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 MONDAY, NOVEMBER 28, 1994 15 VOLUME XL 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 2 I_N_D_E_X _ _ _ _ _ 3 WITNESS: CHARLES_CONN _______ _______ ____ 4 By Mr. Stopher........................................... 7 By Ms. Zettler........................................... 21 5 6 WITNESS: DONALD_JACKSON (By Deposition) _______ ______ _______ 7 By Mr. Stopher........................................... 27 8 WITNESS: JAMES_CROFT _______ _____ _____ 9 By Mr. Stopher........................................... 58 By Ms. Zettler........................................... 69 10 WITNESS: MARY_J._McCARTY (By Deposition) _______ ____ __ _______ 11 By Mr. Stopher........................................... 71 12 WITNESS: SAM_VERENNA _______ ___ _______ 13 By Mr. Stopher...........................................114 14 By Mr. Smith.............................................143 15 WITNESS: RAY_YEAGER _______ ___ ______ 16 By Mr. Stopher...........................................148 By Mr. Smith.............................................161 17 WITNESS: MORTON_LEVENTHAL,_Ph.D. (By Deposition) _______ ______ __________ _____ 18 By Mr. Stopher...........................................166 19 * * * 20 Hearing in Chambers......................................210 21 Reporter's Certificate...................................252 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 Boehl, Stopher & Graves 14 2300 Providian Center Louisville, Kentucky 40202 15 JOE C. FREEMAN, JR. 16 LAWRENCE J. MYERS Freeman & Hawkins 17 4000 One Peachtree Center 303 Peachtree Street, N.E. 18 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 Monday, November 28, 1994, at approximately 9:04 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 (BENCH DISCUSSION) 10 JUDGE POTTER: Ms. Zettler, you indicated there 11 was something we needed to take up before the jury came in? 12 MS. ZETTLER: Right, Judge. We anticipate with 13 Charles Conn's testimony, there's some things in his 14 deposition that we would like a ruling on. First, there is 15 some testimony as to whether or not psychologically -- 16 JUDGE POTTER: Who is Mr. Conn? 17 MS. ZETTLER: He's a childhood friend. This is 18 the guy that was in jail with him after the statutory rape 19 charge. The first issue that I saw in there was that he's -- 20 I guess my impression from the deposition is that he was 21 dating Sue Chesser for a while prior to when this happened in 22 September of '89. Some testimony from him was elicited during 23 his deposition something to the effect of Joe Wesbecker and 24 Jimmy Wesbecker are the same psychologically and that Jimmy 25 Wesbecker is potentially dangerous. Jimmy Wesbecker's mental 5 1 condition I don't think is relevant in this case. 2 MR. STOPHER: I don't have any problem with 3 that. I'm not going to introduce it. He volunteered those 4 statements. I don't think it's relevant. 5 MS. ZETTLER: Okay. That's fine. Also, there 6 is an issue in the deposition as to whether or not Joe 7 Wesbecker was raped or molested or sodomized when he was in 8 jail when he was 15 or 16 years old. I think that was raised 9 as pure speculation by somebody and I don't want that to be at 10 issue. 11 MR. STOPHER: He denied it. Said he heard 12 something to that effect but he didn't know about it, Judge, 13 so it's not admissible. 14 MS. ZETTLER: Okay. And the third is -- and I 15 don't know if this is going to be tangential, but my 16 understanding is that this judge is dead, but this guy implies 17 there was some kind of a bribe. 18 MR. STOPHER: That was again a volunteered 19 statement on his part; that is not admissible. 20 JUDGE POTTER: Okay. 21 (BENCH DISCUSSION CONCLUDED) 22 SHERIFF CECIL: All rise. The Honorable Judge 23 John Potter is now presiding. All jurors are present. Court 24 is now in session. 25 JUDGE POTTER: Okay. Please be seated. Ladies 6 1 and gentlemen of the jury, I take it all of you had a 2 successful holiday; if you got sick, you got over it? Okay. 3 Did anybody have any -- over the long holiday have any problem 4 observing the admonition not to let anybody talk to you or 5 give you information about the case? Ms. Davis-Spalding, did 6 you have any problems? 7 JUROR DAVIS-SPALDING: No, other than their 8 being mad at me. 9 JUDGE POTTER: Okay. Well, you know, if that's 10 all the bad that happened to you over the holiday with your 11 relatives, you're in good shape because I suspect there are 12 some people here that got worse than that. 13 Those of you that allowed my secretary to 14 organize your box, she says it was a bigger job than she 15 thought it was; she was getting kind of bleary-eyed there at 16 the end. So if some things are out of order or some things 17 aren't quite as they should be -- I don't know how she 18 organized it; I just told her to do it and she came up with 19 her plan or whatever she came up with. 20 JUROR FELKER: She did a good job. You need to 21 give her a raise. 22 JUDGE POTTER: And if anybody who didn't have it 23 done changed their mind, let me know and we'll pack it over 24 there one day next week and we'll let her do it while you're 25 in court and you don't need it. 7 1 Mr. Stopher, do you want to call your next 2 witness? 3 MR. STOPHER: Yes, Your Honor. Charles Conn. 4 JUDGE POTTER: Sir, could you step down here and 5 raise your right hand, please. 6 7 CHARLES CONN, after first being duly sworn, was 8 examined and testified as follows: 9 10 JUDGE POTTER: Okay. Would you step around here 11 to the witness box and have a seat indicated by my sheriff. 12 And would you say your name loud and clearly for us, sir, and 13 then spell it. 14 MR. CONN: Pardon? 15 JUDGE POTTER: Would you say your name loud and 16 clearly and then spell it. 17 MR. CONN: Charles Conn. C-O-N-N. 18 JUDGE POTTER: Okay. And answer Mr. Stopher's 19 questions. 20 21 EXAMINATION ___________ 22 23 BY_MR._STOPHER: __ ___ _______ 24 Q. Mr. Conn, can you hear me all right? 25 A. Yes, I can. 8 1 Q. I'm having some difficulty hearing you, sir. 2 Can you try getting a -- 3 A. Apparently the microphone isn't working. 4 JUDGE POTTER: I don't think they've turned on 5 the system out there 6 SHERIFF CECIL: Let me check. 7 Q. Can you state your name for us again, sir, just 8 to try out the mike? 9 A. Charles Conn. It's not on, is it? 10 Q. Do you think it's on? 11 SHERIFF CECIL: He said that's on there. Let me 12 make sure. Excuse me. 13 JUDGE POTTER: Speak up loudly, sir, and if the 14 jury can't hear you, they'll let us know. 15 Q. Mr. Conn, where do you live, sir? 16 A. I live in Shively, 2912 South Crums Lane. 17 Q. And how old are you, sir? 18 A. Fifty-three. 19 Q. And by whom are you employed, sir? 20 A. I was employed by Westminster Village; I'm 21 unemployed at the present time. 22 Q. Mr. Conn, did you know Joseph Wesbecker? 23 A. Yes, I did. 24 Q. Would you tell the jury approximately when or 25 under what circumstances you came to know him, sir? 9 1 A. Well, we both grew up in the same neighborhood 2 and kind of ran around as teenagers together. 3 Q. And about how old were you or where were you in 4 school when you first met him or became acquainted with him? 5 A. I first met Joe Wesbecker at St. George 6 elementary school. 7 Q. And both of you were in school there? 8 A. Yes. That's correct. 9 Q. Is that an elementary school, or was it an 10 elementary school? 11 A. Yes, it is. 12 Q. Okay. You were friends with him from about what 13 grade in elementary school? 14 A. Approximately around the sixth grade is when I 15 first met him. 16 Q. And how long approximately did you remain on a 17 relatively close or close-friend-type basis with him? 18 A. We were good friends up until Joe got married to 19 Sue White. 20 Q. All right, sir. Now, Mr. Conn, during those 21 years from being, let's see, in the sixth grade would be about 22 11 or 12 years old; right, sir? 23 A. Correct. 24 Q. Until the time that he married, which would be 25 around age 20, about right? 10 1 A. It seems like Joe might have gotten married when 2 he was about 19. 3 Q. All right, sir. During those periods of time -- 4 or, that period of time you were a friend of his; am I right, 5 sir? 6 A. Yes. 7 Q. Particularly, sir, when both of you were 8 teenagers would you sometimes hang out together? 9 A. Yes. Quite a bit. 10 Q. And where would you sort of hang out, what would 11 be the beginning place? 12 A. Well, we more or less had a meeting place which 13 was at 18th and Hill. There was a restaurant there called 14 Cooksey's Restaurant and also another establishment was Gus's 15 Pool Hall. 16 Q. Was it in the same area, sir, in 18th and Hill? 17 A. Yes, sir. It was within a block of each other. 18 Q. All right. And in those days, sir, did Joe 19 Wesbecker have a car? 20 A. Yes, he did. 21 Q. Whose car was it? Was it his or somebody's 22 else's? 23 A. He usually drove his aunt's car. 24 Q. And obviously from time to time you would ride 25 with him; is that true, sir? 11 1 A. Yes. That's correct. 2 Q. Mr. Conn, did you ever see him do anything 3 dangerous with that automobile? 4 A. Absolutely. 5 MS. ZETTLER: Objection. Leading. 6 JUDGE POTTER: It's preliminary. 7 Q. I'm sorry. I didn't hear your answer. 8 A. Yes. Yes. 9 Q. Would you tell the jury about that, sir? 10 A. Well, of course, when we were teenagers it was 11 common practice to drink and drive. Joe was -- had a very 12 heavy foot and, as a matter of fact, I was in the car with him 13 one night, we were all drinking, and he went through a red 14 light doing probably 100 miles an hour or better. That's 15 considerably dangerous. 16 Q. Were there ever occasions, sir, when he might 17 intentionally drive in a way that was inappropriate or unsafe? 18 MS. ZETTLER: Objection, leading. 19 JUDGE POTTER: Overruled. 20 A. All the time. 21 Q. What would be the types of things that he would 22 intentionally do that would be unsafe? 23 A. He always drove too fast. Ironic as it sounds, 24 he was an excellent driver. He could get out of any situation 25 that he put hisself into, although it was endangering himself 12 1 and others. I repeat, he was an excellent driver. 2 Q. Did he ever drive on the wrong side of the road, 3 sir? 4 A. Not that I recall but... 5 Q. Did he ever drive with his lights off on the 6 wrong side of the road? 7 A. I don't really recall that incident. 8 Q. Let me refer you, if I may, sir, to some 9 testimony that you gave in deposition under oath. Do you 10 recall that, sir? 11 A. Yes, sir. 12 Q. And this was under oath on May 25, 1993, sir? 13 A. Yes, sir. I remember that. 14 Q. Let me see if this refreshes your memory, sir. 15 On Page 37, Question, Line 3: "Did he sometimes drive at 16 speeds over 80 miles an hour? 17 "Answer: Oh, yes, sir. 18 "Question: Sometimes as high as 100 miles an 19 hour? 20 "Answer: And more. 21 "Question: On city streets? 22 "Answer: Yes. 23 "Question: Would he sometimes drive with the 24 lights off? 25 "Answer: Yes. 13 1 "Question: And would he sometimes drive 2 intentionally on the wrong side of the road? 3 "Answer: Probably. 4 "Question: Did he do that with other people in 5 the car or would he be alone? 6 "Answer: No. With other people. He was 7 somewhat of a show-off behind the wheel." 8 Does that refresh your memory, sir? 9 MS. ZETTLER: Your Honor, we're going to object 10 to that as not impeaching. The Witness answered that as he 11 didn't know. In answering during the whole diatribe that 12 Mr. Stopher just read, he said probably. 13 MR. STOPHER: May we approach the bench for 14 these objections? 15 JUDGE POTTER: Yes. 16 (BENCH DISCUSSION) 17 JUDGE POTTER: Why isn't this a prior 18 inconsistent statement? 19 MS. ZETTLER: He testified to everything that 20 Mr. Stopher just read except for the one question about 21 driving on the other side of the road and saying he didn't 22 recall, and now he's saying probably, which is just 23 speculation. 24 JUDGE POTTER: All right. The objection is 25 probably correct that Mr. Stopher read more than he should 14 1 have, but as to the nuts and bolts of the thing the objection 2 is overruled. It is a prior inconsistent statement. 3 MS. ZETTLER: Can we just have a ruling that if 4 Mr. Stopher is going to impeach the Witness that he impeach 5 the Witness and not read the entire deposition testimony? 6 JUDGE POTTER: Well, you'll just have to make 7 the objection when it comes up. 8 (BENCH DISCUSSION CONCLUDED) 9 Q. Mr. Conn, does that refresh your recollection, 10 sir? 11 A. Yes. 12 Q. Is that testimony still accurate, sir? 13 A. Yes. 14 Q. Mr. Conn, with regard to Joe Wesbecker, back 15 when you and he were teenagers and around each other, did he 16 ever have a gun at that time, sir? 17 A. You mean if he carried one on him, no. 18 Q. Did he have one in his possession, sir? 19 A. There was a time when he did have a gun, yes. 20 Q. And what sort of a gun was it, sir? 21 A. It was a blank pistol. 22 Q. What is a blank pistol? 23 A. It's a nonfiring weapon that is just a starter 24 gun. 25 Q. A starter gun? 15 1 A. Yes. 2 Q. Where did he keep that gun, sir? 3 A. I don't know. 4 Q. Did you ever see him use it? 5 A. Yes. 6 Q. And would you tell us about the circumstances in 7 which you saw him use it, sir? 8 THE WITNESS: Could I have a moment with Mr. 9 Stopher? 10 JUDGE POTTER: Is there any objection if we take 11 a brief recess? 12 MS. ZETTLER: No, Your Honor. 13 JUDGE POTTER: Ladies and gentlemen, I'm going 14 to take a five-minute recess. As I've mentioned to you-all 15 before, do not communicate with each other or anybody else 16 about the case and do not form or express opinions about it. 17 We'll take a five-minute recess. We'll recess for a few 18 minutes. 19 (RECESS) 20 SHERIFF CECIL: The jury is now entering. All 21 jurors are present. Court is back in session. 22 JUDGE POTTER: Please be seated. 23 Mr. Conn, I'll remind you you're still under 24 oath. 25 Mr. Stopher. 16 1 Q. Mr. Conn, with regard to that starter pistol or 2 the blank pistol, did you ever see Joe Wesbecker use that 3 pistol? 4 A. Yes, I did. 5 Q. Would you tell us how you saw him use that? 6 A. Well, I did see him put it to some girl's head 7 one night. 8 Q. And under what circumstances did he do that? 9 A. Well, it resulted into a statutory rape 10 situation. 11 Q. Did that involve an arrest and a situation -- 12 A. Yes, it did. 13 Q. -- in which he was put into jail, sir? 14 A. Yes, sir. 15 Q. Before we get to that instance, sir, had he ever 16 used that pistol and pointed it at anyone else, sir? 17 A. Yes, sir. 18 Q. Under what sorts of circumstances would he point 19 it at someone else or use it that you saw or observed? 20 A. Just to frighten someone, I guess. 21 Q. Would he just point it or would he sometimes 22 pull the trigger? 23 A. Sort of point and pull the trigger. The gun 24 didn't hurt -- wouldn't hurt anyone. 25 Q. But would the person that was -- 17 1 A. It was very frightening. 2 Q. Now, sir, in connection with the -- I think you 3 said statutory rape incident, sir? 4 A. Correct. 5 Q. Did that involve Joe Wesbecker having sex with a 6 young lady? 7 A. Yes. Yes, it did. 8 Q. And as a result of that, was he charged and 9 arrested? 