TWENTY EIGHTH DAY

IN THE COURT OF COMMON PLEAS

IN AND AROUND PHILADELPHIA

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

CRIMINAL TRIAL DIVISION

COMMONWEALTH

VS.

MUMIA ABU-JAMAL

aka

WESLEY COOK

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

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Monday, June 28, 1982

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Room 253, City Hall
Philadelphia, Pa.

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Before: HONORABLE ALBERT F. SABO, J., and a jury.

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APPEARANCES:
  • JOSEPH J. McGILL, ESQUIRE
    Assistant District Attorney
    For the Commonwealth
  • ANTHONY E. JACKSON, ESQUIRE
    For the Defendant
  • MUMIA ABU-JAMAL,
    In Propria Persona.

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Page 2.

(There was a conference in chambers, out of the
hearing of the jury, and reported as follows):

MR. MC GILL: Judge, the reason for this sidebar is in reference to the investigative log and the reason why we delayed opening until today.

To a certain degree that has been neutralize (that seems to be a famous word of mine, neutralized), because Mr. Jackson has indicated that he will not mention in his opening anything at all about Sergeant Westerman or the police knowing that somebody else -- that a policeman shot Jamal, anything other than what the facts are, which with the inference clearly that Faulkner had shot him. This is as far as our evidence is concerned.

MR. JACKSON: I would object to that.

MR. MC GILL: I am saying he doesn't necessarily agree with that, but there is just no record anywhere of anything else, except for this inaccurate investigative log.

It was mentioned to me that he will say nothing about that in his opening. Now, that doesn't mean in his opening that if the defendant is going to take the stand and say that, you know, somebody else shot him, well, obviously, he can say that, because he

Page 3.

is indicating what evidence is going to come off, but as far as anything which is not evidence, even an investigation into this, and kind of hearsay sort of thing, he has assured me he will not bring it up in his opening. Is that correct?

MR. JACKSON: That's correct; that's correct.

MR. MC GILL: All right. Now, in keeping with the Court's Order, what I have done is I have Sergeant Westerman present as well as Mr. Macauh, who is the "so called" -- I mean, strike "so-called" -- he is the investigator of the Medical Examiner.

They will say the following -- and, they are here, and they will say this to the Court, if you wish --

MR. JACKSON: Could I interrupt? In terms of what they would say, I think, Your Honor, for the record, as well as for my protection, I think that I would need to examine them; whether it's here on sidebar or in open court, I think that I just have to examine them, and that's why I would object to what they would say. I have to examine them, Judge.

THE COURT: You have a right to talk to them.

MR. JACKSON: I mean on the record. For

Page 4.

purposes of eliminating pre testimony conversation, I would just do it on the record, you know, take their testimony right on the record right away if that's what they are going to say.

THE COURT: We can do that later, can't we?

MR. JACKSON: Well, Judge --

MR. MC GILL: Whatever you want.

MR. JACKSON: Judge, if they are going to say something different --

THE COURT: You can bring them in later, if they are going to say something different. You see, from what I know now, what they are saying is hearsay, and it's hearsay upon hearsay, and I already ruled that is inadmissible.

MR. JACKSON: I understand.

THE COURT: If you want to talk to them later on and you think they can say something else or they can testify to something else, fine.

MR. JACKSON: The only reason I an saying that maybe we should do it before I open is that if, in fact, what their testimony is at variance with the representations of Counsel, then I would want to mention that in my opening.

MR. MCGILL: OK.

Page 5.

THE COURT: No, I don't think you are allowed to mention that, because as far as I am concerned, you are not allowed to mention anything that is in there.

I have said already it's hearsay upon hearsay, and is inadmissible.

MR. JACKSON: I am not talking about what is in there, Judge. If for one reason or another there is some difference or additional information.

THE C0URT: If you want to talk to them before hand, go talk to them, but I am not going to stop now.

MR. JACKSON: But, Judge, I think that for me to simply accept the representations of, Counsel --

THE COURT: All I am saying is what is on that piece of paper there -- that is this piece of paper here -- it's hearsay upon hearsay, which is inadmissible. That's all I am saying.

MR. JACKSON: I am not arguing that point at all, Judge.

THE COURT: What that Sergeant did or didn't do or that other fellow did or didn't do, that is up to you.

If you want to go talk to them, and you think you have something you think would justify your calling

Page 6.

them, come back and tell me.

But, I am not going to waste time now putting them under oath. It's twenty minutes to two. I said court would start at one.

MR. JACKSON: I understand, Judge, and I assure you I am not trying to delay these proceedings, but I think, Judge --

THE COURT: I think you ought to go out and talk to them first.

MR. MC GILL: No. May I make a suggestion?

There is a room there that I tried to empty so it would be available for Mr. Jackson, particularly for this point. The room outside in the corridor, right before you go out to the corridor -- is it the foyer? I guess not. He could use that room to speak with both individuals who I have outside.

They are here, and they will be willing especially if I tell them that the Court will urge it, and I will urge it, that they talk to Mr. Jackson.

MR. JACKSON: Judge, my concern -- and, it may not be the same concern of the Court -- is that in the position that I have been placed by Mr. Jamal, that Mr. Jamal would be suspicious of any representations that I would make to him as to what they are saying, and

Page 7.

that is the reason that I wanted to put it as a matter of record.

THE COURT: OK. We could do that later on. But, all I am asking you to do now is talk to them to see if they have anything.

I am not saying you can't put it on later on. You can put it on later on, and be made part of the record if you want, but all I am trying to do is not hold up the proceedings needlessly. So, why don't you go see them?

MR. JACKSON: I understand.

THE COURT: Go see them. If later on --

MR. MC GILL: I would like to he present.

MR. JACKSON: I do mind, Judge. If it is not going to he on the record, I don't understand why he has to be present. I am not present when he interviews his witnesses. I don't understand the reason. I would object.

THE COURT: You could take the Court Reporter back there with you if you want to. I don't care what you put on the record.

MR. MC GILL: Why don't we do this, then, Judge?

Page 8.

THE COURT: Suppose --

MR. MCGILL: Why don't we have them come right in here, Judge, and question then in front of you right now very briefly?

THE COURT: How long will your questioning be?

MR. MC GILL: It should be a couple questions.

MR. JACKSON: Judge, if I am going to question then on the record, I would not want to do that out of the presence of Mr. Jamal.

THE COURT: I don't care about Mr. Jamal.

MR. JACKSON: I understand that, Your Honor. Your Honor, I am representing him.

THE COURT: I don't do this in front of the general public for anything. I am not going to do it to please Mr. Jamal.

MR. JACKSON: It's not to please him, Your Honor.

MR. MC GILL: Your Honor said you didn't care about Mr. Jamal.

MR. JACKSON: But, you meant in reference to this particular issue.

THE COURT: This issue here, yes. It has nothing to do with Jamal nor the public or the press

Page 9.

that is out there. I am not going to do it.

MR. JACKSON: Judge, I am not trying to do it.

THE COURT: You can bring them back here, and let's go get it over with.

MR. MC GILL: I have no objection to that, sir.

MR. JACKSON: You don't want me to question them in advance? Just question them on the record in the absence of Mr. Jamal?

THE COURT: Yes, question them on the record in the absence of Mr. Jamal. I am not going to go to open court with this.

MR. MC GILL: I can see that Judge, because it is totally unreliable.

THE COURT: There are court Reporters out there.

MR. JACKSON: Judge, it is not going to be in open court, but I am saying wherever it is that Mr. Jamal be present.

MR. Mc GILL: I have no objection to that, Judge.

THE COURT: Well --

MR. JACKSON: Whether we take everybody out

Page 10.

there into that room or sidebar here, Judge, I just think that in my effort to represent him properly and effectively that he should be present for this, because this is some information in the defense.

THE COURT: All right, OK. I don't know if this is a good place. Maybe we ought to clear the courtroom then.

MR. MC GILL: That's too much effort. I think that will draw too much attention to this highly unreliable information -- as a matter of fact, inaccurate, because Sergeant Westerman will add that he --

THE COURT: I am saying it is hearsay on hearsay from what I can gather.

MR. JACKSON: May I check with Mr. Jamal? If he says he doesn't want to participate, then it's over with.

MR. MC GILL: Off the record.

(There was an off-record discussion.)

MR. JACKSON: Your Honor, if I could, for the record, I have just spoken to Mr. Jamal. Mr. Jamal indicates, No. 1, that he, indeed, would like to be present during the questioning of Mr. Macauh and Sergeant Westerman, and he further indicates that just as the Motions to suppress were conducted in a public

Page 11.

arena, he wants their testimony taken in the public arena.

THE COURT: Well, you can report back to him that I said, "No, it will not be in the public arena."

MR. JACKSON: Your Honor, I wanted to finish.

THE COURT: I know that he wants it in the public arena, and I said he can't. If he wants to come back here, fine. If he doesn't want to come back here, that's too bad. I am not going to put up with his nonsense. I am getting tired of that. He is not going to tell me how to run the courtroom. OK?

Now, let's get him. If he wants to come in bring him in. If he doesn't want to be here, that's all right with me, too.

(There was an off-record discussion.)

MR. JACKSON: He said again that he doesn't want to do it at sidebar. He doesn't want to argue the issue at sidebar. He says he wants you to do it out there. He doesn't care if you clear the courtroom.

MR. MC GILL: All right. Let's do it back here and leave him out there.

MR. JACKSON: Judge, so that it is clear, I

Page 12.

want you to know that I am simply not questioning them on the document, but I am questioning them with regard to the information that is in this document as to what information they had if any other than that document regarding the shooting.

THE COURT: Fine. You want to know whether they could be witnesses for you.

MR.JACKSON: That's right.

THE COURT: That's all right. I am not objecting to that, and I say you can do that without this proceeding by going back and just talking to them but if you want to --

MR. MC GILL: That's true, Judge.

THE COURT: But, if you want to put it on the record, I will put it on the record for you, but I am going to do it back here in chambers.

MR. MC GILL: Judge, why don't we do that, because you are right. Why don't we just have Mr. Jackson go out, talk to the two men, particularly since, as you said, he is looking for them as being possible witnesses.

They will say in reference to this document exactly what I said. Now it appears that the interests Mr. Jackson has is beyond just this document.

Page 13.

THE COURT: Fine.

MR. MC GILL: So, if that were the case, what I can do is I will have them in that room with Mr. Jackson. I will let him speak with them alone. I will walk out of the room, and whatever else they have to say to him they can say to him.

THE COURT: OK.

MR. JACKSON: I assume what you are saying is that we can put their testimony, as brief as it may be, on the record.

THE COURT: If it's relevant, sure, and if it's admissible.

MR. JACKSON: Judge, I think, then, if they say what Mr. McGill has represented, I would still like to have that on the record out of the hearing of the jury. I think that it just has to be, Judge.

MR. MC GILL: Judge, I object to that, and the reason is that it takes too much time in two different areas. Let's do it now, and then we don't have to worry about the later time.

THE COURT: If you want to do it back here, we will bring them in here and put it on the record.

MR. MC GILL: Fine.

MR. JACKSON: Judge, I just stated it is

Page 14.

patently unfair for me to interview a witness for the first time on the record when the District Attorney --

THE COURT: You asked for this in the first place.

MR. JACKSON: I am asking to talk to them first alone.

THE COURT: I am the guy that asked you to talk to them alone. You wanted it on the record.

MR. JACKSON: Sure. I want their testimony in open court. That's true, Judge.

THE COURT: Only if they are able to testify.

MR. JACKSON: Well, Judge, we have the whole issue of them telling me whatever it is that they want to tell me, and what I am simply saying is that assuming for a moment that they will testify essentially to what Mr. McGill has just repeated to the Court, I think for me to simply accept that --

THE COURT: No. You can ask them anything you want. I will put them under oath back here for you. You can ask them, anything you want, if you want to, because, if you are going to put it on the record, you might as well put it down there now.

I was just trying to cut it short, if it is unnecessary to go through all this. If you want it on

Page 15.

the record, fine. Bring them back here, and put them under oath, and you can ask them whatever questions you want.

MR. JACKSON: Your Honor, I'd like to have one of the witnesses at a time, if you don't mind.

THE: COURT: All right. Which one do you want first?

MR. MC GILL: Mack, why don't you go out first and let Sergeant Westerman testify first.

THE COURT: Just sit out there.

MR JACKSON: Has this been marked as an Exhibit, yet?

MR. MC GILL: No.

MR. JACKSON: OK. Perhaps I should have it marked as an Exhibit.

MR. MCGILL: Right. What number are we up to?

THE CRIER: "D" Exhibit or "C" Exhibit?

MR. JACKSON: "D."

THE: CRIER: D-15.

MR. JACKSON: No. It would be D-17.

THE CRIER: Wait a minute.

MR. JACKSON: Yes, D-17.

THE CRIER: D-15.

Page 16.

THE COURT: Well, did you take out the two that he took back?

THE CRIER: No. They are still on there.

MR. JACKSON: D-15 and 16. The 15 is the typed statement of Scanlon. The handwritten statement is D-16. But, you didn't mark them, remember, because it was Mr. McGill's original.

THE CRIER: C-57 is M. Scanlon's original Exhibit.

MR. JACKSON: Oh!

THE COURT: D-15.

THE CRIER: Yes.

THE COURT: OK. D-15.

(The above mentioned document was received
and marked D-15 for identification.)

THE COURT: Go ahead. You can swear him in.

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SERGEANT FREDERICK WESTERMAN, Badge # 533, Homicide Division, sworn.

DIRECT EXAMINATION

BY MR. JACKSON:

Q. Sergeant Westerman, where were you assigned on December 9th? I assume, maybe, if I lead you, we can go through --

MR. MCGILL: Go ahead.

Page 17.

Westerman - Direct

BY MR. JACKSON:

Q. You were assigned to the Homicide Unit on December the 9th, 1981, at or about the time of the shooting of Officer Faulkner?

A. Not at or about the time of it. I came on duty at 6:OO a.m. in the morning.

Q. When you arrived on duty at Homicide? Is that right?

A. Yes.

Q. What are your functions there at Homicide?

A. What are my functions? It is to supervise the squad that is assigned to me and my Lieutenant. That is my main function, whatever, from fires during the day. My function are many. They are unlimited, I guess, you know.

Q. Within your duties of supervising the squad that you work with, would it be your duties to assign to different investigators leads that you might have regarding a pending investigation or incident?

A. Yes, sir.

Q. And, did you somehow on that day or sometime after that day receive some information from someone with regard to Mr. Jamal being shot by other police, a police officer other than Officer Faulkner?

A. Did I receive that information?

Q. Yes.

Page 18.

Westerman - Direct

A. By other than Officer Faulkner?

Q. Yes, sir.

A. No.

Q. Did you ever tell anyone specifically the investigator for the Medical Examiner's Office that Mr. Jamal was shot by reinforcing police officers, or words to that effect?

A. No.

Q. Do you recall speaking to the investigator from the Medical Examiner's Office?

A. Yes.

Q. Do you recall when that was?

A. It was sometime that morning.

Q. And, do you remember the substance of that conversation?

A. When I answered the phone, he asked me if I could briefly fill him in on what transpired at that shooting. And, I turned around, and I believe Lieutenant Gaghan (sic) was there, Sergeant Gibson, and numerous people from his squad, because the place was a mad house, and the phones were ringing, and rather than tie them up, I turned around and said, "Yes, he is on the phone and wants to know what happened. Someone, give me the story."

And, as I recall the story being relayed to me from somebody -- and, I don't remember who, because there was so many people there -- they told me that Officer Faulkner

Page 19.

Westerman - Direct

had stopped a car. He had a struggle with the operator of the car. A negro male ran from a lot which was across the street, ran up to the Officer and shot him. Then he was shot. That's what I told Macauh.

Q. Now, so that I am clear, you are absolutely certain that you did not tell the investigator that -- could I see the Exhibit?

Are you absolutely certain that you did not tell the investigator that the assailant himself was shot subsequently by arriving police reinforcements?

A. I am positive of that. That is terminology that I just don't use. I haven't used the word "reinforcement" in anything since I came out of the Marine Corps.

Q. Well, aside from the specific words, did you say anything that would substantially represent the same meaning?

A. No.

Q. That someone other than Officer Faulkner shot Mr. Jama1?

A. No, no, sir.

Q. Did you speak to the M.E.'s Office or the investigator at any other time?

A. About this incident?

Q. Yes.

A. No.

Page 20.

Westerman - Direct/Cross

Q. Is it customarily your duty to provide this information to the Medical Examiner's Office?

A. The M.E. calls up, I'd say, on almost every homicide that we have, and whoever answers the phone will give them the information.

There is nothing that is strictly the responsibility of the Sergeant or the Lieutenant, because it is usually a very brief thing.

Q. Have you heard or received any information subsequent to this date that would indicate that Mr. Jamal was shot by anyone other than Officer Faulkner?

A. No, never.

MR. JACKSON: OK.

MR. MC GILL: May I cross-examine?

THE COURT: Go ahead, if you want to.

CROSS-EXAMINATION

BY. MR. MC GILL:

Q. Sergeant, how many years have you been Sergeant in the Homicide Division?

A. I have been assigned to the Homicide Division as a Sergeant since December of 1980.

Q. '80?

A. Yes, sir.

Q. And, how long have you been in the Police Department?

Page 21.

Westerman - Cross

A. Eleven years, sir.

Q. And, is it my understanding that you never used the word "reinforcements" at all in reference to police arriving at that incident?

A. That's correct, Sir.

Q. Now, in reference to this particular incident, you were on tour of duty from eight o'clock until when?

A. 4:00 p.m.

Q. Were you involved in the case of Mumia Abu-Jamal, that is, the case involving the death of Officer Daniel Faulkner, at all?

A. My only involvement was my conversation with Mr. Macauh.

Q. And, as I understand what you said to Mr. Jackson is that you basically were just answering the phone, and it was your intention that rather than bother them to find out information and relay the information since they were involved in, I believe, what you called a madhouse? Is that correct?

A. Yes, sir.

Q. So, I also believe you stated that you didn't even know who you talked to? Is that correct?

A. I remember having a conversation with the Medical Examiner's Office.

Q. No, no, no. I don't mean that. From the police.

Page 22.

Westerman - Cross

A. Who I got my information from?

Q. Yes.

A. I was sitting at my desk. I turned around and yelled, "Can somebody tell me what happened," and whoever from that squad replied to me is what I relayed to Mr. Macauh.

Q. OK. Not only, then, do you not have any idea who that is that gave you that information, but you don't know where they got the information that you received? Is that correct?

A. That's correct.

Q. It was not your job to go to the scene, was it, at the time?

A. No, sir.

Q. And, you became involved in other matters unrelated to Officer Faulkner after that particular phone call that you heard? Is that correct?

A. Yes, sir; yes, sir.

Q. As a matter of fact, isn't it possible, Sergeant, that the information that you received --

MR. JACKSON: Objection as to what could be possible.

THE COURT: Well, what's the difference?

MR. JACKSON: All right.

Page 23.

Westerman - Cross

BY MR. MC GILL:

Q. Isn't it possible, Sergeant, that the information that you received may even have been bits and pieces from different people, rather than one person?

A. Yes, sir.

Q. And, needless to say, you don't really even know where their source of information -- those number of people that may have given you those partial informations? Would that be correct?

A. Yes, sir.

Q. And, it is a fact, is it not, that you have already said this, but you obviously have no personal knowledge of any of that? Is that correct?

A. That's correct.

Q. And, you have also stated already that what is written on this piece of paper you didn't even say? Is that correct?

A. That's correct.

Q. Meaning the reference to being shot by police reinforcements?

A. That's correct.

Q. And, what you did say, what you recall saying, is what you told Mr. Jackson? Is that correct?

A. Yes, sir.

Q. And, then, he was shot is what you said to Mr. Jackson

Page 24.

Westerman - Cross/Redirect

That "he" refers to the defendant, I guess.

A. That's correct.

Q. So, Officer Faulkner was shot, and, then, he was shot, and that means Officer Faulkner was shot, and then the defendant was shot?

A. That's correct.

MR. MC GILL: Nothing further.

MR. JACKSON: Just one more question.

REDIRECT EXAMINATION

BY MR. JACKSON:

Q. Can you tell me the very first time you saw that statement?

A. A few weeks ago Mr McGill called me to the office. I had never seen it before. I wasn't even aware it existed.

MR. JACKSON: OK. I have nothing further.

