IN THE COURT OF COMMON PLEAS

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

COMMONWEALTH

VS.

MUMIA ABU-JAMAL

aka

WESLEY COOK

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January Term, 1982
NOS. 1357 Poss Instru of Crime Gen
Poss Instru of Crime Weap
1358 Murder
Voluntary Manslaughter
1359 Involuntary Manslaughter

Courtroom 253
City Hall
Philadelphia, Pa.

June 19, 1982

Before: HONORABLE ALBERT F. SABO, J. and Jury

APPEARANCES:
  • JOSEPH McGILL, ESQUIRE
    Assistant District Attorney for the Commonwealth
  • ANTHONY E. JACKSON, ESQUIRE
    Court Appointed Counsel for the Defendant


3.02

I N D E X


Direct Cross Redirect Recross
MAUREEN FAULKNER
Examination by:
Mr. McGill
Mr. Jackson
35
39
40
PATRICK FAULKNER
Examination by:
Mr. McGill
41
OFFICER ROY LAND
Examination by:
Mr. McGill
Mr. Jackson
42
62
80, 96
87
REGINALD THOMPSON
Examination by:
Mr. McGill
Mr. Jackson
99 107
OFFICER ROBERT SHOEMAKER
Examination by:
Mr. McGill
Mr. Jackson
112 121 131, 148 133
OFFICER JAMES FORBES
Examination by:
Mr. McGill
Mr. Jackson
149 156 175
OFFICER DANIEL SOBOLOSKI
Examination by:
Mr. McGill
Mr. Jackson
176 182 203
ROBERT CHOBERT
Examination by:
Mr. McGill
Mr. Jackson
229 224 274 281



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EXHIBIT NO. DESCRIPTION PAGE
C-1 Police Hat........................................ ...............37
C-1(a) Police Hat........................................ ...............38
C-1(b) Frontispiece..................................... ...............38
C-2 Sketch............................................. ...............44
C-3 thru C-13 Eleven Photographs.......................... ...............44
C-14 Necktie............................................ ...............51
C-15 Green Beret..................................... ...............51
C-16 Photograph...................................... ...............58
C-17 Policeman's Patrol Log..................... ...............61
C-18 Bullet............................................... ...............81
C-19 Tape Recording............................... .............104
C-20 Transcript in Memo Form
of Tape Recording C-19..................
.............105
C-21 Photograph...................................... .............131
C-22 Revolver.......................................... .............153
C-23 Second Revolver.............................. .............153
D-1 thru D-9 Nine Photographs............................ ...............70



3.04

(Hearing is reconvened at 10:00 o'clock a.m.)

(At this time the Defendant confers with Theresa Africa.)

THE COURT: I am not opening Court yet because I want to first ascertain from Mr. Jamal whether or not he will behave himself in this Courtroom so that he can stay for the proceedings. Otherwise, as I put him out yesterday, I will leave him stay out if he's not going to behave himself.

Mr. Jamal, are you going to behave yourself and not disrupt the orderly proceedings of this Courtroom?

THE DEFENDANT: I sure will, Judge.

THE COURT: Okay, then we'll open Court.

MR. JACKSON: Before you bring in the jury, may it please the Court, I would initially request that the jury panel in this matter be dismissed. As Your Honor well knows, since this jury panel has been empanelled, a number of events have taken place within this Courtroom.

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The jury is, of course, very close to this Courtroom and within, I believe, hearing range of at least some of the activities that have occurred within this Courtroom, such that the jury may reasonably assume that indeed it has been caused by Mr. Jamal and would therefore prejudice the rights of Mr. Jamal to the extent that I believe they could not be fair and impartial in the adjudication of the facts of this case.

We know, of course, that there has been one jury person who has been dismissed by Your Honor. We don't know all of the facts and circumstances of what that person may or may not have done. It's my understanding from the Court Crier that that person was isolated from the other jurors, and we would assume that to be true; nevertheless, Your Honor, the question is now raised as to whether or not the other members of the jury panel may have been tainted from any other outside sources with respect to the activities and goings on within this Courtroom.

To that extent, and I believe in an abundance of caution, it would be appropriate to dismiss this jury panel and to have a new jury

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panel in place.

MR. MCGILL: Your Honor, in reference to the juror mentioned by Mr. Jackson, that was a joint excuse because of her unavailability. This was discussed at length and is a matter of Record. I don't think anything needs to be done publicly as far as her own reasons. I think the reasons at sidebar are on public record, and since it was a joint excuse, she was excused by Your Honor because of our agreement, the agreement between Mr. Jackson and myself.

And secondly, in reference to any outbursts made yesterday, certainly Your Honor has taken extreme precautions throughout all of these trials and actions of Mr. Jamal, particularly where there does appear to be a problem, the jury is immediately asked to withdraw. All during the course of yesterday's melee, the jury was not present. They were outside in separate rooms away from the Courtroom. It's hard to say whether or not they heard anything, but even if they did hear anything, certainly, Your Honor was not the cause, nor Mr. Jackson, nor myself, the cause of what ensued, so it could hardly be a

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matter of prejudice caused by state action.

I would suggest to this Court that this Court, Judge Sabo, has exercised, besides extreme patience, a great deal of ability to control potentially inflammatory situations, and in doing that you have kept the jury constantly away from it all. When the jury is empanelled in the normal proceedings, as they must, and something does occur, Your Honor cannot control what Mr . Jamal decides to do on his own. He can do what he wants to do in front of a jury. When it reaches a point where Your Honor feels the orderly presentation of the case is impeded, Your Honor can act appropriately, as you did yesterday. So there is no basis for that motion, I suggest respectfully.

THE COURT: The motion to dismiss the jury is denied.

MR. JACKSON: All right. May it please the Court, I'd also like to bring to the Court's attention that I am at this very moment prepared to defend Mr. Jamal to the best of my ability. I will also bring to the Court's attention that unless and until Mr. Jamal specifically indicates to me that it would be his strategy for me not to

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participate or, in other words, to remain silent with regard to the presentation of witnesses and facts, until or unless that is done and placed on the Record, I will defend Mr. Jamal in the traditional manner of an attorney, and I ask then that the trial begin.

THE COURT: All right, bring the jury in.

(The following transpired in open Court with the jury present:)

THE COURT: District Attorney, are you ready to address the jury?

MR. MCGILL: Yes, Your Honor. If it please the Court, the Commonwealth is prepared to proceed with its opening.

THE COURT: All right.

MR. MCGILL: Shall I proceed, Your Honor?

THE COURT: Yes, please.

MR. MCGILL: Ladies and gentlemen, good morning. At this particular time, as the Judge has stated, this is the opening to all of you. Now the opening is really a bird's eye view of what the evidence will be. It is not evidence in itself, so anything I say to you now will not be evidence. The only kind of real evidence that you

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will have an opportunity to hear and see will be coming from the witness stand.

In this particular case the Commonwealth seeks to prove this Defendant guilty of first degree murder, and we also seek the death penalty. But during the course of this particular trial your concern at this point is guilt or innocence, not penalty, at this point. I would suggest to you that the Court will tell you exactly what the law is as to all of the charges and all the principles of law that you must keep in mind during the course of the trial and during the course of your deliberation.

What the Commonwealth intends to prove is that Mumia Abu-Jamal intended deliberately and with premeditation to shoot Officer Daniel Faulkner to death on December 9, 1981.

Now, we will prove this in various ways, that is, a statement of the law itself as far as first degree murder is concerned, what I just gave you, we will prove this through eyewitnesses, physical evidence, scientific evidence, medical examiner's testimony, photographs, sketches, and also admissions.

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During the course of this entire trial, and I will say now barring any unforeseen -- and please don't hold me to this -- but barring any unforeseen delays, I will attempt to complete the case in chief, which is the Commonwealth's case of evidence, within three days because you are all probably wondering about time at this point. I will try to do that, barring any kind of interruptions, and we will start today, today will be number one. Of course, after that the defense then has an opportunity but then no obligation to put on a defense. I cannot give you the total number of days involved in this trial at all, I can only tell you what I anticipate my part of it will be, at least in the beginning.

Now, during the course of the testimony that you will hear, you will hear from various witnesses as well as Police Officers the various facts that I shall relate to you.

Mr. Jamal was observed on the night of December 9, 1981 shooting to death Officer Daniel Faulkner. Officer Faulkner was stopping an automobile, a Volkswagen, and the driver of that automobile was Mr. Jamal's brother William Cook.

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William Cook and Officer Daniel Faulkner then walked back from where the Volkswagen was to the side of 13th and Locust, on the south side of 13th and Locust Streets. This would be on the east side of 13th, south side of Locust by the automobiles.

During the time while officer Faulkner was discussing with William Cook the reason for the stop, William Cook turned around and hit in the face officer Faulkner with his right hand. At that point on the right side of his face he was hit and injured a bit. At that time our witnesses will testify that at that point Mr. Jamal ran over from the parking lot and he had a weapon, and there Mr. Jamal, as he went directly toward the position where Officer Faulkner was attempting to subdue William Cook who had just hit him, Mr. Jamal with a gun drawn and loaded, goes up and within a very short distance from the back of officer Faulkner, for it was his back that was facing Mr. Jamal at this time, shoots officer Faulkner right in the back.

The one or two times that the Defendant Mr. Jamal shot at that time, at least one hit the

3.12

back of officer Faulkner And you will hear the testimony that as he fell down, officer Faulkner was grabbing for something, and then Mr. Jamal, the Defendant, takes a few steps over as Officer Faulkner was down and was shot himself during the course of this.

After he had shot Daniel Faulkner and while Officer Faulkner was reaching and grabbing for something, then Mr. Jamal was shot himself during the course of this by Officer Faulkner. Officer Faulkner now is on the ground, and then you will hear the testimony of various witnesses that this Defendant walks right over to Officer Faulkner, who at this point is on his back, and within twelve inches of his head he points the gun that he had that was loaded and unloads that gun. One makes contact, and that was the fatal shot, right between the eyes, literally blowing his brains out.

He continued, however, to shoot, hitting one portion of the coat jacket. No contact was made because of the garment material, and he continued to unload his gun, at which point, after this shooting took place, the Defendant then

moves over, already himself being injured, and then falls to a curb area crouched over.

At that point officers arrived. He resisted being arrested, he was injured while he resisted being arrested. You will hear where he had been injured at the top of his head by officers arresting him. He was also kicked on the side of his jaw as he was reaching for a weapon, the very weapon that he used to kill Officer Faulkner.

At that time he was then taken to a wagon, and not only will you hear from witnesses about these particular actions that they observed on that night, but also these witnesses became close enough or came close enough to Mr. Jamal, to the Defendant, as he was taken to the wagon to identify him there, with one witness actually going right up to the wagon afterwards, and the Police saying, Did anybody see it, what happened, and they take him right up to the wagon, open it and say, Is this the man who did it; That's him, never having left his sight, in front of him an individual who saw it straight.

Another individual who happens to have been arrested several times for prosecution --

several times, she has a two, three page record of prostitution arrests -- she also is a witness and also observed everything that I have related to you, and she will testify.

Ladies and gentlemen, the evidence does not end there, for we will find that when the Defendant was arrested, seized from him was a shoulder holster as well as the weapon. The weapon, along with Officer Daniel Faulkner's weapon, was found right there by the scene on the ground near where they were laying, that is, Officer Faulkner as well as the Defendant. The shoulder holster was still being worn by this Defendant, the holster for the gun that he used in killing Officer Faulkner.

The evidence does not end there. At this time the Defendant is then taken to the hospital because of his injury, for he indeed was shot. Also he goes to Jefferson Hospital. At Jefferson Hospital he is taken in and left at a spot until it was determined where he should go for treatment. This man, this Defendant, you will hear and you will see throughout this trial as the evidence goes on, a picture of extreme arrogance, defiance,

3.15

even a strange boastfulness as to what he did in his deliberate killing of this Police Officer.

You will also see strange ironies in this case, such ironies as the very hospital where Officer Faulkner was rushed to while he was dying -- and he did not live long with that wound between the eyes -- the same hospital that he was sent to the Defendant was sent to because that was the closest place to go in order to have the Defendant's life saved, and that was another irony, where the very Police unit where he eliminated one of their members intentionally and viciously, that same unit helped him save his life, even though at the time he went to the hospital, you will hear, he didn't even want any treatment at that time. Extreme arrogance, but that arrogance continues because we find again, ladies and gentlemen, a situation at the hospital which best symbolizes this entire episode, you may find, and that is this: When he goes into the hospital an individual, which is also ironic, his former partner -- and you may well know, whether it be from television or radio or

3.16

anywhere, the closeness of partners in the Police Department because of the nature of their jobs and the dangers involved in it -- his former partner in there comforting Officer Faulkner as he is dying, ladies and gentlemen, walks out to the Defendant who unloaded his gun in him and literally blew his brains out, and he looked right at him and this man, this Defendant, you will hear, looks up to him at the time when he's just dying and said, "I shot the MF'er and I hope he dies." Arrogance, defiance, you will see it.

Ladies and gentlemen, not satisfied with merely that statement, he repeats that same statement as he is being taken away to an area where he could be treated in order to save his life. At the time he says, "I shot the MF'er and I hope he dies," his partner, who is looking right at him and sees his other partner there dying, looks at him and says, "If he dies, you die."

Then you will see the Police Officers guide this man, the Defendant, away to an area in

3.17

order that he can be treated, and before he goes in that treatment area you will hear testimony that he once again says, "I shot the MF'er and I hope he dies," and he got his wish, he got his wish. Viciousness.

The actions that you will hear during the course of this trial, ladies and gentlemen, through various types of evidence, you will see photographs, you will see the gun that did it, you will see Officer Faulkner's gun also where he was able to get off that one shot only that wounded but not fatally Mr. Jamal, you will see the cartridges as well as the gun that was used in the killing.

Even beyond this admission, there is yet another admission. Even before Dr. Colletta comes and saves his life, taking the bullet out and all, since there was a Court order by Judge Abraham forcing this Defendant to be operated on -- he had to be forced to he operated on again by the state -- and an admission made to a Police officer while he's on the journey, "I'm glad. If I get out of here I'll kill all you pigs."

You'll hear this testimony, the last one

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from a Police Officer. You will hear the testimony of the admission from a security officer, a security officer from the staff of Jefferson Hospital. You will see, as I mentioned, the real evidence of the guns. You will see his partner testify to those circumstances, his former partner; you will hear from the Crime Lab showing you the area of where the shots had taken place -- excuse me, where the shots had occurred on his garments. They will testify that specifically the shot in the back was within twelve inches. No question what the intent was. You will see through the evidence as that gun was going off, you will see from the testimony of the medical examiner that the shot that killed him was also within twelve inches, and you will see the actual garments where the other shots that missed but hit part of the garments, where they were positioned. You will see photographs of the scene, ladies and gentlemen. You will see a sketch of the scene which I will present to you.

Ladies and gentlemen, all of this is merely, as I mentioned before, an overview of what you will see. There may be some witnesses

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that come out of order. That is because of where they are coming from, problems of scheduling or whatever. There may be some delays which will be quite proper because of legal arguments or objections; please bear with us. Your patience so far is admirable, but please understand that this is what I am saying will be the evidence presented to prove that this Defendant viciously and intentionally took the life of a Police Officer in Philadelphia, Daniel Faulkner. Thank you.

MR. JACKSON: Your Honor, I reserve making opening remarks until a later time, but I would like to see Your Honor at sidebar for a brief moment.

THE COURT: Sure.

MR. MCGILL: Your Honor, could we have a short break now for the jury?

THE COURT: All right.

(A brief recess is taken.)

(The following transpired at sidebar in the
presence of the Court, counsel, and the Defendant:)

MR. JACKSON: Your Honor, after my remarks

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to you earlier with respect to my conversations with Mr. Jamal, Mr. Jamal has indicated now at defense table that he wishes me to refrain from making objections and he wished that I reserve the right to cross-examine any and all Commonwealth witnesses. I indicated to him that at this point it was my intention to make appropriate objections and to examine the witnesses when I felt in my experience it was appropriate. He says that it is indeed his strategy to withhold examination, to reserve examination of witnesses and not to object.

I indicated to him that I could not do that unless and until he placed that on the Record, and I'm asking now if that is indeed his desire, that it be placed on the Record. Other than that, I am going to proceed in the traditional manner of an attorney.

MR. MCGILL: I don't understand.

MR. JACKSON: You present your first witness, I would not make any objections if you were leading or asking irrelevant questions or any of the reasons that I might object.

MR. MCGILL: Oh, I see.

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MR. JACKSON: He's asking that I not object to that. At the conclusion of your examination he's asking I not cross-examine them at that point but I reserve the right to cross examine them at a later point.

MR. MCGILL: I see. At a later point, you mean after the witness leaves, call him back?

MR. JACKSON: Call him back.

MR. MCGILL: I would object to that procedure, Judge.

THE COURT: It's rather -- you see, you could ask some questions at that time and if there is some specific question that you would want to ask later on to maybe one witness, that would be possible, but to do that to every witness, the jury wouldn't get a proper consistent opinion of what's happening. In other words, they hear the witness and no cross-examination at all.

MR. JACKSON: I understand that, Your Honor, and that is why I indicated to Mr. Jamal that it would be my intention to raise appropriate objections to their testimony during direct examination and to examine those witnesses in the

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manner I feel best preserves his interest. Nevertheless, Mr. Jamal has made that request of me, and in effect, I would not be participating in the trial in the examination of those witnesses, and I've indicated to him that, again, that raises the very same issue.

THE COURT: But the thing is you would later on. See, this is what throws the thing out of all context as far as the jury is concerned.

THE DEFENDANT: Judge, I've made that request because that is my strategy, okay, and it's very clear that Mr. Jackson has other ideas that I don't agree with, but what's at issue is not his ideas but my life. That's my strategy that I would like to follow, and we would like to reserve the right to call those witnesses back. It may not be all of the witnesses, but we would like to reserve the right to call them back for cross-examination at a later time.

THE COURT: You can call them back as your own witness as part of your defense if you wish, but I don't think that you can just say to each one I reserve the right to cross-examine you later, and

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call them back at another time. You must make that --

THE DEFENDANT: I'm saying reserve the right because we don't have the -- you know, how could we get contact with them, you see what I'm saying, we don't have the phone numbers and stuff.

THE COURT: That's not the point. What I'm trying to explain to you, you just can't say to every witness, we want to call you back later on, and then wait until the Commonwealth finishes its case and then say, all right, now I'm willing to call back these witnesses one at a time.

THE DEFENDANT: If that's my strategy, what's wrong with that?

THE COURT: It's just not proper procedure.

MR. MCGILL: Judge, what he could do, and it's what Your Honor has already said, and this may be what he really wants --

THE COURT: Call them back as his own witnesses.

MR. MCGILL: Right, he could do that.

THE COURT: There is no doubt about that, that he could do.

MR. JACKSON: Could I talk to you for a

3.24

moment?

(The Defendant and his counsel confer for three minutes.)

MR. JACKSON: Your Honor, I have had an opportunity to speak to Mr. Jamal specifically with regard to the issue of calling the witnesses as his witnesses. I've recommended and advised him that it would not be proper or appropriate or strategically in his best interest to do that in that he would be restricted and limited with respect to impeaching those witnesses, particularly if they were called by him, in addition to which Mr. Jamal wants his wishes known, nevertheless, that he wishes to reserve the right to cross examine them at a later time.

I think at this point I am assuming that he is acceding to my advice with regard to calling them as his witnesses. He's saying if there is no other way of recalling those witnesses, then he would not call them as his own witness. But if, in fact, there is -- if the Court would provide him the opportunity to call them back on cross-examination and not as his own witness, then we would proceed immediately to question or

3.25

reserve questioning on those witnesses at a later date.

MR.MCGILL: The last part I didn't get.

MR. JACKSON: In other words, if there is no other way of calling those witnesses later other than calling them as his own witness, then he won't do it.

MR. MCGILL: Then he won't do it.

MR. JACKSON: Then he won't do it, but if there is any matter, some extant circumstance, some means that would allow him to call them on cross-examination, he would want to do that.

MR. MCGILL: Well, I would make a suggestion to Mr. Jamal that if he calls them as his own witness and if the purpose is to be able to question them at a later time than when they first testify, he may be getting the same effect. There may be some limitation in terms of leading questions and all, but much like the motion to suppress which he has had personal experience with, he has called witnesses on his own which he's questioned. Now if that's what he wants to do, that's fine. He cannot -- I mean, I'm not sure that he understands that -- I don't know if

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he's really losing the thrust of what strategy he wants by calling them as his own witness.

MR. JACKSON: My recommendation and advice to him is because of the limitation of impeaching them.

THE COURT: No, there is no limitation.

MR. MCGILL: He's right. Calling them as his own witness he cannot cross-examine them.

THE COURT: Not at the very beginning, but if they become a hostile witness, he could certainly cross-examine them.

MR. MCGILL: Well, even then I would object to it, I would object to calling a witness who may or may not be -- witness in criminal matters are not viewed as hostile.

THE COURT: Yes, but I still can't with every witness reserve the right to examine them later on because this jury is going to get confused.

MR. JACKSON: I understand that, Judge.

THE COURT: In other words, you can go as far as you want to with that witness on cross examination. Now if there's a particular area that you feel that you can't do at this time,

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then with that witness, fine, we could make a decision as to that witness.

MR. JACKSON: Sure, and maybe, Your Honor, this might be appropriate, I am going to request -- I don't know whether the Commonwealth intends to present their ballistician today, but if they do --

MR. MCGILL: Not today.

MR. JACKSON: Okay, because I do need some time to talk to the ballistician, but other than that -- that would be a specific instance where I would not be prepared to examine that witness. But I have explained to Mr. Jamal that unless there was some particular reason, as Your Honor indicated, for delaying the questioning of that witness, it would be my view, based on what they say --

THE COURT: See, what I'm saying to you, I think you should cross-examine him on everything that you can, but if there is a specific area and we know beforehand --

MR. JACKSON: Sure, and maybe Mr. Jamal needs to be aware that we always have the right to recall a witness in some area that we were not

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able to fully explore when they were on the witness stand, or if there is some subsequent developments that would lead us to bring the witness in, so it's not like if they testify and we examined them they are gone forever, we can always bring them back.

MR. MCGILL: As your own witness.

MR. JACKSON: Maybe you weren't aware of that.

THE DEFENDANT: Okay. The point I'm making is that I did not wish to have any cross-examination at this time. I wanted to reserve the right to call them back after --

THE COURT: I will not let you do that with every witness.

THE DEFENDANT: Well, Judge

THE COURT: It's out.

THE DEFENDANT: I would like to make the decision. I don't know what witnesses --

THE COURT: I have to make the decision.

THE DEFENDANT: Judge, wait a second. I don't know what witnesses are going to be called, obviously.

MR. MCGILL: Judge, maybe I can make a

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point, maybe we can cut -- example: If I call three witnesses, all right, and Mr. Jackson decides to accept his advice, which he does not have to, but if he accepts his advice to say, all right, fine, I won't cross-examine them and he wants to call those same three witnesses as defense witnesses, they can do that.

THE COURT: I'm not stopping him from that, but he doesn't want to do that, you see.

MR. MCGILL: That's essentially what --

THE COURT: No, he doesn't want to do that. He just wants to reserve his right to cross-examine all witnesses later on.

MR. MCGILL: I would object to any witnesses at any time. You don't reserve your right and say, I'm not going to ask you any questions now, but I'm going to call you back to examine you.

THE COURT: That's what he wants to do.

MR. MCGILL: But the same effect can be done as in the motion to suppress where you call them back or I let you lead more than usual.

THE COURT: What I'm saying, you must cross-examine them at that time to the fullest

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extent, and if there is a specific area that Mr. Jackson has said that he feels has to wait until a later time and he calls it to my attention, I would certainly allow him to reserve further cross-examination on that point.

THE DEFENDANT: Judge, what if it's part of my strategy --

THE COURT: Even if it's part of your strategy. If you're willing to give up your right to cross-examine entirely --

THE DEFENDANT: I'm not saying that. Don't put words in my mouth.

THE COURT: If you're not saying it, then you must follow the procedure as I'm setting it down for you. I think Mr. Jackson understands what I'm saying.

THE DEFENDANT: Mr. Jackson isn't on trial.

THE COURT: Well, he's the attorney and that's who I'm addressing so he understands.

MR. JACKSON: He can't cross-examine --

MR. MCGILL: He actually doing that depends on if I let him.

MR. JACKSON: Sure, and we have to depend on

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you letting him cross-examine them.

MR. MCGILL: Which I won't.

THE COURT: Unless there's something new, I'm not going to go over that and hear these witnesses for the next six months. Do you understand that that's what you have to have to have an orderly process here? Do you understand your attorney?

MR. JACKSON: I understand, and I think what he loses is the benefit of cross-examination of those witnesses because he would be depending upon Mr. McGill to allow him to cross-examine his own witness.

THE COURT: Not only that, this jury would have forgotten what they said, and if you're going to cross-examine, it's better that you do it immediately except if there's an area that you feel warrants calling them back later and that's a different story.

MR. JACKSON: I understand that, Judge. And Mr. Jamal would like two minutes with Theresa.

MR. MCGILL: I have no objection. I want you to put on the Record that he already had twenty minutes --

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THE DEFENDANT: Six minutes.

MR. MCGILL: All right, six minutes with Ms. Africa.

THE COURT: All right, call me when you're ready.

(The Defendant confers with Theresa Africa for three minutes.)

(The following transpired at sidebar out of the hearing of the jury:)

MR. MCGILL: This will be brief, I assure you, Judge.

MR. JACKSON: Your Honor, I'm going to renew my motion to have Detective Thomas sequestered.

MR. MCGILL: He is here, Judge, that's why I mentioned before to you that I would need, although he is not only at my table, I just need him to be running out and getting people and getting the next witness and if I can't find a piece of evidence. In other words, he's the assigned detective. He may testify but only to the fact that he took a search warrant out or took a statement. He might read the statement that he

3.33

took, he might be called for that purpose only, so I would ask the Court to allow him to remain in the courtroom.

MR. JACKSON: Your Honor, I would have no objection if we got an absolute guarantee from the Commonwealth that Bill Thomas would only read statements or read a search warrant, and if he gets into any testimony other than what's being read, I would like to know.

THE COURT: Why don't you tell him exactly what he is being called for.

MR. MCGILL: What he just said is accurate. I don't completely know -- Judge, I have no idea what their defense is going to do. It may involve the assigned detective explaining what he has done for six months, who knows.

MR. JACKSON: I would object.

THE COURT: Let me say this --

MR. MCGILL: See, Judge, it often is done that the assigned detective is allowed in many cases because of this same reason, that he is always there with somebody.

THE COURT: Well, let me ask you: He was

3.34

not at the scene that night, or was he?

MR. MCGILL: I think he was at the scene serving a search warrant on the automobile, on the cab, he did that. He won't testify to seeing stuff except for the cab, that search warrant. He won't testify to eyewitness stuff, he will not testify to any of Jamal's alleged admissions, you know, he would only testify, if at all --

THE COURT: Let me say this: If you run into problems, if he's outside and you run into any problem, ask for a little recess and then you can bring him in and, you know, he can run for whatever you want.

MR. MCGILL: All right.

MR. JACKSON: I'm not trying to give --

THE COURT: That might be the easiest way to do it.

MR. JACKSON: I'm afraid to do otherwise, Your Honor.

THE COURT: Who is your first witness?

MR. MCGILL: Maureen Faulkner.

THE COURT: And then what?

