Article 32 Hearing
Volume 14

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(The hearing reopened at 1107 hours, 14 August 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that all parties who were in attendance at the recess are currently in the hearing room.  I believe at this time the counsel for the accused has an announcement to make.

MR. SEGAL:  Sir, I would at this time that we defer the commencement of the cross-examination of Captain MacDonald because of the unexpected availability here of a civilian witness, who has agreed to come in on his own, and whom we cannot compel to remain.  And while I recognize it is somewhat out of order, I think that the -- in view of the fact of the availability of this person at this time, that it will not interrupt government cross-examination since it has not commenced.  I would ask your permission to call Mr. Sutton at this time.

COL ROCK:  Does the government agree to this procedure?

CPT SOMERS:  The government has no objection to it, sir.

COL ROCK:  However, before the new witness is called, does the government have available for me copies of the taped testimony of Captain MacDonald on 6 April of this year?

CPT SOMERS:  Sir, I have copies of the taped interview with Captain MacDonald.  I hand you now two documents, one representing the morning session of that interview, another representing the afternoon session of that interview, and a third document representing the comments by counsel for both sides with respect to certain questions in that testimony.

COL ROCK:  Have these documents been shown to counsel for the accused?

CPT SOMERS:  They have, sir.

MR. SEGAL:  After you have marked the third document, sir, I'd like to just amplify on the significance of that.

COL ROCK:  Surely.  Government Exhibit 101, 35 pages of morning interview with accused.  Government Exhibit 102, 38 page transcript of afternoon interview with accused.  Government Exhibit 103, stipulation of fact between opposing counsel regarding April 6 interview.

CPT BEALE:  Now, Mr. Segal, I am going to treat this as a stipulation of fact.  It's really not, but we'll treat it as such, and appearing thereon there does not appear to be three signatures, the most important of which is the accused's signature, and therefore I desire to ask Captain MacDonald whether or not he does concur in this?  

MR. SEGAL:  Yes, sir.

CPT BEALE:  Captain MacDonald, have you had an opportunity to read this two-page document entitled comments by counsel on statement of yourself on 6 April?

CPT MACDONALD:  Yes, sir.

CPT BEALE:  And do you, in effect, concur in the comments contained therein?

CPT MACDONALD:  Yes, sir.

CPT BEALE:  Very well, then this document will be accepted as such.

COL ROCK:  I believe also that counsel for the accused wished to make some comments concerning Government Exhibit 103.

MR. SEGAL:  Yes, sir, if I may.  I would like to indicate for the record that A-103 was developed in lieu of the necessity of bringing in all three of the CID investigators, who participated in that interrogation of 6 April, as a result of mutual agreeable conferences between counsel for the government and the accused which was held with the knowledge of the investigating officer.  An attempt was made to treat with certain statements made by the investigators, in that two-part interview, so that it should be properly received and understood by all those who may have occasion to review this record, that the statements made by the investigators and certain enumerate circumstances were not to be considered actual facts or true facts; in view of the circumstances that occasionally the investigators may find it desirable to state certain things to a person being interrogated, simply as part of their technique, sometimes it may be inaccurate, sometimes it may be based upon erroneous information, and other occasions it may be based simply upon misapprehension of the investigator, and to avoid any necessity for prolonging this proceeding, I think to almost needless extremes, this document was developed in place of calling those investigators.  I think that it represents a fair commentary by both sides in that matter.

COL ROCK:  This will be noted.  Proceed, counsel, with your next witness.

MR. SEGAL:  I call Mr. Sutton, please.

(Mr. John Donald Sutton was called as a witness by the defense, was sworn and testified as follows.)

