Nodine, May 21,2012

R-1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REPORTED BY: SHELAGH DUNCKLEY, ACCR #222 Official Court Reporter DATE: PLACE: May 21, 2012
Baldwin County Courthouse Courtroom No. 4 Courthouse Square Bay Minette, Alabama 36507 HELD BEFORE: HON. CHARLES C. PARTIN Circuit Judge TRANSCRIPT OF PROCEEDINGS _________________________ ) ) ) Plaintiff, ) ) vs. ) ) STEPHEN NODINE, ) ) Defendant. ) _________________________) STATE OF ALABAMA, IN THE CIRCUIT COURT OF THE TWENTY-EIGHTH JUDICIAL CIRCUIT OF ALABAMA -BALDWIN COUNTY, ALABAMA-
CASE NOS.:
CC-10-1745; CC-11-1635
ROUGH DRAFT COPY ONLY!! DO NOT FILE!! *** DO NOT FILE!!
R-2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SHELAGH DUNCKLEY, ACCR #222 Official Court Reporter (and) JOHN BECK, ESQUIRE Attorney at Law Post Office Box 931 Fairhope, Alabama 36532 REPRESENTING THE DEFENDANT: PASCAL BRUIJN, ESQUIRE Attorney at Law Post Office Box 811 Fairhope, Alabama 36532 (and) REPRESENTING THE STATE: JOHN DAVID WHETSTONE, ESQUIRE Special Prosecutor Attorney General's Office Post Office Box 1269 Bay Minette, Alabama 36507 JAMES H. RUTTER, III, ESQUIRE Assistant Attorney General P.O. Box 300152 Montgomery, Alabama 36130-0152 A P P E A R A N C E S
ROUGH DRAFT COPY ONLY!! DO NOT FILE!! *** DO NOT FILE!!
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ITEM: PROCEEDINGS HELD ON MAY 21, 2012 WITNESSES CALLED BY THE DEFENSE: JEFF DUNN: DIRECT EXAMINATION CROSS EXAMINATION REDIRECT EXAMINATION RECROSS EXAMINATION FURTHER REDIRECT EXAMINATION FURTHER RECROSS EXAMINATION TRENT WILHELM: DIRECT EXAMINATION CROSS EXAMINATION REDIRECT EXAMINATION RECROSS EXAMINATION ANGELA JARMAN-BROWN: DIRECT EXAMINATION CROSS EXAMINATION REDIRECT EXAMINATION DR. EUGENE HART: DIRECT EXAMINATION CROSS EXAMINATION REDIRECT EXAMINATION RECROSS EXAMINATION 71 82 89 93 50 65 69 39 44 47 49 8 26 32 32 35 37 I N D E X PAGE: 6
SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ITEM: FURTHER REDIRECT EXAMINATION DAN DOLLARHIDE: DIRECT EXAMINATION VOIR DIRE EXAMINATION DIRECT EXAMINATION CONTINUED CROSS EXAMINATION REDIRECT EXAMINATION JUSTIN CLOPTON: DIRECT EXAMINATION CROSS EXAMINATION REDIRECT EXAMINATION DANIEL STEELMAN: DIRECT EXAMINATION CROSS EXAMINATION JOHN DAVID WHETSTONE, JR.: DIRECT EXAMINATION JOHN DAVID WHETSTONE - Limited testimony DENNIS KNIZLEY: DIRECT EXAMINATION CROSS EXAMINATION HALLIE DIXON: DIRECT EXAMINATION CROSS EXAMINATION 142 163 132 139 127 129 119 125 109 116 118 96 100 101 106 108 I N D E X - C O N T I N U E D PAGE: 93
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 E X H I B I T EXHIBIT NUMBER: Defendant's Exhibits 1 and 2, photos taken before the death Defendant's Exhibit No. 3, photo of hand injury Defendant's Exhibit No. 4, copy of handwritten notes Defendant's Exhibit No. 5, report 99 256 19 25 16 20 I N D E X IDENT. ADM. 14 17 * * * * * * * * * * ITEM: REDIRECT EXAMINATION JUDY NEWCOMB: DIRECT EXAMINATION CROSS EXAMINATION WILLIAM SCULLY III: DIRECT EXAMINATION PASCAL BRUIJN: DIRECT EXAMINATION REPORTER'S CERTIFICATE 241 257 236 198 214 I N D E X - C O N T I N U E D PAGE: 192
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ones. THE COURT: motions? MR. WHETSTONE: all Defense motions. MR. BECK: Correct. No, sir. I think they're Is the State aware of any other door. THE COURT: Tell them -Excuse me, Your Honor. We (THE FOLLOWING PROCEEDINGS WERE HELD ON MAY 21, 2012, BEFORE THE HON. CHARLES C. PARTIN, CIRCUIT JUDGE, IN COURTROOM FOUR, COMMENCING AT 9:00 A.M.:) THE COURT: seated. Good morning. You can be
Where is everybody? Judge, they went out that
MS. NEWCOMB:
MR. WHETSTONE:
were out there discussing the matter to help things go faster. THE COURT: in the courtroom. MR. WHETSTONE: THE COURT: pending motions. Yes, sir, Your Honor. Nine o'clock is the time to be
This is a hearing on all And are there any outstanding
motions other than the Defendant's motion to dismiss and the motion to change the venue? MR. BRUIJN: No, Your Honor. Those are the
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is. (Rule invoked.) MR. BECK: THE COURT: MR. BECK: May I step out, please? Yes, sir. Thank you. MR. BRUIJN: THE COURT: Yes, sir. All right. The Court will
first take up the Defendant's motion to dismiss. MR. BECK: Yes, sir. May we invoke the
rule, please, Your Honor? THE COURT: Yes, sir. Anyone that is in
the courtroom that is going to testify as a witness other than an attorney will need to step out into the hallway. If you are here to observe
the proceedings you're more than welcome to stay in the courtroom. MR. WHETSTONE: MR. BECK: May I approach, Your Honor?
That does not apply to you. I'm a witness, Your Honor,
MR. WHETSTONE:
and Ms. Newcomb is a witness. THE COURT: Anybody that is an Officer of
the Court is not subject to the rule. MR. WHETSTONE: MR. BECK: Thank you.
Yes, Your Honor. And Mr. Scully, of course,
MR. WHETSTONE:
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. Q. BY MR. BECK: Q. A. Q. A. State your name, please, sir. Jeff Dunn. And, Mr. Dunn, where are you employed? I'm employed as an investigator with the District Attorney's Office. When did you become employed by the District Attorney's Office? January of 2011. And what is your role in the District Attorney's Office? As an investigator, assigned to different investigations as the D.A. sees fit, and I'm also assigned to the drug unit. And shortly after you became an investigator with the District Attorney's Office, did you begin reviewing the case of the State of Alabama versus Stephen Nodine? Yes, I did. (A brief pause was held.) JEFF DUNN, the witness, having been sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: DIRECT EXAMINATION
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. Q. A. A. Q. A. Q. Q. And who directed you to begin investigating that case and looking over that case? Ms. Dixon. And did she indicate to you why your office would be doing that? Yes, sir, she did. In your investigation, what was the purpose of you reopening the investigation or opening the investigation and looking into it? Because there was still too many unresolved questions about the case. And was it also to gain an overall familiarity with the case as well, since your office would be handling it? Yes, it was. And was there anybody else from the District Attorney's Office that joined you in this investigation? Well, primarily it was Investigator Dean McGowan and myself, but there were others involved as well, Trent Wilhelm and Dan Dollarhide. Did you all have different roles and responsibilities as far as reopening that investigation? Yes.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. And what were the different responsibilities amongst you? Well, Dean and I primarily just dissected the case, went back and reviewed a lot of the witnesses involved in the case, while Dan Dollarhide was primarily focused on the technical side, the computer stuff, doing the emails, the cell phone, that type of thing. And what specifically did you do to reopen this case, or to further the investigation? Well, the first step was to just get familiar with the entire case. I was aware of the case. I
was working with the Sheriff's Office at the time of the -- back in May at the time of Angel's death, so I was familiar with the case just from being in the office. I wasn't assigned to the case. I was
working narcotics at the time, but we shared the same building. I was able to review pictures and
stuff at that time, so I was familiar with it but I didn't know it from start to finish. And that's
what we started off doing, just going piece by piece and then going out and interviewing the witnesses we thought were necessary. Do you recall which witnesses were interviewed? MR. WHETSTONE: Your Honor, unless it goes
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to the motion, I'm going to object. I don't want
to try the case today and I would object to that unless it's relevant to the motion before the Court. THE COURT: MR. BECK: BY MR. BECK: Q. At some point while you were investigating this case, did you become concerned about certain evidentiary matters? MR. WHETSTONE: Objection, Your Honor, I sustain the objection. Yes, sir.
unless it goes to the motion before the Court. THE COURT: BY THE WITNESS: A. Well, actually, I first became concerned with the case when I first started looking into it when I was working with the Sheriff's Office. And then it Overrule the objection.
just became more evident once I started looking into it with the D.A.'s Office. BY MR. BECK: Q. A. What do you mean by that, sir? Well, when I looked at the pictures, when I worked at the Sheriff's Office, to me was evidently a suicide. MR. WHETSTONE: Your Honor, I object, and I
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -- that was the reason I did it. THE COURT: Well -I object. He's just This is, this
MR. WHETSTONE:
testified that it was a suicide.
is over prosecutorial misconduct, relative to the handling of certain evidence, not what this officer thinks. THE COURT: Well, as the Court understands
the motion, it's alleged that certain things were withheld, and things of that nature. MR. BECK: Yes, sir. There is three major
cruxes of the motion, but this is foundational to -- Mr. Dunn is one of the people that -THE COURT: Well, the Court is not I mean, if
concerned with Mr. Dunn's opinion.
he's going to testify to facts, I'm willing to listen. MR. WHETSTONE: Yeah, because we could get
opinion evidence, Your Honor, and say the opposite thing that he just said. reason I objected to it. THE COURT: BY MR. BECK: Q. Mr. Dunn, during the course of your investigation, did you become aware of certain All right. That's the
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. photographs that were contained in the D.A.'s file? Yes, I did. And were they necessarily photographs that were, that were, that you felt relevant to your opinion that you had derived in the case? Yes. And what were the nature of those photographs? Well, part of the, ah, it's going to be -- the expert witness at the first trial was Dr. Downs, and he alleged, in his opinion, that there was a struggle. And that, um, the wounds that were --
the pictures that were taken at the autopsy -MR. WHETSTONE: Your Honor, I object again. We are
He's talking about Dr. Downs' opinion.
talking about -- I thought we were talking about things that the District Attorney did not provide. MR. BECK: We are, sir. Now we're talking about
MR. WHETSTONE: opinions. THE COURT:
Well, let's get down to the
meat of it, Mr. Beck. MR. BECK: BY MR. BECK: Q. What were the pictures that drew your attention? Yes, sir.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. A. Photographs of Angel Downs' hands from the night before her death. What did those photographs depict? Injuries to her hands that were described as being defensive wounds in the testimony. And were those pictures of Angel Downs while she was alive? Yes. MR. BECK: May I approach the witness,
please, Your Honor? THE COURT: Yes, sir.
(Defendant's Exhibits 1 and 2, photographs, were marked.) MR. WHETSTONE: THE COURT: May it please the Court?
Yes, sir. I have no objection to the
MR. WHETSTONE: introduction.
Mr. Beck has informed me that
these are the pictures from discovery that were provided to him by the State of Alabama, and I have no objection to them, to the introduction. THE COURT: MR. BECK: BY MR. BECK: Q. I'm going to hand you what's been identified as Defendant's Exhibits No. 1 and 2. Can you tell the Let's get them identified. Yes, sir.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Court what those photographs depict? These are photographs of the night before Angel's death, when she was out with friends after working at the Wharf. And are those the same photographs that you discovered in the State of Alabama's case file? Yes. MR. BECK: Move Defendant's 1 and 2 into
evidence, Your Honor. THE COURT: are admitted. BY MR. BECK: Q. And referring to Defendant's Exhibit No. 2, what on that photograph is of significance to you? Injury to her right middle finger. And Defendant's Exhibit No. 1, is that a blowup of that same photograph? Yes, it is. MR. BECK: Court? THE COURT: MR. BECK: BY MR. BECK: Q. And so I'm clear, Mr. Dunn, were those photographs in the possession of the State of Yes, sir. Yes, sir. Thank you. May I publish these to the Defendant's Exhibits 1 and 2
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Alabama when you took over the investigation or conducted the investigation in this case? You know, they were there when I came into the office on January the 17th of 2011. And when you discovered those photographs did you take any steps to make your boss, or anybody else, aware of the existence of those photographs? When I found the photographs I went back and grabbed photographs from the autopsy and compared it. Once I did that, I went to Ms. Dixon and
others involved in the investigation. I'm going to hand you what's been marked for identification as Defendant's Exhibit No. 3. you tell us what that photograph is? That's photographs of the autopsy, showing Angel's right thumb and injuries to her right middle finger. And was that taken directly out of the District Attorney's case file? Yes, it was. MR. BECK: Exhibit No. 3. THE COURT: admitted. Defendant's Exhibit 3 is I move to introduce Defendant's Would
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY THE WITNESS: A. We were looking into the fact that the autopsy A. Q. A. A. Q. A. Q. BY MR. BECK: Q. In your investigation did you have an opportunity to speak to Dr. Eugene Hart? Yes. And who was present with you when you spoke to Dr. Hart? Investigator Dean McGowan. And what was the purpose of the meeting with Dr. Hart? Just basically to go back over the autopsy and the autopsy photos, and this was from dissecting the case, part of Dr. Downs' testimony about injuries to Angel. And was there any particular reason or purpose for that meeting with Dr. Hart? Well, we had -- from interviewing other folks involved with the investigation, we had -- of course, I had heard rumor of it. MR. WHETSTONE: THE COURT: rumor. MR. BECK: Yes, sir. Your Honor, again --
I sustain the objection to some
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. A. Q. Q. A. A. Q. report was changed the morning of the Grand Jury. BY MR. BECK: Q. And what was the basis of that information to you? Say again. What was the basis of that information and your belief? That Dr. Hart had been pressured into changing his report the morning before, or the morning of Grand Jury. And do you recall the date of Ms. Downs' death? Would you agree that that was May 9th -Yes. -- of 2010? That's correct. And are you aware of when the Grand Jury considered this matter? It was 15 days later, on -- I believe it was May 24th. And was that when the Grand Jury actually returned their indictment? It was the date it was presented, or it could have been the same day it was return. I'm not
sure, but it's the date of the indictment anyway. MR. WHETSTONE: I'm going to object to it.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BECK: THE COURT: May we approach, please? Yes, sir.
(Bench conference was held as follows:) MR. BECK: Defendant's Exhibit No. 4 for
identification is what we believe to be Ms. Newcomb's notes that were taken during her meeting with Dr. Hart. We expect Mr. Dunn to be
able to identify these notes as having come from the District Attorney's case file, and also that he is familiar with Ms. Newcomb's handwriting, and that it's his belief that these are, in fact, her notes from that meeting. MR. WHETSTONE: Were these notes discovered
to you by Ms. Dixon or by any -MR. BECK: Office. MR. WHETSTONE: MR. BECK: Yeah. Your Honor, I'm going to I understand, but -By the District Attorney's
MR. WHETSTONE: object to these.
It's obviously -- the Court can
see where this is going, and these are very extreme for the Defense Counsel to get handwritten notes of a District Attorney on a work product. I don't think it's ever been done
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to my knowledge. MR. BECK: They were provided to us by the
State of Alabama prior to Mr. Whetstone's -MR. WHETSTONE: Attorney? MR. BECK: No, sir. Us? No, sir. By the new District
MR. WHETSTONE: MR. BECK: THE COURT: second. MR. WHETSTONE: THE COURT: No.
Everybody be quieted just a
Yes, sir.
Who provided what has been
identified as Defendant's Exhibit 4? MR. BECK: THE COURT: Mr. Dunn. All right. So it came out of
the District Attorney's file? MR. BECK: Yes, sir. Prior to the
superintendant -- superintending of this case by the District Attorney, while Ms. Dixon was still actively the District Attorney on this case. THE COURT: Well, the Court is concerned
that, um, it's obviously work product of the prior administration. MR. WHETSTONE: Um -Your Honor, there has been
hostility between the two in this matter.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: State of Alabama. MR. WHETSTONE: THE COURT: Yes, Your Honor. Yes, sir. Well, the prosecution is the
And Ms. -- I mean, the fact of
the matter is, it appears that this is work product of Ms. Newcomb. MR. WHETSTONE: THE COURT: Yes, Your Honor.
And, um, I mean, I don't know I can't read it sideways
what the contents are.
and without my glasses on. MR. WHETSTONE: either, Judge. MR. BECK: I can help that part. Your Honor, may I make a I don't know the content
MR. WHETSTONE: suggestion? THE COURT:
Yes, sir. Maybe Mr. Beck could reveal
MR. WHETSTONE:
to the Court, the general content to the Court, and what he thinks is relevant. And if it's that I think
powerful, it may be handled in that way. that, if it doesn't show anything then -THE COURT: All right.
Why don't we just
make it a Court's exhibit. MR. BECK: Yes, sir. All right, sir.
MR. WHETSTONE:
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: And I mean, you can examine the
witness, but that way it wouldn't be in the public domain because I'm concerned that it is work product. MR. BECK: I understand. Yes, sir. And I would ask,
MR. WHETSTONE:
if the Court's ruling is, he can be examined from this work product? THE COURT: And Counsel, bear in mind that,
the, um, successor District Attorney had as much authority as the first District Attorney did. MR. WHETSTONE: THE COURT: That's correct, Your Honor.
Or as the Attorney General has. Yes, sir.
MR. WHETSTONE: THE COURT: prosecution. MR. WHETSTONE: THE COURT:
And we're dealing with one
Yes, sir.
And it's a -- as far as the
Court is concerned, what will be marked Court's Exhibit 1 -MR. WHETSTONE: THE COURT: Your Honor.
-- um, was -- I mean, it hasn't
been divulged to anyone other than -- I guess you say that, um, Mr. Dunn gave you this? MR. BECK: During the period of time that
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ms. Dixon's office was handling this case. THE COURT: All right. Well, then it may
have been released. MR. BECK: position. MR. WHETSTONE: I understand. I have been Yes, sir. That would be our
in this business, Your Honor, for 40 years so I think -- I know the Court has, too. I have never
been in exactly one like this in my career, so this is new ground for me. THE COURT: All right. I'm an old dog, but this is
MR. WHETSTONE:
a new ground for me and I -- I don't want -THE COURT: What I'm saying is that if Ms.
Dixon released Court's Exhibit 1, then it would lose its work product privilege. MR. WHETSTONE: point. MR. BRUIJN: We can lay the foundation Yes, sir. I understand the
through Mr. Dunn as to that. MR. WHETSTONE: I don't think that there's
any doubt that Ms. Dixon released it. THE COURT: At this time, I'm going to
sustain the State's objection to 4 but it will be marked as Court's Exhibit 1, and if the proper
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. A. Q. BY MR. BECK: Q. Mr. Dunn, I'm going to hand you a document that's been marked as Defendant's Exhibit 4 and Court's Exhibit No. 1. Do you recognize that document? foundation is lead, I may admit it. MR. BECK: Judge. (The bench conference ended.) (Defendant's Exhibit 4 was marked as Court's Exhibit 1, for identification.) Yes, sir. Okay. Thank you,
Yes, sir, I do. And how did you come into possession of that document? It was in the District Attorney's case file on this case. And, and generally speaking what is that document? It's three pages of handwritten notes that I believe is by Ms. Newcomb. Why do you believe that those are handwritten notes by Ms. Newcomb? Well, two things. Her handwriting -- well, the
handwriting appears to be Ms. Newcomb's just from my experience seeing her notes on different Grand
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. Jury files throughout the years, and it went along with the interviews that we conducted in this case. When you say the interviews that you conducted in that case, was there particular context that you have been able to ascribe to those notes, when those notes were taken? Yes. And what would that be? The meeting with Dr. Hart the morning of the Grand Jury. MR. BECK: Your Honor, at this time, I
move to introduce Defendant's Exhibit 4, Court's Exhibit No. 1. MR. WHETSTONE: Objection, the special
predication, work product. THE COURT: I'm going to sustain the
objection at this time, unless proper predicate is laid. MR. BECK: BY MR. BECK: Q. Mr. Dunn, were you personally involved in any issues revolving around the BlackBerry phone that belonged to Angel Downs? I was aware of them, but I had no part of that part of it. Yes, sir.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. BY MR. WHETSTONE: Q. A. Q. Jeff, how you doing this morning? Good. How many murder cases had you worked before you worked this one? Ah, never as lead investigator but I have worked several. But this was your first time -- were you the lead investigator on this one? No. I was kind of, I guess you'd call it a A. Q. Q. A. Q. A. Q. Was that handled primarily by Mr. Dollarhide? Yes. And again, you were not a member of the District Attorney's Office when this case, when this event occurred in May of 2010? No. I was still with the Sheriff's Office at
that time. And did you have any involvement in the case in May of 2010? No. Okay. MR. BECK: THE COURT: Nothing further. You may cross examine.
CROSS EXAMINATION
co-case agent on this one.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. A. Q. Q. A. A. Q. Q. A. Q. Okay. You did not handle the BlackBerry?
No, sir. You were -- were you familiar with all of the evidence surrounding this matter, the death of Angel Downs? Prior to? After you came to the D.A.'s Office. you started investigating the matter. Yes, after several months I was pretty familiar with it. Were you familiar with any impeachment evidence delivered in Mobile? No. Did you look for any impeachment evidence in Mobile? Unless you can be more specific, I don't know what you're talking about. Were you aware that there was an impeachment investigation going on in Mobile? In reference to who? In reference to Mr. Nodine? Impeachment from his office over there? Impeachment evidence from Mobile. I'm asking, You said
did you go to Mobile and ask Mr. John Tyson to subpoena the records?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. A. Q. A. A. Q. A. Q. No. Okay. Were you aware of any other evidence
coming from persons who had discussed matters with Mr. Nodine, that was against what your conclusion is today? I'm not following you on that. Did you investigate any evidence out of the state of Florida against Mr. Nodine as it relates to this case? I still am not following what you're asking. I
don't see what the bearing on this case has to do with that. Well, I understood you thought that -- you came to a certain conclusion, is what you told Mr. Beck. And I'm wondering how much evidence you looked at that showed Mr. Nodine was guilty. I reviewed the entire case file, and other than them being at the beach in Pensacola, Florida, the state of Florida had nothing to do with this case. You ever heard of Santa Rosa, Florida? I have. Ever interviewed people over there in Santa Rosa, Florida? No, sir, I haven't. Had your investigators?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. Q. A. Q. A. A. Q. I'm not aware of that. Are you aware of reports that they have and what was said to them by inmates at Santa Rosa County, that was with Mr. Nodine? I was reviewing the facts and not hearsay from jailhouse rumors. You're reviewing facts of statements allegedly made by Mr. Nodine that was against his interest in this case. That was no interest to you?
I still don't have any clue what you're talking about. Let me go back, Jeff. you, okay? I'm not worried about you tricking me. Good. What I'm asking you is, did you review any I'm not trying to trick
report from your office of one of your investigators relative to statements made by inmates at Santa Rosa County, that was in the same cell block with Mr. Nodine? Okay. about. Now I'm familiar with what you're talking There was, two investigators went over And what
there and talked to an inmate over there.
he had to say was the most ridiculous thing I ever heard in my life. Yes, sir. Did you talk to any other inmates who
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. A. Q. A. A. Q. A. A. Q. attempted to call the District Attorney's Office? I have not. If other inmates had been contacted, would that have changed your mind? Unless they were there the night that this happened and had some specific facts on it, no it wouldn't. So, in other words, if an inmate was not with Angel Downs, but overheard Mr. Nodine say things about the matter, that would be of no interest to you? Well, it depends on what it is. But if it's the
one that you're talking about where she was supposedly picking corn out of her teeth with a gun barrel, I wouldn't have much interest in that. And who said that? The guy you referred to in Santa Rosa. Did he say Mr. Nodine said that? That's what he said. And what else did he say? I don't know, but I never heard that part of it. You didn't hear him say that, I got away with it? No, I never heard that before. Not in that report? I've never seen that report.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. Q. Q. A. A. Q. Ah. Do you know of any other report outside of that inmate, Jeff? I have heard there was some other inmates that had some information, and I think that was, um, after you took over the case, this case, and it had to do with your compelling evidence. Pardon? The part I heard was about your compelling new evidence, and it had to do with inmates. You knew what my new compelling evidence was? Where did you hear that from, Jeff? Just the rumor mill. I'm talking about inmates right now, before I took over, Jeff. I -Not this one, about another one in Santa Rosa County. I'm not familiar with anybody else prior to that. And you're also aware of one after I took over because the inmate sent Ms. Dixon a letter, didn't he? I'm not aware of that. You're not aware that an inmate sent Ms. Dixon a letter saying, I have information about this
R-32
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. WHETSTONE: Q. We use people all the time in court that way, A. A. Q. BY MR. BECK: Q. When you were investigating this case, did you seek out or place any emphasis on the utilization of jailhouse snitches to further your case? No, I did not. Would you be concerned about a prosecution that relied on jailhouse snitches in a case such as this? Absolutely. MR. BECK: That's all. Very quickly, Your Honor. A. A. Q. A. Q. matter? Was that after you took over the case? Yeah. Once you took over the case, I was through. I'm just wondering whether or not you're aware of that letter. I'm not. MR. WHETSTONE: THE COURT: MR. BECK: That's all. Thank you.
Any redirect? Just briefly.
REDIRECT EXAMINATION
MR. WHETSTONE:
RECROSS EXAMINATION
R-33
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. Q. A. A. Q. A. A. Q. A. Q. A. Q. don't we? Almost every drug case has one.
Not from a jailhouse snitch, no. No, sir, but from somebody you are trying to get to do something for you. Oh, yeah. Oh, yeah. We use informants almost all the time. Not very uncommon? MR. WHETSTONE: Not uncommon at all. If I got an answer, Your
Honor -- question, Your Honor, about the pictures, may I go back into that briefly? THE COURT: BY MR. WHETSTONE: Q. Your testimony was, you found these pictures in the District Attorney's case file? That's correct. What size were they? Were they this size? They were on Yes, sir.
Actually, they were kind of round. a disk.
In fact, you didn't find these pictures, did you? I absolutely did. Well, I'm talking about this exact document. That exact document was in the, ah, District Attorney's files. Was it this exact size?
R-34
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Q. A. Q. A. Q. A. A. Q. It was on a disk. Okay. So what I'm trying to say, you blew up
this document, didn't you? No, sir. I printed out that document. This
picture here has been blown up, not that one. Okay. okay? It gives -- I printed out a full page size, yes, sir. But when you looked at the disk, how big was it? About the size of the monitor, yes, sir. Okay. You did not find -MR. WHETSTONE: And I'm referring to But this is printed out to a certain size,
Defendant's Exhibit 1 now, Your Honor. BY MR. WHETSTONE: Q. You did not find this in the District Attorney's file, did you? A blown up picture? Yes, sir. No. I blew it up.
You blew it up. From that photo. So from that photo, in order to get this clear shot of that mark on the knuckle, you had to blow it up.
R-35
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. BY MR. BECK: Q. A. Q. A. Do you know if Dr. Downs got those pictures? The one of the night before on May the 8th? Those pictures? He had the autopsy photos, Exhibit 3, but Exhibit 1 and 2, he did not. And you're familiar with Dr. Downs' opinions that those wounds were indicative and consistent with A. Q. A. Q. A. Q. A. Q. A. No, sir. I could see it plainly on Exhibit 2,
and I just blew it up so that everybody else could see it. Yes, sir. What day was this picture taken?
The -- it would have been May 8th. Okay. Do you know whether or not Mr. Knizley got
these pictures? According to Trent Wilhelm he did, shortly before the beginning of the trial. So Mr. Knizley had these pictures before the trial? It was my understanding, yes, sir. And Trent Wilhelm is who? An investigator with the District Attorney's Office. MR. WHETSTONE: Pass the witness.
FURTHER REDIRECT EXAMINATION
R-36
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. defensive wounds; are you not? That's what he said, yes, sir. If Dr. Downs was your forensic pathologist and your expert, would you expect him to review every photograph, including those showing injuries that are completely inconsistent with his opinion? MR. WHETSTONE: THE COURT: BY MR. BECK: Q. Not to belabor this, and I'll wrap up. If one Objection, Your Honor.
I sustain the objection.
jailhouse snitch approached you and he was facing pending capital murder charges, or the equavilent in the state of Florida, would that concern you, sir? MR. WHETSTONE: that's true or not. THE COURT: BY THE WITNESS: A. If that was the case, yes, that would concern me. Well, I overrule the objection. Your Honor, I don't know if
BY MR. BECK: Q. If the second jailhouse snitch just pled guilty in Federal Court to 260 months on a federal conspiracy, drug conspiracy charge, would that give you pause for concern? Absolutely.
R-37
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. A. Q. Q. I you're familiar with the Federal system intimately, aren't you, sir? Very familiar. Is that dynamic with jailhouse snitches common or uncommon in the Federal system? It's very common. They're looking for a Rule 32.
And if another person claimed that a jailhouse snitch had approximately half a dozen prior felonies, including a prior conviction for manslaughter, originally charged with murder, would that give you pause to consider the veracity and believability of anything that person ever had to say? Yes. MR. BECK: That's all.
FURTHER RECROSS EXAMINATION BY MR. WHETSTONE: Q. A. Q. A. Would you go talk to them? Yes. Yes. And did you talk to them all?
The ones I became familiar with were after I was off the case. Would it make any difference to you if they didn't want anything in return? I have never seen a jailhouse snitch that didn't
R-38
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. Q. want something in return. So if he didn't want anything in return, that would indicate veracity, wouldn't it? (No response.) Or if he knew some of the facts about the case? Facts from? Mr. Nodine. If he heard something straight out of Mr. Nodine's mouth? Yes, sir. I would want to hear what he had to say. Yes, sir. And there is no reports that you have
seen, except for one? I have never seen a report. I just know that two
investigators went over there and talked to a guy in Santa Rosa. MR. WHETSTONE: MR. BECK: THE COURT: be excused. No further questions.
That's all. You may step down and you can
Thank you.
(Witness excused.) (This completes the testimony of Jeff Dunn.) MR. BECK: I need to confer with
Mr. Whetstone briefly, Judge.
R-39
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. BY MR. BECK: Q. Mr. Wilhelm, I want to -- let me just ask you a couple of preliminaries, first of all. You're an investigator with the District Attorney's Office; is that correct? Yes, sir. (A brief pause was held.) MR. BECK: I guess what I was asking, you
don't need him, do you? MR. WHETSTONE: testified. No, sir. He can leave. He
That's fine. I apologize. He
Excuse me, Your Honor.
has a witness that wanted to be released and I have no objection. MR. BECK: morning. His mother is in surgery this
I just wanted to make sure
Mr. Whetstone didn't expect or need to call him. Your Honor, I call Trent Wilhelm. THE COURT: swear you in. TRENT WILHELM, the witness, having been sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: DIRECT EXAMINATION You can have a seat and I'll
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. A. Q. A. Q. A. Q. Q. And how long have you maintained that position in the District Attorney's Office? Since 2006. So you would actually be an investigator that had been there in the prior administration under Ms. Newcomb; is that correct? That's correct. And you're also, of course, with Ms. Dixon, correct? Yes, sir. Were you involved directly in the investigation of the Downs case? Yes, sir. And what was your role? I had a number of responsibilities, from -- I mean, dozens and dozens of things I participated with. Okay. Yes. All right. MR. BECK: Honor? THE COURT: BY MR. BECK: Q. Defendant's Exhibit No. 1 and No. 2. I want to Yes, sir. May I approach the witness, Your Case file preparation for one thing?
R-41
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. Q. A. A. Q. A. Q. make sure we clear something up. those photographs? Yes, sir, I do. Okay. And do you know when those photographs Do you recognize
came into the possession of the District Attorney's Office? I believe that would be December the 3rd, 2010. And that was within a day or two of the beginning of the trial of this case; is that correct? That's correct. Trial started Monday and I
