
23
24
25
with the Pasco County Sheriff's Office?
A.
Approximately, 10 to 12 years, somewhere in that
neighborhood.
Q.
What does that entail as a firearms trainer?
What do you have to do?
A.
Basically, requires that you have a very good
804
1
knowledge and background and skills, especially
2
safety-related skills in working with and handling
3
firearms.
4
certification course, then I had to attend various
5
academy training courses in which I instructed under the
6
supervision of a senior instructor.
7
of time, then he kind of signed off and certified me, and
8
I received state certification as a State Firearms
9
Instructor.
And I had to go through a 40-hour state
And after a period
10
Q.
Are you a State Firearms Instructor?
11
A.
Yes, State certified.
12
Q.
And am I safe in assuming that you certify all
13
the new guys, or that you teach all the new guys at the
14
sheriff's office?
15
A.
Yes, as a certified member, I do teach any new
16
recruits, and I also have participated in numerous
17
citizen requirements which groups have gone through
18
firearms safety courses.
19
20
21
Q.
Tell us, is there any cardinal rules regarding
firearm safety?
A.
Oh, absolutely every time I teach a class.
22
There are four basic cardinal rules of safety that I
23
teach people so that they know if you follow these four
24
cardinal rules of safety, you will never have an
25
accidental discharge, or shoot anyone, or anything that
805
1
2
3
4
you don't intend to.
Q.
And Sergeant, are these things that are taught
by every firearms instructor in the State of Florida?
A.
Absolutely.
5
MR. SHAHAN:
6
THE COURT:
7
Objection, calls for speculation.
Why don't you rephrase it?
BY MS. VERGOS:
8
Q.
Are these things that were taught to you?
9
A.
Absolutely.
These are the first things they
10
teach you in your basic firearms instructor course, as
11
well as any beginning gun handling course.
12
13
14
15
16
17
18
19
Q.
And did you take this firearms instructor course
by yourself, or were there other people in it?
A.
There were numerous other people in it, other
agency members, certified law enforcement.
Q.
Are these four cardinal rules that are taught to
every firearms instructor in the State of Florida?
A.
Yes, they are, part of the standardized criteria
for firearm safety.
20
Q.
21
A.
Standardized criteria given out by whom?
Given out by Florida Department of Criminal
22
Justice Standards and Training, and they are the State
23
agency that basically dictates what will be taught in
24
every state law enforcement firearm certification course.
25
Q.
Now, are these the same things that would be
806
1
taught by any Pasco County Sheriff's Office firearms'
2
instructor?
3
A.
Absolutely.
4
Q.
What are those four cardinal rules?
5
A.
The four cardiinal rules are all guns are always
6
loaded.
7
handle, if you treat it like it's loaded, you will never
8
have an accidental discharge; you will never shoot
9
yourself, or anyone you don't intend to.
10
And what that means is that every gun that you
The second rule is never point the gun at
11
anything you don't intend to shoot or kill.
12
words, it's called the laser rule in layman's terms.
13
that is as though the gun had a laser that was shot out
14
from the barrel of the gun, if that laser never crosses a
15
body part or any individual, then you're never going to
16
point that gun at another individual unless you intend to
17
shoot them or kill them.
18
In other
And
The third rule is that the finger is off the
19
trigger until you're on target and ready to shoot.
20
Basically, it's self-explanatory.
21
gun, you always keep your finger alongside the trigger
22
guard.
23
you're ready to pull the trigger when you're on target.
24
25
When you're handling a
You never put your finger on the trigger until
And the last is, always be aware of your target,
your best shot, and what lies beyond.
And that,
807
1
basically, indicates that when you're ready to shoot,
2
consider not only your target, but consider your best
3
shot, and if this is your target, where the bullet may
4
hit, and anything beyond that as well.
5
Q.
Now, in your training, do you also teach the
6
safer operation of a firearm?
What I mean by that,
7
Sergeant, do you teach how to check a firearm?
8
A.
Absolutely.
9
Q.
And as far as checking a firearm is concerned,
10
if you are to check for obstructions in the barrel, how
11
would you go about doing that?
12
MS. VERGOS:
13
THE COURT:
14
15
May I approach the witness, Judge?
Yes.
BY MS. VERGOS:
Q.
I'm showing you what's been entered as State
16
Exhibit 1 into evidence.
17
and demonstrate with the firearm to the jury, the proper
18
method and way that is instructed throughout the State of
19
Florida, in checking the barrel of a firearm?
20
A.
If you need to, please go ahead
With a revolver such as this, the first time you
21
handle any gun, whether it's handed to you, or even if
22
it's one that you take out of your own personal
23
collection, or your holster, you pick it up, basically,
24
with a barrel pointed downward or down-range, if there
25
was a down-range, if we're on the range, and the first
808
1
thing you do is, with your left hand with the barrel
2
pointed down-range, you check through first the cylinder,
3
make sure there are no bullets in cylinder, and then you
4
look into this force incoming part of the barrel, make
5
sure there's no round or any obstruction in that part of
6
the barrel.
7
cylinders holding the bullets, if you see no bullets in
8
there, it's empty.
9
proper way to hold a revolver such as this is in one hand
With this, since the barrels are the
You verify that it's empty.
10
with the barrel pointed down.
11
check to make sure it is empty and verify it.
12
13
Q.
And the
And that's how you would
So you never check the barrel of firearm such as
that by pointing that barrel to your face?
14
A.
Absolutely not.
15
Q.
Do you ever check the barrel of firearms by
16
putting your finger inside the cylinder in anywhere near
17
it, and pointing it directly at your face?
18
19
20
21
22
A.
No, that's not an acceptable way of checking
this type of a firearm; absolutely not.
Q.
Is there an acceptable way of checking any type
of firearm?
A.
Only in extreme situations that you're in a
23
position where you've checked it to verify that it's
24
unloaded.
25
that, basically, is certified to do technical work on a
If a firearm is armored, in other words, one
809
1
gun, then he may turn it around and do some work on the
2
front site by holding it with the barrel pointed toward
3
his face, but that would be only verifying the standard
4
procedure that it is unloaded and a safe weapon to
5
handle.
6
Q.
Is it certainly something that we can assume is
7
never taught in any class in the State of Florida by any
8
firearms instructor?
9
MR. SHAHAN:
Objection, calls for speculation.
10
MS. VERGOS:
Judge, I believe this expert can
11
testify as to what his training was along with other
12
training officer that took that class, along with every
13
person he has had contact with in the last 23 years.
14
15
THE COURT:
18
Well, if that's the
question, why don't you rephrase it?
16
17
All right.
MS. VERGOS:
Okay.
BY MS. VERGOS:
Q,
All right, in 23 years, have you ever known any
19
single person to instruct anyone that it is proper to
20
check the barrel of the firearm by pointing the firearm
21
to your face?
22
23
24
25
A.
Absolutely not.
We do not teach that, and it's
never taught in our training courses.
Q.
Now, is it -- one of the general rules of
firearms that, especially in those courses, have you,
810
1
Sergeant, taught the concealed weapons course?
2
A.
Yes, I have.
3
Q.
And in that concealed weapons course and other
4
similar courses, is it basically, a general rule that if
5
you're going to pull, if you're going to arm yourself
6
with a firearm, that you must be ready to take a life,
7
and ready to fire that gun?
8
A.
9
teach.
10
That's correct.
Yes, that's exactly what we
If you draw your weapon, be prepared to use it
then immediately.
11
Q.
Is there any such thing as a safe warning shot?
12
A.
No, we definitely do not teach warning shots.
13
It's too much liability, too much risk involved by
14
harming an innocent party in firing warning shots.
15
Q.
Have you ever known, in 23 years of anyone to
16
teach that you draw a firearm for the purposes of firing
17
a warning round?
18
A.
Absolutely not.
19
Q.
What about alcohol?
20
21
Firearms and alcohol, do
they mix?
A.
Firearms and alcohol definitely do not mix.
22
That's why firearms are not allowed in bars, certain
23
establishments.
24
handle a gun in any manner whatsoever if there's any
25
alcohol that they consumed.
There's absolutely no room for anyone to
811
1
Q.
Is that, basically, something that is taught and
2
instructed on every time that there is a course of any of
3
this nature, carrying concealed weapons course or
4
otherwise?
5
A.
Yes, especially, of course, when you're teaching
6
civilian people who may have had a chance to have
7
consumed alcohol before handling a weapon in certain
8
circumstances; for instance, we teach a homeowner if
9
they've had alcohol with dinner and then later on at
10
night they think they may have a prowler around their
11
house, they should arm themselves after having, you know,
12
several drinks at dinner, not the right response, not the
13
right thing to do.
14
alcohol and guns; mixing alcohol and driving.
15
16
Q.
Okay.
about bullets?
There's absolutely no room for mixing
Let's talk about something else.
How
Do you have any experience with bullets?
17
A.
Yes.
18
Q.
Different types of bullets?
19
A.
Yes.
20
Q.
Hollow point versus ball point?
21
A.
Yes.
22
Q.
Do you have any experience with that type of a
23
firearm .357 Smith and Wesson?
24
A.
Absolutely, I have one myself.
25
Q.
You have one yourself.
Okay.
Is it safe to
812
1
assume that you've used both hollow point ball point
2
bullets in the past?
3
A.
Yes, I sure have.
4
Q.
And can you tell us, do you have any experience
5
with how they would each travel, and what type of
6
penetration power they each would have with that with
7
that weapon?
8
A.
Absolutely.
9
Q.
Okay.
10
11
Can you tell this jury, what is the main
difference between a hollow point and ball point bullet?
A.
A ball point bullet will actually penetrate
12
further, tend to penetrate further, because a hollow
13
point immediately upon impacting, think in terms of the
14
structure of the bullet being hollow, it's going to trap
15
air as it hits and impacts its target.
16
tends to open up, and it tends to spread the bullet out
17
larger.
18
spinning as a project to the target, is also going to
19
mushroom out.
20
whole lot more cutting because of the fragmentation of
21
the bullet as it spreads outward, and then it goes
22
through cutting, much like a cookie-cutter effect, and
23
going in through the target and tends to cause a lot more
24
internal damage, especially going through the human body.
25
Q.
And as such, it
As it does so, and considering the bullet
It creates a whole lot more damage, a
Is it safe to say that hollow point is probably
813
1
a little bit more dangerous than ball point?
2
A.
Absolutely.
3
Q.
Cause more damage on flesh, especially than the
4
5
ball point?
A.
Yes, much more cutting action as it goes through
6
the flesh, therefore, it causes a lot more injury as it
7
goes through lacerations to the body tissue.
8
9
MS. VERGOS:
Thank you, Sergeant.
anything else.
10
THE COURT:
11
MR. SHAHAN:
Any cross-examination?
12
15
Yes, Your Honor.
- - -
13
14
I don't have
C R O S S
E X A M I N A T I O N
BY MR. SHAHAN:
Q.
Sir, you were talking about law enforcement
16
courses in which law enforcement officers are taught;
17
correct?
18
A.
Yes, sir.
19
Q.
Okay.
20
And that point you have specific
knowledge of; correct?
21
A.
That is correct, yes.
22
Q.
And I think you testified they teach you not to
23
shoot warning shots because it's a liability issue also;
24
correct?
25
A.
That is true, yes.
814
1
Q.
And the normal course and circumstances why you
2
would ever use your gun is because you're shooting an
3
alleged criminal; correct?
4
A.
Well, what we also teach people both in the
5
firearms safety courses and in the firearms instructor
6
courses, and in the police recruit courses, is that the
7
only reason you shoot is to eliminate a threat.
8
threat may be --
9
10
MR. SHAHAN:
The
Objection, move to strike as
non-responsive.
11
THE COURT:
12
THE WITNESS:
Overruled.
Go ahead.
The threat in which we tend to
13
eliminate would be threats against your own person or
14
threats against another person.
15
BY MR. SHAHAN:
16
Q.
Do you have a general order at Pasco Sheriff's
17
Office about shooting warning shots or not shooting
18
warning shots?
19
A.
Yes, we do.
20
Q.
What does the general order say?
21
A.
The general order says that we will not shoot
22
23
warning shots under any condition.
Q.
So if someone has shot at you, you're not going
24
to try to shoot them in the knee or leg, you're going to
25
shoot them in the mass to kill them; right?
815
1
A.
When we shoot on the range, we train to shoot
2
center mass.
3
possible target part of the body that you can shoot at.
4
Q.
In other words, shoot for the largest
So the liability issue, if you don't shoot for
5
the mass, the killer -- the criminal might shoot and kill
6
you; right?
7
8
A.
Well, you shoot for center mass because you
shoot to eliminate the threat.
9
Q.
So he doesn't kill you?
10
A.
That is correct, yes.
11
Q.
And you say these hollow point bullets, when
12
they hit flesh, they spread out and they could cause more
13
damage in flesh, right, human flesh?
14
A.
That is correct, yes.
15
Q.
Is there a difference in density in a concrete
16
block versus human flesh?
17
A.
Obviously, there is.
18
Q.
So if a hollow point bullet were to spread out
19
in concrete, it's not going to go as deep into concrete,
20
it's going to be slowed down because it's a hollow point
21
bullet rather than a ball point?
22
A.
Actually, shooting concrete will tend to
23
fragment the bullet; it would not maintain its integrity
24
and fall apart.
25
Q.
So if you shoot a ball point bullet straight at
816
1
a concrete piece, it's going to go in deeper than a
2
hollow point; correct?
3
A.
It would be difficult to evaluate that.
You'd
4
have to compare the density of the block; you have other
5
variables that would be involved that.
6
Q.
We got a block right here we're talking about.
7
Let me bring this into the discussion.
8
block is in evidence.
9
10
MS. VERGOS:
This concrete
It's not in evidence.
BY MR. SHAHAN:
11
Q.
Can you see the density of that concrete block?
12
A.
Yes, sir.
13
Q.
Okay.
14
This is suppose to represent an inside
wall.
15
A.
16
Q.
Okay.
Now, if you took a ball point bullet and shot
17
straight into that wall which is in front of a concrete
18
block, from your experience, how far into that density of
19
the concrete block might that bullet go, or presumably
20
would it go?
21
A.
If you're shooting a ball ammunition?
22
Q.
Yes, sir.
23
A.
I would estimate that you would penetrate maybe
24
25
a half inch to three quarters of an inch at the most.
Q.
Into the concrete block?
817
1
A.
Into the concrete block, yes.
2
Q.
After going through the inside wall?
3
A.
After going through the inside wall.
4
Q.
Half inch to three-quarter inch?
5
A.
That's what I would estimate, yes, sir.
6
Q.
And using the gun that the prosecutor has shown
7
you, and instead of having a hollow point bullet in it,
8
if you shot that straight into the wall which is in front
9
of the concrete block, what would you predict the
10
distance that would into the concrete block?
11
A.
I would estimate less than a half inch.
12
Q.
And why is that, sir?
13
A.
Because of the mushrooming effect of the bullet
14
would actually cause it to fragment; therefore,
15
dispersing the energy outwards as opposed to dispersing
16
it directly in towards the block.
17
18
Q.
make a solid straight depth?
19
A.
20
apart.
21
Q.
22
23
24
25
So as the fragments -- then it's not going to
Correct, and would tend to break the bullet
Is one of the things that is sought by law
enforcement and private training classes is self-defense?
A.
Yes, absolutely.
That's a major part of our
instructional curriculum.
Q.
And are there self-defense classes on how to
818
1
properly use a gun to defend yourself against others?
2
A.
Yes, there are.
3
Q.
Assuming someone is calling on the 911 call
4
Pasco County, there's a burglar in the house, there's a
5
burglar in the house, what's the average respone time by
6
the Pasco County Sheriff's Office?
7
8
9
A.
I don't have the paperwork to do stats on that
specifically.
Q.
I'd have to estimate.
Well, in your training, would be your best
10
estimate, not specific, but a range of time based upon
11
your training experience with the Pasco County Sheriff's
12
Office?
13
A.
From my training and past experience on a
14
burglary in progress, we can have someone there in 30
15
seconds, or it may take as long as three to four minutes.
16
Q.
And if the person is coming through the front
17
door three to four minutes might be too long if the
18
burglar has a gun, right, to take the person's life
19
inside?
20
21
22
A.
It may be too long of a period of time for us to
be there to render some assistance, yes.
Q.
And I understand the summary of your testimony,
23
it's not a good idea to be using a gun when you're under
24
the influence of alcohol; is that correct?
25
A.
That is absolutely correct.
819
1
Q.
But if you've got a gun right next to you, and
2
someone is coming through, are you going to be safer
3
using the gun on the burglar, or are you going to be
4
safer trying to push him or something?
5
6
7
8
A.
I'd say that requires a very different
evaluation.
Q.
You have to weigh a lot of other factors.
More likely that a deady weapon gun is going to
do more than a punch to a burglar?
9
A.
You're asking --
10
Q.
Common sense?
11
A.
You're just asking me for my personal opinion on
12
that?
13
Q.
Yes, sir.
14
A.
When you're intoxicated, I wouldn't handle a
15
weapon, because there's too much of a risk you might
16
possibly shoot yourself.
17
18
19
Q.
Too much of a danger.
Do they issue you guys nightsticks for your
safety?
A.
A version of nightstick that we currently have
20
is called a asp baton, and is an expandable baton that
21
actually carries in a holster usually about this long,
22
and with a flick of the wrist, they expand to about 26
23
inches long.
24
Q.
That's one right there, right?
25
A.
No, sir, that's a flashlight.
820
1
2
3
Q.
Oh, I'm sorry.
You pulled it out; I just didn't
know what it was all about.
A.
About the same size as a baton.
We open it up
4
to about 26 inches long.
They come in two different
5
sizes, but the one the average patrol deputy carries is
6
the longer version, 26 inches.
7
Q.
And they also issue a standard firearm; correct?
8
A.
That is correct.
9
Q.
What's the standard firearm issued by the Pasco
10
11
County Sheriff's Office to its deputies?
A.
Most deputies receive a Glock Model 23, a
12
40-caliber, however, members on the SWAT Team, because of
13
our special assignments, we have a Kimber, Model TLE,
14
which stands for tactical law enforcement, and it's a
15
45-caliber weapon.
16
Q.
If someone is coming straight at you, are you
17
going to use the 45-caliber weapon, or are you going to
18
use the asp thing?
19
20
21
22
23
24
25
A.
Depends on the circumstances.
If I need to use
deadly force, I'm going to draw my weapon.
Q.
So is it fair to say for self-defense purposes,
a gun is better than an asp?
A.
If you need to defend your life, obviously, a
gun would be more effective than an asp.
Q.
And if someone is trying to take your life where
821
1
you just happen to have been to a bar, you're still not
2
going to say oh, well, gosh, I'm should use the asp, you
3
wouldn't use the asp, you would use the gun, wouldn't
4
you?
5
6
7
A.
Well, hopefully, I wouldn't be having a gun
after going to a bar.
Q.
Let me give you another hypothetical.
You're
8
celebrating your 20th wedding anniversary and just had a
9
lot to drink because you had a good time, and as you get
10
to your car, three people with guns are pointing at you
11
and your wife, are you going to use your asp, or are you
12
going to use your gun?
13
MS. VERGOS:
I object.
14
faced with the choice.
15
think it would be speculation.
16
THE COURT:
17
THE WITNESS:
18
THE COURT:
19
THE WITNESS:
20
21
22
I would call it irrelevant.
I
I'll overrule it.
Is it okay for me to answer it?
Yes.
I would speculate that in extreme
situations such as that, I would tend to use a gun.