Questions by MR. SEGAL:
Q  Would you state your full name and address for the record, please?
A  John Donald Sutton, 110 Spring Avenue, Spring Lake.
Q  And is that in Fayetteville, North Carolina area?
A  Spring Lake.
Q  North Carolina?
A  Yes, sir.
Q  Mr. Sutton, on February 17th, where were you in the evening?
A  What day was February 17th?
Q  February 17th was Tuesday.
A  It's the Tuesday following the Monday of this murder that I heard the people talking about -- I was in Fayetteville at Rick's Lounge.
Q  And what was the name of the lounge?
A  Rick's Lounge.
Q  Rick's Lounge.  Where is Rick's Lounge located?
A  On Hay Street, kind of across the street from the train station.
Q  In Fayetteville, North Carolina?
A  Right.
Q  Do you know, or are you familiar with the Fayetteville area?
A  Yes, sir.
Q  Do you know the Haymount section of Fayetteville?
A  Yes, sir.
Q  How far is Rick's Lounge from the Haymount section?
A  What part of the Haymount section?
Q  Well, I don't think Haymount is that large?  How far did you have to go to get from the lounge to say that you were in Haymount area?
A  To the top of Haymount hill?
Q  Yes, sir.
A  Walking, I guess about -- one, two, three -- I'd say ten to fifteen minutes.  I've walked it before.
Q  Ten to fifteen minutes by walking?
A  Yes, sir, going up the hill, it is kinda fast going up the steps.
Q  Now about what time did you get to Rick's Lounge on that Tuesday night?
A  I'd say six or seven o'clock.
Q  In the evening or morning?
A  Evening.
Q  Now something happened that you considered out of the ordinary that evening in Rick's Lounge?
A  Yes, sir.
Q  Would you keep your voice up and loud -- do the best you can to explain to the investigating officer.
A  Well, I seen -- I was standing to the back of the bar, at the end of the bar, where it goes down.  I was just happened to be looking at the front door at the time that -- a girl come in carrying a lighted candle, lit, and wearing a floppy hat, and it attracted my attention, you know, I hadn't read no description about -- what about this murder, who or what.  It just attracted my attention, you know.  I just looked over and I started walking that way to see what was going on, and this -- some guy grabbed me, just pulled me over and started talking to me, and I kept trying to see who this was carrying this lighted candle.  You don't see people walking around carrying a lighted candle, and some guy took her over to the side where the booths are, on the other side of the bar where there is nothing but booths, on that side.
Q  Now were there any other persons at the booths besides the girl and the person who took her over there?
A  No, sir.
Q  Now what else did you observe at that time?
A  Well, this guy kept talking to me, you know, and I kept glancing that way to see what was going on, and then I seen the girl sitting there had taken off the hat.  I didn't see the hat no more.  This guy I was talking to was in a suit, kind of a dark colored suit.  He was kind of a young guy -- I'd say 20 maybe 30 -- just a young guy.
Q  Did he have anything on his face that was special to help you describe him?
A  That I'm not positive of, but I was standing back.  I kept wondering what happened to the girl wearing the hat, you know.  I kept standing back at the bar wondering what was going on, you know, and this -- I glanced and this girl was walking by me, the only girl that was on the side of the bar where this girl was walking with a floppy hat on, came walking by me, and I just glanced at her to see if I knew her.  And she had a -- I'd never seen her before.  I just seen the side of her face and she walked by me, and she -- something I distinctly drew my attention to her teeth.  Her mouth as half gaped open, just staring straight ahead you know, just looking straight ahead and walking, wasn't looking to the left nor to the right, just walking straight ahead.  I just kinda glanced at her to see if I knew her, you know, and I looked and her left arm -- and I was standing on this side and she passed me down this way -- looked like her arm had something dark all over it, like --
Q  Excuse me, Mr. Sutton.  When you say "dark all over it" you mean on the skin or the clothing?
A  On the skin of her arm.
Q  At that time could you identify what that was?
A  Well, I don't know.  I don't -- there's no way I could know what was on her arm.  It's just unusually -- you don't see a girl walking around with oil all over her arm, and I just thought maybe it might be dried blood.  You see, I don't know what it was.  I didn't examine it and I don't know what it was.
Q  From its appearance could it also have been paint?
A  Yes, sir, as far as -- I didn't get down and just look at it.
Q  What else did you observe about this girl -- after she had -- do, after she had walked past you?
A  I didn't pay no more attention to her.
Q  Did you see her return again and sit at a table or a booth?
A  I didn't pay no more attention to what happened to her.
Q  Now can you tell the investigating officer what this young woman was wearing?
A  No, I couldn't swear to what she was wearing, to be -- to tell you the truth.  I just glanced at her face.  I just done that to see if I knew her.
Q  Well, may I ask, was she wearing, if you recall, either dungarees or pants or a dress, or a skirt?  Anything of that nature --
A  She was wearing slacks of some sort.  Whether they were Levi's, slack or any other type -- I know she was wearing slacks at that time.
Q  Did you see any other person at the booth where she had been taken by this man you described?
A  No.
Q  Did you see any other persons engaged in conversation, either with the girl or with the young man who had accosted her in the bar?
A  I seen this one guy -- seemed like when she walked back there I walked towards the front of the bar, and there were two white guys standing in front of the bar, not at the bar, but just inside to the right of the doorway --
Q  But inside of Rick's bar?
A  Right.
Q  All right.
A  And he was talking to her, and he -- I just glanced at them, looked at them -- I didn't stand and stare at them, nothing like that, you know, curiosity, I wondered what was going on.  I thought it might have been a fight or something.
Q  You say he was talking to these two men?
A  Right.
Q  Who is the he you are referring to?
A  He was dressed in a suit.
Q  That's the fellow that first grabbed the girl as she came in?
A  Possibly yes.  I'm not positive about it.  You see, I didn't go around and define where everybody was, but I didn't know what was going on.
Q  Now is there anything you can tell us about the two persons that the man in the suit was talking to?  That is, can you tell us what race they were?
A  They were both white, and they seemed to be in early 20's.
Q  Did anyone else talk to either the girl or the man or the man with the mustache who was talking to you?
A  When I started walking that way, when I first seen the girl came in with this lighted candle, he was -- seemed to be talking to me.  You see, I'd never talked to him before.  He said -- I don't know why he wanted to talk to me.  He seemed to want to attract my attention or something.  That's the idea I got.  Whether he was, I don't know.
Q  I'm sorry.  Go right ahead.
A  And this girl walked by me -- I noticed -- I just looked back at her, right there when she passed, and seems like -- I don't know whether they were talking about me or someone else.  This one guy said -- it seems -- "Did he see you?"  I heard the other guy say, "Oh -- he's, don't pay any attention to him, he's all right."  Something like that.  I don't know the exact words he said, but it was something.  I just acted like I wasn't paying any attention.
Q  Now I want to show you four pictures that were previously marked in this case as A-31, A-36, A-40 and A-41, and ask whether the drawings that are contained in these pictures resemble any one of the people you saw in Rick's bar that evening?
A  This one with the mustache, seems like I've seen him there before.
Q  Now that is A-36 you are talking about.  Now, when you say you think you've seen him before, does that resemble any of the persons in the bar that evening that you recall?
A  Seems like it does, but I can't -- I wouldn't swear to it, I mean.
Q  I'm not asking you what it resembles; I can understand what you are saying.  Does he resemble or doesn't he resemble any person in the bar?
A  There was one there with a mustache that wore a suit.  He seemed to be the -- he seemed like -- you see a bunch of persons standing around, there's always -- talking to him about something.  Seems like he was a -- with the group you know.
Q  Let me ask you this.  When did you learn about the killing at the MacDonald house?
A  I read the paper -- I'd heard someone talking about it that some people got killed over at Fort Bragg Tuesday, but I didn't pay any attention to it that night.  So Wednesday I read the paper and I kept, couldn't remember where I had seen someone wearing a hat carrying a candle.  That night I didn't pay any more attention to it.  I just left it off.  And I kept thinking all week long where had I seen someone like that, and Thursday, Friday, I kept fusing this together, where I had seen this, you know, and Saturday I finally figured out where I had seen all this.  And I called Scottie Sutherland of the CID -- I knew him -- he was in the CID -- he lives out there, I told him to come up Sunday morning that I wanted to tell him something that I had seen, and I told him, you know, that I didn't want to get involved, I said just leave my name out of it.  I'll just tell you what I seen.
Q  And did you tell Mr. Sutherland about the incident in the bar as you have described it here this afternoon?
A  Yes, sir.
Q  Now did you ever talk to any other investigator from any military police or law enforcement agency about the things you saw in the bar?
A  No, about a week or so later, I don't particularly remember how long it was, I called the FBI and asked them if they got the information on what I'd seen, and they said yes they had that information from the CID, that they were working with the CID in handling this case.
Q  Now, how did you come to call this information to my attention?
A  Well, I kept noticing the case in the paper and I thought that they would learn something about it, someone who'd seen it 'sides me, but I never did so I just called this reporter in Fayetteville.  I didn't know how to try and get in touch with the attorneys, y'all, so I told him and he said I don't want my name used in any way, but  get the information to him -- I -- I'll see that they get it.  And he called me up, the other day and he was talking to me -- that's the first time I'd --
Q  Now if we may go back to Rick's bar for a moment on the evening of the 17th, did you see any other unusual persons or some other person whose attention you were drawn to that particular evening?
A  Well, this colored boy that came in with them.
Q  With whom?
A  With these two guys standing at the door and this girl carrying a candle.  They were following her.  And he was standing to the -- the bar comes in -- there's a door here and the bar comes in close like that and goes down.  He was standing to the left of the door, and he was wearing a fatigue jacket.  When I walked up there, when I seen the girl with the candle, I walked up towards the front just to kinda see what was going on, and he was standing there in a fatigue jacket, wasn't drinking, he was just standing there, behind the people sitting at the bar stools at the bar, just standing there looking, wasn't paying attention to nobody, and he was wearing a fatigue jacket, and Sergeant's stripes.  I couldn't see exactly what they were, but I was wondering what's a sergeant doing in town and wearing the fatigues, you know, something you never see.
Q  Did you observe anything else about this person?
A  Well, I noticed that -- I'm not sure about this -- but it looked like he might have had an old bruise or fresh bruise right above his left eye.  I was facing this way and he was standing here, and it looked like -- I looked up to my right -- and it looked like possibly a blue mark above his right eye, on his eyebrow, just to the side.
Q  Now you say you observed Sergeant's stripes on his fatigue jacket.  Did the Sergeant stripes have any rockers on the bottom of it?
A  Well, I didn't notice it then when he was standing there, I just kept watching him, kinda, when they left, and when he left I seen he had two rockers, as you call them, on the Sergeant stripes.