THE COURT: I am going to ask you, Sergeant, to keep to yourself what was said back here.

THE WITNESS: Yes, sir.

THE COURT: Because, for the time being I am sealing this record.

THE WITNESS: Yes, sir.

THE COURT: OK. All right.

THE WITNESS: Am I excused for the day?

Page 25.

MR. MC GILL: You better wait outside.

THE COURT: Off the record.

(There was an off-record discussion.)

-----

STEFAN MAKUCH, Medical Examiner's Investigator I, sworn.

DIRECT EXAMINATION

BY MR. JACKSON:

Q. Mr. Makuch, could you spell your name again for me, please?

A. Last name?

Q. Yes.

A. M-a-k-u-c-h.

MR. MC GILL: I was wrong.

BY MR. JACKSON:

Q. Now, sir, on December the 9th, 1981, you were assigned as an investigator for the Medical Examiner's office?

A. I believe I was working then, if that is the date.

Q. OK. And, do you work -- do you recall what time you arrived at work? Well, let me -- would you hand him D-15, please?

A. Yes. Thank you. No. This must have been my eight to four shift.

Q. Now, do you recall preparing that document? Is that

Page 26.

Makuch - Direct

your handwriting, first of all?

A. That is my handwriting, yes, sir.

Q. Do you remember preparing that document?

A. This form?

Q. Yes, sir.

A. Yes, sir, I do.

Q. Do you recall talking to someone in receiving that information?

A. Yes, sir, I do.

Q. And, was it -- do you know Sergeant Westerman?

A. Well, I have met him in the line of my duty and his duty.

Q. So that you do --

A. Several times.

Q. You knew him before December the 9th?

A. I am not sure that I have seen him or met him personally before or around that day, because I deal with so many people I might not know them on sight. I deal with a lot of people on the phone in the line of my duty.

Q. Did you know Sergeant Westerman's voice?

A. (There was no response.)

Q. In other words, when you talked to him on December the 9th, did you know that, in fact, that was Sergeant Westerman?

Page 27.

Makuch - Direct

A. Well, I can only accept it as him, because that's what he said he was on the phone.

Q. So, you have no independent means of determining -- in other words, if you talked to your wife or your mother or your brother, you would know their voice even if they told you they were Mickey Mouse?

A. Yes.

Q. But, did you know, in fact, this was Sergeant Westerman when you talked with him on the phone?

A. I was told that this was Sergeant Westerman by the person who answered the phone.

Q. OK. Now, you got some information that you placed on that investigative log. As best as you can recall, sir, is that information -- does that information -- does that investigative log accurately reflect the information that you received on the phone from whomever it was that you talked to?

A. Not necessarily verbatim, sir.

Q. I understand.

A. Not necessarily verbatim.

Q. But -- well, let me -- substantially the information that you received from whoever it was that you talked to, the person who identified themselves as Sergeant Westerman, said, No. 1, that Officer Faulkner was shot by a man who ran across the parking lot, and then later that the assailant

Page 28.

Makuch - Direct

himself was shot by some other police officers. I mean, now, that is not verbatim, either, but is that the meaning of what you placed there?

A. Well, if that is what my notes say, I'll have to accept it as such, with the provision that what happens is when I talk to the men on the phone, and inasmuch as we do not record the conversation verbatim, I couldn't swear to it that each and every word that has been transcribed -- what it is in my duties as a Medical Examiner's investigator, I have to obtain -- in this particular case, my duty was to obtain the date, time, place, and the circumstances of the incident such as the shooting of the deceased.

Q. And, you do this in the regular course of your duties?

A. Yes, sir.

Q. On each and every case?

A. Yes, sir, on each and every case that I am assigned or being told to do it.

Q. And, it's normally your practice to telephone to get this information from the Homicide Unit?

A. Yes sir, yes.

Q. OK. Now, do you have any reason to believe that the information that you got recorded on that investigative log is incorrect?

A. I don't.

Page 29.

Makuch - Direct

Q. Could you or would you have possibly spoken to anyone else relevant to that same information that is contained on D-15?

A. I couldn't swear --

MR. McGILL: Excuse me. I just object. Are you referring to all the information or just the area involving the defendant?

MR. JACKSON: Yes, with regard to the shooting of Mr. Jamal.

BY MR JACKSON:

Q. Do you recall whether, in fact, you discussed it with anyone else?

A. I don't think I did.

Q. And, as a result of the information that you received, did you do anything other than record it?

A. No, sir.

Q. And, at about what time did you record the information that's on that sheet?

A. My note says nine o'clock in the morning on 12/9/9l.

Q. OK. So that I'm clear, would you have made the notes contemporaneously at the same time that the information was given to you, or would you have done it at a later time?

A. Normally -- normally -- I would write out on a scratch sheet whatever I am taking on the phone, and, then, I would

Page 30.

Makuch - Direct

transfer it to the log sheet which is part of the file.

Q. Right. Do you recall specifically if you did it in this instance?

A. I could not swear to it, sir, no. Sometimes when we are busy and we catch one or two calls in succession, I might put it aside for a few minutes, and then go back to it and transcribe it.

Q. And, I take it that if you had written on a scratch piece of paper, you would have destroyed it after rewriting it on that?

A. Normally, yes, yes, it's discarded. It's no longer needed, because it's recorded on this here.

Q. At any time since the time that you had written this investigative log on December the 9th, have you been given any information, whether it is directly or by phone, other than the newspapers? Has anyone from the Police Department or the Medical Examiner's Office reasserted in any way that in fact, Mr. Jamal was shot by someone other than Officer Faulkner?

A. No, sir, I don't recall any such information.

Q. And, about how long have you been with the Medical Examiner's Office?

A. I have been with the Medical Examiner's Office since 1961.

Page 31.

Makuch - Direct

Q. Twenty-two years?

A. I am in my twenty-second year, yes, sir.

Q. Did you know Officer Faulkner? Did you know Officer Faulkner?

A. I don't think I ever met him. I don't recall ever having known him personally.

Q. OK. Were you responsible -- other than what is contained on D-15, were you responsible for investigating or obtaining any other information regarding either the shooting death of Officer Faulkner or the shooting of the defendant?

MR. MC GILL: I would have to object to the relevancy to the Faulkner aspect of it. It would be relevant only to the defendant.

MR. JACKSON: Well, since this is the first time I have had the opportunity to talk to the witness I just wanted to find out if he has got some additional information.

BY MR. JACKSON:

Q. Are there any other investigations that you may have performed surrounding either the shooting death of Officer Faulkner or the defendant?

A. I do not recall any.

Q. If you had conducted any additional investigation, I would assume it would be recorded on the investigative log?

Page 32.

Makuch - Direct - Cross

A. It is the accepted and the required practice that anything and everything -- all the flow of information -- is recorded on this type of document.

MR. JACKSON: I have no additional questions at this time.

MR. McGILL: May I have the document, please and stay there if you would, Mr. Makuch. Just for the record, I don't really know the -- I am not familiar with the name Makuch.

BY MR. McGILL:

Q. Are you a native of this country?

A. No, I am not.

Q. What country?

A. I am Ukrainian.

Q. Ukrainian? OK. Now, Mr. Makuch -- it's Makuch?

A. Makuch, right. That's pretty close.

Q. Mr. Makuch, your primary function, or, at least, the focus of your -- I am sorry. The focus of your attention is talking to the man from Homicide in reference to this matter is, I believe, from what you said, information for a death certificate? Is that correct?

A. That is correct.

Page 33.

Makuch - Cross

Q. So, then, the information for the death certificate would actually be the death of the Police Officer Faulkner in this case?

A. That is correct, sir.

Q. That would be, for example, the date, the time, and the place and the circumstances of the Officer's death? Is that correct?

A. That is correct, sir.

Q. Would it be fair to say that there is little if any focus from your standpoint as part of your duties on any kind of injury that may or may not have occurred to the defendant or the alleged shooter of the deceased? Would that be correct?

A. That is correct, Sir. There is no specific focus.

Q. You don't fill out any kind of form for injury of the defendant, do you?

A. No, sir.

Q. Is it your practice, also, that after you would hear an answer from a Sergeant and you would make notes on a pad or whatever, before you would make the final notes on the document which we have here, which is the investigation log that you may change some of the words in order to phrase it the way that you felt it was said to you?

A. Yes. I believe it was mentioned already earlier that

Page 34.

Makuch - Cross - Redirect

this is not a verbatim sworn statement type of record. It is the transcription of information that I received from another person.

Q. Now, of course, you have no idea where the caller -- that is, Sergeant Westerman -- received his information? Is that correct?

A. Well, no, I do not necessarily have that.

Q. And, you have no personal knowledge whatsoever about the particular facts in this note?

A. No personal knowledge; that is correct.

Q. Then, sir, in reference to what you said, the focus of your attention, the business of the time, and the information that you received, is it possible that that information regarding the circumstances surrounding the injury to the defendant may be in error?

A. It could very well be. I couldn't swear to it, but it could very well be.

MR. MCGILL: Thank you. I have nothing further.

MR. JACKSON: I am just unclear.

REDIRECT EXAMINATION

BY MR. JACKSON:

Q. I just asked you earlier if you had any reason to suspect that the information you recorded is inaccurate or is

Page 35.

Makuch - Redirect

different from what you heard.

A. (There was no response.)

Q. In other words, although the information may be inaccurate, it's reflected in D-15 the way that you essentially heard it? Is that not true? Do you understand what I am saying?

A. The second part of your question, sir?

Q. Sure.

A. The way I understand your question is whether I recorded to the best of my knowledge what I thought I heard.

Q. That's right.

A. I am sorry. Yes, yes.

Q. You did record to the best of your knowledge what it is that you heard?

A. Yes. I tried to.

Q. One other thing. Although your specific focus was on Officer Faulkner, is it not true when you have a multiple shooting where at least one of the persons is deceased that you may also get additional information of others who were shot because of the possibility they may also come to the Medical Examiner's Officer?

A. Not necessarily, not beforehand, sir.

MR. JACKSON: OK. Fine. I have no further questions.

Page 36.

THE COURT: I am going to ask you please not to discuss what you've told us back here, because I am temporarily sealing this record. I don't want it to get to the Press or out in the public. OK?

THE: WITNESS: Yes, Your Honor.

THE COURT: You may leave, Mr. Makuch.

MR. MC GILL: Off the record.

(There was an off-record discussion.)

MR. McGILL: Your Honor, I understand that your Order will stay in force, that any kind of information in relation to this document --

THE COURT: Yes. I don't want to see this in the paper.

MR. JACKSON: Judge, I think I should let you know that this isn't the first time that has come up. The Press already knows about it.

THE COURT: All right. They may, but --

MR. JACKSON: I was told about this before I even knew, and I'll tell you frankly before I knew it was in your file, when you told me was when I looked at it.

THE COURT: That, unfortunately, is the thing we are hoping to prevent. We don't want to try

Page 37.

our case in the newspapers.

MR. JACKSON: I just wanted you to know that this isn't new information.

MR. MC GILL: I'd like to finish that, Judge, for a moment, because I think it is important. First of all, I have no reason to disbelieve anything Mr. Jackson has said. He has always been an honorable man with me.

There is a lot of emotion in this particular case, and I believe that the Reporters and the assistants of Mr. Jackson may have gotten their hands on that file, or whatever.

However, what has happened is since this whole case file was sent to Mr. Jackson's office, a copy of this very document D-15 was mailed to several newspapers. That is how I, as a matter of fact, came into the knowledge of the existence of it.

I never knew there was one. A newspaper Reporter called me and asked me to explain it, which I was at quite a loss at the moment. I immediately spoke to Mr. Jackson. I think you will admit that.

MR. JACKSON: That's right.

MR. MC GILL: I immediately called Mr.

Page 38.

Jackson and notified him of that and told him that if there is such a document, it is most likely one of these phone call hearsay upon hearsay upon hearsay in a madhouse homicide after a police shooting, which obviously, it turned out to be.

With that in mind, we left it there, so if there is any news that is out because of the contents of this document, it is because of that particular incident.

That's about it, Judge, so I would appreciate if the Court would impound this record and order all of us not to say anything to anyone.

THE COURT: I am asking us here (and, I mean just us) not to discuss it.

MR. JACKSON: I just didn't want you to think that somehow I leaked it. It is already out.

THE COURT: All right. OK. But, they don't have to know what went on back here.

MR. JACKSON: Fine. I won't.

(There was an off-record discussion.)

(The proceedings were resumed in open court, as follows)

MR. JACKSON: Good afternoon, Your Honor. May it please the Court, I would initially like to

Page 39.

request that Mr. Jamal be permitted to provide and to give the opening remarks to the jury. As Your Honor well knows, we are at the point where the defense is now prepared to give its opening remarks to the jury, and I believe in the name of justice, Mr. Jamal has, of course, made numerous requests to Your Honor with respect to his right to self-representation, and subsequently asked Your Honor to permit his opening remarks to the jury, the possible examination of three witnesses of his choice, as well as the closing.

I understand that, Your Honor, with regard to the closing remarks, Your Honor has indicated that you are taking that matter under advisement. But, to the extent that Mr. Jamal might be permitted to give the closing remarks, I would ask that Your Honor also consider allowing Mr. Jamal to give the opening remarks.

I know that technically, Your Honor, that is not in the nature of his self-representation, but I think, indeed, Mr. Jamal is the best person to give that opening remark, and I would ask that Mr. Jamal be permitted to do that in my stead.

I feel that he could do it and not be disruptive as Your Honor has suggested, and I think it

Page 40.

would be in the best interests of justice to allow Mr. Jamal to do that.

Secondly, Your Honor, I understand that we have had conversations in the camera hearing with regard to a matter that Your Honor has determined not to be presented in open court.

Mr. Jamal and I would ask Your Honor to make that a matter of public record, because Mr. Jamal believes that it is in his best interests to have this information presented here in open court, and again I say that in the name of justice.

I don't think that it presents any additional burden to the Commonwealth or to Your Honor, particularly since the jury has been sequestered. The jury has no opportunity to read the newspapers or to hear anything on the radio or television.

For those reasons, I ask Your Honor to grant both of these requests.

THE COURT: Do you have anything to say?

MR. MC GILL: No, sir.

THE COURT: Well, the Court will deny those requests. I told you initially that when I appointed you as Counsel, once you became Counsel you were going to follow this thing all the way through.

Page 41.

I think it's only fair that the continuity of your representation of this defendant include not only the opening remarks, since you are going to be the one that has to let the jury know what you intend to prove, and the closing remarks as to your arguments as to what you have proven, or as to what the evidence shows.

I am not going to -- the other matter that we had is not evidence. It was just merely a hearing, and I am not making that public at this time. It will be made available later on, but not at this time.

Your request to have Mr. Jamal make the opening and closing and to cross-examine some witnesses of is choice -- all those Motions are denied.

MR. JACKSON: Your Honor, may we have some indication as to when that information would be made public?

THE COURT: At the proper time.

MR. JACKSON: Your Honor, if you could suggest to us or indicate --

THE COURT: Well, whenever the notes are transcribed. I don't have them any more than you have them.

MR. JACKSON: I understand that. At least

Page 42.

Your Honor has indicated that the record is sealed with regard to that matter, and Your Honor has advised and ordered that Mr. McGill and myself not speak of those issues, and Your Honor has indicated that at some later time it could be made public.

THE COURT: Once the notes are transcribed, they will be public. I don't have them either.

MR. JACKSON: I understand that. But, you are saying the subject matter of the discussion could be made available at some later time.

MR. MCGILL: Judge, I would object. The very import and meaning behind your Order is being violated now, so I object to this. It is obvious what is being done.

THE COURT: When he transcribes the notes, you will get them. All right?

MR. JACKSON: Your Honor, one last matter, sir.

(There was an off-record discussion between Mr. Jackson and Mr. Jamal.)

MR. JACKSON: Your Honor, notwithstanding Your Honor's indication and advice with regard to Mr. Jamal not addressing the Court, I believe that Mr. Jamal feels extremely interested in the proceeding

Page 43.

that was in chambers as well as the other issue that that Your Honor has ruled on today.

For that reason, Your Honor, Mr. Jamal has said in the absence and outside the hearing of the jury, he would like a brief opportunity to speak to Your Honor, and I believe, Your Honor, there certainly is no intent from Mr. Jamal to delay this proceeding, but I think, again, because it is, indeed, his life that is at stake here --

THE COURT: Mr. Jamal was given the opportunity to come back in chambers with us at that time. He chose not to do so. As far as I am concerned, that closes the issue. I am not going to discuss it with him. Is there anything else you have?

MR. JAMAL: I chose not to go back in chambers for a very good reason. Because, in chambers, in camera as it is called, this matter of a very serious import was discussed.

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

MR. JAMAL: It was discussed in secrecy.

MR. MC GILL: I object, Your Honor.

MR. JACKSON: What is the Court trying to hide, Judge Sabo?

Page 44.

THE COURT: Mr. Jamal, the Court is not trying to hide anything.

MR. JAMAL: Why don't you discuss this investigative log from the M.E.'s Office, the Medical Examiner's Office?

MR. MCGILL: Again, I object. It is so obvious what he is doing.

MR. JAMAL: It is obvious I am bringing out information that they are trying to hide.

THE COURT: And, I am telling you, Mr. Jamal, unless you sit down and allow this Court to run the court --

MR. JAMAL: I will not allow the Court to railroad me. I will not allow this Court to hide evidence that it concedes --

THE COURT: Nothing is being hidden, and your attorney knows all about it.

MR. JAMAL: Well, bring it out in open court, Judge.

THE COURT: At the proper time.

MR. JAMAL: The proper time is now the defense is open.

MR. MC GILL: Would Your Honor make a ruling?

THE COURT: I have made a ruling.

Page 45.

MR. JAMAL: I have said, Judge, what I said. This is not an outburst, Judge. I am angry because you are obviously hiding and trying to keep something secret. I want this report addressed in court, not in sidebar, right here.

THE COURT: May I see you here?

MR. JAMAL: I don't want to meet you there. I want you to meet me here in open court. I don't want you going over there.

He is again disobeying my orders. He is working for me, not for the Court.

(There was an unreported sidebar conference.)

MR. JAMAL: Judge, if it is your intention to remove me, then that is your intention. It will not be the first time. It will not be the fifth time. It wouldn't be the seventh time. That will be your Order.

I am telling you I am fighting for my life. If you want to hide evidence that you don't want to have submitted in this trial --

THE COURT: That is not evidence.

MR. JAMAL: Based on your determination. Were you on 13th and Locust?

THE COURT: No, but you were.

Page 46.

MR. JAMAL: This Sergeant was here as well, which is evidence admitted into evidence.

THE COURT: Your attorney knows that that is not evidence.

MR. JAMAL: My Counsel is John Africa. My Counsel would be ordered not to hide anything.

THE COURT: Are you going to sit down?

MR. JAMAL: No, I am not.

THE COURT: You are going to become disruptive.

MR. JAMAL: No. I am pressing this point.

THE COURT: Are you going to do it in front of the jury?

MR. JAMAL: I will do it, right. I have no objection to them hearing the truth.

THE COURT: I am not going to allow you to do that in front of the jury. I think it is better I remove you beforehand.

MR. JAMAL: Judge, I think you know what is better for you to obtain a conviction.

THE COURT: I want to know from you: Are you going, to be quiet?

MR. JAMAL: I want to know from you: Are you going to speak to this Medical Examiner's Report?

Page 47.

MR. MC GILL: Your Honor, again I object to this obvious play. It is so completely obvious.

MR. JAMAL: I object to this obvious railroading. I object to this obvious attempt to silence and keep information secret in a trial for my life.

MR. MCGILL: Will Your Honor rule on whether he can continue this disruptive behavior?

MR. JAMAL: I am not.

MR. McGILL: I am convinced he doesn't think so. Your Honor, I would ask this Court to make a ruling.

THE COURT: I hate to bring the jury and have him act up in front of the jury again.

MR. JAMAL: Judge, this is not an act. I am not acting up. I want you to address that information. I have been rational. I have been articulate.

THE COURT: It has already been discussed.

MR. JAMAL: It has not been discussed with me, Judge. Here you have a man that goes back in sidebar with this man trying to kill me, this man that I don't want here, and you obviously trying to convict me, and you discuss pertinent information that comes from the Police Department to the Medical Examiner's

Page 48.