10 A. Yes, sir. 11 Q. And in connection with that incident, sir, was 12 he put into jail? 13 A. Yes, sir. 14 Q. About how old was he at that time, sir? 15 A. Sixteen or seventeen. 16 Q. And where was he put into jail, sir? 17 A. 514 West Libery, the building that we're in now. 18 Q. In this building? 19 A. Yes. 20 Q. And what was that facility or this facility at 21 that time, sir? 22 A. It was the old jail house. 23 Q. And was it for juveniles or for adults or what 24 was it? 25 A. It was for juveniles and adults. 18 1 Q. And in this building, sir, where was he put in 2 connection with the other prisoners in the building? 3 A. On a special walk. It was a federal walk. 4 Q. And were there juveniles or adults on that walk? 5 A. Mostly adults. 6 Q. Mr. Conn, how did Mr. Wesbecker react or handle 7 being in jail with male adults on that occasion, sir? 8 A. There was -- it was -- he had no communications 9 with other prisoners. 10 Q. How long was he in jail, approximately, sir? 11 A. I think around nine days. 12 Q. During that period of time, sir, what was his 13 reaction to being in jail? 14 A. Naturally, he didn't like it and he had 15 expressed suicide. 16 Q. Did he express suicide in terms of doing 17 something to take his own life? 18 A. Yes. 19 Q. What means? 20 A. I think one was to throw himself down a flight 21 of steel steps. 22 Q. Any others? 23 A. To, I think, try to slice his wrists. 24 Q. Did he ever mention cutting an artery in his 25 leg? 19 1 A. Yes. In his thigh, yes. 2 Q. Mr. Conn, after he was released from jail on 3 that occasion, sir, were there any terms given as to what 4 would happen to him if he got into trouble again? 5 MS. ZETTLER: Objection. Calls for speculation. 6 JUDGE POTTER: I'm going to sustain it unless 7 there's a foundation shown why this Witness would know. 8 MR. STOPHER: May we approach the bench on this, 9 Your Honor? 10 (BENCH DISCUSSION) 11 MR. STOPHER: Your Honor, he's testified that 12 when they were released that they were told -- Mr. Wesbecker 13 was told that if he got in trouble again within the next five 14 years that there would be a longer jail time, and it is a 15 matter that he has firsthand knowledge of. 16 MS. ZETTLER: What he testified to -- and I 17 think Mr. Stopher should show the exact page -- is that 18 probably he would have -- 19 JUDGE POTTER: What is the relevance of it 20 anyway? 21 MR. STOPHER: In the sense that he was not 22 exonerated and acquitted; he was released on the terms that if 23 he got into trouble again he'd be in jail. 24 MS. ZETTLER: Could we have a page then? 25 MR. STOPHER: Page 28, here it is, Judge, 20 1 Line 5. 2 JUDGE POTTER: Okay. I'm going to sustain the 3 objection. 4 (BENCH DISCUSSION CONCLUDED) 5 Q. Mr. Conn, in connection with Mr. Wesbecker, 6 after that incident did your relationship with him remain a 7 social one from that time until the time he got married? 8 A. Yes. 9 Q. And after he got married what happened to your 10 relationship? 11 A. We just kind of went our separate ways when Joe 12 got married. He was very serious about it and become a family 13 man. 14 Q. Did you have much contact with him, sir, during 15 the last seven or eight years before this incident occurred at 16 Standard Gravure? 17 A. Hardly any. 18 Q. Hardly any? 19 A. Yes. 20 Q. Did you ever have any occasion to ever talk to 21 him about anything of substance that you recall at all during 22 that last seven or eight years? 23 A. No, not really. 24 Q. All right, sir. Thank you. That's all I have. 25 JUDGE POTTER: Ms. Zettler? 21 1 MS. ZETTLER: Just a couple, Your Honor. 2 3 EXAMINATION ___________ 4 5 BY_MS._ZETTLER: __ ___ _______ 6 Q. Good morning, Mr. Conn. My name is Nancy 7 Zettler. I'm one of the attorneys for the Plaintiffs in the 8 case. Okay? 9 A. Okay. 10 Q. We've never met before today, have we? 11 A. No. 12 Q. I know this is really embarrassing, but Mr. 13 Stopher has raised some very important issues so I'd like to 14 ask you a few questions. Okay? So bear with me for a couple 15 minutes. Okay? You were involved in the statutory rape 16 charge along with Mr. Wesbecker, weren't you? 17 MR. STOPHER: Objection, Your Honor. 18 JUDGE POTTER: Overruled. 19 A. Yes. 20 Q. And you were in jail with Mr. Wesbecker here in 21 the Old Jail Building? 22 A. Yes, I was. 23 Q. There was no force involved in that incident, 24 was there? 25 A. No, there wasn't. 22 1 Q. The sex that you and Mr. Wesbecker had with this 2 one or two other girls was purely consensual, wasn't it? 3 A. Yes, it was. 4 Q. In fact, there was no gun used in that incident, 5 was there? 6 A. Yes, there was. 7 Q. Do you remember giving your deposition in this 8 case? 9 A. Yes, I do. 10 Q. Do you remember Mr. Stopher asking you some 11 questions and you gave the answers under oath? 12 A. Yes. 13 Q. On Page 186 of your deposition, do you remember 14 being asked this question and giving this answer: "Was there 15 a" -- 16 MR. STOPHER: What line? 17 MS. ZETTLER: I'm sorry. Line 17. 18 "Was there a pistol involved in this incident? 19 "Answer: There was a blank pistol in the car 20 but it wasn't actually involved in the incident, but there was 21 a blank pistol there." 22 Do you remember giving that answer? 23 A. Yes. The girls knew that it was not a real gun. 24 Q. During your deposition you say it wasn't 25 involved in the incident, Mr. Conn. Then at Page 19, you were 23 1 asked at Line 16: "Did the girls claim that they were held at 2 gunpoint? 3 "Answer: Oh, no. No. It wasn't anything like 4 that at all. It was the girls' parents that -- you know, like 5 I said, this was -- took place three weeks after the 6 incident." 7 A. That's correct. 8 Q. You guys were pretty young when this happened, 9 weren't you? 10 A. Oh, yeah. 11 Q. And you were over here in jail with a bunch of 12 adults; correct? 13 A. Yes. 14 Q. And some of those adults were harassing you 15 guys, weren't they? They were going to -- saying things to 16 you like suggesting that they were going to molest you? 17 A. We were put in a cell that was a screened cell 18 that we weren't mixed with other prisoners. 19 Q. But did they yell at you from other parts of the 20 facility? 21 A. Well, they probably did. I don't recall at this 22 time. 23 Q. You don't recall the male prisoners suggesting 24 that you were going to be executed for what you did and that 25 they were going to molest you and things of that nature? 24 1 A. They may have. At the present time, I don't 2 recall that. 3 Q. You were pretty scared, weren't you? 4 A. Absolutely. 5 Q. And Mr. Wesbecker was pretty scared, wasn't he? 6 A. Absolutely. 7 Q. In fact, when he talked about suicide, you 8 weren't sure if he was just kidding around or if he was 9 serious, were you? 10 A. That's correct. 11 Q. You testified when Mr. Stopher was questioning 12 you about drinking and driving when you were kids? 13 A. Yeah. 14 Q. Was that common with everybody that you hung 15 around with? 16 A. Oh, yes, it was. 17 Q. In fact, Joe wasn't any different than any of 18 the other guys that you hung around with? 19 A. Yes. 20 Q. He was a typical teenager? 21 A. He was. 22 Q. In fact, he wasn't any different in school or 23 out of school than any of the rest of you guys, was he? 24 A. I would think not. 25 Q. In fact, you testified in your deposition that 25 1 you don't recall whether or not you even ever saw Joe 2 Wesbecker drunk; correct? 3 A. I don't ever recall him ever being drunk. 4 Q. You never saw Joe Wesbecker become violent 5 towards anybody, have you? 6 A. No. 7 Q. That's all I have. Thank you. 8 MR. STOPHER: Nothing further, Your Honor. 9 MS. ZETTLER: I'm sorry, Judge. I have one 10 other question. 11 You testified earlier that when Joe got married 12 he became a family man; correct? 13 A. Yes. 14 Q. And he calmed down at that point and didn't hang 15 around with you guys anymore; correct? 16 A. He had no other friends other than his wife and 17 family. 18 Q. He had you guys earlier, you guys and the -- 19 A. He isolated himself from the old gang. 20 Q. He settled down? 21 A. Yes, he did. 22 Q. He became serious about being a husband and a 23 father? 24 A. Yes, he did. 25 Q. Thank you. 26 1 JUDGE POTTER: Thank you very much, sir. You 2 may step down; you're excused. 3 Mr. Stopher, do you want to call your next 4 witness? 5 MR. STOPHER: Yes, Your Honor. We'll read the 6 deposition of Donald Jackson. 7 JUDGE POTTER: Ladies and gentlemen, as I 8 mentioned to you-all before, the deposition is sworn testimony 9 taken down prior to trial and read to you. When this happens 10 you will give the testimony the same effect you would -- and 11 weight you would as if the person were here testifying live. 12 Mr. Stopher. 13 14 (THE FOLLOWING PORTIONS OF THE DEPOSITION OF 15 DONALD JACKSON WERE READ BY MR. EDWARD STOPHER 16 READING THE QUESTIONS AND MR. ROBERT McCLURE 17 READING THE ANSWERS) 18 19 MR. STOPHER: This is the deposition of Donald 20 Jackson taken on April 27, 1993, in Centralia, Illinois. Mr. 21 Jackson was sworn and examined, testified and deposed as 22 follows: 23 24 25 27 1 EXAMINATION ___________ 2 3 BY_MR._STOPHER: __ ___ _______ 4 Q. Would you state your name for us, please, sir. 5 A. Donald Bruce Jackson. 6 Q. Do you feel, sir, that you are physically and 7 mentally able to testify today and to respond to the questions 8 as they are asked? 9 A. Well, I don't -- I don't see why a heart attack 10 would cause you not to remember things, but my wife says I'm 11 not remembering everything, but I believe I can. 12 Q. Okay. Subject to the criticisms that wives 13 nearly always have of their husbands' memories -- 14 A. Right. Right. 15 Q. -- you don't think that there is any other real 16 reason why you can't testify today? 17 A. No. 18 Q. Okay, sir. Let me ask you, first of all, sir, 19 where do you presently live? 20 A. 3522 Shawnee Lane, Salem, Illinois. 21 Q. And how old are you presently, sir? 22 A. Fifty-one. 23 Q. And your date of birth, please? 24 A. 10-23-41. 25 Q. And Social Security number, sir? 28 1 A. 407-56-6486. 2 Q. Where are you originally from, sir? 3 A. Louisville, Kentucky. 4 Q. Born there? 5 A. Born there. 6 Q. Go to school in Louisville, sir? 7 A. Yes. 8 Q. And attend high school in the Louisville area? 9 A. Iroquois, south of Louisville. 10 Q. And did you graduate from Iroquois? 11 A. No. 12 Q. Stopped in what grade, sir? 13 A. It was the 11th. I just -- 14 Q. Okay. 15 A. -- went -- 16 Q. Went until you got to be 16? 17 A. Well, my father died and I went to work. 18 Q. Needed the money? 19 A. Yeah. 20 Q. Okay sir. Where did you go to work, sir? 21 A. Well, just any job I could get, but when I was 22 18, I went to work at Fawcett Printing. 23 Q. Okay. That was the old Fawcett Printing Company 24 at 11th and Broadway; is that correct? 25 A. Yes. 29 1 Q. And you started there when you were 18 years of 2 age, so that would have been about 1959 or 1960? 3 A. 1960. 4 Q. And I would assume that you probably started 5 there as a fly-boy; is that correct, sir? 6 A. Right. March of '60. 7 Q. Okay. I would assume from others that I've 8 talked to that you probably worked your way up to being a 9 pressman; is that correct, sir? 10 A. Yes. 11 Q. How long, then, did you remain with Fawcett? 12 A. Till we were bought out. In 1976, we came up 13 here. 14 Q. In about the mid '70s, then, Fawcett was bought 15 out and the operation was transferred from Louisville to 16 Centralia or to Salem? 17 A. Salem, Illinois. 18 Q. All right. And you transferred to this area at 19 that time to keep your job with the company; am I right? 20 A. Yes. 21 Q. Who do you -- who did you work for then in the 22 mid '70s, when you came to this area? 23 A. World Color Press. 24 Q. And have you continued with World Color Press 25 from that time on? 30 1 A. Yes. 2 Q. All right, sir. Mr. Jackson, I realize it's 3 been a long time since you worked at Fawcett in the '60s and 4 the '70s in Louisville, Kentucky, but that's the period that 5 I'm interested in. And so I apologize for the fact that I am 6 asking you to recall things that occurred 20 to 30 years ago, 7 but it is that time period that I am most interested in. 8 A. Thirty-three years ago. 9 Q. Thirty-three years ago to be exact. In that 10 time period, sir, I would assume that as a fly-boy and as a 11 pressman, that you worked in the pressroom almost exclusively 12 at Fawcett; is that true? 13 A. Yes. 14 Q. And I believe that in December of 1960, that Joe 15 Wesbecker also started at Fawcett Printing as a fly-boy? 16 A. I think so. I think that's about right. Six 17 months' difference between us, I think. 18 Q. All right, sir. You were there about six months 19 earlier than he was? 20 A. Yes. 21 Q. Had you known him before he started at Fawcett? 22 A. No. 23 Q. Didn't know of him in any way? 24 A. No. 25 Q. It's my understanding, sir, that he worked there 31 1 from December 5, 1960, until May 14, 1971? 2 A. I think so. I didn't know when they left, but 3 it was around there somewhere. 4 Q. So if my understanding is correct, you worked at 5 least in the same plant with him for about 10 or 11 years? 6 A. Yes. 7 Q. Okay. During part of that time both of you were 8 fly-boys? 9 A. We worked right together. Not only the same 10 plant but -- 11 Q. The same shift? 12 A. Just about. 13 Q. And the same job and pretty much same 14 everything; am I right? 15 A. Yeah. Yeah. 16 Q. And I would assume that after you were fly-boys, 17 you both became apprentices? 18 A. Yes. 19 Q. And then eventually became journeymen pressmen? 20 A. Yes. 21 Q. Let me ask you about him, sir. Let's deal with 22 the time period -- first of all, is it possible for you to 23 divide your contact with him into the stages in which you were 24 both fly-boys and then apprentices and then journeymen or does 25 it all just kind of run together in your mind? 32 1 A. I was a fly-boy for seven years, from '60 to 2 '67, I guess. I know seven years. 3 Q. Was he a fly-boy about that same period of time? 4 A. About six months. Well, let's see. I got my 5 card in -- before he did. There was two of us got a card that 6 day, and he might have got his six months later or something 7 like that. 8 Q. Okay. When you say you got your card, I assume 9 you are talking about your apprentice pressman's card? 10 A. No. That was the journeyman's card. 11 Q. Journeyman's card? 12 A. Yeah. 13 Q. Okay. I take it that being a fly-boy and an 14 apprentice are kind of the same? 15 A. Yeah. You get a little more money for the 16 apprentice, but if somebody doesn't come in or something, you 17 go back to flying books. 18 Q. Okay. Mr. Jackson, can you explain to us in 19 those days what a fly-boy did at Fawcett? 20 A. Well, mostly, it was just picking up books off 21 the press and putting them on a skid. If the press went down, 22 you cleaned it up or whatever had to be done to get the web 23 back in and get the press started again, running books again. 24 Q. When you say books, are you really referring to 25 magazines? 33 1 A. Magazines, just inserts. Not the covers, just 2 the pages. 