MR. SHAHAN:
Thank you, sir.
questions.
23
THE COURT:
24
MS. VERGOS:
25
The witness hasn't been
Any redirect?
Just briefly.
- - -
I have no further
822
1
2
3
4
R E D I R E C T
E X A M I N A T I O N
BY MS. VERGOS:
Q.
Deputy, you said if you need to use deadly
5
force, you're going to draw your weapon.
6
that, what do you mean by that?
7
A.
When you say
That in a deadly force confrontation, obviously
8
your best method of preparing yourself, defending
9
yourself, defending others, is to draw your weapon and
10
11
12
13
14
15
16
17
use your weapon.
Q.
So when you were talking about deadly force and
drawing your weapon, are we saying shoot to kill?
A.
Absolutely, we're talking shoot to eliminate the
threat.
Q.
And the threat when you are shooting to
eliminate that threat, is that a warning shot?
A.
Never entails firing a warning shot.
18
It's shooting for effect, shooting to eliminate the
19
threat that's brought against you.
20
Q.
Now, you indicated -- we know you teach the
21
police, the deputies, and the police, and every police
22
recruit.
23
that is taught to civilians, to your knowledge?
24
25
A.
Is this the same thing you teach civilians,
Absolutely.
many civilians.
I have taught that personally to
It's the same standard.
We want them to
823
1
shoot to eliminate the threat that's in front of
2
themselves.
3
use of a firearm.
4
Q.
That is the safest way to go about handling
It's not like two different standards applied to
5
law enforcement versus civilians when you're talking
6
about safety and training of firearms?
7
8
9
A.
No, it's all the same standard, and applies both
to law enforcement as well as the civilian population.
Q.
Okay.
I think you said your resonse time to a
10
burglary in process,
11
minutes?
12
A.
three seconds to maybe three
In a very good day we could be there in 30
13
seconds, that is if you have a burglary near Dunkin
14
Donuts, or somewhere close by.
15
- - -
16
(Laughter)
17
- - -
18
MS. VERGOS:
19
nothing else, Judge.
20
THE COURT:
21
MR. SHAHAN:
Thank you, Sergeant.
Thank you.
Any further questions?
One, maybe two.
22
- - -
23
24
25
I have
R E C R O S S
E X A M I N A T I O N
BY MR. SHAHAN:
Q.
You say the only time you use a gun, draw a
824
1
weapon is to kill or harm; you also use it for target
2
practice; right?
3
A.
Obviously, training and practicing with the
4
weapon, especially one that you will be carrying on duty,
5
or one that a civilian may keep for personal safety is
6
very, very important, and part of preparation for
7
intending to use that weapon for self-defense or defense
8
of another.
9
Q.
What's the closest Pasco County substation to
10
Holiday, Florida, Pasco County Sheriff Substation,
11
Holiday, Florida?
12
A.
Actually, there's a substation located at
13
Holiday Square, which is at the corner of Flora and U.S.
14
19, which happens to be the location where we responded
15
to
16
17
18
dress out and to prepare for this call out.
Q.
Flora and US 19, where is that in relationship
to the Home Depot on US 19?
A.
Exact same intersection.
Home Depot is on the
19
west side of 19, the substation and Holiday Square Plaza
20
is on the east side of 19.
21
22
23
Q.
How many miles is that from Honor Drive where
you went in this case?
A.
Maybe a half a mile at the most.
We loaded into
24
the vehicle after we were totally dressed out, and they
25
gave us a ride up the street to Flora Drive to the
825
1
location of Honor.
2
Drive to walk up to the location of the Defendant's home.
3
4
Q.
We deployed from Flora and Honor
Did you respond at a normal rate of speed, or
were you speeding?
5
A.
When I responded to this call?
6
Q.
Yes, sir.
7
A.
I typically drive just a little bit above the
8
speed limit when I'm on the way to these.
9
important that I arrive safely, so I'm there to take care
10
11
12
13
14
It's more
of business than drive radically fast.
Q.
So how fast did you go from the substation to
this location on that evening?
A.
From the substation to Honor Drive, you're
talking?
15
Q.
Yes.
16
A.
Oh, I was riding in a vehicle at that point and
17
the time, because I had my submachine gun and my vest on,
18
my helmet.
19
had a lot of SWAT guys packed into a utility vehicle.
So no, we proceeded rather slowly because we
20
Q.
What was your estimated speed?
21
A.
I would estimate maybe 30 miles an hour.
22
Q.
How long did it take you to get there?
23
A.
Matter of a minute or two.
24
Q.
One last question.
25
pistols have laser lights?
Did the Glock Model 23
826
1
2
A.
The ones that our patrol deputies carry, no,
they do not have laser lights.
3
Q.
How about the Swat Team?
4
A.
No, sir, our handguns, and the handguns we
5
carried on that day did not have laser lights.
6
Q.
They had white lights; right?
7
A.
Well, my handgun doesn't have white lights -- at
8
9
10
11
12
13
14
the time didn't have white lights.
Q.
Okay.
It's been a long week.
weapons have white lights?
A.
No, the MB-5 submachine gun, yes, it had a white
light in the Ford stock.
MR. SHAHAN:
Thank you, sir.
THE COURT:
16
MS. VERGOS:
17
THE COURT:
18
MS. VERGOS:
Any follow-up questions?
No.
May this witness be excused?
Yes.
19
- - -
20
(Witness excused.)
21
- - -
22
THE WITNESS:
23
THE COURT:
25
No further
questions.
15
24
Did the other
Have a good weekend, Your Honor.
Any further rebuttal witnesses by
the State,
MR. VERGOS:
State has no further witnesses.
827
1
State rests.
2
THE COURT:
3
MR. SHAHAN:
4
THE COURT:
5
Any surrebuttal by the defense?
No, Your Honor.
All right, let's take the jury out
for a minute, and we can talk about a couple of things.
6
- - -
7
8
THE BAILIFF:
The jury is out of hearing of the
Court.
9
THE COURT:
10
Defense has rested.
11
any other evidence that you would like Mr. Shahan to
12
introduce that has not been introduced up to this point
13
that we haven't talked about already?
14
15
already?
Now, Mr. Daiak, the
Are there any other witnesses, or
THE DEFENDANT:
16
17
All right.
That we haven't talked about
No.
THE COURT:
Are you satisfied with the help and
advice of Mr. Shahan in this trial?
18
THE DEFENDANT:
I'm not sure.
I saw things that
19
I thought he missed.
He hit some good points, and other
20
points that I thought were obvious to be asked, he didn't
21
ask.
22
THE COURT:
All right, what did he miss?
23
THE DEFENDANT:
For instance, this latest
24
witness, professional memory.
25
are trained.
He's describing how police
828
1
THE COURT:
2
THE DEFENDANT:
3
4
Okay.
How civilians are trained for
self-defense at home, it's a different level of training.
THE COURT:
Well, I thought that I heard the
5
testimony that they're all trained the same.
And he
6
mentioned all of the different classes, and how
7
consistent they are, not just law enforcement, but every
8
variety of individual who does take this class.
9
course, anyone who gets a concealed weapons permit, has
10
to take this class, and anyone who buys a firearm ought
11
to take it, so we're talking about everyone.
12
testimony that I heard.
13
THE DEFENDANT:
And, of
That's the
So anything else?
Again, concealed weapons permit,
14
it's only 50 shots in 10 hours.
15
training is what, 40 hours?
16
home civilian self-defense, people that don't carry a
17
firearm on their person at all times.
18
THE COURT:
He said police pistol
There's a difference for
All right, so are there any other
19
witnesses that you would like called in this case that
20
have not been called?
21
22
THE DEFENDANT:
I think just about everybody
who was involved.
23
THE COURT:
I think you're right on that.
24
THE DEFENDANT:
25
THE COURT:
Yes, sir.
All right, so your answer is no,
829
1
correct?
2
THE DEFENDANT:
3
THE COURT:
Correct.
All right, now, how long is everyone
4
going to want for closings?
5
going to want?
6
7
MR. SHAHAN:
Mr. Shahan, how long are you
Probably less time than we did
today. I wouldn't say more than 45 minutes.
8
THE COURT:
9
MS. VERGOS:
10
Forty-five minutes?
THE COURT:
All right.
Yes.
That's fine.
All right.
11
I seriously doubt the jury is going to want to come back
12
tomorrow.
13
problem?
I'll give them that option.
Anyone have a
I don't think they're going to say that.
14
MS. VERGOS:
Whatever the jury says, Judge.
15
MR. SHAHAN:
I'm kind of concerned for both
16
sides.
17
you're saying, but --
18
They're probably pretty tired.
THE COURT:
I know what
Why don't we ask them.
Now, there
19
is some case law that says that you shouldn't have the
20
jury working past 2:00 or 3:00 or 4:00 in the morning.
21
MR. SHAHAN:
22
THE COURT:
Right.
There was a Judge in Pinellas County
23
who would do that on a consistent basis.
It's only 5:00
24
in the afternoon.
25
also know they want to get this over with, so why don't
I know it's been a long week, and I
830
1
we bring them in and ask them, the give our court
2
personnel a break.
3
they want to take a quick dinner break, and then get
4
going after we do that.
5
MR. SHAHAN:
6
THE COURT:
What we could do, I'll ask them if
That's a great idea.
All the court personnel thinks
7
that's great, but I'm going to leave it up to the jury
8
whether they want to.
9
We are going to take a break, it's either
10
going to be a ten-minute one, or 45 minute one, or an
11
hour, depending on what they want to do.
12
MS. VERGOS:
Okay.
13
MR. SHAHAN:
I'm just concerned that they're so
14
tired, they're just going to make a quick decision, which
15
could be beneficial to someone and not beneficial to
16
someone else, obviously.
17
18
19
THE COURT:
surprising.
They actually look alert and awake,
Go ahead and bring them in.
THE DEFENDANT:
Your Honor, when you ask them,
20
when you give them a choice, could you tell them that
21
it's going to be another two hours, it can be another
22
three hours; you have no idea?
23
THE COURT:
Right, I'll let them know.
24
- - -
25
(Jury entered the courtroom.)
831
1
- - -
2
THE COURT:
All right, members of the jury,
3
that's all the evidence that you're going to hear in this
4
case, and there are several options of what we can do
5
now.
6
inconvenienced by this whole thing, I would like to try
7
to accommodate you as much as possible, if there's a
8
consensus about what it is everyone wants to do.
And since you're the people who are most
9
We still have closing arguments to do, and I
10
just asked the attorneys how long they need for closing
11
arguments, and they agree to 45 minutes for each side.
12
The State will go first, and then the defense, and then
13
the State will have an opportunity for a rebuttal
14
argument; so that is an hour and a half; right?
15
not so tired I can't add correctly.
16
instruct you on the law, and it's about that thick.
17
how long does that normally take about, a half hour?
18
MS. VERGOS:
19
THE COURT:
And I'm
Then I have to
And
About that.
There's one Judge that takes them
20
about an hour and a half; I think it takes me about half
21
an hour.
22
23
24
25
MS. VERGOS:
You, Judge, it takes about 30, 35
minutes.
THE COURT:
Okay.
So we're up to two hours.
And then you're going to have to deliberate, all right?
832
1
So it's now 5:05, and here's the three possibilities, and
2
we'll do whatever it is you want.
3
short comfort break now, and then we could begin closing
4
arguments and get right through.
5
One is we can take a
The second possibility is to give you an
6
extended break, and you can go and get dinner, and we can
7
make that as long as you would like.
8
for 45 minutes or an hour, and you can regenerate your
9
bodies.
10
That will either be
And the third possibility is that we just give
11
up for the evening and we come back in the morning.
12
normally jurors hate the third possibility, but this
13
could be an exception.
14
And
Who would like to just take a brief 10-minute
15
break, and then get started with the closing arguments?
16
Do I have hands for that?
17
18
- - (Brief discussion amongst the jury.)
19
- - -
20
THE JURY:
21
THE COURT:
We're ready night now.
It may be a bit inconvenient for you
22
when you're always taking those breaks, but we've been in
23
here working the whole time, so we're going to need a
24
little bit of a break, all right?
25
minute break, and then we shall begin with closing
So we'll take a 15-
833
1
arguments, and then we'll probably take a short break
2
after that, and then I'll instruct you on the law, and
3
then you will deliberate.
4
UNIDENTIFIED JUROR:
5
THE COURT:
Vending machines?
The vending machines are open,
6
obviously; the cafeteria is closed, but the snack
7
machines are not.
8
after the final instructions.
9
10
11
And the alternate will get to go home
So that's why the alternate is going for today
as opposed to tomorrow.
All right.
So smart.
So we'll be in recess for fifteen
12
minutes, and please be in the jury room up here in
13
fifteen minutes.
14
- - -
15
(Short recess.)
16
- - -
17
(Court reconvened out of the presence of the jury.)
18
- - -
19
THE COURT:
Now, for the record, we've gone over
20
jury instructions numerous times, and we have our final
21
copy of the jury instructions.
22
objection to any of the jury instructions that will be
23
given in this case?
24
MS. VERGOS:
25
THE COURT:
State?
No.
Defense?
Does anyone have any
834
1
MR. SHAHAN:
No, I have no objection to the
2
instructions that you've decide to give, but I still have
3
a request that you give that additional instruction as
4
per the cases that we've provided, that the State has the
5
burden of proving that he did not act in self-defense.
6
THE COURT:
All right, and the case you're
7
relying on is Adams versus State, which is 727 So. 2d.
8
997.
Is that right?
9
MR. SHAHAN:
10
THE COURT:
Yes, sir.
Now, the facts are that the
11
Defendant was relying on self-defense, and was saying
12
that he was acting to defend himself against a forcible
13
felony.
14
felony was.
15
We're going to define aggravated battery and burglary.
And then the Court had to define what a forcible
That's exactly what we're going to do here.
16
However, in the Adams case, the instruction that
17
was given was the instruction of aggravated taking, which
18
was right out of the standard jury instructions which
19
said that it must be proved beyond a reasonable doubt for
20
aggravated taking, the following elements.
21
therefore, that shifted the burden of proof to the
22
defense to prove the aggravated stalking, which was the
23
forcible felony beyond a reasonable doubt.
24
25
So,
And because all of us are smarter than that, we
didn't do that, and what we did was, we said the crime of
835
1
aggravated battery contains the following two elements,
2
and the crime of burglary contains the following three
3
element, s.
4
were all smart enough not to put in there that the State
5
or the defense, or that the crime itself had to be proved
6
beyond a reasonable doubt.
7
problem.
8
And then the elements are listed.
So we
So we don't have that
And we, furthermore have an instruction that if
9
in your consideration of the issue of self-defense you
10
have a reasonable doubt on the question of whether the
11
Defendant was justified in the use of deadly force, you
12
should find the Defendant not guilty.
13
So, obviously, if there is a reasonable doubt,
14
then the jury must find the Defendant not guilty.
15
obviously, then the State has to prove it beyond a
16
reasonable doubt, because if there is a reasonable doubt,
17
they must find the Defendant guilty.
18
record, state that the Florida Supreme Court knows what
19
it's doing, and when they approved the jury instructions,
20
that they do adequately state what the burden of proof is
21
for justifiable use of deadly force.
22
23
So,
So I will, for the
All right, other than that, are there any other
objections to any of the jury instructions at all?
24
MR. SHAHAN:
25
THE COURT:
No.
All right, very good.
836
1
Those are just the originals.
2
the verdict, too?
3
no objection to the verdict forms.
4
Have both sides gone over
Why don't you all make sure you have
MS. VERGOS:
Here they are.
Just for the record, the State
5
doesn't believe that Sub C, in this one, and two is an
6
appropriate option.
7
it, and I know that that's the ruling of the Court.
8
There are also -- they don't actually say the same
9
thing -- they say the same thing, but it's beyond a
But I know the Court has discussed
10
reasonable doubt so I know we were going to try and do
11
them in conformity.
12
THE COURT:
13
MS. VERGOS:
All right.
The Defendant did not actually
14
possess a firearm, or actually possess a firearm, and Sub
15
C says the Defendant did not actually possess or
16
discharge a firearm.
17
THE COURT:
All right, so can you reverse the
18
aggravated assault and have it consistent with aggravated
19
assault with law enforcement officer?
20
COURT CLERK:
21
THE COURT:
22
MS. VERGOS:
Yes, page 2, to match page 1.
Yes.
Judge, for the record, the State
23
would object to those as being put as options on the
24
verdict form.
25
THE COURT:
How about the defense, any objection
837
1
to any of the verdict forms,
2
MR. SHAHAN:
3
THE COURT:
4
MR. SHAHAN:
No.
All right, thank you.
Your Honor, before they come in, I
5
just want to make a record, and I know you gave the three
6
options, and I know they picked the particular option of
7
just going straightforward, but I'm very concerned that
8
this jury, you know, by the end time they end and hour
9
and a half, and our arguments, it gets close to 9:00.
10
They're just going to say enough is enough, and they want
11
to go home, and I think that could badly impact my
12
client.
13
THE COURT:
And if we made them come here on
14
Saturday, do you think they would want to take a whole
15
lot of time on a Saturday?
16
MR. SHAHAN:
No, that's why I really haven't
17
finished my review of new things.
18
give the option of Saturday morning Monday.
19
20
21
THE COURT:
My suggestion is we
Well, I have pretrials all day
Monday and the afternoon, so I cannot do it on Monday.
MR. SHAHAN:
I understand, Judge.
I'm
22
objecting, I'm objecting.
It's 5:38, and I think it was
23
very good.
24
all these notes, but I'm very concerned that they're just
25
going to make a quick decision, and not fully consider
I allowed them to take notes, and they have
838
1
all the evidence and all the defenses, and all the
2
exhibits, and try to get out of here early.
3
going to prejudice my client, so I'm just objecting;
4
making my record.
5
THE COURT:
All right.
And it's
I'm
On the record, I did
6
give them the options, and that's one they chose.
So
7
we're not forcing them to do that.
8
all of the court personnel were routing for option No. 2,
9
which would allow us to go and have some dinner, but
As a matter of fact,
10
that's not what they wanted to do.
11
what they want to do.
12
food, we will give them food and whatever it is they
13
need, we will provide for them.
14
THE BAILIFF:
15
THE COURT:
16
So we're going to do
If at some point, they ask for
Yes.
Let's go ahead and bring the jury
in.
17
- - -
18
(Jury escorted into the courtroom.)
19
- - -
20
THE COURT:
Both the state and the Defendant
21
have now rested their case.
The attorneys will present
22
their final arguments.
23
attorneys say is not evidence, however due pay close
24
attention to their arguments.
25
you in understanding the case.
Please remember that what the
They are intended to aid
Each side will have equal
839
1
time, but the State is entitled to divide this time
2
between an opening argument and a rebuttal argument after
3
the defense has spoken.
4
5
6
Ms. Vergos, you may proceed with your closing
argument.
MS. VERGOS:
Thank you, Judge.
7
- - -
8
5:30 p.m.
9
10
S T A T E' S
C L O S I N G
A R G U M E N T S
11
12
MS. VERGOS:
I know, members of the jury, as
13
people, we have certain expectancies.
14
certain expectations, and as citizens of the United
15
States, and of the State of Florida, we have certain
16
expectations from that, too.
17
expect that at the end of the day, we go home.
18
end of our workday, we get to go home safely; we get in
19
our cars; we driver away.
20
Everyday we have
We expect and we've come to
At the
We get to our house, unlock the door, and we go
21
home safely.
We expect that if there's a problem, that
22
we can call 911.