Office about who shot me, and you don't want me to discuss it.

MR. MCGILL: He is completely inaccurate, Judge.

MR. JAMAL: I am not acting up, Judge.

THE COURT: You are disrupting this court.

MR. JAMAL: I am disrupting nothing.

THE COURT: Sheriff, take him out. Take him out.

MR. JAMAL: I am fighting for my life according to the strategy of John Africa.

I don't want you to participate. You are not working for me. I want you to get your ass up and go out of here.

THE COURT: Quiet in the courtroom. If there are any outbursts in the courtroom, you are going to be evicted.

MR. JAMAL: On MOVE!

(The Sheriffs removed the defendant from the courtroom.)

(The jury was then returned to the courtroom.)

THE COURT: Mr. Jackson?

MR. JACKSON: Your Honor, may I approach the

Page 49.

jury?

THE COURT: Yes. Please.

MR. JACKSON: Good afternoon, ladies and gentlemen of the jury.

This, of course, is my first opportunity to talk to you as an assembled jury. You've sat through and listened to the prosecution present a host of witnesses purporting to tell you -- and, of course, the prosecution hopes to prove to you -- what happened on that fateful evening of December 9th, 1982.

Let me just suggest to you -- and, it should be obvious to you -- that on December the 9th, 1981, MR. Jamal was a victim himself. You've heard testimony of what did or may have happened to Officer Faulkner. You have heard very little of what happened to Mr. Jamal.

You know from the records, from the testimony that Mr. Jamal himself was, indeed, shot. Mr. Jamal himself was, indeed, beaten. You heard very early at the outset of this case Judge Sabo indicating to you that the defense has no obligation whatsoever to prove anything.

Indeed, it is the choice of the defense to have the defendant say nothing at all. There is absolutely no requirement that we present anything to you

Page 50.

at all, that, indeed, you could and would make a determination based on the prosecution's evidence alone that you have just heard; that is, the prosecution's case. You've heard the prosecution rest.

It is now our opportunity to present to you some information. We are not going to stand up here and say we are going to prove this and the other, but what we would like you to do is now have an opportunity to see all of the facts that happened on that evening, on that early morning hour.

What happened December 9th, 1981, at or about 4:00 a.m.? You must as jurors in listening to the proof, in listening to the testimony of both the prosecution and the defense make a determination of what happened, not just of some of the things that the prosecution wants you to hear, but of all the facts, because each and everyone of the facts, each and everyone of those persons who testified, their testimony is interrelated.

What do I mean by that? If I were to ask you: Does each and everyone of you see my hand? Members of the jury, now from that perspective I am sure you are saying, "Yes, we see your hand."

All that I am asking you to do is to reserve

Page 51.

making an opinion like that, because what you see is just one side of my hand, just one side. At this point what we want to do is to turn the hand around so that you can see both sides of that hand, so that you know, in fact, what it is that you've seen, what it is that you've heard before making any decision whatsoever. For that I would ask you to listen and to listen closely, as to the cross-examination that has been conducted both of the prosecution's witnesses as well as the witnesses that are going to testify here.

The witnesses that you will hear are witnesses that have been available to the prosecution. You will see that the prosecution has interviewed these witnesses, that they have given statements to the prosecution. For one reason or another, the prosecution has decided not to present those witnesses to you.

So, what we are going to do is to present those witnesses to you so that you have an opportunity of making a decision. You recall you have the power exclusively to decide what the facts are, what the facts were, on December the 9th, 1981, at about 4:00 a.m.

I ask you to do that in the name of justice. Thank you.

Page 52.

THE COURT: May I see you at sidebar, please?

(There was a sidebar conference, out of the
hearing of the jury, and reported as follows)

THE COURT: I just wanted to ask you if you wanted me to say anything about him not being here or whether you think this would just be calling it to their attention again. I have said it so many times.

MR. JACKSON: I thought that he was out.

THE COURT: He came back for a little while on Saturday. What do you want to do?

MR. JACKSON: I think at this point since we have started I would rather not.

THE COURT: You don't want to do it?

MR. JACKSON: No.

MR. MC GILL: I did indicate before Mr. Jackson opened, I went to him and I said, "Do you want that instruction?" and at that point he did say he did not. He indicated he did not want the instruction at the time, at which point I did not call sidebar, because I thought it would be further delay. Is that right?

MR. JACKSON: That's right. It was because and -- and, it was probably my fault. I thought he was out on Saturday.

Page 53.

THE COURT: He was in for a little while. He was out for a little while, and, then, he came in.

MR. MC GILL: It wouldn't be any problem if you wanted to say it now, Judge.

THE COURT: Do you want me to say it again?

MR. JACKSON: I guess maybe I better.

THE COURT: OK.

(The proceedings were resumed in open court as follows):

THE C0URT: Members of the jury, you are not to draw any adverse inferences from the absence of the defendant. You should further refrain from any sympathies, bias, or prejudice for or against the defendant.

Mr. Jackson?

MR. JACKSON: Yes, Your Honor. The defense would call Dr. Anthony Coletta.

-----

DEFENDANT'S EVIDENCE

-----

ANTHONY V. COLETTA, M.D., sworn.

DIRECT EXAMINATION

BY MR. JACKSON:

Q. Dr. Coletta, on December the 9th, 1981, where were you

Page 54.

Coletta - Direct

employed, sir?

A. Thomas Jefferson University.

Q. And, what was your position there, sir?

A. Third year surgical resident.

Q. Could you tell us what a third year surgical resident does and is, or is and does?

A. Well, three years ago I graduated medical school. For the last three years I have been in training to become a general surgeon employed at Jefferson.

Q. Now, on December the 9th, 1981, did you have reason to come in contact with Mumia Abu-Jamal?

A. I did.

Q. At about what time, sir?

A. I think it was around 4:00 a.m.

Q. And, where did you come in contact with him?

A. In the emergency room at Jefferson.

Q. Was it in the treatment room, sir?

A. When I initially came in contact with him, yes, it was in one of the treatment rooms.

Q. And, at the time that you first saw him, for what purpose did you come in contact with him?

A. Well, I was the surgical resident on call that evening, and sleeping in the hospital, and was called to the emergency room via trauma code that something had happened, and I

Page 55.

Coletta - Direct

was to go to the emergency room in the capacity to manage and resuscitate patients in the emergency room that had been injured.

Q. Could you tell us what the trauma code is?

A. We carry beepers, and a special -- I was a sleeper in the on-call room, and a special code came over the beepers indicating to me that there was a trauma code indicating that there were patients in the emergency that had been seriously injured that needed my attention as a surgeon.

Q. Would it be obvious that there is a trauma code when a life threatening situation exists?

A. Absolutely a life threatening situation.

Q. Fine. When you first came into contact with Mr. Jamal, what were your initial observations?

A. I observed that he was seriously injured. I could see that he had sustained a fair amount of blood loss from my own clinical judgment, and I could see that he was seriously injured.

Q. At the time of your initial observation, were you able to immediately determine the cause of that injury?

A. I was able to see that, yes. He had a gunshot wound to the right chest, and I felt that that was part of his injuries. I had my initial observations. I had -- you know, you have to complete the observation of the patient before you

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Coletta - Direct

can make your final assessment.

Q. Did any medical personnel or police personnel prior to your examination, even if it was a cursory examination, did anyone tell you what had happened to him or what injuries he sustained?

MR. MCGILL: Objection, Your Honor, hearsay.

THE C0URT: Sustained.

BY MR. JACKSON:

Q. You made your clinical determination based on your own observation then? Is that correct, sir?

A. That's right.

Q. And, as a result of your examination -- strike that. Could you tell me how you conducted that examination?

A. Well, you approach -- you have to approach it systematically. That's the way we are trained to approach the problem, and you begin by initial cursory examination, head to toe, and take into account the patient's vital signs, which hopefully, by that time had been taken by the nurse, and then you go from head to toe and examine everything, every aspect of the patient's body, and make an evaluation as to what their injuries are.

Q. Doctor, was he fully clothed when you first saw him, sir?

Page 57.

Coletta - Direct

A. It's difficult -- it's difficult for me to remember the state of his clothing. As you can imagine, I think my attention was focused on other areas, so it's difficult for me to remember exactly what the state of his clothing was, because we were trained and the nurses in the emergency room are trained to remove all clothing at once.

Q. OK. Even though you don't recall whether he had his clothing on at the time, you have indicated that you made a cursory examination of his injuries, and I assume, No. 1, you have indicated that you knew that he had sustained a bullet wound? Is that correct, sir?

A. That's right.

Q. To the chest area?

A. That's right.

Q. Additionally, as a result of your cursory examination -- and, maybe you better tell us what a cursory examination means to doctors.

A. Well, it means a quick vital examination of everything that we deem to be very important. You see, the problem in dealing with a life and death matter, you don't normally --- physical examination can take up to a half hour. You don't have a half hour in trauma situations. You have several minutes, and you are trained to key in on those things that you deem most important to try and develop a picture of what

Page 58.

Coletta - Direct

has happened to the patient, so a cursory examination should not imply in any way a half-hearted examination.

Q. OK. Now, as a result of your cursory examination, were there any other injuries that you observed and noted other than the gunshot wound of the chest?

A. Yes, there were.

Q. Could you tell us what they were, sir?

A. He had a laceration of his forehead of about four centimeters or so in length.

Q. Where on the forehead, again, please?

A. I believe in the left upper aspect of the forehead somewhere near the mid line of the head up near the hair line.

Q. Any others, sir?

A. He had swelling over the left eye, a laceration of his left lower lip, and there was soft tissue swelling on the right side of his neck and chin.

Q. Now, you noted that from a cursory examination, again? Is that right?

A. That's right. Again, not cursory to imply half-heart.

Q. So that there had been abrasions -- based on your medical background, sir, is it possible that there were other injuries that a cursory examination would not display or you would not discover?

Page 59.

Coletta - Direct

MR. MC GILL: Objection, Your Honor. Well, I withdraw the objection.

THE WITNESS: Let's say that there were -- it's possible that there were not other serious injuries in a life threatening nature. You know, I had a patient that was seriously wounded, and if I had seen an abrasion, I might have just gone over it, because I realized that it was not primary on the list of what I had to treat.

BY MR. JACKSON:

Q. And, you would not note it necessarily? Is that correct?

MR. MCGILL: I would object, Your Honor. We are talking about this case.

MR. JACKSON: I am talking about this case.

THE COURT: Rephrase your question. Rephrase your question.

BY MR. JACKSON:

Q. Again, Dr. Coletta, if there were abrasions as you have indicated -- well, if there were abrasions on Mr. Jamal given the life threatening nature of his other injuries, should I assume from your testimony thus far that you may not have made a note of it?

A. I may not have. We are trained to keep very complete

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Coletta - Direct

records, so if I had seen and if it had impressed me, I would have written it down.

Q. And, you don't recall, obviously, if there was an abrasion or some discoloration of a portion of the body?. Where there was clothing, you would not have seen it? Is that correct?

A. No. But, I think, Mr. Jackson, that we have to get something straight, and that is my cursory examination only takes place after all the clothing has been removed.

Q. And, did you do that?

A. Myself and the nurses. I don't recall exactly who it was that did it, but that's one of the initial steps.

Q. Now, when you first saw Mr. Jamal, was he coherent?

A. Yes, he was.

Q. And, doctor, the injury that you were most interested in was what, sir?

A. The gunshot wound to the chest.

Q. Now, before we get to that gunshot wound of the chest, sir, you have indicated that there was a laceration over the left eye, is that correct, or the left forehead?

A. The left forehead; that's right.

Q. It was about how long, sir?

A. From my measurements, about four centimeters.

Q. Do you recall whether or not you sutured that?

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A. Eventually I did.

Q. Do you recall how many sutures you used?

A. No

Q. When you first saw him, was the -- was there blood on his face?

A. Yes, there was.

Q. How much blood?

A. There was some blood on his face. He was not hemorrhaging from his head.

Q. And, when you say "not hemorrhaging from the head --""

A. In other words, I didn't see active, ongoing bleeding from the lacerations. There was some oozing of blood, but there wasn't an extraordinary amount. There was not enough blood coming from his head to explain his clinical condition.

Q. Now, Doctor, that injury to his forehead -- based on your medical experience, what type of instrument or -- could you estimate in any way the nature of that injury, the source of that injury?

A. The only thing I can say to answer that question is that it's difficult to say. We refer to it as penetrating trauma as opposed to blunt trauma. It penetrates the skin, but it could have been caused by anything.

Q. Now, penetrating trauma -- is there some way --

A. Just that it penetrated the skin as opposed to blunt

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injury, but there is no way really that I could say where that or how that has occurred. It would take a significant amount of force of any means in order to do it, but, you know, it is the same way you get cut on the face.

Q. Now, you've spoken of penetrating trauma as opposed to blunt injury trauma, suggesting that if a blunt instrument or object was used to cause it that would not be the injury that you observed? Is that right?

A. It's difficult to say. The only way -- when you say penetrating trauma, it means there was penetration of the skin. That could be done in any number of ways.

Q. Was there any -- the laceration itself -- was there any way that you could determine whether it was an even or uneven laceration to suggest that an instrument might have been used?

A. OK. I can answer that. If -- say if someone takes a knife and he causes an injury to the skin with a sharp knife, obviously the laceration is a sharp, even laceration. Otherwise, a different object other than something very sharp might cause a more irregular type of laceration.

Q. Well, doctor, if a --- let's assume for a moment, again based on what you have testified thus far that there may

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have been a blunt instrument that caused this injury. Would there be some consequent swelling along the laceration itself?

MR. MC GILL: Your Honor, I would object to that; I think you should ask: would it he consistent?

MR. JACKSON:

Q. Would it be consistent?

A. Blunt injury would tend to cause -- I guess you could say that blunt injury would tend to cause more swelling. The problem is whenever you injure the body, the body responds to the injury.

Q. Was there significant swelling?

A. Yes, there was. Around the laceration?

Q. Yes.

A. There was some swelling.

Q. Would the swelling you noted be consistent with a blunt instrumentality?

MR. MC GILL: Objection. It's too speculative, Your Honor.

MR. JACKSON:

Q. Doctor, if I told you that the man -- if I told you that the man was hit in the head with a walkie-talkie, would the laceration be consistent with someone being struck by a walkie-talkie?

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A. I would be speculating, but, yes. As I said, there is no way for us to know exactly what the cause. Any firm object, anything hard, that is used with a good deal of force could do it.

Q. What if I had said: Would the injury be consistent with someone's head being accidentally ran into a pole?

A. Yes, it would be that as well.

Q. It would not be any -- that would not be a blunt injury trauma?

A. Yes, that would be blunt, but you should not mistake me when I say the difference between penetrating and blunt trauma is just the fact that the skin has been penetrated. Blunt instrument can cause penetrating trauma.

Q. OK. Let me ask you this: The laceration that you saw, if possible -- and, I know this may be difficult for you -- can you in any way estimate for us whether the injury you noted was more consistent to someone being struck by a walkie-talkie or is it more consistent with someone whose head was run into a pole?

A. I could not make that distinction.

Q. Fine. Now, let's move on, if we could, doctor, to the injury to the chest. Could you in some way demonstrate for us if you don't mind standing and perhaps showing the jury members

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where the bullet wound to the chest was?

A. The wound -- the entrance wound was right below his right nipple on the right chest, just below the nipple. We describe it in relationship to the clavicle. It was about the midaspect of the clavicle, if you draw a line right down.

Q. Doctor, while you are standing, first of all, did the bullet strike any bone that you could detect?

A. Not that I could detect initially, no. I mean, there was no way, really, to know.

Q. OK. Now, Doctor, the bullet, as I understand it, after entering the right below the nipple, below the right nipple, it ended up -- it came to rest somewhere near his back or in his back? Is that right?

A. That's right.

Q. Now, doctor, you observed where the bullet came to rest, is that not true, or you were able to determine where the bullet came to rest? Is that true?

A. Mumia told me where it came to rest.

Q. Because he could feel it?

A. Yes.

Q. And, he pointed to his lower back? Is that not true?

A. I asked him where else he hurt, and he indicated that that was the region where it hurt.

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Q. And --

A. Could I sit back?

Q. I am sorry. One other question before you sit down. That's the reason I didn't want you to think I was going to have you standing. The bullet came to rest in his back. Based on the entry wound just below the right nipple, was the bullet where it came to rest lower than where it entered?

A. Yes, it was. It was lower. Not a great deal lower, but I would say that it was lower.

Q. How much lower, sir?

A. Well, if I could for a minute just indicate. If you think of the vertebrae of the back, there are twelve of them, twelve thoracic vertebrae, and if we use those as guidelines, the bullet was lodged around the twelfth thoracic vertebra in his back, and this entrance wound would he somewhere, I guess, around the sixth or seventh thoracic vertebra, if you drew a line across.

Q. If you could somehow -- I know we used to see it in cartoons. When an arrow goes in, someone tells where the entry wound was, and where the bullet -- if you could do that.

A. The entrance wound was there (indicating), and the bullet was lodged approximately there (indicating). I say it is approximate.

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Q. Would it be fair to say it might have been four to five inches lower?

A. It would be difficult for me to say. I guess that would be a fair estimate, but it's just an estimate.

Q. Fine. Thank you. You may return to your seat, Doctor. Doctor, I realize you are not a pathologist but would it be fair to say from the entry wound and where the bullet came to rest that the bullet had a downward projectile?

A. Yes.

Q. And, there was nothing to interfere -- strike that. You have indicated from what you could determine the bullet never struck any bone or anything else that would cause the bullet to unnecessarily be lowered in its trajectory? Is that right?

A. It's -- that's a difficult thing for me to determine. Those bullets can ricochet in any number of different ways, and I have to emphasize that I am not a ballistics expert, and, you know, for my initial -- when they tumble -- the bullets tumble, and so forth, it appeared to be somewhat in a straight line, but I mean, really, I don't think I could honestly say it was exactly in a straight line.

MR. MCGILL: I have to object to "appear," then, based on his statement of his qualifications.

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MR. JACKSON: Fine.

BY MR. JACKSON:

Q. Based on your medical experience, you have indicated it appeared to be a straight line from where the bullet entered to where it came to rest? Is that right?

A. For the most part.

Q. Doctor, can you tell us what Mr. Jamal's condition was when you first saw him in terms of his vital organs?

A. It was critical.

Q. And, by "critical," would you tell us what you mean by "critical"?

A. Meaning he had sustained a significant amount of blood loss, and in my estimation, you know, if something wasn't done, he would have died.

Q. How soon, sir?

A. That's difficult to say.

Q. What did you immediately do to stabilize his condition if anything?

A. Did general resuscitation, resuscitative measures we are taught to do on anybody who is struck in the chest. We pay particular attention to the secure airway, and that he was breathing properly, and put extra venous lines in and began resuscitation with intravenous fluid. We drew blood work in order to get blood

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ready to give him if needed, and I placed a chest tube in the right side of his chest.

Q. Were there police in the immediate area while you were conducting -- while you were performing your tasks, sir?

A. Yes.

Q. And, what if anything were they doing?

A. They were standing at the side and observing.

Q. Was there any conversation between the police, any of the police, and Mr. Jamal?

A. None that I remember.

Q. Now, why is it you say none that you remember? Is it just because you don't remember?

A. Well, you have to understand that my attention was absolutely riveted on my patient.

Q. I understand that.

A. And, there was a good deal of things going on that night, and my attention was undivided from my patient, so a lot of things could have gone on that I was unaware of. I was only aware of two people in that emergency room.

Q. Now, you had some discussions or some words between Mr. Jamal and yourself? Is that right?

A. Yes, I did.

Q. And, by the way, in that chest area, were there any

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other injuries that you noted other than that caused by the bullet itself?

A. No.

Q. And, could you tell us what injuries the bullet itself caused, its path, the path of the bullet, what injuries it caused?

A. It went --

MR. MCGILL: I would object, Your Honor, as being irrelevant. Where it went and where it ended up may have some relevance, Your Honor, but the injuries don't.

MR. JACKSON: What he was able to do, what he was not able to do -- I want to find that out.

THE COURT: I'll allow it.

MR. MCGILL: The effects would be relevant as opposed to the injuries.

THE COURT: Well, he is going into that.

MR. JACKSON: Yes. I want to find out, first:

BY MR. JACKSON:

Q. Again, would you tell us the path of the bullet, what injuries it caused, and, then, I will have another question for you, to satisfy Mr. McGill.