believe we obtained these Saturday. Okay. And who did you obtain them from?
Kayla King. Is it your testimony that those photographs were turned over to Mr. Knizley, who was representing Mr. Nodine? Yes, sir, it is. And do you know if those photographs were turned over to Dr. Downs, who was the State expert? I do not believe they were. Prior to the Grand Jury meeting in this case, do you recall a meeting wherein Dr. Downs was present and several members of the District Attorney's Office was present, and also the lead investigator from Gulf Shores was present, among other people?
R-42
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. A. Q. Q. A. Q. A. Q. A. A. Q. Yes, sir. Do you recall all the people that were actually at that meeting by name? Not everyone. Can you tell me who you recall? Myself, Justin Clopton, Ms. Judy Newcomb, John Stewart, Warren Stewart, I believe Anthony Lowery, Daniel Steelman. Was Angela Jarman present? Yes, sir, I believe so. Dr. Hart and Dr. Snell.
And Dr. Snell was the State Chief Medical Examiner at the time; is that correct? Yes, sir, that's correct. And, of course, Dr. Hart was the forensic pathologist that performed the autopsy; is that right? That's right. Do you recall how long that meeting lasted? Maybe an hour. What was the purpose of that meeting? My recollection, we were there to discuss with Mr. Snell and Dr. Hart, our belief -- some evidence that we believed showed that the injuries that he documented on the autopsy report were more consistent with a homicide and not a suicide.
R-43
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. A. Q. Q. A. A. Q. Q. And you're talking about, one thing would be the wounds on the hand? That was one thing. That was one thing. And, Mr. Wilhelm, at that
point was it your understanding that Dr. Hart, Dr. Hart's belief was that this was a self-inflicted gunshot wound? No, sir. I don't know if that would be accurate.
I know in the autopsy report, I believe he listed the manner of death as undetermined. And do you understand that the autopsy was actually -- the report was actually completed some time after that meeting? That's correct. And was the purpose of that meeting with Dr. Hart to, again, to point out to him reasons why the District Attorney's Office felt that this was a case of homicide as opposed to suicide? Yes, sir. And to explain to him what we had
uncovered and believed. And as a result of that meeting, Dr. Hart came back with a decision that the cause of death was undetermined; is that correct? Yes, sir, I believe so. And during that meeting, you say John Stewart was
R-44
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. WHETSTONE: Q. When you saw the photos, were they this size or how would -Q. A. Q. A. Q. Q. A. A. A. Q. present among other people? Yes. Do you recall Mr. Stewart, or anybody else associated with the District Attorney's Office, raising their voice with Dr. -I remember John Stewart did get upset and he did raise his voice. And that was directed at Dr. Hart, correct? He was frustrated, but John Stewart did get frustrated quite easily. That was with Dr. Hart, correct? That's correct. Were you aware whether or not Dr. Hart knew John Stewart prior to that meeting? I don't know. I would assume he did. John
Stewart was in law enforcement for quite some time, but I don't know. Okay. MR. BECK: THE COURT: That's all. You may cross examine. Thank you, Your Honor.
MR. WHETSTONE:
CROSS EXAMINATION
R-45
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Q. A. When you looked at them, what was the purpose of looking at these photos? The size that I saw these photos, when we obtained them on a cell phone camera, were approximately one inch by one inch. One inch by one inch, not blown up to this proportion? That's correct. Did you see anything yourself, when you looked that the one inch-one inch, that brought something to attention to you? No, sir. Did you report it to Ms. Newcomb? No, sir. Did any investigator report anything to Ms. Newcomb that, we see something on this picture that may show this wound? No, sir. Did you give these pictures to Mr. Knizley as you said? We did. Did Ms. Newcomb -- did you talk with Ms. Newcomb about these photos? She was aware we obtained the photos, yes, sir. And did -- essentially what they show is a party
R-46
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. in Pensacola? No, I believe it's a party in Orange Beach. Orange Beach. Excuse me. Wrong city. But you
didn't see anything that you thought was important in these photos? I did not. And you didn't report to Ms. Newcomb or no other investigator would have done, or did so? No, sir, they did not. Was it common for the investigators to look over the information and to report to Ms. Newcomb what was going on? That would be standard procedure, yes, sir. And -- yeah. And then you helped put the case
together and showed her what was relevant in some cases? Exactly. Ms. Newcomb had just finished a capital murder case; had she not? Yes, sir. And it had taken up most of her time? That's correct. Would it be fair to say that she relied on you and other investigators to put this case together? She did.
R-47
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. BY MR. BECK: Q. And you were removed because Ms. Dixon was removed; is that right? Yes, sir. When you say you looked at a one-by-one picture, you're talking about the preview pane; is that correct? Yes, sir. You are not talking about when you actually click the photo then you have got a high-definition, full photograph, do you? A. Q. A. Q. A. A. Q. Q. Do you intentionally suggest to withhold any evidence from the Defense in this matter while you worked for Ms. Newcomb? No, sir, I did not. You indicated that you still work for the District Attorney's Office. Yes, sir. Are you working on this case now? No, sir. You have been removed from the case? Yes, sir. MR. WHETSTONE: witness. REDIRECT EXAMINATION No further case -- further
R-48
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. Q. A. Q. A. Q. A. No, sir. What I meant was, when we reviewed --
they were on a cell phone and her screen was approximately one inch by one inch. We just
plugged the cell phone into my computer and downloaded the photos onto a CD. Because y'all asked her for those photos, right? Mm-hmm. Because they might contain something of evidentiary value, correct? And we didn't know she had the photo till she got there that day. That's why we asked. I understand that. But that's
And that's fair.
why you asked her, because it could have evidentiary value; is that right? It could. Yes, sir.
And so instead of looking at it on that little, tiny photo screen, you downloaded it so you can put it on a hard drive; is that right? Yes, sir. And that's what you did. That's what we did. And you reviewed the photos, correct? We did look at the photos. Okay. And you clicked on the photo files and
actually opened them up and looked at them,
R-49
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. BY MR. WHETSTONE: Q. Trent, was there a master file of this case kept in the District Attorney's Office when you were working for Ms. Newcomb? Yes, sir, there was. Did you put together that master file? I did. Yes, sir. A. A. Q. A. Q. Q. A. correct? I can't say -- I can't testify that I did that to every photo, no. You are not the only investigator who was working on this case, getting this case ready, were you? No, sir. There's certainly other Assistant District Attorneys who were working on the case; is that right? There was. And this was a high profile case; is that correct? That's correct. MR. BECK: THE COURT: That's all. Any recross? Very briefly.
MR. WHETSTONE:
RECROSS EXAMINATION
Was it indexed?
R-50
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. BY MR. BECK: Q. A. Q. Would you state your name, please, ma'am? At the present time it's Angela Brown. And you were formerly known as Angela Jarman; is that correct? Yes, sir. And where do you work, ma'am? A. Q. A. Yes, sir. Do you know where that master file is today? No, sir. MR. WHETSTONE: MR. BECK: No further questions.
That's all.
I call Angela Jarman. THE COURT: MR. BECK: Your Honor. THE COURT: Yes, sir. You can step down. And may Mr. Wilhelm be excused,
(Witness excused.) THE COURT: You can come and have a seat in
the witness stand, please. ANGELA JARMAN-BROWN the witness, having been sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: DIRECT EXAMINATION
R-51
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. Q. A. Q. A. A. Q. A. A. Q. A. Q. A. Q. A. Q. At the Brewton Police Department. And what is your function at the Brewton Police Department? Patrol officer and acting sergeant at this time. Speak up a little bit. I'm sorry. Okay. Patrol officer.
And, Angela, you're familiar, obviously,
with the Downs case, correct? That's correct. And did you have -- did you take part in this investigation in any fashion? Yes, sir. And what did you do in this case? I was an investigator with the Baldwin County Sheriff's Office at the time, and one of the investigators assigned to assist in investigating the case. And did you interview some witnesses? I did. Were you present at certain meetings? Yes, sir. And who was your direct supervisor at the time? My sergeant was Mike Gall, but he was not involved in the investigation. Yeah. For the purpose of this investigation who
R-52
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. A. Q. were you reporting to at the Sheriff's Department? Lieutenant Tony Nolfe. Okay. And you have got -- do you have some
background in forensic investigations, or, or investigations of homicide? I do. I have been to many training classes. I
worked for Escambia County, Florida, for eight years prior to accepting employment with the Baldwin County Sheriff's Office. And of those
eight years, four of them were spent in investigations. And did those include homicide? Yes. Major crimes and homicide, yes, sir.
How many homicide cases would you estimate that you have been a part of or worked? Actually, I can't even estimate a number. More than ten? Absolutely. More than fifty? Probably, yes. Have you received training from experts? Yes, sir. Such as Jan Johnson and others? Jan Johnson was actually the head of crime scenes at the Escambia County Sheriff's Office when I was
R-53
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. Q. A. A. Q. Q. employed there. And you brought your background and skills to the Baldwin County Sheriff's Office in what year? 2008. Approximately how many homicide cases did you work with the Baldwin County Sheriff's Office? Just estimating, death cases, about maybe 10 to 15. And you weren't there very long, were you? a couple of years, or -I was there for three years. Three years. Part of your function as an Just
investigator in this case was to suggest certain courses of action; is that fair? Yes, sir. Were you present at a meeting with Dr. Eugene Hart and members of the District Attorney's Office, Justin Clopton and other people? Yes, sir. And in proximity to the Grand Jury actually considering this case, what was the timeframe when that meeting took place? Um, that particular meeting where Dr. Hart was present was after Grand Jury indictment -- wait -or just prior to Grand Jury indictment.
R-54
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Q. A. A. Q. A. Q. A. Q. Okay. And -THE COURT: before or after. BY MR. BECK: Q. Were you correcting yourself or do you recall exactly when the timing of that meeting was? It was so long ago. I'm trying to remember. Um, Well, it obviously was either
I can't remember specifically if it was pre-grand jury or if it was pre-trial meeting. Okay. You do recall a meeting with Dr. Hart
being present; is that correct? Yes, I do. Do you recall who was at that meeting? Um, Danny Steelman, Tony Nolfe, myself, Justin Clopton, Dr. Hart, and I believe his supervisor was present. Dr. Snell? I'm not sure of his name, but I know that he was Dr. Hart's supervisor from Montgomery or Birmingham. And do you recall members of the District Attorney's Office being present? Trent Wilhelm was present, the District Attorney herself was present. Ms. Newcomb?
R-55
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. Q. A. A. Q. Q. A. Q. A. Ms. Newcomb. Um --
Do you recall John Stewart being present? There was John Stewart and Warren Stewart, but I get them confused. Okay. Approximately how long was that meeting
with Dr. Hart, if you recall? At least an hour. And in your opinion what was the purpose of that meeting based on the context of that meeting? Um, to gather -- to basically find out the reasoning behind Dr. Hart's ruling, initial ruling. What was your understanding of that ruling, ma'am? His initial ruling was that it was a suicide. And when the meeting was concluded, do you recall Dr. Hart being willing to change his opinion to some extent? Yes. And how was that changed? It was ruled as -MR. WHETSTONE: Your Honor, if she's
testifying to the mind of Dr. Hart, I would object. THE COURT: Well, I'm not going allow the
witness to testify to his mental state, but if
R-56
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 changed?" THE COURT: objection. BY THE WITNESS: A. It was ruled as undetermined. All right. Overrule the she knows that some report was changed, I'll allow her to testify to that, as to her role as investigator. MR. WHETSTONE: Yes, sir. I was objecting
to him asking her what Dr. Hart was thinking, versus what -THE COURT: question. I don't think that was the
Read the question back. Yes, sir. "And when the meeting
COURT REPORTER:
QUESTION:
was concluded, do you recall Dr. Hart being willing to change his opinion to some extent." ANSWER: "Yes."
QUESTION: "And how was that
BY MR. BECK: Q. And did the -- was the meeting, did it appear to be focused primarily on the District Attorney's Office attempting to get Dr. Hart to change his opinion to homicide?
R-57
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. Q. A. Q. A. Q. A. A. MR. WHETSTONE: Objection to leading. That
was a statement versus a question. THE COURT: BY MR. BECK: Q. Do you recall -- what was the demeanor of the meeting? Um, we were -- well, I say "we." The line of I sustain the objection.
questioning directed at Dr. Hart was trying to ascertain why he ruled it as a suicide as opposed to undetermined. And was Dr. Hart challenged during that meeting? Yes. And how was that being challenged manifest? I don't understand. What did people do to challenge him? He was asked questions over and over several times. And was it the same questions over and over? Some of them, yes, sir. Did the tone of the, of that meeting ever ramp up? Was it ever any -- was it loud? How would you
describe that? At one point it got very loud, yes, sir. And do you recall the context of why that meeting got loud with Dr. Hart?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Q. A. Q. Q. A. A. Um, one of the D.A. investigators, Mr. Stewart, and I'm -- it's the dark haired Mr. Stewart. not sure which one that is. Yes, ma'am. He got very loud and began to yell at Dr. Hart and basically yelling his questions at him, wanting to know why it was ruled as a suicide. Did Mr. Stewart appear to be upset by that? Yes. Yes, he did. I'm
And in your experience had you ever seen a forensic pathologist who performed an autopsy, treated in that manner by any investigator? No, sir. There was also a piece of evidence that was recovered in this case which has been described as the BlackBerry phone that belonged to Ms. Angel Downs. Are you familiar with that?
Yes, sir. And at any point did you ever suggest a course of action with respect to, um, to having that device checked out or the messages retrieved off of that device? Yes, sir. And what was your involvement with respect to that?
R-59
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. Q. A. I suggested to other investigators that were involved in investigating this case, to have the BlackBerry sent to Homeland Security. And to your understanding at the time, why was it necessary to send that device to Homeland Security? Because BlackBerrys have a unique system, password system, where if you enter the incorrect password, I think it's ten times, it will completely wipe the phone's memory. And why, in your role as an investigator, why did you suggest sending that device to Homeland Security? Because of the complexity of the BlackBerry system and the resources available to Homeland Security, I was quite sure that they could obtain the information from the BlackBerry. And how was your suggestion received? It was received and went nowhere. Okay. And who did you, who did you make your
feelings about this known to? Other investigators. Mr. Nolfe, or -Um, I don't think I -- I don't recall directly expressing it to Lieutenant Nolfe, but I know that it was discussed with other members of the
R-60
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. Q. investigative team. Do you recall the, the period of time immediately prior to the Grand Jury considering this case? Yes. Do you recall it being a long time or a short time? Short time. And were demands placed on you and other members of your department concerning finishing your investigation to get this thing to Grand Jury? Absolutely. And tell me -- describe to me what happened with respect to that. We had several meetings where we were tasked with certain things -MR. WHETSTONE: Your Honor, I object. I
think it's outside the scope of what we're here today about, unless he can tie it in. MR. BECK: Goes to motive. Motive? Very important.
MR. WHETSTONE: MR. BECK:
Motive for bringing this
prosecution, Your Honor, in a very, very short period of time. This case was taken to a Grand
Jury in less than two weeks, which I expect the evidence to show that, of a case of this
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 complexity and magnitude, was highly, highly unusual. THE COURT: Well, what does that have to do
with failure to disclose evidence? MR. BECK: Well, what I have alleged, Your It's the
Honor, is three specific things.
failure to disclose with respect to the picture. We have the failure of the District Attorney's Office to take the BlackBerry to Homeland Security and to retrieve that information, which by all accounts should be able to be retrieved. And then we also have the allegation concerning Dr. Hart, and the meeting with Dr. Hart and undue influence. THE COURT: The last question went to
whether or not there was pressure put on them to finish the investigation. MR. WHETSTONE: MR. BECK: Yes, sir. It was all during the
Yes, sir.
context and the timeframe of Dr. Hart. THE COURT: MR. BECK: I sustain the objection. At some point may I make an
offer of proof to the Court? THE COURT: I mean, obviously I know the
date of death, and I can look at the indictment
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and see when it was return, and it was a short period of time. MR. BECK: Yes, sir. But I think what I'm
suggesting is that the motivations of the District Attorney's Office are manifest in this case with how rapid this case -- it was demanded that this case get to a Grand Jury and that investigators not be able to complete doing their job, and that this case was rushed. And quite
frankly, given the timing of the election of the District Attorney at the time, that it certainly goes to the motive of the District Attorney for submitting prosecutorial misconduct. actually very central. It's
And I think that we
should be able to establish the motive, or what we ascribe as the motive of the District Attorney in committing any acts of prosecutorial misconduct. THE COURT: Well, I sustain the objection
to the question of whether they were under pressure to speed up the investigation. It
obviously was done within a three-week period. BY MR. BECK: Q. Were you personally given enough time to conduct an examination and an investigation on your part
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. that you felt was sufficient? With respect to the tasks that I had to complete? We worked an enormous amount of overtime and were rushed to complete those tasks immediately. And do you know why? MR. WHETSTONE: Objection, if it goes to
the previous question you just sustained, Your Honor. THE COURT: MR. BECK: I sustain the objection. One moment please, Your Honor.
(A brief pause was held.) (A bench conference was held as follows:) MR. BECK: I would like to make an offer of I don't know how the Again, what I just
proof with this witness.
Court wants to conduct that.
described previously concerning the motive of the, of the District Attorney at the time. just going to be very blunt. I'm
It appears that
this case was taken to a Grand Jury extremely rapidly, which was a mere few days prior to the election that Ms. Newcomb was handling. expect to -THE COURT: Well, you can ask this witness I'm assuming you're I also
the date of the election.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 referring to the republican primarily. MR. BECK: THE COURT: election. MR. WHETSTONE: If I may, Your Honor, one I am, Your Honor. There wasn't actually an
of the reasons I'm objecting is, this Court issued an order about what would be heard today, and this is brand new testimony relative to motive that is political in nature. alleged. That is not
I'm not even sure it's grounds for, for But we certainly didn't know there
a dismissal.
was going to be political motive brought up today. We thought it was going to be the three
things that the Court allowed to be heard today, and the motion to change venue. THE COURT: offer right now. state. MR. BECK: Yes, sir. We would expect that I'll allow you to make just an You can state what you want to
this witness testified that -- she would testify that her, other folks in her department, herself included, were pressured to complete this investigation for a rushed Grand Jury, that several police officers expressed their displeasure with rushing this investigation. And
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Q. A. A. BY MR. WHETSTONE: Q. In your investigation -- what did you say was your part in this investigation? I was one of the investigators assigned to assist in investigating this case. What did they ask you to do, for example? Interview witnesses, collect evidence, um, assist in processing the truck, executing search warrants. Okay. Yes. How much contact did you have with the District And you performed those functions? there was certainly not a continuity of opinion amongst police officers concerning whether this was a case of self-inflicted suicide or homicide. MR. WHETSTONE: I object to it only on the
basis of, that the political motive is being brought in too late. And, number two, it's not
grounds alleged in their motion. THE COURT: Okay. All right. Have you
finished your examination? MR. BECK: I have, Your Honor.
(Bench conference ended.) THE COURT: Mr. Whetstone. CROSS EXAMINATION You may cross examine,
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Attorney's Office? I was present in the meetings. Yeah. No. Okay. Um, the BlackBerry, you suggested to What I'm asking is, was it every day or --
someone that you wanted that BlackBerry opened? Yes, sir. And you suggested an agency of the government that might be able to open it? Correct. And you selected Homeland Security? Correct. Are you aware of any agency of the State of Alabama that does that type work? No, sir. Are you aware of the computer forensics lab that's located in Birmingham, Alabama, that does computer forensics of computers? I am. Are you aware of whether or not that agency was contacted to try to open up the BlackBerry? There was some discussion of that, but I don't remember exactly what the outcome was. Were you at trial? Was I at trial?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. A. Q. A. Q. Q. Were you at the trial of this case for Mr. Nodine? I was a witness, yes, sir. Did you hear the testimony -No, I did not. Well, I haven't even finished the question yet. If you will give me a little time. You a little angry? No, sir. Okay. Were you present when -MR. WHETSTONE: MR. RUTTER: BY MR. WHETSTONE: Q. -- Russell Yawn testified in the previous trial -No, sir. -- concerning, concerning his efforts to open the BlackBerry? No, sir. I was a potential witness so I was What's his name, James?
Russell Yawn.
seated in the hall. Okay. You weren't present. Okay. Were you ever
informed by your other officers before the trial, that the Blackberry had been attempted to be opened by forensic labs in Birmingham, Alabama, and it couldn't be done?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. I was advised that attempts were made to gain the information from the BlackBerry, and that they had -- they were unable to retrieve the information. Okay. So you have evidence that they attempted
to open it? Correct. And after receiving word that it could
not be done, I suggested that it be sent to Homeland Security. Ah. Okay. But there were efforts to open it?
Yes, sir. Now, do you know Mr. Dennis Knizley? Not personally, no, sir. Have you ever seen him before? Yes, sir. You see him in the courtroom today? Yes, I do. And you knew he was the Defense Attorney for Mr. Nodine's case? Correct. Are you aware that Mr. Knizley would have had the right to have this BlackBerry tested? Absolutely. Did he so request? I was not privy to that request, if it was made. My point is, that evidence can be examine by
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. A. BY MR. BECK: Q. Briefly, ma'am. In an investigation like this, A. A. Q. either side. Right. And you have been a police officer for a long time and that's quite common. Yes, sir. MR. WHETSTONE: No further questions.
did you and would you consider that BlackBerry to be a very important piece of evidence? Absolutely. Why was that? Because it contained information prior to her death, conversations between the suspect and Ms. Downs. Now, you just testified that, um, that the Defense could have sought to have that BlackBerry checked; is that right? Yes, sir. Okay. But you agree that probably Homeland
Security would be about the only agency that could open that BlackBerry -MR. WHETSTONE: BY MR. BECK: Objection, Your Honor.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. -- or is that just who you suggested? THE COURT: BY THE WITNESS: A. I suggested Homeland Security because of the sophistication of the equipment that the United States Government has. BY MR. BECK: Q. Do you know if a Defense Attorney has access to that? No, sir, I don't know. MR. BECK: That's all. I have no further Overrule the objection.
MR. WHETSTONE: questions. THE COURT:
Thank you.
You can step down
and you can be excused. (Witness excused.) MR. BECK: Eugene Hart. THE COURT: Dr. Hart, you can come and have The next witness will be Dr.
a seat in the witness chair, please, sir. DR. EUGENE HART, the witness, having been sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows:
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. Q. A. BY MR. BECK: Q. A. Q. A. Q. State your name, please, sir. My name is Eugene Hart. And, Dr. Hart, what do you do, sir? I'm one of the medical examiners in Mobile. And with respect to the Angel Downs case, what was your function? I was the pathologist who did the autopsy on Ms. Downs. And, of course, you previously testified and been admitted as an expert before this Court; is that correct? That's correct. Dr. Hart, I want to turn your attention to the timeframe from the time that you first conducted the autopsy, up until you testified before the Grand Jury. Right. Okay. The -- when you conducted the autopsy, You with me? DIRECT EXAMINATION
first of all, who was present with you? Um, it was myself. the morgue technician. And, of course, Detective Clopton was the investigator at the Gulf Shores Police Department; It was Detective Clopton, and
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. Q. A. A. Q. is that correct? That's correct. And shortly after you conducted the autopsy, there was an occasion where you were asked to look at the body a second time; is that correct? Yes. Collect fingernail clippings; is that right? Yes. I was told by somebody in the District
Attorney's Office that they were going to send the body back, and this was a few days after the autopsy. And they wanted me to, ah, check the
fingernails, and also look at the back of the scalp again. In your experience -- first of all, let me ask you, how long have you been doing this? I started work in Mobile in 2005. In your experience, have you ever been asked to look at a body a second time like this? Not at that time, no. And during the autopsy itself -- I'm not going to go through everything that you do within an autopsy, but did you, based on the information that you gathered at the autopsy, and based on the information that you had gathered from other sources, did you find anything that you believe was
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. A. Q. Q. A. Q. A. Q. A. consistent with a self-inflicted gunshot wound? Yes. And do you recall what those factors were, sir? Yes, I do. What were they, please? Well, first of all, it was a contact gunshot wound to the right temple. And if I -- may -- would it be okay if I ask you about each one very briefly as you go through them? Of course. A hard contact that is more indicative of a self-inflicted gunshot wound, why? Well, I don't know why that is. Is that statistically? Just --
Well, it's been found that in these cases where someone has died of a single gunshot wound of the head, if it's a contact gunshot wound, it's much more likely to be self-inflicted. And if it is not
a contact gunshot wound, it's much more likely to be a homicide. And what about the angle of the actual bullet and the -The, ah, the path of the bullet went right to left, upward, and slightly front to back. Is that more consistent with suicide or homicide?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. Q. Q. A. A. Again, I don't know of any studies that have actually looked at that. What else was consistent with suicide, Dr. Hart? Well, on autopsy, there was no sign that she had been in a struggle, which is something that we look at in these cases. Also, it was reported that the
weapon thought to have been used was lying next to her, and again, that's typical for a suicide and not typical for a homicide. And finally, she --
it was reported, at any rate, that she had tried to kill herself in the past. And was that something that was important to you to know also in your role? Yes. And your role is to give your opinion. expertise, correct? That's correct. Yes. It's your
And you made that opinion known, first of all, to Detective Clopton, did you not, during the autopsy? I did. Yes.
And did Detective Clopton ever challenge you about that opinion during the autopsy? No. Did he appear to share your belief? MR. WHETSTONE: Objection as to what --
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. A. Q. A. Q. THE COURT: I sustain the objection. Thank you, Your Honor.
MR. WHETSTONE: BY MR. BECK: Q.
Was there anything about the injuries that -- or any of the information that you had, that was consistent with a homicide? No. Now, you have given -- you gave an undetermined cause of death in this particular case on your autopsy; is that correct? Yes, I did. And you have given undetermined reports before; is that correct? That is correct. Yes. On your report?
In the past when you have given a finding of undetermined, was that consistent with the belief of law enforcement? Were y'all, you know, in
lock-step with your opinion that it was undetermined? Yes. As far as I can recall in those other
instances, there was agreement between my findings and the law enforcement. Was there something different about this case? Um, yes. What was that?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. Well, there was, ah, um, disagreement, I guess you could say. When was that disagreement made known to you, sir? Well, actually at the very beginning when I had finished the autopsy and said that the findings were consistent with suicide, it was again reported to me that there were still doubts in the investigating agency as to whether this was a homicide. Was that reported to you from the District Attorney's Office? Um -Or did you at least describe that as the source? I really couldn't say what the source of that was. Um, again these were just -- I believe on
that day of the autopsy it was, ah, may have been Detective Clopton who had mentioned that there was some in the investigating agency that thought that this was a homicide, and so that is why I didn't call it suicide at the very beginning. And shortly after the autopsy, did this case go to a Grand Jury fairly quickly? Ah, again, I don't know what the average time to go to Grand Jury is, but yes, it did go to Grand
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. Q. A. Q. A. Q. Jury, I believe it was that same year. was the next year. I'm not sure when. Maybe it
If I suggested it was within two weeks of the death, would that sound consistent to you? recall that? That seems awfully soon. That would be quick, wouldn't it? Yes, that would be quick. Ah, I would, again, Do you
think that it would have been a few months after the death, but then again, I don't really recall. You don't have an independent recollection of that, it's just what would be normal? Well, again, what's normal varies from case to case. It could be a year after a death before it But --
goes to a Grand Jury.
Have you ever been -- reported to a Grand Jury within two weeks of actually performing an autopsy? Again, that seems awfully quick. And, Doctor, prior to the Grand Jury, your Grand Jury testimony, do you recall a meeting with members of the District Attorney's Office, Detective Clopton, other investigators? Yes. And do you recall a Dr. Snell being there, as well?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. Q. A. Q. A. A. Q. Q. A. Q. A. That's correct. Yes.
And who is Dr. Snell? At that time Dr. Snell, Dr. Kenneth Snell, was the Chief Medical Examiner in Alabama. And was it unusual for Dr. Snell to be present at that meeting in your estimation? Um, yes. It was a first for me.
And what was the purpose of that meeting as you understood it? As I recall, it was -- It was to just put forth the evidence that they had collected at that time. The District Attorney's Office? Yes. And do you recall Ms. Newcomb being present? Yes. Ms. Newcomb was there.
Do you recall one of her investigators by the name of John Stewart being present? remember them by name? I'm afraid I don't remember their names. You don't know John Stewart, do you? I -- not by name, no. And during that meeting, would you agree with me that, that investigators from the District Attorney's Office were offering you reasons why they believed this to be a homicide as opposed to a By name. Or do you
