The Full Text Commonwealth Brief Part 1

Music for this post:

Barrrr-run-dun-du-du-du-du-lun-dundun-dunduh-duh-du-dula-da…

Since I am transcribing a read-only document, I will present it in parts. The author is Assistant Attorney General Gregory C. Fuchs. The document is so poorly written that it is difficult to transcribe. I will present the table of contents at the end. The document is in the public domain. If you want the read-only pdf, email me, or file an open records request.

I will also place the full-text reply on this site.

Here is yet another of the many versions of the Commonwealth’s ever-changing story.

As someone at Mason’s site pointed out, there are a gazillion ways to point out that the body is a corpse. Gets old, after a while.

COUNTERSTATEMENT OF THE CASE

Appellant was indicted in McCracken Circuit Court for possession of a controlled substance, cocaine, tampering with physical evidence and operating a motor vehicle under the influence of drugs. (TR 1). Prior to trial, appellant moved to suppress all evidence derived as a result of the stop of the vehicle that she was driving as the stop was based on an uncorroborated tip. (TR 17). The court held a hearing on the motion on November 27, 2006.

At that hearing, the arresting officer Deputy Eddie McGuire was the only witness. He testified that on June 28, 2006 that he had received a report from dispatch that Vernon Wilkey had called 911 to report that a female with blond hair driving a dark blue Buick with Washington plates had asked about purchasing heroin. (Tape 11/27/06 14:05:00). The deputy later observed a dark blue Buick driven by a female with blonde hair on US 60 in the right lane with its left turn signal blinking. (Tape 11/27/06 14:07:00) And when the deputy slowed down to pull in behind her, appellant pulled over to the right side of the road. (Tape 11/27/06 14:07:20). It was then that the deputy pulled over to the side of the road too and activated his lights (Tape 11/27/06 14:07:35).

The deputy then approached the vehicle and asked about the report he had received and in speaking with her noticed that she had glassy eyes, unbuttoned and unzipped pants and a full cup of beer in the console as well as an open bottle of wine. (Tape 11/27/06 14:07:55 et seq.; 14:08:45). The officer administered a horizontal gaze nystagmus field sobriety test which indicated that appellant was impaired or intoxicated on some substance. (Tape 11/27/06 14:09:45).

Appellant told deputy that she was on three prescription drugs including Clonazepam and he obtained consent to search her vehicle and recovered the prescription bottles, beer and bottle of wine. (Tape 11/27/06 14:10:14-38). Appellant was then arrested for driving under the influence. (Tape 11/27/06 14:10:48).

Appellant according to officer was transported to the hospital for a blood test. (Tape 11/27/06 14:10:58). When appellant exited the vehicle at the hospital, the officer saw her watch and a cellophane package with a substance together in the backseat of the vehicle. (Tape 11/27/06 14:11:20). The officer ultimately retrieved the watch and the package upon return to the vehicle which was determined by testing to have cocaine but appellant denied that it was hers though she admitted the watch was hers. (see Tape 11/27/06 14:30:45).

During the cross-examination, the deputy noted that the specific unusual thing he observed in her driving was the use of a turn signal without turning. (Tape 11/27/06 14:15:40). And he was going to stop the vehicle but she pulled over first. (Tape 11/27/06 14:17:00). He noted that the evidence that she was under the influence included the glassy eyes and that she was just very nervous. (Tape 11/27/06 14:19:42).

to be continued.

Note: To show that, once again, Deputy McGuire lies under oath, I will be placing the full text under-oath preliminary hearing that occurred shortly after the arrest, along with the full text suppression under-oath hearing transcript. His stories are 180 degrees different and conflicting. His memory gets even better with time and coaching; his trial testimony differed yet again. We already know that he told a great big whopper to the Grand Jury.

At suppression we are led to believe that McGuire left a blatant controlled substance in plain view on top of his cruiser back seat in full view of the passing public in a public hospital parking lot, for an hour, during the blood draw.