MR. MCGILL: The Crime Lab.

THE COURT: Do you have any objection that

3.35

he stay in for that?

MR. JACKSON: No.

THE COURT: And then after that he can leave, because it would be obvious if we let him out now.

MR. JACKSON: Sure, no problem.

(The following transpired in open Court in the presence of the jury:)

MR. MCGILL: Your Honor, may I proceed?

THE COURT: Yes, you may.

MR. MCGILL: Ladies and gentlemen of the jury, Mrs. Faulkner.

(MAUREEN FAULKNER, is duly sworn.)

MR. MCGILL: May I proceed, Your Honor?

THE COURT: Yes.

DIRECT EXAMINATION BY MR. MCGILL:

Q. Mrs. Faulkner, can you hear me?

A. Yes.

Q. Now, Mrs. Faulkner, what was your relationship with the deceased in this case, Daniel Faulkner?

3.36

Direct - Faulkner

A. Daniel was my husband.

Q. And where was he employed?

A. Philadelphia Police Department.

Q. Approximately do you know when he started with the Police Department?

A. It was shortly after he came out of the Service.

Q. How long was he on the Police Department?

A. About six years.

Q. You mentioned the Service. What Service was that?

A. The Army.

Q. Enlisted?

MR. JACKSON: Objection.

THE COURT: Sustained. Try not to lead.

Q. All right. When did you last see your husband?

A. December 8, 1981 at 11:30 p.m.

Q. Where?

A. At our home in Southwest Philadelphia.

Q. At approximately what time?

A. 11:30 p.m.

Q. And was that the last time you saw him alive?

A. Yes.

Q. Mrs. Faulkner, when he left, how was he dressed?

A. In his Police uniform.

Q. And how was that? What kind of uniform was that?

3.37

Direct - Faulkner

A. Philadelphia Police uniform.

Q. Did he also have a tie?

A. Yes.

Q. Was part of the normal --

A. Yes.

Q. What kind of tie was that?

A. Blue tie.

Q. I mean is it like a bow tie?

A. No, it's a clip-on.

MR. JACKSON: Objection, Your Honor.

MR. MCGILL: It will become relevant later on, Your Honor. I don't want to show her that evidence.

THE COURT: All right.

MR. MCGILL: I think it would be better for them if I didn't.

THE COURT: Objection overruled.

MR. MCGILL: I would ask this be marked C-1.

(Police hat is marked C-1 for identification.)

Q. All right, Mrs. Faulkner, showing you what has been marked as C-1, can you identify that?

A. It appears to be my husband's hat. The frontispiece

3.38

Direct - Faulkner

is missing, I have that with me.

Q. I asked you to bring that today?

A. Yes.

Q. Do you have that with you on the stand?

A Yes.

Q. Okay, would you take that out.

(The witness complies with counsel's request.)

MR. MCGILL: Your Honor, I ask this be marked C-l (a) and (b), the hat (a) and the piece being (b).

(Police hat is marked C-l (a) for identification,
and Frontispiece is marked C-l (b) for identification.)

Q. Now, was that the hat that he was wearing when you saw him last?

A. Yes, I believe it was the hat that he wore.

Q. Now, Mrs. Faulkner, when was the next time that you saw him?

A. I saw him the night of the wake.

Q. Now, at the time when he left you on December 9, 1981 was he injured in any way?

A. No, he was not.

Q. Was he in good health at that time?

3.39

Direct - Faulkner

A. Yes.

Q. And how long had he worked for the Philadelphia Police?

A. About six years.

Q. And one of his brothers at one time worked for the Police, too?

MR. JACKSON: Objection.

THE COURT: Sustained.

MR. MCGILL: Cross-examine.

CROSS-EXAMINATION BY MR. JACKSON:

Q. Mrs. Faulkner, when you last saw your husband did he have a camera with him?

A. No.

Q. Do you know him to own a camera?

A. Yes.

Q. Do you know when he purchased the camera?

A. No.

Q. On December the 8th when you last saw him, do you know where the camera was?

A. No.

Q. Did you know your husband to have a flashlight?

A. Yes.

3.40

Cross - Faulkner

Q. Did you see the flashlight on December the 8th?

A. No.

Q. Do you know where the flashlight was on December the 8th?

A. No.

MR. JACKSON: Thank you very much, I have no further questions.

REDIRECT EXAMINATION BY MR. MCGILL:

Q. Mrs. Faulkner, did he normally carry a flashlight with him?

A. Yes --

MR. JACKSON: Objection -- withdrawn.

Q. Your answer was yes?

A. Yes.

Q. And do you know whether he had a flashlight on the night of December the 8th, or don't you know?

A. Well, sometimes he kept things in his locker.

Q. I see. Thank you very much.

MR. MCGILL: Does the Court have any questions?

THE COURT: No.

MR. MCGILL: Mr. Jackson, any more?

3.41

Direct - Faulkner, P.

MR. JACKSON: No.

(The witness is excused.)

MR. MCGILL: Mr. Patrick Faulkner.

(PATRICK FAULKNER, is duly sworn.)

MR. MCGILL: May I proceed, Your Honor?

THE COURT: Yes.

DIRECT EXAMINATION BY MR. MC GILL:

Q. All right, Mr. Faulkner, what was your relationship to the deceased Daniel Faulkner?

A Daniel was my brother.

Q. Now, I direct your attention to December the 9th, 1981. Did you have occasion to go to the office of the Medical Examiner?

A. Yes, I did.

Q. And for what purpose did you go there?

A. I went there to identify the body of my brother.

Q. And did you identify the body of your brother there?

A. Yes, sir, I did.

Q. And what was his condition at that time?

3.42

Direct - Faulkner, P.

A. He was dead.

Q. When did you last see him alive?

A. Approximately a week before.

Q. Was he in good health at that time?

A. Yes, sir, he was.

MR. MCGILL: Cross-examine.

MR. JACKSON: No questions.

THE COURT: Thank you, Mr. Faulkner.

MR. MCGILL: Does the Court have any questions? I'm sorry, I didn't ask.

THE COURT: No.

(The witness is excused.)

MR. MCGILL: Officer Roy Land.

(POLICE OFFICER ROY LAND, Badge No. 9894,
Mobile Crime Detection Unit, is duly sworn.)

MR. MCGILL: May I proceed, Your Honor?

THE COURT: Go ahead.

DIRECT EXAMINATION BY MR. MCGILL:

Q. Officer Land, what is your current occupation?

3.43

Direct - Land

A. Philadelphia Policeman attached to the Mobile Crime Detection Unit.

Q. December 9th and also on December the 10th, 1981, were you employed?

A. Yes, sir.

Q. And were you employed in the same capacity?

A. Yes, sir, I was.

Q What are the duties of the Mobile Crime Detection personnel?

A. The Mobile Crime Detection Unit is -- in respect it's a mobile unit which is assigned to several vehicles to go out through the City and take photographs, do fingerprinting, take casting work -- casting work being of footprints -- sketches and collect any items or physical evidence that a detective deemed necessary for any case.

Q. All right, officer, in this particular case, the case involving the death of Daniel Faulkner, were you the assigned Mobile Crime Technician?

A. Yes, sir.

Q. Did you have occasion, sir, to take various photographs of the scene?

A. Yes, sir, I did.

3.44

Direct - Land

Q. Did you also have occasion to prepare a sketch of the area?

A. Yes, sir.

MR. MCGILL: If I may, Your Honor, may I have the help of the Court staff to set up?

THE COURT: You may.

MR. MCGILL: Move it over here so the defense can see it. Mark this C-2.

(Sketch is marked C-2 for identification.)

Q. I am going to show you what is marked C-2 and ask you if you can identify what C-2 is?

A. Yes, sir. It's an enlargement of a sketch, a finished sketch made of that area at 13th and Locust.

Q. And when did you make it?

A. The rough sketch was made that morning of 12-9-81. The finished sketch was made sometime thereafter.

Q. You had also indicated that you had taken photographs?

A. Yes, sir.

MR. MCGILL: All right, I'll ask that these be marked C-3 through C-13.

(Eleven photographs are marked C-3
through C-13 for identification.)

3.45

Direct - Land

MR. JACKSON: If Your Honor would indulge me a moment.

(Pause.)

MR. JACKSON: Thank you very much.

MR. MCGILL: Would you show the officer C-3 through C-13.

Q. Would you take a look at each of those numbers, first to see if you can identify whether or not they are your photographs?

A. Yes, sir. Yes, sir, these were taken by myself.

Q. Did you also pick up various pieces of evidence?

A. Yes, sir.

MR. MCGILL: Your Honor, at the Court's pleasure, may I ask Officer Land to come down to the sketch? It might be easier.

THE COURT: You may.

MR. MCGILL: Would you come down to the sketch with your photographs. If Mr. Jackson cannot see, I might suggest that he stay at my seat and I'll be over here and ask questions.

(The witness complies with counsel's request.)

3.46

Direct - Land

Q. Officer Land, if you have need for this, I'll leave this right here. Now, Officer, would you first take a look at the sketch which is marked C-2. Would you tell the jury please, exactly what that sketch represents?

A. C-2 is an enlargement sketch made by myself showing the area of 13th and Locust indicating north in this direction (indicating), the intersection, a large parking lot, continuing down to buildings which were on the south side of Locust Street and buildings and vacant properties along the north side.

THE COURT: All right, so going from west to east, going actually toward the Delaware River, would you indicate that direction on the sketch on Locust Street?

THE WITNESS: In this direction (indicating)

THE COURT: All right, that's going then from 13th to 12th Street; is that correct, sir?

THE WITNESS: Yes.

THE COURT: All right, would you please show what is represented on that sketch?

THE WITNESS: The sketch, in part, is indicating the Police car, which is radio patrol car 610, and the three cars lined up, it would be

3.47

Direct - Land

to the west, the rear. Continuing up is a 1963 Volkswagen, blue in color; continuing up was a Ford Galaxy that just happened to be parked there in front of the Volkswagen, the most furthest east vehicle.

Q. Now, what is the area which is really north of where the patrol car is?

A. The area north is a large parking lot for vehicles. Continuing next to it eastward are just buildings.

Q. What were the lighting conditions there at the time that you arrived?

A. Lighting conditions were -- there was one light which was on the southeast corner, and on the northeast corner inside the parking lot was a -- I wouldn't say a large, but I would say bigger than a street light, illuminating light, kind of a fluorescent type of light.

Q. Where was that located?

A. Inside the parking lot on the northeast corner. And we have another light which was on the northwest corner of 13th and Locust on the Locust side.

Q. Further down on Locust Street, on the north side

3.48

Direct - Land

of Locust Street, is there a light indicated there also?

A. Yes, sir, almost across from the Ford which was in front of the Volkswagen.

Q. Were those lights functioning?

A. Yes, sir, they were.

Q. What time did you arrive?

A. We arrived at that scene at 4:15 a.m.

Q Did you also see lights in the area of a pizza shop; do you recall?

A. I do not recall, sir.

Q. Okay. Now, you have various photographs, C-3 through C-13. Would you identify each photograph, please, and then show on the sketch where that photograph or the scene depicted on the photograph would be represented?

A. C-3 is a view looking in the northeast direction showing the right side and the rear of the Volkswagen.

THE COURT: Show us where on the sketch.

THE WITNESS: I was standing right here facing the northeast direction taking the photo.

A. (Continuing) C-4 is a view looking northwest showing the right side and the front of the Volkswagen,

3.49

Direct - Land

standing approximately in this location shooting (indicating). C-5 is a view looking south showing the Volkswagen and radio patrol car 610 in front of 1234 Locust Street.

Q. All right, show us where that was?

A. That view of that photo was taken approximately in this area looking south (indicating). C-6 is a view looking at the rear of radio patrol car 610, standing directly in back of the Volkswagen shooting east. C-7 is a view looking south at the left side of the Volkswagen, standing almost in the middle of Locust Street shooting at the side of the Volkswagen. C-8 is a view looking at the clipboard with a Police Department form 75-158, which is a Patrol Log, and 75-48, which is a Complaint or incident report on same. This was placed on the rear -- on the left rear trunk and a photo was taken of that. That was removed from the inside of the vehicle.

Q. Of what vehicle?

A. Radio patrol car 610. (Continuing) C-9 is a photo looking inside radio patrol car 610 from the driver's side, front

3.50

Direct - Land

seat. C-10 is a view looking at the red stain on the sidewalk just west of 1230 Locust Street. This photo was taken behind this front vehicle, the Ford, in front of the Volkswagen looking south.

THE COURT: That stained area that you indicated, where would that be on the sketch?

THE WITNESS: Right in between the Ford vehicle and the Volkswagen vehicle.

THE COURT: All right, indicating the sidewalk?

THE WITNESS: Yes, Your Honor.

THE COURT: Locust Street sidewalk between the Ford and the Volkswagen you are pointing to?

THE WITNESS: Yes, sir.

A. (Continuing) C-11 is a view looking southeast showing the left side and the rear of the Volkswagen, standing just to the rear and almost in front of radio patrol car 610 shooting in this direction (indicating).

C-12 is a view looking south from the middle of the parking lot on the northeast corner of 13th and Locust. There is a booth in the middle of the parking lot just west of that, shooting in this

3.51

Direct - Land

direction (indicating). This is a view looking east showing the rear of the Volkswagen, showing the tag number, the tag being 11675T, like in Tom. I was standing -- not standing, I was more or less leaning on the rear -- on the front of radio car 610 taking this photo.

Q. Officer Land, you also indicated that you seized certain pieces of evidence?

A. Yes, sir.

Q. Take a look at C-1.

MR. MCGILL: While he's doing that, I'd ask this be marked C-14 and this be marked C-15.

(Necktie is marked C-14 for identification.)

(Green beret is marked C-15 for identification.)

Q. Can you identify C-l?

A. Yes, sir. It appears to be the hat that I collected that night.

Q. And where did you collect that hat?

A. The hat was taken from beside the Volkswagen two feet six inches south of the south curb line and eight feet eight inches east of the property line. Putting it very bluntly, it was almost at the door area

3.52

Direct - Land

of the Volkswagen where the door opens up.

Q. All right, I'm showing you what's been marked C-3. Is that hat represented on C-3? Is that what you're indicating on the sketch?

A. That's correct, sir.

Q. And C-1 is that hat?

A. Yes, sir.

MR. MCGILL: I've already asked this be marked C-14 and C-15, Mr. Jackson.

Q. I am now showing you C-14 and ask whether you can identify C-14?

A. Yes, sir.

Q. What is that?

A. That's the black standard police tie which I retrieved from the street at the intersection on Locust Street and 13th. It was taken six feet east of the east curb. It would be out -- excuse me, 6.9 inches south of the north curb. So in total respect, it would be in that area (indicating).

Q. All right, take a look at C-15 and see if you can identify that?

A. Yes, sir.

Q. What is C-15?

A. C-15 is a green beret taken from against a pole,

3.53

Direct - Land

a metal No Parking or whatever you can park sign that was two foot three inches south of the south curb on the south side of Locust Street.

Q. I'm showing you what has been marked C-11. Is that hat represented on that photograph?

A. Yes, sir. On the pole it's just shown at the very edge of the photo, the very base.

Q. Could you circle that, please?

(Witness complies with counsel's request.)

Q. Also, sir, could you indicate on there where the hat was, on the sketch, by using a "H", where C-15 was, and if you could put a "T" for Tam, as well as where the tie was, you could put "T" for that tie, just approximate. I know this is just approximate, but just to give us a general idea.

A. Yes, sir. Did you want a "H" for hat and "T" for tie?

Q. Yes.

A. That's been so marked.

Q. And for the green -- C-15 --

A. The green beret? Oh, I marked that -- all right.

Q. You can put "T" for that, also.

A. I indicated it by "PH", police hat

.

3.54

Direct - Land

Q. "PH" is the C-1, right?

A. Yes, sir.

Q. And what did you identify the tam as?

A. As an "H" sir.

Q. Fine. Now, did you also take any blood swabs?

A. Yes, sir, I did.

Q. Would you indicate to the jury what you mean by a blood swab and how you take it?

A. A blood swab is taken in a vile, small viles we carry by Q-tips, and they were dumped into a solution of saline, saline being a compound which we get out of the chemical lab which is a salt kind of water which does not allow the blood chemistry to separate. That is soaked and dumped into the small viles, capped, sealed and taped and submitted to the medical lab.

One vile containing two kinds of swabs with red stains was taken from the sidewalk eight feet south of the south curb and nine feet six inches it was to the east property line, which would mean in the area in between the Volkswagen and the Ford in front of it on the sidewalk.

The next vile containing two kinds of swabs with red stains was taken from the sidewalk seven foot eight

3.55

Direct - Land

inches south of the south curb of Locust Street and two feet eight inches west of the east property line, which is approximately four inches north of where the first one was taken.

Q. Now I'm showing you what's been marked C-10. Is that the general stained area there where you took those swabs?

A. Yes, sir.

Q. Could you again estimate with a circle where the swabs were taken?

(Witness complies with counsel's request.)

A. I've indicated with an arrow with the number one and another arrow with the numeral two beside it.

Q. And would you again with an estimate put one and two on the sketch where they would be?

A. All right, sir.

Q. Did you take any other blood swabs?

A. There was one vile containing one cotton swab with a red stain and a piece of glass taken from the same location. It is item number two on my property receipt, which is the same as the green beret against the pole.

Q. Did you take any other evidence? Specifically, did you receive any fragments?

A. Yes, sir.

3.56

Direct - Land

And where did you do that?

A. Item number one on property receipt 850629 was one copper jacket that was taken eleven feet four inches south of the south curb of Locust Street and nine feet west of the east property line of 1234 Locust Street, approximately in this area (indicating).

Q. All right, that is a fragment, officer?

A. It's a projectile, sir.

Q. All right, put a "P" there if you would.

(Witness complies with counsel's request.)

A. (Continuing) Item number two, one lead projectile taken from the front door leading into 1234 Locust Street, three and a half inches west of the west door edge and three feet seven inches up from the sidewalk.

MR. JACKSON: May I hear those dimensions again, please?

THE WITNESS: Three and a half inches west of the west door edge, three foot seven inches up from the sidewalk.

Q. Would you tell the jury why you turned the sketch around?

A. Yes, sir. There are two different scales on the sketch. One is strictly for the doorway of 1234 Locust Street, and I've taken that area and blown that up,

3.57

Direct - Land

indicating three and a half inches from the west door edge and three foot seven inches up, so we're talking in the area of -- do you want me to mark that as --

THE COURT: Yes, if you would.

A. (Continuing) I'll mark that "B" for bullet. Item number three are lead fragments at the front property line of 1234 Locust Street and three feet west of the front door. I can also indicate that on here.

Q. I think you ought to stay right with that same scale, the doorway there. Just estimate it.

A. I've indicated on the sketch "F" for fragments. Item number four, same property receipt are lead fragments taken from inside the vestibule of 1234 Locust Street, six foot eight inches east of the west wall and six feet ten inches south of the front door.

Q. Was there any kind of hole or anything on the windows of that doorway?

A. Yes, sir, there is.

MR. JACKSON: Just a moment.

(Defendant and his counsel confer.)

MR. JACKSON: All right.

A. (Continuing) All right, the hole was in the glass where the glass sits in the molding, where the molding comes together to hold the glass in, the upper

3.58

Direct - Land

region of the door and the glass. The glass was broken, the fragments were found inside, six feet ten inches south of the front door, so that's an approximate distance from here to the bar.

MR. MCGILL: I ask this be marked as C-16.

(Photograph is marked C-16 for identification.)

MR. MCGILL: Show the Officer C-16.

Q. What is C-16, Officer?

A. C-16 is a head-on view looking directly into 1234 Locust Street, also indicating other doorways that are both on the east and west side of same.

Q. Now, where on the chart was that photo taken and where is it shown on the chart?

A. The photo was taken from the driveway leading into -- I should say just east of the driveway leading into the parking lot on the northeast corner of 13th and Locust looking in a southerly direction.

Q. Now, the pole that you stated and also that's observed in this photo C-16 and also in the other photographs, where is that pole on the south side of Locust Street on that chart?

A. The pole I've indicated with a "P" next to the "H" for the hat, which is two feet south of the

3.59

Direct - Land

south curb and one foot one inch off of the doorway leading into 1234 Locust Street.

Q. Now, what did you do with these items that you recovered; first of all, the hats, C-1 and C-15, as well as C-14? What did you place them on and where were they to be taken, as well as the fragments?

A. The hats, the viles, the tie, other items were submitted on property receipt 850628. They were submitted to the Criminalistics Laboratory at the Police Administration Building, 8th and Race. The fragments, projectiles were on property receipt 850629 and submitted to the Firearms Identification Unit, Police Administration Building, 8th and Race.

Q. Now, Officer, you had stated that one of the exhibits, specifically C-8, shows a Log?

A. Yes, sir.

Q. What is that log?

A. It's a Policeman's patrol log, which is actually a Policeman's diary of what he does on his shift indicating car stops, pedestrian stops, stop and check stores, certain radio jobs, certain site jobs; anything that he does is recorded on that log.

MR. JACKSON: Objection. Move to strike.

3.60

Direct - Land

THE COURT: See you at sidebar.

(The following transpired at sidebar with the
Defendant present out of the hearing of the jury:)

MR. JACKSON: Your Honor, the basis of the objection is the witness is stating that the log contains everything that the officer does, and I move that that be stricken, that's all.

MR. MCGILL: Well, that's the usual procedure that they place it down in.

THE COURT: Well, he sees the car stops and checks.

MR. JACKSON: Right, I didn't object to that, just "everything he does".

MR. MCGILL: I don't mind if he strikes "everything he does".

THE COURT: I thought he was referring to everything he does when he makes a stop.

MR. JACKSON: Well, I didn't get that impression and that's the basis of the objection.

THE COURT: Okay.

(The following transpired in open Court in the presence of the jury:)

THE COURT: The Court will strike from

3.61

Direct - Land

the Record the words "everything he does". The rest will remain.

MR. MCGILL: I ask this be marked C-17 and ask that that be shown to Mr. Jackson and then Officer Land.

(Policeman's Patrol Log is marked C-17 for identification.)

Q. I'm showing you, Officer Land, what has been marked C-17. I ask you to take a look at that in conjunction with C-8 and tell me if you can identify what C-17 is?

A. Yes, sir. It appears to be a photostat of the Log that I took that night in the C-8 photograph.

Q. And that was taken from Officer Faulkner's car?

A. Yes, sir.

Q. Thank you, Officer. You may take the witness chair.

(Witness returns to the witness stand.)

Q. Now, Officer, you had taken actually a number of other photographs that we didn't mark to show; is that correct, sir?

A. Correct.

MR. MCGILL: Cross-examine.

3.62

Cross - Land

CROSS-EXAMINATION BY MR. JACKSON:

Q. Officer Land --

MR. MCGILL: Before you start Mr. Jackson, what is Your Honor's pleasure? Finish with the witness?

THE COURT: We'll finish with the witness.

MR. JACKSON: In fact, just one moment, please.

(Pause.)

Q. Officer Land, you also developed or at least took a few latent fingerprints; is that correct, sir?

A. No, sir.

Q. That was not --

(The Defendant and his counsel confer.)

Q. Did you take any latent prints at the scene at all?

A. No, sir.

Q. Did Officer Eberhardt take latent prints at the scene, sir?

A. No, sir.

Q. Do you know who took latent fingerprints at the scene?

3.63

Cross - Land

A. Nobody at the scene, sir.

Q. There were other items that you seized at the scene; is that correct?

A. Yes, sir.

Q. You seized a glass beer bottle, Miller's?

A. Yes, sir.

Q. And who lifted the print?

A. I did, sir.

Q. Where did you lift it?

A. Inside the Police Administration Building.

Q. You lifted -- where was this glass beer bottle obtained, sir?

A. They were in between -- it was in between the seats, the front seat of the Volkswagen.

Q. And there was a one quart juice bottle that you took in as well; is that right?

A. Yes, sir.

Q. And was there a latent print taken from that item?

A. That was dusted.

Q. Pardon me?

A. That was dusted for prints, sir.

Q. And the results?

3.64

Cross Land

A. Were negative, sir.

Q. There was a metal -- by the way, where was this juice bottle?

A. The juice bottle was in a brown bag on the passenger's front floor.

Q. Of what vehicle?

A. The Volkswagen, sir.

Q. Metal can, Raid bug spray?

A. That was in the same bag as the juicer.

Q. What items did you take from Officer Faulkner's vehicle, sir?

A. None, sir.

Q. Did you see any items in there?

A. Oh, there were plenty, yes, sir.

Q. And you didn't dust any of them for latent prints?

A. No, sir.

Q. Sir, you, I take it, developed these latent prints; is that correct?

A. Yes, sir.

Q. And did you do a comparison of these prints with any of the parties involved in this incident?

A. No, sir, I did not.

Q. Did you submit them to someone to be compared?

A. Yes, sir, I did.

3.65

Cross - Land

Q. To whom did you submit them?

A. They were submitted to the Identification Unit down at the Police Administration Building to the attention of G. Famiglietti.

Q. Do you know the results of that comparison, sir?

A. Yes, sir.

Q. Would you tell us?

A. The total of five lifts that were sent down to the Identification Unit were not identifiable.

Q. Were there any other items that you submitted or that you confiscated or seized at or about the scene that you dusted or otherwise developed a latent fingerprint?

A. Myself, no, sir.

Q. Do you know if any other officer, person or individual seized or obtained any other items that were submitted to you or anyone else in the Police Department for identification purposes, either fingerprint or otherwise?

A. Yes, sir, I do.

Q. Would you tell me what that is, sir?

A. One .38 caliber Smith and Wesson, four inch barrel, blue steel with black rubber grips, serial number being D-752117. Also, one .38 caliber Chartered

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Arms Undercover, two inch barrel, blue steel with brown wooden grips, serial number 510293. These items were dusted by Police officer William Eberhardt, Badge 1788, attached to the Mobile Crime Detection Unit.

Q. Did you see these weapons?

A. I did not, sir.

Q. So you're reading from a report and of which you have no firsthand knowledge; is that correct?

A. I know what, sir?

Q. You have no firsthand knowledge of the proceedings that you are reading from; is that correct? In other words, you are reading from a report that says Officer William Eberhardt dusted these weapons?

A. He related that to me, yes, sir.

Q. He related that to you, but you didn't see him do that?

A. No, sir, I did not.

Q. Nevertheless, the results of the dusting, does it show any identifiable latent prints, sir?

A. No, sir.

Q. Is there anything that you found at the scene that has a fingerprint of Mr. Jamal or Officer

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Faulkner?

A. No, Sir.

Q. Anything at the scene that you've submitted or that you found or that you know has a fingerprint of William Cook, Mr. Jamal or, again, Officer Faulkner?

A. No, Sir.

Q. Did you see these weapons when you arrived at the scene, Sir, these two weapons you've just described?

A. No, Sir.

Q. Was Officer Faulkner at the scene when you arrived?

A. No, Sir.

Q. So you don't know the relative positions of the items you seized at or about the time of the shooting, do you? Do you understand my question, Sir?

A. I do not, Sir.

Q. Fine. I believe you indicated that you obtained a tie from Locust Street; is that correct? -- correct me if I am wrong.

A. Yes, Sir.

Q. And you found the hat on the sidewalk; is that correct?

A. Yes, Sir.

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Q. Now, do you know if the tie was in the street and the hat was on the sidewalk at the time of the shooting? I don't mean to be ridiculous, I'm just trying to make the point that you don't know how those items got there; is that right?

MR. MCGILL: I'll concede that.