23
expect that law enforcement will come; we expect that law
24
enforcement will help; we expect that law enforcement
25
will take care of the situation.
We expect that 911 will work.
We
Those are expectations.
840
1
Members of the jury, law enforcement, those
2
officers, they don't really expect to go home at the end
3
of the day safely, they hope that they'll get to do that.
4
They pray that they'll get to do that, but it doesn't
5
really become an expectation for them.
6
if they get a call in the middle of the night, that
7
they'll have to get up; that they'll have to get dressed;
8
that they'll have to get out, and that they'll have to go
9
to wherever it is they are needed.
10
They expect that
They inspect that if they get a call while
11
they're working, that they have to respond.
12
they have do is respond quickly, efficiently, and that
13
they are to do whatever it is it takes to make that
14
situation safe.
15
provide that safety for us; they provide that protection
16
for us.
17
they do it everyday without question, without fail; they
18
keep us safe.
19
And that
And they provide that; they do.
They
Certainly not for the money that they make, but
Isn't it time that we do the same for them?
20
Shouldn't we also keep them safe?
Shouldn't we be the
21
ones to say some things are just not acceptable, some
22
things are just not appropriate.
23
ones to say you should expect to get home at the end of
24
the night, not just hope for it, but to expect it?
25
we are going to do the best we can to get you there.
Shouldn't we be the
And
841
1
That's what it's really all about, members of
2
the jury.
3
deputies that responded to that man's house in the early
4
morning hours of September 5th, they didn't go there to
5
protect themselves, they didn't even go there to protect
6
Donna Vaillencourt, they were went there to protect him,
7
from himself, but to protect him, because that is what
8
they do.
9
Because those four officers, those four
We get upset when we get pulled over, when we
10
get a ticket -- I do.
11
voided an accident that I was about to get to; that may
12
have avoided a drunk driver that was about to hit me.
13
I think of that, and I think about when I call 911.
14
But you know what?
That may have
Thirty seconds it would have taken to get there,
15
thirty seconds.
16
believe here today that he was so afraid, but he never
17
picked up that phone.
18
was, I believe his words were "scared shitless".
19
didn't make that call, those three numbers, 911.
20
So
He didn't call 911.
He wants you to
He wants you to believe that he
But he
And members of the jury, I wasn't asking him
21
about whether he made the call before he fired the shots,
22
did you make the call after?
23
get out and go burglarize some other person's house --
24
well, it's been a long, long week, and I understand that
25
everybody here is tired, and probably want me to get
Ideally, as long as they
842
1
through these last closing arguments pretty quickly, and
2
I'll do my best, but there are a couple of really
3
important things that I want to talk about.
4
In a little while, the Judge is going to give
5
you the law in the case, and it's not that lengthy,
6
because each page isn't actually full, so don't worry
7
about that, but he will give you the law in the case.
8
And what you'll learn in gist a little bit is that every
9
crime has what's called a lesser included offense.
10
The Defendant in this case has been charged and
11
has been proven to be guilty of the aggravated assault on
12
law enforcement officer on four counts, but think of it
13
this way.
14
the very top is what he's been charged with, aggravated
15
assault LEO, law enforcement officer.
16
tell you that a lesser included of that is aggravated
17
assault without the law enforcement aspect of it.
18
lesser included of that is assault LEO without the
19
aggravated part, and the lesser included of that is
20
simple assault.
21
This is the way the lessors work, okay?
Here's the distinction.
At
The Court will
The
Aggravated assault LEO,
22
what we've charged, and what I submit to you the State
23
has proven beyond any reasonable doubt, but that
24
aggravated assault LEO, the difference between that and
25
the assault and the aggravated assault, is law
843
1
enforcement.
2
assault LEO, that's what he's charged with in this case.
3
The lesser is the aggravated assault.
4
distinction between the lesser and the top charge that
5
we've charged, is whether there was a law enforcement
6
officer was involved, whether the victim in this case was
7
a law enforcement officer, and whether the Defendant knew
8
that.
9
So this is the way it works.
Aggravated
The only
The lesser of that, the assault LEO, the only
10
difference there is the aggravated part.
11
learn is that the aggravated part is the part that
12
includes a deadly weapon.
13
used?
14
there was no law enforcement and no deadly weapon.
15
that's, basically, the way it works.
16
What you'll
Was there a deadly weapon
And below that is the assault.
That requires
So
Okay?
If you find that the Defendant, and I submit to
17
you that you should, but if you find that the Defendant
18
one, used a deadly weapon and, two, that the assault was
19
committed on a law enforcement officer, then this is it,
20
right here.
21
start here, you start where the top offense is, and only
22
if you don't find this, do you go anywhere else.
23
this, that simple assault, you would have to find there
24
was no deadly weapon and no law enforcement.
25
What the Judge will tell you is that you
To find
Let's talk about deadly weapon for a minute.
844
1
What is a deadly weapon?
2
a deadly weapon is any weapon that is used in a manner
3
likely to cause death or great bodily harm.
4
talking about a gun.
5
Defendant himself, although he tried, can tell us that
6
that is not a deadly weapon.
7
members of the jury.
8
designed to cause death or great bodily harm.
9
that gun.
10
What the Judge will tell you is
We're
There is no doubt, not even the
It's a deadly weapon,
It's a gun; it is created and
He fired
There is no other purpose for that.
Now, Counsel has made a very big deal in asking
11
every witness whether the bullet went outside the window,
12
or it went outside the door, or went anywhere of that
13
nature.
14
assault issue, you will see that at no point does it say
15
that the bullet has to hit somebody.
16
definition of the aggravated assault; there is no
17
contact.
18
different type of situation.
19
When you see the instructions on that aggravated
In fact, that's the
If there was contact, we'd be hearing a whole
So the fact that the bullet didn't go out the
20
window, or didn't hit somebody, or didn't kill anybody,
21
doesn't mean that this didn't happen.
22
do with whether this happened.
23
to believe he didn't intend to kill anybody; that's fine.
24
You won't find that intending here.
25
find that he intended to kill anybody; it's not required.
It has nothing to
The Defendant wants you
You don't have to
845
1
If he did, again, we'd be here on a completely different
2
type of charge, on a completely different type of case.
3
An aggravated assault, and I'll tell you exactly
4
what it is means, and this is what we have to prove to
5
you.
6
unlawfully threatened either by word or act, to do
7
violence to the deputy.
8
die, and two gunshots.
9
violence.
One, that the Defendant intentionally and
What is that?
Well, die, die
That's threatening to do
At the time the Defendant appeared to have the
10
ability to carry out the threat, he had a loaded .357
11
gun; he had the ability to carry out the threat.
12
of the Defendant created in the mind of the deputy a
13
well-founded fear that the violence was about to take
14
place.
15
The act
Well, yes, each one of them got on that stand
16
and told you on the stand the fact that I'm wearing a
17
uniform and a badge, and I have a gun on my belt means
18
nothing.
19
him.
20
then you'll learn that a deadly weapon is anything that
21
is used or threatened to be used in a way likely to
22
produce great bodily harm that we talked about, and a gun
23
is a deadly weapon.
And I asked
The assault was made with a deadly weapon.
24
25
I can die just like anybody else.
Five.
officer.
Yes.
And
Deputy was at the time a law enforcement
And six, the Defendant knew the deputy
846
1
was a law enforcement officer.
2
the assault, the deputy was engaged in a lawful
3
performance of his or her duties.
4
break in, we know that for sure, they were there to
5
protect him.
6
deputies?
7
And 7th, at the time of
They weren't there to
Did the Defendant know that they were
And that's, basically, what it comes down to,
8
members of the jury.
That's the thrust of this entire
9
case; that's what you're going to have to decide, because
10
they were clearly deputies, he was clearly armed with a
11
deadly weapon, so did he know that they were deputies.
12
He wants you to believe that he didn't; he wants you to
13
believe -- but he wants you to believe a lot of other
14
things, too, doesn't he?
15
You know during jury selection, we talked a lot
16
about all the things you have to leave out, all the
17
things you can't bring into the courtroom, all the things
18
that you're not allowed to consider, all the things that
19
you have to kind of just put aside.
20
we did not tell you that you have to have with you is
21
your common sense.
22
we need you to use it; because the law requires that you
23
use it.
Why?
The one thing that
Because you need it.
Because
What does common sense tell you?
24
He wants you to believe that he was dead asleep,
25
didn't have a clue in the world, got up and fired warning
847
1
shots.
2
everything, warning shots.
3
will tell you should never be fired, shots that don't
4
exist outside of the movies.
5
that he doesn't have a clue who they were.
6
those voices; in fact, he heard them so clearly he
7
thought they were inside his house not outside, inside
8
his house.
9
He's a pretty good expert with guns, training and
Warning shots.
Any trainer
He wants you to believe
He heard
That's how close those voices were.
Too close for comfort.
Not his comfort.
He was
10
mad; he had been drinking; he didn't want to deal with
11
it, and that's the way he reacted, and that, members of
12
the jury, is unacceptable.
13
it time that we make sure that they get home safely too?
14
It's just unacceptable. Isn't
Counsel is going to talk to you for a little
15
while, and then I'll come back and talk to you gain.
16
Like I said, I'm going to try and keep things short.
17
know you know the facts, everybody has been taking notes.
18
I know that you've heard all the evidence, and I'm not
19
going to go through every single detail with you.
20
trust that you, when you go back there, using your common
21
sense, and after reviewing everything that's been given
22
to you, are going to know exactly without any doubt that
23
on September 5th of 2004, that man did commit four
24
aggravated assaults; that man did intentionally threaten
25
bodily harm to those four officers, and that at that
I
I
848
1
time, he was using a deadly weapon, and had no doubt who
2
they were.
3
enforcement, and had no doubt that he was in no harm and
4
no jeopardy whatsoever.
5
6
He had no doubt that they were law
THE COURT:
All right, thank you Ms. Vergos.
Mr. Shahan, you may proceed with your closing argument.
7
8
- - D E F E N S E
C L O S I N G
T O
T H E
J U R Y
9
10
MR. SHAHAN:
Thank you, Your Honor, Ms. Vergos,
11
ladies and gentlemen of the jury.
12
the opening voir dire questions and instructions from the
13
Court, the defense has no burden of proof whatsoever in
14
this case.
15
produced no exhibits, produced no demonstrative exhibits;
16
Mr. Daiak could have sat there just like he is now, and
17
never said a word.
18
As you remember from
The defense could have just sat there and
The total burden in this case is with the
19
prosecution to prove each and every element of all the
20
particular heinous crimes that they have suggested Mr.
21
Daiak committed.
22
aggravated assault on a law enforcement officer, that he
23
purposefully, in Count One, attempted to assault Deputy
24
Meizo.
25
intentionally attempted to commit an aggravated assault
And they designated four counts of
And in Count 2, that he purposefully and
849
1
on Deputy Mitchell; that he purposefully and
2
intentionally attempted to commit an aggravated assault
3
on Officer Barrington.
4
essentially attempted to commit an aggravated assault on
5
Officer McVey.
6
And the next count, and he
And the way the burden is set up, and the way
7
the procedure is set up is this is my opportunity to talk
8
to you.
9
opportunities, same amount of time, forty-five minutes,
It's like the Judge indicated she has two
10
but because she has the burden of proof, she's allowed to
11
argue one half, and then after my argument, argue again.
12
That's the reason for that.
13
And you took an oath in this case, and I'm sure
14
going to respect the oath.
In fact, I know that it's a
15
very serious jury, because you-all asked to take notes.
16
Not every jury asked for that, so I know that you were
17
taking -- you were taking your duty seriously, and you
18
realize you have a serious case here, serious
19
allegations.
20
ashamed to say, I'm not going to try and hurry this
21
trial, I'm going to try and give you all the information
22
that I think is necessary for you to do your duties, and
23
also to make sure that the opportunity that Mr. Daiak
24
presented his evidence.
25
jury of his peers, because he wanted the collective
I appreciate that.
So, therefore, I'm not
He pled not guilty, asked for a
850
1
conscience of the community to review all the evidence
2
and consider not only whether they've proven all the
3
seven elements that they need to prove for aggravated
4
assault, or any other crime, but also that you consider
5
that there was a type of assault, aggravated, on a law
6
enforcement officer or otherwise, that the issue of
7
self-defense in America, in Florida, under the laws of
8
this state is preserved, and that Mr. Daiak doesn't lose
9
the right to defend himself just because the intruders,
10
he didn't know who they were, turned out to be law
11
enforcement.
12
And, of course, in every case the State attorney
13
works hard to prove their case.
14
not only do they have alleged victims, but they have team
15
members that are the alleged six victims who everyday of
16
of the week, five days a week, 300 and some days a year,
17
the State comes forward and they use law enforcement as
18
their team members to find other people in the community
19
guilty; so this is one of their heightened type victims.
20
In this circumstance,
And just because of that, I don't think that
21
anybody should lessen the rights and the duties that they
22
have, or the opportunities America gives for a person
23
that's not guilty to be able to show and prove that the
24
State has not proven the elements of the case.
25
Now, it's not a simple case.
Let's not just
851
1
hurry along.
2
is a serious case, and they have serious elements to
3
prove, and the Judge will give you instructions that each
4
side has had the opportunity put on evidence, and the
5
Judge will give you instructions.
6
be an instruction on aggravated assault on law
7
enforcement officer for each and every count to respect
8
the rights of my client as to his actions, as to each
9
alleged victim and their rights.
10
It's Friday evening;
let's go home.
This
And there's going to
The Judge is going to tell you to prove the
11
crime of aggravated assault on law enforcement officer as
12
to Counts 1, 2, 3, or 4, the State must prove the
13
following seven elements beyond a reasonable doubt.
14
first three elements define themselves.
15
different when he's reading this through is going to be
16
that you're going to have the name of the officer
17
involved.
18
there.
19
The
The only thing
Count One, Deputy Meizo, and it goes from
Number one, you're going -- the Judge's
20
instruction will be that you have to show, they have to
21
show, excuse me, the prosecutor has to show -- I'm tired
22
too, so I apologize.
23
Francis Dyaik Jr. intentionally and unlawfully threatened
24
either by word or act to do violence to Deputy Meizo,
25
Mitchell, Barrington, McVey.
The prosecutor has to show that Joe
852
1
Now, at the time Joe Daiak Jr. appeared to have
2
the ability to carry out the threat.
3
very important, that the act of Joe Francis Daiak Jr.,
4
created in the mind of Deputy Meizo, or Mitchell, or
5
Barrington, or McVey, a well-founded fear that the
6
violence was about to take place.
7
just in there for no reason.
8
well-founded fear that the violence was about though take
9
place.
10
Three, and this is
Well-founded is not
The's an additive, a
Four.
The assault was made with a deadly
Five.
Deputy, in this case I'm reading from
11
weapon.
12
Count One, Meizo, was at the time a law enforcement
13
officer.
14
important.
15
and 6 are the most important things that I don't think
16
they've proven in this case.
17
Jr. knew Deputy Meizo was a law enforcement officer, and
18
No. 7, at the time of the assault, Deputy Meizo, or
19
whoever was engaged in the lawful performance of his or
20
her duties.
21
It will be the other names.
And here's most
No. 6, I'm telling you, basically, that 1, 3,
No. 6 is that Joe Daiak
Now, it continues on to say that the Court now
22
instructs you that a deputy with the Pasco County
23
Sheriff's Office is a law enforcement officer, and then
24
here's another key part, it states a weapon is a "deadly
25
weapon" if it is used or threatened to be used in a way
853
1
likely to produce deaths or great bodily harm.
2
important in this case.
3
it is used or threatened to be used in a way likely to
4
produce death or great bodily harm.
5
This is
A weapon is a deadly weapon if
I don't believe the evidence has shown that it
6
was in this case.
Now, going back to No. 1, in terms of
7
the facts in the case, or lack of facts, and I believe
8
you're going to find a reasonable doubt that they've
9
proven the highest charge here.
And the prosecutor is
10
right.
11
aggravated assault on law enforcement officer , what
12
they've charged and the lesser charge aggravated assault,
13
if you don't think he knew it was a law enforcement
14
officer, but you think after you hear all the evidence
15
and the law, that an aggravated assault on somebody took
16
place, or not guilty.
17
The Judge has given you an opportunity to, as to
And I think you should find a reasonable doubt,
18
reasonably from all the evidence that was presented
19
the arguments, all of the demonstrative evidence, from
20
the lack of evidence, conflicts in the evidence, and
21
forensic evidence that can't be shaded because you have
22
an interest in the case, can't be shaded because you want
23
to make a point in this case.
24
And to start out about intentionally and
25
unlawfully threatened either by word or act to do
all
854
1
violence to these deputies knowing that they were law
2
enforcement.
3
officers themselves have created reasonable doubt as to
4
whether or not my client had an opportunity by
5
observation through sight, sound, et cetera, to know that
6
these people that he heard outside his door were going
7
bang, bang, bang, and that he thought was just inside his
8
door, were law enforcement.
9
Now, what have we got here?
Even the
First of all, the law enforcement officers
10
themselves admit that when they saw things, what they
11
thought were muzzle flashes, they could not see the
12
individual.
13
flash that filled the room.
14
with me on the stand that they couldn't see Mr. Daiak,
15
that he probably couldn't see them.
16
A couple of them described as it as camera
Okay.
Two of the four did agree
First of all, if he couldn't see them,
17
and they're in their uniforms, obviously, you know it's
18
law enforcement pretty much occasionally at the --
19
they're got some of these guys that are like security
20
guards, and they've got all the fancy stuff, and they're
21
got some -- without a gun -- you might think they look
22
like law enforcement, but anyway there's no evidence or
23
evidence you should use or rely on with any certainty
24
that this man knew they were law enforcement by sight.
25
They didn't see him, he said he didn't see them.
855
1
And I'm not faulting anybody about that, but
2
that's where we're at.
3
innocent until proven guilty, and they got to prove each
4
and every one of these elements.
5
charge, very serious repercussions.
6
The constitution says you're
Now, how about sound?
This is a very serious
These officers, and we do
7
respect that they were there for one of three purposes.
8
They all testified differently.
9
were in because they got a call that there was a
One of them said they
10
barricaded man in his house; another one said they were
11
there because they got a call there was domestic
12
violence, and a third set of reasons is someone is there
13
threatening to kill himself.
14
We respect they came out on a call.
There's no
15
lack of respect on that point, but they all thought they
16
were there for different reasons.
17
reasons as significant as they were, no one used a
18
megaphone, a P.A. system, or any kind of device before
19
the shots.
20
after they backed up, they put a squad scar in the middle
21
into the street way or whatever, and they used a P.A.
22
system to try to get him out.
23
matters or whatever; what's the best way or the bad way.
24
It's about what is the truth that we've seen; whatis the
25
actual facts?
And all of those
McVey admitted that after the shots, and
It's not about civil
856
1
The actual facts are they used no amplification
2
whatsoever.
Mr. Daiak is in the back bedroom, there's a
3
hurricane going out there, and there was different
4
testimony about gusts and whatever.
5
winds were gusty, some others said it was windy, raining
6
intermittent on and off.
7
on, Mr. Daiak is in the back with a fan that we've seen;
8
the officers are out there on a serious matter; all they
9
hear is knock, knock, knock, and use their language.
McVey admitted the
So with all that noise going
10
They say it was loud, but how loud is loud?
11
really say for sure.
12
Nobody can
If they would have used a megaphone, if they
13
would have used a public address system, if they had used
14
the things in their cars that they had a car at least one
15
there, they could have pulled up officer cars as they
16
wanted.
