1 1 NO. 90-CI-06033 JEFFERSON CIRCUIT COURT DIVISION ONE 2 3 4 JOYCE FENTRESS, et al PLAINTIFFS 5 6 VS TRANSCRIPT_OF_THE_PROCEEDINGS __________ __ ___ ___________ 7 8 9 SHEA COMMUNICATIONS, et al DEFENDANTS 10 11 * * * 12 13 14 TUESDAY, NOVEMBER 8, 1994 15 VOLUME XXXI 16 17 * * * 18 19 20 21 _____________________________________________________________ REPORTER: JULIA K. McBRIDE 22 Coulter, Shay, McBride & Rice 1221 Starks Building 23 455 South Fourth Avenue Louisville, Kentucky 40202 24 (502) 582-1627 FAX: (502) 587-6299 25 2 1 I_N_D_E_X _ _ _ _ _ 2 WITNESS: DONALD_M._McCALL (By Video Deposition) _______ ______ __ ______ 3 By Mr. Stopher........................................... 6 4 WITNESS: JAMES_ADDAMS _______ _____ ______ 5 By Mr. Stopher........................................... 10 By Ms. Zettler........................................... 23 6 WITNESS: STEVE_ESTES _______ _____ _____ 7 By Mr. Stopher........................................... 30 8 By Mr. Smith............................................. 43 9 WITNESS: JOSEPH_K._HATFIELD _______ ______ __ ________ 10 By Mr. Stopher........................................... 47 By Mr. Smith............................................. 56 11 WITNESS: JACK_TILFORD _______ ____ _______ 12 By Mr. Stopher........................................... 61 13 By Mr. Smith............................................. 95 14 WITNESS: DANNY_JACKSON _______ _____ _______ 15 By Mr. Stopher...........................................105 By Mr. Smith.............................................112 16 By Mr. Stopher...........................................119 17 * * * 18 Hearing in Chambers......................................121 19 Reporter's Certificate...................................144 20 * * * 21 22 23 24 25 3 1 2 A_P_P_E_A_R_A_N_C_E_S _ _ _ _ _ _ _ _ _ _ _ 3 FOR THE PLAINTIFFS: 4 PAUL L. SMITH 5 Suite 745 Campbell Center II 6 8150 North Central Expressway Dallas, Texas 75206 7 NANCY ZETTLER 8 1405 West Norwell Lane Schaumburg, Illinois 60193 9 IRVIN D. FOLEY 10 Rubin, Hays & Foley 300 North, First Trust Centre 11 Louisville, Kentucky 40202 12 FOR THE DEFENDANT: 13 EDWARD H. STOPHER 14 Boehl, Stopher & Graves 2300 Providian Center 15 Louisville, Kentucky 40202 16 JOE C. FREEMAN, JR. LAWRENCE J. MYERS 17 Freeman & Hawkins 4000 One Peachtree Center 18 303 Peachtree Street, N.E. Atlanta, Georgia 30308 19 20 * * * 21 22 23 24 25 4 1 The Transcript of the Proceedings, taken before 2 The Honorable John Potter in the Multipurpose Courtroom, Old 3 Jail Office Building, Louisville, Kentucky, commencing on 4 Tuesday, November 8, 1994, at approximately 9:35 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 SHERIFF CECIL: All rise. The Honorable Judge 10 John Potter is now presiding. All the jurors are present. 11 Court is now in session. 12 JUDGE POTTER: Please be seated. Ladies and 13 gentlemen of the jury, did any of you have any difficulty in 14 abiding by the admonition not to let any information come to 15 you from any outside source? 16 How about you, Mr. Bailey? Did you have any 17 difficulty? 18 JUROR BAILEY: No, sir. 19 JUDGE POTTER: Okay. Thank you. 20 As we mentioned before, at the very beginning of 21 the trial we gave you an estimate of how long the trial was 22 going to be; that estimate was six to eight weeks. Obviously, 23 since this is the seventh week, the six-week estimate is not 24 going to be correct, and the eighth week would have been next 25 week, which is the week before Thanksgiving. 5 1 I talked with another judge this morning about 2 how to break this news to you, and his -- an older and wiser 3 judge, Judge Shobe, says just be honest with you. My sheriff 4 said just to tell you that we liked you so much we're going to 5 keep you around. 6 Let me just say this in defense of the 7 estimates. The estimate now is that it will take an 8 additional three weeks, which will be three weeks after 9 Thanksgiving. I think I mentioned to you-all when we started 10 that if it did go to Thanksgiving, that Thanksgiving is three 11 days off because the courthouse is closed, and we would take 12 those extra two days of that week, so the entire week. The 13 estimate now -- and this is, we believe a conservative 14 estimate, which means that if we miss it, it will be a shorter 15 trial, that the case will be submitted to you sometime during 16 the week of December 12th through the 16th. Okay? That's the 17 three weeks after Thanksgiving. 18 All I can tell you is, in estimating the length 19 of a trial, things change. Oftentimes, you have done the same 20 thing before, you know, the lawyers have tried an automobile 21 accident with two people injured or whatever it is. In 22 defense of the lawyers and myself, we have not tried three or 23 four Standard Gravure cases so we get a feel for how it goes. 24 You know what I mean? 25 So I just... That at the present time is the 6 1 estimate. I know those of you that are suffering a hardship 2 because of it going this far, it increases that hardship. I 3 don't know what I can say to make it any different than to 4 tell you that's what our best estimate is at this time. 5 Mr. Stopher, do you want to call your first 6 witness? 7 MR. STOPHER: Yes, Your Honor. We will call 8 Donald McCall by videotape. 9 JUDGE POTTER: Ladies and gentlemen, again, a 10 deposition is sworn testimony taken outside the courtroom 11 prior to trial. The witness is placed under oath, both 12 parties have a right to be present and examine and cross- 13 examine the witness just the way they do here at trial. When 14 a video of that deposition is played for you or a transcript 15 of that deposition is read to you, you will give it the same 16 weight and effect you would as if the witness were here 17 testifying live. 18 (VIDEO DEPOSITION OF DONALD M. McCALL BEGINS) 19 JUDGE POTTER: Ladies and gentlemen, we'll take 20 the morning recess at this time. As I've mentioned to 21 you-all, do not permit anybody to speak to or communicate with 22 you on any topic connected with this trial. Do not discuss it 23 among yourselves and do not form or express any opinions on 24 it. Take a 15-minute recess. 25 (RECESS) 7 1 SHERIFF CECIL: The jury is now entering. All 2 jurors are present. Court is back in session. 3 JUDGE POTTER: Mr. Stopher, I think you've got 4 to come around and start us. 5 MR. STOPHER: All right, sir. 6 (VIDEO DEPOSITION OF DONALD M. McCALL 7 RESUMES TO ITS COMPLETION) 8 MR. STOPHER: Your Honor, we would also move the 9 admission of that document, the report of Mr. DeBruler that 10 was Exhibit 7 and was referred to in that deposition, the 11 video deposition. It's been marked as Defendant's 12 Exhibit 308, and we would ask that it be distributed to the 13 jury. 14 MS. ZETTLER: If I could take a quick look at 15 it, Judge. 16 MR. STOPHER: Sure. 17 MS. ZETTLER: No objection, Your Honor. 18 JUDGE POTTER: Okay. Be admitted. 19 SHERIFF CECIL: (Hands document to jurors). 20 MR. STOPHER: That's the conclusion of the video 21 deposition, Your Honor. 22 JUDGE POTTER: Okay. You want to call your next 23 witness? 24 MR. STOPHER: Yes, sir. We call Mr. James 25 Addams. 8 1 MS. ZETTLER: Your Honor, may we approach the 2 bench? 3 (BENCH DISCUSSION) 4 MS. ZETTLER: Your Honor, Mr. Addams is the 5 funeral director where Mr. Wesbecker went to make his 6 cremation arrangements, and in his deposition he voiced 7 opinions about whether or not Mr. Wesbecker was suicidal on 8 the day that he went there to make his arrangements. And 9 we're going to ask that Counsel be asked not to elicit such 10 opinions from this man since he is not a psychiatrist or a 11 psychologist or even a social worker. 12 MR. STOPHER: Your Honor, by experience in 13 dealing with people who come in and pay cash for funeral 14 arrangements, he has had experience in being able to evaluate 15 people like that. And, admittedly, he's not a psychiatrist or 16 a psychologist, but he has had experience in dealing with 17 people who are suicidal and who do make such approaches to 18 funeral homes, and his testimony is based on his observations 19 of Mr. Wesbecker. 20 MR. SMITH: Your Honor -- 21 JUDGE POTTER: This is Ms. Zettler's, Mr. Smith. 22 MR. SMITH: But I was going to say something 23 really funny. We'd move to add to our complaint that Lilly 24 had the morticians on their staff to participate in the 25 clinical trials. 9 1 MS. ZETTLER: What Mr. Addams actually said in 2 his deposition is that it was actually common for people to 3 come in and make and prearrange their funerals; that it was 4 his experience in general with older people. He went on to 5 say that Mr. Wesbecker's nervousness as well as his age made 6 him and his co-workers concerned that he was suicidal and he 7 cited one other instance where he had heard that another 8 funeral home had had a situation where a man came in and went 9 and shot himself. 10 JUDGE POTTER: I'm going to sustain the 11 objection. I think he can testify that he was nervous or 12 fidgety, whatever he was, but to express the opinion that he 13 was suicidal I'm going to sustain the objection. 14 MS. ZETTLER: Can we have an instruction, Judge? 15 JUDGE POTTER: Do you need to have a word with 16 him, Mr. Stopher? 17 MR. STOPHER: If I can just take a second, 18 Judge. 19 JUDGE POTTER: Okay. 20 (BENCH DISCUSSION CONCLUDED) 21 JUDGE POTTER: Sir, would you step up here and 22 raise your right hand, please. Thread your way through the 23 obstacle course, sir. 24 25 10 1 JAMES ADDAMS, after first being duly sworn, was 2 examined and testified as follows: 3 4 JUDGE POTTER: Would you have a seat there. 5 You've got to walk around. Be sure and keep your voice up 6 loud, and then would you state your name and then spell it for 7 me, please. 8 MR. ADDAMS: Okay. My name is James Addams. 9 That's A-double D-A-M-S. 10 JUDGE POTTER: Answer Mr. Stopher's questions. 11 12 EXAMINATION ___________ 13 14 BY_MR._STOPHER: __ ___ _______ 15 Q. Mr. Addams, let me first of all tell you -- I'm 16 not sure this microphone is working here, either. Let me 17 first of all tell you, sir, that the microphone that is on the 18 table in front of you that's connected with a wire is the one 19 that amplifies your voice in this room, sir. 20 A. Okay. 21 Q. The one on the mike stand does not amplify your 22 voice in this room, so you'll know which way to throw your 23 voice to be picked up here, sir. 24 First of all, sir, what is your present address, 25 sir? 11 1 A. Home address is 5216 Pluto Drive in Louisville. 2 Q. And how old are you, sir? 3 A. Fifty-six. 4 Q. And by whom are you employed, sir? 5 A. I'm with the Owen Funeral Home. 6 Q. And what is your title or position with the Owen 7 Funeral Home? 8 A. I am a pre-need director. 9 Q. I'm sorry, sir? 10 A. A pre-need director. 11 Q. What is a pre-need director? 12 A. My responsibilities are more or less making 13 pre-arrangements with people that do come in or call in, along 14 with taking care of funerals. 15 Q. Mr. Addams, in that regard, are you licensed or 16 certified? 17 A. I am a licensed funeral director and embalmer. 18 Q. Mr. Addams, where is Owen Funeral Home 19 physically located, sir? 20 A. 5317 Dixie Highway in Louisville. 21 Q. And what sort of services does that business 22 operation provide, generally? 23 A. We prepare human remains for burial and we 24 conduct funerals at that location. 25 Q. And are there services with regard to cremation? 12 1 A. We have those contracted, yes. 2 Q. As a pre-need director, sir, do you also have 3 some function with regard to cremations or the arrangements 4 for cremations? 5 A. Yes. I would counsel people that would inquire 6 as to what the options are. 7 Q. Mr. Addams, approximately how long have you been 8 employed in that capacity generally at Owen Funeral Home, sir? 9 A. Approximately 20 years now. 10 Q. Mr. Addams, in connection with your work there, 11 did you ever have any contact with Joseph T. Wesbecker? 12 A. Yes, sir; I did. 13 Q. And at my request, sir, have you brought today 14 with you documents regarding your contacts with Joseph T. 15 Wesbecker? 16 A. Yes, sir. 17 Q. Let me ask you to refer to those documents and 18 tell us from your recollection or from those documents when 19 you first had contact with him, sir. 20 A. On the 10th day of September, 1988. 21 Q. September 10, 1988? 22 A. Correct. 23 Q. Had you known him before that date, sir? 24 A. No, sir. 25 Q. Had he ever had any contact, to your knowledge, 13 1 with Owen Funeral Home prior to that date? 2 A. No, sir. 3 Q. Were there any records or are there any records 4 at Owen Funeral Home regarding Joseph Wesbecker that are dated 5 earlier than that? 6 A. No, sir. 7 Q. Mr. Addams, what do you recall about him and 8 that first contact on September 10, 1988? 9 A. Mr. Wesbecker came into our office. There were 10 three of us in the office, but he happened to come in my 11 direction and sat down at my desk and asked about making 12 arrangements for cremation. And at that point in time he was 13 instructed as to what he could do and what the options were. 14 Q. What do you recall about that conversation 15 between yourself and Mr. Wesbecker concerning cremation? 16 A. Well, Mr. Wesbecker requested that he be 17 cremated and that no ashes be returned to him -- or be 18 returned to anyone, that he wanted just total cremation. 19 Q. Was there any conversation about why? 20 A. Not that much. He just said -- made a statement 21 something to the effect that nobody really cared for him and 22 that he didn't want anybody to have any ashes when he was 23 cremated. 24 Q. What else occurred in that conversation, sir? 25 A. He just gave us the information that we would 14 1 need for newspaper notices and for death certificate, and he 2 paid for the arrangements at that point. 3 Q. How did he pay for it? 4 A. He paid with cash. 5 Q. How much was the charge for that service, sir? 6 A. Six hundred and eight-five dollars. 7 Q. In that conversation, sir, did you have an 8 opportunity to observe him and the way he acted? 9 A. Mr. Wesbecker was rather nervous at the time 10 when he came in. He kept looking back at the door, I recall 11 that, as we were talking. 12 Q. Was anyone with him, sir? 13 A. No, sir. 14 Q. Let me show you, sir, a copy of a document that 15 has been marked as Defendant's Exhibit 312, and let me ask 16 you, sir, do you recognize that document? 17 A. Yes, sir; I do. 18 Q. And is this a document that relates to the 19 conversations and the transaction that you just described? 20 A. That's correct. 21 MR. STOPHER: Your Honor, we would move the 22 admission of Defendant's Exhibit 312 and ask that it be 23 published to the jury. 24 MS. ZETTLER: No objection. 25 JUDGE POTTER: Okay. Mr. Stopher, it is a 15 1 two-page exhibit or I've got -- 2 MR. STOPHER: Yes, sir. It's two pages. I 3 think it may in fact be on the original a front and a back. 4 MS. ZETTLER: It looks like two copies of the 5 same page. 6 JUDGE POTTER: Only thing I'm suggesting is 7 maybe you want to take a look at his original and see if 8 you've got what you need, because my pages look identical. 9 MR. STOPHER: Yes, Your Honor. It's identical 10 to his page; the only difference is that I've copied it twice 11 in error. 12 JUDGE POTTER: Okay. 13 SHERIFF CECIL: (Hands document to jurors). 14 Q. Mr. Addams, in looking at this document, it's 15 captioned up at the top, Funeral Trust. 16 A. Correct. 17 Q. And down at the bottom it is signed apparently 18 by purchaser, Joseph T. Wesbecker? 19 A. Correct. 20 Q. Did he sign this document in your presence, sir? 21 A. Yes, he did. 22 Q. And then there's obviously your signature 23 underneath? 24 A. Correct. 25 Q. In the body of the document, sir, up at the top 16 1 there's a typewritten section and some numbers underneath 2 that; correct? 3 A. Correct. 4 Q. When was that done, sir? 5 A. That was done at the time, put all together 6 before he signed it. 7 Q. This was typed in? 8 A. I typed it in, yes. 9 Q. It says in the second sentence there, "Desire of 10 beneficiary is the direct cremation with total consumption, no 11 ashes to be returned." Correct? 12 A. Correct. 13 Q. And then it shows a charge; correct, sir? 14 A. That's right. 15 Q. And the amount is $685. And then down in the 16 middle of the document typed in it says, "Cash with contract." 17 Correct? 18 A. Correct. 19 Q. Mr. Addams, underneath that, I see someone's 20 handwriting, and can you read that, sir? 21 A. Yes. That's my handwriting and it says, 22 "Cremains to be picked up by Brenda Wesbecker only." 23 Q. Was that on the original contract when Mr. 24 Wesbecker signed it, sir, on September 10, 1988? 25 A. No, sir; it wasn't. That was put on at a later 17 1 date. 2 Q. In other words, at the time he signed it, that 3 notation was not there? 4 A. It was not there. 5 Q. Now, sir, let me go back to the meeting on 6 September 10, 1988. Did he discuss any family members with 7 you at that time, sir? 8 A. We took the information from the family -- or as 9 to the family history and he gave us all the family members at 10 that point. 11 Q. All right. Let me show you another document 12 that's been marked as Defendant's Exhibit 313, and ask you if 13 you can identify this document for us, sir. 14 A. Yes, sir. That's our information sheet that I 15 filled out. 16 Q. And when was this filled out, sir? 17 A. At the same time I did the contract, on the 10th 18 of September of '88. 19 Q. Was all of the information put on here on 20 September 10, 1988? 21 A. No, sir. Some of the information was put on 22 there at the time of his death by other than myself. 23 Q. All right. Okay. 24 Your Honor, we would move the admission of 25 Defendant's Exhibit 313 and ask that it be published to the 18 1 jury. 2 MS. ZETTLER: No objection. 3 JUDGE POTTER: Be admitted. 4 SHERIFF CECIL: (Hands document to jurors). 5 Q. Mr. Addams, this is a two-page document or at 6 least a front and a back; correct, sir? 7 A. Correct. 8 Q. And on the first page it says, "For funeral 9 director's use only, information, blank, Owen Funeral Home." 10 Correct, sir? 11 A. That's correct. 12 Q. In the meeting on September 10, 1988, was any of 13 this information on this first page filled out? 14 A. Yes, sir. His name, his residence, his date of 15 birth, birthplace, occupation, Social Security number, the 16 item on not being a veteran, church affiliation, fraternal 17 orders. Under cemetery, just the notation cremation, 18 immediate cremation, that was part of it; the part where he's 19 listed as divorced and then his mother's and his father's 20 name. 21 Q. Take a look at the second page, sir. Was this 22 information filled out on September 10 or some of this? 23 A. The sons' names were filled out on September the 24 10th, as well as grandchildren. 25 Q. All right. Let me go to the top line. These -- 19 1 under the caption up there, Children? 2 A. Right. 3 Q. Is this your handwriting, sir? 4 A. That's my handwriting. 5 Q. All right. And I see the name James Thomas 6 Wesbecker, 21; correct? 7 A. Correct. 8 Q. And then underneath that, sir, I see the name -- 9 it looks like something has been written and is scratched out. 10 A. Right. It looks like I had put down James. I'm 11 not certain if he gave it to me that way or I transposed it, 12 but it was scratched out and put Joseph Kevin then. 13 Q. And then down below that is the name Sue 14 Chesser, first wife? 15 A. Correct. 16 Q. Joe Higgins, was that written in then? 17 A. That was put on at the time of the death. 18 Q. And then under the caption, Brothers, can you 19 read what's written there, sir? 20 A. It looks like Lloyd with another phone number, 21 but that was put in at the time of death, also. 22 Q. Is that your handwriting, sir? 23 A. No, it is not. 24 Q. And then down below where it says Sisters, do 25 you see the writings there? 20 1 A. Brenda Wesbecker. 2 Q. Is that your handwriting, sir? 3 A. That's my handwriting there. 4 Q. Was that put in on September 10, 1988? 5 A. No, it wasn't. That was put on at a later date. 6 Q. All right. Down there at the very bottom I see 7 what looks like Melissa; do you see that, sir? 8 A. I see that; correct. 9 Q. And then it looks like a phone number and then 10 it looks like to me someone wrote, "Not to be given out." 11 A. That is my handwriting. 12 Q. What do you recall about this notation? First 13 of all, when was it made, sir? 14 A. I believe this was done when they came back in 15 and requested that the ashes be given to Brenda Wesbecker, and 16 at that point the phone number was given. And they asked us 17 not to give the phone number out because it was a nonpublished 18 number. 19 Q. All right, sir. 20 JUDGE POTTER: Ladies and gentlemen of the jury, 21 do you-all have that last part on the bottom of yours? 22 You may want to redo your exhibit. 23 MR. STOPHER: Your Honor, it may have been cut 24 off in error, and we will supplement that immediately after 25 the lunch break, sir. 21 1 Now, Mr. Addams, what else do you recall, if 2 anything, about the meeting with Mr. Wesbecker on 3 September 10, 1988? 4 A. Not really that much more than what we've 5 discussed. He was anxious to get things done, get out of 6 there. I mean, as soon as he had everything written down, 7 well, he wanted to leave. 8 Q. On that date, sir, he gave as his date of birth 9 4-27-42; correct? 10 A. Correct. 11 Q. If my math is correct he was 46 years of age? 12 A. That's right. 13 Q. Did you ever see him again, sir? 14 A. Only the two times, on the September the 10th 15 and then when he came back and changed the arrangements with 16 Brenda. 17 Q. All right. Tell us what you recall about that. 18 First of all, when did it occur? 19 A. He and Brenda came by one morning and they were 20 on their way to another funeral home because Brenda's father 21 had passed away. They were on their way to make arrangements 22 for him, and at that time -- it was no more than five or ten 23 minutes, but they got no further than the door but stated that 24 he had changed his mind. She had talked him into at least 25 letting her keep the cremains and do with what she wanted 22 1 them. 2 Q. Did you meet with him on that date, sir? 3 A. Just that brief time, five or ten minutes. 4 Q. And was Brenda with him? 5 A. Brenda was with him. 6 Q. How did he appear on that date, sir? 7 A. He was still just probably about as nervous as 8 he was when he came in originally, anxious to get out. 9 Q. And on that date, sir, was there any more money 10 required? 11 A. No, sir. 12 Q. On that date, looking back at Defendant's 13 Exhibit 312 and referring to the note about the cremains on 14 that exhibit, sir, did you make that note then when he came 15 with Brenda? 16 A. I made that note at that time. 17 Q. Any other changes made at that time, sir? 18 A. No, sir. 19 Q. All of the other notations, added information on 20 Defendant's Exhibit 313, were they made before or after his 21 death? 22 A. After the death. 23 Q. For example, sir, can you look down that exhibit 24 and tell us what was added after the death? 25 A. Yes, sir. The place of death was added, the 23 1 date of death, age was added in there. There's a notation, 2 Attorney John Bauman, that was added later. The entombment in 3 Louisville Memorial Gardens was added later, and Brenda 4 Wesbecker under Divorced was added later. Sue Chesser's name 5 on the back side, first wife, with phone number, and Joe 6 Higgins and then Lloyd, all of that was added later. 7 Q. After his death? 8 A. After his death. 9 Q. All right, sir. That's all I have, sir. 10 JUDGE POTTER: Ms. Zettler. 11 12 EXAMINATION ___________ 13 14 BY_MS._ZETTLER: __ ___ _______ 15 Q. Mr. Addams, could you tell us again what you do 16 with Owen's Funeral Home? 17 A. Presently, I'm a pre-need director. 18 Q. Okay. Can you tell us what a pre-need director 19 is, once again? 20 A. I'm responsible for making pre-arranged funerals 21 with anyone that would either call in or come into the funeral 22 home. 23 Q. Are there any other pre-need directors at the 24 funeral home at this time? 25 A. Not full time. 24 1 Q. And you are a full-time pre-need director? 2 A. Yes, ma'am. 3 Q. That means you deal almost exclusively with 4 people who come in and want to pre-arrange funerals; is that 5 right? 6 A. That's correct. 7 Q. And it's my understanding that that's kind of 8 becoming a marketing focus with funeral homes these days; is 9 that true? 10 A. That's correct. 11 Q. And the advantages to doing that is that you 12 come in and make your funeral arrangements the way you want to 13 make them; correct? 14 A. Correct. 15 Q. You do it at a time when you're not necessarily 16 ill; correct? 17 A. That's correct. 18 Q. Or you can do it if you are ill and, say, 19 terminally ill; correct? 20 A. Yes. 21 Q. Another advantage to doing it that way is that 22 you can kind of lock in a cheaper price for a funeral, can't 23 you? 24 A. Absolutely. 25 Q. And, in fact, that's one of the biggest selling 25 1 points, isn't it? 2 A. That's correct. 3 Q. For instance, a funeral that costs -- and I'm 4 just using these myself -- that costs $5,000 today may be 5 something that costs around $15,000, 20 years from now; 6 correct? 7 A. That's very correct. 8 Q. And that's an advantage for the funeral home, 9 too, isn't it? 10 A. Right. We would not have any problem with cash 11 flow down the road in 10 or 15 years then. 12 Q. Okay. Now, it's not unusual for people who are 13 coming in to pre-arrange their funerals, even if they're doing 14 it for the sake of saving money, to be nervous when they're 15 coming into a funeral home, is it? 16 A. That's true. 17 Q. Because nobody really likes to go in a funeral 18 home, do they? 19 A. Right. 20 Q. In fact, I'm sure you've experienced other 21 people who have gone in there to make their own arrangements 22 to be nervous? 23 A. That's correct. 24 Q. And you kind of want to do it and get it over 25 with and get out; right? 26 1 A. Right. 2 Q. Do you know if Brenda had made arrangements for 3 her funeral at your funeral home? 4 A. No, she had not. 5 Q. Do you know if she's ever done that? 6 A. I do not know. Not with us. 7 Q. Okay. When she and Mr. Wesbecker came in, I 8 believe you said it was sometime around her father's death; 9 correct? 10 A. Right. 11 Q. You said Mr. Wesbecker really wasn't any more 12 nervous about being there than he was the first day that you 13 saw him; correct? 14 A. About the same, yes. 15 Q. Do you know were they upset about Brenda's 16 father having passed away? 17 A. He didn't seem to be but, of course, she was. 18 Q. Okay. Is it unusual for people to come in and 19 make funeral arrangements or change funeral arrangements 20 around another loved one's death? 21 A. I've not really had that to happen. 22 Q. At least, not that you're aware of? 23 A. Right. 24 Q. Somebody passes away, you sort of start 25 realizing your own mortality sometimes, don't you? 27 1 A. True. That's true. 2 Q. Go back to Defendant's Exhibit 313, Mr. Addams. 3 A. All right. 4 Q. I'm a little unclear. Three quarters of the way 5 down the page it says, "Cemetery, cremation, immediate 6 cremation." 7 A. Right. 8 Q. And then, "Lot owner, cremains returned to 9 family." Is it my understanding that that was written in on 10 September 10th? 11 A. No. The "cremains returned to family" would 12 have been put in when Brenda and Mr. Wesbecker came in. 13 Q. Okay. When Brenda and Mr. Wesbecker came in, 14 Mr. Wesbecker didn't protest changing it from a total 15 cremation to having some cremains, did he? 16 A. Not as a protest, no. No. 17 Q. Okay. Thank you. That's all I have. 18 MR. STOPHER: That's all I have, Your Honor. 19 JUDGE POTTER: Okay. Thank you very much, sir. 20 You may step down; you're excused. 21 Ladies and gentlemen, would you leave 313 in 22 your seat so that they can give you a full last page to swap 23 it out over lunch? 24 Is this a good time to take the lunch recess, 25 Mr. Stopher? 28 1 MR. STOPHER: It is, sir. I apologize for it 2 being a little bit early. 3 JUDGE POTTER: They're never going to complain 4 about it being early. 5 Okay. Ladies and gentlemen, we'll take the 6 lunch recess at this time. As I've mentioned to you-all 7 before, do not permit anybody to communicate with you about 8 this case, do not discuss it among ourselves, and do not form 9 or express opinions about it. Stand in recess till 1:30. 10 (LUNCH RECESS) 11 SHERIFF CECIL: The jury is now entering. All 12 jurors are present. Court is back in session. 13 JUDGE POTTER: Please be seated. 14 Marsha, what they've redone, will you pass these 15 new 313s out and collect up their old ones. Rather than just 16 replace the second page, they redid the whole thing. 17 JUROR JONES: We've already written on these. 18 Can we keep them? 19 JUDGE POTTER: Keep them both. Or if you want 20 to give them back, feel free to do that, but if you've written 21 on them, go ahead and keep them. 22 SHERIFF CECIL: (Hands document to jurors). 23 JUDGE POTTER: Okay. Mr. Stopher, do you want 24 to call your next witness? 25 MR. STOPHER: Yes, Your Honor. Steve Estes. 29 1 MR. SMITH: Can we approach, Your Honor? 2 (BENCH DISCUSSION) 3 MR. SMITH: Some of these witnesses, Mr. Stopher 4 refers to photographs of various weapons that -- and asks them 5 to identify various weapons. I don't know of his intent of 6 using the photographs, but several of them show like one -- 7 like this guy showed him a Sig nine-millimeter, and it may be 8 they're spread out with all the cachet of weapons that were 9 there. It can be inflammatory to show each one of these each 10 time with each witness. 11 JUDGE POTTER: I'm not going to make him -- I 12 mean, you've got that picture I saw before with things spread 13 out. If he wants to show him all the different pictures or 14 two or three different pictures or whatever it is, you know, I 15 don't think -- I mean, provided they show the gun that's 16 involved here, the fact that it's in the same picture with 17 some other guns that are going to be introduced later, I don't 18 think that's grounds for objecting. 19 (BENCH DISCUSSION CONCLUDED) 20 JUDGE POTTER: Sir, would you raise your right 21 hand, please. 22 23 STEVE ESTES, after first being duly sworn, was 24 examined and testified as follows: 25 30 1 JUDGE POTTER: Okay. Would you walk around over 2 here and have a seat, say your name real loudly once you get 3 seated and then spell it for me. 4 MR. ESTES: Steve Estes. S-T-E-V-E, E-S-T-E-S. 5 JUDGE POTTER: Okay. Keep your voice up good 6 and loud and answer Mr. Stopher's questions. 7 8 EXAMINATION ___________ 9 10 BY_MR._STOPHER: __ ___ _______ 11 Q. Mr. Estes, I'm having a little difficulty 12 hearing you, so if you will speak up just a little bit I think 13 it will save you having to repeat some answers this afternoon. 14 All right, sir? 15 A. Yes, sir. 16 Q. And, also, be careful not to cover up the 17 microphone that's there in front of you, the one that's lying 18 down because that's the important one. All right, sir? 19 A. All right. 20 Q. Mr. Estes, where do you presently live, sir? 21 A. Shepherdsville, Kentucky. 22 Q. And how old are you? 23 A. Thirty-four. 24 Q. And by whom are you employed? 25 A. Bernheim Forest. The I. W. Bernheim Foundation. 31 1 Q. And what do you do for Bernheim Forest? 2 A. I'm a forest ranger for Bernheim. 3 Q. Mr. Estes, back in the 1980s, were you employed 4 at a store that sold guns at retail? 5 A. Yes, I was. 6 Q. Where were you employed, sir? 7 A. Archery World. 8 Q. And was that the name of the shop or store, sir? 9 A. Yes, it was. 10 Q. Where was Archery World located at that time, 11 sir? 12 A. It was located at the corner of South Park Road 13 and Minors Lane in Jefferson County. 14 Q. And what was the business of Archery World, sir? 15 A. It was a retail sporting goods business, mostly 16 hunting- and fishing-oriented items. 17 Q. And what did you do there, sir? 18 A. I was a salesperson. 19 Q. Worked behind the counter? 20 A. Yes. 21 Q. All right. When did you work there exactly, 22 sir? 23 A. Dates or -- 24 Q. Oh, you don't have to be the month and the day 25 but what years, approximately? 32 1 A. July 1988 through May of 1989. 2 Q. So you weren't there quite a year; is that 3 correct? 4 A. That's correct. 5 Q. All right, sir. Mr. Estes, during that period 6 of time did you become involved in a transaction involving 7 Joseph T. Wesbecker? 8 A. Yes, I did. 9 Q. Mr. Estes, did that involve a sale of a firearm 10 or a weapon of some sort, sir? 11 A. Yes, it did. 12 Q. Before we get to that particular transaction, 13 can you tell us generally, sir, what documents are involved in 14 the sale of a firearm at retail? 15 A. Normally, a retail sale of a firearm involves a 16 federal firearms Form No. 4473. This is filled out by the 17 purchaser, which asks questions regarding his status as far as 18 whether he was a convicted felon and so on and so forth; I 19 don't recall all the questions offhand. 20 Q. All right, sir. 21 A. The purchaser fills out the top half of the 22 form, answers the questions that are asked on the form and 23 signs it, at which time this is executed as in the presence of 24 the seller. And at that time he verifies his identification, 25 the seller does, and completes the bottom portion of the form, 33 1 which involves establishment of his identification, 2 description, and serial number of the firearm purchase and so 3 on. 4 Q. Is that done on every sale, sir? 5 A. Yes, it is. 6 Q. And when the form is filled out, what happens to 7 it; where does it go? 8 A. It becomes a record of the establishment or the 9 dealer and remains on file with that dealer. 10 Q. Is it sent anyplace? 11 A. Not to my knowledge. 12 Q. Let me show you, sir, a copy of a document that 13 has been marked as Defendant's Exhibit 317. Do you recognize 14 that document, sir? 15 A. Yes, I do. 16 Q. Is it signed by you? 17 A. Yes, it is. 18 MR. STOPHER: Your Honor, we'd move the 19 admission of Defendant's Exhibit 317 and ask that it be 20 published to the jury. 21 JUDGE POTTER: Be admitted. 22 SHERIFF CECIL: (Hands document to jurors). 23 Q. Mr. Estes, what is this document? 24 A. A Form 4473. 25 Q. I see down in the lower left-hand corner it 34 1 looks like it says ATF, F-4473. 2 A. That's correct. 3 Q. Do you see that, sir? 4 A. Yes, sir. 5 Q. And I see your signature just above that, and 6 then over in the right-hand corner I see it says, "Transaction 7 date." 8 A. Yes. 9 Q. And what is the date of this transaction? 10 A. 8-26 of '88. 11 Q. Mr. Estes, is some of this document in your 12 handwriting? 13 A. The bottom portion. 14 Q. When you say the bottom portion, what portion 15 are you referring to? 16 A. Section B. 17 Q. I see there in the -- it's about three-fifths of 18 the way down, I guess. It says, "Section B to be completed by 19 transferor/seller"? 20 A. That's correct. 21 Q. Is everything from then on down in your 22 handwriting? 23 A. Yes, sir. 24 Q. Now, up above that under Section A, whose 25 handwriting is that, sir? 35 1 A. Joseph Wesbecker's. 2 Q. And it looks like his name is written in there 3 once under buyer's name? 4 A. Uh-huh. 5 Q. And then it says transferee's/buyer's signature 6 and his signature appears there; correct? 7 A. Yes, it does. 8 Q. And then under -- and it's difficult to read 9 this. I can't tell if it's a three or an eight, but it looks 10 like three, certification of transferor. Do you see that, 11 sir? 12 A. Yes. 13 Q. Transferee, I'm sorry, buyer. "An untruthful 14 answer may subject you to criminal prosecution. Each question 15 must be answered with a yes or a no inserted in the box at the 16 right of the question." Did I read that correctly? 17 A. That's correct. 18 Q. And then it appears that there are about eight 19 questions here; correct? 20 A. Yes. 21 Q. On the right-hand column, Question E says, "Have 22 you ever been adjudicated mentally defective or have you ever 23 been committed to a mental institution?" Did I read that 24 correctly, sir? 25 A. Yes, sir. 36 1 Q. Mr. Estes, what happens if a person answers no 2 to all of these questions? 3 A. They are allowed to purchase a firearm. 4 Q. What if the purchaser or buyer answers yes to 5 any of these questions? 6 A. They cannot purchase a firearm. 7 Q. What is done, if anything, to verify the 8 truthfulness of the answers? 9 A. At the time this was filled out, you were 10 basically relying on the honesty of the individual filling out 11 the form. We had no way to check whether those were truthful 12 answers or not. Only data that you could check is the 13 identity of the individual purchasing the weapon by his 14 driver's license that had his Social Security number and birth 15 date on it. 16 Q. Down in the lower left-hand corner again where 17 it says ATF, F-4473, what does ATF refer to? 18 A. The Bureau of Alcohol, Tobacco and Firearms. 19 Q. Does this form go to the Bureau of Alcohol, 20 Tobacco and Firearms? 21 A. Not to my knowledge. It remains on file with 22 the dealer. 23 Q. Now, sir, this document pertains to the purchase 24 and sale of a particular kind of weapon; correct, sir? 25 A. Yes. 37 1 Q. Can you tell us -- it looks like down under -- 2 what would it be, Sections 11, 12, 13, 14 and 15, is a 3 description of a type of firearm; correct, sir? 4 A. Yes. 5 Q. It's a pistol. And what kind of a pistol is it, 6 sir? 7 A. A semiautomatic, nine millimeter. 8 Q. And who's the manufacturer? 9 A. Sig Sauer. 10 Q. What does that mean to you, sir? 11 A. Basically that it's a double-action 12 nine-millimeter handgun manufactured by Sig Sauer. 13 Q. And who is Sig Sauer, sir? 14 A. They are the manufacturer of that handgun. At 15 the time, it was manufactured in West Germany and imported 16 into the United States. 17 Q. And you said double action. What does that 18 mean, sir? 19 A. Double action would be the type of action the 20 particular weapon has. In the case of the Sig, double action 21 means that you must pull the trigger completely through to 22 make the weapon fire on the first shot. 23 Q. How many bullets or rounds of ammunition does 24 this particular firearm hold? 25 A. It has a magazine capacity of 15 rounds. 38 1 Q. Let me show you a photograph, sir, and ask you 2 if this photograph accurately depicts this particular item. 3 Let me show this first of all to you, sir. 4 A. (Reviews photograph) Yes, sir. 5 MR. STOPHER: Your Honor, I just have one of 6 these. 7 MR. SMITH: (Examining photograph). 8 Q. Does this accurately show the nine-millimeter 9 Sig Sauer pistol, sir? 10 A. The 226 model, yes. 11 Q. Mr. Estes, in looking at this photograph, you 12 mentioned something about a magazine or a clip. Where does 13 the magazine or clip go in this? 14 A. It goes into the grip of the handgun from the 15 bottom. 16 Q. Into this area? 17 A. Yes. 18 Q. And is it one clip that fits in there? 19 A. That's correct. 20 Q. And that one clip holds how many bullets? 21 A. Fifteen. 22 Q. Mr. Estes, is this a firearm that is in use in 23 this area, sir? 24 A. Yes, it is. It's in use all around the region. 25 Q. And who are users of this firearm, sir? 39 1 A. Police officers, general sportsmen that like to 2 shoot, but it's primarily used by police as a duty sidearm. 3 Q. Do you have any information about its durability 4 and its functioning abilities? 5 A. The Sig Sauer, along with several other brands 6 of weapons, are carried by police officers. From my 7 experience with the Sig Sauer, I won't say that it's the best, 8 but I would say it certainly is one of the most reliable 9 nine-millimeter handguns that I've ever seen. 10 Q. When you say reliable, what does that mean, sir? 11 A. As far as its function, ease of maintenance. 12 It's a fine weapon. 13 Q. I've heard the term jamming. Does that mean 14 anything to you, sir? 15 A. Yes. 16 Q. What is jamming? 17 A. Jamming would be, where that gun is concerned, a 18 malfunction of it, once it fires the projectile, the case that 19 comes out of the pistol can fail to be extracted from the 20 barrel. It can fail to feed as far as going from the magazine 21 into the barrel when the action or slide on top of it closes 22 on it. These are all common malfunctions of semiautomatic 23 weapons. 24 Q. You've used another term that I need an 25 explanation of. What's a semiautomatic weapon versus an 40 1 automatic weapon? 2 A. A semiautomatic weapon is a weapon that must be 3 actuated on the trigger each time it's fired. You have to 4 physically pull the trigger for each shot. 5 Q. Now, we were talking about reliability and about 6 jamming. Is this weapon easily jammed? 7 A. No. 8 Q. Is that what you meant when you said that it's 9 reliable? 10 A. It is reliable. 11 Q. What sort of a round or bullet does this weapon 12 fire, sir? 13 A. It fires a nine-millimeter Luger. 14 Q. How does that compare to other types or sizes of 15 bullets? 16 A. It's very close to .38 caliber as far as the 17 bullet diameter, and as far as the power of the cartridge it 18 somewhat exceeds .38 special caliber, as far as power level 19 goes. 20 Q. When you say power level, what are we talking 21 about? 22 A. Velocity. 23 Q. Velocity of the bullet coming out of the gun? 24 A. Yes. 25 Q. Mr. Estes, let me refer you back again to the 41 1 document that you have there in front of you, which has been 2 marked as Defendant's Exhibit 317, sir. This involves the 3 sale of a weapon similar or identical to the one in the 4 photograph? 5 A. That's correct. 6 Q. Do you recall anything about Mr. Wesbecker or 7 this particular transaction, sir? 8 A. As far as what? 9 Q. Do you recall anything at all, sir, about him or 10 the sale of this weapon to him? 11 A. He came in the store, I believe it was in the 12 afternoon. I was working. Asked to look at some handguns. 13 Talked a lot about the Sigs and looked at several different 14 other brands that we had in the case. And we discussed some 15 minor operating features of different weapons, which I don't 16 recall now what that was, but just as he was handling the guns 17 and looking at them. And he eventually fell back to the Sig 18 as far as the one he wanted and kept going back to the Sig 19 when we were talking about the other guns as far as comparing 20 features to it. So I really believe he came in to buy the Sig 21 when he came in the store. 22 Q. Did -- had he ever been in the store before, to 23 your knowledge, sir? 24 A. No. Not to my knowledge. 25 Q. You had not waited on him in the past? 42 1 A. No, sir. 2 Q. Did you ever have any contact with him again 3 after that occasion? 4 A. Not to my knowledge. 5 Q. Mr. Estes, do you have any recollection of the 6 approximate price range of that firearm at that time, sir? 7 A. It was in excess of $500, I'm sure, but not an 8 exact price. 9 Q. Is this a cheap weapon, sir? 10 A. No, sir. 11 Q. Mr. Estes, just a couple of other questions. 12 Did Mr. Wesbecker tell you why he wanted this particular 13 firearm or what use he was going to make of it, sir? 14 A. No, he did not. 15 Q. In connection with transactions involving 16 firearms, the Form 4473 that we have here is required on every 17 gun sale, if I understand correctly? 18 A. That's correct. 19 Q. What about sales of ammunition, sir? 20 A. Not to my knowledge. 21 Q. Is there any form that's required to be kept or 22 to be filled out in connection with the sale or purchase of 23 ammunition? 24 A. Not to my knowledge. 25 Q. Do you recall, Mr. Estes, if he purchased any 43 1 ammunition at the time of this gun purchase? 2 A. I don't recall. 3 Q. That's all I have, sir. Thank you. 4 JUDGE POTTER: Mr. Smith. 5 6 EXAMINATION ___________ 7 8 BY_MR._SMITH: __ ___ ______ 9 Q. When Mr. Wesbecker came in and purchased this 10 Sig, he did not appear to you to be nervous or upset, did he? 11 A. No, sir. 12 Q. You did not at that time suspect that he 13 intended to do anything illegal or harmful at the time, did 14 you? 15 A. No, sir. 16 Q. This was in August of 1988; correct, sir? 17 A. Yes. 18 Q. The Sig is a -- as stated earlier, a popular 19 handgun, is it not, sir? 20 A. It is a popular handgun. 21 Q. It is probably the most popular, reliable, 22 semiautomatic handgun currently available in the United 23 States, is it not? 24 A. I'd say it's one of them. 25 Q. This gun is the gun of choice of most police 44 1 forces, is it not? 2 A. Yes, it is. 3 Q. When my son was going through the police academy 4 in Dallas, Texas, this was the first thing he bought. 5 MR. STOPHER: Objection, Your Honor. 6 JUDGE POTTER: Sustained. 7 Q. You sell these guns to police officers, do you 8 not? 9 A. We have. 10 Q. It is not a reason for suspicion, for an 11 individual to buy a Sig Sauer nine-millimeter automatic 12 weapon -- semiautomatic weapon, is it, Mr. Estes? 13 A. No. 14 Q. There are a number of legitimate purposes for 15 the gun; is that right? 16 A. That's correct. 17 Q. You were asked about some of these questions on 18 Exhibit 317. Can you refer to that, please, sir. As I 19 understand it, Mr. Estes, it's required that this federal 20 form, ATF Form 4473, must be filled out when any gun is sold; 21 is that right, sir? 22 A. That's correct. 23 Q. And this remains at the dealer's location? 24 A. Yes, to my knowledge it does. 25 Q. Then if members of the ATF Bureau want to 45 1 inspect sales, they can come in and you will have for them 2 evidence of your sales of firearms; is that right? 3 A. That's right. 4 Q. As I understand it, if there are two or more 5 pistols sold by a dealer to the same individual within five 6 days, then that form must be sent to Washington or wherever 7 the Bureau of ATF is. Are you aware of that, sir? 8 A. No. I'm aware of it but that's never happened 9 to me, but I do know that there is a multiple-handgun-sale 10 form that must be filled out when more than one handgun is 11 purchased. 12 Q. Is that the same form as this or is this a 13 different form, Mr. Estes? 14 A. It's a different form. 15 Q. Item D there on this questionnaire -- well, 16 let's go to Item E first. It says, "Have you ever been 17 adjudicated mentally defective or ever been committed to a 18 mental institution." Do you see that, sir? 19 A. Yes. 20 Q. Have you ever asked or have you ever had any 21 individual ask you about that particular section, sir? 22 A. Not that I can recall. 23 Q. Is it your understanding where it says 24 "committed to a mental institution" that if a person had 25 checked themselves into a psychiatric hospital for treatment 46 1 that that would be different than if they had been committed 2 to a mental institution by virtue of a mental disorder, or do 3 you know, sir? 4 A. I wouldn't know. 5 Q. All right. Go up with me to Item D there. That 6 question asks, "Are you an unlawful user of or addicted to 7 marijuana or a depressant stimulant or narcotic drug," does it 8 not? 9 A. That's what it says. 10 Q. Do you know why that question on the ATF form 11 would inquire whether or not the individual who's going to 12 purchase a gun is a user of a stimulant, Mr. Estes? 13 A. No. 14 Q. Do you assume, sir, that this questionnaire is 15 designed to ensure that people who are under the influence of 16 stimulants aren't allowed to get firearms in this country? 17 A. That's right. 18 Q. That's all I have. Thank you, Mr. Estes. 19 MR. STOPHER: Nothing further, Your Honor. 20 JUDGE POTTER: Thank you very much, sir. You 21 may step down; you're excused. 22 Mr. Stopher, do you want to call your next 23 witness. 24 MR. STOPHER: Joe Hatfield, Your Honor. 25 JUDGE POTTER: Sir, would you step up here and 47 1 raise your right hand, please. 2 3 JOE HATFIELD, after first being duly sworn, was 4 examined and testified as follows: 5 6 JUDGE POTTER: Okay. Would you walk around, 7 have a seat in the witness box there. After you get seated, 8 say your name loudly and clearly and then spell it for me. 9 MR. HATFIELD: My name is Joseph Kenneth 10 Hatfield. 11 JUDGE POTTER: H-A-T-F-I-E-L-D? 12 MR. HATFIELD: Yes, Your Honor. 13 JUDGE POTTER: Okay. And answer Mr. Stopher's 14 questions. 15 16 EXAMINATION ___________ 17 18 BY_MR._STOPHER: __ ___ ________ 19 Q. Mr. Hatfield, where do you live, sir? 20 A. I live at 8908 Lantana Drive. 21 Q. Here in Louisville, sir? 22 A. Yes, sir. 23 Q. And what is your age? 24 A. I'm 39. 25 Q. And by whom are you employed? 48 1 A. I work for American Telecasting now. 2 Q. And have you ever been connected, sir, with a 3 business called Outer Loop Gun & Pawn? 4 A. Yes, sir. 5 Q. When approximately were you connected with that 6 business, sir? 7 A. From August of '88 until April of this year. 8 Q. April of '94? 9 A. Yes, sir. 10 Q. Where was Outer Loop Gun & Pawn Shop located? 11 A. 6716 Outer Loop. 12 Q. And what was your connection with that business, 13 sir? 14 A. I was the owner. 15 Q. Owner? 16 A. Yes, sir. 17 Q. And did you also sell items or deal in items in 18 the shop yourself? 19 A. Yes, sir. 20 Q. What sort of a business was Outer Loop Gun & 21 Pawn Shop? I suppose it's answered by the name, but give us a 22 brief description, if you would, please. 23 A. Pawn shop, jewelry business. I sold guns, TVs, 24 VCRs, just about any item I could get in. 25 Q. All right, sir. Did you have any particular 49 1 type of firearms that you sold, sir? 2 A. No. No particular. 3 Q. Mr. Hatfield, let me show you some documents. 4 First of all, let me show you a document that's been marked as 5 Defendant's Exhibit 319. 6 A. Okay. 7 Q. Can you identify this document for us, please, 8 sir? 9 A. It's a layaway slip from -- from my business. 10 Q. And what is the date of this document, sir? 11 A. November 5th of '88. 12 Q. And is this a document that you generated, sir? 13 A. My business did. That's not my handwriting, 14 but, yes, it come from my business. 15 MR. STOPHER: All right. Your Honor, we move 16 the admission of Defendant's Exhibit 319 and ask that it be 17 published. 18 JUDGE POTTER: Be admitted. I think my sheriff 19 is trying to do something about the heat. Ms. McBride, would 20 you pass those out? 21 MR. STOPHER: Oh, good timing. 22 SHERIFF CECIL: Here I am. (Hands documents to 23 jurors). 24 Q. Can you tell us what this document represents, 25 sir? 50 1 A. Evidently, Mr. Wesbecker came in on the 5th of 2 November of '88, and wanted to purchase a Winchester Defender 3 shotgun. I didn't have one in stock so it looks like I had to 4 order it, and evidently I had called and got a price and he 5 made a $40 down payment on it. 6 Q. Did you wait on Mr. Wesbecker yourself? 7 A. I don't recall. I have no -- 8 Q. You indicated that this is not your handwriting? 9 A. No, it's not. 10 Q. Does that mean anything as to who waited on him? 11 A. There was a gentleman who worked for me; his 12 name was Bruce Richie. This is his writing. At the time that 13 this was done, I stayed in the shop most of the time, so I was 14 probably there at that time but I didn't actually write the 15 order. 16 Q. Do you have any recollection of him at all at 17 that time, sir? 18 A. No, sir. None. 19 Q. Mr. Hatfield, what is a Winchester Defender? 20 A. It's a pump shotgun with an 21 eighteen-and-a-half-inch barrel. 22 Q. And what's a pump shotgun? 23 A. There's several different types of shotgun, but 24 the pump action is when you fire it you have to open the 25 chamber manually and then close the chamber, then you can fire 51 1 it again. It extracts a shell and then loads another shell. 2 Q. What gauge is this shotgun? 3 A. Twelve-gauge, I believe. It doesn't say here, 4 but I believe it was a 12-gauge. 5 Q. And what is a 12-gauge? 6 A. It's probably the most common gauge used by an 7 adult when they hunt. 8 Q. The purpose of this weapon is primarily hunting? 9 A. Home protection, hunting. 10 Q. How many rounds or bullets does this particular 11 weapon hold, sir? 12 A. I believe this particular one will hold six. 13 Q. Let me show you next a document that's been 14 marked as Defendant's Exhibit 322 and ask you if you can 15 identify this document, sir. 16 A. This is a Form 4473 that is used by dealers when 17 somebody wants to purchase a firearm. It's a questionnaire 18 used. 19 Q. And what is the date of this one, sir? 20 A. The 10th of November, 1988. 21 Q. And do you see your writing or your signature on 22 this document, sir? 23 A. Yes, sir; I do. 24 Q. And where do you see it? 25 A. My signature's at the bottom. My writing is on 52 1 the bottom section. 2 Q. All right, sir. 3 Your Honor, we move the admission of this 4 Defendant's Exhibit 322 and ask that it be distributed to the 5 jury. 6 JUDGE POTTER: Be admitted. 7 SHERIFF CECIL: (Hands documents to jurors). 8 Q. Mr. Hatfield, in connection with this document, 9 some of this is in your handwriting? 10 A. Yes, sir. 11 Q. And is that the section under Section B? 12 A. Yes, sir. 13 Q. And the handwriting in Section A, whose is that? 14 A. Mr. Wesbecker's. 15 Q. Did he fill this out? 16 A. The complete top half, yes, sir, the Section A. 17 Q. Take a look at question or Line No. 1. 18 A. Yes, sir. 19 Q. Where it says transferee's name? 20 A. Yes, sir. 21 Q. What's written in there? 22 A. Wesbecker T. Wesbecker. 23 Q. Is that his handwriting? 24 A. Yes, sir. 25 Q. And then is that his signature below that on 53 1 transferee's/buyer's signature where he wrote Joseph T. 2 Wesbecker? 3 A. Yes, sir. 4 Q. Did you notice that at the time of this 5 transaction, sir? 6 A. No, sir; I didn't. 7 Q. Did you wait on him on this occasion, sir? 8 A. Yes, sir; I did. 9 Q. I realize now it's been almost five years -- six 10 years to the day. Do you recall anything about him at all, 11 sir? 12 A. No, sir; not at all. 13 Q. Don't recall what he looked like or how he 14 behaved or acted on that date, sir? 15 A. I can assure you, sir, if he acted strange in 16 any manner he would not have received a gun from me. 17 Q. Do you recall anything at all about the way he 18 acted or the way he looked? 19 A. No, sir. 20 Q. When you say if he had acted strange in any way, 21 would that include using the wrong name? 22 A. I suppose that could have been it, if I picked 23 up on that, but I didn't. I don't think -- a lot of people 24 will, I think, get their first name and last name mixed up on 25 forms sometimes. I do it. 54 1 Q. On this occasion, sir, had you ever had Mr. 2 Wesbecker as a customer before? 3 A. He came in previous evidently on the 5th, as 4 this other document shows, to order this gun. And this was 5 the second time he was in to come pick it up. 6 Q. He ordered it on the 5th and picked it up on the 7 10th? 8 A. Yes. Yes, sir. Yes, sir. 9 Q. Had he ever been in on any other occasions 10 before that? 11 A. Not to my knowledge. 12 Q. He wasn't a regular customer? 13 A. No, sir. 14 Q. Do you recall anything about why he selected 15 this particular item to special order? 16 A. I don't recall the transaction at all, sir. 17 Q. All right, sir. Did he come in after November 18 the 10th, 1988, to your shop, sir? 19 A. Not to my knowledge, sir. 20 Q. Do you recall how he paid for the bulk or the 21 remainder of the purchase price of this particular firearm, 22 sir? 23 A. I don't recall the transaction, whether he paid 24 in cash or check. I don't recall. This is not showing the 25 balance being paid off on these documents here. It should 55 1 show if it was a check on the sales receipt itself, it would 2 be marked on there as a check. 3 Q. Okay. Take a look at this. Maybe it shows and 4 maybe it doesn't. Does that help us out at all with that 5 question? 6 A. Yes, sir; it does. It shows up here at the top 7 line underneath J. T. Wesbecker that he paid in cash. 8 Q. All right, sir. That's been marked as 9 Defendant's Exhibit 320; correct, sir? 10 A. Yes, sir. 11 Q. And this is a sales slip? 12 A. Yes, sir. 13 Q. And where on this document does it show that it 14 was paid in cash? 15 A. Just under his name it says -- there are some 16 boxes, it says, "Sold by, cash, COD, charge, on account," and 17 the check is made in cash. 18 Q. All right, sir. 19 Your Honor, we move the admission of this and 20 ask that it be distributed as Defendant's Exhibit 320. 21 JUDGE POTTER: Be admitted. 22 SHERIFF CECIL: (Hands document to jurors). 23 Q. Mr. Hatfield, did Mr. Wesbecker purchase 24 anything else on that date? 25 A. As I recall, he purchased a gun lock, also. 56 1 Q. What is a gun lock? 2 A. It's a trigger-lock mechanism that will 3 mechanically lock the trigger from being pulled. You cannot 4 -- you can't fire the gun with the trigger lock installed. 5 Q. Was it a gun lock for the Winchester Defender 6 shotgun? 7 A. It fits many different types of weapons. 8 Q. Mr. Hatfield, did he purchase anything else on 9 that date? 10 A. Not that I know of, no. 11 Q. Any ammunition? 12 A. No, sir. 13 Q. That's all I have, sir. 14 JUDGE POTTER: Mr. Smith. 15 16 EXAMINATION ___________ 17 18 BY_MR._SMITH: __ ___ ______ 19 Q. Mr. Hatfield, would you turn to Exhibit 322 with 20 me. We have seen this form -- ATF Form 4473 earlier this 21 afternoon in connection with the purchase of a pistol. Do I 22 take it that it's required that an ATF Form 4473 be filled out 23 by a seller of a weapon, be it either pistol or a rifle, sir? 24 A. If you're a dealer, yes, sir, you're required. 25 Q. Question E there -- D there asks, "Are you an 57 1 unlawful user of or addicted to marijuana or antidepressant 2 stimulant or narcotic drug." Is that correct, sir? 3 A. That's what it says; yes, sir. 4 Q. Do you assume the reason for that is, is that 5 it's prohibited that individuals who are under the influence 6 of stimulants have access to firearms in this country, sir? 7 MR. STOPHER: Objection, Your Honor. It asks 8 for an assumption and it assumes under the influence, which is 9 not the question. 10 JUDGE POTTER: Well, objection sustained. 11 Q. Turn with me then to the second page ATF Form 12 4473. Have you got it there, Mr. Hatfield? 13 A. Yes, sir. Yes, sir; I do. 14 Q. Look with me on the left-hand column there where 15 it says, "Important notices to transferor/seller and 16 transferee/buyer." Do you see that? 17 A. Yes, sir. 18 Q. Look down there at Section Three. Do you see 19 that down at the middle of the page on the left-hand side? 20 A. Yes, sir. 21 Q. It says, "The transferee/buyer of the firearm 22 should be familiar with the provisions in law. Generally, 23 18 U.S.C. Chapter 44 prohibits the shipment, transportation or 24 receipt in interstate commerce of a firearm by one who is 25 under indictment or information for or who has been convicted 58 1 of a crime punishable by imprisonment for a term exceeding one 2 year, by one who is a fugitive from justice, by one who is an 3 unlawful user of or addicted to marijuana or antidepressant, 4 stimulant or narcotic drug or by one who has been adjudicated 5 mentally defective or who has been committed to a mental 6 institution." Is that right, sir? 7 A. That's what it says. 8 Q. So it's prohibited by law, specifically 9 18 U.S.C. Chapter 44, to sell a firearm to an individual who 10 is an unlawful user of or addicted to a stimulant; is that 11 correct, sir? 12 A. My understanding of this, sir, is that it is 13 unlawful for an individual that would fall under this 14 category, it is unlawful for them to purchase a firearm; yes, 15 sir. 16 Q. All right. Thank you, Mr. Hatfield. Appreciate 17 it. 18 JUDGE POTTER: Thank you very much, sir. You 19 may step down. You're excused. 20 You got two more, Mr. Stopher? 21 MR. STOPHER: Yes, sir. Jack Tilford. 22 JUDGE POTTER: There are going to be two more 23 witnesses about like this today. So we'll go ahead and take 24 the recess at this time. 25 JUROR HIGGS: Your Honor, while they go out can 59 1 I come up and see you and Counsel just for a minute? 2 JUDGE POTTER: Yes, sir. 3 Ladies and gentlemen, do not permit anybody to 4 speak to or communicate with you on anything connected with 5 this trial. Do not discuss it among yourselves and do not 6 form or express opinions about it. We'll take a 15-minute 7 recess. 8 (RECESS; BENCH DISCUSSION) 9 JUROR HIGGS: When we started the trial when 10 you-all were giving us the names of the witnesses, either I 11 missed it or you-all didn't say it, but I know Jack Tilford 12 personally. 13 JUDGE POTTER: Okay. Thank you very much, sir. 14 (BENCH DISCUSSION CONCLUDED) 15 SHERIFF CECIL: The jury is now entering. All 16 jurors present. Court is back in session. 17 JUDGE POTTER: Please be seated. Mr. Stopher, 18 do you want to call your next witness. 19 MR. STOPHER: Jack Tilford, Your Honor. 20 MR. SMITH: May we approach a minute, Your 21 Honor? 22 (BENCH DISCUSSION) 23 MR. SMITH: There are several references in this 24 deposition to purchases of weapons at or near the time of the 25 Stockton, California, massacre. We object to any reference to 60 1 the proximity of these sales in connection with the Stockton, 2 California, massacre. There's no evidence tying the two 3 together. 4 JUDGE POTTER: I don't understand what you're 5 saying, Mr. Smith. You mean that the questions... 6 MR. SMITH: The questions were, now, this is -- 7 he had established the sale of the gun and he would say now, 8 this was one day after the Stockton, California, shooting, you 9 know, where 18 children were massacred in a school yard. 10 There's no evidence at all, there's no discussion between the 11 two about this or anything of this nature, and we think it's 12 inflammatory and prejudicial to interject this with this 13 Witness. 14 JUDGE POTTER: Mr. Stopher? 15 MR. STOPHER: Judge, it's not inappropriate. 16 Mr. Tilford testified that immediately after the Stockton 17 shooting, the very next day that Mr. Wesbecker came in, his 18 recollection is the next day after it was published that Mr. 19 Wesbecker came in and requested the AK-47 and Mr. Tilford 20 recalls that. The second thing is, Your Honor, that it is 21 relevant -- 22 JUDGE POTTER: Because you've got the magazine? 23 MR. STOPHER: Yes, sir. 24 JUDGE POTTER: Okay. Objection is overruled. 25 (BENCH DISCUSSION CONCLUDED) 61 1 JACK TILFORD, after first being duly sworn, was 2 examined and testified as follows: 3 4 JUDGE POTTER: Would you walk around, have a 5 seat in the witness box there. Say your first and last names 6 for the jury after you get seated and then spell them. 7 MR. TILFORD: My name is Jack Tilford. 8 JUDGE POTTER: T-I-L-F-O-R-D? 9 MR. TILFORD: Yes. 10 JUDGE POTTER: And answer Mr. Stopher's 11 questions. 12 13 EXAMINATION ___________ 14 15 BY_MR._STOPHER: __ ___ _______ 16 Q. Mr. Tilford, where do you live, sir? 17 A. Here in Louisville, Kentucky. 18 Q. And how old are you, sir? 19 A. I'm 36 years old. 20 Q. And by whom are you employed? 21 A. I'm self-employed. 22 Q. And what's the nature of that self-employment? 23 A. I'm a federal firearms dealer. 24 Q. Do you have a business here in Louisville, sir? 25 A. Yes, I do. 62 1 Q. And what is the name of that? 2 A. Tilford's Gun Sales. 3 Q. And, Mr. Tilford, where is it located? 4 A. 6708 Shepherdsville Road. 5 Q. And is that in Jefferson County? 6 A. Yes, it is. 7 Q. Mr. Tilford, approximately how long have you 8 been in business as Tilford Gun Sales? 9 A. Approximately 15 years; the last 6 have been 10 full time. Before that, it was more or less hobbied around 11 with, maybe make a few gun shows. 12 Q. You've been at this address at 6708 13 Shepherdsville Road for about how long, sir? 14 A. Just a little over six years. 15 Q. Mr. Tilford, were you ever employed at Standard 16 Gravure? 17 A. Yes, I was. 18 Q. And approximately when were you employed there? 19 A. Let's see. I worked for The Courier-Journal I 20 think from '82 to -- through '84, and I may have started at 21 Standard Gravure in '85 and stayed through '88. Those are 22 rough estimations, but probably pretty close. 23 Q. You were at Standard Gravure from about '84 or 24 '85 until about '88? 25 A. Yeah. Approximately three years there, also. 63 1 Q. Okay. And is that -- in '88, is that about when 2 you opened your gun store full time? 3 A. Right. It was August of '88, I believe. 4 Q. Okay. Mr. Tilford, did you know Joe Wesbecker 5 at Standard Gravure while you worked there? 6 A. No, I did not. 7 Q. Mr. Tilford, let me go to your work as owner and 8 operator of Tilford Gun Sales, sir. First of all, sir, what 9 kinds of firearms do you sell? 10 A. Oh, we sell revolvers, rifles, shotguns. We 11 basically cater to hunters, collectors and target shooters. 12 Q. And I think you mentioned just a moment ago, 13 sir, that you are a federally licensed dealer? 14 A. That's correct. 15 Q. About how long have you had that license, sir? 16 A. Approximately 15 years. 17 Q. Now, sir, let me ask you if you recall any 18 transactions at your shop involving Joseph T. Wesbecker. 19 A. Yes. I believe in January of '89 he made some 20 purchases, February of '89 and May of '89. 21 Q. All right, sir. Let me deal with these one at a 22 time and let me show you some documents to assist you in this 23 matter. 24 Let me show you a copy, sir, of a document 25 that's been marked as Defendant's Exhibit 323. Can you 64 1 identify this for us, please, sir? 2 A. Yes. This is the first contact I ever had with 3 Joseph Wesbecker. He came in on this date, January 19th of 4 '89, and purchased an AK-47 rifle. 5 Q. And does this document relate to that 6 transaction, sir? 7 A. Yes, it does. 8 MR. STOPHER: Your Honor, we move the admission 9 of Defendant's Exhibit 323 and ask that it be published to the 10 jury. 11 JUDGE POTTER: Be admitted. 12 SHERIFF CECIL: (Hands document to jurors). 13 Q. Prior to this occasion, had you known or had any 14 dealings with Joe Wesbecker? 15 A. No. 16 Q. Mr. Tilford, in looking at this document, do you 17 recall anything about this transaction and about him on the 18 occasion of this sale? 19 A. No. It's been so long ago, I can vaguely 20 remember him buying it, but I do remember him buying it. 21 Q. All right. What do you recall about when he 22 bought it, sir? 23 A. Well, it was on this date, January the 19th of 24 '89. 25 Q. Did he call in advance about the firearm? 65 1 A. Yes, I believe he did. At the time, I kept one 2 around every now and then because there are a lot of farmers 3 in rural areas that use these to clear coyotes out on their 4 farms and stuff. And the best I remember, and it's been so 5 long ago, I believe he did call and I told him I had one and 6 the price, and he came over to look at it, liked what he saw 7 and purchased it on this day. 8 Q. Did you have this particular AK-47 in stock? 9 A. Yes, I did. 10 Q. Did you stock them at that time? 11 A. One every now and then. 12 Q. Was there ever a time that you quit stocking 13 them? 14 A. Yes. I quit stocking the AK-47 -- well, 15 basically this was the last one we ordered for the shelf. 16 MR. SMITH: Your Honor, we'd object to why he 17 quit stocking them as being immaterial. 18 JUDGE POTTER: Okay. Let me see you-all up 19 here. 20 (BENCH DISCUSSION) 21 MR. STOPHER: Your Honor, the reason he quit 22 stocking them is for two reasons. Number One, the Stockton, 23 California shootings which involved the AK-47, and the second 24 reason is because of what Joe Wesbecker did. I'm not 25 particularly interested in his rationalization as to why he 66 1 stopped, but I am interested in the timing as to when he 2 stopped, and that's the reason for the question and I think it 3 is material and relevant. 4 JUDGE POTTER: So he stocked them up until this 5 thing happened? 6 MR. STOPHER: Right, sir. 7 JUDGE POTTER: I'm going to sustain Mr. Smith's 8 objection to him saying why he stopped. 9 (BENCH DISCUSSION CONCLUDED) 10 Q. Mr. Tilford, was this the last AK-47 that you 11 stocked and sold out of your shop, sir? 12 A. You know, thinking back, if I remember right, he 13 came in and traded this gun in on another AK-47 that I ordered 14 for him. It was sometime -- sometime that year I quit 15 stocking them, I forget the exact date. But the more I think 16 about it, I think it was the latter part of the year we quit 17 stocking those in '89. 18 Q. Mr. Tilford, was there any particular interest 19 in the AK-47 in January of 1989? 20 MR. SMITH: Same objection, Your Honor. 21 Immaterial -- 22 JUDGE POTTER: Overruled. 23 MR. SMITH: -- what any particular interest in 24 this gun was. 25 JUDGE POTTER: Overruled. If you know, sir. 67 1 MR. TILFORD: I'm sorry? 2 JUDGE POTTER: If you know the answer, if you 3 have an answer, if you understand the question. 4 A. There wasn't that much interest in this weapon 5 until after the Stockton incident in California where there 6 were shootings in California. 7 Q. And do you know or recall when that Stockton, 8 California, shooting was, sir? 9 A. No. I tell you, I think it was somewhere in 10 January of '89. I don't know the exact date. 11 Q. Mr. Tilford, with regard to this transaction on 12 January 19, 1989, with regard to this Form 4473, sir -- 13 A. Uh-huh. 14 Q. -- under Section B, would you tell us what kind 15 of firearm is described there, sir? 16 A. It's a rifle, of course, aKS-47. It's a 17 762-by-39 caliber manufactured by Norinco. This is a 18 semiautomatic firearm. 19 Q. And it says AKS-47; correct, sir? 20 A. Uh-huh. Right. 21 Q. What does that mean? Can you tell us what the 22 characteristics of that are by comparison to some other AK-47? 23 A. I'm pretty sure the S there on the AKS is a 24 denotion (sic) for like a sport-tip type weapon they ship here 25 into The States. It's semiautomatic and it's really for 68 1 public resale rather than something for military or police. 2 Q. It says the manufacturer is Norinco? 3 A. Correct. 4 Q. Does that tell you anything more about this 5 particular AK-47? 6 A. Just that it was manufactured in China by 7 Norinco Corporation. 8 Q. Do you recall, Mr. Tilford, the price of that 9 weapon? 10 A. At that time I think it was somewhere around two 11 ninety-five. 12 Q. And do you recall how Mr. Wesbecker paid for 13 that weapon, sir? 14 A. I've got the receipt here. 15 Q. Do you have the receipt? 16 A. I brought it with me. He paid cash for that 17 weapon. 18 Q. He paid cash? 19 A. Yes. 20 Q. And what does the receipt show precisely as to 21 the amount, sir? 22 A. Let's see. He bought the rifle and two boxes of 23 ammunition, tax and all came to $315.53. 24 Q. Two boxes of ammunition, sir? 25 A. Yes. 69 1 Q. For this particular AK-47? 2 A. Yes. It would fit this AK-47. 3 Q. What type of ammunition fits this AK-47? 4 A. 762-by-39 millimeter. 5 Q. And when you say two cases, how many rounds or 6 bullets would that be? 7 A. There's 20 in each box; they sold for $2.75 a 8 box at that time, so a total of 40 rounds cost him $5.50. 9 Q. All right, sir. And that was all on January the 10 19th, 1989? 11 A. Correct. 12 Q. Now, sir, let me show you a couple of documents 13 that I've stapled together and ask you if you can identify 14 these. They've been marked as Defendant's Exhibit 324, sir. 15 JUDGE POTTER: Mr. Tilford, see the little brown 16 piece of sponge there? That's a microphone. And if you pull 17 it out towards you so you can talk into and keep the papers 18 off of it, we'll hear you better. 19 MR. TILFORD: Okay. 20 JUDGE POTTER: Okay. Thank you, sir. 21 Q. I've actually got, I think, sir, what, three 22 pages here together? 23 A. Right. 24 Q. Can you recognize and identify these generally 25 for us, please, sir? 70 1 A. What's marked Defendant's Exhibit 324 -- 2 Q. Yes, sir. 3 A. -- is his purchase of two Mac-11 semiautomatic 4 nine-millimeter pistols. He ordered these on February the 1st 5 and picked them up on February the 10th of 1989. 6 MR. STOPHER: Your Honor, we move the admission 7 and request the distribution of Defendant's Exhibit 324. 8 JUDGE POTTER: Be admitted. 9 SHERIFF CECIL: (Hands document to jurors). 10 Q. Mr. Tilford, what is a Mac-11? 11 A. It's a semiautomatic nine-millimeter pistol. 12 Q. Let me show you a photograph and ask you if you 13 can identify this for us, please, sir. 14 A. Yes. That's a Mac-11. 15 Q. Does that appear to be like or similar to the 16 Mac-11s that are listed on this sales receipt in the 4473 17 forms? 18 A. Yes, they are. 19 Q. Mr. Tilford, let me ask you to explain a bit 20 about this weapon for us, please, sir. First of all, can you 21 tell us something about the ammunition for this firearm and 22 where it's held and how many rounds it holds? 23 A. Okay. That shoots a nine-millimeter ACP round. 24 Within the handle there is a clip. That looks like a 30-round 25 clip. They make these with 30-round clips and they have clips 71 1 as small as 20- and 12-round, also. 2 Q. Now, can you point on this photograph, sir, and 3 show us where the clip is? 4 A. This would be your clip. It's also referred to 5 as a magazine. 6 Q. And you're pointing to a dark black area below 7 the gray gun metal? 8 A. Right. Yeah, this is a clip. It inserts into 9 the bottom of the handle, goes up through this handle and it 10 levels off right here at this chamber. And as the gun fires, 11 bullets come up within the clip here and go into the chamber 12 and they're ejected, and another one goes up and goes into the 13 chamber; when it's fired, it's ejected, also. 14 Q. How many rounds or bullets are in that clip or 15 can be in that clip? 16 A. If that clip is stuck all the way in that 17 picture you're showing me, that's probably a 30-round clip. 18 Q. What size projectile or bullet does this shoot, 19 sir? 20 A. It's a nine-millimeter ACB. The bullet is 21 actually .38 caliber in size. 22 Q. Is there any -- will this weapon fire the same 23 type or kind of ammunition as the nine-millimeter Sig Sauer? 24 A. Yes, it will. 25 Q. In other words, the same bullets for this gun 72 1 will work in this gun? 2 A. Correct. 3 Q. Now, if I understand correctly, on February the 4 10th, is it? 5 A. February the 10th, yes; he picked up his two 6 Mac-11s. 7 Q. Mr. Wesbecker picked up two of these Mac-11s; 8 correct? 9 A. Right. 10 Q. Does the record indicate, sir, how many 11 magazines or clips he bought on that date? 12 A. No. This sales receipt shows where he bought 13 two Mac-11s and did not buy any other accessories or 14 ammunition or anything on this ticket. The gun probably come 15 with one 30-round clip at that time, possibly even two. 16 Q. On this date, sir, on February 10, 1989, how did 17 he pay for those two guns? 18 A. See, on February the 1st when he initially 19 ordered them, he left a $100 cash deposit. On this receipt it 20 doesn't say anything except paid in full. 21 Q. Take a look up at the top line where it says 22 "sold by" and then under the caption there where it says 23 "cash," do you see a check mark? 24 A. Uh-huh. Yeah. I actually check that when I 25 write up the initial order ticket. 73 1 Q. Does that tell us whether he paid by cash or 2 some other means? 3 A. Well, he did the first day. The second day 4 evidently I didn't write down how he paid the balance, but it 5 was probably paid in cash. Most receipts I've reviewed or all 6 the receipts I've reviewed, he's paid for cash for everything 7 he purchased. 8 Q. Did you wait on him yourself on this occasion in 9 February of 1989, sir? 10 A. Yes, I did. 11 Q. Did you have these Mac-11s in stock? 12 A. No. At that time I didn't stock Mac-11s, and I 13 guess, you know, he had bought this first AK-47 from us, 14 called me, I think it was -- yeah, February the 1st and asked 15 me if I would order him some and what they would cost. I give 16 him the price, $199.95. He says, "Well, they're $259.95 down 17 the road; at that price I'll take two. So I ordered him two 18 which he picked up, as it shows here on the invoice, on 19 February the 10th of '89. 20 Q. Mr. Tilford, was there another form that was 21 required if someone bought more than one gun or handgun at a 22 time? 23 A. Yes. If you purchased two pistols or revolvers 24 within a five-day period, you have to submit what's called a 25 multiple-sales form to the Department of Firearms, Tobacco and 74 1 Alcohol. 2 Q. And did you do that on this occasion, sir? 3 A. Yes, I did. And I also have a copy of that here 4 with my file, if you'd like to see it. 5 Q. Yes, sir. 6 Your Honor, I neglected to make copies of this 7 document and I'd like permission to file it as an exhibit and 8 to copy it and distribute it either later this afternoon or 9 tomorrow morning, if that's acceptable. 10 Is this form different than the 4473, sir? 11 A. Oh, yes. That's a multiple-sales report. 12 Q. And what is done with a multiple-sales report? 13 A. Once a customer purchases two handguns within a 14 five-day period, that is filled out and mailed to Alcohol, 15 Tobacco and Firearms. 16 Q. This is mailed to ATF? 17 A. Correct. 18 Q. Whereas -- are the 4473s mailed to ATF? 19 A. No. They're kept on file in the store. 20 MR. STOPHER: All right. Your Honor, we'd like 21 to move the admission of Defendant's Exhibit 390 with the 22 request that we copy it and distribute the copies later. 23 JUDGE POTTER: Okay. Be admitted. 24 Q. Mr. Tilford, let me next show you a document 25 that has been marked as Defendant's Exhibit 325. Do you 75 1 recognize that document, Mr. Tilford? 2 A. Yes, I do. 3 Q. Would you tell us what it is? 4 A. This is where he called me I believe sometime in 5 late April, said that he would like to trade his Norinco AKS 6 on a Polytech Legend. Polytech Legend has a milled-steel 7 receiver, and he thought it would be more durable and wanted 8 to work a trade with me on that. 9 MR. STOPHER: Your Honor, we move the admission 10 of Defendant's Exhibit 325 and ask that it be published to the 11 jury. 12 JUDGE POTTER: Be admitted. 13 SHERIFF CECIL: (Hands document to jurors). 14 Q. The first document in this exhibit is 15 entitled -- it says Tilford Gun Sales, and is this a receipt 16 or a sales invoice type of document, sir? 17 A. Yes. This is a receipt we give them when they 18 buy a gun. 19 Q. And it shows, if I'm reading this correctly -- 20 well, you interpret it for us, please, sir, as to what 21 transaction this relates to. 22 A. Are we talking about Page 1 here? 23 Q. Yes, sir. May 1, 1989. 24 A. Okay. Yeah, this is in May of -- May the 1st of 25 1989, he brought his gun in and traded it for a Polytech 76 1 AK-47S Legend that I ordered for him, and he paid a cash 2 difference of $250 plus tax for this weapon, a total of 3 $262.50. 4 Q. And how did he pay for that, sir? 5 A. It has wrote here on the receipt, "paid cash." 6 Q. Let me show you a photograph, sir, and ask you 7 if you can tell us what this is, sir. 8 A. That's an AK-47, Model S. 9 Q. Manufactured by whom? 10 A. Without just being able to see the side plate 11 and what type of stamp it has on it, I couldn't tell you. It 12 could be a Norinco or it could be a Polytech, either one. 13 It's hard to say without being able to see the other side of 14 the gun. It would be stamped on the other side Norinco or 15 Polytech. They're that close together; you can't hardly tell 16 them apart. 17 Q. Okay. Is there anything different about this 18 particular AK-47 and the one that he traded in? 19 A. That looks more like the one he traded in 20 because it has the lighter-colored stocks. And now that I 21 think back, all the Legends had a reddish-colored stock and 22 they had a milled-steel receiver, although that could be a 23 Polytech, too. 24 Q. It's sometimes difficult by looking at it, as in 25 this photograph, to tell the difference between the two? 77 1 A. Right. But now on that Polytech Legend, all 2 Legends have a reddish-colored stock and they kind of stand 3 out. 4 Q. Let me ask you some questions about this 5 particular firearm, sir. First of all, does it have a pistol 6 grip? 7 A. Yes, it does. 8 Q. Is that characteristic of all AK-47s or of 9 certain models? 10 A. Well, yeah. Nowadays, they make this AK-47 with 11 what's called a thumb-hole stock. It's got a butt stock on 12 it. Instead of that pistol grip, it's just a block of wood 13 there, kind of twisted with kind of a hole there in the center 14 to put your finger in when you fire. 15 Q. But back in 1989, sir? 16 A. Yes. Back in 1989, all AK-47s looked just like 17 that. 18 Q. With regard to the magazine or the clip on this 19 particular firearm, sir, how many rounds or bullets does it 20 hold? 21 A. That looks like a 30-round magazine. 22 Q. And what about the velocity or the speed of the 23 projectile on this weapon, sir? 24 A. That caliber, a 762 by 39, I think that weapon 25 fires at approximately 2200 feet a second. 78 1 Q. How does that relate to something like the 2 Mac-11? 3 A. The Mac-11 fires a nine-millimeter ACP shell. 4 Usually standard nine-millimeter loads fire at about 1150 feet 5 per second. 6 Q. So the projectile coming out of this weapon is 7 approximately twice as fast as the bullet coming out of this 8 weapon? 9 A. Correct. Right. 10 Q. Is the same also true basically with the Sig 11 Sauer? 12 A. Right. It also fires at 1150 feet per second, 13 standard loads. 14 Q. Mr. Tilford, let me ask you about ammunition for 15 this AK-47. What -- generally, what kinds of ammunition are 16 there, or were there back in 1989? 17 A. Back in 1989, they shipped a lot of Chinese 18 ammo. You could buy it cheap, and these guys that liked to 19 get out and target shoot could get out and target shoot for 20 about a third of the cost of what it would be to shoot the 21 American-made stuff. 22 Q. Where is the Polytech AK-47 made? 23 A. It's made in China, also. 24 Q. Mr. Tilford, let me go back with you for just a 25 moment to this document that's Defendant's Exhibit 325 -- 79 1 A. Yes. 2 Q. -- which is dated May 1, 1989. 3 A. Yes. 4 Q. On that date, Mr. Wesbecker traded back in a 5 Norinco FS AK-47; am I right, sir? 6 A. Right. 7 Q. Do you recall the condition of that firearm on 8 that date, sir? 9 A. Yeah. I was really surprised. He told me over 10 the phone back in late April when he called and wanted to work 11 the trade out with me that he had never fired the weapon and 12 it was still in the plastic bag that they come in. And 13 usually, you know, a lot of customers will tell you this even 14 though they've been out firing it. They'll tell you, oh, it's 15 never been fired. This gun come in and the plastic bag hadn't 16 even been unsealed on it. It was still in the box just like I 17 sold it to him. We were really surprised, because most of the 18 time you look at these guns that's been traded and it's been 19 fired. This particular gun, I was shocked. It had not been 20 fired, used or even looked like it had been touched. 21 Q. In other words, the AK-47 that he had purchased 22 on January 19 -- 23 A. January the 19th of '89. 24 Q. -- which is in Defendant's Exhibit 323, was 25 traded in in the box on May 1, 1989? 80 1 A. Right. 2 Q. Mr. Tilford, I noticed here that there is a 3 difference in price between the Norinco AK-47 and the Polytech 4 AK-47. 5 A. Right. 6 Q. Is there a difference in quality? 7 A. Well, like I stated before, the Polytech Legend 8 series has got a milled-steel receiver. They generally cost 9 about $250 more than, like, the type he traded in with a stamp 10 metal receiver. 11 Q. Did you have to special order the Polytech AK-47 12 for him? 13 A. Yeah. I didn't have those at the store at the 14 time, and we did order that for him. I think it was in like 15 in three or four days. He picked it up May the 1st. 16 Q. Who selected the Polytech AK-47, Mr. Wesbecker? 17 A. Yes. He called and asked for the Legend 18 specifically. 19 Q. On May 1, 1989, sir, did he purchase any 20 ammunition for that firearm, that is, the AK-47? 21 A. No. 22 Q. Do you have any information or any documents or 23 any recollection of ever selling him any ammunition for this 24 AK-47? 25 A. Yeah. It seems like he come in one separate 81 1 occasion and bought either a case or two of this stuff that 2 comes in wooden crates, and inside they're packed in sardine 3 cans that hold, oh, approximately -- they could have been 4 550-round cases or they could have been 700-round cases. And 5 there's two in each wooden crate, which could have made 6 anywhere from 1100 rounds to 1400 rounds. I remember him 7 coming and buying one case and possibly two. 8 Q. All right, sir. Now, let me get this straight. 9 The ammunition that we're talking about comes in a case; 10 right? 11 A. Right. 12 Q. What -- how many rounds are in a case? 13 A. Well, I'm not sure what he bought this time. I 14 remember him buying the ammo, but most of these crates it's 15 either 1100 rounds or 1400 rounds. 16 Q. And how did you say that the case is packed or 17 packaged, sir? 18 A. Well, within the wooden crate there's what I 19 call sardine cans; they even open like sardine cans. And 20 inside each of these cans there could be 550 rounds or if it's 21 the larger size there could be 700 rounds. And there's two of 22 these cans per wooden crate. 23 Q. So there are two cans inside the crate? 24 A. Right. 25 Q. And 500 to 750 rounds in each of those cans? 82 1 A. Right. 2 Q. How much does that case weigh, approximately, 3 sir? 4 A. I'm guessing just one of the 1100-round cases 5 would probably weigh 60 pounds easy. 6 Q. Let me first of all ask you, sir, if after the 7 shootings at Standard Gravure on September 14, 1989, you had 8 any contact with the police about the weapons that are shown 9 in those documents. 10 A. Yes. They come out and done an investigation, 11 Louisville Police did. 12 Q. And generally and briefly, sir, what type of an 13 investigation did they do with those 4473s and the sales 14 receipts that you and I have just been talking about? 15 A. I gave them copies of every receipt and every 16 federal 4473 I had on these purchases and answered whatever 17 questions they had for me. 18 Q. Did they check any serial numbers? 19 A. You know, I'm going to tell you, it's been so 20 long ago... I wish I could help you more, but I don't know. 21 Q. Okay, sir. I understand. Let me show you some 22 copies, if I may, please, of a group of photographs that I've 23 marked Defendant's Exhibit 141, 139, 11, 10, 9, 8, and 7. 24 MR. SMITH: Can we approach, Your Honor? 25 (BENCH DISCUSSION) 83 1 MR. SMITH: Again, I think he's showing him 2 eight copies of the same thing. 3 MR. STOPHER: He can identify certain things in 4 certain formats, Your Honor. 5 JUDGE POTTER: What's the objection again, Mr. 6 Smith? I mean, I suppose some of them are duplicative. 7 MR. SMITH: That they're cumulative and 8 duplicative and it's unduly prejudicial. This one, he can 9 identify all the weapons in that. This Witness didn't take 10 those photographs. This Witness -- there's no evidence that 11 this Witness was there when the photographs were taken. 12 JUDGE POTTER: That's right. But presumably a 13 policeman is going to come in sometime later and say where 14 these photographs came from. 15 MR. STOPHER: Correct. 16 JUDGE POTTER: Mr. Smith, they may be 17 duplicative, but it's small enough a duplication to where I'm 18 going to overrule the objection. 19 (BENCH DISCUSSION CONCLUDED) 20 Q. Let me hand you this package of photographs, 21 sir, and it also contains Defendants Exhibit 140, which I 22 neglected to call out. 23 MR. SMITH: There's another one, now, Your 24 Honor? 25 MR. STOPHER: No. It's just in the group. I 84 1 just failed to mention the number. 2 JUDGE POTTER: No. It was the ones he 3 mentioned. 4 Q. Mr. Tilford, in looking at these photographs, 5 can you identify the kinds of weapons that are shown in these 6 photographs? 7 A. Yes. Probably so. 8 MR. STOPHER: Your Honor, we would move the 9 admission of these Defendant's exhibits and ask that they be 10 distributed to the jury. 11 MR. SMITH: Your Honor, we'd object on the same 12 basis. Additionally, the Witness has said he can't identify 13 all the weapons in the photographs. 14 JUDGE POTTER: I'm going to sustain the 15 objection to actually introducing them at this point. 16 Q. Mr. Tilford, let me direct your attention to 17 these photographs and ask you, first of all, can you tell us 18 what kinds of weapons you can identify in these photographs? 19 A. Okay. Which number are we starting with? 20 JUDGE POTTER: Mr. Stopher, let me see you just 21 a minute, please. 22 MR. STOPHER: All right. 23 (BENCH DISCUSSION) 24 MR. SMITH: He's already introduced and shown 25 photographs of all the weapons that this guy sold him. 85 1 JUDGE POTTER: Mr. Stopher, is a policeman going 2 to come in and be able to say these are the weapons we found 3 at Standard Gravure after Mr. Wesbecker shot himself? 4 MR. STOPHER: Absolutely, sir. 5 MR. SMITH: Which ones? 6 MR. STOPHER: Every one of them. 7 MR. SMITH: Name one police officer that's going 8 to come in and say, "These are the weapons I took at the 9 scene." 10 JUDGE POTTER: Why -- aren't we just dragging 11 this thing out, folks. 12 MR. STOPHER: Yeah. Detective Cheryl Jackman 13 and Detective Don Burbrink are going to say these are the 14 ammunition that were found in Mr. Wesbecker's possession at 15 Standard Gravure and they have the weapons and had them made. 16 And the reason I want to ask this gentleman some questions 17 about them is, Your Honor, that he can identify some of the 18 packages for some of these ammunition. 19 JUDGE POTTER: I tell you what, Mr. Smith. Even 20 though technically you may be correct, with his representation 21 that some policeman is going to come in and identify this 22 stuff, I'm going to let it in. 23 (BENCH DISCUSSION CONCLUDED) 24 JUDGE POTTER: Be admitted. 25 SHERIFF CECIL: (Hands documents to jurors). 86 1 Q. Mr. Tilford, let me begin with the photograph 2 that's numbered down in the right-hand corner on the actual 3 photograph itself, and it says 698 in the lower right-hand 4 corner in the middle of a little white circle; do you see that 5 photograph, sir? 6 A. Yes, I do. 7 Q. In looking at the photograph can you identify 8 any of the firearms in that photograph for us? 9 A. Laying on the blanket -- I guess it's a blanket 10 or a towel or something there. Next to the ammo there which 11 looks like 762 by 39, that's an AK-47. 12 Q. And approximately how many magazines or clips do 13 you see there for the AK-47? 14 A. It looks like four here by the blanket on the 15 very edge, and it looks like two stacked on top of each other 16 in front of them. 17 Q. Mr. Tilford, did you sell extra magazines to Joe 18 Wesbecker? 19 A. To the best of my knowledge, no. I can't be 20 exactly sure, you know. He could have come in some day when I 21 was out to lunch or something and bought more. But each time 22 he purchased an AK-47, or at that time in '89, they came with 23 three magazines. 24 Q. And there are approximately, what, six in this 25 photograph? 87 1 A. Yes. 2 Q. If you buy extra magazines, do you have to fill 3 out a form and keep it? 4 A. No, you don't. 5 Q. Or, better stated, if you sell them? 6 A. No. 7 Q. What other firearms do you see in this 8 particular photograph, sir? 9 A. Upper left-hand corner of the blanket it looks 10 like a Mac-11. It looks like a Sig Sauer P-226. And then 11 over at the top of the blanket kind of more in the center 12 there's another Mac-11, and below that, that looks like a 13 Smith & Wesson snub-nosed revolver. 14 Q. Do you see in this photograph, sir, any 15 magazines or clips for the Mac-11? 16 A. Yes. Right in the center of the blanket kind of 17 down from the top, I see two magazines laying there by 18 themselves. Up above AK-47 magazines and by the bayonet 19 that's also two Mac-11 magazines, 30-rounders taped together. 20 And up in front of the bayonet, in front of the ammo there, 21 that looks like two more Mac-11 clips taped together. 22 Q. Did you say taped together? 23 A. Yes, sir. And up above that where the Mac-11 is 24 and the Sig Sauer P-226, above that also looks like two more 25 Mac-11 magazines taped together. 88 1 Q. Mr. Tilford, in looking at the objects outside 2 the blanket or the sheet or the white cloth in this 3 photograph, what are those objects, if you can help us out? 4 A. On your left side, bottom corner, that looks 5 like 762-by-39 ammo. On the bottom side of the blanket, 6 bottom part of the picture, that also looks like 762-by-39 7 ammo, and on the right side of the blanket, all that looks 8 like 762-by-39 ammo, with the exception of, in the upper 9 right-hand corner, below the 762-by-39 ammo, that looks like 10 some other type of ammo. It's a little unclear here. 11 Q. I agree. All right, sir. Let me direct your 12 attention to a photograph that's numbered in the lower 13 right-hand corner, 710, in the little white circle. Do you 14 have that one, sir? 15 A. It looks like 720. Let me double-check here. 16 Q. Well, it might be 72-, but I think it's 71-. 17 JUDGE POTTER: It's No. 10 on the back, Mr. 18 Smith. 19 MR. SMITH: Is that ten on the back? 20 MR. STOPHER: Ten on the back. 21 A. Okay. I have that one. 22 Q. Do you see that, one, sir? 23 A. Yes, I do. 24 Q. Can you again briefly tell us what ammunition 25 you see in this photograph? 89 1 A. I see 762 by 39, and in the plastic bag to the 2 left of the picture it looks like .38 special, and up in the 3 top center it looks like nine millimeter. 4 Q. Do you see any ammunition in this photograph, 5 sir, that's wrapped or cased in any way? 6 A. Yes. These packages here are probably a brown 7 paper, which is kind of rolled up there, that's probably also 8 762-by-39 ammo. They ship it that way. 9 Q. Where do you see that, sir? 10 A. Up above the AK-47, you'll see a bottle of 11 something or another there. Up above that bottle, you'll see 12 packages there kind of wrapped and rolled. Usually they put 13 three stripper clips of ammo on each package, and on each 14 stripper clip is 10 rounds, a total of 30 rounds in each brown 15 paper rolled. 16 Q. Is that wrapping the way it's wrapped in the 17 case and in the cans? 18 A. Yes, it is. Yes, it is. 19 Q. Is that the way the ammunition would come 20 wrapped, inside a can and then inside a case if you sold it? 21 A. Yes. If it was some of the Chinese military 22 surplus ammo, it would. 23 Q. Mr. Tilford, let me ask you about ammunition 24 again with regard to the AK-47. You mentioned a moment ago 25 something about Chinese ammunition. 90 1 A. Right. 2 Q. Did I understand correctly? Can you tell by 3 looking at these photographs if this is Chinese ammunition or 4 some other type of ammunition? 5 A. Yes. A lot of this Chinese 762 by 39, your 6 bullet will actually be the same color as the case. Most 7 other American-manufactured ammo is not this way. There's 8 also something else distinctive about Chinese 762 ammo; a lot 9 of it has the little red ring that you see around these 10 bullets in between the bullet and the brass case itself. 11 Q. So what does that mean to you? 12 A. That's definitely Chinese ammo. 13 Q. What is it about Chinese ammo that may be 14 different or distinctive from other ammunition for this kind 15 of a firearm? 16 A. At that point in time it was cheap. 17 Q. Anything else? 18 A. No. 19 Q. Have you ever heard of the phrase "corrosive"? 20 A. Oh, yes. Now, a lot of this Chinese ammo that 21 come packaged in these brown roll-them-up things, paper, I 22 mean, the majority of that was corrosive ammo. They come 23 packaged in boxes of 20 rounds; most of that was Chinese 24 commercial stuff that was not corrosive. 25 Q. If the ammunition is corrosive, Chinese 91 1 ammunition and corrosive, what does that mean to the user of 2 an AK-47 firearm? 3 A. When you get home from target shooting you'd 4 better clean it or it will rust shut. 5 Q. Do you have to clean it every time? 6 A. Yes, if you shoot corrosive ammo. 7 Q. Mr. Tilford, in connection with the ammunition 8 shown in these photographs, can you tell us what type of 9 ammunition it is? I know you've told us it's Chinese. Are 10 there other types of ammunition with regard to this particular 11 weapon and, if so, what type is this? 12 A. Are you referring to the 762 by 39? 13 Q. I am, sir. 14 A. That is a full metal jacket ammunition from the 15 looks here in the picture. They also manufactured some stuff 16 called hollow point or soft point. 17 Q. What is a full metal jacket ammunition? 18 A. It's just generally lead core, it's got a copper 19 or metal jacket, whatever you want to call it. And it doesn't 20 have no hollow point or no soft point, to give it the ability 21 to spread once it hits the target. 22 Q. What is this kind of ammunition used for, sir? 23 A. Basically, your military will all use a full 24 metal jacket, according to the Geneva convention. Reason 25 being it won't cause as much damage as a soft point or a 92 1 hollow point will. 2 Q. This is military ammunition or type ammunition? 3 A. Well, yeah, the military uses it. They sent it 4 over here to The States. A lot of guys used it for target 5 shooting. 6 Q. Is it used for hunting? 7 A. No. Laws here in Kentucky and probably 8 elsewhere in the United States, you would have to use a soft 9 point or hollow point. 10 Q. So this kind of ammunition is not permitted for 11 hunting? 12 A. Exactly. 13 Q. Mr. Tilford, you mentioned that in -- that after 14 Mr. Wesbecker purchased the AK-47 on May 1, 1989, that you 15 sold him either one or two cases of ammunition. 16 A. Correct. 17 Q. Did you ever have any -- do you have any 18 recollection, sir, as to what month or what time of year that 19 you sold him those one or two cases of ammunition? 20 A. No. I wished I had a date for you. And I've 21 looked through files at the store on receipts showing they 22 come in and buy ammunition. We just write cash at the top of 23 the receipt if they're paying in cash. If they're paying by 24 check or VISA card or something like that, at that point we 25 write their name. I couldn't find a receipt for when he did 93 1 buy the ammo, but the best I assume, it was sometime from the 2 time he bought his first rifle up until the time he traded it 3 on this second rifle. 4 Q. Your best recollection is what, sir? 5 A. Between January of '89, and May of '89. I wish 6 I could be more specific but I just don't know. 7 Q. You sold him the case or two cases of ammunition 8 between January of '89 and May of '89? 9 A. One case and possibly two. 10 Q. Sometime in that time frame? 11 A. Exactly. 12 Q. Mr. Tilford, with regard to Mr. Wesbecker, you 13 dealt with him on at least three occasions that are documented 14 here: January 19, 1989; February 10, 1989; and May 1, 1989. 15 Am I correct, sir? 16 A. Right. 17 Q. What do you recall about him, sir? 18 A. Well, nothing really specifically. You know, he 19 come in and got what he wanted and paid for it and left. 20 Q. Was he talkative? 21 A. Not that I ever remember, no. 22 Q. Was there anything out of the ordinary about his 23 appearance or the way he handled himself? 24 A. Not at those times, no. 25 Q. Did he ever give you any information about 94 1 himself or what he was going to do with these firearms or the 2 ammunition? 3 A. I believe on one occasion I asked him -- I 4 believe it was when he traded back in on this AK-47. I said, 5 "You like this Legend a lot better or do you hunt or what," 6 and I think at that point he told me he liked to target shoot. 7 Q. Did he ever give you any other information about 8 himself or his interest in these particular firearms? 9 A. No, not really. 10 Q. With regard to these three transactions, sir, 11 did you help him select the four different weapons that he 12 purchased? 13 A. No, I didn't. Each time he came in or called, 14 he knew specifically what he wanted. 15 Q. That's all I have, sir. Thank you. 16 MR. SMITH: May we approach, Your Honor. 17 (BENCH DISCUSSION) 18 MR. SMITH: I want to go on record as renewing 19 my objection. You know, Counsel said he was going to 20 discuss -- he needed to get all of these exhibits in, these 21 photographs in. He talked about two of them in his testimony. 22 You know, Counsel represented he needed to get all of these 23 in, they depicted different things. He referred to two of 24 them in his examination. That demonstrates Counsel's candor 25 with the Court and the real reason that these pictures are 95 1 being admitted at this time. 2 MR. STOPHER: What I did was give him the 3 photographs and let him select the ones that showed things 4 that he could identify. If you want me to go over each 5 photograph with him, I will. 6 JUDGE POTTER: Okay. They're in. They're in. 7 (BENCH DISCUSSION CONCLUDED) 8 9 EXAMINATION ___________ 10 11 BY_MR._SMITH: __ ___ _____ 12 Q. Mr. Tilford, my name is Paul Smith, and I 13 represent the Plaintiffs in this case. I just have a few 14 brief questions. 15 A. Okay. 16 Q. As I understand it, when Mr. Wesbecker on all 17 those occasions that he spoke with you, he appeared calm? 18 A. Yes. 19 Q. He appeared under control? 20 A. Yes. 21 Q. He did not appear to be violent? 22 A. No, not at all. 23 Q. He did not issue any threats at that time? 24 A. Oh, no not at all. 25 Q. He wasn't red in the face? 96 1 A. Hunh-uh. 2 Q. Didn't have a wild look about him? 3 A. No. 4 Q. Appeared to be a legitimate individual 5 purchasing legal guns for a legitimate purpose, did he not? 6 A. Yes. 7 Q. In fact, the ammo that he bought was ammo -- 8 it's a large quantity of ammo, is it not? 9 A. Yes. 10 Q. But one of the reasons that you sell it in large 11 quantities is that it's cheaper, Chinese ammunition, and it's 12 good for target shooting; is that right? 13 A. Correct. 14 Q. Now, neither one of these AK-47s that you sold 15 to Mr. Wesbecker were such that they were fully automatic? 16 A. Correct. They were semiautomatic. 17 Q. And they were totally, 100-percent legal, were 18 they not? 19 A. Exactly. 20 Q. And you had to, in order to make the gun 21 discharge, pull the trigger each time you wanted a bullet to 22 fly out the end of the gun? 23 A. Exactly. 24 Q. What would have made it illegal for sale to him 25 by you would have been had you been able on that gun to hold 97 1 that trigger down and the gun would continuously fire out, in 2 machine gun form, the bullets; right? 3 A. That would be classified as a full automatic 4 weapon, and I'm not a Class 3 dealer and have never, probably 5 never will deal in full auto firearms. 6 Q. And Mr. Wesbecker, as an ordinary citizen, 7 wouldn't have been able to buy that type of weapon, either, 8 would he? 9 A. Yes, he can. 10 Q. Without some special license? Don't you have to 11 have a special license? 12 A. Yes. You have to get a special tax stamp and 13 it's about a six-month process, but, yes, he can own a full 14 automatic weapon. 15 Q. All right. Neither one of these were full 16 automatic weapons, were they? 17 A. Right. They were semiautomatic. 18 Q. Now, do I understand that Mr. Wesbecker bought 19 the original Norinco; is that how it's pronounced, Norinco? 20 A. Yes. 21 Q. Norinco AKS in early January 1989; is that 22 right? 23 A. Right. 24 Q. And at that time it's your recollection that he 25 called you and asked you about whether or not you had that 98 1 kind of weapon in stock? 2 A. Yes. To the best of my knowledge, he called 3 prior to coming out. 4 Q. And you were carrying that weapon in stock at 5 that time? 6 A. Yes. I had a Norinco on the shelf at that time. 7 Q. When he returned it to you four months later, is 8 it your testimony that that gun had not even been taken out of 9 its plastic container? 10 A. Yes, it is. 11 Q. And that was unusual to you? 12 A. Yes. That was really strange. I was shocked 13 when I seen it. 14 Q. Didn't you pay him in trade-in more for that gun 15 than the original purchase price was, sir? 16 A. Yes. At the time he bought that gun in January 17 of '89, that gun was selling in my shop for about $295. After 18 the Stockton incident, prices rose dramatically, and at that 19 time I believe he got a $450 or $495 trade-in. They were 20 bringing in that much more money. 21 Q. Exhibit 325 says he got a $449.95 credit on 22 that? 23 A. Right. 24 Q. I guess it was still a brand-new weapon at the 25 time, wasn't it? 99 1 A. Right. 2 Q. That was because there was a movement to ban 3 these weapons, wasn't there? 4 A. Yes. It had been talked about, yes. 5 Q. And there was thought that these guns would rise 6 in value; correct? 7 A. Oh, they did. 8 Q. And they did? 9 A. Right. 10 Q. And there were individuals who were legitimately 11 collecting these guns and purchasing and then reselling them 12 for profit, also, weren't there? 13 A. Yes. There was probably people that done that. 14 Q. So the inflated cost came from the fact that 15 there was a threat that this type of gun would either no 16 longer be available or would be limited in its availability; 17 right? 18 A. Right. Everybody was unsure at that time, but, 19 yeah, even the uncertainty drove the price up. 20 Q. Now, in all candor, Mr. Tilford, these guns are 21 not just man killers, are they? 22 A. No. A lot of the people use them for target 23 shooting. You can take them deer hunting, if you like. And, 24 like I stated earlier, a lot of farmers use them on their 25 farms to clear out coyotes and stuff. 100 1 Q. So when Mr. Wesbecker came in and bought these 2 guns in January of '89, and in May of '89, you didn't have any 3 inkling whatsoever that he was going to commit an illegal act, 4 did you? 5 A. Oh, no. 6 Q. Did he appear to be that way? 7 A. No. He seemed as normal as me or you or anybody 8 else. 9 Q. Did you know that he was not taking Prozac at 10 that time? 11 A. I didn't know anything about the fellow. 12 Q. Did you know he didn't start taking Prozac until 13 a month before this shooting? 14 MR. STOPHER: Objection, Your Honor. 15 JUDGE POTTER: Sustained. 16 Q. You filled out Form 4473s on all of these 17 weapons, didn't you? 18 A. Right. 19 Q. And you're well familiar, are you not, Mr. 20 Tilford -- 21 A. I'm sorry? 22 Q. -- that if an individual is an unlawful user of 23 or addicted to stimulants that they're not allowed to buy 24 these type of guns? 25 A. That's correct. 101 1 Q. And you're not allowed to sell them? 2 A. That's right. 3 Q. And if Mr. Wesbecker had come in wild-eyed, 4 looking red, with a stare going through -- looked like he was 5 staring through you, you probably wouldn't have sold him these 6 guns? 7 A. Yes. There's times we'll have somebody come in 8 partially drunk or drunk or look a little high or something, 9 and we'll refuse to sell them the weapon at that point. 10 Q. If they looked wild or unusual in any way, you 11 don't sell to them? 12 A. That's correct. 13 Q. Because you're a responsible dealer? 14 A. That's correct. 15 Q. And, as you know, that individuals under the 16 influence of certain drugs can -- that there's a greater 17 likelihood of danger with those what otherwise would be 18 legitimate firearms? 19 A. Right. If we know whose on drugs. 20 Q. Sometimes you can't tell, though? 21 A. That's right. 22 Q. In your deposition there was some talk about -- 23 and this may help your recollection. On this May 1st purchase 24 of the new AK -- well, the Legend AK-47 -- 25 A. Uh-huh. 102 1 Q. -- that Mr. Wesbecker had told you that he was 2 looking to upgrade his AK-47 to take to the Knob Creek Gun 3 Range? 4 A. Yes. 5 Q. Does that help you now? 6 A. Yeah. 7 Q. And is the Knob Creek Gun Range a gun range 8 where people go out and discharge their weapons? 9 A. Yeah. Target shoot. 10 Q. And would this type of weapon, ammunition that 11 you sold him be appropriate for that purpose? 12 A. Yes, it would. 13 Q. And if Mr. Wesbecker had gone out after May 1st 14 and taken that Legend and shot some of this ammunition at Knob 15 Creek or at any gun range and had not cleaned it with this 16 Chinese corrosive ammunition, what would have happened? 17 A. The gun mechanism would have probably rusted 18 shut. 19 Q. And if it rusted shut, what would he have to 20 have done, Mr. Tilford? 21 A. He would have had to look for a gunsmith. 22 Q. He would have had to find a gunsmith to repair 23 that? 24 A. Correct. 25 Q. The gun wouldn't work until he got it repaired, 103 1 is that right, if it were corroded shut? 2 A. That's correct. 3 Q. So before that Legend AK-47 could be used again, 4 if he took it to target practice and legitimately fired this 5 target-type bullets, ammunition, he would have to get it 6 repaired if he didn't clean it; is that right? 7 A. Right. 8 Q. Have it taken to a gunsmith to get it repaired? 9 A. Right. 10 Q. Had to pay money to get it repaired? 11 A. Right. 12 Q. The gun wouldn't be functional, wouldn't be 13 useful for any purpose until he got it repaired, would it? 14 A. That's correct. 15 Q. I take it in connection with these photographs, 16 Mr. Tilford, that in order to really identify any of the 17 weapons pictured there, you would have to be able to see the 18 identification numbers or serial numbers on it? 19 A. To check a serial number, yes, I would. 20 Q. They appear to be the weapons you sold, but you 21 can't be sure without actually seeing the serial numbers; is 22 that right? 23 A. That's exactly right. 24 Q. Thank you for coming, Mr. Tilford. We 25 appreciate your coming. 104 1 MR. STOPHER: Nothing further, Your Honor. 2 JUDGE POTTER: Thank you very much, sir. You 3 may step down; you're excused. 4 Mr. Stopher, do you want to call your next 5 witness. 6 MR. STOPHER: Danny Jackson, Your Honor. 7 JUDGE POTTER: Sir, can I get you to step down 8 here and raise your right hand. 9 10 DANNY JACKSON, after first being duly sworn, was 11 examined and testified as follows: 12 13 JUDGE POTTER: Okay. Would you walk around, 14 have a seat in the witness box. Okay. Keep your voice up, 15 give us your name loud and clearly and then spell it for me, 16 please. 17 MR. JACKSON: Harold Daniel Jackson, commonly 18 known as Danny Jackson. 19 JUDGE POTTER: J-A-C-K-S-O-N? 20 MR. JACKSON: Yes, sir. 21 JUDGE POTTER: Okay. Answer Mr. Stopher's 22 questions. 23 24 25 105 1 EXAMINATION ___________ 2 3 BY_MR._STOPHER: __ ___ _______ 4 Q. Mr. Jackson, where do you live currently? 5 A. In Plantation, Kentucky. 6 Q. And how old are you, sir? 7 A. Fifty-five. 8 Q. And by whom are you employed? 9 A. Myself. 10 Q. And what do you do as a self-employed person? 11 A. I'm a gunsmith. 12 Q. Do you operate a place of business? 13 A. Yes, sir. 14 Q. And where is it located now, sir? 15 A. 811 East Market in Louisville. 16 Q. And what is the name of that business, sir? 17 A. Danny's Gun Repair. 18 Q. And back in 1989, sir, were you in the same 19 business? 20 A. Yes, sir; I was. 21 Q. Was it in the same location? 22 A. No, sir. It was 105 West Market. 23 Q. 105 West Market would be on Market Street 24 between First and Second? 25 A. Yes, sir. 106 1 Q. And what was the name of the business back in 2 1989, sir? 3 A. Danny's Gun Repair. 4 Q. Mr. Jackson, let me show you a document and ask 5 you if you can identify it for us, please, sir. It's been 6 marked as Defendant's Exhibit 330. 7 A. Yes, sir. I can identify that. 8 Q. All right, sir. 9 A. That's a file card of the person that brought in 10 the firearm and what the problem was. 11 Q. Okay, sir. Let me ask you, is this a document 12 from your business, sir? 13 A. Yes, sir; it is. 14 MR. STOPHER: Your Honor, we move the admission 15 of Defendant's Exhibit 330 and ask that it be distributed to 16 the jury. 17 JUDGE POTTER: Be admitted. 18 SHERIFF CECIL: (Hands document to jurors). 19 Q. Now, sir, what is the date of this document? 20 A. 9-6-89. 21 Q. And what is this document, sir? 22 A. It's a file card from my business. 23 Q. And what does it relate to? 24 A. J. T. Wesbecker brought in a firearm called an 25 AK-47S is for sporter. 107 1 Q. And what was the problem with it? 2 A. It was locked up. 3 Q. Is this your handwriting up at the top of this 4 document, sir, with the lines and then the printing written in 5 above those lines? 6 A. No, sir. That was my receptionist; she wrote up 7 the card. And the handwriting below it where it says, "Jam, 8 check, strip, clean and check out," that's my handwriting. 9 Q. All right, sir. On September 6, 1989, what 10 happened on that date, according to this card? 11 A. Mr. Wesbecker brought in a firearm that was 12 jammed up. 13 Q. Did you happen to come into contact with him on 14 that date, sir? 15 A. Best my memory runs, he brought it in, gave it 16 to my secretary, and she asked if I could fix it and I said 17 yes. And I walked out there and looked at it and told him 18 that he had fired corrosive ammunition in it and it had rusted 19 it up, and that was about all I had any contact with him on 20 the gun other than cleaning it. 21 Q. Did you discuss ammunition with him at that 22 time, sir? 23 A. Yes, sir. 24 Q. Did he make any statements to you about 25 ammunition? 108 1 A. He said he had all the ammunition that he needed 2 or wanted or something. It's been a long time. 3 Q. Let me refer you to your deposition, then, sir, 4 and see if this refreshes your recollection as to the 5 statement. Page 14, sir, this was a deposition that you gave 6 under oath on August 21, 1992. 7 A. Yes, sir. 8 Q. Page 14, Line 21: "Was there any conversation 9 between Mr. Wesbecker and Sarah Estes or with you on that 10 occasion, that you recall? 11 "Answer: I remember either Sarah or I, one, I 12 don't remember who said, 'You should get some good ammunition. 13 We can get it for you.' 14 "Question: What did he say to that? 15 "Answer: I got all the ammunition I'll ever 16 need." 17 Does that refresh your recollection, sir? 18 A. That sounds about right; yes, sir. 19 Q. Mr. Jackson, did you repair the AK-47, sir? 20 A. As such. I opened it up and cleaned the rust 21 off of it and test fired it. 22 Q. And was it then in good operating condition, 23 sir? 24 A. Yes, sir. 25 Q. On that occasion that you saw him on September 109 1 the 6th, 1989, do you remember anything about him and his 2 appearance, sir? 3 A. No, sir. He looked just like anyone else. I 4 remember that he was what I would refer to as nondescript. 5 You could see him, turn around, and wouldn't remember what he 6 looked like. He's just an average looking person. 7 Q. On September 6, 1989, sir? 8 A. Yes, sir. 9 Q. Mr. Jackson, let me show you a document that has 10 been marked by me as Defendant's Exhibit 335, sir. Do you 11 recognize that and can you tell us what it is, sir? 12 A. Yes, sir. That's the matching claim check to 13 the card that I have for -- you know, it's claim check. 14 Q. All right. 15 Your Honor, we move the admission of Defendant's 16 Exhibit 335 and ask that it be distributed. 17 JUDGE POTTER: Be admitted. 18 SHERIFF CECIL: (Hands document to jurors). 19 Q. Now, sir, in looking at this document that's 20 been marked in the lower right-hand corner Defendant's Exhibit 21 335, did you say this is a claim check, sir? 22 A. Yes, sir. 23 Q. Would you explain to us how this worked, the 24 claim check? 25 A. Well, I give this to him as identification of 110 1 what he brought in, and when I'm through, he brings this in 2 and claims his gun. 3 Q. So on September the 6th, 1989, does he get this 4 claim check? 5 A. Yes, sir. At the same time he brings the 6 firearm in. 7 Q. And then to get the firearm back, does he have 8 to present this claim check? 9 A. Yes, sir. 10 Q. And did he do that? 11 A. Yes, sir. Best of my knowledge. I don't 12 remember him picking it up. 13 Q. All right, sir. Let me show you another 14 document -- and I think this is the last one, sir -- that has 15 been marked as Defendant's Exhibit 334. Do you recognize 16 that, sir? 17 A. Yes, sir. 18 Q. Is this one of the records from your business? 19 A. Yes, sir; it is. 20 MR. STOPHER: Your Honor, we ask that this 21 document, marked Defendant's Exhibit No. 334, be admitted and 22 distributed to the jury. 23 JUDGE POTTER: Be admitted. 24 SHERIFF CECIL: (Hands document to jurors). 25 Q. What is this document, sir? 111 1 A. That's a company invoice that describes the 2 person that brought it in, the firearm that was left, what I 3 did to it, and then at the very bottom to the left of the 4 price is his signature that he makes to pick up the firearm. 5 Q. In looking at this document, what date did he 6 pick up the firearm? 7 A. 9-12-89. 8 Q. And in order to pick the firearm up, did he have 9 to present the claim check that's in Defendant's Exhibit 335? 10 A. Yes, sir; he did. 11 Q. The claim check says AK-472. 12 A. That's supposed to be an S. 13 Q. S. Serial number 09562; correct? 14 A. Yes, sir. 15 Q. And the same numbers are shown on Defendant's 16 Exhibit 334? 17 A. Yes, sir. 18 Q. Mr. Jackson, on September 12, 1989, did Mr. 19 Wesbecker pay for the repairs? 20 A. Yes, he did. 21 Q. How much was he charged? 22 A. Twenty dollars. 23 Q. And how did he pay for that? 24 A. I don't know. 25 Q. You just know that it was paid? 112 1 A. Yes, sir. 2 Q. Mr. Jackson, did you personally wait on 3 Mr. Wesbecker on September 12, 1989? 4 A. No, sir. My secretary, Sarah Estes, waited on 5 him. 6 Q. Mr. Jackson, the only time that you waited on 7 him was on September 6, 1989; am I correct? 8 A. I spoke with him; other than that, that was it. 9 Q. All right, sir. Thank you very much, sir. 10 A. Yes, sir. 11 JUDGE POTTER: Mr. Smith. 12 13 EXAMINATION ___________ 14 15 BY_MR._SMITH: __ ___ _____ 16 Q. Mr. Jackson, -- 17 A. Yes, sir. 18 Q. -- the gun that you repaired on September 6, was 19 brought in to you on September 6. I think you actually said 20 you did the repairs or the repairs were completed by September 21 7th, 1989; is that correct, sir? 22 A. Yes, sir. 23 Q. That gun that you repaired was an AK-47, was it 24 not? 25 A. AK-47S. There's a difference. 113 1 Q. Right. And as I understand it, you recorded the 2 serial number of that gun? 3 A. Yes, sir; I did. 4 Q. Is that your normal practice, sir? 5 A. Yes, sir. 6 Q. And that serial number is 09562; is that right, 7 sir? 8 A. Yes, sir; it is. 9 Q. And we have another document that's already in 10 evidence as Defendant's Exhibit 325 from Tilford's Gun Sales 11 that shows a -- I don't know that you have it in front of you, 12 but it shows the sale of that firearm on May the 1st, '89, 13 bearing that same? 14 A. Yes, sir; it does. 15 Q. Does it appear to match up? 16 A. Yes, sir. 17 Q. The description there is Polytech AK-47S. Does 18 that match up? 19 A. Yes, sir. Yes, sir. 20 Q. Firearm that you repaired? 21 A. Yes, sir. 22 Q. So is there any doubt, sir, that you were 23 working on the same firearm that appears, by looking at this 24 exhibit, as was sold on May 1st, 1989? 25 A. Absolutely no doubt. 114 1 Q. And does it appear that you said in your 2 deposition that this did in fact appear to be a new gun? 3 A. Yes, sir; it did. 4 Q. The problem with the gun was not something wrong 5 with the gun itself, but somebody had taken that gun and fired 6 corrosive ammunition out of it, hadn't they, sir? 7 A. Yes, sir. 8 Q. And the Chinese ammunition is corrosive in what 9 sense, sir? 10 A. The priming compound built up a residue that 11 grows. It's mercuric salt that builds and rusts. 12 Q. Do you know Mr. Tilford with Tilford Gun Sales? 13 A. Yes, sir; I did. 14 Q. And he said that this corrosion and this 15 stopping up of a firearm such as this can occur after going to 16 the target range with this type of ammunition if you don't 17 clean it after that one day's target range practice. Would 18 you agree with that, sir? 19 A. Yes, sir. Yes, sir. 20 Q. So you could fire 100 rounds of ammunition at a 21 target range, say, May 2nd, 1989; right? 22 A. Yes, sir. 23 Q. And the gun would corrode if you didn't clean 24 it? 25 A. Yes, sir. 115 1 Q. Correct? 2 A. Yes, sir. 3 Q. And then that gun, if it corroded on May 2nd, 4 wouldn't be operable after that, would it, if it were corroded 5 as you saw it? 6 A. If it had the round in the chamber it would be 7 operable. 8 Q. All right. But as far as shooting a second -- 9 that would just be making a single shot, wouldn't it? 10 A. It would be making a single shot. 11 Q. Nobody would want that weapon to work in that 12 manner, would they? 13 A. If it didn't blow open. If it didn't operate. 14 See, I knocked it open with a hammer. Under that pressure it 15 might have opened. 16 Q. Okay. But the point is most likely that AK-47 17 of Mr. Wesbecker's that you repaired was not functional, was 18 it? 19 A. No, sir. 20 Q. Is that correct that it was not functional? 21 A. It was not functional. 22 Q. It wouldn't work, would it, until you fixed it? 23 A. Only as a single shot. 24 Q. All right. And it wouldn't work as a 25 semiautomatic weapon until you fixed it. You fixed it on 116 1 September the 6th, did you not? 2 A. Yes, sir. 3 Q. So if it had been corroded and wouldn't work as 4 a semiautomatic, it had been in a state for a period of time, 5 had it not, where it wouldn't work as a semiautomatic weapon? 6 A. I would assume so, yes. 7 Q. And then after you fixed it on the 7th, it would 8 work as a semiautomatic weapon? 9 A. Yes, sir. 10 Q. But Mr. Wesbecker didn't pick it up on the 7th, 11 did he? 12 A. On the 12th. 13 Q. He picked it up on the 12th? 14 A. Yes, sir. 15 Q. And that's two days before this incident 16 occurred at Standard Gravure? 17 A. Yes, sir. 18 Q. So he didn't have it from the 6th to the 12th; 19 you had it? 20 A. Yes, sir. 21 Q. It could have been corroded and not operational 22 from May 2nd, even, until September 6, couldn't it? 23 A. Supposedly, yes, sir. 24 Q. Did Mr. Wesbecker tell you why all of the sudden 25 he had decided to have his gun repaired? 117 1 MR. STOPHER: Objection, Your Honor. That 2 assumes that it was all of a sudden. 3 JUDGE POTTER: Sustained. 4 Q. Did Mr. Wesbecker tell you why he wanted his gun 5 repaired? 6 A. No. 7 Q. Did Mr. Wesbecker tell you how long his gun had 8 not been functional as a semiautomatic weapon? 9 A. No. No. 10 Q. Did Mr. Wesbecker tell you how the weapon had 11 become corroded? 12 A. No. 13 Q. Now, actually, you really didn't get a long look 14 at Mr. Wesbecker, did you, when you saw him on the 6th? 15 A. No. 16 Q. In fact, weren't you in a different room from 17 him? 18 A. No. 19 Q. To start with? 20 A. No. 21 Q. I thought he came up to a counter and your 22 receptionist waited on him. 23 A. Well, we have separation of walls. It's all one 24 big room. 25 Q. Okay. All right. And was he -- was where he 118 1 was and where you were are between a separation wall? 2 A. Yes, sir. 3 Q. So your view of him was blocked for some period 4 of time while he was in your store? 5 A. Yes, sir. 6 Q. And his contact initially was with your 7 receptionist? 8 A. Yes, sir. 9 Q. Then on the second time you didn't see him at 10 all, did you? 11 A. No, sir. 12 Q. So you can't tell us what his appearance was 13 then? 14 A. No. 15 Q. I believe you testified that as far as 16 Mr. Wesbecker's appearance at any time, you said on Page 26 of 17 your deposition, Line 7, so I take it -- question was, "So I 18 take it you don't remember anything about his appearance, the 19 way he was dressed or what he looked like. 20 "Answer: He wore glasses. 21 "Question: Anything other than that? 22 "Answer: No." 23 Would that be accurate, sir? 24 A. Yes, sir. 25 Q. Basically all you recognized about Mr. Wesbecker 119 1 was he was a man in there wearing glasses? 2 A. Yes. 3 Q. If he had walked in two weeks later you wouldn't 4 have recognized him, would you? 5 A. I wouldn't have recognized him an hour from the 6 time I first saw him. 7 Q. All right. Thank you, sir. 8 9 FURTHER_EXAMINATION _______ ___________ 10 11 BY_MR._STOPHER: __ ___ _______ 12 Q. Mr. Jackson, just to read the full question and 13 the full answer preceding that on that deposition -- first of 14 all, sir, did you see him on September 6, 1989? 15 A. Yes. 16 Q. You weren't separated by a wall when you saw 17 him, were you? 18 MR. SMITH: Objection. Leading, Your Honor. 19 Q. Were you separated by a wall when you saw him? 20 A. No. 21 Q. Let me ask you if you gave this answer to this 22 question just before the one that Mr. Smith read to you, again 23 on August 21, 1992, sir, Page 25, Line 25: "Do you have any 24 recollection of what he looked like at all, sir? 25 "Answer: No. I'll tell you, the man was the 120 1 most nondescript person I've ever seen. I looked at him and 2 it was just a looking through foggy glass. You look at him 3 and you turned away and you can't remember anything that he 4 looked like." 5 Is that what you recall, sir? 6 A. Exactly. 7 Q. Anything distinctive or out of the ordinary 8 about him or about the way he handled himself or appeared on 9 that day, sir? 10 A. No, sir. 11 Q. Thank you, Mr. Jackson. 12 JUDGE POTTER: Thank you very much, sir. You 13 may step down; you're excused. 14 Ladies and gentlemen, have every one of you 15 voted? Anyway, in case you haven't, because the bucket's kind 16 of run dry we're going to quit half an hour early today. I'm 17 going to give you the same admonition I've given to you 18 before. Do not permit anybody to communicate with you about 19 this case. That includes not only friends and family, that 20 includes also the media, who might inadvertently communicate 21 with you by the newspaper or the television or whatever. Do 22 not discuss the case among yourselves or form or express 23 opinions about it. We'll stand in recess till 9:00 tomorrow 24 morning. 9:00. 25 (JURORS EXCUSED AT 4:20 P.M.; 121 1 HEARING IN CHAMBERS) 2 JUDGE POTTER: Okay. Who are going to be our 3 witnesses for tomorrow? 4 MR. FREEMAN: I just gave them to Mr. Smith. 5 We've got Ray Fuller, who is a Ph.D. 6 JUDGE POTTER: And his deposition before ran 7 from 9:00 in the morning to about 3:00 in the afternoon 8 reading it. I looked at that. 9 MR. FREEMAN: We believe his testimony on direct 10 will take between a half a day and three quarters of a day. 11 Then the next witness will be Doctor Wernicke, who I 12 anticipate because of what Mr. Smith has told me about his 13 cross will be the longest witness. He will probably take from 14 Lilly's point of view on direct, a full three quarters of a 15 day, perhaps a full day. Then after that will be Doctor 16 Greist, who is outside expert by -- not by deposition but in 17 person, and then after him Doctor Tollefson, who is our 18 in-house sort of chief psychiatrist. 19 MS. ZETTLER: Did you tell Doctor Beasley that? 20 JUDGE POTTER: So that definitely gets us 21 through the end of the week; right? 22 MR. FREEMAN: That will go into next week, 23 Judge. We think that we'll be through with the Lilly 24 witnesses by noon on Wednesday. That's our estimate. It 25 could go over into Thursday, but that's what we're shooting 122 1 for. 2 JUDGE POTTER: Not to give away Mr. Stopher's 3 thing, but are we kind of through with pressmen and people 4 like that? 5 MR. FREEMAN: There will be some additional lay 6 witnesses on Thursday and Friday morning, according to my 7 understanding. I don't know who they will be so I can't tell, 8 but that's what my understanding is. 9 JUDGE POTTER: Thursday and Friday after Doctor 10 Tollefson? 11 MR. FREEMAN: Yes. And then the following week 12 there will be a few cleanup witnesses that are lay witnesses 13 and then there will be the three -- two or three experts, 14 outside there will be three. 15 JUDGE POTTER: Okay. Mr. Fuller. Is there 16 anything we need to take up before they call Mr. Fuller? 17 MR. SMITH: Well, other than, you know, I'm 18 sorry that Mr. Stopher is not here. I'm really upset by 19 virtue of Mr. Stopher's representations to the Court that 20 those six -- it was necessary to have those six separate 21 photographs. 22 JUDGE POTTER: It's water over the dam. I've 23 made my call; I've gone on. 24 MR. SMITH: I'm not complaining about your call, 25 Your Honor. 123 1 JUDGE POTTER: Let me just say this. Well, it's 2 gone. He's going to use them later. Somebody will put them 3 in. I can't get involved in the minutia of the strategy of 4 getting in six pictures now instead of six pictures later. 5 Go ahead. We've got Mr. Fuller. What has to be 6 taken up about Mr. Fuller before we get into -- before they 7 call him to the stand? 8 MR. FREEMAN: One thing that you might want to 9 be aware of -- Paul, if you'll just excuse me just for a 10 minute -- Doctor Fuller is undergoing chemotherapy and he may 11 tire and we may have to take a few more recesses than we 12 normally would, but we'll let the Court know that in advance. 13 MR. SMITH: That's okay with us. 14 JUDGE POTTER: Okay. 15 MR. SMITH: We have this morning been presented 16 with exhibits that they intend to offer with Doctor Fuller 17 that we've never seen before. One is a CV, that was 18 yesterday. One is his CV. 19 JUDGE POTTER: They didn't give you a CV before 20 or this is just a different one or what? 21 MR. SMITH: Frankly, I don't know that we've 22 ever even asked for it. 23 MR. FREEMAN: That's all been gone over 24 ad nauseum in the deposition. 25 MS. ZETTLER: We've never seen that before, Joe. 124 1 MR. FREEMAN: I know it has been gone over 2 ad nauseum by asking questions about his background. If we're 3 trying to get out of here, that's one document that shortens 4 the length. 5 JUDGE POTTER: Let me just hear what we've got 6 to deal with. 7 MR. SMITH: The next is apparently some 8 commencement proceeding where I think he was presented with 9 some honorary degree or something. 10 JUDGE POTTER: Okay. 11 MR. SMITH: The next is another commencement 12 from Purdue University. 13 JUDGE POTTER: He's fourth division. That means 14 there are at least three better divisions; right? 15 MR. SMITH: He'll probably say fourth division 16 is the highest division. 17 JUDGE POTTER: Okay. 18 MR. SMITH: Next is a series of scientific 19 articles that have never been alluded to or presented in all 20 of these year-and-a-half intense discovery. There are no PZ 21 numbers on any of these documents. 22 JUDGE POTTER: All right. Let me just take a 23 look at them. And this is his -- what you've handed me is his 24 entire set, or it's what you've gone through of his set and 25 this is what you've not seen? 125 1 MR. SMITH: No. This is the entire set of 2 documents that we were handed this morning. 3 JUDGE POTTER: And none of them you've seen or 4 there are 50 more documents that are in your briefcase and you 5 haven't seen any or all of them? 6 MR. SMITH: No. None of this we've seen. 7 JUDGE POTTER: And this is all of them? 8 MR. SMITH: Yes. That's all that's been 9 presented. 10 JUDGE POTTER: All right. (Reviews document) 11 And if I get it correct, the unifying factor on all this is 12 that one of the authors or co-authors is Mr. Fuller -- Doctor 13 Fuller; is that right? 14 MR. FREEMAN: Yes. 15 JUDGE POTTER: Why are these going to be 16 introduced, Mr. Freeman? 17 MR. FREEMAN: They are going to be used, 18 hopefully, in support of the work that he has done in this 19 rather complicated area and also in support of some of the 20 slides that he will use in his presentation. Whether they 21 will actually be offered as exhibits will depend at the time 22 as to whether or not they go to the qualifications of what he 23 is going to be speaking about. 24 MR. SMITH: It might be useful, Your Honor, to 25 point out that Lilly designated Doctor Fuller as a list of 126 1 Lilly witnesses that might be called upon to give expert 2 opinions, but in questioning Doctor Fuller himself about this 3 case, he said he's not been asked to render any opinion in 4 connection with Fentress and does not know what actually 5 occurred giving rise to the lawsuit. He's never heard of Ed 6 Stopher, has not seen any medical reports or scientific data 7 in connection with the case. This is my summary. I'll get 8 the -- 9 MR. FREEMAN: It is not anticipated that he'll 10 talk about Mr. Wesbecker at all. 11 MR. SMITH: I think he's going to give opinions 12 concerning whether Prozac causes aggressive behavior. 13 MR. FREEMAN: He's going to talk about whether 14 it causes aggressive behavior, certainly. 15 JUDGE POTTER: You-all deposed him for how many 16 days? 17 MR. MYERS: Two days. 18 MR. SMITH: Two days. The Court issued an 19 order. When we asked for details of these witnesses' 20 opinions, the Court said I am not going to require that they 21 detail their opinion, but if the Defendant is going to have 22 any opinions elicited from them, then the Defendant must cover 23 that in their deposition to give the Plaintiff the opportunity 24 to cross-examine them on their opinions. 25 MR. MYERS: Doctor Fuller was examined in his 127 1 deposition on the subject of aggressive behavior and 2 fluoxetine and serotonin. He was examined on the subject 3 matters about which he'll testify. As Mr. Freeman said, he's 4 not expected, is not going to give any testimony about Joseph 5 Wesbecker and the Fentress case, per se, but this is the work 6 that he's done for 30 years, Judge, separate and apart from 7 this lawsuit. 8 JUDGE POTTER: Well, I went back this morning 9 and briefly looked over my notes and he -- let me go get my 10 notes. 11 (JUDGE POTTER LEAVES AND REENTERS CHAMBERS) 12 JUDGE POTTER: (Reviews notes) For every crooked 13 thought -- 14 MR. SMITH: There's a crooked molecule. Behind 15 every crooked thought there's a crooked molecule. 16 JUDGE POTTER: Right. He was kind of the person 17 you-all tried to use as your educator about the whole system; 18 right? 19 MR. SMITH: Yes, Your Honor. Additionally, 20 those documents were not produced to us in the pretrial 21 designation of exhibits that were going to be used. 22 JUDGE POTTER: Well, I mean, here's something on 23 rat brains. Didn't you-all talk to them about rat brains or 24 not? 25 MR. SMITH: Uh-huh. You know, we talked to him 128 1 in the context of, you know, his research was done in 2 connection with how fluoxetine worked on the serotonin system. 3 He had to grind up rat brains and mice brains and, you know, 4 that was the primary context in which his testimony was based. 5 He hasn't done any studies on humans, as far as I know, has 6 he? 7 MR. MYERS: He's not a clinician, he's a basic 8 scientist. 9 MR. SMITH: Uh-huh. 10 JUDGE POTTER: Well, why -- Mr. Myers, 11 Mr. Freeman, I mean, why weren't all these things produced a 12 long time ago so we don't have this problem? 13 MR. MYERS: Judge, obviously, some of what 14 Doctor Fuller has to speak to is in response to what the 15 Plaintiffs put on in their case, and while those articles were 16 not included in the initial pretrial exchange, it is my 17 understanding that a number of the articles published by 18 Doctor Fuller or upon which Doctor Fuller relies were part of 19 the document production for his deposition and were as well 20 contained in the IND and NDA materials which were made 21 available to the Plaintiffs. So, obviously, in part what we 22 have to do in putting on the defense case is respond to some 23 of the things that the Plaintiffs have said. 24 And by way of example, Doctor Breggin came in 25 here and gave an extraordinarily long-winded dissertation on 129 1 his review of the literature, both human and animal, as it 2 relates, for example, to aggressivity. That evidence was all 3 received -- all the evidence -- over objection and some of it 4 specifically over objection on this subject. And Doctor 5 Fuller as our basic scientist should be given an opportunity 6 to respond to those matters in the same fashion that Doctor 7 Breggin did, by giving a rather unrestrained review of the 8 literature. 9 MR. SMITH: If I can address that, these weren't 10 produced to us in connection with Doctor Fuller's deposition. 11 Some of these were published after Doctor Fuller's deposition 12 was taken. None of these documents bear PZ numbers or numbers 13 identifying it from the IND and NDA, which has always been the 14 hallmark of whether or not it was part of a Lilly document, by 15 virtue of the fact that it had PZ numbers on it. 16 JUDGE POTTER: Mr. Myers or Mr. Freeman, this is 17 one of yours or this is the New Jersey fellow? 18 MR. FREEMAN: This is Mr. McGoldrick. 19 JUDGE POTTER: The New Jersey fellow? 20 MR. FREEMAN: Yes. 21 MR. MYERS: But you hardly know he's from New 22 Jersey, Judge. 23 MR. SMITH: Don't worry. I'll tell the jury 24 where he's from if the Judge doesn't. 25 JUDGE POTTER: What is he going to do? 130 1 MR. MYERS: I expect, Judge, very generally he's 2 going to come in and go through Doctor Fuller's qualifications 3 in some detail. He's going to go through his research 4 experience generally in some detail, and then he's going to go 5 into his research experience with respect to fluoxetine in 6 some great detail. And as part and parcel of that, he is 7 going to address the question of Doctor Fuller's own research 8 in animals and what it has shown with respect to the 9 properties of fluoxetine, the function of the serotonin 10 system, as well as the effect of this drug and these types of 11 drugs on animals to include behavioral changes which Doctor 12 Breggin talked in great length about, in fact, citing at 13 times, the Court may recall, he said well, you know I didn't 14 make this up, Lilly did a lot of this work. 15 He's going to cover those subject matters which 16 has been his field of research for 30-some years. You know, I 17 don't want to -- I can't outline question by question, but 18 that is what he's going to cover. And these materials go 19 squarely to the question of aggressivity which the Plaintiffs 20 have put in evidence of and placed great reliance, for 21 example, on a couple of animal studies, those cats that we 22 keep hearing about, and this dog. 23 MR. SMITH: We're not finished. 24 MR. MYERS: And he's going to address those 25 issues from his scientific perspective. 131 1 MR. FREEMAN: From Breggin's testimony it would 2 appear that Lilly's work supports his theory. 3 MR. SMITH: The point is that if Doctor Fuller 4 had any experience in observing the behavior of animals in 5 whether or not they became aggressive or nonaggressive, I 6 think he can testify to that. But as far as saying I 7 published this article and this article and this article and 8 it's scientifically established that X, Y, Z occurs, that goes 9 beyond what he can do and what he's been designated to do. 10 MR. MYERS: He's testified not only on the work 11 he's done, but part of his job as a scientist is as a reviewer 12 of the literature and a collaborator with other people in this 13 area on this very subject. 14 JUDGE POTTER: I guess my problem is, you know, 15 the CV, put that aside, is -- for better or for worse, why 16 weren't these people -- and I haven't gone back and reviewed 17 all the pretrial orders about what was supposed to be produced 18 when. Why weren't these things produced for them with some 19 kind of thing that, you know, this is what Doctor Fuller is 20 going to rely on? I mean, it seems like -- 21 MR. FREEMAN: Principally, I think, Judge, 22 because after Breggin testified that he based a lot of his 23 opinions on what Lilly had done in its own laboratories and 24 work, we went back and took another look at the proposition to 25 determine from his testimony as to whether or not it caused 132 1 aggressivity in these animals. We knew it didn't, but we felt 2 like since he had said from Lilly's work and what I've seen 3 and I've done this literature search, that we needed to show 4 that that's not the complete picture. 5 MS. ZETTLER: These questions were all asked of 6 him in his deposition, Your Honor, asked him repeatedly about 7 any animal studies that he was aware of that showed that there 8 were not -- that this was not causing violent-aggressive 9 behavior, and he constantly said no. 10 MR. MYERS: "He" who? Not likely. 11 (JUDGE POTTER LEAVES AND REENTERS CHAMBERS) 12 JUDGE POTTER: I'm going to let his CV in, and 13 that's just -- even if they've violated some rule by not 14 producing it when they should, it gets his fourth prize and 15 whatever this other thing is, his commencement address. But 16 on the other stuff, I think he can talk about it, he can tell 17 what he's done, tell what he believes, but as far as actually 18 getting up and waving something in front of a jury or quoting 19 out of a piece of paper in front of him, I'm going to say they 20 can't use these things. Because my feeling is that a guy 21 gives his deposition, you show everybody everything and then, 22 you know, when it comes to trial you kind of take the best 23 hole you can. I have no way of knowing whether the functional 24 significance of sympathetic nervous system and production 25 hypertension, how that is going to fit into his testimony. 133 1 Whether that's a surprise to him -- I do have a 2 feeling that some of this stuff, Mr. Smith, is no surprise to 3 you and you would probably even know about it or whatever, but 4 I have no way of sorting out what is a surprise from you and 5 what isn't a surprise from you. So if he just wants to get up 6 and flat assert I've done rat tests, I've done this test, this 7 is what I've done, this is what I find, he can do that, but as 8 far as trotting out these articles and that kind of stuff, I'm 9 going to sustain the objection. 10 MR. FREEMAN: Unless, of course, it's gone into 11 on cross? 12 JUDGE POTTER: I guess we'll have to take that 13 up when it comes. 14 MR. FREEMAN: All right, sir. 15 MR. SMITH: That brings up the next subject, 16 which is, this was given to us yesterday and, of course, it is 17 quoting -- and I don't know, there may be -- some of those 18 articles may be referenced in these articles. None of these 19 were -- a lot of these weren't mentioned in his deposition, a 20 lot of them -- some of them have been published since his 21 deposition has been taken. 22 MS. ZETTLER: Some of them don't even have 23 cites, Your Honor, so we don't even know where they come from. 24 JUDGE POTTER: I'm assuming what's in his 25 overheads come out of this stack of paper or it comes from 134 1 somewhere else? 2 MR. MYERS: No, sir. Those are articles -- 3 there are more citations in those overheads than in those. We 4 do not anticipate offering any of those articles. That's 5 simply demonstrative of his knowledge of the subject matter in 6 the area of aggression in animals and is not going to be -- 7 that stack of slides is not going to be offered but, just like 8 Doctor Breggin did, to go through the laundry list. I've 9 reviewed the literature and this is what's been reported on 10 the subject. He's going to do a light thing, and those are 11 demonstrative of what he's going to discuss; they're not going 12 to be offered into evidence. And he was examined at great 13 length in his deposition about animal studies and also the 14 subject of aggressive behavior in animals and his knowledge of 15 that, whether or not he did the research in that stack of 16 slides, some of the research was done at Lilly and other of 17 the research was not done at Lilly. 18 MR. SMITH: Two principal distinctions here. 19 Number One, Doctor Breggin produced each and every article in 20 his deposition that he was reference -- that he referenced. 21 Additionally, none of these opinions have been designated as 22 his opinions. These are quotes. We don't know whether 23 they're taken in context or out of context. This is just an 24 abbreviated way to get these into evidence. 25 MR. MYERS: Well, in response to the contention 135 1 that the opinion hasn't been disclosed, he testified in his 2 deposition numerous times that he did not believe that the 3 properties of fluoxetine or these types of drugs that work on 4 the serotonin system would have the effect claimed here, and 5 these are simply -- this is simply medical and scientific 6 support, some of it Lilly work, some of it other work, that 7 supports that opinion, and he's permitted to give that opinion 8 and to rely on things that are not necessarily admissible in 9 evidence and the Court need not admit them into evidence; 10 they're just an aid as he goes through that. 11 JUDGE POTTER: We're back to the point that if, 12 you know, sometime shortly after he gave his deposition 13 you-all had produced this stuff for Mr. Smith or had given it 14 to him, he wouldn't be here, or if he would be here he 15 wouldn't be here very long. You know, he doesn't have a clue, 16 I don't have a clue about who M. Spoont and the Psychological 17 Bulletin of 1992 is. I mean, here's a huge quote. I mean, 18 there is no way between now and tomorrow or even any time for 19 him to... 20 MS. ZETTLER: Your Honor, if I may add, over 21 the... 22 JUDGE POTTER: To begin to deal with this -- and 23 I don't know that he would have dealt with it any better had 24 he had this stuff ahead of time, but part of the pretrial 25 stuff on these experts is that he gets at least a chance to 136 1 try and deal with it before he's hit with an onslaught of 2 slides and quotes and stuff, you know. I'm going to sustain 3 the objection to these overhead slides. 4 MR. MYERS: Is the Court's ruling the same as 5 with the articles he made; he can certainly discuss the 6 subject matter? 7 JUDGE POTTER: He can tell in his experience and 8 what I found and what I believe, but he can't say, you know, 9 "The most striking correspondence" -- M. Spoont, Psychological 10 -- I mean, these other experts, they may not have a better 11 hole, but this guy kind of strikes me as he's kind of a 12 stealth expert; he's more or less a fact witness. I think 13 he's entitled to give certain opinions about what he did and 14 what he believes, but this huge review of the literature that 15 they've never seen, I'm going to sustain their objection. 16 Does that take care of it, folks? 17 MR. SMITH: Just about. And I know you're not 18 very well and I apologize. 19 JUDGE POTTER: No. Go ahead, Mr. Smith. 20 MR. SMITH: What I want to make sure is that we 21 specifically asked Doctor Fuller if he was going to render any 22 opinions in connection with the issues in this case and he 23 said he was not, had not been asked to. 24 JUDGE POTTER: Can I see that part of the 25 deposition? 137 1 (OFF THE RECORD) 2 MR. SMITH: While she's pulling that up, we 3 might can address one other issue, and that is we were 4 presented with this video at the time that we exchanged 5 exhibits. This is what I call a two-part video. The first 6 part talks about depression and how it always leads to suicide 7 in just about every case, and the second part deals with 8 Prozac and how Prozac works in the serotonin system. 9 Obviously, they -- do you intend to play this with Doctor 10 Fuller? 11 MR. FREEMAN: Yes, sir. 12 MR. MYERS: Yes, sir. 13 MR. SMITH: Obviously, Doctor Fuller is not 14 qualified to testify whether or not Prozac cures or alleviates 15 depression. He's not, as Mr. Myers said, a clinician or a 16 psychiatrist; he's a Ph.D. biochemist. So I think the first 17 part is clearly not admissible. 18 JUDGE POTTER: What is the first part? Is it a 19 voice-over of some pictures? 20 MR. FREEMAN: It's script that Doctor Fuller 21 wrote. 22 MR. MYERS: Judge, the tape is only 12 minutes 23 long. 24 MS. ZETTLER: Can we look at this first, because 25 I'm running out of juice; it's got to be recharged. Page 157 138 1 of his deposition starting at Line 4, he's asked Doctor Fuller 2 have you been identified. 3 JUDGE POTTER: (Examines computer screen) Who is 4 Mr. Bremner? 5 MR. FREEMAN: He is from Mr. McGoldrick's 6 office. 7 JUDGE POTTER: He is in the same boat as 8 Mr. Myers? 9 MR. SMITH: Mr. Myers is a much nicer person 10 than Mr. Bremner, better lawyer, better husband. 11 JUDGE POTTER: Okay. Let's go -- let me go see 12 the video. We'll watch the video. 13 (PROCEEDINGS MOVE TO COURTROOM FOR VIEWING 14 OF VIDEO; RETURN TO CHAMBERS) 15 MR. MYERS: Insofar as the graphic depiction of 16 how the neurotransmitters work from there, Doctor Fuller was 17 involved in the preparation of this tape and he will testify 18 that everything that is in there is consistent with his 19 scientific knowledge and opinions, and this is down the line 20 with what he testified to in his deposition; it's simply a 21 graphic depiction. But he will, in terms of testifying to the 22 scientific accuracy, understanding Mr. Smith says there are 23 certain things that are contested, insofar as he is concerned 24 and his knowledge is concerned that that is consistent. This 25 is not something that we made and showed to Doctor Fuller. 139 1 Doctor Fuller was involved in its preparation, so that it 2 would be precisely consistent with his views. 3 MR. SMITH: Was this made for this litigation? 4 MR. FREEMAN: No. Made for this case. The 5 thing that I think is interesting about it is that Doctor 6 Fuller was given the assignment or took upon himself the 7 assignment because he had worked in mental institutions to 8 undertake to find a clean and selective drug that would treat 9 the condition that's described there that I went into in my 10 opening statement. 11 JUDGE POTTER: I don't have any problem with the 12 second part of the video. All you need to do is cut off the 13 sound and let Doctor Fuller testify. Doesn't it have a stop 14 and a go on it? He can read the script if he wants to, but I 15 really do think whoever's giving the thing is testifying. 16 And, you know, Doctor Fuller, I haven't a clue as to what he 17 looks like or what his presentation is or how well he 18 modulates his voice, but the simple answer to that is just, 19 you know, cut off the sound and he can stop it and start it 20 and point and do the whole thing. 21 I think it's a very nice thing. I think it's no 22 different than the big black thing you had out there with the 23 two plugs together; it's just a much more animated one. And I 24 do think unless it has some evidentiary value, you can't take 25 an announcer's voice and have him testify and then have 140 1 somebody say, "I swear that's true." You have to have the 2 witness do it. The first part, is it outside -- we've heard 3 that one in six or fifteen percent. 4 MR. FREEMAN: I think it connects up the whole 5 thing, and certainly we're going to have testimony about that, 6 but it makes the jury know what we were looking for. 7 JUDGE POTTER: Doctor Thompson came out with 15 8 percent. I didn't hear about the 80 percent and the 40 9 percent or whatever it is, but I certainly did hear the 5 out 10 of the 9. 11 MR. FREEMAN: It was in my opening statement. 12 JUDGE POTTER: You know, the diagnosis is I 13 don't know whether it was nine things or seven things but you 14 had to have five of them. That was his testimony just done 15 up. So I am going to sustain the objection to the first part. 16 And he can tell about what he's looking for and then if he 17 wants to use the second part as the graphic and cut down the 18 sound and you ask him questions and he'll answer them, or if 19 he -- I assume you've got a script. If he just wants to read 20 the script, he can. But in effect what I see has happened is 21 you've taken part of a witness's testimony, canned it, gotten 22 someone with a very nice announcer-type voice to read it. 23 MR. FREEMAN: They asked me to do it, but I 24 turned them down. 25 JUDGE POTTER: When they try the cases in 141 1 Alabama they'll let you read it, Mr. Freeman. 2 MR. MYERS: Judge, the only point I would make 3 on that, he's going to swear to the accuracy of it, and it's 4 more expeditious to have the announcer communicate that 5 information to get through the tape; otherwise, we're going to 6 be forever starting and stopping it. 7 JUDGE POTTER: It's just my feeling that what's 8 happened is that somebody has taken what would be testimony 9 and put it, you know, a newscast or very persuasive form. And 10 I think it has to come from the witness stand, not from the TV 11 with this guy then saying, yes, in fact, I believe all that, 12 also. 13 MR. SMITH: So as I understand it, the first 14 part is totally out. The second part they can use -- 15 MR. FREEMAN: I think he can go into that in the 16 same way, can't he, Judge? He's certainly qualified to do 17 this. 18 JUDGE POTTER: The first part, Mr. Smith, is 19 basically statistics and definition, isn't it? Isn't that the 20 definition of depression? I mean, there's MSD-3 (sic) or 21 whatever it is that there's a definition; it's just a very 22 slick presentation. 23 MR. SMITH: They have eight psychiatrists that 24 they can bring up here if they want to testify about 25 depression. And, you know, I have to -- I've had to reveal 142 1 how much I paid Doctor Breggin and yet, you know, they're 2 wanting to get this depression part in through a Ph.D. 3 biochemist. I mean, he's not qualified to render any of the 4 -- or to testify concerning any of the first part. 5 JUDGE POTTER: As I say, I'm going to keep the 6 first part out. And if they want to ask him what depression 7 is or a few basic statistics about it, you can object and then 8 I'll just take them up at the time, because I kind of feel 9 like I'm qualified to testify about some of that stuff now. 10 MR. MYERS: Just two more things before we 11 leave. We have five or six still shots from the second part 12 of the tape that show the neurotransmission, and the other 13 thing is at some point, either starting with Doctor Fuller or 14 Doctor Wernicke's testimony we may utilize a time line which 15 simply has historic dates: 1971, fluoxetine synthesized, the 16 facts that came into evidence, but they're historic: NDA 17 filed September 1983, on a time line because we've been 18 through so many dates. 19 JUDGE POTTER: I don't have a problem. 20 MR. SMITH: Let me at least see it. 21 JUDGE POTTER: As long as it's not too detailed 22 and not too editorial. 23 MR. MYERS: It's just historical fact basically 24 of when filings were made with the government. 25 MR. SMITH: We might be able to take this up in 143 1 the morning, but how are we going to introduce Mr. McGoldrick? 2 JUDGE POTTER: I will let Mr. Freeman do that. 3 He can introduce him as co-counsel who is here for the purpose 4 of examining these witnesses or whatever he wants to do. He 5 can just introduce him from -- Mr. McGoldrick from New Jersey, 6 and he's going to assist me in this part, or if you want me to 7 do it, I'll do it. 8 MR. FREEMAN: I'll do it, Judge. 9 MR. SMITH: I think it's highly unlikely, but as 10 long as he's identified as to where he's from and the firm 11 he's with and so that if the jury happens to know him or the 12 firm. 13 JUDGE POTTER: Okay. 14 MR. SMITH: I think it's probably as remote as 15 is anything that's occurred in this litigation. 16 JUDGE POTTER: Okay. He gets his CV in and his 17 two awards. Anything else? 18 (PROCEEDINGS TERMINATED THIS DATE AT 5:45 P.M.) 19 * * * 20 21 22 23 24 25 144 1 STATE OF KENTUCKY )( )( Sct. 2 COUNTY OF JEFFERSON )( 3 I, JULIA K. McBRIDE, Notary Public, State of 4 Kentucky at Large, hereby certify that the foregoing 5 Transcript of the Proceedings was taken at the time and place 6 stated in the caption; that the appearances were as set forth 7 in the caption; that prior to giving testimony the witnesses 8 were first duly sworn; that said testimony was taken down by 9 me in stenographic notes and thereafter reduced under my 10 supervision to the foregoing typewritten pages and that said 11 typewritten transcript is a true, accurate and complete record 12 of my stenographic notes so taken. 13 I further certify that I am not related by blood 14 or marriage to any of the parties hereto and that I have no 15 interest in the outcome of captioned case. 16 My commission as Notary Public expires 17 December 21, 1996. 18 Given under my hand this the__________day of 19 ______________________, 1994, at Louisville, Kentucky. 20 21 22 23 24 _____________________________ 25 NOTARY PUBLIC 145 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25