THE COURT: I am not opening Court yet because I want to
first ascertain from Mr. Jamal whether or not he will behave himself in
this Courtroom so that he can stay for the proceedings. Otherwise, as I
put him out yesterday, I will leave him stay out if he's not going to
behave himself.
Mr. Jamal, are you going to behave yourself and not
disrupt the orderly proceedings of this Courtroom?
THE DEFENDANT: I sure will, Judge.
THE COURT: Okay, then we'll open Court.
MR. JACKSON: Before you bring in the jury, may it please
the Court, I would initially request that the jury panel in this matter be
dismissed. As Your Honor well knows, since this jury panel has been
empanelled, a number of events have taken place within this Courtroom.
The jury is, of course, very close to this Courtroom and
within, I believe, hearing range of at least some of the activities that
have occurred within this Courtroom, such that the jury may reasonably
assume that indeed it has been caused by Mr. Jamal and would therefore
prejudice the rights of Mr. Jamal to the extent that I believe they could
not be fair and impartial in the adjudication of the facts of this
case.
We know, of course, that there has been one jury person
who has been dismissed by Your Honor. We don't know all of the facts and
circumstances of what that person may or may not have done. It's my
understanding from the Court Crier that that person was isolated from the
other jurors, and we would assume that to be true; nevertheless, Your
Honor, the question is now raised as to whether or not the other members
of the jury panel may have been tainted from any other outside sources
with respect to the activities and goings on within this Courtroom.
To that extent, and I believe in an abundance of caution,
it would be appropriate to dismiss this jury panel and to have a new
jury
panel in place.
MR. MCGILL: Your Honor, in reference to the juror
mentioned by Mr. Jackson, that was a joint excuse because of her
unavailability. This was discussed at length and is a matter of Record. I
don't think anything needs to be done publicly as far as her own reasons.
I think the reasons at sidebar are on public record, and since it was a
joint excuse, she was excused by Your Honor because of our agreement, the
agreement between Mr. Jackson and myself.
And secondly, in reference to any outbursts made
yesterday, certainly Your Honor has taken extreme precautions throughout
all of these trials and actions of Mr. Jamal, particularly where there
does appear to be a problem, the jury is immediately asked to withdraw.
All during the course of yesterday's melee, the jury was not present. They
were outside in separate rooms away from the Courtroom. It's hard to say
whether or not they heard anything, but even if they did hear anything,
certainly, Your Honor was not the cause, nor Mr. Jackson, nor myself, the
cause of what ensued, so it could hardly be a
matter of prejudice caused by state action.
I would suggest to this Court that this Court, Judge
Sabo, has exercised, besides extreme patience, a great deal of ability to
control potentially inflammatory situations, and in doing that you have
kept the jury constantly away from it all. When the jury is empanelled in
the normal proceedings, as they must, and something does occur, Your Honor
cannot control what Mr . Jamal decides to do on his own. He can do what he
wants to do in front of a jury. When it reaches a point where Your Honor
feels the orderly presentation of the case is impeded, Your Honor can act
appropriately, as you did yesterday. So there is no basis for that motion,
I suggest respectfully.
THE COURT: The motion to dismiss the jury is denied.
MR. JACKSON: All right. May it please the Court, I'd also
like to bring to the Court's attention that I am at this very moment
prepared to defend Mr. Jamal to the best of my ability. I will also bring
to the Court's attention that unless and until Mr. Jamal specifically
indicates to me that it would be his strategy for me not to
participate or, in other words, to remain silent with
regard to the presentation of witnesses and facts, until or unless that is
done and placed on the Record, I will defend Mr. Jamal in the traditional
manner of an attorney, and I ask then that the trial begin.
THE COURT: All right, bring the jury in.
MR. MCGILL: Yes, Your Honor. If it please the Court, the
Commonwealth is prepared to proceed with its opening.
THE COURT: All right.
MR. MCGILL: Shall I proceed, Your Honor?
THE COURT: Yes, please.
MR. MCGILL: Ladies and gentlemen, good morning. At this
particular time, as the Judge has stated, this is the opening to all of
you. Now the opening is really a bird's eye view of what the evidence will
be. It is not evidence in itself, so anything I say to you now will not be
evidence. The only kind of real evidence that you
will have an opportunity to hear and see will be coming
from the witness stand.
In this particular case the Commonwealth seeks to prove
this Defendant guilty of first degree murder, and we also seek the death
penalty. But during the course of this particular trial your concern at
this point is guilt or innocence, not penalty, at this point. I would
suggest to you that the Court will tell you exactly what the law is as to
all of the charges and all the principles of law that you must keep in
mind during the course of the trial and during the course of your
deliberation.
What the Commonwealth intends to prove is that Mumia
Abu-Jamal intended deliberately and with premeditation to shoot Officer
Daniel Faulkner to death on December 9, 1981.
Now, we will prove this in various ways, that is, a
statement of the law itself as far as first degree murder is concerned,
what I just gave you, we will prove this through eyewitnesses, physical
evidence, scientific evidence, medical examiner's testimony, photographs,
sketches, and also admissions.
During the course of this entire trial, and I will say
now barring any unforeseen -- and please don't hold me to this -- but
barring any unforeseen delays, I will attempt to complete the case in
chief, which is the Commonwealth's case of evidence, within three days
because you are all probably wondering about time at this point. I will
try to do that, barring any kind of interruptions, and we will start
today, today will be number one. Of course, after that the defense then
has an opportunity but then no obligation to put on a defense. I cannot
give you the total number of days involved in this trial at all, I can
only tell you what I anticipate my part of it will be, at least in the
beginning.
Now, during the course of the testimony that you will
hear, you will hear from various witnesses as well as Police Officers the
various facts that I shall relate to you.
Mr. Jamal was observed on the night of December 9, 1981
shooting to death Officer Daniel Faulkner. Officer Faulkner was stopping
an automobile, a Volkswagen, and the driver of that automobile was Mr.
Jamal's brother William Cook.
William Cook and Officer Daniel Faulkner then walked back
from where the Volkswagen was to the side of 13th and Locust, on the south
side of 13th and Locust Streets. This would be on the east side of 13th,
south side of Locust by the automobiles.
During the time while officer Faulkner was discussing
with William Cook the reason for the stop, William Cook turned around and
hit in the face officer Faulkner with his right hand. At that point on the
right side of his face he was hit and injured a bit. At that time our
witnesses will testify that at that point Mr. Jamal ran over from the
parking lot and he had a weapon, and there Mr. Jamal, as he went directly
toward the position where Officer Faulkner was attempting to subdue
William Cook who had just hit him, Mr. Jamal with a gun drawn and loaded,
goes up and within a very short distance from the back of officer
Faulkner, for it was his back that was facing Mr. Jamal at this time,
shoots officer Faulkner right in the back.
The one or two times that the Defendant Mr. Jamal shot at
that time, at least one hit the
back of officer Faulkner And you will hear the testimony
that as he fell down, officer Faulkner was grabbing for something, and
then Mr. Jamal, the Defendant, takes a few steps over as Officer Faulkner
was down and was shot himself during the course of this.
After he had shot Daniel Faulkner and while Officer
Faulkner was reaching and grabbing for something, then Mr. Jamal was shot
himself during the course of this by Officer Faulkner. Officer Faulkner
now is on the ground, and then you will hear the testimony of various
witnesses that this Defendant walks right over to Officer Faulkner, who at
this point is on his back, and within twelve inches of his head he points
the gun that he had that was loaded and unloads that gun. One makes
contact, and that was the fatal shot, right between the eyes, literally
blowing his brains out.
He continued, however, to shoot, hitting one portion of
the coat jacket. No contact was made because of the garment material, and
he continued to unload his gun, at which point, after this shooting took
place, the Defendant then
moves over, already himself being injured, and then falls
to a curb area crouched over.
At that point officers arrived. He resisted being
arrested, he was injured while he resisted being arrested. You will hear
where he had been injured at the top of his head by officers arresting
him. He was also kicked on the side of his jaw as he was reaching for a
weapon, the very weapon that he used to kill Officer Faulkner.
At that time he was then taken to a wagon, and not only
will you hear from witnesses about these particular actions that they
observed on that night, but also these witnesses became close enough or
came close enough to Mr. Jamal, to the Defendant, as he was taken to the
wagon to identify him there, with one witness actually going right up to
the wagon afterwards, and the Police saying, Did anybody see it, what
happened, and they take him right up to the wagon, open it and say, Is
this the man who did it; That's him, never having left his sight, in front
of him an individual who saw it straight.
Another individual who happens to have been arrested
several times for prosecution --
several times, she has a two, three page record of
prostitution arrests -- she also is a witness and also observed everything
that I have related to you, and she will testify.
Ladies and gentlemen, the evidence does not end there,
for we will find that when the Defendant was arrested, seized from him was
a shoulder holster as well as the weapon. The weapon, along with Officer
Daniel Faulkner's weapon, was found right there by the scene on the ground
near where they were laying, that is, Officer Faulkner as well as the
Defendant. The shoulder holster was still being worn by this Defendant,
the holster for the gun that he used in killing Officer Faulkner.
The evidence does not end there. At this time the
Defendant is then taken to the hospital because of his injury, for he
indeed was shot. Also he goes to Jefferson Hospital. At Jefferson Hospital
he is taken in and left at a spot until it was determined where he should
go for treatment. This man, this Defendant, you will hear and you will see
throughout this trial as the evidence goes on, a picture of extreme
arrogance, defiance,
even a strange boastfulness as to what he did in his
deliberate killing of this Police Officer.
You will also see strange ironies in this case, such
ironies as the very hospital where Officer Faulkner was rushed to while he
was dying -- and he did not live long with that wound between the eyes --
the same hospital that he was sent to the Defendant was sent to because
that was the closest place to go in order to have the Defendant's life
saved, and that was another irony, where the very Police unit where he
eliminated one of their members intentionally and viciously, that same
unit helped him save his life, even though at the time he went to the
hospital, you will hear, he didn't even want any treatment at that time.
Extreme arrogance, but that arrogance continues because we find again,
ladies and gentlemen, a situation at the hospital which best symbolizes
this entire episode, you may find, and that is this: When he goes into the
hospital an individual, which is also ironic, his former partner -- and
you may well know, whether it be from television or radio or
anywhere, the closeness of partners in the Police
Department because of the nature of their jobs and the dangers involved in
it -- his former partner in there comforting Officer Faulkner as he is
dying, ladies and gentlemen, walks out to the Defendant who unloaded his
gun in him and literally blew his brains out, and he looked right at him
and this man, this Defendant, you will hear, looks up to him at the time
when he's just dying and said, "I shot the MF'er and I hope he dies."
Arrogance, defiance, you will see it.
Ladies and gentlemen, not satisfied with merely that
statement, he repeats that same statement as he is being taken away to an
area where he could be treated in order to save his life. At the time he
says, "I shot the MF'er and I hope he dies," his partner, who is looking
right at him and sees his other partner there dying, looks at him and
says, "If he dies, you die."
Then you will see the Police Officers guide this man, the
Defendant, away to an area in
order that he can be treated, and before he goes in that
treatment area you will hear testimony that he once again says, "I shot
the MF'er and I hope he dies," and he got his wish, he got his wish.
Viciousness.
The actions that you will hear during the course of this
trial, ladies and gentlemen, through various types of evidence, you will
see photographs, you will see the gun that did it, you will see Officer
Faulkner's gun also where he was able to get off that one shot only that
wounded but not fatally Mr. Jamal, you will see the cartridges as well as
the gun that was used in the killing.
Even beyond this admission, there is yet another
admission. Even before Dr. Colletta comes and saves his life, taking the
bullet out and all, since there was a Court order by Judge Abraham forcing
this Defendant to be operated on -- he had to be forced to he operated on
again by the state -- and an admission made to a Police officer while he's
on the journey, "I'm glad. If I get out of here I'll kill all you
pigs."
from a Police Officer. You will hear the testimony of the
admission from a security officer, a security officer from the staff of
Jefferson Hospital. You will see, as I mentioned, the real evidence of the
guns. You will see his partner testify to those circumstances, his former
partner; you will hear from the Crime Lab showing you the area of where
the shots had taken place -- excuse me, where the shots had occurred on
his garments. They will testify that specifically the shot in the back was
within twelve inches. No question what the intent was. You will see
through the evidence as that gun was going off, you will see from the
testimony of the medical examiner that the shot that killed him was also
within twelve inches, and you will see the actual garments where the other
shots that missed but hit part of the garments, where they were
positioned. You will see photographs of the scene, ladies and gentlemen.
You will see a sketch of the scene which I will present to you.
Ladies and gentlemen, all of this is merely, as I
mentioned before, an overview of what you will see. There may be some
witnesses
that come out of order. That is because of where they are
coming from, problems of scheduling or whatever. There may be some delays
which will be quite proper because of legal arguments or objections;
please bear with us. Your patience so far is admirable, but please
understand that this is what I am saying will be the evidence presented to
prove that this Defendant viciously and intentionally took the life of a
Police Officer in Philadelphia, Daniel Faulkner. Thank you.
MR. JACKSON: Your Honor, I reserve making opening remarks
until a later time, but I would like to see Your Honor at sidebar for a
brief moment.
THE COURT: Sure.
MR. MCGILL: Your Honor, could we have a short break now
for the jury?
THE COURT: All right.
MR. JACKSON: Your Honor, after my remarks
to you earlier with respect to my conversations with Mr.
Jamal, Mr. Jamal has indicated now at defense table that he wishes me to
refrain from making objections and he wished that I reserve the right to
cross-examine any and all Commonwealth witnesses. I indicated to him that
at this point it was my intention to make appropriate objections and to
examine the witnesses when I felt in my experience it was appropriate. He
says that it is indeed his strategy to withhold examination, to reserve
examination of witnesses and not to object.
I indicated to him that I could not do that unless and
until he placed that on the Record, and I'm asking now if that is indeed
his desire, that it be placed on the Record. Other than that, I am going
to proceed in the traditional manner of an attorney.
MR. MCGILL: I don't understand.
MR. JACKSON: You present your first witness, I would not
make any objections if you were leading or asking irrelevant questions or
any of the reasons that I might object.
MR. MCGILL: Oh, I see.
MR. JACKSON: He's asking that I not object to that. At
the conclusion of your examination he's asking I not cross-examine them at
that point but I reserve the right to cross examine them at a later
point.
MR. MCGILL: I see. At a later point, you mean after the
witness leaves, call him back?
MR. JACKSON: Call him back.
MR. MCGILL: I would object to that procedure, Judge.
THE COURT: It's rather -- you see, you could ask some
questions at that time and if there is some specific question that you
would want to ask later on to maybe one witness, that would be possible,
but to do that to every witness, the jury wouldn't get a proper consistent
opinion of what's happening. In other words, they hear the witness and no
cross-examination at all.
MR. JACKSON: I understand that, Your Honor, and that is
why I indicated to Mr. Jamal that it would be my intention to raise
appropriate objections to their testimony during direct examination and to
examine those witnesses in the
manner I feel best preserves his interest. Nevertheless,
Mr. Jamal has made that request of me, and in effect, I would not be
participating in the trial in the examination of those witnesses, and I've
indicated to him that, again, that raises the very same issue.
THE COURT: But the thing is you would later on. See, this
is what throws the thing out of all context as far as the jury is
concerned.
THE DEFENDANT: Judge, I've made that request because that
is my strategy, okay, and it's very clear that Mr. Jackson has other ideas
that I don't agree with, but what's at issue is not his ideas but my life.
That's my strategy that I would like to follow, and we would like to
reserve the right to call those witnesses back. It may not be all of the
witnesses, but we would like to reserve the right to call them back for
cross-examination at a later time.
THE COURT: You can call them back as your own witness as
part of your defense if you wish, but I don't think that you can just say
to each one I reserve the right to cross-examine you later, and
call them back at another time. You must make that --
THE DEFENDANT: I'm saying reserve the right because we
don't have the -- you know, how could we get contact with them, you see
what I'm saying, we don't have the phone numbers and stuff.
THE COURT: That's not the point. What I'm trying to
explain to you, you just can't say to every witness, we want to call you
back later on, and then wait until the Commonwealth finishes its case and
then say, all right, now I'm willing to call back these witnesses one at a
time.
THE COURT: It's just not proper procedure.
MR. MCGILL: Judge, what he could do, and it's what Your
Honor has already said, and this may be what he really wants --
THE COURT: Call them back as his own witnesses.
MR. MCGILL: Right, he could do that.
THE COURT: There is no doubt about that, that he could
do.
MR. JACKSON: Could I talk to you for a
MR. JACKSON: Your Honor, I have had an opportunity to
speak to Mr. Jamal specifically with regard to the issue of calling the
witnesses as his witnesses. I've recommended and advised him that it would
not be proper or appropriate or strategically in his best interest to do
that in that he would be restricted and limited with respect to impeaching
those witnesses, particularly if they were called by him, in addition to
which Mr. Jamal wants his wishes known, nevertheless, that he wishes to
reserve the right to cross examine them at a later time.
I think at this point I am assuming that he is acceding
to my advice with regard to calling them as his witnesses. He's saying if
there is no other way of recalling those witnesses, then he would not call
them as his own witness. But if, in fact, there is -- if the Court would
provide him the opportunity to call them back on cross-examination and not
as his own witness, then we would proceed immediately to question or
reserve questioning on those witnesses at a later
date.
MR.MCGILL: The last part I didn't get.
MR. JACKSON: In other words, if there is no other way of
calling those witnesses later other than calling them as his own witness,
then he won't do it.
MR. MCGILL: Then he won't do it.
MR. JACKSON: Then he won't do it, but if there is any
matter, some extant circumstance, some means that would allow him to call
them on cross-examination, he would want to do that.
MR. MCGILL: Well, I would make a suggestion to Mr. Jamal
that if he calls them as his own witness and if the purpose is to be able
to question them at a later time than when they first testify, he may be
getting the same effect. There may be some limitation in terms of leading
questions and all, but much like the motion to suppress which he has had
personal experience with, he has called witnesses on his own which he's
questioned. Now if that's what he wants to do, that's fine. He cannot -- I
mean, I'm not sure that he understands that -- I don't know if
he's really losing the thrust of what strategy he wants
by calling them as his own witness.
MR. JACKSON: My recommendation and advice to him is
because of the limitation of impeaching them.
THE COURT: No, there is no limitation.
MR. MCGILL: He's right. Calling them as his own witness
he cannot cross-examine them.
THE COURT: Not at the very beginning, but if they become
a hostile witness, he could certainly cross-examine them.
MR. MCGILL: Well, even then I would object to it, I would
object to calling a witness who may or may not be -- witness in criminal
matters are not viewed as hostile.
THE COURT: Yes, but I still can't with every witness
reserve the right to examine them later on because this jury is going to
get confused.
MR. JACKSON: I understand that, Judge.
THE COURT: In other words, you can go as far as you want
to with that witness on cross examination. Now if there's a particular
area that you feel that you can't do at this time,
then with that witness, fine, we could make a decision as
to that witness.
MR. JACKSON: Sure, and maybe, Your Honor, this might be
appropriate, I am going to request -- I don't know whether the
Commonwealth intends to present their ballistician today, but if they do
--
MR. MCGILL: Not today.
MR. JACKSON: Okay, because I do need some time to talk to
the ballistician, but other than that -- that would be a specific instance
where I would not be prepared to examine that witness. But I have
explained to Mr. Jamal that unless there was some particular reason, as
Your Honor indicated, for delaying the questioning of that witness, it
would be my view, based on what they say --
THE COURT: See, what I'm saying to you, I think you
should cross-examine him on everything that you can, but if there is a
specific area and we know beforehand --
MR. JACKSON: Sure, and maybe Mr. Jamal needs to be aware
that we always have the right to recall a witness in some area that we
were not
able to fully explore when they were on the witness
stand, or if there is some subsequent developments that would lead us to
bring the witness in, so it's not like if they testify and we examined
them they are gone forever, we can always bring them back.