17
common sense.
18
pull over the emergency vehicle, things like that they do
19
sometimes when they're not getting your attention, when
20
there's an emergency vehicle and people are just, you
21
know, we want to get going -- don't want to stop the fire
22
truck, trying to get to work, or they think somebody
23
wants to get to work.
24
25
You've seen it out in the street.
Use your
Just like the prosecutor said, pull over,
They used none of those devices.
Because of that, this man did not know through
his ears that they were law enforcement.
And they really
857
1
weren't too detailed about how long they were there.
2
least one person, I think it was Mr. McVey, and once
3
again, you have to look at what you remember from the
4
testimony, and you have your notes, so neither one of us
5
will try to mislead you.
6
McVey, the first man himself said all he did was go one
7
time like that.
8
come out and different things, and maybe -- and the door
9
a little bit more.
10
At
But my memory is that even
Somebody else said he asked for him to
I think that's the key lack of
evidence in this case as to that issue.
11
And just as the prosecutor has said, on the
12
knowledge thing, the only thing they'r saying -- the
13
worse crime aggravated assault on law enforcement
14
officer -- if he really knew that they were law
15
enforcement officers.
16
them admitted they didn't see him.
17
He didn't see them; a couple of
Now, another interesting aspect of this case is
18
they say they tried to call him to tell him that they
19
were law enforcement, and they said they did it on a cell
20
phone.
21
evidence, put it all before you, they put everything they
22
did in this case, three-day case ended up in five days,
23
where is the cell phone record proof?
24
cell phones.
25
got something on the bill where somebody tried to call
In all of the two and a half years to gather
Everybody knows
Every single call is recorded; in fact, you
858
1
you, you don't even want to hear from them, and you have
2
to pay for it.
3
you that they actually made that call.
Not one shed of evidence was put before
4
Why would they say they made a call?
5
there was concern down the road about how they pile on
6
this guy, and he ended up in the hospital.
7
bottom line is there's no -- you have no scintilla of
8
evidence to prove that they actually made the call.
9
Maybe
But the
If they made it on cell phone like they said,
10
they don't have any of that evidence.
11
crucial thing that's missing in this case.
12
how you would know that these people are law enforcement
13
officers?
14
That is the most
Any proof of
Now, No. 3, it's not just a simple thing like
15
the prosecutor tries to say well, you got a deadly
16
weapon, shooting it around.
17
near him, they're supposed to have a well-founded fear.
18
You know, I understood what they said.
19
we're scared, we're scared, but it requires more proof
20
from her than they say they're scared.
21
different threshold of fear; everybody has a different
22
threshold of "boy, am I missed off" they might say.
23
you're looking at maybe one of your kids, you get a
24
reason to be pissed off somebody, slapped him over the
25
head, pissed him off; I'm pissed off I got -A-minus
So even though nothing comes
They said, yeah,
Everybody has a
And
859
1
instead of an A.
2
What has that got to do with this?
This is what is important.
Did the act of Joe
3
Francis Dyaik Jr. created in the mind of deputy --
4
whatever their pick names are, McVey, a well-founded fear
5
that violence was about to take place?
6
there was a well-founded.
7
teenagers on the outside, teenager on the inside, these
8
are law enforcement officers.
9
A well-founded fear.
I don't think
We're not talking about
It's not a well-founded
10
fear, and the evidence doesn't support that.
11
two shots going into a couch and bookcase never leave the
12
area, directed as warning shots by this gentleman.
13
understood what the last witness had to say, Mr. Tanner,
14
that in law enforcement, and that's a pretty much
15
standard, like he said, their policies are you don't
16
shoot warning shots.
17
protect themselves and the public, and some nut case does
18
something that, you know, may or may not kill him, and
19
they think oh, my God, the guy that just tried -- this is
20
my teenager's boyfriend, you're not supposed to take that
21
into consideration, you shoot to kill.
22
warning shots.
23
You've got
And I
If they're out there trying to
I don't do
that's not the standard in this case.
For him that's not the standard.
He's a
24
citizen.
He's a citizen, and he did what he thought was
25
necessary to protect himself and make sure that he didn't
860
1
burden anybody.
2
warnings shots, but only after like he sat here and told
3
you, only after he loudly, he used a cuss word and some
4
other things, get the blank of my house, several times,
5
and loudly, and that wasn't getting anywhere.
6
all alone, and he's got all of these reports of, you
7
know, be careful about this.
8
9
He said that he shot off these shots as
And he's
In fact, the sheriff got the deputies on the
T.V. saying be careful of looters, whatever.
So he
10
shoots off some warning rounds.
11
really was intending to kill the people outside, the
12
evidence has shown there's a huge picture window; you've
13
seen this many times, and so if he really, really wanted
14
to shoot somebody, shot right through this window here,
15
or the officers, and everybody on their side agrees,
16
there's no doubt in the evidence that this door was
17
partially open, shot right through the door.
18
Now, if he really,
But he didn't do that.
He didn't try to do
19
that.
In Tepedino's testimony, here's where we get into
20
the forensic stuff.
21
couch first, then into the wall, the other one went into
22
the bookcase on the southeast end of the house and then
23
into the wall, and at angles.
24
cops, they're out there, I'm just going to shoot
25
straight through there and kill them.
He said the shots went into the
So he's not saying I hate
That's not what
861
1
happened, and he's been trained, and he passed the
2
training, and he said he's been dealing with guns since
3
he was 10 years old, and he was pretty good on those
4
targets.
5
kill cops, he could have done it differently.
6
really wanted to kill cops, or attempt to kill them, or
7
intentionally cause great bodily harm, why did he only
8
shoot two shots and leave the other four shots?
9
doesn't make any sense.
So if he really was a cop-hater or wanting to
Come on.
And if he
That
There's no evidence
10
that he had any prior involvement with the criminal
11
justice system, or anything.
12
MS. VERGOS:
13
THE COURT:
14
MS. VERGOS:
15
THE COURT:
16
statement.
19
Sustained.
Ask for curative.
Please disregard that last
Thank you.
17
18
Objection.
You may proceed.
- - -
MR. SHAHAN:
There's no evidence as to his being
a citizen that had any past history of hating police.
20
MS. VERGOS:
21
THE COURT:
Judge, I'm going to object.
Sustained.
22
what he said the second time.
23
MR. SHAHAN:
And please disregard
Don't say it a third time.
Now, in No. 6, it's suggested that
24
to prove aggravated assault on law enforcement officer
25
that Joe Francis Daiak knew Deputy Meizo, McVey, or
862
1
whoever was a law enforcement officer.
2
suggest that he do it by saying some of them -- some of
3
them are saying that he said, "die, die, die."
4
you remember in questions that I asked him, I said, did
5
he ever use the word police?
6
word, sheriff?
No.
They're trying to
But if
Did he ever use the
No.
7
Did did you hear him in his testimony?
He
8
didn't say copers die; sheriff, die; please die; he just
9
said get out of my house.
two people agreed that that's
10
all he said was, get out of my house.
11
of the officers, Mitchell, said he didn't say anything
12
all.
Two of the officers are saying he said, die, die
13
die.
But he didn't say police die, he didn't say copers
14
die, anything like that.
15
And at least one
He told you on the stand that after he had
16
shoted out, get out of my house, get out of my house, get
17
out of my house, that type of thing, instead of -- do you
18
remember cross-examination, every might have positively
19
said leave or die, not die, die.
20
intruder an option.
21
of justice to convict this man on any of the four count s
22
of aggravated assault on a law enforcement officer.
23
there's just no evidence that you can hang your hat on,
24
even if you remember when the Judge was doing
25
instructions in voir dire, in civil cases if I say well,
He was giving the
So I think it would be a miscarriage
863
1
we had this accident because the other guy ran the
2
redlight, said no, no, no, this accident happened because
3
Shahan was speeding, all you got to do is tip the scales.
4
You either believe he was speeding, or the stop sign, nd
5
it's over.
6
That's not what's required here.
What's
7
required here is that they prove up, and to a reasonable
8
doubt that he knew they were onto him.
9
nothing there.
10
There's just
Now, the next aspect of it is if it's not law
11
enforcement, then there's an issue you can decide whether
12
there's an issue of whether it was an aggravated assault
13
threatened by word or act to do violence to a specific
14
individual, and apartment the time he had the ability to
15
carry out the threat.
16
person a well-founded fear that the violence was about to
17
take place, And the assault was made with a deadly
18
weapon.
19
He created in the mind of the
But just like the aggravated assault against a
20
law enforcement officer, there's another element down in
21
there, and you're going to be reading it.
22
going to give you the instructions in writing too.
23
going to orally give them to you.
24
a deadly weapon if it is used or threatened to be used in
25
a way likely to cause death or great bodily harm.
The Judge is
He's
It says, "a weapon is
In
864
1
this particular case, this weapon wasn't used in that
2
way.
3
into a bookcase, and with the distance it was away from
4
these officers, with them all being outside, and with it
5
being in a concrete home and never leaving the inside of
6
that home, in this particular circumstance, this weapon
7
was not used in that way.
This weapon was used to shoot into a couch, shoot
8
9
An assault.
So what's the next situation?
To prove that, you have to prove
that Mr. Daiak intentionally and unlawfully threatened
10
either by word or act to do violence to one of these
11
folks; that he appeared to have the ability to carry out
12
the threat
13
violence was about to take place.
14
and he created a well-founded fear that
You can decide whether that happened.
I would
15
say at the most, that with a real stretching of the
16
evidence, assault might have taken place.
17
happened?
18
want, if you're breaking into my castle, whether I got
19
the Taj Mahal like this basketball player in Tarpon
20
Springs, 20 rooms, or whether I got a one-room trailer.
21
That's my place, my right to be there; you don't have the
22
right to break down the door, push down the door and
23
cause me fear.
24
rights, we protect ourselves in our own home.
25
the legislature just decide recently you can even protect
But then what
I can't assault you, I can assault you if I
This is a America.
We have certain
In fact,
865
1
yourself out in the street if somebody you think is
2
trying to kill you.
3
they're trying to just scare you because you're a crummy
4
driver, if you're in fear, they're shooting that thing,
5
you shoot back.
They show a gun to you, even if
6
That's not what this case is about, but this
7
case is about a more precious thing, the thing that's
8
been in the constitution.
9
times of England that you can use self-defense; I can
It's been in the law since the
10
defend myself in a reasonable fashion.
11
to you even if you decide that there was an assault, the
12
evidence, and once again the burden is totally on the
13
State, the State has the burden of proving that they
14
didn't act, that my client didn't act reasonably in
15
justifiable defense.
16
And so I suggest
It's their burden to prove he didn't act
17
reasonably, it wasn't their burden to prove they acted
18
reasonably.
19
about how protected you are in your home as far as that
20
goes, in terms of the reasonableness of your actions.
21
You don't have to guess right.
22
if you reasonably believe, from his testimony you believe
23
that he reasonably believed that he was in fear, then you
24
can use that self-defense even if they're wrong.
25
they're wrong.
Judge is going to give you an instruction
If you and your belief,
Even if
that's going to be instruction 3.65,
866
1
justifiable use of deadly force.
2
The Judge is going to instruct you that an issue
3
in this case is whether Defendant acted in self-defense.
4
It is the defense to the offense for which Joe Dyaik Jr.
5
is charged.
6
Mitchell, or McVey, resulted from the justifiable use of
7
deadly force.
8
deadly force, which means force used to protect from
9
bodily harm.
If he threatened harm to
Deputy Meizo,
Now, once again there's an instruction on
The use of deadly force is justifiable only
10
if the Defendant reasonably believes that force is
11
necessary to prevent eminent death, or great bodily
12
injury to himself while resisting a variety of attempts.
13
In this case, after the attorneys met with the
14
Judge and went over the instructions, we've got a variety
15
of circumstances that the facts might support as to these
16
items.
17
instructions.
18
deadly force is justifiable only if the Defendant
19
reasonably believes that the force is necessary to
20
prevent eminent death or great bodily harm to himself
21
while resisting.
22
that's how the Judge comes up with his
And it states as follows: the use of
You have 3 choices.
One is attempt to murder
23
him or, two, any attempt to commit an aggravated battery
24
upon him or, three, any attempt to commit burglary upon a
25
residence occupied by him.
You heard it.
I said the
867
1
thing that was big in his mind -- gosh just a few days
2
later the X-Box murders, and if one of those kids had
3
some kind of defense weapon, maybe they would still be
4
here today.
5
I also told you that he was concerned about a
6
home invasion; he was concerned for his life, because
7
what did he do?
8
screaming at themm to get out offer his house several
9
times that didn't work.
He yelled out the nasty "F" word,
He waited for them to leave;
10
they didn't leave.
11
to protect himself, and that was you shoot two warning
12
shots so that if the word didn't do it, maybe the gunshot
13
sound that he did two; so he made sure that maybe it's
14
not a firecracker, maybe it's a gun, and they would
15
leave.
16
So he did what he thought he should
Now, like I said a minute ago, when it's going
17
to be exact words nothing the Judge who was talking about
18
a minute ago in terms of argument, a person is justified
19
in using deadly force if he reasonably believes that such
20
force is necessary to prevent mumber one, eminent death
21
or great bodily harm to himself or another, or eminent
22
commission of a burglaryy against himself or another;
23
breaking into his house.
24
open the door, and even Barrington said there was a
25
clang, clang, clang of the chair that he propped up
Everybody agrees that they did
868
1
against the door.
2
waiting for the hurricane, and all of a sudden, clang,
3
clang, clang, bang, bang, bang, that kind of stuff.
4
So he's in there, even is quiet,
It doesn't say like Donna is coming home saying,
5
hi, honey.
In deciding -- once again I'm reading the
6
exact words that the Judge is going to give you
7
instructions in deciding whether the Defendant was
8
justified in the use of deadly force, you must judge him
9
by the circumstances about which he was surrounded at the
10
time the force was used.
11
need not have been actual, however to justify the use of
12
deadly force, the appearance of danger must have been so
13
real that a reasonably cautious and prudent person under
14
the same circumstances would have believed that the
15
danger could be avoided only through the use of that
16
force.
17
actually believed that the danger was real.
18
The danger facing the Defendant
Based upon appearances, the Defendant must have
Now, it also says that the Defendant was not
19
engaged in an unlawful activity, and was attacked in any
20
place where he had a right to be, he had no duty to
21
retreat, and had the right to stand his ground, which is
22
what he did.
23
the appearance must have been so real that a reasonably
24
cautious and prudent person under the same circumstances
25
would have believed that danger could be avoided only
Now this danger may not have been actual,
869
1
through the use of that force.
2
So it's not just any old force, it's the force
3
that he used.
And what was the force they used?
4
warning shots into a couch, into a bookcase, and he
5
didn't go running to the door and start firing his gun,
6
like one of those cartoon characters.
That's not what he
7
did here.
You've got law
8
enforcement, and they're trying to do their job, and we
9
respect that, but you've got law enforcement team that
That is not what happened.
He shot
10
works everyday with theprosecutor, and are taking
11
something that was very reasonable that has turned into
12
something very unreasonable that affects this man's
13
reputation and freedom.
14
This man in doing what the constitution has
15
allowed for hundreds and hundreds of years for good
16
reason.
17
have friends and family; the property you acquire, you
18
don't have to sit in your house and let bums come in, or
19
intruders you don't know who they are, and try to take it
20
away from you.
21
all the bullets, then go try to &&recusalSal the cops and
22
do things like that?
23
reasonable actions of a man in fear, and he doesn't have
24
to be perfect.
25
You work hard, you ggo to work everyday, you
That's all the man did.
Did he shoot off
No, he shot two warning shots,
He doesn't have to -- you know, you can't decide
870
1
well, I wouldn't have done that; that wouldn't have got
2
me that scared, that's not the issue.
3
whether it was reasonable; whether he reasonably believed
4
that danger, and you heard him testify.
5
offense testifying maybe he wanted to tell you too much
6
his opinions.
7
The issue is
His biggest
No, he anwered questions.
He wanted you to know the story.
He's not
8
hiding behind the right to remain silent; he's not saying
9
not guilty, and you prove everything up. This man has
10
waited to and -- two and a half years for his chance.
11
came before you, came before you facing a lot of
12
reputation issues, possibly freedom issues a, nd he came
13
and told you a story.
14
day in court, have everything heard, and I respectfully
15
suggest that you find him completely not guilty.
16
you.
17
18
THE COURT:
He's waited five days to have his
Thank
Thank you, Mr. Shahan. Ms. Vergos,
rebutal argument.
19
20
He
- - S T A T E ' S
R E B U T T A L
21
22
MS. VERGOS:
I agree on one thing, members of
23
the jury, that Counsel said, and I agree wholeheartedly,
24
that he came here and told you a story.
25
heard is a very well-planned thought out story.
That's what you
871
1
Something that he knew, but something that he
2
**recusalmadly told you, I don't remember if he wrote it.
3
Not that I don't recall, if that's the way it happened, I
4
don't recall if that's what heswore to in written
5
statement, a very well thought out story, a story that
6
makes no sense, none.
7
believe, members of the jury?
8
things just a bit.
9
None.
What does he want you to
Let's go through those
He wants you to believe a whole bunch of things.
10
He wants you to believe he was so worried about the
11
weather, and so worried about the hurricanes that he
12
watched the news, got ready.
13
His gun out, got his gun loaded, and then went
14
fishing.
So worried about this hurricane, and so worried
15
about this weather that he went to the bar.
16
about what the storm was doing that he started drinking
17
at about 5:30, 6:00 in the afternoon, and continued until
18
midnight.
19
fiancee of eight and a half years in a white T-shirt and
20
boxers with no shoes, no bra, no nothing; doesn't say
21
good night to her, doesn't walk her out, doesn't do
22
anything, but has no concern about her whatsoever for the
23
rest of the night.
So worried
He wants you to believe that he sees his
24
He doesn't see her come back into the room to
25
get dressed, doesn't see her, you know, come back into
872
1
the room to get her keys or say good night to him.
She's
2
just gone, disappeared, vanished off the face of the
3
earth, and he has no concerns about her whatsoever.
4
knows she didn't leave in her T-shirt and boxers with no
5
shoes.
6
about what's going on outside, but then he has time to
7
think about the structure of his house, which is not
8
that, as he told us, and we know he doesn't even know
9
what the structure of his house looks like.
He
He wants you to believe that he is so scared
He doesn't
10
know if there's padding; he doesn't know if there's
11
installation; doesn't know how thick it is; doesn't know
12
anything.
13
He just put that together and sat it in front of
14
you.
15
so scared, but that he has time to think about structure
16
of his house and the kind of bullets he put in his gun,
17
and whichwall he should fire at.
18
going to do to the wall.
19
cylinders act in the gun, all in what?
20
said.
21
call 911. why?
22
But nevertheless he wants you to believe that he is
And what that bullet is
And the round that the
That's how scared he is.
A split second he
So scared he doesn't
Because he wants you to believe that he is so
23
afraid, what does he do after he fires these shots?
24
goes to bed.
25
Isn't that what a reasonably prudent person who is just,
He goes to bed.
Of course.
He
Of course.
873
1
you know, defending himself from all kinds of horrible
2
threats does?
3
He goes to sleep.
Of course.
He's so scared that he doesn't stay in the
4
bedroom and fire those two warning shots, he goes to the
5
living room, the room closest to where he thinks they
6
are, the room that he thinks they're in, because the
7
voices are so clear.
8
inside of the house, not on the outside, but on the
9
inside.