MR. SEGAL:  Thank you, Mr. Sutton.  I think the government may have some questions. Cross-examine.

CPT SOMERS:  I anticipate cross-examination to take a good fifteen or twenty minutes, sir, or more.

COL ROCK:  I believe you said he might have to go to work this afternoon?

MR. SEGAL:  Yes, sir, he has other plans and has indicated a substantial inconvenience.  I would be willing to sit providing it is agreeable to the investigating officer.

COL ROCK:  Go ahead.  I'll probably have some questions too.

Questions by CPT SOMERS:
Q  What time of the evening was it that you first noticed this girl?
A  It was pretty close to nine o'clock, if it wasn't nine o'clock.
Q  And you had arrived at the lounge between six and seven.  Is that right?
A  I'd say it could have been seven-thirty, could have been six, I didn't pay too much attention what time it was.
Q  Were you drinking?
A  Yes, sir, I drank about --
Q  How much had you drunk at the time this girl came in?
A  I'd say three, possibly four beers.
Q  Now as I understand it, this girl was wearing some kind of pants.  Is that correct?
A  Yes, sir.
Q  Was she wearing boots?
A  That I'm not positive of.
Q  And you say that you saw a man in a suit -- in a suit speaking to two white men, but you are not sure this is the same man in the suit who pulled the girl aside.  Is that correct?
A  Yes, sir, I'm not positive.  When he came over there and was talking to them -- I'm not sure.  Possibly it could have been because --
Q  It might have been?
A  It might have been.
Q  It might not have been?
A  Yes, 50 -- 50.  I'm not positive.
Q  I show you now A-36.  Is this the picture you've identified as being a man that you've seen in the lounge sometime?
A  Yes, sir, I've seen one of that description, the mustache, in that bar.  I don't remember whether that was the night or not.
Q  You don't know that the man you saw who resembled this picture was one of those people, however?
A  No, sir, I wouldn't swear to it whether he was or not.
Q  All right, and did you not identify the other three pictures you were shown, A-31, 40 and 41.  Is that correct?
A  That -- I don't believe I've ever seen these pictures.
Q  You don't believe you've ever seen A-41?
A  If I have I never paid any attention to it.  That, I'm not completely positive, but I don't recollect, right off hand.
Q  You don't recognize A-40, having ever seen an individual like A-40?  You are not sure.

