Trial Transcripts
July 20, 1979
Kenneth Mica (MP)
Scans of original transcript
F U R T H E R P R O C E E D I N G S 9:00 a.m.
THIS CAUSE came on for further trial before The Honorable Franklin T. Dupree, Jr., United States Chief District Judge, and a jury, on Friday, July 20, 1979, at Raleigh, North Carolina.
(The following proceedings were held in the presence of the jury and alternates.)
THE COURT: Good morning, ladies and gentlemen.
MR. BLACKBURN: Judge, before we begin this morning, could Counsel approach the Bench?
THE COURT: Yes.
B E N C H C O N F E R E N C E
MR. BLACKBURN: We are concerned about the letter which Mr. Segal wrote to you a day or so ago concerning the advertisement in the Fayetteville paper. As I understood last Saturday's conference, you indicated that no ad was to be placed in the newspaper until certain conditions were met.
THE COURT: Yes; I thought that was a fair trade.
MR. BLACKBURN: Those conditions have not been met. I understood from Counsel this morning that they have, in fact, contacted the newspaper to place the ad. I think what we need is some clarification.
THE COURT: Let's hold up on that until we see what the record said. I can't remember exactly. Just hold up on everything.
MR. BLACKBURN: Would that mean the ad should not be run?
THE COURT: And this weekend Ervin can put somebody on that tape and find it for us.
MR. BLACKBURN: Is it fair to say the ad should not run until that?
THE COURT: Yes; if you think it is contrary, I have some recollection of it, and I may have it in my notes, but I just don't remember it. But I thought there were certain things that they were to do to get clearance on it. I just have that vague recollection.
MR. SEGAL: I have a matter, if I may.
If Your Honor pleases, at this time, the Defense is withdrawing its stipulation to the use of the Government's model, because it is not as it was represented to us before trial. The representation made to us about this model --
THE COURT: (Interposing) Are you talking about Government 1?
MR. SEGAL: Yes, Your Honor; the representation that was made to us before the trial was that the model would depict the building and its contents as they were at the time of the crime. Having looked at the model, and then having attempted to use the only evidence that the Government had to base its model on -- the same pictures -- since the Government has now told us in open court that the photographs do not represent the crime scene as the first military police found it.
Until the Government lays a foundation for the placement of the furniture in this building, we cannot agree to it. We were told something else. We know the source, because the Government has told us the source of where they placed the furniture and how they placed the furniture, which was named by these very photographs that we have sought to question the witnesses about.
Now, the Government says it isn't that way. They have an arrangement there which does not represent how the furniture was when the MPs arrived there. At this point, we will not stipulate to the contents of the building. We certainly agree that the building itself is, to the best of our knowledge, a fair representation of the rooms and the size in that regard.
THE COURT: I understood you to say that your expert said it was the Rolls Royce of all models that he had ever seen.
MR. SEGAL: Absolutely, in terms of the way it was constructed and the details.
THE COURT: Your complaint is about the arrangement of furniture in it?
MR. SEGAL: Yes, Your Honor.
THE COURT: At the appropriate time, I will simply instruct the jury that they will have to -- they will not be governed by what the model says, but by what the witnesses say that things were. If it illustrates, it does; if it does not, it won't.
MR. SEGAL: Excuse me; that does not deal with the problem, Your Honor, because the Government has now placed in it these little figures; and they have witnesses pointing to the jury as if this is the way it was. The jury is being led --
THE COURT: (Interposing) You can bring all that out on cross-examination. If the witness says that is the way it was, even if it wasn't, it is that much evidence. It is bad evidence, maybe; but it is evidence.
MR. SEGAL: I would agree, Your Honor; but there are two problems. First of all, we have not been allowed to show the witnesses the photographs of the building and say, "Is this the way they were taken?" These are Government photographs taken within a couple of hours, and this is the basis on which they built the model. The model is not the same as the photographs; the photographs are not the same as the crime scene.
At this point, the jury is being shown as if it was a fact -- this place. Now, all the Government has to do is now put on some witness at this juncture to authenticate that this, they think, is a reasonable placement.
THE COURT: I will cross that when they come to it. I will let you cross-examine the witnesses at such length as is necessary to bring out your side of it, and if it is not right, it is not right. If you can show it is not right, then that is what you are supposed to do. But the model -- as far as it is concerned, it is in evidence without objection, and I am not going to disturb that. They have had it here for 24 hours in front of them, and I could not withdraw it if I wanted to, as far as their recollection.
MR. MURTAGH: Your Honor, may I respond?
THE COURT: Yes.
MR. MURTAGH: Your Honor, while we said that the furniture was an accurate scale model, and we do represent that some of it was made from the actual items that were still left in the crime scene -- and the rest of the photographs we used for approximate representations; but Your Honor is correct. It is the testimony of the witnesses that we are relying upon. Mr. Segal is again trying to use the photographs which the Government does not maintain are the best evidence of what the crime scene looked like -- the third set of photographs.
I would only inquire, does Your Honor's ruling as to photographs -- that none be shown to the witness until --
THE COURT: (Interposing) It still stands.
MR. SEGAL: If Your Honor pleases, I don't understand how the Defendant can cross-examine witnesses using a model here which has never been authenticated as to the position of all its contents. We have not agreed to this, because we were represented something else. This model has not been introduced by way of a ruling; it was introduced by way of stipulation. We have withdrawn the stipulation, because we do not think it is as represented as to the contents. We don't object, Your Honor, as to the structure itself. Therefore, there is no basis.
(Bench Conference terminated.)
THE COURT: All right. Members of the jury, with respect to the model that has been introduced into evidence here without objection, I am now told by Counsel for the Defendant that the Defendant does not gree that the placement of the furniture and other moveable articles within this model, as shown to you, are correct. Therefore, I will instruct you that you will have to weigh the evidence of each witness who undertakes to place some object in this model with the same care and against the same standards as you judge or assess his testimony in all other respects.
Now, let's go on with the trial of this case. I believe you had a witness who had just been turned over for cross-examination, did you not?
(Whereupon, KENNETH C. MICA, the witness on the stand at the time of recess, resumed the stand and testified further as follows:)
THE COURT: All right; proceed.
MR. SEGAL: Thank you, Your Honor.
C R O S S - E X A M I N A T I O N 9:10 a.m.
BY MR. SEGAL:
Q Officer Mica, have you been able to orient yourself by the use of those two charts up there as to the directions north, south, east and west; and if necessary, would you take a look at the charts to help yourself?
A Yes; I can.
Q Are you clear in your own mind today as to the north, south, east, west directions as far as the MacDonald house on Castle Drive is located?
A Yes; I am.
(Pause.)
BY MR. SEGAL:
Q May I ask you to come and take a look at this interesting model over here and orient yourself again to this?
A Okay.
Q Now will you take a look -- there is a compass rose that is located here on the lower right-hand corner of this model. Do you see the compass rose?
A Yes, sir.
Q The compass rose shows north by the letter "n," does it not?
A Yes, sir.
Q In which direction does this model indicate that north is located?
A More or less pointing up towards the rear of the house.
Q I am asking you to look at the compass rose where the letter "n" is.
A The letter "n" is down here, but I believe it is pointing in that direction.
Q Where is the longest part of the point in this compass rose?
A Towards the bottom.
Q Wouldn't that ordinarily indicate to you that the compass rose is pointing north by pointing to the south on this particular model? Take a look at it.
A I understand what you are saying, but to me it is clear which way north is.
Q I agree. Which way is north?
A That way.
Q On the far wall here, as a matter of fact, we have it marked with the letter "n" on the far wall.
A Yes.
Q The compass rose down here, of course, marks north at what you and I agree is the south end -- is that right?
A Yes, I believe it is pointing that way.
Q Did you ever see a compass where north was pointed to by the back of the compass rose?
A No, but when I draw north I usually draw the letter "n" and put a line through it pointing in that direction. To me that is the configuration of this thing -- the main part of the metal plate itself seems to be in that direction.
Q Let me ask you if you were to place this to orient north, wouldn't you put the end at the top here and point it toward the north end of the house?
A Yes, but the configuration of this piece itself is in more or less the shape of an arrow. I figure north to be pointing that way.
Q There is some ambiguity, isn't there?
A I don't see any.
MR. MURTAGH: Your Honor, we object. The Government will stipulate if necessary to speed this up -- that perhaps the plate was glued on in the wrong direction. I don't think the witness is being cross-examined as to something he did or he testified to.
MR. SEGAL: In view of the Government's stipulation to the fact that the compass rose can be recognized as pointing in the wrong direction --
MR. ANDERSON: OBJECTION to the comment.
THE COURT: I will SUSTAIN that.
I did not under understand that to be encompassed in the stipulation. He just said that it "might have been" glued on in the wrong way -- go ahead.
MR. SEGAL: All right, thank you.
Officer Mica, would you return to your seat, please?
BY MR. SEGAL:
Q Now, on the morning of February 17, 1970, when you and Specialist Morris were headed for 544 Castle Drive --
A Yes, sir.
Q You were responding to a radio message you had received from a dispatcher at the MP Headquarters?
A Yes, sir.
Q What did you believe was the nature of the emergency that you were responding to at that time?
A That was given over as a domestic disturbance.
Q You had no idea at that time that you were headed to what turned out to be a triple murder and a possible assault on a fourth person?
A No, sir.
Q But at the same time I assume it is fair to say that you and Morris were going there as expeditiously as possible?
A Yes, sir.
Q Domestic disturbances are obviously a matter that have to be dealt with promptly?
A Generally, yes, sir.
Q Now, when you arrived at the intersection of Honeycutt and North Lucas Road, you told us yesterday that you saw a female standing at that corner?
A Yes, sir.
Q Now considering the time in the morning -- a little before four -- and the weather -- was this not unusual to have seen a person standing there --
MR. BLACKBURN: OBJECTION.
MR. MURTAGH: OBJECTION.
THE COURT: Let him say whether or not he customarily saw people like this at that time in the morning. OVERRULED.
THE WITNESS: It was unusual -- it was not uncommon.
BY MR. SEGAL:
Q There is no bus stop at that corner, is there?
A Not that I recall.
Q There is a commissary that is right close by the intersection, is there not?
A Yes, sir.
Q A commissary is in fact a supermarket for the families of military personnel?
A Yes, sir.
Q The commissary was not open at that time, was it?
A No, sir.
Q There is also a gasoline station located at one of the other parts of the intersection?
A Yes, sir.
Q Was that gasoline station open at that time of the morning?
A No, sir.
Q And across the street from where this woman was, was the beginning of the Corregidor Courts residential area, was it not?
A Yes, sir.
Q Considering all those things -- the time, the weather, the places that were there -- if you had not been responding to what you believed was an emergency call, would it have not been a usual practice to have probably checked out in some fashion the presence of this particular person?
A Yes, sir.
Q But in this instance because you had been advised by dispatchers of an emergency, you and Morris felt the necessity to go on and answer that call?
A Yes, sir.
Q I would gather from your testimony yesterday that the observations you were able to make of this woman were relatively brief?
A Yes, sir.
Q She was, I understood, a young person?
A I don't believe I mentioned her age.
Q Then let me rephrase that -- did you have the impression that she was a young person -- somewhere between the ages of 18 and 25 or so?
MR. MURTAGH: OBJECTION.
THE COURT: OVERRULED.
BY MR. SEGAL:
Q You may answer.
A I was under the general impression that she was in the 20's to 30-year age.
Q And you also observed a hat that she was wearing at that time, did you not?
A Yes, sir.
Q And yesterday you characterized it as a rain-type hat.
A Yes, sir.
Q I don't mean to say that that isn't correct, but can I add to it and ask whether you agree that it was also a "floppy" hat.
A I believe I described it as a "wide-brimmed" hat. It was fairly large.
Q Would a full description of that hat on that lady you saw at that time be that you thought that it was a rain hat with a wide brim and that it was "floppy"?
A I would say it was wide-brimmed and it was full-sized -- it appeared to be somewhat "floppy" -- yes, sir.
Q You were also able to, I think, observe something of the hairdo on this woman?
A Yes, sir.
Q And that hair was shoulder-length, the best you could observe?
A As best as I could observe, I believe that it was.
Q Now, after you made these observations at that corner -- by the way -- would you be able to come to a stop at that corner?
A I don't recall if we actually stopped -- I know we slowed down pretty close to a stop -- to check the intersection before we proceeded through.
Q Just simply because it was a large intersection and it was a cautious way to proceed through.
A Yes, sir, and I believe we had a red light facing in our direction.
Q I think you told us yesterday what the distance was from that intersection -- where this young woman was standing -- to the MacDonald house and it was something about ½ mile --
A That's right, I believe I said it was something in excess of a half mile.
Q If I were to convert that into blocks, would I be correct in saying that that was about five blocks from that corner where the young woman was to the MacDonald House at 544 Castle Drive?
A City blocks?
MR. MURTAGH: OBJECTION.
BY MR. SEGAL:
Q Shall I restate it?
THE COURT: OVERRULED.
BY MR. SEGAL:
Q Let me restate it again. Would I be correct if I were to say if we converted the "in excess of half a mile" statement to blocks -- as the distance from where that young woman was to the MacDonald house at 544 Castle Drive -- was about five blocks?
A I would say at least five country blocks.
Q Now when you arrived at the MacDonald house, how many other Military Police vehicles were already there?
A There were two that I am certain of. There possibly could have been more.
Q And the two that you were certain of, one of them was the vehicle which contained Lieutenant Paulk and his driver, Sergeant Dickerson?
A Yes, sir.
Q The other would be the vehicle which Sergeant Tevere, and I think it's probably Specialist D'Amore, was in?
A Yes, sir.
Q Then there is your vehicle with you and Specialist Morris?
A Yes, sir.
Q You had the impression that there may have been even additional MP vehicles?
A It is possible.
Q Now were the Military Policemen there at that point, gathered around the MacDonald house in some kind of spread-out fashion surrounding it?
A No, sir.
Q Were the Military Policemen along the side and the front of the house stationed there?
A No, sir.
Q Well, where were these various Military Policemen when you came up?
A I believe Paulk, and possibly Tevere, were at the front door, and the others were standing back towards the sidewalk.
Q The others were standing where?
A Back away from the front door. I believe there is a little sidewalk that leads up to the doorway.
Q About how many feet away from Paulk and Tevere were the other men?
A I don't recall.
Q Just for the purpose of clarification, to the best of your recollection, would you point to some place where you might be? Let's assume you are at the front door, where Tevere and Lieutenant Paulk were?
A I would say no further than the far end of the model.
Q The far end of the model -- about 10 feet?
A I believe that is a little more than that.
Q Just for edification's sake; yes, you are right. But let's just measure it.
A I would say that is closer to 13 or 14.