They sound like they're on the
He made it a point, ladies and gentlemen, to
10
tell -- oh, yes, to tell us repeat that they were so
11
close he knew it was inside.
12
He doesn't fire the two shots from the bedroom
13
into the wall -- that's the same as the wall in the
14
living room since he's so conscious.
15
the deputies are, and where are those two shots fired?
16
Members of the jury, is it just sheer coincidence that
17
they're fired exactly where the deputies are standing?
18
Miracle they didn't go through.
19
very lucky; very, very lucky, no doubt.
20
here's the deputy, and here's the gunshot.
21
He goes to where
Yeah, those four men are
Here's the wall,
He wants you to believe that he didn't hear
22
anything, didn't hear any words, couldn't tell what was
23
being said, nothing.
24
deputies, he respond to the deputies.
25
got up there and told you and said, this team that
Yet he doesn't talk over the
Everyone of them
874
1
Counsel wants you to believe is just the reason I didn't
2
we're all here.
3
walked in here just because they didn't have anything
4
else to do, they walked in here because another member of
5
the sheriffs office served them with a subpoena to be
6
here.
7
through and told you he wasn't screaming out and just
8
talking over us or anything.
9
statement, "JJ" using his name, members of the jury.
This team is here under subpoena. nobody
But nevertheless, every single one of them got
McVey was making a
10
Hey, JJ, come out; we just want you to come out.
11
want to talk to you, and then the response, "Do you want
12
to die?"
13
to die, I just want to talk to you." And then the
14
response.
15
No, I don't want to die.
We just
No, no, I don't want
He wants you to believe that he checks a loaded
16
weapon by pointing it at his head.
17
about reasonable?
18
he's worried about the hole, the little tiny hole in the
19
roof that he shoots upward.
20
attention to all these news reports, and just being so
21
concerned about it, but he doesn't listen to a single one
22
stay inside until Monday.
23
That's it.
Do you want to talk
That he is scared out of his mind, but
That he's just been paying
He goes fishing.
You know one of the very things that
24
he will finally agree with me on, he shot through the
25
couch, he shot through the bookcase.
Yes.
How much the
875
1
couch between the bookcase, no specific spot in the wall?
2
Yeah, that's the truth.
3
spot there.
4
other side of where the officers were.
5
back of the bookcase or go into the garage?
6
And why?
He was aiming at a very specific
Because that's exactly on the
Why not shoot the
But members of the jury let's talk about
7
something that the law of it all because Mr. Shahan said
8
a couple of things some of which the Judge, a lot of
9
which the Judge will talk about, but let's talk about the
10
law for just a second, that aggravated assault charge.
11
Okay?
12
It is not necessary for the State to proof that
13
the Defendant had an intent to kill.
14
this stuff up.
15
prove that the Defendant had an intent to kill.
16
defense is sitting up here telling you how, if you want
17
to kill them, he would have shot through the window.
18
don't care where he shot that gun.
19
four deputies, if he shot it knowing that they were
20
deputies.
21
those deputies; he shot it being fully aware of the
22
situation.
23
well-founded fear.
24
25
I am not making
It is not necessary for the State to
The
He shot it at the
He shot it after having a conversation with
He wants you to believe that it's not
Well, members of the jury, if that's not
well-founded fear, I have no idea what it is.
I
876
1
Well-founded fear?
2
they did this, after all this, after all those what two
3
and a half hours they were there until they went in with
4
their goggles and their red laser beams that just don't
5
exist, by the way, but what did they do after that?
6
And what did those deputies do after
They didn't take the day off, they didn't call
7
in sick, they went back on the road and answered the next
8
call, the next call that came in, went to it and back to
9
work.
He talks about a team, about the fact that we're
10
here because of a team, because of some camaraderie.
11
They didn't even take it personally.
12
But I guess they just all came in here and made
13
it all up, because it was un-founded on this guy, he ends
14
up at the hospital.
15
a Baker-Act, like he told you.
16
after they got him and secured him and everything, they
17
didn't take him straight to jail, no.
18
interested in making sure that their names are
19
vindicated, they took him to the hospital so that the
20
hospital can make sure that he's not going to kill
21
himself; so that the professionals can make sure that
22
he's no longer suicidal.
23
He ended up in the hospital through
He was suicidal, and
They weren't
Here's a couple of other things I want to talk
24
to you guys about for just a little.
25
line is this.
You know, bottom
The aggravated assault LEO and the
877
1
aggravated assault, the difference is the law
2
enforcement.
3
find that for some reason, some reason he wasn't sure it
4
was cops out there, he is still guilty of that aggravated
5
assault.
6
that what he did was reasonable.
7
find.
8
wasn't.
9
That's the only difference.
Justifiable deadly force?
So even if you
You have to find
That's what you have to
You have to find I didn't prove to you that it
You know, on Monday, we talked about what could
10
be reasonable doubt and what couldn't be a reasonable
11
doubt, and the Judge went into a little bit with the
12
instruction.
13
a doubt that is forced or imaginary, it's not a doubt
14
that is possible or speculative; that such a doubt must
15
not influence your verdict if you have an abiding
16
conviction of guilt -- an abiding conviction.
17
that?
18
He told that you a reasonable doubt is not
A strong belief.
What is
If you strongly believe that
19
he's guilty, then you have no reasonable doubt.
20
it.
21
instructions on weighing the evidence.
22
to hear that one of the things that you should consider
23
is how the witnesses acted, and whether they answerd the
24
attorneys questions.
25
answered the attorneys questions.
A strong belief.
That's
You're also going to get some
And you're going
How they acted and whether they
878
1
How did he act on the stand, members of the
2
jury?
Yes, he had an absolute right to remain silent,
3
but he waived that right, and you can now consider that.
4
You can consider everything that he said, and you have to
5
just as any other witness got in here, but here's the
6
thing.
7
for you to determine, to look and see whether the
8
testimony of the witness was consistent with the other
9
testimony provided.
Another thing the Judge is going to tell you is
10
Even Dennis and Ella came in here and,
11
basically, corroborated something that the law
12
enforcement officers told you.
13
hard, very, very hard, and him, he couldn't answer a
14
single question , a single question, can this kill
15
somebody?
16
or great bodily harm to injure somebody?
17
off pellets.
18
we shooting at target or -- what is that?
19
I don't know.
Donna is working very
Is it designed to cause death
I was shooting
Are we shooting off pellets, bullets, are
You're allowed to consider that, members of the
20
jury.
You're allowed to consider all of those things.
21
And you should consider all of those things.
22
you to believe that on this night he was so scared that
23
he just had no other alternative but to fire this gun.
24
What was he scared of?
25
there?
He wants
Sheriffs office, are you okay in
Sergeant McVey said, JJ, can you come out?
Can
879
1
you talk to us?
2
What's a burglary?
Somebody has to enter a
3
structure without the permission with the intent of,
4
fully formed conscious intent to commit a crime therein.
5
where is that?
6
touch or strike which causes permanent injury, or is used
7
as a deadly weapon?
8
nobody did anything to him before he fired those bullets.
9
Nobody even so much as threatened him.
10
An aggravated battery, an intentional
Nobody touched him; nobody hurt him;
I just want to show you how well created the
11
story is.
12
scared he couldn't even leave that back bedroom to make a
13
phone call to 911.
14
back bedroom to make a phone call.
15
on the bed next to him.
16
lovely safe that he wanted to show you in those nice
17
little pictures.
18
accessible, very -- right there, right in the safest
19
place of the bedroom.
20
even pick it up and call 911, because it wasn't there.
21
That's what he tells you.
22
story is.
23
24
25
He was so scared he went right to bed, so
He didn't want to chance leaving that
This phone is sitting
His phone is sitting on that
His nice little cordless, very
He was so scared that he didn't
That's how reasonable his
Isn't it time we get them home safely, members
of the jury?
E N D
Really.
O F
S T A T E' S
R E B U T T A L
880
1
2
THE COURT:
Thank you, Ms. Vergos.
3
That, obviously, concludes the closing arguments.
4
going to take a recess now, and then I will instruct you
5
on the law.
6
you're probably going to want enough time and an
7
opportunity to possibly smoke a cigarette.
8
about that?
9
we'll start right at that time, and please report back to
10
11
We're
Just from past experience with this jury,
Am I right
So I will give you a 15-minute break, but
the jury room up here in fifteen minutes.
Please do not discuss this case with anyone,
12
including yourselves, until I have instructed you on the
13
law, and until you go back and deliberate.
14
any questions?
Anybody have
No questions.
15
I believe we're at the point where it's dark
16
outside, but there shouldn't be any problem with them
17
going outside and smoking.
18
THE BAILIFF:
There's a deputy posted downstairs
19
that can allow them back in.
20
THE COURT:
Just bang on the door.
So if you want to go downstairs, you
21
can; if you want to stay up here in the courtroom,
22
that's fine, but we'll see you then.
23
- - -
24
(JURY EXCUSED FOR SHORT RECESS.)
25
- - -
881
1
(Out of the hearing of the Jury.)
2
- - -
3
4
THE COURT:
address?
5
6
MR. SHAHAN:
THE BAILIFF:
I thought we
We put all the evidence together
so they wouldn't get lost.
9
10
The two pictures.
already pulled -- had we separated them?
7
8
Is there any issue you want to
MR. SHAHAN:
I just want you to tell me which,
of the two pictures that you showed to the jury, which --
11
MS. VERGOS:
It's right here, Judge.
12
MR. SHAHAN:
One?
13
MS. VERGOS:
Yes.
14
MR. SHAHAN:
You only showed them one?
15
MS. VERGOS:
I got the whole book with me; I
16
only showed them one.
17
18
THE COURT:
For the record, that's State's
exhibit what?
19
MS. VERGOS:
State's 14.
20
MR. SHAHAN:
I guess she showed them State's
21
Exhibit 14.
I didn't rush over there to see what she was
22
pointing out there on the record, what he claimed to be a
23
phone.
24
MS. VERGOS:
25
THE COURT:
Yes, that's the phone.
Is that white item there?
No, that
882
1
2
black item.
MS. VERGOS:
No, the phone, it's a cordless.
3
You see the antenna right there, you see the little thing
4
for the plug for the head piece is his cordless white
5
telephone.
6
THE COURT:
7
MR. SHAHAN:
Right.
Any comment?
The comment is -- (Interruption) --
8
Let me do my job, and then you can comment so we have a
9
good record.
My concern, Your Honor, is that not one
10
witness in this case said anything about a phone.
And,
11
essentially, she's both arguing and testifying because
12
she tells the jury that I believe this is a cordless
13
phone, and he had it available for his use.
14
tiny, and since there was no testimony on the record, I
15
don't think it's appropriate argument.
16
testifying in argument, and we should have the right to
17
have him called and say this is not a phone.
18
it's just so tiny, and you yourself just thought she was
19
talking about the black thing.
20
thing was a phone.
And it is so
I think she is
I mean,
You thought that black
21
THE COURT:
22
but maybe it's not.
23
phone to you, that the phone goes in, the whole thing?
24
But maybe not.
25
MR. SHAHAN:
Well, I still think it's a phone,
Doesn't that black thing look like a
She's arguing something that's not
883
1
2
in evidence.
THE COURT:
Well, the picture is in evidence.
3
If you'd like a curative instruction, I can do that.
4
What I can say is please rely upon your own memory of the
5
facts of the case, and please rely upon your own
6
interpretation of what is depicted in any photograph.
7
MS. VERGOS:
Judge, I would object to that.
8
believe that the rules indicate that the lawyers can
9
argue anything in closing that is reasonably inferred
10
I
from the evidence.
11
THE COURT:
12
MS. VERGOS:
13
THE COURT:
14
MS. VERGOS:
Yes.
And the testimony that was heard.
Yes.
This is evidence; it's been
15
admitted into evidence; it is going back into the jury
16
room with the jury, and I don't believe that there was
17
anything inappropriate, or anything that would require a
18
curative from any argument that I made during any closing
19
argument regarding what is in the evidence, or the
20
possible inference of what is in the evidence.
21
So I would object to the curative.
I don't
22
believe that it calls for a curative or that it requires
23
a curative, or that any kind of rule was violated in
24
order to require a curative.
25
you know, what is depicted in the evidence, or anything
And especially with the,
884
1
of that nature.
2
going to be doing that regardless.
3
job is, that is what their responsibility is, and that is
4
what the law tells them to do.
5
I mean, it is -- they certainly are
THE COURT:
That is what their
I could instruct them, but it's
6
really not going to create a -- (inaudible).
7
no to ahead and do that, all right?
8
please reply upon your own recollection of the facts, and
9
please rely upon your own interpretation of what may be
10
I'm going
I'm going to say
depicted in any photograph.
11
MR. SHAHAN:
Thank you.
12
MS. VERGOS:
Instead of any photograph, can you
13
say what may be depicted in any evidence admitted?
14
15
THE COURT:
I think this is appropriate under the circumstances.
16
17
18
Well, no, because I don't think so.
MR. SHAHAN:
Thank you, Your Honor.
Appreciate
that.
THE COURT:
Thanks you were.
19
else you want besides that?
20
instruction do?
21
MR. SHAHAN:
22
THE COURT:
Is there anything
Will that curative
Yes, Your Honor.
Bring the jury in.
23
- - -
24
(Jury entered the courtroom.)
25
- - -
885
1
7:15 p.m.
2
3
C H A R G E
O F
T H E
C O U R T
4
5
THE COURT:
Members of the jury, before I
6
instruct you on the law, I just want to instruct you on
7
the lawyers in closing arguments, they are obviously
8
arguing to you what they believe that the facts showed,
9
and they may also make reasonable inferences from those
10
facts in those arguments; however, please rely upon your
11
own recollection of the facts and, also, please rely upon
12
your own interpretation of what may be depicted in any
13
photograph.
14
All right?
All right, if we can go ahead and hand out the
15
written copy of the jury instructions for the jury,
16
Deputy Hatcher.
17
THE BAILIFF:
18
THE COURT:
Yes, sir.
Members of the jury, you may read
19
along if you wish as I read these instructions, and if
20
you do not want to read along and you just want to
21
listen, that is also fine.
22
listen either way.
23
easier if you read along while I read them, but if you
24
would prefer to listen, that's fine.
25
But, of course, you do to
Quite frankly, I think it's probably
Members of the jury, I thank you for your
886
1
attention during this trial.
2
instructions I am about to give you.
3
Please pay attention to the
Joe Frank Daiak Jr., the Defendant in this case,
4
as to Count One, has been accused of the crime of
5
aggravated assault on a law enforcement officer.
6
Joe Frank Daiak Jr., the Defendant in this case,
7
as to Count 2, has been accused of the crime of
8
aggravated assault on a law enforcement officer.
9
Joe Frank Daiak Jr., the Defendant in this case
10
as to Count 3 has been accused of the crime of aggravated
11
assault on a law enforcement officer.
12
Joe Frank Daiak Jr., the Defendant in this case,
13
as to Count 4, has been accused of the crime of
14
aggravated assault on a law enforcement officer.
15
To prove the crime of aggravated assault on a
16
law enforcement officer as to Count One, the State must
17
prove the following elements beyond a reasonable doubt.
18
The first three elements define assault.
19
1)
Joe Frank Daiak Jr., intentionally and
20
unlawfully threatened either by word or act to do
21
violence to Deputy Meizo.
22
23
24
25
2)
At the time Joe Frank Daiak appeared to have
the ability to carry out the threat.
3)
The act of Joe Frank Daiak Jr. created in
the mind of Deputy Meizo, a well-founded fear that the
887
1
violence was about to take place.
2
4)
The assault was made with a deadly weapon.
3
5)
Deputy Meizo was at the time a law
4
enforcement officer.
5
6)
6
a law enforcement officer.
7
8
Joseph Frank Daiak Jr. knew Deputy Meizo was
7)
At the time of the assault Deputy Meizo was
engaged in the lawful performance of his duties.
9
The Court now instructs you that a deputy with
10
Pasco County Sheriff's Ofice is a law enforcement
11
officer.
12
A weapon is a deadly weapon if it is used or
13
threatened to be used in a way likely to produce death or
14
great bodily harm.
15
prove that the Defendant had an intent to kill.
16
It is not necessary for the State to
To prove the crime of aggravated assault on a
17
law enforcement officer as to Count 2, the State must
18
prove the following elements beyond a reasonable doubt:
19
the first three elements define assault.
20
1)
Joe Frank Daiak Jr. intentionally and
21
unlawfully threatened either by word or act to do
22
violence to Deputy Mitchell.
23
24
25
2)
At the time Joe Frank Daiak Jr. appeared to
have the ability to carry out the threat.
3)
The act of Joe Frank Daiak Jr. created in
888
1
the mind of Deputy Mitchell a well-founded fear that
2
violence was about to take place.
3
4)
The assault was made with a deadly weapon.
4
5)
Deputy Mitchell was at the time a law
5
enforcement officer.
6
6)
7
Mitchell was a law enforcement officer.
8
9
Joe Frank Daiak Jr. knew that Deputy
7)
At the time of the assault, Deputy Mitchell
was engaged in the lawful performance of his duties.
10
The Court now instructs you that a deputy with
11
the Pasco County Sheriff's Office is a law enforcement
12
officer.
13
A weapon is a deadly weapon if it is used or
14
threatened to be used in a way likely to produce death or
15
great bodily harm.
16
prove that the Defendant had an intent to kill.
17
It is not necessary for the State to
To prove the crime of aggravated assault on a
18
law enforcement officer as to Count 3, the State must
19
prove the following elements beyond a reasonable doubt:
20
The first three elements define assault.
21
1)
Joe Frank Daiak Jr. intentionally and
22
unlawfully threatened either by word or act to do
23
violence to Deputy Barrington.
24
25
2)
At the time Joe Frank Daiak Jr. appeared to
have the ability to carry out the threat.
889
1
3)
The act of Joe Frank Daiak Jr. created in
2
the mind of Deputy Barrington a well-founded fear that
3
the violence was about to take place.
4
4)
The assault was made with a deadly weapon.
5
5)
Deputy Barrington was at the time a law
6
enforcement officer.
7
6)
8
Joe Frank Daiak Jr. knew Deputy Barrington
was a law enforcement officer.
9
7)
At the time of the assault, Deputy
10
Barrington was engaged in the lawful performance of his
11
duties.
12
The Court now instructs that a deputy with the
13
Pasco County Sheriff's Office is a law enforcement
14
officer.
15
A weapon is a deadly weapon if it is used or
16
threatend to be used in a way likely to produce or create
17
bodily harm.
18
that the Defendant had the intent to kill.
19
It is not necessary for the State to prove
To prove the crime of aggravated assault on a
20
law enforcement officer as to Count 4, the State must
21
prove the following elements beyond a reasonable doubt.
22
The first three elements define a aggravated assault.
23
1)
Joe Frank Daiak Jr. intentionally and
24
unlawfully threatened either by word or act to do
25
violence to Deputy McVey.
890
1
2
2)
At the time Joe Frank Daiak Jr. appeared to
have the ability to carry out the threat.
3
3)
The act of Joe Frank Daiak Jr. created in
4
the mind of Deputy McVey a well-founded fear that the
5
violence was about to take place.
6
4)
The assault was made with a deadly weapon.
7
5)
Deputy McVey was at the time a law
8
enforcement officer.
9
6)
10
law enforcement officer.
11
12
Joe Frank Daiak Jr. knew Deputy McVey was a
7)
At the time of the assault, Deputy McVey was
engaged in the lawful performance of his duties.