3 Q. And I would assume that from what you have just 4 told me, that the job of the fly-boy was to take those inserts 5 or magazines and to stack them so they could be shipped on a 6 pallet? 7 A. Yes. To the bindery to be covered with a cover. 8 Q. Okay. Would the fly-boy be the person that 9 would try to arrange those stacks of magazines or inserts 10 neatly and in straight stacks? 11 A. Yes. 12 Q. Was that the primary job of the fly-boy, was to 13 do that? 14 A. Yes. 15 Q. You mentioned earlier that you worked on the 16 same shift with Joe Wesbecker? 17 A. Same press with him a lot. 18 Q. And same press. What shift, generally, did 19 you-all work? 20 A. All three of them. 21 Q. All three of them. You would rotate around? 22 A. Every month. 23 Q. I take it they ran three shifts, five or seven 24 days a week? 25 A. Seven days a week, most of the time. 34 1 Q. What kind of a worker was he in those days, sir? 2 A. He was very good. 3 Q. Did he pay attention to detail? 4 A. Yeah. He was real neat. 5 Q. When you say he was real neat, he was neat in 6 the way he looked and in the way he kept things? 7 A. Both. Clean area. Tried to, probably, stack 8 better than you, stack better than the next guy. 9 Q. In other words, he wanted his stacks of 10 magazines or inserts to be very straight and very uniform, 11 with sharp edges? 12 A. Right. 13 Q. Was he somewhat competitive in that he wanted 14 his stacks to be better than your stacks? 15 A. Yes. 16 Q. I've heard some people from time to time mention 17 that at least in certain instances he tended to be a 18 perfectionist? 19 A. I'm not a -- you know. I don't -- I think so. 20 Q. You saw some traits of that, at least in the way 21 he stacked books and kept his work area clean? 22 A. And hisself. He kept hisself clean, too. 23 Everybody else was -- had ink all over them until the end of 24 the day or until -- you know, wash a couple times during the 25 day, but you didn't see very much ink on him very often. 35 1 Q. What about his work area, was he neat with 2 regard to that? 3 A. Yes. 4 Q. How would he do that? 5 A. Well, I never noticed any different way. He 6 just cleaned -- mopped and swept, just kept it clean. 7 Q. And did he take some pride in keeping his area 8 clean? 9 A. Yes. 10 Q. What if the area was messy, how would he react 11 to that? 12 A. He wouldn't like it because somebody -- the 13 other shift left it that way, you know, a lot of times. Well, 14 I wouldn't either, though. 15 Q. I understand, sir. What would he do about that 16 if the area was messy left by a previous shift? 17 A. Much other than complain, I don't know of 18 anything else he done. I know he complained. 19 Q. Okay. Would he report it to somebody or would 20 he just kind of -- 21 A. I don't think so. 22 Q. -- complain and gripe about it -- 23 A. To me. 24 Q. -- on the job? To you? 25 A. Yeah. To me. 36 1 Q. All right, sir. You mentioned that he was also 2 neat in the way he looked and the way he kept himself clean? 3 A. Yeah. 4 Q. Do you recall any particular instances or 5 examples of how he would keep himself clean? 6 A. Well, we had -- used naphtha in a bucket. It 7 was a cleaning fluid, which we really shouldn't use, but we 8 would do that, and then you would go wash your hands in like a 9 trough, water, turn it on, off, wash your hands there, and he 10 would do that, run real fast and do it and then go catch the 11 books. I just didn't feel to run up there real quick. You 12 know, I would go get it later. 13 Q. So the object was to use the naphtha, race to 14 the sink, wash your hands and get back before the books got 15 out of control? 16 A. Right. 17 Q. Did he wash and keep himself cleaner than other 18 people at the plant? 19 A. I would probably say he did. 20 Q. Would you say that he washed his hands very 21 frequently, perhaps even to the point of sometimes being a 22 little overly involved in that? 23 A. I just noticed when he was dirty, you know, he 24 wouldn't let his stay dirty. Other people would. 25 Q. Did he have any nicknames in those days, sir? 37 1 A. Pinky. 2 Q. Pinky? 3 A. Pinky. I don't know why. I didn't call him 4 that. 5 Q. Okay. Others did? 6 A. Yeah. 7 Q. Okay. 8 A. I called him Fat Boy sometimes. 9 Q. You called him Fat Boy. I take it that he 10 tended to be overweight at that time? 11 A. Yeah. 12 Q. Were there any other nicknames that he was known 13 by? 14 A. No. Oh, yeah. Wespecker, you know, things like 15 that that they would call him. 16 Q. They would change his last name and call him 17 Wespecker sometimes? 18 A. Yeah. 19 Q. In those days at Fawcett, I would assume that 20 from time to time there would be occasions when you and he 21 would talk about things other than work? 22 A. Yes. I've got pictures of him, and we went out 23 together. I mean, his wife, his first wife, Sue, and my wife, 24 we went to dances. We had a chance to talk, yeah. I knew his 25 children. 38 1 Q. You knew his two sons? 2 A. Children, yeah. 3 Q. Did you sometimes go to their home -- 4 A. Now, I didn't know them personally because they 5 were little. They didn't know me, but I would pick them up. 6 Q. They were small boys at the time? 7 A. Yes. 8 Q. You and your wife and Joe Wesbecker and Sue 9 Wesbecker would sometimes go out together? 10 A. Yes. But they've been to our house, too. 11 Q. All right, sir. When the four of you would go 12 out, what sorts of things would you do and where would you go 13 in those days? 14 A. Like a dance in Louisville, you was talking 15 about and, Joe, he didn't drink as much as the rest of us. He 16 might have a few, but not -- we might have too many. 17 Q. When he would drink, what would he drink? 18 A. Beer. 19 Q. Was he the person that would organize these 20 get-togethers or would he be more of a follower? 21 A. Well, we already did it, see, and he went with 22 us, come with us mostly. 23 Q. I see. 24 A. He wouldn't go with anybody, certain people, 25 just -- probably just us. 39 1 Q. All right. I was going -- that was going to be 2 my next question. Was it a big group or was it just the four 3 of you, usually? 4 A. No. Sometimes there were several other, but, I 5 mean, it was just a certain group. He wouldn't go with a lot 6 of people, though. 7 Q. There was some guys he just didn't get along 8 with? 9 A. Well, he just had very few friends, a couple. 10 Q. He was kind of a private person in those days? 11 A. Yeah. 12 Q. I take it his primary involvement with you was 13 that the two of you were good friends and you hit it off and 14 your wives got along, and sometimes on days when you wouldn't 15 be working, you would go out dancing and have some fun 16 together; is that a fair statement? 17 A. Maybe five times. 18 Q. Okay. In the whole time you worked with him? 19 A. Yeah. 20 Q. Did he have -- did he have any other close 21 friends there, other than you, sir? 22 A. Yeah. The guy that's coming in today. 23 Q. Mr. Lattray? 24 A. Yeah. 25 Q. Okay. Other than Mr. Lattray and yourself, 40 1 anyone else there that he was close to? 2 A. Not that I know of. 3 Q. Okay. How did he get along at Fawcett, first of 4 all, with regard to the bosses, the foremen or the 5 supervisors? 6 A. Pretty good, it seemed like. 7 Q. Ever any troubles that you were aware of with 8 regard to them? 9 A. No, not really. 10 Q. How did he get along with the other workers 11 there, the other pressmen and so forth, other than you and 12 Mr. Lattray? 13 A. Tim used to -- we used to try to -- I'll put 14 it -- I don't know how to put it -- screw each other, you 15 know, out of minutes here and there. It was all fun, slap 16 each other on the head, do anything, just fun. 17 Q. Just to break up the monotony of the work? 18 A. Yeah. Yeah. Them fumes and stuff probably make 19 you half crazy anyway. 20 Q. How would he get along with that sort of 21 horseplay? 22 A. Okay, with us. 23 Q. Okay. How did he get along with other people? 24 A. I don't know. He might not like it. 25 Q. He didn't take it so well? 41 1 A. We could get away with more than anybody else. 2 Q. All right. If somebody else slapped him on the 3 head, other than the two of you, he might not react so 4 humorously to that? 5 A. Probably not. 6 Q. In those days, sir, I take it that there was 7 quite a bit of exposure to solvents at Fawcett; is that the 8 way that you recall it? 9 A. Yeah. 10 Q. They would be solvents like toluene and xylene 11 and naphtha and others? 12 A. Yes. 13 Q. You've worked in and around printing facilities 14 all of your life virtually; am I correct? 15 A. Yes. It was a lot worse down there. 16 Q. That's what I was going to ask you. How did 17 that air environment compare to other environments in printing 18 facilities through the years? 19 A. It was pretty bad. You had a bad taste when you 20 come out of there in your mouth. It was almost like sometimes 21 you were inebriated or drunk or whatever you want to call it. 22 Q. You would get light-headed sometimes? 23 A. Yeah. You was actually drunk. 24 Q. During the years that you knew him there, did he 25 ever talk with you about his personal background and his 42 1 family situation when he was growing up? 2 A. Not once. 3 Q. Not once? 4 A. Not to me. 5 Q. Never mentioned his mother or his father? 6 A. No. I thought that was strange, but he never 7 did, because we were pretty close about everything else. 8 Q. But that was a topic that he just never talked 9 about? 10 A. Not to me. 11 Q. Okay. Did he ever talk with you, sir, about 12 what he -- what his goals in life were and what he wanted to 13 try to accomplish? 14 A. I know he wanted to send his kids to college. I 15 know that. 16 Q. Did he tell you any particular reasons why he 17 wanted to do that? 18 A. He didn't graduate from high school, either, 19 like I didn't, and he wanted his kids to graduate. I know 20 that. I don't think he was too happy about not graduating. 21 Q. Did he ever mention to you why he did not 22 graduate? 23 A. No. 24 Q. I take it, therefore, it was his goal to work 25 and to provide enough money for his sons to go to college and, 43 1 at the same time, that he wanted them to continue in school so 2 they could go to college? 3 A. Yes. 4 Q. Did he discuss any other goals or things that he 5 wanted to try to accomplish in life with you? 6 A. No. Joe, he liked to save his money. He always 7 saved his money. 8 Q. Did he ever mention why he was saving money, 9 other than to take care of his sons and educate them? 10 A. No. Not that I know of. 11 Q. Okay. Did he ever discuss with you, sir, how he 12 was saving money and what he was doing with the money that he 13 saved? 14 A. Several times. Not all of it. He wouldn't tell 15 you everything, but he bought stock, Chi-Chi's. I know he 16 told me that one day. I said, "So did I." Whether I did or 17 not, I probably told him that I bought more than him. 18 Q. You just didn't want him to be one up on you? 19 A. Right. 20 Q. Did he -- did he study about stocks and 21 investing? 22 A. Not at the time I knew him; he might have later. 23 He was just saving money, you know, probably wasn't in stock. 24 I saw him when I was talking about that Chi-Chi's, I came back 25 to Louisville, but I can't think of what year it was. 44 1 Q. Sometime after 1976, I take it? 2 A. And I'm sure you would be interested in it, but 3 I can't say when it was, what year. I don't know if he was 4 on -- was it this Prozac? I don't know if he was on that. I 5 know he was on it from reading the paper. But when I saw him 6 at the White Castle, he was going to work, and I was talking 7 to him but he wasn't there. He wasn't seeing -- he was like 8 he was looking through me, you know. I mean, it wasn't the 9 same Joe at all. 10 Q. And that was sometime after 1976? 11 A. Yes. 12 Q. Mr. Jackson, is there any way to determine when 13 you were there in Louisville? 14 A. That's what I've been trying to do because I 15 know... 16 Q. Okay. 17 A. You know, but I just can't remember. 18 Q. All right. Let me see if I can possibly help 19 you or me establish when that was. First of all, did you -- 20 have you just been back to Louisville one time since you left 21 in 1976? 22 A. No. 23 Q. You have been back many times; is that true? 24 A. Seventy-five. 25 Q. Seventy-five times? 45 1 A. (Nods head affirmatively). 2 Q. And the witness nods head up and down. Is that 3 a yes? 4 A. Maybe not -- 50 to 75. 5 Q. Okay. But a good many times? 6 A. Well, I went 9 weekends -- 13 weekends in a row 7 one time. 8 Q. Okay. 9 A. So, yeah. 10 Q. Okay. I take it, though, from what you are 11 telling me, that prior to your mother's death in 1984, you 12 went back very often? 13 A. Right. 14 Q. And since her death, you have only been back to 15 Louisville maybe three or four times? 16 A. Yes. Because of all the trouble I have been 17 having with my back and my heart -- well, just my back. 18 Q. Okay, sir. Now, I take it that you can't place 19 which year, whether it was before your mother died or after 20 your mother died that you saw Joe Wesbecker at the White 21 Castle? 22 A. No. And that's what I have been trying to do. 23 Q. Okay, sir. 24 A. I just can't. 25 Q. All right. Where -- which White Castle are we 46 1 talking about? 2 A. Seventh and Berry. 3 Q. Do you have any recollection, sir, as to what 4 time of the day and night -- 5 A. It was nighttime, late. 6 Q. Late at night? 7 A. He was going to -- he was going to work on the 8 third shift. 9 Q. So he was still working? 10 A. No, he was going -- going to go to work on the 11 third shift, he had to go. 12 Q. But I meant he was still working -- 13 A. Still working. 14 Q. -- for Standard Gravure and working in the 15 pressroom? 16 A. I know that because he said he had to go to 17 work. 18 Q. Okay, sir. And were you and your wife there, 19 and then he came in, or was it the other way around? 20 A. He was coming out as we was going in. 21 Q. All right, sir. 22 A. And I thought he would even take off from work, 23 you know. It was that important to me to talk to him because 24 I hadn't seen him for so long. I said, "Take off from work. 25 We'll go somewhere together." 47 1 Q. All right, sir. 2 A. But he just had something else on his mind. 3 Q. Did he recognize you, sir? 4 A. Yeah. Yeah. 5 Q. He knew who you were? 6 A. Yeah. But I guess he just -- well, it kind of 7 hurt my feelings because I thought a lot more of him than he 8 did of me that night, you know. That's what it was to me. 9 Q. He didn't seem to be -- 10 A. Well, he did for a while and, "Yeah, Don," and 11 all that, but then he was just like he was looking through me 12 or thinking of something else. 13 Q. When you say it was like he was looking through 14 you, are we talking about the way his eyes looked or was it 15 something about his concentration? 16 A. He wanted to leave. He just wanted to go. Go 17 to work, I guess. It could have been late, but I don't think 18 so. That's when he mentioned -- 19 Q. That's when -- 20 A. I don't know whether I talked about money. I 21 might have said something about stocks. He said he had some 22 Chi-Chi's. I said, "Well, I got that, too." And then that's 23 about it. 24 Q. Did you ever call him during those years on the 25 phone or write him or anything or did he ever call you? 48 1 A. No, we didn't. 2 Q. Did you notice anything else different about him 3 on that occasion? 