MR. SEGAL:  Let him answer, sir.  I object to that.

CPT BEALE:  Sustained.  Give the witness the opportunity to answer.

A  I'm not completely -- I'm not sure.
Q  Let me ask a question --

MR. SEGAL:  I think we are entitled to an answer to that question.  I think the pictures should be left in front of the witness to fairly examine and look at again.  Being led back and forth seems to me inadequate as a way of asking a person again to review whether it resembles someone he knew.

A  I couldn't swear -- I'm not positive -- but possibly -- it wasn't the first guy that was standing at the door.  The first guy seemed to be -- it wasn't him -- he seemed to be more of a wide-face guy.  It was just by glancing at him.  You don't stare at everybody in bars.
Q  You can't positively say the man that looks like that --
A  No, I can't.  And this girl, the hat had the personality, floppy hat, but I didn't see her straight in the face like this.  I seen her to the side of her face.  She was too far distant from me when I first seen her in the face.  Possibly was that type face but when she passed to the side of me, I noticed her teeth like a person that wore braces on her teeth, they were completely straight.  She had her mouth half gaped open, and she was just walking straight.

COL ROCK:  You say she had straight teeth?

WITNESS:  Yes, sir.

Q  Are you identifying A-31 as resembling this girl, or not?
A  Resembling the hat and the hair.  But that's all.  That's the only thing I could say resembles.
Q  Now Mr. Sutton, I call your attention to this blackboard with the sheets of paper on it, to my left.  I'd ask you please, if you would, to approach this and with the black marking pencil I am handing you, describe and draw the layout of the bar and the approximate position so the furniture is in it and the positions that you have indicated of the people that were in it.

(The witness drew a diagram.)

COL ROCK:  Please have the witness explain what he has drawn.

Q  Would you describe for us, please, in your own words what you have just drawn?
A  This is Rick's lounge and it has two doors.  The main door comes in right here by the bar, and these are the stools by the bar, and there is an aisle through here, and the tables are here.
Q  If you will, the doors you have referred to are drawn toward the top of your diagram.  Is that correct?
A  Yes, this is the front, the openings and a solid line.
Q  What you are referring to as the bar is a double line curved toward the top.  What you are referring to as stools are small circles around one side of this bar.  Is that correct?
A  Right.
Q  Now to the left of those circles that represents stools, you've drawn circles representing tables and labeled them as tables.  Is that correct?
A  Correct.
Q  And these are approximately in the middle of the diagram?
A  Right.
Q  And to the left side of the diagram you have drawn a series of squares which run from the top to about mid-way, perhaps a little past mid-way of the diagram, and you have labeled at the top "booths," is that correct?
A  Yes, sir.
Q  Now down near the bottom center, you've drawn two rectangular shapes which you have labeled as pool tables?
A  Yes, sir.
Q  Very good.  Using this red marking pen, would you indicate for us, please, your position in the bar when you first saw this girl?  If you will, indicate it with number one.
A  I was just standing approximately there.

MR. SEGAL:  Might I suggest we use for Mr. Sutton an initial because we tend to get confused hereafter if we start talking about where one, three and four, five are.  I think that the name for the benefit of clarification is more helpful to the rest of us.

CPT SOMERS:  Just a second, Mr. Sutton.  The investigating officer hasn't ruled.

COL ROCK:  Well, number one with his name and then if he moves to a new position, it will be number one with his name again.  But that won't show me series, though.

CPT SOMERS:  Numerically, when we refer to other people, we'll use other methods.

COL ROCK:  Well, we can use other colors.  So a red circled one will indicate Mr. Sutton's first position.  A red circled two will indicate his second position.

CPT SOMERS:  Yes, sir.

COL ROCK:  All fine, fine.  Proceed, please.

A  I was standing approximately this direction here, looking, and I just happened to look this way for no reason at all, just looked that way and this girl come in the door.
Q  All right, now let's mark the doorway she came in in blue.  How about that?
A  The girl came in the door here, to the right about -- well, I was looking up this way, and she was wearing a floppy hat and carrying a lighted candle.
Q  Now you've drawn a line, a blue line.  Put an arrow head on that line to indicate the direction.  Where did she go from there, or what did you see her do?

COL ROCK:  Excuse me.  Why not draw a blue circle and put the number one in that for her first position.

CPT SOMERS:  Sir, the only reason I don't want him to do that yet, I don't know if that's where she stopped or if that's -- she's still moving.

COL ROCK:  All right.