MR. JACKSON: I'm not asking for a concession, I want to ask this officer.

A. That's correct, sir.

Q. Do you know who put the tie in the street?

A. I do not, sir.

Q. Did you ask how the tie got there?

A. No, sir.

Q. No one told you how it got there either?

A. I beg to differ, I did ask that someone, I think, give me a --

MR. MCGILL: Objection.

MR. JACKSON: I'd like to know, Your Honor. He's doing a lot of hearsay reporting.

THE COURT: Well, I think that I have to rule now he has.

MR. MCGILL: All right, withdraw the objection.

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A. I believe someone had told me it had gotten there when they carried Daniel Faulkner away. That was it.

Q. Officer Land, you indicated that part of your job requires you to take photographs and sketches and things of that sort; is that right?

A. Yes, Sir.

Q. And of course, you've submitted at least thirteen or more photographs that we've seen. Did you take photographs of the projectiles that were in the doorway?

A Inside the vestibule; is that what we're talking about?

Q. Yes, Sir.

A. Yes, Sir.

Q. Do you have them with you?

A. I do not have them.

Q. But you did take photographs. I don't need to look at them, I just want to make certain -- and you submitted them to the District Attorney's office?

A. No, Sir. I turned them over to the Homicide Division.

Q. Now, there were also, I believe, bullet fragments in the door of 1234 Locust; is that correct?

A. There was a bullet.

Q. A bullet, and you removed it?

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A. I did, Sir.

Q. And before removing it you took a photograph of it; is that right?

A. Yes, Sir.

MR. JACKSON: May I have these marked, please make these D-1 through however many items there are.

(Nine photographs are marked D-1 through D-9 for identification.)

MR. JACKSON: Officer Land, could you identify and describe each of the items that have just been marked, please, starting with D-l?

THE WITNESS: D-1 is a view looking at a copper jacket on the sidewalk eleven feet four inches south of the south curb of Locust Street and nine feet west of the east property line of 1234 Locust Street. D-2 is a view looking at a gray mark on the wall three feet seven inches west of the door way of 1234 Locust Street and seven inches up from the sidewalk.

Q. May I stop you for a moment, sir?

A. Yes, Sir.

Q. You said it's a gray mark; is that right?

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A. Yes, sir.

Q. Did you place that mark there?

A. Excuse me?

Q. What is this gray mark, do you know?

A. The gray mark is a -- a test was done, a lead residue test examination.

Q. And do you know who conducted the test?

A. I do not, sir. I submitted that on property receipt 850635 to the Criminal Ballistics Laboratory.

Q. But I mean, did you do the test on the scene?

A. Yes, I did.

Q. Fine, thank you. Go on, sir.

A. (Continuing) D-3 is a view looking at the hole in the door of 1234 Locust Street in which a lead projectile was taken. That's three and a half inches west of the west door edge and three feet seven inches up from the sidewalk. As you are facing this property there are two doors leading in, which is indicated on the sketch. This would be the door to your left. D-4 is a view looking at the lead fragment that was taken from the vestibule inside 1234 Locust Street, six feet eight inches east of the west wall and six feet ten inches south of the front door.

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D-5 is a view looking at the lead fragments at the front of the property line of 1234 Locust Street and three feet west of the front door, which they're very hard to see because of the dirt and what have you, but they are in the area where I am pointing my finger (indicating).

Q. Officer Land, so the jury and I are also certain, I assume that these lead fragments were where they were photographed? In other words, when you arrived they were just as you photographed them; is that right?

A. Yes, sir.

(Continuing) D-6 is a view looking at the front wall of 1234 Locust Street showing a gray mark on the wall three feet seven inches west of the doorway and seven inches up from the sidewalk. D-7 is a view looking at the front door of 1234 Locust Street showing the bullet that I retrieved from the door and also the broken glass in the upper right portion of the right door. D-8 is a view looking in the door of 1234 Locust Street where the lead projectile was removed. D-9 is a view looking at the hole in the glass in the front door of 1234 Locust Street.

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Cross - Land

Q. All right, now, Officer Land, is it fair to say that you actually obtained two projectiles, meaning two bullets, at the scene; is that correct?

A Yes, sir.

Q. So that I and the jury, so that we are perfectly clear, perfectly clear, the fragments that you found, they may be fragments from different bullets or from the same bullets; is that correct?

A. Correct, sir.

Q. Now, based on your experience, sir, could you estimate for us how many bullets were found at the scene by you? In other words, can you estimate that there were more than two bullets or would you say that there were only two bullets that you found, if you follow my question?

A. I'm trying to. The question before that leads me to believe that there were more than two.

Q. But you are not certain?

A. Whole bullets, no, sir.

Q. Now, you've indicated a number of holes and marks that were found at or near the scene; is that right?

A. Yes, sir.

Q. Based on your examination of the holes and the marks and things of that sort, how many did you

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discover, total number?

MR. MCGILL: Objection. Are we talking about holes or marks or projectiles?

Q. Well, specify each, if you would. How many holes, how many marks, how many specimens?

A. I found two holes, one mark, I believe three projectiles and -- two projectiles and two fragment -- two areas of fragments.

Q. Now, the two holes that you found, one was in the door, one was in the glass; is that right?

A. Yes, Sir.

Q. Could they, from your experience, could they have been made by the same projectile?

MR. MCGILL: Objection, Your Honor. We're getting into ballistics.

THE COURT: I'll sustain that objection. I think the evidence will have to speak for itself.

Q. Well, sir, one hole was in the doorway; is that right?

A. Yes, sir.

Q. And one hole was in the glass; is that right?

A. Yes, sir.

Q. Do you have one of those photographs that shows

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these two different holes, sir?

A. Yes, sir.

Q. Could you show us, please?

A. That would be D-7.

Q. Could I see that, please?

(Exhibit D-7 is handed to Mr. Jackson.)

Q. Could you kindly mark in red pencil or pen, if you have it, the two holes that you just testified to on this exhibit, please?

A Yes, sir.

(The witness complies with counsel's request.)

A. The one on the door that's being marked is not a hole as per se that would go through, being a hole. A projectile was recovered from that. The upper portion was a hole in the glass.

Q. And you found several fragments within that vestibule right on the other side of the hole in the glass; is that right -- well, on the other side of the door?

A. Yes, sir.

Q. And both of these, by the way, the hole in the door where you found one bullet, obviously there was a projectile, but the hole in the glass is a bullet hole

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as well, isn't it?

A. Yes, Sir.

Q. And the mark that you found on the pavement, that's also a bullet marking, isn't it, a result of a bullet firing?

MR. MCGILL: I object to that, Your Honor.

MR. JACKSON: If he can't answer, Your Honor, I'll withdraw the question, but I think that it's the Crime Lab Unit.

THE COURT: That doesn't mean that he has the ability to answer it. Sustain the objection.

Q. Sir, did you ever discover any other characteristics or physical markings that would lead you to believe that there was some other evidence of a shooting that took place near that scene?

A. On that same date?

Q. Yes.

A. No, Sir.

Q. Subsequent to that date, did you discover anything else?

A. No, Sir.

Q. By the way, you indicated that the gray marking you tested for lead residue. Do you know the result of that test?

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A. No, sir, I do not.

Q. Have you ever inquired to determine what the results were?

A. No, sir.

Q. Now Officer Land, who accompanied you there at 4:15 that day?

A. That was Technician Marvin Jenkins.

Q. Were you the only two members from the Mobile Crime Unit present at the time you arrived?

A. Yes, sir.

Q. Whose responsibility, if you know, whose responsibility was it to seize evidence at the scene?

A. Mine.

Q. And I take it that Technician Jenkins was under your control -- well, under your supervision?

A. In a manner of speaking. We work together.

Q. Once you arrive at the scene, at least upon your arrival at the scene, notwithstanding the fact that there may be superior officers at the scene, is it still your responsibility to obtain evidence at the scene, sir?

A. Yes, sir.

Q. Did you see a camera in the radio patrol car 610?

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Cross - Land

A. A what, sir?

Q. Radio patrol car 610, did you see a camera?

A. Camera?

Q. Yes, camera.

A. No, sir. I wasn't looking for one, to be perfectly honest with you.

Q. No, I'm not asking you what you're looking for now, I'm asking you what you found. You didn't find it?

A. No, sir.

Q. Did you find a flashlight or did you see a flashlight at the scene?

A. To the best of my knowledge I did not, sir.

Q. Would it be fair to say, Officer Land, that all of the evidence that you observed when you arrived at the scene you seized and submitted to someone or another?

A. Yes, sir.

Q. At the time that you arrived were you notified or advised by anyone that any evidence had been taken away from the scene?

A. Oh, yes, sir.

Q. And could you tell us by whom and what?

MR. MCGILL: Objection, Your Honor, as to

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the hearsay. Those witnesses will testify.

THE COURT: I'll sustain that.

Q. Do you know if anyone else from Mobile Crime Lab arrived at the scene before you, sir?

A. Nobody, sir.

Q. You indicated Officer Land, that you found red stains on the sidewalk; is that correct?

A. Yes, sir.

Q. Did you find red stains anywhere else?

A. Yes, sir.

Q. Would you tell us where else you found red stains?

A. On the right front fender of the Volkswagen.

Q. Did you find any red stains inside the Volkswagen?

A. No, sir.

Q. You found none at all?

A. No, sir.

Q. Did you look inside?

A. Yes, sir.

Q. Officer Land, based on your activities within this case, do you know whether or not there were red stains or blood specimens, samples, taken from inside the Volkswagen?

A. There were items taken, yes, sir.

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Q. Items of blood; is that right?

MR. MCGILL: Objection, Your Honor. He did not do it, he does not know. He has no personal knowledge.

THE COURT: I'll sustain that. We'll get that information through the proper witness.

MR. JACKSON: I have no further questions at this time. Thank you.

REDIRECT EXAMINATION BY MR. MCGILL:

Q. Officer Land, you mentioned the words "fragment" and "projectile". Will you tell the jury what the difference is?

A. Yes, sir, fragment meaning a bullet could have struck something, it's just like a slight trauma to glass and it would just shatter. The fragment is what we collect, a bullet being the whole item.

Q. And the projectile, what part of the bullet is that?

A. The projectile being the upper portion. I don't know if some of the men are familiar with bullets, but the women, it's, like, the silver or copper and

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then at the very tip it's what's known as the bullet which goes out of the gun. I don't have a spare bullet on me to show you, but...

MR. MCGILL: I ask that this be marked C-18.

(Bullet is marked C-18 for identification.)

Q. C-18 is a bullet, is it not?

A. Yes, sir.

Q. Would you indicate exactly what you mean by a projectile, what portion of that is a projectile of C-18 and what happens to produce fragments?

A. Okay. As I've indicated, when it goes into a gun this portion is the case which is loaded with powder and blasting cap or whatever they may have I'm not familiar with the terminology -- but the portion of the bullet is from the edge below my finger going up, that portion is removed when fired from a gun. This would be what I would retrieve on the street meaning a bullet, fragment meaning this would be in several pieces.

Q. Now, is it not true, also, that when you fire a weapon the projectile will obviously leave the bullet but the casing may well remain or eject depending on the nature of the weapon?

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A. Yes, sir, if it's an automatic.

Q. And in the nature of fragments there's really no way of telling the number of projectiles or whether that's the same projectile of those fragments you see; is that also correct?

A. That's correct, sir.

Q. And I guess in this case or in any case, unless you have a direct match to a weapon, you're really unable to tell how long either those projectiles or fragments were laying in that spot; would that be correct?

A. That's correct, sir.

Q. Officer Land, you indicated in reference to a question by Mr. Jackson as to the tie concerning how the tie got there. Had you heard that Officer Faulkner was, in fact --

MR JACKSON: Objection to leading.

MR. MCGILL: This was brought out by counsel.

MR. JACKSON: He still isn't permitted to lead, Your Honor.

Q. What did you hear about the tie?

A. That the tie was there due to the mere fact that Officer Faulkner was carried from beside the Volkswagen

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to the intersection and placed into a wagon.

Q. On his way to the hospital, correct?

A. Yes, sir.

Q. Now, also, counsel brought up the point of fingerprints. Now using the word such as "latent" and the word "unidentifiable, non-identifiable and identifiable", will you tell the jury, those that do not know, what a latent print is, what identifiable means, what is all this language?

A. Latent fingerprint is something used as latent meaning invisible. It's a non-visible print. If I would put ink on someone's hands and put it down, he would see a print. Latent fingerprints are left with secretion. Everything has -- it's like a sweat, another word for secretion. It remains on a smooth surface or even rough surfaces, paper, what have you. A powder is used, the chemical construction I do not know, it's bought outside the city, but it is a red -- some black, some yellow. We have infrared powder, we have what they call burglary powder, which is a powder that's put down and you would not see it on your hands until we hit it with an ultra violet light as such, but this is done by brushing it on with a chemical hair brush, stroking it back and

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forth, a positive print being of certain characteristics, many points. It's like putting a puzzle together. There's so many pieces that develop the picture. The same with anybody's print; there are so many characteristics as deltas, bridges, islands. There are so many variations. It's like a big swirl with so many points in it and this may be an identifiable print, but if we get just a very small portion it's not going to do us any good because there's not enough points in it to compare to any other prints.

Q. Officer, let me stop you there. We're talking about latent prints, number one, we're talking about identifiable prints, number two, and when you do have a result that enables you to say that an individual had that item in his hand, what do you call that?

A. Identifiable print?

Q. No, one that has all the points.

MR.JACKSON: Objection.

THE COURT: I'll let him answer.

MR. JACKSON: Your Honor, I object to him doing that unless we're assuming that Officer Land is a qualified fingerprint expert.

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THE COURT: Well, you brought it up.

MR. MCGILL: He brought it up, Judge. I was going to object --

THE COURT: Go ahead.

MR. JACKSON: Fine. I'd like to pursue it anyway.

A. It's just a latent print. It's part of whole characteristics that develop into a good print.

Q. Do you use the word "link-up" or a "match-up"?

A. Oh, match-up, sure. I wasn't going to use it because it's not the term we use.

Q. Well, that's the one I use that I understand so let me use that one.

A. Oh, sorry.

Q. Now, when you are able to get a print you are able to get some kind of print, you are either getting nothing or some kind of print, what are the circumstances that could possibly produce the kind of condition where a print could be obtained?

A. Well, any surface is conducive of that, but if we come up with a good fingerprint, it becomes developed and hooked up with a certain photo number if that's what you are referring to.

Q. Okay, so it would depend, would it not, on the

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particular type of surface whether or not you could even get a print; is that correct?

A. Correct, sir.

Q. The next point is even though you get a print, you don't know whether or not you could get what would be termed "identifiable print" something that you, could actually see; would that be correct?

A. That is correct, sir.

Q. Now, even after you get an identifiable print you must go to the next level in order to make a, what we call or you would call "match-up". You must have a certain number of prints; is that correct?

A. That's correct, sir.

Q. And if you only have one or two points, that could be the same person as a hundred thousand or a million people; isn't that correct?

A. Oh, very much so.

Q. So in this case, in response to Mr. Jackson's questions about the prints, your answer was that some latent prints were taken; is that correct?

A. Yes, sir.

Q. In fact, one of the ones you said was negative all together; is that right?

A. Yes.

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Q. And I think of the four you said some identifiables were taken; is that also correct?

A. Yes, sir.

Q. And you said that there was no match-up at all; is that correct?

A. That's correct, sir.

Q. For anybody, for any person?

A. That's correct, sir.

Q. Whether in the case or otherwise, because there were not enough points; is that correct?

A. Correct, sir.

Q. So what you're saying then is that it's not excluding any individual or group of people, what you're simply saying is you don't have enough number of points to tell; is that correct?

A. That is correct.

Q. So you don't know. All right, thanks.

RECROSS-EXAMINATION BY MR. JACKSON:

Q. Officer Land, so I'm certain and I can proceed, are you a trained fingerprint technician, sir?

A. No, sir.

Q. So that everything you said about fingerprints is

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really just as a lay person; isn't that correct?

A. No, sir.

Q. Well, tell me how many points do you need to make a comparison?

A. A minimum of twelve.

Q. Now, is that from the FBI or the Philadelphia Police Department that says that?

A. In Philadelphia. That's what we have.

Q. If I have a particular rise delta in the fingerprint, now you're saying that if there is only that peculiar delta that you can identify, no other prints, are you saying that you cannot make a positive match?

A. You're saying one point?

Q. I'm saying you see a full delta where there are no points, you just see a portion of a fingerprint which is the delta leading to the whirlwind and all of that, if you see one of them and you compare it to someone's fingerprint, do you need thirteen or twelve other points in which to say that's a positive identification?

A. Oh, yes.

Q. You're saying that that's a fact?

A. Sure.

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Where did you gain this information from, sir?

MR. MCGILL: I'll object to this point.

MR. JACKSON: He is the one who is testifying, I want to find out the basis of him saying it.

MR. MCGILL: Mr. Jackson brings the point out and then gets upset if I on redirect define it and then tries to go beyond his expertise. I will have the expert in Monday morning for Mr. Jackson to cross-examine all day if he wishes.

MR. JACKSON: I would like to cross examine him, Your Honor, since he's on the stand.

THE COURT: He says he needs more.

BY MR. JACKSON:

Q. Are you saying it's required or is it preferred? I just want to know. Is it required that you have thirteen or you prefer to have thirteen points?

MR. MCGILL: Objection, Your Honor.

MR. JACKSON: There's a difference.

THE COURT: Did you say twelve or thirteen?

MR. JACKSON: Twelve or thirteen.

THE COURT: How many points did you say?

THE WITNESS: Twelve, sir.

THE COURT: Okay, go ahead.

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BY MR. JACKSON:

Q. And you're saying that's preferred or required?

A. No, preferred.

Q. Now, you indicated that James Famiglietti in the Identification Unit made the examination, right?

A. No, sir.

Q. Oh, he didn't?

A. No, sir.

Q. I'm sorry, what did you say Mr. Famiglietti did?

A. All my lifts were sent down to the attention of G. Famiglietti.

Q. He just stored them?

A. I do not know what Mr. Famiglietti did with them.

Q. So you made a determination that these prints were identifiable, not identifiable and things of that sort; is that right?

A. No, sir.

Q. Well, who did?

A. Police Officer John Cahill.

Q. So that if I understand you correctly, when you're testifying that these prints were unidentifiable, you don't know that for a fact; is that right?

A. Well, I do, but they have to be verified.

Q. Well, I mean, if you do, tell us. I mean, do you

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or don't you?

A. Yes, sir.

Q. So that you lifted the latent prints and you determined that they -- that some were non-identifiable.

A. Yes, sir.

Q. Based on what did you determine that they were non-identifiable?

A. The characteristics were not there. The points were not there.

Q. Now, isn't it a fact that the points that you're talking about are only required to match up another fingerprint, but in fact, you don't need thirteen points to say whether or not a print is identifiable? Do you understand what I'm saying, sir?

A. Yes.

Q. So isn't it a fact that you don't need thirteen prints to determine if a print is identifiable?

A. Thirteen prints?

Q. Thirteen points. My Apologies.

A. I don't know where the terminology thirteen came in, I've been saying twelve.

Q. I'm sorry, that's my thirteen. I'm thinking thirteen. Twelve, my apologies, sir.

A. That's correct. Some experts can do it with less.

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Q. So you only get into these numbers when you start comparing one print to another; isn't that a fact?

A. Now you're out of my scope.

Q. But you're the one who testified and that's what I'm trying to find out. I don't mean to criticize you, officer, my apologies.

MR. MCGILL: Objection.

THE COURT: Just ask the questions please, no comments.

MR. JACKSON: Sure.

Q. By the way, where are these latent prints, do you know?

A. The fingerprints that were taken?

Q. Yes.

A. Sure.

Q. Where are they, could you tell me?

A. Right here (indicating).

Q. May I see them, please?

A Do you want to see any one particular or --

A. I would like to see them all if you don't mind.

A. Okay. There is one set, there is another set.

THE COURT: May I see counsel for a minute?

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(The following transpired at sidebar with the
Defendant present and out of the hearing of the jury:)

THE COURT: Are you going to bring in the expert for these fingerprints?

MR. MCGILL: Yes.

THE COURT: Why don't we wait for the expert?

MR. JACKSON: Your Honor, because I'm a fingerprint expert myself and I know what he's saying is untrue.

THE COURT: What he's saying is a positive identification can't be made, but you will get the expert here that's going to do it. You brought it up and I don't even know why you went into this.

MR. JACKSON: Your Honor, because he made certain allegations and I think I have a right to test whatever he says.

MR. MCGILL: He did not say there were no identifiable prints.

MR. JACKSON: I know.

MR. MCGILL: He did not say that in order to have an identifiable print you need thirteen

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points. An identifiable print is an identifiable print. What you need is a certain number of points before identifiable prints can be considered a match-up. That's what he said.

MR. JACKSON: He said some experts use less and --

MR. MCGILL: Well, twelve, or whatever.

MR. JACKSON: If I may clarify that, then I'll leave him alone.

THE COURT: He's not an expert.

MR. JACKSON: But he's put it out there, Your Honor. I objected and you said Mr. McGill could get into it.

THE COURT: You put it out on cross.

MR. JACKSON: Fine and then when Mr. McGill went into it I said he is not an expert.

THE COURT: Right.

MR. JACKSON: But you let him answer Mr. McGill's question when he said he's not an expert.

THE COURT: Because you brought it up.

MR. MCGILL: He brought it out as a result of prints.

THE COURT: Next time you're going to have

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to object because you get far afield with the cross-examination and this is what you end up with.

MR. JACKSON: I understand. That's why I objected when Mr. McGill questioned him on it and you said let him answer it with regard to his expertise.

THE COURT: Only as far as he knows. In other words, as far as he knows you need twelve points and he said some other experts could do it with less than twelve. That's all he knows. He's not a --

MR. JACKSON: But that's wrong. It's absolutely wrong.

THE COURT: That's what he knows. Why don't you wait for the expert to come in?

MR. JACKSON: Fine.

(The following transpired in open Court in the presence of the jury:)

BY MR. JACKSON:

Q. Thank you, Officer Land, I'll leave you alone on this one right now.

The other question I'd like to ask you, sir, I hope you still have your bullet -- do you still have

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it?

MR. MCGILL: C-18 I believe it is.

Q. Okay. You talked about the projectile and you talked about a casing, but in your direct examination you had also talked about a jacket, a bullet jacket. Could you also tell the jury what the bullet jacket is? Is there any difference between the casing and the jacket?

A. I should say that because we have it on there. It's a copper jacket, which is the discolorations you see here, meaning copper, exactly what it is, which I do not know what it does to the bullet.

Q. Do you know if it's normally left in the gun or whether it goes out with the projectile?

A. It goes out with the projectile.

MR. JACKSON: Fine, sir. Thank you very much. I have no further questions, Your Honor.

FURTHER REDIRECT EXAMINATION BY MR. MCGILL:

Q. Do you know who performed the work on determining the number of points observable on those fingerprints?

MR. JACKSON: Objection.

THE COURT: He's asking if he knows who did

3.97

Redirect - Land

it; is that what you said?

MR. MCGILL: That's correct.

MR. JACKSON: We don't know that it's been done, Your Honor.

THE COURT: Well, rephrase it.

MR. JACKSON: I'd object to anything this Officer says with regard to fingerprints since he is not an expert and I've been prevented --

THE COURT: He's just asking who did the work. Please, the objection is overruled. Let's move on. Who did it, if you know?

A. Joe Grimes.

Q. All right, Joe Grimes is the head of the unit?

A. The chief down there, yes, sir.

MR. MCGILL: Thank you. He'll be here Monday.

THE COURT: All right, then we'll recess for lunch until 2:00 o'clock.

(A luncheon recess is taken at 1:00 o'clock P.M.)

3.98

AFTERNOON SESSION

(At this time the Defendant confers with Theresa Africa.)

(The following transpired in open Court in the presence of the jury:)

MR. MCGILL: May I proceed, Your Honor?

THE COURT: Yes, please.

MR. MCGILL: The first Commonwealth witness this afternoon will be Reginald Thompson.

MR. JACKSON: Your Honor, may I have an offer of proof?

(The following transpired at sidebar with the
Defendant present out of the hearing of the jury:)

MR. MCGILL: Radio man.

MR. JACKSON: Oh.

MR. MCGILL: It's offered solely for the purposes of what he, Faulkner said nothing further.

(REGINALD M. THOMPSON, is duly sworn.)

3.99

Direct - Thompson

DIRECT EXAMINATION BY MR. MCGILL:

Q. Mr. Thompson, on December the 9th, 1981 where were you employed?

A. Police Radio Room.

Q. What was your position there?

A. Police Dispatcher, twelve to eight shift.

Q. Tell us what a Police Dispatcher is?

A. Well, we assign the jobs to the Police.

Q. And you will have communication, will you not, with Policemen who will call back to you for directions or responses or for information; is that correct?

A. Yes, sir.

Q. Now, you were familiar, were you not, in terms of your occupation, with the assigned cars for various officers on that day, are you not?

A. Yes, I am.

Q. In reference to Officer Daniel Faulkner, were you aware of his assigned car?

A. Yes, sir.

Q. What was it?

A. 610 -- 612.

Q. And what was the actual -- do you recall --

MR. MCGILL: If I may have those

3.100

Direct - Thompson

photographs, Jim.

THE COURT CRIER: Just the "C" photographs?

MR. MCGILL: Yes, the Commonwealth photographs.

Q. Now, showing you C-6, a photograph of his car which shows 610 --

A. Yes.

Q. Now, you had indicated 612. What did you mean by that?

MR. JACKSON: Objection.

THE COURT: I'll let him answer, overruled.

Q. Go ahead.

A. Well, on certain given nights certain vehicles are out mechanically due to different --

MR. JACKSON: Objection.

THE COURT: I don't know the basis of your objection. May I see you at sidebar?

MR. JACKSON: Your Honor, he's testifying as to what may have happened some other time. We're just talking about this day.

Q. Well, at this time. Is there any time, sir, when there are different vehicles than the number that they use?

A. Yes, sir.

3.101

Direct - Thompson

In other words, the vehicle has a different number on it than the number that they refer to on the radio?

A. Yes, sir.

Q. Now why is that?

MR. JACKSON: Objection.

Q. In this case why was that?

MR. JACKSON: If he knows.

A. Because the original 612 car was out mechanical on that given date.

MR. JACKSON: Your Honor, I would object unless this gentleman can say that he knows that for a fact.

THE COURT: The objection is overruled.

MR. JACKSON: Thank you, sir.

Q. Now, Mr. Thompson, in this particular matter in this case then the number of the car on Officer Faulkner's car was what?

A. 612.

Q. All right, the number actually physically on the car?

A. Was 610.

Q. Now the number 612 actually refers to what then?

A. That refers to the car assigned to that certain

3.102

Direct - Thompson

sector, that certain part of the Sixth District.

Q. So are you then saying, sir, that the number of a car, in this case, 612, refers directly to a certain area?

A. Yes, sir.

Q. Geographical area?

A. Yes, sir.

Q. And no matter what substitute vehicle is used for that area, it still must use the number of the assigned, the assigned vehicle number of that area; is that what you're saying?

A. Yes, sir.

Q. Now, sir, in this case -- are you familiar with Officer Faulkner's voice?

A. Yes, sir.

MR.JACKSON: May it please the Court, with respect to his familiarity with respect to Officer Faulkner's voice, I would like him to indicate how, why and under what circumstances.