At preliminary, he admitted that the substance was not in plain view and neither was the watch. Both were under the seat, and, only at my specific request that he do so, did he pull the seat back to get the watch. At that point, he claims to have discovered a so-called baggie. By the way, that he acted, in direct response to something that I requested that he do, makes those statements non-hearsay.

I will continue the Gregory Fuchs charade tomorrow. His writing gives me a sick migraine, and I fear that my grammar checker will explode.

If you want the whole thing now, email me at my address in the About section of this site.

Reader Update: Full Text Commonwealth Brief Coming

I will be publishing the full text Commonwealth brief online at this site, later today or tomorrow. In the meantime, Mason is putting the finishing touches on his nauseating article titled Forensic Fraud Part 2, and I hope you will enjoy lowering your day a bit, with some Cyanide and Happiness, The Man Who Could Sit Anywhere, with its usual dry, graphic and offensive approach. These guys are too funny to ignore.

The Full Text Grand Jury Hearing

EXAMINER: This is called 23 on the docket, Commonwealth vs. Rachel Ammon (sic) Leatherman. The witness is Deputy Eddie McGuire.

Madame Foreperson, would you please swear in our witness?

The witness, DEPUTY EDDIE McGUIRE, after first having been duly sworn, testified as follows:

Q. Sir, you are Deputy Eddie McGuire of the McCracken County Sheriff’s Department?

A. Yes, Sir.

Q. Deputy McGuire, what information do you have for this Grand Jury concerning Rachel Leatherman?

A. Rachel Leatherman?

On 6/28 of ’06, deputies responded to the area of Queensway Drive on a complaint of a dark blue Buick LeSabre occupied by a female subject with blond hair who had come up to the complainant’s home and asked about tar herion. Officers tried to locate the vehicle in the area and were unsuccessful.

As I was going back into town on Highway 60–Queensway is right off Highway 60. I located the vehicle right around the area of Highway 60 and Cairo Road. I stopped the vehicle, asked her to exit–asked her to exit the vehicle.

I immediately noticed she had some–had very glassy eyes, very unsteady on her feet, noticed she had her pants unbuttoned and unzipped, just acting very erratically. I asked her why she had her pants unzipped. She just said that it was more comfortable that way.

The first thing she said, she said she hadn’t had anything to drink tonight, and she had some prior surgeries on her back and ankles, so she couldn’t perform any balancing test.

I asked her about the alleged incident on Queensway Drive. She denied talking to anybody at first. Then she stated she went up to one of the gentleman’s house and asked him to buy some birds from her. I asked the gentleman- or I asked her why the gentleman would call and lie about the incident and she referred to him as a snitch.

I asked her about if she was on any kind of prescription medications that would cause her to be acting the way she was. She asked–she said she was on Adderall, Metoprolol and Clonazepam. Clonazepam is an antidepressant. It’s one of the medications that you’re not supposed to drive on when you’re–when you’re under the influence of it.

I asked for consent to search the vehicle. Myself and Deputy Walters located all these–all the prescription medications inside the vehicle, along with a cup of beer that was half full and a half empty bottle of wine in the passenger floorboard. She was arrested for DUI and transported to Lourdes for blood.

Sometime between the time that I put her in the back of my car at Highway 60 and the time we got to Lourdes, she placed a small baggy of a suspected controlled substance, probably crack cocaine, in the back seat where the seat belt comes up in my back seat. She also accidently (sic) dropped her watch right on top of the–right on top of the baggy of crack. Of course, she’s cuffed behind the back, and she’s trying to work it–work it down into seat, and she dropped her watch with it.

She denied putting the controlled substance there. She said hundreds of people come through my back seat.

Two days prior to this, I personally inspected the back seat. In the back of a police car, the seats come out automa– you can pull the back seat–the cusion where you usually sit in, you can pull it out, vacuum underneath the seats, everything like that. Two days before that, I vacuumed it, inspected it–routine maintenance every weekend.

And she was the first person to be in my back seat that I’d arrested since the time it was vacuumed and inspected.