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. Q. A. A. Q. Q. A. suicide? Yeah. Yes. And do you recall some of the things that they suggested to you during this meeting that would be consistent with a homicide, or what they claimed was consistent with a homicide? I'm not sure I understand that question. Let me ask it a different way. Did you find any of the things that they were suggesting to you, to be of value in your determination? Well, I don't know if I would say that they were valueless, but nothing offered was convincing as to this case being a homicide, in my opinion. Have you ever had a case where you conducted the autopsy and the prosecution brought in another expert? Ah, no. And you're aware, of course, that's what happened in this case; is that right? Yes. During the meeting with the District Attorney's Office, how long did that meeting last? Oh, I don't recall. An hour, maybe two. I think that would be a fair statement.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. A. A. Q. Q. And again, was that immediately -- Was that the same morning that you testified before the Grand Jury? Yes. And at that point you had not -- you had not made a finding concerning your position on any kind of a report; is that right? At that time the report had not been signed out, no. Right. And after that meeting was concluded,
because of a disagreement between you and the other -- and the District Attorney's Office, you left the cause of death as being undetermined; is that a fair characterization? Well, ah, again, it was left as undetermined, and this was on the advice of Dr. Snell, because, although our findings were consistent with suicide, the law enforcement agencies still thought this was a homicide, and we couldn't prove that it wasn't a homicide. Do you know which law -- I'm sorry. done with your answer? Yes. Do you know which law enforcement agencies were telling you that this was a homicide? Were you
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. I really don't know. But you know the District Attorney's Office was positing that position. Yes. And do you recall during that meeting, one of the investigators from the District Attorney's Office getting loud with you? (No response.) Raising his voice? Oh. Okay. Uh, no, I don't recall that. If other witnesses have testified as to
that fact, are you saying that didn't happen or you don't recall? I just, I just don't recall. I believe you testified previously about the ability to always change your report later on. that a somewhat accurate statement? If you get Is
additional information about a case, that you have the right and duty to update your report from your autopsy? Yes. These autopsy reports can be amended.
Has anybody from law enforcement, or the State of Alabama, given you any additional information about this case since you issued your report? Um, no, I don't believe so.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. BY MR. WHETSTONE: Q. A. Q. Good morning, Doctor. Good morning. I'm David Whetstone. I know we have run in ya. (A brief pause was held.) MR. BECK: THE COURT: That's all. You may cross examine. MR. BECK: THE COURT: One second, please, Your Honor. All right.
(A brief pause was held.) MR. WHETSTONE: THE COURT: MR. BECK: Is he through?
I don't know. One moment, please, sir. I'm sorry. I didn't hear
MR. WHETSTONE:
CROSS EXAMINATION
together once or twice before in our life, I think. We have met. Yeah. I have been in this business a
Good to see you.
good while, so I'll ask you a few questions. When you did the first autopsy, I believe, and you were being asked, it's based upon your findings after you review the body and the crime scene. it's a, it's a factual analysis; is it not? Um, well, first of all, there was only one So
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. Q. A. Q. A. autopsy. Yes. I'm sorry.
And, yes, forensic sciences is a science, and we deal in facts, or what we think are facts. It's different from police science, isn't it? Um, I would -- I wouldn't know. police science. Okay. It's a particular science in Alabama which I don't know
is independent of police agencies; is that not correct? The Department of Forensic Sciences is independent of law enforcement. And that's unusual in this country, isn't it? No. That's the normal. I guess when I first started it
It is now. wasn't.
But that's the --
So you would perform investigations for the Defense as well as you would perform for the State of Alabama. Well, we perform investigations, and the evidence we uncover is for anyone's benefit. So the evidence that you had subjected -And you didn't know anything about the case when you were doing the autopsy, or very little; would that be fair?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. A. Q. Well, I knew what I was told. Were you told that there was a problem between Mr.[sic] Downs and Ms.[Sic] Nodine? Not that I recall, no. Were you told that he was there seconds, or minutes, or present at the scene when the gun went off? No, I don't believe I was. Were you told that there was previous assaults against Mister -- Ms. Downs by Mr. Nodine in multiple locations? MR. BRUIJN: Object to the relevance of
this line of questioning. THE COURT: BY THE WITNESS: A. Not that I recall, no, sir. Overrule the objection.
BY MR. WHETSTONE: Q. Yes, sir. him? Ah, no, not that I recall. Were you told that as the gunshot went off, Mr. Nodine left in his County red truck at a high rate of speed away from the scene? Well, I was told that at some time, but I'm not sure when. Were you told that she was afraid of
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. A. A. Q. A. Q. Q. My point is, that would indicate -indicate something different to you? Well, no, not necessarily. It wouldn't tend to indicate that perhaps he was involved with the shooting? Well, no, not necessarily. Okay. The self -- second review of the body, did would that Those facts?
it reveal anything to you that you didn't know before? Well, as I recall, I had, um, looked -- taken pictures of the scalp and noticed that blood had shifted. Again, the significance of this I'm not
sure, but that, that looked different from the first time I looked. Okay. Can you tell me what you think that meant,
or what did you draw from that? Well, um, it just -- it could have been a sign of decomposition. It could have been blood in the Um, it could Um, I
facial tissues shifting with gravity. have been just the lividity shifting. believe those are the only three. Could it have been a blow? A blow? A blow? You mean trauma?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. Q. A. Q. A. Q. Yes. No. Okay. Now, going back to the other question I
didn't ask you about, were you told that there was no suicide note? I was told that Ms. Downs had left no suicide note for this gunshot wound. Were you told that she was seconds, or minutes before the shot rang out, that she was planning to go to a party and was happy? I don't recall. Would that have any impact upon whether or not someone would just shoot themself and no depression? Well, no. No, it wouldn't. It wouldn't have
affected my decision, no. Yes, sir. And I understand that your position --
and I'm not trying to pick on you, Dr. Hart, really and truly. I understand your position is based
upon percentages of the gunshot wound that was to the head and gun was found near her body. Would
that be the primary reason you determined suicide, because of studies that indicate that's more likely? That, and the fact that she had attempted suicide
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. A. Q. A. Q. Q. in the past. Outside of that, is that based -- is that the reason that you based on your initial conclusion? Those are the major factors, yes. And was law enforcement telling you all this other evidence that they had that indicated a homicide at that meeting that was described by Mr. Beck? I'm not sure what other -Were they relating to you the evidence that they had found that suggested it was a homicide? They -- As I recall, they were relating evidence pretty much about where Mr. Nodine had been that, that night. Did they reveal to you at that time, the phone calls that came up to a timeline as Mr. Nodine was arriving at Ms. Downs' house? They may have. Okay. I don't recall.
You obviously didn't interview Ms. Downs,
so you don't know what was in her mind at the time the gun went off. Obviously not. Right. So when you concluded suicide, it was
based just upon the facts that you have reported today.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. A. Q. Q. A. Q. Q. A. A. Well, again, manner of death in this case is still undetermined. Okay. Ah, but the findings at autopsy that I saw and were reported to me, were consistent with suicide. Yes, sir. You really can't say who pulled the
trigger, can you? Autopsy is not going to reveal who pulled the trigger in this case. Yes, sir. And, ah -(A brief pause was held.) BY MR. WHETSTONE: Q. Mr. Beck was asking you questions concerning your opinion and that the doctor from, I guess, Birmingham had come down. Dr. Snell. Is he from Birmingham? He was in Montgomery at that time. Okay, Montgomery. And did the officer, or anybody, threaten you, or coerce you, or force to you change your professional opinion? No, not that I know of. Would you have done so as a scientist? No. Was it Dr. Snell?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. A. Q. BY MR. BECK: Q. And, sir, would you agree with me that the main purpose of that meeting was to have the District Attorney's Office, through their investigators, describe for you their belief as to why this was a homicide? Yes, that was my impression. And why in the world do you think that they wanted you to know their impression? MR. WHETSTONE: Your Honor, I object, if MR. WHETSTONE: No further questions.
he's trying to get into the minds of the investigators. THE COURT: BY MR. BECK: Q. Did it appear to you that the purpose of that meeting was to change your mind from suicide to homicide, or at best, undetermined? Um, again, I really don't know what their motivations were. How did it feel to you? Well, ah, yes. I, I think that, again, that the And, I sustain the objection.
case hadn't been assigned out at that time.
ah, it seemed like they wanted the manner of death
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. A. Q. Q. to be listed as homicide. And that was -- That was the reason for the meeting, for the most part? MR. WHETSTONE: someone not here. THE COURT: BY MR. BECK: Q. Mr. Whetstone asked you a series of questions, if you knew this, would it change your opinion. Do you have any way to know if any of the questions that Mr. Whetstone asked you were based in fact? No. And were you also made aware of the toxicology that was performed in this case? At some point, yes. And do you recall what that was? I have the report right here. Do you recall alcohol being in her system? I'm sorry. I'm looking for the report. (A brief pause was held.) BY THE WITNESS: A. Um, yes. There was ethanol in her system. I sustain the objection. Objection to the reason of
BY MR. BECK: Q. In what amount?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. A. that. A. Q. A. Q. A. Q. .099 grams per one hundred milliliters. And what does that convert to in common vernacular? A .09? .009?
It would be a .099. Which -- Are you familiar with the legal limit? Yes. The legal limit is .08.
And so that reading would be above the legal limit. MR. WHETSTONE: Your Honor, I object to
That's not the legal limit for that woman She wasn't driving a
to have in her blood steam. car. MR. BECK: right. BY MR. BECK: Q.
I withdraw the question.
He is
In your opinion, would that have made her intoxicated? Um, yes. .099. And what else? What else was in her system? She should have been intoxicated at
She also had Alprazolam. That is that otherwise known as? Xanax. What else was in her system? She had amphetamine in her system.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. Q. A. Q. A. Q. A. Q. Anything else, sir? Also Zolpidem. And what is that better, otherwise known as? Ambien. What is Ambien? It's a sleep aid. And in your expertise and professional opinion, is that particular sleep aid related to other potentially devastating side effects? I really couldn't say. Is that beyond your expertise? Yes. And did the toxicology that you see today, is that something that you considered to be more indicative of suicide, or more indicative of a homicide? Um, well, it could go either way. MR. BECK: Downs[sic]. THE COURT: Any recross? Very quickly. That's all I have for Dr.
MR. WHETSTONE:
You have got in your report -MR. BECK: Downs. I'm sorry. I didn't mean Dr.
Excuse me. (Laughter in the courtroom.)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. BY MR. BECK: Q. And if you saw a picture of those particular injuries on a photograph of Ms. Downs the day before, would that then give you pause to reconsider the significance? Well, if they were on her hand before she killed Q. A. Q. A. A. Q. BY MR. WHETSTONE: Q. On two, on the first page, Doctor, on your final diagnosis -Yes. -- um, abrasion to the right hand. What did you MR. WHETSTONE: Well, that's --
RECROSS EXAMINATION
-- Do you recall what those abrasions were? There were some minor blunt-force injuries on Ms. Downs' right hand. And did you ascribe any evidence to that, as to why there were blunt-force injuries on her right -hand? No. The significance of these injuries is
unknown to me. Okay. MR. WHETSTONE: questions. FURTHER REDIRECT EXAMINATION I have no further
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. Q. A. Q. herself, or rather before she died, then certainly I might think that it was very little significance to those injuries. And you're looking at Defendant's Exhibits 1 and 3 right now; correct? This is 3, (indicating). (indicating). Yes. This is 1,
And Defendant's 3 is photos from the autopsy; is that correct? That is correct. And most prominently, there is an injury on the middle finger around the knuckle. Yes, there is. Okay. And do you see that same injury, or what
appears to be the same injury, on that photograph from Defendant's Exhibit No. 1? Yes. I see something in the same position that
looks very similar. And if Dr. Downs had testified previously that, that injury was one of the main reasons he felt that this was a homicide because it was a defensive wound -MR. WHETSTONE: Your Honor, I object to the
characterization of "main reason." THE COURT: I sustain the objection.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. BY MR. BECK: Q. If a primary reason, or a primary finding of Dr. Downs was ascribing that injury as a defensive wound to be consistent with homicide, would you agree or disagree with that opinion? MR. WHETSTONE: Again, I object. "Primary"
is an improper word used.
I could understand
"evidence" of it, but him describing it as a primary reason, I object to it. THE COURT: BY THE WITNESS: A. I would disagree. Overrule the objection.
BY MR. BECK: Q. You are the State of Alabama -you're the
person that did this autopsy in this case, correct? Obviously. Yes, it is. Nobody has taken you off this case, have they? No. Has anybody from law enforcement or the State of Alabama given you this picture, or any other pictures of Ms. Downs from the day before? No, they haven't. MR. BECK: That's all. No further questions.
MR. WHETSTONE:
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. BY MR. BECK: Q. A. Q. State your name, please, sir. Dan Dollarhide. What is your function in the District Attorney's Office? I'm an investigator. And how long have you been employed as such? I have been an investigator with the District Attorney's Office since January 17th of last year. And how much prior law enforcement experience do THE COURT: Doctor, you can step down and
you can be excused. (Witness excused.) THE COURT: We are going to recess court
for a morning break and we'll reconvene at five minutes after eleven. (Recess held.) THE COURT: MR. BECK: Dollarhide. DAN DOLLARHIDE, the witness, having been sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: DIRECT EXAMINATION You can call your next witness. Thank you, Your Honor. Dan
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. A. Q. you have? About 15 years. And, Dan, did you become involved in the investigation of the Downs case at some point? I did. And in what context? As an investigator with the District Attorney's Office, I was asked to check on a few of the -- do a couple of followup things on the case when we came into the office. Okay. assigned? One was, there was a piece of evidence, a BlackBerry phone that had not been -- had data extracted from it, and I was asked to see if I could make headway on that. And what steps did you take with respect to that BlackBerry? you. Okay. Initially, the BlackBerry was turned over That's what I wanted to focus on with And what were the things that you were
to me from evidence, that and a couple of laptop computers, and I took them to Gus Demotrellis(ph) -- and if I butchered his last name, I apologize -over in Mobile to see if he could accesses the data.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. A. Q. And with respect to the BlackBerry, where did you ultimately end up sending the BlackBerry to have data retrieved? Ultimately it was sent to -- well, it was sent by me over to the FBI office in Mobile to Agent Lisa Ryder, who then transferred it to their CART unit in Quantico, Virginia. And is it your understanding that that's where the expertise was available to open this BlackBerry? Yes, it was. To the exclusion of anyone else? Are you asking me if the expertise was excluded. Could anybody else do it? No. The -- initially -- my initial thought was
maybe Gus would be able to access the data, but in talking with him and Lisa Ryder, we all determined that the better route to do, would be sending it to the FBI. They're more qualified. And I spoke with
members of that unit in Quantico by telephone so they could explain to me very loosely what their process would be, and make sure it was going to suit what we were doing. And that is an expertise available to law enforcement agencies, correct?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. BY MR. BECK: Q. I'm handing you what I marked for identification as Defendant's Exhibit No. 5. that document, please? This appears to be the report that they sent back that includes text messages, both sent and received, from that BlackBerry. And does that report fairly and accurately represent the report that you got back? same report that you got back? Yes. Is it the Would you identify A. Q. A. A. Q. A. Q. Yes. Not necessarily private individuals? I would not think so. And after some period of time, did you, in fact, get a report back from the FBI detailing information from that BlackBerry phone? Yes, we did. What type of information did you get? Um, well, the report contained text messages that had been on the phone, emails, contact lists, um, there was call records, things of that nature, the things that you would expect to find on a telephone. (Defendant's Exhibit 5 was marked.)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. With respect to the text messages, correct? Correct. And it's also -- this is marked as Defendant's Exhibit No. 5, and also bate stamped by the State of Alabama, 2899, State versus Nodine. MR. BECK: evidence. MR. WHETSTONE: Your Honor, I'm not sure if Move Defendant's No. 5 into
there is any other extraneous information on this particular document, which this witness may not be able to identify. And I would object to it on
the basis that he's got handwritten things all over it, which I'm not sure he can -THE COURT: Well, you want to take the
witness on voir dire? MR. WHETSTONE: THE COURT: Briefly.
Go ahead. Thank you, Your Honor.
MR. WHETSTONE:
VOIR DIRE EXAMINATION BY MR. WHETSTONE: Q. Officer, these names that are listed here on this front page, where did they come from? The handwritten names? MR. BECK: I do not know.
And I would note to the Court
that this is the copy that we got from the
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. BECK: Q. And I'm going to hand you what's now been marked as Defendant's Exhibit No. 5. Is that the same Attorney General last week in the discovery packet. So the names that are written on there
may not have been made by this witness, but presumably someone attached to this investigation. MR. WHETSTONE: Someone. And the reason I
objected, Your Honor, is that some of these names mean things to me. And I guess we can redact
them, but we can do that later. MR. BECK: THE COURT: MR. BECK: THE COURT: Defendant's 5. COURT REPORTER: (Complied.) I have got it right now, Judge. You have a clean copy? Yes, sir. Okay. Let's mark that as
DIRECT EXAMINATION CONTINUED
document that I just handed you with the handwritten names removed? MR. WHETSTONE: THE COURT: No objection, Your Honor.
Defendant's Exhibit 5 is -Wait just a minute. He's
MR. WHETSTONE: found something.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. THE COURT: names. MR. BECK: Okay. Oh, I didn't know that. There are some handwritten
Dave, I highlighted the ones from -(A brief pause was held.) MR. WHETSTONE: I have no objection to the
way Mr. Beck is going to proceed in that regard, Your Honor. He's going to explain away -The Court has already admitted
THE COURT:
Defendant's Exhibit 5. MR. WHETSTONE: Your Honor. BY MR. BECK: Q. I am showing you a call record number 70, just as an exemplar, and that phone number right there, do you recognize that telephone number? I don't have the phone numbers committed to memory, sir. Okay. Did you review the text messages that were Okay, then I will sit down,
retrieved from that telephone? Yes, I did. I have reviewed them.
Did you review the text messages and associate them, at some point, with telephone numbers? Yes, I did. And turning to messages 50, 51, 53, and 54, not
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. Q. A. A. Q. A. Q. A. Q. because anything was written on that, but can you -- do you recognize the contents of those text messages? Yes, I do. And does that refresh your recollection as to the phone number on that, on those particular records? Yes, sir. And whose phone number does that belong to? That would have been Mr. Nodine's phone number. And turning your attention directly to those telephone records, what was the date and the time that those, that those text messages were sent? Um, particularly number 50, beginning with that, it was sent on May 5th, 2010. And were those times Greenwich Mean Time, which was five hours off? I believe. As I recall they were. Correct, they
were in Greenwich Time. Okay. And on May 5th, at approximately 1448:30
we have a string of messages that were sent from that BlackBerry; is that correct? Yes, sir. And they were sent from Angel Downs to whom? Appears to be Mr. Nodine's phone. Okay. And can you tell me what those messages in
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. Q. A. Q. A. particular say? Would you like me to read the messages? Yes. Just those.
Message 50 says, If you want it -- and "it" being in quotation marks -- you get it. And then it has a comma, smiley face. 51 says, begins with a smiley face, and then says, Don't forget your -- spelled U R -quotations, cover, too. The next message is a different number. same number would be message 53. cautious. The
It says that I am
And then it has a smiling face.
Message 54 says, Your phone won't C H G -which I take to be change -- unless your car is on. Or charge, rather. Okay. That's a good one.
And those four messages were all sent on
the same day, within half an hour of each other? Yes, sir. Had you reviewed the transcript of the first trial at all? Some of it, yes, sir. Was there -- in your investigation was there any significance that you ascribed to those text messages and the timing? Well, as far as -- I guess I don't quite
R-105
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. Q. A. A. Q. Q. understand. Um, were you aware of the allegations of stalking against Mr. Nodine that were, that were one of the counts of the indictment, and also part of the felony murder charge? Yes, sir. And what significance did those particular messages have with respect to those charges? Well, it appeared to me that the timing of those messages, that they approved to invite contact with Mr. Nodine, which is in contrast to what I would expect to see in a stalking situation. And did they appear to invite intimate contact with Mr. Nodine to you? Yes. And would you agree with me that the Mullet Toss event occurred on or about April 25th, 2010? Yes, sir. And these messages would have been transmitted approximately four days prior to Ms. Downs' death? Yes. MR. BECK: THE COURT: That's all I have. You may cross examine. Thank you, Your Honor.
MR. WHETSTONE:
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. BY MR. WHETSTONE: Q. Have you ever been to any courses concerning domestic violence and the affect it has on a person who is being beaten, or being assaulted, upon her relationships to the person doing it? MR. BECK: THE COURT: I object to the relevance. Overrule the objection. It's CROSS EXAMINATION
cross examination. MR. BECK: BY THE WITNESS: A. I'm sure I have. Yes, sir.
BY MR. WHETSTONE: Q. Yeah. Have you seen women go back to men, even
though they had been beaten, in your career? Yes, I have. Not -- pretty common, ain't it? I have seen it happen. Yes, sir.
How many incidences of assault did you uncover that Mr. Nodine had against Angel Downs before her death? I -- that really wasn't the part of the investigation I really had a whole lot to do with. I couldn't say that I uncovered anything, sir. You mentioned one, or Mr. Beck did, at the Mullet
R-107
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Q. A. Q. A. Q. A. Toss. I'm familiar with the event, but I didn't -again, speaking to the witnesses wasn't really part of what I was doing. Mr. Beck asked you whether or not you were investigating the stalking issue. Would it be
relevant for you to know how many times he has attacked her, or threatened her, relative to whether or not he was stalking her? Um, I wasn't actually investigating the stalking case, but yes, sir, I could see where that would be relevant. Are you familiar with the New Orleans incident? Only anecdotically. Okay. I did look into that myself.
Do you know whether or not she felt like Do you have any evidence
he was going to kill her? of it? I, I don't recall, sir. Okay.
I'm sorry.
Did you investigate any alleged stalking
in the state of Florida with another woman? I don't -- I didn't, no, sir. Are you aware of it, or have you been made aware of it by anybody else? I -- maybe if you could -Pardon?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. BY MR. BECK: Q. Do you understand that stalking requires a continuity of events? Yes. I mean, I haven't -- it's been a while A. Q. A. Q. Q. A. -- refresh my memory a little bit. sure what you are speaking of. Well, I'm trying not to get into the specifics of it because Judge Partin has ruled -I'm asking if you were aware of anything. You're asking about in the state of Florida? Yes, sir. I'm sorry. Okay. Okay. MR. WHETSTONE: Thank you. REDIRECT EXAMINATION That's all, Your Honor. South Florida. I'm not real
since I looked at the stalking code, but I believe it's a series. MR. WHETSTONE: Your Honor, if he's asking
for a legal conclusion, we maintain that's up to the Court. THE COURT: question. BY MR. BECK: Q. And certainly text messages from Ms. Downs to He's already answered the
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. BECK: Q. Would you state your name, please, sir? sir? (A brief pause was held.) MR. BECK: THE COURT: I call Justin Clopton. Officer, you can have a seat in Mr. Nodine inviting intimate contact four days beforehand, would not be consistent with a continuity of purpose with respect to -MR. WHETSTONE: legal conclusion. THE COURT: MR. BECK: I sustain the objection. Nothing further. No further questions. Investigator, you Objection; calls for a
MR. WHETSTONE: THE COURT:
All right.
can step down and you can be excused. THE WITNESS: Thank you, Judge.
(Witness excused.) MR. BECK: May I have one moment please,
the witness chair and I'll swear you in. JUSTIN CLOPTON, the witness, having been sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: DIRECT EXAMINATION
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. A. A. Q. Q. A. A. Q. A. Q. A. Q. Justin Clopton. And, Justin, what is your profession? I'm a law enforcement officer. With the City of Gulf Shores? Yes, sir. And what do you do with the City of Gulf Shores specifically? I'm a corporal, a shift corporal for the -- I guess you could say on the road, is what we actually call it. To be fair to you in your testimony, have you been working some long hours this weekend down in Gulf Shores? Oh, yeah. Justin, did you have involvement with the Downs case? Yes, sir, I did. And what involvement did you have? I was the lead investigator for the City of Gulf Shores when that took place. And were you the designated liaison for the City of Gulf Shores as far as this investigation was concerned? Yes, sir. And were you present at the autopsy?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. Q. A. Q. A. A. Q. A. Q. Yes, sir. And you were with Dr. Hart at the autopsy, and were you also present at a meeting with Dr. Hart after the autopsy? That's correct. During the autopsy itself did you ever -did
you give Dr. Hart any background concerning the incident itself, and what y'all had learned? Yeah. The autopsy had already started by the
time I got there, and I did fill him in on what we suspected happened. Okay. And what did, what did you tell him you
all suspected happened at that point? Well, of course, our thought was, you know, everything looked consistent with suicide, but there was circumstances that was surrounding the case that we just did not have pieces of the puzzle to match with it. And certainly, was it valuable to have Dr. Hart look at the body with his professional expertise and give an opinion? That's correct. And did Dr. Hart express to you an opinion during the performance of the autopsy? That's correct.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. A. Q. A. Q. A. Q. A. Q. Q. said. THE COURT: BY MR. BECK: Q. A. And what did Dr. Hart say? He also stated that it seemed consistent with suicide, or a self-inflicted gunshot wound. Fast forward to the meeting that occurred with, uh -- where Dr. Hart was present. Do you recall Overrule the objection. MR. WHETSTONE: Objection to what Dr. Hart
other people that were present at that meeting? There were quite a few. Members of the District Attorney's Office? Yes. Ms. Newcomb? Yes. John Stewart? John Stewart was there. Ms. Jarman? Yes. And a number of other people. and Dr. Snell, too? Yes. And where did that meeting take place? I want to say it was at the District Attorney's Office across the street. Certainly Dr. Hart
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. And in proximity to this case being presented to the Grand Jury, or actually Dr. Hart giving his testimony, how close in time was that meeting? it the same day Dr. Hart testified? I cannot recall that, if the meeting was the same day. And do you recall from the time that Ms. Downs died to the point where the case went to the Grand Jury, do you remember how much time had elapsed? Personally, it seemed kind of short, but I cannot remember exactly how long it took. few weeks. I know it was a Was
And a few weeks, I cannot really I cannot remember
elaborate on how long that was. exactly.
What do you mean, it felt short? Well -You said, "it felt short." that? I have not worked a whole lot of murder investigations in my career, although I am a 16-year veteran of law enforcement. But the ones I What did you mean by
have been involved in, I mean, it seemed like it took an amount of time to be able to collect all the evidence that we needed, to sufficiently to prosecute the case.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. Q. A. Q. A. Q. A. A. Q. Q. And it the feel to you that this was quick with respect to that? It seemed a little quick. Okay. And were you told to have reports ready in
a very quick manner for that Grand Jury? Yeah. We were, we were rushed. I mean, it --
And when you say -We worked long hours getting all that together. And which entity rushed you? Well, I would say D.A.'s Office did also, but the Sheriff's Office was involved also, which we all were trying to work together to get all of it as organized as we could. Was it expressed to you the reason for it being rushed? Was it to get it to the Grand Jury?
It was to get to Grand Jury. Did you ever express your personal displeasure, or hesitancy, regarding how quickly this case was being required to be investigated? No, I did not. And at the meeting that I mentioned previously with Dr. Hart and Dr. Snell, how would you describe the demeanor of that meeting? It got kind of, at one time a little, I would say irrational.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. Q. A. Mm-hmm. Some of the D.A.'s investigators did get kind of upset on some of the disagreements with Dr. Snell and Dr. Hart's decision. And Dr. Snell and Dr. Hart, when that meeting started, what was their position and what was their expert opinion? Well, their position, they really didn't know why they were there. Ah, based on their opinion, you
know, by looking at the pictures, they was pretty much clear to us, I -- as my opinion, that this was self-inflicted. And it didn't seem that, you know,
there wasn't much that they could change based on what they saw. And by the end of the meeting did they agree to list the cause of death as undetermined? Yes, they did. And, ah, more or less, I feel the
reason why they did this was because it was still an ongoing investigation, and that was more like what we was trying to express to him during this meeting. Mm-hmm. And was -- do you recall members of the
District Attorney's Office telling Dr. Hart, expressing to him why they actually believed this was a homicide?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. BY MR. WHETSTONE: Q. A. Q. A. Q. Good morning. Morning. Busy weekend? Slightly. You were performing the investigation and one of the first officers on the scene? I was there about 30 minutes after it had taken place. Were you aware of, that Mr. Nodine had been there and had left at a high speed? We were suspecting it, yes. Does that mean anything to law enforcement when somebody flees from the scene? A. A. Q. A. Q. Yes. And if aspects of the investigation were ongoing and cause of death was to be left undetermined, would that be consistent with your feeling that this investigation was rushed? Could be. Did anybody ever express to you why the Grand Jury was meeting in such short order? No. MR. BECK: That's all I have. CROSS EXAMINATION
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Definitely does. Indicates guilt, doesn't it? Could. Yeah. Were you aware that there had been threats