Q It's about six feet to there -- nobody will hold me precisely to it. Twelve, about fourteen feet; all right? So there were two military persons on the steps, and the others -- whatever number they were -- were standing about 14 feet away, and what were they doing? Looking at the front door?
A I believe they were just waiting to see if they were going to answer the door.
Q At that point, was there any Military Policeman that you were aware of, or that you learned of around the back of the house?
A None that I was aware of.
Q What did you do then as you came up to this group of men?
A I believe I asked what was going on -- if they had gotten in to the house. They said, "No, evidently it's the wrong address."
Q Do you recall who said that, about it possibly being the wrong address?
A No, sir.
Q Would it have been one of the men in the group away from the step, or would it have been one of the two persons at the door, Lieutenant Paulk and Sergeant Tevere?
A I don't recall, sir.
Q Did anybody else say anything at that juncture when you asked what was happening?
A Well, I know at one point -- I don't know if it was at that juncture -- but at one point, we did start to proceed around to the back of the house.
Q When you say "we," could you tell us who that was?
A Sergeant Tevere was ahead of me.
Q Did he say, "Come with me," or did he just sort of take off?
A He started going around the back. I followed him a short time later.
Q What was your purpose in doing that -- going with him or following behind him?
A Well, we knew that there was a back door to the house and also we had seen some light through the front window of the house.
Q Had you seen that light from the position you had on the sidewalk or on the little walkway up to the house?
A As I approached the front door, I could see it, yes.
Q About how far ahead of you was Tevere when he headed to the rear of the MacDonald house?
A I don't know exactly when he left. I know he did leave to go around to the back and I followed a short time later.
Q Could you see him ahead of you?
A No, sir.
Q Did you have occasion -- and I think you may have told us about this yesterday, but clarify if you will -- to look into the house from any window?
A I believe -- I didn't actually look into the house, but as I said -- I saw the light coming from the front windows of the house. it did appear that there were lights on in the house and at that point, I proceeded around to the back.
Q And in order to walk around to the back of the house, you had to walk on the lawn at that time; did you not?
A I believe there was a cement sidewalk that went around the side.
Q That did not go all the way around, did it?
A I don't recall; I think it may have. I don't really recall.
Q Was the sidewalk wet at that time?
A Yes, sir.
Q Was it raining at all?
A I don't believe it was raining at that time. I think it had just rained prior to that.
Q By any chance, would you remember on the way over to the MacDonald house, with Specialist Morris, whether he had the windshield wipers on in the jeep that you were riding in?
A I don't recall, sir.
Q And then before you actually got all the way around to the rear door of the MacDonald house, I gather that you met Tevere coming back?
A Yes, sir.
Q Tell us what he said?
A I ran into him on the side of the house. He yelled to me to "get Womack ASAP."
Q When you say "side," I assume that you are talking about the end here that is marked "west"?
A No.
Q You went around the east side of the house?
A Yes, sir.
Q All right, sir; you came around to the east side, you went down, and about how far down did you get before you ran into Tevere?
A I believe just about midway.
Q He said, "Get Womack ASAP"?
A Yes, sir.
Q Which is the shorthand for "as soon as possible"?
A Yes, sir.
Q Did he say anything else at that time?
A No, sir.
Q Was he excited?
A He was excited.
Q Was he shouting when he said that?
A I don't recall if he was shouting, but he was very assertive.
Q Did he continue running past you toward the front of the house where Lieutenant Paulk and the other MPs were?
A I don't recall if he ran past me or not.
Q What happened, or what did he do after he said the words to you?
A He proceeded back towards the back of the house.
Q And you, yourself, did what?
A I followed him back there.
Q And when he entered the house, how far behind him were you?
A I don't recall exactly how far behind him I was, but when he entered the house, I followed in behind him. I don't know the distance.
Q Was there any door in the back of the house?
A Yes, sir.
Q Describe that, if you will please.
A There was a screen door on the back side of the house and that door was closed.
Q The screen door was closed?
A Yes, sir.
Q How about the wooden door in back of the screen door?
A The inner door was open.
Q Could you describe to us the extent to which it was open?
A I believe, to the best of my recollection, I believe it was open about three-quarters of the way.
Q Open about three-quarters?
A Yes, sir.
Q Had the screen door closed behind Tevere when you got there?
A I believe it may have.
Q And how did you get through the screen door?
A How did I get through the screen door?
Q I'm not asking anything impossible; I assume you grabbed the door at the handle and went in?
A I opened the door and went in.
Q At that juncture, you had no idea whether touching the screen door handle would or would not be important to anybody at some later date; right?
MR. MURTAGH: OBJECTION.
THE COURT: SUSTAINED.
BY MR. SEGAL:
Q You didn't you use any special technique, did you?
MR. MURTAGH: (Interposing) OBJECTION.
MR. SEGAL: May I finish the question, Your Honor? I don't think the Government can read my mind.
THE COURT: I think that would be all right.
BY MR. SEGAL:
Q You did not use any special technique, did you, in handling the screen door in opening it? That is, a technique such as one might use when you are handling evidence to preserve it for fingerprints?
A No, sir.
Q I know that you are a professional police officer, and there are, of course, techniques that officers are trained in as to how to handle evidence to minimize any disturbance of latent prints, aren't there?
A Yes, sir.
Q That was not the issue in your mind at that time?
A Not at that time.
Q You were concerned, I think, with the fact that there were human beings who seemed to be in need of medical help, and perhaps more?
A Yes, sir.
Q When you went in -- and you were in that utility room of the house, I gather?
A Yes, sir.
Q What is the first thing that you actually saw after you got into the utility room that -- involving any people?
A I proceeded through that doorway right through the utility room, and I stopped right at the doorway that leads into the master bedroom of the house.
Q And was there some reason why you stopped there?
A Yes, sir.
Q Tell us why, please?
A I saw the body of Colette MacDonald lying on her back. I saw Dr. MacDonald lying with his face away from me, his head more or less up on her chest-armpit area, facing away, and a considerable amount of blood. At that time I felt that we had a homicide-suicide.
Q Now, you stopped at the door, you said?
A Yes, sir.
Q And the reason you stopped at the door was because of the scene you saw before you?
A Yes, sir.
Q Would it be fair to say when you took this all in -- the bodies, the blood, the rest of the scene -- you were shocked?
A Yes, sir.
Q Would it be fair to characterize it as a gory scene?
A It was gory.
Q Where was Sergeant Tevere at that point?
A He was directly in front of me.
Q He was actually standing in the bedroom?
A Yes. He was standing in the archway of the doorway, yes, sir.
Q Could you just show us, if you will, on the model -- I suppose it is best if we both stand back here -- where you were first of all?
A I was standing right about here, sir.
Q All right -- for the record, indicating still in the utility room, facing through the doorway, facing south; and where in the bedroom was Sergeant Tevere standing?
A Tevere was standing still in the doorway. I was right behind him. I may have even had my hand on his shoulder.
Q So he was just another -- probably a foot in front of you?
A Yes, sir.
Q By the way, there are here in this model some plastic figures. Is this the position in which you recall seeing the figures at that time?
A I believe --
Q Just answer for the record. Is that -- just, answer yes or no, and then explain it.
A No, sir.
Q The position in which they are lying here is not the way you recall?
A It is not the way I recall.
Q Now, would you be good enough to adjust the figures in the position that you recall seeing them that first instant?
A I can't adjust them because the way I recall it, Dr. MacDonald's head was turned the opposite way. The body is basically correct, but I believe his head was turned away. I couldn't see his face.
Q All right, let's take this away and first of all place -- well, do you have a fair recollection of the position of a green leather chair?
A Yes.
Q Which one of these pieces of furniture seems to represent that?
A This one (indicating).
Q All right, indicating the only model piece of furniture in the room that looks like an armchair, right?
A Yes, sir.
Q At this juncture, does that appear roughly to be in the position you remember it?
A Yes, sir.
Q Now, will you tell us whether the plastic outline of the figure of Colette MacDonald is in position as you remember it in reference to whatever furniture in the room that you can recall?
A Yes, sir, it is.
Q Would I be correct in saying it is roughly at right angles to the doorway, that it is parallel to the wall which is the doorway, let's put it that way?
A The way it is there, yes, sir.
Q What about the arms on this model -- what purports to be the right arm of a person?
A It seems to be toward her chest.
Q Is that the way you recall her arm?
A I don't recall that at all.
Q What about the left arm?
A The left arm is what I recall.
Q Now, this little figure which is putting blue ink all over my hands -- does that represent the way you saw the body of Dr. MacDonald at that time?
A As I said, I believe Dr. MacDonald had his head turned away from me when I first noticed him.
Q You mean the head would be facing toward the south part of the bedroom?
A I believe the doctor had his head more or less buried into Colette's armpit or chest area.
Q All right, can you -- let's stop a second and see if we can do a little better.
Now, go to the pieces of plastic that the Government has put here. They are in no way representative of the dimension and depth of the -- the three-dimensional depth of the bodies you saw, are they?
A No, sir.
MR. MURTAGH: OBJECTION. The question is argumentative.
THE COURT: I will OVERRULE the objection.
BY MR. SEGAL:
Q And if we were to try and get a better fix on how these bodies were, do you think you could do it if you had some three-dimensional models?
A I possibly could.
Q All right, let's try it.
MR. MURTAGH: May I approach the bench, Your Honor?
THE COURT: Yes.
B E N C H C O N F E R E N C E
MR. MURTAGH: First of all, Your Honor, I point out to the Court that Mr. Tevere saw the bodies first. The scene did not remain static and that wasn't the Government's point, to say that Dr. MacDonald remained static. But as to these figures, we would not stipulate to them -- they are not to scale, but we do have scale figures which are a neutral gray that could be used.
THE COURT: Do you have the three-dimensional ones --
MR. MURTAGH: (Interposing) Yes, sir.
THE COURT: -- that are to scale?
MR. MURTAGH: Yes, sir.
THE COURT: Well, have you shown them to Counsel?
MR. MURTAGH: I believe we have, but I will make them available to him.
THE COURT: Well --
MR. SEGAL: There are a couple things on the record. First of all, they are to scale. Mr. Murtagh hasn't even bothered to measure them. We represent they are to scale. And I have here a scale rule to measure them. Secondly --
THE COURT: (Interposing) Well, suppose they are not. What difference does it make?
MR. MURTAGH: If they are not to scale -- well, it is just that the Government --
THE COURT: (Interposing) Well, I think we are wasting time. Go on.
MR. MURTAGH: Yes, sir.
MR. SEGAL: If you want to show me a scale --
THE COURT: (Interposing) You are home free; go ahead. No more time here; let's go.
(Bench conference terminated.)
BY MR. SEGAL:
Q Well, let us start with the one I intended to show you. I would like to have marked, if I may, Your Honor, for identification only, two figures: one representing male, and that is D-7 for identification; one female marked D-8 for identification.
(Defendant Exhibits 7 and 8 were marked for identification.)
And I would ask Officer Mica if he would come down, please; and if you would first of all, using the female D-8, place that in the position that you best recall Colette MacDonald. You may move the arms somewhat.
(Witness complies.)
BY MR. SEGAL:
Q All right, to the best of your recollection, will you indicate the way -- the placement that you have made of the female model where it would appear that the right side of the head is quite close to the left side of the armchair?
A I would say, to the best of my recollection, yes.
Q The feet of the model are roughly pointing down the hallway. Is that right?
A Yes.
Q Now, if you would, take the male figure marked D-7 and place that as best you can in the position you first saw Dr. MacDonald?
A I believe it was something like that. I don't recall seeing his face when I walked in -- whether his head was down or turned to the side.
Q It may have been either face down on the carpet or facing south. In either instance, you would not have been able to see the face?
A Yes, sir.
Q That represents the placement of these two -- the placement of these two model figures, represents your best recollection of the position of the bodies when you first saw them?
A Yes, sir.
MR. SEGAL: Thank you. You may take the stand again now, sir.
Now, if your Honor pleases, in order to preserve this for the record, let me talk to Government Counsel. We need a moment to do that, your Honor.
(Counsel confer.)
MR. SEGAL: I think a moment or two more, your Honor, spent by Counsel may solve the problem.
THE COURT: All right.
(Counsel confer.)
MR. SEGAL: It is the proposal of Counsel, if your Honor pleases, with the Court's permission, that perhaps during the break, with the assistance of the Witness, we will place the figures in place. We will photograph them with a Polaroid camera in front of all Counsel and, if we agree we have captured the moment correctly, we will then subsequently offer that.
We are going to have several other uses for these models as they change, but at that point we will have a camera regularly in the courtroom and we will take all the pictures that we need.
THE COURT: All right, sir.
MR. SEGAL: Thank you, your Honor.
BY MR. SEGAL:
Q I think we left the set of events at your description of Sergeant Tevere being in front of you, Officer Mica, and you standing directly behind him?
A Yes, sir.
Q Having seen this scene, what is the next thing that you or Tevere did?
A At that point I just stood there. There was no reason for me to do anything else.
Q And how about Tevere?
A I believe he just stood right in front of me.
Q Finally, one of you did something, didn't you?
A Yes, sir.
Q What was that and who did it?
A Dr. MacDonald started to move slightly and he started to moan something.
Q Up to that moment, when you heard Dr. MacDonald moan and move slightly, did you believe that he was dead?
A Yes, sir.
Q And at that moment and prior to that moment, you believed that Colette MacDonald was dead?
A Yes, sir.
Q Then the sound coming from Dr. MacDonald's body and the movement -- that galvanized you into and Tevere into action, didn't it?
A Yes, sir.
Q What did either one of you do at that point when you heard the moan and you saw the movement for the first time?
A I approached through the doorway, and I got down between Captain MacDonald and his wife.
Q When you say you approached through the doorway, Tevere had been in front of you?
A Yes, sir.
Q What happened to Tevere?
A I believe he went in ahead of me but I was paying more attention to Dr. MacDonald at the time.
Q You responded to the sound and went to the person?
A Yes, sir.
Q Can you tell us what kind of movement Dr. MacDonald made?
A At that time it was just, you know, a slight movement. I don't know if it was his head or his shoulder area or the combination of the moaning and the slight movement.
Q Now, if you could show us -- if you could come down, please, officer Mica, and show us where you went when you came into this area?
A Okay. I got over between them.
Q The figures have slid. Let's place them again. We will hold them and when we photograph them, we will try to get them exactly in position. There's a space between?
A I positioned myself --
Q I think you have to keep your voice up for Mr. Blackburn out there to hear you.
A I positioned myself slightly between them right here (indicating). There was a little bit of a space.
Q All right. You got in between?
A Yes, sir.
Q Roughly to the feet of Dr. MacDonald and Colette MacDonald?
A Yes, sir.
Q When you were in there, what did you do? Were you standing up at that point?
A I believe I was on my knees at that point.
Q You went down on both knees?
A I could have been. I could have been squatting. I could have been on one knee. I could have been on both knees. I don't recall.
Q All right. Then what did you do as you were down on one or both knees?
A Well, I was looking at Captain MacDonald. He started to mumble something.
Q What were the first words that you understood him to say?
A The first words I understood were, "Check my kids. How are my kids?"
Q Did you know that there were children in the house at that time?
A No, sir. I didn't.
Q Did you know anything might have happened to the children in the house at that time?
A No, sir. I didn't.
Q What was your own reaction when he told you that?
A At that point I got up and I believe Tevere again -- I believe Tevere was ahead of me, but whether he had already started down the hallway or what but I proceeded down the hallway.
Q So that you were down on one knee or both knees for a few seconds and you heard these words by other people?
A Yes, sir.
Q That caused you to go down the rest of the hallway?
A Yes, sir.
MR. SEGAL: Thank you. If you will, go back again and we will ask you more questions in the normal place.
BY MR. SEGAL:
Q You say Sergeant Tevere was ahead of you when you went down the hallway, sir?
A I believe so, sir.
Q Do you recall him having his service revolver out at that time?
A I don't recall it. We didn't use revolvers, sir.
Q I am sorry?
A We didn't use revolvers. We used automatics, and I don't recall him having it out.
Q I am sorry; it is my mistake. You used a .45 Colt automatic?
A Yes, sir.
Q Do you or do you not remember whether or not he had that automatic out?
A I believe I heard him say later on that he did have it out, but I don't recall seeing it.
Q Did you have your automatic out at that point?
A No, sir.
Q Tell us what the two of you did as you proceeded down the hall?
A I proceeded as far as what would be the front bedroom in the house, and I just looked in.
Q Now, you say the front bedroom. As you are going down the hallway to the living room, is that the bedroom on your right or left?
A Left. I looked in through the doorway.
Q That room had no lights on at that point, did it?
A No, sir.
Q You, as a matter of fact, shined a flashlight into the room, didn't you?
A I believe I did; yes.
Q So that you could see what was going on?
A Yes, sir.
Q When you shined your flashlight into that bedroom, what did you see?
A I saw what appeared to be the dead body of a female child.
Q Was that body in the bed?
A Yes, sir; it was lying on the bed.
Q What else did you see about, other than the body and that it appeared to be dead?
A Just that the sheets had been -- the sheet and the covers were part way up onto the chest of the child,
Q What caused you to think that the child in that bed was dead?
A I could see a considerable amount of blood.
Q A considerable amount of blood?
A Yes, sir.
Q On the head?
A I believe it was on the head, and possibly some on the sheets.
Q Was there any blood on the floor that you could see at that time?
A I don't recall seeing any; no, sir.
Q Was the face of the child in the room turned toward the doorway?
A Yes, sir; I believe she was.
Q Did you see the condition of the face at that time?
A I don't recall at this time; but at that time I was under the impression that the child was dead.
Q It wasn't just because there was a lot of blood?
A No, sir.
Q It was the amount of blood, the stillness of the body, and what else you saw that persuaded you there was nothing in the world you could do for that child?
A At that point, nothing.
Q Was it a gory scene in that room?
A It was gory.
Q Where was Tevere, if you know, at that point?
A I don't recall.
Q I beg your pardon?
A I don't recall, sir.
Q He wasn't standing with you, though?
A I don't think so.
Q What was the next thing that you did?
A The next thing I did -- I proceeded a little further down the hallway, and I looked into the -- what you would consider the right bedroom -- the rear bedroom of the house.
Q Right as you are going down the hall?
A Down the hallway.
Q Again, that was a room that did not have a light on?
A No, sir.
Q You also shined your flashlight into that bedroom?
A I believe so; yes, sir.
Q What did you see?
A Again, I saw the body of a younger child -- female -- and she, too, appeared to be dead. She was lying in bed, with a large puddle of blood on the floor. I believe she had a baby's bottle near her mouth, or in her mouth, and a large amount of blood down the side of the bed.
Q An even gorier scene than the one you had seen before; right?
A Than the other child; yes.
Q You concluded without any doubt at that point there was nothing you could do for that human being?
A Yes.
Q Was Tevere with you at that juncture?
A I don't recall.
Q What did you do then?
A I proceeded right to the end of the hallway, and I just glanced around the living room and dining room area, and proceeded back into the master bedroom.
Q Why were you looking in the living room and dining room area?
A I just glanced around there quickly to see if possibly there was anybody else.
Q You mean, any other member of the family?
A Yes, sir.
Q Would I be correct in saying that, having just seen the bodies of those two children, that you were shocked by the sight?
A Yes, sir.
Q Did you happen to see Sergeant Tevere in the living room when you got down there?
A I don't recall seeing him in the living room, but I believe I brushed past him in the hallway on my way -- I know I brushed past him going to the living room area. I brushed past him; but I don't recall seeing him in the living room.
Q Was he going in the same direction, or was he coming back?
A He was coming back.
Q He was coming back from the direction of the living room, and you were going to just take a "look-see" also, whether there was anyone else that needed help, perhaps.
A Yes, sir.
Q You came back down the hallway to the master bedroom then?
A Yes, sir.
Q Sergeant Tevere was there?
A I believe he was; yes.
Q Do you recall where he was at that point in the master bedroom?
A No, sir; I don't.
Q He wasn't just standing in the doorway, was he?
A I don't recall.
Q You then went into the master bedroom, and what did you do?
A Again, I got down between the body of Mrs. MacDonald and Dr. MacDonald.
Q That would in the same area as you indicated before?
A Yes, sir.
Q Between the legs of these two bodies?
A To the best of my knowledge; yes.
Q All right. What did you do at that point?.
A I asked Dr. MacDonald what happened.
Q In what position was he then, Officer Mica?
A I believe at that time he was on his side.
Q Would you come down then, please, and take the little male figure and turn it as you recall him?
A I believe I had him over in this type of a position here (indicating).
Q You are indicating, then, that the right shoulder would be touching the ground -- the right side of the body was pretty much facing on the ground -- on the floor?
A I believe that was the position I had him in.
Q When you say you had him in that position, are you telling us you moved him, or he had moved or been moved prior to your coming back to these two bodies the second time?
A I don't recall if I moved him onto his right side or if he moved himself onto his right side.
Q Did you do anything else then with the position of his body when you came back the second time?
A Yes, sir.
Q If you will, please, tell us first and then show us.
A Okay; there came a point when I was speaking to him that he indicated that he was having difficulty breathing, and I rolled him onto his back.
Q Would you then take the little figure and turn it again?
A Like so.
Q So that he was now roughly parallel to the body of Colette?
A Parallel, but a little further down.
Q Parallel, but a little further down?
A Yes, sir.
MR. SEGAL: All right; we will again, when we take the photographs later on, ask you to show us these various positions, and will then be able to preserve that for further referral.
BY MR. SEGAL:
Q Now, why did you move Dr. MacDonald's body to that position?
A He had indicated he was having difficulty breathing and I wanted him on his back in case I would have to perform mouth-to-mouth resuscitation.
Q Perhaps this would be a good point for you to tell us, then, when you came back for the second time, and got between the two bodies, tell us whatever it was that Dr. MacDonald said to you at that time; and then we will ask you to show us some of the things you did.
A He said several things.
A lot of it was unconnectible at the time. He asked me how his children were. He said, "Look at my wife." He indicated he was having difficulty breathing. He also stated that he needed a chest tube.
Q When he said, "Look at my wife," did you tell him anything or say anything to him at that time?
A I indicated -- well, he had said other things, too. He said he had tried to find a pulse, but couldn't find a pulse.
MR. SEGAL: Perhaps we had better have you sit down, and we will talk about this. Then we will once more impose upon you to come down to the model.
(Witness complies.)
BY MR. SEGAL:
Q I think, probably, the best thing is we go through as much of what you can remember of what Dr. MacDonald said, whatever responses you made, if possible. To the best of your recollection, now, on the second visit to the two bodies before there, what is the first thing you recall Dr. MacDonald saying?
A The first thing I believe that he said was that he had asked me how his children were.
Q Now the first time he had moaned, he had also asked about his children too, hadn't he?
A Yes, sir.
Q Now you are back the second time and, again, he asked you about his children.
A Yes, sir.
Q "How are my children?"
A Yes, sir.
Q Did you say anything at that point?
A I believe I told him the children were all right, that somebody was attending to them.
Q I'm sorry, what did you say?
A That somebody was attending to them.
Q And you told him that, for what reason?
A Basically to try to reassure him that there was something being done -- to keep him quiet, also.
Q There wasn't any doubt in your mind, was there, that he was concerned about his children?
A He asked several times.
Q Was there any doubt in your mind he was concerned?
A No.
Q After you tried to reassure him, to keep him calm, what is the next thing that was said, between either one of you?
A Again, I don't exactly know what the next thing was, or the order in which specific things were said, but several times he said, "Look at my wife; look at the blood; I tried to find a pulse."
Q "Look at my wife"?
A Yes, sir.
Q He said, what, "Look at the blood"?
A "Look at all the blood."
Q "Look at all the blood." Did you make any comments to him about Colette's condition?
A I believe, again, I tried to reassure him that somebody was working on her the best they could.
Q You were trying to keep him calm?
A Yes.
Q To keep him from getting up, perhaps, to try to help?
A Yes, sir.
Q Because you realized that to move around, at that point, was not desirable?
MR. BLACKBURN: OBJECTION.
THE COURT: OVERRULED.
THE WITNESS: It would have served no purpose.
BY MR. SEGAL:
Q Then what was the third thing that you said about the pulse; would you tell us what Dr. MacDonald said, as best you can recall on that subject?
A He said that he had tried to find a pulse and he could not find a pulse.
Q Did he suggest to you to do anything about the pulse, now?
A I don't recall him suggesting anything to me.
Q Did anybody mention about trying to find a pulse in the leg?
A I don't recall.
Q All right, when he said to try and find a pulse, did you say anything to him about that, or suggest someone else might do that?
A I believe, again, I told him that his wife was being attended to by the others.
Q Were there, in fact, now other MPs in the room as you were there over Dr. MacDonald?
A Yes, sir; there were.
Q Tell us who you remember seeing at that point, in the room -- Military Police?
A At that point, myself, Sergeant Tevere, Lieutenant Paulk was in there at that time. There were others, but I don't recall if they were there at that time, or you know, at other times when I had looked over my shoulder.
Q Tevere, Paulk -- was Dickerson there?
A I don't recall. I really didn't know Dickerson; I never worked with him.
Q Was your partner, Morris, there?
A I know he was there at one point; whether he was there at this point, I don't know.
Q To the best of your recollection then, at that particular juncture, as you were bending over Dr. MacDonald, there were what -- at least three other Military Policemen in the room, perhaps more?
A At least; yes, sir.
Q Considering the fact that there were two bodies on the floor, three or more Military Policemen on the floor, was the room crowded?
A Again, they were basically standing back in that corner, by the doorway into the master bedroom from the utility room.
Q Just standing and looking?
A Yes, sir.
Q Were they excited?
A I think they were more shocked than excited.
Q Was anybody shouting or talking at that time?
A I don't recall.
Q Your impression was they were standing there, shocked?
A I believe so, yes.
Q Another question. All right, was there anything else that you can recall Dr. MacDonald said? I think you mentioned there were some other subjects other than the three you have mentioned so far. You mentioned he asked for his children; asked for his wife; asked to take her pulse, or said he couldn't find a pulse. You mentioned a chest tube?
A Right.
Q What is it you recall him saying about that?
A Well, he indicated he was having difficulty breathing, and that he might need a chest tube.
Q He might need a chest tube?
A He might need a chest tube; yes, sir.
Q Did you know what he was referring to at that point?
A I had a general idea.
Q Did you say anything, or do anything in response to those statements?
A No, sir. At that time he was still conscious.
Q While he was making the statements to you, and you were giving whatever responses you could possibly give to reassure him, what else did you do in regard to Dr. MacDonald?
A Again, I asked him what had happened.
Q When was the first time you had asked him what happened?
A I believe as soon as I had come back from the living room area.
Q I see. The second time you came to attend Dr. MacDonald?
A Yes, sir.
Q You asked him what happened?
A Yes, sir.
Q His response was "Look at my kids; look at my wife." Is that right?
A Yes, sir.
Q Asked about the pulse and then asked, or said, there might be a problem with the chest and needed a chest tube and breathing; is that right?
A Yes, sir.
Q You then asked him what happened?
A Yes, sir.
Q Tell us what Dr. MacDonald told you at that time.
A Well again, sir, there were a lot of unconnected statements, about "Check my kids; look at my kids." Finally, what came down, he asked, "Why did they do this to me?"
Q Did you know who, or what, he was referring to when he said, "Why did they do this to me?"
A No, sir.
Q At that point, did it make any sense to you?
A At that point, I asked him, "Who did this to you?"
Q What did he say?
A Again, everything was more or less disconnected. He was asking me about his children, asking me about his wife, and I was trying to ask him who and why and what and how it happened, and everything else. I finally got him to say -- I believe his first words in connection to that were -- "There were four of them."
Q Did you know what he meant when he said that?
A No, sir.
Q Did you ask him to explain or tell you more?
A Well again, I asked him, to the best of my recollection, I asked him, "Four who," you know? At that point, he started to mention about three guys and a girl.
Q That was the first time you had heard anything about that there were three men and a woman?
A Yes, sir.
Q Go on and tell us the rest of the discussion between you and your attempts to question Dr. MacDonald, and what he said about the persons?
A Well again, I was trying to get -- I still didn't understand what had happened and I was trying to find out the best that he could recall. I asked him, "Who did this? What did they look like?" Again, everything was sort of unrelated at the time. They were short statements that were unconnectible.
Q Try and give us as much of the sense of what he was saying. I realize that it may not come out very connected, but then that is the way you heard it?
A Okay. There was a point in there too before I got into that where I had to give Dr. MacDonald mouth-to-mouth. He seemed to pass out. He was having a little bit of difficulty breathing.
Q Was that before he gave you any information about the people whom he said attacked his family and attacked him?
A Again, I can't be certain which. I got pieces in the beginning, at the middle, and right at the end. I don't recall exactly what was told to me at the beginning.
Q That is understandable. Let's then concentrate, if we will, on the information and whatever sequence it came out at the time, in which Dr. MacDonald tried to give you information about the people he said who murdered his family and attacked him.
A Yes, sir. He stated that there were four of them. And I asked him, I said, "Four who?" You know? He said, "There were three men and a girl." He said, "A black male." He said, "I think I hit him." I asked him about the black male. He said he was wearing -- I believe -- a fatigue jacket, an Army field jacket, and that he had sergeant stripes.
Two other white males. He got to the girl, and I was interested in the girl. He said that she was a blonde girl and she kept mumbling, "Acid is groovy."
Q "Acid is groovy"?
A Yes, sir.
Q What did that mean to you, if anything?
A Well, I knew it was a drug-related term. It meant nothing to me, though.
Q What I meant is -- what did you understand those words to mean?
A Well, generally I would say that it was a type of term that somebody that's familiar with the use of acid might possibly use.
Q And acid is sort of a street name for the drug known as LSD?
A Yes, sir.
Q Go on and tell us what else he told you about the girl who was there.
A She kept saying, "Hit them again" and "Acid is groovy," and "Kill the pigs." I tried to get as best a description from Captain MacDonald as I could about the girl. He was mumbling something about her muddy white boots. He remembered muddy boots. And also I believe there was some type of a light on her face. I believe he said possibly a candle.
Q I'm sorry. You said Dr. MacDonald told you that the girl had some type of a light on her face?
A Yes, sir.
Q You understood him to say that he believed that it was a candle?
A I believe that is what he said. Yes, sir.
Q Do you recall any other information that Dr. MacDonald gave you at that time, Officer Mica, about the description of these people?
A I believe he also described the girl as having a floppy hat, having long, blonde hair, and I believe also a short skirt. Again, whether that was at that particular instant or two or three minutes later, I don't know.
Q You are not describing some coherent witness sitting down in a chair in an office giving you a connected set of descriptions, are you?
A No, sir.
MR. BLACKBURN: OBJECTION.
THE COURT: OVERRULED.
BY MR. SEGAL:
Q You are piecing together the various pieces of information to give us today a coherent description. Is that right?
A Yes, sir.
Q Will you search your memory, then, for any other information now that you recall Dr. MacDonald giving you at that time about the description of the persons he said attacked his family and himself?
A I think that was basically what I recall.
Q Now, you mentioned something just a little while ago that you started to give or did give mouth-to-mouth resuscitation to Dr. MacDonald?
A Yes, sir.
Q Can you tell me what caused you to do that?
A He seemed to lose consciousness while I was trying to talk to him.
Q Did you notice anything else about his condition besides the loss of consciousness or the possible loss of consciousness?
A He was cold.
Q How could you tell that?
A He was bare-chested and just by the feel of his skin.
Q The feel of his skin?
A Yes, sir. His teeth were chattering also.
Q I'm sorry?
A His teeth were also chattering.
Q His teeth were chattering?
A Yes, sir.
Q You were actually able to touch his skin?
A Yes.
Q You had no doubt that the skin was cold?
A He felt cold. Yes, sir.
Q Then he appeared to lapse into unconsciousness?
A Yes, sir.
Q Tell us how you responded to that.
A Well, at that point I reached into his mouth to see if he had anything or any foreign matter in his mouth, and he didn't.
Q Is that for the purpose of clearing his mouth?
A Clearing the airway. Yes, sir.
Q So he wouldn't swallow anything to block the air passage?
A Yes, sir. I then raised his head slightly and I began mouth-to-mouth resuscitation.
Q Did Sergeant Tevere assist you in any way in that regard?
A I believe Tevere put his helmet underneath Dr. MacDonald's feet. I think he raised his feet by placing his helmet underneath.
Q His MP helmet?
A Yes, sir.
Q About ten inches off the ground from the bottom to the top of the helmet?
A I believe so. Yes.
Q Then you began the mouth-to-mouth resuscitation procedure?
A Yes, sir.
Q How long did that go on for?
A I would say it probably only lasted a minute or so.
Q And then why did you stop?
A Captain MacDonald seemed to regain consciousness.
Q Now, in order to give mouth-to-mouth resuscitation to Dr. MacDonald, how did you actually do that? I mean what position were you in? What position was he in? And how was that process accomplished?
A Dr. MacDonald was -- again, I had him on his back. I was on my knees bent over to his chest and head area.
Q Now, if I can ask you to come down to the model again, please, Officer? I think this little figure here will bend if you want to try to put it in the shape that your body was when you were over Dr. MacDonald; it has wire in it.
A In this position. It won't stand up.
Q I will hold the feet for a minute. All right. You have now bent this second little male which I will have marked in a minute as D-9.
(Defendant Exhibit D-9 was marked for identification.)
BY MR. SEGAL:
Q You have placed yourself between the bodies of Colette and Jeffrey MacDonald?
A Yes, sir.
Q Your head is bent over Dr. MacDonald's head?
A Yes, sir.
Q All right. We will leave it there, and I won't move it for the time being but we will mark that shortly. Now, for a minute or more you gave him mouth-to-mouth resuscitation?
A Yes, sir.
Q Then apparently he regained consciousness?
A Yes, sir.
Q But you continued to remain in that same position between his body and that of Colette?
A Yes, sir.
Q All right. Why don't you go back again? When he regained consciousness, what did Dr. MacDonald say, if anything?
A Again, I believe he asked about the condition of his wife.
Q And you continued to reassure him that someone was attending to Colette?
A Yes, sir.
Q How long was it before you started the mouth-to-mouth resuscitation procedure again?
A Again, I am not certain of the time. It seemed like forever but it was probably only a minute or so -- a minute or maybe two minutes.
Q It seemed like forever. Why?
A Why?
Q Yes?
A Just that so many things had happened so quickly that it seemed just like time wasn't moving, that everything was frozen.
Q These were terrible things that had happened?
A Yes.
Q Did you see Lieutenant Paulk come into the room at any time?
A I don't recall seeing him come in. I recall him being there but I don't recall seeing him come in.
Q Eventually during this period of time while you were bent over the body of Dr. MacDonald other MPs did come into the room; that is, they got past their state of shock at the utility room door and came into that room, didn't they?
A Yes, sir.
Q Eventually how many were there in that room?
A I can recall seeing different MPs at different times. I don't know how many were there at one particular time.
Q All right. Will you try to recall now who they were; that is, how many MPs -- not numbers now, but the names of the MPs you recall seeing come into that room?
A Well, at one time I recall seeing Tevere. Tevere was assisting me naturally.
MR. BLACKBURN: Your Honor, we would OBJECT to this. I think the Witness has already testified to who he saw in the master bedroom.
THE COURT: I was under that impression.
MR. SEGAL: I believe the prior testimony was only at the beginning who he had seen at the door. Now we are trying to find out the number of MPs and who they were -- who passed through that room while he was over Dr. MacDonald's body.
THE COURT: If he recalls, let him say.
MR. SEGAL: Thank you.
THE WITNESS: Sergeant Tevere, Lieutenant Paulk and John Sellick.
BY MR. SEGAL:
Q I am sorry, what was the last name?
A Sellick.
Q Would that be S-e-l-i-g?
A S-e-l-l-i-c-k, I believe; Specialist D'Amore; I believe Sergeant Duffy was there at one time. I believe there was a Specialist Williams there.
Q You mentioned D'Amore. Is that the partner, as far as you know, on that night, of Sergeant Tevere?
A I believe he was; yes, sir.
Q Is that D'-A -- you had better spell the rest of it for me.
A Possibly; I don't know. I am not Italian.
Q Is sounds like "D'Amore," though?
A Yeah.
Q I am sure he will correct us if he shows up. What were these various MPs doing when you saw them coming through this room?
A Basically they were walking in, and more or less just freezing in their tracks at the sight.
Q Looking down at the bodies on the floor?
A Yes, sir.
Q And you bending over Dr. MacDonald?
A Yes, sir.
Q Did you say anything to those MPs at that time?
A I don't recall if I said anything to them, but I did pass on what Dr. MacDonald was telling me as far as the description of these four individuals.
Q Did you pass that on to Lieutenant Paulk or to someone else?
A Again, Tevere was behind me, and I know somebody in that room had a pad. I am almost positive they were writing it down. Paulk was standing behind me, and I was yelling it as Dr. MacDonald was giving it to me. I was yelling it back over my shoulder.
Q Why was it necessary for you to repeat what Dr. MacDonald was saying, if they were standing behind you?
A I was down fairly close to Dr. MacDonald, and he was speaking in a low voice. I don't know if they had heard it.
Q But the voice that he spoke in, you say, was soft?
A Yes, sir.
Q Nobody said to you, "You don't have to repeat it; we got it."
A I don't recall, sir.
Q Did these various MPs that you saw that had come into the room and stopped in the their tracks, you say, did they eventually go down the hall to the living room, any of them?
A I don't recall, sir; I was paying most of my attention to the doctor.
Q I gather you were aware of their presence in the room, but you really don't have specifics as to where they moved to and what they did?
A No, sir.
Q Did anybody touch anything in that bedroom while you were there bending over Dr. MacDonald talking to him, treating him?
A The only thing I remember anyone touching was the telephone receiver.
Q Now, where was the telephone located in this bedroom?
A The telephone was on the end of the dresser in the master bedroom.
Q And the hand part of the telephone -- the part you hold in your hand to speak in and hear?
A I believe that was laying off the receiver, but on the dresser -- the glass-top dresser.
Q Who was it that did something in regard to that telephone, Officer Mica?
A Sergeant Tevere.
Q You actually saw him walk over to the bureau?
A I saw him over there; yes, sir.
Q You became aware that he was over next to the bureau, then?
A Yes, sir.
Q As far as the movement process, you didn't see that?
A No, sir.
Q Tell us what you saw Tevere do and say and what you did and said?
A Tevere picked up the receiver of the telephone and he said, "The line is dead."
Q To whom did he make that remark?
A I don't know if he made it directly to any one person, or if he just made a general statement that "The line is dead."
Q Picked it up and put it to his ear?
A Picked it up, yes, sir; and said, "The line is dead."
Q Held it like you hold a handpiece of the telephone?
A I believe he did it with two or three fingers.
Q Three fingers?
A Three fingers -- picked it up.
Q Put it to his ear?
A Yes, sir; I believe so.
Q Then after he said, "The line is dead," what did anybody say, if anything?
A I told him to put it down, not to touch anything.
Q And did he put it down?
A Yes, sir; he did.
Q And how did he put it down?
A I believe he put it down basically right where he had picked it up.
Q Now, was Lieutenant Paulk in the room at that time?
A He could have been, possibly; I don't know.
Q He was the senior person at that site at that time, as far as you knew?
A Yes, sir.
Q Did Tevere say anything to you when you said to him, "Put it down"?
A I don't recall him saying anything, sir.
Q Now, was there any bedclothing that you observed in and about the bodies of Dr. MacDonald and Mrs. MacDonald?
A There was a piece of blue material. At the time, I thought it was possibly the bottoms of Dr. MacDonald's pajamas, possibly. I had noticed it first when I went in, when their bodies were lying together; and I didn't pay too much attention to it after that.
Q But it was a piece of blue material?
A Yes.
Q Where did you see this blue material?
A That was -- again, that was partially on the body of Colette MacDonald, and I thought -- again, Dr. MacDonald and the body of his wife were close together at that time. It was partially draped onto Colette MacDonald's body, and I guess underneath Dr. MacDonald's.
There was also some bedding or linen or something at the foot of the bed on the floor.
Q Let's talk, if we can, about any material -- bedding or otherwise -- that was in and around Mrs. MacDonald's body. How was she dressed, first of all?
A As I recall, she had on -- I don't know if they were pajamas or if it was a type of a nightgown or what; but from the color I could make out, it appeared to be pink.
Q She had both a top and a bottom of pajamas on; right -- if you remember?
A I remember, like two-thirds of her leg below the knee as being exposed. I also recall part of her left breast being exposed, and I remember seeing a portion of her midriff exposed.
Q You could see a portion of the left breast of Mrs. MacDonald?
A Yes, sir.
Q Not covered by any fabric of any sort?
A I don't believe so, sir.
Q Now, going down her body, then, what else did you see on her beside the pajamas that she was wearing?
A I believe that blue cloth was in the vicinity, either down near her midriff or upper portion of her leg off to the side a little bit, on her left side.
Q Could I impose upon you to stand up, if you would, and on your own body, point out to us -- or perhaps on me; I don't know which would be easier.
A Where?
Q Where you saw this piece of blue cloth.
A It was over in this vicinity, right in here (indicating).
Q All right; you were indicating. Would that be the waist -- above the waist?
A Right up around the waistline; yes, sir -- on the left side.
Q On the left side?
A Yes, sir.
Q Did you see anything else on her body besides her pajamas and this piece of blue cloth across the waist?
A That was what caught my eye; yes, sir.
Q Now, the pajamas that Mrs. MacDonald was wearing were two-piece pajamas, were they not -- or maybe you weren't aware of that? I don't know.
MR. BLACKBURN: OBJECTION, Your Honor. He has already asked and answered that question.
THE COURT: Well, to assume that they were pajamas in view of his testimony that it was either pajamas or a nightgown, I suppose, would be objectionable. SUSTAINED.
BY MR. SEGAL:
Q Do you know whether this was a one-piece or two-piece item that Mrs. MacDonald was wearing?
A I believe they were two-piece.
Q What is it that led you to believe that they were two-piece?
A The portion of exposed skin in the midriff area that I had seen.
Q Where was Mrs. MacDonald's skin exposed besides the left breast area?
A I believe it was down in the left side; also down around the midriff area.
Q Again, near the waist area?
A Yes, sir.
Q So that you saw part of Mrs. MacDonald's left breast, and you saw part of her waist area?
A Yes, sir.
Q Going down from the waist area, did you see any other part of Mrs. MacDonald's skin?
A The legs from just below the knee down to the feet.
Q Now, the lower half of this niqhtgown, or clothing, that she was wearing -- were they pants-style, or did it hang straight down?
A I believe they were pants.
Q One leg was exposed up to the knee, you say?
A I believe both of them -- both of them were exposed; whether to the knee or halfway up, I don't recall.
Q Did you see any other item of clothing or cloth on Mrs. MacDonald's body, starting from the waist -- you have already described down to there -- from the waist down to her feet?
A I recall -- I believe it looked like it was a throw mat, a little floor mat down past her feet, but not as such near the body.
Q Would that be like a bathmat, perhaps?
A I believe it was; yes, sir.
Q Do you recall what color that was? Did it happen to be blue, by any chance?
A I believe it was a dark color. I don't recall.
Q If I may impose upon you once more, Officer Mica, I would like for you to take this small piece of paper, fold it up whatever size you want, and just place it where you saw this throw mat or bathmat item, in reference to the feet of Colette MacDonald?
A This rug -- to the best of my recollection it was somewhere in this area right here.
Q It actually was not touching either her ankles or her foot, or the sole of her foot as far as you can recall?
A I don't believe so.
Q But it was fairly close?
A I believe so, yes, sir.
Q All right, thank you so much. Do those items that you have now described, going from the top of Mrs. MacDonald down to the bathmat or rug -- throw rug at the foot -- represent all the things you saw on or about her body at that time?
A To the best of my knowledge, yes. Those were the things that caught my eye.
MR. MURTAGH: I'm sorry?
THE WITNESS: Those were the things that caught my eye.
BY MR. SEGAL:
Q How long did you remain between the body of Mrs. MacDonald and Dr. MacDonald?
A I remained there until the medics arrived.
Q Tell us about the arrival of the medical personnel: where did it come from and how did you first become aware they were there?
A They came from Womack Army Hospital, and I was aware -- I had heard somebody say that "the ambulances are here"; and then I was first aware when they began to bring the trundle, which was --
Q You were first aware what?
A I was first aware when they started to bring the trundle, which is the stretcher, up the hallway into the master bedroom.
Q And how did you become aware that that was happening? Did you hear something?
A Well, again, I had heard somebody say that the ambulance was here, and I observed them from looking down the hallway -- coming up the hallway with the stretcher.
Q You just turned your head?
A Yes, sir.
Q You were able to look down the hallway and you saw how many people coming?
A I believe there were two of them to begin with.
Q Was there one man at the head of this trundle, as you call it, and one man at the foot of it?
A Yes, sir, I believe so.
Q And they,were walking up the hallway?
A Yes, sir.
Q And the trundle was being rolled up the hallway?
A I believe it was.
Q Were there any other people that you could observe in the hallway at that time?
A It's possible -- I would imagine and I'd say that there were possibly MPs that were assisting.
Q They rolled the trundle up to the master bedroom, then what did they do? Did they bring it in?
A Yes, sir, they did.
Q Actually into the room itself?
A Yes, sir.
Q Did they set it down on the carpet there?
A Yes, sir.
Q And at that time you say they were two medics?
A Yes, sir.
Q How were they dressed, do you recall?
A I believe they were in the hospital whites.
Q White jacket and white pants?
A Yes, sir, I believe so.
Q And did they bring the trundle some place close to Dr. MacDonald?
A They brought the trundle in and placed it more and less in front of the doors to the closet of the master bedroom, parallel to that wall.
MR. SEGAL: Would you be good enough to mark this as D-10.
(Defendant's Exhibit No. 10 was marked for identification.)
MR. MURTAGH: Your Honor, we have no objection. We don't know if it is to scale.
MR. SEGAL: Beg pardon.
MR. MURTAGH: I don't know if that is to scale or not.
THE COURT: Very well.
(Counsel confer.)
BY MR. SEGAL:
Q Let me show you an item marked here as D-10 and ask whether that generally resembles the trundle?
A That's fairly accurate.
Q Now, the trundle, of course, has two positions, does it not?
A Yes.
Q One which is collapsed -- that is, down close to the floor?
A Yes, sir.
Q Then it has a position where it is opened up?
A Yes, sir.
Q Now, as the medics were bringing the trundle down the hallway, in which of the positions was it?
A It was in the collapsed position.
Q As you are showing it here?
A Yes, sir.
Q If you would be good enough, please, to take this Exhibit D-10, this little model of the trundle, and then show us where you first saw it in the hallway, and bring it down to the living room, the bedroom here -- I think it would be best if you can, Officer Mica, if you would come down to the back of the model.
A I don't recall where I first saw it in the hallway.
Q Why don't you go right down here behind and show us?
A I heard it before I saw it.
(Counsel confer.)
MR. SEGAL: Can the members of the jury see? I would like the back wall back in place. It is not my exhibit, Mr. Murtagh. It is like playing a jigsaw puzzle.
BY MR. SEGAL:
Q All right; you saw the trundle, it looks like about halfway down the hall the first time?
A Again, I heard them coming in before I actually saw them. Where exactly it was in the hallway when I first saw it, I don't know.
Q You say you heard them -- the voices?
A I could hear them. You can hear the trundle. It is metal, and you can hear that it makes a certain amount of noise.
Q All right; okay. Now, will you, please -- just with your finger if you can -- move the trundle down through the hallway and bring it into the bedroom where you say it was placed there by the medics?
A Okay; it was placed into a position somewheres right in here (indicating).
Q If I may -- just for the purposes of the record -- if I can describe this, and tell me whether I do it accurately. What you have done is, you have indicated that the trundle was brought all the way into the bedroom, was turned some way toward the north?
A I believe that was how it was positioned.
Q Then, in a sense, it is parallel to the west wall of the bedroom?
A Yes, sir.
Q In a sense, it is kind of blocking the doorway back down the hallway?
A I don't recall if it blocked the doorway, or if they had it down a little bit further down this way.
Q All right; again --
A (Interposing) I would say it would have been partially into the doorway.
Q Again, we will ask you when we have the camera and don't have to tie up everyone, to do this again. We will photograph it and preserve it for further discussion.
All right, with the trundle in that position, can you describe for us how the body of Dr. MacDonald is moved? Let me see if we have any more of those figures. Will you bear with me for a second? Now, for illustrative purposes, we will borrow, if the Government doesn't mind, some of their figures. We will use another one of the little figures we have here; and if you will show us, please -- just sort of hold these figures as the medics were. Show us what they did by moving the figures around, and we will try the get the actual flow of the people around this room?
A I can't tell you exactly where the medics were. Also at this time, when the stretcher was brought in, Dr. MacDonald was no longer in that position. He had changed his position, more or less, right into this area here.
Q Okay; before we get to that, perhaps you can tell us how Dr. MacDonald's position had become changed?
A While I was attending to him, we had had a little bit of a struggle. He attempted at several points to get up, that he wanted to check his own kids. He wanted to see for himself.
Q How do you know that is what he wanted to do?
A He was struggling with me. He kept asking me how his kids were; look at his wife; check his wife; check his kids. We came to a point where we were struggling, and he pushed me away, He said, "Fuck me." He says, "Get away." He says, "I want to check my kids."
Q What did you do when he tried to do that?
A Well, I restrained him the best I could. We went back down, back onto the floor.
Q How far? Did he actually try to sit up?
A He was at one point. He was sitting on the floor, in a sitting position; yes, sir.
Q His feet were still on the floor?
A Yes, sir.
Q Legs were on the floor?
A Yes, sir.
Q But the upper half of his torso, you say, was coming up?
A Yes, sir.
Q Did he get to a full upright sitting position, do you think?
A Yes; I believe it did come to an almost upright position; yes, sir.
Q What did you do -- push him down?
A I didn't actually push him down, but I tried to restrain him, and we did go back down onto the floor.
Q Okay; so what did you do -- push his shoulders back down to the floor?
A I restrained him, and we went back down; but the position was altered slightly.
Q When Dr. MacDonald's shoulders then came back to the floor, it was more or less with you in the same position over him, although his body was somewhat moved?
A He was changed slightly down and outward, I believe.
Q All right; why don't you now show us, please, if you can, how the best recollection is of how his body was now, after he tried to sit up to get to his children?
A I believe -- again, there were several instances, and each time it was changed slightly to a point where, when the stretcher did come in, we were basically, I believe, down into a position almost something like this (indicating) down towards the foot of the bed, and maybe out, angled a little more towards the hallway.
Q Did you have to move your own body position to accommodate the change that had taken place in Dr. MacDonald?
A I would have had to; yes.
Q Do you have any specific recollection of where your legs were -- where your feet were?
A No, sir; I was trying to keep them tucked in as much as possible; but again, I was attending to him. I really didn't pay any attention to where my feet were.
THE COURT: It is recess time. We will take a recess now. Members of the jury, remember the things I told you not to do. We will come back today at 11:00 o'clock.
(The proceeding was recessed at 10:45 a.m., to resume at 11:00 a.m., this same day.)
F U R T H E R P R O C E E D I N G S 11:00 a.m.
(The following proceedings were held in the presence of the jury and alternates.)
THE COURT: Any further questions of this witness?
MR. SEGAL: Yes, Your Honor.
THE COURT: Let him come back.
(Whereupon, KENNETH C. MICA, the witness on the stand at the time of recess, resumed the stand and testified further as follows:)
C R O S S - E X A M I N A T I O N 11:01 a.m. (resumed)
BY MR. SEGAL:
Q I think just before the break, Officer Mica, you had been in the act of placing the trundle in the MacDonald bedroom, as it was brought in by the ambulance and the medical personnel; correct?
A Yes, sir.
Q Now, I would like you, if you would, to once again accommodate us by coming down to the model and using these two additional figures I have here -- one is marked D-9 for identification; the other -- would the Government like the model marked?
MR. BLACKBURN: You can use that.
MR. SEGAL: By agreement, we will use a figure marked "Jeffrey MacDonald" here, but pretend it is not him.
BY MR. SEGAL:
Q I would like for you to use these two figures here, if you would, Officer Mica, to indicate the position of the hospital personnel -- first the medics, after they brought the trundle to a halt?
A Again, I don't know their exact positions.
Q To the best of your recollection?
A Someone would have had to have been at the head, and I believe there was another one down right at the foot of the trundle.
Q All right, now. Will you show us if you can -- now, I will hold the figure, any one you want -- what you and the medics did to then put Dr. MacDonald on the trundle?
A I believe that I got Dr. MacDonald's shoulder; and I believe possibly one of the other medics got him from the other side and whether Tevere and another medic, or possibly another MP, took his legs and lifted him over onto the trundle.
MR. SEGAL: Do we have some more figures? All right; the Government has been kind enough to make available some additional figures.
BY MR. SEGAL:
Q This process of getting Dr. MacDonald up onto the trundle -- you say, Sergeant Tevere may have helped in that process?
A I believe he did; yes, sir.
Q That means he was in the room at that time?
A Yes.
Q Would you take one of these figures and put him in the room, and as far as you can recall, where you believe Sergeant Tevere was?
A Again, I believe Tevere was either at the feet or he may possibly have been at the head, and the medic down by the feet; but there would have been somebody down in this area here.
Q They would have been down here at the foot area?
A I believe so; yes.
Q Is this figure here still in the scene?
A I believe so.
Q Now, who else was in the room -- other military policemen at this time?
A I don't recall.
Q Now, how many people participated in lifting Dr. MacDonald up from the floor onto the trundle?
A I believe there were at least three or four.
Q Can you take the little figure which has been representing your position here, and indicate -- just move it through the process as best you can -- just as you are, make sure the members of the jury can see what you are doing and Counsel for the Government also. And again, keep your voice up so the members of the jury can hear.
A Again, the position here -- I am not exactly sure about Dr. MacDonald's position at that time -- but I had either gotten to my knees, or I may have possibly been standing and squatted back down. I believe I got the doctor by one of his shoulders.
Q All right; I will pick up the figure of Dr. MacDonald. What was happening on the other side?
A There was another person on the other side also.
Q Along the shoulder area?
A Yes, sir.
Q The feet -- was someone else?
A Someone else -- or possibly two people.
Q Possibly two people?
A Possibly.
Q Can the members of the jury observe this? With this in this position, how did they then proceed to put Dr. MacDonald's body onto the trundle?
A I believe he was lifted and just placed over.
Q Shall we move the figures around, telling me if I am doing it correctly?
A Basically, that would have been the way it was done.
Q All right; we've got his head here, pointing toward the south wall of the bedroom, his feet pointing toward the door; is that correct?
A I believe that is how the trundle was brought in, with his head towards the wall.
Q You have four persons standing around here?
A Yes, sir.
Q You just put him on the trundle?
A I believe so; yes, sir.
Q How did they move the trundle out of the room -- and just use whatever figure -- let's put the other figures wherever you think they might have been?
A Again, there would have been somebody at the head of the trundle, someone at the foot of the trundle, and I don't recall if anybody tried to stand alongside of it. It would have been a very tight squeeze.
Q To go down the hall?
A To go down the hall; but I believe it was just someone at the head and someone at the foot.
Q Sergeant Tevere, or former Sergeant Tevere, has suggested to us that he was at what we call the foot of the trundle. Do you have any reason to think otherwise?
A No; that is very possible.
Q He also suggested there was a third person who assisted alongside here.
MR. ANDERSON: OBJECTION.
THE COURT: What is the grounds of your objection?
MR. ANDERSON: The characterization of the testimony of a previous witness.
THE COURT: Well, ask your question.
BY MR. SEGAL:
Q I believe Sergeant Tevere has suggested in his testimony there was a third person along the side. Do you have any reason to disagree with that?
A I don't recall if there was or wasn't; I don't know.
Q Were you yourself actually holding onto or pushing the trundle?
A No, sir.
Q By the way, the trundle has been brought into the room in a collapsed position?
A Yes.
Q Was it at any time raised to its full or regular height?
A Not that I recall.
Q So it was being rolled out in the collapsed position?
A Yes.
Q Was that, to the best of your understanding of the situation, because of the tightness of the squeeze down the hallway?
A I don't know about this situation, but I know that when we transport injured persons -- there was no reason to really raise it, not to wheel him through a house. It is steadier in a collapsed position.
Q Steadier in a collapsed position? All right; now, will you please show us the movement of the trundle down the hall as best you can? I will take one of the figures, and if you will take the other, we will try and see whether we can go through this process. Just keep your voice up.
A Again, it was slung out in this position. Your figure would be pulling on the trundle.
Q Now, in order to do this, the figure had to do what -- bend over?
A He would have either been bent over, or he possibly could have turned around and pulled. I don't know.
Q If he turned around, he would also have to be in a semi-squatting position?
A Yes, sir.
Q In other words, an upright male of average height -- 5' 9" -- could not walk down the hall, either pushing or pulling a collapsed trundle?
A No.
Q He would have to squat down like I am now?
A Again, I am not absolutely familiar with what type of trundle this was, but the ones that we have have a metal-like ring on it that you can grab hold of; but I have to be in a semi-squat position to pull it.
Q You are how tall?
A 6' 2".
Q Sergeant Tevere is considerably shorter than you, isn't he?
A Uh-huh.
Q About 5' 9"?
A Considerably fatter, I would say.
Q We all are. About 5' 9"?
A I would say so.
Q Let's assume, for the minute -- in view of what I am suggesting to you is his prior testimony -- that he was, in fact, pulling the trundle at the foot and that his back was going down the hall. Let's assume that is correct, and let me move the figure with you, if I can bend our little D-9 here. All right; and let's move the trundle down the hall. Just go right ahead and push it.
Now, we have it right now in part of the hallway. What kind of clearance would it appear to you to be -- assuming for the moment, that the trundle that we have here is reasonably to scale -- what kind of clearance is there?
MR. MURTAGH: OBJECTION, Your Honor.
THE COURT: I will SUSTAIN it as to the form of the question, and let him ask the witness what he knows of his own knowledge -- give his own best estimates or opinions.
MR. SEGAL: I am sorry.
THE COURT: He may give his own best estimates or opinions, based on what he recalls.
MR. SEGAL: Certainly, Your Honor.
BY MR. SEGAL:
Q Based upon your own experience the night of February 17, with the trundle, having used this type of device before, and having been in this hallway which the Government represents to be to scale of the actual hallway, is there much clearance on either side of the trundle?
A Assuming that the trundle is to scale -- I would say the trundle takes 2/3 the width of the hallway, but --
MR. BLACKBURN: Your Honor, excuse me, may we approach the bench?
THE COURT: Come up.
B E N C H C O N F E R E N C E
MR. BLACKBURN: Your Honor, I was going to object, but we think -- for the Government -- that this is taking at inordinate amount of time. We have been through this stuff.
THE COURT: I agree with that.
MR. BLACKBURN: We think it is repetitious. We have not objected prior to this time, but --
THE COURT: My problem is this: I don't like to cut anybody off. I remarked at the recess in the office -- I was wondering if defense counsel was being paid by the month or by the year -- or just what. But the reason I am hesitant to get into it is that I don't know any of the evidence in this case -- everything I have ever heard -- I have never read a transcript or anything except as it was necessary for some motion or something. And so I don't presume to be able to see where a lawyer is going with a line of questioning. I've got to give him the benefit of the doubt unless there is some showing that it is not relevant.
If you just want the benefit of my opinion, I think you have asked lawyer-like, everything twice -- they did the same thing -- everybody does it. And I also think that your cross-examination of the witness -- particularly as to these details, at this late date -- seems to me to be very tedious. But as I say, there may be a point in it other than just taking time.
I am solicitous of the welfare of the jurors -- nobody wants to try a case on either side with a mad jury. You may notice from time to time I try to pass the time of day with them or observe some little amenities with a view to maintaining an atmosphere of friendliness if I can.
MR. SEGAL: Absolutely.
THE COURT: These are the reasons that I do these things -- so get along with it. Of course, if you have an objection based on repetition or something like that -- if you will make your objection, I will rule on it.
MR. BLACKBURN: We have not objected -- we have not tried to object as to what the defense has already asked although that is what it appears to be because I thought you would overrule it.
MR. SEGAL: Let me assure you that once we get the trundle out of the house, we will go to an entirely new area we have not touched upon. I don't intentionally try to do everything twice, Judge, but I confess that it happens as we double back and try to clear up points. But we are appreciative of Your Honor's concern for the jury's comfort. We will do everything we can to try to move it along.
THE COURT: You know -- it's your case and not mine. I will be here -- if I'm not trying this one I'll be trying some other one -- so, whatever length of time it takes.
MR. SEGAL: Thank you, Your Honor.
THE COURT: But I am terribly concerned with seeing the just result reached in your case.
MR. MURTAGH: We furnished counsel this morning a scale diagram which shows the dimension of the hallway -- the hallway is 36 inches wide. The man who made this is in the back of the courtroom. I believe Mr. Tevere testified that the stretcher was approximately 20 inches wide. My math says --
MR. SEGAL: (Interposing) Mr. Tevere is slightly off.
THE COURT: Let me see. Do you have any more of these?
MR. MURTAGH: Yes.
THE COURT: This is for me?
MR. MURTAGH: Yes, sir; we have one for Counsel.
THE COURT: Since I haven't seen the model yet. Well, let's go. Now, this is enough time to take on this sidebar.
(Bench Conference terminated.)
BY MR. SEGAL:
Q All right, Officer Mica; if you will, please, let us try and move this trundle together down the hallway, as you recall it taking place in the early morning hours of February 17, 1970. By the way, was it moved roughly as slowly as we are going now?
A I don't recall exactly how fast it was moved to right about there.
Q To right about --
A (Interposing) Right about to the entrance of the front bedroom.
Q All right; what happened here?
A At that point, Captain MacDonald -- it appeared that he attempted to get off the stretcher.
Q How did he do that?
A I believe he raised himself up, almost to an upright position, and he said something about he wanted to see his children.
Q Do you recall what his words were?
A I don't recall the exact words, but it was something to the effect of "Goddamn MPs, let me see my kids."
Q You didn't take that personally, did you?
A I don't take nothing personal.
Q Under the circumstances, did you think that was an appropriate remark?
MR. MURTAGH: OBJECTION.
THE COURT: I will let him say if he said anything.
BY MR. SEGAL:
Q Did it strike you as an appropriate or inappropriate response?
A I would think it was appropriate.
Q All right; how was Dr. MacDonald restrained? You say he came up almost to a sitting position on the trundle?
A I believe almost in an upright position. Again, I was in the rear. I couldn't observe the entire thing, but there was a little bit of a struggle. But I don't know if he actually got off the trundle or not.
Q But he made, as far as you can tell, some effort to get off the trundle?
A Yes.
Q Do you recall him touching or holding onto any part of the doorjamb to this room here?
A I don't recall. Again, I was to the rear in the hallway. I was following the trundle down, and could not really get a good view of it.
Q At some point, however, I gather that Dr. MacDonald was made to lie back down again onto the trundle?
A Yes, sir.
Q The trundle then proceeded down the hallway?
A Yes, sir.
Q Can we take that down, please? (Witness complies.)
Q Now, do you recall what happened when the trundle and figures got to the head of the stairs here leading into the living room?
A I believe they lifted it down the two steps and continued out to the front door.
Q Carried it off the steps here?
A Yes, sir.
Q Now, I am going to turn the trundle over to you for a minute. Dr. MacDonald won't lie down again. All right; I think we've got the figure in place. Now, without using the figures that were pushing and pulling, just simply, if you will, traverse the living room, just using the trundle itself as to how it went out.
A I didn't observe it go out.
Q Oh, I see. What happened, then?
A I know they removed it, but I was coming down the hallway. I didn't follow that closely behind it or that quickly.
Q All right; so you eventually did come to the living room, though?
A Yes, sir.
Q When you got here, the trundle was --
A (Interposing) Already three-quarters of the way out.
Q Now, does the furniture that you see here right now look approximately like the furniture that you remembered in the MacDonald living room?
A As far as I can remember; yes, sir.
Q You are not verifying this is the exact position of each piece of furniture?
A No.
Q But there was a sofa, what appears to be two chairs --
A (Interposing) Uh-huh.
Q A coffee table, and some other small tables?
A Yes.
Q As far as you can tell, when you came to the head of the hallway here looking into the living room, was there any path to the front door, other than one that went across the rug here and out the door, as I indicated with my finger?
A No, sir.
MR. SEGAL: All right; let's put aside the trundle, then, and ask you again to sit down.
BY MR. SEGAL:
Q Now at that point, with Dr. MacDonald out of the house, what did you undertake to do?
A I proceeded down the hallway, and once I entered the living room, I believe Lieutenant Paulk was there. I asked him what he wanted and he just said to stay there, that evidently the Provost Marshal was responding and just wait for further instructions.
Q Evidently, what?
A The Provost Marshal Colonel Kriwanek was responding to the scene.
Q And he was on his way over there?
A Yes, and just to basically stay there, not touch anything, and wait for further instructions.
Q Now, that was Lieutenant Paulk telling you to not touch anything?
A I believe so. It was repeated several times through Sergeant Tevere.
Q Was any one of the MPs who was in that house at the time given the assignment of guarding any particular room against having the items in it touched or disturbed by anybody?
A I know that we were told not to touch anything. Whether or not any particular person was told to guard an individual room, I don't know.
Q To the best of your knowledge, you never heard any person being told, "You are in charge of this room; make sure no one touches it"?
A I don't recall that being said; no, sir.
Q Do you recall lots of people saying, "Don't touch it; don't touch it"?
A Yes, sir.
Q But as far as specific assignment, you have no recall of such an assignment being made?
A No, sir.
Q Did you, in fact, go to the living room at that point?
A Yes, sir; I did.
Q When you got to the living room, was there anything on or near the head of the stairs?
A Again, when I first went to the hallway, after I first entered the house, I remember there was something down there. I thought it was a blanket of some type -- a quilt or a heavy blanket.
Q Can I ask at what time in the various sequence of events you told us, you are now referring to?
A This is when I originally went into the house.
Q When Dr. MacDonald said --
A (Interposing) "Check my kids," I proceeded down the hallway. I went to the end. I know there was some type of material laying on the steps, or right by the steps, at the foot of the sofa there.
Q Now, how did you become aware that there was something there?
A I had seen it when I walked to the end of the hallway. There was also a small doll's head laying on the floor next to what would have been the front of the house, lying up against the molding.
Q Again, I apologize for imposing upon you so much, but I will ask you, if you will, using the pointer that we have, to come to the position at the head of the stairway and point out to us, if you will, where any of these items that you have described for us were, and I will try and describe it for the record?
A Okay. There was a doll's head lying right here, right next to the molding on the floor.
Q That would be actually in the hallway itself; would that be correct -- rather than in the living room?
A Yes, sir.
Q And if I may have the ruler, please, the Government says the scale of this is that one inch is equal to one foot. Would you point again, please, to approximately where this doll's head was?
A Right in this vicinity.
Q Somewhere within a foot of the top of the entrance to the living room; is that correct?
A I don't know if it was a foot. I know it was almost right against the molding, and it was anywhere between a foot and two and a half feet -- very close to the end of the hallway.
Q Anywhere between a foot to two and a half feet from the entrance to the hallway?
A Yes, sir.
Q You also mentioned, Officer Mica, that there was something else in or about that area; if you could tell us about that?
A Right. There was, I believe, clothing or a blanket of some type that was thrown in this vicinity right here.
Q Now, you are indicating in the vicinity of the end of this sofa, that is along the east wall of the living room?
A Right.
Q That would also be this blanket, or item, that was near the step here?
A Again, I know it was there, whether it was on the step or on the floor there. I know it was right in that vicinity but exactly where, I am not certain.
Q Now when you came back to the living room for the second time, following the trundle leaving the living room, did you observe anything else in the living room which is not depicted here by the various items that the Government has placed in the model?
A There were several things, yes.
Q All right. I'm talking about physical items rather than people. We will come to people. What was the first physical item that you remember seeing in this living room that does not appear in the Government's model?
A The first item, I believe, was the wallet. There was a wallet lying on the floor.
Q All right. Let's get a little piece of paper here. I just manufactured a wallet here -- yellow -- and if you would, take this wallet -- or little piece of paper that is meant to represent, for our purposes, this morning, a wallet -- and place that on the floor for us?
A Again, I am not that certain, at this time, about where it was. I believe it was out here someplace, somewheres out in this vicinity, out here.
Q The "this" that you are referring to -- let me see if I can describe it. Between the east and the west walls of the living room. It looks like roughly halfway between those two walls. Would that seem about right as we have placed it here?
A I would say on this; yes, sir; it would be about halfway.
Q Well, if this does not represent the scene as you recall it, please feel free to rearrange it?
A It is fairly accurate from what I recall. I am not that certain as to where this was. I know it was out a distance. I remember it being out ahead of the coffee table, and I would say probably about ten feet out from the hallway.
Q Officer Mica, that is quite good because ten feet on this ruler would be exactly where I have marked with my fingers, so you've got it fairly close to ten feet. And you say also that you have positioned it by placing it in relation to a coffee table which is placed in the floor?
A I believe that is it. Again, I am not absolutely certain the angle that the table was on, but I would say that it's probably about the best I could give it.
Q Would you be assisted in trying to locate for us where this wallet was seen? If you could look at some pictures that were taken of this living room on February 17, 1970?
MR. MURTAGH: OBJECTION.
THE COURT: SUSTAINED.
BY MR. SEGAL:
Q Has the Government at any time shown you, either at your appearance at the military proceedings or before the grand jury or your preparation for trial, have they shown you any photographs of the living room for the purpose of orienting and locating various items?
A Yes.
Q And did such pictures help you orient yourself and locate the items in the living room?
A On certain questions, yes.
Q And were those pictures 8½" by 10" color photographs the Government showed you?
A I believe they were.
Q What items were depicted or shown in this room; maybe we could find the pictures for you?
MR. BLACKBURN: Your Honor, may we approach the bench?
THE COURT: All right, come up.
B E N C H C O N F E R E N C E
MR. MURTAGH: Your Honor, Mr. Segal is going down the same path he went down yesterday. He is obviously laying a foundation for showing the Page photograph of the living room and apparently, or I would assume, that he is not going to show the earlier photograph. We have no objection to the Witnesses being shown any photograph if they are shown the complete set.
But, until they are properly authenticated as to time and place, we feel it is going to confuse the issue. We only ask the Court to, in view of its prior ruling, to sustain our objection.
THE COURT: Do you have any objection if he is shown every photograph that he ever was shown by anybody at any time and let him pick out the ones that he said refreshed his recollection?
MR. MURTAGH: Well, your Honor, I think as to this business of a living room, I have no objection if the man is shown simultaneously the photographs which were taken when the bodies were still there which is contemporaneous with Mica's presence at the crime scene.
THE COURT: I don't think it would be proper to show him any photographs that were taken after that time.
MR. MURTAGH: Those are the ones we are objecting to.
THE COURT: Well, I will sustain that objection. I think I already have, but subject to his right to call him back and cross-examine after they have been identified and the explanation as to what they showed, if anything, by the person who actually took them.
MR. MURTAGH: We are going to do that.
MR. SEGAL: Your Honor, I propose to show him all the photographs there are of the living room. There are no bodies in there, and we want to ask him --
THE COURT: (Interposing) Yes, but the point is not that it shows a separate part of the house with no bodies; the point is that he may be shown photographs that were taken after the time that he was there. These are the ones to which I am sustaining an objection at this time.
MR. SEGAL: If those photographs are proper -- I mean if we have a rock at a place, Your Honor, when you are there and you go and someone photographs it, I may ask the Witness, "Does this look like the scene when you last saw it?" If he says, "No, it doesn't represent the way I saw it" or "Yes, it does," he may use it to refresh himself about the details.
THE COURT: You have asked him what the scene was, haven't you?
MR. SEGAL: Well, he is having difficulty --
THE COURT: (Interposing) Then, as to any photograph that was taken at that time, if it is something different from what he says, it was -- it is entirely all right. It is the proper subject of cross-examination. I am simply limiting you to showing him photographs taken when he would not be able to say whether or not it was the same thing then or not as it was when he saw it for the simple reason that it was taken after he was there.
MR. SEGAL: May we ask, your Honor, that the Government now indicate to us what photo they showed him because they used it refresh his memory? We have a right to see what they used to refresh his memory with.
I think the whole set ought to be used to refresh his memory.
MR. MURTAGH: Judge, we showed him both. In one picture you can see down the hallway, the flower pot, the clothing on the stairs, and the body of Mrs. MacDonald. It is contemporaneous with Mica's presence subsequently to his leaving the crime scene. Within maybe an hour or so the bodies were removed. Things were moved in order -- we have had an enormous amount of testimony about the trundle. Well, apparently when they trundled Mrs. MacDonald out, they did move stuff and also things that Mica has testified about the medic picking up the flower pot. It is only going to confuse the issue.
THE COURT: Why are photographs that were taken after things were moved relevant in any sense?
MR. MURTAGH: I don't think they are, Judge.
THE COURT: Why did you get them in the case?
MR. MURTAGH: If I had been there, I would have kicked the photographer out. What happened was that a complete crime scene processing team got from Fort Gordon to Fort Bragg at approximately 11:00 o'clock in the morning. The photographer was there and was highly outraged that the bodies had been removed prior to his getting there.
He went ahead and photographed everything he saw. We would offer those photoqraphs to depict the scene as it looked at the time that Mr. Page got there. That is all.
THE COURT: Just to the time that who got there?
MR. MURTAGH: Mr. Page is the CID lab photographer. We do not offer them, Judge, and we have never maintained to the Defense that every single photograph taken --
THE COURT: (Interposing) Does everybody understand my ruling up to now?
MR. SEGAL: Yes, your Honor.
THE COURT: Very well. That is what we will abide by.
(Bench conference terminated.)
BY MR. SEGAL:
Q While you are still seated there, Officer Mica, do you know how many photographs were shown to you by the Government for the purpose of refreshing your recollection at either the Article 32 proceeding or at the grand jury proceeding in order to help you locate and ascertain what you remember about the contents of the living room?
A No, sir. I don't.
Q Were you shown more than one photograph by the Government?
A I believe I was. Yes.
Q Were they both color and black-and-white or just one of those?
A I don't recall, sir.
Q Would the viewing of those photographs now help your memory today as it did when the Government showed you at the grand jury and at the Article 32 proceedings?
A As far as to what -- the position of the wallet?
Q As to the position of the various items of furniture in the room so that you could then place the wallet and other things you were talking about in proper position?
A They may possibly.
MR. SEGAL: Again, if your Honor pleases, I would ask the Government to let us see the photographs that they have used to refresh this Witness' recollection.
THE COURT: I will let the Government show you all photographs that were taken at a time when this Witness was present and at or about that time and before anything was moved. That's my ruling and I will abide by it. You may show him those photographs if you know and you may ask this Witness any questions you want to about those photographs.
MR. SEGAL: Does the Government have such a photograph?
MR. BLACKBURN: If Counsel will give us just a minute.
MR. SEGAL: Go right ahead.
(Pause.)
MR. MURTAGH: Your Honor, may the record reflect that the Government is tendering to the Defense Government Exhibit 75 for identification, 23, 24, 24(b), 25, and 26.
(Government Exhibit Nos. 75, 23, 24, 24(b), 25, and 26 were marked for identification.)
MR. SEGAL: Will you indulge us for a moment, your Honor?
THE COURT: Yes, sir.
(Pause.)
BY MR. SEGAL:
Q I would now like to show you, Officer Mica, the group of five photographs that we have received from the Government and ask whether: one, you recognize what is depicted in them and, two, whether you have ever seen them before?
A Yes, sir. I believe I have seen them before.
Q Before we go forward, I have been offered another photograph. Let me review that with the group I have given you.
(Pause.)
BY MR. SEGAL:
Q Let me add also that the Government has supplied an additional photograph, which has been identified as P46.1; and I will also ask you, Officer Mica, to look at that? (Witness complies.)
Q Does that also look like a photograph you have seen before?
A Yes, sir.
Q In fact, it bears a direct resemblance and may even be a copy of P46, is that right?
A Yes, sir.
Q You do not have to determine that question at this time. Now, having looked at those photographs, and you may, if you like, bring them with you, I would then appreciate it if you would come down here and check the position of the coffee table and any other pieces of furniture in the living room which would help you try and locate for us where you saw the wallet when you came to the head of the living room?
A There is nothing in here that can help me locate where that wallet was.
Q All right, now, based upon these pictures, do you have a view as to whether or not the arrangement of furniture seems familiar to you from the night of February 17, 1970?
A Fairly familiar, yes.
Q You are not suggesting that the position here of this model is exact in any way, are you?
A No, sir.
Q With that in mind, and having had a chance to look at these pictures, do you still believe that where you placed a small yellow square which we are using to replicate a wallet, is that the approximate location where you remember seeing the wallet on that night?
A To the best of my recollection I believe that is about where it was, yes, sir.
Q Now, was there any other item of physical matter that was in this room that you saw that morning that is not here in the model?
A A flower pot.
Q All right, we have here a little magnetized, not very three-dimensional item the Government has given us, which we will ask you if you would -- did you see anything that resembled such a flower pot in the living room on that morning?
A I saw a white -- what appeared to be a white plastic pot and a plant with the root ball attached, but they were not together. They were separate. The pot and the plant were separate.
Q All right, we can't do that for the moment, but I will ask you if you will just place this on the floor to give us the position?
A Were you speaking of the first time, sir?
Q Yes, the very first time you observed this plant. (Witness complies.)
Q Now, the only difference, as I understand your testimony, is that the plant itself had in effect spilled out of the pot, or it was out of the pot?
A Yes.
Q About how far away from the plastic container was the root ball and the plant itself?
A Let's say no more than a foot, I would think.
Q About a foot apart?
A I believe so.
Q This plastic pot was lying on its side?
A Yes, sir.
Q And you placed it in a position where it is west of the coffee table?
A Yes, sir.
Q Now, is there any other item of physical material that was in the living room that did not appear here in this model the Government provided?
A Not that I can think of, sir.
Q May I ask whether you recall seeing any items lying underneath or near the coffee table?
A There were magazines and newspapers. I remember some magazines being down there.
Q Now, after Dr. MacDonald removed the trundle and you came here, was that the first time you noticed these two particular items you're talking about?
A I noticed the flower pot the first time I had come down the hallway.
Q All right, now, on the second time you came down the hallway was the flower pot in still the same position where you had seen it when you initially were there?
A I believe it was.
Q As far as you could tell?
A So far as I can recall.
Q On both the first two times the pot and the root ball and the plant were close to each other, and the pot was on the side?
A I believe so, yes, sir.
Q Now, did anything happen to disturb either of those two items when you around -- in your presence?
A Yes, sir.
Q Tell us which one of those first, and we will go through that.
A I believe the flower pot was touched and stood upright at its base.
Q You mean someone actually picked up the flower pot?
A Yes, sir.
Q And stood it upright?
A Yes, sir.
Q Where was the flower pot placed?
A It was placed back in the vicinity of the edge of the table.
Q All right, that looks like -- using the scale here -- about a foot away from where you first saw it?
A I would believe so, yes, sir.
Q And it was standing upright?
A Yes, sir.
Q The root ball -- had that been moved?
A Not that I recall, no, sir.
Q Now, which investigator for the Government in this case moved that evidence --
MR. MURTAGH: (Interposing) OBJECTION, Your Honor, it assumes a fact not in evidence.
MR. SEGAL: Cross Examination, Your Honor -- I'm entitled to suggest.
THE COURT: Yes, well, when you suggest that a particular type of person, or a person engaged in some particular activity, or with a title, did it, I think that assumes something that is not in evidence. I'll let the witness say if he knows who stood it up. Isn't that all you want to know?
MR. SEGAL: Yes, I'll rephrase it.
THE COURT: Just ask him that.
MR. SEGAL: All right, Your Honor.
BY MR.SEGAL:
Q Officer Mica, what was this person -- what was their position, their duty, could you tell us? What was the position of the person who moved this pot?
A I believe he was an ambulance driver.
Q An ambulance driver? To your knowledge was the ambulance driver somehow assisting in the Government's investigation at that time?
A They were assisting with the aided persons, not in the actual investigation.
Q He was not assisting in perserving the crime scene, was he?
A No, sir.
Q Would I be correct in saying that what this ambulance driver did was an unauthorized act, that he was not supposed to disturb anything at that crime scene and he did it anyway?
A I would say it was a careless act, yes, sir.
Q How many military policemen were in the room at the time that the ambulance driver did that?
A I believe there were -- I would say possibly three, possibly more.
Q Do you recall who they were?
A Myself, I believe Lieutenant Paulk was still there, and I think Sergeant Tevere was also still there.
Q Did anyone say anything about that or do anything about that?
A I told him to put it back down.
Q When you say "Put it back down," what do you mean?
A I told him, I said, "Don't touch it; put it down." At that time I believe he stood it up on its base.
Q Would I be correct in understanding that when you first saw this and you spoke to this man, he actually was still holding the pot in his hand?
A Again, I was standing back and he had his back to me, and he was down.
Q Bent over?
A Yes, sir.
Q When he backed away from it the pot was no longer in the position it had been a few minutes before?
A The pot was no longer in the position that I remember observing it the first time I was in the house. Whether or not it had been moved prior, or if he had actually stood it up himself the first time, I don't know.
Q Now, the man then walked away and left the pot standing upright?
A Yes, sir.
Q That was in a position different from the first way you had seen it?
A Yes, sir.
Q Did Lieutenant Paulk say anything to this man about having touched this pot?
A He possibly could have because I said something, and I know somebody else -- there may have been three people at the same time say it, you know, "Don't touch that."
Q Is it fair to say that the three of you were upset that someone was touching the items in the crime scene here?
A I was upset.
Q What did this man then do?
A He then walked over to the couch -- the sofa by the east wall of the house.
Q Would you take one of the figures and indicate the path?
A He started in a position like this (indicating) and walked over.
Q Let me just describe it. You indicate here that he started alongside a desk which is put up against the west wall of the living room?
A Yes, sir. He had been standing there for a while. He proceeded across after that. He proceeded over to the couch, and he just sat down on the edge of the couch. Again, I said, and I believe somebody else said, you know, "Get up," and he walked back to where he was and disgustedly stood there.
Q Now, all this time, the wallet was still on the floor?
A Yes, sir.
Q On the last time that you saw the living room before you left the house that early morning, where was the wallet?
A On the floor.
Q That, at least as long as you were in the house, was still in the same position that you remembered seeing it when you first saw it?
A Yes, sir.
Q All right. You may go back to the stand.
Now, you have indicated to us that in addition to these several items you pointed out, that underneath the coffee table, there were some books or magazines and other items?
A Yes, sir.
Q I would ask you to take a look at this whole group of photographs that the Government has just given us and tell us whether any of those photographs show the books and magazines and other items you may have seen, and then after you have done that, tell us whether they are in the position as you recall it?
A Yes, sir. They do indicate magazines.
Q May I ask which -- in using the numbers on these photographs -- the ones in front of you -- which of these photographs indicate the various items about the coffee table?
A It is P46.1, P48 --
MR. BLACKBURN: (Interposing) Excuse me. For clarification of the record, the numbers that we are going to use are not the ones with "P."
BY MR. SEGAL:
Q Will you start again then, please, so we will all keep track of these things?
A This one appears to be Exhibit 1.
Q It is also known as P46.1?
A I believe so, yes.
Q All right.
A Government Exhibit Number 25 --
Q (Interposing) Does that also have a "P" number?
A That is P48. Government Exhibit 23, which is very similar to 46.1.
Q What is the "P" number again?
A P46. Government Exhibit Number 24.
Q The "P" number for that is?
A P47.1. 24(b).
Q The "P" number for that is?
A The "P" number is 47.1. Government Exhibit Number 28, P49.
Q Now, which of those particular photographs show best from your standpoint -- that is, give you the most information of what were the items that were in and about this coffee table?
A I remember magazines and the flower pot. To be honest, I don't recall too much about the magazines. I really didn't pay that much attention to them.
Q Are there some games or toys that are shown in those photographs?
A There is a jar of mucilage glue and there is something here -- I don't know what it is. It is a red box with black and white figures on it. Whether it is a game, I don't know.
Q But all of those items, were they seen by you in the same position in the living room as they are depicted on those photos?
A Again, I don't recall. I didn't pay that much attention to them at the time.
Q Does it seem approximately right, or are you able to say?
A Approximately, yes.
Q Now, you described that there was a piece of cloth of some sort -- you used various names for it -- near the end of the sofa and near the first step to the end of the hallway; is that right?
A Yes, sir.
Q Now, is there a photograph there that you have which depicts the area in which that item was seen by you?
A Yes, sir.
Q Which photograph depicts the area?
A It is Government Exhibit 75.
Q May I ask to see that from you, please?
Now, in Government Exhibit 75, there is shown some red cloth and some colored red cloth with a design or pattern on it; is that right?
A Yes, sir.
Q Does that look to you as about the way you saw those items the first time you encountered them?
A I don't recall the red material being there. I recall it being in that vicinity, but I don't recall it actually being on the step.
Q On this particular photograph that you have picked out, the Government Exhibit 75, it shows the solid red cloth and the red pattern cloth being either on the -- is that the runner of the step there?
A That would be the runner of the step, yes, sir.
Q On the runner of the step and on actually the floor of the hallway?
A Yes, sir.
Q You say that when you first recall seeing it, it does not seem to you to have been in that position. Can you tell us or point with your finger, if you would, what would be the position that your memory tells you those items were located?
A I recall the first time I saw anything, I recall it as being in this general area right here at the foot of the step (indicating). It is possible, but I can't be certain, but I seem to think it was down on the floor.
Q How long after you came to that living room did any investigator arrive on the scene?
A Again, I am not too certain of a time, but I think I was only in that living room -- I don't think any more than three or four minutes.
Q And then, did an investigator arrive?
A I believe so, yes, sir.
Q Do you know who that person was?
A I believe that was Bill Ivory.
Q Is that William Ivory, an investigator for the Criminal Investigation Division?
A I believe so, yes, sir.
Q Is that a branch of the Provost Marshal General's Office?
A Yes, sir.
Q Do you know what CID investigators do, just generally speaking?
A Generally, yes.
Q What do they do?
A It is the detective division of the military police.
Q Do military policemen generally know that that is what CID police personnel are?
A Generally, yes.
Q Is it not a classified piece of information that other MPs don't know about that?
A No.
Q Now, where did Mr. Ivory come into this house -- front or back?
A I believe he came in the front door.
Q The front door into the living room?
A I believe so, yes, sir.
Q Was he with anyone else?
A I don't recall, sir.
Q Do you recall seeing a photographer at that time or near that time?
A I don't know if he arrived with Ivory or if he came shortly thereafter. I know there was a photographer there just as I had left the house.
Q Did he also come in the front door of that house?
A Yes, sir.
Q Who did Mr. Ivory speak to when he came into the MacDonald living room?
A I believe he spoke to Lieutenant Paulk.
Q Were you able to see whatever was being said at that time?
A No, sir.
Q What did Mr. Ivory do then?
A I believe he looked around the living room area a short time and then he walked down the hallway to the master bedroom.
Q Down the same hallway that the trundle had come before with the body of Dr. MacDonald?
A Yes.
Q Back to the master bedroom?
A Yes.
Q I gather that you did not follow him, but you remained in the living room?
A I remained in the living room.
Q What is the next thing that happened after Mr. Ivory walked down that hall?
A I remained there, and the Deputy Provost Marshal had arrived. And shortly thereafter, I think Colonel Kriwanek had arrived.
Q Do you recall who the Deputy Provost Marshal was?
A I think it was Major Parsons.
Q Major?
A Parsons.
Q Parsons?