MR. MCGILL: Your Honor, we've already had an offer of proof, the exact number --

THE COURT: I'll see you at sidebar.

(The following transpired at sidebar with the
Defendant present out of the hearing of the jury:)

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Direct - Thompson

MR. MCGILL: The limit of his --

THE COURT: I think what he's talking about --

MR. JACKSON: He just said, are you familiar with his voice.

THE COURT: He wants to know if he heard it on other occasions and things like that.

MR. MCGILL: Is that what you want?

MR. JACKSON: Yes.

MR. MCGILL: Okay.

(The following transpired in open Court in the presence of the jury:)

MR. MCGILL: Sorry, Your Honor. Mr. Jackson is quite right.

BY MR. MCGILL:

Q. Are you familiar with Officer Faulkner's voice, Mr. Thompson?

A. Yes, sir.

Q. Have you heard it on a number of occasions?

A. Yes, sir.

Q. Have you heard it on occasions over the radio, sir?

A. Yes.

3.104

Direct - Thompson

Q. Have you heard it in the course of your duties as Dispatcher for the Police radio, Philadelphia Department of Police?

A. Yes. (Pause.)

Q. This is going to be played for you and the jury. It will be a very short playing so I will ask everyone kindly to pay close attention because it will be short.

(At this time a brief tape recording is played.)

MR. MCGILL: Your Honor, because of the instrument itself and all, would you mind if we played that one more time because of the difficulties in maybe hearing it?

(A this time the tape recording is played again.)

MR. MCGILL: I ask that it be marked C-19.

(Tape recording is marked C-19 for identification.)

Q. Did you recognize the voices on that tape?

A. Yes, I did.

Q. Who were those voices?

3.105

Direct - Thompson

A. That was the voices of Officer Faulkner and my voice.

MR. MCGILL: I'd ask this be marked C-20, please.

(Transcript in memo form of tape recording
C-19 is marked C-20 for identification.)

MR. MCGILL: Show the witness.

(The witness is shown C-20.)

Q. Mr. Thompson, would you take a look at those -- only the top portion of that transcript. Do you see that, sir?

A. Yes, I do.

Q. Can you identify that?

A. Yes.

Q. What is it?

A. That's the conversation that went on between me and 612 car on that given night.

Q. Mr. Thompson, sir, could you read what it was that was played?

A. Okay. "612 --

Q. All right, I said that the wrong way. First of all, say who said it, then say what was said, and then do that for the next person.

A. Okay. This is radio patrol car coming in,

3.106

Direct - Thompson

"612". Then it's my voice, "12". Then it's patrol car 612 again, "I have a car stopped ah 12, 13th and Locust.

"Radio: Car to back 612, 13th and Locust.

"RPC: On second thought send me a wagon 1234 Locust.

"Radio: 601.

"EPW: Yeah 01 okay, 1234 Locust.

"RPC: 22 I'll take a ride over.

"Radio: Okay."

MR. MCGILL: Okay, that's good enough. Cross-examine -- by the way, when you say patrol car 612 you mean -- that was Officer Faulkner?

THE WITNESS: Yes, sir.

3.107

Cross Thompson

MR. MCGILL: Okay, Mr. Jackson.

CROSS-EXAMINATION BY MR. JACKSON:

Q. Mr. Thompson, how long have you been in the Police Radio Room, sir?

A. Nine and a half years.

Q. And you are assigned to a particular sector or section of the City; is that correct?

A. Yes, sir.

Q. How long have you been assigned to this sector and section of the City?

A. Approximately four years.

Q. And approximately when was it that Officer Faulkner was assigned to this area, if you know, if you can recall?

A. I can't recall that. He might have been there before I came.

Q. Do you recall when it was you first heard Officer Faulkner's voice, approximately when?

A. That would be hard to surmise.

Q. Well, as hard as it may be, could you give us your best estimate, sir?

3.108

Cross - Thompson

A. I'd say approximately two years ago.

Q. Two years ago?

A. Yes.

Q. And should we also assume that Officer Faulkner was continuously assigned to the 612 car?

A. Yes, sir, to my knowledge.

Q. To your knowledge. Do you recall him ever being assigned to another sector?

A. Not to my knowledge.

Q. And when you say not to your knowledge, could you tell us what you mean by not to your knowledge?

A. Because I don't -- see, it's two people working a position. I may not be assigned to that position on certain days.

Q. Oh, okay, fine. Now, you indicate that the sector is assigned to this car 612, so it could have been car number one, but as far as you're concerned that's car number 612; is that what you're saying?

A. Yes, sir.

Q. Now, do you know in fact on December 9, 1981 at or about 3:58 where car 612 was?

A. You mean did I know exactly where he was at?

Q. No, where the actual 612 car, car number 612,

3.109

Cross - Thompson

not -- let me back up. You understand already you've identified this vehicle 610 that's marked 610, you're saying as far as you're concerned that was car number 612?

A. Yes, sir.

Q. My question to you is, the car that's marked 612, do you know where it was that day?

A. It was down in Mechanical.

Q. No, my question is, do you know where it was?

A. No, I don't. I don't know.

Q. Now, do you know of any instance where they may substitute cars where, in other words, 610 would be in operation, cars that are marked 610 and 612, could they possibly be switched?

A. No.

Q. So that what you're saying is if the car that is marked 612, if it was not working in sector 612, then that means the car was down for some reason; is that correct?

A. Yes, sir.

Q. Now, could you tell us generally the sector that your area, you know, that you dispatch for?

A. Well, Center City east of Broad and west of Broad, river to river.

3.110

Cross - Thompson

Q. Now, vehicle 612, could you tell us the boundaries of that sector as best as you can, sir?

A. Not really. I think it covers the area from -- to my knowledge it covers from Broad to 10th, Locust to Chestnut, to my knowledge. I'm not sure about that.

Q. But you're certain where this vehicle was stopped, where the 612 car was stopped, this location at 13th and Locust, that is within the sector?

A. Yes, sir.

Q. And as far as you know that is the sector that Officer Faulkner had been working for approximately two years; is that right?

A. I'm not saying approximately for two years, but as long as I was there that's the sector he worked.

Q. But you're saying, if I understood you correctly, you said as long as you were there, that's four years, you worked that sector? Correct me if I am wrong, sir.

A. Well, what you're saying -- what I'm saying is as far as I know, to my knowledge --

Q. That's all I'm asking.

A. -- is that that was the car that Officer Faulkner worked.

Q. I understand, and what I'm saying then is if he

3.111

Cross - Thompson

worked -- let me back up. You're saying as far as you know that's the car I mean, is there something to suggest that he was working some other car?

A. No.

Q. So then you're saying as long as two years, assuming for a moment that Officer Faulkner always operated that car, the 612 car, for about two years he worked that same sector?

A. Yes.

Q. Do you work a swing shift as well?

A. Yes, sir.

Q. And Officer Faulkner worked the swing shift?

A. Yes.

Q. So then would it be fair to say that the two of you were on the same squad, meaning that you both changed together?

A. Yes.

Q. Now, would you have any knowledge, actual knowledge, meaning do you yourself know, do you know when the car marked 612 was last operated in that sector?

A. I wouldn't have knowledge of that.

MR. JACKSON: All right, thank you very

3.112

Direct - Shoemaker

much, I have no further questions.

MR. MCGILL: Thank you, Mr. Thompson. Does the Court have any questions, Sir?

THE COURT: No.

(The witness is excused.)

MR. MCGILL: The next Commonwealth witness, Sir, would be Officer Shoemaker.

(POLICE OFFICER ROBERT SHOEMAKER,
Badge No. 4669,Stake-Out Unit, is duly sworn.)

MR. MCGILL: May I proceed, Your Honor?

THE COURT: Yes.

DIRECT EXAMINATION BY MR. MCGILL:

Q. Officer Shoemaker, where are you currently employed?

A. Am I?

Q. No, where are you currently employed?

A. Philadelphia Police Department.

Q. And how long?

A. Eight years.

Q. On December the 9th, 1981 you were so employed?

3.113

Direct - Shoemaker

A. That's correct.

Q. And what was your tour of duty, sir?

A. Twelve to eight, midnight to eight in the morning.

Q. Without telling us the content of the radio call, did you have occasion to respond to a radio call?

A. That is correct.

Q. Approximately when was it that you responded to a radio call?

A. Approximately 3:55 in the a.m.

Q. Oh, by the way, were you alone or with someone else in that car?

A. I was working with my partner Officer James Forbes, Badge No. 9811.

Q. Were you in a car or a wagon?

A. A marked stake-out wagon.

Q. Okay, it's a stake-out. And just tell the jury, please, exactly what you did after you heard the radio call and your response to it?

A. If Your Honor pleases, on the date 12-9-81 at approximately 3:55 in the a.m., patrolling the area of 12th and Chestnut Street we overheard Officer Faulkner go out with a Car Stop in the area of 13th and Locust Streets. I was at 12th and Chestnut at the time. I proceeded to travel south on 12th Street from

3.114

Direct - Shoemaker

Chestnut when I heard officer Faulkner go out over the air again and ask for a wagon, meaning to me that he had a prisoner, so I expedited my arrival. I proceeded the wrong way on Locust Street from 12th, at which time, as soon as we made the turn we were stopped, myself and my partner were stopped by a cab driver who was swerving in front of us putting his lights off and on. We stopped the cab. The cab driver informed us --

MR. JACKSON: Objection.

MR. MCGILL: May I develop a foundation?

THE COURT: Yes, go ahead. Do you want to see me at sidebar?

(The following transpired at sidebar in the presence
of the Defendant and out of the hearing of the jury:)

THE COURT: Mr. Jackson, do you want to explain the basis of your objection?

MR. JACKSON: Yes, sir.

THE COURT: Although I realize it's hearsay, it's an exception to hearsay because it's not what he was told, he did something.

MR. JACKSON: Your Honor, because I don't

3.115

Direct - Shoemaker

see --

THE COURT: It's an exception to the hearsay rule.

MR. MCGILL: What I can do, Judge, is develop a foundation because obviously it could also be res gestae, outside utterance. He was also shocked at the time.

THE COURT: All right, but it's admissible, as I said, not because of its truth but because of what was said to him that caused him to take certain action.

MR. MCGILL: Yes, sir.

(The following transpired in open Court in the presence of the jury:)

BY MR. MCGILL:

Q. All right, Officer, do not tell us what the cab driver said, but as a result of what the driver said, all right, what did you do?

A. We proceeded westbound on Locust Street, like I said, the wrong way, till we came upon -- saw Officer Faulkner's overhead lights from his car. I stopped approximately two car lengths from his car. I exited the wagon and started to walk between two cars with my gun drawn, a Volkswagen which was on my

3.116

Direct - Shoemaker

right, and a Ford, a dark colored Ford, which was on my left.

As I proceeded between the two cars, I observed Mr. Jamal sitting on the very end of the curb with his feet in the street, his right arm was crossing his chest, his left hand was approximately six inches from his leg on the ground.

I ordered the male to freeze. We made eye contact probably about the same time, and the male did not freeze, his arm started to move to the left.

Now at this point I couldn't see what he was reaching for, if he was reaching for anything at all, so I adjusted my stance and I took one side step to the left.

At this point I saw a two inch revolver approximately eight inches from his hand. I again ordered the male to freeze, which he did not, so before he grabbed the gun I kicked the male away from the gun. My heel contacted his throat area and the sole of my shoe hit him on the face.

As the male fell backwards he yelled twice, "I'm shot, I'm shot." Still, with my revolver trained on him, I stepped over on top of the male and I kicked the revolver with

3.117

Direct - Shoemaker

my right foot away from him to the right.

At this point I yelled to my partner to watch this male.

At this time I walked over to Officer Faulkner who was lying on his back unconscious bleeding very heavily. He was approximately four feet from the Defendant. Myself and two or three other officers lifted Danny up. We tried to put him in one of those small Horizon cars that we have now on the street, but we couldn't fit him in the car so we took him in a waiting Police wagon, and we put him in the wagon and the wagon took him to the hospital.

Q. Now, were you the first Officer on the scene?

A. That is correct.

Q. So when you say that there were other Police officers who helped you carry Officer Faulkner to the wagon, they had arrived after you?

A. That's correct.

MR. MCGILL: With the Court's permission, Your Honor, would Officer Shoemaker be permitted to go to the sketch?

THE COURT: Yes, he may.

(The witness complies with counsel's request.)

3.118

Direct - Shoemaker

Q. Now, would you move to the other side, the right side, so the defense can see it and the jury. Tell us, Officer Shoemaker, where you were when you had some communication with the cab driver?

A. Approximately here (indicating). I was traveling south.

Q. Now I'm going to ask you, Officer Shoemaker, to speak loud and speak to the jury when you talk.

A. Right. After I made the turn, as I was heading west bound on Locust Street in the wrong direction, right approximately here (indicating), right after I made the turn.

Q. And then go on with where you proceeded?

A. I proceeded west on Locust Street and stopped right here (indicating).

Q. That's parallel to what vehicle?

A. The Ford, right at the Ford.

Q. Now, where in relation to that is the Volkswagon and Officer Faulkner's car?

A. The Volkswagen (indicating), Officer Faulkner's car (indicating).

Q. Go on, please, with where you went and where you saw Mr. Jamal?

A. All right, as I exited my Police vehicle, I

3.119

Direct - Shoemaker

started to walk between the two vehicles, the Volkswagen and the Ford. Mr. Jamal was sitting right on the very end of the curb, his feet were in the street.

Q. All right, would you mark a large "J".

(Witness complies with counsel's request.)

Q. Did you proceed there to the sidewalk before your partner or after?

A. Before my partner.

Q. And in which direction was Mr. Jamal reaching at that time?

A. It would be to his left.

Q. His left?

A. Or my right since I was facing him.

Q. Now, you also stated that you and two other officers or a number of officers carried Officer Faulkner to a wagon?

A. That's correct -- first to a car.

Q. Where was the car?

A. The car was in this area, in this area somewhere (indicating). We walked between the Volkswagen and the Police car.

Q. All right, you're indicating a rough estimate on Locust Street in between the Volkswagen and the Police

3.120

Direct - Shoemaker

car. Now were you able to get him in that car?

A. No, we weren't, it was too difficult.

Q. What did you then do?

A. We traveled along the street, put Officer Faulkner in the wagon, which was down at this end of the street (indicating).

Q. And then the wagon went on to the hospital -- what direction did the wagon go, if you know?

A. I'm not sure.

Q. You don't know, all right. Thank you very much, Officer, go back to the stand.

(Pause.)

Q. I'm also going to ask you to take look at C-3 and put a large "J" on that photograph where Mr. Jamal was.

(The witness complies with counsel's request.)

MR. MCGILL: Would you show the defense.

(Pause.)

Q. All right, you referred to Mr. Jamal when you were testifying concerning this incident. Is he in this Courtroom?

A. That is correct.

3.121

Direct - Shoemaker

Q. Would you point him out?

A. The Defendant (indicating).

MR. MCGILL: Indicating the Defendant for the Record.

Cross-examine.

CROSS-EXAMINATION BY MR. JACKSON:

Q. Officer Shoemaker, you indicated that you overheard this radio broadcast of Officer Faulkner; is that correct?

A. That's correct.

Q. I take it you know Officer Faulkner; is that right?

A. That's correct.

Q. How long had you known him, sir?

A. About a year.

Q. And you worked together?

A. I worked in the same area as he did. I wasn't in the 6th District.

Q. That's right, you're Stake-Out, is that correct?

A. That's right.

Q. Now, you've heard his voice over the radio a

3.122

Cross - Shoemaker

number of times?

A. Yes, sir.

Q. That evening did you hear his voice before at any time prior to this voice? In other words, did you hear his voice early on the shift?

A. He made a car stop at 13th and Locust, I believe it was about an hour earlier, and we also backed him up then.

Q. And where were you when you heard him make that car stop an hour earlier? Do you recall where you were before you went to back him up?

A. On this job?

Q. No. You said one hour earlier he made a car stop at 13th and Locust.

A. Right, well, we were at 13th and Walnut and we saw him pull the car over.

Q. And what did you do then?

A. We just pulled up behind him.

Q. But if you're at 13th -- if he made the car stop at 13th and Locust and you're at 13th and Walnut, how could you pull up behind him?

A. I'm sorry, Juniper and Walnut. He made the car stop at Juniper and Locust because you're not permitted to make a turn from 11:00 p.m. to 6:00 in the morning

3.123

Cross - Shoemaker

at either location.

Q. He made the car stop at Juniper and Locust Street?

A. Yes, sir, Juniper and Locust.

Q. And you were at 13th and Walnut?

A. We were at Juniper and Walnut.

Q. Did you back up any other officers before you backed up Officer Faulkner that night?

A. I really don't remember.

Q. Now Officer, although it's not required that you back up an officer, it's pretty much the manner that officers do, they back up someone when they make a car stop; is that correct?

A. That's correct.

Q. Now at the time that Officer Faulkner -- at the time that you heard this broadcast, car stop at 13th and Locust -- we're talking about this incident now -- did you have any reason to suspect that Officer Faulkner was in danger?

A. No, sir.

Q. Nevertheless, it was your decision to go wrong way up the street; is that correct?

A. That's correct.

Q. Is that what you normally do?

3.124

Cross - Shoemaker

A. Well, sir, I'll give you a little explanation on why I did it.

Q. No, I just would like to know if that's what you normally do.

A. If it is called for.

Q. Sir, that's not -- my question is, is that what you normally do?

MR. MCGILL: Objection. I think he responded. If it's called for it's normal. If it's not called for, it's not normal.

MR. JACKSON: He's testifying, have him sworn, please.

THE COURT: He's answered your question. You may not like the answer, but go ahead.

MR. JACKSON: Very well, Judge.

BY MR. JACKSON:

Q. Now, you indicated that you were -- by the way, were you in motion when you overheard the radio broadcast? Was your vehicle moving?

A. The original car stop?

Q. Yes.

A. No. I was at the light on Chestnut Street at 12th. I was traveling eastbound at Chestnut, but I was at the light.

3.125

Cross - Shoemaker

Q. And after you heard it you made the right-hand turn onto 12th Street?

A. Yes.

Q. And proceeded towards Locust?

A. Yes, sir.

Q. And did you make the turn at Locust Street before you saw the cab driver?

A. No, I made the turn -- I made the turn first --

Q. Yes.

A. Then I saw the cab driver.

Q. And the cab driver was in a traffic lane; is that correct?

A. Well, he pretty much took up the whole street. He was zigzagging.

Q. So you traveled some distance on Locust Street before you ran into the cab driver; is that what you're saying?

A. About twenty, twenty-five feet.

Q. But you saw him for a period of time before you stopped?

A. The cab driver?

Q. Yes.

A. Well, when he was coming in my direction, Yes, sir.

3.126

Cross - Shoemaker

Q. Okay --

A. (Continuing) Flashing his lights off and on.

Q. Do you know about what distance the cab driver traveled before you stopped? In other words, you're saying -- from your testimony you said that you saw the cab driver zigzagging down the street. At what point did you first see the cab driver, do you know where his cab was?

A. As soon as I made the turn.

Q. Yes, but do you know where the cab was in relation to the street? The end of the street, the middle of the block, closer to you, say?

A. I would say the middle of the block.

Q. And he zigzagged to you when you were twenty feet from the corner of 12th, approximately?

A. Approximately.

Q. And you stopped him momentarily to talk to him; is that right?

A. Yes, sir.

Q. And did you talk to the cab driver or did your partner talk to him?

A. He was on my partner's side, my partner's window was rolled down. The cab driver's window wasn't all the way rolled down and he just yelled from his cab

3.127

Cross - Shoemaker

to our truck, "They shot the cop, a cop's shot." That was it.

Q. Had you seen Officer Faulkner, other than that earlier car stop, had you seen Officer Faulkner earlier?

A. No, sir.

Q. By the way, when you backed up Officer Faulkner an hour or so earlier, did you have a conversation with officer Faulkner?

A. No, sir.

Q. You didn't talk to him at all, just waited until he completed his business with the person?

A. That's correct.

Q. When the cab driver stopped you he said, "They shot a cop," didn't he?

A. "They shot a cop, a cop's been shot". That was my understanding.

Q. Did he say "They" or did he say "He"?

A. "They shot the cop, a cop's been shot."

Q. So the answer is he said "They"?

A. "They."

Q. And anything else he said?

A. No, sir.

Q. Did he point?

3.128

Cross - Shoemaker

A. No, sir.

Q. Did you ask who?

A. No, sir.

Q. Did you ask where?

A. No, sir.

Q. Was there anyone else other than your partner and the cab driver when you stopped?

A. No, sir.

Q. About how long did you stop there, approximately?

A. Five seconds, six seconds.

Q. When you turned the corner, coming from 12th Street onto Locust Street, you looked up the street, obviously you saw the cab driver come zigzagging down the street?

A. Correct.

Q. Did you see people on either side of the street?

A. My attention wasn't drawn to the people in the street, no, sir.

Q. So then you were just concentrating on this cab driver?

A. Certainly.

Q. At what time, if any, was your attention drawn to any of the people who were on the street?

A. After I exited the wagon and came into contact

3.129

Cross - Shoemaker

with Mr. Jamal.

Q. Finally. So that it's fair to say from about twenty feet from the corner of 12th Street to the location of Officer Faulkner's vehicle you don't know whether or not someone was walking, running or otherwise moving along Locust Street; is that right?

A. That's correct.

Q. Did you ask anyone, sir, if anyone walked away, moved away from the scene, when you arrived did you ask anyone?

MR. MCGILL: Objection.

THE COURT: I'll let him answer the question.

A. Could you repeat the question?

Q. Sure. Did you ask anyone when you arrived at where Officer Faulkner's vehicle was, did you ask anyone if anyone had left the scene?

A. No, sir.

Q. By the way, you were in uniform?

A. Yes, sir.

Q. Do you know if there were plainclothes officers working in that sector that evening?

MR. MCGILL: Objection. Personal

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knowledge.

THE COURT: I'll sustain the objection.

MR. JACKSON: Pardon?

THE COURT: See me over here.

(The following transpired at sidebar in the presence of the Defendant out of the hearing of the jury:)

THE COURT: What's the basis of your objection first?

MR. MCGILL: It's on hearsay, whether he knows if they were working.

MR. JACKSON: I asked him if he knows.

MR. MCGILL: It's hearsay, if he knows.

THE COURT: Why don't you ask him if he saw any. That would be more --

MR. JACKSON: Can I ask if he knows first? That's not hearsay.

THE COURT: Well, why don't you ask him if he saw them, okay?

MR. JACKSON: Okay.

(The following transpired in open Court in the presence of the jury:)

BY MR. JACKSON:

Q. Officer Shoemaker, did you see any plainclothes

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officers at the scene when you arrived?

A. No, sir, I did not.

MR. JACKSON: Thank you very much, I have no further Questions.

REDIRECT EXAMINATION BY MR. MCGILL:

Q. Officer Shoemaker, when you arrived and saw the Defendant on the curb did you see anyone else there?

MR. JACKSON: Objection, Your Honor beyond the scope.

THE COURT: Overruled.

A. I saw officer Faulkner and William Cook.

Q. And do you recall whether William Cook said anything to you?

A. As I was leaning over Officer Faulkner I looked up to see Mr. Cook, and his words to me were, "I had nothing to do with it." That was all.

MR. MCGILL: I ask that that be marked C-21.

(Photograph is marked C-21 for identification.)

Q. I'm showing you C-21. Can you identify that

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photograph?

A. William Cook.

Q. Where was he when you saw him in relation to Mr. Jamal as well as Officer Faulkner?

A. He was up against the building line, flush up against the building line with his hands in his pocket, approximately, I would say, five to six feet away from officer Faulkner.

Q. Now, this car stop that Mr. Jackson brought out in reference -- I think an hour earlier you said?

A. Yes, sir

Q. Was that a Volkswagen?

A. No, sir, it wasn't.

Q. Mr. Jackson asked you whether it was procedure to back up cars --

MR. JACKSON: Objection. That was not the question.

Q. Do they often back up cars or do you often back up cars, as I recall the question.

THE COURT: All right, go ahead.

A. My duty as a stake-out --

Q. That really wasn't a question, that was a lead-in. There was a question to it.

THE COURT: Go ahead.

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My question is this, isn't it a fact that you particularly back up cars in the area of 13th and Locust?

A. Yes, sir.

MR. JACKSON: Objection, leading.

THE COURT: Well, it's been answered. Anything further, gentlemen?

MR. JACKSON: Yes, I do.

MR. MCGILL: I do have one other question.

Q. Why do you do that? Tell the jury why you back them up at 13th and Locust at 3:51 a.m., in the morning?

MR. JACKSON: Objection.

THE COURT: Overruled.

A. Because my job is to back up officers --

MR. JACKSON: Objection and move to strike as to what his job is.

THE COURT: Overruled.

MR. MCGILL: Your Honor, I withdraw the question.

RECROSS-EXAMINATION BY MR. JACKSON:

Q. Now, officer Shoemaker, you indicated again

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that when you arrived at the scene the first person that you saw was Mr. Jamal is that correct?

A. No, sir.

Q. Oh.

A. Once I got out of the truck.

Q. Yes.

A. As I was driving, as I was partially stopped getting out of my truck I observed William Cook against the wall. I know William Cook.

Q. You know William Cook?

A. From past experiences.

Q. Objection, and I would just ask you to answer my questions.

A. William Cook was the first man I saw.

Q. Did you see anyone else before you got out of the vehicle?

A. No, sir.

Q. Did you see Officer Faulkner?

A. No, sir.

Q. Now, I understand from your testimony when you got out of the vehicle you saw Mr. Jamal, and the first thing you did was tell him to freeze; is that right?

A. That's correct.

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Q. He wasn't moving, was he?

A. He had his hand partially covered, I couldn't see where his hand was.

Q. But he wasn't moving?

A. Still.

Q. Sure. You told him to do what he was already doing.

A. His hand was partially covered.

Q. I understand that, but my question is, you told him to do what he was already doing?

A. And then his hand started to motion to the left.

Q. After you told him to freeze. So in effect, you told him to freeze, meaning, I suppose, meaning to be still, when he was already still; is that right? Isn't that a fact, Officer?

A. Yes.

Q. And then you said after you told him to -- although he was still when you told him to freeze, after you said freeze, that's when he moved; is that correct?

A. His hand started to motion, yes, sir, to his left.

Q. And when he started to move his hand you changed

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your position you say; is that right?

A. Yes, Sir, I did.

Q. How far away from him were you when you moved?

A. Three to four foot.

Q. Were you actually between the two vehicles at that time?

A. Yes, I was.

Q. And you said that you moved one foot to one side or the other?

A. One step to my left.

Q. One step to your left. And that was between the Volkswagen and the Ford, I think you said?

A. I took a step towards the Ford, yes, Sir.

Q. And then you saw a weapon the ground; is that right?

A. That is correct.

Q. When you saw the weapon the ground you were still three feet away from Mr. Jamal?

A. Yes, Sir.

Q. You had your weapon drawn?

A. Yes, Sir.

Q. When you saw his hand move towards that weapon you immediately kicked him?

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Recross - Shoemaker

A. No, sir, I ordered him to freeze again, which he did not do.

Q. And when you had ordered him to freeze did you move closer to him?

A.Yes, sir, I had.

Q. So then how close were you?

A. Maybe two foot then.

Q. By the way, was he leaning or sitting, or what was his position? Tell us so we know.

A. He was sitting in the curb, his feet were in the street, right arm across his chest, left hand was extended, no weight was on his left hand.

Q. How could you tell there was no weight, sir?

A. Because he was moving his hand and his body was staying still. He wasn't --

Q. That was after you told him to freeze?

A. Yes, sir.

Q. Okay, go on. I just wanted to be clear.

A. That's it.

Q. And you were within two feet of him, and this is after you had taken that step towards the Ford, you then saw the gun?

A. Yes, sir, I did.

Q. How far away was the gun from him?

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Recross - Shoemaker

A. From his hand?

Q. Yes, sir.

A. Approximately eight inches at that time.

Q. And how far was his hand extended?

A. About six to eight inches from his leg.

Q. So that the gun was closer to the Volkswagen?

A. Yes, sir.

Q. Where in relationship to the Volkswagen was this gun?

A. The gun was on the curb.

Q. It was on the curb?

A. Yes, sir.

MR. JACKSON: May I see C-3 through 13, please?

MR. MCGILL: Your Honor, at this point I would respectfully object. I believe it is way beyond recross for the limited redirect.

MR. JACKSON: Your Honor, I tried to limit it and he went back into the area, sir.

THE COURT: Okay, proceed.

Q. This is C-3, look at C-3 again, please. Can you see the location where you saw that weapon?

A. Yes, sir, I can.

Q. Could you mark that perhaps with this and put

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Recross - Shoemaker

perhaps a "G" ?

A. There is a marking on the picture itself that my partner made with a crayon.

Q. That what?

A. That my partner made with a crayon. If I marked over it, it would scratch out his.

Q. Where the gun is?

A. Where he marked it, yes, sir.

Q. Let me see it, I'm sorry.

(Pause.)

Q. Oh, I'm sorry, it's already in the photograph itself, okay. Now, Officer, you indicated that it was on the curb, you were two feet from Mr. Jamal, and Mr. Jamal was sitting with his right hand across, and it was his left hand that he was motioning for the gun, and you kicked him somewhere?

A. My heel contacted here (indicating), the sole of my shoe contacted here (indicating).

Q. Was he sitting straight up when you kicked him?

A. Partially leaning at that point.

Q. Which direction?

A. To the left.

Q. He was leaning to the left. And after you kicked

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him what happened to Mr. Jamal?

A. He fell backwards.

Q. All the way back?

A. Flat on his back.

Q. Flat on his back. Then after you knocked him flat -- kicked him flat on his back you kicked the weapon away?

A. Yes, sir.

Q. Where did you kick it?

A. I kicked it to my right with my right foot just out of his reach. I didn't want to kick it so far that we couldn't tell where it had been, so just out of his immediate reach.

Q. If I understand it, after you kicked him and he fell back he was between you and the gun?

A. No, sir. I came between him and the gun.

MR. MCGILL: Judge, objection. My redirect went to William Cook more than this. I have no objection to him restating it, but this is really beyond the scope.

THE COURT: Do you have any more recross?

MR. JACKSON: Yes, I do, sir.

THE COURT: Then go ahead.

MR. JACKSON: Thank you, sir.

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Recross - Shoemaker

Q. So after you kicked Mr. Jamal and he fell down, he was between you and the gun; is that correct?

A. No, sir, he was not. ...

Q. Why not?

A. I stepped upon him.

Q. You stepped on him after you kicked him?

A. No, I stepped upon him. After I kicked him I got between him and the revolver and I was standing over him with my revolver out. Then I kicked the gun with my foot to my right, which would be to his left, away from him.

Q. I'm having some difficulties understanding, forgive me. If he fell -- I think this is the direction -- if Mr. Jamal was at the curb, he was leaning towards his left to get the gun; is that correct?

A. Yes, sir.

Q. You kicked him and he went all the way back?

A. He fell backwards, yes,sir.

Q. So the gun would have been to his left?

A. Yes, sir.

Q. You stepped upon Mr. Jamal, as you stated, and somehow you got on the other side of Mr. Jamal?

A. Which side are you talking about?

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Recross - Shoemaker

Q. On the side next to the gun.

A. Yes, sir.

Q. I'm trying to figure out how Mr. Jamal got between you and the gun.

A. I kicked him away from the gun, he fell straight back.

Q. But the gun still would have been to his left?

A. It was still to his left.

Q. How did you get on the other side of Mr. Jamal? That's what I want to know.

A. I stepped upon him --

Q. Oh, you stepped over him?

A. No, I didn't say that.

Q. Well tell me.

A. I stepped upon him with my gun still drawn.

Q. I understand that.

A. I had my gun drawn looking down at him. Then I kicked the gun with my foot out of his immediate reach.

Q. Officer, I'm still trying to find out just -- you're telling us when you walked up to him Mr. Jamal was here, the gun was on the other side, and you were on the other side of Mr. Jamal?

A. No, sir, I was not on the other side, I was

3.143

Recross - Shoemaker

directly in front of him, but I had to take the side step so I could see what was around the corner from the Volkswagen.

Q. I understand, and you stepped away from where the gun was; is that correct?

A. That's correct.

Q. So then Mr. Jamal would have been between you and the gun?

A. At that time, before I kicked him.

Q. Right, so what I'm still trying to find out is how and when you got on the other side of Mr. Jamal?

A. After I kicked him my momentum carried me between him and the gun. That was my plan.

Q. So after you kicked him you kept on going and got on the other side of him?

A. That's right.

Q. I mean, I just want to find out. And after you kicked him he fell back and you kept on going?

A. No, sir.

Q. You kicked him and the thrust carried you over him; is that right?

A. Not over him, no, sir.

Q. Pardon me?

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Recross - Shoemaker

A. When I kicked him I stepped over towards him closer, okay?

Q. Toward him?

A. With my gun still trained on him.

Q. I understand that.

A. (Continuing) Because now still he's bringing his hand up and now I can see his hand. That's my main thing, I want to find out what he's doing with his hands. He's not going to shoot me with his foot. We're trained to watch for his hands. Then I kicked the gun away from him.

Q. Okay, you kicked him and then you saw his hands, I understand that.

A. Right.

Q. You got on the other side of him somehow -- I'm going to leave that alone -- you got on the other side of him somehow, then you kicked the gun away from him?

A. Yes, sir.

Q. To your right?

A. To my right, sir.

Q. That would have been towards 13th Street?

A. Yes, sir.

Q. Did you see where the gun went?

3.145

Recross - Shoemaker

A. No, sir, not -- I just gave it a little shove, that's all.

Q. A. little shove, it wasn't a kick?

A. Well, it was a kick with my foot. It traveled maybe six inches, a foot, just out of his immediate reach.

Q. Did you see another gun then?

A. No, sir, I didn't.

Q. And after Mr. Jamal fell back and you kicked the gun out of the way, you then told your partner -- Officer Forbes, is it?

A. Yes, sir.

Q. (Continuing) Officer Forbes, Watch him?

A. That's right.

Q. Where was Officer Forbes at?

A. At that time I don't know. He was behind me.

Q. Okay, but as I understand your testimony, you're saying when you kicked him back he started moving his hands then, Mr. Jamal; is that right?

A. No, sir, when I kicked him, as he fell back his hand came out from underneath his -- around his chest, and as he fell back he said, "I'm shot, I'm shot."

Q. Okay, fine.

3.146

Recross - Shoemaker

A. That's all he did.

Q. And when you told Officer Forbes to watch him, Mr. Jamal was on his back; is that right?

A. At that time, yes, sir.

Q. And then you went over to Officer Faulkner?

A. Yes, sir.

Q. And Billy Cook, William Cook was still against the wall, you're saying, with his hands in his pocket?

A. Yes, sir.

Q. And you said that Mr. Cook made some remarks to you; is that right?

A. Yes, sir.

Q. How far away was William Cook from Officer Faulkner?

A. Five or six feet.

Q. So then William Cook -- I'm sorry, Officer Faulkner, in effect, was between -- or tell me if I'm wrong, was between Mr. Jamal and Mr. Cook?

A. That is correct.

Q. William Cook was facing Locust Street; is that right?

A. Yes, sir.

Q. With his back against the wall?

A. Against the wall.

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Recross - Shoemaker

Q. Did you say anything to him?

A. I said nothing to him at all.

Q. And you went over to Officer Faulkner and saw his condition. Then what did you do?

A. I looked up, saw Billy Cook, that's when he made the statement.

Q. And what did you do then?

A. Myself and two or three other officers began to pick Officer Faulkner up.

Q. Okay, so that I understand correctly, at some point in time during the time that you were kicking or having some contact with Mr. Jamal some other officers arrived at the scene; is that right? Is that fair?

A. I would say so, yes, sir.

Q. And when you saw Billy Cook did you do anything to him? I mean, did you search him, arrest him or do anything?

A. No, sir, I was involved with Danny.

Q. Was someone involved with Mr. Cook?

A. No, sir, I couldn't say, sir. I didn't see anyone, no Police Officers.

Q. Okay, so he just stood there while you were attending to Officer Faulkner?

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Recross - Shoemaker

A. Yes, sir.

Q. And Mr. Jamal was still laying flat on his back?

A. Partially trying to get up. I had my eyes on both of them.

MR. JACKSON: Excuse me one moment.

(Defendant and his counsel confer.)

Q. When you indicate that Mr. Jamal had his right hand across his chest, you couldn't see his hand?

A. No, sir, I couldn't.

Q. Do you know what was obstructing your view? I mean, was it clothing --

A. Clothing.

Q. Clothing?

A. I couldn't see it.

MR. JACKSON: Thank you, Officer, I have no further questions at this time.

FURTHER REDIRECT EXAMINATION BY MR. MCGILL:

Q. Officer, you were not paying attention to William Cook, were you?

A. No, sir, I wasn't.

Q. You were concerned first about the gun, Mr. Jamal, and primarily about Officer Faulkner?

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Redirect - Shoemaker

A. About the condition of the officer.

MR. MCGILL: Nothing further. Officer Forbes is the next witness, if Your Honor please.

(The witness is excused.)

(OFFICER JAMES FORBES, Badge No. 9811,
Stake-out Unit, is duly sworn.)

DIRECT EXAMINATION BY MR. MCGILL:

Q. Officer Forbes, you are a member of the Philadelphia Police Department?

A. Yes, I am.

Q. On December 9, 1981 you were also a member of the Philadelphia Police Department?

A. That's correct.

Q. You are partner to Officer Robert Shoemaker; is that correct?

A. That's correct.

Q. And on that date, December the 9th, 1981, you responded to a radio call?

A. That's correct.

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Direct - Forbes

Q. Would you tell us what you did when you responded?

A. It was approximately 3:53 a.m., we were at the intersection of 12th and Chestnut Streets at a red traffic signal. We heard 612 car come over the air with a Car Stop at 13th and Locust, and then he came back on the air and said that he had a prisoner -- or he called for a wagon; I assumed he had a prisoner.

Q. When you say "he", who do you mean "he"?

A. Officer Faulkner.

MR. JACKSON: Object and move to strike what he probably assumed, Your Honor.

THE COURT: Overruled.

Q. Anyway, after hearing this you proceeded to the location?

A. We proceeded southbound on 12th Street toward Locust, and on Locust Street we turned right to west bound on Locust Street bucking traffic.

Q. And did you run across anyone on the way down?

A. As soon as we turned the corner a cab was coming eastbound on Locust Street in the 1300 -- or in the 1200 block, and he was flashing his headlights on and off, and we stopped at the corner of 12th and Locust, he pulled up next to us and he said something out the window.

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Direct - Forbes

Q. What was it?

A. He said, "He shot the cop."

Q. Any response to what he said, "He shot the cop," what did you do then?

A. I wasn't sure I heard what he said, and I said, "What?" And he repeated it again, he said, "He shot the cop." So we proceeded to 13th and Locust where we saw the Police car with the dome lights on. When we stopped I got out of the wagon and I was proceeding around the front of the wagon, I got about halfway in the middle of the grill and I looked over and I saw Danny, Officer Faulkner, laying on the sidewalk in a pool of blood, bleeding heavily from his head. So I ran back inside the wagon and I notified radio that a Policeman had been shot.

Q. When you ran back, where was your partner when that was happening?

A. He had gotten out of the driver's side and he proceeded right over to Officer Faulkner.

Q. When you got out -- who got out of the car first?

A. Actually, we both got out about the same time.

Q. Who went over first between the Volkswagen and

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Direct - Forbes

the Ford?

A. My partner, Robert Shoemaker.

Q. And then you were following and you observed Officer Faulkner --

A. I was following and I got halfway in the middle of the wagon and I saw he was bleeding heavily, and so I ran back and I notified Radio.

Q. So you ran back and got on the radio?

A. Yes.

Q. Did you eventually go to the sidewalk area?

A. Yes, I did. After I notified Radio I proceeded back to the sidewalk where, as I was crossing between the Volkswagen and the parked auto in front of that, I came across the Defendant. He looked up at me and said, "I'm shot, I'm shot." So I stepped past him, because I saw his brother William Cook standing against the wall right near Officer Faulkner's feet, and he had his hands in his pocket. So with my service revolver in my hand I ordered him to take his hands out of his pocket slowly. He did this, he brought his hands out in front of him. I then went back to see what my partner was doing, Robert Shoemaker, and I looked back and I saw

3.153

Direct - Forbes

a revolver laying next to the Defendant.

Q. Now, did you seize any evidence?

A. Yes, I did.

Q. What did you seize? Did you bring it with you by the way?

A. Yes, I did.

Q. Why don't you just give it to me.

(Revolver is handed to ADA McGill.)

Q. Would you clear this.

(The witness complies with counsel's request.)

MR. MCGILL: Your Honor and the jury, both weapons are clear, which means they cannot fire. I'd ask that this be marked C-22, and this weapon be marked C-23.

(Revolver is marked C-22 for identification.)

(Second revolver is marked C-23 for identification.)

MR. JACKSON: Can I see them for a minute, Jim?

MR. MCGILL: The envelope contains the cartridges.

3.154

Direct - Forbes

(Pause.)

Q. All right, Officer, where did you seize both of those weapons, C-22 and C-23?

MR. JACKSON: May I see C-23, also, Jim?

(Pause.)

A. C-22 is a .38 caliber Charter Arms Revolver. This is the weapon I recovered next to the Defendant. It was lying on the sidewalk.

Q. And what about C-23?

A. C-23 is a .38 caliber Smith and Wesson Revolver. I uncovered this just off the curb in the street approximately five feet away from the Defendant -- or, correction, about three feet away from the Defendant.

Q. And where was the weapon in relation to Officer Faulkner?

A. It was approximately five feet away from Officer Faulkner.

Q. I'm showing you what has been marked C-4. Could you put an "R-1" and "R-21" where the weapons were? R-1 where you found the two-inch revolver and R-2 where you found Officer Faulkner's weapon.

(Witness complies with counsel's request.)

Q. I'm showing you C-4. R-1 and R-2 have been noted

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Direct - Forbes

on that by you; is that correct?

A. That's correct.

Q. And you eventually took those weapons to ballistics?

A. That's correct.

Q. Did you stay with William Cook then?

A. Yes, I did. After I picked up the revolvers I walked back and I held onto him until other arriving Police could frisk him.

Q. And he had no weapons, did he?

A. No, he didn't, none that I found.

Q. Now, Officer Forbes, did Mr. Cook say anything to you?

A. As I was approaching him he was looking in the direction of my partner Robert Shoemaker, and he said, "I ain't got nothing to do with this." And as I got closer to him he looked up at me and repeated the same thing, "I ain't got nothing to do with this."

Q. Officer, when did the Defendant say that he was shot? When did he say, "I am shot, I am shot"?

A. After I notified Radio I was walking back over to the sidewalk and I had to pass almost over him.

Q. Well, at the time that you got out of the wagon and saw Officer Faulkner was in bad shape and then you

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Direct - Forbes

went back to the wagon, you were unaware of what Officer Shoemaker was doing?

A. That's correct.

Q. He did not go back to the wagon with you?

A. No, he didn't.

MR. MCGILL: Okay, cross-examine.

CROSS-EXAMINATION BY MR. JACKSON:

Q. Officer Forbes, how long have you been a Police Officer?

A. Ten and a half years.

Q. You knew Officer Daniel Faulkner?

A. Pardon me?

Q. You knew Officer Faulkner?

A. Just in a passing relationship.

Q. Now, Officer, could you correct something for me? You just marked a photograph with R-1 and R-2; is that right?

A. That's correct.

Q. And they are the locations that you confiscated the weapons?

A. That's correct.

Q. On your testimony, though, you indicated that C-23,

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Cross - Forbes

which is the larger weapon, the Smith and Wesson, was just off the curb in the street?

A. That's correct.

Q. On the photograph you have it marked on the sidewalk.

A. No, that would be R-1. That would be the Charter Arms, the snub-nosed revolver.

Q. But your testimony was -- what would be the Charter, tell me?

A. The Charter Arms would be R-1, which is just on the sidewalk.

Q. Yes, I understand that, and R-2 --

A. Is this Officer Faulkner's gun, which is laying just off the curb in the street.

Q. May I see that photograph again, please? (Pause.)

MR. JACKSON: Your Honor, may I approach the witness?

THE COURT: Go ahead.

MR. JACKSON: Thank you.

Q. Officer Forbes, this is R-2; is that correct?

A. That's correct.

Q. And that is, as you've indicated, the weapon of Officer Faulkner?

3.158

Cross - Forbes

A. That's correct.

Q. And that's based on what someone told you, you didn't know that for a fact, though; is that right, that that was Officer Faulkner's weapon?

A. Would you repeat the question?

Q. Yes. Do you know that R-2, the Smith and Wesson, do you know that to be Officer Faulkner's weapon?

A. I do now, yes.

Q. But you didn't know it then?

A. Not at that time.

Q. And you only know it now based on what someone told you?

A. Yes.

Q. I just want to have that clear. And that is the weapon that is in the street off the curb line, as you indicated?

A. That's correct.

Q. This chalk mark that is here, could you tell me who put that there?

A. I did.

Q. And you put that chalk mark to indicate that that was officer Faulkner's weapon, right?

A. That's correct.

3.159

Cross - Forbes

Q. And you're sure the Charter wasn't there; is that right?

A. Am I sure the Charter Arms was not there?

Q. Right.

A. No, it was not there.

Q. Okay, good. May I see C-3, please?

(Pause.)

Officer Forbes, when you came upon Mr. Jamal, you indicated that the two-inch gun, the Charter, was right next to Mr. Jamal?

A. That's correct. It was about a foot from his left side.

Q. A foot from his left side. And that's indicated by the mark that you put on the sidewalk; is that right?

A. That's correct.

Q. Now, did you happen to observe when your officer kicked the weapon to where it ended up, did you see your partner kick the weapon?

A. No, I didn't.

Q. All right. Now, you indicated as well, I believe, on direct examination that when your partner got out of the vehicle he went directly to Officer Faulkner; is that right?

3.160

Cross - Forbes

A. That's correct. He was heading in that direction.

Q. He was heading in that direction, oh. So he didn't go directly to Officer Faulkner --

MR. MCGILL: Objection. He didn't say that.

MR. JACKSON: I'm asking him. Did he go directly to Officer Faulkner?

MR. MCGILL: He said he was heading in that direction, and then he said --

MR. JACKSON: Your Honor, can I ask this witness to tell me?

MR. MCGILL: I'm asking him to follow what the words are.

THE COURT: Go ahead, ask him.

Q. You tell us, Officer Forbes, what did Officer Shoemaker do?

A. As he headed out of the wagon he was headed toward Officer Faulkner. That's the last time I saw him. Then I headed back to the radio.

Q. Oh, you just know the direction he was going?

A. That's correct.

Q. Officer Faulkner wasn't the only person in that direction, obviously?

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A. No.

Q. And did you hear your brother Officer say, "Watch him"?

A. No, I did not.

Q. So you didn't see -- correct me if I am wrong -- you did not see Officer Shoemaker say or do anything with respect to Mr. Jamal?

A. No, I didn't.

Q. Now, after you came from the wagon and you made the radio broadcast, where was your partner then? I mean the first instant you saw him when you got out of the wagon, where was he?

A. He was kneeling by Officer Faulkner's side.

Q. Now, you indicate further that you saw William Cook against the wall and he made some remarks as well; is that right?

A. That's correct.

Q. And his hands were in his pockets?

A. That's correct.

Q. And you told him, "Take your hands out of your pocket"?

A. That's correct.

Q. Did you frisk him?

A. No.

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Cross - Forbes

Q. Well, in response to Mr. McGill's question you said he didn't have any weapons. How do you know that?

A. None that I knew of.

Q. But you didn't frisk him?

A. I found no weapons. No, I didn't frisk him.

Q. You found none because you didn't look for any?

A. Correct.

Q. And did you have your service revolver drawn?

A. Yes, I did.

Q. And it was in what hand?

A. My right hand.

Q. Did you come to touch William Cook in any way whatsoever?

A. Yes, I did.

Q. At the moment that he took his hands out of his pockets?

A. No.

Q. Was it much later on?

A. No.

Q. Well, tell us, what did you do?

A. After he took his hands out of his pockets and I looked back to see what my partner was doing, I observed the Charter Arms next to the Defendant. I

3.163

Cross - Forbes

went over to pick that up, and as I picked that up I saw right off to the left of that was Officer Faulkner's gun, so I picked that up also and I placed them both in my left hand, and then I walked back over and I held on to William Cook with my right hand to his left arm.

Q. So you had two guns in your left hand, one gun in the right hand?

A. No, I'm sorry, I holstered it by that time.

Q. You had what, holstered --

A. I had my own service revolver holstered by that time.

Q. When did you holster it?

A. Before I picked up the guns, because I picked both guns up with my right hand by the wooden grips and placed them in my left hand so as not to ruin any possible fingerprints.

Q. Tell us -- because I was going to get to that, but we might as well get to that now -- at least show us how you held the two weapons that you picked up?

A. (Indicating)

Q. Could you stand up so the jury could see as well?

(The witness complies with counsel's

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request.)

Q. Okay, holding both weapons by their grips; is that correct?

A. That's correct.

Q. And not touching either portion of the metal; is that correct?

A. That's correct.

Q. And holding them in your left hand. Okay, be seated, please. Now, when you picked up the short barrel, the two-inch, the Charter, did you still have your revolver out?

A. No, I did not.

Q. So that I'm clear about this, at this point Billy Cook had his hands in his pockets, you told him, "Take your hands out of your pockets", he stood against the wall and you said, all right, you wait there, and you put your gun away without knowing whether he had a gun?

A. After he had taken his hands out of his pockets.

Q. Right.

A. There was nothing in his hands.

Q. There was nothing in his hands, but you don't know what was in his pocket?

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Cross - Forbes

A. That's correct.

Q. You don't know what was in his belt?

A. That's correct.

Q. But you just put your gun away anyway?

A. That's correct.

Q. Is that because you believed him when he said he nothing to do with it?

A. No.

Q. You didn't believe him?

A. I had no knowledge.

Q. You had no knowledge of what?

MR. MCGILL: Objection, Your Honor.

THE COURT: I'll sustain it.

Q. You saw some officers eventually come and frisk William Cook; is that right?

A. Yes, that's correct.

Q. About how long after you told him to take his hands out of his pockets?

A. Approximately two to three minutes later.

Q. Did you ever lose sight of William Cook?

A. When I bent down to pick up the revolvers, yes.

Q. You didn't see what he was doing?

A. For a split second, because I had to look down.

Q. How far away was the charter from where William

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Cross - Forbes

Cook was?

A. It would be about six feet approximately.

Q. So that me and the jury can get this all together, Officer Shoemaker was kneeling beside Officer Faulkner, you were there with no gun drawn telling William Cook what to do, Mr. Jamal was also on the ground, it was just you and Officer Shoemaker there then; is that right, just the two of you, right?

A. That's correct.

Q. So you in effect were responsible for both Mr. Jamal and Mr. Cook?

A. That's correct.

Q. And you took your eye off Mr. Cook. What about Mr. Jamal?

A. Well, that's why I retrieved the weapons, so that he couldn't use the revolver that was laying next to him or -- once I saw Officer Faulkner's gun nearby I picked that up also so he wouldn't be able to use that one either.

Q. Sure, but that's after you had gone up to Billy Cook and told him to take his hands out of his pockets. Meanwhile the gun was still next to Mr. Jamal; is that right?

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Cross - Forbes

A. That's correct.

Q. And you weren't watching?

A. I hadn't seen it until I turned around and saw what my partner was doing.

Q. Okay I just want to be clear about it. Now, you held on to Billy Cook, William Cook; is that right?

A. That's correct.

Q. And so you got a chance to look at him, right?

A. That's correct.

Q. Did he have blood on him anywhere?

A. He had a drop of blood on his left cheek.

Q. Did you see where the blood came from, whether there was an injury?

A. No, I didn't.

Q. Did you look at his hands?

A. Just from a distance.

Q. Did you see blood on his hands?

A. No, I didn't.

Q. Did you have any idea where the blood on his cheek came from?

A. Not at that time.

MR. MCGILL: Objection. An idea is not

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Cross - Forbes

what he observed.

Q. Did you strike William Cook?

A. No, I didn't.

Q. Did you see anyone strike him?

A. No, I didn't.

Q. Now, eventually, your brother officers came and they searched William Cook; is that right?

A. That's right.

Q. And William Cook was handcuffed, I assume?

A. Yes.

Q. And those two weapons you kept in your left hand the entire time; is that not true?

A. That's correct.

Q. And you submitted them to whom?

A. To the Ballistics Technician.

Q. By the way, based on your ten years of experience, the manner in which you retrieved as well as held onto the weapons, is that consistent with your training and experience?

A. As best I remember, yes.

Q. As best you remember. When you retrieved weapons from the ground you picked them up by the grips as well?

A. Repeat.

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Cross - Forbes

Q. You picked the guns up by the grips from the ground?

A. That's correct.

Q. And you never touched any of the metal portion of the guns, did you?

A. No, I did not.

Q. And who in particular did you submit the weapons to?

A. I don't remember his name.

Q. You mean to tell me you gave two guns to somebody and you don't know who?

A. It was the male in charge.

Q. In charge of what?

A. At the Ballistics Room.

Q. Let me back up, I'm not attacking you, I just want -- you say you went to the Roundhouse and there was someone in charge and you gave them to him?

A. Up in the Ballistics Lab, yes. He's the desk man.

Q. Did you get a receipt for them?

A. A property receipt.

Q. You got a property receipt?

A. I had to go downstairs to get a property receipt. It was typed out.

Q. So you just left the guns with him and then you

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Cross - Forbes

went somewhere else; is that what you did?

A. That's correct.

Q. When you gave him the guns what did he do with them?

A. He took them back to the Chemical Lab where they were dusted for fingerprints.

Q. So that I'm clear, too, you watched all that, this that you're telling me now?

A. Yes.

Q. Now first of all, how did you give it to him when -- I want the full scenario.

A. I handed them to him and he handled them by the grip one at a time and laid them on the table.

Q. So you had both of them in your left hand; is that right?

A. That's correct.

Q. And you handed both of them at the same time?

A. One at a time.

Q. So you used your other hand, your right hand to take one gun and gave it to him?

A. That's correct.

Q. And he put one in each hand?

A. He took one from me at a time and he sat them on the table.

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Q. And then what happened?

A. Then they were dusted for prints by another Technician.

Q. In Ballistics they were dusted?

A. No, we went over to the Chemical Lab.

Q. I thought you said you took the weapons to Ballistics?

A. We went to Ballistics first and then we went around back to the Chemical Lab.

Q. Let's back up. When you went up to Ballistics what did you do with the guns and then where did you go? I want to know exactly, I want to know the chain of custody, sir.