against her at that time? No, I was not. So that part of the investigation you weren't aware of? Right. Were you asking Dr. Hart to leave the decision open while y'all conducted your investigation? No, sir, I did not. Did you think it was wise to leave it open until -I think it would have been. Right. Right. Do you think, was Dr. Hart forced to change his opinion? No, I do not. MR. BECK: THE COURT: He's answered. MR. WHETSTONE: Okay. Object and move to strike. Deny the motion to strike. Not make a call?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. BY MR. BECK: Q. And certainly, in your opinion, it would have been wise to continue looking until all the evidence would have been evaluated before sending it to a Grand Jury. Obviously. And have you been made privy to additional A. Q. A. A. Q. Q. A. BY MR. WHETSTONE: Q. Did you see anything at the scene that night that suggested something other than suicide? Probably not that night -- well, yes. I mean,
different photographs that I had taken, um -- there are reasons why we've taken photographs. It's
because it's, it's something of the obvious nature that we need to look into more specifically. You can't always tell a book by looking at its cover? That's correct. And so you wanted to look on the inside of that book? That's correct. And is that what you were doing? Yes, sir. MR. WHETSTONE: Pass the witness.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. BECK: Q. State your name, please, sir. A. Q. Q. A. evidence that's been interpreted and recovered in this case? Uh, since trial I have only had one meeting with the Attorney General's office, and, ah, other evidence I have not really -- no one has actually told me about the evidence that -- you know, what's been found. Were you present with the meeting with Dr. Downs since the trial? No. All right. That's all. No further questions.
All right, Officer Clopton, you
can step down and be excused. (Witness excused.) MR. BECK: THE COURT: I call Danny Steelman. Officer, you can come and have
a seat in the witness chair. DANIEL STEELMAN, the witness, having been sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: DIRECT EXAMINATION
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Daniel Steelman. You go by Danny? Yes, sir. And, Danny, what is your profession? I'm an investigator for the Baldwin County Sheriff's Office. In May of 2010, is that how you were also employed then? Yes, sir. And were you involved in the Downs case? Yes, sir. And what was your function in that case? Um, I first got involved on the night of May 9th, called up to our annex building to interview Mr. Nodine. And were you involved in the investigation after interviewing Mr. Nodine? Yes, sir. And what else did you do in the investigation? I drew a search warrant and executed it on his vehicle. I also -- I mean, I did a lot of
different interviews, and a lot of stuff in general over the next couple of weeks in the investigation, and months later as well. With respect to evidence collection and
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. Q. A. submission of the evidence? I didn't submit any evidence that I recall. Everything kind of went back to Detective Clopton with Gulf Shores Police Department. Detective
Clopton did bring me items and I did look at some of the items, various different items of the case. Clothing, and items that I recovered from the vehicle with Mr. Nodine. I did look at the firearm
that was recovered by Detective Clopton prior to it going to DFS, and then also after it came back from DFS. And I think you actually lifted prints off the gun after it was sent to DFS. Yes, sir, that's correct. Okay. And is it true that that gun had already
been cleaned by DFS by the time it got back to you to lift the prints? It was in a different state when it returned to me than when I first saw it. I saw it -- I don't It was
recall the date off the top of my head.
brought to me by Detective Clopton, and he came up to the Sheriff's Office. I took a picture of the
gun, and then Detective Clopton took it with him to submit to the lab, then brought it back to me afterward, for fingerprint processing. It was --
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. A. Q. as far as wiped down, it was altered. the same state. It wasn't in
I don't know exactly what they did
to it, but it was changed. Did you request the opportunity to lift fingerprints prior to it being sent off to DFS? There was a discussion and a meeting about that, and I was told that it was going to be sent to DFS. You were not permitted to lift prints at that point? Um -it's more than just a simple yes or no
answer on that, sir. I'm sorry. Okay.
You want me to elaborate? Yes, sir. It was a meeting. We had a discussion. The
discussion was about the firearm, the defect on Ms. Downs' head. There were several people in the
meeting from Gulf Shores Police Department, and the Sheriff's office, and Baldwin County D.A.'s Office. And during that meeting someone, it wasn't me, suggested -- I don't remember who suggested it -that we bring the gun back from that meeting to the Sheriff's Office and I would examine it, look at some of the blood, maybe talk about fingerprinting it and photographing it. And there was discussion.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. Q. A. Q. Some people broke away. And I was dealing with
Mr. John Stewart at this point, he came back and told me that, You know, Hey, Detective Clopton is going to keep the gun. We don't want you You can
manipulating it or doing anything with it.
take a picture of it so we can compare it to the defect on the head, but we are going to send it off to DFS to do everything else to it. And, of course, DFS never lifted the prints, did they? No. I talked to Detective Stewart about it, I And he said,
told him, that's not what DFS does. Well, you're not armor.
You're not qualified to do
anything with it but photograph it. Not to belabor it, but you've obviously had quite a bit of training in lifting fingerprints, fingerprint analysis, and collection of evidence, haven't you? I have had some training, yes, sir. Okay. What was -- were you the Sheriff's
Department liaison in this investigation? Yes, sir, I was. Most of the work product from
the other investigators, the Sheriff's Office, would come to me and I would give to Mr. Stewart. And I was kind of handling the gathering of our
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. paperwork from the Sheriff's Office and bringing it to Mr. Stewart, who was my contact in the D.A.'s Office. And where y'all given a deadline to have reports finished by a certain time? We had a meeting at our -- it's called a Central Annex for the Sheriff's Office building, but an annex building in Robertsdale. and all is housed there. The probate office
And there was a deadline
on getting these reports done, because I remember some of the guys had to stay late to get their work done and typed up. I don't remember the deadline. I don't
remember the day of the meeting, but yeah, it was said that we need them completed ASAP, and get the reports turned in because it's going to be going to the Grand Jury. I don't remember if it was the
next day or the next week, or -- but seems like it was later in the week it was going to Grand Jury. Did it, did it feel rushed? MR. WHETSTONE: object. Your Honor, I'm going to
It's outside the scope of the three
things that we are -THE COURT: I sustain the objection.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. BY MR. WHETSTONE: Q. When you went to the scene, did you lift any fingerprints at all? I didn't go to the scene. Not the scene. Later on did you lift any prints? A. Q. A. A. Q. BY MR. BECK: Q. And, Mr. Steelman, were you present for a meeting with Dr. Hart in the District Attorney's Office? One of the folk that was present prior to Dr. Hart testifying? Yes, sir. Okay. Thank you. And, um, do you recall the
demeanor of that meeting with Dr. Hart? I mean the meeting, it ebbed and flowed. I mean,
it wasn't a -- the whole meeting wasn't exactly the same. And do you recall, do you recall any point in that meeting where discussions with Dr. Hart were heated and loud, concerning his opinions in this case? They did become heated at one point. MR. BECK: THE COURT: That's all. You may cross examine. Very briefly.
MR. WHETSTONE:
CROSS EXAMINATION
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. A. Q. A. Q. Q. A. Q. A. From? The gun? The gun. I attempted to lift prints and did not
find any of value. Okay. Of any value.
The, um, when you read the reports and you took the statements from Mr. Nodine that night, did they seem consistent with what you saw on the scene that night, or were they inconsistent? I didn't see the scene. Well, you were made aware of the scene. Yes, sir, later by Detective Clopton. Were there any inconsistencies that alarmed you at that time? Detective Clopton didn't really give me a lot about what the scene looked like. It was more
about, an eyewitness in the area that saw him leaving the area. That's what I was getting at. something to you? It suggested that during the time of the shooting event that Mr. Nodine would have been in very close proximity. And left in a hurry? And left in a hurry, yes, sir. Did that suggest
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. BY MR. BECK: Q. A. Q. State your name, please, sir. John David Whetstone, Jr. And, of course, you're Mr. Whetstone's son; is that right? Yes, sir. And in May of 2010, how were you employed? I worked at the District Attorney's Office as an investigator. Okay. right? And I want to ask you -- you go by J.D., MR. WHETSTONE: MR. BECK: THE COURT: be excused. (Witness excused.) (A brief pause was held.) MR. BECK: THE COURT: I call J.D. Whetstone. Mr. Whetstone you can have a No further questions.
That's all. You can step down and you can
seat and I'll swear you in. JOHN DAVID WHETSTONE, JR., the witness, having been sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: DIRECT EXAMINATION
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. A. Q. A. Q. A. Q. Yes. J.D., I just want to ask you about one thing. You are familiar with the BlackBerry phone; is that correct? A little bit, yes, sir. And did you ever make suggestions to anyone in the District Attorney's Office that, that BlackBerry phone could, in fact, be opened by the FBI? No. All right. your father? Ah, no, not by the FBI. I did receive -- I Did you ever make that statement to
called REM, which is the maker of the phones, and I -- they never verified that the phone could be gotten into, but, you know, they said that they would get their legal department to call us back. And I never got the return call. Did you ever make the statement to anybody that, yes, this phone can be opened, or words to that effect? No. Did you ever mention that to your father? No. Okay. All right.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BECK: THE COURT: Nothing further. Any cross examination? No, sir.
MR. WHETSTONE: THE COURT: be excused.
You can step down and you can
(Witness excused.) MR. BECK: I call Mr. Whetstone briefly for
the purpose of that question. MR. WHETSTONE: purpose, Judge, I -MR. BECK: Limited purpose. -- presume there's no If it's for that limited
MR. WHETSTONE:
ethical issue involved with me prosecuting and taking the witness stand. MR. BECK: THE COURT: I think that's proper. Shelagh, are you ready? Yes, sir.
COURT REPORTER:
(Limited testimony of John David Whetstone was given at the bench as follows:) MR. WHETSTONE: My son, J.D., informed me He was very excited
that he had called REM.
about it, and he thought that REM might be able to open that phone and then legal call him back. And that indicated to me that they could
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 technically open it, but there may be a legal issue about opening it. And I believed the phone
could be opened, and I thought the phone should be opened. MR. BECK: Dixon? MR. WHETSTONE: I told Ms. Dixon that. I And you expressed that to Ms.
told them I would not try the case unless they tried to open it. At that time, Your Honor, Ms. Dixon had asked me to consider trying the case for her, and told her I would. And I told Ms. Dixon that I
did not want to go forward without trying to open that phone. That is absolutely correct. Okay.
THE COURT:
(The bench conference ended.) MR. BECK: I call Hallie Dixon.
(Brief pause.) MR. BRUIJN: Ms. Dixon is not located where Anybody else?
she was previously located. MR. BECK: Knizley. MR. WHETSTONE: Beck. Yeah.
Let me call Dennis
May I approach the bench, Your Honor? THE COURT: Yes, sir.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WHETSTONE: I have no idea what
Mr. Knizley is about to say, but -THE COURT: That makes two of us. Yes, sir. But he is on the
MR. WHETSTONE:
stand and under oath, and I'm quite sure he will tell the truth as he always has. But I don't
know what he's going to say, but he was the lawyer of Mr. Nodine and I'm assuming they're waiving his attorney/client privilege. THE COURT: him, he is. MR. BECK: I don't anticipate asking Mr. Well, as to anything they ask
Knizley any questions concerning any discussion with Mr. Nodine, certainly. MR. WHETSTONE: You understand what I'm
getting at, Your Honor. THE COURT: The fact that he takes the
stand doesn't open him up to where you can cross examine him concerning any privileged communication. MR. RUTTER: Yes, sir. Yes, sir. What I was going
MR. WHETSTONE:
to say, if he got into something and he only got into a limited portion of something, I should be able to cross examination as to the other portion
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. BECK: Q. A. Q. A. Q. State your name, please, sir. Dennis Knizley. And, Dennis, what do you do? I'm a lawyer. And did you represent Stephen Nodine back in -from some time after May of 2010 until his trial in of it, would be my belief. cross examination. that. MR. BECK: I would suggest that's That would be a fair
I'm not sure he's going to do
Mr. Knizley's duty to invoke any privilege that he feels is appropriate, based on anything -MR. WHETSTONE: think it's -THE COURT: going to ask him. MR. WHETSTONE: Thank you. (The bench conference ended.) DENNIS KNIZLEY, the witness, having been sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: DIRECT EXAMINATION I guess we shall start. I have no idea what Mr. Beck is With all due respect, I
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. A. Q. December of 2010? Yes, sir. I want to call your attention to the days immediately leading up to the trial. Did you at
some point during a pretrial hearing, discuss or make known to the Court, the absence of a report from the State's expert, Dr. Downs? Yes, sir. And, and at some point did you, in fact, get that report from Dr. Downs? Yes, sir. We had filed a motion to exclude his
testimony because we hadn't had that information, and Judge Partin conducted a hearing on a Thursday before the trial begin on Monday, at which time Ms. Newcomb produced the report that Thursday morning. And that Thursday morning, that report that you got from Dr. Downs, was that the first time that you had been made aware of his opinions, or at least what his opinions are based on? I think Ms. Newcomb had certainly indicated that he would have a different opinion than Dr. Hart, but far as anything in any specifics whatsoever, that was the first time we saw that. And specifically there were -- was there anything
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. Q. A. A. A. Q. that Dr. Downs had put forth concerning defensive wounds to Angel Downs's hands? Yes. Okay. And how that become known to you, and in
what context. Again, the report came on Thursday morning. report included a number of things that we had never heard of before. One of those being some The
indication there was a defensive wound, what he characterized as such, on her hand. And at -- do you recall when the trial began? The date, I'm not certain, but the Monday morning after that hearing on Thursday. All right. And in, I think, early December. And at some point, were you given additional discovery in the form of a disc by the District Attorney's Office? The discovery -- yes. in routinely. The discovery was coming
And I think it was over that
weekend, and I may be incorrect about that, but some time after that hearing some additional discovery came in. And do you recall -- do you recall, was that the morning of the trial, or would it --
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. A. If there was previous testimony -- and I think you were in here -- Mr. Wilhelm stated that the witness Kayla(ph) King gave them those photographs that we are referring to over the weekend, on a Saturday, do you recall then, when you would have gotten those? It may have been during the trial, I don't recall. But the Kayla King information came by way
of something she had videoed with her camera, with her camera phone at a party that night, and some still photographs, as well. And did it become apparent to you at some point later on, that there was a photograph on that disc that actually showed Ms. Downs with that, what had previously been labeled as a defensive wound? Later on, of course, when we heard about the defensive wound, we had our own photographs that we began to research to see if that was indicative on there, and we found some. But later on, it was
determined that her hand had that wound on there. All right. And again, you just got that
information just a couple of days before the trial started; is that right? It may have been during the trial. Okay. All right. And the information that Dr.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. Q. A. Downs had actually relied upon, that wound, as being evidence of a defensive wound. His testimony -- both his report and his testimony, he relied upon that as being a defensive wound. Now, when you found, when you found -- when you got that information, mere days before going to trial, did you then start to look for evidence of your own photographs that showed that same wound? We did. And did you find some? We did. And what was the nature of that photograph, or photographs? There were more than one photograph. It was
actually the photograph of the beach the day of Ms. Downs's death. There were a number of
photographs with Mr. Nodine in the photographs, as well. But, ah, the wound to her fingers on both And you, ah -- it
hands, I recall, were blown up.
was clear that she had some discoloration, or some mark at the same location where Dr. Downs was contending it was defensive wound, and that was present before her death. I'm showing you Defendant's Exhibit No. 3, which
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. is from the autopsy, and Defendant's Exhibit No. 1, which is from that same disc from Kayla King. that a -- as Mr. Nodine's attorney, is that something that you would have found to be of value in defending Mr. Nodine? Yes. And to your knowledge was that photograph ever, ever given to Dr. Downs? Not to my knowledge. Okay. Um -- not to my knowledge. Is
With respect to the BlackBerry telephone,
were you ever given information from the District Attorney's Office, or any investigator that, that the BlackBerry was unable to be opened? Yes. Do you recall the source of that information and the content of that information? The BlackBerry was discussed. Detective Clopton
and I had conversations about it, and I don't recall whether the District Attorney was present during those, but the substance of it was that Detective Clopton, or someone at his insistence, had contacted the -- they attempted to open it. They'd used a couple of the passwords. contacted the manufacturer. They
If they used ten
passwords, as has been previously discussed here,
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Q. Q. A. the memory would be permanently erased. They had
no mechanism or expertise in which to open that BlackBerry. And did you rely on that position? I did, as well as, I did some preliminary investigation, and I could not find anyone who said they had the expertise to do so, as well. Do you have access to the FBI and the folks down at Quantico? No, sir. How long have you been a criminal defense attorney, Mr. Knizley? Thirty-two years. And if you had to estimate, how many murder cases have you handled? Fifty. In your 32 years, have you ever seen a case where an indictment was returned on a murder within a couple of weeks? MR. WHETSTONE: Objection, Your Honor.
Goes beyond the scope of why we're here. THE COURT: BY MR. BECK: Q. Do you recall when the Grand Jury returned the indictment in this case? I sustain the objection.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. BY MR. WHETSTONE: Q. Good morning, Dennis. MR. WHETSTONE: Honor. BY MR. WHETSTONE: Q. You have been doing this a long time, as you said. Yes, sir. And you presented a very vigorous defense of Mr. Nodine; did you not? I would think we did. And, in fact, that jury did not reach a decision -This won't take long. Just a minute or two, Your A. Q. A. A. Q. A. Q. Yes, sir. And when was that? Um, I want to say May 24th or 25th. And was there a significant event that, that was coming up within a week after that period of time? Yes, sir. And what was that? It was a republican primary for the District Attorney's race in Baldwin County. MR. BECK: THE COURT: That's all. You may cross examine.
CROSS EXAMINATION
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. A. A. Q. Q. A. A. Q. That's correct. -- as to the case. In the case that Mr. Beck is
referring to on the pictures, you discovered that prior to Dr. Downs' testimony, didn't you? I had the pictures, but we focused on another set of pictures, not necessarily that set, to indicate the same evidence that could have developed. Is it sometimes defense lawyers look at things differently than prosecutors? Yes. Is it unusual for forensic defense lawyers to use different forensic people to show a different possibility than a State forensics? If the prosecution's forensics testimony is not what we want, we are going to go look for something else. Yeah. And the same thing about psychiatry.
Certainly. Certainly. And so looking at different parts is The point I was
not unusual in your business.
trying to make is you rigorously cross examined Dr. Downs relative to this particular wound, or the wounds on both hands. I felt I did. Yes, sir. And so that was known by the jury?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. A. Q. A. David, the fact that there was a wound? That there was, existing prior to her death. Ultimately it was, but we, I think, held that to our case and developed it in our case that -though we developed it with Dr. Downs, that he relied upon that in cross examination of him. And
then in the Defense's case we brought photographs to say, well, though he relied upon that, they existed earlier in that day. You did it to impeach Dr. Downs? Yes. Yes. And if someone had knew the glove wouldn't
fit, they wouldn't have asked for the glove to be put on, would they? Um, give me that one again, David, if you would, please. My point is -- this is my last question. My point is that if someone were giving you what was obviously a wound on this hand, if they had known about it, they would have not tried to introduce it, would they? Knowing that you would
be able to use it against them? Um, you would think they wouldn't, unless they thought, you know, I wouldn't catch it or -They didn't know.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. BECK: Q. A. Q. A. Good afternoon. Hi. Would you state your name, please, ma'am? Hallie Dixon. A. That's certainly an explanation. MR. WHETSTONE: MR. BECK: THE COURT: No further questions.
That's all. All right, you can step down,
and you can be excused. (Witness excused.) THE COURT: The Court is going to be in
recess for lunch and we will reconvene at 1:00. (Lunch recess held.) THE COURT: witness. MR. BECK: Your Honor, I call Hallie Dixon. The Defendant can call its next
I believe this will be my last witness, Your Honor. THE COURT: Okay. HALLIE DIXON, the witness, having been sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: DIRECT EXAMINATION
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. A. Q. A. Q. A. Q. Q. A. Q. And what do you do, ma'am? I'm the Baldwin County District Attorney. And how long have you been the District Attorney in Baldwin County? Got sworn in January the 17th, I think, of 2011. And you had previously worked in the District Attorney's Office prior to becoming the District Attorney; is that correct? Yes. And -- but you were so employed in the District Attorney's Office in May of 2010? No. And what were you doing at that point in your life? I was working -- well, I was technically on a leave of absence from my job with the Attorney General's office at that time. office. And that was the Republican primary? Yes. And was that on or about June 1st of 2010? Yes. MR. BECK: Honor? May I approach, please, Your I was running for
I just want to find Court's Exhibit No.
1, please, sir.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. A. Q. A. Q. THE COURT: MR. BECK: BY MR. BECK: Q. You were sworn in, in January. correct? Yes, sir. And at some point did you open, or reopen an investigation in the Angel Downs case? Yes, sir. And I assume that there were many other cases that were also pending at that time that you had to inherit; is that correct? Yes. Now, did you, did you -- was there a liaison from the prior administration to your administration, with respect to transitioning cases? Mr. Whetstone made an effort to act in that capacity, yes. When you say "made an effort," what do you mean by that? We met a couple of times. Mr. Whetstone called January of 2011, (Complied.) Yes, sir.
me multiple times, discussed the situation, the difficulties, and I will say that he made a couple of efforts to -- I mean, based on what he told me, of course. There were some efforts on his part, as
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. Q. well as the Sheriff's, I think, to perhaps work out something where I will be able to work in the office, or get access to things in the office, that type of thing. probably met. So we talked -- I want to say we One meeting I specifically recall,
maybe twice, but one meeting and telephone calls is predominately the way it went. With respect to the Downs case, did you ever ask Mr. Whetstone to prosecute this case? No. And specifically with respect to this case, you're familiar with, obviously, with the BlackBerry telephone issue; are you not? Yes, sir. And did you have a conversation with Mr. Whetstone concerning that BlackBerry phone and being able to open that phone? There was a -- during our meeting -- and to the best of my recollection was that one meeting, and we had it down at the Sheriff's Office, sort of a substation there at the Foley Satellite Courthouse. And it was myself, Mr. Whetstone, and the Sheriff, Hoss Mack. We met. We discussed -- the Koons case
was one of the cases that he and I talked about, was a capital case that we talked about maybe me
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. trying in the interim, that kind of thing, and a lot of other things. the Nodine case. At that point in time I was relaying to him what I was being told from law enforcement, of course, and -- because I had been approached by law enforcement about the case and about needing to relook at the case. I related that to him. We But yes, we did talk about
talked about some of the issues, and Mr. Whetstone said at that point that J.D., his son, who worked for Ms. Newcomb and later worked for me for a while, that he had -- he knew there was a way to get into it and he had told Judy there was a way to get into it, and he told them all there was a way to get into it, but they just didn't get it done. But it wasn't -- it was Mr. Whetstone telling me that J.D. had told Mr. Whetstone that. Did Mr. Whetstone ever tell anything to you along the lines of, I'm not going to handle this case if I can't open that BlackBerry? No. case. And, you had just mentioned that, that law enforcement had opened up some discussions with you, I guess collectively, about the Nodine/Downs Again, I never asked anybody to take the
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. case; is that correct? I had been approached specifically -- and, I'm sorry, I don't remember the date, but there was an event. I think it might have been -I can't
remember what it was, but there was an event held with law enforcement, may have been the law enforcement breakfast that we hold monthly at the little Community Center there in Silverhill. specifically remember that. I
And at that specific
meeting the Chief, Dale Moore, of Gulf Shores had come up to me -MR. WHETSTONE: Your Honor, I object to
anything that someone may say -- hearsay -relative to this case. THE COURT: hearsay. BY MR. BECK: Q. At some point in your capacity as the District Attorney, did you become concerned about the integrity of the investigation in this case? Yes. And based upon those concerns what actions did you take? Based on the concerns of law enforcement, having been related to me, when we got in, I had assured I sustain an objection to
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. everybody that I would take a fresh look at it, but I wouldn't just go off on it, and that we would do everything we could to not only look at everything that was there, but to also look at what else we might learn. started. And the first question we had was: Does the And so that's basically where we
prosecution have everything that it could have, all the evidence? And, Did the jury, the experts, the
witnesses, actually know all of the evidence at the first indictment, the first trial? If we answered
that, no, which we did, we then took it back and broadened our investigation, is what I would say. And was the BlackBerry, the information that was gained off of the BlackBerry integral to that decision? Yes. Or important to that decision? Yes. And why was that? In any criminal investigation, especially an investigation of this nature, where the minutes up to and the minutes during are so at issue and confusing, and there is no eye witnesses, and that type of thing, cell phone data, emails,
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. communications, right up to, as well as in the days and weeks preceding, would answer, in my mind, a lot of things. The tenor of their relationship,
whether it was a domestic violence tenor, if you will. The stalking, we had to answer the stalking Was there evidence that -- of stalking,
question.
or were they in willful communication and participation? That kind of thing.
And based upon the evidence that was recovered from that BlackBerry, did that change your opinion as to the stalking element? Yes. And in what way? In part, based on that evidence, um, as to the stalking, we were able to determine that they were in constant and regular communication; that it was not a one-way communication, that there were no threats being made, or any kind of emotional, abusive-toned emails and things in those days preceding. Most of anything, that it was, um -- Ms. Downs was in a -- was participating in a relationship right up there until the end. And even chose And
Mr. Nodine again over her friends the day of. that, in my mind --
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. Q. I understand that stalking and domestic violence are not one in the same thing. Whether
there was domestic violence is one thing, but whether she was being stalked, I think everybody, including every investigator, the Sheriff, and everybody else agreed that there was no evidence that she was being stalked. And from the time period specifically, specifically between the Mullet Toss on May the 25th and the death of Ms. Downs, where there emails or text messages recovered that would contra indicate stalking? Yes. And were some of those emails of a -- could be interpreted as a sexual nature? They can be interpreted that way. Would you agree with me that the BlackBerry phone and the opening of the BlackBerry phone was extremely important? It was very important to me and to my investigators, and I believe every investigator involved. Were you -- Mr. Dunn testify earlier this morning. Was Mr. Dunn, Mr. Dollarhide, and
Mr. McGowan, were those the chief investigators
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. from your office that began re-looking at this case? Yes. During the period of time that you initially gathered items, gathered evidence from the prior administration, did you come across, first of all, all the discovery? I have no -- I have no way of knowing, according to the file what was or was not provided. I had
conversations in which I asked Trent Wilhelm, as well as Robert Nichols and William Scully, who were both A.D.A.s, Assistant District Attorneys, who worked with Ms. Newcomb on this case. them, Hey, was this given? And I asked Did
Was this given?
y'all know about this? and that kind of thing. But there was no way -- what I was told was, there was open-file discovery, and that the Defense had just been given everything. I had no
documentation as to what was, in fact, provided and what was not. Towards that end, did you write a letter addressed, I believe to Mr. Whetstone and cc'd to me, basically listing what you felt was either -discoverable items that may have exculpatory value? Yes.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. Q. Okay. Whether you were aware whether they had
been released or not released? Yes. There was -- earlier we have admitted a couple of pictures, Defendant's Exhibits No. 1, and No. 3 -excuse me -- No. 1 and No. 2. Are you familiar
with that picture and that blowup of the picture? Yes. Okay. And when was that photograph, the
existence of that photograph and the relevance of that photograph brought to your attention? I specifically remember where I was. There was a
few of us working on the case in the conference room and Investigator Dunn and I think Dean McGowan -- but I'm not certain -- had been in his office. They came in and told me, actually, that Did you know
they -- that there was this picture. about this picture?
Hey, there is this picture.
And I went into, actually Jeff's office at the time, Mr. Dunn's office at the time in my office, and they showed me the picture that you're referring to, the regular one, and then blew it up and showed me what they were talking about. At that point in time, within a day or so afterwards, I actually had asked, I think it was
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. Q. William Scully. there. Robert Nichols might have been
I think we asked Wilhelm, as well, Hey, did You know, that type of thing. So
y'all give this?
that's when I found out about the picture, though. And you -- the significance and importance of that picture was fairly obvious to you and your investigators? Glaringly so. Yes.