A. In entering his right chest, it went through his right

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diaphragm, through his liver, and lodged in his back.

Q. And as a result of that, do you have some estimate or some suggestion as to whether or not it was a debilitating injury?

A. He was debilitated in what sense? I am not sure I understand.

Q. In any way. In other words, a person who sustained an injury like that -- would he be able to carry on his normal functions?

MR. MCGILL: Objection. At what time?

MR. JACKSON: After the injury.

THE COURT: Immediately?

MR. MCGILL: Immediately?

MR. JACKSON: I want to find out what he would be able to do immediately after the injury. Would he be able to carry on his normal body functions?

THE WITNESS: It's difficult to estimate. The bottom line, I think, depended on a few things. Did his lung collapse when the bullet went through? Sometimes it does, and sometimes it doesn't. How fast did he lose blood when the bullet entered his liver? If a major artery is cut, he could die instantly. In other words, it depends on the rate of

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blood loss. Primarily, it is two things: the breathing and circulation.

BY MR. JACKSON:

Q. At the time you first came in contact with Mr. Jamal, you said that you noted immediately that there was a substantial blood loss? Is that correct?

A. Yes.

Q. Suggesting, then, that the bullet wound was, indeed, a debilitating injury? Is that correct?

MR. MCGILL: Objection. That's not what he said.

THE COURT: Rephrase your question. Let him answer it.

MR. JACKSON: Fine.

BY MR. JACKSON:

Q. You indicated that there was substantial blood loss which you immediately observed in Mr. Jamal? Is that correct?

A. Yes, in the sense that just by looking at him and seeing enough patients in that situation.

Q. A person is called anemic, or something like that?

A. That's right. The skin gets clammy and that sort of thing.

Q. As a result of your observations, your immediate observations, could you in any way estimate what his condition

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was at the time that he received the injuries?

A. There was no way I can estimate that. The only thing I can do is observe the condition that he was in when I saw him.

Q. OK. When you first saw him, what observable movement did you see?

MR. MCGILL: I would object.

MR. JACKSON: Let me --

MR. MCGILL: To the relevance at the time that he examined him. It's irrelevant.

MR. JACKSON: It's still relevant for the same reason.

THE COURT: Try to rephrase your question.

BY MR. JACKSON:

Q. Doctor, at the time that you first saw him, was Mr. Jamal debilitated? Was his ability to control and move his bodily organs and limbs intact? Could he do that?

MR. MCGILL: Objection. Irrelevant.

THE COURT: I will let him answer that.

THE WITNESS: He was weak. He could move, but he was weak. From the fact -- one of the things that we examined in the cursory examination was: Can he move? Is the bullet in his spine? If the bullet was

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in the spine, he could not move his legs. But, he could move all four extremities.

Q. But, you say he was weak?

A. Yes, he was.

Q. Is there any way that you can suggest to us how weak he was as opposed to how one is normally? I know everyone is different, and all of that, but is there any way in terms of a five to fifty-five scale where he was in terms of weakness or strength?

MR. MC GILL: Objection, sir. Irrelevant at that point.

MR. JACKSON: Your Honor, it is, indeed, relevant.

THE COURT: May I see you gentlemen?

(There was a sidebar conference out of the
hearing of the jury, and reported as follows):

THE COURT: Where are you going?

MR. JACKSON: The issue of what he was doing in the hospital when he was brought into the emergency ward, flailing his legs and his arms, and things of that sort. I am trying to find out whether or not at the time that the doctor examined him whether or not his examination would be consistent with one being able

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to do that.

MR. MC GILL: All right. That is relevant.

THE COURT: He has already said that, that he was.

MR. JACKSON: That he was able to move.

THE COURT: He said all four extremities.

MR. JACKSON: He said he was weak, and I am trying to find out how weak for that reason.

THE COURT: Sometimes people are weak, but if they are strong willed --

MR. JACKSON: That is beyond his expertise.

THE COURT: I know that.

(The proceedings were resumed in open court, as follows):

BY MR. JACKSON:

Q. Dr. Coletta, on a scale from 1 to 5 or 1 to 10 -- I understand this is unusual. But, lay people, the jury and myself, when you say he is weak, 1 being extremely weak, 10 being normal, could you somehow tell us where he was?

MR. MC GILL: I would object, Your Honor. I think it is beyond his expertise at this point.

THE COURT: Can you rephrase that? Rephrase your question. Be more specific.

BY MR. JACKSON:

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Q. Can you tell us in some way given the normal bodily function that one performs on a day-to-day basis -- I mean walking and talking and all of that. If you say, "Tony Jackson was weak," is there some way you can tell us in what way he was weak?

A. I would say you were on the verge of fainting.

Q. On the verge of fainting?

A. That sort of weak; in other words, if you tried to stand him up, he would not have been able to stand up.

Q. Could I possibly punch someone with any force at all?

MR. MC GILL: Objection, Your Honor, as being irrelevant.

MR. JACKSON: I withdraw that question, Your Honor.

MR. MC GILL: Wait a minute.

THE C0URT: Just a minute. Don't get excited.

MR. JACKSON: I withdraw the question.

BY MR. JACKSON:

Q. Now, you said he was about to faint at the time that you saw him. Now, is that as a result of blood loss trauma or --

A. Blood loss.

Q. Blood loss? I suppose each person's body has a different

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amount of blood in it.

Is there any way that you could estimate for us how much blood he lost from his body?

A. I would say --

MR. MC GILL: Your Honor, I would object. It's irrelevant.

THE COURT: No. I will allow him, if he knows.

THE WITNESS: I would say you could approximate it. Now, from my memory when we put the chest tube in, we got about 500 ccs. or 700 ccs. of blood almost immediately, and there are 5000 ccs. of blood in the normal, healthy human being, so he had lost almost that plus what was in his abdomen, so about maybe one fifth of his blood volume, maybe a little bit more.

BY MR. JACKSON:

Q. One fifth of his blood volume had been missing when you first checked?

A. Yes, but you have to remember that these are purely approximations.

Q. I understand, sir. Doctor, when you first saw Mr. Jamal, was he handcuffed?

A. Yes.

Q. Behind his back?

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A. I don't remember. It was either behind his back or to the stretcher, one or the other. I don't remember which one it was.

Q. At some point in time were the handcuffs removed?

A. Yes.

Q. At what point, sir?

A. At my request initially upon seeing the patient.

Q. And, were they immediately removed?

A. Within about fifteen seconds they were removed, within fifteen to thirty seconds.

Q. And, after the handcuffs were removed, did Mr. Jamal strike out at anyone?

A. No.

Q. And, what did you then do for him, sir? At some point in time you operated on him, did you not?

A. Later on in the day.

Q. OK. Well, why don't you finish telling us how you stabilized him?

MR. MC GILL: I would object. It's irrelevant, Judge.

MR. JACKSON: Your Honor --

THE COURT: Come here, again.

(There was a sidebar conference, out of the
hearing of the jury, and reported as follows):

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THE COURT: State your objection, and I will let him answer it.

MR. MC GILL: Objection is to relevance. This is all done for sympathy for him at this point. We reached the point already as to whether he could move his hands at the time of this particular injury.

THE C0URT: The doctor said --

MR. MC GILL: Anything beyond this, Judge, we are talking about things that happened, two, three, four, five six hours. He has gotten entirely too much as it is, and I object.

MR. JACKSON: Judge, what I need to know is at the time that he became stabilized what his condition was. I can leave it at that. But, Judge, it is going to also go to the fact that once Mr. Jamal was in the hospital, the police officers did something to him.

Now, that is not at all relevant to any statements or anything like that, but there are some things that happened to him in the hospital that are going to be relevant.

MR. MC GILL: Judge, that's irrelevant. Will you rule on it?

MR. JACKSON: Judge, what I am saying to you

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is I want to find out at what point in time -- I want to know when he was stabilized and what he did to stabilize him, and if there were any other medical treatments he gave him to treat any other injuries that he may have had.

MR. MC GILL: What is the relevance, Judge?

MR. JACKSON: So we can document -- well, the relevance is a number of witnesses have indicated that he wasn't injured. Some people said that he was. So, I need to find out from him. He is the doctor.

MR. MC GILL: He has found out, Judge. Anything more -- I will admit about sixty percent of what has been let in is irrelevant, as it is anything more about treatment, condition as the hours goes on, is absolutely irrelevant, and I object to it as merely seeking to get sympathy for the defendant.

MR. JACKSON: Judge, I heard him say he made a cursory examination, and I want to find out after he stabilized his condition what else happened, to find out if there were any other --

THE COURT: Wait a minute. What do all of these other injuries have to do with this case?

MR. JACKSON: That would corroborate the testimony of those witnesses who said that he was

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struck, and it would belie the testimony of those witnesses who said that he wasn't injured.

MR. MC GILL: I don't understand.

MR. JACKSON: If he had injuries, how did he get them?

THE COURT: Well, a lot of ways.

MR. MC GILL: Judge, he already testified to what he has observed, and the records are before Mr. Jackson.

MR. JACKSON: On a cursory examination.

THE COURT: Is there something else?

MR. JACKSON: I want to find out.

THE COURT: What is in this record?

MR. MC GILL: Judge, anything else, any further, is just an attempt to get more, and I would object to this as being irrelevant. Even if there were, which there weren't, it is irrelevant what happened afterwards.

MR. JACKSON: He is going to say it is irrelevant.

THE COURT: Wait awhile. What does that have to do with killing a police officer is what I want to know.

MR. MC GILL: That's what I have been saying.

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THE COURT: What has all this got to do --

MR. JACKSON: Judge, it may not be relevant to the sole issue.

THE COURT: Let's assume -- what does that have do with this case? If he wants to bring a civil suit against somebody, fine. This is not the forum for that.

MR. JACKSON: Sure, and I have no problems with that, Judge.

THE COURT: Then where are you going?

MR. JACKSON: Judge, No. 1, there were alleged statements that were given to Inspector Giordano, and the question is whether or not he was beaten during the time. We have witnesses.

THE COURT: I have already ruled on that.

MR. MC GILL: Judge --

MR. JACKSON: I understand you ruled on that pretrial with regard to the legality of it, but, still the finders of the fact have to make a determination whether or not even if it was legal.

THE COURT: Yes, but the thing is this doctor doesn't know where these injuries come from. He tells you that.

Look! When he was trying to handcuff him,

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they said he was tussling at 13th and Locust. They could have banged his head on the ground. He could have hit is eyes. There are so many things that he could have done.

MR. JACKSON: I just want to know what the injuries were.

THE COURT: Fine.

MR. MC GILL: Judge --

THE COURT: He is not treating him for that.

MR. JACKSON: He treated him for everything.

THE COURT: What is the relevance? I don't care about that. It's relevant only to show that he was shot and he took this bullet out of there.

MR. JACKSON: For the same reason that he was shot, it was relevant to his injuries if Mr. Jamal says that he was beaten and that alleged statements were taken as a result of a beating, if he is saying he had injuries that are consistent.

THE COURT: This guy can't say that.

MR. MC GILL: Judge, let's just rule.

THE COURT: Look! I have ruled. You have gone too far now.

MR. JACKSON: But, Judge, if what this doctor says is different than what the witnesses have said,

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that is credibility.

THE COURT: He said what he did. He saw the eye, the cut ever the forehead. That's it.

MR. JACKSON: That's from the cursory examination.

THE COURT: What are you telling me? You got the report.

MR. JACKSON: I am looking at it for the first time.

THE COURT: Have you talked to him?

MR. JACKSON: They wouldn't let me. That's just the point. There is his lawyer right there. He would not let me talk to him.

MR. MC GILL: Judge, he has reviewed and looked at the injuries. He has stated and the records reflect the injuries which were apparent.

THE COURT: Wait a while. If you think that doctor is going to remember anything that is not in that report --

MR. JACKSON: I don't want him to.

THE COURT: What is in that report that you haven't brought out?

MR. MC GILL: Nothing.

MR. JACKSON: Judge, what I am saying is he

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has testified thus far to the bullet wound and the cursory examination.

THE COURT: No. He said he stitched the forehead. He doesn't remember how many stitches. Do the records show?

MR. JACKSON: But, Judge, I am talking about -- and, he said that -- well, it's not a physical examination. The only way other than the cursory examination --

MR. MC GILL: Please rule.

MR. JACKSON: Do you mind?

THE COURT: You are not going to get anything from him other than what he has in the report.

MR. JACKSON: I understand. But, what I am saying: That is in the report.

THE COURT: What is in the report that you are asking?

MR. JACKSON: I want to find out the other injuries that he sustained.

THE COURT: What other injuries?

MR. JACKSON: I want to find out --

THE COURT: Wait a while. Is there anything in the report --

MR. JACKSON: I know there are other reports.

THE COURT: What is in the report that he has

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not already testified to?

MR. JACKSON: Judge, if you give me a moment to look -- I am only looking at the report for the first time -- strike that. It is not the first time.

THE COURT: Well, go get it. Bring it over here.

(There was an off-record discussion.)

MR. JACKSON: Judge, one of the problems I am having is reading the doctor's handwriting. Will you let me just ask: Were there any other injuries? and, then, I will leave it.

MR. MCGILL: It would be a narrative summary.

THE COURT: What does that have to do with the case? He is saying that the man was conscious. The man talked to him. He is able to talk, so he is able to say something.

The man is able to move his extremities, and whether or not he moved them before out in the hallway when he made this alleged statement or not, this doctor wouldn't know, because that he is not examining.

All he can tell you is he is coherent. He is awake and able to discuss things with him, and basically, that is it.

MR. JACKSON: I just want to know what injuries

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he had; that's all.

MR. MC GILL: This is the narrative summary, Judge.

THE COURT: He said he had the laceration over the forehead, the injury to the eye, to the chin, to the neck, and this gunshot wound.

MR. JACKSON: The question is: Were those the only injuries?

MR. MC GILL: It's in here. This is the narrative summary.

THE COURT: What does this say?

MR. MC GILL: 12/9 to 12/16/81. The physical examination. There it is. I am giving it to him. Now it is easy to read. It's typed.

MR. JACKSON: All right. Let me just ask: Were there any other injuries?

THE COURT: It's right here. He wi11 not tell you anything that is not in this report.

MR. MC GILL: Could you ask him: Were there any other injuries?

MR. JACKSON: That's all I want to know. That's all I want to know.

MR. MC GILL: It's in there.

(The proceedings were resumed in open court,

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as follows):

BY MR. JACKSON:

Q. Dr. Coletta, approximately how long did it take you to stabilize Mr. Jamal?

MR. MC GILL: Objection.

THE COURT: Sustained. Come on!

BY MR. JACKSON:

Q. What other injuries did you note, if any, that Mr. Jamal sustained?

A. The ones I have already been through: the laceration of the forehead and the swelling over the left eye, the swelling of the right side of the neck and chin, and the laceration of his left lower lip.

Q. Any other injuries that you can recall?

A. No.

Q. Are you able to in any way whatsoever to indicate the cause of the swelling to his neck and cheek -- I believe chin?

A. It was to the right side of his neck and the right side of his face. There would be no way for me to say exactly what the mechanism was, except that it was probably caused by blunt trauma, and the tissue swelled in response.

Q. Doctor, were you the doctor who removed the bullet that

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was ultimately removed from Mr. Jamal?

A. Yes.

Q. At what time was that done?

A. I would have to look at the records to remember it. It was at the end of the operation. We operated on his abdomen later on that day, and at the end of the operation after we had finished operating on his abdomen, we turned him on his side and removed the bullet.

Q. The bullet was removed from his side?

A. The bullet was removed from his back, but we turned him on is side. It was removed from the skin.

Q. You gave that bullet to a police officer?

A. Yes.

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

MR. MC GILL: What is the next number?

THE CRIER: C-63.

MR. MC GILL: C-63, please.

(A document was received and marked C-63 for identification.)

MR. MC GILL: Does the Court want to look at this?

THE COURT: No, no.

MR. MC GILL: May I approach the witness?

Page 90.

Coletta - Cross

THE COURT: Surely.

MR. MC GILL: All right.

CROSS-EXAMINATION

BY MR. MC GILL:

Q. Doctor, C-63 -- will you take a look at these, just to use the word "cursory"? Just a quick look at these, please, C-63, and see if you can recall at least what they are.

A. Yes. It's obvious that they are his -- Mr. Jamal's -- hospital record.

Q. OK. In fact, I showed you once before at a prior hearing. Do you recal1 that?

A. Yes.

Q. 0K. May I have them? I am going to refer to some of them, because, rather than referring to page numbers, I'll do it with the Court's permission.

First of all, let me understand what you said. When you saw the defendant, you were able to say that he was alert, right, alert, and you were able to understand what he was saying?

A. Right.

Q. How were you dressed at the time?

A. I was in a scrub suit, surgical scrub suit.

Q. Were you having constant conversation with him?

A. Yes.

Page 91.

Coletta - Cross

Q. As a matter of fact, you have had considerable training, haven't you, in trauma centers?

MR. JACKSON: Objection. His expertise is not at issue, Your Honor.

MR. MC GILL: He has made it at issue.

MR. JACKSON: I object, Your Honor.

MR. MC GILL: All right. You may answer.

THE: COURT: Very well. I will allow him to answer.

THE WITNESS: As a surgical resident, we see a good deal of trauma, so that, you know, I have seen a considerable amount of trauma.

BY MR. MC GILL:

Q. And, have you been in your experience in your residency at all associated with an area that deals with a significant number of trauma cases?

MR. JACKSON: Objection, Your Honor. Again, this is not the expertise for which this witness was offered. If he wants to call him back at a later time, fine.

MR. MC GILL: If his testimony was inconsistent with that, then let's find out what it is.

THE COURT: You can answer it.

BY MR. MC GILL:

Page 92.

Coletta - Cross

Q. Haven't you been to a number of areas where they might be considered rather active trauma areas?

A. Yes.

Q. You have seen a lot of people beat up, haven't you?

A. Yes.

Q. A lot of traumatic injuries where you had to take care of swelling and cuts, didn't you?

A. Yes.

Q. Did this man look at all like he was pummeled or beaten up?

MR. JACKSON: Objection.

THE COURT: Overruled.

MR. MC GILL: Answer the question.

THE WITNESS: Pummeled? I would say, "No."

BY MR. MC GILL:

Q. Let me ask you this: Those injuries that you saw, and as I point this out, if I can, in C-63, I'm referring to the narrative summary which is two pages of which I showed Mr. Jackson, as well as the Court, on the side -- at sidebar --

MR. JACKSON: Objection.

THE COURT: Overruled. Go ahead.

MR. JACKSON: Your Honor, that is not his record. That's someone else's.

Page 93.

Coletta - Cross

MR. MC GILL: Doctor --

THE C0URT: Let's find out. Go ahead.

BY MR. MC GILL:

Q. Doctor, who is your supervisor in this particular point?

A. Dr. --

THE COURT: Quiet in the courtroom, please. Go ahead.

THE WITNESS: Dr. Bruce Jarrell. Can I explain the chain of command?

MR. MC GILL: Please go ahead. Explain the chain of command.

THE WITNESS: I was the surgical resident on call at the hospital that evening, and I was asleep in the hospital. I stayed there overnight.

But, there are -- there is a chain of command on the trauma team. There is an attending physician who is the most senior on the team. Then there is the chief resident who is the most senior resident. They have the luxury of sleeping at home.

And, then, I was the surgical resident who was asleep in the hospital. Dr. Jarrell was the attending surgeon who was called from home

.

BY MR. MC GILL:

Page 94.

Coletta - Cross

Q. Now, the attending physician is essentially your supervisor? Would that be correct?

A. Correct.

Q. And, any information at all that you observed in terms of the injury you gave to him?

A. That's correct.

Q. And, then, he would as the supervisor place it in a report or narrative summary that you see in front of you now? Is that correct?

MR. JACKSON: Objection. He is asking him to tell what someone else did or may do.

MR. MCGILL: Judge, why doesn't he want me to bring it out?

THE COURT: Just a minute.

(There was a sidebar conference, out of the hearing of the jury, as follows):

MR. JACKSON: I just want him to be fair, Your Honor. That's all.

THE COURT: Look! Why don't you ask him if he knows, you know?

MR. MCGILL: What? He gave me information. He gave him the information.

THE COURT: Don't get excited. Why don't you ask him what he told the doctor, or what he said?

Page 95.