13
The Court now instructs you that a deputy with
14
the Pasco County Sheriff's Office is a law enforcement
15
officer.
16
threatened to be used in a way likely to produce death or
17
great bodily harm.
18
prove that Defendant had an intent to kill.
19
A weapon is a deadly weapon if it is used or
It's not necessary for the State to
In considering the evidence, you should consider
20
the possibility that although the evidence may not
21
convince you that Defendant committed the main crime of
22
which he is accused, there may be evidence that Defendant
23
committed other acts that would constitute a lesser
24
included crime.
25
accusation has not been proven beyond a reasonable doubt,
Therefore, if you decide that the main
891
1
you next need to decide if the Defendant is guilty of any
2
lesser included crime.
3
indicated in the definition of aggravated assault on a
4
law enforcement officer as to Counts 1, 2, 3, and 4, are
5
aggravated assault, assault on a law enforcement officer,
6
and assault.
7
included offenses for you.
8
9
The lesser included crimes
I'm now going to define those lesser
First, aggravated assault.
To prove the crime
of aggravated assault as a lesser crime as to Count 1,
10
the State must prove the following four elements beyond a
11
reasonable doubt.
12
assault.
13
1)
The first three elements define
Joe Frank Daiak Jr. intentionally and
14
unlawfully threatened either by word or act to do
15
violence to Deputy Meizo.
16
17
18
2)
At the time Joe Frank Daiak Jr. appeared to
have the ability to carry out the threat.
3)
The act of Joe Frank Daiak Jr. created in
19
the mind of Deputy Meizo a well-founded fear that
20
violence was about to take place.
21
4)
The assault was made with a deadly weapon.
22
A weapon is a deadly weapon if it is used or threatened
23
to be used in a way likely to produce death or great
24
bodily harm.
25
that the Defendant had an intent to kill.
It is not necessary for the State to prove
892
1
To prove the crime of aggravated assault as a
2
lesser crime as to Count 2, the State must prove the
3
following four elements beyond a reasonable doubt.
4
first three elements define assault.
5
1)
The
Joe Frank Daiak Jr. intentionally and
6
unlawfully threatend either by word or act to do violence
7
to Deputy Mitchell.
8
9
10
2)
At the time Joe Frank Daiak Jr. appeared to
have the ability to carry out the threat.
3)
The act of Joe Frank Daiak Jr. created in
11
the mind of Deputy Mitchell a well-founded fear that the
12
violence was about to take place.
13
4)
The assault was made with a deadly weapon.
14
A weapon is a deadly weapon if it is used or threatened
15
to be used in a way likely to produce death or great
16
bodily harm.
17
that the Defendant had an intent to kill.
18
It is not necessary for the Sstate to prove
To prove the crime of aggravated assault as a
19
lesser crime as to Count 3, the State must prove the
20
following four elements beyond a reasonable doubt.
21
first three elements define assault.
22
1)
Joe Frank Daiak Jr. intentionally and
23
unlawfully threatened either by word or act to do
24
violence to Deputy Barrington.
25
2)
The
At the time Joe Frank Daiak Jr. appeared to
893
1
2
have the ability to carry out the threat.
3)
The act of Joe Frank Daiak Jr. created in
3
the mind of Deputy Barrington a well-founded fear that
4
the violence was about to take place.
5
4)
The assault was made with a deadly weapon.
6
A weapon is a deadly weapon if it is used or threatened
7
to be used in a way likely to produce death or great
8
bodily harm.
9
that the Defendant had and intent to kill.
10
It is not necessary for the State to prove
To prove the crime of aggravated assault as a
11
lesser crime as to Count 4, the State must prove the
12
following four elements beyond a reasonable doubt.
13
The first three elements define assault.
14
1)
Joe Frank Daiak Jr. intentionally and
15
unlawfully threatened either by word or act to do
16
violence to Deputy McVey.
17
18
19
2)
At the time Joe Frank Daiak Jr. appeared to
have the ability to carry out the threat.
3)
The act of Joe Frank Daiak Jr. created in
20
the mind of Deputy McVey a well-founded fear that the
21
violence was about to take place.
22
4)
The assault was made with a deadly weapon.
23
A weapon is a deadly weapon if it is used or threatened
24
to be used in a way likely to produce death or great
25
bodily harm.
It is not necessary for the State to prove
894
1
that the Defendant had an intent to kill.
2
All right, now I will instruct you on the lesser
3
included offense of assault on a law enforcement officer
4
for all four counts.
5
To prove the crime of assault on a law
6
enforcement officer as a lesser crime as to Count 1, the
7
State must prove the following six elements beyond a
8
reasonable doubt.
9
1)
Joe Frank Daiak Jr. intentionally and
10
unlawfully threatend either by word or act to do violence
11
to Deputy Meizo.
12
13
2)
At the time Joe Frank Daiak Jr. appeared to
have the ability to carry out the threat.
14
3)
The act of Joe Frank Daiak Jr. created in
15
the mind of Deputy Meizo a well-founded fear that the
16
violence was about to take place.
17
4)
18
enforcement officer.
19
5)
20
Joe Frank Daiak Jr. knew Deputy Meizo was a
law enforcement officer.
21
22
Deputy Meizo was at the time a law
6)
At the time of the assault Deputy Meizo was
engaged in the lawful performance of his duties.
23
The Court now instructs you that a deputy with
24
the Pasco County Sheriff's Office is a law enforcement
25
officer.
895
1
To prove the crime of assault on a law
2
enforcement officer as to the lesser crime of Count 2,
3
the State must prove the following elements beyond a
4
reasonable doubt.
5
1)
Joe Frank Daiak Jr. intentionally and
6
unlawfully threatened either by word or act to do
7
violence to Deputy Mitchell.
8
9
2)
At the time Joe Frank Daiak Jr. appeared to
have the ability to carry out the threat.
10
3)
The act of Joe Frank Daiak Jr. created in
11
the mind of Deputy Mitchell a well-founded fear that
12
violence was about to take place.
13
4)
14
enforcement officer.
15
5)
16
Joe Frank Daiak Jr. knew Deputy Mitchell was
a law enforcement officer.
17
18
Deputy Mitchell was at the time a law
6)
At the time of the assault Deputy Mitchell
was engaged in the lawful performance of his duties.
19
The Court now instructs that a deputy with the
20
Pasco County Sheriff's Office is a law enforcement
21
officer.
22
To prove the crime of assault on law enforcement
23
officer as to the lesser crime as to Count 3, the State
24
must prove the following elements beyond a reasonable
25
doubt.
896
1
1)
Joe Frank Daiak Jr. intentionally and
2
unlawfully threatened either by word or act to do
3
violence to Deputy Barrington.
4
5
6
2)
At the time Joe Frank Daiak Jr. appeared to
have the ability to carry out the threat.
3)
Act of Joe Frank Daiak Jr. created in the
7
mind of Deputy Barrington a well-founded fear that the
8
violence was about to take place.
9
4)
Deputy Barrington was at the time a law
10
enforcement officer.
11
5)
12
13
14
15
Joe Frank Daiak Jr. knew Deputy Barrington
was a law enforcement officer.
6)
At the time of the assault Deputy Barrington
was engaged in the lawful performance of his duties.
The Court now instructs that you that a deputy
16
with the Pasco County Sheriff's Office is a law
17
enforcement officer.
18
To proof the crime of assault on a law
19
enforcement officer as to the lesser crime as to Count 4,
20
the State must prove the following elements beyond a
21
reasonable doubt.
22
1)
Joe Frank Daiak Jr. intentionally and
23
unlawfully threatened either by word or act to do
24
violence to Deputy McVey.
25
2)
At the time Joe Frank Daiak Jr. appeared to
897
1
2
have the ability to carry out the threat.
3)
The act of Joe Frank Daiak Jr. created in
3
the mind of Deputy McVey a well-founded fear that the
4
violence was about to take place.
5
4)
6
enforcement officer.
7
5)
8
9
Deputy McVey was at the time a law
Joe Frank Daiak Jr. knew that Deputy McVey
was a law enforcement officer.
6)
At the time of the assault Deputy McVey was
10
engaged in the lawful performance of his duties.
11
Court now instructs you that a deputy with the Pasco
12
County Sheriff's Office is a law enforcement officer.
13
The
All right, I will now instruct you on the lesser
14
crime of assault for all four counts.
15
of assault as a lesser crime as to Count 1, the State
16
must prove the following three element himself beyond a
17
reasonable doubt.
18
1)
To prove the crime
Joe Frank Daiak Jr., intentionally and
19
unlawfully threatened either by word or act to do
20
violence to Deputy Meizo.
21
22
23
2)
At the time Joe Frank Daiak Jr. appeared to
have the ability to carry out the threat.
3)
The act of Joe Frank Daiak Jr. created in
24
the mind of Deputy Meizo a well-founded fear that the
25
violence was about to take place.
898
1
To prove the crime of assault as a lesser crime
2
as to Count 2, the State must prove the following three
3
elements beyond a reasonable doubt.
4
1)
Joe Frank Daiak Jr. intentionally and
5
unlawfully threatend either by word of act to do violence
6
to Deputy Mitchell.
7
8
9
2)
At the time Joe Frank Daiak Jr. appeared to
have the ability to carry out the threat.
3)
The act of Joe Frank Daiak Jr. created in
10
the mind of Deputy Mitchell a well-founded fear at that
11
time violence was about to take place.
12
To prove the crime of assault as a lesser crime
13
as to Count 3, the State must prove the following three
14
elements beyond a reasonable doubt.
15
1)
Joe Frank Daiak Jr. intentionally and
16
unlawfully threatened either by word or act to do
17
violence to Deputy Barrington.
18
19
20
2)
At the time Joe Frank Daiak Jr. appeared to
have the ability to carry out the threat.
3)
The act of Joe Frank Daiak Jr. created in
21
the mind of Deputy Barrington a well-founded fear that
22
the violence was about to take place.
23
To prove the crime of assault as a lesser crime
24
as to Count 4, the State must prove the following three
25
elements beyond a reasonable doubt.
899
1
1)
Joe Frank Daiak Jr. intentionally and
2
unlawfully threatened either by word or act to do
3
violence to Deputy McVey.
4
5
6
2)
At the time Joe Frank Daiak Jr. appeared to
have the ability to carry out the threat.
3)
The act of Joe Frank Daiak Jr. created in
7
the mind of Deputy McVey a well-founded fear that
8
violence was about to take place.
9
An issue in this case as to whether the
10
Defendant acted in self-defense.
11
offense which Joe Frank Daiak Jr. is charged.
12
threatened harm to Deputy Meizo or Deputy Mitchell or
13
Deputy Barrington, or Deputy McVey resulted from the
14
justifiable use of deadly force.
15
force likely to cause death or great bodily harm.
16
use of deadly force is justifiable only if the Defendant
17
reasonably believes that the force is necessary to
18
prevent eminent death or great bodily harm to himself
19
while resisting.
20
him, or No. 2, any attempt to commit an aggravated
21
battery upon him, or No. 3, any attempt to commit a
22
burglary upon a residence occupied by him.
23
24
25
It is a defense to the
The
Deadly force means
The
Number one, another's attempt to murder
And I will define the elements of aggravated
battery and burglary for you momentarily.
A person is justified in using deadly force if
900
1
he reasonably believes that such force is necessary to
2
prevent No. 1, eminent death or great bodily harm to
3
himself or another, or No. 2, the eminent commission of a
4
burglary against himself or another.
5
instruct you on the elements of a burglary momentarily.
6
And, again, I will
In deciding whether the Defendant was justified
7
in the use of deadly force, you must judge him by the
8
circumstances by which he was surrounded at the time the
9
force was used.
The danger facing the Defendant need not
10
have been action, however, to justify the use of deadly
11
force, the appearance of danger must have been so real
12
that a reasonably cautious and prudent person under the
13
same circumstances would have believed that the danger
14
could be avoided only through the use of that force.
15
Based upon appearances, the Defendant must have actually
16
believed that the danger was real.
17
If the Defendant was not engaged in an unlawful
18
activity, and was attacked in a place where he had the
19
right to be, he had no duty to retreat, and had the right
20
to stand his ground and meet force with force including
21
deadly force if he reasonably believed that it was
22
necessary to do so.
23
harm to himself or to prevent the commission of a murder,
24
aggravated battery, or burglary.
25
you on the elements of aggravated battery and burglary
To prevent the death or great bodily
Again, I will instruct
901
1
2
momentarily.
If the Defendant was in a residence where he had
3
a right to be, he is presumed to have had a reasonable
4
fear of eminent death or great bodily harm to himself. if
5
Deputy Meizo or Deputy Meizo, or Deputy Barrington or
6
Deputy McVey had unlawfully and forceably entered that
7
residence, and the Defendant had reason to believe that
8
that had occurred, the Defendant had no duty to retreat
9
understand such circumstances.
10
A person who unlawfully and by force enters or
11
attempts to enter another residence is presumed to be
12
doing so with the intent to commit an unlawful act
13
involving force or violence.
14
self-defense, a residence means a dwelling in which a
15
person resides either temporarily, or permanently, or is
16
visiting as an invited guest.
17
As used with regard to
In considering the issue issue of self-defense,
18
you may take into account the relative physical builds
19
and capabilities of the Defendant and Deputy Meizo, and
20
Deputy Mitchell and Deputy Barrington and Deputy McVey.
21
If in your consideration of the issue of self-defense you
22
have a reasonable doubt on the question of whether or not
23
the Defendant was justified in the use of deadly force,
24
you should find the Defendant not guilty.
25
from the evidence you are convinced that the Defendant
However, if
902
1
was not justified in the use of deadly force, you should
2
find him guilty if all the elements of the charge have
3
been proven.
4
All right, I promised that I was going to
5
instruct you on the elements of aggravated battery and
6
burglary, and I'm going do do that now for you.
7
8
The crime of aggravated battery consists of the
following two elements.
9
10
1)
An individual intentionally touched or
struck Joe Frank Daiak Jr. against his will and,
11
2)
An individual in committing the battery
12
intentionally or knowingly caused great bodily harm or
13
permanent disfigurement to Joe Frank Daiak Jr. with the
14
use of a deadly weapon, if it is used or threatened to be
15
used in a way likely though produce death or great bodily
16
harm.
17
18
19
20
21
The crime of burglary contains the following
three elements:
1)
An individual entered a structure owned by
or in the possession of Joe Frank Daiak Jr.
2)
The individual did not have the permission
22
or consent of Joe Frank Daiak Jr. or anyone authorized to
23
act for him to enter the structure at that time.
24
25
3)
At the time of the entering of the
structure, the individual had a fully formed conscious
903
1
intent to commit a crime in the structure.
2
The defendant has entered a plea of not guilty.
3
This means that he is presumed or believed, the Defendant
4
is innocent.
5
to each material allegation in the information through
6
each stage of the trial unless and until it is overcome
7
by the evidence to the exclusion of and beyond a
8
reasonable doubt.
9
The presumption stays with the Defendant as
To overcome the Defendant's presumption of
10
innocence, the State has the burden of proving the crime
11
which the Defendant is charged with committed, and the
12
Defendant is the person who committed the crime.
13
Defendant is not required to show any evidence or proffer
14
anything.
15
used, you must consider the following.
16
The
Whenever the words "reasonable doubt" are
A reasonable doubt is not a mere possible doubt,
17
a speculative or forced doubt.
Such a doubt must not
18
influence you to return a verdict of not guilty if you
19
have an abiding conviction of guilt.
20
if after carefully considering, comparing and weighing
21
all the evidence there is not an abiding conviction of
22
guilt, or if having a conviction it is one which is not
23
stable, but one which waivers and vacillates, then the
24
charge is not proven beyond every reasonable doubt, and
25
you must find the Defendant not guilty because the doubt
On the other hand,
904
1
is reasonable.
2
It is to the evidence introduced in this trial
3
and to it alone that you are to look for that proof.
4
reasonable doubt as to the guilt of the Defendant may
5
arise from the evidence, conflict in the evidence or the
6
lack of evidence.
7
should find the Defendant not guilty.
8
reasonable doubt, you should find the Defendant guilty.
9
A
If you have a reasonable doubt, you
If you have no
It is up to you to decide what evidence is
10
reliable.
You should use your common sense in deciding
11
which is the best evidence and which evidence should not
12
be relied upon in considering your verdict.
13
some of the evidence not reliable or less reliable than
14
other evidence.
15
acted as well as what they said.
16
should consider are:
17
1)
You may find
You should consider how the witnesses
Some things that you
Did the witness seem to have an opportunity
18
to see and know the things about which the witness
19
testified.
20
21
22
23
24
25
2)
Did the witness seem to have an accurate
3)
Was the witness honest and straightforward
memory?
in answering the attorneys questions?
4)
Did the witness have some interest in how
the case should be decided.
905
1
2
5)
Does the testimony of the witness agree with
the other testimony and other evidence in the case.
3
6)
Had any pressure or threat been used against
4
the witness that affected the truth of the testimony of
5
the witness?
6
7)
Did the witness at some other time make a
7
statement that was inconsistent with the testimony he or
8
she gave in court?
9
about a witness.
You may rely upon your own conclusion
A juror may believe or disbelieve all
10
or any part of the evidence or the testimony of any
11
witness.
12
Defendant in this case has become a witness.
13
You should apply the same rules in considering his
14
testimony as you apply it to the testimony of the other
15
witnesses.
16
These are some general rules that apply to your
17
discussions.
18
return a lawful verdict.
19
1)
You must follow these rules in order to
You must follow the law as it is given to
20
you in these instructions.
21
law, your verdict will be a miscarriage of justice.
22
There's no reason for failing to follow the law in this
23
case.
24
and legal decision in this matter.
25
If you fail to follow the
All of us are depending upon you to make a wise
2)
This case must be decided only upon the
906
1
evidence you have heard from the testimony of the
2
witnesses and have seen in the form of the exhibits in
3
evidence and these instructions.
4
3)
This case must not be decided for or against
5
anyone because you feel sorry for anyone, or are angry at
6
anyone.
7
Please remember -4)
That lawyers are not on trial.
Your
8
feelings about them should not influence your decision in
9
this case.
10
5)
Your duty is to determine if the Defendant
11
has been proven guilty or not in accordance withe the
12
law.
13
sentence if the Defendant is found guilty.
14
It's the Judge's job to determine the proper
6)
Whatever verdict you render must be a
15
unanimous verdict; that is each juror must agree to the
16
same verdict.
17
7)
It is entirely proper for a lawyer to talk
18
to a witness about what testimony the witness would give
19
if called to the courtroom.
20
discredited by talking to a lawyer about his or her
21
testimony.
22
8)
A witness should not be
Your verdict should not be influenced by
23
feelings of prejudice or bias or sympathy.
Your verdict
24
must be based on the evidence and the law contained in
25
these instructions.
Deciding a verdict is exclusively
907
1
your job.
2
way.
3
that made you think I preferred one verdict over another.
4
I cannot participate in that decision in any
Please disregard anything I may have said or done
You may find the Defendant guilty as charged in
5
the information or guilty of a lesser included crime as
6
the evidence may justify, or not guilty.
7
verdict of guilty, it should be for the highest offense
8
which have been beyond a reasonable doubt.
9
that no offense has been proven beyond a reasonable doubt
If you return a
If you find
10
then, of course, your verdict must be not guilty.
11
one verdict may be returned as to each crime charged.
12
This verdict must be a unanimous verdict; that is all of
13
you must agree to the same verdict.
14
in writing.
15
forms for the verdict have been prepared for you.