Did you, ah -- have your investigators talked to Dr. Hart? Yes. Did you have your investigators go back and talk to Dr. Downs, who was the original State expert? Actually, I, myself, and investigators and -went and talked to him to begin with, as well as my Chief Deputy Rushing Payne. And then on a second visit after we discovered that picture and a couple of other things that we felt like Dr. Downs should -- quite frankly, I wanted to know whether or not Dr. Downs testified to what he did on the stand, knowing the falsity of some of it, or whether or not he did not know what he testified to was false. point for me. MR. WHETSTONE: Your Honor, I'm going to That was a critical
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. object to any characterization that Dr. Downs has perjured himself on the stand. THE COURT: answered. MR. WHETSTONE: Or any additional questions Well, the witness has already
that would be hearsay -MR. BECK: I wasn't going to ask --- that Dr. Downs may have
MR. WHETSTONE: told her. MR. BECK:
I'm not eliciting any testimony
about that subject. THE COURT: MR. BECK: BY THE WITNESS: A. I'm sorry. that. BY MR. BECK: Q. A. Yes, ma'am. Sergeant Steelman and Dollarhide met the second time with Dr. Downs, just to be clear. Okay. And you were -- you're familiar with, concerning a meeting that had occurred between Dr. Hart and the members of the District Attorney's Office -- we have had several people testify here Let me just directly answer you on Just ask another question. Yes, sir.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. A. today -- that occurred prior to the Grand Jury. Are you familiar with that meeting? I heard tell of that meeting pretty much right around the time it -- right after it happened. MR. BECK: Honor? THE COURT: BY MR. BECK: Q. I'm going to show you what's been marked as Court's Exhibit 1 and Defendant's Exhibit No. 4, and I would ask you to identify that document. Defendant's 4, Court's Exhibit 1, are xeroxed copies of handwritten notes regarding a meeting with Dr. Hart that go through, essentially, the details of the meeting and make notes regarding Grand Jury and such -- that's your answer -- that we provided in discovery to -- excuse me -- that we provided to you-all, as well as Mr. Whetstone. Where did those handwritten notes come from? They actually came -- they were contained with other handwritten notes. I mean, you have to understand, there was, um, often the case, after a trial things get scattered and shuffled, and that's kind of what this file was like. So these notes, with other handwritten notes Yes, sir. May I approach the witness, Your
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. and miscellaneous stuff, all kinds of stuff, were in boxes, and this came from one of the boxes containing the prosecuting staff's notes, that type of thing. Okay. And, um, and you turned that, those notes
over to the Defense and over to the new team of prosecutors, correct? Yes. And -MR. WHETSTONE: at this time? Your Honor, may I interject
Because -Yes, sir. -- the Court had asked at
THE COURT:
MR. WHETSTONE: what time, earlier. MR. BECK:
I'm sorry.
Sir?
MR. WHETSTONE: them over. BY MR. BECK: Q. A.
At what time she turned
Do you recall when you turned them over? I know I provided them to the -- let me -- Ooo -I'm actually going to have to say that you would actually have to talk to my staff regarding what was provided to y'all. I might have misspoken. I
don't know when these were provided to the Defense or even if we provided them directly to y'all. I
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. believe they were provided to y'all during the time period after our Grand Jury had indicted on criminally negligent homicide and before the superintending of the case. Counsel, Mr. Beck being one. capital murder case. I had met with Defense I was trying a
I had asked for some time And
before I nolle prossed the other murder case. I had talked to, I think in court one day,
Mr. Beck, when you and I mentioned, and I had just asked them to be patient with us, that we would give them everything, I would give them all of the exculpatory information. I don't know if Mr. Dunn
had provided it then, or if it came with the other. So on when it was given to the Defense, you would have to ask my staff who actually managed that. As
far as when it was given to the prosecutors, it was given along with every other document in this case. Boxes and boxes, when the A.G.'s office superintended or they came and picked up discovery, or it was dropped off to them. And in the letter that you wrote detailing what you consider to be exculpatory information, were the substance of those notes included by reference in that list? Yes.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. Q. And now, do you recognize the handwriting on those notes? Yes. And what is the basis for your knowledge of the handwriting on those notes? Well, I will tell you. table. We were sitting around a
And I worked for Ms. Newcomb, of course, Of course, I saw her I was even the
from 2006 to 2008.
handwriting at that point in time.
Chief Assistant at one point in time and saw her notes. And the way it really popped out on me
though, and several of the other prosecutors who I asked to identify them was, on Grand Jury cases we have a form and the prosecutor who reviews those forms makes notes. Reviews the file and makes And I can
notes so that -- for whoever presents.
tell you, I have seen hundreds, and hundreds, and hundreds of those. In addition, I actually went, before testifying -- because I wanted to make sure I was accurate and we have all agreed we all think it's her notes -- but I actually pulled some old leave slips and things of that nature to make absolutely certain and just look at it and make sure for myself that my recollection of her handwriting is
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. Q. accurate. And that appears to be Ms. Newcomb's
handwriting to me, as well as everybody else that was working on the case with us. So you actually, prior to this hearing, have looked at those notes -Yes. -- and compared them to known samples of her handwriting? Yes. And, and what is your opinion as to who wrote those notes? Appears to me that Ms. Newcomb wrote the notes. It was definitely one of a handful of people in that room, and it was definitely, in my opinion, Ms. Newcomb's. MR. BECK: At this point, Your Honor, I
move to introduce as Defendant's Exhibit No. 4 what's previously been marked as Court's Exhibit No. 1, or it can stay Court's Exhibit No. 1, because I understand -MR. WHETSTONE: THE COURT: Improper authentication.
Overrule the objection, and
Defendant's Exhibit 4 is admitted. BY MR. BECK: Q. These notes that have been introduced, do they
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Q. A. Q. A. appear to be in the context of any specific event? Yes. And what would that event be? Based on the contents of the notes you can clearly see that it is a -- it I appears to be a conversation regarding, or detailing a meeting where they are talking about what Dr. Hart has said, what others have said, what they can do strategically with it, what certain elements, physical elements -For example, the notes show where they have been corrected as far as, it's not a bruise on her head but -- you know, things of that nature. is detailing what appears to be the meeting in which Dr. Hart is saying what his opinion is, and then notes in kind of response to that. And I'm not going to go through every single thing, but do these notes say, cause of death, COD, undetermined. Yes. If suicide then we need to know? Yes. No evidence of a struggle. Yes. And you can take something out of anything, but More likely suicide? We can live with it? So it
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. Q. A. A. A. Q. A. Q. had to be certain? Yes. And then, suck at Grand Jury. Did you see that? Yes. Do you have any idea what the context of that statement is? If I can -- I believe it's the reference above it. If I could look at the letter.
(Complied.) Ah, it says, Blood spatter on right hand. at Grand Jury. at time. Suck
Abrasions on hand probably happened
No evidence of --
And so it's the, suck at Grand Jury, is blood splatter on right hand. Was referencing the fact
that Dr. Hart saw blood spatter on Ms. Downs' right hand. Throughout the course of your investigation and re-presentment of this case to another Grand Jury, have you had discussions with members of your office and members of other law enforcement agencies concerning this case? Absolutely. And do you -- and did you have concerns about prosecuting this case as a murder case?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. We made a determination with all involved, the Sheriff, the Sheriff's, you know, higher ups, the Chief of Police, the case agents from both agencies, and every investigator in my office, said we could not prosecute on the original indictment, for one, and that we had no evidence that Mr. Nodine actually shot Ms. Downs. That the
evidence indicated, the evidence we had, what we had, indicated a self-inflicted gunshot wound. based on that, everybody was in accord and all opinions given, which pretty much everybody gave their opinion, was that I could not prosecute on the murder. Do you recall any member of law enforcement expressing to you a contrary opinion? specifically? No, not after the -- our investigation was complete. There was -- I think the Sheriff said Anybody And
that back then, before they knew everything, you know, at the very beginning before everything was known, that he felt like it should go to a jury on murder, but that after our investigation, after we got into the BlackBerry, after we reviewed the blood spatter with an expert, after all those things, after we re-interviewed Dr. Hart and let
R-163
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. WHETSTONE: Q. Hallie, would it -- good morning. Dixon. Excuse me, Ms. A. A. Q. him know about some of the things that we were concerned about, he changed his opinion to us, and after all of that everybody was in accord. Not a
single law enforcement officer said we had probable cause for a murder. And the Sheriff, specifically Sheriff Mack, expressed that opinion to you? Yes. MR. WHETSTONE: THE COURT: BY THE WITNESS: A. Now I did not talk to every single law enforcement officer in the county, obviously. BY MR. BECK: Q. Yes, ma'am. Yes, ma'am. Objection.
I sustain the objection.
And you had just said that Dr. Hart had changed his opinion. say? No. Dr. Downs. MR. BECK: THE COURT: Excuse me. Nothing further. You may cross examine. Is that what you meant to
CROSS EXAMINATION
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. A. A. Q. Q. A. You can call me Hallie. I'm a first name kind of
girl, so it doesn't bother me. Okay. You would describe mine and your
relationship as being relatively amicable; wouldn't you? We have a peaceful, professional relationship. And the, um -- would you describe your relationship with Ms. Newcomb as being strained? I will say that Ms. Newcomb's -- our relationship doesn't have any bearing on this. would like it to, but it doesn't. I was thinking Mr. Beck's questions earlier was suggesting a strained relationship between Ms. Newcomb, or maybe the officers working for you now. Would that be a strained relationship? I mean, I know people
I can't tell you what Ms. Newcomb feels.
obviously -- I can tell you that in my life, I don't have any time to worry about the past. have a lot on my plate and I'm perfectly happy moving on with everything else I have ahead of me. And it would be fair to say that any prosecutor, or defense attorney, would want to know what was on the BlackBerry. Absolutely. Do you have any idea why Mr. Knizley didn't want I
R-165
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. to know? I couldn't -- I have no idea that Mr. Knizley didn't want to know. My point is that he could have checked the BlackBerry himself, could he not? My experience with defense lawyers is that they just sit back and let us -no offense, but they
sit back and let us not do our jobs well, and then point out that we didn't. with them. Hasn't borne true in this hearing. I don't know. -- point being, Mr. Knizley, had he wished, could have had the BlackBerry checked himself. I do not know. I know that the way we did it was The -That's my experience
through channels that Mr. Knizley would not have had. It was specifically through our channels with So, no,
the Federal Bureau of Investigations.
these avenues and the agency in Washington, I believe, or at Quantico, that did the review is -it's, I mean, basically, I was told, are super secret. Same group that did Ben Ladin's phones, I So, no, those avenues
mean, that kind of thing.
would not be open to any private individual, Defendant or no.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. A. Q. A. Q. A. Q. Q. It would be hard to believe that somebody couldn't open this thing, wouldn't it? Very hard to believe. But people were told they couldn't open it? I couldn't tell you that. Were you -- did you read the transcript of the first trial? Some of it. From the Forensic Science expert from Birmingham that said you couldn't open it? I know there was a report from, um -What is his name? -- the guy -- do you want me to answer, Mr. Whetstone? Excuse me. There was a report from Mr. Yawn, I believe, somebody up there at, um -- I don't know if that was the Huntsville lab or the -- I don't remember which lab, but they work, I believe, through O.P.S. I'm not real sure. But Mr. Yawn, Russell Yawn, I And from my Sorry.
believe is his name, had reviewed it.
conversations, and from his report, when he received the BlackBerry there had been five or six attempts already made, and he returned it saying -and I don't have the report in front of me, so I
R-167
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. Q. A. A. Q. may -but basically, he said there had been
multiple attempts already made to open the BlackBerry and if he continued he might lose data, and sent it back. But you don't remember reading in the transcript of the first trial that Mr. Russell Yawn testified that they couldn't open it? The computer lab? He did a report
Well, that's what I'm saying. that said -I mean testifying.
Oh, no, I don't know what all was in those. don't know what he testified to. Okay.
I would assume he testified that he couldn't open it. Or couldn't open it, Mm-hmm. Ah, as it relates to the testimony that you gave concerning this matter, did you ever subpoena the investigation of Mobile County into the impeachment of Mr. Nodine as to what evidence Mobile County had relative to his stalking? No. I had a couple of conversations, and we had,
um, volumes of information from the impeachment hearing. In fact, I actually -- apparently,
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Ms. Newcomb had got it. Because the impeachment
hearing occurred a long time before I got into office. And we had the notes from Niki Patterson,
who worked at the Mobile County District Attorney's Office. I believe she was a Chief's Assistant
D.A., and we had her notes from everything that went on. And yes, I absolutely reviewed her notes
of what occurred during the impeachment proceedings, but if there is evidence, no, not unless it -- unless it existed in the file that Ms. Newcomb had, I wouldn't have had it. Nor would
I have known to look because we had Ms. Patterson's notes. Were you aware of how many times Mr. Nodine had allegedly injured this lady prior to this fatal incident? Okay, I was aware of, throughout the course of this investigation, there were -- like any, as you well know, a lot of chatter about domestic violence, a lot of people saying it. Um, but like
in a lot of investigations, when you -- and, in fact, Robert Nichols and William Scully said this to me -MR. WHETSTONE: Your Honor, I object to
hearsay from anybody else.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. THE COURT: BY THE WITNESS: A. Just, it was consistently found, is what I will say, that when you went to the witnesses who actually were the people that said this had happened, that it kind of blew out in smoke. I All right.
mean, just like the first go 'round of the trial, you couldn't get somebody who had seen this occur. I will say that we ended up coming up with more than one incident, one being in November of 2009, a football game when they were down in New Orleans that we -- I believe, based on what I have seen, to have been a domestic violence incident. And there was an incident at Mullet Toss that year that has been charactered as domestic violence, and in my opinion, calling a female a name that she was called, which was verified, was domestically violent. seen the -would say. You were aware that there was a police report made in New Orleans, weren't you? I don't know that I have seen the police report. I was aware in 2010, actually there was an email where he essentially admits to her beating him up But no one that we asked had
any kind of physical abuse, is what I
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. and, you know, he basically excuses his behavior by saying that she called him fat, and she made a reference to erectile dysfunction. Right. And at that point in time, my understanding is there was violence. And I think his email, in my
opinion, his email to her about that incident shows that he had struck her and been violent to her while in New Orleans in November of 2009. make that clear. Did that indicate that she had a -- did you find evidence that she had a fear of her life from him after that incident? No. In reviewing the emails after the fact, in Let me
reviewing their communications even to the extent that, you know, Ms. Downs was in a -- it was a terrible, toxic, terrible relationship. But from
what her emails to him, even to the extent that when she was telling her family that she was running away from him, there were emails to him that invited him to come up to her family's house with her. So far as what she was communicating to him which would be pertinent to stalking, no, I did not find evidence of that.
R-171
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. A. A. Q. Q. Do you know a person by the name of Emily Simmons? Yes. Have you taken evidence from her relative to what happened in this case? I believe -- and you will have to correct -- I'm not sure. We had a few folks -- yes, there has
been evidence gathered for her, without going into the piercing the Grand Jury and that kind of thing. But yes, Ms. Simmons has made multiple statements to multiple people at multiple times. She didn't work for Mr. Nodine, did she? Not that I'm aware of. have in the past. I don't know. She might
There were several friends that
Angel had, of course, as part -- they had mutual friends and everything else. There were several
friends that the relationships seemed to overlap. I do not know at the time if one of them worked for, had worked ever -- but to my knowledge, there was nothing in my file that said that Ms. Simmons worked for Mr. Nodine at the time this all happened. May be my mistake. up. Do you know a person by the name of Mandy I'm not trying to trip you
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Gordan? I recall the name from reading her statements, I believe. I do not --
Did she give you a statement that indicated to you anything that may happen to Angel Downs by Mr. Nodine? Mr. Whetstone, you have to understand, I had -- I have reviewed over probably 60 or 70 individual statements, and then multiple statements of individual people, and then some of those people gave multiple statements. I can tell you this,
that if you have the interview I will be happy to look at it, but I know for a fact that my investigators and the Sheriff's Office attempted to talk to every single person and we pulled everybody in, as well as Ms. Newcomb's office the first time, and nobody was able to testify as to having witnessed from firsthand, stalking or that type of thing. had. Do you know of an instance where he went to the house and stayed out all night and wouldn't be let into her house? Do you remember that incident? That was one of the bigger challenges we
Back one of the earlier times they had dated, I want to say it might have been in '08, or could
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. have been earlier than that, Ms. Downs was dating a man. And if you will give me a minute, I might be
able to come up with his name, but they're all going to blend together. I can come up with it. She
But she was dating another individual.
and Mr. Nodine had split up temporarily, turned out to be temporary. They had split up and Mr. Nodine
came to the house and she had the new, um, boyfriend with her in the home. And he was, I
believe, intoxicated and was banging on the doors and trying to get her to let him in, and crying, and doing all that, and slept in his car. And the boyfriend, the new boyfriend, my understanding is, got fed up. I don't know that I don't
there was a police report from it, though. believe there was.
You are familiar in that case that there was a new boyfriend this time, don't you? Actually, no, I was not. Well, I mean, I knew I knew that
that -- let me -- boyfriend, no.
Ms. Downs had been, was moving on to some extent and was starting to date other people. It wasn't
the first time, of course, but yes, this would have been another point in their relationship when Ms. Downs was beginning to date other people, yes.
R-174
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. Q. A. Q. A. And that he found out about it? There are text messages that indicate that he is aware of her dating others. I'm trying to think.
This would have been probably a week or two maybe. Before the death. I think it may have been longer than that. let me characterize the time, but there was a statement. And again, its what you can infer. It Don't
is not like he said, I know you're seeing, Blank. I hear you're going out. Oh, you've moved on.
That kind of thing, so, yes. Are you familiar that Mayor Craft of Gulf Shores had introduced Mr. Nodine to the new boyfriend? On the golf course perhaps? recall. Here's what I
There was an email from Mr. Nodine or a
text message that we recovered from the BlackBerry. And my understanding --I do not know from Mr. Craft, but my understanding is, they were all out playing golf together. I think this came from the first transcript of the first trial. I didn't know if you had gone I was just asking you
back and seen that or not.
-- that occurred right before the -I believe --- death.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. A. Q. A. I do believe I have heard that. What I tie it to
is the text message where Mr. Nodine text messages Ms. Downs and makes a reference. I mean,
apparently he's there at that point with -- gosh. Was it Bonduran, or Beauxduran? I can't remember.
Was it your review of the evidence that Mr. Nodine would be explosive in his personality when he didn't get his way? Some people said that, yes. We didn't -- I did
not have -- other than the documented instances that I have mentioned to you already, I did not have before me documented instances. But, yes,
that was something that Ms. Downs' friends particularly, regularly said. But then we had
things like that Aaron character who was in bed with her that characterized it totally different. What about the Sheriff of Mobile County? I don't -- I'm not aware. the Sheriff of Mobile County. Have you had any incident relative to a BP incident in Mobile where he was escorted away? I heard something about that, but by that time I believe y'all had superintended the case, maybe. Was it something -- well, the bottom line is, I heard something about that through the media. I haven't spoken with
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. Were you familiar with any Florida incidents concerning domestic violence of Mr. Nodine in the state of Florida? To be clear, when I received the file that was already there. There were, I can't even tell you
how many random accusations from various people that -- let's just say Mr. Nodine is not a popular person, okay? And there were lots of accusations.
There was like a whole pamphlet or binder given by some lawyer that went through all kind of stuff. mean, all kinds of accusations, and rumors, and this and that. The way I handled that was, those that had been in the office before that had worked on the case, I asked them, because it existed before the first trial, Did you run all this down? nothing came of it. further. Yes, I
And so we didn't pursue it any
I had been told it had already been
looked into. My point is, did you ever receive any documentation from the State of Florida that Mr. Nodine had been involved with a domestic violence situation in the state of Florida? From the State of Florida -In the state of Florida.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. A. Q. A. Q. A. -- are you asking? The police department. I did not receive that documentation to my knowledge. with -Have you ever seen it? No. Okay. Now, we recently received a box this past Whether it was in that file to begin
week from you that contained some additional information, and you forwarded to me some stuff Friday, I think, of this week, that you wanted me to make sure I had. There was a box in my office that when the AG's office came through, they said they didn't want it. And so -- but when I -- I didn't know about that until last week and when I found out about it, I about flipped my lid and made sure it got to y'all. Contained in that box was an interview from the State of Florida involving an inmate who was with Mr. Nodine in the state of Florida, Santa Rosa County, I believe. That was -- that -- while, yes, that was provided to you recently, that was not part of the box. Oh. The box was evidence that had not -- that was
R-178
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. A. Q. Q. A. Q. A. Q. here before the first trial that was part of Ms. Newcomb's file, that was not used at trial the first time. And it had been given to Trent Wilhelm
in the office, and he had put it in the D.A.'s -I'm specifically referring to a report that your investigator did. Right. They went to Santa Rosa County. Yes. And forgive me. I just wanted to make That
clear that that wasn't part of the old stuff. was the new stuff.
I appreciate that because I didn't know if it was or not. Right. But in that report it talks about conversations between that inmate -Yes. Absolutely.
-- to Mr. Nodine. Mr. Hassman. Yes.
And there is a statement from that inmate that indicates that Mr. Nodine has complicity in the death of Angel Downs. The inmate reports that along with other things, yes. Yes. But he reports what Mr. Nodine told him?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Q. A. A. Q. A. Q. A. Q. A. Q. He reports what he says Mr. Nodine told him, yes. Okay. I'll take that, but isn't that true of
what every witness does? Particularly jailhouse snitches, yes. And people who use -- and have you ever used people who are co-defendants? Federal government
does it all the time, don't they? In general, absolutely they're used. Absolutely. Absolutely. Do you know whether or not this snitch, or person who reports this, asked for anything in return? I am unaware of that. Dollarhide. Okay. Do you remember the letter you received You'd have to ask Dan
concerning a person in the Baldwin County jail that had information? Yes, sir. And you contacted me -Yes, sir. -- or the Attorney General's office. who it was. I think both. Both. one? And we told you we would interview that I forgot
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. Yes, sir. Are you familiar with another inmate in Santa Rosa County that contacted your office, and that your office never returned, or got back with that inmate? No. Actually the other inmate you're referring
to, the information we were provided was from a DEA agent, and you would have to ask Mr. Dollarhide, because he's the one. But multiple, multiple
messages and attempts -- we didn't even know who it was. We didn't have any information, just that And
this person supposedly had information.
Investigator Dollarhide, at my insistence, he beat his head up against that wall for weeks, trying to get this supposed agent to call us back so we could go interview them, and we never heard back. Never
could figure out who it was to go interview them. Now, that's -- again, you'll have to ask Investigator Dollarhide the details. That's what
my understanding is, and I do know that they attempted to contact her and never got back. You don't know what that inmate told the DEA, or what they told the Attorney General's investigators? Absolutely not.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. Q. A. Q. Are you familiar with Mr. Nodine's statement that he made the night, I guess or maybe the next day, whenever this occurred? I'm familiar with the notes, essentially, yes. mean, I wasn't there, but I have been in regular contact with the investigators who handled -Do you believe it's plausible that Mr. Nodine waved at Angel Downs while she stood in the roadway after she had been shot? MR. BECK: is plausible. THE COURT: BY MR. WHETSTONE: Q. My point is, if that were true -MR. BECK: Objection. It's still presuming I sustain the objection. Objection to what she believes I
the same question he just asked. THE COURT: I sustain the objection. Yes, Your Honor.
MR. WHETSTONE: BY MR. WHETSTONE: Q.
Did you consider whether or not his statement had anything to do with his possibility of guilt? Absolutely. And did you find inconsistencies in his statement that he gave to the Sheriff? His statement --
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. Q. Q. A. Q. A. Q. A. Yes, ma'am. -- and his actions -Yes, ma'am. -- after, and everything you have asked is -Yes, ma'am. -- exactly why we gave it to a Grand Jury, and he was indicted. So, yes, absolutely I believe that
his statement indicated that he was -- it was self serving, and I do not believe it was truthful. That's my belief. Did you review the -- it may have been the iPhone. I forget whether it was an iPhone or a
BlackBerry, but -There's several phones that were over here, yes. -- relative to his last conversation with Angel Downs. Now, are you going to hold me to milliseconds -No, no --- or -No. I --
Because they are very confusing and -No. No. COURT REPORTER: One at a time.
BY THE WITNESS: A. I'm very familiar with the timeline. Extremely
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. A. A. Q. so. BY MR. WHETSTONE: Q. Let me make sure I have got it down. Did you
arrive at a time that you believed Angel Downs was shot? Can you give me a base time? Because --
Let me give you what I believe to be, if I may -make sure she can identify it. the 911 call at 7:53. We believe that's
Does that help you? Let me look back.
That sounds -- hang on.
(A brief pause was held.) BY MR. WHETSTONE: Q. Just for the purposes of getting her time straight. Yes. And I -- that's -- I can't -- that's not
going to be right down to the minute or second because some of what you will find in our reviewing them is, like even the forensics download from her BlackBerry shows a little bit different time. some in different timeframes than, say, the 911 call. So there is a little time discrepancy in all And
of the different sources of times, but -Okay. -- essentially, yes. I mean, the way they It
narrowed it down -- again, this wasn't me.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Q. would have been Investigator Steelman and the others that were involved -- narrowed it down to about a six or -- five or six minute window, is what they were showing. So there was a text message that Stephen Nodine is here? Yes. And before that, there was a message that says, How do you shoot somebody to stop him from coming in, wasn't that right? Telephone call, yes. Telephone call. stop him? So you got a message, How do I
And then a few minutes later, Stephen
Nodine is here. Yes. And three minutes later Angel Downs is dead. three minute -MR. BECK: Is that question, Your Honor? Yeah. Asking if this is And
MR. WHETSTONE: not true. BY MR. WHETSTONE: Q. A.
Stephen Nodine is taking off in his truck. Go back to the first time. We do get --
Mr. Whetstone, let me just answer it. Mr. Nodine is calling Angel Downs and we know
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. that he is heading back towards her house at that time. Angel Downs, during this same timeframe Sister
makes multiple phone calls to sister. eventually speaks with her. no.
They -- or leaves --
She leaves a voicemail, perhaps, I think on I'm sorry.
sister's phone, or talks to the sister. I get all confused.
Talks to sister about, if somebody is breaking in where do you shoot them? Sister asks about
whether it's -- anyway, there is this conversation. Within minutes there is a text message, Stephen Nodine is here, from the BlackBerry that was next to her bed. And then, yes, within -- I
mean, I want to say it was between four minutes, or three minutes or less. less. dead. Do you know if Stephen Nodine ever called Angel Downs after she was dead? According to my phone records, he did not. He did not. Do you find that flight from the Actually, may have been
May have been two or three minutes, she's
scene is evidence of guilt? MR. BECK: question. THE COURT: I sustain the objection. Object to the form of the
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. A. A. Q. A. Q. Q. A. MR. WHETSTONE: BY MR. WHETSTONE: Q. Do you believe that Mr. Nodine fled from the scene from the evidence? Our evidence is, yes, Mr. Nodine -- I mean, um, multiple witnesses -- fled from the scene, yes. Did you time how long it took him to get from Fairhope to Fort Morgan Road? Yes. Less than 30 minutes? Yes. Do you know how many stop lights and four-way stops are on that way to that route? If that's what they -- there is no way I can say. I mean, it depends on if you go down County Road 10, over to 49, over to 54, over to -- I mean, there's like, as you well know, back roads, multiple ways. But it takes -Yes, sir, Your Honor.
The route described by Mr. Nodine. I don't know about red lights. Multiple -- from -Let me see, Hallie. THE COURT: I'm not trying to -Let me think.
What has that got to do with
the price of tea in China with respect to this hearing?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. MR. WHETSTONE: Shows you how fast he got And that
from one place to another, Your Honor. the flight was extremely fast. high rate of speed. THE COURT: BY MR. WHETSTONE: Q. A. Q.
Averaging -- a
That's the point.
Well --
And whether or not you took that into account? Absolutely. Okay. Yes.
Your testimony is that these notes that
the Judge let in, were the notes of Judy Newcomb. Appears to be her handwriting to me. Are you absolutely sure, Hallie? I'm not a handwriting expert. It was my opinion,
based on looking at not only these but also her notes on various documents that we actually checked to make sure, as well as the other people involved in the case at the time, even her employees identified those as her notes. Do you surrender your notes to the Defense? Handwritten notes of your theories of the case? MR. BECK: I object to the relevance. It's work product.
MR. WHETSTONE: THE COURT: BY THE WITNESS: A.