Coletta - Cross

Let's do it that way, so we are not looking at somebody else's writing. 0K? You can get it out that way. He knows what he told the doctor.

(The proceedings were resumed in open court, as follows):

MR. MCGILL: May I approach the witness?

THE COURT: Certainly.

BY MR. MCGILL:

Q. Do you recall what you told the doctor in reference to the physical examination?

A. Yes. Everything that I observed, I told him.

Q. Let me show you the notes of the narrative summary.

MR. JACKSON: Objection.

MR. MC GILL: To see if this refreshes your recollection.

THE COURT: Overruled.

BY MR. MCGILL:

Q. To see what you had told the doctor.

THE COURT: He will read that to himself.

MR. MC GILL: Read that to yourself, sir.

THE WITNESS: OK.

BY MR. MCGILL:

Q. What did you tell the doctor?

A. I told him -- now, I told him and he also observed, as

Page 96.

Coletta - Cross

well, the same things I have already described primarily; the laceration of the forehead, the lip, the swelling over the left eye, the swelling of the neck and the wound to the chest.

Q. Was there any palpable fracture or deformity?

A. No. There was no way we could observe, no.

Q. Were there any injured teeth or other injuries?

A. No.

Q. The extremities revealed no other injuries, did it, doctor?

A. No, they did not.

Q. There was no neurological injury, either, was there, sir?

A. None that we could determine, no.

Q. And, using the words here, there was no other significant injury? Is that correct?

MR. JACKSON: Objection. Move to strike. Again, Counsel is reading from the doctor's report that Your Honor has instructed him not to read from, and he is doing it anyway.

MR. MC GILL: Let me explain one thing. This is not only what he told the doctor, but it is hospital records.

MR. JACKSON: Why doesn't Mr. McGill take the

Page 97.

Coletta - Cross

stand?

THE COURT: Rephrase your question.

MR. MC GILL: Maybe he doesn't want the hospital records to be known.

THE: COURT: Just rephrase the question. Let him answer.

BY MR. MC GILL:

Q. These are hospital records, are they not, sir?

A. Yes, they are. Let me explain something about the narrative summary, maybe to the Judge and the jury. The narrative summary is what the attending physician does when he dictates this. He takes the chart and reads from the chart. Essentially, it is a summary.

Q. You put what was in the record?

A. I did the initial history and examination, and the doctor would be quite likely -- much of what he dictated was taken from my history and physical examination.

Q. Whether or not you even authored that particular summary, it is still the hospital records, though?

A. That's right; it is. It's an attempt to try and synthesize in a page or two exactly what happened to the patient while he was in the hospital.

Q. All right. Now, doctor, would it be fair to say that in the narrative summary or in the records in their totality

Page 98.

Coletta - Cross

and from the information that you gave to the doctor that there was no other injury noted at all than what you have mentioned? Would that be correct?

A. Right.

Q. Now, doctor, also, is it not accurate -- and, let me ask you this specifically: If, for example, given this hypothetical, you had a situation there --

MR. JACKSON: Your Honor, I am going to object to the hypothetical.

THE COURT: Well, I don't know what it is, yet.

MR. JACKSON: I would think that this witness has not been offered for that. He is simply a treating physician, Your Honor.

THE COURT: I think he has been offered for more than that. Go ahead. Let me hear the question, first.

BY MR. MC GILL:

Q. Doctor, if an individual -- this particular defendant -- during the course of the time when he was arrested and during the course of the struggle when he was arrested --

MR. JACKSON: Your Honor, not to object, since it is now not a hypothetical, he is talking about this defendant in this case.

Page 99.

Coletta - Cross

THE COURT: That's perfectly all right. Objection overruled. Go ahead. You better start again. OK?

BY MR. MC GILL:

Q. Now, if this defendant or an individual during the course of the time when he was arrested, there was a struggle, and during the course of that struggle in handcuffs his head hit the ground, after which period and during the course of the struggle he is then picked up and taken toward a wagon, and during the course of that time his head hits a pole at which point his head then goes down and his face hits the ground; also, before that happened, an individual comes up and kicks that defendant or that person on the right side of the area of the face and neck, are you with me so far?

A. Yes.

Q. Now, would the injuries and the only injuries on those records and the injuries that you yourself observed, would the injuries that I have just -- that you have seen been consistent with the action that I just told you?

A. Could be, yes.

Q. Now, sir, when you are talking about such blunt force instruments, if you were going to use, say, a night stick, one of those thick night sticks, or, for example, a black-

Page 100.

Coletta - Cross

jack, or something of that nature -- you know what a blackjack is. Do you have a night stick there, Officer.

This is a night stick (indicating). You've seen these. Touch that, that side.

And, you've also seen blackjacks. Is that correct?

A. (The witness nods his head in the affirmative.)

Q. Sir, if such instruments were used with force on an individual hitting or doing or hitting with a blackjack or doing such things of that nature, would you not expect more serious injuries than you saw?

MR. JACKSON: Objection.

THE COURT: Overruled. Go ahead.

THE WITNESS: Yes. I would expect that that would do more damage.

BY MR. MC GILL:

Q. And, as a matter of fact, in the area of the face, that is an area that could receive fractures? Is that correct?

A. Yes. The facia1 bones are fragile bones.

Q. And, there were no fractures? Is that correct?

A. There were none.

Q. Now, you've indicated that the defendant with you was talking and was at that point not screaming or cursing, or

Page 101.

Coletta - Cross

anything like that? Is that correct?

A. That's right.

MR. JACKSON: Objection. He didn't say "at this point." He just said he wasn't.

THE COURT: Rephrase in his presence, or something like that.

MR. MC GILL: Well, yes, in your presence at the time -- at the same time you testified for Mr. Jackson. OK?

MR. JACKSON: Your Honor, it is suggested that he was cursing at some other time, and there is no testimony to that effect.

THE COURT: Rephrase your question.

MR. MC GILL: I was in the same courtroom he was, Judge.

THE COURT: Rephrase your question, please.

BY MR. MC GILL:

Q. Doctor, the question is simply this: When you were talking to him, you were, were you not, telling him you were a doctor?

A. Yes, sir.

Q. You told him you were going to try to save his life?

A. Right.

Q. You told him what was needed to save his life?

Page 102.

Coletta - Cross

A. Yes, I did.

Q. And, you were going to do your best to do it?

A. Right.

Q. You have training to do that?

A. Yes.

Q. You attempted to calm him, the individual, to make him feel a certain amount of feeling toward you, trust?

A. Right.

Q. You were doing this very definitely with him?

A. Yes, intentionally, yes.

Q. And, he was responding to that?

A. To a certain extent, yes, he was.

Q. You had, by the way, no problem at all understanding anything he said? Is that correct?

A. No. I could understand pretty much everything that he said.

Q. And, he -- by the way, did he make any kind of complaints to you at all?

MR. JACKSON: Objection.

BY MR. MC GILL:

Q. Of being abused, beaten, or anything like that during the course of your conversation and your trusting communication with him?

Did he make any kind of complaints to you

Page 103.

Coletta - Cross

about being abused by police?

A. No, he did not.

Q. This was pretty early, wasn't it, doctor? You saw him after he was brought in? Of course, the time you didn't see him he was in the waiting room, but you saw him within a half hour of when he was brought in? Isn't that correct?

A. I guess. I don't know. I was with Officer Faulkner at the time.

Q. Well, let me take a look at this. On these records, these hospital records --

MR. JACKSON: Your Honor, may we see you at sidebar, please?

(There was a sidebar conference, out of the
hearing of the jury, and reported as follows):

MR. JACKSON: I object; No. 1, we don't have the custodian of records to produce those records. They have not been authenticated, and I don't know what he is reading from, so I am not going to let him do it, because if he wants to do it, there is a proper way of doing it.

MR. MCGILL: Let me tell You this: Let's eliminate this objection by telling you, Judge, I will bring the custodian in.

These are records he has seen for a long

Page 104.

Coletta - Cross

while. He knows they are real records. He referred to them during his examination.

MR. JACKSON: I am not saying this --

MR. MC GILL: Let me tell you this: I will bring in the custodian of records on rebuttal, Judge, but, rather than bring this doctor back, I will ask Your Honor to allow me to use that C-63.

THE COURT: As to times?

MR. MC GILL: Other things, too.

THE COURT: OK.

MR. MC GILL: Judge, You can --

THE COURT: I just want to know what you are using it for so I can rule on it now.

MR. MC GILL: Time, maybe some of the things that are stated in the record.

MR. JACKSON: And, he is going to determine that. I object.

MR. MC GILL: If you have an objection as to relevance, the Judge will rule on it.

THE COURT: You have redirect, so if he is

Page 105.

Coletta - Cross

bringing up something that you haven't already brought up, you can then bring it up.

Go ahead.

(The proceedings were resumed in open Court, as follows):

MR. MC GILL: May I approach the witness, Your Honor?

THE COURT: Surely.

MR. MC GILL: I have, by the way, shown the doctor this piece of paper when we went over to sidebar.

BY MR. MC GILL:

Q. Does that not indicate -- first of all, are these your notes?

A. They are nurses' notes as to what went on in that room.

Q. At the time you were there?

A. That's right, a lot of things that she wrote down and I didn't.

Q. OK. There is the notation there of -- that could either be ten, or twenty, couldn't it?

A. Right, right.

Q. What is the time, if you would look at it, please?

A. Well, it looks like initially 4:20; then maybe a 1 was

Page 106.

Coletta - Cross

put there, 4:lO.

Q. So, it is either 4:2O or 4:10?

A. Yes.

Q. That's a.m.?

A. Yes.

Q. That's also on that same day, December the 9th?

A. Right.

Q. There is an indication here, is there not, of another time?

A. Right.

Q. What is that time?

A. It looks like 4:15, I think.

Q. So, it would be accurate to say, would it not, doctor, that that was the time, roughly the time, say, between 4:10 -- let's say around 4:15 when you actually saw this defendant? Is that correct?

A. It was around that time, yes.

Q. Now, during the course of that time period, when you did see him, there was a time when he was brought in that you did not know? Is that correct?

A. That's right.

Q. So, it is true, then, is it not -- oh, by the way, do you know who brought him in?

A. (There was no response.)

Page 107.

Coletta - Cross

Q. I mean, they were brought in by the police, weren't they?

A. Yes. I saw him being brought into the room where he was treated with policemen on either side of him.

Q. And, it would be accurate that you actually saw him at least by 4:20 a.m. to assist him? Is that correct?

A. Yes, at least by then, yes.

Q. So, he was on a table, his life being saved, brought in by the police within -- well, you would say a half hour from 3:5l a.m., wouldn't you, sir?

A. Right.

MR. MC GILL: Again, Your Honor, I am referring to the records. If I walk up here, that's why I am doing it, with the Court's permission.

THE C0URT: Go ahead.

BY MR. MC GILL:

Q. Does that record note to what police officer the bullet was given?

A. Could I take that, please?

Yes, it does.

Q. And, what is the name?

A. Dixon.

Q. Thank you, doctor. Doctor, if I can have the chart of the hospital......

Page 108.

Coletta - Cross

Doctor, this is a sketch that has already been identified as a sketch of the area, the emergency room area, outside the waiting area.

In other words, you come in from the outside here (indicating), indicating what would be the center, and then, there would be the receiving desk on the left. Straight ahead toward the right here is a sliding door area.

A. OK.

Q. Now, back here is the treating facilities?

A. Right.

Q. Now, when you were treating the defendant, you were in one of those treating facilities? Is that correct?

A. Right.

Q. And, there was an amount of time before you actually saw the defendant when he was brought in and waiting for you?

A. Right.

Q. And you were aware of that?

A. Yes.

Q. As a matter of fact, the defendant that was brought in there stopped there (indicating), moved over here (indicating), and moved down in the waiting room area, and eventually came back to where you were? That's what basically it

Page 109.

Coletta - Cross

was?

A. Right.

Q. Now, sir, first of all, during the time that you were there, did you also have other duties?

A. During the time I was in the emergency room?

Q. Yes, before you were seeing the defendant. I think you said you were seeing two people. Who was the other person you saw?

A. It was Officer Faulkner.

Q. And you were also working on him?

A. Yes, I was.

Q. Would it be fair to say that you were so involved in what you were doing with him that you could not hear or see or anything at all of what was happening outside?

MR. JACKSON: Objection, Your Honor.

MR. MC GILL: There is an objection.

THE COURT: I will let him answer it.

BY MR. MC GILL:

Q. I am asking about him. Is that correct?

A. Yes. He had my undivided attention.

Q. And, how did he appear when you saw him?

MR. JACKSON: Objection. Relevance.

THE COURT: I will have to sustain the objection.

Page 110.

Coletta - Cross

MR. MC GILL: Yes, sir.

BY MR. MC GILL:

Q. Now, there was a statement to the effect of that particular -- at least the trajectory. You do not have forensic experience? Is that correct, doctor?

A. That's right.

Q. I am not going to get too much into that area. But, is it accurate to say, sir, that as far as that bullet is concerned, you have no idea of the position of the body of the defendant at the time that the gun was fired? Would that be correct?

A. I would not be qualified to speculate about that.

Q. So, whether or not it went over, bent over with the front forward and the back back a little bit, you would have no way of telling that at all? Would that be correct?

A. I wouldn't.

Q. You don't know what the facts were before then?

MR. JACKSON: Objection as to what someone else --

THE COURT: Yes. He said he is not qualified.

MR. MC GILL: OK.

BY MR. MC GILL:

Q. Even if you were qualified, sir --

Page 111.

Coletta - Cross

MR. JACKSON: Objection. He is not. Objection, Your Honor.

MR. MC GILL: OK. A11 right. I'11 take back that question.

BY MR. MC GILL:

Q. All right, doctor. Now, in reference to the actual bullet itself, when it went into the body, you, I understand, at least from what you had said before, you are unaware whether there would be any kind of ricochet? Is that what you said?

A. Right.

Q. What do you call it? A drop? Sometimes it drops?

A. Well, it turns, and it's the -- it tumbles. It somersaults inside.

Q. OK. And, were you aware that later on after your particular type of your work, the work you had done yourself, that you -- that the defendant had occasion to refuse subsequent treatment?

MR. JACKSON: I'll object, Your Honor, and move for a mistrial.

May we see Your Honor at sidebar? He is telling lies, Your Honor.

(There was a sidebar conference, out of the
hearing of the jury, and reported as follows):

Page 112.

Coletta - Cross

THE COURT: Mr. McGill?

MR. JACKSON: He knows he is wrong.

THE COURT: Where are you going?

MR. MC GILL: I would object, Your Honor, and ask for immediate instructions to the jury.

MR. JACKSON: Remove the jury, Judge.

THE COURT: Take a five-minute recess.

MR. MC GILL: He is not going to say this and get away with it.

THE COURT: Where are you going, anyway? What does all of this have to do with it? Why get yourself upset?

MR. JACKSON: Judge, that is terrible to say that.

THE COURT: Make an objection; that's all.

MR. MC GILL: Judge, I would object and ask for an instruction to the jury.

THE C0URT: Where are you going?

MR. MC GILL: Let's deal with his comments.

THE COURT: I asked him not to make any comments. But, where are you going? What is the relevancy of all of this?

MR. MC GILL: He is saying that he was very calm and quiet as if he was unable to do things, and I

Page 113.

Coletta - Cross

wanted to be sure it is clear that he was not that way.

THE COURT: What do you mean?

MR. MC GILL: First of all, I ask for an instruction. He used words like "this lies." Judge, I want an instruction to the jury. In the records it says that he refuses consent to surgery.

THE COURT: Wait a while. What is your objection to that?

MR. JACKSON: NO. 1, I renew my objection that these weren't the records. It wasn't that he refused consent. He wanted his sister to come and find out what they were doing. He had the surgery.

THE COURT: We know that.

MR. JACKSON: Why is he going to say he refused, because he didn't say it right away? That's a refusal? That's what it sounds like; he is refusing.

THE C0URT: He may have refused, and then he may have changed his mind.

MR. JACKSON: It is not a refusal.

THE COURT: What do the records say? Why don't you ask him whether he refused?

MR. JACKSON: No, he didn't refuse him. That's the point.

Page 114.

Coletta - Cross

THE COURT: Then bring somebody else in to prove that.

MR. MC GILL: OK.

THE COURT: I don't think you should ask this doctor that if he doesn't know.

MR. MCGILL: All right, Judge. I won't go into it any further, but I am telling you --

THE COURT: I don't even see what the relevance of it is.

MR. MC GILL: What I am asking you, Judge, is this --

THE COURT: Where are you going?

MR. MC GILL: May I finish talking? There have been several spots in this particular area there. There was refusals to the surgery.

THE COURT: What does that mean?

MR. MC GILL: Arrogance.

THE COURT: Oh, no, not necessarily, not necessarily. It is not that important.

MR. MC GILL: OK, Judge. I will withdraw it, but I would like an instruction to make it very clear.

THE COURT: I will make an instruction to disregard the outbursts.

MR. JACKSON: By either attorney, because he

Page 115.

Coletta - Cross

has been doing it, too.

THE COURT: OK.

(The proceedings were resumed in open court, as follows):

THE COURT: Ladies and gentlemen of the jury, you will please disregard the emotional outbursts by both attorneys. As I told you before, I want you to consider only what comes from the witness stand. Their outbursts are not evidence. You are to disregard that. Go ahead, please, gentlemen.

MR. MC GILL: I apologize, Your Honor.

BY MR. MC GILL:

Q. Dr. Coletta, I am not going to keep you too much longer. The -- you did indicate that there may be a debilitating effect as a result of blood loss. Is that correct?

A. That's right.

Q. Now, it would he correct, of course, that a blood loss would naturally occur after a period of time from the initial injury? Wouldn't that be correct?

A. Right, a period of time.

Q. So, immediately at the time of injury, for example, there may well not be any kind of change in the one's ability to function immediately, that is?

A. That's right. It depends on the rate of the blood loss.

Page 116.

Coletta - Cross

That's the key.

Q. And, you saw the defendant some, as you mentioned -- well, let's say around about a half hour, maybe a little bit more, but a half hour afterwards, after, let's say, as I just mentioned, about 4:20?

I think that's the time we are talking about, 4:15 or 4:20?

A. That's right.

Q. And, it is also consistent, would it not be, doctor, for someone who has had blood loss -- I mean, it is not constant? Immediately because of the blood loss or the fact of extensive blood loss that their action, their flexibility their ability to move their limbs would immediately be affected?

A. It just depends on the rate of the blood loss, as I said before. If they hit a major artery, they lose blood very rapidly, and they lose control very quickly. It depends on the rate that the patient loses blood.

Q. In connection with this, you mentioned that you actually saw him move his arms and legs?

A. He was moving all four extremities.

Q. And, doctor, you were present and you were asked by Counsel whether or not you saw police in the room. Is that correct?

Page 117.

Coletta - Cross - Redirect

A. Yes, there were.

Q. And , you did see police?

A. Yes, I did.

Q. And, did you have occasion to see the police throughout the hospital during the course of your attempts to treat both Officer Faulkner as well as the defendant?

A. I did.

Q. And, I would ask you if you would tell the jury from your own personal observations, your own personal knowledge what you heard and what you saw, how you would from your personal experience characterize the behavior of the police that you saw?

A. From what I saw in the emergency room and throughout the time that I was involved in treating Mr. Jamal at the hospital, the police never once, never once, interfered with what I had to do to save his life, and in my mind, they were -- they acted as truly as professionals. I can say that.

MR. MC GILL: Thank you, sir.

THE COURT: Any further questions?

MR. JACKSON: Oh, fine.

REDIRECT EXAMINATION

BY MR. JACKSON:

Q. Dr. Coletta, can you tell me what is a palpable fracture?

Page 118.

Coletta - Redirect

A. Well, a deformity, a palpable deformity, different from what the normal lines of the bone are.

Q. OK. Now, did you say that there were no palpable, fractures?

A. No palpable fractures, right.

Q. At all?

A. Right.

Q. And, was there anything significant about the upper extremities when you examined him?

A. None that I recall.

MR. JACKSON: May I see your report for a moment, please?

Your Honor, may I approach the witness?

THE COURT: You may.

BY MR. JACKSON:

Q. Doctor, there is some reference to upper extremity there. Could you explain to me what that is?

A. That is an angiotube. That's a catheter which is put into the big veins in the arm in order to give fluids, so it says No. 14 angio to each upper extremity.