Q  Did she stop at that point?
A  That -- I was standing back here.  I'm not sure.  She could have stopped right here, approximately -- I'd say no further than that second stool.
Q  Would you draw a circle at approximately where you think she might have stopped?  Now you've drawn a blue circle.
A  I think she had gotten that far -- I think.
Q  I would ask you not to mark on the diagram except as we agree to mark on it.  Now you say that she was taken to a booth?
A  Yes, sir.
Q  By a man or in the company of a man.  Is that correct?
A  Right.
Q  Now would you --

COL ROCK:  First, let's draw the number one in that circle.  That represents where she first stopped, I believe, right?

(Witness complied.)

Q  With this green pen I hand you, mark the position of that man when you first saw him, again with the circled number one.
A  He had to be sitting on one of these first stools.  I think it was about the second one.  Make a circle right here?
Q  Yes, please, and put the number one in it.

COL ROCK:  Is that the man in the suit?

WITNESS:  Yes, sir.

Q  Now you've drawn a green circle with the number one, the position of the second circle representing the bar stool.  Is that correct?
A  Yes, sir, this is a bar stool.
Q  Now would you indicate for us with a green and a blue circle which booth they went to?
A  I'd say it was the second one, seems like it was the second one.
Q  Would you draw for us then, please, a green circle and a blue circle with the number two in it?

(Witness complied.)

Q  Now this girl passed you at some point.  Where were you when she passed you and you saw her?
A  The, men's latrine was right here.  It's kind of a -- place at the back of the bar where you can go through here, and I was looking to see what happened.  I was kind of standing right back here, and about this time I didn't see this girl sitting -- there wasn't no one else sitting over there, but him and the girl I'd seen come in.  About this time I was looking that way to see what happened, just curiosity, to see if I knew her, see what was going on, and she passed me, right about in here, and I glanced at her.  I looked that way -- I didn't see no girl sitting over there no more, so it had to been her passed right by me, and I looked to see if I knew her.  I didn't.  I just seen the side of her face.  I didn't see her whole face.  I seen the side of her face.  She was, say, right here.
Q  Indicating to your left at the position of an arm's length?
A  It wasn't even arm's length.  It was just about that close.
Q  About two feet?
A  Right, and I just looked at her side, you know, to see if I knew her, and the only thing I noticed odd about her was she didn't have on a hat.  I noticed that, but she had her mouth open like she was -- I don't know how to explain that -- it was just gaped open and her teeth -- I noticed her teeth was straight like a person that worn braces before.
Q  Now if I may, you've drawn a blue line there.  At the bottom end of it would you draw a blue circle with the number three in it?

(Witness complied.)

Q  Now this indicates the path of the girl as she passed you.  Is that correct?
A  Yes, sir.  Now this is the first time.  I was back here in this part -- later on is when I saw her pass me.  This is the first time -- I started walking this way, and this guy grabbed me that was talking to me.  I didn't know him personally.  He started talking to me.
Q  What was he talking to you about?
A  I don't remember.  I think it was just "How are you doing?" or something like that, just seemed to want to attract my attention for some reason or another.
Q  Now where were these two white men standing?  Indicate with your finger, please.
A  Right here, right inside the door.  Not on this side, they were standing right here.  There was a man in a suit standing there talking to them.  It seems like he was the one that had took her over to the side.  I'm not positive -- but he was dressed in a dark suit, a young guy.
Q  I have given you a yellow pen.  Would you, with an oblong marking position of both of the two men?
A  There was a door right here.  I'd say it was just inside the door standing right side by side here.  And this other guy was standing right here talking to them, talking to the first one.
Q  He was standing in the center?  Now you've marked two small yellow circles inside the door on the right side of the diagram, to the left of the door.  Is that correct?
A  Yes, sir, right by the front door, just to the right as you come in.  This is the front bar here and this is Hay Street, and this is coming in the front door of the bar, sitting across from the train station.  It would be to the right of the door as you come in, standing right there as you go in the door.
Q  Where were you standing when you noticed these people?
A  I had walked back up in this general area.
Q  All right, would you mark your position with a red pen, please?
A  I had walked back up in here in this general direction.  I would say I was right there.
Q  Would you put a two inside that red circle?

(Witness complied.)

COL ROCK:  Was this after the blonde had passed you?

WITNESS:  Yes, sir.

Q  So this represents the first time that you had noticed the two Caucasians, the white men at the door you've described?
A  Yes, sir.
Q  Now where was this Negro that you've made reference to?
A  Well --

COL ROCK:  Let's go back to the black marking pencil and just make an X mark.

A  He was standing right there.
Q  You've drawn an X in the upper right hand corner of the bar.  Is that correct?
A  Yes, sir.
Q  Very good.  Can you tell us now, from the back pool table that you've drawn to the front of that lounge approximately how much distance is involved?  How far is it?
A  About as far from here to where that clock is.
Q  Indicating from yourself to the clock in the back of this hearing room?
A  Now from where I am standing now it's about -- it's not quite that far.
Q  How far?
A  At least -- I'd say, within about -- where that square goes back on that --
Q  Are you indicating a distance of perhaps thirty feet?
A  Yes, sir, I'd say so, close to it.
Q  Well, would it be more than thirty feet or less than thirty feet?

MR. SEGAL:  I would object.  The witness has indicated a place that we can now measure without having to speculate exactly to distance.  I believe we can even ask him to point where the maximum distance was, and we can then take a measurement at our leisure, other than guess at numbers.

COL ROCK:  Let the witness step the distance off and we can measure it that way much more quickly.

(The witness walked to the back of the hearing room.)

WITNESS:  I'd say from about here to where I was standing.

COL ROCK:  Now from that position, just step it off back to where you were, please.

(Witness complied.)

WITNESS:  Ten steps.

COL ROCK:  Thank you.

CPT SOMERS:  All right, you can have a seat.  If you will just leave those there I will give them back to their owner or owners.  (Indicating the pens.)

Q  What connection did this Negro have with the other people?
A  He didn't seem to have no connection.  He was just standing over the way I marked him there until they left.  He left with them.
Q  How tall was he?
A  He was taller than I was.  He was six foot or better.  He seemed to have a mustache, best I can recollect.  Seem like he just had a mustache and he seemed to be, I'd say, thirty years old, late 20's or early 30's.  I don't -- can't tell the age of a colored person too well.
Q  Now you have indicated him to be in the area of six feet.  Do you have any idea whether this could be more than six feet or less than six?
A  It could be more than six.  It wouldn't be less than six -- he was taller than I was, 5' 10½.  He was just standing there.  He didn't seem to be staring at anything particularly.  He was just standing there.
Q  Now in what order did these people leave?  Did you see them leave?
A  Well, I kept noticing, watching them -- that is to see what was -- and they wasn't there -- they weren't there fifteen minutes, if they were there that long.
Q  And in what order did they leave?
A  They went out this door on the other side.  They came around and went out.
Q  Indicating the door on the left side of your diagram?
A  Right.  And that's when I noticed this colored guy in a fatigue jacket.  I thought he was wearing a whole suit of fatigues, but he had on civilian trousers.
Q  How many people left all at once when these people departed, or did they all leave at once?  If they didn't, how was it?
A  Well, the two guys left with him.  I'm not positive.  I just, curiosity, I was just watching that guy in a fatigue jacket, you know, what he was doing downtown in fatigues.  I thought he had a whole suit of fatigues.
Q  Did he leave with the girl?  Excuse me, go ahead.
A  Well, she disappeared about the same time they did.  I didn't see her no more, so she must have left with them.
Q  You say "they," who is the "they?"
A  The two guys standing at the door, this colored boy and the guy in the suit.
Q  Did you ever have any information which led you to believe there was any connection between this colored man and the other people that you've described?

MR. SEGAL:  Well, that's objected to.  The objection is obvious when he said they left or appeared to leave together.  That's an improper question.

CPT SOMERS:  I'm not sure that that's what he said, and I'm trying to get the basis for his lumping this man in with the others, if, in fact, that is what he said.

MR. SEGAL:  I would request that the question be rephrased.

CPT BEALE:  Rephrase the question and let's try it again.

Q  Did you actually see these people leave, go through the door?
A  I seen the two guys and this colored Sergeant, the guy with the fatigue jacket on.
Q  You saw them leave?
A  Right.
Q  Were they together when they left?
A  Did I what?
Q  Were they together when they left?
A  Yes.
Q  And if you saw them leave together, and I gather this girl wasn't there with them when they left?
A  I'm not sure.
Q  And you say you reported this to a man named Scottie Sutherland.  Is that correct and who is he?
A  He's in the CID.
Q  What CID?
A  Fort Bragg, that's all I know.
Q  Are you sure of that?
A  Well, he told me.  I'd been knowing him before he was in the CID.  He said he was going in the CID.  He wore plain civilian clothes and suits, so I guess --
Q  If I were to tell you that Mr. Grebner, the commander of the Post CID has indicated that there is no Scottie Sutherland in the Post CID or Provost Marshal Investigation Section, and has not been within the last year, would that surprise you, or would you agree that that's correct?
A  That would surprise me.  He told me he was in the CID.  I just took his word for it.
Q  Now you say you called the FBI with reference to this matter.  Is that correct?
A  Later on about a week or so, I don't remember the exact length of time, I called them and asked them if they got that information, and they said they had access to that information, the CID was handling it.
Q  Which FBI office did you call?
A  Fayetteville, I just looked it up in the telephone book, and called them up.
Q  What are they listed under in the phone book?
A  U. S. Government.
Q  Would you describe the lighting in this lounge?
A  It's fairly dark.  They don't have no bright lights on.  You can see people without running into them, but I mean it's not -- it's not pitch black.  I don't know how dark you'd call it.
Q  Was there anyone in that bar that you can remember now by name at the time of this incident?
A  I'm not positive.  I can't remember.  I didn't say nothing about it to no one that night.  I had forgotten all about it until I got to reading it in the papers about this, where I could remember where I had seen someone carrying a candle.  I just kept in my mind that I'd seen someone carrying a candle.
Q  You don't remember anybody in that bar by name who was there at that time?
A  No, sir, I don't.
Q  Did you go to that bar very often?
A  Yes, sir.
Q  You've been there before that?
A  Yes, sir.
Q  Do you know the people who usually frequent that bar?
A  Yes, sir, it's one of the --
Q  I'm not asking where they are, I'm asking do you know some of them.
A  I know them when they come in there if I have seen them before.  I know them by face more than by name.  I don't pay any attention to nobody's name.  Some I know their name, some I don't.
Q  How often do you go there?
A  Oh, I'd say -- I hadn't been there in the past couple of weeks.  About every time I go to town I go by there.
Q  What do you do for a living, Mr. Sutton?
A  I sell professional uniforms, beauticians, advertising specialties, such as book matches.
Q  Have you ever had occasion to see in the newspaper or hear on the radio information in this case?
A  Yes, sir, I seen it about two or three weeks ago.
Q  You saw it how long ago?
A  Two or three weeks ago I believe it was.  I noticed it in the paper.
Q  You mean two or three weeks ago?
A  Yes, sir.
Q  Have you had occasion to give your information to any other law enforcement agent from the time you talked to the FBI?
A  No, sir.
Q  And why is it that you've come forward now with this information?
A  The information seemed to never come out to what I told that I seen.  I figured if I knew something that would help someone, I felt that I was --
Q  Are you prompted to be here by the offer of reward?
A  No, sir.
Q  Are you hoping in any way to benefit by being here?
A  Not especially.  I'll be glad to get out of here.