Overrule the objection.
If it contained exculpatory information,
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. absolutely. BY MR. WHETSTONE: Q. A. Even your notes? If I wrote down exculpatory information I would do one of two things. I would do what I have done
in this case, and multiple others, which is, instead of providing my handwritten version, I have typed it out and said, this is the information you need to know. Or I have actually given my notes or If it's not in another
investigators' notes.
written format I have given that, when it contains things of that nature, yes. My point is that sometimes notes are conclusions and you're wondering and you're writing down things that later on you change your mind about. And that would not be discoverable to me. not why we provided these. Okay. Now, if these are not the handwritten That's
notes of Judy Newcomb, do you know who they may be? It is obviously one of the prosecution team who was in that meeting because it was obviously regarding their discussion prior to Grand Jury. But you don't, if it's not the notes of Judy Newcomb. It looks like her handwriting to me, and it is,
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Q. like I said, it is in our file. It is regarding --
and from the content it was very clear that it is somebody on the prosecution team. That is in our
file along with other notes from prosecutors and Ms. Newcomb, and it was plainly a discussion with Dr. Hart, mentions Dr. Snell, and even talks about preparing for Grand Jury. tell you about those notes. At the top of the notes are stars. those stars? No. Okay. If suicide, then we need to know. Did you make So that's what I can
That's right. That would be an indication that whoever was writing these notes wanted to review whether or not they believed it was suicide? At least at the beginning, yes. Yeah. MR. WHETSTONE: Honor. THE COURT: Take your time. Thank you, Your Honor. I'm almost through, Your
MR. WHETSTONE:
You all right? THE WITNESS: Now I know what those Put a
witnesses are always talking about.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. Q. A. A. Q. A. A. Q. cushion here. MR. WHETSTONE: hard chair. BY MR. WHETSTONE: Q. Did you find anything in the area concerning that she was unhappy that day? Wait. Anything -Any evidence that she was unhappy, Yes. Your Honor, it's a
Anything.
from the emails? From the emails and text messages? Or any of the evidence, that day. There were conflicting reports from the various people there. Mr. Whetstone, can you -- I mean, by
unhappy, do you mean -I was wondering if you found a suicide note or -Oh. No.
-- an, I'm unhappy with my life, or -No. Sorry. Yeah. No. Absolutely not. No. I understand what you're asking now.
I didn't.
You had indicated earlier that you felt like that he was responsible, that somebody returned the charge, a Grand Jury. Yes. I feel like -- I believe Mr. Nodine should
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. A. A. Q. face charges, should face a trial and let a jury of his peers determine his guilt or innocence of what our Grand Jury indicted him on, with all of the evidence and not part of it. should happen. is designed. And your conclusion was that it was a homicide but not a murder? Wasn't my conclusion. It was the conclusion of That's what I think
I think that's the way our system
those investigating and the Grand Jury's conclusion. Okay. Yes. And not a murder? Excuse me. a death case. Wait. Going back -- I'm sorry. It's But that it was a homicide?
Let me get technical with it.
Homicide being the death at the hands of another? Is that what you're asking me? definition of homicide? I'm sorry. Like, the technical
Because, no, obviously.
I thought you said you indicted him
for criminally negligent homicide. But under the theory that a person can be held responsible under the causation aspect if, but for that person's actions, without a superintending or intervening cause to overbear the will, and all
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. BY MR. BECK: Q. A. The Grand Jury considered murder? Without -- let me answer it without -- making sure I don't violate any kind of issues with the Grand Jury proceedings. My office submitted all -Q. Q. A. that good stuff, but for that person's actions the person would still be alive, for example. overly simplify. I understand. That's what -- that was one of the charges and the options that we presented to a Grand Jury and that's what the Grand Jury decided he should face trial on. Okay. MR. WHETSTONE: No further questions. To
yes, my office submitted murder charges and it was no billed, which is part of the public record. Yes. Yes. And I believe that you had made that known
that the Grand Jury considered murder, and manslaughter, and criminally negligent homicide, and returned no bills for murder and manslaughter; is that correct? Murder, two different theories of manslaughter, I
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. believe, and criminally negligent homicide, as well as stalking. Yes, all of those were submitted.
You have been asked a multitude of questions concerning bits and pieces of the evidence, or, or, or supposedly evidence. What were the reasons that
you, and your office collectively, felt that this was a self-inflicted wound? Can I refer to, actually it's something y'all all have. It's my notes that I sent to y'all about -MR. WHETSTONE: but -BY THE WITNESS: A. Essentially, everything -- we started with what was known at the time, the opinions of others known at the time. Okay? Your Honor, I object if we I don't have them here,
MR. WHETSTONE:
are going to go back through the trial, as far as it being germane. MR. BECK: Well, it's reply in kind to the
questions he asked on cross examination. MR. WHETSTONE: I asked on cross because he
brought a certain question up with her on direct. THE COURT: BY MR. BECK: Q. Specifically having to do with what has been I sustain the objection.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. characterized as jailhouse snitches, do you consider the evidence and testimony from a jailhouse snitch a little bit closer than you might from a different type of witness? We absolutely start with skepticism with jailhouse snitches for very good reasons, and it's only responsible to do so. We begin our analysis
of their credibility with, first, what did they say? You assess whether or not what they said is For example, when they -- Mr. Hassman
accurate.
gave a totally -- said that Angel was picking her corn out of her teeth with a gun, saying that Nodine said she shot herself in the mouth, which totally discredited Mr. Hassman, of course. So you
start with that, Is the information they have given you credible? And then you look for, of course, other reasons to be bias. If we can establish that we
believe they're credible, it's up to the Defense to go at them from there. And is it common to get letters from people from the jail claiming to know something about a crime? I have gotten -- on this case alone, we have gotten emails and letters from everything from, a different County Commissioner killed her, to -- in
R-195
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Q. A. A. Q. Mobile, to tell me -- I mean, yes. exceedingly common. It's
And the more high profile, and
the more inmates think we're invested, the more jailhouse mail we get. And in this particular case, do you have an estimate as to how many jailhouse snitches have tried to contact your office or other investigators to offer testimony? Upwards of ten. mail. Now, to be clear, that's not all
Some of that is grandma calling saying, I
don't want to tell you his name until you tell me what you can do for him and if you do -- that kind of stuff. Right. But, yeah, I would say ten or more have reached out at some point since I got in office, yeah. But clearly, the concern would revolve around the motivation for someone in that position to hopefully get something in return. Their concerns were motivation, but, of course, depends on the credibility of the statement and the indicia of reliability within the statement itself. So, yes, there is questions regarding motivations though, Mr. Beck. Yes.
And certainly, if you had one person who was, for
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. instance, facing capital murder charges in the state of Florida, would that cause you a little pause before considering their statement? you will reject it completely. It would be one of the things I look into, yes. It would be one the factors. But if it bore Not that
sufficient, you know, details, that there is no way he could have known -Now, on this case it's going to be hard because trial was tweeted. But, yes, if he had
indicia or reliability, I can't say that I wouldn't put him on the stand if I believed he was truthful, but the fact that he was charged with capital murder would affect my decision. Or had just recently pled to 262 months on a federal conspiracy charge? Yes, that would -yes.
The Grand Jury that returned -- the first Grand Jury in this case, was, ah, approximately two weeks after the death of Ms. Downs, would you agree with that? It's my understanding, yes. At that time were you, and Ms. Newcomb, and one other person involved in a political race seeking the office of the District Attorney?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Yes. And what was the date of the primary? June the 1st, 2010. been longer than that. And was that within one week of the Grand Jury, or approximately one week after the Grand Jury returned the indictment in this case? I believe so. MR. BECK: Nothing further. I have no further Gosh, it seems like it's
MR. WHETSTONE: questions. THE COURT: and be excused. THE WITNESS:
Thank you.
You can step down
Thank you, Judge.
(Witness excused.) MR. BECK: Defense. THE COURT: All right. Is the State going Nothing further from the
to present any evidence? MR. WHETSTONE: on Ms. Judy Newcomb. THE COURT: All right. JUDY NEWCOMB, the witness, having been sworn to tell the truth, the whole truth, and nothing but the Yes, Your Honor. We'll put
R-198
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. Q. A. A. Q. A. Q. BY MR. WHETSTONE: Q. A. Q. What is your name, please? Judy Newcomb. And Ms. Newcomb, did you hold political office in Baldwin County? I was the District Attorney in Baldwin County. And when was that, Ms. Newcomb? From 2006 to January of 2011. And were you with the District Attorney's Office prior to that time? Um, I was initially employed in the District Attorney's Office in -- you know, I thought I'd never forget this, but either October of 1992 or '91. At the moment I'm not totally sure. truth, was examined and testified as follows: DIRECT EXAMINATION
And in what position did you eventually rise to in that office? Chief Assistant. Do you remember how many years you were Chief Assistant? Became Chief Assistant in December of 1994. Did Ms. Dixon work with you when you became District Attorney? I hired Ms. Dixon initially as an Assistant
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. Q. A. Q. A. Q. District Attorney. And for a brief period of time
she was in the position of Chief Assistant District Attorney, but Ms. Dixon had a lot of family issues during that time period. And did she leave the office? She did leave the office. So you're familiar with her personally? I am. Okay. And, um, while you were in this case --
this case was tried when? In December of 2010. And right before that case were you in another case? Troy MacDonald. We did that capital murder case I think
and this case literally back to back.
there might have been a day or two in-between. Did you depend upon your investigators to provide a lot of the discovery since you were in trial? Well, I mean it was a team effort. And it was
explained to Mr. Knizley when he did a motion for a speedy trial, the fact that we were still investigating this case, and if he wanted to insist on a speedy trial, that he would be getting things up until the last minute. And, of course, once
that I was involved in Troy MacDonald's case,
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Mr. Scully and Trent were primarily responsible for dealing with him regarding discovery. And
Mr. Scully and Trent Wilhelm -- well, I had also, but probably the primarily two people dealing with Mr. Knizley, turning over discovery during the whole time period. Did you have a -- under the circumstances, did you have an amicable relationship with Mr. Knizley? Oh, yeah. I mean, he had trouble opening -- we We did everything we could to
got him software.
keep the case on track for him. Did you ever try to restrict any evidence that Mr. Knizley would receive? No. In fact, to avoid some of the issues that
they're alleging here, we provided open-file discovery in that case, which is not something we typically do, because we knew we had a limited amount of time. There was a lot of documents, so
Mr. Knizley had access to the complete file. Did the election that Mr. Beck alluded to cause any friction between you and any of the officers that work for Ms. Dixon? The particular -- well, the Sheriff's Department was definitely behind Ms. Dixon. And, in fact, you
know, as I have told you during this investigation,
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. and I have asked for you to look at the phone records, they were literally calling Ms. Dixon in the middle of our meetings and interfering, actually, with the investigation. In the case that we have, when I was -- when you were still D.A., did I make an offer to try the Nodine case if you couldn't try it? At the time that we thought that we were doing, Troy MacDonald and Nodine and a number of -Well, actually what happened -- and Ms. Dixon has forgotten this -- is, in the fall of 2010, we actually provided her an office in Fairhope, a secretary. And once a Judge would continue a case,
we sent those cases to Fairhope for her and whoever she wished to review them, along with, you volunteered your services to help in any sort of transition of the larger cases, and we also tried to keep you informed on some of the larger cases because it had been indicated that she had agreed to work with you. And she ultimately chose not to
avail herself with that. But my point is, there's been some friction. Friction? After the election. (No response.)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. A. Q. Q. Q. A. Q. A. Friction. Friction. was friction. Okay. I mean, I don't -- you know, I mean, I would say the friction was, our office offered to do what needed to be done, and those offers were rebuffed and yet we were complained about. friction, yes. And what I'm trying to get to is, there are three allegations made today that I would like to get into -Okay. -- that Judge Partin is going to rule on. the picture of the injury on the hand. One is So if that's Yes, I would guess you would say there
I think it
is shown in Defendant's Exhibit 1, I think. Okay. And it is blown up from this picture. All right. Have you ever seen that picture before? No. Did you ever tell anyone to hide that picture from Mr. Knizley so he wouldn't be able to see it? No. It's my understanding that all of the
pictures were given to Mr. Knizley.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. My point is, you haven't seen it before? I haven't seen that picture, no, at all. Okay. Did you ever instruct any officer not to
give Mr. Knizley any relevant pictures? No. got. He was given all -- everything we got, he He actually got more than we got.
But my point -- because this was the picture they introduced. This is Defendant's Exhibit 3. Would
you take a look at it?
Was that the -- some of the
wounds that were described by Dr. Downs? Um, I mean, I'm assuming. If this was one of the
autopsy photographs in there, um -- I mean, I'm sorry, but these photographs, I'm not saying -they just -- that's odd to me. almost looks like a red -Um, I don't know what -- I mean, I didn't see these and I'm assuming these are the autopsy pictures. Okay. Did Mr. Knizley make a lot to do about But I mean, it
this picture, or the fact that -- on cross examination of Dr. Downs? See, the reason I'm having difficulty is, my recollection, my recollection is he mainly talked about this finger here. And he and Dr. Downs got
into a discussion about whether something was a
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. Q. A. A. Q. A. Q. Q. freckle or a cut. Was it hard to determine if it was a cut or something else? No. Okay. She had a cut and a freckle. So -- okay.
But the bottom line on the pictures, you never withheld any pictures from Knizley. (Shaking head negatively.) Did you intentionally find this picture before trial and present it to Dr. Downs as being a defensive wound when you knew it was not? No. Actually, I mean, this is the first day I
have seen these pictures, and I think y'all need to look at some other pictures. Because we did try to
look at other pictures that we had prior to that time and we didn't observe anything. And what I'm trying to get from -- the question is, is, did you know that one of those injuries was before the death? Did you withhold that
information and pretend that it was done after the death in order to get a conviction? No. Secondly, the BlackBerry, did you try to open the BlackBerry? We tried desperately to open the BlackBerry.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. What all steps did you take to open up the BlackBerry? You need to understand these are all done by my investigators and reported to me. But we went even
from FBI to REM, to our State Forensic Computer Lab, which is run in conjunction with the Secret Service. And we certainly felt if anybody could
open the BlackBerry, the Secret Service would have that. And we were informed by all of those, the
FBI, DTS, the State Forensic Lab, the company, that the BlackBerry could not be gotten into. Now, this is gratuitous, but you need to remember in 2010 -MR. BECK: Object to the narrative. Okay.
MR. WHETSTONE: THE COURT: BY MR. WHETSTONE: Q.
Just ask another question.
Was the BlackBerry -- was part of the issue whether or not the BlackBerry might lose some of its peculiar characteristics or trade secrets? Well, in 2010 BlackBerry was in the midst of a fire storm internationally about protecting data on their phone. And there were all sorts of -I'm going to object to her
MR. BECK:
testifying about --
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY THE WITNESS: A. Well, I mean, this is the -MR. BECK: about. BY THE WITNESS: A. -- point, why couldn't the -MR. BECK: Honor. THE COURT: Well, just -- everybody can't I'm making an objection, Your -- what BlackBerry was concerned
talk at one time if you want a record. Now, what was your objection? MR. BECK: My objection is that this
witness is testifying as to the company position of BlackBerry concerning problems or fears that they had with -THE COURT: Well, the question had
something to do with the character -- read the question back, please, ma'am. COURT REPORTER: "Was the BlackBerry, was
part of the issue whether or not the BlackBerry might lose some of its peculiar characteristics or trade secrets?" THE COURT: All right. I don't think the
answer was responsive to that question. MR. WHETSTONE: Let me rephrase, if I may,
R-207
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. Q. A. A. Q. Your Honor. BY MR. WHETSTONE: Q. A. Q. You have been sitting in on this hearing. Mm-hmm. And did you hear the testimony that my son, J.D., called REM? I did hear that. And that REM called back and said, we'll have legal call us back. Call your office back?
I don't know if that's what he said, but that was my understanding of what happened. Legal, being a different group of people than technical? Yes. Which leads one to believe that technically it can be opened? MR. BECK: Object to leading. Object to
what the testimony -THE COURT: I sustain the objection. Yes, Your Honor.
MR. WHETSTONE: BY MR. WHETSTONE: Q.
What do you conclude about the fact that legal wanted to call you back versus technical? Well, you know, as everybody has said, it's technology, and somewhere on this planet there were
R-208
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. Q. A. Q. A. Q. A. Q. A. A. Q. Q. people that can get into that phone. It was And legal
whether you had the technology to do it.
are the people that said there would not be access to that phone. Okay. phone? He did. Did he ever ask you to run it by anybody other than the people you have tried to run it by? He did not. Did you inform him that you couldn't get it open? To the best of my recollection, he and I talked about every aspect of the case, and he knew that we were having difficulty getting it open. Okay. Yes. Did you use your best efforts to open the phone? We did. The third issue, Dr. Hart. testimony around Dr. Hart -I do. -- and the meeting that you had regarding the autopsy? Well, actually a meeting was called that day because the Grand Jury was coming into session, and Do you remember the Did you want to open the phone? Now, did Mr. Knizley have access to the
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. Q. A. Q. A. Q. A. Q. we asked Dr. Hart to join a number of people that were going to be witnesses at Grand Jury to come in and review the case. And it was to talk to him
about all the evidence that we had gathered since the autopsy, with him there and Dr. Smell. Who all -- you don't have to tell me all who was there. I'll shorten this, if I may. Did you have
some of your staff with you? I did. Including John Stewart? I did. Were there other officers there? I would say that there was probably -- just about every officer that had participated in the investigation was there. I mean, there might have
been somebody that wasn't, but the room was full. Was Mr. Nolfe there? He was. Did anybody at that time, did they know what theory you were proceeding at that time in this case? I'm sure some of the people knew. Did anybody object to it? Not to me. Did you at any time threaten Dr. Hart or make any
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. A. A. Q. type of inappropriate pressure to get him to change his professional opinion? No. Did you give him any evidence that you thought suggests he may be wrong? Well, not that he was wrong, because my understanding in my conversations with Dr. Hart he had always said undetermined, but statistically to him, it looked like a suicide. Okay. Yeah. So could you live with undetermined? But what we wanted to show him was facts
that he did not have up to that time, and ask him if they would make a difference to him, one way or the other, to be suicide or a homicide. Did you find a wound behind the head that was not photographed the first time? Well, that was our understanding. I know that
Dr. Hart testified at trial that he had, in fact, documented that wound and there were photos. our -- when he initially provided -Photos that he initially provided to us did not include those photos, and the photos that we later received didn't appear to have been taken at that same time. But, yes, I mean, it was sent back But
because we saw the injury to the back of the head.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. Q. A. Q. When you say, "we saw it," did someone examine the body, or photograph the body? It was at the coroner's office and I'm not sure who noticed it. So it would have been somebody in law enforcement? It would have been somebody in law enforcement. That found the wound that Dr. Hart had not found, or that you didn't know he found? Well, you know, I mean, that was not documented to us in what he had told the -- I mean, there was no written thing other than pictures, what he had, you know, communicated. That wound had not been
mentioned, nor did we, in our position, have a picture of it. Like I say, at trial he said there
was a picture of it. Did you ever withhold -- let me rephrase that. Did anyone of your staff make any accusations against Dr. Hart, or -- I think the term has been used several ways, one that it was kind of loud. Dr. Hart described it a little bit milder than that. How would you describe the meeting and the
discussions you had with them? Well, you know, there was a lot of people in the room and different people were not always talking
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Q. to Dr. Hart. They were at times talking amongst
themselves, as well. But as to Dr. Hart, from what I witnessed, people were simply, you know, bringing up facts in their different parts of the investigation that they saw, or facts that they saw, asking Dr. Snell and Dr. Hart if they would consider it, asking if he needed more information, asking him if he would go to the scene. And I'll tell you there was some frustration because Dr. Hart in that meeting didn't want to go to the scene, did not want to appear to put any more consideration into the case. Did you withhold any evidence in this case that would be exculpatory, to your knowledge, from Mr. Knizley? No. Did you offer Mr. Knizley that you would agree to a continuance, if Judge Partin, of course, agreed to it, if he needed more time? Yes. Okay. Did you rush this case to a Grand Jury in
order to -- for political purposes? No. Okay. There have been two witnesses -- I've
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. A. Q. forgotten the officer's first name -- there he is, and Ms. Dixon. Exhibit 4 -MR. WHETSTONE: court reporter.) COURT REPORTER: admitted. BY MR. WHETSTONE: Q. 4. Defendant's 4. I want you to look at Defendant's Defendant's 4 was Or Exhibit 1? (Directed at And I'm referring to Defendant's
Can you tell your own handwriting, Ms. Newcomb? Mm-hmm. I want you to look at that and tell the Court
whether or not that's your handwriting. This is not my handwriting. Do you have any idea whose handwriting that's? No. Do you have any idea when it was put in the box? No. MR. WHETSTONE: THE COURT: Pass the witness. We're going to
All right.
recess court for an afternoon break and reconvene at, um, a quarter of three. (Recess held.) THE COURT: MR. BECK: You may cross examine. Thank you, Your Honor.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. Q. A. Q. A. Q. A. BY MR. BECK: Q. All right, I just want to make sure we're clear. Defendant's Exhibit No. 4, the handwritten notes, you're saying that's not your handwriting and you did not write those notes? That's correct. Is that a definite, or -It's a hundred percent, ten thousand definite. don't use the word "suck," either. All right. Who was sitting next to you? Do you I CROSS EXAMINATION
recall from that meeting who was next to you, on either side of you? I was sitting at the very end of the table and most everybody else was sitting on the sides, or at the side of room, and then Dr. Snell and Dr. Hart were up towards the front of the table. I noticed that you have read those notes or reviewed those notes several times today; is that correct? Mm-hmm. And you've looked at the context of the notes, or at least the apparent context? I have trouble reading them. do. Thanks for your help. You don't, but I
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. A. Q. A. Q. Q. A. A. Q. Do you agree with me that the context of the notes appears to be in the same context of the meeting with Dr. Hart? Well, parts of -- I don't think this first page is. And why is that? Because it looks more like somebody is preparing for something. Okay. Um, the second part could be. Do you recall anybody else taking notes during that meeting? Um, I'm sure there were a lot of people taking notes. I didn't take notes during that meeting.
You personally made no notes or took anything down? Not that I can recall. in front of me. Do you recall Angela Jarman sitting next to you or near you? Yeah. bit. Ma'am? Yes. Okay. She and Tony Nolfe were talking. They were talking throughout the whole She and Tony Nolfe were talking a good I had a yellow note pad
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. Q. Q. A. A. meeting? Mm-hmm. I don't know about the whole meeting
because I wasn't focused on them, but I know at times I couldn't hear what was being said up at the front because they were interacting. And they were close to you? Mm-hmm. And I have some, I have -- I'm writing a
thesis on tax evasion, and I have some notes that I was making on tax evasion, if the Court would like to see those, and you can obviously see that's not my handwriting. And you had mentioned something about checking phone records of deputies to see that they were calling Ms. Dixon. Right. And you had said that, I think your words were, interfering with the investigation? I was. In what way? We were, we were -- initially the, ah, Assistant Chief Beaman, because there was not a chief of police in Gulf Shores at the time, the Sheriff and I -- they actually called our office into the investigation, and we discussed the fact that we had a Grand Jury in session, and it was actually a
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. Q. Q. A. A. Q. joint decision that for probable cause, they would like to have the opportunity to present the case to a Grand Jury. Okay. What does that have to do with the
officers that were interfering with the investigation? Well, the officers were campaigning for Hallie, and, ah, at some point -- although initially, the first day I met with them, they wanted to know when they could go arrest him -Who wanted to know? -- arrest Mr. Nodine. And I explained, well, the
Sheriff and everyone has decided we are going to present it to a Grand Jury and we need to gather all the evidence. Which deputy or law enforcement officer told you -Tony Nolfe. Tony Nolfe told you that he wanted to arrest Mr. Nodine that day? He did. He did. Then, as Mr. Nolfe saw that it
was not what Ms. Dixon wanted, based on her contacts with him, we saw things turn around. What information do you have that Mr. Nolfe was talking to Ms. Dixon in the context of this
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. A. Q. Q. A. Q. A. investigation? My investigators heard. Heard Mr. Nolfe? Yeah. But again, I have asked everybody, if
you'll just go check Mr. Nolfe's cell phone records, in a number of them you'll see that they were in contact with Ms. Dixon multiple times during that period. Well, certainly there were law enforcement officers all throughout the county that supported Ms. Dixon -Mm-hmm. -- law enforcement officers all throughout the county that supported you. Mm-hmm. Some that supported Mr. Green; is that correct? Mm-hmm. And you would not find it unusual for those law enforcement officers talking with -- supporting Ms. Dixon to actually be talking to her? I would find it not acceptable for them to be doing that on duty in the middle of the meeting for an investigation, using their County cell phone. So did that occur during this meeting with Dr. Hart specifically, do you know?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. No. Like I said, I was focused on Dr. Hart. But
Ms. Dixon told you that she was informed of the meeting right after it happened. that today. So Mr. Nolfe had indicated to you that he wanted to arrest Mr. Nodine on the first day, and then later on he was taking actions to, um, compromise the investigation? He was taking actions to not pay attention and get work done that needed to get done. And was there a heated exchange between you and Mr. Nolfe concerning finishing those reports and getting the police reports and all aspects of the investigation completed in time for the Grand Jury? Actually, the discussion that occurred was between me and the Sheriff. And I walked out of She testified to
the room when we had our meeting, when we were supposed to be preparing for Grand Jury, and they had not completed any of the reports regarding their interviews. I walked out and the Sheriff was on his way in, and I said, Sheriff, they don't have the reports complete. If you do not want this case to
go to Grand Jury, then I need to be able to know that and we can go forward -- you can go forward at
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Q. A. Q. A. A. Q. whatever pace you need to. I thought it was the agreed upon decision that this was going to go to this Grand Jury. After I
had that discussion with the Sheriff he went in and set forth their schedule for getting things done. Did Mr. Nolfe communicate directly to you that he felt that he was being rushed? No. that. Sure. Because the reason he was having to leave was to go to campaign events for Ms. Dixon. And did he tell you that? No. I saw him at them because I would happen to I can tell you why he wouldn't have done
be there myself, too. Okay. Were there any other deputies or law
enforcement officers, to your knowledge, that were interfering with the investigation? I'm not saying in terms of -- I'm not saying they were interfering. interfering. I'm saying Ms. Dixon was
They were slowing the pace down.
And what information do you have that that came directly from Ms. Dixon, that she was attempting to slow your investigation down? are saying? Or is that what you
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. A. Q. Q. A. I guess you could probably say that at some point I had never seen officers do -- with the Sheriff's Department do interviews and not go back and write them up. The, um, death of Ms. Downs occurred on May 9th; is that correct? Mm-hmm. And not asking you -- and I know, rightfully so, your sensitivity to divulging what goes on in a Grand Jury -Mm-hmm. -- but do you recall the date that that Grand Jury went into session to consider this case? I really don't. That Grand Jury was the May
Grand Jury, and so they had been in session, and they were on break. And then at a particular point
that people felt that they would have the investigation complete, they were brought back to report on the other cases and to hear this case, which is fairly typical. It's been suggested that this Grand Jury reported back on May 24th, 2010, which I believe would have been a Monday. Does that sound correct? I'm
I don't have any reason to dispute that. sure it was on record.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. A. Q. Q. A. Q. A. Q. And typically the Grand Jury comes back and reports, certainly after they have voted. And
presumably -- do you know how many days this case was presented to that Grand Jury? I really don't. Was it more than one day? I really couldn't tell you. There was a lot of
witnesses, so it wouldn't surprise me if it took more than one day, but it could have just taken a full day. The meeting with Dr. Hart, do you agree that that occurred on the same day that he was to testify in front of the Grand Jury? It did. It did.
And would you agree with the statement that it was anywhere from an hour to two hours long, that meeting? I would -- my recollection is it was less than an hour. But, you know, rounding up to an hour would Now
be -- but did wasn't anywhere near two hours. people were there, John -- sorry, Mr. Beck -I don't care. -- for other, you know, things.
So in terms of