A Yes, sir; I believe that was his name.
Q Did he speak to anyone when he came in?
A I believe he spoke to the officer in charge.
Q Lieutenant Paulk?
A Yes, sir.
Q Were you present, finally, when Colonel Kriwanek, the Provost Marshal himself, arrived?
A Yes, sir; I was.
Q And where did he come in, and what did he do?
A The front door. Again, he conferred with the officers, and a short time later he asked us to accompany him back to his office.
Q Where did Major Parsons go while you were able to see him?
A I believe the whole time I was there, he remained in the living room. He may have gone somewheres else, but I did not pay much attention to him.
Q Did he look around the living room at any of the things that were going on in there?
A I would imagine he would have had to have seen some of it.
Q Did he stay at the front door; did he walk into the living room at all?
A When I saw him, he was over in the one corner of the living room, there by the stereo unit.
Q When you say "one corner of the living room," which corner are you referring to, Officer Mica?
A I had seen him over in this corner right over here.
Q Oh, I see; then the door to the living room is in the southwest corner of this house?
A Yes, sir.
Q He would have gone to, it looks like, the northwest corner, or the northwest area of the living room?
A Of the living room; yes, sir.
Q By the way, did you see how Lieutenant Paulk happened to arrive over near the door of the living room?
A No, I didn't.
Q Was he standing near the door at all?
A I don't recall him being there. I recall the Colonel and the Lieutenant conferring over in this area right here.
Q Oh, I see. That conference with the officers took place in what we will characterize as the northwest corner of the living room?
A I believe so; yes, sir.
Q The three of them were over in this area?
A Yes, sir.
Q Now did you see anything else that Colonel Kriwanek did other than come in the living room and talk with the other two officers?
A No, sir; I didn't.
Q Did you see anybody else go back to look at the master bedroom, or the other bedrooms?
A I don't recall seeing anyone else go back there at that time.
Q All right, why don't you return to your seat, please. Did any other CID investigator arrive while you were at the premises?
A I believe another one did.
Q Does the name Mr. Grebner strike a familiar chord with you?
A It is possible. I think at the time he was -- like I don't know what the rank was or anything else -- but I think he was in charge of the CID for Fort Bragg.
Q He would be at the head of the CID detachment at Fort Bragg?
A I believe that was his title.
Q He was a Warrant Officer, as far as you knew?
A I don't know.
Q All right, you don't know. Did you see Grebner come in the house?
A I really don't know. I know someone else arrived. I don't know if it was Grebner.
Q All right, assume for the moment. Well, let's not assume that -- that is my error. Another person arrived whom you had reason to believe was the CID investigator?
A Yes, sir.
Q They are dressed in plainclothes, aren't they?
A Yes.
Q They do not wear duty uniforms of any sort?
A No, sir.
Q Where did he come in?
A I believe he came in the front door also.
Q Did he confer with the persons in the north-west corner of the living room?
A Yes, sir.
Q Did he do anything else that you saw?
A Not at that time; no, sir.
Q Did you see him go anyplace in the house? Did he go look at the persons that were there; the scene?
A He possibly could have; I don't recall.
Q How did you come to leave the house?
A I left through the front door.
Q Was that pursuant to somebody's instruction or directions?
A Yes, sir.
Q Tell us about that, please?
A We were told -- myself, Lieutenant Paulk, Sergeant Tevere, and I believe there was one other person that was asked -- to come back to the Provost marshal's office. He was going to meet us back there and we were going to give him a very brief briefing on what had actually transpired -- the call, what we did, and so forth.
Q You were going to give this briefing to what person?
A Colonel Kriwanek.
Q I see. Did you go back in your jeep to the headquarters?
A I went back -- it wasn't in my jeep; I rode with someone else. I believe I rode with Lieutenant Paulk in his car.
Q All right, now what happened when you got back to headquarters?
A We were asked to just briefly write down a very brief description of what happened -- how we received the call, how we came to respond, what we observed when we responded, and just enough, evidently, to give him, so he could brief his superiors.
Q Did he make that request of you and say, "I want a brief memorandum," or did someone else, like Major Parsons, make that request?
MR. BLACKBURN: Your Honor, we would OBJECT. He's already said he went and did that.
MR. SEGAL: Who did it? Who asked him?
THE COURT: Well, if Counsel thinks it is relevant, I'll let him ask that question, and let the Witness answer it if he knows.
THE WITNESS: I don't recall who actually requested it. I know it was requested by the Colonel. Possibly, it was directly from him or through one of his officers.
BY MR. SEGAL:
Q Of course, you have no doubt in your mind that the instruction was to write a brief statement of what you had done and seen?
A Yes, sir.
Q Did you write that statement?
A Very briefly; yes, sir.
Q Were you interviewed anytime after that by CID investigators or other persons?
A That same night. The night of the 17th or the morning of the 18th, I was briefly interviewed by the FBI.
Q When you say "briefly interviewed," how long did that interview take?
A Again, I would say that was fairly early in the morning -- it was around 1:00 o'clock in the morning -- a half hour, possibly forty-five minutes.
Q Were you interviewed alone, or were other people present?
A I was interviewed alone.
Q Did any of the CID investigators interview you after that date, and prior to the Article 32 proceeding, at which you testified?
A No.
Q Did any Military Policemen interview you after that night and prior to the Article 32 proceeding?
A No.
Q Is it your testimony, officer Mica, that no CID investigator asked you about how the crime scene was preserved or not preserved at any time, prior to the Article 32 investigation?
A No.
Q As far as you know, the first time that the Government ever found out from you anyway, about the flower pot and its movement, was when you testified at the Article 32 proceeding?
A Yes, sir.
Q And what about this woman in the broad hat that you saw standing some blocks away from the MacDonald house? Did any CID investigator ever ask you about whether you saw any unusual or suspicious persons that night?
A No.
Q To the best of your knowledge, prior to your testifying at the Article 32 proceeding, did anybody from the Government ask you, or inquire as to whether you had seen any suspicious persons in or about the house on that evening? I shouldn't say that -- in the vicinity of Corregidor Courts that evening?
A Not that I recall.
Q As far as you know, the first time any Government investigator ever heard about the woman in the broad-brimmed hat was when I asked you about that at the Article 32 proceedings; is that right?
A At the Article 32; yes, sir.
Q Did anybody from the Government, any investigator, Military Policeman, or CID person ask you about whether a wallet was ever seen by you on the floor of the living room of the MacDonald house?
A Not directly; no, sir.
Q I should make my question more precise. Between the time that you were in that house on February 17th, and the Article 32 proceeding, did anybody from the Government ever ask you about whether you had seen a wallet, or anything like that?
A Not officially; no, sir.
Q Are you suggesting that maybe unofficially you were asked?
A I wasn't asked directly.
Q Now tell us how it ever came up?
A Again, it wasn't in the form of a question. It was just a general talk that possibly there was a wallet missing.
Q You mean general talk among the Military Policemen?
A Yes, sir.
Q That there might have been a wallet missing from the MacDonald house?
A Yes.
Q But no one ever came around and talked to you as one of the MPs at the scene, about whether you had ever seen a wallet, prior to the Article 32?
A Not that I recall.
Q At the Article 32 proceeding, did you testify and tell the Government for the first time that you had seen a wallet on the floor?
A I believe I told them I had observed it; yes, sir.
Q Officer Mica, prior to your entering the Army, I gather that you had been to school?
A Yes, sir.
Q What was the name of the school that you had attended?
A This was State University of New York.
Q That is a very large university system. Which branch?
A Farmingdale.
Q At Farmingdale?
A Yes, that is Long Island.
Q What was your field of study there?
A Police Science.
Q That was a two-year course of study that you went through?
A That was, yes, sir.
Q Why did you enroll in that course? What was your objective?
A Well, I had intentions of becoming a police officer.
Q In other words, as preparation for your career as a police officer?
A Yes, sir.
Q You had not been a policeman yet or a police officer yet?
A Not at that time, no, sir.
Q When you graduated from that program, you then went in the Army; is that right?
A No, sir.
Q What did you do before going in the Army?
A I went to Hoffstra University which is also on Long Island.
Q What was your course of study there?
A It was Business Administration.
Q How long were you at Hoffstra University?
A I was only there about a semester and a half.
Q Then, what did you do?
A I went on the New York State Parkway Police.
Q The New York State Parkway Police?
A Yes.
Q Is that something akin to a highway patrol except they have a narrower highway of assignment?
A Yes, sir.
Q How long were you a member of that police force?
A A very short time -- I don't think more than two months.
Q Then what happened?
A I enlisted in the Army.
Q You enlisted in the Army?
A Yes, sir.
Q When you enlisted, was that to specifically go into the military police?
A Yes, sir.
Q That was in furtherance of your desire to be a career police officer?
A Yes, sir.
Q How long had you been a military policeman prior to the night of February 17, 1970?
A A little less than a year.
Q You left the Army in what year?
A I left in 1971.
Q You were assigned to the military police the entire period of time?
A Yes, sir, I was.
Q When you left the Army, did you go into law enforcement work?
A I left and I went back to college.
Q What college did you go to and what did you study?
A I went to New York Institute of Technology.
Q Where is that located?
A That is located in Old Westbury, New York.
Q And your subject matter?
A Criminal justice.
Q Was that also in furtherance of your desire to have a career in law enforcement?
A Yes, sir.
Q Did you finish your degree there?
A Yes, I did.
Q What degree did you receive?
A A Bachelor's Degree.
Q Was that a Bachelor of Science?
A That is a Bachelor of Science -- a four-year degree in criminal justice.
Q In criminal justice?
A Yes, sir.
Q From that time on, have you been engaged in law enforcement work?
A Yes, sir.
Q You have been a police officer in a series of Long Island cities, I gather?
A No. I have been a city police officer with Nassau County Police.
Q Nassau County?
A Yes, sir.
Q How long since you graduated from college have you been a police officer?
A Seven years.
Q Is it fair to say that you consider yourself a professional in the area of law enforcement?
A I would hope so.
MR. SEGAL: I think we have established that. I have nothing further.
THE COURT: Any Redirect examination of this witness?
MR. BLACKBURN: We promise a very short, Your Honor.
R E D I R E C T E X A M I N A T I O N 12:13 p.m.
BY MR. BLACKBURN:
Q Mr. Mica, I believe on both Direct and cross-examination, you stated that when you were in the master bedroom, the Defendant Jeffrey MacDonald indicated that he might go into shock; is that correct?
A Yes, sir.
Q And that his body was cold?
A Yes, sir.
Q The night of February 17th, was that a cold or a warm night?
A It was cold.
Q Was the back door to that apartment open or closed?
A The door was open.
Q What, if anything, did the Defendant have on his chest?
A His chest was bare.
Q Mr. Mica, with respect to the intersection where you saw the girl to whom you have referred, I believe on cross-examination, you indicated that a number of business establishments were closed; is that correct?
A Yes, sir.
Q With respect to the gasoline -- I believe you did testify that there was a gasoline station?
A Yes.
Q With respect to that gasoline station, what, if anything, was there that someone could go to to buy anything if the gasoline station was, in fact, closed?
A They had a number of vending machines out in front of the station.
Q With respect, Mr. Mica, to the master bedroom, I believe you testified on cross-examination this morning that at the foot of Colette, you saw something that was dark; is that correct?
A Yes, sir.
Q What was the color if you can recall?
A I don't recall. I know it was a dark color.
Q With respect to the girl that you have just recently testified about on cross-examination, I believe you stated that the CID never asked you about that; is that correct?
A Yes, sir.
Q When was the first time that you ever mentioned to anyone about that girl?
A I believe when I went home that morning, I mentioned it to my wife. The first time that I mentioned it was to my partner.
Q Who was that?
A Specialist Morris -- as we were responding to the call.
Q After you responded to the call and got to Castle Drive, at any time, who, if anyone, at Castle Drive, did you mention that girl to?
A As I was attending to Dr. MacDonald, when he had mentioned that there was possibly a girl involved, I turned my head over my shoulder -- I knew that Lieutenant Paulk was behind me, and I believe Tevere was still behind me -- I told him that I had seen a girl back on the corner of South Lucas and Honeycutt Road.
Q I believe, Mr. Mica, that you have testified, I think, both on Direct and cross-examination, that the Defendant Jeffrey MacDonald said that the girl whom he saw had on muddy boots; is that correct?
A Yes.
Q Muddy, white boots?
A Yes, sir.
Q What, if anything, did the girl that you saw have on her legs?
A I don't recall seeing boots.
Q You didn't see any muddy boots?
A I don't recall them, no, sir.
MR. BLACKBURN: No further questions.
MR. SEGAL: One or two matters on Recross, Your Honor. I know that it seems improbable that there is anything left to ask, but there are one or two matters.
THE COURT: It is not a matter of improbability; although, I would agree with that. It is a matter of whether or not he brought out anything new or just explanatory of something that was brought out on cross-examination, and I do not recall any such thing.
MR. SEGAL: Let me place my first question if I may.
THE COURT: Very well. That might be a quick way of getting through with it. Go ahead.
R E C R O S S - E X A M I N A T I O N 12:18 p.m.
BY MR. SEGAL:
Q Was there any heat that you recall in the MacDonald house when you were inside it that evening or that morning?
A Again, it would be an assumption that the heat would have been on.
Q You don't remember the inside of the house being cold?
A Not that I recall. I was dressed for outside -- outdoors, mainly. I was warm.
Q One last matter. When you turned to Lieutenant Paulk and Sergeant Tevere after having heard from Dr. MacDonald about the woman and making the connection in your mind, you said to them what?
A I believe that I said that I had seen a girl on the corner of South Lucas and Honeycutt Road and to send a patrol to see if they could locate her.
Q You suggested that they send a patrol to do that?
A I believe I did say something for someone to go down.
Q Someone should go down?
A Yes, sir.
Q Did you hear Sergeant Tevere issue any order to any of the MPs that were there or anyone else suggesting that they should go down and check out this possibility?
A I don't recall, no, sir.
Q Did you hear Lieutenant Paulk issue any order to anyone about carrying out your suggestion of going down and checking out that person?
A I didn't pay that much attention. I was directing my attention to Dr. MacDonald.
Q Understood, but to the extent that you heard anything at all, do you have any recollection?
A No, I have no recollection.
Q Of having heard either one of them ever saying anything about that?
A No, sir.
MR. SEGAL: I have nothing further.
MR. BLACKBURN: Nothing further.
THE COURT: Does that trigger anything?
You say "no"?
MR. BLACKBURN: No, sir.
THE COURT: All right. Stand aside, please.
MR. BLACKBURN: Your Honor, may this witness, if it is agreeable with the defense, be excused subject to recall by the defense?
THE COURT: All right.
(Witness excused.)
Webmaster note:
The original stenographer's misspellings of Duffey and Graebner were corrected to Duffy and Grebner, respectively, in this transcript.