MR. MCGILL: As your own witness.
MR. JACKSON: Maybe you weren't aware of that.
THE DEFENDANT: Okay. The point I'm making is that I did
not wish to have any cross-examination at this time. I wanted to reserve
the right to call them back after --
THE COURT: I will not let you do that with every
witness.
THE COURT: It's out.
THE DEFENDANT: I would like to make the decision. I don't
know what witnesses --
THE COURT: I have to make the decision.
THE DEFENDANT: Judge, wait a second. I don't know what
witnesses are going to be called, obviously.
MR. MCGILL: Judge, maybe I can make a
point, maybe we can cut -- example: If I call three
witnesses, all right, and Mr. Jackson decides to accept his advice, which
he does not have to, but if he accepts his advice to say, all right, fine,
I won't cross-examine them and he wants to call those same three witnesses
as defense witnesses, they can do that.
THE COURT: I'm not stopping him from that, but he doesn't
want to do that, you see.
MR. MCGILL: That's essentially what --
THE COURT: No, he doesn't want to do that. He just wants
to reserve his right to cross-examine all witnesses later on.
MR. MCGILL: I would object to any witnesses at any time.
You don't reserve your right and say, I'm not going to ask you any
questions now, but I'm going to call you back to examine you.
THE COURT: That's what he wants to do.
MR. MCGILL: But the same effect can be done as in the
motion to suppress where you call them back or I let you lead more than
usual.
THE COURT: What I'm saying, you must cross-examine them
at that time to the fullest
extent, and if there is a specific area that Mr. Jackson
has said that he feels has to wait until a later time and he calls it to
my attention, I would certainly allow him to reserve further
cross-examination on that point.
THE COURT: Even if it's part of your strategy. If you're
willing to give up your right to cross-examine entirely --
THE DEFENDANT: I'm not saying that. Don't put words in my
mouth.
THE COURT: If you're not saying it, then you must follow
the procedure as I'm setting it down for you. I think Mr. Jackson
understands what I'm saying.
THE DEFENDANT: Mr. Jackson isn't on trial.
THE COURT: Well, he's the attorney and that's who I'm
addressing so he understands.
MR. JACKSON: He can't cross-examine --
MR. MCGILL: He actually doing that depends on if I let
him.
MR. JACKSON: Sure, and we have to depend on
you letting him cross-examine them.
MR. MCGILL: Which I won't.
THE COURT: Unless there's something new, I'm not going to
go over that and hear these witnesses for the next six months. Do you
understand that that's what you have to have to have an orderly process
here? Do you understand your attorney?
MR. JACKSON: I understand, and I think what he loses is
the benefit of cross-examination of those witnesses because he would be
depending upon Mr. McGill to allow him to cross-examine his own
witness.
THE COURT: Not only that, this jury would have forgotten
what they said, and if you're going to cross-examine, it's better that you
do it immediately except if there's an area that you feel warrants calling
them back later and that's a different story.
MR. JACKSON: I understand that, Judge. And Mr. Jamal
would like two minutes with Theresa.
MR. MCGILL: I have no objection. I want you to put on the
Record that he already had twenty minutes --
THE DEFENDANT: Six minutes.
MR. MCGILL: All right, six minutes with Ms. Africa.
THE COURT: All right, call me when you're ready.
MR. MCGILL: This will be brief, I assure you, Judge.
MR. JACKSON: Your Honor, I'm going to renew my motion to
have Detective Thomas sequestered.
MR. MCGILL: He is here, Judge, that's why I mentioned
before to you that I would need, although he is not only at my table, I
just need him to be running out and getting people and getting the next
witness and if I can't find a piece of evidence. In other words, he's the
assigned detective. He may testify but only to the fact that he took a
search warrant out or took a statement. He might read the statement that
he
took, he might be called for that purpose only, so I
would ask the Court to allow him to remain in the courtroom.
MR. JACKSON: Your Honor, I would have no objection if we
got an absolute guarantee from the Commonwealth that Bill Thomas would
only read statements or read a search warrant, and if he gets into any
testimony other than what's being read, I would like to know.
THE COURT: Why don't you tell him exactly what he is
being called for.
MR. MCGILL: What he just said is accurate. I don't
completely know -- Judge, I have no idea what their defense is going to
do. It may involve the assigned detective explaining what he has done for
six months, who knows.
MR. JACKSON: I would object.
MR. MCGILL: See, Judge, it often is done that the
assigned detective is allowed in many cases because of this same reason,
that he is always there with somebody.
MR. MCGILL: I think he was at the scene serving a search
warrant on the automobile, on the cab, he did that. He won't testify to
seeing stuff except for the cab, that search warrant. He won't testify to
eyewitness stuff, he will not testify to any of Jamal's alleged
admissions, you know, he would only testify, if at all --
THE COURT: Let me say this: If you run into problems, if
he's outside and you run into any problem, ask for a little recess and
then you can bring him in and, you know, he can run for whatever you
want.
MR. MCGILL: All right.
MR. JACKSON: I'm not trying to give --
THE COURT: That might be the easiest way to do it.
MR. JACKSON: I'm afraid to do otherwise, Your Honor.
MR. MCGILL: Maureen Faulkner.
MR. MCGILL: The Crime Lab.
MR. JACKSON: No.
THE COURT: And then after that he can leave, because it
would be obvious if we let him out now.
MR. JACKSON: Sure, no problem.
MR. MCGILL: Your Honor, may I proceed?
THE COURT: Yes, you may.
MR. MCGILL: Ladies and gentlemen of the jury, Mrs.
Faulkner.
MR. MCGILL: May I proceed, Your Honor?
THE COURT: Yes.
DIRECT EXAMINATION BY MR. MCGILL:
Q. Mrs. Faulkner, can you hear me?
A. Yes.
Q. Now, Mrs. Faulkner, what was your relationship with
the deceased in this case, Daniel Faulkner?
A. Daniel was my husband.
Q. And where was he employed?
A. Philadelphia Police Department.
Q. Approximately do you know when he started with the
Police Department?
A. It was shortly after he came out of the Service.
Q. How long was he on the Police Department?
A. About six years.
Q. You mentioned the Service. What Service was that?
A. The Army.
Q. Enlisted?
MR. JACKSON: Objection.
THE COURT: Sustained. Try not to lead.
Q. All right. When did you last see your husband?
A. December 8, 1981 at 11:30 p.m.
Q. Where?
A. At our home in Southwest Philadelphia.
Q. At approximately what time?
A. 11:30 p.m.
Q. And was that the last time you saw him alive?
A. Yes.
Q. Mrs. Faulkner, when he left, how was he dressed?
A. In his Police uniform.
Q. And how was that? What kind of uniform was that?
A. Philadelphia Police uniform.
Q. Did he also have a tie?
A. Yes.
Q. Was part of the normal --
A. Yes.
Q. What kind of tie was that?
A. Blue tie.
Q. I mean is it like a bow tie?
A. No, it's a clip-on.
MR. JACKSON: Objection, Your Honor.
MR. MCGILL: It will become relevant later on, Your Honor.
I don't want to show her that evidence.
THE COURT: All right.
MR. MCGILL: I think it would be better for them if I
didn't.
THE COURT: Objection overruled.
MR. MCGILL: I would ask this be marked C-1.
Q. All right, Mrs. Faulkner, showing you what has been
marked as C-1, can you identify that?
A. It appears to be my husband's hat. The
frontispiece
is missing, I have that with me.
Q. I asked you to bring that today?
A. Yes.
Q. Do you have that with you on the stand?
A Yes.
Q. Okay, would you take that out.
MR. MCGILL: Your Honor, I ask this be marked C-l (a) and
(b), the hat (a) and the piece being (b).
Q. Now, was that the hat that he was wearing when you saw
him last?
A. Yes, I believe it was the hat that he wore.
Q. Now, Mrs. Faulkner, when was the next time that you
saw him?
A. I saw him the night of the wake.
Q. Now, at the time when he left you on December 9, 1981
was he injured in any way?
A. No, he was not.
Q. Was he in good health at that time?
A. Yes.
Q. And how long had he worked for the Philadelphia
Police?
A. About six years.
Q. And one of his brothers at one time worked for the
Police, too?
MR. JACKSON: Objection.
THE COURT: Sustained.
MR. MCGILL: Cross-examine.
CROSS-EXAMINATION BY MR. JACKSON:
Q. Did you find any red stains inside the Volkswagen?
A. No, sir.
Q. You found none at all?
A. No, sir.
Q. Did you look inside?
A. Yes, sir.
Q. Officer Land, based on your activities within this
case, do you know whether or not there were red stains or blood specimens,
samples, taken from inside the Volkswagen?
A. There were items taken, yes, sir.
3.80
Cross - Land
Q. Items of blood; is that right?
MR. MCGILL: Objection, Your Honor. He did not do it, he
does not know. He has no personal knowledge.
THE COURT: I'll sustain that. We'll get that information
through the proper witness.
MR. JACKSON: I have no further questions at this time.
Thank you.
REDIRECT EXAMINATION BY MR. MCGILL:
Q. Officer Land, you mentioned the words "fragment" and
"projectile". Will you tell the jury what the difference is?
A. Yes, sir, fragment meaning a bullet could have struck
something, it's just like a slight trauma to glass and it would just
shatter. The fragment is what we collect, a bullet being the whole
item.
Q. And the projectile, what part of the bullet is
that?
A. The projectile being the upper portion. I don't know
if some of the men are familiar with bullets, but the women, it's, like,
the silver or copper and
3.81
Redirect - Land
then at the very tip it's what's known as the bullet
which goes out of the gun. I don't have a spare bullet on me to show you,
but...
MR. MCGILL: I ask that this be marked C-18.
(Bullet is marked C-18 for identification.)
Q. C-18 is a bullet, is it not?
A. Yes, sir.
Q. Would you indicate exactly what you mean by a
projectile, what portion of that is a projectile of C-18 and what happens
to produce fragments?
A. Okay. As I've indicated, when it goes into a gun this
portion is the case which is loaded with powder and blasting cap or
whatever they may have I'm not familiar with the terminology -- but the
portion of the bullet is from the edge below my finger going up, that
portion is removed when fired from a gun. This would be what I would
retrieve on the street meaning a bullet, fragment meaning this would be in
several pieces.
Q. Now, is it not true, also, that when you fire a weapon
the projectile will obviously leave the bullet but the casing may well
remain or eject depending on the nature of the weapon?
3.82
Redirect - Land
A. Yes, sir, if it's an automatic.
Q. And in the nature of fragments there's really no way
of telling the number of projectiles or whether that's the same projectile
of those fragments you see; is that also correct?
A. That's correct, sir.
Q. And I guess in this case or in any case, unless you
have a direct match to a weapon, you're really unable to tell how long
either those projectiles or fragments were laying in that spot; would that
be correct?
A. That's correct, sir.
Q. Officer Land, you indicated in reference to a question
by Mr. Jackson as to the tie concerning how the tie got there. Had you
heard that Officer Faulkner was, in fact --
MR JACKSON: Objection to leading.
MR. MCGILL: This was brought out by counsel.
MR. JACKSON: He still isn't permitted to lead, Your
Honor.
Q. What did you hear about the tie?
A. That the tie was there due to the mere fact that
Officer Faulkner was carried from beside the Volkswagen
3.83
Redirect - Land
to the intersection and placed into a wagon.
Q. On his way to the hospital, correct?
A. Yes, sir.
Q. Now, also, counsel brought up the point of
fingerprints. Now using the word such as "latent" and the word
"unidentifiable, non-identifiable and identifiable", will you tell the
jury, those that do not know, what a latent print is, what identifiable
means, what is all this language?
A. Latent fingerprint is something used as latent meaning
invisible. It's a non-visible print. If I would put ink on someone's hands
and put it down, he would see a print. Latent fingerprints are left with
secretion. Everything has -- it's like a sweat, another word for
secretion. It remains on a smooth surface or even rough surfaces, paper,
what have you. A powder is used, the chemical construction I do not know,
it's bought outside the city, but it is a red -- some black, some yellow.
We have infrared powder, we have what they call burglary powder, which is
a powder that's put down and you would not see it on your hands until we
hit it with an ultra violet light as such, but this is done by brushing it
on with a chemical hair brush, stroking it back and
3.84
Redirect - Land
forth, a positive print being of certain characteristics,
many points. It's like putting a puzzle together. There's so many pieces
that develop the picture. The same with anybody's print; there are so many
characteristics as deltas, bridges, islands. There are so many variations.
It's like a big swirl with so many points in it and this may be an
identifiable print, but if we get just a very small portion it's not going
to do us any good because there's not enough points in it to compare to
any other prints.
Q. Officer, let me stop you there. We're talking about
latent prints, number one, we're talking about identifiable prints, number
two, and when you do have a result that enables you to say that an
individual had that item in his hand, what do you call that?
A. Identifiable print?
Q. No, one that has all the points.
MR.JACKSON: Objection.
THE COURT: I'll let him answer.
MR. JACKSON: Your Honor, I object to him doing that
unless we're assuming that Officer Land is a qualified fingerprint
expert.
3.85
Redirect - Land
THE COURT: Well, you brought it up.
MR. MCGILL: He brought it up, Judge. I was going to
object --
THE COURT: Go ahead.
MR. JACKSON: Fine. I'd like to pursue it anyway.
A. It's just a latent print. It's part of whole
characteristics that develop into a good print.
Q. Do you use the word "link-up" or a "match-up"?
A. Oh, match-up, sure. I wasn't going to use it because
it's not the term we use.
Q. Well, that's the one I use that I understand so let me
use that one.
A. Oh, sorry.
Q. Now, when you are able to get a print you are able to
get some kind of print, you are either getting nothing or some kind of
print, what are the circumstances that could possibly produce the kind of
condition where a print could be obtained?
A. Well, any surface is conducive of that, but if we come
up with a good fingerprint, it becomes developed and hooked up with a
certain photo number if that's what you are referring to.
Q. Okay, so it would depend, would it not, on the
3.86
Redirect - Land
particular type of surface whether or not you could even
get a print; is that correct?
A. Correct, sir.
Q. The next point is even though you get a print, you
don't know whether or not you could get what would be termed "identifiable
print" something that you, could actually see; would that be correct?
A. That is correct, sir.
Q. Now, even after you get an identifiable print you must
go to the next level in order to make a, what we call or you would call
"match-up". You must have a certain number of prints; is that correct?
A. That's correct, sir.
Q. And if you only have one or two points, that could be
the same person as a hundred thousand or a million people; isn't that
correct?
A. Oh, very much so.
Q. So in this case, in response to Mr. Jackson's
questions about the prints, your answer was that some latent prints were
taken; is that correct?
A. Yes, sir.
Q. In fact, one of the ones you said was negative all
together; is that right?
A. Yes.
3.87
Redirect - Land
Q. And I think of the four you said some identifiables
were taken; is that also correct?
A. Yes, sir.
Q. And you said that there was no match-up at all; is
that correct?
A. That's correct, sir.
Q. For anybody, for any person?
A. That's correct, sir.
Q. Whether in the case or otherwise, because there were
not enough points; is that correct?
A. Correct, sir.
Q. So what you're saying then is that it's not excluding
any individual or group of people, what you're simply saying is you don't
have enough number of points to tell; is that correct?
A. That is correct.
Q. So you don't know. All right, thanks.
RECROSS-EXAMINATION BY MR. JACKSON:
Q. Officer Land, so I'm certain and I can proceed, are
you a trained fingerprint technician, sir?
A. No, sir.
Q. So that everything you said about fingerprints is
3.88
Recross - Land
really just as a lay person; isn't that correct?
A. No, sir.
Q. Well, tell me how many points do you need to make a
comparison?
A. A minimum of twelve.
Q. Now, is that from the FBI or the Philadelphia Police
Department that says that?
A. In Philadelphia. That's what we have.
Q. If I have a particular rise delta in the fingerprint,
now you're saying that if there is only that peculiar delta that you can
identify, no other prints, are you saying that you cannot make a positive
match?
A. You're saying one point?
Q. I'm saying you see a full delta where there are no
points, you just see a portion of a fingerprint which is the delta leading
to the whirlwind and all of that, if you see one of them and you compare
it to someone's fingerprint, do you need thirteen or twelve other points
in which to say that's a positive identification?
A. Oh, yes.
Q. You're saying that that's a fact?
A. Sure.
3.89
Recross - Land
Where did you gain this information from, sir?
MR. MCGILL: I'll object to this point.
MR. JACKSON: He is the one who is testifying, I want to
find out the basis of him saying it.
MR. MCGILL: Mr. Jackson brings the point out and then
gets upset if I on redirect define it and then tries to go beyond his
expertise. I will have the expert in Monday morning for Mr. Jackson to
cross-examine all day if he wishes.
MR. JACKSON: I would like to cross examine him, Your
Honor, since he's on the stand.
THE COURT: He says he needs more.
BY MR. JACKSON:
Q. Are you saying it's required or is it preferred? I
just want to know. Is it required that you have thirteen or you prefer to
have thirteen points?
MR. MCGILL: Objection, Your Honor.
MR. JACKSON: There's a difference.
THE COURT: Did you say twelve or thirteen?
MR. JACKSON: Twelve or thirteen.
THE COURT: How many points did you say?
THE WITNESS: Twelve, sir.
THE COURT: Okay, go ahead.
3.90
Recross - Land
BY MR. JACKSON:
Q. And you're saying that's preferred or required?
A. No, preferred.
Q. Now, you indicated that James Famiglietti in the
Identification Unit made the examination, right?
A. No, sir.
Q. Oh, he didn't?
A. No, sir.
Q. I'm sorry, what did you say Mr. Famiglietti did?
A. All my lifts were sent down to the attention of G.
Famiglietti.
Q. He just stored them?
A. I do not know what Mr. Famiglietti did with them.
Q. So you made a determination that these prints were
identifiable, not identifiable and things of that sort; is that right?
A. No, sir.
Q. Well, who did?
A. Police Officer John Cahill.
Q. So that if I understand you correctly, when you're
testifying that these prints were unidentifiable, you don't know that for
a fact; is that right?
A. Well, I do, but they have to be verified.
Q. Well, I mean, if you do, tell us. I mean, do you
3.91
Recross - Land
or don't you?
A. Yes, sir.
Q. So that you lifted the latent prints and you
determined that they -- that some were non-identifiable.
A. Yes, sir.
Q. Based on what did you determine that they were
non-identifiable?
A. The characteristics were not there. The points were
not there.
Q. Now, isn't it a fact that the points that you're
talking about are only required to match up another fingerprint, but in
fact, you don't need thirteen points to say whether or not a print is
identifiable? Do you understand what I'm saying, sir?
A. Yes.
Q. So isn't it a fact that you don't need thirteen prints
to determine if a print is identifiable?
A. Thirteen prints?
Q. Thirteen points. My Apologies.
A. I don't know where the terminology thirteen came in,
I've been saying twelve.
Q. I'm sorry, that's my thirteen. I'm thinking thirteen.
Twelve, my apologies, sir.
A. That's correct. Some experts can do it with less.
3.92
Recross - Land
Q. So you only get into these numbers when you start
comparing one print to another; isn't that a fact?
A. Now you're out of my scope.
Q. But you're the one who testified and that's what I'm
trying to find out. I don't mean to criticize you, officer, my
apologies.
MR. MCGILL: Objection.
THE COURT: Just ask the questions please, no
comments.
MR. JACKSON: Sure.
Q. By the way, where are these latent prints, do you
know?
A. The fingerprints that were taken?
Q. Yes.
A. Sure.
Q. Where are they, could you tell me?
A. Right here (indicating).
Q. May I see them, please?
A Do you want to see any one particular or --
A. I would like to see them all if you don't mind.
A. Okay. There is one set, there is another set.
THE COURT: May I see counsel for a minute?
3.93
Recross - Land
(The following transpired at sidebar with the
Defendant
present and out of the hearing of the jury:)
THE COURT: Are you going to bring in the expert for these
fingerprints?