Q. OK. Fine. I justed wanted to know that.

Doctor, in your experience, is it possible for a person to receive injuries that are not reflected in a palpable fracture of some sort?

Page 119.

Coletta - Redirect - Recross

MR. MC GILL: Objection, Your Honor.

THE COURT: No. He may answer it.

BY MR. JACKSON:

Q. In other words, are there blows that someone would sustain that would not result in a palpable fracture?

Q. Yes.

A. Now, doctor, you've indicated that when Mr. McGil1 asked whether or not the injuries that Mr. Jamal had were consistent with the scenario that he gave you, you said, "Yes"?

A. Consistent with it, yes.

Q. Fine. And, it would be equally consistent that the injuries could have been sustained in some other way? Is that true?

A. Yes.

MR. JACKSON: No further questions. Thank you very much, doctor.

MR. MC GILL: One other question, doctor, if I may.

RECROSS - EXAMINATION

BY MR. MC GILL:

Q. You said you usually treat someone with their clothing off.

MR. JACKSON: Objection. Beyond the scope,

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Your Honor.

MR. MC GILL: May I reopen just for that area Your Honor?

THE COURT: Wel1, just wait. I don't know where you are going.

MR. MC GILL: Just the clothing, sir, nothing more.

THE COURT: All right. He has already answered that, but go ahead.

MR. MC GILL: OK.

BY MR. MC GILL:

Q. Do you usually treat patients with their clothing on or off?

A. Off.

Q. Did you not know the state of the clothing as you entered the room? Is that what you are saying?

A. I paid no attention to it as I entered the room.

MR. MC GILL: OK. Thank you.

MR. JACKSON: I have nothing further.

MR. MC GILL: Thank you, doctor. Sorry to keep you this long.

MR. JACKSON: Defense calls Dessie Hightower.

-----

DESSIE HIGHTOWER, sworn.

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Hightower - Direct

DIRECT EXAMINATION

BY MR. JACKSON:

Q. Good afternoon, Mr. Hightower. Sir, let me direct your attention to December the 9th, 1981, at about 3:50 in the morning. Do you remember that day, sir?

A. Yes.

Q. Where were you at or about that time?

A. At or about that time? Is this in reference to where I was getting out of a car?

Q. Let me start it off, please: Do you recall being in area of 13th and Locust Street?

A. Yes.

Q. And, were you there with someone else?

A. Yes.

Q. Who vas the other person?

A. Robert Pickford.

Q. And, for what purpose were you in the area of 13th and Locust?

A. We were going to pick someone up at the club, but by the time we got to the Whispers Club, which was on 13th and Locust, it was closed.

Q. OK. Now, when you got there, the Club was closed, and Mr. Pickford was walking with you?

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A. Yes.

Q. OK. Did you hear some gunshots?

A. We heard gunshots on our way back to the car. We were in the parking lot, going into the car. I heard a series of three consecutive gunshots, then a pause, and one. All together, I guess it was five bullets.

Q. Five shots?

A. Yes, three consecutive and a pause between the last two.

Q. You are reasonably certain that's what it is you heard, sir?

A. Yes, reasonably certain, yes.

Q. After hearing the shots, what did you say or do?

A. Well, at first I told my friend -- I think I said, "I think it's firecrackers."

That's when the first two went off -- the third one. Before the fourth, I said, "That sounds like somebody shooting a gun."

OK? Then, the last -- after the fifth round went off, I looked around the corner to see what I could see to see if I seen anything happening.

At that time Mr. Pickford was -- I was coming out of the path of the side of the car. Mr. Pickford was already in the driver's side. I had to walk back around the

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car. I right at the wall, and I looked around the wall, and it seemed that there is a hotel there. I can't recall the name of the hotel.

Q. Can I interrupt you for just a moment so that we can get a diagram and maybe the jury can understand what you are talking about?

OK. This is Locust Street (indicating). This is 13th (indicating). This would be where Whispers is (indicating).

A. OK.

Q. Now, the parking lot that you are talking about would be this area (indicating).

A. Right, yes.

Q. I'm sorry. If you might use this pointer.

A. OK.

Q. Sir, we can't hear you.

THE COURT: Just a minute, sir. We can't hear you. Now, speak into that mike.

THE WITNESS: OK.

THE COURT: Go ahead.

THE WITNESS: The Whispers Club would be somewhere along here on 13th Street (indicating). OK? The parking lot is in back of the Whispers Club. OK? From the viewpoint where I was at, I would be

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Hightower - Direct

able to clearly see across the street to where the incident happened.

BY MR. JACKSON:

Q. And, where did the incident happen from what you could see, sir?

A. It happened somewhere along here (indicating).

Q. No. This is Locust.

A. This is Locust Street? Excuse me.

Q. So you know, this is north, south, east, west (indicating). Ok?

A. OK.

Q. OK.

A. It would be around here (indicating).

Q. OK. Now, do you recall seeing any cars?

A. Any cars?

Q. Yes.

A. The only cars I recall seeing is when the police approached the first police officer came on the scene, but this is by seeing the officer pull up behind the Volkswagen.

Q. You did see that?

A. Yes, I did see that.

Q. And, it was sometime after that that you heard the gunshots?

A. Yes. I really didn't pay it much attention. I thought

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it was, like, a routine check, and I seen him get out and walk toward the Volkswagen door, like he was motioning to hold the door. I didn't pay it any attention, and, then, went back to the parking lot. That's when I heard the gunshots.

Q. After hearing the gunshots, you came back to, I guess, to what would be Locust Street facing east on Locust Street?

A. Yes, east on Locust at the corner of the Whispers Club.

Q. What did you see?

A. I seen the officer pull up, the first officer pull up. After that, the streets were pretty full with police officers.

Q. 0K. Before the Police officers arrived, did you see anyone leaving the scene?

A. Going back to the hotel. To the best of my recollection at this point in time, it was three. I had seen somebody with a red and black sweater on. It was so -- it was a very brief -- I'd say I glanced for maybe a second or two. I didn't really pay it full attention.

The first was going in the opposite direction from where the incident happened at. It was apparently the friend had realized it could have been a female with the braids in her hair.

I really didn't pay that much attention. The person looked to be about the height of five nine, five

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Hightower - Direct

ten, somewhere around there.

Q. In which direction did the person run, when you say the person ran in the opposite direction?

A. Then they ran -- the car was parked here (indicating). They ran this way (indicating).

Q. Towards 12th Street?

A. Yes, towards 12th Street.

Q. Is the hotel on the same side of Locust Street or the opposite side?

A. The same side.

Q. Did you see the person enter the hotel?

A. No. They didn't go into the hotel. They ran by it. The only reason why I managed to see what they had on was there was a light there.

Q. And, what color did they have on?

A. Red and black sweater.

Q. Read and black sweater?

A. Right. I really could not see the pants or anything like that.

Q. OK. When you first looked, did you see anyone else move?

A. Is this after I seen the person?

Q. Yes, after you saw the person run away.

A. No, but about maybe ten seconds later, that's when the

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first officer came on the scene.

Q. How close did you -- after making that view -- by the way, when you made that observation, where were you?

A. I was in the parking lot. It's a big wall there at the parking lot, and I was looking around the wall.

Q. Kind of sneaking your head around?

A. Yes, yes.

Q. And, did you see anyone else standing at or near the person whom you saw run towards the hotel?

A. No, no. It was just one person I seen run down through the hotel light.

Q. Now, after that observation, you indicated that you then saw police arrive to the scene?

A. Yes.

Q. How close did you get to the officer who was shot?

A. I was by that time -- I was approaching the corner of the Whispers Club. At the time I seen the first officer arrive, because I didn't hear any more shots go off, so I thought there wouldn't be any more shooting. I was walking towards the corner of 13th and Locust.

Q. After those officers arrived, did you go closer to the scene?

A. Yes. I walked across the street. I was direct across the street from the Volkswagen.

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Q. And, did you enter Locust Street, or was it in the store on the sidewalk?

A. I was on the sidewalk.

Q. Now, did you have an opportunity to see officer Faulkner?

A. Only when the Officers brung him from the back of the car taking him to the van. I didn't see him prior. I seen him when he got out of the car and walked over, and that's it.

Q. Now, when the Officers were taking him to the van, you had an opportunity to see him?

A. Yes, I did.

Q. Did you then have an opportunity to look at his holster, sir?

A. Well, I could maybe look at Officer Faulkner's holster. He was slumping over, and one of the Officers grabbed him to hold him up. Yes, I did see his holster.

Q. Was the gun in his holster?

A. Yes.

Q. Another thing: Did you see Mr. Jamal? Did you see what if anything happened to Mr. Jamal? Let me strike that. When did you first see Mr. Jamal?

A. I first seen Mr. Jamal when they brung him from the back side of the Volkswagen. That's when I first caught

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sight of him. I seen his brother standing up, but I didn't see Jamal.

Q. Now you are telling me -- I am asking you about Jamal and you made reference to his brother. First of all, at the time that this happened did you know either of these individuals?

A. No.

Q. Did you know who it was?

A. At the time it happened?

Q. Yes.

A. No.

Q. So, now you are mentioning these names as a result of your being subpoenaed to court and the newspapers and thing of that sort?

A. Yes.

Q. OK. Now, when you saw Mr. Jamal being carried by the police, describe to us how they were carrying him and what was happening to him.

A. OK. Well, let me take that back one step to make the picture clear to everyone. At the time of the -- when the police officers were apprehending Jamal, to me the first officer came on the scene. He told everybody, "Get away. Get away," and, then, a lot of police came. OK?

I'd say approximately about eight or nine

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police officer apprehended Jamal. I thought they was rather rough apprehension.

Q. Explain that.

A. As far as rough, the attack that that word used. I seen that when they pulled Jamal from around the back side of the Volkswagen, there was clear evidence of enough space to pull Jamal through.

It was a no parking sign, a pole, there. And, it was enough space for them on the back side of the Volkswagen to that parking sign to get him through, but I don't know. Maybe it was just whatever he hit his head against the pole.

Q. Did you see the police officers strike him?

A. Yes, several times.

Q. How many police officers?

A. It was, I say it was, eight to nine officers, and they all was standing around. I can't say three or four were hitting him. I really can't say. I just seen them.

Q. What were they striking him with, sir?

A. Various things, clubs, feet. They had him by the dread locks.

Q. They were holding him by his hair?

A. Yes.

Q. You saw then kicking him, as well?

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Hightower - Direct

A. Yes.

Q. Was that before or after they accidentally ran his head into the pole?

A. This was before. On the way to the van, when they put him in the van, that's when the incident with his head happened.

Q. Did you see Mr. Jamal in the van?

A. Yes. I think a Captain -- I don't remember. He had on a white shirt. I don't really know the way that goes. He opened the van as a couple of us was there and said, "Is this the one who shot the officer?"

And, I couldn't say, "Yes," because I didn't see the officer actually shot.

Q. Did you notice whether in fact Mr. Jamal had blood anywhere on him?

A. Yes. To the best of my recollection, again, Mr. Jamal had blood on his forehead. It looked like his chest area had blood on it, too. Really, I seen blood coming from his forehead and his chest.

Q. When you saw the blood coming from his forehead, did it in any way cover his face, or where actually on his face did you see the blood, to the best of your knowledge?

A. To the best of my knowledge, I can't say it was only one side or the other side. It was just on his face, trick-

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Hightower - Direct

ling down from his forehead to his nose area. I really can't say where the blood was exactly, but it was all over his face.

Q. You gave a statement to the police, as well, didn't you?

A. Yes, several times.

Q. When was the first time you gave a statement to the Police?

A. It was the same morning.

Q. OK. And, within a half hour or so after leaving the scene?

A. I would say around there, a half hour, forty-five minutes.

Q. And, your testimony today -- is it consistent with the statement that you gave to the police?

A. Yes.

MR. MC Gill: Objection.

THE COURT: Sustained.

MR. JACKSON:

Q. By the way, how long after seeing Mr. Jamal in the van, in the wagon, did you remain at the scene?

A. Maybe five minutes, if that, maybe five minutes, if that, because, after we -- or, after the police officer opens the van, we went directly down to the roundhouse.

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Hightower - Direct

Q. How did you get down to the roundhouse?

A. Police escort.

Q. Mr. Pickford drove his car?

A. No. Mr. Pickford's car remained at the parking lot.

Q. You went in a police vehicle?

A. Yes.

Q. OK. Now, Mr. Hightower, you've known of Mr. Jamal? Is that right?

A. Yes, yes.

Q. And, in fact, you had occasion to see him once before in your life?

A. Yes.

Q. Would you tell us when?

A. OK. In 1977 I was affiliated with the Philadelphia students here. We had a press conference at WDAS.

Q. That's a radio station?

A. A radio station.

Q. Go on.

A. And, I just -- well, I just seen him briefly, and I heard somebody call his name, and then after that, that was that. No words were exchanged, or anything like that.

That was the first and last time I have see him until the incident.

Q. So, between 1977 and 1981, you had no reason to see

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Hightower - Direct

him?

A. No, none at all.

Q. And, you have never had a conversation with him?

A. No.

Q. And, at the night when this incident happened, did you know it was Jamal that they were putting in the wagon?

A. No. I answered that, "No."

Q. You didn't know that?

A. (The witness shakes his head in the negative.)

Q. Did you know the other individual, his brother?

A. His brother, no.

Q. Now, do you recall where his brother was when you first saw Mr. Jamal?

A. His brother was standing up against the wall when I first saw Mr. Jamal. I didn't see Mr. Jamal until they pulled him from the back side of the Volkswagen.

Q. Did you see his brother before you saw him?

A. Well, yes. His brother was standing over top of, I would believe it was, the police officer, and the look on his face was a look of shock. It was just like he was frozen.

MR. MC GILL: Objection, Your honor, to this characterization.

MR. JACKSON: All right. You can describe it

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Hightower - Direct

to us.

THE WITNESS: I was just trying to.

MR. JACKSON: Without telling us what he might have --

THE WITNESS: He was standing over top of him, and he was just standing there.

BY MR. JACKSON:

Q. What was his body position? Can you tell us?

A. Somewhat stooped over, not quite all the way, just somewhat stooped.

Q. Could you stand up and show us, please?

A. Well, maybe like this (indicating).

Q. Did you have occasion to look at his hands, sir?

A. No, no.

Q. You have no idea at all what may have been in his hands?

A. No. I didn't even -- this was after the first Police Officer came. OK?

Q. OK. Now, did you have occasion to see any police -- did you have occasion to see any guns at all on the street or on the sidewalk anywhere?

A. No, I didn't see any weapons at all.

Q. Did you have occasion to see any officer holding two guns in his hands?

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Hightower - Direct

A. No, no.

Q. Did you ever see two officers -- I am sorry. Did you ever see an officer with two guns in his hand?

A. Well, I seen a couple guns being brought into the roundhouse after.

Q. OK.

A. But, not on the scene of the crime, no.

A. How were these guns brought in?

Q. I think they had them holding them. They didn't have their hands on them. That's touch and go. I think they had hold of them by a pincers.

Q. You gave a statement on December the 9th? That was your statement? Is that right?

A. Yes.

Q. You gave another statement? Is that right?

A. Yes.

Q. When was that, sir?

A. Several statements, I think, maybe a week or two later. I don't know the exact date.

Q. Can you recall if there was anything you said in the statement that you have not told us -- strike that.

Did you indicate to the police what you've testified here today?

A. Yes; everything I am saying now is in the statement.

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Hightower - Direct - Cross

MR. MC GILL: Objection -- well, I withdraw the objection.

BY MR. JACKSON:

Q. Do you know how many statements you gave?

A. Three or four.

MR. JACKSON: I have no further questions at this time. Mr. McGill may cross-examine.

MR. MC GILL: Thank you, sir.

CROSS-EXAMINATION:

BY MR. MC GILL:

Q. Good afternoon, Mr. Hightower.

A. Good afternoon, sir.

MR. MC GILL: I am sorry, Your Honor, for the delay. I am just trying to get something.

All right. I'll ask that this be marked C-64 and C-65.

(Documents were received and marked C-64
and C-65, respectively, for identification.)

MR. JACKSON: Could I ask one question before you proceed, just one question?

MR: MC GILL: Sure.

MR. JACKSON: The person that you saw running towards the hotel -- have you ever seen that person again?

THE WITNESS: I seen the back of their head.

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Hightower - Cross

MR. JACKSON: OK. Thank you.

BY MR. MC GILL:

Q. What was your response? I am sorry. I didn't hear it.

A. I said I seen the back of their head. I didn't see the face or the features at all.

Q. Oh, OK.

May I approach the witness?

THE COURT: Surely.

BY MR. MC GILL:

Q. Now, Mr. Hightower, I am going to show you these two documents. One is C-64 and one is C-65.

Now, you might want to flip through those real quickly and see if you can recognize them as you are flipping through them in case I will be making reference to them.

A. Is this one the initial one (indicating)?

Q. Do you see the date on the top right hand. I will show you. This is the 9th. See? And, this is a longer one which includes -- let me take this one from you.

A. Do you have any specific areas which you would like me to read?

Q. I only wish, sir, if you would identify them. These are your statements, are they not? That's all.

A. Yes.

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Hightower - Cross

Q. I will refer to the areas, and, then, you can look at them. This is so you have an opportunity to see them.

A. Oh, OK. Thank you.

MR. MC GILL: I ask that easel be set up, sir, also with the chart. It might be best to be right here I guess.

Can everybody see it?

MR. MC GILL:

Q. Now, Mr Hightower, you were with a Mr. Robert Pickford? Is that correct?

A. Yes.

Q. Now, had you been any place earlier that evening?

A. Yes.

Q. Had you been drinking at all that evening, sir?

A. No, I hadn't had any alcohol purchases that evening. I had one beer.

Q. One beer?

A. Yes, one beer.

Q. How long had you been out that evening socializing?

A. From the time -- maybe four, three, four hours.

Q. And, if you were there, say, when this occurred, if you would accept the fact that this occurred around 3:51, you mean you were out since eleven o'clock, maybe twelve o'clock?

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Hightower - Cross

A. Around eleven o'clock, somewhere around there, around 11:30.

Q. You had been to a bar earlier, though, right?

A. Yes.

Q. What was the name of that?

A. 54th Street on City Line Avenue. I sat there with a couple of friends and had the beer, and, then, took a young lady home.

And, then, we decided to take a ride downtown, and we were going to pick somebody up at the Whispers, but they were closed when we got there.

Q. Where did you meet Mr. Pickford?

A. Initially when I first met him?

Q. That day.

A. I met him at the bar.

Q. The first bar or Whispers?

A. The first bar. We never went into Whispers. It was closed.

Q. OK. And, how long did you spend in the bar?

A. Oh, about an hour, maybe.

Q. And, I believe it was your testimony that you only had one beer? Is that correct?

A. I had one beer there, yes. We also went to another bar after that.

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Hightower - Cross

Q. OK. Well, I want to make sure that I understand a little bit about -- of course, also, the jury -- where you were at the time this happened.

Now, I'm going to stand over here. You can stay right there, I think, and just talk in here so everyone can hear you. All right?

A. OK.

Q. Now, you've already been testifying about this being Locust Street, this street here (indicating)? Is that correct? This is Locust Street (indicating)?

A. Yes, sir.

Q. This is 13th Street (indicating), as far as the sketch is concerned? All right?

A. Yes.

Q. This is where the police car was (indicating)?

A. Approximately, yes.

Q. Right. Now, Whispers' doorway -- correct me if I am wrong on this -- is about right here (indicating)? Is that correct?

A. Yes, sir.

Q. Right on this corner, which would be the northwest corner of 13th and Locust, correct?

A. Correct, yes.

Q. All right. So, as I understand it, you and Mr. Pickford

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Hightower - Cross

were knocking on this door, and it was closed, and, then, you left?

A. Yes.

Q. Correct? You had intended to leave to get in your car and go?

A. Yes.

Q. So, while you went, you went back here, and, then, I believe you said you saw a police car coming.

Do you recall where that police car was coming from, or do you remember that?

A. From which direction I really don't want to say. I can't really recall.

Q. OK. If I were to say that in one of your statements, Mr. Hightower, you had said that you saw the police car coming around the corner, but, then, "I didn't see anything else until the shot went off" --

A. Around the corner, but I can't say exactly which corner it came around.

Q. Watch me now. It might have come around either this corner, or it may have come around that corner?

A. Yes.

Q. I want you to watch where I am going now.

A. I am watching.

Q. You were here on 13th Street, right, so you are saying

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Hightower - Cross

it may have come down here and come around this corner, or it may have gone up here indicating north on 13th Street?

A. And then turned.

Q. And, taken a right and around that corner? Would that be correct?

A. Yes.

Q. As a matter of fact, since we are talking about that, I want you to take a look at your second statement.

A. Go ahead. 0K.

Q. And, I'll ask if you will turn to Page 2.

A. OK. The second page?

Q. Yes. This is your first statement that you had given to a Detective on December the 9th at -- well, it says there 5:lO a.m., but it was shortly after the incident, OK?

A. Yes.

Q. On the bottom of the page there, would you agree that the answer there, "I seen the Volkswagen" --

A. Is that a --

Q. Yes. See where it says at the line where it says, "I seen the Volkswagen"?

A. Yes.

Q. OK. "I seen the Volkswagen pull up, and I seen the officer come around the corner and get out, but, then, I didn't see anything else until the shots went off," so that was

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Hightower - Cross

your first statement?

A. Yes.

Q. OK. So, as far as you were concerned, it was either around this corner or around that corner (indicating)?

MR. JACKSON: Objection. Asked and answered.

MR. Mc GILL: That the police officer came --

MR. JACKSON: Still objection, Your Honor.

THE COURT: Let's Go. Come on! Move along.

BY MR. MC GILL:

Q. Is that correct?

A. Yes.

Q. And, you did not see anything more after you turned the corner because you were interested -- until the shots came off?

A. Yes.

Q. Is that right?

A. Yes.

Q. Now, also, Mr. Hightower, going down in this direction which is what? A west direction on Locust Street? Is that correct?

A. Yes, that is west.

Q. There are a few places? Not only is there Whispers on the corner, but there is another bar next to it? Is that correct?

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Hightower - Cross

A. Yes, yes.

Q. And, then, there is another building next to that?

A. Yes, there is.

Q. A building of some sort? Whatever it is, it's a building?

A. Yes.

Q. And, then, after that, sir, there is a parking lot? Is that correct?

A. Yes.

Q. Now, that parking lot goes back some distance, doesn't it?

A. Yes.

Q. It is not just two or three spaces, is it?

A. No. It goes back some distance.

Q. You were there at what time?

A. 3:50.

Q. Did you not park right on the corner?

A. We parked halfway up, I guess you would call it, up in the parking lot.

Q. OK. So, if the parking lot had somewhere near maybe ten or fifteen spaces back, you would be about half that distance where you were parked? Is that correct?

A. Yes. I would agree with that, yes.

Q. And, then, you with Mr. Pickford then walked in the

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Hightower - Cross

direction of the vehicle?

A. Yes.

Q. Because, you were going to leave?

A. Right.

Q. You had no reason to stay?

A. No.

Q. Now, I'm going to also point out to you in your second statement at the end of the second statement, and I'm going to show you this. This will be the second diagram in the second statement.

A. OK.

Q. Does it not show you when the first shot went off that you were pretty well into that parking lot?

A. The first couple shots went off when I was pretty well into that parking lot, yes.

Q. And, then, after that, I think you said you heard a series of three shots. Is that what you said?

A. Yes.

Q. If you can recall, you weren't expecting shots?

A. No, no, but I would say it was a series of three with pause between the last two.

Q. Are you sure of that, or is that something that you are guessing on?

A. At this particular point in time, this is what I thought

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I heard when I was there. It has been a couple of months, but I did think that that's the way it happened.

Q. OK. So, after those first three came, you then heard two more? Is that correct?

A. Yes, with a slight pause in between.

Q. Now, would you have any disagreements with me if I were to say to you that from the corner of 13th and Locust to where the parking lot begins to where that wall is, that is approximately six car lengths? Would you have any reason to disagree with that?

A. It's possible.

Q. So, it would be, then, fair to say that not only were you six car lengths back here indicating west, but, also, a good way into the parking lot when you heard the shots, correct?

A. That is correct.

Q. Now, Mr. Hightower, when -- and, when you came back when you heard the shots, you were still covered, were you not, from the wall and in the parking lot when all the shots were fired?

A. Oh, yes.

Q. You were not outside at all?

A. No.

Q. As a matter of fact, in one of your statements you said,

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Hightower - Cross

and you were understandably quoted as saying, and this is your last statement to Counsel, "I wasn't going to peak my head around the corner, not knowing where the shots were coming from. I didn't want to catch a stray bullet."

Isn't that something you said?

A. Yes, yes.

Q. Now, in reference to this individual you say you saw running, the one I believe you said that you were unsure -- and, correct me if I am wrong from what your testimony was -- you are unsure whether or not that was a male, or it could even be a female? That's what you said?

A. Yes.

Q. All you saw was the back of the head, right?

A. Yes, and the sweater.

Q. OK. That's right. You said a sweater, also.

Now, also, I believe from in your testimony and your statements -- and, tell me if I am wrong on this -- that the first time you saw the individual, the individual was at least four car lengths east, which means towards 12th Street, in the direction of this way -- this is what I mean by 12th Street (indicating). 12th Street is here (indicating). This is Camac (indicating). 12th Street is down here.(indicating).

So, the first time you saw the individual was

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Hightower - Cross

maybe -- this person, male or female, or whatever -- was four car lengths in this direction (indicating)? Would that be accurate?

A. Yes.

Q. And, also, do you recall saying in your statement that after the five shots were fired, you were specifically asked how long after the five shots were fired the last shot was fired did you observe this person running, and do you recall giving the statement -- and, I'm referring now to Page 9 of your second statement --

A. OK. OK. I have it. Now, that would be the Page 9 that is before the diagrams.

Q. You are on the Page 9 before the diagrams?

A. Right there. I have it.

Q. When you came to the wall of the building and heard the last two shots, you then walked onto the pavement and looked up to see the male and the sweater.

How much time elapsed between the last shot and your seeing the running male, about fifteen seconds from the last time of the last shot, and when you first saw the individual, whoever it was, male or female, running about four car lengths from the police officer?

A. Yes, about thirteen seconds, maybe a little less.

Q. OK. Well, let me now, if I can -- I just want to make

Page 150.

Hightower - Cross

sure that we are straight. Now, assume at that point the last shot is heard. That, sir, is about fifteen seconds. Is that about the time, approximately?

A. Around there, maybe a little less. I don't remember.

Q. Keeping in mind, Mr. Hightower, at that point in time you were a little bit frightened, were you not?

A. Yes.

Q. And, as you said, you didn't want to get in any position where you might get hurt by one of the bullets?

A. Yes.

Q. Would it be fair to say that when you did finally look out from where the wall was, you did so cautiously?

A. Yes. I glanced. It was a glance.

Q. Just a glance?

A. Yes.

Q. After you glanced, did you put your head back?

A. I glanced a couple times.

Q. Do you mean you went out, glanced and came in?

A. I went out, glanced, and I came back, and I went out again.

Q. So, after you did come back and finally get to the wall and looked down, you glanced, and your head went back, and you glanced again, and then your head went back?

A. Yes, back of the wall.

Page 151.

Hightower - Cross

Q. Back of the wall?

A. Yes.

Q. Did you glance again, or what did you do?

A. No. By that time I had walked out. I had started to walk out, because I didn't hear any more rounds going off.

Q. So, it was after the second glance and your head went back that you started to go out?

A. A second glance, a short pause, and I started to proceed down.

Q. At that time was anybody with you walking?

A. Mr. Pickford was right in back of me.

Q. Did he see anything?

MR. JACKSON: Objection.

BY MR. MC GILL:

Q. Was he in back of you?

A. Yes. I was the first --

Q. You can't answer it. There was an objection, and you can't answer it.

MR. JACKSON: I am sorry. I withdraw the objection.

BY MR. MC GILL:

Q. Now, do you recall actually in the first statement -- and, I am now referring to the first statement Page 3.

A. Yes.

Page 152.

Hightower - Cross

Q. Do you see that answer there? Just read it to yourself.

A. OK.

Q. Did you read that just the first three paragraphs, the first three lines?

A. Oh, yes.

Q. OK. Now, in that particular statement there, when you say that you saw someone running, it is true that in that your first statement you didn't mention the term "dread locks? Is that correct?

A. OK.

Q. And, isn't it also true that actually the first time that you mentioned the word "dread locks" in reference to a description was in your second statement which you gave on December 15th, six days later?

A. Yes. That's the statement --

Q. Is that correct?

A. That's the statement that we went more into depth about.

Q. And, I believe that the usage of the word that you made in that statement, sir, was possible dread locks? Is that true?

A. Yes.

Q. So, you don't even know whether they were?

A. The way it looked, it looked like dread locks, but I

Page 153.

Hightower - Cross

really wasn't focusing on that person.

Q. You were not thinking about that person in particular, and you did not focus on them?

A. Yes.

Q. So, it may very well not have been dread locks?

A. It could have been braids. It looked that way.

Q. Let's take a look at page 3 of your first statement.

A. OK.

Q. You mentioned that dark color pants, red and black sweater, and you say five eleven or six feet, but you don't say anything then about dread locks.

A. Well, it looked like the person. OK? I don't want to be redundant, or anything, but it was really a split second thing, and I really wasn't thinking to go into detail in the first statement.

You see, the second statement is a lot different than the first one.

Q. After you mentioned that you did not know the defendant, it was the defendant on that particular day, as a matter of fact?

A. Say that again, sir.

Q. Did you not know it was the defendant?

A. Jamal?

Q. Yes.

Page 154.

Hightower - Cross

A. No, I did not.

Q. Now, back in one of your statements you indicated that you did not find out until later, until you heard it over the radio or read it in the newspaper -- you specifically heard it on the radio it was, that's when you realized that it was the defendant?

A. Yes.

Q. Is that correct?

A. Yes.

Q. And, did you also hear it on -- well, is it at that point in time when you heard the name and realized who it was say the day afterwards that you yourself realized then that this is an individual that you saw or knew at one time in 1977?

A. Yes.

Q. And, would it not also be true to say that maybe in the media, in the radio, in the newspapers, that you may have heard or read about his having dread locks at that time? Do you recall that?

A. Well --

Q. He was wearing dread locks at that time?

A. I didn't hear anything, to be honest with you, until afterwards about Jamal wearing dread locks.

Q. After the incident you mean?

Page 155.

Hightower - Cross

A. Yes. I didn't even know that.

Q. That's really what I thought you meant, and I am saying if I said it differently --

A. OK.

Q. -- I meant after the incident.

A. After the incident, yes.

Q. The next day, the following day, it was all over the news, wasn't it?

A. Right.

Q. And, did you realize this was the individual you had known before or had seen before?

A. Yes.

Q. So, I am saying after the incident and when all of this notoriety and so forth in reference to this day, do you recall hearing at that time after the incident that he had dread locks?

A. I seen him on the news.

Q. OK. And, it would be fair to say that after your first statement and before your second statement you had heard that the defendant had dread locks?

A. Yes. I seen it in the paper and on the news.

Q. Now, you stated that you saw the police officer with a gun in a holster. Is there any particular reason that you focused on this holster?

Page 156.

Hightower - Cross

A. Because, one of the officers grabbed him by his holster -- by the belt I guess you would call it.

Q. I notice you are indicating your left side.

A. No special reason.

Q. Do you recall telling the police that the holster was on the left side? Do you recall telling them that?

A. I do believe it was on the left, yes. Yes, I do. I believe it was on the left side.

Q. As a matter of fact, you told the police that, too?

A. Yes, in my second statement.

Q. That would be on Page 3 of the bottom portion of your statement?

A. Is that the second statement?

Q. Yes.

A. I'11 get it.

Q. MR. MC GILL: I would ask that this he marked as Exhibit C-66.

(The above mentioned document was received
and marked C-66 for identification.)

MR. JACKSON: I am sorry. What Exhibit is this?

THE CRIER: C-66.

MR. MC GILL: C-66.

Would you open that up for the witness?

Page 157.

Hightower - Cross

BY MR. MC GILL:

Q. Would you take a look at that? Does that look like the holster that you saw?

A. It looks like a holster. I can't say, "Yes" on that. I don't even know that. I can't say that is the same holster that the officer had.

Q. Would you take a look and see whether it is a right handed holster or a left handed holster?

MR. JACKSON: Objection, Your Honor. There has been no indication --

MR. MC GILL: I object to him telling the witness how to testify.

THE COURT: Don't get excited. Don't get excited. Let him look at the holster.

BY MR. MCGILL:

Q. Is that a right handed holster or a left handed holster?

A. It looks to be right handed. I am left handed.

Q. You are left handed?

A. Yes.

Q. Then you would know a left handed holster if you saw it?

A. That's like I know a left handed smoke machine. I really can't say.

Page 158.

Hightower - Cross

Q. Now, sir, I think you also mentioned, Mr. Hightower, that in the statement that you felt that the one who was running down the street was a Jamaican.

A. It looked to be, I mean, with the hair and all, you know. I don't want to be biased. It looked to be Jamaican. That's my impression.

Q. Well, I am not trying to get bias or anything. You did say that in one of your statements?

A. Yes, yes.

Q. A11 right. Now, if I can get the idea that you are telling us and this jury that your being back here about six car lengths, the individual who was running, the first time you saw that person some fifteen seconds after the last shot --

A. Approximately fifteen seconds, maybe a little less.

Q. And, the first time you saw that person was four car lengths past where the police car was?

A. Yes.

Q. And, if four car -- if I could, for purposes of just distance --

A. Sure.

Q. If you would say four car lengths from the police car, and you have approximately three, three and a half car lengths from the police car to this corner, sir --

Page 159.

Hightower - Cross

A. OK.

Q. Are you with me?

A. Yes, I am with you so far.

Q. Now, if I were to say that you are adding three and a half plus four plus the width of the street plus six car lengths, that you during the course of one and two glances back and forth were able to see all that you saw in reference to the man or woman running down the street, is that what you are saying?

A. All that I saw, it wasn't that much, but, yes.

Q. And, not only were you able to tell where the individual was born, Jamaican, how he looked or she looked --

A. OK. As far as that, the nationality is concerned, I didn't know too many persons that have dread locks. They usually are Jamaican, and they are mostly Jamaicans, so that's why I said that. That's why I made that statement.

Q. But, you saw it from that distance?

A. Yes. I saw it briefly, yes.

Q. Did you see a gun in the hand?

A. No.

Q. A11 right. Now, sir, you mentioned that when you arrived as you finally did, did you come up, did you walk up, or what?

A. Yes. We walked up, up towards the sight.

Page 160.

Hightower - Cross

Q. Yes, up towards the sight.

A. Oh, yes, yes, we walked.

Q. As a matter of fact, did you not tell the police, or, perhaps, the investigator for Mr. Jackson, that you actually, in as much as you were cautious as to the shots, that you actually walked from where you were with Mr. Pickford to the corner wall before you took a peak?

A. Yes. Mr. Pickford was in back of me, yes.

Q. I mean, but, you walked from where you were?

A. Yes, from the car door to the end of the wall I walked.

Q. OK. Now, I believe you said that there were some eight or nine people around Mr. Jamal, the defendant, when you saw him?

A. Approximately, sir, approximately. I don't want to be held to an exact figure, because that would be unfair. I don't know. Approximately eight to nine officers.

Q. And, there were a number of them hitting him? Is that what you are saying?

A. Yes, yes, over four.

Q. You, by the way, did not see him when he was on the other side of the car?

A. I did not see him while he was being apprehended. My first sight of Mr. Jamal is when he came from the back side of the Volkswagen.

Page 161.

Hightower - Cross

Q. And, I think you indicated that they were hitting him with sticks, among other things?

A. Yes.

Q. I'm going to show you a stick here.

MR. JACKSON: Your Honor, I am going to object. There is no indication that anybody had that stick on --

MR. MC GILL: I object to him telling the witness how to testify. I object, Your Honor. I object.

MR. JACKSON: He is going to tell the witness how to testify.

MR. MC GILL: Again I object.

MR. JACKSON: I object, sir.

THE COURT: The objection is overruled. Come on! Let's move.

BY MR. MC GILL:

Q. This is the kind of stick you were talking about?

A. (There was no response.)

Q. I don't mean the exact same; the size.

A. Yes.

Q. You have seen nightsticks before?

A. Sure.

Q. This is what they used to hit him with?

Page 162.

Hightower - Cross

A. Yes. OK. Yes, I would say that. I was across the street.

Q. Sure.

A. It was dark. I guess that's a nightstick. I guess that's what they were using.

Q. A11 right. Well, whatever it was, it was a stick?

A. Yes, it was a stick.

Q. OK?

A. OK.

Q. And, was there more than one person with a stick that was being used?

A. Yes, there was.

Q. You mentioned three or four, sir?

A. I said there were three or four.

Q. Were all three hitting him?

A. OK. When you first asked me the question, I said there were eight or nine officers apprehending him. For sure there were three or four beating him. The others were standing around. More than that could have been participating. I don't want to say one thing and say another. I am just trying to tell you what I seen.

Q. Sure. I just want to know what you observed. That's why I said three or four. You did say three or four?

A. Yes, I did.

Page 163.

Hightower - Cross

Q. Did all three or four of them have sticks hitting him?

A. No. Maybe two had the sticks out, and I don't know the exact amount that were kicking him.

Q. And, you saw the hitting of him?

A. Yes. It was a flurry.

Q. Do you recall what part of his body was kicked?

A. I think I seen Mr. Jamal until he came from the back side of the Volkswagen, so while they were apprehending him, I didn't see any parts of the body where he was hit.

Q. Did you hear some sounds?

A. No, I didn't hear no sounds at all, not from Mr. Jamal.

Q. Well, did it appear at all like, you know, when a man could be using a stick against somebody, like this, a couple times?

A. That's basic motion.

Q. Like I am showing the jury? Is that correct?

A. Yes, sir; yes, sir.

Q. And, this was the time they were hitting the defendant?

A. Basically in that manner.

Q. They weren't waving a wand? They were hitting him?

A. Yes, sir.

Q. No doubt?

A. Yes.

THE COURT: Quiet in the court, please!

Page 164.

Hightower - Cross

BY MR. MC GILL:

Q. And, there were two of them, is that correct, that were doing that?

A. Yes, approximately.

MR. JACKSON: Your Honor, I object. He asked the same question over and over again.

MR. MC GILL: Is Mr. Jackson telling me I am asking the same question?

MR. JACKSON: I object. The question was asked and answered.

THE COURT: Come on.

MR. MC GILL: All right.

BY MR. MC GILL:

Q. And, bodies that you did also see -- well, let me strike that.

There is no question that these two things were hitting somebody?

A. Yes, something.

Q. And, he was the only one back there? They weren't hitting anybody else, were they?

A. No, I don't think so.

Q. They were also hitting him with a blackjack? You know what a blackjack is?

A. The little thing.

Page 165.

Hightower - Cross

Q. You didn't see that?

A. I didn't see that at all.

Q. But, you saw the foot motion kicking?

A. Yes, I did.

Q. Now, were more than three or four kicking or just one or two?

A. Oh, around three or so, three or so, maybe more. The situation was so, like, grab this and grab that. I can't approximately say how many were kicking him. I am just trying to be as honest as possible.

Q. OK. But, at least two were kicking him?

A. At least two had the sticks and at least two or three were kicking him, yes, sir.

Q. Now, when you said they dragged him around and you said his head hit a pole, right?

A. Yes.

Q. At that time, did you then see the hitting of the pole?

A. No.

Q. When he was being dragged to the wagon?

A. No.

Q. They stopped?

A. Yes.

Q. OK. When did you -- when were you aware from the time

Page 166.

Hightower - Cross

that you walked after the shots to the end of the wall, when were you aware of the first police car arriving or wagon arriving?

A. Maybe ten seconds, fifteen. It was so very, very, prompt, very prompt.

Q. OK. Was it fifteen seconds after you saw --

A. I don't remember the exact time, because that would be unfair, again. It was very prompt, very prompt.

Q. Listen to my question before you answer, again.

A. OK.

Q. Were the fifteen seconds after you saw the man or woman running down toward the hotel, toward 12th Street?

A. OK. OK. I said approximately fifteen seconds, maybe a little less than that, about, maybe ten seconds after that the police officer came, yes.