16
Only
The verdict must be
And for your convenience, the necessary
They are as follows:
I'm going to step down
17
because I think it will be easier for to you to see what
18
I'm talking about.
19
When go back to the jury room, you will take
20
with all the evidence in the case, and you'll each have a
21
written jury instructions, and also back in the jury room
22
will be the verdict forms.
23
verdict forms, because there are four different counts in
24
this case, and the verdict forms are identical except
25
for the count numbers.
And there will be four
Obviously, one says Count 1, one
908
1
says Count 2, one says Count 3, and one says Count 4.
2
Now, Count 1 involves Deputy Meizo, Count 2.
3
Deputy Mitchell, Count 3, Deputy Barrington, Count 4,
4
Deputy McVey.
5
between the verdict forms but, obviously, have you to
6
consider each count individually.
7
So that's going to be the only difference
And the verdict forms appear as follows: at the
8
top is the style of the case, and in the top right-hand
9
corner, it says what the count is for each of the verdict
10
forms.
11
says Count 2, and here it says Count 3, and here it says
12
Count 4; otherwise, they're identical.
13
Here you see it says Count 1; here you see it
And verdict, then it says, we, the jury find as
14
follows, it says check one and only one on this form by
15
inserting a single check mark on the line next to the
16
discretion of the verdict which you have found.
17
there are five possibilities.
18
start at the top, which is what the Defendant is charged
19
with, which is No. 1.
20
assault on law enforcement officer as charged in the
21
information, and what you do is you apply the facts to
22
the law and the law to the facts and determine if the
23
State has proven that beyond a reasonable doubt and to
24
the exclusion of every reasonable doubt.
25
that the State has proven that the Defendant is guilty of
And then
And what you do is you
Defendant guilty as aggravated,
If you feel
909
1
aggravated assault on a law enforcement officer beyond
2
and to the exclusion of every reasonable doubt, then you
3
should check No. 1; if you do check No. 1, then you have
4
to make a further finding of fact.
5
underneath or below No. 1, if and only if you find the
6
Defendant guilty of aggravated assault on law enforcement
7
officer, please further find as follows.
8
only one of a, b, c.
9
way that you do this is start at the top again, seeing if
And it states
Check one and
And all of this is consistent the
10
the State has proven beyond a reasonable doubt.
11
Defendant discharge firearm during the commission of an
12
offense.
13
reasonable doubt, then you check one, and then you go
14
down to finding of fact of a, b, and C.
15
proved beyond and to the exclusion of every reasonable
16
doubt that the Defendant did discharge a firearm during
17
the commission of the offense, check "a."
18
did not prove "a" beyond a reasonable doubt and to the
19
exclusion of reasonable doubt, then go down to letter
20
(b), which is the Defendant did actually possess a
21
firearm during the commission of the offense.
22
Did
So if the State proved No. 1 beyond a
If the State
If the State
If the State provedn that beyond a reasonable
23
doubt and to the exclusion of every reasonable doubt,
24
then check (b).
25
reasonable doubt or (b) beyond a reasonable doubt, then
If the State did not prove (a) beyond a
910
1
check (c), which is the Defendant did not actually
2
discharge or possess a firearm.
3
All right?
Now, if you feel that the State did not prove
4
No. 1 beyond and to the exclusion of every reasonable
5
doubt that the Defendant is guilty of aggravated assault
6
on law enforcement officer as charged in the information,
7
then go to No. 2, and see if the State proved No. 2
8
beyond a reasonable doubt and to the exclusion of every
9
reasonable doubt.
10
No. 2 states that Defendant is guilt of lesser
11
included charge of aggravated assault.
12
prove aggravated assault beyond and to the exclusion of
13
every reasonable doubt, then check No. 2.
14
No. 2, then you have to make a further finding of fact.
15
And it says if and only if you find the Defendant guilty
16
of aggravated assault, please further find as follows:
17
Then check one and only one.
18
If the State did
If you check
At the end of all of this is consistent, you
19
start at the top with (a), and (a) is the Defendant
20
discharged firearm during the commission of the offense.
21
If you find that the State has proven that beyond a
22
reasonable doubt and to the exclusion of every reasonable
23
doubt, then check (a).
24
prove (a) beyond and to the exclusion of reasonable
25
doubt, then go down to (b) and see if the Defendant, see
If you feel the State did not
911
1
did the State prove beyond a reasonable doubt that the
2
Defendant did actually possess a firearm during the
3
commission of the offense.
4
prove that beyond a reasonable doubt, then check (b).
5
you feel that the state did not prove (a) beyond a
6
reasonable doubt and did not prove (b) beyond a
7
reasonable doubt, then check (c). And (c) is the
8
Defendant did not actually discharge or possess a
9
firearm.
10
If you
feel that state did
If
Now, if I feel that the State did not prove No.
11
1 beyond a reasonable doubt and to the exclusion of every
12
reasonable doubt that tyhe Defendant is guilty of
13
aggravated assault on law enforcement officer as charged
14
in the information, or No. 2 that the Defendant is guilty
15
of the lesser included charge of aggravated assault, then
16
you go down to No. 3.
17
beyond a reasonable doubt . No. 3 states that Defendant
18
is guilty of lesser included charge of assault on law
19
enforcement officer.
20
proven that beyond a reasonable doubt, then check No. 3.
21
If you feel that the State has not proven No. 1 or No. 2
22
or No. 3 beyond a reasonable doubt, beyond and to the
23
exclusion of reasonable doubt, then go down to No. 4, see
24
if the State has proven No. 4 beyond a reasonable doubt.
25
No. 4 states that the Defendant is guilty of lesser
See if the State has proven that
If you feel that the state has
912
1
included charge of assault.
2
beyond and to the exclusion of a reasonable doubt, then
3
check No. 4, that the Defendant is guilty of the lesser
4
included charge of assault.
5
State did not prove No. 1 or No. 2, or No. 3, or No. 4
6
beyond a reasonable doubt, or if there is a reasonable
7
doubt that the Defendant used justifiable use of deadly
8
force, then you should check No. 5, which is that the
9
Defendant is not guilty.
10
If the State has proven that
Now, if you feel that the
And then the verdict form has to be dated, and
11
when we started this trial, it was November, and now it's
12
December, so we will get that corrected for you.
13
not allowed to help you at all on filling in any of these
14
blanks except for one, and that is I will let you know
15
that it's the first day of December, so you can fill that
16
in, and it will be the foreperson who will do that, and
17
the foreperson will also sign the verdict form.
18
And I'm
And I will instruct you on what the duty of the
19
foreperson will be in a moment.
20
can just go ahead and cross out November and put
21
December?
22
COURT CLERK:
Yes.
All right, Madam Clerk,
Obviously, the instruction
23
that I just gave you is the procedure you have to do for
24
all four counts.
25
counts.
I'm not going to repeat myself all four
I think there's enough repetition in these
913
1
instructions without that.
2
I think that's rather clear.
In just a few moments you shall be taken to the
3
jury room by the court deputy.
The first thing you
4
should do is elect a foreperson who will preside over
5
your deliberations like a chairperson of a meeting.
6
is the foreperson's job to sign and date the verdict form
7
when all of you have agreed on a verdict in this case,
8
and bring the verdict back to the courtroom when you
9
return.
It
Your verdict finding the Defendant guilty or not
10
guilty must be a unanimous verdict.
The verdict must be
11
the verdict of each juror as well as the jury as a whole.
12
In closing, I shall remind you that it is important that
13
you follow the law spelled out in these instructions in
14
deciding your verdict.
15
apply to this case.
16
that must be applied, you must follow them.
17
years we have agreed to a constitution and to abide by
18
the law.
19
share.
There are no other laws that
Even if you do not like the laws
No juror has the right to violate rules we all
20
- - -
21
(Sidebar discussion.)
22
- - -
23
24
25
For over 200
THE COURT:
I missed 3.12 (a).
Okay.
objection to any of the jury instructions?
MR. SHAHAN:
No.
Any other
914
1
MS. VERGOS:
No.
2
- - -
3
(End of sidebar.)
4
- - -
5
THE COURT:
Members of the jury, I will also
6
instruct you that a separate crime is charged in each
7
count of the information, and while they may be tried
8
together, each criminal and the evidence applicable to it
9
must be considered on a separate basis and a separate
10
verdict returned as to each.
11
guilty as to one crime must not affect your verdict as to
12
the other crimes charged.
13
common questions.
14
A finding of guilty or not
All right, let me go over some
One is can I smoke back in the jury room; the
15
answer is, no.
Another common question is can we have
16
the testimony or a transcript of the testimony of a
17
particular witness; I won't say that we cannot do that,
18
I will say that it is possibly more involved than what
19
you may think.
20
not in English, and it would take her a while to decipher
21
the notes that she's made, and to get them typed up in a
22
form that you could read.
23
would get immmediately, it is something that would take
24
hours as opposed to minutes.
25
we cannot provide that for you, but I just want you to
What the Court Reporter is typing up is
So it's not something that you
So I'm not going does that
915
1
2
know what is involved in that.
And the fact that you've been able to take notes
3
may assist you in remembering the testimony of these
4
witnesses a little bit better than if you would not have
5
that opportunity.
6
And if do you have any questions, the way it
7
works is you write the question down, and Deputy Hatcher
8
will be in this room at all times, and he'll be close
9
enough to hear a knock, but he won't be close enough to
10
hear the deliberations that are going on back there.
11
just knock on the door, and the way it works is that we
12
will reconvene everyone in the courtroom before we will
13
determine if we can legally answer your questions.
14
if we can legally answer your question, then we'll go
15
ahead and do it.
16
So
And
Now, as far as factual issues, obviously, you've
17
heard all of the evidence and as a general rule I can
18
tell you that if you have a question about a fact, that
19
most likely is something that you're going to have to
20
work out among yourselves and use your best recollection
21
of what it is that you heard.
22
chances are we've already instructed you on all the law
23
that you need to know in this case, and I have instructed
24
you on, and you do have a copy of the jury instructions.
25
And as a matter of fact, each and every one of you has a
If it's a question of law,
916
1
copy of the jury instructions, so probably you're not
2
going to have any questions there.
3
any questions, that's fine; just go ahead and knock on
4
the door, and then we'll determine if we can answer them.
But if you do have
5
There was one question that I was going to ask
6
you about the issue of food, and I was informed that we
7
could not order food which the County or the State would
8
pay for unless we did it before 8:00, and it's after
9
8:00.
Now, if things get late, I'll go ahead and buy
10
pizza for everybody, all right?
11
about food.
12
really need some food, then just go ahead and knock on
13
the door, and I'll get pizzas for everybody, all right?
14
Anything else you think we should talk about?
All right?
If you get hungry, and you
15
MS. VERGOS:
No.
16
MR. SHAHAN:
No, Judge.
17
THE COURT:
18
So that's the answer
And as you may have figured out, Mr.
Stanley is the alternate in this case.
19
JUROR STANLEY:
Yes, Judge.
20
THE COURT:
21
got to go home now.
22
chair for right now.
23
when they're the alternate, and when they don't have to
24
go back in and deliberate, and sometimes they're
25
disappointed because they'vee been through everything and
And to your deep disappointment you
So if you can just remain in your
A lot of times people are released
917
1
then they don't deliberate.
2
JUROR STANLEY:
3
THE COURT:
4
JUROR STANLEY:
5
THE COURT:
I'm not disappointed.
You're not disappointed.
I don't like pizza.
I don't want you to feel you wasted
6
your time.
You were our insurance policy.
Nobody likes
7
to pay for insurance, but something we all need and more
8
often than you woud think.
9
becomes ill, or one of the family members becomes ill, or
If anyone of the jurors
10
some sort of emergency, then we would have to start all
11
over again if we didn't have alternates.
12
waste your time, at least I hope you don't think you did,
13
and we do greatly appreciate your service.
14
remain here while the members of the jury can go back in
15
the jury room and deliberate, that's fine.
16
And you didn't
If you can
There's one more thing that I wanted to mention
17
to the jury, and that is all of the evidence is going
18
back there except we're not going to allow you to have
19
the firearm and ammunition at this time.
20
No. 1 firearm that will not go back with you.
21
time you would like to examine the bullet, the
22
projectiles or ammunition, whatever it is you want, then
23
knock on the door.
24
firearm, and we'll take it out of the jury room, and
25
we'll bring the ammunition in, and then if you want to
State's Exhibit
If at any
Deputy Hatcher will then get the
918
1
switch it again, just knock on the door.
2
you do have a verdict, just knock on the door.
3
All right, any questions at all?
4
THE JURY:
5
THE COURT:
6
Of course, if
No.
All right, thank you very much.
You
may go back and deliberate.
7
- - -
8
(Jury out to deliberate.)
9
- - -
10
8:05 p.m.
11
12
D E L I B E R A T I O N S
13
14
THE COURT:
Mr. Stanley, we don't have much for
15
you, but we do have a Certificate of Appreciation for
16
you.
17
JUROR STANLEY:
18
THE COURT:
19
Thank you, Your Honor.
We'll stand in recess for the jury
unless unless nothing else we have to bring up.
20
Apparently, atleast one of the jurors wants to
21
take a smoke break, and what I'll do is I'll inform them
22
that as a group, they can all go outside.
23
stay as a group, and that they can not deliberate at that
24
time.
25
They have to
Give them a ten or fifteen minute break outside.
Would everyone involved in the case remain in
919
1
the building, and that includes Donna, and the
2
children,and the gentleman who's been here the whole
3
time.
4
MR. SHAHAN:
Yes.
5
- - -
6
(Jury entered the courtroom.)
7
- - -
8
9
THE COURT:
All right, it's my understanding
that at least one of you would like an opportunity to
10
smoke a cigarette, which I can understand a smoker.
11
quite frankly when you've been going for a while, it's
12
good just to get away from it, and then it helps you when
13
you get back up to deliberations.
14
And
So what we're going to do is Bailiff Hatcher is
15
going to escort you, the entire group outside where you
16
will be allowed to smoke, and then obviously, if you're
17
not a smoker, and you don't want any of the secondhand
18
smoke, you can walk far enough away where the smoke won't
19
bother you.
20
group and the fresh air will do the people good who are
21
non-smokers.
22
you'll get some fresh air.
23
anyone talking about the case at all.
24
is going to be your 10-minute break period from the case.
25
And the other issues is that I believe that you've asked
But I want you to go down there always a
If you're far enough away from smoke,
At this time, I don't want
All right?
This
920
1
for pizza, so the pizza is on its way.
2
Now, if in fact you do reach a verdict before
3
the pizza gets here, that's fine, don't feel like; if you
4
don't want do that, you have to let us know about that
5
before the pizza actually gets here.
6
agree on a verdict, then just let us know and then we'll
7
give you an option of you can hang around and wait for
8
the pizza to get here and eat, or you can just leave, and
9
I will take the pizza home.
10
JUROR:
11
THE COURT:
If in fact you do
Can we use the cell phone outside?
Yes, but please do not discuss the
12
case with anyone.
13
you're not out bar-hopping, and you have no idea what
14
time you're going to get home, which is probably
15
accurate.
16
anyone.
17
all of the witnesses and all other parties to stay in the
18
building and not go outside so they don't bother you or
19
intimidate you in any way, all right?
20
going to be there the whole time, so any questions?
But please do not speak about the case with
I have informed everyone involved in the case,
21
THE JURY:
22
THE COURT:
23
24
25
Obviously, telling your loved ones
And then Hatch is
No.
All right.
- - -
(Jury excused for ten-minute break.)
921
1
V E R D I C T
11:30 p.m.
2
3
4
THE COURT:
report?
5
6
Deputy Hatcher, anything new to
THE BAILIFF:
Yes, Judge.
by the jurors that they have reached a verdict.
7
THE COURT:
All right, please bring the jury in.
8
- - -
9
(Jury seated in the jury box.)
10
- - -
11
THE COURT:
12
UNNAMED JUROR:
13
THE COURT:
14
And who was our foreperson?
I was, Your Honor.
For the record, what is your name,
sir?
15
JUROR RHINEHART:
16
THE COURT:
17
FOREPERSON:
18
THE COURT:
19
Andre Rhinehart.
And has the jury reached a verdict?
We have, Your Honor.
All right, please hand the verdict
forms to Bailiff Hatcher, who will then hand them to me.
20
21
I've been informed
THE COURT:
It's still December 1, so that's
good.
22
All right, if the Defendant and his attorney
23
would please rise, so the verdicts are published by the
24
clerk.
25
COURT CLERK:
In the Circuit Court of the Sixth
922
1
Judicial Circuit of State of Florida, Case No.
2
CRC04-04112CFAWS, information for Count 1, aggravated
3
assault on a law enforcement officer, State of Florida
4
versus Joe Frank Daiak Jr. verdict, we the jury find as
5
follows.
6
on a law enforcement officer as charged in the
7
information.
8
The Defendant is guilty of aggravated assault
The jury further finds the Defendant did
9
discharge a firearm during the commission of the offense.
10
So say we all, this first day of December, 2006,
11
Harvey Rhinehart, foreperson.
12
THE COURT:
13
COURT CLERK:
Just to Count 2, that's fine.
Count 2, State of Florida versus
14
Joe Frank Daiak Jr., information for aggravated assault
15
on a law enforcement officer.
16
as follows:
17
assault on a law enforcement officer as charged in the
18
information.
19
Verdict:
We the jury find
The Defendant is guilty of aggravated
The jury first finds the Defendant did discharge
20
a firearm during the commission of the offense.
21
we all this first day of December, 2006, Harvey
22
Rhinehart, foreperson.
23
So say
Count 3, information for aggravated assault on a
24
law enforcement officer.
25
follows:
Verdict we the jury find as
Defendant is guilty of aggravated assault on a
923
1
law enforcement officer as charged in the information.
2
The jury further finds the Defendant did
3
discharge a firearm during the commission of the offense.
4
So say we all this first day of December, 2006. Harvey
5
Rhinehart, foreperson.
6
Count 4.
7
a law enforcement officer.
8
follows:
9
on a law enforcement officer as charged in the
10
11
Information for aggravated assault on
Verdict:
We the jury find as
The Defendant is guilty of aggravated assault
information.
The jury further finds the Defendant did
12
discharge a firearm during the commission of the offense.
13
So say we all this first day of December, 2006.
14
Rhinehart, foreperson.
15
16
THE COURT:
Harvey
All right, you may be seated, Mr.
Shahan and Mr. Daiak.
17
Madam Clerk, will you please pole the jury.
18
COURT CLERK:
19
JUROR BOTELLA:
21
COURT CLERK:
Yes.
Mr. Rinehart, are the verdicts
rendered your verdict?
23
JUROR BOTELLA:
24
COURT CLERK:
25
Mr. Botella, are the
verdicts rendered your verdict?
20
22
Yes.
rendered your verdict?
Yes.
Ms. Dunlop, are the verdicts
924
1
JUROR DUNLAP:
2
COURT CLERK:
3
rendered your verdict?
4
JUROR BAMBER:
5
COURT CLERK:
6
Mr. Bamber, are the verdicts
Yes.
Ms. Wood, are the verdicts
rendered your verdict?
7
JUROR WOOD:
8
COURT CLERK:
9
Yes.
Yes.
Ms. McLaughlin, are the verdicts
rendered your verdict?
10
JUROR MCGLAUGHLIN:
11
THE COURT:
Yes.
Ladies and gentlemen, thank you very
12
much.
13
and you have performed above and beyond the call of duty
14
here this week.
15
courthouse, but it may be one of the toughest for a lot
16
of reasons for jurors to be here.