4 A. He might not have been as neat as he used to be. 5 That's what I thought, too. 6 Q. He didn't look as neat as he used to? 7 A. No. No. 8 Q. I take it from what you're telling me, he didn't 9 give you any information about himself or his family or how he 10 was getting along? 11 A. No. 12 Q. None at all? 13 A. No. 14 Q. Okay, sir. All right. Let me go back, sir, to 15 the 1960s, and I apologize for jumping ahead and talking about 16 that meeting at the White Castle, but it just kind of came up, 17 so let's go back to the '60s for a moment, sir. Okay? 18 A. Okay. 19 Q. When you worked with him down there at Fawcett, 20 did he ever discuss with you or mention to you anything about 21 guns or weapons or firearms? 22 A. No. He didn't have any guns. He didn't know 23 anything about guns. 24 Q. Did he have any interest in -- 25 A. No. 49 1 Q. -- hunting or in using weapons? 2 A. He wouldn't hurt a bird or anything, you know. 3 He wouldn't want to shoot it. 4 Q. So as far as you knew, he didn't have any guns 5 and didn't have any interest in guns? 6 A. No. I know he didn't. 7 Q. Did you ever notice any nervousness or nerve 8 problems that he had in those days back in the '60s, when he 9 worked at Fawcett? 10 A. He was always serious. 11 Q. Pretty intense sort of a person? 12 A. Yeah. I would try to wrestle with him or 13 something, lighten him up sometimes, say, "Come on, Joe." 14 Q. Get him in a headlock? 15 A. Yeah. And throw him around a little bit or 16 something. 17 Q. Would he sometimes take that and laugh about it? 18 A. He would always, me and him, you know. 19 Q. He worked a lot of overtime? 20 A. Yeah. 21 Q. It's my understanding that on May the 14th, 22 1971, he was laid off at Fawcett? 23 A. He mentioned that a lot. 24 Q. Okay, sir. 25 A. He hated that. 50 1 Q. Tell me what occurred. 2 A. Oh, I don't know what occurred that day or 3 anything, but when he was laid off -- 4 Q. Yes, sir. 5 A. -- well, he didn't think that was right. Well, 6 I didn't, either. 7 Q. What did he think was wrong about it? 8 A. Was improper. Well, he thinks after ten years 9 or so, they ought to keep you in there no matter what you are 10 doing because you worked -- kept you cleaning the press or 11 doing something. 12 Q. On that particular layoff, apparently that 13 seemed to upset him more than -- 14 A. Yeah. It was '60 -- what year, sir? 15 Q. '71. 16 A. '71? 17 Q. That was the last day he worked there. 18 A. Oh, then he went to Courier-Journal? 19 Q. Yes, sir. Standard Gravure. 20 A. See, that was a sudden thing. He didn't tell us 21 nothing. 22 Q. He didn't? 23 A. No. It surprised me. I didn't think he had the 24 guts. 25 Q. To leave Fawcett and go to Standard? 51 1 A. Right. Right. And he surprised me there. 2 Q. Did he ever tell you why he did it? 3 A. No. But I figured it was because he -- I says, 4 "Does he know something I don't know?" Surely, he couldn't 5 have knowed four or five years ahead of time, but he might 6 have. Somebody could have -- 7 Q. In other words, he didn't stop working there 8 because the Fawcett plant was closing or being transferred at 9 that time? 10 A. No. That surprised me. I just thought if he 11 knew that, I could understand, but I don't see how he could 12 have known. 13 Q. So he didn't tell you or anybody else that he 14 was leaving; he just left and went to Standard Gravure? 15 A. He beat everybody. See, all the -- there was 16 older guys that had a lot more seniority than him, went later. 17 Lucas might have been the first, a guy named Lucas. 18 Q. Jim Lucas? 19 A. Yeah. Jim. I can tell stories about him. 20 Q. And some other guys moved over there later on; 21 right? 22 A. Yeah. 23 Q. After he went to Standard Gravure, you continued 24 working at Fawcett up until 1976; right? 25 A. Yes. 52 1 Q. When he transferred over to Standard Gravure, 2 sir, he had a physical exam and he had a hearing loss. Had he 3 ever mentioned that to you, that he was having a hearing 4 problem? 5 A. Yeah, I knew it. I made fun of him on that, 6 too. 7 Q. Okay. 8 A. I have one, too. That's why I am turned this 9 way. I can't hear anything out of this ear. 10 Q. Did you and he ever discuss why you had hearing 11 difficulties? 12 A. We knew why. 13 Q. And what was that, sir? 14 A. The presses. 15 Q. The noise from the presses in the pressrooms? 16 A. Yeah. They didn't start putting out earplugs 17 for 15 years. I mean, up here they started putting them out 18 in Illinois. I don't think they even put them out down there 19 in Kentucky. 20 Q. When you would tease him about his hearing loss, 21 how would he take that? 22 A. He would just take about anything I would put 23 out. 24 Q. Did you ever get the impression that he sort of 25 resented the fact that he had to work in conditions where the 53 1 air was bad and the noise was bad? 2 A. Yeah. Yeah. 3 Q. How would he -- what was his view on that? What 4 would he say about that kind of thing? 5 A. Well, one time they had a Doctor Grady 6 Roundtree, you have probably heard of him or his wife, he come 7 down there, and we'd be complaining, you know, to the union 8 and everybody. We was complainers, and -- about everything, 9 and -- well, we did complain a lot. Somebody had to or we -- 10 and he would come down there, get around the fumes, you know, 11 and he would go, "I don't smell nothing. I can't smell 12 nothing." Let's tie him in a chair over there in the corner 13 or something and we'll see how he feels in about an hour. 14 Q. Would he complain about the work environment 15 there and what it was doing to him? 16 A. Yeah. 17 Q. Did he ever get mad at anybody at work and stop 18 speaking to him, not even responding if they spoke to him? 19 A. I don't know. 20 Q. Was there anybody that Wesbecker really didn't 21 like at Fawcett? 22 A. I can't think of any enemies or anything like 23 that. I don't know. I just -- we just got along so good. 24 Q. You and he? 25 A. Yeah. 54 1 Q. Okay. All right. 2 A. We was friends. He was my buddy. 3 Q. Just two little areas, Mr. Jackson. When you 4 talked about Mr. Wesbecker, Joe Wesbecker talking about 5 fighting, you never saw him fight, though, did you? 6 A. No. 7 Q. Okay. By that, you never saw him fight with 8 anybody on the job or anything of that nature? 9 A. No. 10 Q. You're not implying from that that he was a 11 violent person or anything like that, are you? 12 A. No, I don't think he was. If it was, it was 13 just -- I don't think he was a violent person. 14 Q. I was a little confused when you were discussing 15 about -- or Mr. Stopher was asking you questions about him not 16 speaking to other people. And I wasn't sure whether it was 17 your testimony that he had a pattern of not speaking to people 18 or could you explain your testimony? Do you recall him not 19 speaking to other people? 20 A. No. He would speak to people, you know, because 21 he had several, like Timmy and I, I don't know whether we all 22 had something going, you know, I don't know. That's all I 23 meant. He would speak to people. 24 MR. STOPHER: That's the end of the deposition, 25 Your Honor. 55 1 JUDGE POTTER: Mr. Stopher, do you want to call 2 your next witness? 3 (BENCH DISCUSSION) 4 MR. STOPHER: Your Honor, we're calling Mr. 5 Croft, the gentleman with the heart condition. He says he 6 wants to speak to you, that he would not have given the 7 testimony that he gave in his deposition if he had thought 8 that it was going to be used in court or used for this 9 purpose. 10 JUDGE POTTER: We'll take our morning recess. 11 (BENCH DISCUSSION CONCLUDED) 12 JUDGE POTTER: Ladies and gentlemen, we're going 13 to take the morning recess. As I've mentioned to you-all 14 before, do not permit anybody to talk to you about this case; 15 do not discuss it among yourselves and do not form or express 16 any opinions about it. We'll stand in recess for about 15 17 minutes. 18 (JURORS ARE EXCUSED; MR. CROFT ENTERS 19 THE COURTROOM) 20 JUDGE POTTER: Sir, you wanted to say something? 21 MR. CROFT: Yes, sir. On July of '93, I got the 22 subpoena to go down to these attorneys to give a deposition on 23 August the 25th, '93. 24 JUDGE POTTER: Uh-huh. 25 MR. CROFT: And when the subpoena was delivered 56 1 to my door, the only thing I seen on the front of it, Your 2 Honor, was Joyce Fentress versus Shea Communications. 3 JUDGE POTTER: Uh-huh. 4 MR. CROFT: Now, I understand that I was under 5 oath, but I also know that I didn't have to volunteer 6 information that was going to be used against my peers. I 7 felt in my mind that if they were representing Eli Lilly it 8 should have been on the subpoena. 9 JUDGE POTTER: Okay. You are Mr. -- 10 MR. CROFT: Croft. 11 JUDGE POTTER: -- Croft. You would have had to 12 go down and testify no matter whose name was on the subpoena 13 or what the situation was. It's your obligation today just to 14 listen to every question carefully and answer the best you 15 can, and that's all I can say to you, sir. I know you and I 16 spoke last week about your health problem, and what I told 17 you, sir, is that if at any time you want to take a recess you 18 just say, "Judge, I'd like to take a recess," because you're 19 feeling bad or want some time. I also told you that this is 20 not going to -- you said your deposition lasted several hours. 21 I doubt seriously that this is going to last very long. We'll 22 take recesses. But, sir, even if they hadn't taken your 23 deposition they could have subpoenaed you to come testify. 24 It's just one of the obligations of citizenship is you've got 25 to tell what you know. If you said something in your 57 1 deposition that you don't think is correct, when they ask you 2 about it you tell the way you remember it today and then you 3 explain maybe why you said something different in your 4 deposition. Is there anything else you want to say to us, 5 sir? 6 MR. CROFT: No, sir. Thank you. 7 JUDGE POTTER: Why don't you have a seat right 8 there in the courtroom; that way, we won't have to come down 9 to get you. 10 MS. ZETTLER: We're going to object to his 11 testimony in whole because it's nothing more than cumulative 12 at this point. 13 JUDGE POTTER: I'm going to overrule the 14 objection. We may get there at some point, but I don't know 15 that we've gotten there yet. 16 (RECESS) 17 SHERIFF CECIL: The jurors are now entering. 18 All jurors are present. Court is back in session. 19 JUDGE POTTER: Please be seated. 20 Mr. Stopher, do you want to call your next 21 witness? 22 MR. STOPHER: Yes, Judge. James Croft. 23 JUDGE POTTER: Mr. Croft, can I get you to step 24 down here, sir. Mr. Croft, could I get you to step up here. 25 That's fine, sir. Would you raise your right hand. 58 1 JAMES CROFT, after first being duly sworn, was 2 examined and testified as follows: 3 4 JUDGE POTTER: Would you walk around here, sir, 5 and have a seat in that chair right there. Mr. Croft, would 6 you say your name loud and clearly for me, sir, and then spell 7 it. 8 MR. CROFT: James D. Croft. C-R-O-F-T. 9 JUDGE POTTER: And, Mr. Croft, you mentioned to 10 me that you may have a health problem. If at any time you 11 want to take a break or take a recess, let me know and we'll 12 stop. Okay? 13 MR. CROFT: Thank you, sir. 14 JUDGE POTTER: Mr. Stopher. 15 16 EXAMINATION ___________ 17 18 BY_MR._STOPHER: __ ___ _______ 19 Q. Mr. Croft, at any time, sir, that you want to 20 stop for any reason at all, as Judge Potter just mentioned, if 21 you'll just let us know, we'll stop immediately. There is 22 some water there in the cup in front of you, sir, and the 23 microphone in front of you is what picks up your voice, so if 24 you'll try to speak loudly into that, it will save you having 25 to repeat some things. Can you hear me all right, sir? 59 1 A. Yes, sir. 2 Q. Mr. Croft, would you begin by telling us where 3 you live, sir? 4 A. 2036 San Jose Avenue. 5 Q. And is that here in Louisville, sir? 6 A. Yes, sir. 7 Q. And, Mr. Croft, are you employed at the present 8 time? 9 A. No, sir. Retired. 10 Q. And how old are you, sir? 11 A. Sixty-two. 12 Q. And I think I understand that you presently have 13 a heart condition or heart trouble, sir; is that correct? 14 A. Yes, sir; I do. 15 Q. All right. Mr. Croft, were you employed at The 16 Courier-Journal? 17 A. Yes, sir. 18 Q. And about how long did you work at The Courier, 19 sir? 20 A. Twenty-three years. 21 Q. And about when did you last work there? 22 A. I retired from The Courier-Journal February the 23 16th, '87, and I went to work over at Standard Gravure 24 sometime about the spring of '88, I guess it was. 25 Q. And about how long then did you work at Standard 60 1 Gravure, sir? 2 A. I got out shortly after -- the 15th of September 3 of '89. I worked part time but when that happened, I got out. 4 Q. When the shootings occurred? 5 A. Yes, sir. 6 Q. All right. So you worked at Standard Gravure 7 did you say part time from the spring of 1988 until sometime 8 in the fall of 1989, sir? 9 A. Yes, sir. 10 Q. All right. Now, sir, during the period of time 11 that you did work at Standard Gravure, did you work in the 12 pressroom? 13 A. I worked all over. I was a machinist. 14 Q. And as a machinist, you worked wherever 15 something needed fixing or repairing or maintenance or 16 whatever; right? 17 A. Yes, sir. 18 Q. Okay. And that would include work in the 19 pressroom, I take it? 20 A. Yes, sir. 21 Q. Okay, sir. Now, sir, during the period of time 22 that you worked at Standard Gravure, did you know who Joe 23 Wesbecker was, sir? 24 A. Yes, sir. 25 Q. Had you known him while you worked for The 61 1 Courier? 2 A. Yes. I knowed him when he came to work there 3 because before Mr. Bingham sold the company or the companies, 4 we had one central machine shop that took care of the work for 5 all four companies. 6 Q. So even when you worked at The Courier, when the 7 Binghams owned all of it, you would do machinist work at 8 Standard Gravure, as well as at The Courier? 9 A. Yes, sir. I guess their work was probably 80 10 percent of our work. 11 Q. Okay. And during those years, then, you would 12 do work in the Standard Gravure pressroom? 13 A. Yes, sir. 14 Q. Even though technically you were an employee of 15 The Courier? 16 A. I was an employee of The Courier, not Standard 17 Gravure at that time. 18 Q. Right. Okay. But you would still work in the 19 Standard Gravure pressroom? 20 A. Yes, sir. 21 Q. Okay, sir. Now, during those periods of time 22 before the Binghams sold Standard Gravure to Mike Shea, did 23 you have much contact with Joe Wesbecker, sir? 24 A. I seen him almost every night when he was 25 working, but he usually worked the five-to-one shift, and I 62 1 worked the twelve-to-eight most of the time. So my shift -- 2 his shift overlapped one hour over mine. 3 Q. And during those years, sir, did you ever see 4 him off of the job, that is, at someplace other than Standard 5 Gravure? 6 A. No, sir. 7 Q. Before Mike Shea bought Standard Gravure, sir, 8 how did he get along, that is, how did Joe Wesbecker get along 9 at Standard Gravure? 10 A. I guess he done pretty well. He had maybe some 11 nerve problems and he didn't want to work on the folder. He 12 wanted to get off of the folder, and I think he had a little 13 trouble with that. 14 Q. Any other troubles that he had at Standard 15 Gravure before Mike Shea bought it, sir? 16 A. Not that I know of. 17 Q. What about after Mike Shea bought Standard 18 Gravure? 19 A. Well, evidently he had more troubles because he 20 was off from work for a long time. 21 Q. Did you know why he was off, sir? 22 A. Not exactly why. I think he had some nerve 23 problems and he was on long-term disability. 24 Q. After Mr. Wesbecker went off work on long-term 25 disability, did you ever see him, sir? 63 1 A. No, sir. Except when he would come in and 2 visit. 3 Q. And when he was on long-term disability, would 4 he sometimes come back in and visit? 5 A. He would come in at night once in a while. 6 Q. And on any of those occasions did you ever have 7 any contact with him, sir? 8 A. Not for long. Maybe shake hands with him. He'd 9 be talking to other people. I might say a few words and that 10 was about it. 11 Q. On any of those occasions, sir, when he would 12 come back in when he was off work on LTD, did you ever see him 13 show a letter or some letters about his disability? 14 MS. ZETTLER: Objection, leading. 15 JUDGE POTTER: Overruled. It's preliminary. 16 Q. Did you ever see anything like that, sir? 17 A. I seen him have a letter in his hand he was 18 showing to the union steward, Donald Frazier. 19 Q. And did you hear the conversations between 20 Donald Frazier and Joe Wesbecker? 21 A. Not really, because Donald Frazier told me later 22 it was a threatening letter about cutting his disability off. 23 Q. And I take it you didn't read the letter, sir? 24 A. No, sir. I didn't read the letter. 25 Q. All right. Did you hear the conversations 64 1 between Mr. Wesbecker and Mr. Frazier on that occasion, sir? 2 A. Very little of it because my pager went off and 3 I had to go on another job. 4 Q. What do you recall hearing? 5 MS. ZETTLER: Objection. Calls for hearsay. 6 JUDGE POTTER: Overruled. 7 Q. What do you recall hearing, sir? 8 A. I don't recall hearing too much between them 9 because when I walked up -- I was only there just a few 10 seconds -- and I spoke to him and shook hands with him and 11 their conversation kind of dropped, and then my pager went off 12 and I had to go. 13 Q. What did you hear, sir? 14 MS. ZETTLER: Same objection. 15 JUDGE POTTER: Overruled. 16 A. I really heard nothing of their conversation, 17 sir. 18 Q. Did you hear Joe Wesbecker say anything? 19 A. No, sir. 20 Q. Mr. Croft, do you recall giving your deposition 21 in this case under oath, sir? 22 A. Yes, sir. 23 Q. And did you comply with the oath on that 24 occasion, sir? 25 A. To the best of my remembering and to my 65 1 knowledge. 2 Q. Let me refer you, sir, to the deposition 3 testimony that you gave under oath on August 25, 1993. 4 A. Yes, sir. 5 Q. Do you recall that occasion, sir? 6 A. Yes, sir. 7 Q. Let me direct your attention, sir, to Page 25, 8 Line 11. Let me see if you recall giving these answers under 9 the same oath that day that you are under today, sir. 10 "Question: I think his name was Frazier. 11 "Answer: Frazier was union steward. And 12 Wesbecker came in one night. Don Steward -- I mean, Don 13 Frazier worked night work. He came in prior to the shooting, 14 a couple of months before that, and showed Don Frazier a 15 letter that Paula Warman had mailed him that they were going 16 to cut off his LTD. 17 "Question: LTD stands for long-term disability? 18 "Your answer: Right. They were going to cut it 19 off. He got a number of letters, I think, I don't know how 20 many, but he told -- he even told Don Frazier that he could 21 come in and wipe the whole place out. 22 "Question: And this was I think you said a 23 couple of months before the shooting? 24 "Answer: At least a couple of months." 25 Did you give that testimony under oath, sir? 66 1 A. Yes, I did, because Donald Frazier was the one 2 that told me what he said when I finished the job I was 3 working on and come back through later that morning. 4 Q. Well, let me ask you this, sir. Page 26, Line 5 25: "How are you aware that Mr. Wesbecker had that 6 conversation with Mr. Frazier? 7 "Answer: Because I was there when he was 8 talking to him." 9 Did you give that answer, sir? 10 A. I might have. 11 Q. Gave it under oath, sir? 12 A. I guess I gave it under oath, but I can't really 13 say that I was there and heard Wesbecker give that threat. I 14 know I talked to Frazier about it because I was concerned. 15 Q. You took the threat seriously, didn't you, sir? 16 A. Absolutely. 17 Q. And you talked with Mr. Frazier about the 18 threat? 19 A. Yes, sir. 20 MS. ZETTLER: Objection, Your Honor. Leading. 21 JUDGE POTTER: Overruled. 22 Q. What was the discussion with Mr. Frazier about 23 the threat? 24 A. Mr. Frazier said he was going to talk to Don 25 McCall, which he did, he told me he did. 67 1 Q. What else did he tell you about that? 2 A. He said Don McCall laughed about it. 3 Q. This was some two to three months before the 4 shootings occurred, sir? 5 A. Probably so. 6 MS. ZETTLER: Objection. That mischaracterizes 7 his testimony, Judge. 8 JUDGE POTTER: Sustained. 9 Q. How long was it before the shootings again, sir? 10 A. I'm not sure. Probably a couple months. 11 Q. Mr. Croft, before the shootings occurred, did 12 you ever hear Joe Wesbecker talk about getting even or doing 13 anything with regard to anybody in particular or to the plant 14 in general, other than this occasion, sir? 15 A. He didn't tell me he was going to get even, sir. 16 Q. Mr. Croft, before the shootings occurred, did 17 you notice Wesbecker's associations with any other people 18 there at the plant? 19 A. I did not see him that much. The only time I 20 would ever see him would be if he came in to visit. 21 Q. Did you know who he was close to or who he was 22 friendly with or who he wasn't close to or wasn't friendly 23 with? 24 A. To my knowledge, he had a lot of friends there. 25 Q. Did you know of anybody that he wouldn't speak 68 1 to? 2 A. I didn't notice that. 3 Q. Did you have any firsthand knowledge about what 4 his relationship was with anybody there in particular, either 5 friendly or unfriendly? 6 A. No, sir. I talked to him when he was around the 7 coffee pot. I thought he was a pretty knowledgeable person. 8 He could hold a conversation with you about a number of 9 subjects. 10 Q. But you're not aware of who he was close to or 11 who he wasn't close to while you worked there and while he 12 worked there? 13 A. No, sir. 14 Q. All right, sir. Mr. Croft, just one other 15 question, sir. Approximately how many times after Mr. 16 Wesbecker was on LTD did he come back in to the plant, to the 17 best of your recollection, sir? 18 A. That, I couldn't say except for the fact that I 19 might have seen him three or four times. He might have been 20 been in more; I just don't know. 21 Q. All right. That's all I have, sir. 22 JUDGE POTTER: Ms. Zettler, Mr. Smith? 23 MS. ZETTLER: Just one second, okay? 24 25 69 1 EXAMINATION ___________ 2 3 BY_MS._ZETTLER: __ ___ ________ 4 Q. Good morning, Mr. Croft. Just a couple 5 questions, okay? My name is Nancy Zettler and I'm one of the 6 attorneys for the Plaintiffs. Okay? 7 A. Uh-huh. 8 Q. We've never met before today, have we? 9 A. No, ma'am; not to my knowledge. 10 Q. Isn't it true that, at least as far as you were 11 concerned, Mr. Wesbecker was friends with Mr. Barger and 12 Mr. White, two of the people that he killed? 13 A. Yes. I would say so, because he talked to them 14 quite a bit. 15 Q. They were kind of buddies on the job? 16 A. Yes, ma'am. 17 Q. Thank you very much, sir. 18 JUDGE POTTER: You may step down; you're 19 excused. 20 Mr. Stopher, do you want to call your next 21 witness? 22 MR. STOPHER: Yes, Your Honor. The deposition 23 testimony of Tim Lattray. 24 MS. ZETTLER: Your Honor, may we approach? 25 (BENCH DISCUSSION) 70 1 MS. ZETTLER: Your Honor, Mr. Lattray's 2 deposition designations were not given to us until after we 3 had left this town and gotten back home. I have not had a 4 chance to read that deposition. We have not lodged, even 5 looked at or ruled on any objections. That name was not on 6 their list that they gave us the Friday before we left. It 7 was given to us after we left for the holiday week. 8 MR. STOPHER: She says the name was not on the 9 list. When was it mailed? 10 MS. FISHER: On the 21st. 11 JUDGE POTTER: I thought it was Friday. We sat 12 here and had a list. 13 MR. SMITH: He amended it and gave it to us 14 Monday. 15 MR. STOPHER: Judge, this was sent to them on -- 16 when was the designation? 17 MS. ZETTLER: The 22nd, Judge. 18 MR. STOPHER: We sent out the designations on 19 the 22nd and the 23rd, Judge. 20 JUDGE POTTER: Let's just go down the list that 21 we went over on Friday and we'll take him up at lunchtime or 22 this afternoon. 23 MR. STOPHER: All right. We'll move on to the 24 next one then. 25 (BENCH DISCUSSION CONCLUDED) 71 1 MR. STOPHER: Your Honor, we'll read the 2 deposition of Mary McCarty. 3 JUDGE POTTER: Ladies and gentlemen, again, I'll 4 remind you-all a deposition is sworn testimony taken outside 5 the courtroom prior to trial. You'll treat it just as you 6 would as if the witness were here testifying live. I know I 7 say this every time, but a person had an opportunity to 8 cross-examine the witness. And because you don't get some 9 cross-examination read to you you may forget that, that each 10 side has an opportunity to cross-examine the witness when 11 they're giving a deposition as they want to, just like at 12 trial. 13 Mr. Stopher. 14 15 (THE FOLLOWING PORTIONS OF THE DEPOSITION OF 16 MARY McCARTY WERE READ, THE QUESTIONS BEING 17 READ BY MR. EDWARD STOPHER AND THE ANSWERS 18 BEING READ BY MS. SERENA HIRN) 19 20 MR. STOPHER: This is the deposition of Mary J. 21 McCarty taken on Tuesday, January 5, 1993, and after she was 22 sworn, was examined and deposed as follows: 23 Q. Would you state your name for us, please. 24 A. Mary J. McCarty. 25 Q. Okay. Ms. McCarty, where do you presently live? 72 1 A. At -- I live at Trailer 22 in Scenic Acres in 2 Pleasure Ridge Park. 3 Q. And, Ms. McCarty, what is your Social Security 4 number? 5 A. 406-42-5077. 6 Q. And how old are you? 7 A. Fifty-nine. 8 Q. And your date of birth, please? 9 A. December the 24th, 1933. 10 Q. Christmas Eve, huh? 11 A. Yes. 12 Q. Are you married, Ms. McCarty? 13 A. Yes, I am. 14 Q. And your husband's name? 15 A. Robert Harris, Sr. 16 Q. And does he live with you at -- I assume it's 17 Robert Harris McCarty? 18 A. Senior, yes. I'm sorry. Yes. 19 Q. Does he live with you at No. 22 Scenic Acres? 20 A. Yes, sir; he does. 21 Q. Are either you or he employed outside of the 22 home? 23 A. He works about three hours a week at Rally's, 24 just something to do. 25 Q. And is that a particular Rally's? 73 1 A. I don't know which one. On Dixie Highway. So 2 many. 3 Q. Has he been doing that for some period of time? 4 A. No. He just started it right before Christmas. 5 Q. What was his regular employment? 6 A. He was a cook at Fort Knox for the army. 7 Q. And about how long did he do that? 8 A. Twelve years, I believe. 9 Q. And about when did he last work there? 10 A. Almost three years. 11 Q. Did he retire or is he on disability of some 12 sort? 13 A. No. He retired at 62. 14 Q. Have you ever worked outside of the home in the 15 last 10 or 15 years? 16 A. Yes. I worked at -- '86, I believe, I quit 17 Sandrella's Restaurant at Hikes Lane. 18 Q. Sandrella's? 19 A. I was a waitress. 20 Q. And about how long did you work there? 21 A. Around ten years, off and on. 22 Q. All right. Ms. McCarty, it's my understanding 23 that you were the sixth oldest child of Nancy Montgomery; is 24 that true? 25 A. Yes. That's right. 74 1 Q. And that made you about seven years older than 2 Joseph T. Wesbecker? 3 A. I think it was around nine, wasn't it? 4 Q. Excuse me. You are correct. You're nine years 5 older. 6 A. Nine years older than Joey, yes. 7 Q. Ms. McCarty, let me go back to some of those 8 early times in your life and some of the early times in his 9 life, if you can. And I recognize it's been a long time 10 ago -- 11 A. Long time. 12 Q. -- and your memory of those events may not be so 13 good, but on the other hand, it may be. And what we're 14 interested in is what you do remember truthfully and 15 accurately and completely. 16 A. Yes, sir. 17 Q. Your father was Mr. Montgomery? 18 A. Right. 19 Q. Whose first name -- 20 A. Yes, sir. 21 Q. -- was John, I believe. John T. Montgomery? 22 A. John Thomas Montgomery. 23 Q. And your mother was Nancy Montgomery? 24 A. Yes, sir. 25 Q. Okay. Your sister Martha was older than you. 75 1 She was the -- 2 A. The oldest. 3 Q. And Joseph T. Wesbecker is her son, of course? 4 A. Yes, sir. 5 Q. How was your father employed during his 6 lifetime; do you remember? 7 A. I remember he was first employed at Old Gold, 8 made tobacco. 9 Q. Oh, Old Gold -- 10 A. I think that's down on -- that was long years 11 ago. 12 Q. I remember the commercials. 13 A. And then two years before he died, he worked -- 14 went to work for the railroad, K & I Railroad. 15 Q. And apparently he died in March of 1944? 16 A. Yes, sir. 17 Q. And at that time you were still a young girl? 18 A. Yes. About ten. 19 Q. From that time on, it's my understanding that 20 you and your brothers and sisters and Joe Wesbecker lived 21 basically in the same household? 22 A. Oh, yes. 23 Q. Is that generally true? 24 A. Yes. We called him Brother because he was like 25 a brother. 76 1 Q. All right. Let me go back for just a few years 2 before that. It's my understanding that Martha married 3 Thomas R. Wesbecker? 4 A. Yes, sir. 5 Q. What do you recall about him, if anything? 6 A. A very wonderful person. 7 Q. And what sort of a man was he? 8 A. Now, I don't know. I was awful young at that 9 time. 10 Q. I understand. 11 A. I know he was good to us. I know that he -- 12 Q. Do you recall -- 13 A. -- came over quite a bit, you know. 14 Q. Oh, he did? 15 A. Yes. He was over at the house quite a bit. 16 Q. How did Martha meet him? 17 A. Through my dad, from what I understand. I'm not 18 really sure. 19 Q. How were he and your father connected? 20 A. That I don't know. I could not tell you. 21 Q. What did Thomas Wesbecker look like? 22 A. Well, he was -- he was bald-headed, wore 23 glasses. And I can't remember anything else other than that. 24 Q. Apparently his eyesight was quite bad? 25 A. Evidently it was, yes. They seemed to think so 77 1 when he fell. 2 Q. Some people have described him as a physically 3 powerful, muscular man. Is that -- 4 A. Yes. He used to -- I can remember he used to 5 stand on his head in the corner, I mean, against the wall. 6 For hours he could do that. Muscular. I had forgotten about 7 that. 8 Q. How did he earn his living? 9 A. He worked like a carpenter, I guess you'd say. 10 He worked on buildings and things, as far as I know. 11 Q. Did you know his family at all? 12 A. Well, I knew something of his brother and I knew 13 something of his mother. We would stop by there from school. 14 We went to Sacred Heart and they lived on Broadway there, half 15 a block, and we would sometimes stop by her house, Mrs. 16 Wesbecker. 17 Q. Was her name Murrell? 18 A. I don't know. You know, I don't know her first 19 name. 20 Q. All right. What do you recall about Mrs. 21 Wesbecker? 22 A. Well, she was -- she always took care of Joey. 23 We know that she always fixed his -- you know, always made 24 sure he had what he needed and stuff, when he was little 25 bitty. Of course, he came to live at our house when he was 78 1 nine, ten months old, something like that, from what I recall. 2 Q. All right. Do you recall Mrs. Wesbecker having 3 some mental problems? 4 A. No. Mrs. Wesbecker did not have mental 5 problems. 6 Q. After the death of Thomas Wesbecker at the 7 St. James Church, why didn't Martha continue living with Mr. 8 and Mrs. Wesbecker? 9 A. I do not know that, either. 10 Q. Okay. At some point in time, she decided to 11 move back into the house with your mother? 12 A. Yes. 13 Q. And she brought her son, Joe, or Joseph, or Joey 14 with her -- 15 A. Joey. 16 Q. -- at that time? 17 A. Joey. 18 Q. Okay. 19 A. I think that's the way it happened. But I know 20 he was very, very little when he -- very young when he came to 21 live with us. 22 Q. According to my information, he would have been 23 about one? 24 A. Yes. About that. 25 Q. Okay. And at that time -- your mother and your 79 1 father were both alive at that time? 2 A. Yes. 3 Q. And a couple of years -- or actually about a 4 year later -- 5 A. One year later -- 6 Q. -- your father died? 7 A. -- my father got killed. 8 Q. And, then, your mother was the head of the 9 household; right? 10 A. That's right. 11 Q. How did your mother and Martha get along? 12 A. My mother got along with everybody. I don't 13 think there was a soul in this world that my mother couldn't 14 get along with. 15 Q. And I take it that she got along with Martha as 16 well as she did with you and the other daughters? 17 A. Well, yes, I guess she did. She -- you know, 18 they had a few arguments, I guess. I don't know, her being 19 older, but I just never remember my mother fighting with 20 anybody. 21 Q. How did she treat her son in those days? 22 A. I don't know anything -- I mean, if -- if there 23 were several things there and all us to have them, if he 24 wanted two or three of them, she gave it to him, stuff like 25 that. But as far as -- I don't remember seeing her, you know, 80 1 mistreat him in any way. 2 Q. She tended to spoil him; is that a fair 3 statement? 4 A. Well, I don't -- I don't know if it's spoiling 5 him or not. 6 Q. He got more than his -- 7 A. Yes. When she took care of him. Most of the 8 time, Mom changed his diapers or Ann or Mildred, one of the 9 others would change his diapers and things. Martha never did 10 it. 11 Q. Would she just kind of just say she just didn't 12 change diapers -- 13 A. She'd just leave him, you know. 14 Q. She'd just leave him? 15 A. Just leave him. After a kid -- a few hours, you 16 know, you've got to do something, or else get you a 17 clothespin. 18 Q. So, then, either Nancy or Ann or Mildred -- 19 A. Nancy was younger; she never did anything. 20 Q. I'm sorry. I meant your mother -- 21 A. Mildred or Ann or my mother. 22 Q. So it would be one of the three of them that 23 would change his diapers and take care of him? 24 A. Usually one of them. 25 Q. I take it that, at that time, Martha was so 81 1 young that she really did not do well as a mother; is that -- 2 A. Yes. 3 Q. -- a fair statement? 4 A. I believe that was part of it. I believe it was 5 just that she was so young, that she didn't -- 6 Q. She was only 16 or 17 years old -- 7 A. Yes. 8 Q. -- when he was born? 9 A. Yes. 10 Q. When he and his mother moved back into the house 11 with you and the others, you-all called him Brother; am I 12 right? 13 A. Oh, yes. He was our brother. 14 Q. Did you call him by his name or did you just -- 15 A. Joey. We called him Joey. But we always 16 thought of him -- when we counted brothers and sisters, he was 17 there. 18 Q. How did your mother, Nancy, treat him? Did she 19 treat him like a son? 20 A. Yes. Yes. She treated him just like she 21 treated all of us. 22 Q. And what would he call Nancy, your mother? 23 A. Called her Grandmother. 24 Q. Called her Grandmother? 25 A. From what I can remember, he called her 82 1 Grandmother. 2 Q. And what did he call Martha? 3 A. I never did hear him call her anything. I don't 4 know. I guess he called her Mother, but I don't remember it. 5 Q. Okay. Who would you say was the real mother to 6 him? 7 A. My mother. 8 Q. Your mother, Nancy? 9 A. My mother, Nancy. 10 Q. And was she the one that really basically cared 11 for him? 12 A. Yes. Yes. 13 Q. And I take it that she would be the one that 14 would assist him when he began going to school? 15 A. Yes. She made sure he got up and got to school. 16 Q. And got him fed and -- 17 A. As much as she could. Now, my mom worked all 18 her life. 19 Q. Right. I take it that she was the one, though, 20 that would get him up and get him dressed, get him fed and get 21 him on his way; is that a fair statement? 22 A. Yes. Or else we just did it all together. You 23 know what I mean? When we got up to get ready for school, 24 everybody got up, nobody slept. 25 Q. And would she be the one that would be 83 1 responsible for establishing the rules for him? 2 A. Well, I guess so. We just didn't -- we just -- 3 I don't know whether we had a whole lot of rules or not. My 4 mom was never -- never, you know, bossed us around, or 5 nothing. I mean, she helped us out if we asked. But a lot of 6 times, we would go to our sisters, you know. 7 Q. The older ones would sort of -- 8 A. Yes. The youngest ones would go to the older 9 ones, and the older ones would kind of more or less help Mom 10 oversee us, you know. 11 Q. Who was responsible for or who took the 12 responsibility of disciplining Joey? 13 A. My brother Johnny. 14 Q. And would he be the one that taught him right 15 from wrong? 16 A. Not really. Johnny was married, I think. Let's 17 see. Johnny was -- Joey wasn't very old, I don't think, when 18 Johnny got married because Johnny's 65 now, or something like 19 that. I'm not sure, so many ages in between there. But 20 Johnny would come over from wherever he was. And I guess 21 Martha was the one that called him most of the time. 22 Q. And what would she call him to come over and do? 23 A. To whip him. 24 Q. And what sorts of things would he get whipped 25 for? 84 1 A. I don't know. But I don't think anybody should 2 get whipped for anything. 3 Q. I take it that you're opposed to that? 4 A. Definitely. 5 Q. I take it that on the occasions that it 6 occurred, it upset you? 7 A. Yes. 8 Q. I don't mean to bring up an unpleasant topic 9 but -- 10 A. That's okay. Bring it up. 11 Q. Where in the house or in the yard would Johnny 12 whip Joey with a belt? 13 A. Well, now, the only one time that I remember 14 specifically, and that's all I can remember, I know that he 15 has whipped him before, but I -- it was in the hallway. I was 16 in the living room and Martha was at the kitchen door. And 17 Johnny would whip him and Joey would get up, and so Johnny 18 would stop after a while because Joey was laying on the floor 19 and he'd get up and go kick Martha. And Johnny would whip him 20 again. And Johnny just stopped and said, "I get so tired, I 21 can't whip him anymore." But every time that Johnny would 22 whip Joey, Joey would kick Martha. And I wished he would have 23 kicked her out the back door because no mother stands there 24 and lets their child get whipped like that. They're not a 25 mother if they do. 85 1 Q. Was this a whipping that was just kind of a -- 2 A. No. He did something. I don't know. 3 Q. But was it a whipping that was just kind of a 4 play-like whipping or was it something that really did hurt? 5 A. I would imagine if you got whipped with a 6 belt -- I never got whipped with a belt. My mom and dad never 7 whipped us. Well, now, my dad would get a little switch and 8 we'd all stand in line. But if you were lucky enough to get 9 to the end of the line, you maybe got half a switch, but 10 before that, you get one switch. I remember three times in my 11 lifetime getting a little switch, and that's all. 12 Q. On this occasion when he got whipped in the 13 hallway with the belt, was it a whipping that just lasted a 14 couple of minutes? 15 A. Oh, I don't -- I don't know. You know, when 16 you're standing there watching, you don't really know how 17 long. But it was -- he hit him enough times that it hurt him. 18 Q. And then he got up off the floor and went and 19 kicked his mother? 20 A. Kicked his mother, yes; that's what I remember. 21 Q. And then Johnny whipped him again? 22 A. Whipped him a little bit more, yes. Johnny's 23 not a mean-type person. He just believed in whipping his kids 24 and whipping people for a punishment, you know. 25 Q. And Martha would call him and ask him -- 86 1 A. Well, that's -- I don't know how he would know. 2 I never heard her call him and ask him, no. I can't say I 3 ever did. But that's the only one time I remember. 4 Q. How did your mother, Nancy, react when this sort 5 of thing would go on? 6 A. You know, I don't think my mother was at home at 7 that time. I think she was at work, if I can remember right. 8 I don't know. 9 Q. Do you recall why Joey was being whipped? 10 A. No. No. You know, kids do things. I mean, 11 it's just automatic thing. They have to learn. So I don't 12 know what he did. 13 Q. I take it that -- 14 A. But I don't know -- I never knew of anything 15 that he did that was that bad during the time that he was with 16 us. 17 Q. Ms. McCarty, do you recall when he started going 18 to school that he had some trouble about not wanting to go to 19 school? 20 A. I'd say a good 90 percent of us didn't want to 21 go to school, so I don't know. 22 Q. Do you recall any problems with his playing 23 hooky? 24 A. I do know that he had played hooky a number of 25 times, but I don't remember any problems with it, no. 87 1 Q. Do you know or have any recollection of your 2 mother having to go to school and deal with that? 3 A. Yes, several times. But, I mean, I don't know 4 what happened because she never said anything to us about it. 5 Q. Did Martha go to school and deal with those 6 problems? 7 A. Oh, you mean about Joey? 8 Q. Yes, ma'am. 9 A. No, I don't think so. 10 Q. It was your mother that went -- 11 A. It was my mother, -- 12 Q. -- and not Martha? 13 A. -- Nancy Montgomery, that went to school, that 14 took care of Joey. 15 Q. How did he get away with playing hooky, how 16 would he do it? 17 A. Well, I'll tell you, the couple of times I did 18 it, I'd wait until my mother went -- I was sure she was gone 19 to work, and I'd sneak back in the back door and go down to 20 the basement and do whatever I wanted to do. So I assume 21 that's what he did, too. I don't know. 22 Q. Was there a time in there, Ms. McCarty, when 23 Joey lived with your mother and Martha lived someplace else? 24 A. Yes. Several times, I'm sure. I don't remember 25 exactly about it, but I do know that Martha would get her own 88 1 apartment. She had -- was -- she liked this one guy that she 2 was trying to get and she couldn't get him if she had somebody 3 there with her, you know. 4 Q. She couldn't get him if she had a child? 5 A. She couldn't get him if she had somebody there, 6 so Joey lived with us. 7 Q. Do you know who the guy was that she was trying 8 to get? 9 A. I don't remember his name. I know he had two -- 10 two brothers -- a brother and a sister that were sick with 11 some kind of lung infection, that he took care of. But I 12 don't know his name. But I do know that she was crazy about 13 him for quite some time. 14 Q. And in order to try to keep her romantic 15 relationship with him -- 16 A. Her part of the romance. I don't think there 17 was any with him, but I think it was with her. And she let 18 Joey -- 19 Q. Go back to your mother? 20 A. -- go back to stay with my mother. And then it 21 wasn't too long after that, I think, if I can remember right, 22 that she put him in the -- 23 Q. The orphanage? 24 A. -- orphanage home. Yes. 25 Q. When he would go back to living with his mother, 89 1 how did he react to that? 2 A. I don't know because he always -- seemed like I 3 was always at our house. I don't think he stayed with his 4 mother really that much. 5 Q. When your mother left that apartment with 6 Martha, where did she go? 7 A. I'm trying to think. I think she went up on -- 8 right across from -- at Seventh Street, that Western -- 9 Washington -- Washington Place. I think Mom got her an 10 apartment there, if I'm not mistaken. 11 Q. Did she live alone there, Ms. McCarty? 12 A. Yes. Mom lived alone. Al would come over 13 sometimes, my brother that's -- 14 Q. James Albert? 15 A. Yes. 16 Q. He has mental problems? 17 A. Yes. Schizophrenic and paranoid. 18 Q. I kind of got us off the track, and I apologize. 19 A. Yes. That's all right. Let's go back. 20 Q. You mentioned the apartment and -- 21 A. Yes. Well, I kind of get off the track 22 sometimes a lot myself. 23 Q. That's perfectly fine. Let me go back again to 24 those early days. Do you recall a time when Martha and Joey 25 lived in the housing project on Taylor Boulevard? 90 1 A. Yes. Yes. I remember that. Had to go around 2 in the back to go in. 3 Q. Was it just the two of them -- 4 A. Off of Rose Terrace. I believe there was only 5 the two of them, but I don't think they lived there very long. 6 Q. Okay. Do you recall why they had to move out? 7 A. No, I don't. 8 Q. Did you ever hear that Joey was accused of 9 stealing from a delivery truck? 10 A. I never -- don't remember hearing of that. I 11 don't say it's not true, because, you know, kids do things. 12 Q. In 1954, when Joey was about 12 years old, he 13 was in the St. Thomas Orphanage? 14 A. Yes. 15 Q. And he stayed there until the summer of 1955? 16 A. Yes. About a year, I guess. 17 Q. Almost a year? 18 A. Yes. 19 Q. During that year did you see him? 20 A. Yes. I went out with Mother several times. 21 Q. And how would you -- 22 A. We'd catch the bus sometimes. I think maybe we 23 drove once or twice, if somebody could take us out there. 24 Q. So it would be you and your mother -- 25 A. Yes. 91 1 Q. -- that would go out to the orphanage? 2 A. Or maybe Rosie sometimes. There would be 3 different ones. 4 Q. Would you visit -- 5 A. We wouldn't always be the only ones -- I 6 wouldn't always be the only one that went. 7 Q. Would you visit him there at the orphanage or 8 would you bring him back to your mother's? 9 A. Couple of times we visited him just at the 10 orphanage, and the other times we brought him back. And I 11 know one time we'd catch a bus, and it would take us almost 12 all day to get home. And then we'd have to turn around two 13 days later and take him back. 14 Q. Did the orphanage object or have any reason not 15 to want you-all to take him home? 16 A. I never knew of any, if they did, that I can 17 remember of. 18 Q. What was Martha's reaction to Joey being home? 19 A. I don't think Martha was there. I don't know. 20 Q. Lot of times she wouldn't even know he was home? 21 A. I don't think -- I guess she knew Mom went out 22 after him, you know. 23 Q. When Joey would come home, would he talk with 24 you about the orphanage? 