A. I handed them to the Technician one at a time, he sat them on the table, then I told him I picked them up by the grips, you know, in case there were any fingerprints. So then we took them back to the Chemical Lab where another Technician dusted them for fingerprints.

Q. Both guns never left your eyesight, did they?

A. No, they didn't.

Q. When they were dusted for prints for the first time, from the time you picked them up at the scene until the time they were dusted, they never left your

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Cross - Forbes

eyesight?

A. That's correct.

Q. Do you know who the Technician is that dusted them?

A. No, I don't.

Q. Do you know if it's a Technician from Crime Lab, from Ballistics or from Identification?

A. I believe they're from the Crime Lab.

Q. You'd know him if you saw him again?

A. No, I wouldn't.

Q. Have you had training at all in lifting latent prints?

A. No.

Q. Have you seen it done before?

A. Vaguely. Some crime scenes I've seen it.

Q. As best as you can recall, when the weapons were dusted for fingerprints, what did you see the Technician do?

MR. MCGILL: Objection, Your Honor. It's beyond the scope of his expertise.

MR. JACKSON: I'm just asking him to describe what he saw done.

THE COURT: Let him answer.

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Cross - Forbes

Q. As best as you can recall, what did you see him do?

A. He dusted them with a red powder.

Q. When you say dust, for all of us, how do they do it?

A. It's a small brush with gray or red powder and you dust it all over the gun.

Q. Now, did he pour the powder out of the jar onto the gun?

A. No, you put the brush in the bottle.

Q. And after that did he take out some tape?

A. Yes.

Q. And he put the tape onto the gun?

A. Yes.

Q. And then withdrew the tape from the gun?

A. Yes.

Q. And then did you see what he did with the tape?

A. I believe they were placed on, like, an index card.

Q. You believe so?

A. The best of my recollection, yes.

Q. After you saw him put the tape on the index card, what happened to the index card.

MR. MC GILL: Your Honor, objection.

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Cross - Forbes

Q. If you know.

MR. MCGILL: Your Honor --

THE COURT: You're going a little bit too far afield.

MR. JACKSON: Your Honor, I have a reason for asking.

THE COURT: Go ahead.

A. No.

Q. You don't know what happened. After they were dusted, the guns were dusted, then you took the guns again?

A. Yes.

Q. And by the way, this Technician did it for both weapons; is that right?

A. Yes.

Q. And when he put the tape on the card you never examined the card, did you?

A. No.

Q. You never looked on it, initialed it or anything like that?

A. No.

Q. So that if anyone were to bring the card in now, you wouldn't know whether or not it was the same card or not, would you?

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A. No.

MR. JACKSON: Thank you, I have no further questions.

REDIRECT EXAMINATION BY MR. MCGILL:

Q. Officer Forbes, isn't it true that it's extremely rare that you're able to get a match-up fingerprint on a weapon?

MR. JACKSON: Objection.

THE COURT: Sustained. He's not an expert, you're going to have the expert come in. Let's not get into that.

MR. MCGILL: Yes sir.

Q. Officer Forbes, when you took the weapons down to Ballistics or the Chem Lab, etcetera, were you present when they were looked at by the Ballistician?

A. Yes, I was.

Q. And did you see the condition of the weapons? --by that I mean the contents of them.

A. Yes, I did.

Q. And what were they?

A. The Charter Arms had five spent casings. I believe there were four Winchesters plus .39 caliber

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Redirect - Forbes

Plus P's and one Smith and Wesson.

Q. And what I'm showing you now, C-22, the snub-nosed had five spent; is that what you said?

A. That's correct.

Q. And what does "spent" mean?

A. It means the bullet has been ejected.

Q. And what about R-2 or C-23?

A. That had five live rounds and one spent casing.

MR. MCGILL: Thank you. Nothing further, Your Honor.

MR. JACKSON: Nothing further.

(The witness is excused.)

MR. MCGILL: Officer Soboloski.

(OFFICER DANIEL SOBOLOSKI,
Badge No. 5596, is duly sworn.)

MR. MCGILL: May I proceed, Your Honor?

THE COURT: Yes.

DIRECT EXAMINATION BY MR. MCGILL:

Q. Officer Soboloski, on December the 9th, 1981 you

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Direct - Soboloski

were a member of the Philadelphia Police Department?

A. That's correct.

Q. And you had occasion to respond to a radio call and go to 13th and Locust Streets?

A. Yes, I did.

Q. When you arrived what did you do?

A. Upon arrival at the scene that morning I observed a wounded officer laying on the sidewalk and the Defendant, which is in the Courtroom, sitting on the sidewalk.

Q. Would you point out the man who was sitting on the curb, the sidewalk?

A. With the tan shirt on (indicating).

MR. MCGILL: Indicating for the Record the Defendant in this case.

Q. What if anything did you do?

A. All right, then at that time we attempted to put the officer into a vehicle which was too small. The officer was then placed in a wagon and transported to the hospital. I then handcuffed Jamal and he was then placed in a wagon.

Q. Is that the man you pointed out in the Courtroom before?

A. Yes.

Q. The one you handcuffed. Would you tell us

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the circumstances of that handcuff?

A. After the officer was placed in the wagon I walked back in front of the Volkswagen and I observed Jamal sitting on the sidewalk with his feet either on the curb or in the street. He was facing in a north direction. At this time I pushed Jamal down to the sidewalk with my right hand onto the sidewalk so he could be handcuffed. At this time a struggle ensued in which I had problems handcuffing him. It was at this time other officers came to my assistance and helped me in handcuffing Jamal.

Q. And during the course of the struggle was -- did any part of the Defendant's body hit any areas of the ground or car or anything?

A. Because of the struggle that ensued, Jamal hit the sidewalk with his head or the top part of his body so that I had to handcuff him behind his back. At this time the struggle started, I could not get the handcuffs on him because of the outward motion he had his arms. He was kicking his feet, pulling his arms apart, and I was having trouble getting both arms together so he could be handcuffed properly.

Q. Now, you had assistance from a couple of officers,

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Direct - Soboloski

didn't you?

A. Yes, I did.

Q. Officer Carolyn Chin and Officer John McGurk. Were these officers also present in assisting you?

A. Yes, they were.

(At this time Police officers Carolyn Chin and John McGurk
enter the Courtroom and then leave the Courtroom.)

Q. And what did you do? You finally handcuffed him, I assume?

A. After Jamal was handcuffed he was then picked up. During the course of picking him up he was still struggling, making it very hard for us to lift him up properly and take him to the wagon.

Q. All right, during the course of taking him to the wagon we accidentally ran into a pole because the pole --

THE COURT: Quiet, please. Go on, please, officer.

A. (Continuing) Because the pole was in course with the back of the wagon.

Q. His head made contact with that pole; is that correct?

A. Yes. As a result of that he came down and hit

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Direct - Soboloski

his face on the ground, that's correct.

Q. Then did you take him in the wagon?

A. Yes, I did.

Q. And those officers were with you that you just pointed out?

A. That's correct, they assisted.

MR. MCGILL: Your Honor, if it please the Court, may I ask the officer to come down to the sketch?

THE COURT: Yes.

(The witness complies with counsel's request.)

Q. Officer, I'm going to ask you to approximate or as close as you can, indicate where the Defendant was when you first saw him and where he was at the time -- well, where he was at the time you were attempting to handcuff him?

A. Jamal was approximately at the right front fender of the Volkswagen sitting -- my vision was obstructed when I first was at the scene, I looked between the front of the Volkswagen and the Ford and I could not see Jamal at that time, so I walked between the vehicles and I observed him sitting on the sidewalk with his feet either on the edge of the curb or in the

3.181

Direct - Soboloski

street. When I pushed him down on the sidewalk I pushed him in the direction which would point west, in a southwest direction, so I could handcuff him behind his back.

Q. All right, now you eventually took him to the wagon; is that correct?

A. That's correct.

Q. Tell us where that wagon was? Could you tell us where the wagon was?

A. I believe the wagon was in the approximate vicinity of the -- right next to the RPC 610.

Q. And that was what, facing in the east direction?

A. The wagon?

Q. Yes.

A. Yes, facing in an east direction.

Q. And he was then put in that wagon?

A. Yes, he was.

Q. All right, thank you, you can go back to the stand, if you would please, officer.

(Pause.)

Q. At the time that you were there had officer Faulkner been taken away, at the time that you arrived, or did you --

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Direct - Soboloski

A. When I arrived on the scene officer Faulkner was still lying on the ground.

Q. And did you see William Cook there at that time?

A. No, I do not remember seeing William Cook.

Q. So the people that you were cautious of were Officer Faulkner and the Defendant? In other words, the Defendant was taken into the wagon, correct?

A. That's correct.

Q. And you didn't put anybody else in that wagon, did you?

A. No, I did not.

MR. MCGILL: Cross-examine.

CROSS-EXAMINATION BY MR. JACKSON:

Q. Officer Soboloski, do you know what time you arrived at the scene?

A. Approximately 3:46.

Q. When you say approximately 3:46, you know why is it 3:46 and maybe not 3:45? I mean, is there some reason that you weren't saying 3:45?

A. Give or take two minutes.

Q. I mean, is there something, some event that took place perhaps prior to that that you recall

3.183

Cross - Soboloski

making a record of the time or something like that?

A. At approximately 3:30 I had what is known as a club check. It was at 3:00 o'clock and at 3:30.

Q. Fine, now do you recall -- were you the driver or the recorder that evening, on December 9th?

A. I was solo, I was by myself.

Q. Oh, I'm sorry. Do you recall whether in fact you recorded the time that you were going to the scene or you went to the scene?

A. I entered it but probably not until everything was over.

Q. Okay, now when you arrived on the scene you were in a solo car, you were in a marked vehicle?

A. Yes, I was.

Q. In uniform?

A. Yes.

Q. By the way, approximately how tall are you, sir?

A. Approximately six foot.

Q. And approximately how much do you weigh?

A. Approximately 230 pounds.

Q. Now when you arrived at the scene you indicated that you had to look between the cars before you saw Mr. Jamal; is that right?

A. I had to walk between the cars. It would be just

3.184

Cross - Soboloski

about between the cars before I could see him.

Q. When you arrived at the scene did someone else tell you that Mr. Jamal was there?

A. No one told me specifically, no one said that was Jamal, no.

Q. Well, not his name, but did they say, Lock him up, or something?

A. No, no one told me that.

Q. Why did you lock him up? Why did you put handcuffs on him?

A. Because of the scene. We evidently had an injured officer, we evidently had a crime scene, we did not know if it was a homicide yet.

Q. I understand that, but he was just a man on the curb; why did you go to handcuff him if no one --

A. He was --

Q. Let me finish the question, sir. (Continuing) If no one told you to handcuff him? You weren't there when it happened, he was sitting on the curb. Why did you go to handcuff him?

A. Because at that time he was a suspect.

Q. How do you know if no one told you?

A. It's not my job to find out whether he did it or not. If he's a suspect, he gets questioned later.

3.185

Cross - Soboloski

Q. There was a number of other people there at the time, wasn't there?

MR. MCGILL: Objection.

THE COURT: Please don't argue.

MR.JACKSON: I'm not, sir, I'm not.

Q. There were a number of people there at the scene, were there not?

A. What's a number of people?

Q. More than two?

MR. MCGILL: Objection. What is he talking about, officers, civilians?

THE COURT: Be more specific.

Q. Other than Police officers, were there any other civilians on that pavement or in that street in the immediate vicinity?

A. At which time, when I pulled up?

Q. Yes, sir.

A. The only people I remember seeing were just two people, one Police officer and one civilian -- excuse me, I saw two Police officers and one civilian.

Q. Who was the civilian that you saw?

A. Jamal.

Q. You didn't see Cynthia White?

A. I don't know Cynthia White.

3.186

Cross - Soboloski

Q. Did you see a woman?

A. No, I didn't.

Q. Does it mean she wasn't there or you just --

MR. MCGILL: Objection.

Q. I'm trying to find out is it because you didn't focus your attention on her --

MR. MCGILL: Objection.

THE COURT: Well, he's answered the question.

Q. Okay, so that's all you saw. What caused you to walk between the cars?

A. That's where my vehicle pulled up, between the cars, and before even getting out of the vehicle I looked through the passenger side door and I saw Officer Faulkner lying on the sidewalk.

Q. And you saw officer Faulkner, but you couldn't see Mr. Jamal at that time?

A. My eyes were focused on Officer Faulkner at the time.

Q. And you got out of your vehicle and you had to walk around your vehicle to go to get across the street; is that right?

A. I was parked in the middle of the street.

Q. Facing east?

3.187

Cross - Soboloski

A. That's correct.

Q. So you walked between the two cars and then you saw Mr. Jamal?

A. When I -- before I got between the cars we attempted to put Officer Faulkner in my vehicle. I only walked around to the passenger side rear door on my side where I opened the door, and because of the size of the vehicle we did not put Officer Faulkner in the car. We then carried him and put him in a wagon.

Q. Okay, then you returned back to the scene and you saw Mr. Jamal there?

A. That's correct.

Q. Now, at this point, up to this point, if I understand you correctly, no one said that Jamal was a suspect or anything else, he was just there. No one even mentioned to you that he was there; is that right?

A. No one -- I asked the general question as to who the male was on the sidewalk.

Q. Oh, you did ask that?

A. Yes. Nobody told me, I asked a general question.

Q. When did you ask that general question?

3.188

Cross - Soboloski

A. When I returned back to the scene.

Q. Before handcuffing him?

A. That's correct.

Q. When I asked you before how you knew he was a suspect -- fine, all right. Now you're saying that you asked a question and you got the response that he was a suspect, and then you went over to handcuff him; is that right?

A. That's correct.

Q. Did anyone tell you to handcuff him?

A. No.

Q. Just following procedure. And if I understand you correctly, when you first saw him he was sitting; is that right?

A. Yes.

Q. And you indicated, I believe, on direct examination that you pushed him in a southwesterly direction in order to handcuff him?

A. That's correct. It was towards the corner of 13th Street, 13th and Locust.

Q. Okay, in a southwesterly direction, so that you could handcuff him behind his back?

A. That's correct.

Q. And you customarily handcuff all prisoners

3.189

Cross - Soboloski

behind their back; is that right?

A. That is procedure.

Q. And you indicated that you pushed him, right?

A. That's correct.

Q. Was he struggling with you before you touched him?

A. How could he be struggling with me if I didn't touch him?

Q. Just answer the question yes or no, sir.

A. No.

Q. So it's when you touched him he began to struggle with you?

A. That's correct.

Q. So you pushed him before he even did anything to you?

A. That's correct.

Q. Why did you push him, sir?

A. Because he was a suspect.

Q. So it's all right to push suspects?

MR. MCGILL: Objection, Your Honor. It's obvious where he's going. Objection, argumentative. It's a series of argumentative questions he's been permitted to ask, sir. I'm objecting.

3.190

Cross - Soboloski

THE COURT: Objection sustained. You've made your point.

Q. Do you push all suspects?

MR. MCGILL: Objection.

THE COURT: I will sustain that.

Q. Did you know Mr. Jamal was injured?

A. No, I didn't.

Q. Did you ask him to get up?

A. No, I didn't.

Q. Did you attempt to stand him up so you could handcuff him?

A. No, I didn't.

Q. You found it more convenient to push him than to handcuff him?

MR. MCGILL: Objection, Your Honor, argumentative.

THE COURT: Sustained.

Q. Officer, there were other officers at the scene there with you; is that right?

A. That's correct.

Q. I note there were two other officers who came in here. Were there other officers at the scene?

A. After what time are you speaking of?

Q. At the time that you attempted to handcuff

3.191

Cross - Soboloski

Mr. Jamal.

A. There was one other officer that I had -- besides officer Faulkner there was one other officer that was there within my vision.

Q. With regard to those persons who were helping you handcuff Mr. Jamal, it was just those two other officers and yourself?

A. I believe so.

Q. You believe so?

A. I don't know for a fact. I don't know how many Policemen were there.

Q. Did you attempt to handcuff Mr. Jamal by yourself at first?

A. Yes, I did.

Q. And you were unsuccessful and then -- did you call for help or was help just there?

A. Help was already on the way.

Q. And how long would you say that you struggled with Mr. Jamal before that assistance came to you?

A. A good couple of minutes.

Q. A couple of minutes. This whole couple of minutes Mr. Jamal was on the ground; is that right?

A. That's correct.

Q. And you struck him a few times, didn't you?

3.192

Cross - Soboloski

A. No, I didn't.

Q. Other than the one time that you pushed him -- and we'll leave out the pole for a moment, his head hitting the pole accidentally --

MR. MCGILL: Objection, argumentative, Your Honor. It's continuously argumentative and I object.

THE COURT: Just make your point.

MR. JACKSON: Yes, sir.

Q. I want to know if you touched him after you pushed him?

A. Yes. I carried him to the wagon.

Q. Other than carrying him to the wagon did you push him?

A. No.

Q. Did you strike him in any way?

A. No.

Q. Did you see him struck by anyone?

A. No.

Q. Did you see his face hit the ground?

A. I wasn't underneath his face. I could not see his face hit the ground.

Q. You could not see his face hit the ground?

A. No.

3.193

Cross - Soboloski

Q. But my question is, did his face hit the ground?

A. In most likeness, yes.

Q. Most likely it did. All right. Who or what caused his face to hit the ground?

A. After he hit the pole?

Q. No, I'm talking about before that, sir.

A. After he was pushed to the ground --

Q. Let me back up because I'm confused. You first came upon the scene, you pushed him, we got that established.

MR. MCGILL: Objection. Repetitious.

MR. JACKSON: Your Honor, I'm trying --

MR. MCGILL: You're trying to lead him four times.

MR. JACKSON: I'm not.

Q. I'm trying to know if you saw him struck between the time you pushed him the first time and the time he was carried to the wagon. Did you see his face hit the ground?

MR. MCGILL: What are you asking him, whether he was struck or whether he hit the ground?

Q. My question is, did you see his face hit the ground?

A. No, I did not see his face hit the ground.

3.194

Cross - Soboloski

Q. Did you see anyone strike him?

A. No, I didn't.

Q. While you were trying to handcuff Mr. Jamal you were just holding his arm?

A. I was attempting to handcuff him.

Q. When you say "attempting", tell us what you mean by attempting?

A. It's the procedure to handcuff all prisoners behind their back in this fashion. I did have one handcuff, I believe, on his left arm, and while attempting to bend his other arm back to handcuff him he started his arms in an outward motion so whereas I could not handcuff him. You cannot handcuff someone unless their arms are approximately three inches apart, no more, because the handcuffs are only that big.

Q. Okay, now when you pulled his left arm, okay, you said you believe you had a cuff on the left arm; is that right?

A. Yes.

Q. And you pulled his hand behind his back --

A. That's correct.

Q. That's the direction you had pushed him to the ground; is that right? He was on his left arm,

3.195

Cross - Soboloski

because you pushed him in a southwesterly direction you told us earlier; is that right?

A. That's correct.

Q. So he was on his left arm anyway?

A. No, he was laying on his upper torso.

Q. How was he laying on his upper torso, Officer, when you say when you arrived at the scene his feet were in the street and his face was towards the wall?

A. No, he was facing north.

Q. All right, I understand that, he was facing Locust Street, right?

A. That's correct.

Q. And you pushed him away from Locust Street in a southwesterly direction?

A. That's correct.

Q. So he would have been on his left arm, wouldn't he?

A. No. He turned onto his chest.

Q. He turned all the way over when you pushed him?

A. When he got pushed, yes.

Q. Oh, I'm sorry. Did he groan or anything when you pushed him?

A. I don't remember.

3.196

Cross - Soboloski

Q. Then when you pulled his arm he started pulling it back?

A. That's correct.

Q. Would that be a natural reaction for someone who was shot?

MR. MCGILL: Objection, Your Honor.

THE COURT: Sustained.

Q. Now, he was on his chest and you still had some difficulty handcuffing him; is that right?

A. That's correct.

Q. And the other two officers came and assisted you, Officer McGurk and, I believe, Officer Chin?

A. That's correct.

Q. Were they kneeling on him, do you know?

A. No.

Q. Was anyone kneeling on him?

A. No.

Q. So all three of you were standing up trying to handcuff him?

A. Squatting down.

Q. Squatting, Okay. So then you eventually picked him up, all three of you?

A. That's correct.

3.197

Cross - Soboloski

Q. And carried him?

A. That's correct.

Q. Now, you indicated when you picked him up, Mr. Jamal was right here between the Ford and the Volkswagen; is that correct?

A. He was facing the right front fender of the Volkswagen.

Q. That's right here (indicating); is that right?

A. That would be approximately right next to where the front tire -- the right front tire of the Volkswagen is.

Q. Now, where in this area was the wagon that you took him to?

A. On the diagram I believe it was right next to where the diagram of RPC 610 is.

Q. So the wagon is here (indicating)?

A. In that proximity, yes.

Q. Now, you saw Mr. Jamal when you came in between the Volkswagon and the Ford. After handcuffing him he was pretty much right near this wheel, you say. The pole was there that you accidentally ran his head into?

A. I believe the pole was at the end of the Volkswagen, the right rear corner of the Volkswagen.

3.198

Cross - Soboloski

Q. You're saying right here (indicating)?

A. Approximately, yes.

Q. Now, you said it was an accident?

A. That's correct.

Q. How were you carrying him?

A. Under his armpits.

Q. You had one armpit and someone else had the other armpit?

A. That's correct.

Q. And was he standing?

A. No, he wasn't standing because he was still struggling. He would not get on his feet so we had to help him to his feet.

Q. He would not or could not?

MR. MCGILL: Objection, Your Honor.

THE COURT: Sustained.

Q. Well, could he get up?

MR. MCGILL: Objection.

Q. All right, and you carried him towards the pole. Had anyone struck him by that time with anything?

A. I did not see anyone strike him.

Q. You remember testifying in this matter at another hearing on, I believe, June 3rd?

3.199

Cross - Soboloski

A. I remember testifying, I'm not sure if that was the date.

Q. Okay. You recall testifying; do you remember saying that a couple of times his face was pushed to the ground?

MR. MCGILL: Objection, Your Honor.

THE COURT: I will sustain the objection.

Q. Do you recall if his face was pushed to the ground a couple of times?

A. No, I don't recall that.

Q. Okay. After he hit the pole what happened, sir?

A. After he hit the pole, because of the way we were walking to the wagon, he then fell to the sidewalk.

Q. Did any of the other officers hit the pole?

A. I don't believe so.

Q. And after he hit the pole his face hit the ground?

A. That's correct.

Q. So you, in effect, kept dragging him?

A. Partially.

Q. And from the time that you first handcuffed him until the time that you got him in the wagon, how much period of time went by, approximately?

A. Approximately three minutes, four minutes, somewhere

3.200

Cross - Sobolosky

in that area.

Q. So you struggled with him by yourself at least the same amount of time that the other two officers struggled with him as well because I think you estimated it was two minutes when you struggled with him before aid came?

A. I was there before the other officers.

Q. Yes, I understand, so you did about two minutes and then they came for about a minute or two minutes?

A. Somewhere in that area.

Q. Fine. Now, during this period of time did Mr. Jamal say anything at all?

A. He may have said something, nothing direct to me.

Q. You don't remember hearing what he said?

A. No.

Q. Now, you took him to the wagon?

A. Yes, I did.

Q. And you didn't actually put him in though, right?

A. I did help place him in the wagon.

Q. When you say to help "place him" I mean, did you go into the wagon with him to see if he was in there?

A No, I did not.

Q. Did you notice at the time if he had any injuries on him?

3.201

Cross - Sobolosky

A. No, I did not.

Q. So then would it be fair to say as far as you knew, when you put him in the wagon he had no injuries on him at all?

A. I did not know he was injured, right.

Q. Fine.

(Pause.)

Q. By the way, do you know Officer Forbes?

A. Yes, I do.

Q. Did you see him holding some weapons?

A. Yes.

Q. Do you remember how many?

A. I believe it was two weapons.

Q. By the way, after Mr. Jamal was in the wagon did you see anyone entering the wagon?

A. No, I did not.

Q. But you didn't continue to watch the wagon, did you?

A. No.

MR. JACKSON: Excuse me one moment.

(Pause.)

Q. Officer Sobolosky, the resistance that you indicate Mr. Jamal was putting forth, is it fair to characterize it was minor resistance?

3.202

Cross - Sobolosky

A. In my estimation it would be minor.

Q. Fine.

A. I've had harder people to handcuff.

Q. Fine, sir.

MR. MCGILL: Is that it, Mr. Jackson?

MR. JACKSON: Your Honor, I thought I would let you know when I have enough.

THE COURT: Go ahead.

MR. JACKSON: Thank you. I'm not done with this officer yet, sir.

Q. When you saw Officer Forbes with the weapons where was it?

A. Somewhere in the vicinity between -- on the sidewalk, I believe it was, standing somewhere between the rear bumper of the Volkswagen or the front of the radio patrol car and the south wall.

Q. Someplace around this area (indicating)?

A. Somewhere, I don't remember exactly where he was. I know he was standing on the sidewalk.

Q. And the wagon was around in here?

A. In that proximity, yes.

Q. Do you know Inspector Giordano?

A. Personally, no.

Q. Do you know who he is?

3.203

Cross - Sobolosky

A. He's an inspector.

Q. Do you know him when you see him?

A. Yes.

Q. Did you see him that night?

A. No, I didn't.

MR. JACKSON: No further questions at this time.

REDIRECT EXAMINATION BY MR. MCGILL:

Q. Officer Sobolosky, you gave a statement to the Police, did you?

A. Yes, I did.

Q. 12-9-81, December the 9th, '81 --

MR. JACKSON: Objection.

Q. Would you read those three lines to yourself?

MR. JACKSON: Objection. Number one, Your Honor, the document has not been marked, he has not asked if he could approach the witness, and he's doing it anyway. I thought this was your Courtroom, Your Honor

THE COURT: It is. Just make the objection.

MR. JACKSON: Yes, Sir.

THE COURT: Objection is overruled.

3.204

Redirect - Sobolosky

Let's move it along.

MR. MCGILL: Yes, sir.

Q. Would you read those three sentences to yourself?

MR. JACKSON: May I have an opportunity to see the document, sir?

THE COURT: Do you have another copy?

MR. JACKSON: I don't know what it is, it hasn't been identified.

THE COURT: It's a statement that he made to the Police.

MR. MCGILL: On 12-9-81. They have received everything we've had for four or five months.

THE COURT: Do you have that statement?

MR. JACKSON: Your Honor, I didn't know what it was since it wasn't marked.

THE COURT: His statement he made. Do you have it in your possession?

MR. JACKSON: No, I do not, sir, and, Mr. McGill, I brought that to your attention earlier today, sir.

MR. MCGILL: But as far as we know, they have had this for four months.

THE COURT: Let me see that.

3.205

Redirect - Sobolosky

(Pause.)

Did you read that to yourself?

THE WITNESS: Yes, sir, I did.

BY MR. MCGILL:

Q. Did you give that on December the 9th, 1981?

A. Yes, I did.

Q. Is it accurate to say that you said that you had asked a general question directed at anyone at the scene as to who the Negro male was and was he part of the job, that you told the Police --

MR. JACKSON: Objection, Your Honor.

THE COURT: Do you want to see me at sidebar?

MR. JACKSON: Yes, sir, if you don't mind.

(The following transpired at sidebar with the
Defendant present and out of the hearing of the jury:)

THE COURT: What's the basis of your objection?

MR. JACKSON: Your Honor, he just -- first of all, he just gives him a document that he asks him to read and it's beyond the scope.

THE COURT: No, it's not, it's going into --

MR. MCGILL: It's a prior consistent

3.206

Redirect - Sobolosky

statement.

THE COURT: It's a prior consistent statement to what he's saying now. He's trying to rebut that. You dug into that area and he's now trying to show that on that night he made this statement which conforms to what he's now saying.

MR. MCGILL: It's a prior consistent statement.

THE COURT: Sure, go ahead.

(The following transpired in open Court in the presence of the jury:)

BY MR. MCGILL:

Q. The Officer stated that he asked a general question and you directed it to anyone at the scene as to who the Negro male was and was he part of the job. He stated that someone replied, yes, and then they added that they thought he was; is that correct?

A. I did, yes.

Q. Did you hear over the radio any call or direction that an officer was shot?

A. Yes, I did.

Q. And when you arrived at the scene did you see Officer Faulkner?

3.207

Redirect - Sobolosky

A. Yes, I did.

Q. Did you see him in a pool of blood at that time?

A. Yes, I did.

Q. Did you see his wound at the time?

A. I could not make out exactly where it was, but it was coming from the head vicinity. How close was Mr. Jamal to Officer Faulkner?

MR. JACKSON: Objection, Your Honor.

THE COURT: I didn't hear the question.

MR. MCGILL: I said, how close was the Defendant to Officer Faulkner at the time he saw him.

MR. JACKSON: Objection.

THE COURT: Rephrase that question first.

Q. Where was the Defendant in relation to Officer Faulkner when you first saw him after you saw the wounded officer?

A. They were approximately four, five or six feet apart.

Q. And you recall now asking that general question that I just read?

A. Yes.

Q. At that time, sir, after that radio call, seeing Officer Faulkner in that position and this

3.208

Redirect - Sobolosky

Defendant there, is it not a requirement and police procedure to arrest and neutralize the situation?

A. Yes, it is.

Q. Did you know whether or not he had a weapon on him at that time?

A. No, I did not.

Q. Did you know whether or not you were going to be shot in a couple of moments?

A. No, I did not.

MR. JACKSON: Objection.

MR. MCGILL: I have nothing further, Your Honor.

MR. JACKSON: I have nothing further either, Your Honor.

MR. MCGILL: Thank you, Your Honor. Mr. Robert Chobert is next.

(The witness is excused.)

MR. JACKSON: Your Honor, may we see you at sidebar for a moment? We don't need this on the Record.

(A discussion is held at sidebar off the Record.)

3.209

Direct - Chobert

(ROBERT CHOBERT, is duly sworn.)

MR. MCGILL: May I proceed, Your Honor?

THE COURT: Go ahead.

DIRECT EXAMINATION BY MR. MCGILL:

Q. Mr. Chobert, would you please speak up, sir, so that we can hear you, the jury and all, when you answer these questions. All right?

A. Yes.

Q. Do you hear me all right, sir?

A. Yes, I do.

Q. Now, Mr. Chobert, on December 9, 1981 were you employed at that time?

A. Yes, I was.

Q. In what capacity were you employed?

A. As a cab driver.

Q. For what company at that time?

A. The name is Crescent.

Q. Did you have occasion a little bit before 4:00 a.m. on December 9, 1981 to be at 13th and Locust Streets?

A. Yes, I was.

3.210

Direct - Chobert

Q. And did you have occasion specifically to be at the southeastern corner of 13th and Locust Streets?

A. Yes.

Q. What were you doing there?

A. I let my fare off.

Q. What did you observe, what happened?

A. Well, I let my fare out and I'm marking down on my pad how much it was, and then I heard a shot. I looked up, I saw the cop fall to the ground, and then I saw Jamal standing over him and firing some more shots into him.

Q. Now, you used the word and name Jamal. I'll ask you this: How many times did you see that individual shooting the Police Officer when he was on the ground after he had fallen down?

A. What was that again, please?

Q. You said you heard a shot; is that right?

A. Yes.

Q. You looked up, and what did you see the officer do?

A. I saw the officer fall.

Q. And then what did you see happen? Just say what you saw happen then.

A. I saw him shoot him again several more times.

3.211

Direct - Chobert

Q. Several more times?

A. Yes.

Q. Now, what then did you see that you referred to as the shooter do?

A. Then I saw him walking back about ten feet and he just fell by the curb.

Q. All right, and then what happened?

A. Then I got -- I started getting out of my cab, I started walking to the cop to see if I could help him and then all of a sudden Police officers came and told me to get back into my cab.

Q. All right, and what did you see? Did you see the man at the curb any more, or what did they do to the man at the curb?

A. They just stuck him in a wagon.

Q. And where did you say you went?

A. I went back and got in my cab.

Q. And what then happened?

A. And a couple -- about -- a couple minutes later a Police officer came over and asked me if I seen this thing.

Q. What did you say?

A. I said yes, I did. He said, Did you see the guy that shot the cop; and I said, yes.

3.212

Direct - Chobert

Q. You have to speak up loud. You may be a little nervous, speak up loud so I can hear you. The officer came to you and asked what?

A. If I saw what happened, and I told him yes.

Q. And then what?

A. Then he asked me if I ever see the guy again, would I know him. I said yes, I would. They took me over to the wagon and asked me, is that the guy. I said yes, it is.

Q. How much time really transpired from the time that you first saw the shooter shooting the officer and the time that you saw the shooter down at the curb until the time that you went and identified him in the wagon?

A. Just a couple of minutes.

Q. At the time when you saw the shooter shooting the officer on the ground was there anyone else around, around the officer and the shooter?

A. Yes, another black male.

Q. And where was he in relation to the officer as well as the shooter?

A. Where?

Q. Yes.

A. Standing against the wall.

3.213

Direct - Chobert

Q. Other than those two males and the police officer, was there anyone there?

A. No.

Q. Now, this individual, sir, that you saw shooting the officer, would you look around the Courtroom and tell me if you see if he is in the Courtroom?

A. Yes, he is.

Q. Will you point him out?

A. He's right there (indicating).

Q. Would you describe what he has on?

A. What he got on now?

Q. Yes.

A. He has a long shirt, a tee shirt, and a beard and long natty hair.

Q. Is there any doubt in your mind at all that that man is the man who shot the officer?

A. That's the man all right. I got no doubt.

MR. MCGILL: Permission of the Court, may I ask him to go to the sketch?

THE COURT: That sketch?

MR. MCGILL: Yes.

THE COURT: All right.

Q. Now I want you to move, if you can, a little bit back here, over here so the jury can see.

3.214

Direct - Chobert

Q. Would you show us approximately where you were? This is 13th Street, this direction, this is Locust Street on there, right?

A. Yes, sir.

Q. Indicate to the Court exactly where you were?

A. Right here (indicating).

Q. Now when you went and identified the Defendant in the wagon, can you indicate where the wagon was?

A. Right here.

Q. All right, indicating for the Record beside the RPC 610 vehicle, on the left side of it. And approximately, if you can recall, when you saw the Defendant shooting the officer where was the Defendant, if you can remember?

A. Right around here somewhere (indicating).

Q. And where was the officer?

A. (Indicating).

Q. And where was the other male?

A. By the wall (indicating).

Q. Now, when you got out of your cab and started to walk toward -- to help the officer out, how far did you get?

A. I got about right here (indicating).

3.215

Direct - Chobert

Q. All right, indicating the right side of the RPC 610. And then, as I understand it, you went back to your cab; is that correct?

A. Yes.

Q. You were told to go back?

A. Yes, I was.

Q. Did you stop walking forward at the time when the Police arrived; is that correct?

A. Yes.

Q. From the time that you saw the Defendant shooting the Police officer until the time that the Defendant was placed in the wagon, did you ever lose sight of the Defendant?

A. No, I didn't.

Q. Come up here, if you would, Mr. Chobert. I will ask you to stand -- you don't have to come down, but I would ask you to stand, with the Court's permission.

(Witness complies with counsel's request.)

Q. Now, when the Defendant was standing over the officer, could you show me exactly what motion he was making or what you saw?

A. I saw him point down and fire some more shots into

3.216

Direct - Chobert

him.

Q. Now you're indicating, for the Record, a movement of his right arm with his finger pointed toward the direction of the ground and moving his wrist and hand up and down approximately three, four times; is that right?

A. Yes.

Q. You may sit down.

MR. MCGILL: Cross-examine. May we see you at sidebar, Your Honor?

THE COURT: Yes.

(The following transpired at sidebar out of the hearing of the jury:)

MR. MCGILL: Your Honor, he has a copy of his record -- I will give him another copy of this record -- he is on probation for arson, five years probation. There is no criminal conviction of crimen falsi. Do you --

MR. JACKSON: I would like to see it for sure, too, and I'm not so sure that arson isn't crimen falsi.

MR. MCGILL: Arson is definitely not crimen falsi.

3.217

MR. JACKSON: If it's done for personal gain, if it's done for hire, it's crimen falsi. You can't say just because he is convicted of setting a fire --

THE COURT: I don't think arson is crimen falsi. Burglary would be, robbery would be.

MR. JACKSON: Anything that shows dishonesty generally.

THE COURT: Arson doesn't necessarily show --

MR. JACKSON: That's what I'm saying. If it's done for personal gain or for profit, then it would be.

THE COURT: Well, we'll have to do that out of the hearing of the jury.

MR. JACKSON: I would like to find that out, Judge.

THE COURT: Take a five-minute recess with the jury please.

(The jury is excused for a five-minute recess,
and the following transpired at sidebar:)

THE COURT: What he wants to do is out of the hearing of the jury go into that arson

3.218

to see if it was done for monetary gain.

MR. MCGILL: Wait a minute, Judge.

THE COURT: I don't know that --

MR. MCGILL: Wait a minute, Judge. This is not -- the answer is no. There is no way this is crimen falsi.

THE COURT: Do you have any law to support what you're saying?

MR. MCGILL: All right, Arson for personal gain, but it's not theft. It's not theft.

MR. JACKSON: It would be if he did it for hire, if he did it for insurance. It would be the same thing, what's the difference? It's fraud. That's what it is. It constitutes fraud and to say that he just lit a match and burned something -- what I'm saying is if he did it for money, for personal gain of some sort, it's crimen falsi. You have to look beyond the conviction. You just can't go to arson. Do you have anything in your records? What does it show, just arson? What happened in the case?

MR. MCGILL: The case -- it's not the

3.219

case, Judge, it's the charge that's relevant. It's not the case, it's the charge.

MR. JACKSON: I would disagree.

MR. MCGILL: There's just no way that arson is crimen faisi. Here it is, here's his record.

(Pause.)

THE COURT: See, we don't know whether he was convicted of the arson or criminal mischief or what. You don't have the complete record?

MR. MCGILL: We can -- you mean the computer? I don't have the computer sheet, but he tells me arson.

Judge, if you want to bring him over here out of the hearing of the jury, if you want to bring him over and ask him; I just don't feel that it's fair to him in public with this press around him, Judge. That's what would bother me very much.

THE DEFENDANT: Judge, I got to go to the bathroom.

THE COURT: Go ahead. Take him to the bathroom.

THE COURT: Come over here, Mr. Chobert.

3.220

(The witness complies with the court's request and comes to sidebar.)

MR. MCGILL: Mr. Chobert, we're trying to determine in terms of background your criminal history. You are presently under probation for, what is the conviction?

THE WITNESS: Arsonist.

MR. MCGILL: Arson?

THE WITNESS: Yes.

MR. MCGILL: And were you also convicted of burglary, or was it just arson?

THE WITNESS: It was just arsonist.

MR. MCGILL: All right. There are other charges on there. What is there?

THE COURT: Causing a catastrophe and criminal mischief. What happened on those, do you know?

MR. MCGILL: Criminal mischief, that's not crimen falsi.

THE COURT: I know that but you're asking me. It's cause or risk of a catastrophe. Was that what it was that you were convicted of?

MR. MCGILL: What were you found guilty of?

3.221

The Judge wants to know what you were found guilty of.

THE WITNESS: I threw a bomb into a school.

THE COURT: You threw a bomb into a school?

THE WITNESS: Yes.

THE COURT: What kind of a bomb?

THE WITNESS: A Molotov.

THE COURT: A Molotov cocktail?

THE WITNESS: Yes.

THE COURT: You just threw it into a school building?

THE WITNESS: Yes.

THE COURT: Where was this, what school building?

THE WITNESS: John Bartram.

THE COURT: And how old were you when you did that?

THE WITNESS: Eighteen.

THE COURT: You were eighteen?

THE WITNESS: Yes.

THE COURT: Did you go to that school?

THE WITNESS: Yes.

3.222

THE COURT: And that's why you threw it in there?

THE WITNESS: No, that ain't why. I got paid for doing it.

MR. JACKSON: I'm sorry, I didn't hear that.

THE WITNESS: I said I got paid for doing it.

MR. MCGILL: What do you mean --

MR. JACKSON: That's the reason, that's crimen falsi.

THE COURT: That's not crimen falsi.

MR. JACKSON: If you've got --

MR. MCGILL: That is not crimen falsi. He got paid for doing it --

MR. JACKSON: He got paid for doing it, that is crimen falsi.

MR. MCGILL: Even first degree murder is not crimen falsi if you get paid on a contract basis. That's not crimen falsi, and that's not theft by deception. That's definitely wrong. A murder is not crimen falsi when you have a contract.

THE WITNESS: Your Honor, can I say something?

3.223

THE COURT: Yes.

THE WITNESS: How come you bring this up, my background?

THE COURT: Well, he is raising the issue and that's why I want to hear this while the jury is not here.

THE WITNESS: It doesn't matter about nobody else, it's my background.

THE COURT: I know that, but the only time it would be is if it was in the nature of crimen falsi. I guess I have to make a decision, and I don't think that arson is crimen falsi.

MR. MCGILL: It is not?

THE COURT: I will make that decision.

MR. JACKSON: If that's your ruling, sir.

THE COURT: Okay.

(The following transpired in open Court
in the presence of the jury:)

CROSS-EXAMINATION BY MR. JACKSON:

Q. Good afternoon, Mr. Chobert. Mr. Chobert, I don't want to know where exactly, but do you live in

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Philadelphia?

A. Yes, I do.

Q. Fine. Do you know Officer Faulkner, or did you know Officer Faulkner?

A. Personally? No, I didn't.

Q. Do you know other Police in the 6th District?

A. No.

Q. None?

A. No.

Q. You never met any of them?

A. I met them but not friends.

Q. They're not friends, but you met them?

A. Yes.

Q. How long before this incident?

MR. MCGILL: Objection. Irrelevant.

THE COURT: I'm going to sustain the objection unless you can tell me where you're going. Come over here.

(The following transpired at sidebar with the
Defendant present out of the hearing of the jury:)

THE COURT: Where are you going in this line of questioning?

MR. JACKSON: I just want to find out if

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he has some bias for the officers.

THE COURT: You know he doesn't. The only contact he had with the Police was --why don't you come out and ask him?

MR. MCGILL: What? Ask him what?

THE COURT: I don't know, he says he thinks there is some bias.

MR. MCGILL: I thought you meant ask him about his record.

MR. JACKSON: Oh, no. No, I was just leading him to find out about -- I was going to ask him one or two questions to find out how long -- he says he met them, I think he said they weren't friends, and I just want to know how soon before this incident, because he says these officers of the Sixth District, not just Police Officers but Sixth District Police Officers.

THE COURT: But then you're going to get into the fact that they were the ones that arrested him for intoxicated driving.

MR. JACKSON: I'm not going to ask him that.

THE COURT: But he's going to think that that's where you are going. Sure, he knows these officers, because he's been arrested twice for

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intoxicated driving.

MR. JACKSON: Both in the Sixth?

THE COURT: I don't know. He says he has no friends that are Police Officers. These fellows are not friends. The only thing I can assume from that is that they are the ones that locked him up.

MR. MCGILL: It's an indirect way of doing it. The only contact he has had with Police Officers has been that.

THE COURT: If you ask him, it's a different story.

MR. JACKSON: Okay, I'll ask him that.

(The following transpired in open Court
in the presence of the jury:)

BY MR. JACKSON:

Q. Mr. Chobert, now you've indicated that you've met Police officers from the Sixth District but they're not friends of yours; is that right?

A. Yes.

Q. Do you have any friends in the Police Department?

A. Yes, I do.

Q. Are any of these friends -- have any of these friends formerly worked in the Sixth Police District?

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A. No.

Q. You're certain of that?

A. I'm sure.

Q. I'll leave that alone for the moment. Mr. Chobert, you indicated that at the time of this incident you were letting out a fare at 13th and Locust Street, a woman; is that right?

A. Yes, I did.

Q. And you pulled up to the curb and that would have been the southeast corner of 13th and Locust; is that right? Is that right, right here, just past the corner?

A. Yes.

Q. Right there (indicating)?

A. Yes.

Q. And what side of the car did your passenger get out, do you remember?

A. On the right-hand side.

Q. So that would have been on the sidewalk, right?

A. Yes.

Q. When she got out did you see if anyone else was on the corner?

A. No, I didn't.

Q. Did you see anyone on the pavement on that side of

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the street?

A. No.

Q. Now, you started to write something on your waybill, right, your log?

A. Yes.

Q. You know, how much it was and where you came from and all of that, right?

A. Yes.

Q. And while you were doing that you heard a shot?

A. A shot, that's what I said.

Q. One shot?

A. Yes.

Q. When you heard that shot you were still writing and you raised your head, right?

A. Yes.

Q. And you were obviously seated in the driver's side of your cab; is that correct?

A. Yes.

Q. And there was a Police car 610 in front of you, right?

A. Yes.

Q. How much distance was between you and the Police car, between your vehicle and the Police vehicle?

A. About a car length.

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Q. Pardon me?

A. One car length.

Q. One car length?

A. Yes.

Q. And you then indicated that you saw who you're certain is Mr. Jamal, right?

A. Yes.

Q. So you saw Mr. Jamal shoot the Police Officer; is that right?

A. Yes.

Q. What hand did he have the gun in?

A. I didn't take notice of that.

Q. Wait a minute.

A. I didn't take notice what hand.

Q. Did you see the gun?

A. No, I didn't see the gun.

Q. Did you see a gun?

A. No.

Q. Did you see the flash of the weapon?

A. No, but I heard shots.

Q. You heard shots?

A. And I saw him pointing.

Q. Pardon me?

A. I saw him pointing his hand, too.

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Q. So you assume the shot must have come from the man who had his hand out?

A. Because there were only two guys there.

Q. I understand that, but you are saying you heard shots and you saw a man with his hand out so he must be the one doing the shooting; is that right?

A. That's right.

Q. That's what you're saying, so you really didn't see him shoot; is that right? Is that a fact?

A. No.

Q. Okay, if that is not a fact, tell us. You saw him shoot. When did you see him shoot?

A. Yes.

Q. When?

A. Yes.

Q. When?

A. I saw the cop fall.

Q. I understand that. I want to know when you saw this man shoot?

A. When?

Q. Yes. When did he shoot? when did he shoot a gun?

A. On the night the cop got shot, December.

Q. Did you see him shoot?

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A. Yes, I saw him shoot, yes.

Q. Oh, you did see him shoot?

A. Yes.

Q. Now you said before you didn't see him.

A. I told you I saw him put his hand out and I heard shots, so he had to be shooting then.

Q. He had to be shooting. The question is did you see him shoot; yes or no?

A. Yes.

Q. Okay, and you saw the flash from the gun?

A. No, I didn't.

Q. You saw what hand -- what hand did he have extended?

A. What hand?

Q. What hand, his right hand or left hand?

A. I can't tell you, I don't remember.

Q. And you didn't see the gun either?

A. No, I didn't.

Q. You didn't see the gun, didn't see what hand, but you know he shot him?

A. Yes.

Q. Great, okay.

MR. MCGILL: Objection to the comments, Judge.

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MR. JACKSON: My apologies. I mean no disrespect, sir, my apologies to you.

Q. How many shots did you hear, because we know you didn't see it. How many shots did you hear?

MR. MCGILL: Objection, Your Honor.

THE COURT: Rephrase the question.

MR. JACKSON: Fine.

Q. How many shots did you hear?

A. Three or four more shots.

Q. Which direction were the shots fired?

A. Down.

Q. You're sure of that?

A. Yes, I'm sure.

Q. How are you sure, sir? Did you see them?

A. I can't see bullets come flying, no.

Q. Pardon me, I didn't hear you.

A. No, I didn't see the bullets. No.

Q. How do you know the bullets went down, sir?

A. Because his hand was pointing down.

Q. But you never saw the gun; is that right?

A. That's right.

Q. So how do you know the bullets were firing down, I'm trying to find out?

A. I don't know.

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Q. That's what I'm trying -- I thought not, okay. Did you see any bullets fired into a doorway?

A. No.

Q. At all? Did you hear any glass break?

A. No.

Q. Do you think you were in a position to hear glass break right there where the Police officer was?

MR. MCGILL: Objection.

THE COURT: Sustained.

Q. Fine, now you gave a statement to the Police that you saw the man who did the shooting; is that right?

A. Yes.

Q. And when you gave the statement to the Police you were certain that you saw what happened; is that right?

A. Yes.

Q. And when you heard the gunshots you got out of your cab and you went on the sidewalk; is that right?

A. Yes.

Q. And you started walking towards the Police Officer to help him; is that right?

A. Yes.

Q. Now, the only people who were on that sidewalk

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was the Police officer and Mr. Jamal; is that right?

A. No.

Q. Who else?

A. His brother, William Cook.

Q. William Cook. Anyone else?

A. No.

Q. You're certain of that?

A. Yes, I'm certain.

Q. You didn't see any woman on the sidewalk?

A. No.

Q. Because if she was there, you would have seen her, you're certain of that?

MR. MCGILL: Objection.

THE COURT: Sustained.

Q. Fine, I just wanted to make sure. Now, you then said to the Police, correct me if I am wrong, you told the Police that the man was six feet, 200, 225 pounds, didn't you?

A. Yes, I did.

MR. JACKSON: Stand up, Mr. Jamal, please.

(The Defendant complies with counsel's request.)

Q. Does he look like he's 225 pounds?

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MR. MCGILL: Objection, Your Honor. We're not testing his sight today. Objection.

THE COURT: I'll let him answer that question.

Q. Does he look like he's 225 pounds?

A. No, he don't.

Q. Thank you.

MR. JACKSON: Mr. Jamal, have a seat, please.

Q. Now, you told the Police this on December 12th, didn't you, around the time of its occurrence, right?

A. Yes.

Q. And you told the Police that he was about your size, right?

A. Yes.

Q. How much do you weigh?

A. 185.

Q. And you also said that he was heavy, right?

A. Yes.

Q. Is Mr. Jamal heavy?

A. Well, not really, no.

Q. But the man who shot Officer Faulkner was 225 pounds and heavy; is that right?

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Is that what you told the Police?

A. Yes, but I'm not good at weight. Do you think I'm going to stand there for a couple of minutes and ask him how much he weighs?

Q. You're the one who told the Police.

A. I know what I told the Police.

Q. Are you saying, sir -- and I don't want to argue with you -- are you saying what you told the Police is incorrect?

MR. MCGILL: Objection. In reference to what, weight?

THE COURT: That is a question for the jury to decide. You also said that after the man shot the Police officer he ran a half a block away -- I'm sorry, thirty feet away; is that right?

A. Yes.

Q. And today you are saying that it was Mr. Jamal who shot the Police Officer and he moved ten feet away; is that what you're saying today?

A. Yes.

Q. So you were mistaken when you told the Police that the man ran thirty feet?

MR. MCGILL: Objection. Which statement

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is he talking about?

MR. JACKSON: The statement on 12-12-81.

MR. MCGILL: Well, he gave two. He said "talking to the Police".

MR. JACKSON: My apologies. Were you incorrect when you told the Police that the man ran thirty feet?

A. Yes.

Q. And you further indicated to the Police that the man was wearing a light tan shirt, I believe no, I'm sorry -- wait a minute, yes -- what did you tell the Police that the man was wearing, do you remember?

A. No, I don't.

Q. One other thing: You indicated that there was another man at the scene as well; is that right?

A. Yes, I did.

Q. And you said that this other man who was at the scene, somehow the Police got him too, right?

A. Yes.

Q. This other man who was at the scene, he ran some distance away; is that right?

A. He moved down.

Q. He moved down. How did he move?

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A. How?

Q. How did he move? Did he run, crawl, walk, how?

A. No, he walked.

Q. How far?

A. I don't remember. I wasn't paying too much attention to him.

Q. Could it have been a half a block?

MR. MCGILL: Objection. He says he doesn't remember.

MR. JACKSON: Your Honor, may I let the witness see his statements? Maybe we could do it a lot easier this way if he looks at both statements he gave to the Police, this one and this one. I don't want to take advantage of him.

(Pause.)

BY MR. JACKSON:

Q. Mr. Chobert, are you done reading your statement, sir?

A. I am.

MR. MCGILL: Did he read both of them?

THE WITNESS: No, just one of them.

Q. I'm sorry, there's another one right underneath of it, I believe. It's 3 and 3(a), I think.

(Pause.)

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Q. Mr. Chobert, you have read the statements now; is that right?

A. Yes.

Q. And you signed each page of each statement; is that correct?

A. Yes, I did.

Q. And you were asked by the Detective to read the statements over; is that right?

A. Yes.

Q. Did you read them over?

A. Yes, I did.

Q. And then you signed them, right?

A. Yes.

Q. And you were asked to read it over and if it were true to sign it; is that correct?

A. Yes.

Q. So that when you gave the statement it was true; is that right?

A. Yes.

Q. Okay, now, we're now about six months down the road, six months away from the incident. Would it be fair to say that your memory of what happened on December 9th, your memory was better on December 9th than it is today of what happened on December 9th?

3.240

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Do you understand my question? In other words, what happened on December 9th, would it be fair to say you remembered that better on December 9th than you do today?

A. No.

Q. Oh, you remember it better today than you did then?

A. Oh, it's the other way around.

Q. You remembered it better on December 9th?

A. Yes.

Q. And on December 9th you said the man that did the shooting was in his mid-thirties. Does Mr. Jamal look like he's in his mid-thirties?

A. To me --

MR. MCGILL: Your Honor, I want to --

THE COURT: He's answered the question. Please

MR. MCGILL: Your Honor, I want to make --

THE COURT: See me over here.

(The following transpired at sidebar out of the hearing of the jury:)

THE COURT: He was going to answer and you interrupted him.

MR. MCGILL: He did, Your Honor, but I'm

3.241

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saying --

THE COURT: He was going to say no. Let him answer.

(The following transpired in open Court in the presence of the jury:)

MR. MCGILL: Your Honor, could I have the answer read back?

THE COURT: Read the question back.

MR. JACKSON: Your Honor, if there was an objection, it seems to me, and Your Honor went to sidebar --

THE COURT: Do you want the question read back?

(The last question and answer are read by the Court Reporter.)

BY MR. JACKSON:

Q. Was that your complete answer to me? I mean, you were going to say something else, right?

A. I was, yes.

Q. Before Mr. McGill interrupted, all right, we'll get back to that. So that I'm certain, you gave the description that you gave to the Police on December the 9th, and you said the man who shot Officer Faulkner was in his mid-

3.242

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thirties, 220, 225 pounds, six feet tall, wearing a gray colored dress shirt and had a red and green picture on the back of his shirt; is that right?

A. I guess so. That's what I said, yes.

Q. You guess so? Can you be more certain than guessing?

A. I don't remember too much about the clothing, but I remember I saw red and green, yes.

Q. You saw red and green?

A. Yes.

Q. And I understand you may not remember today but at the time you gave the description to the Police you remembered, didn't you?