MR. MCGILL: Yes.
THE COURT: Why don't we wait for the expert?
MR. JACKSON: Your Honor, because I'm a fingerprint expert
myself and I know what he's saying is untrue.
THE COURT: What he's saying is a positive identification
can't be made, but you will get the expert here that's going to do it. You
brought it up and I don't even know why you went into this.
MR. JACKSON: Your Honor, because he made certain
allegations and I think I have a right to test whatever he says.
MR. MCGILL: He did not say there were no identifiable
prints.
MR. JACKSON: I know.
MR. MCGILL: He did not say that in order to have an
identifiable print you need thirteen
3.94
Recross - Land
points. An identifiable print is an identifiable print.
What you need is a certain number of points before identifiable prints can
be considered a match-up. That's what he said.
MR. JACKSON: He said some experts use less and --
MR. MCGILL: Well, twelve, or whatever.
MR. JACKSON: If I may clarify that, then I'll leave him
alone.
THE COURT: He's not an expert.
MR. JACKSON: But he's put it out there, Your Honor. I
objected and you said Mr. McGill could get into it.
THE COURT: You put it out on cross.
MR. JACKSON: Fine and then when Mr. McGill went into it I
said he is not an expert.
THE COURT: Right.
MR. JACKSON: But you let him answer Mr. McGill's question
when he said he's not an expert.
THE COURT: Because you brought it up.
MR. MCGILL: He brought it out as a result of prints.
THE COURT: Next time you're going to have
3.95
Recross - Land
to object because you get far afield with the
cross-examination and this is what you end up with.
MR. JACKSON: I understand. That's why I objected when Mr.
McGill questioned him on it and you said let him answer it with regard to
his expertise.
THE COURT: Only as far as he knows. In other words, as
far as he knows you need twelve points and he said some other experts
could do it with less than twelve. That's all he knows. He's not a --
MR. JACKSON: But that's wrong. It's absolutely wrong.
THE COURT: That's what he knows. Why don't you wait for
the expert to come in?
MR. JACKSON: Fine.
(The following transpired in open Court in the presence of
the jury:)
BY MR. JACKSON:
Q. Thank you, Officer Land, I'll leave you alone on this
one right now.
The other question I'd like to ask you, sir, I hope you
still have your bullet -- do you still have
3.96
Recross - Land
it?
MR. MCGILL: C-18 I believe it is.
Q. Okay. You talked about the projectile and you talked
about a casing, but in your direct examination you had also talked about a
jacket, a bullet jacket. Could you also tell the jury what the bullet
jacket is? Is there any difference between the casing and the jacket?
A. I should say that because we have it on there. It's a
copper jacket, which is the discolorations you see here, meaning copper,
exactly what it is, which I do not know what it does to the bullet.
Q. Do you know if it's normally left in the gun or
whether it goes out with the projectile?
A. It goes out with the projectile.
MR. JACKSON: Fine, sir. Thank you very much. I have no
further questions, Your Honor.
FURTHER REDIRECT EXAMINATION BY MR. MCGILL:
Q. Do you know who performed the work on determining the
number of points observable on those fingerprints?
MR. JACKSON: Objection.
THE COURT: He's asking if he knows who did
3.97
Redirect - Land
it; is that what you said?
MR. MCGILL: That's correct.
MR. JACKSON: We don't know that it's been done, Your
Honor.
THE COURT: Well, rephrase it.
MR. JACKSON: I'd object to anything this Officer says
with regard to fingerprints since he is not an expert and I've been
prevented --
THE COURT: He's just asking who did the work. Please, the
objection is overruled. Let's move on. Who did it, if you know?
A. Joe Grimes.
Q. All right, Joe Grimes is the head of the unit?
A. The chief down there, yes, sir.
MR. MCGILL: Thank you. He'll be here Monday.
THE COURT: All right, then we'll recess for lunch until
2:00 o'clock.
(A luncheon recess is taken at 1:00 o'clock P.M.)
3.98
AFTERNOON SESSION
(At this time the Defendant confers with Theresa
Africa.)
(The following transpired in open Court in the presence of
the jury:)
MR. MCGILL: May I proceed, Your Honor?
THE COURT: Yes, please.
MR. MCGILL: The first Commonwealth witness this afternoon
will be Reginald Thompson.
MR. JACKSON: Your Honor, may I have an offer of
proof?
(The following transpired at sidebar with the
Defendant
present out of the hearing of the jury:)
MR. MCGILL: Radio man.
MR. JACKSON: Oh.
MR. MCGILL: It's offered solely for the purposes of what
he, Faulkner said nothing further.
(REGINALD M. THOMPSON, is duly
sworn.)
3.99
Direct - Thompson
DIRECT EXAMINATION BY MR. MCGILL:
Q. Mr. Thompson, on December the 9th, 1981 where were you
employed?
A. Police Radio Room.
Q. What was your position there?
A. Police Dispatcher, twelve to eight shift.
Q. Tell us what a Police Dispatcher is?
A. Well, we assign the jobs to the Police.
Q. And you will have communication, will you not, with
Policemen who will call back to you for directions or responses or for
information; is that correct?
A. Yes, sir.
Q. Now, you were familiar, were you not, in terms of your
occupation, with the assigned cars for various officers on that day, are
you not?
A. Yes, I am.
Q. In reference to Officer Daniel Faulkner, were you
aware of his assigned car?
A. Yes, sir.
Q. What was it?
A. 610 -- 612.
Q. And what was the actual -- do you recall --
MR. MCGILL: If I may have those
3.100
Direct - Thompson
photographs, Jim.
THE COURT CRIER: Just the "C" photographs?
MR. MCGILL: Yes, the Commonwealth photographs.
Q. Now, showing you C-6, a photograph of his car which
shows 610 --
A. Yes.
Q. Now, you had indicated 612. What did you mean by
that?
MR. JACKSON: Objection.
THE COURT: I'll let him answer, overruled.
Q. Go ahead.
A. Well, on certain given nights certain vehicles are out
mechanically due to different --
MR. JACKSON: Objection.
THE COURT: I don't know the basis of your objection. May
I see you at sidebar?
MR. JACKSON: Your Honor, he's testifying as to what may
have happened some other time. We're just talking about this day.
Q. Well, at this time. Is there any time, sir, when there
are different vehicles than the number that they use?
A. Yes, sir.
3.101
Direct - Thompson
In other words, the vehicle has a different number on it
than the number that they refer to on the radio?
A. Yes, sir.
Q. Now why is that?
MR. JACKSON: Objection.
Q. In this case why was that?
MR. JACKSON: If he knows.
A. Because the original 612 car was out mechanical on
that given date.
MR. JACKSON: Your Honor, I would object unless this
gentleman can say that he knows that for a fact.
THE COURT: The objection is overruled.
MR. JACKSON: Thank you, sir.
Q. Now, Mr. Thompson, in this particular matter in this
case then the number of the car on Officer Faulkner's car was what?
A. 612.
Q. All right, the number actually physically on the
car?
A. Was 610.
Q. Now the number 612 actually refers to what then?
A. That refers to the car assigned to that certain
3.102
Direct - Thompson
sector, that certain part of the Sixth District.
Q. So are you then saying, sir, that the number of a car,
in this case, 612, refers directly to a certain area?
A. Yes, sir.
Q. Geographical area?
A. Yes, sir.
Q. And no matter what substitute vehicle is used for that
area, it still must use the number of the assigned, the assigned vehicle
number of that area; is that what you're saying?
A. Yes, sir.
Q. Now, sir, in this case -- are you familiar with
Officer Faulkner's voice?
A. Yes, sir.
MR.JACKSON: May it please the Court, with respect to his
familiarity with respect to Officer Faulkner's voice, I would like him to
indicate how, why and under what circumstances.
MR. MCGILL: Your Honor, we've already had an offer of
proof, the exact number --
THE COURT: I'll see you at sidebar.
(The following transpired at sidebar with the
Defendant
present out of the hearing of the jury:)
3.103
Direct - Thompson
MR. MCGILL: The limit of his --
THE COURT: I think what he's talking about --
MR. JACKSON: He just said, are you familiar with his
voice.
THE COURT: He wants to know if he heard it on other
occasions and things like that.
MR. MCGILL: Is that what you want?
MR. JACKSON: Yes.
MR. MCGILL: Okay.
(The following transpired in open Court in the presence of
the jury:)
MR. MCGILL: Sorry, Your Honor. Mr. Jackson is quite
right.
BY MR. MCGILL:
Q. Are you familiar with Officer Faulkner's voice, Mr.
Thompson?
A. Yes, sir.
Q. Have you heard it on a number of occasions?
A. Yes, sir.
Q. Have you heard it on occasions over the radio,
sir?
A. Yes.
3.104
Direct - Thompson
Q. Have you heard it in the course of your duties as
Dispatcher for the Police radio, Philadelphia Department of Police?
A. Yes. (Pause.)
Q. This is going to be played for you and the jury. It
will be a very short playing so I will ask everyone kindly to pay close
attention because it will be short.
(At this time a brief tape recording is played.)
MR. MCGILL: Your Honor, because of the instrument itself
and all, would you mind if we played that one more time because of the
difficulties in maybe hearing it?
(A this time the tape recording is played again.)
MR. MCGILL: I ask that it be marked C-19.
(Tape recording is marked C-19 for identification.)
Q. Did you recognize the voices on that tape?
A. Yes, I did.
Q. Who were those voices?
3.105
Direct - Thompson
A. That was the voices of Officer Faulkner and my
voice.
MR. MCGILL: I'd ask this be marked C-20, please.
(Transcript in memo form of tape recording
C-19 is
marked C-20 for identification.)
MR. MCGILL: Show the witness.
(The witness is shown C-20.)
Q. Mr. Thompson, would you take a look at those -- only
the top portion of that transcript. Do you see that, sir?
A. Yes, I do.
Q. Can you identify that?
A. Yes.
Q. What is it?
A. That's the conversation that went on between me and
612 car on that given night.
Q. Mr. Thompson, sir, could you read what it was that was
played?
A. Okay. "612 --
Q. All right, I said that the wrong way. First of all,
say who said it, then say what was said, and then do that for the next
person.
A. Okay. This is radio patrol car coming in,
3.106
Direct - Thompson
"612". Then it's my voice, "12". Then it's patrol car 612
again, "I have a car stopped ah 12, 13th and Locust.
"Radio: Car to back 612, 13th and Locust.
"RPC: On second thought send me a wagon 1234 Locust.
"Radio: 601.
"EPW: Yeah 01 okay, 1234 Locust.
"RPC: 22 I'll take a ride over.
"Radio: Okay."
MR. MCGILL: Okay, that's good enough. Cross-examine -- by
the way, when you say patrol car 612 you mean -- that was Officer
Faulkner?
THE WITNESS: Yes, sir.
3.107
Cross Thompson
MR. MCGILL: Okay, Mr. Jackson.
CROSS-EXAMINATION BY MR. JACKSON:
Q. Mr. Thompson, how long have you been in the Police
Radio Room, sir?
A. Nine and a half years.
Q. And you are assigned to a particular sector or section
of the City; is that correct?
A. Yes, sir.
Q. How long have you been assigned to this sector and
section of the City?
A. Approximately four years.
Q. And approximately when was it that Officer Faulkner
was assigned to this area, if you know, if you can recall?
A. I can't recall that. He might have been there before I
came.
Q. Do you recall when it was you first heard Officer
Faulkner's voice, approximately when?
A. That would be hard to surmise.
Q. Well, as hard as it may be, could you give us your
best estimate, sir?
3.108
Cross - Thompson
A. I'd say approximately two years ago.
Q. Two years ago?
A. Yes.
Q. And should we also assume that Officer Faulkner was
continuously assigned to the 612 car?
A. Yes, sir, to my knowledge.
Q. To your knowledge. Do you recall him ever being
assigned to another sector?
A. Not to my knowledge.
Q. And when you say not to your knowledge, could you tell
us what you mean by not to your knowledge?
A. Because I don't -- see, it's two people working a
position. I may not be assigned to that position on certain days.
Q. Oh, okay, fine. Now, you indicate that the sector is
assigned to this car 612, so it could have been car number one, but as far
as you're concerned that's car number 612; is that what you're saying?
A. Yes, sir.
Q. Now, do you know in fact on December 9, 1981 at or
about 3:58 where car 612 was?
A. You mean did I know exactly where he was at?
Q. No, where the actual 612 car, car number 612,
3.109
Cross - Thompson
not -- let me back up. You understand already you've
identified this vehicle 610 that's marked 610, you're saying as far as
you're concerned that was car number 612?
A. Yes, sir.
Q. My question to you is, the car that's marked 612, do
you know where it was that day?
A. It was down in Mechanical.
Q. No, my question is, do you know where it was?
A. No, I don't. I don't know.
Q. Now, do you know of any instance where they may
substitute cars where, in other words, 610 would be in operation, cars
that are marked 610 and 612, could they possibly be switched?
A. No.
Q. So that what you're saying is if the car that is
marked 612, if it was not working in sector 612, then that means the car
was down for some reason; is that correct?
A. Yes, sir.
Q. Now, could you tell us generally the sector that your
area, you know, that you dispatch for?
A. Well, Center City east of Broad and west of Broad,
river to river.
3.110
Cross - Thompson
Q. Now, vehicle 612, could you tell us the boundaries of
that sector as best as you can, sir?
A. Not really. I think it covers the area from -- to my
knowledge it covers from Broad to 10th, Locust to Chestnut, to my
knowledge. I'm not sure about that.
Q. But you're certain where this vehicle was stopped,
where the 612 car was stopped, this location at 13th and Locust, that is
within the sector?
A. Yes, sir.
Q. And as far as you know that is the sector that Officer
Faulkner had been working for approximately two years; is that right?
A. I'm not saying approximately for two years, but as
long as I was there that's the sector he worked.
Q. But you're saying, if I understood you correctly, you
said as long as you were there, that's four years, you worked that sector?
Correct me if I am wrong, sir.
A. Well, what you're saying -- what I'm saying is as far
as I know, to my knowledge --
Q. That's all I'm asking.
A. -- is that that was the car that Officer Faulkner
worked.
Q. I understand, and what I'm saying then is if he
3.111
Cross - Thompson
worked -- let me back up. You're saying as far as you
know that's the car I mean, is there something to suggest that he was
working some other car?
A. No.
Q. So then you're saying as long as two years, assuming
for a moment that Officer Faulkner always operated that car, the 612 car,
for about two years he worked that same sector?
A. Yes.
Q. Do you work a swing shift as well?
A. Yes, sir.
Q. And Officer Faulkner worked the swing shift?
A. Yes.
Q. So then would it be fair to say that the two of you
were on the same squad, meaning that you both changed together?
A. Yes.
Q. Now, would you have any knowledge, actual knowledge,
meaning do you yourself know, do you know when the car marked 612 was last
operated in that sector?
A. I wouldn't have knowledge of that.
MR. JACKSON: All right, thank you very
3.112
Direct - Shoemaker
much, I have no further questions.
MR. MCGILL: Thank you, Mr. Thompson. Does the Court have
any questions, Sir?
THE COURT: No.
(The witness is excused.)
MR. MCGILL: The next Commonwealth witness, Sir, would be
Officer Shoemaker.
(POLICE OFFICER ROBERT
SHOEMAKER,
Badge No. 4669,Stake-Out Unit, is duly sworn.)
MR. MCGILL: May I proceed, Your Honor?
THE COURT: Yes.
DIRECT EXAMINATION BY MR. MCGILL:
Q. Officer Shoemaker, where are you currently
employed?
A. Am I?
Q. No, where are you currently employed?
A. Philadelphia Police Department.
Q. And how long?
A. Eight years.
Q. On December the 9th, 1981 you were so employed?
3.113
Direct - Shoemaker
A. That's correct.
Q. And what was your tour of duty, sir?
A. Twelve to eight, midnight to eight in the morning.
Q. Without telling us the content of the radio call, did
you have occasion to respond to a radio call?
A. That is correct.
Q. Approximately when was it that you responded to a
radio call?
A. Approximately 3:55 in the a.m.
Q. Oh, by the way, were you alone or with someone else in
that car?
A. I was working with my partner Officer James Forbes,
Badge No. 9811.
Q. Were you in a car or a wagon?
A. A marked stake-out wagon.
Q. Okay, it's a stake-out. And just tell the jury,
please, exactly what you did after you heard the radio call and your
response to it?
A. If Your Honor pleases, on the date 12-9-81 at
approximately 3:55 in the a.m., patrolling the area of 12th and Chestnut
Street we overheard Officer Faulkner go out with a Car Stop in the area of
13th and Locust Streets. I was at 12th and Chestnut at the time. I
proceeded to travel south on 12th Street from
3.114
Direct - Shoemaker
Chestnut when I heard officer Faulkner go out over the
air again and ask for a wagon, meaning to me that he had a prisoner, so I
expedited my arrival. I proceeded the wrong way on Locust Street from
12th, at which time, as soon as we made the turn we were stopped, myself
and my partner were stopped by a cab driver who was swerving in front of
us putting his lights off and on. We stopped the cab. The cab driver
informed us --
MR. JACKSON: Objection.
MR. MCGILL: May I develop a foundation?
THE COURT: Yes, go ahead. Do you want to see me at
sidebar?
(The following transpired at sidebar in the presence
of the Defendant and out of the hearing of the jury:)
THE COURT: Mr. Jackson, do you want to explain the basis
of your objection?
MR. JACKSON: Yes, sir.
THE COURT: Although I realize it's hearsay, it's an
exception to hearsay because it's not what he was told, he did
something.
MR. JACKSON: Your Honor, because I don't
3.115
Direct - Shoemaker
see --
THE COURT: It's an exception to the hearsay rule.
MR. MCGILL: What I can do, Judge, is develop a foundation
because obviously it could also be res gestae, outside utterance. He was
also shocked at the time.
THE COURT: All right, but it's admissible, as I said, not
because of its truth but because of what was said to him that caused him
to take certain action.
MR. MCGILL: Yes, sir.
(The following transpired in open Court in the presence of
the jury:)
BY MR. MCGILL:
Q. All right, Officer, do not tell us what the cab driver
said, but as a result of what the driver said, all right, what did you
do?
A. We proceeded westbound on Locust Street, like I said,
the wrong way, till we came upon -- saw Officer Faulkner's overhead lights
from his car. I stopped approximately two car lengths from his car. I
exited the wagon and started to walk between two cars with my gun drawn, a
Volkswagen which was on my
3.116
Direct - Shoemaker
right, and a Ford, a dark colored Ford, which was on my
left.
As I proceeded between the two cars, I observed Mr. Jamal
sitting on the very end of the curb with his feet in the street, his right
arm was crossing his chest, his left hand was approximately six inches
from his leg on the ground.
I ordered the male to freeze. We made eye contact
probably about the same time, and the male did not freeze, his arm started
to move to the left.
Now at this point I couldn't see what he was reaching
for, if he was reaching for anything at all, so I adjusted my stance and I
took one side step to the left.
At this point I saw a two inch revolver approximately
eight inches from his hand. I again ordered the male to freeze, which he
did not, so before he grabbed the gun I kicked the male away from the gun.
My heel contacted his throat area and the sole of my shoe hit him on the
face.
As the male fell backwards he yelled twice, "I'm shot,
I'm shot." Still, with my revolver trained on him, I stepped over on top
of the male and I kicked the revolver with
3.117
Direct - Shoemaker
my right foot away from him to the right.
At this point I yelled to my partner to watch this
male.
At this time I walked over to Officer Faulkner who was
lying on his back unconscious bleeding very heavily. He was approximately
four feet from the Defendant. Myself and two or three other officers
lifted Danny up. We tried to put him in one of those small Horizon cars
that we have now on the street, but we couldn't fit him in the car so we
took him in a waiting Police wagon, and we put him in the wagon and the
wagon took him to the hospital.