Q. We don’t have the blood results back?

A. I don’t believe so. Blood or lab, yeah.

Q. Did she admit to drinking at all?

A. No, I don’t believe she did. You can smell alcoholic beverages on a person.

Q. So you could smell it on her?

A. Yes, sir.

Q. Did you observe her driving?

A. I drove past her. She was driving very slowly when I first came in contact with her. And like I said, we had already ceared the call, so to speak, so I was going back into town is when I located her. And I was driving past her, and I noticed she had her signal on the whole time I was coming by her.

And then, of course, I noticed that that was the vehicle that we were just looking for when I noticed the Washington plates.

Q. Did you do any field sobriety tests?

A. Horizontal gaze nystagmus. Yes, sir, she showed all six clues.

Q. Okay. Which means she failed the field sobriety? Lack of smooth pursuit.

An HGN is when you check the eyes. When you–when a normal person follows your finger, their eyes are going to be very smooth in following your fingers. Nystagmus is the–is called an involuntary jerking of the eyes. It’s where when she’s following my fingers, her eyes were doing this like that.

And it’s the same principle as if you were to spin around in a circle ten times and then check someone’s eyes. The room’s spinning. That’s the same–that’s the same way that we use to detect the presence of any kind of controlled substance, alcoholic beverages in a DUI arrest.

And she showed–she failed that. She showed all six clues of that.

Q. And why–why do you believe that the substance she placed in the seat was cocaine?

A. Since the–since the original complaint was for heroin, we went ahead and done a field test for heroin. We thought it was crack all along. And it–it did field test negative for heroin, so it’s going to be crack cocaine.

Q. And that’s been sent to the lab, has it not?

A. Yes, sir.

EXAMINER: Okay. Are there any questions for Deputy McGuire?

GRAND JUROR: How can you pass it on to–I mean, you know, I’m all for you-all and on your side and everything.

THE WITNESS: Sure.

GRAND JUROR: If it goes to court and if it does go to trial and the test hasn’t come back yet–

EXAMINER: Oh, it won’t go to trial without the test having come back.

GRAND JUROR: Well, I don’t see how it can go to the Grand Jury without the test coming back unless you’ve got records showing that, you know, you hadn’t had anybody in the car in the last two days. Like I said–

THE WINTESS: Right. That’s easily obtainable through dispatch records. They’ll know when–whenever I take someone into custody, they automatically know when that happens. And she was the first one to be in my back seat.

Plus, every time somebody gets out of my back seat, I go in there and–it’s just routine maintenance. You just—you just can’t let anybody do that.

Q. Have you seen crack cocaine before–

A. Yes, sir.

Q.–Deputy McGuire?

Okay. Did this substance look like the substance you’ve seen when you saw crack?

A. Yes, sir.

EXAMINER: Any questions–other questions of Deputy McGuire?

(no response)

Dear Paducah Kentucky McCracken County Grand Jury: There was no weight, or field test, or confirmatory lab test for the “gonna be crack” when Mr. McGuire spun his tale for you. He neglected to tell you that I passed four roadside PBTs. But here, you might find this test most interesting, because he hid this test from you and lied about it. He had this exculpatory test in his hand, and yet he led you to believe that I was stumbling drunk.:

I am not even going to comment any more. I am simply going to post every word that McGuire said in any hearing that he testified in, and he will speak for himself.

Oh. Here’s the drug test:

The Art of Cross Examination (Part 5) The Killer Cross That Never Happened

written by Masoninblue and reblogged from frederickleatherman.wordpress.com.

Author’s Note: This is a continuation of the Killer Cross that never happened because Crane Station’s lawyer, Chris McNeill, refused to use it. If you have missed the first two parts of the cross, which are in Part 3 and Part 4 of this series, follow the links. I recommend reading them before reading this post, for the sake of continuity.

All rise. Court is again in session.

Good morning, ladies and gentlemen. You may be seated.

Deputy McGuire, you may return to the witness stand. I remind you that you are still under oath.

Counsel, you may proceed with your cross examination.

Thank you, your Honor.

40. Q: On the way to the hospital, you never detected any movement in the back seat that caused you to believe that Mrs. Leatherman was attempting to hide anything, did you?

A: No.

Transcript Suppression, page 24, lines 15-18

41. Q: But you testified under oath to the grand jury that on the way to Lourdes Hospital “Of course, she’s cuffed behind her back, and she is trying to work it — work it down into the seat, and she dropped her watch with it,” didn’t you?

A: Yes.

Transcript Grand Jury, pages 4-5, lines 23-1

42. Q: You didn’t see anything that would suggest she did that, did you?

A: No.

43. You told another lie, didn’t you?

A: Yes.

44. Q: You also testified to the grand jury that the Kentucky State Crime Laboratory result of the alcohol content in Mrs. Leatherman’s blood wasn’t back yet, didn’t you?

A: Yes.

Transcript Grand Jury, page 5, lines 17-18.

45. Q: Please take a look at Defendant’s Exhibit A. It has been identified as a copy of the laboratory analysis of the alcohol content in Mrs. Leatherman’s blood by Examiner Neil K. Vowels. Do you recognize it?

A: Yes.

46. Q: He did not detect any alcohol in her blood, did he?

A: No, he didn’t.

47. Q: Please take a look at the bottom left corner of the exhibit. There is a notation that reads, “Date Completed.” What date appears next to these words?

A: 7/14/2006.

48. Q: You testified before the grand jury on July 28, 2006, didn’t you?

A: Yes.

49. Q: So, you testified 14 days after Examiner Vowels completed his report, correct?

A: Yes.

50. Q: Now take a look at the top line. It indicates that the report was faxed to the prosecutor’s office at 12:32 PM on July 24, 2006, doesn’t it?

A: Yes.

51. Q: That was 4 days before you testified before the grand jury, correct?

A: Yes.

52. Q: Now at the grand jury when the Commonwealth’s Attorney said, “We don’t have the blood results back?” and you answered, “I don’t believe so, blood or lab, yeah,” can you explain why you and the Commonwealth Attorney did not know the result of the alcohol analysis of Mrs. Leatherman’s blood sample — a test completed two weeks before and faxed to the Commonwealth’s Attorney four days before you testified before the grand jury?

A: No.

53. Q: You have testified that Mrs. Leatherman failed all six clues on the HGN test. You did not document the basis for your conclusion in your narrative report, did you?

A: No.

54. Q: We only have your word for that, don’t we? Just as only have your word that she told you that she was on all of her prescription medication?

A: Yes.

55. Q: For the sake of argument, let’s assume you did tell the truth when you testified that she failed all six clues. As a police officer certified to give the HGN test, you must know that NHTSA, the National Highway Traffic and Safety Administration, recommends that the test be administered to a suspect facing away from the police cruiser because the strobing lights will cause a false nystagmus, don’t you?

A: Yes.

Link.

Q: Yet, you positioned her facing your strobing police cruiser when you administered the HGN, didn’t you?

A: Yes.

in-dash video

56. Q: Metoprolol is one of the prescription drugs that Mrs. Leatherman had in her car when you pulled her over, correct?

A: Yes.

57. Q: Metoprolol is a drug used to control hypertension, or high blood pressure, correct?

A: Yes.

58. Q: As a police officer certified to administer the HGN test, you know that hypertension can cause nystagmus, don’t you?

A: Yes.

59. Q: You, Deputy Walters, and Officer Dawes thoroughly searched Mrs. Leatherman’s vehicle, including the trunk, her purse, and her personal belongings, correct?

A: Yes.

60. Q: Other than the three prescription drugs, you didn’t find any drugs, drug residue, or paraphernalia, did you?

A: No.

61. And Officer Dawes thoroughly searched Mrs. Leatherman by the side of the road before you placed her in the back seat of your police cruiser, didn’t she?

A: Yes.

62. Q: The search included a visual examination of her genital area, correct?

A: Yes.