A. Yes.

Q. You gave them an accurate description of what it is that you saw; is that true?

A. I guess I did, yes. If it's in there.

Q. You wouldn't have lied to them on that day, would you?

A. Why should I?

Q. That's what I'm saying. So you told them what you believed to be the truth that day?

A. That's right.

Q. Fine. You also told the Police that you saw

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another man run from the scene after you heard the shot, you looked up and you saw another man run away from the scene; is that right?

MR. MCGILL: Objection, Your Honor. Could he read the full question and answer? If he's just taking parts as in the description where he only gave part.

THE COURT: Go ahead, rephrase it.

Q. Let me ask you this: Did you see another man run from the scene?

A. He didn't run, but he moved down.

Q. He moved -- oh, that's the man that you said moved down.

Q. Did you ever see that man again?

A. Yes, I did.

Q. How far did he move down?

A. He moved down about ten feet.

Q. The same distance you said Mr. Jamal moved, right?

A. No, he moved --

Q. Who?

A. He moved a --

Q. Who?

A. Yes, I guess so. Yes.

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Cross - Chobert

Q. Sir, you're saying that this other man moved ten feet down and Mr. Jamal moved ten feet down?

A. Yes.

Q. In the same direction?

A. Yes.

Q. Were they arrested in the same location?

A. Well, on the same block, yes.

Q. On the same block, but I mean, when I say the same location -- how much away from each other were they when they were arrested?

A. I don't remember that.

Q. You don't remember them being arrested?

A. I remember them being arrested, yes, but I wasn't paying too much attention to the other guy, I was paying attention to the shooter.

Q. But didn't you tell the Police you saw the other guy arrested?

A. I told them -- I told them he got stopped by the Police, but I didn't tell them he got arrested. I told them the cops grabbed him.

Q. So the cops grabbed him?

A. Yes.

Q. What did they do with him?

A. What did they do with him, I don't know.

Q. Do you remember what the other guy looked like?

3.245

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A. I sure do.

Q. Tell us what he looked like?

A. He was about five foot six.

Q. How was he built?

A. How was he built?

Q. Yes, his weight.

A. I ain't too sure about his weight.

Q. Pardon me?

A. I ain't too sure. I wasn't paying that much attention.

Q. Do you know if he had a hat on? Did you see his hair?

A. I said I wasn't paying too much attention to him.

Q. Well, I understand that, but you've given us -- well, you've just refreshed your recollection with regard to the statements you've given to the Police. Let me read this to you and see if this refreshes your recollection.

MR. MCGILL: Tell me where you are reading, the question and answer, please.

MR. JACKSON : Sure. I'm going to find it in the second -- page two of 12-9-81 statement.

MR. MCGILL: Thank you.

MR. JACKSON: The second-to-last question.

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Q. "QUESTION: Did you see anyone else do anything to the cop?

"ANSWER: I saw another guy running, but the cop grabbed him, too. I'm not sure he was involved.

"QUESTION: Did you see this male do anything to the cop?

"No.

Q. "Describe the male that you saw running and then being grabbed by the cops?

A. "He was about five feet six inches, he was wearing a red and green hat, a beanie, a long, dark colored coat, and he had a full beard.

Q. "Did this male run along with the male that did the shooting?

A. "No. He started running as soon as the shots were fired, and then he got about a half block away, then all the cops came and he just stopped."

Q. Does that refresh your recollection, sir?

A. Yes.

Q. Okay, so that when you said this man ran ten feet with Mr. Jamal, you were wrong then?

A. That's right.

Q. Pardon me?

A. Yes.

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Q. Yes, you were wrong; is that what you're saying?

A. Say that again.

Q. Were you wrong when you said that Mr. Jamal and this other man moved ten feet together?

A. I didn't tell you it was together.

Q. I apologize if I put words in your mouth. Tell me again about how far this other man moved because you once said Mr. Jamal moved ten feet, you once said that the other man moved ten feet. Now if I've misstated you, please correct me.

A. They moved ten feet but not together.

Q. I thought you said they moved in the same direction. Did they?

A. Yes, I did.

Q. They did move in the same direction?

A. Yes.

Q. Ten feet?

A. Yes.

Q. And you said the man was running; is that right?

A. Yes.

Q. And today you're saying he wasn't running?

A. I said he moved down.

Q. Yes. When I asked you what you meant by moved --

3.248

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today, tell us today from what you recall, how did he move?

A. He moved -- well, he didn't run, he walked.

Q. He walked?

A. He started walking. Slow walk. Not just walked, he slow walked?

A. No, not slow walk, a medium walk.

Q. A medium walk?

A. Yes.

Q. But you told the Police on December 9th that he ran. Why did you tell them that he ran?

A. I made a mistake.

Q. Then or today?

A. Then.

Q. Because your recollection is better today than it was then? Is it?

A. No, not really. No.

Q. Before going on you read these two statements. Are there any other mistakes here that you remember so we can bring them to the jury's attention?

A. No.

Q. So everything else in this statement is true?

A. Yes.

Q. And you've just read that so you know everything

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else in this statement is true?

A. Yes.

MR. JACKSON: Could I have one moment, Your Honor, please.

(Pause.)

Q. By the way, this other man that you saw who was running or walking, when he was grabbed by the Police where was he grabbed? You know, like in relation to the car. In fact, would you mind coming down and showing us on the diagram?

A. I can't show you, I don't remember.

Q. You don't remember where he was grabbed?

A. Buddy, I told you before, I wasn't paying too much attention to that guy.

Q. On the 9th you gave a pretty good description to the Police of what happened to him. You're saying specifically where he went, how far he went; now today you don't want to tell us where the cops got him?

MR. MCGILL: Objection. It's a speech now and it's argumentative.

THE COURT: Sustained.

Q. You're saying you have no idea at all now where the Police got him, this other man; is that what you're

3.250

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saying?

A. Yes. I wasn't paying too much attention.

Q. I understand, but you have no idea? In other words, was he close to 12th Street, was he close to 13th Street, was he on this side of the street, was he on that side of the street? He only went ten feet you said, but you have no idea --

MR. MCGILL: Objection. Again, argumentative. Is this a summation?

MR. JACKSON: It's not a summation.

MR. MCGILL: Then ask a question.

MR. JACKSON: I said, where was the man arrested?

MR. MCGILL: Your Honor, I apologize.

THE COURT: One more time and that's it. Come on.

Q. Where was the man arrested, and I would like for you to show us, show the jury, where was the man arrested?

A Do you want me to show you?

Q. Yes, sir.

A. He was right here somewhere (indicating).

Q. Okay, so that would be -- you remember this is the Police vehicle; is that right --- I'm sorry,

3.251

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this is the Volkswagen. That is the Volkswagen; is that right?

A. Yes.

Q. Here is the Ford. Do you remember seeing the vehicles that night?

A. Not the Ford.

Q. You don't remember seeing the Ford there?

A. No, I don't.

Q. Are you saying it wasn't there or you don't remember?

MR. MCGILL: Objection.

THE COURT: Objection sustained.

Q. Nevertheless, the man was arrested at least a car length or two away from the Volkswagen, because you're saying it's in this area; is that right?

MR. MCGILL: Objection. He's not pointing --

Q. Point, too. Mr. McGill didn't see your finger before, so let him see where you pointed.

MR. MCGILL: I have an objection to Mr. Jackson's gratuitous comments.

THE COURT: Sir, would you point, please?

THE WITNESS: I said right in this area (indicating).

Q. Thank you. By the way, before you go back, you

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indicated that you saw Mr. Jamal move ten feet; is that right?

A. Yes.

Q. Ten feet. Where did he start and where did he end up?

A. He was somewhere between these cars.

Q. Sir, could you be a little bit more precise? You can't do two cars like that. Could you be a little more precise where you saw him?

A. I can't be precise, no.

Q. You can't be precise at all?

A. No.

Q. You don't know where you first saw him?

A. In between the two cars.

Q. In between what two cars?

A. This one and that one (indicating). Okay?

Q. It was between the Police car and the Volkswagen?

A. Yes.

Q. And then you saw him extend his arm?

A. Yes.

Q. You didn't see the gun, you already said that.

MR. MCGILL: Objection, Your Honor, to the argumentative statement.

THE COURT: Just ask him a question.

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MR. JACKSON: Yes, sir.

Q. Then you saw the man move ten feet; is that right?

A. Yes.

Q. That would have put him back up here, too?

MR. MCGILL: Objection.

A. Ten feet, no.

Q. Ten feet where then? Approximately where would the ten feet be, sir?

A. I am doing this again --

MR. MCGILL: I have to object, sir, because it's difficult for the jury to hear Mr. Chobert.

THE COURT: Why don't you move the chart over and let Mr. Chobert sit on the witness stand.

MR. JACKSON: I'll do that if you want, but I don't have too much more on the diagram.

THE COURT: Lift it off of here, bring it over here. Sit back on the witness stand. Because he's not loud enough for the jury to hear.

BY MR. JACKSON:

Q. Now, Mr. Chobert, let me move that out of your

3.254

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way --

THE COURT: You can sit down.

Q. Sit down, please. Okay, now, in a way so that the jury can see, you've indicated that Mr. Jamal was standing when he fired at the Police Officer between the Police car and the Volkswagen; is that right?

A. Yes.

Q. And you then indicated that he moved ten feet after the shooting; is that right?

A. Yes.

Q. And could you demonstrate or could you point approximately where that was, ten feet from where you first saw him and where he ended up? Do you understand my question?

A. Yes. Now I do, yes.

Q. Could you just point for us, please?

A. Right here, he ended up right here somewhere (indicating), between the two cars, like I said before.

Q. That was after the shooting?

A. Yes.

Q. And so that when the Police came and arrested Mr. Jamal he had moved ten feet from where he had shot?

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A. Yes.

Q. Did you ever lose sight of the man?

A. No, I didn't.

Q. Never?

A. No.

Q. Okay. When you were walking towards where the officer was shot and the Police officer said, get back in your car, how did you go back to your car?

A. How?

Q. Yes.

A. I walked back.

Q. Did you turn around or did you walk backwards?

A. No, I turned around and walked forward.

Q. Oh, but you have eyes in the back of your head? How did you see him? You said you never lost sight of him. What happened when you turned around to walk back to your car?

A. What happened?

Q. Yes. Could you see him?

A. Not for five seconds, no.

Q. So you lost sight of him?

A. Yes, five seconds. He laid on the ground when I started walking back. What did he do, fly away on me?

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Q. I don't know. I don't know, sir. Is there anything about your testimony you'd like to change at this point, correct?

A. No.

Q. You're certain of that?

A. Yes.

Q. You are as certain about your testimony as you are about the man who shot Officer Faulkner; is that right?

A. I know who shot the cop, yes. I'm pretty sure about my statement, too.

Q. You're pretty sure about the statement?

A. Yes. I know who shot the cop and I ain't going to forget it.

Q. It wasn't a man who was 225 pounds?

MR. MCGILL: Objection.

THE COURT: Sustained.

Q. By the way, did you see the Officer fall to the ground? That was -- I'm sorry, that's the first thing you saw; is that right?

A. Yes.

Q. After you heard the shot?

A. Yes.

Q. And the man that you assume shot the Police

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Officer was between you and the other, though, wasn't he?

MR. MCGILL: Objection, Your Honor. Assume? He's very definite.

THE COURT: Rephrase your question.

MR. JACKSON: Fine, sure.

Q. The man who shot the officer was between you and the officer; is that correct? In other words, the man's back was towards you, the shooter, his back was towards you, right?

A. No.

Q. Was he facing you?

A. Not facing me, no, but I saw him, I saw the side of his face.

Q. You saw the side of his face?

A. Yes.

Q. When did you see his full face?

A. Full face?

Q. Yes, sir.

A. When I started walking up to see if I could help the cop.

Q. He turned around and faced you?

A. No.

Q. How did you see his full face, that's all I'm

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trying to find out, sir.

A. Because I looked at him when I started walking on the pavement.

Q. Yes, but he was still ahead of you and I'm trying to find out how you saw his full face?

A. When he was lying down by the pole, that's how I saw his face.

Q. So the man had already gone the ten feet and fell, then you looked at his full face; is that what you're saying?

A. No, I didn't say that. I said I saw the side of his face first when he was shooting the cop.

Q. Right.

A. And then when he went back and fell against -- when he took his steps back, when he fell, when I got out of my car when I started walking towards the cop I saw him, and that's how I saw him.

Q. His full face? That's what I'm asking. I'm just concerned about seeing his full face now, not the profile that you said you saw first. I want to know the very first time you saw his whole face, that's all.

A. Well, I saw it twice, as a matter of fact.

Q. When is the first time?

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A. On the pavement.

Q. When he had already fallen?

A. Yes.

Q. Had gone ten feet away?

A. Yes.

Q. So that means, if I understand you correctly, you passed the officer; is that right? When he was on the ground -- let me go back. You tell me where you were, where he was when you -- I know he's on the ground. Where were you?

A. About, I'd say, about ten feet from the officer -- I mean back.

Q. Okay, and how far away was the man from you and the officer? You were ten feet from the officer?

A. Yes.

Q. I'm trying to find out how far away you were from the man whose face you saw. That's really what I want to find out. Do you understand what I'm saying?

A. About two car lengths, maybe a car and a half.

Q. And he was on the ground?

A. Yes.

Q. So you looked two car lengths. So would it be fair to say from where I am to that chair against the

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wall at almost 4:00 o'clock in the morning you could see that man's full face while he was on the ground; is that right?

A. That's right.

Q. Okay, I mean, if that's what you say. And you said you saw it a second time?

A. Yes.

Q.You're certain of that, too, right?

A. Pretty damn right I am.

Q. Pardon me?

A. Yes.

Q. By the way, after you saw the officer fall, did he move? Did the officer move?

A. I wasn't paying too much attention to the officer.

Q. Who were you paying attention to?

A. The shooter.

Q. Okay, I'm going to find out.

So you weren't paying attention to the officer, just the shooter?

A. Yes.

Q. Tell me this, Mr. Chobert, maybe you can explain it to me, you indicated that the officer was shot between the radio patrol car and the Volkswagen.

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we've got several other witnesses who indicated that the officer was found between the Volkswagen and the Ford. Can you tell us why?

A. Tell you why?

Q. Yes.

A. No.

Q. Because you're certain where that officer was and where Mr. Jamal was, right?

A. From my spot, yes.

Q. From your spot, you know that for certain, right?

A. Yes.

Q. And if everyone else says something different, then they're wrong?

MR. MCGILL: objection.

THE COURT: Sustained.

Q. By the way, did you see any guns at all?

A. No.

Q. Never did?

A. No.

Q. Now, at some point in time you said that the Police arrived and said, go back to your car, right?

A. Yes.

Q. Did you get back into your car?

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A. Yes.

Q. And of course, you said you lost sight of Mr. Jamal for about five seconds?

A. Yes.

Q. And you saw him seated between, or you saw him seated on the curb; is that right?

A. Yes.

Q. And you could see him from where you were, from your car, inside your car, you could see him sitting on the curb; is that right?

A. Not clearly, but I saw him, yes.

Q. Not clearly but you saw him?

A. Yes.

Q. Was he seated in front of a car an the curb?

A. In between the cars.

Q. In between the cars?

A. Yes.

Q. So it was your cab, the Police car, and the Volkswagen?

A. Yes.

Q. And he was seated between the Volkswagen and the Police car?

A. Yes.

Q. Did you see the Police when they came and

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arrested him?

A. Yes, I did.

Q. Did you see the Police put handcuffs on him?

A. Yes.

Q. Did you see whether or not the Police struggled with him?

A. Yes.

Q. Did you see whether or not the Police struck him?

A. No.

Q. You didn't see him being struck at all?

A. I saw a hand moving, but I didn't see no contact.

Q. Whose hand?

A. The Police.

Q. What were their hands doing? Could you demonstrate for us?

A. Demonstrate?

Q. Yes, show us what their hands were doing.

A. Just moving around.

Q. I mean, how moving around? Like this, like this (indicating)? I mean, were they jabs, punches, what? We have no idea. You're the only one that can tell us what you saw.

A. They were bending over and I saw them moving their hands like this (indicating).

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Q. Did you see anybody with anything in their hands?

A. No.

Q. Did you see Mr. Jamal strike at an officer or push an officer or do anything to -- did you see him strike any officer in any way?

A. No, just struggling, that was all.

Q. And you could see him while the Police were around him; is that right?

A. Yes.

Q. And then you saw the Police pick him up?

A. Yes.

Q. What did they then do?

A. They dragged him to a wagon.

Q. Did you see them drop him?

A. No.

Q. Did you see them walk him into a pole?

A. No.

Q.They just picked him right up and carried him right into the wagon and placed him right into the wagon; is that right?

A. That's the way I saw it, yes.

Q. And you were just a short distance away, so you're certain of that?

A. Yes.

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Q. Right?

A. Yes.

Q. You don't know -- you never saw him in a wagon?

Q. Now, this other man that was arrested at the scene, did you see what they did with hip.?

A. No.

A. No.

Q. Did you see them put handcuffs on him?

A. No.

Q. Do you know if the Police let him go?

A. They let him go because I saw him again that night.

Q. You saw him again that night?

A. Yes.

Q. By the time that the Police arrived and told you to move back to your car, was there any other civilians on the sidewalk other than the man you said who ran ten feet and Mr. Jamal who you said ran ten feet? Where there any other civilians, I mean non-police people, on that sidewalk?

A. I didn't see none.

Q. And you had a good view of the sidewalk, right?

A. Yes.

Q. When Mr. Jamal was taken to the wagon were there

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any other non-police there on the sidewalk?

A. I don't think so, no.

Q. Pardon me?

A. No.

MR. JACKSON: Your Honor, could I have just one moment, please?

(Counsel and his client confer.)

Q. Mr. Chobert, did you ever see an officer kick Mr. Jamal?

A. Kick?

Q. Yes, kick.

A. Yes.

Q. When I asked you before if you had seen an officer strike Mr. Jamal you didn't know that I meant kick, too?

MR. MCGILL: Objection. Argumentative.

THE COURT: Just ask questions.

Q. You said you saw no guns?

A. Right.

Q. Did you see any in any of the officer's hands"

A. Yes.

Q. Do you know who the officer is?

A. No.

Q. How many guns did he have in his hand?

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A. one, his own.

Q. Only one officer you saw with a gun in his hand?

A. That's all I saw was one, yes.

Q. And you never saw any guns on the street or in the sidewalk?

A. No, I didn't.

Q. That officer you saw with a gun in his hand, where was he when you saw him with a gun in his hand?

A. He was running from the parking lot.

Q. He was running from the parking lot?

A. Yes.

Q. Were there other officers already at the scene when you saw him?

A. A couple of them, I think.

Q. Pardon me?

A. A couple.

Q. A couple?

A. Yes.

Q. By the way, did you see Mr. Jamal shot?

A. No, I didn't.

Q. Did you see the officer who was shot, Officer Faulkner, did you see him shoot?

A. No.

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Q.in fact, he didn't shoot, did he?

A. I don't know.

Q. Did you get close enough to see his gun in his 40 holster?

MR. MCGILL: Objection.

THE COURT: Will you rephrase that question.

MR. JACKSON: Yes.

Q.You got within ten feet of Officer Faulkner didn't you?

A. Yes.

Q. Did you notice if his gun was in or out of his holster?

A. No.

Q. Mr. Chobert, after you heard your first shot you don't know if anyone was shot, do you, the first time, the first shot that you heard, do you? A.Yes, because I saw the cop falling.

Q. And you assumed the cop was shot; is that right?

MR. MCGILL: Objection, Your Honor.

Q. And you're saying that the only other shots that you heard were those shots when this man was standing over the Police officer; is that right?

A. Do you want to say that again, please?

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Q. The only other shots that you heard other than that first shot, the only other shots you heard were those that were sounded when the man was standing over the Police Officer; is that correct?

A. Yes.

Q. Can you account for how Mr. Jamal was shot?

A. No, I can't.

Q. Do you know whether he was shot at that scene, at that location?

A. I assume he was when he fell and he didn't get back up again.

Q. You assume he was?

A. Yes.

Q. Now, just like you assume that the officer was shot, can you tell us who shot him?

A. Who?

Q. Yes, who?

A. Jamal, who do you think it was?

Q. Who?

A. Jamal, that guy sitting right there.

Q. No, who shot him?

A. I don't know.

MR. JACKSON: No further questions at this time.

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REDIRECT EXAMINATION

BY MR. MCGILL: Mr. Chobert, you indicated that you saw the other man later at the Police Station; is that correct?

A.Yes.

MR. MCGILL: Could I have those photographs, please. I show you what has been marked C-21. Can you identify that?

A. Yes, I can.

Q. Who is that?

A. That's William Cook.

Q. Is he the one you saw at the station?

A. Yes.

Q. Is he the other man that you saw with the Defendant?

A. Yes, it is.

Q. You were asked to look at your -- did you see anybody else at the scene in that area that you have shown us besides that man you identified, besides the Defendant and Officer Faulkner?

A. No.

Q. Mr. Jackson asked you several questions about

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your statement. Do you recall telling the Police the type of hair that the shooter had?

A. Yes.

Q. What did you tell them?

A. He had long matted hair like a MOVE member.

Q. Do you recall telling them about his complexion?

A. Yes.

Q. What did you say?

A. Dark.

Q. On the statement of 12-12-81 do you recall telling the Police, when asked the question, "After you heard the shot and saw the cop fall to the ground and the man you just described stood over him to shoot the cop a couple more times, then started to go towards 12th Street, how far did this man run? "ANSWER: About a car length away." Do you recall that answer?

A. Yes.

Q.Do you recall the next question: "Did you see what the nan that shot the cop did after he fell? "ANSWER: He just laid there by the curb about ten feet from the cop." Is that correct? Do you remember saying that?

A. Yes.

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Q.Did you at any time after seeing that man who shot the Police Officer and moved over a car length and fall on the curb leave before the Police came?

A. No.

Q. Was that the same man that the Police were struggling with?

A. Yes, it is.

Q. Was that the same man that the Police took to the wagon?

A. Yes, it is.

Q. And within two minutes after you saw the Defendant shoot the Police Officer, saw the Defendant then go over to the curb and stay, saw the Police take the Defendant to the wagon --

MR. JACKSON: Your Honor, I'm going to object. He's pointing to some place where this witness has not pointed to, so he's testifying.

MR. MCGILL: I won't point to the chart.

MR. JACKSON: Thank you.

THE COURT: Rephrase your question.

Q. The same man that you saw within two minutes after you saw him shoot the Police Officer several times go to the curb and fall, struggle with the Police when they arrived, and get taken to the wagon, that same

273

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man, within two minutes did you see him in that wagon that they took him to?

A. Yes, I did.

Q. And how close did you get to him, Mr. Chobert, when you went to that wagon?

T-- 1. couple steps away.

Q. And did you see his face then?

A. Yes, I did.

Q. Is that man, sir, that you saw over that period of time in the Courtroom?

A. Yes, he is.

Q. Will you point him out again?

A. He's right there (indicating).

Q. Is there any doubt in your mind that that's the man?

A. No, there ain't.

Q. Do you recall telling the Police in your statement on page two when asked the question: "Where was the second black male when you first saw him? "ANSWER: He's standing on the side of the Volkswagen on the sidewalk against the wall, his back was against the wall. He was just standing there."

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Do you recall saying that to the Police?

A. Yes, I do.

Q. And is that the man that you identified in that photograph?

A. Yes, it is.

Q. Are you able to say whether the officer shot the Defendant?

A. No, I can't say.

Q. Why could you not?

A. Because I wasn't paying any more attention to the officer.

Q. Did you see the officer's arms when he was on the ground?

A. No.

Q. Do you recall in your statement on page two saying to the Police in answer to the question, "Did you see what happened to the black male that you saw shoot the cop? "ANSWER: They got him, the cops got him and stuck him in the back of a wagon. "QUESTION: Would you be able to identify the man that shot the cop if you saw him again? "ANSWER: Yes." Do you recall those questions and answers?

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A. Yes, I do.

Q. Do you recall this question and answer: "Did you see the gun the man used to shoot the cop? "ANSWER: No, I didn't. I was too far away. I just saw him standing over the cop and pointing and I heard the shots." Do you recall saying that?

A. Yes.

Q. Do you recall also saying on the end of page three, "Did you see the male that did the shooting of the Police officer again?" When the Police first arrived they told me to get back in my cab. I got back in the cab, and then and officer came over to me and asked me if I saw the man that did the shooting again, would I be able to recognize him. I told him yes. Then he took me over to the wagon, opened the door, and I saw the male in the back of the wagon and I told the officer that it was him that I saw do the shooting."

A. I remember that.

Q. Did you tell him that?

A. Yes.

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And that happened within two minutes after you saw him do it?

A. Yes.

Q. And he never really left your sight from the time that he shot him?

A. No.

Q. Mr. Chobert, I'm going to ask you to stand up again, with the Court's permission.

(The witness complies with counsel's request.)

Q. Mr. Jackson was asking you questions about where you were at the time of the shooting. Would you come down here, please, to the stand here, face the jury. Would you indicate to the jury what the motion of his hand and arm was when you heard the shots as you were looking straight at him?

A. He was pointing down and I heard the shots, (indicating).

Q. Are you indicating by your arm a movement with the wrist and hand? Are you indicating that? have to say that for the Record.

A. Yes.

Q. The times that you heard the shots, how did those sounds of the shots relate to the times that he was moving his hand in a downward position?

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Do you understand the question?

A. No, I don't.

Q. When he was moving his hand down in a pointed direction, as you did, toward the ground, is that when you heard the shots?

A. Oh. Yes.

Q. Did you see anybody else with a gun around there?

A. No, I didn't.

Q. Did you see William Cook that you identified with a gun around, or anybody?

A. No.

MR. MCGILL: Thank you, Mr. Chobert. Nothing further.

MR. JACKSON: Just a couple more, sir.

RECROSS-EXAMINATION BY MR. JACKSON:

Q. You said one car length away from the statement q. Mr. McGill just read to you, you were about one car length away, and you said that's the reason you couldn't see the gun; is that right?

Let me read the statement to you again -- let me show you the statement. (Pause.)

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Do you recall Mr McGill just reading that to You?

A. Yes.

Q. And you're saying you couldn't see the gun because you were ten feet away, you were too far away?

A. That's right.

Q. So you couldn't see a gun ten feet away, but you could see somebody's face two car lengths away; is that right?

A. A gun is a lot smaller. It depends on the gun.

MR. MCGILL: objection. He's arguing with the witness.

THE COURT: Sustained.

Q. By the way, this Police officer that you saw running across the parking lot, could you tell us how he had his gun pointed, up or down or what?

MR. MCGILL: Objection. Beyond the scope of redirect.

MR. JACKSON: Okay, I'll withdraw it.

Q. I just want to be absolutely certain. You're certain that this shooting took place between the Volkswagen and the Police car, aren't you?

A. Yes.

Q. No question about it?

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A. No.

MR. JACKSON: Thank you, sir.

MR. MCGILL: Thank you, Mr. Chobert. Does the Court have any questions?

THE COURT: No.

MR. MCGILL: I have no other witnesses. I'm sorry to keep everybody this late.

THE COURT: You may go.

(The witness is excused.)

THE COURT: We'll adjourn Court until Monday morning at 9:30 in this Courtroom.

(Hearing is adjourned at 6:15 p.m.)