Q. Now, were you the first Officer on the scene?
A. That is correct.
Q. So when you say that there were other Police officers
who helped you carry Officer Faulkner to the wagon, they had arrived after
you?
A. That's correct.
MR. MCGILL: With the Court's permission, Your Honor,
would Officer Shoemaker be permitted to go to the sketch?
THE COURT: Yes, he may.
(The witness complies with counsel's request.)
3.118
Direct - Shoemaker
Q. Now, would you move to the other side, the right side,
so the defense can see it and the jury. Tell us, Officer Shoemaker, where
you were when you had some communication with the cab driver?
A. Approximately here (indicating). I was traveling
south.
Q. Now I'm going to ask you, Officer Shoemaker, to speak
loud and speak to the jury when you talk.
A. Right. After I made the turn, as I was heading west
bound on Locust Street in the wrong direction, right approximately here
(indicating), right after I made the turn.
Q. And then go on with where you proceeded?
A. I proceeded west on Locust Street and stopped right
here (indicating).
Q. That's parallel to what vehicle?
A. The Ford, right at the Ford.
Q. Now, where in relation to that is the Volkswagon and
Officer Faulkner's car?
A. The Volkswagen (indicating), Officer Faulkner's car
(indicating).
Q. Go on, please, with where you went and where you saw
Mr. Jamal?
A. All right, as I exited my Police vehicle, I
3.119
Direct - Shoemaker
started to walk between the two vehicles, the Volkswagen
and the Ford. Mr. Jamal was sitting right on the very end of the curb, his
feet were in the street.
Q. All right, would you mark a large "J".
(Witness complies with counsel's request.)
Q. Did you proceed there to the sidewalk before your
partner or after?
A. Before my partner.
Q. And in which direction was Mr. Jamal reaching at that
time?
A. It would be to his left.
Q. His left?
A. Or my right since I was facing him.
Q. Now, you also stated that you and two other officers
or a number of officers carried Officer Faulkner to a wagon?
A. That's correct -- first to a car.
Q. Where was the car?
A. The car was in this area, in this area somewhere
(indicating). We walked between the Volkswagen and the Police car.
Q. All right, you're indicating a rough estimate on
Locust Street in between the Volkswagen and the Police
3.120
Direct - Shoemaker
car. Now were you able to get him in that car?
A. No, we weren't, it was too difficult.
Q. What did you then do?
A. We traveled along the street, put Officer Faulkner in
the wagon, which was down at this end of the street (indicating).
Q. And then the wagon went on to the hospital -- what
direction did the wagon go, if you know?
A. I'm not sure.
Q. You don't know, all right. Thank you very much,
Officer, go back to the stand.
(Pause.)
Q. I'm also going to ask you to take look at C-3 and put
a large "J" on that photograph where Mr. Jamal was.
(The witness complies with counsel's request.)
MR. MCGILL: Would you show the defense.
(Pause.)
Q. All right, you referred to Mr. Jamal when you were
testifying concerning this incident. Is he in this Courtroom?
A. That is correct.
3.121
Direct - Shoemaker
Q. Would you point him out?
A. The Defendant (indicating).
MR. MCGILL: Indicating the Defendant for the Record.
Cross-examine.
CROSS-EXAMINATION BY MR. JACKSON:
Q. Officer Shoemaker, you indicated that you overheard
this radio broadcast of Officer Faulkner; is that correct?
A. That's correct.
Q. I take it you know Officer Faulkner; is that
right?
A. That's correct.
Q. How long had you known him, sir?
A. About a year.
Q. And you worked together?
A. I worked in the same area as he did. I wasn't in the
6th District.
Q. That's right, you're Stake-Out, is that correct?
A. That's right.
Q. Now, you've heard his voice over the radio a
3.122
Cross - Shoemaker
number of times?
A. Yes, sir.
Q. That evening did you hear his voice before at any time
prior to this voice? In other words, did you hear his voice early on the
shift?
A. He made a car stop at 13th and Locust, I believe it
was about an hour earlier, and we also backed him up then.
Q. And where were you when you heard him make that car
stop an hour earlier? Do you recall where you were before you went to back
him up?
A. On this job?
Q. No. You said one hour earlier he made a car stop at
13th and Locust.
A. Right, well, we were at 13th and Walnut and we saw him
pull the car over.
Q. And what did you do then?
A. We just pulled up behind him.
Q. But if you're at 13th -- if he made the car stop at
13th and Locust and you're at 13th and Walnut, how could you pull up
behind him?
A. I'm sorry, Juniper and Walnut. He made the car stop at
Juniper and Locust because you're not permitted to make a turn from 11:00
p.m. to 6:00 in the morning
3.123
Cross - Shoemaker
at either location.
Q. He made the car stop at Juniper and Locust Street?
A. Yes, sir, Juniper and Locust.
Q. And you were at 13th and Walnut?
A. We were at Juniper and Walnut.
Q. Did you back up any other officers before you backed
up Officer Faulkner that night?
A. I really don't remember.
Q. Now Officer, although it's not required that you back
up an officer, it's pretty much the manner that officers do, they back up
someone when they make a car stop; is that correct?
A. That's correct.
Q. Now at the time that Officer Faulkner -- at the time
that you heard this broadcast, car stop at 13th and Locust -- we're
talking about this incident now -- did you have any reason to suspect that
Officer Faulkner was in danger?
A. No, sir.
Q. Nevertheless, it was your decision to go wrong way up
the street; is that correct?
A. That's correct.
Q. Is that what you normally do?
3.124
Cross - Shoemaker
A. Well, sir, I'll give you a little explanation on why I
did it.
Q. No, I just would like to know if that's what you
normally do.
A. If it is called for.
Q. Sir, that's not -- my question is, is that what you
normally do?
MR. MCGILL: Objection. I think he responded. If it's
called for it's normal. If it's not called for, it's not normal.
MR. JACKSON: He's testifying, have him sworn, please.
THE COURT: He's answered your question. You may not like
the answer, but go ahead.
MR. JACKSON: Very well, Judge.
BY MR. JACKSON:
Q. Now, you indicated that you were -- by the way, were
you in motion when you overheard the radio broadcast? Was your vehicle
moving?
A. The original car stop?
Q. Yes.
A. No. I was at the light on Chestnut Street at 12th. I
was traveling eastbound at Chestnut, but I was at the light.
3.125
Cross - Shoemaker
Q. And after you heard it you made the right-hand turn
onto 12th Street?
A. Yes.
Q. And proceeded towards Locust?
A. Yes, sir.
Q. And did you make the turn at Locust Street before you
saw the cab driver?
A. No, I made the turn -- I made the turn first --
Q. Yes.
A. Then I saw the cab driver.
Q. And the cab driver was in a traffic lane; is that
correct?
A. Well, he pretty much took up the whole street. He was
zigzagging.
Q. So you traveled some distance on Locust Street before
you ran into the cab driver; is that what you're saying?
A. About twenty, twenty-five feet.
Q. But you saw him for a period of time before you
stopped?
A. The cab driver?
Q. Yes.
A. Well, when he was coming in my direction, Yes,
sir.
3.126
Cross - Shoemaker
Q. Okay --
A. (Continuing) Flashing his lights off and on.
Q. Do you know about what distance the cab driver
traveled before you stopped? In other words, you're saying -- from your
testimony you said that you saw the cab driver zigzagging down the street.
At what point did you first see the cab driver, do you know where his cab
was?
A. As soon as I made the turn.
Q. Yes, but do you know where the cab was in relation to
the street? The end of the street, the middle of the block, closer to you,
say?
A. I would say the middle of the block.
Q. And he zigzagged to you when you were twenty feet from
the corner of 12th, approximately?
A. Approximately.
Q. And you stopped him momentarily to talk to him; is
that right?
A. Yes, sir.
Q. And did you talk to the cab driver or did your partner
talk to him?
A. He was on my partner's side, my partner's window was
rolled down. The cab driver's window wasn't all the way rolled down and he
just yelled from his cab
3.127
Cross - Shoemaker
to our truck, "They shot the cop, a cop's shot." That was
it.
Q. Had you seen Officer Faulkner, other than that earlier
car stop, had you seen Officer Faulkner earlier?
A. No, sir.
Q. By the way, when you backed up Officer Faulkner an
hour or so earlier, did you have a conversation with officer Faulkner?
A. No, sir.
Q. You didn't talk to him at all, just waited until he
completed his business with the person?
A. That's correct.
Q. When the cab driver stopped you he said, "They shot a
cop," didn't he?
A. "They shot a cop, a cop's been shot". That was my
understanding.
Q. Did he say "They" or did he say "He"?
A. "They shot the cop, a cop's been shot."
Q. So the answer is he said "They"?
A. "They."
Q. And anything else he said?
A. No, sir.
Q. Did he point?
3.128
Cross - Shoemaker
A. No, sir.
Q. Did you ask who?
A. No, sir.
Q. Did you ask where?
A. No, sir.
Q. Was there anyone else other than your partner and the
cab driver when you stopped?
A. No, sir.
Q. About how long did you stop there, approximately?
A. Five seconds, six seconds.
Q. When you turned the corner, coming from 12th Street
onto Locust Street, you looked up the street, obviously you saw the cab
driver come zigzagging down the street?
A. Correct.
Q. Did you see people on either side of the street?
A. My attention wasn't drawn to the people in the street,
no, sir.
Q. So then you were just concentrating on this cab
driver?
A. Certainly.
Q. At what time, if any, was your attention drawn to any
of the people who were on the street?
A. After I exited the wagon and came into contact
3.129
Cross - Shoemaker
with Mr. Jamal.
Q. Finally. So that it's fair to say from about twenty
feet from the corner of 12th Street to the location of Officer Faulkner's
vehicle you don't know whether or not someone was walking, running or
otherwise moving along Locust Street; is that right?
A. That's correct.
Q. Did you ask anyone, sir, if anyone walked away, moved
away from the scene, when you arrived did you ask anyone?
MR. MCGILL: Objection.
THE COURT: I'll let him answer the question.
A. Could you repeat the question?
Q. Sure. Did you ask anyone when you arrived at where
Officer Faulkner's vehicle was, did you ask anyone if anyone had left the
scene?
A. No, sir.
Q. By the way, you were in uniform?
A. Yes, sir.
Q. Do you know if there were plainclothes officers
working in that sector that evening?
MR. MCGILL: Objection. Personal
3.130
Cross - Shoemaker
knowledge.
THE COURT: I'll sustain the objection.
MR. JACKSON: Pardon?
THE COURT: See me over here.
(The following transpired at sidebar in the presence of
the Defendant out of the hearing of the jury:)
THE COURT: What's the basis of your objection first?
MR. MCGILL: It's on hearsay, whether he knows if they
were working.
MR. JACKSON: I asked him if he knows.
MR. MCGILL: It's hearsay, if he knows.
THE COURT: Why don't you ask him if he saw any. That
would be more --
MR. JACKSON: Can I ask if he knows first? That's not
hearsay.
THE COURT: Well, why don't you ask him if he saw them,
okay?
MR. JACKSON: Okay.
(The following transpired in open Court in the presence of
the jury:)
BY MR. JACKSON:
Q. Officer Shoemaker, did you see any plainclothes
3.131
Cross - Shoemaker
officers at the scene when you arrived?
A. No, sir, I did not.
MR. JACKSON: Thank you very much, I have no further
Questions.
REDIRECT EXAMINATION BY MR. MCGILL:
Q. Officer Shoemaker, when you arrived and saw the
Defendant on the curb did you see anyone else there?
MR. JACKSON: Objection, Your Honor beyond the scope.
THE COURT: Overruled.
A. I saw officer Faulkner and William Cook.
Q. And do you recall whether William Cook said anything
to you?
A. As I was leaning over Officer Faulkner I looked up to
see Mr. Cook, and his words to me were, "I had nothing to do with it."
That was all.
MR. MCGILL: I ask that that be marked C-21.
(Photograph is marked C-21 for identification.)
Q. I'm showing you C-21. Can you identify that
3.132
Redirect - Shoemaker
photograph?
A. William Cook.
Q. Where was he when you saw him in relation to Mr. Jamal
as well as Officer Faulkner?
A. He was up against the building line, flush up against
the building line with his hands in his pocket, approximately, I would
say, five to six feet away from officer Faulkner.
Q. Now, this car stop that Mr. Jackson brought out in
reference -- I think an hour earlier you said?
A. Yes, sir
Q. Was that a Volkswagen?
A. No, sir, it wasn't.
Q. Mr. Jackson asked you whether it was procedure to back
up cars --
MR. JACKSON: Objection. That was not the question.
Q. Do they often back up cars or do you often back up
cars, as I recall the question.
THE COURT: All right, go ahead.
A. My duty as a stake-out --
Q. That really wasn't a question, that was a lead-in.
There was a question to it.
THE COURT: Go ahead.
3.133
Redirect - Shoemaker
My question is this, isn't it a fact that you
particularly back up cars in the area of 13th and Locust?
A. Yes, sir.
MR. JACKSON: Objection, leading.
THE COURT: Well, it's been answered. Anything further,
gentlemen?
MR. JACKSON: Yes, I do.
MR. MCGILL: I do have one other question.
Q. Why do you do that? Tell the jury why you back them up
at 13th and Locust at 3:51 a.m., in the morning?
MR. JACKSON: Objection.
THE COURT: Overruled.
A. Because my job is to back up officers --
MR. JACKSON: Objection and move to strike as to what his
job is.
THE COURT: Overruled.
MR. MCGILL: Your Honor, I withdraw the question.
RECROSS-EXAMINATION BY MR. JACKSON:
Q. Now, officer Shoemaker, you indicated again
3.134
Recross - Shoemaker
that when you arrived at the scene the first person that
you saw was Mr. Jamal is that correct?
A. No, sir.
Q. Oh.
A. Once I got out of the truck.
Q. Yes.
A. As I was driving, as I was partially stopped getting
out of my truck I observed William Cook against the wall. I know William
Cook.
Q. You know William Cook?
A. From past experiences.
Q. Objection, and I would just ask you to answer my
questions.
A. William Cook was the first man I saw.
Q. Did you see anyone else before you got out of the
vehicle?
A. No, sir.
Q. Did you see Officer Faulkner?
A. No, sir.
Q. Now, I understand from your testimony when you got out
of the vehicle you saw Mr. Jamal, and the first thing you did was tell him
to freeze; is that right?
A. That's correct.
3.135
Recross - Shoemaker
Q. He wasn't moving, was he?
A. He had his hand partially covered, I couldn't see
where his hand was.
Q. But he wasn't moving?
A. Still.
Q. Sure. You told him to do what he was already
doing.
A. His hand was partially covered.
Q. I understand that, but my question is, you told him to
do what he was already doing?
A. And then his hand started to motion to the left.
Q. After you told him to freeze. So in effect, you told
him to freeze, meaning, I suppose, meaning to be still, when he was
already still; is that right? Isn't that a fact, Officer?
A. Yes.
Q. And then you said after you told him to -- although he
was still when you told him to freeze, after you said freeze, that's when
he moved; is that correct?
A. His hand started to motion, yes, sir, to his left.
Q. And when he started to move his hand you changed
3.136
Recross - Shoemaker
your position you say; is that right?
A. Yes, Sir, I did.
Q. How far away from him were you when you moved?
A. Three to four foot.
Q. Were you actually between the two vehicles at that
time?
A. Yes, I was.
Q. And you said that you moved one foot to one side or
the other?
A. One step to my left.
Q. One step to your left. And that was between the
Volkswagen and the Ford, I think you said?
A. I took a step towards the Ford, yes, Sir.
Q. And then you saw a weapon the ground; is that
right?
A. That is correct.
Q. When you saw the weapon the ground you were still
three feet away from Mr. Jamal?
A. Yes, Sir.
Q. You had your weapon drawn?
A. Yes, Sir.
Q. When you saw his hand move towards that weapon you
immediately kicked him?
3.137
Recross - Shoemaker
A. No, sir, I ordered him to freeze again, which he did
not do.
Q. And when you had ordered him to freeze did you move
closer to him?
A.Yes, sir, I had.
Q. So then how close were you?
A. Maybe two foot then.
Q. By the way, was he leaning or sitting, or what was his
position? Tell us so we know.
A. He was sitting in the curb, his feet were in the
street, right arm across his chest, left hand was extended, no weight was
on his left hand.
Q. How could you tell there was no weight, sir?
A. Because he was moving his hand and his body was
staying still. He wasn't --
Q. That was after you told him to freeze?
A. Yes, sir.
Q. Okay, go on. I just wanted to be clear.
A. That's it.
Q. And you were within two feet of him, and this is after
you had taken that step towards the Ford, you then saw the gun?
A. Yes, sir, I did.
Q. How far away was the gun from him?
3.138
Recross - Shoemaker
A. The Charter Arms had five spent casings. I believe
there were four Winchesters plus .39 caliber
3.176
Redirect - Forbes
Plus P's and one Smith and Wesson.
Q. And what I'm showing you now, C-22, the snub-nosed had
five spent; is that what you said?
A. That's correct.
Q. And what does "spent" mean?
A. It means the bullet has been ejected.
Q. And what about R-2 or C-23?
A. That had five live rounds and one spent casing.
MR. MCGILL: Thank you. Nothing further, Your Honor.
MR. JACKSON: Nothing further.
(The witness is excused.)
MR. MCGILL: Officer Soboloski.
(OFFICER DANIEL SOBOLOSKI,
Badge
No. 5596, is duly sworn.)
MR. MCGILL: May I proceed, Your Honor?
THE COURT: Yes.
DIRECT EXAMINATION BY MR. MCGILL:
Q. Officer Soboloski, on December the 9th, 1981 you
3.177
Direct - Soboloski
were a member of the Philadelphia Police Department?
A. That's correct.
Q. And you had occasion to respond to a radio call and go
to 13th and Locust Streets?
A. Yes, I did.
Q. When you arrived what did you do?
A. Upon arrival at the scene that morning I observed a
wounded officer laying on the sidewalk and the Defendant, which is in the
Courtroom, sitting on the sidewalk.
Q. Would you point out the man who was sitting on the
curb, the sidewalk?
A. With the tan shirt on (indicating).
MR. MCGILL: Indicating for the Record the Defendant in
this case.
Q. What if anything did you do?
A. All right, then at that time we attempted to put the
officer into a vehicle which was too small. The officer was then placed in
a wagon and transported to the hospital. I then handcuffed Jamal and he
was then placed in a wagon.
Q. Is that the man you pointed out in the Courtroom
before?
A. Yes.
Q. The one you handcuffed. Would you tell us
3.178
Direct - Soboloski
the circumstances of that handcuff?
A. After the officer was placed in the wagon I walked
back in front of the Volkswagen and I observed Jamal sitting on the
sidewalk with his feet either on the curb or in the street. He was facing
in a north direction. At this time I pushed Jamal down to the sidewalk
with my right hand onto the sidewalk so he could be handcuffed. At this
time a struggle ensued in which I had problems handcuffing him. It was at
this time other officers came to my assistance and helped me in
handcuffing Jamal.
Q. And during the course of the struggle was -- did any
part of the Defendant's body hit any areas of the ground or car or
anything?
A. Because of the struggle that ensued, Jamal hit the
sidewalk with his head or the top part of his body so that I had to
handcuff him behind his back. At this time the struggle started, I could
not get the handcuffs on him because of the outward motion he had his
arms. He was kicking his feet, pulling his arms apart, and I was having
trouble getting both arms together so he could be handcuffed properly.
Q. Now, you had assistance from a couple of officers,
3.179
Direct - Soboloski
didn't you?
A. Yes, I did.
Q. Officer Carolyn Chin and Officer John McGurk. Were
these officers also present in assisting you?
A. Yes, they were.
(At this time Police officers Carolyn Chin and John
McGurk
enter the Courtroom and then leave the Courtroom.)
Q. And what did you do? You finally handcuffed him, I
assume?
A. After Jamal was handcuffed he was then picked up.
During the course of picking him up he was still struggling, making it
very hard for us to lift him up properly and take him to the wagon.
Q. All right, during the course of taking him to the
wagon we accidentally ran into a pole because the pole --
THE COURT: Quiet, please. Go on, please, officer.
A. (Continuing) Because the pole was in course with the
back of the wagon.
Q. His head made contact with that pole; is that
correct?
A. Yes. As a result of that he came down and hit
3.180
Direct - Soboloski
his face on the ground, that's correct.
Q. Then did you take him in the wagon?
A. Yes, I did.
Q. And those officers were with you that you just pointed
out?
A. That's correct, they assisted.
MR. MCGILL: Your Honor, if it please the Court, may I ask
the officer to come down to the sketch?
THE COURT: Yes.
(The witness complies with counsel's request.)
Q. Officer, I'm going to ask you to approximate or as
close as you can, indicate where the Defendant was when you first saw him
and where he was at the time -- well, where he was at the time you were
attempting to handcuff him?
A. Jamal was approximately at the right front fender of
the Volkswagen sitting -- my vision was obstructed when I first was at the
scene, I looked between the front of the Volkswagen and the Ford and I
could not see Jamal at that time, so I walked between the vehicles and I
observed him sitting on the sidewalk with his feet either on the edge of
the curb or in the
3.181
Direct - Soboloski
street. When I pushed him down on the sidewalk I pushed
him in the direction which would point west, in a southwest direction, so
I could handcuff him behind his back.
Q. All right, now you eventually took him to the wagon;
is that correct?
A. That's correct.
Q. Tell us where that wagon was? Could you tell us where
the wagon was?
A. I believe the wagon was in the approximate vicinity of
the -- right next to the RPC 610.
Q. And that was what, facing in the east direction?
A. The wagon?
Q. Yes.
A. Yes, facing in an east direction.
Q. And he was then put in that wagon?
A. Yes, he was.
Q. All right, thank you, you can go back to the stand, if
you would please, officer.
(Pause.)
Q. At the time that you were there had officer Faulkner
been taken away, at the time that you arrived, or did you --
3.182
Direct - Soboloski
A. When I arrived on the scene officer Faulkner was still
lying on the ground.
Q. And did you see William Cook there at that time?
A. No, I do not remember seeing William Cook.
Q. So the people that you were cautious of were Officer
Faulkner and the Defendant? In other words, the Defendant was taken into
the wagon, correct?
A. That's correct.
Q. And you didn't put anybody else in that wagon, did
you?
A. No, I did not.
MR. MCGILL: Cross-examine.
CROSS-EXAMINATION BY MR. JACKSON:
Q. Officer Soboloski, do you know what time you arrived
at the scene?
A. Approximately 3:46.
Q. When you say approximately 3:46, you know why is it
3:46 and maybe not 3:45? I mean, is there some reason that you weren't
saying 3:45?
A. Give or take two minutes.
Q. I mean, is there something, some event that took place
perhaps prior to that that you recall
3.183
Cross - Soboloski
making a record of the time or something like that?
A. At approximately 3:30 I had what is known as a club
check. It was at 3:00 o'clock and at 3:30.
Q. Fine, now do you recall -- were you the driver or the
recorder that evening, on December 9th?
A. I was solo, I was by myself.
Q. Oh, I'm sorry. Do you recall whether in fact you
recorded the time that you were going to the scene or you went to the
scene?
A. I entered it but probably not until everything was
over.
Q. Okay, now when you arrived on the scene you were in a
solo car, you were in a marked vehicle?
A. Yes, I was.
Q. In uniform?
A. Yes.
Q. By the way, approximately how tall are you, sir?
A. Approximately six foot.
Q. And approximately how much do you weigh?
A. Approximately 230 pounds.
Q. Now when you arrived at the scene you indicated that
you had to look between the cars before you saw Mr. Jamal; is that
right?
A. I had to walk between the cars. It would be just
3.184
Cross - Soboloski
about between the cars before I could see him.
Q. When you arrived at the scene did someone else tell
you that Mr. Jamal was there?
A. No one told me specifically, no one said that was
Jamal, no.
Q. Well, not his name, but did they say, Lock him up, or
something?
A. No, no one told me that.
Q. Why did you lock him up? Why did you put handcuffs on
him?
A. Because of the scene. We evidently had an injured
officer, we evidently had a crime scene, we did not know if it was a
homicide yet.
Q. I understand that, but he was just a man on the curb;
why did you go to handcuff him if no one --
A. He was --
Q. Let me finish the question, sir. (Continuing) If no
one told you to handcuff him? You weren't there when it happened, he was
sitting on the curb. Why did you go to handcuff him?
A. Because at that time he was a suspect.
Q. How do you know if no one told you?
A. It's not my job to find out whether he did it or not.
If he's a suspect, he gets questioned later.
3.185
Cross - Soboloski
Q. There was a number of other people there at the time,
wasn't there?
MR. MCGILL: Objection.
THE COURT: Please don't argue.
MR.JACKSON: I'm not, sir, I'm not.
Q. There were a number of people there at the scene, were
there not?
A. What's a number of people?
Q. More than two?
MR. MCGILL: Objection. What is he talking about,
officers, civilians?
THE COURT: Be more specific.
Q. Other than Police officers, were there any other
civilians on that pavement or in that street in the immediate
vicinity?
A. At which time, when I pulled up?
Q. Yes, sir.
A. The only people I remember seeing were just two
people, one Police officer and one civilian -- excuse me, I saw two Police
officers and one civilian.
Q. Who was the civilian that you saw?
A. Jamal.
Q. You didn't see Cynthia White?
A. I don't know Cynthia White.
3.186
Cross - Soboloski
Q. Did you see a woman?
A. No, I didn't.
Q. Does it mean she wasn't there or you just --
MR. MCGILL: Objection.
Q. I'm trying to find out is it because you didn't focus
your attention on her --
MR. MCGILL: Objection.
THE COURT: Well, he's answered the question.
Q. Okay, so that's all you saw. What caused you to walk
between the cars?
A. That's where my vehicle pulled up, between the cars,
and before even getting out of the vehicle I looked through the passenger
side door and I saw Officer Faulkner lying on the sidewalk.
Q. And you saw officer Faulkner, but you couldn't see Mr.
Jamal at that time?
A. My eyes were focused on Officer Faulkner at the
time.
Q. And you got out of your vehicle and you had to walk
around your vehicle to go to get across the street; is that right?
A. I was parked in the middle of the street.
Q. Facing east?
3.187
Cross - Soboloski
A. That's correct.
Q. So you walked between the two cars and then you saw
Mr. Jamal?
A. When I -- before I got between the cars we attempted
to put Officer Faulkner in my vehicle. I only walked around to the
passenger side rear door on my side where I opened the door, and because
of the size of the vehicle we did not put Officer Faulkner in the car. We
then carried him and put him in a wagon.
Q. Okay, then you returned back to the scene and you saw
Mr. Jamal there?
A. That's correct.
Q. Now, at this point, up to this point, if I understand
you correctly, no one said that Jamal was a suspect or anything else, he
was just there. No one even mentioned to you that he was there; is that
right?
A. No one -- I asked the general question as to who the
male was on the sidewalk.
Q. Oh, you did ask that?
A. Yes. Nobody told me, I asked a general question.
Q. When did you ask that general question?
3.188
Cross - Soboloski
A. When I returned back to the scene.
Q. Before handcuffing him?
A. That's correct.
Q. When I asked you before how you knew he was a suspect
-- fine, all right. Now you're saying that you asked a question and you
got the response that he was a suspect, and then you went over to handcuff
him; is that right?
A. That's correct.
Q. Did anyone tell you to handcuff him?
A. No.
Q. Just following procedure. And if I understand you
correctly, when you first saw him he was sitting; is that right?
A. Yes.
Q. And you indicated, I believe, on direct examination
that you pushed him in a southwesterly direction in order to handcuff
him?
A. That's correct. It was towards the corner of 13th
Street, 13th and Locust.
Q. Okay, in a southwesterly direction, so that you could
handcuff him behind his back?
A. That's correct.
Q. And you customarily handcuff all prisoners
3.189
Cross - Soboloski
behind their back; is that right?
A. That is procedure.
Q. And you indicated that you pushed him, right?
A. That's correct.
Q. Was he struggling with you before you touched him?
A. How could he be struggling with me if I didn't touch
him?
Q. Just answer the question yes or no, sir.
A. No.
Q. So it's when you touched him he began to struggle with
you?
A. That's correct.
Q. So you pushed him before he even did anything to
you?
A. That's correct.
Q. Why did you push him, sir?
A. Because he was a suspect.
Q. So it's all right to push suspects?
MR. MCGILL: Objection, Your Honor. It's obvious where
he's going. Objection, argumentative. It's a series of argumentative
questions he's been permitted to ask, sir. I'm objecting.
3.190
Cross - Soboloski
THE COURT: Objection sustained. You've made your
point.
Q. Do you push all suspects?
MR. MCGILL: Objection.
THE COURT: I will sustain that.
Q. Did you know Mr. Jamal was injured?
A. No, I didn't.
Q. Did you ask him to get up?
A. No, I didn't.
Q. Did you attempt to stand him up so you could handcuff
him?
A. No, I didn't.
Q. You found it more convenient to push him than to
handcuff him?
MR. MCGILL: Objection, Your Honor, argumentative.
THE COURT: Sustained.
Q. Officer, there were other officers at the scene there
with you; is that right?
A. That's correct.
Q. I note there were two other officers who came in here.
Were there other officers at the scene?
A. After what time are you speaking of?
Q. At the time that you attempted to handcuff
3.191
Cross - Soboloski
Mr. Jamal.
A. There was one other officer that I had -- besides
officer Faulkner there was one other officer that was there within my
vision.
Q. With regard to those persons who were helping you
handcuff Mr. Jamal, it was just those two other officers and yourself?
A. I believe so.
Q. You believe so?
A. I don't know for a fact. I don't know how many
Policemen were there.
Q. Did you attempt to handcuff Mr. Jamal by yourself at
first?
A. Yes, I did.
Q. And you were unsuccessful and then -- did you call for
help or was help just there?
A. Help was already on the way.
Q. And how long would you say that you struggled with Mr.
Jamal before that assistance came to you?
A. A good couple of minutes.
Q. A couple of minutes. This whole couple of minutes Mr.
Jamal was on the ground; is that right?
A. That's correct.
Q. And you struck him a few times, didn't you?
3.192
Cross - Soboloski
A. No, I didn't.
Q. Other than the one time that you pushed him -- and
we'll leave out the pole for a moment, his head hitting the pole
accidentally --
MR. MCGILL: Objection, argumentative, Your Honor. It's
continuously argumentative and I object.
THE COURT: Just make your point.
MR. JACKSON: Yes, sir.
Q. I want to know if you touched him after you pushed
him?
A. Yes. I carried him to the wagon.
Q. Other than carrying him to the wagon did you push
him?
A. No.
Q. Did you strike him in any way?
A. No.
Q. Did you see him struck by anyone?
A. No.
Q. Did you see his face hit the ground?
A. I wasn't underneath his face. I could not see his face
hit the ground.
Q. You could not see his face hit the ground?
A. No.
3.193
Cross - Soboloski
Q. But my question is, did his face hit the ground?
A. In most likeness, yes.
Q. Most likely it did. All right. Who or what caused his
face to hit the ground?
A. After he hit the pole?
Q. No, I'm talking about before that, sir.
A. After he was pushed to the ground --
Q. Let me back up because I'm confused. You first came
upon the scene, you pushed him, we got that established.
MR. MCGILL: Objection. Repetitious.
MR. JACKSON: Your Honor, I'm trying --
MR. MCGILL: You're trying to lead him four times.
MR. JACKSON: I'm not.
Q. I'm trying to know if you saw him struck between the
time you pushed him the first time and the time he was carried to the
wagon. Did you see his face hit the ground?
MR. MCGILL: What are you asking him, whether he was
struck or whether he hit the ground?
Q. My question is, did you see his face hit the
ground?
A. No, I did not see his face hit the ground.
3.194
Cross - Soboloski
Q. Did you see anyone strike him?
A. No, I didn't.
Q. While you were trying to handcuff Mr. Jamal you were
just holding his arm?
A. I was attempting to handcuff him.
Q. When you say "attempting", tell us what you mean by
attempting?
A. It's the procedure to handcuff all prisoners behind
their back in this fashion. I did have one handcuff, I believe, on his
left arm, and while attempting to bend his other arm back to handcuff him
he started his arms in an outward motion so whereas I could not handcuff
him. You cannot handcuff someone unless their arms are approximately three
inches apart, no more, because the handcuffs are only that big.
Q. Okay, now when you pulled his left arm, okay, you said
you believe you had a cuff on the left arm; is that right?
A. Yes.
Q. And you pulled his hand behind his back --
A. That's correct.
Q. That's the direction you had pushed him to the ground;
is that right? He was on his left arm,
3.195
Cross - Soboloski
because you pushed him in a southwesterly direction you
told us earlier; is that right?
A. That's correct.
Q. So he was on his left arm anyway?
A. No, he was laying on his upper torso.
Q. How was he laying on his upper torso, Officer, when
you say when you arrived at the scene his feet were in the street and his
face was towards the wall?
A. No, he was facing north.
Q. All right, I understand that, he was facing Locust
Street, right?
A. That's correct.
Q. And you pushed him away from Locust Street in a
southwesterly direction?
A. That's correct.
Q. So he would have been on his left arm, wouldn't
he?
A. No. He turned onto his chest.
Q. He turned all the way over when you pushed him?
A. When he got pushed, yes.
Q. Oh, I'm sorry. Did he groan or anything when you
pushed him?
A. I don't remember.
3.196
Cross - Soboloski
Q. Then when you pulled his arm he started pulling it
back?
A. That's correct.
Q. Would that be a natural reaction for someone who was
shot?
MR. MCGILL: Objection, Your Honor.
THE COURT: Sustained.
Q. Now, he was on his chest and you still had some
difficulty handcuffing him; is that right?
A. That's correct.
Q. And the other two officers came and assisted you,
Officer McGurk and, I believe, Officer Chin?
A. That's correct.
Q. Were they kneeling on him, do you know?
A. No.
Q. Was anyone kneeling on him?
A. No.
Q. So all three of you were standing up trying to
handcuff him?
A. Squatting down.
Q. Squatting, Okay. So then you eventually picked him up,
all three of you?
A. That's correct.
3.197
Cross - Soboloski
Q. And carried him?
A. That's correct.
Q. Now, you indicated when you picked him up, Mr. Jamal
was right here between the Ford and the Volkswagen; is that correct?
A. He was facing the right front fender of the
Volkswagen.
Q. That's right here (indicating); is that right?
A. That would be approximately right next to where the
front tire -- the right front tire of the Volkswagen is.
Q. Now, where in this area was the wagon that you took
him to?
A. On the diagram I believe it was right next to where
the diagram of RPC 610 is.
Q. So the wagon is here (indicating)?
A. In that proximity, yes.
Q. Now, you saw Mr. Jamal when you came in between the
Volkswagon and the Ford. After handcuffing him he was pretty much right
near this wheel, you say. The pole was there that you accidentally ran his
head into?
A. I believe the pole was at the end of the Volkswagen,
the right rear corner of the Volkswagen.
3.198
Cross - Soboloski
Q. You're saying right here (indicating)?
A. Approximately, yes.
Q. Now, you said it was an accident?
A. That's correct.
Q. How were you carrying him?
A. Under his armpits.
Q. You had one armpit and someone else had the other
armpit?
A. That's correct.
Q. And was he standing?
A. No, he wasn't standing because he was still
struggling. He would not get on his feet so we had to help him to his
feet.
Q. He would not or could not?
MR. MCGILL: Objection, Your Honor.
THE COURT: Sustained.
Q. Well, could he get up?
MR. MCGILL: Objection.
Q. All right, and you carried him towards the pole. Had
anyone struck him by that time with anything?
A. I did not see anyone strike him.
Q. You remember testifying in this matter at another
hearing on, I believe, June 3rd?
3.199
Cross - Soboloski
A. I remember testifying, I'm not sure if that was the
date.
Q. Okay. You recall testifying; do you remember saying
that a couple of times his face was pushed to the ground?
MR. MCGILL: Objection, Your Honor.
THE COURT: I will sustain the objection.
Q. Do you recall if his face was pushed to the ground a
couple of times?
A. No, I don't recall that.
Q. Okay. After he hit the pole what happened, sir?
A. After he hit the pole, because of the way we were
walking to the wagon, he then fell to the sidewalk.
Q. Did any of the other officers hit the pole?
A. I don't believe so.
Q. And after he hit the pole his face hit the ground?
A. That's correct.
Q. So you, in effect, kept dragging him?
A. Partially.
Q. And from the time that you first handcuffed him until
the time that you got him in the wagon, how much period of time went by,
approximately?
A. Approximately three minutes, four minutes,
somewhere
3.200
Cross - Sobolosky
in that area.
Q. So you struggled with him by yourself at least the
same amount of time that the other two officers struggled with him as well
because I think you estimated it was two minutes when you struggled with
him before aid came?
A. I was there before the other officers.
Q. Yes, I understand, so you did about two minutes and
then they came for about a minute or two minutes?
A. Somewhere in that area.
Q. Fine. Now, during this period of time did Mr. Jamal
say anything at all?
A. He may have said something, nothing direct to me.
Q. You don't remember hearing what he said?
A. No.
Q. Now, you took him to the wagon?
A. Yes, I did.
Q. And you didn't actually put him in though, right?
A. I did help place him in the wagon.
Q. When you say to help "place him" I mean, did you go
into the wagon with him to see if he was in there?
A No, I did not.
Q. Did you notice at the time if he had any injuries on
him?
3.201
Cross - Sobolosky
A. No, I did not.
Q. So then would it be fair to say as far as you knew,
when you put him in the wagon he had no injuries on him at all?
A. I did not know he was injured, right.
Q. Fine.
(Pause.)
Q. By the way, do you know Officer Forbes?
A. Yes, I do.
Q. Did you see him holding some weapons?
A. Yes.
Q. Do you remember how many?
A. I believe it was two weapons.
Q. By the way, after Mr. Jamal was in the wagon did you
see anyone entering the wagon?
A. No, I did not.
Q. But you didn't continue to watch the wagon, did
you?
A. No.
MR. JACKSON: Excuse me one moment.
(Pause.)
Q. Officer Sobolosky, the resistance that you indicate
Mr. Jamal was putting forth, is it fair to characterize it was minor
resistance?
3.202
Cross - Sobolosky
A. In my estimation it would be minor.
Q. Fine.
A. I've had harder people to handcuff.
Q. Fine, sir.
MR. MCGILL: Is that it, Mr. Jackson?
MR. JACKSON: Your Honor, I thought I would let you know
when I have enough.
THE COURT: Go ahead.
MR. JACKSON: Thank you. I'm not done with this officer
yet, sir.
Q. When you saw Officer Forbes with the weapons where was
it?
A. Somewhere in the vicinity between -- on the sidewalk,
I believe it was, standing somewhere between the rear bumper of the
Volkswagen or the front of the radio patrol car and the south wall.
Q. Someplace around this area (indicating)?
A. Somewhere, I don't remember exactly where he was. I
know he was standing on the sidewalk.
Q. And the wagon was around in here?
A. In that proximity, yes.
Q. Do you know Inspector Giordano?
A. Personally, no.
Q. Do you know who he is?
3.203
Cross - Sobolosky
A. He's an inspector.
Q. Do you know him when you see him?
A. Yes.
Q. Did you see him that night?
A. No, I didn't.
MR. JACKSON: No further questions at this time.
REDIRECT EXAMINATION BY MR. MCGILL:
Q. Officer Sobolosky, you gave a statement to the Police,
did you?
A. Yes, I did.
Q. 12-9-81, December the 9th, '81 --
MR. JACKSON: Objection.
Q. Would you read those three lines to yourself?
MR. JACKSON: Objection. Number one, Your Honor, the
document has not been marked, he has not asked if he could approach the
witness, and he's doing it anyway. I thought this was your Courtroom, Your
Honor
THE COURT: It is. Just make the objection.
MR. JACKSON: Yes, Sir.
THE COURT: Objection is overruled.
3.204
Redirect - Sobolosky
Let's move it along.
MR. MCGILL: Yes, sir.
Q. Would you read those three sentences to yourself?
MR. JACKSON: May I have an opportunity to see the
document, sir?
THE COURT: Do you have another copy?
MR. JACKSON: I don't know what it is, it hasn't been
identified.
THE COURT: It's a statement that he made to the
Police.
MR. MCGILL: On 12-9-81. They have received everything
we've had for four or five months.
THE COURT: Do you have that statement?
MR. JACKSON: Your Honor, I didn't know what it was since
it wasn't marked.
THE COURT: His statement he made. Do you have it in your
possession?
MR. JACKSON: No, I do not, sir, and, Mr. McGill, I
brought that to your attention earlier today, sir.
MR. MCGILL: But as far as we know, they have had this for
four months.
THE COURT: Let me see that.
3.205
Redirect - Sobolosky
(Pause.)
Did you read that to yourself?
THE WITNESS: Yes, sir, I did.
BY MR. MCGILL:
Q. Did you give that on December the 9th, 1981?
A. Yes, I did.
Q. Is it accurate to say that you said that you had asked
a general question directed at anyone at the scene as to who the Negro
male was and was he part of the job, that you told the Police --
MR. JACKSON: Objection, Your Honor.
THE COURT: Do you want to see me at sidebar?
MR. JACKSON: Yes, sir, if you don't mind.
(The following transpired at sidebar with the
Defendant present and out of the hearing of the jury:)
THE COURT: What's the basis of your objection?
MR. JACKSON: Your Honor, he just -- first of all, he just
gives him a document that he asks him to read and it's beyond the
scope.
THE COURT: No, it's not, it's going into --
MR. MCGILL: It's a prior consistent
3.206
Redirect - Sobolosky
statement.
THE COURT: It's a prior consistent statement to what he's
saying now. He's trying to rebut that. You dug into that area and he's now
trying to show that on that night he made this statement which conforms to
what he's now saying.
MR. MCGILL: It's a prior consistent statement.
THE COURT: Sure, go ahead.
(The following transpired in open Court in the presence of
the jury:)
BY MR. MCGILL:
Q. The Officer stated that he asked a general question
and you directed it to anyone at the scene as to who the Negro male was
and was he part of the job. He stated that someone replied, yes, and then
they added that they thought he was; is that correct?
A. I did, yes.
Q. Did you hear over the radio any call or direction that
an officer was shot?
A. Yes, I did.
Q. And when you arrived at the scene did you see Officer
Faulkner?
3.207
Redirect - Sobolosky
A. Yes, I did.
Q. Did you see him in a pool of blood at that time?
A. Yes, I did.
Q. Did you see his wound at the time?
A. I could not make out exactly where it was, but it was
coming from the head vicinity. How close was Mr. Jamal to Officer
Faulkner?
MR. JACKSON: Objection, Your Honor.
THE COURT: I didn't hear the question.
MR. MCGILL: I said, how close was the Defendant to
Officer Faulkner at the time he saw him.
MR. JACKSON: Objection.
THE COURT: Rephrase that question first.
Q. Where was the Defendant in relation to Officer
Faulkner when you first saw him after you saw the wounded officer?
A. They were approximately four, five or six feet
apart.
Q. And you recall now asking that general question that I
just read?
A. Yes.
Q. At that time, sir, after that radio call, seeing
Officer Faulkner in that position and this
3.208
Redirect - Sobolosky
Defendant there, is it not a requirement and police
procedure to arrest and neutralize the situation?
A. Yes, it is.
Q. Did you know whether or not he had a weapon on him at
that time?
A. No, I did not.
Q. Did you know whether or not you were going to be shot
in a couple of moments?
A. No, I did not.
MR. JACKSON: Objection.
MR. MCGILL: I have nothing further, Your Honor.
MR. JACKSON: I have nothing further either, Your
Honor.
MR. MCGILL: Thank you, Your Honor. Mr. Robert Chobert is
next.
(The witness is excused.)
MR. JACKSON: Your Honor, may we see you at sidebar for a
moment? We don't need this on the Record.
(A discussion is held at sidebar off the Record.)
3.209
Direct - Chobert
(ROBERT CHOBERT, is duly sworn.)
MR. MCGILL: May I proceed, Your Honor?
THE COURT: Go ahead.
DIRECT EXAMINATION BY MR. MCGILL:
Q. Mr. Chobert, would you please speak up, sir, so that
we can hear you, the jury and all, when you answer these questions. All
right?
A. Yes.
Q. Do you hear me all right, sir?
A. Yes, I do.
Q. Now, Mr. Chobert, on December 9, 1981 were you
employed at that time?
A. Yes, I was.
Q. In what capacity were you employed?
A. As a cab driver.
Q. For what company at that time?
A. The name is Crescent.
Q. Did you have occasion a little bit before 4:00 a.m. on
December 9, 1981 to be at 13th and Locust Streets?
A. Yes, I was.
3.210
Direct - Chobert
Q. And did you have occasion specifically to be at the
southeastern corner of 13th and Locust Streets?
A. Yes.
Q. What were you doing there?
A. I let my fare off.
Q. What did you observe, what happened?
A. Well, I let my fare out and I'm marking down on my pad
how much it was, and then I heard a shot. I looked up, I saw the cop fall
to the ground, and then I saw Jamal standing over him and firing some more
shots into him.
Q. Now, you used the word and name Jamal. I'll ask you
this: How many times did you see that individual shooting the Police
Officer when he was on the ground after he had fallen down?
A. What was that again, please?
Q. You said you heard a shot; is that right?
A. Yes.
Q. You looked up, and what did you see the officer
do?
A. I saw the officer fall.
Q. And then what did you see happen? Just say what you
saw happen then.
A. I saw him shoot him again several more times.
3.211
Direct - Chobert
Q. Several more times?
A. Yes.
Q. Now, what then did you see that you referred to as the
shooter do?
A. Then I saw him walking back about ten feet and he just
fell by the curb.
Q. All right, and then what happened?
A. Then I got -- I started getting out of my cab, I
started walking to the cop to see if I could help him and then all of a
sudden Police officers came and told me to get back into my cab.
Q. All right, and what did you see? Did you see the man
at the curb any more, or what did they do to the man at the curb?
A. They just stuck him in a wagon.
Q. And where did you say you went?
A. I went back and got in my cab.
Q. And what then happened?
A. And a couple -- about -- a couple minutes later a
Police officer came over and asked me if I seen this thing.
Q. What did you say?
A. I said yes, I did. He said, Did you see the guy that
shot the cop; and I said, yes.
3.212
Direct - Chobert
Q. You have to speak up loud. You may be a little
nervous, speak up loud so I can hear you. The officer came to you and
asked what?
A. If I saw what happened, and I told him yes.
Q. And then what?
A. Then he asked me if I ever see the guy again, would I
know him. I said yes, I would. They took me over to the wagon and asked
me, is that the guy. I said yes, it is.
Q. How much time really transpired from the time that you
first saw the shooter shooting the officer and the time that you saw the
shooter down at the curb until the time that you went and identified him
in the wagon?
A. Just a couple of minutes.
Q. At the time when you saw the shooter shooting the
officer on the ground was there anyone else around, around the officer and
the shooter?
A. Yes, another black male.
Q. And where was he in relation to the officer as well as
the shooter?
A. Where?
Q. Yes.
A. Standing against the wall.
3.213
Direct - Chobert
Q. Other than those two males and the police officer, was
there anyone there?
A. No.
Q. Now, this individual, sir, that you saw shooting the
officer, would you look around the Courtroom and tell me if you see if he
is in the Courtroom?
A. Yes, he is.
Q. Will you point him out?
A. He's right there (indicating).
Q. Would you describe what he has on?
A. What he got on now?
Q. Yes.
A. He has a long shirt, a tee shirt, and a beard and long
natty hair.
Q. Is there any doubt in your mind at all that that man
is the man who shot the officer?
A. That's the man all right. I got no doubt.
MR. MCGILL: Permission of the Court, may I ask him to go
to the sketch?
THE COURT: That sketch?
MR. MCGILL: Yes.
THE COURT: All right.
Q. Now I want you to move, if you can, a little bit back
here, over here so the jury can see.
3.214
Direct - Chobert
Q. Would you show us approximately where you were? This
is 13th Street, this direction, this is Locust Street on there, right?
A. Yes, sir.
Q. Indicate to the Court exactly where you were?
A. Right here (indicating).
Q. Now when you went and identified the Defendant in the
wagon, can you indicate where the wagon was?
A. Right here.
Q. All right, indicating for the Record beside the RPC
610 vehicle, on the left side of it. And approximately, if you can recall,
when you saw the Defendant shooting the officer where was the Defendant,
if you can remember?
A. Right around here somewhere (indicating).
Q. And where was the officer?
A. (Indicating).
Q. And where was the other male?
A. By the wall (indicating).
Q. Now, when you got out of your cab and started to walk
toward -- to help the officer out, how far did you get?
A. I got about right here (indicating).
3.215
Direct - Chobert
Q. All right, indicating the right side of the RPC 610.
And then, as I understand it, you went back to your cab; is that
correct?
A. Yes.
Q. You were told to go back?
A. Yes, I was.
Q. Did you stop walking forward at the time when the
Police arrived; is that correct?
A. Yes.
Q. From the time that you saw the Defendant shooting the
Police officer until the time that the Defendant was placed in the wagon,
did you ever lose sight of the Defendant?
A. No, I didn't.
Q. Come up here, if you would, Mr. Chobert. I will ask
you to stand -- you don't have to come down, but I would ask you to stand,
with the Court's permission.
(Witness complies with counsel's request.)
Q. Now, when the Defendant was standing over the officer,
could you show me exactly what motion he was making or what you saw?
A. I saw him point down and fire some more shots into
3.216
Direct - Chobert
him.
Q. Now you're indicating, for the Record, a movement of
his right arm with his finger pointed toward the direction of the ground
and moving his wrist and hand up and down approximately three, four times;
is that right?
A. Yes.
Q. You may sit down.
MR. MCGILL: Cross-examine. May we see you at sidebar,
Your Honor?
THE COURT: Yes.
(The following transpired at sidebar out of the hearing of
the jury:)
MR. MCGILL: Your Honor, he has a copy of his record -- I
will give him another copy of this record -- he is on probation for arson,
five years probation. There is no criminal conviction of crimen falsi. Do
you --
MR. JACKSON: I would like to see it for sure, too, and
I'm not so sure that arson isn't crimen falsi.
MR. MCGILL: Arson is definitely not crimen falsi.
3.217
MR. JACKSON: If it's done for personal gain, if it's done
for hire, it's crimen falsi. You can't say just because he is convicted of
setting a fire --
THE COURT: I don't think arson is crimen falsi. Burglary
would be, robbery would be.
MR. JACKSON: Anything that shows dishonesty
generally.
THE COURT: Arson doesn't necessarily show --
MR. JACKSON: That's what I'm saying. If it's done for
personal gain or for profit, then it would be.
THE COURT: Well, we'll have to do that out of the hearing
of the jury.
MR. JACKSON: I would like to find that out, Judge.
THE COURT: Take a five-minute recess with the jury
please.
(The jury is excused for a five-minute recess,
and the
following transpired at sidebar:)
THE COURT: What he wants to do is out of the hearing of
the jury go into that arson
3.218
to see if it was done for monetary gain.
MR. MCGILL: Wait a minute, Judge.
THE COURT: I don't know that --
MR. MCGILL: Wait a minute, Judge. This is not -- the
answer is no. There is no way this is crimen falsi.
THE COURT: Do you have any law to support what you're
saying?
MR. MCGILL: All right, Arson for personal gain, but it's
not theft. It's not theft.
MR. JACKSON: It would be if he did it for hire, if he did
it for insurance. It would be the same thing, what's the difference? It's
fraud. That's what it is. It constitutes fraud and to say that he just lit
a match and burned something -- what I'm saying is if he did it for money,
for personal gain of some sort, it's crimen falsi. You have to look beyond
the conviction. You just can't go to arson. Do you have anything in your
records? What does it show, just arson? What happened in the case?
MR. MCGILL: The case -- it's not the
3.219
case, Judge, it's the charge that's relevant. It's not
the case, it's the charge.
MR. JACKSON: I would disagree.
MR. MCGILL: There's just no way that arson is crimen
faisi. Here it is, here's his record.
(Pause.)
THE COURT: See, we don't know whether he was convicted of
the arson or criminal mischief or what. You don't have the complete
record?
MR. MCGILL: We can -- you mean the computer? I don't have
the computer sheet, but he tells me arson.
Judge, if you want to bring him over here out of the
hearing of the jury, if you want to bring him over and ask him; I just
don't feel that it's fair to him in public with this press around him,
Judge. That's what would bother me very much.
THE DEFENDANT: Judge, I got to go to the bathroom.
THE COURT: Go ahead. Take him to the bathroom.
THE COURT: Come over here, Mr. Chobert.
3.220
(The witness complies with the court's request and comes
to sidebar.)
MR. MCGILL: Mr. Chobert, we're trying to determine in
terms of background your criminal history. You are presently under
probation for, what is the conviction?
THE WITNESS: Arsonist.
MR. MCGILL: Arson?
THE WITNESS: Yes.
MR. MCGILL: And were you also convicted of burglary, or
was it just arson?
THE WITNESS: It was just arsonist.
MR. MCGILL: All right. There are other charges on there.
What is there?
THE COURT: Causing a catastrophe and criminal mischief.
What happened on those, do you know?
MR. MCGILL: Criminal mischief, that's not crimen
falsi.
THE COURT: I know that but you're asking me. It's cause
or risk of a catastrophe. Was that what it was that you were convicted
of?
MR. MCGILL: What were you found guilty of?
3.221
The Judge wants to know what you were found guilty
of.
THE WITNESS: I threw a bomb into a school.
THE COURT: You threw a bomb into a school?
THE WITNESS: Yes.
THE COURT: What kind of a bomb?
THE WITNESS: A Molotov.
THE COURT: A Molotov cocktail?
THE WITNESS: Yes.
THE COURT: You just threw it into a school building?
THE WITNESS: Yes.
THE COURT: Where was this, what school building?
THE WITNESS: John Bartram.
THE COURT: And how old were you when you did that?
THE WITNESS: Eighteen.
THE COURT: You were eighteen?
THE WITNESS: Yes.
THE COURT: Did you go to that school?
THE WITNESS: Yes.
3.222
THE COURT: And that's why you threw it in there?
THE WITNESS: No, that ain't why. I got paid for doing
it.
MR. JACKSON: I'm sorry, I didn't hear that.
THE WITNESS: I said I got paid for doing it.
MR. MCGILL: What do you mean --
MR. JACKSON: That's the reason, that's crimen falsi.
THE COURT: That's not crimen falsi.
MR. JACKSON: If you've got --
MR. MCGILL: That is not crimen falsi. He got paid for
doing it --
MR. JACKSON: He got paid for doing it, that is crimen
falsi.
MR. MCGILL: Even first degree murder is not crimen falsi
if you get paid on a contract basis. That's not crimen falsi, and that's
not theft by deception. That's definitely wrong. A murder is not crimen
falsi when you have a contract.
THE WITNESS: Your Honor, can I say something?
3.223
THE COURT: Yes.
THE WITNESS: How come you bring this up, my
background?
THE COURT: Well, he is raising the issue and that's why I
want to hear this while the jury is not here.
THE WITNESS: It doesn't matter about nobody else, it's my
background.
THE COURT: I know that, but the only time it would be is
if it was in the nature of crimen falsi. I guess I have to make a
decision, and I don't think that arson is crimen falsi.
MR. MCGILL: It is not?
THE COURT: I will make that decision.
MR. JACKSON: If that's your ruling, sir.
THE COURT: Okay.
(The following transpired in open Court
in the presence
of the jury:)
CROSS-EXAMINATION BY MR. JACKSON:
Q. Good afternoon, Mr. Chobert. Mr. Chobert, I don't want
to know where exactly, but do you live in
3.224
Cross - Chobert
Philadelphia?
A. Yes, I do.
Q. Fine. Do you know Officer Faulkner, or did you know
Officer Faulkner?
A. Personally? No, I didn't.
Q. Do you know other Police in the 6th District?
A. No.
Q. None?
A. No.
Q. You never met any of them?
A. I met them but not friends.
Q. They're not friends, but you met them?
A. Yes.
Q. How long before this incident?
MR. MCGILL: Objection. Irrelevant.
THE COURT: I'm going to sustain the objection unless you
can tell me where you're going. Come over here.
(The following transpired at sidebar with the
Defendant
present out of the hearing of the jury:)
THE COURT: Where are you going in this line of
questioning?
MR. JACKSON: I just want to find out if
3.225
Cross - Chobert
he has some bias for the officers.
THE COURT: You know he doesn't. The only contact he had
with the Police was --why don't you come out and ask him?
MR. MCGILL: What? Ask him what?
THE COURT: I don't know, he says he thinks there is some
bias.
MR. MCGILL: I thought you meant ask him about his
record.
MR. JACKSON: Oh, no. No, I was just leading him to find
out about -- I was going to ask him one or two questions to find out how
long -- he says he met them, I think he said they weren't friends, and I
just want to know how soon before this incident, because he says these
officers of the Sixth District, not just Police Officers but Sixth
District Police Officers.
THE COURT: But then you're going to get into the fact
that they were the ones that arrested him for intoxicated driving.
MR. JACKSON: I'm not going to ask him that.
THE COURT: But he's going to think that that's where you
are going. Sure, he knows these officers, because he's been arrested twice
for
3.226
Cross - Chobert
intoxicated driving.
MR. JACKSON: Both in the Sixth?
THE COURT: I don't know. He says he has no friends that
are Police Officers. These fellows are not friends. The only thing I can
assume from that is that they are the ones that locked him up.
MR. MCGILL: It's an indirect way of doing it. The only
contact he has had with Police Officers has been that.
THE COURT: If you ask him, it's a different story.
MR. JACKSON: Okay, I'll ask him that.
(The following transpired in open Court
in the
presence of the jury:)
BY MR. JACKSON:
Q. Mr. Chobert, now you've indicated that you've met
Police officers from the Sixth District but they're not friends of yours;
is that right?
A. Yes.
Q. Do you have any friends in the Police Department?
A. Yes, I do.
Q. Are any of these friends -- have any of these friends
formerly worked in the Sixth Police District?
3.227
Cross - Chobert
A. No.
Q. You're certain of that?
A. I'm sure.
Q. I'll leave that alone for the moment. Mr. Chobert, you
indicated that at the time of this incident you were letting out a fare at
13th and Locust Street, a woman; is that right?
A. Yes, I did.
Q. And you pulled up to the curb and that would have been
the southeast corner of 13th and Locust; is that right? Is that right,
right here, just past the corner?
A. Yes.
Q. Right there (indicating)?
A. Yes.
Q. And what side of the car did your passenger get out,
do you remember?
A. On the right-hand side.
Q. So that would have been on the sidewalk, right?
A. Yes.
Q. When she got out did you see if anyone else was on the
corner?
A. No, I didn't.
Q. Did you see anyone on the pavement on that side of
3.228
Cross - Chobert
the street?
A. No.
Q. Now, you started to write something on your waybill,
right, your log?
A. Yes.
Q. You know, how much it was and where you came from and
all of that, right?
A. Yes.
Q. And while you were doing that you heard a shot?
A. A shot, that's what I said.
Q. One shot?
A. Yes.
Q. When you heard that shot you were still writing and
you raised your head, right?
A. Yes.
Q. And you were obviously seated in the driver's side of
your cab; is that correct?
A. Yes.
Q. And there was a Police car 610 in front of you,
right?
A. Yes.
Q. How much distance was between you and the Police car,
between your vehicle and the Police vehicle?
A. About a car length.
3.229
Cross - Chobert
Q. Pardon me?
A. One car length.
Q. One car length?
A. Yes.
Q. And you then indicated that you saw who you're certain
is Mr. Jamal, right?
A. Yes.
Q. So you saw Mr. Jamal shoot the Police Officer; is that
right?
A. Yes.
Q. What hand did he have the gun in?
A. I didn't take notice of that.
Q. Wait a minute.
A. I didn't take notice what hand.
Q. Did you see the gun?
A. No, I didn't see the gun.
Q. Did you see a gun?
A. No.
Q. Did you see the flash of the weapon?
A. No, but I heard shots.
Q. You heard shots?
A. And I saw him pointing.
Q. Pardon me?
A. I saw him pointing his hand, too.
3.230
Cross - Chobert
Q. So you assume the shot must have come from the man who
had his hand out?
A. Because there were only two guys there.
Q. I understand that, but you are saying you heard shots
and you saw a man with his hand out so he must be the one doing the
shooting; is that right?
A. That's right.
Q. That's what you're saying, so you really didn't see
him shoot; is that right? Is that a fact?
A. No.
Q. Okay, if that is not a fact, tell us. You saw him
shoot. When did you see him shoot?
A. Yes.
Q. When?
A. Yes.
Q. When?
A. I saw the cop fall.
Q. I understand that. I want to know when you saw this
man shoot?
A. When?
Q. Yes. When did he shoot? when did he shoot a gun?
A. On the night the cop got shot, December.
Q. Did you see him shoot?
3.231
Cross - Chobert
A. Yes, I saw him shoot, yes.
Q. Oh, you did see him shoot?
A. Yes.
Q. Now you said before you didn't see him.
A. I told you I saw him put his hand out and I heard
shots, so he had to be shooting then.
Q. He had to be shooting. The question is did you see him
shoot; yes or no?
A. Yes.
Q. Okay, and you saw the flash from the gun?
A. No, I didn't.
Q. You saw what hand -- what hand did he have
extended?
A. What hand?
Q. What hand, his right hand or left hand?
A. I can't tell you, I don't remember.
Q. And you didn't see the gun either?
A. No, I didn't.
Q. You didn't see the gun, didn't see what hand, but you
know he shot him?
A. Yes.
Q. Great, okay.
MR. MCGILL: Objection to the comments, Judge.
3.232
Cross - Chobert
MR. JACKSON: My apologies. I mean no disrespect, sir, my
apologies to you.
Q. How many shots did you hear, because we know you
didn't see it. How many shots did you hear?
MR. MCGILL: Objection, Your Honor.
THE COURT: Rephrase the question.
MR. JACKSON: Fine.
Q. How many shots did you hear?
A. Three or four more shots.
Q. Which direction were the shots fired?
A. Down.
Q. You're sure of that?
A. Yes, I'm sure.
Q. How are you sure, sir? Did you see them?
A. I can't see bullets come flying, no.
Q. Pardon me, I didn't hear you.
A. No, I didn't see the bullets. No.
Q. How do you know the bullets went down, sir?
A. Because his hand was pointing down.
Q. But you never saw the gun; is that right?
A. That's right.
Q. So how do you know the bullets were firing down, I'm
trying to find out?
A. I don't know.
3.233
Cross - Chobert
Q. That's what I'm trying -- I thought not, okay. Did you
see any bullets fired into a doorway?
A. No.
Q. At all? Did you hear any glass break?
A. No.
Q. Do you think you were in a position to hear glass
break right there where the Police officer was?
MR. MCGILL: Objection.
THE COURT: Sustained.
Q. Fine, now you gave a statement to the Police that you
saw the man who did the shooting; is that right?
A. Yes.
Q. And when you gave the statement to the Police you were
certain that you saw what happened; is that right?
A. Yes.
Q. And when you heard the gunshots you got out of your
cab and you went on the sidewalk; is that right?
A. Yes.
Q. And you started walking towards the Police Officer to
help him; is that right?
A. Yes.
Q. Now, the only people who were on that sidewalk
3.234
Cross - Chobert
was the Police officer and Mr. Jamal; is that right?
A. No.
Q. Who else?
A. His brother, William Cook.
Q. William Cook. Anyone else?
A. No.
Q. You're certain of that?
A. Yes, I'm certain.
Q. You didn't see any woman on the sidewalk?
A. No.
Q. Because if she was there, you would have seen her,
you're certain of that?
MR. MCGILL: Objection.
THE COURT: Sustained.
Q. Fine, I just wanted to make sure. Now, you then said
to the Police, correct me if I am wrong, you told the Police that the man
was six feet, 200, 225 pounds, didn't you?
A. Yes, I did.
MR. JACKSON: Stand up, Mr. Jamal, please.
(The Defendant complies with counsel's request.)
Q. Does he look like he's 225 pounds?
3.235
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MR. MCGILL: Objection, Your Honor. We're not testing his
sight today. Objection.
THE COURT: I'll let him answer that question.
Q. Does he look like he's 225 pounds?
A. No, he don't.
Q. Thank you.
MR. JACKSON: Mr. Jamal, have a seat, please.
Q. Now, you told the Police this on December 12th, didn't
you, around the time of its occurrence, right?
A. Yes.
Q. And you told the Police that he was about your size,
right?
A. Yes.
Q. How much do you weigh?
A. 185.
Q. And you also said that he was heavy, right?
A. Yes.
Q. Is Mr. Jamal heavy?
A. Well, not really, no.
Q. But the man who shot Officer Faulkner was 225 pounds
and heavy; is that right?
3.236
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Is that what you told the Police?
A. Yes, but I'm not good at weight. Do you think I'm
going to stand there for a couple of minutes and ask him how much he
weighs?
Q. You're the one who told the Police.
A. I know what I told the Police.
Q. Are you saying, sir -- and I don't want to argue with
you -- are you saying what you told the Police is incorrect?
MR. MCGILL: Objection. In reference to what, weight?
THE COURT: That is a question for the jury to decide. You
also said that after the man shot the Police officer he ran a half a block
away -- I'm sorry, thirty feet away; is that right?
A. Yes.
Q. And today you are saying that it was Mr. Jamal who
shot the Police Officer and he moved ten feet away; is that what you're
saying today?
A. Yes.
Q. So you were mistaken when you told the Police that the
man ran thirty feet?
MR. MCGILL: Objection. Which statement
3.237
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is he talking about?
MR. JACKSON: The statement on 12-12-81.
MR. MCGILL: Well, he gave two. He said "talking to the
Police".
MR. JACKSON: My apologies. Were you incorrect when you
told the Police that the man ran thirty feet?
A. Yes.
Q. And you further indicated to the Police that the man
was wearing a light tan shirt, I believe no, I'm sorry -- wait a minute,
yes -- what did you tell the Police that the man was wearing, do you
remember?
A. No, I don't.
Q. One other thing: You indicated that there was another
man at the scene as well; is that right?
A. Yes, I did.
Q. And you said that this other man who was at the scene,
somehow the Police got him too, right?
A. Yes.
Q. This other man who was at the scene, he ran some
distance away; is that right?
A. He moved down.
Q. He moved down. How did he move?
3.238
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A. How?
Q. How did he move? Did he run, crawl, walk, how?
A. No, he walked.
Q. How far?
A. I don't remember. I wasn't paying too much attention
to him.
Q. Could it have been a half a block?
MR. MCGILL: Objection. He says he doesn't remember.
MR. JACKSON: Your Honor, may I let the witness see his
statements? Maybe we could do it a lot easier this way if he looks at both
statements he gave to the Police, this one and this one. I don't want to
take advantage of him.
(Pause.)
BY MR. JACKSON:
Q. Mr. Chobert, are you done reading your statement,
sir?
A. I am.
MR. MCGILL: Did he read both of them?
THE WITNESS: No, just one of them.
Q. I'm sorry, there's another one right underneath of it,
I believe. It's 3 and 3(a), I think.
(Pause.)
3.239
Cross - Chobert
Q. Mr. Chobert, you have read the statements now; is that
right?
A. Yes.
Q. And you signed each page of each statement; is that
correct?
A. Yes, I did.
Q. And you were asked by the Detective to read the
statements over; is that right?
A. Yes.
Q. Did you read them over?
A. Yes, I did.
Q. And then you signed them, right?
A. Yes.
Q. And you were asked to read it over and if it were true
to sign it; is that correct?
A. Yes.
Q. So that when you gave the statement it was true; is
that right?
A. Yes.
Q. Okay, now, we're now about six months down the road,
six months away from the incident. Would it be fair to say that your
memory of what happened on December 9th, your memory was better on
December 9th than it is today of what happened on December 9th?
3.240
Cross - Chobert
Do you understand my question? In other words, what
happened on December 9th, would it be fair to say you remembered that
better on December 9th than you do today?
A. No.
Q. Oh, you remember it better today than you did
then?
A. Oh, it's the other way around.
Q. You remembered it better on December 9th?
A. Yes.
Q. And on December 9th you said the man that did the
shooting was in his mid-thirties. Does Mr. Jamal look like he's in his
mid-thirties?
A. To me --
MR. MCGILL: Your Honor, I want to --
THE COURT: He's answered the question. Please
MR. MCGILL: Your Honor, I want to make --
THE COURT: See me over here.
(The following transpired at sidebar out of the hearing of
the jury:)
THE COURT: He was going to answer and you interrupted
him.
MR. MCGILL: He did, Your Honor, but I'm
3.241
Cross - Chobert
saying --
THE COURT: He was going to say no. Let him answer.
(The following transpired in open Court in the presence of
the jury:)
MR. MCGILL: Your Honor, could I have the answer read
back?
THE COURT: Read the question back.
MR. JACKSON: Your Honor, if there was an objection, it
seems to me, and Your Honor went to sidebar --
THE COURT: Do you want the question read back?
(The last question and answer are read by the Court
Reporter.)
BY MR. JACKSON:
Q. Was that your complete answer to me? I mean, you were
going to say something else, right?
A. I was, yes.
Q. Before Mr. McGill interrupted, all right, we'll get
back to that. So that I'm certain, you gave the description that you gave
to the Police on December the 9th, and you said the man who shot Officer
Faulkner was in his mid-
3.242
Cross - Chobert
thirties, 220, 225 pounds, six feet tall, wearing a gray
colored dress shirt and had a red and green picture on the back of his
shirt; is that right?
A. I guess so. That's what I said, yes.
Q. You guess so? Can you be more certain than
guessing?
A. I don't remember too much about the clothing, but I
remember I saw red and green, yes.
Q. You saw red and green?
A. Yes.
Q. And I understand you may not remember today but at the
time you gave the description to the Police you remembered, didn't
you?
A. Yes.
Q. You gave them an accurate description of what it is
that you saw; is that true?
A. I guess I did, yes. If it's in there.
Q. You wouldn't have lied to them on that day, would
you?
A. Why should I?
Q. That's what I'm saying. So you told them what you
believed to be the truth that day?
A. That's right.
Q. Fine. You also told the Police that you saw
3.243
Cross - Chobert
another man run from the scene after you heard the shot,
you looked up and you saw another man run away from the scene; is that
right?
MR. MCGILL: Objection, Your Honor. Could he read the full
question and answer? If he's just taking parts as in the description where
he only gave part.
THE COURT: Go ahead, rephrase it.
Q. Let me ask you this: Did you see another man run from
the scene?
A. He didn't run, but he moved down.
Q. He moved -- oh, that's the man that you said moved
down.
Q. Did you ever see that man again?
A. Yes, I did.
Q. How far did he move down?
A. He moved down about ten feet.
Q. The same distance you said Mr. Jamal moved, right?
A. No, he moved --
Q. Who?
A. He moved a --
Q. Who?
A. Yes, I guess so. Yes.
3.244
Cross - Chobert
Q. Sir, you're saying that this other man moved ten feet
down and Mr. Jamal moved ten feet down?
A. Yes.
Q. In the same direction?
A. Yes.
Q. Were they arrested in the same location?
A. Well, on the same block, yes.
Q. On the same block, but I mean, when I say the same
location -- how much away from each other were they when they were
arrested?
A. I don't remember that.
Q. You don't remember them being arrested?
A. I remember them being arrested, yes, but I wasn't
paying too much attention to the other guy, I was paying attention to the
shooter.
Q. But didn't you tell the Police you saw the other guy
arrested?
A. I told them -- I told them he got stopped by the
Police, but I didn't tell them he got arrested. I told them the cops
grabbed him.
Q. So the cops grabbed him?
A. Yes.
Q. What did they do with him?
A. What did they do with him, I don't know.
Q. Do you remember what the other guy looked like?
3.245
Cross - Chobert
A. I sure do.
Q. Tell us what he looked like?
A. He was about five foot six.
Q. How was he built?
A. How was he built?
Q. Yes, his weight.
A. I ain't too sure about his weight.
Q. Pardon me?
A. I ain't too sure. I wasn't paying that much
attention.
Q. Do you know if he had a hat on? Did you see his
hair?
A. I said I wasn't paying too much attention to him.
Q. Well, I understand that, but you've given us -- well,
you've just refreshed your recollection with regard to the statements
you've given to the Police. Let me read this to you and see if this
refreshes your recollection.
MR. MCGILL: Tell me where you are reading, the question
and answer, please.
MR. JACKSON : Sure. I'm going to find it in the second --
page two of 12-9-81 statement.
MR. MCGILL: Thank you.
MR. JACKSON: The second-to-last question.
3.246
Cross - Chobert
Q. "QUESTION: Did you see anyone else do anything to the
cop?
"ANSWER: I saw another guy running, but the cop grabbed
him, too. I'm not sure he was involved.
"QUESTION: Did you see this male do anything to the
cop?
"No.
Q. "Describe the male that you saw running and then being
grabbed by the cops?
A. "He was about five feet six inches, he was wearing a
red and green hat, a beanie, a long, dark colored coat, and he had a full
beard.
Q. "Did this male run along with the male that did the
shooting?
A. "No. He started running as soon as the shots were
fired, and then he got about a half block away, then all the cops came and
he just stopped."
Q. Does that refresh your recollection, sir?
A. Yes.
Q. Okay, so that when you said this man ran ten feet with
Mr. Jamal, you were wrong then?
A. That's right.
Q. Pardon me?
A. Yes.
3.247
Cross - Chobert
Q. Yes, you were wrong; is that what you're saying?
A. Say that again.
Q. Were you wrong when you said that Mr. Jamal and this
other man moved ten feet together?
A. I didn't tell you it was together.
Q. I apologize if I put words in your mouth. Tell me
again about how far this other man moved because you once said Mr. Jamal
moved ten feet, you once said that the other man moved ten feet. Now if
I've misstated you, please correct me.
A. They moved ten feet but not together.
Q. I thought you said they moved in the same direction.
Did they?
A. Yes, I did.
Q. They did move in the same direction?
A. Yes.
Q. Ten feet?
A. Yes.
Q. And you said the man was running; is that right?
A. Yes.
Q. And today you're saying he wasn't running?
A. I said he moved down.
Q. Yes. When I asked you what you meant by moved --
3.248
Cross - Chobert
today, tell us today from what you recall, how did he
move?
A. He moved -- well, he didn't run, he walked.
Q. He walked?
A. He started walking. Slow walk. Not just walked, he
slow walked?
A. No, not slow walk, a medium walk.
Q. A medium walk?
A. Yes.
Q. But you told the Police on December 9th that he ran.
Why did you tell them that he ran?
A. I made a mistake.
Q. Then or today?
A. Then.
Q. Because your recollection is better today than it was
then? Is it?
A. No, not really. No.
Q. Before going on you read these two statements. Are
there any other mistakes here that you remember so we can bring them to
the jury's attention?
A. No.
Q. So everything else in this statement is true?
A. Yes.
Q. And you've just read that so you know everything
3.249
Cross - Chobert
else in this statement is true?
A. Yes.
MR. JACKSON: Could I have one moment, Your Honor,
please.
(Pause.)
Q. By the way, this other man that you saw who was
running or walking, when he was grabbed by the Police where was he
grabbed? You know, like in relation to the car. In fact, would you mind
coming down and showing us on the diagram?
A. I can't show you, I don't remember.
Q. You don't remember where he was grabbed?
A. Buddy, I told you before, I wasn't paying too much
attention to that guy.
Q. On the 9th you gave a pretty good description to the
Police of what happened to him. You're saying specifically where he went,
how far he went; now today you don't want to tell us where the cops got
him?
MR. MCGILL: Objection. It's a speech now and it's
argumentative.
THE COURT: Sustained.
Q. You're saying you have no idea at all now where the
Police got him, this other man; is that what you're
3.250
Cross - Chobert
saying?
A. Yes. I wasn't paying too much attention.
Q. I understand, but you have no idea? In other words,
was he close to 12th Street, was he close to 13th Street, was he on this
side of the street, was he on that side of the street? He only went ten
feet you said, but you have no idea --
MR. MCGILL: Objection. Again, argumentative. Is this a
summation?
MR. JACKSON: It's not a summation.
MR. MCGILL: Then ask a question.
MR. JACKSON: I said, where was the man arrested?
MR. MCGILL: Your Honor, I apologize.
THE COURT: One more time and that's it. Come on.
Q. Where was the man arrested, and I would like for you
to show us, show the jury, where was the man arrested?
A Do you want me to show you?
Q. Yes, sir.
A. He was right here somewhere (indicating).
Q. Okay, so that would be -- you remember this is the
Police vehicle; is that right --- I'm sorry,
3.251
Cross - Chobert
this is the Volkswagen. That is the Volkswagen; is that
right?
A. Yes.
Q. Here is the Ford. Do you remember seeing the vehicles
that night?
A. Not the Ford.
Q. You don't remember seeing the Ford there?
A. No, I don't.
Q. Are you saying it wasn't there or you don't
remember?
MR. MCGILL: Objection.
THE COURT: Objection sustained.
Q. Nevertheless, the man was arrested at least a car
length or two away from the Volkswagen, because you're saying it's in this
area; is that right?
MR. MCGILL: Objection. He's not pointing --
Q. Point, too. Mr. McGill didn't see your finger before,
so let him see where you pointed.
MR. MCGILL: I have an objection to Mr. Jackson's
gratuitous comments.
THE COURT: Sir, would you point, please?
THE WITNESS: I said right in this area (indicating).
Q. Thank you. By the way, before you go back, you
3.252
Cross - Chobert
indicated that you saw Mr. Jamal move ten feet; is that
right?
A. Yes.
Q. Ten feet. Where did he start and where did he end
up?
A. He was somewhere between these cars.
Q. Sir, could you be a little bit more precise? You can't
do two cars like that. Could you be a little more precise where you saw
him?
A. I can't be precise, no.
Q. You can't be precise at all?
A. No.
Q. You don't know where you first saw him?
A. In between the two cars.
Q. In between what two cars?
A. This one and that one (indicating). Okay?
Q. It was between the Police car and the Volkswagen?
A. Yes.
Q. And then you saw him extend his arm?
A. Yes.
Q. You didn't see the gun, you already said that.
MR. MCGILL: Objection, Your Honor, to the argumentative
statement.
THE COURT: Just ask him a question.
3.253
Cross - Chobert
MR. JACKSON: Yes, sir.
Q. Then you saw the man move ten feet; is that right?
A. Yes.
Q. That would have put him back up here, too?
MR. MCGILL: Objection.
A. Ten feet, no.
Q. Ten feet where then? Approximately where would the ten
feet be, sir?
A. I am doing this again --
MR. MCGILL: I have to object, sir, because it's difficult
for the jury to hear Mr. Chobert.
THE COURT: Why don't you move the chart over and let Mr.
Chobert sit on the witness stand.
MR. JACKSON: I'll do that if you want, but I don't have
too much more on the diagram.
THE COURT: Lift it off of here, bring it over here. Sit
back on the witness stand. Because he's not loud enough for the jury to
hear.
BY MR. JACKSON:
Q. Now, Mr. Chobert, let me move that out of your
3.254
Cross - Chobert
way --
THE COURT: You can sit down.
Q. Sit down, please. Okay, now, in a way so that the jury
can see, you've indicated that Mr. Jamal was standing when he fired at the
Police Officer between the Police car and the Volkswagen; is that
right?
A. Yes.
Q. And you then indicated that he moved ten feet after
the shooting; is that right?
A. Yes.
Q. And could you demonstrate or could you point
approximately where that was, ten feet from where you first saw him and
where he ended up? Do you understand my question?
A. Yes. Now I do, yes.
Q. Could you just point for us, please?
A. Right here, he ended up right here somewhere
(indicating), between the two cars, like I said before.
Q. That was after the shooting?
A. Yes.
Q. And so that when the Police came and arrested Mr.
Jamal he had moved ten feet from where he had shot?
3.255
Cross - Chobert
A. Yes.
Q. Did you ever lose sight of the man?
A. No, I didn't.
Q. Never?
A. No.
Q. Okay. When you were walking towards where the officer
was shot and the Police officer said, get back in your car, how did you go
back to your car?
A. How?
Q. Yes.
A. I walked back.
Q. Did you turn around or did you walk backwards?
A. No, I turned around and walked forward.
Q. Oh, but you have eyes in the back of your head? How
did you see him? You said you never lost sight of him. What happened when
you turned around to walk back to your car?
A. What happened?
Q. Yes. Could you see him?
A. Not for five seconds, no.
Q. So you lost sight of him?
A. Yes, five seconds. He laid on the ground when I
started walking back. What did he do, fly away on me?
3.256
Cross - Chobert
Q. I don't know. I don't know, sir. Is there anything
about your testimony you'd like to change at this point, correct?
A. No.
Q. You're certain of that?
A. Yes.
Q. You are as certain about your testimony as you are
about the man who shot Officer Faulkner; is that right?
A. I know who shot the cop, yes. I'm pretty sure about my
statement, too.
Q. You're pretty sure about the statement?
A. Yes. I know who shot the cop and I ain't going to
forget it.
Q. It wasn't a man who was 225 pounds?
MR. MCGILL: Objection.
THE COURT: Sustained.
Q. By the way, did you see the Officer fall to the
ground? That was -- I'm sorry, that's the first thing you saw; is that
right?
A. Yes.
Q. After you heard the shot?
A. Yes.
Q. And the man that you assume shot the Police
3.257
Cross - Chobert
Officer was between you and the other, though, wasn't
he?
MR. MCGILL: Objection, Your Honor. Assume? He's very
definite.
THE COURT: Rephrase your question.
MR. JACKSON: Fine, sure.
Q. The man who shot the officer was between you and the
officer; is that correct? In other words, the man's back was towards you,
the shooter, his back was towards you, right?
A. No.
Q. Was he facing you?
A. Not facing me, no, but I saw him, I saw the side of
his face.
Q. You saw the side of his face?
A. Yes.
Q. When did you see his full face?
A. Full face?
Q. Yes, sir.
A. When I started walking up to see if I could help the
cop.
Q. He turned around and faced you?
A. No.
Q. How did you see his full face, that's all I'm
3.258
Cross - Chobert
trying to find out, sir.
A. Because I looked at him when I started walking on the
pavement.
Q. Yes, but he was still ahead of you and I'm trying to
find out how you saw his full face?
A. When he was lying down by the pole, that's how I saw
his face.
Q. So the man had already gone the ten feet and fell,
then you looked at his full face; is that what you're saying?
A. No, I didn't say that. I said I saw the side of his
face first when he was shooting the cop.
Q. Right.
A. And then when he went back and fell against -- when he
took his steps back, when he fell, when I got out of my car when I started
walking towards the cop I saw him, and that's how I saw him.
Q. His full face? That's what I'm asking. I'm just
concerned about seeing his full face now, not the profile that you said
you saw first. I want to know the very first time you saw his whole face,
that's all.
A. Well, I saw it twice, as a matter of fact.
Q. When is the first time?
3.259
Cross - Chobert
A. On the pavement.
Q. When he had already fallen?
A. Yes.
Q. Had gone ten feet away?
A. Yes.
Q. So that means, if I understand you correctly, you
passed the officer; is that right? When he was on the ground -- let me go
back. You tell me where you were, where he was when you -- I know he's on
the ground. Where were you?
A. About, I'd say, about ten feet from the officer -- I
mean back.
Q. Okay, and how far away was the man from you and the
officer? You were ten feet from the officer?
A. Yes.
Q. I'm trying to find out how far away you were from the
man whose face you saw. That's really what I want to find out. Do you
understand what I'm saying?
A. About two car lengths, maybe a car and a half.
Q. And he was on the ground?
A. Yes.
Q. So you looked two car lengths. So would it be fair to
say from where I am to that chair against the
260
Cross - Chobert
wall at almost 4:00 o'clock in the morning you could see
that man's full face while he was on the ground; is that right?
A. That's right.
Q. Okay, I mean, if that's what you say. And you said you
saw it a second time?
A. Yes.
Q.You're certain of that, too, right?
A. Pretty damn right I am.
Q. Pardon me?
A. Yes.
Q. By the way, after you saw the officer fall, did he
move? Did the officer move?
A. I wasn't paying too much attention to the officer.
Q. Who were you paying attention to?
A. The shooter.
Q. Okay, I'm going to find out.
So you weren't paying attention to the officer, just the
shooter?
A. Yes.
Q. Tell me this, Mr. Chobert, maybe you can explain it to
me, you indicated that the officer was shot between the radio patrol car
and the Volkswagen.
261
Cross - Chobert
we've got several other witnesses who indicated that the
officer was found between the Volkswagen and the Ford. Can you tell us
why?
A. Tell you why?
Q. Yes.
A. No.
Q. Because you're certain where that officer was and
where Mr. Jamal was, right?
A. From my spot, yes.
Q. From your spot, you know that for certain, right?
A. Yes.
Q. And if everyone else says something different, then
they're wrong?
MR. MCGILL: objection.
THE COURT: Sustained.
Q. By the way, did you see any guns at all?
A. No.
Q. Never did?
A. No.
Q. Now, at some point in time you said that the Police
arrived and said, go back to your car, right?
A. Yes.
Q. Did you get back into your car?
262
Cross - Chobert
A. Yes.
Q. And of course, you said you lost sight of Mr. Jamal
for about five seconds?
A. Yes.
Q. And you saw him seated between, or you saw him seated
on the curb; is that right?
A. Yes.
Q. And you could see him from where you were, from your
car, inside your car, you could see him sitting on the curb; is that
right?
A. Not clearly, but I saw him, yes.
Q. Not clearly but you saw him?
A. Yes.
Q. Was he seated in front of a car an the curb?
A. In between the cars.
Q. In between the cars?
A. Yes.
Q. So it was your cab, the Police car, and the
Volkswagen?
A. Yes.
Q. And he was seated between the Volkswagen and the
Police car?
A. Yes.
Q. Did you see the Police when they came and
263
Cross - Chobert
arrested him?
A. Yes, I did.
Q. Did you see the Police put handcuffs on him?
A. Yes.
Q. Did you see whether or not the Police struggled with
him?
A. Yes.
Q. Did you see whether or not the Police struck him?
A. No.
Q. You didn't see him being struck at all?
A. I saw a hand moving, but I didn't see no contact.
Q. Whose hand?
A. The Police.
Q. What were their hands doing? Could you demonstrate for
us?
A. Demonstrate?
Q. Yes, show us what their hands were doing.
A. Just moving around.
Q. I mean, how moving around? Like this, like this
(indicating)? I mean, were they jabs, punches, what? We have no idea.
You're the only one that can tell us what you saw.
A. They were bending over and I saw them moving their
hands like this (indicating).
264
Cross - Chobert
Q. Did you see anybody with anything in their hands?
A. No.
Q. Did you see Mr. Jamal strike at an officer or push an
officer or do anything to -- did you see him strike any officer in any
way?
A. No, just struggling, that was all.
Q. And you could see him while the Police were around
him; is that right?
A. Yes.
Q. And then you saw the Police pick him up?
A. Yes.
Q. What did they then do?
A. They dragged him to a wagon.
Q. Did you see them drop him?
A. No.
Q. Did you see them walk him into a pole?
A. No.
Q.They just picked him right up and carried him right
into the wagon and placed him right into the wagon; is that right?
A. That's the way I saw it, yes.
Q. And you were just a short distance away, so you're
certain of that?
A. Yes.
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Cross - Chobert
Q. Right?
A. Yes.
Q. You don't know -- you never saw him in a wagon?
Q. Now, this other man that was arrested at the scene,
did you see what they did with him?
A. No.
A. No.
Q. Did you see them put handcuffs on him?
A. No.
Q. Do you know if the Police let him go?
A. They let him go because I saw him again that
night.
Q. You saw him again that night?
A. Yes.
Q. By the time that the Police arrived and told you to
move back to your car, was there any other civilians on the sidewalk other
than the man you said who ran ten feet and Mr. Jamal who you said ran ten
feet? Where there any other civilians, I mean non-police people, on that
sidewalk?
A. I didn't see none.
Q. And you had a good view of the sidewalk, right?
A. Yes.
Q. When Mr. Jamal was taken to the wagon were there
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Cross - Chobert
any other non-police there on the sidewalk?
A. I don't think so, no.
Q. Pardon me?
A. No.
MR. JACKSON: Your Honor, could I have just one moment,
please?
(Counsel and his client confer.)
Q. Mr. Chobert, did you ever see an officer kick Mr.
Jamal?
A. Kick?
Q. Yes, kick.
A. Yes.
Q. When I asked you before if you had seen an officer
strike Mr. Jamal you didn't know that I meant kick, too?
MR. MCGILL: Objection. Argumentative.
THE COURT: Just ask questions.
Q. You said you saw no guns?
A. Right.
Q. Did you see any in any of the officer's hands"
A. Yes.
Q. Do you know who the officer is?
A. No.
Q. How many guns did he have in his hand?
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Cross - Chobert
A. one, his own.
Q. Only one officer you saw with a gun in his hand?
A. That's all I saw was one, yes.
Q. And you never saw any guns on the street or in the
sidewalk?
A. No, I didn't.
Q. That officer you saw with a gun in his hand, where was
he when you saw him with a gun in his hand?
A. He was running from the parking lot.
Q. He was running from the parking lot?
A. Yes.
Q. Were there other officers already at the scene when
you saw him?
A. A couple of them, I think.
Q. Pardon me?
A. A couple.
Q. A couple?
A. Yes.
Q. By the way, did you see Mr. Jamal shot?
A. No, I didn't.
Q. Did you see the officer who was shot, Officer
Faulkner, did you see him shoot?
A. No.
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Cross - Chobert
Q. in fact, he didn't shoot, did he?
A. I don't know.
Q. Did you get close enough to see his gun in his
holster?
MR. MCGILL: Objection.
THE COURT: Will you rephrase that question.
MR. JACKSON: Yes.
Q.You got within ten feet of Officer Faulkner didn't
you?
A. Yes.
Q. Did you notice if his gun was in or out of his
holster?
A. No.
Q. Mr. Chobert, after you heard your first shot you don't
know if anyone was shot, do you, the first time, the first shot that you
heard, do you?
A. Yes, because I saw the cop falling.
Q. And you assumed the cop was shot; is that right?
MR. MCGILL: Objection, Your Honor.
Q. And you're saying that the only other shots that you
heard were those shots when this man was standing over the Police officer;
is that right?
A. Do you want to say that again, please?
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Cross - Chobert
Q. The only other shots that you heard other than that
first shot, the only other shots you heard were those that were sounded
when the man was standing over the Police Officer; is that correct?
A. Yes.
Q. Can you account for how Mr. Jamal was shot?
A. No, I can't.
Q. Do you know whether he was shot at that scene, at that
location?
A. I assume he was when he fell and he didn't get back up
again.
Q. You assume he was?
A. Yes.
Q. Now, just like you assume that the officer was shot,
can you tell us who shot him?
A. Who?
Q. Yes, who?
A. Jamal, who do you think it was?
Q. Who?
A. Jamal, that guy sitting right there.
Q. No, who shot him?
A. I don't know.
MR. JACKSON: No further questions at this time.
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Redirect Chobert
REDIRECT EXAMINATION
BY MR. MCGILL: Mr. Chobert, you indicated that you saw
the other man later at the Police Station; is that correct?
A.Yes.
MR. MCGILL: Could I have those photographs, please. I
show you what has been marked C-21. Can you identify that?
A. Yes, I can.
Q. Who is that?
A. That's William Cook.
Q. Is he the one you saw at the station?
A. Yes.
Q. Is he the other man that you saw with the
Defendant?
A. Yes, it is.
Q. You were asked to look at your -- did you see anybody
else at the scene in that area that you have shown us besides that man you
identified, besides the Defendant and Officer Faulkner?
A. No.
Q. Mr. Jackson asked you several questions about
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Redirect - Chobert
your statement. Do you recall telling the Police the type
of hair that the shooter had?
A. Yes.
Q. What did you tell them?
A. He had long matted hair like a MOVE member.
Q. Do you recall telling them about his complexion?
A. Yes.
Q. What did you say?
A. Dark.
Q. On the statement of 12-12-81 do you recall telling the
Police, when asked the question, "After you heard the shot and saw the cop
fall to the ground and the man you just described stood over him to shoot
the cop a couple more times, then started to go towards 12th Street, how
far did this man run? "ANSWER: About a car length away." Do you recall
that answer?
A. Yes.
Q.Do you recall the next question: "Did you see what the
man that shot the cop did after he fell? "ANSWER: He just laid there by
the curb about ten feet from the cop." Is that correct? Do you remember
saying that?
A. Yes.
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Redirect - Chobert
Q.Did you at any time after seeing that man who shot the
Police Officer and moved over a car length and fall on the curb leave
before the Police came?
A. No.
Q. Was that the same man that the Police were struggling
with?
A. Yes, it is.
Q. Was that the same man that the Police took to the
wagon?
A. Yes, it is.
Q. And within two minutes after you saw the Defendant
shoot the Police Officer, saw the Defendant then go over to the curb and
stay, saw the Police take the Defendant to the wagon --
MR. JACKSON: Your Honor, I'm going to object. He's
pointing to some place where this witness has not pointed to, so he's
testifying.
MR. MCGILL: I won't point to the chart.
MR. JACKSON: Thank you.
THE COURT: Rephrase your question.
Q. The same man that you saw within two minutes after you
saw him shoot the Police Officer several times go to the curb and fall,
struggle with the Police when they arrived, and get taken to the wagon,
that same
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Redirect - Chobert
man, within two minutes did you see him in that wagon
that they took him to?
A. Yes, I did.
Q. And how close did you get to him, Mr. Chobert, when
you went to that wagon?
A. A couple steps away.
Q. And did you see his face then?
A. Yes, I did.
Q. Is that man, sir, that you saw over that period of
time in the Courtroom?
A. Yes, he is.
Q. Will you point him out again?
A. He's right there (indicating).
Q. Is there any doubt in your mind that that's the
man?
A. No, there ain't.
Q. Do you recall telling the Police in your statement on
page two when asked the question: "Where was the second black male when
you first saw him? "ANSWER: He's standing on the side of the Volkswagen on
the sidewalk against the wall, his back was against the wall. He was just
standing there."
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Redirect - Chobert
Do you recall saying that to the Police?
A. Yes, I do.
Q. And is that the man that you identified in that
photograph?
A. Yes, it is.
Q. Are you able to say whether the officer shot the
Defendant?
A. No, I can't say.
Q. Why could you not?
A. Because I wasn't paying any more attention to the
officer.
Q. Did you see the officer's arms when he was on the
ground?
A. No.
Q. Do you recall in your statement on page two saying to
the Police in answer to the question, "Did you see what happened to the
black male that you saw shoot the cop? "ANSWER: They got him, the cops got
him and stuck him in the back of a wagon. "QUESTION: Would you be able to
identify the man that shot the cop if you saw him again? "ANSWER: Yes." Do
you recall those questions and answers?
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Redirect - Chobert
A. Yes, I do.
Q. Do you recall this question and answer: "Did you see
the gun the man used to shoot the cop? "ANSWER: No, I didn't. I was too
far away. I just saw him standing over the cop and pointing and I heard
the shots." Do you recall saying that?
A. Yes.
Q. Do you recall also saying on the end of page three,
"Did you see the male that did the shooting of the Police officer again?"
When the Police first arrived they told me to get back in my cab. I got
back in the cab, and then and officer came over to me and asked me if I
saw the man that did the shooting again, would I be able to recognize him.
I told him yes. Then he took me over to the wagon, opened the door, and I
saw the male in the back of the wagon and I told the officer that it was
him that I saw do the shooting."
A. I remember that.
Q. Did you tell him that?
A. Yes.
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Redirect - Chobert
And that happened within two minutes after you saw him do
it?
A. Yes.
Q. And he never really left your sight from the time that
he shot him?
A. No.
Q. Mr. Chobert, I'm going to ask you to stand up again,
with the Court's permission.
(The witness complies with counsel's request.)
Q. Mr. Jackson was asking you questions about where you
were at the time of the shooting. Would you come down here, please, to the
stand here, face the jury. Would you indicate to the jury what the motion
of his hand and arm was when you heard the shots as you were looking
straight at him?
A. He was pointing down and I heard the shots,
(indicating).
Q. Are you indicating by your arm a movement with the
wrist and hand? Are you indicating that? have to say that for the
Record.
A. Yes.
Q. The times that you heard the shots, how did those
sounds of the shots relate to the times that he was moving his hand in a
downward position?
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Redirect - Chobert
Do you understand the question?
A. No, I don't.
Q. When he was moving his hand down in a pointed
direction, as you did, toward the ground, is that when you heard the
shots?
A. Oh. Yes.
Q. Did you see anybody else with a gun around there?
A. No, I didn't.
Q. Did you see William Cook that you identified with a
gun around, or anybody?
A. No.
MR. MCGILL: Thank you, Mr. Chobert. Nothing further.
MR. JACKSON: Just a couple more, sir.
RECROSS-EXAMINATION BY MR. JACKSON:
Q. You said one
car length away from the statement Mr. McGill just read to you, you
were about one car length away, and you said that's the reason you
couldn't see the gun; is that right?
Let me read the statement to you again -- let me show you
the statement. (Pause.)
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Recross - Chobert
Do you recall Mr McGill just reading that to You?
A. Yes.
Q. And you're saying you couldn't see the gun because you
were ten feet away, you were too far away?
A. That's right.
Q. So you couldn't see a gun ten feet away, but you could
see somebody's face two car lengths away; is that right?
A. A gun is a lot smaller. It depends on the gun.
MR. MCGILL: objection. He's arguing with the witness.
THE COURT: Sustained.
Q. By the way, this Police officer that you saw running
across the parking lot, could you tell us how he had his gun pointed, up
or down or what?
MR. MCGILL: Objection. Beyond the scope of redirect.
MR. JACKSON: Okay, I'll withdraw it.
Q. I just want to be absolutely certain. You're certain
that this shooting took place between the Volkswagen and the Police car,
aren't you?
A. Yes.
Q. No question about it?
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Recross - Chobert
A. No.
MR. JACKSON: Thank you, sir.
MR. MCGILL: Thank you, Mr. Chobert. Does the Court have
any questions?
THE COURT: No.
MR. MCGILL: I have no other witnesses. I'm sorry to keep
everybody this late.
THE COURT: You may go.
(The witness is excused.)
THE COURT: We'll adjourn Court until Monday morning at
9:30 in this Courtroom.
(Hearing is adjourned at 6:15
p.m.)