25 A. I never talked with Joey very much at all, 92 1 really. He was always out someplace with some kids. And 2 another thing, too, in '52, when I graduated, I went into -- I 3 stayed at a hospital quite a bit, at St. Joe's. I was an 4 X-ray technician over there and I was studying, and I stayed 5 there a lot. So I wasn't really home for quite some years. 6 Then I married in '55. 7 Q. You moved out when you got married in '55? 8 A. Yes. I was out of there almost then because, 9 like I said, I stayed in a room at the hospital. I'd only 10 hear things that would happen if I'd go home maybe on a 11 weekend once in a while. 12 Q. When Joey was at the St. Thomas Orphanage, his 13 mother has said that her son, Joey -- 14 A. Yes. 15 Q. -- resented her for having put him in the 16 orphanage and resented her for having to work and being away 17 from him. 18 A. Having to work? 19 Q. Yes, ma'am. 20 A. He might have resented her putting him in an 21 orphanage, but Martha never let work or anything else 22 interfere with anything she wanted to do. She could have 23 taken care of him, if she wanted, like my mother did us. 24 Q. I take it that she just didn't want to take care 25 of him? 93 1 A. She had no responsibilities. Even though she 2 grew up, she didn't grow up, we'll say it that way, you know. 3 Q. Did you ever hear Martha complain that Nancy was 4 bringing Joey home from the orphanage to try to take her place 5 as his mother? 6 A. My mother had her place from the time Joey was a 7 little, bitty kid because Martha was never there. So she 8 couldn't -- didn't have to try to take her place. 9 Q. Would Martha be the one who would take Joey back 10 to the orphanage? 11 A. No. No. 12 Q. It was you and your mother? 13 A. Not just me, but whoever went and got him with 14 Mother, Mildred or Ann or... 15 Q. And as far as you can remember, Martha never 16 knew that he was home even? 17 A. Sometimes I think she probably did, and other 18 times I don't guess she really knew. I don't know. 19 Q. And I take it sometimes she didn't really care? 20 A. Well, I don't know about that. I wouldn't think 21 so. She didn't seem to me like she did. 22 Q. Did Joey ever talk about what it was like in the 23 orphanage? 24 A. No. He always seemed to be glad to get out, but 25 he didn't -- I mean, he wasn't -- he didn't hate it, or he 94 1 never told us that he hated it there. 2 Q. Was he different when he got back from the 3 orphanage? 4 A. I don't know that he was different. He might 5 have been more belligerent, we'll say. That's the word for 6 it, a little more belligerent. 7 Q. What do you mean by the word belligerent? 8 A. Well, quick to jump, where before he might not 9 be. I don't know. But, like I say, I only knew that from 10 just a little bit because I wasn't there. 11 Q. When he got out of the orphanage, he went back 12 to St. George School? 13 A. Yes. I remember St. George School. 14 Q. And, apparently, according to the school 15 records, he completed the eighth grade there? 16 A. I guess so. I don't know for sure, but I think 17 he did. 18 Q. When he came back from the orphanage, was he 19 living with Nancy or with Martha? 20 A. I believe he lived with my mother there on 21 Burnett. 22 Q. When he got back from the orphanage, how did he 23 deal with his mother? 24 A. I don't know. I do not know. I never really 25 saw them together that much. 95 1 Q. They just stayed separate? 2 A. Well, he was out or doing something and she 3 wasn't there, so I don't know, you know. 4 Q. Did he sometimes get involved in fights or 5 fighting when he would either be the winner or the loser? 6 A. You know, I don't ever remember Joey fighting. 7 I really don't. 8 Q. Ms. McCarty, do you remember when Joey went to 9 work at Fawcett Printing Company? 10 A. I don't remember the time exactly, but I do 11 remember when he went there. He was very, very thrilled 12 getting a job there because it was good pay, you know. 13 Q. Did he tell you in advance that he was going to 14 marry Sue Catherine White? 15 A. He brought her in that night -- I was sitting 16 downstairs with a bunch of people in the family, and he 17 brought her in and said he was going to marry her. 18 Q. Is that the first time you'd ever seen her? 19 A. No. No. I had seen her off, you know, just 20 maybe in the car, or something like that. But first time I'd 21 really, you know, been, like I say, I guess introduced to her. 22 I don't know. 23 Q. Do you recall how Martha got along with Sue and 24 what their relationship was? 25 A. Well, it seems to me like anytime there would be 96 1 any kind of problems, from what I hear or saw, or whatever, 2 she would be on Sue's side. Whether Sue was right or wrong, 3 she would be on Sue's side all the time. 4 Q. And against her son? 5 A. Yes. 6 Q. Joe Wesbecker wanted his sons to have the best 7 of everything? 8 A. Oh, yes. Yes. He wanted them to have what -- 9 Q. What he didn't have? 10 A. What he didn't have; right. 11 Q. Did you ever hear that Joe Wesbecker whipped 12 Jimmy with a belt for doing that? 13 A. Never. Never. 14 Q. Never heard that? 15 A. Never heard -- never seen anything out of Joey, 16 anytime I've been with him, mean like that. 17 Q. During that separation and divorce, did Joe get 18 involved with alcohol and with women? 19 A. I don't know. I do know that somebody had said 20 that he would drink a little bit once in a while. Now, I have 21 never seen him take a drink. I have never seen him drunk in 22 my entire lifetime. 23 Q. During that period of time, did you become aware 24 that he was claiming that he was mentally ill? 25 A. No, not at that time. 97 1 Q. When did you hear that? 2 A. Well, one day I was -- my daughter-in-law and I 3 were on -- when Joey was in Our Lady of Peace, right after he 4 got out -- I didn't know he was in there at the time -- I met 5 him at a fish place on the way to the Bingo. And he said, 6 "Did you know that they're telling me I'm crazy?" And I said, 7 "Oh, Honey, that's not true." And he said, "No," said, 8 "that's what they're saying." And I said, "Well, I don't 9 believe that's true." 10 Now, he talked to me I guess 20 minutes then, to 11 my daughter-in-law and I, and Brenda was with him. And that's 12 the only thing -- only time I ever heard of -- I mean, I had 13 heard somebody else in the family say that they had thought 14 that he was not mentally ill, but that this stuff at Standard 15 Gravure was causing him to be sick. 16 Q. Mentally sick? 17 A. Well, just sick. But they didn't say anything 18 mentally, they just said sick. But then, that's the only time 19 I heard about him -- that he himself told me was right before 20 I got sick, which was maybe, what, a month or two before he -- 21 he killed those people at Standard Gravure. And that was the 22 only time I ever talked to him about that. 23 Q. This was in the summer, then, of 1989? 24 A. Well, yes; it was warm out. It was warm. It 25 was maybe September or October, maybe. 98 1 Q. And -- 2 A. No. It was before then because I had my 3 operation in August, so it had been in the summertime, yes. 4 Q. So perhaps in June or July? 5 A. June or July, yes; that's right. 6 Q. And it was you and your daughter-in-law? 7 A. My daughter-in-law. 8 Q. And what is her name? 9 A. Her name is Michelle. 10 Q. Michelle? 11 A. Diane -- not Diane. What's her middle name? I 12 don't know, but it's McCarty. 13 Q. And she's married to Mike or Pat? 14 A. Mike. 15 Q. Mike? 16 A. Mike. 17 Q. And the two of you were at a fish place? 18 A. We had stopped by -- I believe it was -- it was 19 right out there on Dixie Highway, right past Third, but I 20 don't remember the name of the fish place. It was Moby Dick 21 or something like that. I don't know. 22 Q. And Joe and Brenda happened -- 23 A. They were just sitting there at the time, and I 24 came in and sat across from them and didn't even recognize 25 them. Of course, I wouldn't have recognized Brenda, I don't 99 1 think. I mean, I've seen her several times but... 2 Q. And on that occasion he told you -- 3 A. He told me that they said he was mentally ill. 4 Q. Did he identify who "they" was? 5 A. No. He just said that's what was going on up at 6 the... 7 Q. Up at Standard Gravure? 8 A. No. No. The hospital. 9 Q. At the hospital? 10 A. The hospital. I said, "Oh, Joe, that's not 11 true." He laughed, and he said, "I know, Aunt Mary, but 12 that's what they're saying." But there wasn't anything wrong 13 with Joey. There might have been, I don't know, but I 14 wouldn't think so. He didn't seem to be any different. 15 Q. Did he tell you why they thought he was mentally 16 ill? 17 A. Well, because he said all that stuff was making 18 him sick. 19 Q. What stuff? 20 A. The dye and all that stuff at work. 21 Q. The solvents and -- 22 A. The solvents and stuff like that. 23 Q. -- inks and -- 24 A. Yes. Was making him sick. 25 Q. Did he tell you that he agreed or disagreed? 100 1 A. Oh, he didn't agree with them. 2 Q. He did not? 3 A. No. 4 Q. He didn't think he was mentally ill? 5 A. No. 6 Q. Or crazy, I think is the -- 7 A. No. He didn't act like he was mentally ill. He 8 acted like Joey. 9 Q. Did he tell you at that time that he was a 10 manic-depressive? 11 A. No. 12 Q. Did he tell you that he had been claiming that 13 he was? 14 A. No. No. He did not. 15 Q. During that time, I think you described it as 16 some 15 to 20 minutes that you sat there and talked with 17 him -- 18 A. Yes. Ate our food and stuff, long enough to 19 eat. 20 Q. What else did he talk about other than mental 21 illness? 22 A. Talking about her grandmother -- grandfather in 23 the hospital. 24 Q. Her father? 25 A. Her father, Brenda's father. He was 95. And 101 1 just stuff like that. I don't know exactly, but he didn't -- 2 you know, he didn't talk about anything private or special. 3 Just automatic stuff that you have you talk about. 4 Q. Did he talk about his sons? 5 A. No. No. No. No. Never mentioned Jimmy or 6 Kevin. 7 Q. Did he talk about Brenda? 8 A. No. Not while she's sitting there, surely not. 9 She was with him. 10 Q. Did he introduce her to you? 11 A. No. I knew her. 12 Q. You knew her? 13 A. I knew her. I mean, I knew that that was 14 Brenda. 15 Q. Did he tell you what he was doing? 16 A. He didn't say. He just said that they stopped 17 to get something to eat, that they had been out to see him. 18 Q. Her father? 19 A. Her grandfather, out to the nursing home or 20 wherever he was, and they had stopped by to get something to 21 eat on the way home. 22 Q. Did he tell you if he was working? 23 A. No. No, he didn't. I knew he wasn't working. 24 Q. What was he doing? 25 A. I have no idea. Staying home, I guess, or 102 1 just... 2 Q. Who was he living with? 3 A. Well, he was living with Brenda. 4 Q. How do you know? 5 A. They had a house up on someplace, not too far 6 away. And they were also living in the grandfather's house, 7 which was Brenda's house. 8 Q. Did he tell you that? 9 A. No. I just had heard that along the way 10 somewhere. No, we didn't talk about anything like that. 11 Q. When he told you that, "They say I'm crazy" -- 12 A. They said he was mentally ill -- 13 Q. Mentally ill, or whatever. 14 A. He didn't say crazy; he said mentally -- 15 mentally ill. 16 Q. Did he mention to you anything about how he was 17 being treated? 18 A. No. Never said a word. 19 Q. Did he mention to you what his symptoms were? 20 A. No. I just knew that he was on medication. 21 Q. Did he tell you what medication he was on? 22 A. No. No, I did not know. 23 Q. When he told you that he was sick because of the 24 inks or the solvents or the chemicals -- 25 A. Which I had heard before that. I had heard that 103 1 before. 2 Q. On the occasion that you saw him, did he leave 3 the table first with Brenda or did you and your 4 daughter-in-law? 5 A. No, sir. My daughter-in-law and I were late for 6 the Bingo, so we took off. 7 Q. So you came last and left first? 8 A. Right. Right. 9 Q. When he made the statement that, "They say that 10 I'm mentally ill," did Brenda say anything? 11 A. Never hardly said a word the whole time I was 12 sitting there. She just had her head ducked. He did the 13 talking; she didn't. 14 Q. When he would talk to you, did he know who you 15 were? 16 A. Oh, yes. Aunt Mary. 17 Q. That's what he would call you? 18 A. That's what he calls me, Aunt Mary, yes. What 19 he did call me, Aunt Mary. 20 Q. Did he know who your daughter-in-law was? 21 A. I don't think so, but he knew that was my 22 daughter-in-law. I mean, you know, he didn't -- I don't think 23 he ever met her, I don't think. 24 Q. How did he appear to you on that occasion? 25 A. Laughing, cutting up, didn't seem depressed at 104 1 all. 2 Q. Would you describe him as being pretty high and 3 full of himself on that occasion? 4 A. No. No. Just normal Joey. 5 Q. But he was laughing and cutting up? 6 A. He was laughing with me, yes. Well, I tell you, 7 when my sister who is 65 now had her 60th birthday, Joey and I 8 had not talked to each other for quite some years. We really 9 hadn't seen each other that much. And so he came over and 10 started talking to me that night and I said, "Honey, how come 11 you're coming over here and talking to me now?" And he said, 12 "Aunt Mary, I just want to talk to everybody in the family. 13 And bygones are bygones." And what he meant by that, I don't 14 know. We never did talk much. 15 Q. When did that occurr? 16 A. This occurred when he -- my sister's 60th 17 birthday. 18 Q. Which sister? 19 A. Mildred. 20 Q. Mildred? 21 A. Yes. She had it over at the fire department. 22 And that's when I had seen Joey after so many years, you know 23 what I mean, to really talk to him for any length of time; 24 then, after that, when we would see each other we would talk, 25 but that was it. 105 1 Q. Let me go back to the time at the fish place. 2 A. Yes. 3 Q. About June or July of '89. Okay? 4 A. Yes. 5 Q. How was he dressed on that occasion? 6 A. Just a shirt and pants. I don't remember. 7 Wasn't a tie. He dressed like he always dressed, you know. 8 Q. Blue jeans? 9 A. Yes. Just jeans, yes. Or maybe not blue jeans, 10 but the dressier kind of jeans. You know what I'm talking 11 about? But as far as colors and things, I couldn't tell you. 12 I don't know. I didn't look. 13 Q. On that occasion was he shaved? 14 A. Yes. Oh, yes. 15 Q. Was he clean? 16 A. (Nods head affirmatively). 17 Q. Is that a yes? 18 A. Yes, sir. I'm sorry. I messed up. 19 Q. Did he appear to you to be neat and clean and 20 tidy? 21 A. I have never seen Joey when he wasn't neat and 22 tidy, never. 23 Q. You never saw him when he would go without 24 shaving and without showering? 25 A. I never did see him at that time, no. Anytime 106 1 I've ever seen Joey, he's been clean shaven. 2 Q. On that occasion at the fish place, did he 3 discuss Standard Gravure? 