63. Q: She also reached into Mrs. Leatherman’s back pockets, correct?

A: Yes.

64. Q: And before the search, you ordered Mrs. Leatherman to empty her front pockets by turning them inside out, didn’t you?

A: Yes.

65. Q: And Officer Dawes checked Mrs. Leatherman’s breasts to see if she might have hidden something in her bra, didn’t she?

A: Yes.

66. Q: She also checked around Mrs. Leatherman’s waist to see if she might have hidden something there, correct? And shoes?

A: Yes.

67. Q: No drugs, drug residue, or paraphernalia were found, right?

A: Correct.

The answers to questions 59-67 can be verified by the in-dash video.

68. Q: You didn’t arrest her for DUI Alcohol, did you?

A: No, I did not arrest her for DUI alcohol.

69. Q: You didn’t arrest her for possession of a controlled substance at that point either, correct?

A: Yes.

70. Q: You arrested her for DUI Drugs, didn’t you?

A: Yes.

Transcript Preliminary Hearing, page 8, lines 4-6.

71. Q: You didn’t advise Mrs. Leatherman that she was under arrest, did you?

A: No, I didn’t.

72. Q: You told her that you were taking her to Lourdes Hospital for a blood test, didn’t you?

A: Yes.

73. Q: A blood test that she offered to take, correct?

A: Yes.

74. Q: You didn’t tell her you were taking her to jail, did you?

A: Correct, I didn’t tell her I was taking her to jail.

Author’s Note: Questions 71-74 set up a point to be made during final argument; namely, that Crane-Station had no reason to attempt to slough a rock of crack behind his seat during the ride to the hospital. Assuming for the sake of argument that she had somehow hidden it so well that Officer Dawes could not find it and, given that we know that Crane-Station knew her blood test would come back negative for alcohol and drugs, we can reasonably conclude that she would have had no reason to think she would be searched again. Therefore, why risk attracting attention attempting to slough drug?

This illustrates another important point about cross examining effectively. Use it to set-up your final arguments during summation.

Judge: Excuse me Counsel. Let’s break for the day. Court will be in recess.

To be continued . . .

Cross posted from my law blog.

The Art of Cross Examination (Part 4) The Killer Cross That Never Happened

Written by Masoninblue and reblogged fromfrederickleatherman.wordpress.com.

I will be blogging another Frog Gravy today.

Author’s Note: This is a continuation of the Killer Cross. If you have not read the first part, please go here to read it, as it is important for the sake of continuity.

Notice that each question is a leading question. That is, the questioner, in this case the defense attorney, makes a statement and asks the witness, Deputy Eddie McGuire of the McCracken County Sheriff’s Department, to agree or disagree with it. With the exception of a few questions to which the answer is common knowledge or otherwise apparent, the statement in each question is a prior statement that the witness made in his report or a prior statement that he made under oath while testifying at the preliminary hearing, grand jury, or suppression hearing.

After the question that contains the witness’s prior statement, I provide an answer that confirms the prior statement that he made. Below the answer in italics, I provide the source for the statement.

For example, in the first question below (#25 in the sequence that started yesterday), Deputy McGuire testified at the preliminary hearing that he pulled Crane Station over because he thought she possibly had some heroin. If he had answered the question below with a “No,” the lawyer would have impeached him with his prior inconsistent statement under oath by following the formula that I presented in Part 2 of this series. Please review that procedure, if you have not read it or are uncertain about it.

As I have said previously, impeachment by prior inconsistent statement is one of the most powerful and effective tools to cross examine and destroy the credibility of a witness and your opponent’s case.

Unfortunately, Crane Station’s lawyer, Chris McNeill, refused to use this cross examination and he lost the case. However, in the strange manner that the universe works, his refusal ended up giving me this opportunity to educate all of you about something only a few of you know anything about, which is the art of cross examination.

In a subsequent post, I will discuss why I think he declined to use it.

I love teaching! and I hope you enjoy reading the Killer Cross that never happened.

All rise. Court is back in session. You may be seated.