their reference of about how long, the totality of the meeting could have been much longer than when
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. A. Q. Q. A. Q. Dr. Hart and Dr. Snell were in there. Did Dr. Snell testify in front of the Grand Jury? No, he didn't. And whose decision was it to present this case to the May Grand Jury? It would be mine. And did you ever indicate that you felt that this investigation was being rushed and that it wasn't ready to go to a Grand Jury? No. Was there any reason in particular that this case was sent to this Grand Jury as opposed to the next Grand Jury? There wouldn't have been another Grand Jury until September. And certainly, there is the authority to arrest someone prior to going to a Grand Jury if there is probable cause. Right. And people get arrested for murder on the Yours or the Sheriff's?
same day they commit it sometimes based on probable cause. Yes. That's correct. And that was not done in
Mr. Nodine's case. Going back to the meeting, did you summons Dr. Snell to be present at that meeting?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. Q. A. A. I did not summons Dr. Snell. from -That may be a bad choice of words. I think somebody from our office asked Dr. Snell to be there in light of some, actually difficulties we had encountered in the Department of Forensic Sciences in another case you handled with Marsha Colby, so we thought it might be a good idea for him to be there. Because there might have been a difference of opinion? Dr. Snell, in my opinion, you know, had initiated this practice of Montgomery, or -- not Montgomery, wherever he's from -- the head office reviewing, at the request of defense attorneys, whatever someone is doing in a local office. And I felt that it I think somebody
would be good to have his input and ask him to review it at the same time, so we did not have any controversy. Did Dr. Snell give an independent review prior to your meeting that you're aware of? That's really kind of what we had hoped for and asked, but that was not the impression I had when he came that day. And did Dr. Hart -- and I believe I heard what
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. A. Q. A. you said in direct testimony. Is it your testimony
that Dr. Hart never told you that he felt that the evidence that he had reviewed was consistent with a self-inflicted gunshot wound? Dr. Hart has always told me that his decision was undetermined, but that statistically -- and he always uses the word statistically -- when someone is shot with their own gun in the head, it is a suicide. And a hard contact type of wound, correct? that part of what he relied on? I think you're just wanting to say contact wound, because actually hard contact is -- how hard this contact was actually is evidence of something else. What is that? That someone is forcibly -- you're holding a gun against her head, such that it makes the imprint of the gun. That is not typical for suicide in the Was
literature. Did Dr. Hart during this meeting tell you that the reason for the imprint of the muscle was because it was a contact wound and those gases basically expelled out the other way? At some point that was discussed. I don't know I'm not
that that's what he told, actually said.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. saying he didn't. That's not what I remember. I
remember what he testified at court, which is that it was an imprint of the muzzle. And have you made statements, either during the closing argument of this case or to the press, that Mr. Nodine pushed that gun so hard against Ms. Downs that it left a bruise or an impression? I don't know that I said a bruise, but I think it leaves the impression of the muzzle, yes. Based on his jamming that gun against her head very hard. And was that consistent with what Dr.
Hart told you during that meeting? Dr. Hart essentially said he wanted to consider simply the body, so he's not going to -- he is of the opinion it's against her head, yes, but not necessarily who's holding the gun. In Defendant's Exhibit 4, which are consistent with the notes that were taken during that meeting -- do you agree with that, first of all? That
these notes appear to be somebody's notes taken during that meeting? first says Dr. Hart? Well, I mean, first it says -- first it references some sort of meeting on Saturday, as if somebody is writing down when they're talking to Starts off, the first --
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. BY MR. BECK: Q. And that in that very first section it said, Dr. Hart, underlined, not force of gun hitting skin, skin hitting barrel? Yes. Does that refresh your recollection as to what Q. A. A. Q. Q. A. him. Like, Saturday at 2 p.m. with a question, If
suicide then we need to know. And I mean, just to be honest, it looks like to me someone is highlighting things about what they want to bring up. Mm-hmm. And the --
I mean, I'm not saying -- it's not -- they're not mine, so I can't tell you, but I do not think they're totally consistent with coming from that meeting. Okay. Going to the second page. I think you
testified earlier that was a little more consistent with what was discussed at that meeting; is that a fair caricature? The parts that -- yeah. Skin hitting -- that's skin? Yes. Okay. (A brief pause was held.) Would you agree?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. Q. A. Dr. Hart said during that meeting? That there was a discussion about that, yes, with Dr. Hart. I can't tell you that that was my And I'm
recommendation of what he finally said. not saying it's not what he said.
I'm just saying,
Mr. -- because my next dealing with him was at trial, where he testified that was an imprint from the muzzle. And this statement here, does this refresh your recollection about something else Dr. Hart said? Contact gunshot wound, no other injuries. Looks
like, not wanting to be shot, not moving, turning head, went straight through. Not, open quote, not
common way to kill someone, very way to kill self. Does that refresh your recollection as to what Dr. Hart would have said during that meeting? Vic -- does that say, vic waiting to be shot? I can't -- I can't read that word right there. But the question was, does it refresh your recollection as to him saying something of that nature? Not in that context. I mean, I will tell you
that Dr. Hart always goes back to, statistically someone using -- someone being shot in the head with their own gun, studies have shown,
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. A. Q. Q. A. Q. A. Q. statistically, that is a suicide. And do you recall talking to Dr. Hart about the way that Ms. Downs' hair fanned out in that meeting? I believe -- I mean, I didn't talk to Dr. Hart about that, but that was brought up, yeah. During that meeting? Yeah. And Dr. Hart basically said, you can't make too much out of that, or words to that effect; is that correct? That would be correct. Because there was no hair laying studies, things of that nature; is that correct? I don't recall that, but that's written there. No. I'm asking if it refreshes your
recollection. No. I know the hair was discussed and I know to
him it didn't make -- it was of no significance, but I honestly don't remember, um, you know, why. And did Dr. Hart also suggest that there was -since there was no evidence of a struggle, it was more likely suicide? Does that refresh your
recollection that he said that during that meeting? He could have said -- again, the biggest thing I
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. remember about Dr. Hart is, no matter what anybody showed him or what anybody asked, he repeatedly would say, statistically, when someone is shot in the head with their own gun, it's a suicide. Because the thing I do remember in that meeting was Dr. Snell trying to encourage him to look at different pictures and things that people were handing him, because typically Dr. Hart, you know, just says, statistically this is what it would look like, but because y'all have the other facts you've told me about, we are going to leave it undetermined. Who in your office made the decision about the sequencing of witnesses before the Grand Jury on this case? Which witness is going to testify
first, second, third, fourth, in front of the Grand Jury? Would that have been your decision or
someone else's? Well, it probably would have been my decision to some extent, and to some extent just availability. And you were the prosecutor that handled that case in front of the Grand Jury? I was. I was.
And the last statements here say, Dr. Hart Monday, Dr. Snell has to go to Grand Jury Monday,
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. Q. A. riding the fence. Does that refresh your recollection as to the authorship of these notes, or anything else that Dr. Hart said during that meeting? Well, there was never any plan for Dr. Snell to go to Grand Jury. Um, and some of that is why I
come back to the idea that these are more like notes of somebody who talked on the phone and was making plans for Grand Jury, and making plans for the meeting. The period of time from the day that it was presented to the Grand Jury to the day of the primary election is approximately one week. that sound about right to you? 1st, a week and day? What? A week and a day from the time -You mean from when it was returned? Returned, yes. It could have been. Does that sound right to you from your recollection independently? Could have been. Was there any motivation on your part to have this case sent to a Grand Jury prior to the Does
May 24th to June
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. A. Q. election? No. During the week -- you mentioned the Troy MacDonald case. I believe that was brought up as a The week before Mr.
case you had also tried. Nodine --
before the election, that same week -Troy MacDonald's was in the fall.
Wait a minute.
Is when you tried it, correct? Yes. I'm giving you a timeframe. That's what is confusing. giving me? I'm talking about the week before the election. Okay. Do you recall, either yourself, or someone in your office calling Mr. Bruijn, who represented Mr. MacDonald, and giving him 72 hours to accept or reject a plea deal on Mr. MacDonald? From a What timeframe are you
Tuesday, the week before the election, on a Friday. I don't think I called him, but I think the plea deal that they eventually took had been out there for months. And, yeah, I think at some point, I I
don't know when, somebody did give him a cutoff. don't remember it being in that timeframe, but I'm not saying it wasn't because I didn't talk to him
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. A. Q. Q. about that. Do you recall that offer being made on Tuesday, exactly one week before the election, and expiring 72 hours later on that following Friday? No. During the meeting with Dr. Hart, do you recall John Stewart raising his voice? And we all agree
John talks loud sometimes, but do you recall him kind of getting in that red-faced demeanor and raising his voice at Dr. Hart? You know, I guess because I'm used to being around, you know, John Stewart, I don't recall John being any more boisterous than John would normally be. Now, I do remember John leaving the room on
one occasion, and he appeared frustrated to me when he left the room. But I'm not going to say that to
people that aren't used to being around John, that maybe it wasn't, you know, louder than typical, because John is just passionate about everything he does. But you at least saw that he was frustrated, though? He was frustrated, yeah. And that frustration was directed at Dr. Hart, right?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. Q. A. You know, I didn't -- I mean, that -- I mean, if y'all, if you knew John Stewart, the frustration was probably more general than directed at anybody. I mean, he's a school teacher and his demeanor, I mean, he can get flustered at the people he works with and stuff like that. I'm saying. But -- and that's what
I'm not saying he didn't raise his
voice or something, but it wasn't to the extent that it seemed strange to me. Have you been made aware about the contents of the text messages that were retrieved from the BlackBerry device? No. And if you were to learn that off of that BlackBerry device -- and you have heard the testimony. You have been here all day -- that from
the period of time, from the Mullet Toss up until the time of Ms. Downs' death, that there was communication from Ms. Downs to Mr. Nodine possibly of a sexual nature, would you have found that to be valuable to your case? Well, I don't really -to show me those. I haven't -- if you want
I didn't really hear what he was
saying, or understand what they were in response to, for connotations you're putting to it. But I
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. Q. don't think it was ever in dispute that this was an on-again, off-again, constant on/off again relationship. Did you narrow down the period of time from April 25th at the Mullet Toss to May 9 as being an important period of time for a continuing course of time for stalking when you tried this case? One period, yeah. Okay. But our theory was, it involves all the periods. No, I understand that. But do you recall making,
specifically referencing that period of time, from May 25th from the Mullet Toss up until Ms. Downs' death, that there was an unbroken continuity of stalking? I don't think I said that. MR. BECK: Could have, but --
That's all, Your Honor. No further questions. You may step down
All right.
and you may be excused. THE WITNESS: Thank you, Judge.
(Witness excused.) MR. WHETSTONE: Honor. Mr. Scully. WILLIAM SCULLY III, One witness left, Your
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. A. Q. A. BY MR. WHETSTONE: Q. A. Q. A. Q. What is your name, please, sir? William Scully. And, Mr. Scully, what do you do for a living? Right now I'm a private attorney in Daphne. Have you ever been an Assistant District Attorney in Baldwin County? Yes, sir. I was an Assistant District Attorney the witness, having been sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: DIRECT EXAMINATION
in Baldwin County during this trial. And what was your -- I hate to use the word rank, but what was your position at that time? I was an Assistant District Attorney in regards to this particular case. I assisted Ms. Newcomb in
preparing for and trying the Nodine case. Would you be second chair in this case? I believe so. Okay. Did you have contact with Mr. Knizley in
this regard? Yes, sir. Did you hand him the pictures that are one of the issues today, before trial?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. A. Q. A. Q. Q. A. I handed him, I believe, the exhibit that's marked as Defendant's Exhibit 2. I believe I
handed him the disk that that picture came from. Did you, at any time, discuss with Ms. Newcomb that, what Dr. Downs was going to say would not be accurate because of the previous picture? No, sir. Did you notice it yourself? No, sir. Did you hide it in any way? No, sir. Did you intentionally or with knowledge fail to turn over any of the pictures, or edit the pictures with Mr. Knizley? No, sir. The BlackBerry, you were -- did you talk to REM? I did. I spoke with a representative from REM
consistent -- my recollection is consistent to what J.D. testified to, to some extent. Although, I
seem to recall that I called REM as opposed to them calling us. It may have been that they called and
left a message, but I spoke with the REM representative, and my understanding from them was they would not, or could not, open the BlackBerry. Were other steps taken to open the BlackBerry?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. A. Q. Q. A. Yeah. I believe Warren Stewart may have spoken
with other law enforcement agencies, FBI, I'm not entirely sure who, as well as Russell Yawn, who examined the BlackBerry as well. Did you have an opportunity to review all the evidence that was being presented in this case? Yes, sir. Did you, at any time, advise Ms. Newcomb that she shouldn't go forward with a murder case? No, sir. You see any reason to so advise today? No, sir. MR. BECK: THE COURT: BY MR. WHETSTONE: Q. Did you assist -- did you work for Ms. Dixon after Ms. Newcomb left as District Attorney? Yes, sir. How long did you work for Ms. Dixon? For approximately a year. Were you asked to provide her any information or advice relative to this case? Sporadically. Did you ever change your mind as to your earlier conclusion? Object to the relevance. I sustain the objection.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. MR. BECK: Object to the relevance. I think there was testimony
MR. WHETSTONE:
earlier, Your Honor, that she talked to all kind of law enforcement officers. THE COURT: BY THE WITNESS: A. No, sir, I didn't change my opinion on this. Overrule the objection.
BY MR. WHETSTONE: Q. Were you present during Dr. Downs -- excuse me. I said it myself. meeting? Yes, sir, I was there. Um, were you involved with the Grand Jury process at all? Yes, sir. Um, were you -- did you or anyone in your presence at that meeting attempt to change his opinion relative to what occurred? Ah, my recollection of that meeting was that there was information that was presented to Dr. Hart. Again, I didn't, I didn't think that Dr. He certainly had not Not Dr. Downs, Dr. Hart's
Hart had formed an opinion.
issued a written opinion at the time we had that meeting. One of the issues that we had had prior
with their office, was that they insisted on only
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. A. Q. A. Q. A. Q. A. Q. Q. giving testimony regarding, based on observations of the body, which then, in light of Dr. Hart's -some of the points that Dr. Hart brought up regarding a prior, possible prior suicide attempt, and there was another issue that did not have anything to do with the body specifically, seemed inconsistent. I think the District Attorney's Office was presenting some information to him that we believed was relevant in his determination. Were any law enforcement officers in there presenting any contrary opinions? Contrary opinions to? To the District Attorney or to -No. Certainly not.
Any of them suggesting it was not a homicide -No. -- in that meeting? Not that I recall. Dr. Hart's opinion was, at that meeting was undetermined? Certainly that was the written opinion that he issued. You know John Stewart? I do.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. John is rather passionate, isn't he? He gets excited, yes, sir. Did you see anybody, including Mr. Stewart and particularly Ms. Newcomb, use any type of undue pressure against Dr. Hart? No. In any way? No, sir. MR. WHETSTONE: MR. BECK: THE COURT: Pass the witness.
No questions. All right. You may step down
and you can be excused. MR. WHETSTONE: witnesses. (Witness excused.) THE COURT: MR. BECK: Any more witnesses? I would call Pascal Bruijn Your Honor I have no more
briefly for rebuttal. THE COURT: All right. PASCAL BRUIJN, the witness, having been sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: DIRECT EXAMINATION
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. A. Q. A. Q. A. Q. BY MR. BECK: Q. A. Q. A. Q. State your name, please, sir. Pascal Bruijn. And, Pascal, you are a practicing attorney? That's correct. And you also represent Mr. Nodine; is that correct? That's correct. I wanted to ask you a question about another case that you had handled, Mr. Troy MacDonald, do you recall that case? I do. And around the time that I mentioned with Ms. Newcomb, the, uh -- were you given -- did you have a conversation with someone from the District Attorney's Office? I did. And do you recall when that discussion took place? My billing records show that that discussion was made on or about May 25th, 2010. May 25th, you said? Correct. And was that a Tuesday? I don't know.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. Q. A. Q. Q. A. And, and what was the nature of that discussion? It was a plea offer in what was then the high profile case in the county, I guess, Troy MacDonald having killed Brianna Parish. And a plea offer was
made to settle it, and I was given 72 hours to either accept or reject. And was that -- and what day of the week was the -- did you have to give a final answer? Before the end of that week, so that would be that Friday. And so, if you were told to get back to them with an answer on a capital murder case on a Friday, and you had 72 hours, would that have put it on a Tuesday that that offer was made to you? Sure. Did you find that to be unusual in a capital murder case? It was a -- it was very unusual and highly suspicious. And was a trial of Mr. MacDonald's case imminent at that point? I don't think so. Ah, there are no trial terms
after May 25th until August or September. Had you filed any motions with the court that might be dispositive of the issue to your
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. recollection? No. And just to refresh the collective recollection, the Friday that you were given to either accept or reject that offer, where did that fall in comparison to the date of the primary elections? So, if I was given 72 hours until Friday, that would be the Friday before the primary election for the District Attorney on the following Tuesday, June the 1st. And you said that you found that highly suspicious. Why, sir? Objection as to why he It's outside the
MR. WHETSTONE:
found it highly suspicious. scope of the inquiry today. THE COURT: MR. BECK: THE COURT:
I sustain the objection. Nothing further. You may cross examine. I have no questions of
MR. WHETSTONE: Mr. Pascal.
(Witness excused.) MR. BECK: That's all from the Defense on
this motion, Your Honor. THE COURT: Does either side wish to make
any oral argument?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BECK: it or -MR. WHETSTONE: Whatever you want to do. I We can just submit it and brief
can do it today, or we can do it by -- as he suggested. MR. BECK: I would ask -- humbly ask -- and
I know I'm responsible for us being here today, but we do have my daughter's graduation this evening, and I would ask the Court, if the Court would please, that maybe we could submit any arguments to the Court. THE COURT: satisfactory. MR. WHETSTONE: Your Honor, did you want to All right. That will be
hear any evidence on the other matter? THE COURT: Well, yes. I mean, what time
is the graduation? MR. BECK: Judge, I need to, I need to get
back probably about -- I know people are coming at 4:00, but if I can get back by 5:00, I'm good. MR. BRUIJN: long. THE COURT: anyway. MR. WHETSTONE: Yes, sir. Thank you. We are going to stop at 4:25 Your Honor, my motion won't take
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BRUIJN: Your Honor, the other
remaining motion from the Defense is the motion, supplemental motion for change of place of trial. I'll briefly summarize our argument, Your Honor. To my knowledge this is the most high-profile case, the most written about, the most live tweeted case we have had here in Baldwin County. I have done some research on
Google and found there has been 74,000 articles or mentions of my client's name in the media since the May 9th, 2010 shooting of Ms. Downs. This -- the pressure has been intense in this case, in that, not only does the Mobile Press Register run a weekly publication rate of 350,000 copies, there's also been almost daily updates, especially if there's any motions, by all three major news outlets. and Channel 15. That's Fox, WKRG,
And also, all the Twitter
accounts of all the individuals with the press involved. al.com. And, Your Honor, most of the responses are negative towards my client. some in my motion. I have included It's also been on Face Book. It's on
When my client was convicted
in Federal Court, some of the comments were,
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "scumbag," "I hope he gets much less time by way of the needle," meaning, I hope he dies. he, um -- "He's a druggy." a woman-abusing murderer." "He's trash." I hope "He's
And this has been
consistent with everything that I have seen on the comment side of these articles, Your Honor. Since the original filing of the motion to change venue several things have happened, one of which is the response by the State of Alabama in which they concede that there has been a saturation by the news media about this case in the community, which is the jury pool. that motion, in that response, the State suggested Lee County or Houston County as possible venues. I know that Your Honor had a And in
meeting with then-defense counsel, Mr. Knizley and then-prosecution about perhaps moving it there, and at that point everybody was in agreement that it probably should be moved. know Your Honor did not make a final ruling during that meeting. Also, since that time my client has been convicted in Federal Court. As part of the I
pre-sentence report, a listing of his criminal history was released by Brenda Kirby who was with
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Press Register, and so everybody who has a subscription to that newspaper now knows about his criminal history. This, of course, we don't
believe it's proper to have a jury pool know all this. Those would be issues subject to 404(b) But that's no
motions, 403 motions, 609 motions.
longer possible because it's in the public domain now. Whereas, if this case were to be tried in
Lee County, it would be a fresh set of ears and a fresh set of eyes, not people who have been inundated almost three years, or almost daily updates about this case. Now, I say that because most -- I guess all motions to move a trial is for pretrial publicity. Not only have we had pretrial
publicity, we have had pretrial, trial, and post-trial publicity. Just like today, we have
invoked the rule, there's witnesses outside; however, there's newspaper reporters inside this courtroom who are live tweeting. So the
witnesses are outside reading the updates to what people are saying. And that's fine. I don't
think that any witnesses have changed their story as a result of that. But my secretary and my So
wife are following this as if they are here.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they are hearing evidence that may or may not be admissible in Court, yet they hear it as if it is, and they have formed opinions over the last two years about this case that is based upon the global output of information that has been put out because of this case, a tiny fraction of which is admissible. And I mentioned the fact that my client was convicted of a Federal case. He's also
convicted of a State case, the State drug case. The general public knows about that. Again, that
would be a violation of his due process rights under 403, 404, and 609, the same way with his impeachment trial, Your Honor. And so for those reasons and -(A brief pause was held.) MR. BRUIJN: And, Your Honor, if I may,
there are two ways to prove a burden as to whether or not a trial should be moved. One is
actual prejudice, in which I request that you authorize us $10,000 or $15,000 to hire an expert from South Alabama to poll the jury, poll to find out whether or not people have an existing opinion as to the guilt or innocence of my client. The other way is, and I think the
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Supreme Court has described it as an inherent prejudicial publicity which has so saturated the community, which has a probable impact. If any
case has had a probable impact by the prejudicial publicity it's the Steve Nodine case. As Ms.
Dixon has already indicated, he is not a very liked person in this community. And so, I think for those reasons, and the fact that we relied on Ms. Dixon's representation to the Court that she would not be opposed to moving to Lee or Houston County, we believe that Lee County would be appropriate. The reason I said Houston County is not, in researching this motion, I have talked to some lawyers in those venues and half of the lawyers in Houston County know about this case. know how or why, but they do. that in Lee County. THE COURT: All right. I don't
And I did not get
Mr. Whetstone. MR. WHETSTONE: Your Honor, I was not the
person who filed that motion for the State of Alabama relative to saturation. THE COURT: But the State of Alabama did. Yes, Your Honor, the State
MR. WHETSTONE:
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of Alabama did. But the State of Alabama is now
represented by me, versus the person who filed that. And I want the Court to know that I think
that, while there's been saturation, that is not the question of whether or not you move it. question is whether or not he can get a fair trial. And I believe over the years, that this The
county is no longer like Monroe, where you have a very small population where everybody knows everything. It's a bigger county. And I think
the people of the United States, as well as this county have developed a certain degree of a grain of salt based upon what they see on the media. think they have seen it. I would not -I
I'm not sure I would want a person on the jury that never heard of this case in this county. I don't know where you would find them. The Federal
A lot of people have heard.
Government, for example, was prepared to try the master mind of 911 in New York City and they moved it. Not because of unable to get a fair
trial; they moved it because of the security. So I believe the history of this county is that we're so large, so diverse, so separate, that people can take into account news accounts
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that may be different and reach a fair verdict. And I think that's the question. I also think the reason that you hold it in the county where this occurred is because the people in this county will know the relationships of Orange Beach and Fairhope and Gulf Shores. They will know the geography of what we're talking about. We don't have to explain that in
some other county. Also the cost, Your Honor. The cost of
moving this on the victims as well as the State of Alabama, and I presume on the Defense, would be great. And what we are asking -- we agree I'm
that there's been a great deal of publicity. not suggesting anything other than that, Your Honor. What I'm suggesting is, there's
insufficient evidence to show that they can't get 14 people, or 12 people, that can fairly try this case in this county with sufficient evidence, and we'd ask the Court to leave it here. If the Court determines that it shall not be here, I have no objection to Lee or Tuscaloosa, either one -(Laughter in the courtroom.) MR. WHETSTONE: -- in September.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Well, whatever the Court
decides, it's not going to be based on football rivalries. MR. WHETSTONE: MR. BRUIJN: Yes, Your Honor.
And, Your Honor, I know
Mr. Whetstone was perhaps jesting when he said Tuscaloosa, but it was mentioned that we shall not have a county on the I-65 corridor, or within range of the al.com, and I believe Tuscaloosa would be in there. THE COURT: Well, the whole State of
Alabama is subject to al.com. MR. BRUIJN: Correct. And just to give you
some anecdotal information, my secretary, to this day, will swear to you that there was blood found on the outside of the vehicle that my client was driving. And, of course, we know that's not
true, but she heard that through the media and she believes that. off that belief. And there's no way to put her And everybody has heard a
little snippet of whether or not he was convicted of unethical morals, or whether or not he was convicted in court of pills or marijuana. Everybody has been so saturated with evidence, a lot of it was not admissible, which is depriving
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 my rights of a trial with due process. And
there's no harm in moving this particular case. And we have had many, many cases, but this particular case should be moved to Lee County with a fresh set of ears and a fresh set of eyes. MR. WHETSTONE: THE COURT: Your Honor, may I respond?
Yes, sir. I don't recall any cases
MR. WHETSTONE:
being moved from this county except for one, years ago to Mobile. We have had cases moved
here, but I don't recall -- you may recall, Your Honor. I don't recall. And I do think the
Constitution requires, as I remember it, to be moved to the first county free of prejudice. THE COURT: MR. BRUIJN: Mm-hmm. And, Your Honor, in my
supplemental motion, I have mentioned at least seven reported cases where cases have been moved, so it's not an unusual thing. THE COURT: brief that also? MR. BRUIJN: I can. Thank you, Your Honor. Well, the Court All right. Were y'all going to
All right.
will take both motions under submission upon
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 receipt of the post-hearing memorandums. MR. BRUIJN: Yes, Your Honor. For purposes of me
MR. WHETSTONE:
understanding, are they going to do their brief and then me respond to it? THE COURT: Yes. Is that --
Before we leave, I wanted to ask a question about Defendant's Exhibit 5. (Bench conference was held as follows:) THE COURT: the report -MR. BECK: Yes, sir. Yes, Your Honor. And Defendant's Exhibit 5 is
MR. WHETSTONE: MR. BECK: THE COURT:
Yes, sir. -- of the SMS messages. And
are these -- I just want to understand what I'm looking at. MR. BECK: THE COURT: Oh, yes, sir. Are these messages that were
outgoing from Ms. Downs' phone? MR. BECK: Your Honor, yes. The base of
this report is Ms. Downs' phone, so if it said "sent" it went from her phone out, and if it says "received" then --
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. BECK: Okay. Yes, sir. This was supposed to be the
MR. WHETSTONE:
clean one, Your Honor, that we found out later on wasn't as clean as we expected. But I think the
Court can take all that into proper context. THE COURT: Okay. Well, it's -- the "sent" Okay.
and "received" made sense to me. MR. WHETSTONE: MR. BECK:
Thank you, Your Honor.
Thank you, Judge.
(Defendant's Exhibit 5 was admitted at the direction of The Court.) (The Proceedings concluded at 3:38 p.m.)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I, SHELAGH DUNCKLEY, ACCR, Official Court Reporter, duly commissioned and qualified, hereby certify that the above proceedings were taken down by me and transcribed by me, or under my personal supervision, using computer-aided transcription, and that the above is a true and correct transcript of said proceedings. I further certify that I am neither of counsel nor of relation to the parties to this action, nor am I in anywise interested in the outcome of this case. I further certify that I am duly licensed by the Alabama Board of Court Reporting as a Certified Court Reporter, as evidenced by the ACCR number following my name below. So certified on this, the 6th day of February, 2013. s/ She l agh Dunc kl e y SHELAGH DUNCKLEY, ACCR #222 Official Court Reporter For the Honorable C. Joseph Norton 28th Judicial Circuit Bay Minette, Alabama STATE OF ALABAMA) COUNTY OF BALDWIN) CASE NO.: CC-10-1745; CC-11-1635 REPORTER'S CERTIFICATE