Q. OK. Now, at that time when the police -- if it were ten seconds after you were glancing and you saw this person going down that way (indicating), did you wait until the police stopped and then went toward the area where the incident occurred before --

A. I waited until the police officers had the situation pretty well under control.

Q. Before you went up?

A. Before I went up, yes, sir.

Page 167.

Hightower - Cross

Q. You figured maybe somebody was there and there would be more shooting?

MR. JACKSON: Objection.

THE COURT: Sustained.

MR. MC GILL: I withdraw that.

BY MR. MC GILL:

Q. You were approaching, then, the scene cautious also? Would that he fair to say?

A. That would be fair to say.

Q. So, after the first police car arrived, do you remember when the first police car came, whether it be this way down 13th (indicating), up 13th, down Locust, up Locust?

A. I don't know which one of the streets are one way. I don't know if he came up Locust. I really don't recall now.

Q. OK.

A. OK?

Q. Did you wait before you proceeded forward to cautiously -- wait for my question.

A. OK.

Q. Did you wait before more than once police car or wagon arrived?

A. After the first one, after maybe after five seconds later another one came, so they were very close together.

Q. A11 right. Now, my question, Mr. Hightower, was: Did

Page 168.

Hightower - Cross

you wait before you cautiously moved up here, meaning up here toward the scene, until more than just one police car arrived?

A. I started to move when the first police car arrived.

Q. OK.

A. And, the other ones came so rapidly. Yes, I did keep proceeding.

Q. Would it be fair to say that the other cars and wagons arrived at the scene after the first car before you arrived at the corner of 13th Street?

A. That's a matter of steps. I don't know exactly what place the other cars came. Again, I don't recall exactly the place. Then I think I was approaching the corner of 13th Street. I would not say I was on the corner.

Q. OK. So, you had not yet -- you approached -- you had not yet reached the corner, and, certainly, you had not yet crossed the street to the other side?

A. No.

Q. Before more than one, maybe two, three, or four police cars arrived? Is that correct?

A. Yes.

Q. OK. So, you, I guess, did not observe what all those police officers did, or did you?

A. No.

Page 169.

Hightower - Cross

Q. You didn't observe what each one of them did?

A. Not each one of them, but I seen them when they got out of the car.

Q. They all went over to that area?

A. Yes.

Q. OK. Now, at that time when they did go over to the area -- and, I am indicating now where the defendant as well as the officer was -- all right? This is that area (indicating). I don't want to mislead you. This area here is where it happened (indicating), right?

A. Right. I understand that.

Q. So, you are here (indicating). So, as I understand what you are saying, you arrived close to that corner, 13th and Locust at the time when, perhaps, two or three or four cars or wagons arrived and police officers jumped out and ran toward that scene? Is that correct?

A. Yes; by that time I was on 13th Street crossing the street.

Q. Fine. And, then, did you also then walk across the street?

A. Directly, yes.

Q. And, then, you went down this direction (indicating)? Is that correct?

A. To about where the Volkswagen was, directly across from

Page 170.

Hightower - Cross

where the Volkswagen was.

Q. OK. So, Mr. Hightower, would it be fair to say that you walked cautiously up to 13th Street?

MR. JACKSON: Your Honor, I am going to object. He is just repeating his testimony. That's all he is doing.

THE COURT: I don't know the answer.

MR. MC GILL: Judge, may I proceed? May I kindly object to Mr. Jackson's comments?

THE COURT: Go ahead.

MR. MC GILL: I was attempting to be kind on cross-examination.

THE: COURT: Go on.

BY MR. MC GILL:

Q. And, then, you continued to walk here, which would be right across the street? You at no time ran? You just walked?

A. Just walked.

Q. And, over here you were able to finally get directly across from what actually had occurred? Is that true?

A. Yes.

Q. And, even while you were there across the street, you were not able to see the defendant behind the car? Is that correct?

Page 171.

Hightower - Cross

A. No, no. You are right.

Q. Obviously, you could not see anything else behind the car?

A. No. I was, like, I was on the blind side.

Q. OK.

A. 0K.

Q. Did you stay over there until you were asked to go to the wagon?

A. Yes, I was basically right there.

Q. OK. Now, you also stated to defense Counsel that not only was -- well, not only was the holster on the left side of the police officer, but, also, you saw the gun in the holster? Is that correct?

A. Yes. I did, sir.

Q. Did you notice whether every other -- the police officers had guns in their holsters?

A. I guess.

Q. "Yes" or "no"?

A. No.

Q. No? Now, that is also in your second statement, is it not, sir, that the gun was in the holster? Is that correct?

A. Yes. That is in my second statement.

Q. And, that statement was some six days after your first

Page 172.

Hightower - Cross - Redirect

statement?

A. I think it was on the 15th or -- the exact date?

Q. December 9th was the first. December 15th was the second one.

A. Yes.

Q. So, the same day that you told the police that the person you saw running that distance away had dread locks on, that same day you said the police officer had a gun in his holster?

A. This is my second statement.

Q. I am completely snapped. Is that correct?

A. Yes, that's the way it looked to me.

Q. MR. MC GILL: Nothing further.

REDIRECT EXAMINATION

BY MR. JACKSON:

Q. Mr. Hightower, for those of us who don't know --

MR. MC GILL: Objection, Your Honor, to comments.

MR. JACKSON: Fine.

BY MR. JACKSON:

Q. You indicated in response to Counsel's question, you said you told the police that the person running had dread locks in the first statement. Is that right? I am sorry.

Page 173.

Hightower - Redirect

A. In the second statement.

Q. You said that in the second statement?

A. Yes.

Q. I'd like for you to read for me aloud the very first question that was asked of you on December the 9th and the very first answer you gave on December the 9th.

A. It's not typed that well.

Q. Give it to me.

A. Oh, this portion is typed.

Q. OK. The very first question, the very first answer, the first time the cops ever asked you a formal question.

A. OK. "Mr. Hightower, will you go on in your own words and tell me what you know concerning the shooting of a police officer at the 1200 block of Locust Street a short while ago." This was December the 9th.

Q. Yes, sir.

A. OK. My answer was: "We, Robert Pickford and myself, were going to the Club Whispers to see if it was still open. It was closed when we got there around 3:35 a.m. I turned the corner on 13th Street and got to the parking lot entrance and heard four or five shots go off.

"I went back around and peaked around the corner. I seen a blue Volkswagen with one black male sitting in it, possibly Jamaican."

Page 174.

Hightower - Redirect

Q. Go on.

A. I seen the male run away wearing a read and black sweater. There was another male standing over the police officer, and he looked like he was in shock. I don't believe that the male who shot the officer could have stood there. When I heard the gunshots, I first ran. Then I looked back and I seen the cop on the ground after the officers got there. I did see the guy who ran, and he looked Jamaican, too.

"There were a guy in a blue Volkswagen, and when the police got there, they pulled him out and struck him and threw him in the wagon. The guy who is in here now -- he's the one who was standing over the cop after he was shot."

"When the other" -- this is a continuation of the answer -- "When the other police got there, the guy just backed off and stood against the wall. Then the police took custody of him, but I know he was not the guy who shot the cop."

Q. OK. Now, in that very first question that they asked you the very first time that you talked to the police, you say that the man who was driving the Volkswagen 1ooked like a Jamaican?

A. Yes.

Q. Why did you say that?

Page 175.

Hightower - Redirect

A. Because, when we went to the club, we did see somebody standing there. What focused my attention on the Volkswagen is when the officer pulled up behind him, the driver did look like he had dread locks.

Q. So, let me ask you this: Are you saying that someone having the characteristics of wearing dread locks is who you characterize as Jamaican?

A. Yes. That's my personal thing.

Q. OK. Fine. Again, in the very first answer you gave to the police, you indicated that the man who ran away looked like a Jamaican, too.

A. Yes.

Q. What did you mean by that?

A. As far as his hair was concerned.

Q. So, you said that to them the very first time you talked to them?

A. Yes.

MR. MC GILL: Objection. Talk about my being repetitious!

MR. JACKSON: Fine. I withdraw that question. I just wanted to get that clear. Fine.

I have a few more questions for you, sir.

BY MR. JACKSON:

Q. By the way, the holster that you saw Officer Faulkner

Page 176.

Hightower - Redirect

wearing -- do you know if the holster was turned around or not?

A. I can't answer that. I don't know.

Q. You just happened to know the holster was on the left side?

A. Yes.

MR. MC GILL: Objection. Leading his own witness.

THE COURT: Please don't lead the witness.

BY MR. JACKSON:

Q. Now, Mr. Hightower, are you certain of the number of shots that you heard? Were there five?

A. Approximately, approximately.

Q. Now, in your statement you have indicated to the police and your testimony here today that there were five.

A. Yes.

Q. Sir, let me see if this refreshes your recollection.

Page 2 of the statement given on 12/15/82.

MR. MC GILL: I would object. How is his recollection refreshed? This is redirect, Judge.

MR. JACKSON: A prior inconsistent statement; that's all.

THE COURT: You said '82.

MR. JACKSON: Page 2. I am sorry. Page 2.

Page 177.

Hightower - Redirect

BY MR. JACKSON:

Q. "Q. The male you describe running down Locust Street -- did he pass in front of you?

A. No. When I saw him, he was maybe four car lengths away from the police car and the Volkswagen."

Is that right?

A. Going into the direction of the hotel, yes.

Q. And, so, that again the direction of the hotel was towards 12th Street? Is that right?

A. Yes, yes.

Q. Good. Then on Page 3 the same date --

A. This is the second statement, isn't it?

Q. Yes, this is the second statement. OK?

"Q. In all, how many shots were fired, to the best of your recollection?

A. I believe 3-5, three to five, three to five, like three in rapid succession, and two more."

Do you remember that question and answer?

A. Yes, I do.

Q. Now, do you recall other than this statement -- well, let me ask you this question first: Question -- same page.

"Q. When you see Officer --" OK.

"Q. When you saw other police there on the scene, did you see any officer pick guns up?"

Page 178.

Hightower - Redirect

"A. No."

"Q. When you see officers pick up Officer Faulkner up, could you see a gun on the ground?"

"A. No, but I could see his gun in his holster."

Do you recall those series of questions and answers.

A. Yes, I do.

Q. Did they ever ask you about Officer Faulkner's gun before?

A. Not until the second statement was being held.

Q. And, that's the question I just asked?

A. Yes, it is

Q. And, that's the first time they asked you about his gun?

A. Yes, sir.

Q. Did you initiate any -- let me strike that.

Did you tell them anything about his gun before they asked you?

MR. MCGILL: Objection. Leading his own witness.

BY MR. JACKSON:

Q. What if anything did you say to them with regard to his gun?

A. I don't really know. I don't know if I made the statement

Page 179.

Hightower - Redirect - Recross

or I was asked the statement.

Q. OK. Did you make any statements that you can recall? Did you make any statements to the police?

A. Concerning Officer Faulkner's gun?

Q. Yes, sir.

A. No.

Q. Other than the statement right there.

A. Other than the statement right here, yes, sir.

MR. JACKSON: No further questions at this time. Thank you very much, Mr. Hightower.

RECROSS-EXAMINATION

BY MR. MCGILL:

Q. Mr. Hightower, take those statements, if you would, just in front of you. You've told us, and you are very clear, are you not, as to where you were when the first shot went off?

A. In the parking lot.

Q. Yes. No question about it?

A. No, no question at all.

Q. Well, actually, in your -- take a look at Page 2.

MR. JACKSON: Your honor, I object. This is beyond the scope.

THE COURT: Overruled. Go ahead.

Page 180.

Hightower - Recross

THE WITNESS: Is this the first statement or --

MR. MC GILL: The first statement is December the 9th. Now, back on Pace 2, please, about the center.

BY MR. MC GILL:

Q. Did you see the officer pull out his own gun? Did you see that?

A. (There was no response.)

Q. Did you see that question?

A. (There was no response.)

Q. That will be about --

A. OK. Yes, sir.

Q. Did you see the officer pull out his own gun?

A. No. He didn't have time. It was, like, a blind side hit. Well, it had to be.

Q. It had to be?

A. Yes.

Q. But, you didn't see it, though?

A. No, but the way he was positioned on the ground.

Q. You were kind of imagining how it must have happened? Is that correct?

A. OK. It wasn't actually -- I didn't actually see it, no.

Q. Well, you are here six car lengths up here going toward Robert Pickford's car, 7 car lengths, and you are telling

Page 181.

Hightower - Recross

the police officer the first day it was a blind side hit.

How do you see through the buildings?

A. I made that statement on the way the officer was positioned on the ground.

Q. OK.

A. OK.

Q. In other words, the way the officer was on the ground you assumed it was a blind side hit. Is that what you are saying?

A. Yes, because he was on the passenger's side.

Q. Yet the question was: Did you see the officer pull out his own gun? No. He didn't have time. It was like a blind side hit.

A. This is what I figured it was. That is not actually seeing it.

Q. You imagined that must have been the way it was? Is that it?

A. Yes, I would say that.

Q. You said also on that first statement -- let's take a look at some of the other things you first said, since Counsel recited that portion. You talked about the police officer pulling somebody out of a car.

A. It looked that way, yes.

Q. Here you are. Did you see the police officer pull out

Page 182.

Hightower - Recross

his own gun? No, I didn't have time. It was, like, a blind side hit. He was pulling this guy out of the car. That's the last thing I know. Evidently he was intent on this guy, and he didn't see the guy run up.

Is that what you told them?

A. That's the way I figured it.

Q. Again, that is the way you figured it, correct?

A. Yes.

Q. Again, sir, you are six car lengths down, and up in the parking lot going toward Robert Pickford's car, and you are telling me it was a blind side hit, and the officer was pulling somebody out of the car. He didn't have a chance, and you saw that through the buildings?

A. Excuse me. Can I make a statement here?

MR. JACKSON: Judge, may he answer?

THE COURT: He is.

MR. JACKSON: OK. I just wanted to make sure.

THE WITNESS: To clarify this to a point, OK? What I am saying is I seen the officer pull up in back of the car, the Volkswagen, walk up to the passenger's side, and motion to the fact that he was trying to get somebody out of the car. When I said about the blind side hit, it was

Page 183.

Hightower - Recross

just speculation on how it happened. Actually, I didn't see what happened.

MR. MCGILL: OK.

THE WITNESS: It was just speculation.

BY MR. MCGILL:

Q. It was speculation? That's all we are trying to find out.

A. OK.

Q. This was a scary experience, wasn't it, sir?

A. Yes. This is the initial statement?

Q. Yes, down there, Page 2. Let's make it the second to the last question on that.

A. Page 2?

Q. Yes.

A. OK.

Q. Let's take a look at some of the other things you said. You at one point in this question said the guy that the officer was taking out of the car -- did you see him fighting with the officer at all?

"A. No. I just seen the officer indicating to him to get out of the car. That's when I thought this was a routine stop, and I was walking away."

That's what you meant, wasn't it, indicating --

A. Yes.

Page 184.

Hightower - Recross

Q. -- no one was pulling anybody out of a car?

A. No, he wasn't actually pulling him out.

Q. He was indicating for him to get out?

A. Yes.

Q. You saw this happen, and, then, you turned right around?

A. Yes, sir.

Q. Now, take a look at the next question and answer. This is the bottom of that Page 2, and the beginning of 3. Do you know personally any of the males involved, either of the ones in the volkswagen, or the ones that did the shooting? No. I have never seen them in my life. I seen the Volkswagen pull up, and I seen the officer come around the corner and get out, but then I didn't see anything else until the shots went off.

That's what you said, too, wasn't it?

A. That's what I said.

Q. And, this is what you said on really cross-examination the first time? You saw Volkswagen pull up, and you seen the officer come around the corner and get out, but that you didn't see anything until the shots went off after the officer got out of the car?

A. Well, I seen the officer walk to the Volkswagen.

Q. Well, I am just saying: Wouldn't you admit that there

Page 185.

Hightower - Recross

is a little bit of difference in those statements?

A. Yes, there is. That was discussed at the second time when I made the second statement.

Q. Do you recall first of all in one of the statements, sir, saying that the man, the second man, who was standing around the cop, the man who was standing --

A. Over the cop.

Q. -- over the cop --

A. When I first got back --

Q. You said he was just, like, standing there in shock, right?

A. Yes.

Q. I think he had to be just walking by. Is that correct? Isn't that what you said the first time? I think he had to be just walking by?

A. Yes, that's the way it looked.

Q. OK. And, that was the fellow that you identified as William Cook, the one that was down there, right?

A. Yes, after, yes.

Q. And, then, you later, sir -- correct me if I am wrong on this --

A. Sure.

Q. But, in your second statement you again, therefore, all of a sudden, identified the driver of the car with the

Page 186.

Hightower - Recross

dread locks as William Cook, didn't you, sir?

I couldn't -- I don't know if I identified William Cook as being the driver, because I didn't really see his face.

Q. OK. But, are you saying, sir, that -- do you recall at any point identifying William Cook as the driver of the vehicle?

A. (There was no response.)

Q. Didn't you tell the police that he was the driver?

A. I think I did, because I think Mr. Cook had a peacoat, a Navy peacoat, yes.

Q. So, he was the driver of the vehicle, and you identified him, and you also identified --

A. I didn't identify him as being Mr. Cook.

Q. Oh, OK. Fine. At least so we understand, you identified the man who was driving the vehicle as well as the man who was standing over the cop at one time or another as William Cook, or the man that was brought down to the Police Administration Building?

A. Yes.

Q. OK. All right. And, do you also recall saying in this statement -- one of the statements -- I think the statement to Mr. Jackson's investigator, that as you walked from the Whispers, you only glanced for a moment at the Volkswagen and the cop going around the corner?

Page 187.

Hightower - Recross

A. Yes, yes, sir.

Q. You had no reason to focus your attention on it? You just left?

A. No real reason to stay there, no.

Q. Sir, isn't it true, Mr. Hightower -- and, I won't keep you much longer -- that because of all the events of that evening, that thing which you do recall specifically is the police officer rounding the corner, stopping the Volkswagen, a driver in there who later was the man standing over the cop, who was William Cook, you don't know how it happened, and you don't know how the shots happened, or anything about it? What you did know you heard the first shot when you were back in the parking lot in the distance that we had talked about before?

Isn't everything I said accurate, sir?

MR. JACKSON: Your Honor, I object. He has asked about five questions in that one question.

THE COURT: All right.

BY MR. MC GILL:

Q. Would you disagree with that?

A. Repeat the question, sir.

Q. Fine. Would you disagree with this set of facts?

What you really know is as you were leaving Whispers and were going to the parking lot, you glanced over and

Page 188.

Hightower - Recross

saw a vehicle that was stopped, and a police car that was rounding the corner?

A. Yes.

Q. And, the policeman was starting to get out of his car and going toward the Volkswagen?

A. Yes, yes, the passenger's side, yes.

Q. And, the man that you saw, the driver, was on the passenger side? It wasn't even the driver's side?

A. That's the way it looked.

Q. OK. And, then, when you went -- and, he goes forward toward the car, indicating to get out; the driver of the car is the same man that you identified down at the Police Administration Building, as the man who later after the shots was standing over the cop? Is that correct?

A. Yes. Can I say something concerning that?

The reason why I made that statement was because of the Navy peacocked.

Q. OK. It was the same person and that was it? Is that correct?

A. Yes, that is.

MR. MCGILL: Thank you very much, Mr. Hightower.

THE WITNESS: Thank you.

MR. JACKSON: Just a couple more.

Page 189.

Hightower

MR. MC GILL: I would object to any further redirect, Your Honor.

MR. JACKSON: How is he going to object? I haven't asked anything.

MR. MC GILL: We are going to go on and on and on.

THE COURT: Let me see what his question is, if it is something new.

MR. JACKSON: Thank you.

BY MR. JACKSON:

Q. You spoke to Mr. McGill before today, haven't you?

A. Once, yes.

Q. And, you went over your statement? Is that right?

A. Yes.

Q. When was the first time you talked to me?

MR. MC GILL: Objection. Redirect -- this is improper redirect.

MR. JACKSON: Fine. I just wanted to ask that. I have no further questions. Thank you, sir.

MR. MC GILL: Thank you, Mr. Hightower.

THE COURT: We will adjourn until tomorrow morning at 9:30.

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Page 190.



I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the trial of the above cause, and that this copy is a correct transcript of the same.



Official Stenographer



The foregoing record of the proceedings upon the trial of the above cause is hereby approved and directed to be filed.



Judge