CPT SOMERS:  I have no further questions.

Questions by MR. SEGAL:
Q  If I may, Mr. Sutton, just a couple of matters.  Did you read about that reward before or after you called the reporter with the newspaper?
A  I read it before, but I didn't call the newspaper reporter until it was two weeks after that, I guess, a week or so afterwards.
Q  Did you ever talk to myself or anybody at all connected with the MacDonald case about that reward?
A  No, sir.
Q  Did anybody ever mention the reward to you?
A  No, sir.
Q  Do you know what the conditions are for receiving any money in connection with the information given?
A  Only information I know was arrest and conviction of the ones that have been described, other than what I read in the paper, that's all I know.
Q  I show you a white hat previously marked and identified for the record in this case as A-42.  Does this resemble a hat which you've ever seen before?
A  That is similar to the one she was wearing.  It seems like it had more flop in it and curved down on the sides, like it does in the front.
Q  How about this general style, aside from the way --
A  It was that type, with a high top to it.
Q  If you could, would you give us any more description of the way this young lady appeared when she walked back past you, besides the way she held her mouth?
A  She seems, just seemed to -- wasn't looking to the left nor to the right.  She was just walking and -- in one direction, straight ahead, like she knew where she was going.  She was headed that way, she wasn't looking, smiling, just had that one expression on her face.
Q  Did you notice anything about her eyes?
A  Her eyes were just open.  That's all I noticed, staring straight ahead.

MR. SEGAL:  Thank you very much.  I have nothing further.

CPT BEALE:  Re-cross?

Questions by CPT SOMERS:
Q  Mr. Sutton, do you have any convictions on your record?

MR. SEGAL:  That's objected to, sir.  I have no idea.  I'm just saying I think it's an improper question to ask a witness who comes forward under circumstances like this.  I think it is calculated to discourage people from being willing to participate.  If the government wants to find out, they have the man's name and address, and they can get the information without embarrassing the person whether it is true or not.  I may be doing him a disservice by even arguing about it.

CPT BEALE:  Sustained.

CPT SOMERS:  No further questions.

COL ROCK:  Is counsel for the government planning to introduce this as an exhibit for our use?

CPT SOMERS:  Perhaps I'd better do that.

COL ROCK:  Please have the witness to sign and date.

CPT SOMERS:  Mr. Sutton I am going to ask you to sign your name and the date, which is the 14th of August on right hand bottom side of this sheet.

WITNESS:  August what?

CPT SOMERS:  August the 14th.  Mr. Sutton, this is the diagram that you just made, is it not?

WITNESS:  Yes, sir.

CPT SOMERS:  I offer this diagram, signed by Mr. Sutton and made by him during his cross-examination, as a government exhibit.

COL ROCK:  Does counsel for the accused have any objections?

MR. SEGAL:  No, sir, I do not.

COL ROCK:  This will be accepted as Government Exhibit 104, drawing of the interior of Rick's Lounge.  I would like the exhibit put back on the tripod so I can ask some questions on it.

COL ROCK:  Mr. Sutton, how many people were in the bar at the time that you observed this unusual occurrence, approximately?

WITNESS:  Seemed to be quite a few sir.  There was a -- seem like all the bar stools were full and I was in the back at the time.  There wasn't no one sitting in the booths over here.

COL ROCK:  Anyone at the tables?

WITNESS:  Not that I recollect.  I don't know if there was anyone at the tables or not.  I'm not sure.

COL ROCK:  What were the weather conditions outside at that time, do you recall?

WITNESS:  It had been raining or seemed like it had been raining.  I'm not positive but it seemed like it had been.

COL ROCK:  When you observed the girl with the candle, did you see her as she was coming through the door, or after she was inside Rick's Lounge?

WITNESS:  After she was inside.  She was coming, I'd say, right from the door.  I just happened to be looking at that direction at the time, and it attracted my attention when I seen she was carrying a lighted candle.  That is what attracted my attention.

COL ROCK:  What color was the candle?

WITNESS:  That I didn't get close enough to --

COL ROCK:  What size did it appear to be?

WITNESS:  It would seem to be about that high, say --

COL ROCK:  Indicating about -- let the record reflect about four to five inches, would you say?

WITNESS:  It might have been three or four.

COL ROCK:  Was the candle in a candle holder, or was she holding it with her bare hands?

WITNESS:  She seemed to be carrying it with both hands, holding it -- something -- I don't know what it was setting in but it seemed like she was carrying it with both her hands, like that.

COL ROCK:  Did you know the bartender on duty that night?

WITNESS:  I probably did, but I don't remember which one it was.  They change day and night.  They have different ones.

COL ROCK:  Did you have occasion to discuss with the bartender?

WITNESS:  No, I mentioned to someone, I said, "Did you see that girl with a candle?"  They said no and just laughed it off.  I didn't think no more about it until later on that week when I was reading in the paper about it.

COL ROCK:  When the girl passed you at your position indicated as a red one on Government Exhibit 104, was she heading perhaps for a ladies lounge?

WITNESS:  I took that as -- idea of where she'd been.  There was nowhere else to go, I didn't think.

COL ROCK:  Did you ever see her after that one incident when she passed by you?

WITNESS:  No, sir.

COL ROCK:  If I recall, you mentioned when you went from position one to position two, somebody stopped you to talk to you?

WITNESS:  Yes, sir.

COL ROCK:  Is the position of that individual indicated on Government Exhibit 104?

WITNESS:  No, sir.  I started -- I was standing right back here when I seen her and I started walking that way.  I was going to see what was going on.  Some guy right here grabbed me and pulled me over to him -- started talking to me.

COL ROCK:  And is that position approximately at the -- by the third stool from the bottom of the bar heading toward the top of the diagram?

WITNESS:  It could have been, it could have been.  It was either the second or third one, somewhere in there.

COL ROCK:  I'm just trying to identify it.

WITNESS:  In that general area.

COL ROCK:  What was that fellow wearing?

WITNESS:  He seemed to be wearing a suit that night too, but he seemed, I don't know, I don't remember what he was talking about.  He said, "How are you doing?" or something like that -- how are you doing tonight?  I didn't know him real personally, just to see people, speak to them, that's all.

COL ROCK:  How long did you converse with him?

WITNESS:  Just a minute.  Kept noticing where that girl with the candle was.  I kept trying to see.  Some guy just took her over to this booth over here, kept glancing over there.  I didn't -- it was curiosity.  You didn't usually see someone walking around with a lighted candle.  That's what attracted my attention to it.

COL ROCK:  Now when you first saw the girl with the candle, what were you doing?  Were you sitting down or just standing?

WITNESS:  I was just standing, looking, I just happened to be looking that way, straight up toward the front.  I don't even know why I was looking that way.  I just looked and about that time this girl came in that had the candle, with this funny-looking hat.

COL ROCK:  But you observed her actions from the time she entered the door to the time she sat down at the booth, until the time that she passed you, all from the position one.  Is that correct?

WITNESS:  I am not sure I know what you are talking about.  I'll show you.  I was, when I first saw her, I was standing back here.  She came in the door.  This guy -- some guy sitting right here seemed to know her.  He got up and he went over here and sat down in a booth, sir.

COL ROCK:  And all that time you were at position one, correct?

WITNESS:  Well, I was standing right here.  Then I started walking that way and this guy sitting here seemed to gab me by the arm and started talking to me, and I just kept glancing that way, you know, and I walked -- and I couldn't see the girl with the hat on any more, so I kinda walked back this way, and I kept wondering who that girl was, about the time she walked by me.

COL ROCK:  So you went from position one to a position somewhere near bar stool two or three, then you returned back to position one where you saw her at the circle marked three?  That's approximately where you saw her?

WITNESS:  Right, she came walking by me.

COL ROCK:  Then subsequently you moved up to position two, is that right?

WITNESS:  Right, I walked up there, was wondering what was going on and this colored boy was standing there with a fatigue jacket and these two guys were standing there, and there was some guy standing there talking 'em.  That, I'm not sure who he was, or who they were, I'd never seen him before.

COL ROCK:  Now you say it was dark in the lounge.  Is it about dark similar to other lounges, other bars that you've been in in Fayetteville?

WITNESS:  Well, this was not -- anyway, they don't have too many lights in there.  It was lighter in the day time, and when it was dark it made it that much darker.  You could see people after your eyes adjusted to the dark.  You could see where you were going.

COL ROCK:  What color was this bruise that you saw on the Negro?

WITNESS:  It seemed to be above his left eye, right in there, his eyebrow, kinda right in here, looked like bright red or something, like it was puffed up, like he had been hit.  I just took for granted it might have been a fight or something.

COL ROCK:  It did looked puffed up and reddish?

WITNESS:  Yes, a bruise or something.

COL ROCK:  I have no further questions.  Does either counsel?

MR. SEGAL:  I have nothing further, sir.

CPT SOMERS:  I do, sir.  This was the night of Tuesday?

WITNESS:  Yes, sir.

CPT SOMERS:  I have no further questions.

COL ROCK:  Mr. Sutton, you are requested not to discuss your testimony with any person other than counsel for the government or counsel for the accused.  Do you understand this?

WITNESS:  Yes, sir.

COL ROCK:  You are excused, sir.

(Witness departed the hearing room.)

COL ROCK:  In view of the hour, I would suggest that this hearing should be recessed until 1345.

CPT SOMERS:  I would request 1400.

(The hearing recessed at 1217 hours, 14 August 1970.)