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R-1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REPORTED BY: SHELAGH DUNCKLEY, ACCR #222 Official Court Reporter DATE: PLACE: May 21, 2012

ROUGH DRAFT COPY ONLY!! DO NOT FILE!! *** DO NOT FILE!!

ROUGH DRAFT COPY ONLY!! DO NOT FILE!! *** DO NOT FILE!!

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

Where is everybody? Judge, they went out that

This is a hearing on all And are there any outstanding

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

That does not apply to you. I'm a witness, Your Honor,

and Ms. Newcomb is a witness. THE COURT: Anybody that is an Officer of

Yes, Your Honor. And Mr. Scully, of course,

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

testified that it was a suicide.

concerned with Mr. Dunn's opinion.

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

He's talking about Dr. Downs' opinion.

MR. WHETSTONE: opinions. THE COURT:

Well, let's get down to the

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

please, Your Honor? THE COURT: Yes, sir.

Yes, sir. I have no objection to the

MR. WHETSTONE: introduction.

Mr. Beck has informed me that

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

I sustain the objection to some

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

MR. WHETSTONE: object to these.

It's obviously -- the Court can

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

Everybody be quieted just a

Who provided what has been

hostility between the two in this matter.

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

And Ms. -- I mean, the fact of

And, um, I mean, I don't know I can't read it sideways

what the contents are.

MR. WHETSTONE: suggestion? THE COURT:

Yes, sir. Maybe Mr. Beck could reveal

Why don't we just

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

Or as the Attorney General has. Yes, sir.

MR. WHETSTONE: THE COURT: prosecution. MR. WHETSTONE: THE COURT:

And we're dealing with one

And it's a -- as far as the

-- um, was -- I mean, it hasn't

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

predication, work product. THE COURT: I'm going to sustain the

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

co-case agent on this one.

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

SHELAGH DUNCKLEY, CSR, ACCR #222 OFFICIAL COURT REPORTER

there and talked to an inmate over there.