25. Deputy McGuire, you pulled Mrs. Leatherman over because you thought she possibly had some heroin, correct?

A: Yes.

Transcript Preliminary Hearing, page 8, lines 14-15

26. Q: You have testified that you thought she possibly had some heroin on her because Mr. Wilkey called 911 and reported that she asked him if he knew where she could purchase some tar heroin, correct?

A: Yes.

Transcript Preliminary Hearing, page 7 lines 1-3

27. Q: That’s what you told the members of the grand jury on July 28, 2006, isn’t it?

A: Yes.

Transcript Grand Jury, page 1, lines 17-23

28. Q: The grand jury is a group of citizens who decide whether to indict a suspect whom a law enforcement officer, such as yourself, has arrested for a felony crime, right?

A: Yes.

29. Q: The grand jury decides whether there is probable cause, or reasonable grounds to believe that a suspect has committed a felony crime, correct?

A: Yes.

30. Q: You would agree with me that it is extremely important for a witness testifying before the grand jury to tell the truth, isn’t it?

A: Yes

31. Q: You promised to tell the truth, the whole truth, and nothing but the truth when you testified, didn’t you?

A: Yes.

32. And that is the same promise that you made to this court and this jury today, isn’t it?

A: Yes.

33. Q: Mr. Wilkey told the 911 operator that Mrs. Leatherman had a conversation with his neighbor in the neighbor’s yard in which she “mentioned something about tar heroin and all that stuff,” isn’t that correct?

A: Yes.

Transcript 911 Call, page 2, lines 8-9

34. Mr. Wilkey did not tell the 911 Operator that Mrs. Leatherman asked him if he knew where she could purchase some heroin, did he?

A: No he didn’t.

35. Q: And the 911 Dispatcher did not tell you that Mr. Wilkey had reported that Mrs. Leatherman had asked him if he knew where she could purchase some heroin, did he?

A: No, he didn’t.

Transcript of Dispatcher Tape, page 1. This transcript was first made available by the prosecution during the trial. I did not have it or include a reference to it in my proposed cross. Nevertheless, I included this question because I believed the dispatcher never would have said what the deputy claimed he said in view of what the 911 caller had said. I also knew we could request and obtain a copy of the dispatcher tape and transcribe it before the deputy testified. Both the 911 call and the 911 dispatch could have been played to complete the impeachment.

36. Q: Despite promising to tell the truth to the grand jury, you did not tell the truth when you told the grand jury that Mr. Wilkey called 911 and reported that she asked him where she could buy heroin, correct?

A: Yes.

37. Q: You also told the grand jury under oath that Mrs. Leatherman was “very unsteady on her feet,” when she got out of her vehicle after you stopped her, didn’t you?

A: Yes.

Transcript Grand Jury, page 3, lines 6-7

38. Q: That was a lie too, wasn’t it?

A: Yes.

39. Q: Lying under oath to a grand jury is a felony called perjury that is punishable by up to 5 years in prison, isn’t it?

A: Yes.

Author’s Note: If the deputy said he did not know that what he did was perjury, the lawyer could simply hand him the statute and have him read it out loud. I did not put this in the document that I prepared for Chris McNeill because any lawyer should know this.

This is called playing hardball. I designed this part of the cross to provoke the judge into interrupting and advising the deputy of his Fifth Amendment right to remain silent and refuse to answer on the ground that his answer might have incriminated him. An honest judge also would have offered to recess the trial long enough for the deputy to consult with a lawyer and decide whether to continue answering questions.

At this point, an honorable prosecutor would have, in effect, tossed a white handkerchief over counsel table into the middle of the courtroom as a symbolic gesture of surrender.

None of this happened, however, because Chris McNeill refused to do the cross because, as he put it, “the deputy was a nice young man and the jury would have been offended,” if he used my proposed cross examination.

But, let us continue. Now that we have established that the deputy is a perjurer, let’s take him all the way down. Until tomorrow, Court will be in recess.

To be continued . . .

Cross posted from my law blog.