17
everyone involved in the case, and the people of Pasco
18
County, I'd like to thank you very much for your
19
participation, and your hard work.
20
Obviously, it has been a long and arduous week,
Not only is this the first trial in this
And on behalf of
I know it's a great inconvenience for you to be
21
here all week.
Obviously, all of you have lives And you
22
have employment, and you have family, and you have other
23
obligations and other things that you'd rather be doing;
24
so we do recognize what a tremendous inconvenience this
25
has been for you, and everyone involved in the case, and
925
1
the people of Pasco County are all very grateful for your
2
participation.
3
I will let you know that there are certain
4
privileges that you have as jurors, and those privileges
5
are that if you wanted to talk about the case with
6
anyone, you may, but you don't have to talk to anyone at
7
all.
8
privileged communication, and no one involved in this
9
case has the legal right or authority to call you or ask
Whatever happened back in that jury room is
10
you any questions.
11
and authority to speak with anyone if you would wish.
12
you want to go outside and hold a press conference, you
13
can do that; if you'd like to speak to any of the
14
attorneys about the case, if you want to speak to them
15
right afterwards, or if you want to call them on Monday,
16
or if you want to speak to me about it, or call me on
17
Monday, you are more than welcome.
18
involved in this case, or even not involved in this case
19
may call you because you have privileges to be left alone
20
at this point.
21
However, you do have the legal right
If
But no one else
All right?
Now, I know that your vehicle may be parked in
22
various spots throughout the various parking lots that we
23
have here, so if you would like and escort out to your
24
vehicle, I know that the bailiffs will be more than happy
25
to do that.
Does anyone have any questions?
926
1
THE JURY:
2
THE COURT:
No.
All right, at this point, you are
3
free to go.
Now, we do have a Certicate of Appreciation,
4
and I'm sure that you will cherish that forever, and if
5
not, then you can throw it out if you'd like on your way
6
out.
7
prove to your spouse that you were here all week, that
8
may be good proof of that.
9
much, and you are all excused now.
But if you want to bring it home and frame it, and
All right, thank you very
10
- - -
11
(Jury excused.)
12
- - -
13
THE BAILIFF:
14
THE COURT:
Jurors are out.
All right, there's a minimum
15
mandatory sentence involved in this case.
16
is entitled to a PSI, but it's a minimum mandatory; so if
17
he would like a PSI, he's entitled to one.
18
actually only the one sentence I can impose in this case.
19
The Defendant
But there's
Based upon the cases we discussed earlier,
20
specifically the Murray case out of the Second DCA, since
21
this did involve the same facts and circumstances, or the
22
same criminal episode, then I don't believe that the
23
minimum mandatory can be stacked, so it's going to be one
24
minimum mandatory, and it's a minimum mandatory 20-year
25
sentence.
So if he would like a PSI, he's entitled to
927
1
one, but there's actually only one sentence that I can
2
legally give him at this time.
3
A PSI is a presentence investigation.
4
Unfortunately, the judge's are tied by the legislature,
5
so there's only one sentence I can give you.
6
20-year sentence, so waiting for a PSI is nothing.
7
MR. SHAHAN:
8
THE COURT:
9
It's a
Yeah, we'll waive the PSI.
Is that right, Mr. Daiak?
What a
presentence investigation is, it's an investigation that
10
is done by the Department of Corrections, and they will
11
create a report; they'll interview you; they'll interview
12
the victims; they will check your criminal record, and
13
after their thorough investigation of you, then they will
14
make a recommendation as to what the proper sentence
15
should be.
16
And in a case where it's a minimum mandatory,
17
then obviously that is useful for the Judge to use in
18
determining a sentence.
19
give you is 20 years, and the maximum sentence that I can
20
give you actually is 60 years.
21
possible that I could give you more than the minimum
22
mandatory.
23
that.
24
go ahead and proceed with the sentencing at this point.
25
If you would like a presentence investigation for some
Here the minimum sentence I can
All right?
So it is
I'll tell you in advance I'm not going to do
So if you would like the minimum mandatory, we can
928
1
reason, you're legally entitled to it, but I will advise
2
you that I will not sentence you to any more than the
3
20-year minimum mandatory.
4
5
MR. SHAHAN:
waiving the PSI.
With that understanding, we're
We have two motions for the Court.
6
THE COURT:
All right.
7
THE DEFENDANT:
8
THE COURT:
9
MR. SHAHAN:
Is that right, Daiak?
Yes, sir, Your Honor.
What are the motions?
One of the motions is to -- he has
10
a $50,000 cash bond, and we will be filing a Notice of
11
Appeal; so I'm asking that the Court grant his rights to
12
have the cash bond transferred to supersedeas bond, and
13
supersedeas bond -- and not take him into custody today.
14
He has no prior criminal record; he's been to
15
all the Court matters.
16
Florida Bar, suspended now, and this is not a capital sex
17
felony; it's not a first degree murder case, and with the
18
exception of those two, the Court does have the right or
19
the opportunity, if we ask for, and the authority to
20
allow him to be out on bond pending appeal.
21
THE COURT:
22
MR. SHAHAN:
He has been a member of the
All right, well -He has a fiancee in the area, his
23
mother has cancer, his dad is very old, CIA.
24
going to be a threat to be anyone.
25
THE COURT:
He's not
Well, that issue does not become
929
1
right until I sentence him.
2
MR. SHAHAN:
3
THE COURT:
4
I understand.
So is there any legal reason why the
sentencing cannot go forth at this time?
5
MR. SHAHAN:
No, concerning, like you said, that
6
you're -- you're required by law at a minimum to give him
7
the minimum mandatory 20 years.
8
announced that you're going to do, and so we waive the
9
PSI; so no, there is no legal reason why he couldn't be
10
That's what you've
sentenced now.
11
THE COURT:
All right.
So, Mr. Daiak, I will
12
sentence you as follows:
13
will sentence you to 20 years in the Department of
14
Corrections.
15
because it is an aggravated assault, and the jury did
16
find that you discharged a firearm under the 10-20 life
17
statute.
18
Count 3, and Count 4.
19
running concurrent.
20
on each and every count concurrent.
21
I will adjudicate you guilty; I
It will be a 20-year minimum mandatory
I am doing that on Count 1 and Count 2, and
All four of those counts are
So it's a 20-year minimum mandatory
And as I said, that's under the 10-20 life
22
statute.
Court costs are 453, and there are the battery
23
costs which are mandatory on an assault of $201, and
24
$151.
25
fees or costs?
Do you have any objection to the amount of those
930
1
MR. SHAHAN:
2
THE DEFENDANT:
3
THE COURT:
4
MR. SHAHAN:
5
THE COURT:
6
9
No, Your Honor.
Mr. Shahan, any objection?
No, Your Honor.
All right, they will be taken out of
the cash bond.
7
8
No.
MR. SHAHAN:
Yes, by law I understand that, Your
THE COURT:
And I will order that you give a DNA
Honor.
10
sample; that's mandatory on a charge like this.
11
advise you that you have 30 days to appeal the judgment
12
and sentence of the Court.
13
lawyer, one will be appointed for you for that purpose.
14
15
16
17
I would
If you cannot afford a
Is there anything else from the State?
Anything
else that's mandatory?
MS. VERGOS:
Nothing mandatory.
It would safe
to assume that we are forfeiting the firearm?
18
THE COURT:
19
All right, now do you have a motion about a
20
21
We are for forfeiting the firearm.
supersedeas bond?
MR. SHAHAN:
Yes, Your Honor.
I'm asking that
22
the $55,000 bond minus the amount that's going to be
23
deducted as the Court has indicated, be transferred to a
24
supersedeas bond, and that you allow him to be out on
25
that bond pending appeal.
There's a $50,000 cash bond,
931
1
basically, his parents, part of their life savings.
2
like I said, besides his fiancee, his father is a former
3
CIA person; his mother is very sick with cancer; he has
4
no prior record.
5
because of the cash money his father put up; the medical
6
condition of his mother, and that type of thing, and he
7
did have a Florida Bar license that's suspended.
8
believe that he's a threat to free, and I think that
9
under the law, you have jurisdiction to allow our motion
10
And
He's come to all of his court dates
I don't
to be granted.
11
THE COURT:
12
MS. VERGOS:
All right, what says the State?
Judge, of course.
State would
13
object to a supersedeas at this point.
14
violent offense.
15
the Court has now imposed a 20-year sentence for.
16
Certainly something that is very different than what the
17
Defendant originally was looking at under the three year
18
minimum in the original information, and certainly
19
something different than what I believe the Defendant was
20
expecting.
21
This offense is a
It's a minimum mandatory offense that
As far as the appellate process, Judge, I know
22
that this Court has done everything possible to make this
23
trial as fair as possible, and to basically give the
24
defense everything that they were requesting and wanting,
25
and the Second DCA is going to make their own
932
1
determination on the appellate issues.
But as far as the
2
supersedeas bond is concerned, I don't think this is the
3
type of case that would justify that type of pretrial or
4
pre-appeal release.
5
that deals with it.
6
THE COURT:
I'm looking at the specific statute
All right.
Well, 903.1323 says this
7
Mr. Shahan.
8
be continued for the appeal to reflect the increased risk
9
and probability of longer time considerations.
10
In no case may an original appearance bond
There
shall be a new undertaking of a bond for the appeal.
11
MR. SHAHAN:
And I think they're usually talking
12
about where there's a bondsman involved.
13
bond of his father's.
14
THE COURT:
All right.
This is a cash
Well, I am going to
15
grant your Motion for a Supersedeas Bond, however, the
16
situation has definitely changed.
17
of these crimes, and now he's been convicted of these
18
crimes.
19
And in order to reflect the increased risk, I am going to
20
order a new undertaking of a bond for the appeal, and
21
that bond will be in the amount of a hundred thousand
22
dollars.
23
Before he was accused
So his motivation to flee certainly has gone up.
And a condition of the bond will be that he must
24
remain in Pasco County, Florida, and he will not leave
25
Pasco County, Florida; that he will be monitored
933
1
electronically with a GPS monitoring system which will be
2
provided by the sheriff's office.
3
went?
4
consume any alcoholic beverages as a condition of the
5
bond.
Do you know where he
And, furthermore, he will neither possess or
He will not own or possess any firearms.
6
MR. SHAHAN:
7
THE COURT:
8
MR. SHAHAN:
9
THE COURT:
10
Thank you.
Understand all of those conditions?
Yes, Your Honor.
Mr. Daiak?
THE DEFENDANT:
One hundred thousand condition
11
of bond, electronically monitored, will not consume
12
alcohol, and will not own or possess any firearm.
13
14
THE COURT:
Right, and must remain in Pasco
County.
15
MR. SHAHAN:
Must remain in Pasco County.
And,
16
Judge, because of the hour of the night, how much of that
17
$50,000
18
the count there.
19
but he gets credit for -- what's in there now, it's cash.
20
-- it's late, that goes direct --
I don't have
In other words, it's up to $100,000,
THE COURT:
I'll do that.
I'll do that.
So it
21
will be $50,000 minus $453 minus $201.51, whatever that
22
is.
23
plenty of time to figure out.
24
Daiak will be remanded into custody, and if he's able to
25
bond out with all of those conditions, then he will bond
All right, but that's something that you'll have
But as of right now, Mr.
934
1
out.
2
3
THE COURT:
Anything else that needs to come
before the court at this time?
4
MR. SHAHAN:
5
COURT CLERK:
6
THE COURT:
No.
Goes back to the family?
What it is, is it's going to be
7
$100,000 bond, and my understanding is that because he's
8
appeared for the trial, then whoever put up the cash bond
9
is going to get all of the money back minus the $453, the
10
$201, and the $153.
11
that money plus whatever other money they can get for the
12
new appellate bond.
13
of how things are going to work.
14
Clerk?
15
16
MR. SHAHAN:
Understand?
That's my understanding
Is that correct, Madam
Whatever money that was put up, put
up by his father, because the father is in Washington.
17
18
So if they want to, they can use
MS. VAILLENCOURT:
His father wired money to me,
and I got a cashiers check.
19
THE COURT:
So you're the one who officially put
20
up the bond.
So what's going to happen is, because he
21
did appear for the trial, that you will get the money
22
back, all right, minus $453, $201, and $151.
23
when you get the rest of that money back, you have a
24
choice.
25
someplace, or give it back to his father, or use that
So then
You can either go to Las Vegas with it
935
1
money as a portion of the money that you're going to use
2
to bond him out on the supersedeas bond on the $100,000,
3
or else you could always get a bond from a bondsman.
4
So those are all the options.
But my
5
understanding is, Madam Clerk, if you can pay attention
6
on this one, my understanding is that on the original
7
bond, that's going to go back to whoever put the bond up,
8
and then there's a new $100,000 bond.
9
said is correct; right?
10
COURT CLERK:
11
THE COURT:
So everything I
Yes.
Thank you.
So it's $100,000 bond,
12
must remain in Pasco County; there's going to be
13
electronic monitoring which he'll get from the sheriff's
14
office as a condition; he may neither possess or consume
15
alcoholic beverages, and he may not own or possess a
16
firearm.
17
if he does violate any of these conditions, then that's
18
going to violate his bond, and then you'll lose your
19
money, and he'll be back in.
And then, obviously, if he does bond out, and
20
THE DEFENDANT:
21
MS. VERGOS:
Do you understand?
Yes,
Judge, is he supposed to report for
22
any kind of monitoring or supervision throughout the
23
course of this?
24
THE COURT:
25
MR. SHAHAN:
No.
He's on electric monitoring.
936
1
THE COURT:
What's going to happen, and we have
2
a deputy who is here that can help me out on this that
3
maybe can answer this.
4
Pasco County, so I would assume that they you can rig it
5
so that if he leaves Pasco County, they'll be alerted.
6
THE BAILIFF:
7
THE COURT:
As a condition he must remain in
Yes, Judge.
And then I'll instruct them that if
8
that happens, or if he violates any of these other
9
conditions, that they should arrest him.
10
THE BAILIFF:
11
THE COURT:
12
THE BAILIFF:
Yes, Judge.
Is that right?
Yes, Judge, they can do that.
13
They can put parameters, wherever you need them to be.
14
And then before -- obviously, he's going to go into
15
custody now, and then when he gets released to the
16
Sheriff's Department -- office, can put the electronic
17
monitoring on him and, by the way, if there's a charge
18
for that, which I don't know if it is, I know that there
19
is quite a charge from the Department of Corrections, but
20
if the sheriff's office charges for that electronic
21
monitoring device, then he's going to have to pay for
22
that.
Understand?
23
MR. SHAHAN:
24
THE COURT:
25
to pay for that.
Yes.
If there's a monthly fee, he'll have
937
1
MR. SHAHAN:
Yes, Your Honor.
And there's just
2
one thing that he's -- she's more alert tonight than I
3
am.
4
THE COURT:
5
MR. SHAHAN:
I didn't.
Like if I end up still being his
6
attorney, can there be one exception to that?
7
is in Tarpon Springs, Florida.
8
you or somebody that he's coming to me to visit; I have
9
appointments at his house or something.
10
11
THE COURT:
Maybe 24-hour notice to
Well, you're up here a lot; we see
you all the time.
12
MR. SHAHAN:
13
THE COURT:
14
My office
Yes.
So if you want to see him while
you're here, that's fine.
15
MR. SHAHAN:
16
THE COURT:
Okay.
But the order is he's not going to
17
leave Pasco County because it's going to be difficult for
18
the sheriff to monitor that, because the sheriff is going
19
to order that it's going to buzz if he leaves Pasco
20
County, and as soon as that happens, he's going to get
21
arrested.
22
MR. SHAHAN:
Right.
23
make that other motion?
24
THE DEFENDANT:
25
MR. SHAHAN:
Okay.
Do you want me to
Two motions.
We did one of them.
Anyway, the
938
1
money is up, like we said.
2
money, and to get the rest of the $100,000 or whatever,
3
it's going to make bondsman and father again.
4
not work, correct?
5
THE DEFENDANT:
6
MR. SHAHAN:
7
So you do
No.
So he wants me to ask you to
appoint him a Public Defender for appeal.
8
THE COURT:
All right, raise your right hand.
9
- - -
10
J O E
F R A N K
11
12
It is his father's cash
D A I A K,
s w o r n.
- - BY THE COURT:
13
Q.
All right, you're not working right now?
14
A.
No, I'm not working.
15
Q.
All right.
16
A.
Help from family , help from Donna.
17
Q.
Do you have any kind of income at all?
18
A.
No.
19
Q.
So you don't get Social Security or pension, or
20
21
22
How do you live?
anything?
A.
Doctors advised me to apply for Social Security
Disability, but I haven't done it yet.
23
Q.
For mental disability?
24
A.
Agoraphobia, severe agoraphobia, which is a
25
subset of anxiety and secondary diagnosis depression.
939
1
Q.
Do you own your own home?
2
A.
No, I rent.
3
Q.
Do you own your own vehicles?
4
A.
No, I do not.
5
Q.
Do you have any money in the bank?
6
A.
At this moment, I do.
We rent.
My father wired some
7
money so we could pay the rent.
8
couple of months ago.
Donna has got fired a
9
Q.
And how much money do you have in the bank?
10
A.
Best estimate right now, about $650, and that's
11
12
13
for the rent.
Q.
Do you have any other assets at all, stocks,
bonds, mutual funds, anything?
14
A.
No, sir.
15
Q.
Do you have any property that you could sell to
16
17
hire a lawyer for purposes of appeal?
A.
All I have is personal property.
Some, you
18
know, computer, eight-year old computer, and printers and
19
stuff that go with that.
20
Q.
All right, I'll go ahead and appoint the Public
21
Defender's office to represent you.
22
obviously, you know you have to do the Notice of Appeal.
23
MR. SHAHAN:
But Mr. Shahan,
Absolutely, Notice of Appeal, and
24
different grounds, whatever.
25
THE COURT:
Yeah, I know.
All right.
940
1
2
MR. SHAHAN:
I can't speak too well at this
hour, but I know.
3
THE COURT:
If Mr. Daiak decides he doesn't want
4
to appeal, then get that in writing from him and,
5
obviously, let the Court know.
6
MR. SHAHAN:
7
THE DEFENDANT:
8
9
10
Yes.
One more request.
Am I free to
make -MR. SHAHAN:
THE COURT:
What was that?
That's the order.
If you don't want
11
to fly with the order, then you don't have to bond out.
12
all right?
13
14
That's the order.
MR. SHAHAN:
Yeah, I understand, Judge, yes.
understands.
15
THE COURT:
16
MR. SHAHAN:
17
THE COURT:
All right.
Okay.
Anything else that needs to come
18
before the Court, Ms. Vergos?
19
MS. VERGOS:
No.
20
- - -
21
(Trial concluded at 12:30 a.m.)
22
23
24
25
He
941
1
CERTIFICATE OF REPORTER
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3
STATE OF FLORIDA
)
COUNTY OF PASCO
)
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5
6
7
8
9
I, P. ALECIA WILKINS, Court Reporter, in and for
the Sixth Judicial Circuit, State of Florida,
10
stenographically reported the foregoing proceedings and
11
that the transcript is a true and complete record of my
12
stenographic notes.
13
14
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DATED this ________day of _____________,2007, at
New Port Richey, Pasco County, Florida.
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__________________
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P. Alecia Wilkins
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Court Reporter
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Sworn to and subscribed before the
21
undersigned officer this ___ day
22
of_____________,2007.
23
Notary Public
24
State of Florida at Large
25
My commission expires: