Page 1A.
Page 2.
MR. JACKSON: I just spoke with Mr. Jamal, after he's had
an opportunity, I guess, five, ten minutes or more, with Janet Africa. Mr.
Jamal indicates to me that he no longer wants Judge Sabo to deliver
messages through me, and that if the Judge wants to talk to him, the Judge
knows where he is. He further indicates that if the Judge wants to know
what he intends to do, let the Judge ask him, either back there in the
room or in open Court, because he will not give me an answer, because it's
not a question that I'm making, but it's a question of the Judge's. And if
the Judge wants to know, the Judge should ask him.
So, as a result of that, he has not given me any
indication at all as to what he's going to do.
THE COURT: All right.
MR. JACKSON: He did indicate when I asked him
specifically, what he was going to do,
Page 3.
he said, that he was going to do what was right, and with
no further explanation.
THE COURT: All right. We might as well bring him in real
fast.
THE COURT: Let the record indicate we're at side bar with
Mr. Jamal. The Court would like to know whether or not you've changed your
mind, and will be respectful and not disruptive in the orderly procedure
of this trial, and whether or not you wish to come back into the courtroom
under those conditions.
THE DEFENDANT: I've never been disruptive of this trial.
I will do what is right.
THE COURT: What do you mean, do what is right? Does that
mean you're going to step up again in front of the jury and start asking
questions, and making comments or statements in front of the jury?
Page 4.
THE DEFENDANT: No, doing what is right means, I'm going
to do what is correct.
THE COURT: All right. Then you can come in. If you behave
yourself, you'll stay and if you don't you will go out.
THE COURT: Good morning, ladies and gentlemen.
MR. MCGILL: Your Honor, may I proceed?
THE COURT: Yes.
MR. MCGILL: Mr. Michael Scanlan is the next witness.
Q. Mr. Scanlan, can you hear me, sir?
A. Yes, sir.
Q. All right. Speak up loudly please, so that the jury
can hear you, as well as the defense counsel, and the defendant.
Page 5.
A. Twenty-five.
Q. On December 9th, 1981, a little bit before 4:00 a.m.,
did you have occasion to be at the area of 13th and Locust Streets?
A. Yes, sir.
Q. Where were you?
A. I was at the intersection of 13th and Locust, the
traffic light.
Q. Were you on the sidewalk, or were you in a car?
A. I was in my car.
Q. Were you stopped or were you moving?
A. I was stopped. I came to a stop at the red light.
Q. Would you tell us what you observed.
A. I saw a hand come up, like this, and I heard a
gunshot. There was another gunshot when the man got to the policeman, and
the gentleman he had been talking to. And then the officer fell down on
the sidewalk and the man walked over and was standing at his feet and shot
him twice. I saw two flashes.
Q. And did you know whether or not any of those shots --
you were pointing -- first of all, for the record, when the man came over
from the parking lot, you were demonstrating something with your hands.
Will you show the jury again?
All right. You're indicating for the record, the index
finger pointed forward, thumb pointed in the direction of the ceiling, and
your three fingers, remaining three fingers cupped.
Then you stated that there was a shot, one shot, and then
another shot you heard, and then the officer falling.
A. Yes, sir.
Q. And then the man went over and pointed down?
A. Yes, sir.
Page 8.
SCANLAN - DIRECT
Q. And then you heard two more. Are you sure of that two.
Was it more or less, or what?
MR. JACKSON: Your Honor, I'm going to object. He's just
testifying now.
MR. MCGILL: I'm repeating what he said.
MR. JACKSON: Objection.
A. It could have been two or three. I remember seeing two
flashes.
Q. Do you know whether or not any of those shots hit the
officer?
A. Yes, sir. I could see that the one hit the officer in
the face.
Q. How?
A. Because his body jerked. His whole body jerked.
Q. His body jerked?
A. Yes, sir.
Q. Where was he then, when his body jerked, after the
shot?
A. Where was the officer?
Q. Yes.
A. He was laying on the sidewalk, face up.
Page 9.
SCANLAN - DIRECT
Q. Now, at the time -- I think you used the word -- well,
first of all, with the Court's permission, would you come down. I'm going
to ask for a demonstration, Mr. Scanlan. I'm going to ask you to
demonstrate what you meant -- just do it right here.
A. Okay.
Q. And you, for this matter, sir, for this particular
time, you'll be the man that the police officer was talking to. And when
you said he was, I think you said spread-eagle, he fell or something like
that?
A. Yes, sir.
Q. Okay. And would you demonstrate what the police,
excuse me, what this man did, and if you could, would you demonstrate the
force that you remember from what you observed, and my hand here will be
the officer's face. Will you demonstrate what that man did?
MR. JACKSON: Objection. He could not possibly demonstrate
the force used, your Honor.
MR. MCGILL: He can certainly demonstrate what he
observed.
MR. JACKSON: He cannot. I object.
Page 10.
SCANLAN - DIRECT
THE COURT: Go ahead. 0bjection overruled.
A. He was spread-eagle. He fell on the front of the car,
and he spun around like this.
Q. Okay. Now, you've indicated there was a closed fist,
at least your demonstration was a closed fist in your right hand.
A. Yes, sir.
Q. Was that what the man had?
A. Yes, sir.
Q. Okay. You may go back there, please. Now, at the time
that the officer was struck -- do you remember what part of his face he
was struck?
A. Yes, sir. It was his right side of his face.
Q. Do you recall where?
A. Between the right eye and the cheek.
Q. You're indicating with your right hand, index finger,
right portion of an area on your cheek, below I guess it would be below
the temple area, but on the cheek, right-hand side of the face in front of
the ear. At the time the officer was struck, did his face -- his body make
any movement?
Page 11.
SCANLAN - DIRECT
A. Yes, it sent him backwards, he flinched. His face was
thrown to one side.
Q. You said the police officer responded and attempted to
subdue him. What did he do?
A. He pulled out a flashlight or billyclub, and reacted
by trying to subdue the man, by striking him above the shoulders.
Q. Okay. Was it at this time, while he was doing this,
you saw the young man from the parking lot running across the street?
A. Yes.
Q. Now, what did you then do after you saw the officer
shot? First of all, if you recall, in what direction was the officer's
back to the man who was running across the street, and who shot him?
A. His back was towards him.
Q. Was towards the man who shot him?
A. Yes, sir.
Q. Now, after the man fell down, the police officer fell
down, as a result, and then the man went over and fired at him some more,
what did you then do?
A. I then took a left turn on 13th Street, and went to
find a police van to bring a police officer back to the shooting.
Page 12.
SCANLAN - DIRECT
Q. And were you able to do that?
A. Yes, sir.
Q. Now, would estimate the entire time, really, that you
had this particular scene in view?
A. When I came to the traffic -- the traffic light had
just turned red, so maybe 30 seconds at the most.
Q. No more than that; though?
A. No, no, sir.
Q. So you had him in your view for a relatively short
time; is that correct?
A. Yes, sir.
MR. MCGILL: Thank you. Cross-examine. I do have one other
question, sir.
Q. Are you able to identify anybody, either the driver,
or the man who ran over and shot the police officer?
A. No, sir.
MR. MCGILL: Cross-examine.
CROSS-EXAMINATION
BY MR. JACKSON:
Q. Mr. Scanlan, where were you coming from, sir?
A. I just dropped a friend off at the Academy House
Apartments.
Page 13.
SCANLAN - CROSS
Q. Had you been drinking, sir, or had any other
intoxicants?
A. Yes. I had a few cocktails.
Q. How much earlier from the time you arrived at that
intersection?
A. A couple of hours before then.
THE DEFENDANT: Mr. Scanlan, could you describe the second
man that you saw run across the parking lot?
THE COURT: Just a minute, Mr. Jamal. Mr. Jamal, please
take a seat.
THE DEFENDANT: I'm cross-examining this witness.
THE COURT: Take a seat, Mr. Jamal, please.
THE DEFENDANT: Can I finish my cross-examination, and
then sit down?
(Where upon the jury was excused from
the courtroom and
the following took place:)
THE DEFENDANT: Can I finish my cross-examination?
What was the first man wearing, Mr. Scanlan?
Page 14.
SCANLAN - CROSS
What kind of clothes did he have on? What was the second
man wearing? Judge, he's not answering my questions.
THE COURT: I know he's not.
THE DEFENDANT: Why isn't he?
THE COURT: Because I already told you before when we were
at side bar, that I expected you to behave yourself.
THE DEFENDANT: I'm behaving myself. I'm fighting for my
life.
THE COURT: I know you are, so is Mr. Jackson.
THE DEFENDANT: How the hell do you know?
THE COURT: All right. That's it.
THE DEFENDANT: How do you know what he's doing?
THE COURT: Sheriff, take him out. You're being removed
because you're disruptive to the Court proceedings.
THE DEFENDANT: I'm not disruptive. I'm not disruptive.
I'm fighting for my life. This is my trial.
THE COURT: Take him out, take him upstairs. When you
learn --
Page 15.
SCANLAN - CROSS
THE DEFENDANT: Your Honor, you're behaving in a way to
get me killed, get me convicted, aren't you?
THE COURT: Take him out of the courtroom. Take him out of
the courtroom.
THE DEFENDANT: I do not want him working here. I want him
out of here. I do not want him to participate in this damn sham. Okay?
THE COURT: Okay.
THE DEFENDANT: Then send him out, if it's okay.
THE COURT: All right.
MR. JACKSON: Your Honor, before we -- could I -- there
are some notes of testimony here and Mr. McGill has a report.
THE COURT: All right.
(Side-bar conference, as follows:)
THE COURT: I brought the attorney to side bar to see
whether or not Mr. Jackson wants me to once again read this same
statement.
MR. JACKSON: I think so, Judge.
MR. MCGILL: I would ask that, too, Judge.
Page 16.
SCANLAN - CROSS
THE COURT: All right. Did you have something else?
MR. JACKSON: Yes. I just wanted to -- because I don't
have a copy of the statement, I would like to take maybe a minute, just to
look through the statement.
MR. MCGILL: Sure.
MR. JACKSON: Because I don't have it.
(End of side-bar conference)
THE COURT: Let me know as soon as you are ready.
(A short recess was taken.)
(Whereupon the jury entered the courtroom and the
following took place:)
THE COURT: Members of the jury, you are not to draw any
adverse inferences from the absence of the defendant. You should further
refrain from any sympathy, bias, or prejudice for or against the
defendant.
MR. JACKSON: May I proceed, your Honor?
THE COURT: Yes.
Page 17.
SCANLAN - CROSS
CROSS-EXAMINATION (CONT'D.)
BY MR. JACKSON:
Q. Mr. Scanlan, you indicated -- just to get us back in
posture -- you dropped a friend off at the Academy House, you had a few
cocktails, maybe a couple hours earlier. Is that right?
A. Yes, sir.
Q. You made your observation of what you saw from the
intersection of 13th and Locust, and as I understand it -- well --
MR. JACKSON: Do we still have the diagram?
THE COURT: Will you turn it around so the jury can see
it?
MR. JACKSON: I'm sorry. My apologies.
THE COURT: Can everyone in the jury see it? No? Turn it
around, please.
Q. Mr. Scanlan, may I ask you to approach that diagram,
please, and there is a pointer there you can use.
Now, so you will at least be oriented, this is Locust
Street, and this is 13th Street. I believe you would have been traveling
in an easterly direction at about right here; is that correct?
Page 18.
SCANLAN - CROSS
Q. Does that diagram fairly and accurately demonstrate or
depict the scene as you saw it back on December 9th, 1981?
A. Yes, sir.
Q. Now, when you were at that stop light, sir, did you
take any notice of the police car or any individuals before the shooting
occurred?
A. On --
Q. Strike that. Let me do it this way. When you came to
the intersection, did you immediately look ahead and see the police
officer and the man?
A. Yes, sir.
Q. Now, when you saw them, you looked ahead, the man, was
standing out in the street already; is that right?
A. Yes, sir. He was already out of the car.
Q. He was already out of the car?
A. Yes.
Q. And the police officer approached him? Is that
correct?
A. Yes, sir.
Q. And the police car was behind the Volkswagen; is that
correct?
Page 19.
SCANLAN - CROSS
A. Yes, sir, that's correct.
Q. Can you estimate for us the distance from where you
were parked and where the police officer and the driver of the Volkswagen
were parked?
A. I was stopped right here, and the two gentlemen were
talking over here.
Q. I see. Do you know, as far as you're concerned, could
you estimate the distance that was?
A. Maybe two car lengths.
Q. Two car lengths?
A. Yes.
Q. Now, my question about it being two car lengths -- for
instance, you were to the west of Locust -- I'm sorry, west of 13th
Street; is that right.
A. I was first --
Q. Go ahead.
A. First car at the traffic light.
Q. First car?
A. Yes.
Q. So we can assume that 13th Street is at least one car
length; is that right?
A. That's correct.
Page 20.
SCANLAN - CROSS
Q. So, on Locust Street was there any cars behind the
police car?
A. I don't believe so, no.
Q. No cars behind the police car?
A. No.
Q. And was the police car right at the corner, was it
some distance from the corner?
A. Some distance from the corner.
Q. How much, as best you can estimate? How many car
lengths from the corner was the police car parked?
A. One, at the most.
Q. One at the most. Any other individuals on the street,
excluding for the moment the shooter? Anyone else -- did you see anyone
else on the street at that time?
A. All I focused on was the policeman and the gentleman
in front of the car.
Q. You may have focused on the policeman and the other
man, did you see anyone else on the street?
MR. MCGILL: Objection. He answered it.
MR. JACKSON: He said he didn't focus on it.
Page 21.
SCANLAN - CROSS
THE COURT: He said he couldn't see anybody, could he?
Objection is sustained.
A. I didn't see anyone else.
Q. So there was no one else on the street, then, sir?
MR. MCGILL: Objection, he didn't say that.
THE COURT: Objection sustained.
Q. Did you hear anyone else talking, sir?
A. No, sir.
Q. Now, I'm just going to ask you a few questions so that
you can get the relative positions on the people on the diagram, and then
I'll ask you to go back to your seat.
When you first saw the man that ran across the parking
lot, where did you first see him?
A. He was coming -- running out of the parking lot.
Q. Do you know from what position in the parking lot,
what location?
A. No.
Q. And the police officer and the driver of the
Volkswagen, where were they standing when you first saw them?
Page 22.
SCANLAN - CROSS
A. In front of the police car.
Q. And that would have been in front of the police car,
but behind the Volkswagen?
A. Yes, sir.
Q. So they were out of the traffic lane?
A. Yes.
Q. Okay. Fine. Will you return to your seat, please?
Now, when the police officer approached the driver of the
Volkswagen, the driver of the Volkswagen was immediately directed to
spread-eagle; is that right?
A. A few seconds after that.
Q. There was some conversation?
A. Yes, sir.
Q. Did you see the driver of the Volkswagen pull out any
cards, any wallet?
A. I don't remember.
Q. You were in a position to see it, though, weren't
you?
A. Yes, sir.
Q. And you didn't see his hand pull out anything from his
pockets or his wallet or anything like that, did you?
Page 23.
SCANLAN - CROSS
A. I think the officer was looking at his driver's --
Q. You think?
A. He was looking, I think, at a piece of paper in his
hands.
Q. In whose hands?
A. In the police officer's hands.
Q. All right. And after that the man spread-eagle?
A. Yes, sir.
Q. On the front of the vehicle or -- let me do it this
way.
Where were his feet, in the traffic lane, or in between
the cars?
A. Right in front of the car, in the middle of the
cars.
Q. And the police officer patted him down--or you tell
me.
A. No, I don't remember that, no.
Q. He was spread-eagle and all of a sudden he swung
backwards?
A. Yes.
Q. He swung at the officer; is that right?
A. Yes.
Q. Today, you're testifying that he hit the officer. Are
you certain that he hit the officer?
Page 24.
SCANLAN - CROSS
A. Yes.
Q. Did you tell the police that?
A. Yes, I did.
Q. Or did you tell them that he swung at the officer?
A. I may have used that phrase, but he did strike the
officer.
Q. Okay. But it was your intention if you said swung you
meant that he hit him.
A. Yes.
Q. Fine. After he swung at the officer or hit the officer
then the officer pulled a blackjack out; is that right?
MR. MCGILL: Objection. He didn't say that.
THE COURT: Well, rephrase your questions.
Q. Did the officer pull a blackjack out?
A. It was either that or a flashlight. I can't be
sure.
Q. You told the police it was a blackjack, didn't
you?
A. I believe so, yes.
Page 25.
SCANLAN - CROSS
Q. But you're saying it may have been -- it may have been
a flashlight?
A. Yes.
Q. Then he hit the man several times?
A. Couple of times on the shoulders.
Q. Two or three times?
A. Three at the most.
Q. And you're saying you know for certain it was in the
shoulder area?
A. Between the shoulders, the neck and the arm.
Q. How about behind the ear?
A. I can't say for sure.
Q. These blows that the officer struck, were they right
in succession or was there time in between each of them?
A. They were in succession.
Q. After he struck the man, the man went -- his knees
buckled; is that right?
A. Yes, sir.
Q. He began to fall from the automobile?
A. He didn't fall, his knees kind of buckled, he ducked
down kind of.
Page 26.
SCANLAN - CROSS
Q. By the way, can you describe that man for us? The
driver of the Volkswagen.
A. He had on a coat that came down almost to his
kneecaps.
Q. Do you know what color?
A. It was dark green, maybe.
Q. Height?
A. Looked like an Army coat.
Q. Height?
A. Maybe five-ten.
Q. Weight?
A. A hundred and seventy pounds.
Q. You saw Mr. Jamal sitting here a moment ago, didn't
you?
A. Yes, sir.
Q. Was it about his height and weight?
A. I can't say for sure.
Q. Did you see the age?
A. The age?
Q. I mean, could you estimate the age?
A. No.
Q. Was the man heavy-set, thin, or -- I know you've given
us the height and weight but just --
Page 27.
SCANLAN - CROSS
A. Regular build.
Q. Do you recall what kind of pants he had on?
A. No, I really couldn't give you that.
Q. Now, it was shortly after the police officer -- the
man started -- his knees started to buckle that you saw this other man
come from the parking lot and you saw this other man come from the parking
lot -- you didn't see a gun in his hands?
A. Not until he got over -- all I saw was the hands
together, the motion like this.
Q. Okay.
MR. MCGILL: Indicating the index finger pointed forward,
your Honor, sweeping motion from his leg, throughout the front of his
body.
MR. JACKSON: Fine.
Q. The man who ran from the parking lot got over -- he
was in the street; is that right?
A. Yes.
Q. The police officer and the other man, they were also
in the street; is that correct?
A. Right in front of the car.
Q. Right in front of the car?
A. Yes.
Page 28.
SCANLAN - CROSS
Q. I. believe it's your testimony -- or you -- correct me
if I'm wrong -- that you heard a shot; is that right?
A. Yes, sir.
Q. You didn't see the flash at that shot, did you?
A. No.
Q. After you heard that first shot the officer went down;
is that right?
A. No, there was, I believe, another shot. It was about
five or six seconds, then the officer went down on the sidewalk.
Q. Maybe I'll do this, Mr. Scanlan. Would you take a
moment to review both of these statements.
MR. JACKSON: I can have them marked, if you like, your
Honor. I think it would be 6 and 6a, for identification purposes.
(Discussion off the record)
Q. Mr. Scanlan, the first one you see is indexed as 6,
and then 6a, a hand-written statement. Just take a moment to review that,
please.
I'm sorry. Did you look at the hand-written copy, as
well? It's right underneath of it, I believe. I
Page 29.
SCANLAN - CROSS
wanted you to review it for the content, to perhaps
refresh your recollection.
A. Is that it?
Q. Yes. I want you to look through it, so that your
recollection may be refreshed, as to what you told the police that
night.
Now, you've also provided a diagram to the police; is
that right?
A. Yes, sir.
Q. And in that diagram, can you tell the jury, first of
all, where in fact you've indicated that there were other people
around.
A. All I noticed were the three -- the three
gentlemen.
Q. But there is a diagram there that you've given; is
that correct?
A. Okay, yes, besides those three -- yes, I do
remember.
Q. Yes. Can you describe to the jury where you placed
those other people?
A. Two people were to the left of my car.
Q. And that would have been where, sir?
Page 30.
SCANLAN - CROSS
On the northwest corner of 13th and Locust Street?
A. I believe so.
Q. Right here, Club Whiskers, right?
A. Yes.
Q. That would have been -- excuse me, maybe you could
come down and show them. I don't want to get in the way of the jury.
If you can, use a pointer, perhaps, and stand to the side
and do it.
A. Right here.
Q. Two people on the northwest corner. Do you remember
whether it was a man or a woman or two men?
A. No.
Q. Was there another person there someplace?
A. This corner.
Q. That would be the southwest corner. And anyone
else?
A. No.
Q. Okay. Return to your seat, please.
Page 31.
SCANLAN - CROSS
Q. Now, Mr. Scanlan, you've had an opportunity to review
those two statements, have you not?
A. Yes, sir.
Q. Now, those two statements are indeed your statements
that you gave to the police; is that right?
A. That's correct.
Q. The first statement being on December 9, 1981; is that
correct?
A. Yes.
Q. The second statement being on December 12th, 1981; is
that correct?
A. I'm not sure of the exact date, but --
Q. Well, for the purpose of the record, would you look at
it, so that we're certain, the hand-written statement.
A. December 11th.
Q. December llth, fine. Now, at the time that you gave
those statements to the police, you gave those statements because you
believed what you said to be true; is that correct?
A. That's correct.
Q. And would it be fair to say that your recollection of
the facts were fresher at that time than they are today?
Page 32.
SCANLAN - CROSS
A. Yes.
Q. So that as an example, you told the police then that
there were people on the corner, and today you said you didn't remember,
so that we can assume that your recollection was indeed fresher than it is
today?
A. Yes, sir.
Q. Do you also remember testifying in another related
matter on March 29, 1982, before the Honorable Meyer Rose?
A. Yes, sir.
MR. JACKSON: And I refer you to Page 119, of the notes of
testimony, Mr. McGill.
Q. See if this refreshes your recollection, middle of the
page: "Is it your testimony that the first time the officer was on the
sidewalk was when he fell as a result of being struck by that first
bullet?
A. "Answer: Yes, sir."
Do you remember giving that testimony?
A. Yes, sir, I do.
Page 33.
SCANLAN - CROSS
Q. So that the officer -- you testified earlier this
year, that the officer fell after the first bullet? Is that correct?
A. That's correct.
Q. So would it be fair to say, with refreshing your
recollection with that statement, that the officer did indeed fall after
the first bullet, after the first shot?
A. He didn't fall immediately down on the sidewalk. It
was a few seconds. There was confusion when all three of them were in
front of the car. He didn't fall directly down, as a result of the first
shot.
Q. Well, maybe you can explain that. Let me read this
again to you, sir.
"Question: Is it your testimony that the first time the
officer was on the sidewalk was when he fell as a result of being struck
by that first bullet?
"Answer: Yes, sir."
Explain that to me, sir. If you're saying he didn't fall
all the way on the sidewalk, I don't understand.
Page 34.
SCANLAN - CROSS
A. I just mean he didn't fall immediately after that
first shot. There was a couple seconds, that's all.
Q. Okay.
A. That's all I'm trying to say.
Q. But there was not another shot fired before he hit the
ground, though?
A. There could have been. I really don't know.
Q. So your best recollection is that he fell after the
first shot?
A. Yes, sir.
Q. And again, you just heard that first shot; is that
correct?
A. Yes, sir.
Q. And you saw no flash that first time?
A. No.
Q. And it was only those subsequent shots that you saw
flashes; is that correct?
A. That's correct.
Q. And by the way, do you know whether it was the driver
or whether it was the man who ran from the parking lot who fired the
shots?
A. It was the man that ran from the parking lot.
Q. Do you remember telling the police -- and you can
refer to your statement, sir. Could I see it, and I could point it out to
you?
Page 35.
SCANLAN - CROSS
Page 7 of the hand-written statement. Please read out
loud, the first question and answer.
A. "Did you see this male shoot the officer?
"No, all I saw was the flash from the gun. I didn't
follow the flash back to the gun, but when I saw the guy running across
the lot towards the cop, I knew he was going to help the guy that was
getting hit from the billy club."
Q. Okay. So would it be fair to say based on the fact
that you gave that statement on December 11, 1981, when you were asked
specifically did you see who fired the shot, you said no?
A. Well, what I meant, I couldn't identify them. I was
worried about identifying the person. As of now, I still can't identify
them, only through clothing.
Q. You were asked earlier in that interview, as well as
the interview on December 9th, if you could identify anybody and you told
them no, right?
A. Right.
Q. That question specifically asked, "Did you see who
fired," not if you could describe, not if you could identify. It said,
"Did you see who fired the shot."
A. Well, I saw --
Page 36.
SCANLAN - CROSS
MR. MCGILL: Objection, your Honor.
THE COURT: Okay.
A. I saw the firer of the shot, because I saw the right
hand extended, and I saw two flashes, and the officer's body jerk.
Q. All right. Let me have the statement back again.
Now, when the shooting took place, the first shot, when
you heard the first shot the officer was in the street, everybody, the
participants were in the street; is that right?
A. That's correct.
Q. And after you heard the first shot, the officer, I
take it, stumbled onto the sidewalk?
A. Yes, sir.
Q. And the man who was in the Volkswagen, the driver of
the Volkswagen, where was he exactly?
A. He was standing on the curb, right next to the
sidewalk.
Q. When the shooting took place?
A. Yes, sir.
Q. Now, explain to me -- and I'm not being critical-- I
thought it was your testimony that the man had his feet in the street,
spread-eagle, over the top of the police car, and after the police officer
struck him a
Page 37.
SCANLAN - CROSS
few times, that's when the man came over with the
gun?
A. Yes, sir.
Q. How did the man get from -- and I know you said that
he started to go down, his knees buckled. At what point did he move from
that point and get over to the curb?
A. When the officer fell back onto the sidewalk, that's
when he stood up in an erect position and was standing on the curb.
Q. He followed the officer?
A. No, he didn't follow him, but he wasn't up on the
sidewalk.
Q. It's probably me, Mr. Scanlan. The officer was shot
and he staggered towards the sidewalk. That would have blocked the driver
of the Volkswagen from going to the sidewalk, would it not?
A. No.
Q. Well, could you -- I really don't how how it happened.
Could you explain how it -- the dynamics of all that.
Q. When the guy came running out of the parking lot, came
across, shot the officer, there was some confusion. Next thing I remember
is the policeman --
Q. When you say --
Page 38.
SCANLAN - CROSS
MR. MCGILL: Objection, may he finish his answer.
MR. JACKSON: I wanted him to explain "confusion."
MR. MCGILL: Let him finish.
Q. Go ahead.
A. The three of them were still there, and then the
officer fell down and the man walked over and stood at his feet, and
fired, twice, two or three times.
Q. Okay. Now, did you see what was in the hand of the
driver of the Volkswagen?
A. No, I wasn't looking at him.
Q. Did you see him motion his hand?
A. No.
Q. You didn't see it?
A. My attention was focused on the officer.
Q. So, you're saying that you don't know what the driver
of the Volkswagen was doing?
A. Only that he was standing there.
Q. How close to the officer was he?
A. Six or eight feet.
Q. Six or eight feet?
A. Yes, sir.
Page 39.
SCANLAN - CROSS
Q. The man that you said ran from the parking lot, how
close was he to the officer?
MR. MCGILL: Objection. At what time? When he was on the
sidewalk?
MR. JACKSON: Same time.
MR. MCGILL: On the sidewalk?
MR. JACKSON: Yes.
THE WITNESS: Less than a foot away.
BY MR. JACKSON:
Q. The relative positions of the three people, you had --
as far as going from, I guess, south, north -- we will do it this way: The
driver of the Volkswagen was right near the sidewalk?
A. Yes, sir.
Q. The officer, immediately after the shooting was on the
sidewalk?
A. Laying down, sir.
Q. Laying down. And the shooter was where?
A. At his feet.
Q. At his feet. So the shooter and the driver of the
Volkswagen were relatively close to one another?
A. Yes, sir.
Q. How close, sir?
A. Five or six feet.
Page 40.
SCANLAN - CROSS
Q. The three people, would they have formed a triangle in
terms of where their positions were? Would that be accurate that they
formed pretty much of a triangle?
A. I don't know if it was a triangle, but all three of
them were there on the sidewalk.
Q. Okay. The man who ran across from the parking lot, can
you describe him to us, sir?
A. He had on a -- I think a red-and-blue striped coat or
sweater.
Q. Now, who told you red and blue?
A. No one.
MR. MCGILL: Objection.
Q. You never told -- you gave the police a different
description.
A. Well, I just remember multi-colored and stripes, big
stripes.
Q. You're saying to us now, nobody told you red and
blue?
A. No, sir.
Q. You remember the statement you gave to the police? You
never said red and blue, did you?
A. I think I said red and black, or yellow and black.
Page 41.
SCANLAN - CROSS
MR. MCGILL: Page 2, first statement.
MR. JACKSON: Pardon me?
MR. MCGILL: Page 2, first statement.
MR. JACKSON: Indulge us for one moment, sir.
Q. See if you remember this question and answer, sir,
back on Page 6 of the statement that you gave on 12-12-81: "Question:
Describe the second male that ran toward the officer."
"I really only saw him from the side, negro male, about
five-ten, maybe a hundred and eighty pounds. I couldn't say if he had a
beard. I saw he had long, wide, sideburns, dark skin, wearing a black knit
cap, like over the back of his head, holding the hair in. He had a
long-sleeved sweater on. I think it was red and black, or yellow and
black. I don't remember what the color of his shoes and pants were."
Do you recall that statement, sir?
A. Yes, I do.
Q. So no matter what he had on, you're saying he had a
sweater on; is that right?
A. A sweater or jacket. I can't be sure.
Page 42.
SCANLAN - CROSS
Q. So, now it's either a sweater or a jacket?
MR. MCGILL: Objection, sir, argumentative.
THE COURT: Sustained.
Q. Did you tell the police it was a sweater or
jacket?
A. I believe I said sweater.
Q. But now you remember it?
A. No, I just said it was either a sweater or a jacket. I
can't be sure.
Q. Okay. Let me go over a few other things as well,
sir.
So that I'm also clear, Mr. Scanlan, when you heard the
first shot, did you see the hands of either the driver of the Volkswagen
or the man who was running across the street?
A. I saw the hands of the man running across the
street.
Q. And I believe you indicated in response to Mr.
McGill's questioning, that you saw it raised as if to fire a weapon.
A. Yes, sir.
Page 43.
SCANLAN - CROSS
Q. But you did not see the flash at that time?
A. No, I didn't.
Q. You were in a position to see it, if there was a
flash; is that correct?
MR. MCGILL: Objection.
THE COURT: Sustained.
Q. You were in a position to see his hands?
A. I saw the hand come up, yes.
Q. And when the hand stopped coming up, you saw the
hands, did you not?
A. I wasn't looking at the hands then.
Q. What were you looking at?
A. I didn't know what was about to happen.
Q. No. Well, what were you looking at then?
A. I was looking at the three gentlemen standing
there.
Q. When you saw his hands come up, you stopped looking at
his hands all of a sudden for no reason?
A. Well, I didn't know that a gunshot was about to go
off.
Q. I understand.
A. No, I don't remember looking at his hands.
Page 44.
SCANLAN - CROSS
Q. But you never took your face away -- you never took
your eyes away from the three of them?
A. No.
Q. And when you say him raise his hand, this man who was
running across the lot, how close was he to the officer when you saw him
raising his hand?
A. Three or four feet.
Q. So, you could see the officer, the man who ran across
the street, as well as the driver, at the same time, could you not?
A. That's correct.
Q. And you only heard a shot?
A. Yes.
Q. And it came from the direction of those three
people?
A. Yes, sir.
Q. You're certain of that, sir?
A. Yes.
Q. Okay. Now, the hairstyle of the man who ran across
from the parking lot, could you tell us what that was? Did you notice his
hairstyle?
A. Just the black cap that he had on.
Q. Pardon me?
Page 45.
SCANLAN - CROSS
A. Just the black knit cap holding his hair.
Q. Do you recall telling the police that the man had an
Afro haircut?
A. Yes.
Q. So that's what he had, an Afro haircut; is that
right?
A. Yes, sir.
Q. And the man who the police stopped, he had dreadlocks;
is that right?
A. Yes, sir.
Q. And you remember that very clearly?
A. Yes, sir.
Q. And do you recall seeing, looking to see if there was
anyone in the police car?
A. No.
Q. Did you see anyone in the Volkswagen?
A. No.
Q. After the shooting, did you see anyone run from the
scene?
A. No. That's why I took a left-turn, to look for the
police.
Q. And you went for the police immediately?
A. Yes, sir.
Page 46.
SCANLAN - CROSS
Q. And when you returned, someone pointed someone out in
a van; is that right? -- to you?
A. Yes, sir.
Q. And the man that you saw in the van, was he
handcuffed?
A. I believe so, yes.
Q. Was he laying on his back?
A. He was kind of crouched up in a ball.
Q. In a ball. And you told the police that as far as you
knew, that was the man who was driving the Volkswagen; is that right?
A. I can't say for sure.
Q. But that's what you told the police: isn't it?
A. Yes.
Q. You told the police that was the man, as far as you
could tell, who was driving the Volkswagen?
A. Yes.
Q. Did you see the other man, the man whom you said ran
across the street?
A. No, I wasn't sure what happened to either one of those
--
Q. No one -- strike that.
Page 47.
SCANLAN - CROSS
By the way, at any time did you see the officer fire his
weapon?
A. No, sir.
Q. Pardon me?
A. No, I don't remember that.
Q. You don't remember?
A. No, I didn't see him fire it.
Q. But you pretty much had the officer in sight during
this entire incident, didn't you?
A. Yes, sir.
Q. Now, you indicated that after the -- you heard the
first shot, and then after you saw a man stand over top of the officer and
fire two or three times. The officer was down on the ground?
A. That's correct.
Q. And after the man fired two or three times, what did
that man do?
A. That's when I left.
Q. Okay. Did you see if he walked away, ran away?
A. I didn't see.
Q. You have no idea at all?
A. No idea.
Q. Now, before you left the scene, and you said in
response to Mr. McGill's questions that you know
Page 48.
SCANLAN - CROSS
that the man was shooting the officer because you saw his
body jerk.
A. That's right.
Q. Did you see the officer pull any weapon, do anything
at all?
A. No, sir.
Q. The instrument that you saw the police officer hitting
the driver of the Volkswagen with, whether it was a blackjack or
flashlight, could you estimate for us the length?
A. I guess about this long.
MR. JACKSON: Would it be fair to say that's about 18
inches, Mr. McGill?
MR. MCGILL: 14, 18 inches, probably.
MR. JACKSON: Fine.
Q. He used one hand to wield that weapon, that instrument
with?
A. Yes, sir.
Q. Did you ever see what happened to it?
A. No.
Q. Did you notice whether in fact the officer dropped it
after you heard the first shot or --
A. No.
Page 49.
SCANLAN - CROSS
Q. --- or whether he was staggering --
A. No, I don't.
Q. No recollection. Fine.
Mr. Scanlan, do you remember the driver of the Volkswagen
-- again, you recall his knees buckling, right? You knew when he was being
struck?
A. Yes, sir.
Q. Do you recall when or if he stood erect?
A. Just when he was talking to the policeman.
Q. Okay. But that was before he was hit, though; is that
right?
A. Right.
Q. So after that you never saw this man stand up again.
When you said he was on the car and the officer struck and his knees
buckled, he never stood erect again, did he?
A. Well, he did when the officer was shot.
Q. Pardon me?
A. He did when the officer was shot. The two of them were
standing on the street -- on the curb.
Q. This was after the man had shot two or three times at
the officer?
A. Yes. sir.
Page 50
SCANLAN - CROSS
Q. He did stand up then?
A. He was standing then, yes.
Q. Fine.
Now, do you recall telling the police back on 12-12-81 --
and I'm reading a portion of the statement, Mr. McGill, Page 5 --
MR. MCGILL: Yes, sir.
Q. -- "The next thing I know, I saw the Officer laying
there, then one of the males was standing over the officer. I don't know
which one it was. Then I saw two or three flashes, and heard the shots."
Do you remember telling the police that?
A. Yes, sir.
Q. So why is it today you know who it was that fired, but
you didn't tell them then?
A. What I meant was I couldn't identify them, I couldn't
tell which of the two it was.
Q. You couldn't tell whether it was the driver?
A. Even today, I couldn't identify anybody at that point.
And that's the way I meant it. I couldn't identify anybody. The only
description -- the one running out of the parking lot --
Q. You can describe one as the runner, and one as the
driver, or something like that.
Page 51.
SCANLAN - CROSS
A. Yes. Now -- in those terms, it was the driver -- I
mean the runner, the one who ran out of the parking lot.
Q. Weren't you asked specifically to describe him, and
you described him, and you indicated that you couldn't identify anyone,
but you're saying now that when you said you didn't know which one, you
meant you couldn't identify them?
MR. MCGILL: I would have to object. First of all, he's
answered that question.
THE COURT: Let him answer one more time.
A. I mean, from reading the papers and all that, I
couldn't say the two names -- which of the two names it was.
Q. From reading the paper, But we're not asking you
--
A. I guess I was confused when they were asking the
questions, and that's why I said I didn't know which of the two it
was.
Q. What paper are you talking about reading? The
newspapers?
Page 52.
SCANLAN - CROSS
A. Yes, sir.
Q. But you were there, weren't you?
A. Yes.
Q. You didn't get your facts from the newspaper, did
you?
A. No.
Q. When you said again in the statement, "But I don't
know which male had the gun" --
MR. MCGILL: I would object. So that he's aware, there
were two statements.
MR. JACKSON: I'm sorry.
MR. MCGILL: I'm not asking you to do that. This is the
second statement?
MR. JACKSON: Yes.
MR. MCGILL: So he knows what order they were.
MR. JACKSON: 12-12, I'm sorry, December 12th.
A. Yes.
Q. You gave a statement to another detective -- sorry, I
don't know the name.
You said, again, "I saw the gun in one of the males'
hand, but I don't know which male had the gun."
You're saying that you only meant that you couldn't
identify them?
Page 53.
SCANLAN - CROSS
A. Yes. I couldn't give either of the two names.
Q. Anyone ask you for names?
A. No. The night of the shooting when I gave my statement
I believe I said that the guy who ran across the parking lot. But then a
few days later after it being all in the papers and the T.V. I couldn't
give the name, I couldn't identify anybody and still can't. That's why I
said that's why I wasn't sure which --
Q. Did the police ever ask you for a name?
A. No.
Q. What made you think they wanted you to identify them
by name?
A. I guess so that I could identify that particular
person. See, I could only identify them as to clothing.
Q. By the way, so that we have the relative heights of
the individuals, the driver of the Volkswagen, was he taller or shorter
than the police officer?
A. He was taller.
Q. The man who ran across the street -- we can call him
the runner or the shooter -- was he taller or shorter than the police
officer?
Page 54.
SCANLAN - CROSS
A. I can't say for sure.
Q. So, you couldn't say whether he was taller or shorter
than the driver of the Volkswagen either, I take it.
A. Right.
Q. Now let me also refer you to 12-12-81, Statement Page
5, last question and answer.
"Describe the first male that the officer stopped in the
Volkswagen."
"Negro male, about five-ten or a little taller, because
he was never fully erect."
Do you remember saying that?
A. Yes, sir.
Q. But today, you're saying that's incorrect, that he
really was fully erect at some point?
A. Yes, right at the end of the shooting.
Q. So when you told the police that, that wasn't quite
right?
A. Well, I was thinking when the officer brought him
over, and he was spread-eagle, he was never really standing fully --
Q. The driver of the Volkswagen, did he have a hat
on?
A. No, sir.
Page 55.
SCANLAN - CROSS
Q. You're certain of that, aren't you?
A. Yes, sir.
Q. And the man who ran across the street from the parking
lot had a black cap on?
A. Yes, sir.
Q. And you're certain of the color and you're certain
that he had a cap on?
A. It was definitely a cap on.
Q. By the way, do you remember -- and I don't mean to be
ridiculous -- how long it took him to get from the parking lot to where
the officer was? Half-second, or second, or longer?
A. Two seconds.
Q. Was he walking or running?
A. Picked up from a walk into a run.
Q. Okay. At what point did you see him go from a walk to
a run? I mean, you must have seen him walking at some point and go some
distance, and then you saw him run.
A. I saw when he reached the street, he picked up to a
run. He ran across --
Q. And you saw him walking in the parking lot; is that
right?
A. Yes, walking in the parking lot.
Page 56.
SCANLAN - CROSS
Q. And there was a light in there which you could see
into the parking lot?
A. Yes, there was a street light. I'm not sure where it
was.
Q. Now, let me remind you of this, again -- Page 6, the
same statement given on December 12, 1981 -- "Describe the second male
that ran toward the officer."
"Answer: I really only saw him from the side."
I read this just to remind you -- "I really only saw him
from the side; negro male about five-ten, maybe a hundred and eighty
pounds." The other male that you've already indicated and we understand
you've indicated that he was five-ten. So you're saying that as far as you
could tell, they're both about the same height?
A. Yes.
Q. But you're also certain that the man who fired, the
weapon the shooter, had an Afro hair style and the man who drove the
Volkswagen had dread locks?
A. That's correct.
Page 57.
SCANLAN - CROSS
Q. You never actually saw the gun, right?
A. No, sir.
Q. When you left the scene, you know, you made your left
on 13th Street, and I think you went to Juniper and Walnut, or something
like that to get the police, do you recall if anyone ran to the scene?
When I say the scene, right where those cars were, did you see anyone move
in that direction?
A. No, sir.
Q. Do you recall seeing anyone walking on Locust Street
on either side, either the north side or the south side of the street?
A. No, sir.
Q. I assume because you went to look for the police, but
I'm going to ask you a ridiculous question anyway: Did you see any police
on that street other than the one officer?
A. No, sir.
Q. Do you recall, possibly, what the number of that
police car was?
A. No, I have no idea.
Q. Do you recall whether or not the police car or the
Volkswagen was running, the motor was running?
Page 58.
SCANLAN - CROSS
A. No, I couldn't say for sure.
Q. And you're certain there were no cops on the street,
behind the police car --
MR. MCGILL: Objection, your Honor. He did not say
certain.
MR. JACKSON: Sir, could you tell us?
MR. MCGill: He did not focus his attention on it.
Q. Could you tell us?
A. I don't remember. I'm pretty sure it was the police
car that was the first car on the curb.
Q. Because you could see so clearly?
A. Yes, sir.
Q. And you don't recall seeing anyone, I guess, that
would be on the southeast corner of 13th and Locust; is that right?
A. That's correct.
MR. JACKSON: No further questions. Thank you, sir.
REDIRECT EXAMINATION
BY MR. MCGILL:
Q. Mr. Scanlan, you've been asked many questions about
descriptions, time, facial parts, people on the
Page 59.
SCANLAN - CROSS
street. Approximately how much time did you have this
scene in view at the very most?
A. I would say about 30 seconds, half-a-minute.
Q. Perhaps even less?
A. Perhaps.
Q. Were you particularly interested in focusing your
attention as to who was on the street --
MR. JACKSON: Objection.
Q. -- or what cars were there?
MR. JACKSON: Objection, as to his interest.
THE COURT: Overruled.
Q. You may answer.
A. I'm sorry. Can you repeat that, please?
Q. Were you particularly interested in focusing your
attention of who was on the street, or what cars were parked other than
where the incident was?
A. Yes, sir.
Q. You were or you weren't?
A. No, I was directing my attention right at the police
car. I'm sorry.
Q. You don't know whether or not there were people on
these other corners: is that correct, sir?
Page 60.
SCANLAN - REDIRECT
MR. JACKSON: Objection.
THE COURT: Overruled.
MR. JACKSON: Fine.
A. I do remember a few people, but I really wasn't paying
attention.
Q. Mr. Scanlan, you did say a few things which I wanted
to clarify, at least in my mind. You kept mentioning three people.
Remember that? Three people?
A. Yes, sir.
Q. Now, when you say three people, what are you talking
about?
A. The police officer, the driver of the Volkswagen, and
the man who ran out of the parking lot.
Q. Okay. Now, you did have read to you several parts of
the second statement you gave. Do you recall --
MR. MC GILL: May I approach the witness, your Honor? I
ask that this be marked C-57. I have the one copy. Your Honor, may I
approach the witness?
THE COURT: Go ahead.
Page 61.
SCANLAN - REDIRECT
(Statement marked for purposes of
identification as
Commonwealth's Exhibit 57.)
Q. Mr. Scanlan, I'm showing you what has been marked
C-57, which has been referred to as your first statement. When was that
given?
A. I guess about a half-hour or after -- December 9.
Q. 1981?
A. Yes, sir.
Q. You said a half-hour, what?
A. About a half-hour after the incident.
Q. Half-hour after the incident. Now, do you recall --
I'm referring to the first page, Mr. Jackson, of the first statement.
MR. JACKSON: Fine.
MR. MCGILL: The last eight or nine lines.
Q. Do you recall, "Then the guy running across the
street" -- can you see that?
A. Yes, sir.
Q. "Then the guy running across the street, pulled out a
pistol and started shooting at the officer. He had the gun pointed at the
officer. He fired, while he was running, at the officer, and the officer
fell
Page 62.
SCANLAN - REDIRECT
down. Then he stood over the officer and fired three or
four more shots, point blank at the officer."
Is that what that says?
A. Yes, sir.
Q. And you said that one-half hour after the
incident?
A. That's correct.
Q. You mentioned a red and black, or red and blue, or
something -- a sweater or a coat. Do you recall that? You didn't say coat,
you said jacket. Sweater or jacket.
A. Yes.
MR. MCGILL: Would you show the witness C-34, the jacket
in there, C-34. I'm sorry, C-54. There's a jacket in there.
Q. I'm showing you that jacket. Does that look at all
familiar?
MR. JACKSON: Objection as to familiar, your Honor.
THE COURT: Overruled.
A. Yes, sir. I remember the stripes, the big stripes.
Q. Where did you see that before?
Page 63.
SCANLAN - REDIRECT
A. From the man who came running out of the parking
lot.
Q. Could you place that back in the bag.
MR. MCGILL: Referring to the proceeding for Mr. William
Cook for punching the officer, Page 99.
MR. JACKSON: Fine.
Q. Do you recall this question and answer?
"Go on, and what did this other man do?
"Answer: This other man, next thing I heard was a crack,
what sort of sounded like a crack. I don't know what it was. Then the
officer fell down on the sidewalk and was laying there, when the gentleman
walked over with the pistol, and fired two times, striking the officer. I
noticed he hit the officer with the" --"I noticed the bullet hit the
officer because his body jerked.
"Question: The same man who ran over and had his finger
pointed forward, was standing over him shooting?
"Answer: Yes.
Page 64.
SCANLAN - REDIRECT
"Will you please tell me where the officer was struck,
what part of his body was struck by the other person.
"Answer: In the face."
Do you recall those questions and answers at that
trial?
A. Yes, I do.
Q. Now, you stated that after the man who ran across the
street shot the officer and before he fell there were a few seconds. Is
that what you said?
A. Yes, sir.
Q. During the course of that time, did you have the
officer's hands in view?
A. No, sir.
Q. As a matter of fact, did you really have the officer's
hands in view, really, at any time during the time after the first shot to
the time that you drove away?
A. No, sir.
Q. So would it also be fair to say that you're actually
unable to tell whether or not the officer fired back?
MR. JACKSON: Objection.
Page 65.
SCANLAN - CROSS
THE COURT: Overruled.
MR. MCGILL: Nothing further. Thank you.
RECROSS-EXAMINATION
BY MR. JACKSON:
Q. A few more questions, if you don't mind, Mr.
Scanlan.
Q. You indicated that you kept all three individuals in
view; is that right?
A. Yes, sir.
Q. You were very careful to point out to us what you saw
the person who ran across the street do. Now, even though you told the
police one-half hour after this incident that you saw this man run across
the street and pull a gun out, you were just assuming he pulled out the
gun; isn't that a fact? You didn't actually see the gun, did you?
A. No, I didn't see the gun.
Q. So it was an assumption on your part: is that
right?
A. I would imagine so.
Q. Fine. No one is penalizing you for it, sir.
Page 66.
SCANLAN - RECROSS
MR. MCGILL: Objection to the comments.
THE COURT: No comments.
MR. JACKSON: Sorry.
Q. So even though the statement was given one -- half
hour after the incident, it's still an assumption even then; is that
right?
A. Well, I heard the gunshot, so --
Q. Okay.
A. Okay.
Q. No question about hearing the gunshot.
A. Right.
Q. Now, back to, again, what really happened.
MR. MCGILL: Objection, comments.
MR. JACKSON: I'm talking about the shooting, that's what
I mean.
Q. The shooting itself, you indicated that when the
shooting happened the driver of the Volkswagen was on the police car?
A. After the shooting?
Q. Or at any time?
A. They were all right in front of the police car,
yes.
Page 67.
SCANLAN - RECROSS
Q. The police car.
MR. JACKSON: May I have one moment, please?
-----
Q. Let me refer you to Page 107, and perhaps you can
--
MR. JACKSON: I'm sorry, the notes of testimony, March 29,
1982, Mr. McGill, Page 107.
MR. MCGILL: Yes, thank you.
Q. "Question: Now when you said" -- strike that.
I'll start a little further.
"Question: When you first saw the man, other than the
officer, this man you said later struck the officer, what was this man
doing?
"Answer: When I reached the intersection" -- your answer
was, "When I reached the intersection?
"Question: Yes, sir.
"Answer: He was talking to the police officer in front of
the Volkswagen.
"Question: Now, when you said in front of the Volkswagen,
you would have been seated in your car and you have an intersection at
13th and Locust,
Page 68.
SCANLAN - RECROSS
you have the police vehicle, and then you have the
Volkswagen, and they were standing in front of the Volkswagen; is that
right?
"That's correct."
Now, I just want to be certain. Did they ever move from
in front of the Volkswagen and go to the police car?
A. No. I think it all took place in front of the police
car. I just remember the Volkswagen specifically, because of the
appearance of the car. I think that's why I said in front of the
Volkswagen.
Q. This was a mistake?
A. Just the appearance of the Volkswagen, the front and
the back. I believe this day, it was in front of the police car.
Q. When you said it was in front of the Volkswagen on two
occasions, you were wrong?
A. I could have been mistaken.
Q. Okay. I just wanted to get that straight. Again, with
regard to the hands of the police officer, you said that you weren't
focusing on his hands, right?
A. Right.
Page 69.
SCANLAN - RECROSS
Q. You weren't focusing on the hands of the driver of the
Volkswagen either?
A. No.
Q. And you weren't focusing on the hands of the shooter
either, because you're saying that you saw his hands go up, and then you
didn't focus on it. So you didn't see anybody's hands?
A. I saw the hand when it came up. I just don't remember
seeing the gun.
Q. I know. But you never saw it stop. That's what you
said earlier.
MR. MCGILL: Objection, your Honor.
Q. Correct me if I'm wrong. What do you mean you never
saw it stop? You said that you saw the shooter, his hand was coming
up.
A. Yes. By that point, he was already on top of the
--
Q. And you heard a shot?
A. That's correct.
Q. So what I'm saying is, although you saw this one hand
start to go up, you only heard a shot and you don't know where the hand
was pointed, or where it stopped; isn't that what you said?
A. That's correct.
Page 70.
SCANLAN - RECROSS
Q. So it's fair to say at the time of the shooting you
weren't looking at anybody's hands?
A. Just the one that came up.
MR. MCGILL: I have to object. What shooting?
MR. JACKSON: The first shot. I repeated it three times.
That's what we're talking about.
A. I just saw the hand come up, and I never saw the gun
until he was shot.
Q. And after that, sir, did you see anyone else's hands
before you left the scene?
A. Just the one that was holding the gun in his right
hand, and fired at the officer.
Q. You could see the officer's hands, couldn't you? I
mean, you could see the entire body of the officer when he was on the
ground?
A. I could see from his head to his toes, yes.
Q. And you saw him as he fell, did you not?
A. Yes, sir.
Q. Did you see his hands grab on to anything?
A. No, I don't remember.
Page 71.
SCANLAN - RECROSS
Q. And you didn't notice anything in his hands either,
did you?
A. No, I didn't.
Q. The driver of the Volkswagen, you could see him this
entire time as well, couldn't you?
A. I wasn't really focusing my attention on him, just the
officer.
Q. I appreciate the fact that you weren't focusing on
him, but you could see him?
A. Yes.
MR. MCGILL: Objection, your Honor. It's quite relevant if
he wasn't focusing on his hands.
MR. JACKSON: The question is whether he could see
him.
A. Well, I know he was still there. I wasn't looking at
his hands.
Q. Fine. Thank you, sir, I understand that. Now, Mr.
McGill indicates that you weren't interested in anybody else who was at
the scene and I can appreciate your interest. Nevertheless, on December
12th, when you talked to a detective, whose name I really can't
distinguish --
Page 72.
SCANLAN - RECROSS
MR. MCGILL: It really doesn't matter.
MR. JACKSON: Yes.
Q. In fact, you gave them a description, a diagram,
placing individuals who were at the scene, did you not?
A. That's correct.
Q. Even though you didn't focus in on anyone, you put a
person standing at the -- I guess that would be the southwest corner --
you put two people standing at the northwest corner, you put -- this is
the second man that you saw standing at the parking lot. Was he standing
at some point in time, just standing without running or without
walking?
A. I don't know. I didn't see him. I just saw him from
running out of the parking lot.
MR. JACKSON: Your Honor, may I approach the witness for a
moment?
Q. So that I'm clear sir, this is an indication here that
there is a second, N-M., I suppose, negro male, standing -- whose
indication of that standing is that?
A. That's mine. That's the man that came running
Page 73.
SCANLAN - RECROSS
out of the parking lot.
Q. Was he standing there?
A. No.
Q. He was never standing?
A. No.
Q. Okay. But in any event, then you did have some idea of
who was at the scene in that general area on December the 12th?
A. I know there was other people besides myself.
Q. And all that you meant was that you didn't focus on
them. It wasn't that you didn't see them, just that you weren't focusing
on them.
A. Right.
Q. That's what I thought you meant. Thank you.
MR. JACKSON: Nothing further.
BY MR. MCGILL:
Q. Mr. Scanlan, on your first statement, C-51, at the
bottom of Page 1, where you said you observed the man running across the
street, and shoot the officer in the back, and he fell down. When that man
was over the officer, did you see the gun and flashes at that time?
Page 74.
SCANLAN
A. I saw the flashes, there.
Q. Fine. And it was coming from his hands?
A. Yes.
Q. Where he was pointing?
A. Yes, sir.
MR. MCGILL: Thank you very much.
MR. JACKSON: I have nothing further, your Honor.
(Witness excused.)
THE COURT: Let's take a short recess.
- - - -
(Recess)
-----
(Whereupon the jury entered the courtroom and the
following took place:)
MR. MCGILL: May I proceed, your Honor?
THE COURT: Yes.
MR. MCGILL: Mr. Albert Magilton.
(Discussion off the record)
ALBERT MAGILTON, after having been
duly sworn, was examined and testified as follows:
Page 75.
MR. MCGILL: May I proceed, your Honor.
THE COURT: Yes, please.
DIRECT EXAMINATION
BY MR. MCGILL:
Q. Mr. Magilton: I'm directing your attention to December
the 9th, 1981.
A. Yes, sir.
Q. And particularly some short time before 4:OO a.m. on
that morning, did you have occasion to be in the area of 13th and Locust
Streets?
A. Yes, I was.
Q. All right, sir. What did you observe?
A. I observed the gentleman -- well, the police officer
pulled over a blue Volkswagen at the corner of 13th and Locust.
Q. And what did you then observe?
A. Well, the officer was on the microphone, and then he
pulled the car over. The driver got out and the officer got out, and they
proceeded to the pavement. And then after that there, I proceeded to cross
Locust Street, which I noticed the gentleman coming from the parking
lot.
Page 76.
MAGILTON - DIRECT
Q. And what was this man doing, or this person doing,
when he was coming from the parking lot?
A. He was sort of like moving across the -- across the
street fast, and he had his hands back behind his back.
Q. Would you stand up, please.
MR. MCGILL: With the Court's permission.
Q. You don't have to come down here. Just indicate to the
jury what you mean by his hands behind his back.
A. He had his hands back like that there.
Q. Indicating his --
A. His right arm.
Q. -- right arm.
A. Towards the back, such like that.
Q. Sort of cupped?
A. Yes.
Q. Behind, on his right side in the direction of his
back, more on his back than on his side?
A. Yes, sir.
Q. And what did you observe this man doing?
A. He was moving across the street towards where the
officer had stopped the Volkswagen. And --
Page 77.
MAGILTON - DIRECT
Q. And did you have occasion to lose sight of him?
A. Yes, sir. About half-way across the street, I had
turned to proceed crossing the street.
Q. Then when you went across the street, what
happened?
A. I heard some shots and I looked over and I didn't see
the officer there no more.
Q. All right. And then what did you do?
A. Well, I proceeded back across the street to see what
had happened to the officer. And then as I was moving across the street,
you know, I was moving slowly across the street, I looked. When I got to
the pavement, I had looked down and I had seen the officer laying there,
and I didn't see the other gentleman until I -- until I moved up closer
and he was like sitting on the curb.
Q. And where was he sitting on the curb?
A. By the front of the Volkswagen.
Q. And what did you see happen to him?
A. Well, he -- as soon as the police arrived, there was a
scuffle as they was looking for the weapon.
MR. JACKSON: Objection. Move to strike, your Honor,
Page 78.
MAGILTON - DIRECT
Q. All right, Mr. Magilton --
THE COURT: Strike that last part.
Q. Okay. There was a struggle and what did they do to
that man?
A. They handcuffed him and put him in the wagon.
Q. Now, did you have occasion to be asked to do
anything?
A. Yes.
Q. In reference to the wagon.
A. Yes, The officer took me over to the wagon and asked
me if this was the gentleman I seen coming across the street.
Q. What did you say?
A. I said, "Yes, that's the man."
Q. And where was the wagon?
A. It was parked by the -- towards the front of the
police car.
Q. In what direction?
A. Heading towards -- facing towards 12th Street.
Q. Now, did you have occasion to -- or can you identify
that particular man that ran across the street?
A. Yes, I can.
Page 79.
MAGILTON - DIRECT
Q. Did you have occasion to identify him at a pre-trial
hearing a few weeks ago?
A. Yes, I did.
Q. And at that point, where was he seated?
A. He was sitting next to that gentleman there. While I
was -- I believe he was sitting in that chair where that gentleman is
sitting.
Q. And this gentleman was sitting where?
A. He was sitting next to him on his right.
MR. JACKSON: There's a stipulation.
MR. MC GILL: Your Honor, there's a stipulation. The same
stipulation that if the defendant were here, Mr. Magilton would identify
him as the man he saw running across the street.
THE COURT: Once again, ladies and gentlemen, you remember
that I told you that you can only consider that evidence which comes from
this witness stand. Of course, to that rule there is an exception, the
exception being that when both counsel stipulate to a fact, you can take
that fact as if it had come from this witness stand. Do you understand? Go
ahead.
Page 80.
MAGILTON - DIRECT
Q. Now, when you went up there and you saw the defendant
in front of the Volkswagen, did you see anyone else there? Any other
civilian?
A. Yes, there was another gentleman there.
Q. Now, had you seen him before?
A. He was the driver of the Volkswagen.
Q. Other than the driver of the Volkswagen, as well as
the man running across the street, did you see anyone else there at the
time when you walked up?
A. Well, there was the police officers, and there were
other people around. And when I looked there was a crowd of people and
everything around.
Q. This is after the police came?
A. Yes.
Q. Now, Mr. Magilton, you said something about a
microphone. What did you mean by that?
A. Well, the police radio.
Q. Oh.
A. You know, before the officer had gotten out of the car
he was on the police radio.
Q. Had you seen that police officer in that car any other
time earlier that day?
A. Well, I had seen him down the street, just before
Page 81.
MAGILTON - DIRECT
he pulled away around Juniper and Locust.
Q. And after he pulled away, what did you see him do?
A. Well, I proceeded up towards 13th Street, and that's
when he pulled the Volkswagen over.
MR. MCGILL: Cross-examine.
CROSS-EXAMINATION
BY MR. JACKSON:
Q. Mr. Magilton, so that I'm clear, you were walking,
first of all; is that right?
A. Yes, sir.
Q. When you saw the police car at Juniper and Locust,
where were you?
A. Well, I was there looking at this here car.
Q. Where, sir?
A. Right on the corner of Juniper and Locust.
Q. You were at Juniper and Locust?
A. Yes, sir.
Q. And you -- and when you first saw the police car, was
it moving or was it standing still?
A. It was moving.
Q. And traveling east on Locust Street?
A. Yes, sir.
Page 82.
MAGILTON - CROSS
Q. Did you see the Volkswagen?
A. Not until the police officer pulled it over.
Q. Now, when you saw the police car, and it was moving,
you were standing at Juniper and Locust?
A. Yes.
Q. Facing what direction, sir?
A. Well, I was looking at this car.
Q. Whose car?
A. I don't know whose car it was. I was looking inside
the car.
Q. Just looking at a car?
A. Yes. And the officer stopped me, you know, and asked
me what I was doing. I told him. Then he asked me my name. He said I
looked familiar.
Q. So the police officer -- Officer Faulkner, the one who
was shot?
A. Yes.
Q. He stopped you at Juniper and Locust?
A. Yes.
Q. And asked you what you were doing. You said looking at
the car?
A. Yes.
Page 83.
MAGILTON - CROSS
Q. Why were you looking at the car at 4 o'clock in the
morning?
A. Well, it was a big limousine, and it had stuff in the
back of it.
Q. Fine.
A. And I was just curious.
Q. Okay. So after you satisfied the officer with what you
were doing, he took off east on Locust Street, and then you started
walking east up Locust Street?
A. Yes, sir.
Q. And at what point did you first see the
Volkswagen?
A. When the officer put his lights on to signal him to
pull over.
Q. So, did you ever see the Volkswagen -- I guess it
would be west of 13th Street?
A. Not -- not that I can say.
Q. So when you first saw the lights of the police vehicle
he was already across 13th Street?
A. No, they were sitting at the light, and when he put
his lights on, the light changed and the car pulled over.
Page 84.
MAGILTON - CROSS
Q. So they were right there at 13th and Locust waiting
for the light?
A. Yes.
Q. And the police car lights -- then the driver of the
Volkswagen pulled over and he got --
A. Yes, sir.
Q. Now, you proceeded east on Locust Street, right?
A. Yes, sir.
Q. On the south side of Locust Street?
A. Yes, sir.
Q. And you went to the corner of 13th and Locust. Did you
cross 13th Street?
A. Well, I stood there and watched for a while as the
officer pulled the car over.
Q. Okay. Now, at that point, when the officer pulled him
over, you were at the corner. Did you see if there were any other cars on
the street then?
A. There was a couple cars in front of the
Volkswagen.
Q. There were a couple of cars in front of the
Volkswagen?
A. Well, there was a Ford I noticed in front of the
Volkswagen.
Q. Right. How about moving, people driving cars on
Locust?
Page 85.
MAGILTON - CROSS
A. Yes, there was traffic moving around.
Q. On both streets?
A. Yes, sir.
Q. 13th and Locust, did you see people standing?
A. There was a few people walking by.
Q. But did you see anyone standing?
A. There were some people over by the church or whatever
it is on 13th Street, on -- on Locust Street there is a church or whatever
it is there.
MR. JACKSON: If he could place it on the diagram, just so
that we'll know where the place is that he's talking about. That one,
please.
Q. Mr. Magilton, if you possibly can, maybe you can come
down, please. So that you know, this is Locust Street, this is 13th
Street.
A. Over here there is a building.
Q. You have to speak up and stand back.
A. Right here on the corner there is an old church, or
old movie house, or something.
Q. Let me interrupt you just a moment. That would be the
southwest --
A. Southwest corner.
Page 86.
MAGILTON - CROSS
Q. Go on.
A. Well, there was someone standing over by the steps
there.
Q. Right. What about the southeast corner?
A. Well, there was people moving around there.
Q. Did you see anyone standing at the southeast
corner?
A. No. I noticed a gentleman come from through here, and
he started moving across the street, and that was Mr. Jamal.
Q. All right. But you never say anyone right here on the
southeast corner?
A. Not to my knowledge.
Q. How about a taxicab?
A. There was cabs moving all around.
Q. But did you see one parked?
A. There was one up here parked.
Q. And did you see any other cab that was parked?
A. No.
Q. Okay. Before returning to your seat, could you diagram
or show us your path after you got to 13th and Locust, because you
indicated you walked a distance and then came back?
Page 87.
MAGILTON - CROSS
A. Yes, I started walking across here, and I was about
there, when I heard the shots. Well, I was here when I noticed Jamal
coming out of the parking lot.
Q. You were where when you noticed him?
A. Right about here.
Q. Okay.
A. And then I noticed a gentleman coming through the
parking lot, walking across here, and I lost him about half-way. Then I
got right about the corner, that's when I heard the shots and I looked
back.
Q. Were you on the sidewalk? Did you reach the
sidewalk?
A. I was in the street.
Q. Okay.
A. I was just about to walk up on the sidewalk.
Q. Fine. Please return to your seat, sir. Now, you were
just about to mount the sidewalk when you heard noise, shots?
A. Yes.
Q. Did you hear one shot, two shots, in rapid succession?
As best as you can recall, what did you hear, sir?
Page 88.
MAGILTON - CROSS
A. Pow, POW, POW, and then Pow, Pow.
Q. POW, POW, POW, and then Pow, Pow?
A. Yes.
Q. Okay. So it's fair to say that you did not hear one
shot and a pause, and then a few more shots?
A. Yes, I guess so.
Q. Pardon me?
A. I guess so.
Q. It's fair to say that?
A. Yes.
Q. Okay. In fact after hearing the shots, you immediately
turned around; is that right?
A. Yes, sir.
Q. And you didn't see the police officer?
A. No, sir.
Q. And in fact, you didn't see the man who you said was
walking across the street?
A. No, I didn't.
Q. In fact, you didn't see this man go to the police
officer, did you?
A. No, sir, like I said, I lost him about half-way across
the street.
Q. And you don't know who fired the shot at him, do
you?
Page 89.
MAGILTON - CROSS
A. I never said I did, no.
Q. I understand that. I understand that. You never saw a
gun, either?
A. No, sir.
Q. When you were crossing Locust Street -- let me back up
a little bit. When you saw the officer stop the driver of the Volkswagen,
did you see him get out of the car?
A. Yes, I did.
Q. What did they do when they got out of the car?
A. Well, they proceeded to walk in between the cars, and
they were going up on the curb.
Q. They walked between the Volkswagen and the police
car?
A. Yes, sir.
Q. And they got up on the curb?
A. Yes, sir.
Q. And what happened? I mean, tell us what happened, what
you saw.
A. Well, after that there I turned around, I was waiting
for the light to change to come across.
Q. Okay.
Page 90.
MAGILTON - CROSS
Did you see anything happen in the street?
A. No, I didn't.
Q. Did you see the driver of the Volkswagen strike the
police officer?
A. No, I didn't.
Q. Did you see the police officer strike the driver?
A. No, sir.
Q. Did you see anything in the police officer's hand?
A. Not that I know of, no, sir.
Q. Did you see anything in the driver's hand?
A. No.
Q. You say no, you didn't see it, or no, there was
nothing?
A. No, I didn't see it.
Q. Fine. As best as you can estimate for us, how much
time did it take for those shots to go off?
A. A few seconds, I guess.
Q. And you where walking when you heard the shots?
A. Right. Yes, sir.
Q. And you were walking casually, I suppose.
A. Yes.
Q. So you took no more than one or two steps?
Page 91.
MAGILTON - CROSS
Q. When you turned and looked, you heard the shots from
the direction of the police officer and the Volkswagen: is that right?
A. Yes, sir.
Q. When you looked over there, as soon as you looked,
what did you see?
A. Well, there was a gentleman standing there, but it
wasn't -- I believe it was the driver of the car.
Q. You believe?
A. Yes.
Q. But you're not certain?
A. Well, I'm pretty sure it was the driver of the car. He
had the same -- same hat on, like the driver of the car had.
Q. Now, the driver of the Volkswagen had a hat on?
A. Well, whatever you call them. It was like a--
Q. Hat?
A. Beret or something.
Q. What color was it?
A. Black.
Page 92.
MAGILTON - CROSS
Q. You're certain of that?
A. Yes, I am.
Q. The man who ran across from the parking lot -- you
didn't see him run -- let me correct that. The man you saw walking from
the parking lot, did he have a hat on?
A. No, he didn't.
Q. You're certain of that?
A. Yes sir.
Q. Did he have a cap on of any sort?
A. No, sir.
Q. Did you see his hair?
A. Yes, sir.
Q. And it was long dread locks?
A. Yes, sir.
Q. Nothing covering his hair at all?
A. Not that I know of, sir.
Q. The man who you say was the driver of the Volkswagen
who had a cap or tam -- I don't know what they call it, either -- I think
it's a tam, but in any event, did you see his hair?
A. No, sir.
Q. The hat completely covered his head?
Page 93.
MAGILTON - CROSS
A. Yes, sir.
Q. Would you be able to identify that man, the driver of
the Volkswagen?
A. Yes, sir.
Q. You're certain of that?
A. I believe I could.
Q. Have you been asked to identify him by the police or
the District Attorney's Office?
A. Well, I identified him when they brought him into the
police station that night.
Q. And you told them --
A. That was the driver of the car.
Q. Do you recall how he was dressed?
A. He had a black coat, black hat, about five-seven,
normal weight.
Q. A black coat?
A. Yes, sir.
Q. How long was the coat, or how short was it? Well,
describe the coat.
A. My guess it was about down to his legs, I guess.
Q. It did not go below his knees, say like mid-calf or
something like that, right here?
A. Yes.
Page 94.
MAGILTON - CROSS
Q. You see his hair?
A. No, sir, I didn't.
Q. So you don't know what style hair he had?
A. No, sir. He had a goatee.
Q. That was the only person that you saw standing when
you first looked?
A. Yes, sir.
MR. MC GILL: Objection. I have to -- is this after all
the shots?
Q. Yes, when he first looked, he looked after he heard
all the shots; is that right?
A. Yes.
Q. You did not look after you heard the first shot or the
second. It's like whatever number of shots there were, you looked after
all of then sounded?
A. Well, I looked when I had first heard the first,
burst.
Q. First burst?
A. Yes.
Q. And the first burst was one shot, or several
shots?
A. Several shots.
Page 95.
MAGILTON - CROSS
Q. And --
A. And then the other ones went off and like I said, I
didn't see the officer there.
Q. Okay. Then, you can correct me then, because I think
I'm confused a little bit. You heard the first burst, and you turned.
After turning you still heard some more shots?
A. Yes.
Q. And you looked over in that direction where the police
officer was?
A. Yes.
Q. You didn't see the police officer. You didn't see the
man who was coming from the parking lot, did you?
A. No, sir.
Q. The only person that you saw was the driver of that
Volkswagen?
A. Yes, sir.
Q. What was in his hands?
A. Nothing that I could see.
Q. Did you see his hands?
A. No, sir.
Page 96.
MAGILTON - CROSS
Q. Was his back to you?
A. I saw his like side profile.
Q. So you would have seen his left profile?
A. His right profile.
Q. You saw his right profile. So, then he would have been
facing south; is that right?
A. Yes, sir, I guess.
Q. See anyone else? After you heard the shots, see anyone
else?
A. No, sir.
Q. Did you see anyone moving from the scene?
A. No, sir, I didn't.
Q. Did you see anyone moving toward the scene?
A. Yes, sir, there was a bunch of people moving towards
the scene.
Q. Do you know -- can you describe "bunch of people"? I
mean who it was, how many?
A. No, it was just, you know, just people that were
moving around; I guess they were curious.
Q. Fine. Were police also part of the people moving
towards the scene, then?
A. Yes, sir.
Q. So the police actually got there before you got there,
didn't they?
Page 97.
MAGILTON - CROSS
A. Well, I was moving across slowly, because I didn't,
you know, know what was going on. I didn't want to get shot.
Q. I don't blame you. I don't blame you. So you
cautiously moved up?
A. Yes, sir.
Q. And about the same time that these other people
started moving towards the scene, the police arrived?
A. Yes, sir.
Q. So that would it be fair to say that you didn't stop,
you just walked slowly towards --
A. Yes, sir, and as I approached the corner, that's when
I moved around and I seen the officer laying on the pavement.
Q. Okay. When you saw the officer laying on the pavement
were police already there?
A. They were just moving up into -- they were pulling up
when I seen the officer.
Q. And you saw the police come up Locust Street,
right?
A. Yes, sir. They were coming from all directions up
Locust, down Locust, up 13th, down --
Q. So you felt --
A. All the way.
Page 98.
MAGILTON - CROSS
Q. So you felt secure enough to move forward?
A. Yes, sir.
Q. Okay. By the way, the driver of the Volkswagen, was --
you know, when you heard the shots, you saw him -- you saw the right
profile, he was in the street, in between the cars, on the side, where was
he?
A. He was on the sidewalk.
Q. He was on the sidewalk. In relationship to the curb
and the wall, was he closer to the curb or closer to the wall?
A. He was closer to the wall.
Q. Could you see his full body?
A. When I got up to the pavement, I did.
Q. No. I mean when you first saw him, when you first
turned around and saw him?
A. No, sir.
Q. Now, after you turned around and you saw him, you
never lost sight of him, did you?
A. No.
Q. What was he doing?
A. He was just standing there. He had a shocked
expression on his face.
Q. Did you see if he was injured?
A. No, I didn't.
Page 99.
MAGILTON - CROSS
Q. Did you see anyone strike him?
A. No.
Q. Did you see him strike anyone?
A. No, I didn't.
Q. Now, I understand that you lost sight of -- strike
that. As you approached, you didn't see the officer at first; is that
right?
A. Yes.
Q. At what point was it that you saw the officer?
A. When I got up to the pavement.
Q. That would have been on the same pavement where the
officer was?
A. Yes, sir, southwest corner.
Q. Fine. At what point did you see Mr. Jamal?
A. Well, as the police were arriving and they got to the
scene that's when I moved up against the wall, and I seen him sitting --
he was like in front of the Volkswagen on the curb.
Q. In front of the Volkswagen. That would have been
--
A. Well, towards the front fender of the Volkswagen.
Q. And that -- okay. And there was a Ford parked in front
of the Volkswagen; is that right?
Page 100.
MAGILTON - CROSS
A. Yes.
Q. Did you see anything in Mr. Jamal's hand?
A. No, I didn't.
Q. Indeed, you never saw anything in Mr. Jamal's hand; is
that correct?
A. Yes, sir.
Q. Never saw anything in the police officer's hand?
A. No, I didn't.
Q. And you never saw anything in the hand of the driver
of the Volkswagen?
A. No, sir.
Q. And in fact you never saw the man actually cross the
street when he came from the parking lot. You just saw him enter the
street; is that right?
A. Oh, I had seen him half-way across the street.
Q. But you didn't see him --
A. But like in the middle of the street when I lost sight
of him.
Q. Now, you were about 15 to 80 feet away when you saw
the man crossing; is that right?
A. Yes, sir.
Q. So that I enjoy the same wavelength, can you estimate
from where you are someplace in this courtroom
Page 101.
MAGILTON - CROSS
where that would have been 75 to 80 feet away. Maybe a
wall, a person in the courtroom, or something like that. So we have
something.
A. I guess from here to that door back there.
Q. That door back there?
A. Yes, sir, maybe a little farther -- I don't know.
Q. The driver of the Volkswagen, did you see handcuffs on
him?
A. After the police arrived he was handcuffed.
Q. You saw them handcuff him?
A. Well, I didn't actually see them handcuff him, but
after I looked up he was handcuffed.
Q. After you looked up from where?
A. Well, after I had seen the officer, you know, I sort
of shocked myself. I was sort of shocked myself.
Q. Do you know whether he was handcuffed before the other
officers arrived?
A. I couldn't actually say. I don't know.
Q. Do you know if Mr. Jamal was handcuffed before the
police officers arrived?
A. No, he wasn't.
Page 102.
MAGILTON - CROSS
MR. JACKSON: Your Honor, would you indulge me one
moment.
(Discussion off the record)
Q. Excuse me one moment, Mr. Magilton.
A. Yes, sir.
Q. By the way, how many shots did you hear all
together?
A. Five.
Q. And you're certain there were five shots; is that
right?
A. Yes, sir.
Q. Couldn't have been four? Couldn't have been six? It
was five?
A. It was five. I'm not exactly sure in what succession
they were but I know it was five, because I was cautious about going back
on the pavement.
Q. It may have been more?
A. Yes, sir.
Q. Mr. Magilton, do you frequent that area?
A. No, not necessarily, no. I might pass through there
sometimes, but I'm not a regular customer, I guess, down there.
Page 103.
MAGILTON - CROSS
Q. I didn't mean to intimate anything. Let me do it this
way: How often would you go -- I don't mean necessarily to do anything --
how often are you in that area?
A. Say a couple times -- I go to a go-go bar down
there.
Q. So you say a couple times a week, maybe?
A. Well, I wouldn't say a week. Not very often.
Q. Do you know some of the ladies of the night down
there?
MR. MC GILL: Objection, your Honor.
THE COURT: I will sustain the objection.
Q. Do you know Cynthia White?
MR. MC GILL: Objection, your Honor.
A. No, I don't.
Q. By the way, when the officer stopped you, he said that
he thought that he knew you.
A. He said I looked familiar.
Q. Did he know you or anything like that?
A. No, he didn't.
MR. JACKSON: Thank you, Mr. Magilton. I have no further
questions at this time.
Page 104.
MAGILTON
REDIRECT EXAMINATION
BY MR. MC GILL:
Q. Mr. Magilton --
A. Yes, sir.
Q. -- after you heard the shots, when you heard the last
shot, where were you at that time?
A. Like I say, I was just about -- about three-quarters
of the way across the street.
Q. You did not then make the sidewalk before the last
shot was --
A. No.
Q. You said you turned around and at that point in time,
you were -- were you able to see the officer, then?
A. After the last shot, no, I wasn't.
Q. Were you able to see the man you've identified as the
defendant in this case that you identified previously, the one who ran
across the street? Were you able to see him there?
A. No, no, I didn't see him.
Q. You were able to see the other person; is that
correct?
A. Yes, sir.
Page 105.
MAGILTON - RECROSS
Q. When you went over to the south side of Locust Street,
is that the first time you saw the officer?
A. Yes, sir.
Q. And where was he then?
A. He was laying on the pavement.
Q. And were you then able to see the defendant, or did
you have to go up closer?
A. Well, I moved up to the wall, that is when I noticed
the defendant up in front of the car.
Q. Okay. Is it accurate to say that from where you were,
that is three-quarters of the way across Locust Street going north, when
the last shot was fired, when you turned around, that you were unable to
see the defendant if he were seated in that spot where you eventually saw
him? Would that be fair to say?
A. Yes, sir.
Q. Just as you were unable to see the police officer?
A. Yes, sir.
Q. And when you did see the other person who you referred
to as the driver he was closer to the wall? Is that what you said?
A. Yes, sir.
Page 106.
MAGILTON - REDIRECT
MR. MC GILL: The photograph of -- I forget the numbers.
Let me see the photographs.
Q. Can you identify this photograph, C-21?
A. That's the driver of the car.
MR. MC GILL: Thank you. Nothing further.
MR. JACKSON: Just a couple more, if you don't mind,
sir.
MR. MC GILL: I do have one other question, if I may? Just
one.
MR. JACKSON: You have my permission, sir. Thank you.
MR. MC GILL: Is it all right with the Court?
THE COURT: Yes.
BY MR. MC GILL:
Q. You indicated --- or did you indicate he was walking
across the street, this defendant, or how was he moving from the parking
lot to the -- when you first saw him, the first portion of his route?
A. He was moving pretty fast, but I wouldn't say he was
running, no. It was like, you know, a fast walk.
Page 107.
MAGILTON - REDIRECT
Q. Okay.
A. He was moving fast, but I wouldn't say he was
running.
Q. Thank you. He has some more questions.
MR. JACKSON: I ask you hand the witness C-15, please.
RECROSS-EXAMINATION
BY MR. JACKSON:
Q. See if you can identify that.
THE COURT: C-15?
MR. JACKSON: That's the tam.
MR. MC GILL: That's the hat.
Q. Mr. Magilton, have you ever seen that before, sir?
A. Looks like the type hat the driver was wearing.
Q. Looks like the type of hat?
A. Yes, sir.
Q. You indicated that you were certain it was a black
cap. That, of course, is not.
A. Well, it looked black.
Q. Okay.
A. Well, it was a dark color.
Q. Fine.
A. Sorry.
Page 108.
MAGILTON - RECROSS
Q. So are you saying -- well, what are you saying?
A. Well, I said it was a black cap.
Q. Right.
A. Yes, sir.
Q. And that one is what?
A. Dark green.
Q. Okay. Are you saying --
A. Well, at nighttime, it would look black.
Q. So, you're saying possibly it's the same hat?
A. Yes.
Q. When you went up to the police officer, you saw, the
police officer. Did you look at his holster?
A. No, I didn't. I was -- well, when I first seen him, I
had seen his face laying there, and his face was all bloody. Like I said,
I was shocked after seeing that.
Q. Did you see any guns on the pavement?
A. I wasn't looking for any.
Q. I understand that.
A. No, sir.
Q. You didn't see anything?
A. Well, I couldn't say, I couldn't look around.
Page 109.
MAGILTON - RECROSS
As I said, I seen the officer's face, and I was kind of
shook up.
Q. Okay. When the police arrived, and I know you said
there was a bunch of them --
A. Yes.
Q. -- did you see any of them kick any weapons?
A. Not that I know of.
Q. Did you see any of them pick up any weapons?
A. No, sir.
Q. You remained there the entire time, didn't you?
A. Well, not the entire time. Until after they started
gathering witnesses. Then after they put Mr. Jamal in the wagon, we were
escorted down to the Round House.
Q. Fine. But until at least the time that Mr. Jamal was
placed in the wagon, you remained right where you were, wherever that
was?
A. Yes, sir.
Q. And exactly where was that? You took a stationary
position at some point, didn't you?
A. Yes, sir.
Page 110.
MAGILTON - RECROSS
A. Yes, sir. I was about say towards the front door of
the patrol car.
Q. Toward the front door of the patrol car?
A. Well, the front fender. But I was up against the wall
after the police arrived.
Q. So then, would it be fair to say you were about a car
length away from the officer, about a car length or so away from Mr.
Jamal, as well?
A. Yes, sir.
Q. And you didn't see the officers kick any weapons, you
didn't see them pick up any weapons?
A. No, sir.
Q. You didn't see them pick up any?
A. Well, as I said, you know, all I could see was the
officer, and that's all I was looking at.
Q. You did look at the other officers when they came on
the scene, didn't you?
A. Yes, sir.
Q. And -- I mean, you knew that they were moving around,
doing different things?
A. Yes, sir. But my main attention was focused on the
officer, because I had never seen nothing like that before.
Page 111.
MAGILTON - RECROSS
Q. I understand that. The question is, while these other
officers were moving around, did you ever see any officer with two guns in
one hand?
A. The only time I see that, was when we were in the
police station.
Q. But other than that, you never saw that at the
scene?
A. No, sir.
MR. JACKSON: Thank you, sir. I have no further
questions.
BY MR. MC GILL:
Q. Mr. Magilton, you saw a police officer with two guns
at the police station?
A. Yes, sir.
Q. When you -- strike that. Where were you when the
police officers first arrived?
A. As I said, I was up against the wall moving towards
the scene.
Q. When you say against the wall, where do you mean?
A. Southwest corner of 13th and Locust.
Q. Southwest or southeast? East would be closer to
12th.
Page 112.
MAGILTON
A. Southeast, heading towards 12th.
Q. Did you immediately go to the scene, or did you wait
for a while, until the police --
A. I waited until I was safe.
Q. Right. Would it be fair to say that you're not really
aware of what the police officers did once they arrived, at least?
A. As I said, once I seen the police officer's face, I
was sort of in shock myself.
Q. I understand that. Believe me, Mr. Magilton, what I'm
suggesting is that when you were moving gradually towards the east area,
towards 12th Street, would it be fair to say that you were not paying
attention to all of what the police officers themselves were doing at the
scene?
A. Yes, sir.
Q. Thank you.
THE COURT: This is a good time to break for lunch.
(Witness excused.)
THE COURT: We'll recess for lunch until 2:30.
Page 113.
(Whereupon the jury left the courtroom and the following
took place:)
MR. MC GILL: Judge, I'm still a little bit bothered about
this identification business. I think what I'm going to have to do is --
and I recognize that Mr. Jackson has suggested a stipulation, rather than
the potential prejudice that may arise if the defendant acts up in front
of the jury, just for the purposes of an identification by a witness. But
I'm still concerned about the --the vital element of an identification as
part of the case for purposes of appeal.
Now, he has stated that he observed this man sitting in
the chair during the pre-trial hearing, and that was Mr. Jamal, and that
was the defendant. And it was stipulated to, and Mr. Jackson has stated
that the man sitting there was in fact the defendant in this case.
I'm still not sure whether that's enough, but I wanted to
make sure that I at least represented to Mr. Jackson, or represented on
the record, what Mr. Jackson said, why he
Page 114.
wanted a stipulation rather than the man coming out.
MR. JACKSON: Sure, that --
MR. MC GILL: What I will do is get a picture of -- a
photograph of Mr. Jamal, from the newspaper, and I will bring it in. And
would you stipulate that that particular picture in the newspaper is the
picture that he identified? I don't have a photograph. That's the problem,
Judge, unless I can get a photograph -- a photograph that I want to
present. I don't want to put the one with him in the hospital.
THE COURT: Why don't you wait until you get the
photograph, and let him look at it, and make a decision.
-----
(Luncheon Recess)
-----
Page 115.
AFTERNOON SESSION
(A conference was held in chambers and recorded as
follows:)
THE COURT: What is the problem? Let's get right to the
crux.
MR. MC GILL: We mentioned before, you Honor, this is not
admissible for two reasons. We're talking about a document which is --
amounts to an investigative log that is signed.
MR. JACKSON: I don't think you've identified it for the
record. What are you talking about?
MR. MC GILL: This is a document which purports to be an
investigation log, 55-X-835 Form. Now, this investigation log is a piece
of paper with the date, 12-9-81, 9:00 A.M. It is signed with the initials
of someone who is an investigator for the Medical Examiner's Office. The
top of the document says, "Per Sergeant Westerman, Homicide Division," and
then goes into a text, and it is initialed by the investigator.
Page 116.
A portion of the text deals with the alleged
circumstances surrounding the injury of the defendant and is about the
center portion of the context of the text.
It is the Commonwealth's position, as I mentioned earlier
this morning, it is inadmissible, number one, as a business record,
business record exceptions. It's also inadmissible on the basis of
relevancy on the cross-examination of this witness because he at no time
used any information in relation to the injury of the defendant to
determine the cause of death of the deceased.
But putting relevancy aside, it is not admissible on the
basis of the hearsay exception for business records, because the text of
the remarks allegedly by Sergeant Westerman itself, if even accurate, is
hearsay from Sergeant Westerman. Sergeant Westerman heard it from other
people; it's not accurate to begin with, but even if it were accurate, it
would have been heard from other peoples, either one or more, since he is
a desk man, and not involved in the direct investigation
Page 117.
of the incident.
Secondly, the man who wrote it down himself, who was the
investigator, is only reporting what Sergeant Westerman said to him, what
he, Sergeant Westerman, had said to him.
So, one of the primary concerns with business records
exceptions is the fact that the text of the business record, beside it
being in the ordinary course of business and besides it being done at or
about the time that it was noted down, and information received, but aside
from that, it is clearly hearsay, because the text must be a primary
source.
In this particular case, it is not only failing the
element of being a primary source, it is about double or triple hearsay,
and on that basis alone, besides relevance, it would be inadmissible on
this record.
Okay. Shoot.
MR. JACKSON: Your Honor, I have perhaps a two-fold
response to the argument and the first divided in this matter.
Page 118.
I would, number one, move for a mistrial at this point,
based on my prior request through the Omnibus Motion for discovery
information, and I would think that in this case the merit or the truth or
the lack of truth with regard to the statement I was not provided this
information by the District Attorney or the Police Department with respect
to possible and potential exculpatory evidence.
Assuming for the moment that even if your Honor were to
assume and determine that knowledge was hearsay information, of course one
of the ways we could cure the hearsay information is to pursue it to its
source. I have not been given that opportunity through the District
Attorney's Office to do so.
And for that reason, I move for a mistrial.
Secondly, your Honor, with regard to business records
exceptions, and Mr. McGill talked upon the hearsay -- upon hearsay, and I
cite, your Honor, Commonwealth versus Kelly,
Page 119.
245 PA., Superior Court 351, it's a 1976 case. One of the
holdings of the Court is that a person called for the purpose of
qualifying business records needs not have any personal knowledge of the
facts which are reported in the particular records. Your Honor, I'm sure
is well versed in the business records that a person or an organization or
corporation or agency may have, and Mr. McGill spoke to some of them; that
is, that the information was recorded at or about the time of its
occurrence; that there is a requirement that it be done--that it is done
in the regular course of business.
I'm assuming that the Medical Examiner is in effect,
aside from being the Medical Examiner, the Custodian of records. As such,
these records are contained within the Medical Examiner's Office and I
don't think that Mr. McGill is suggesting that he's not the Custodian of
Records.
MR. MC GILL: Let me see that.
MR. JACKSON: But assuming that he is not, we still have
the same issue, I'm sure.
Page 120.
THE COURT: Don't worry about that. Let's get to the crux
of the thing.
MR. JACKSON: That the Custodian of Records need not have
any personal knowledge of the information that is in the business record,
and I think to deny that -- and I think with regard to the business record
exceptions, I think that we've satisfied that. It's something that's done
in the regular course of business, it was recorded at or about the time of
the occurrence.
THE COURT: Yes, but just because it's business records,
doesn't make it admissible. Even assuming that --
MR. MC GILL: Can I answer that?
Two areas: In reference to not receiving them, I would
respectfully disagree, with Mr. Jackson. I have before me a copy of a log
which I shall make a part of the record, which states that on January 27,
1982, approximately 11:40 A.M., a copy of the complete case was sent to
Anthony E. Jackson, Esquire, Suite 911, Western Savings
Page 121.
Bank Building, Broad and Chestnut, Philadelphia, Pa.,
19107.
This is signed by Aquillard, January 27, 1982; in
response to or following this up, and speaking to this woman, a complete
case means just that. The complete case. This complete case, including all
of this material, the investigative log, as well as this very entry
itself, was sent to me on April the 5th, 1982, when I had found out within
about a couple days before, or maybe a week before or so, that the
document which stated that -- or inaccurately stated the circumstances of
the defendant's injury was circulated to the newspapers. I didn't even
know it existed. Circulated to the newspapers, and they called me about
it, and I immediately called him about it, alerting him that the
newspapers called me about it. And telling him if it did exist, which I
didn't know at the time, that document would be hearsay upon hearsay, and
it's typical things that were said in the course of things, and
incorrectly written down by someone.
Page 122.
That's where that was left. But there is a statement
here, that was sent to him.
That's the first portion.
In terms of this case, Commonwealth versus Kelly, this
deals with the fact that the Custodian himself, Custodian himself need not
have personal knowledge of the contents of the records. I agree with that.
That however, does not go to the issue here. We are not questioning
whether the Custodian in this matter, or this doctor, knows, has personal
knowledge of this particular incident, but whether or not the contents of
the document itself, but whether they themselves are the personal, primary
knowledge of the individual reporting. Not the Custodian, but the
individual reporting it. It is not personal knowledge of either the
investigator nor the Homicide Sergeant. So no one has personal knowledge
of that. It's strictly hearsay, and that's the reason why it's unreliable.
That's the basic reason.
MR. JACKSON: Judge, I'm not going to delay the issue.
Again, my feeling is
Page 123.
with regard to counsel's argument, that there be some
primary purpose to what the Medical Examiner's Office is doing. I would
think again whether for counsel to say it's not within the personal
knowledge of the investigator, it's not within the personal knowledge of
the Sergeant, or anyone else, because he assumes that, it's not true. I
think that's just a representation of counsel and --
THE COURT: I think the Court can take judicial notice of
the fact that the investigator who was working at the Medical Examiner's
Office, certainly it was not within his personal knowledge, because he
says he's taking down what someone allegedly tells him over the phone.
MR. MC GILL: It's not the personal knowledge of Sergeant
Westerman, and I will bring him in tomorrow and put that on the record. To
move things on, he, of course, will say he didn't say that -- of course,
it's not his personal knowledge, he's a desk man.
Page 124.
MR. JACKSON: Your Honor, again, perhaps in getting back
to the earlier motion, if Sergeant Westerman -- let's assume it's not
within his personal knowledge, and somebody told him, and somebody told
that person, the problem I have, of course, is how am I able to track the
people down, if I can't get to them?
THE COURT: Well --
MR. JACKSON: If your Honor pleases --
THE COURT: I'm not going to argue this point. Let's wait
until tomorrow, until the Sergeant comes in, and let him tell his story
in-camera. He's not going to tell it in front of the jury. We'll have an
in-camera for you. But as far as I'm concerned, it's not admissible.
Whatever other purpose you think you can use it for --
MR. MC GILL: It's irrelevant and inadmissible. And I was
going to give Commonwealth versus Greiver, 461 Pa. 131, and the Kelly case
is 245 Pa., Superior Court 351.
Put this down, Commonwealth versus McNaughton, 252, Pa.,
Superior 302, it's a '77 case. You can put down Commonwealth versus
Page 125.
Well, that's prior inconsistent statement in refreshing
recollection: it's also not appropriate for that.
Commonwealth versus Proctor, 253, Pa. Superior Court 369,
and I also make a part of the record -- I think it's C-37, the
investigative log indicating the copy of the complete case was sent
January 27, 1982. And I ask that this be marked.
MR. JACKSON: Judge, I just want to point out the very
thing that Mr. McGill says is unreliable is the very same document that's
he's relying on to tell this Court --
THE COURT: I'm not worried about that.
MR. MC GILL: I would like to explain the difference
there.
MR. JACKSON: Let me explain something.
THE COURT: The jury is waiting. The motion is denied. you
have all the time this afternoon, after we're finished. I don't
Page 126.
want to hold up the jury any more. It's quarter of 3:O0.
Let's finish this case I and let them go.
MR. MC GILL: But your Honor has ruled that he can't use
it.
THE COURT: Yes, I have ruled on that.
(End of conference in chambers.)
(Whereupon the jury entered the courtroom and the
following took place:)
MR. MC GILL: I would like to re-call Mr. Magilton, as to
one question. It's due to the --
MR. JACKSON: I object.
THE COURT: Can I see you over here at side bar,
please.
(Side-bar conference, on the record)
MR. MC GILL: Judge, only for this purpose. Your Honor,
because identification is such an important issue primarily brought up by
the defendant in this case. In other words, to be absolutely positive for
record purposes, I believe the -- I believe a photograph of some sort
should be shown to Mr. Magilton
Page 127.
and that he would identify that photograph as the man
that he identified as the man running across. That's the only thing I'm
going to do. I will have it marked, shown to him, marked C-59 and shown to
him and say, "The person that you testified about this morning that ran
from the parking lot, the person that you identified at the other hearing,
I'm showing you a photograph. Can you identify that?"
And he will say, "Yes, that's the same person."
"Fine." Then I'll have to put in Detective Thomas later
and say that he's the exact same person that's been in the room. Only the
identification is the stipulation. The problem is sometimes with
stipulations, if you deal with that legally, if you don't have the
colloquy with the defendant on a stipulation, you have a problem. So this
is the round about way we have to do it, because of his absence.
MR. JACKSON: Your Honor, once stipulations are made by
and between counsel,
ACHTUNG: Die Seiten 128 und 129 sind nicht
auffindbar.
Page 130.
THE COURT: You should have had the photograph
yesterday.
MR. JACKSON: He has photographs of himself. I don't know
if you can take them from --
MR. MC GILL: Photographs of himself?
MR. JACKSON: Yes.
MR. MC GILL: No.
THE COURT: He wouldn't give you the records. What's wrong
with that?
MR. MC GILL: Nothing.
MR. JACKSON: It's a newspaper.
MR. MC GILL: It's the way he looks, most like this today.
Now, for the record, I'm going to have this marked C-59.
THE COURT: You have to do that.
MR. MC GILL: I wanted to let the record indicate I'm
taking a photograph from the newspaper, which is very close, I think you
will agree, as to how he appears today.
MR. JACKSON: Why would that have to be done in front of
the jury? It seems to me the only concern is technical concern.
Page 131.
We've already stipulated in front of the jury. It would
seem to me that for Mr. McGill to -- to get around that, we could do that
outside of the jury. To pile it on again, I think, is --
MR. MC GILL: The reason it has to be done before the
jury, is because it's their decision as to identification. It's not a
legal question, it's a factual --
MR. JACKSON: I will stipulate.
MR. MC GILL: It has to be stipulated by the defendant on
such an essential element of the case.
THE COURT: I see no harm in just looking at the
picture.
MR. MC GILL: In fact, I'11 bring it up myself, and show
it to him. I'd rather not do it, but I have to because of Mr. Jamal's
absence.
MR. JACKSON: The only problem I see is who do you have to
authenticate the photograph. I'm not being facetious. If the photograph
looks like Jamal, and we all say --
Page 132.
THE COURT: He can identify it himself.
MR. JACKSON: He can say that's the picture.
THE COURT: "That's the picture of the man that I
saw."
MR. JACKSON: You then have to get into -- the jury then
needs to see the photograph. That's what I want to avoid doing.
MR. MC GILL: They will not see the photograph.
MR. JACKSON: That's the point.
MR. MC GILL: They will not see the photograph. The way
I'll do it is with any photograph. I will say, "Can you identify this
photograph?"
Answer: "Yes, that is the man I saw."
"Fine."
The last person in this case that I present will be
Detective Thomas, or someone else who has seen and been looking at this
defendant for the last six or seven months.
"Can you identify what C-59 is?"
Page 133.
"That is a picture of the defendant in this case."
MR. JACKSON: Judge, I'm saying that we can't do that, as
you do with any other photograph, without authenticating the
photograph.
THE COURT: Why?
MR. JACKSON: Who's going to say that is Mumia
Abu-Jamal.
THE COURT: These people are. The jury has the right to
decide whether or not what he's saying is true.
MR. JACKSON: That's what I'm saying.
THE COURT: You can't show that.
MR. JACKSON: From a newspaper photograph.
THE COURT: You can't tell that it's from a newspaper.
MR. JACKSON: Judge, come on.
MR. MC GILL: You don't have to.
THE COURT: Suppose they ask for it?
MR. JACKSON: That's the point. Because it's a newspaper
photograph, it's going
Page 134.
to tend to reaffirm and bring up all the notions from
what they have heard and read in the newspaper.
THE COURT: That's not necessarily true.
MR. JACKSON: Not necessarily, but -- but I think it would
tend to do that.
THE COURT: Let me see that. How can you tell where it
came from?
MR. JACKSON: Judge, I don't think it would take any
genius to see that's from the newspapers. I'm saying, if that's true,
whatever else I read in the newspaper --
MR. MC GILL: I don't see how that would --
THE COURT: Well --
MR. MC GILL: Wait a minute. They know he's been written
about.
THE COURT: Everybody here has read about him.
MR. MC GILL: Everybody has seen the photograph, so really
there's no premise at all. However, the way to eliminate --
Page 135.
we've already stipulated. We know what that is, and
you've said it's accurate. That's fine. What we're going to do now is for
purposes of the record, in case there is a problem on appeal, if there
would be an appeal, is that we have to tie it in.
You can authenticate a record or photograph in two ways,
by an individual who took it, or secondly, by someone who can look at it,
and say that it is accurate and a fair representation of what that person
looks like. That is clear under the law.
THE COURT: Can't you take the photos from the newspapers?
They will blow one up and give it to you.
MR. JACKSON: They have a photograph, Judge. It's just
that he doesn't want to use that photograph.
THE COURT: He is laying on the ground.
MR. JACKSON: That is what I'm saying.
MR. MC GILL: That's what you want?
MR. JACKSON: No, no.
Page 136.
THE COURT: I just want a photograph of the person's
face.
MR. JACKSON: Judge, they have a photograph.
THE COURT: Even the one that the guy's on the ground. Can
you get a photograph just of his face out of that?
MR. MC GILL: No, Judge, he's laying there and he's got
blood coming out of his nose.
THE COURT: Let me see. Temporarily put this aside. Let's
get the Medical Examiner in here.
MR. MC GILL: Judge, we've got to do it now, and Magilton
is here. He's not going to come back.
MR. JACKSON: I'll object.
MR. MC GILL: I don't care whether you object.
THE COURT: Let's go. I have to make a decision.
(End of side-bar conference)
Page 137.
....ALBERT CHARLES MAGILTON,
after having been re-called, was examined and testified
as follows:
MR. MC GILL: All right. I ask that this be marked C-59.
Leave it like that, folded over.
(Photograph marked for identification as Commonwealth's
Exhibit C-59.)
MR. MC GILL: May I approach the witness, your Honor?
THE COURT OFFICER: Does counsel wish to see this?
MR. JACKSON: No.
MR. MC GILL: May I approach the witness, your Honor.
BY MR. MC GILL:
Q. Mr. Magilton, you have testified this morning about an
individual who ran across the street.
A. Yes, sir.
Q. That you saw in a wagon, and you say the police placed
in a wagon. Do you recall that?
A. Yes, sir.
Page 138.
MAGILTON
Q. And you've also identified him in your testimony this
morning as the individual that you identified at the previous hearing and
sat in a particular chair. Do you recall?
A. Yes.
Q. I pointed to that chair?
A. Yes, sir.
Q. Now, I'm asking you to take a look at C-59, and just
let me hold it here for you. Can you identify what C-59 is?
A. Yes, that's the gentleman I seen coming across the
street, Mr. Jamal.
MR. MC GILL: Recross on that point, your Honor.
MR. JACKSON: No questions.
(Witness excused.)
THE COURT: Your Honor, Doctor Hoyer.
Page 139.