4 A. No. Never mentioned Standard Gravure. 5 Q. Never mentioned work? 6 A. No. No. Never mentioned it. 7 Q. Do you recall anything he said to you about Our 8 Lady of Peace? 9 A. No. He never mentioned Our Lady of Peace to me. 10 He just said -- well, he did that time when we were sitting -- 11 Q. The one time at the fish place he discussed 12 mental illness with you? 13 A. No, not mental illness. He said that they said 14 that he was mentally sick, that they had just gotten out of 15 Our Lady of Peace. 16 Q. He told you that? 17 A. That's what he told me. That's what I 18 understood him to say and that he -- but it wasn't -- we were 19 talking about him earlier than that. 20 Q. Did you ever hear anything, either directly from 21 Joe Wesbecker or from somebody else, that he had attempted 22 suicide? 23 A. Joey? No. No, I hadn't. 24 Q. Had you heard that from anyone else? 25 A. No, I have not. 107 1 Q. Do you know of anyone that Joe Wesbecker 2 confided in about his problems? 3 A. No. I really don't, unless it was Brenda, but I 4 don't know he would do that with her, either. I don't know. 5 Q. Certainly nobody in the Montgomery family did he 6 open up with and tell them what he was really thinking about 7 and what was going on in his life? 8 A. You know, I don't think he would. I don't know, 9 but I don't think so. 10 Q. Would you describe him as the kind of person 11 that could keep things secret about himself? 12 A. Certain things, I'm sure, yes; I think he 13 probably would. 14 Q. He seemed to have an ability to not open up to 15 people about everything. Would you agree with that? 16 A. About some things I'm sure, yes, I agree to 17 that, from what I know of him. 18 Q. He apparently had an ability to keep things 19 about himself to himself; is it that a fair statement? 20 A. Certain things I'm sure, yes. 21 Q. For example, he never discussed mental illness 22 with you until just a few months before the shootings? 23 A. I don't think he was discussing mental illness; 24 I think he was just telling me what they said. 25 Q. That someone was saying he was mentally ill? 108 1 A. Yes. That someone else said he was, but he 2 never said so himself. 3 Q. He had never told you about hospitalizations and 4 suicide attempts and claims that he had filed claiming that he 5 was a manic-depressive and that sort of thing? 6 A. No, sir. I never heard anything of that. Never 7 heard any of that. I have heard of it since the incident 8 happened. 9 Q. Correct. But he -- 10 A. But I had not ever heard it from him. 11 Q. He kept all of that secret from you and the 12 other members of the family, as far as you know? 13 A. From at least me. I don't know about the rest 14 of the family, but I know he never told me. 15 Q. Ms. McCarty, did you ever know Joey or Joe 16 Wesbecker to lie intentionally or to fantasize and to make 17 things up? 18 A. No. No, I had not. 19 Q. On the occasion that you saw him at the fish 20 place with Brenda, that was the last time you saw him; am I 21 right? 22 A. No. I saw him once again. He was -- came to 23 Ann's house. I was there. And he and Brenda came, and they 24 were getting ready to go down to -- 25 Q. Gatlinburg? 109 1 A. Gatlinburg, that's it. And they had come by -- 2 they just lived around the corner from Ann, and they had come 3 by to tell her they were going down there, they were going for 4 a week. And when I was in the hospital he came to see me, but 5 they wouldn't let him in because I was in intensive care. 6 Q. On an occasion before that, Brenda and Joe came 7 to Ann's house -- 8 A. Right. 9 Q. -- to say they were going to Gatlinburg for a 10 week? 11 A. Going to Gatlinburg, yes. 12 Q. What else was said on that occasion? 13 A. Nothing, really. They weren't there that long. 14 Ann wanted to know if they wanted something to drink, 15 something, you know, just automatic stuff like that. But 16 nothing was said. 17 Q. Nothing was said? 18 A. No. They went ahead and left. 19 Q. On that occasion they said they were going to 20 Gatlinburg, did they say why? 21 A. Vacation. 22 Q. Did he discuss what he was going to do when he 23 got back from Gatlinburg? 24 A. No, he wasn't there that long, just in and out. 25 Q. Okay. Anybody else there other than you and 110 1 Ann? 2 A. I don't know. 3 Q. How did he appear on that occasion? 4 A. Same Joey. 5 Q. Happy-go-lucky, laughing and joking? 6 A. Well, sometimes he did and other times he 7 didn't. 8 Q. How was he on that date? 9 A. Well, he was -- he was glad to be going on 10 vacation. 11 Q. What about at your mother's funeral, did you go 12 to that? 13 A. Yes. Yes, sir. 14 Q. That was at Springfield? 15 A. Well, no. That was in Louisville here on Cane 16 Run Road; she was buried in Springfield. We drove out to 17 Springfield. 18 Q. And you went to the funeral on Cane Run Road and 19 also to the burial at Springfield? 20 A. Yes. 21 Q. Was he there? 22 A. Yes. Wait a minute. I don't know. I think he 23 was. I know he was at the funeral home. In fact, I think he 24 was a pallbearer. No, I think Kevin was a pallbearer. See, I 25 don't remember. 111 1 Q. According to my information, she was buried in 2 Springfield on August 9, 1989? 3 A. She died on the 5th of August, so that would be 4 about right. 5 Q. And do you think you saw him at the funeral home 6 on Cane Run Road? 7 A. Yes, I know I did. Yes, I know I did. 8 Q. Did you talk with him there? 9 A. Well, yes, but nothing -- you know what I mean, 10 just say she looked pretty good, which she did look very, very 11 good. And just nothing. You know, he sat back there with -- 12 from what I understood, with a bunch of the others. You know, 13 they had a little place back there where you could get coffee 14 and Cokes and things like that, so that's -- I mean, like I 15 say, I wasn't there long, either, because I was sick at the 16 time and they didn't know what was wrong with me. I couldn't 17 sit up for very long or stay up very long. 18 A. How did he take Nancy Montgomery's death? 19 A. He showed no emotions. I mean, he showed, you 20 know, nothing than the rest of them did. I mean, we were all 21 upset over it, but as far as ever seeing him cry or anything 22 like that, no. 23 Q. Did he come with anyone? 24 A. You know, I don't remember. I don't remember. 25 Q. Were his sons there? 112 1 A. Jimmy -- I think Kevin was a pallbearer, if I'm 2 not mistaken. One of them I think was. But I don't remember 3 seeing them, whether they were there or not, but I'm sure they 4 were. 5 Q. What about Martha, was she there? 6 A. I think she was. 7 Q. How did Joe and Martha get along? 8 A. Well, they just were there. It's like we were 9 here, but we don't talk to each other. I mean, he didn't say 10 anything to her that I can remember, and I don't remember her 11 going up and saying anything to him. 12 Q. And that's the last time that you saw him, I 13 take it? 14 A. From I can remember, yes, that's the last time. 15 Q. Did he ever say to anybody, to your knowledge, 16 that he was picked on at Standard Gravure? 17 A. I know that there were some of the people that 18 he didn't get along with, but I never heard him say he was 19 picked on. 20 Q. What kind of people did he not get along with? 21 A. I think it was some of the people where he 22 would -- you know, they called him names and things like that, 23 from what I understand. I'm not sure. 24 Q. Do you know what names they called him? 25 A. One name I have heard was Rocky. 113 1 Q. You testified a little while ago that in, I 2 believe, June or July of 1989, you ran into Joey and Brenda in 3 a fish restaurant; right? 4 A. Yes. That's right. 5 Q. And it was during that conversation when he 6 first told you that he had been treated at Our Lady of Peace 7 Hospital; correct? 8 A. Yes. 9 Q. And that they said that he may have some mental 10 illness; right? 11 A. That's right. 12 Q. Is it true that he never told you who they were? 13 A. No. No. No. 14 Q. Did he give you any details at all regarding 15 what his treatment at Our Lady of Peace consisted of? 16 A. No, because I shoved it off. I thought it was, 17 you know, just him just saying it, you know. 18 Q. Did he tell you who any of his doctors were or 19 what they were doing to treat him? 20 A. No. I never heard anything about that until 21 after the situation happened. 22 MR. STOPHER: That's the end of the deposition. 23 JUDGE POTTER: Mr. Stopher, do you want to call 24 your next witness? 25 MR. STOPHER: We'll call Sam Verenna, Your 114 1 Honor. 2 JUDGE POTTER: I tell you what, ladies and 3 gentlemen, why don't you-all stand up, if you want to, while 4 we're waiting for this witness to come in. Please be seated. 5 Sir, would you step down here and raise your 6 right hand, please. 7 8 SAM VERENNA, after first being duly sworn, was 9 examined and testified as follows: 10 11 JUDGE POTTER: Would you walk around, have a 12 seat in the witness box. Would you state your name loud and 13 clearly for us, please, and then spell it. 14 MR. VERENNA: My name is Sam Verenna, 15 V-E-R-E-N-N-A. 16 JUDGE POTTER: And answer Mr. Stopher's 17 questions. 18 19 EXAMINATION ___________ 20 21 BY_MR._STOPHER: __ ___ ________ 22 Q. Mr. Verenna, how old are you, sir? 23 A. Thirty-four. 24 Q. And by whom are you presently employed? 25 A. Drug Emporium. 115 1 Q. And what is your present title with Drug 2 Emporium? 3 A. I'm the pharmacy supervisor for the four stores. 4 Q. Let me ask you to speak, if you would, sir, just 5 a little louder and a little more slowly, if you would. 6 JUDGE POTTER: If you'd get a little closer to 7 the microphone. 8 Q. It will save you having to repeat some things if 9 you'll slow down a little and speak up a little bit, as well. 10 A. Okay. 11 Q. You're employed at Drug Emporium? 12 A. Correct. 13 Q. And I missed your present title? 14 A. Pharmacy supervisor. 15 Q. And as pharmacy supervisor for Drug Emporium, 16 what generally do you do, sir? 17 A. Part of my job is actually working as a licensed 18 pharmacist here in Kentucky. Other part of it is 19 administrative part, management. 20 Q. And I think you said there are four stores in 21 this area? 22 A. That's correct. 23 Q. And one of them apparently, or if I'm correct 24 about this, is a store at the Dixie Manor shopping center; 25 correct, sir? 116 1 A. That's correct. 2 Q. All right. Mr. Verenna, as a pharmacist, and as 3 the pharmacy supervisor at Drug Emporium, does Drug Emporium 4 sell prescription medication, sir? 5 A. Yes, sir. 6 Q. And does it keep prescriptions that are filled? 7 A. Yes, sir. 8 Q. Can you tell us generally very briefly what the 9 procedure is and what the rules are, if any, about keeping 10 prescriptions? 11 A. Okay. Prescriptions are filled on a computer 12 system and each individual prescription, the actual, what we 13 call a hard copy, the actual prescription that's presented by 14 the patient is kept in a file folder and marked in lots of 15 100, and we keep them in files. 16 Q. How long do you keep prescriptions? 17 A. Five years. 18 Q. Five years from the date that it's filled? 19 A. Correct. That's Kentucky law. I mean, we might 20 keep them longer than that in an upstairs closet or something 21 like that. 22 Q. Mr. Verenna, at my request, have you searched 23 the records of Drug Emporium with regard to prescriptions for 24 Joseph Wesbecker? 25 A. Yes, sir. 117 1 Q. And have you been able to find those records, 2 sir? 3 A. Yes, sir. 4 Q. Did you bring those records or copies of those 5 records with you today, sir? 6 A. Yes, sir. 7 Q. Would you look at those records and first of 8 all, sir, let me ask you, if you can, to tell us the date of 9 the oldest record that you have or have been able to locate. 10 A. The oldest one I've got is August 10th, 1987. 11 Q. And can you look through those, sir, and tell us 12 what is the most recent date that you have? 13 A. On the refill of 9-5-89. 14 Q. So the prescriptions go from August 10, 1987, to 15 September 5, 1989; correct, sir? 16 A. That's correct. 17 Q. Mr. Verenna, would you go down that list and 18 tell us the names of the medications that he had filled at 19 Drug Emporium during that period of time, sir? 20 MR. SMITH: May we approach, Your Honor? 21 (BENCH DISCUSSION) 22 MR. SMITH: I'm not sure exactly what 23 medications are on there. I think he had medications for 24 hemorrhoids or antibiotics that would be immaterial and 25 irrelevant. 118 1 JUDGE POTTER: Isn't he reading off a piece of 2 paper that everybody's seen? 3 MR. STOPHER: It's an exhibit to the deposition. 4 It's been in existence for a long time. 5 JUDGE POTTER: Is there anything other than his 6 medications with this guy? 7 MR. STOPHER: No. 8 (BENCH DISCUSSION CONCLUDED) 9 Q. I think my question was, sir, do you have the 10 records there about the names of the medications that have 11 been filled at Drug Emporium by Joseph Wesbecker? 12 A. Yes, I do. 13 Q. Between the dates of August 10, 1987, and 14 September 5, 1989? 15 A. Yes, I do. 16 Q. Would you tell us what sorts of prescription 17 medications he had filled at the pharmacy at Drug Emporium at 18 Dixie Manor shopping center? 19 A. You want me to just list every single one? 20 Q. I'm just interested in the list of the names of 21 the medications, you need not give us specifics as to how many 22 refills he got. 23 A. Tofranil, 50 milligrams; another name for that 24 is imipramine, the generic, which was probably dispensed. 25 There's Lithobid, 300 milligrams; Soma, Motrin, Halcion, 119 1 Proctofoam-HC, Prozac, Pamelor, Desyrel -- D-E-S-Y-R-E-L -- 2 PCE, 333 milligrams. 3 Q. I'm sorry? 4 A. PCE, 333 milligrams. Organidin solution. 5 Restoril, 15 milligrams. They're all repeats. 6 Q. The rest are repetitive? 7 A. Yes. 8 Q. Okay. Now, let me direct your attention, first 9 of all, sir, to the prescriptions for Prozac. What is the 10 oldest prescription that you have any record of, sir? 11 A. That would be one filled at Drug Emporium on 12 6-10-88. 13 Q. And would you give us, sir, the specifics about 14 that filling on 6-10-88? 15 A. Sir, let me get to it here right quick. That 16 prescription was for Prozac, 20 milligrams, number, 25. 17 Q. When you say number, 25, what do you mean, sir? 18 A. Twenty-five capsules. 19 Q. Twenty-five capsules? 20 A. Uh-huh. Directions were one capsule by mouth 21 daily. The actual prescription was written 6-9, and it was 22 filled on 6-10. 23 Q. Mr. Verenna, is there a number assigned to that 24 prescription, sir? 25 A. Yes, there is. 120 1 Q. And what is that number? 2 A. 13338. 3 Q. 13338? 4 A. That's correct. 5 Q. Now, sir, with regard to Prozac again, what is 6 the next prescription filling in chronological order? 7 A. That would be 8-17-89. 8 Q. 8-17-89? 9 A. Correct. 10 Q. And can you give us the specifics of that 11 prescription figure, sir? 12 A. Prescription was written for Prozac, 20 13 milligrams, number, 20 -- 20 capsules. 14 Q. Twenty capsules this time? 15 A. Correct. 16 Q. The first time it was 25 capsules? 17 A. That's correct. 18 Q. This time 20? 19 A. Twenty capsules. 20 Q. All right. 21 A. Directions were just like the other one, one 22 capsule by mouth daily. That prescription was written on 23 8-10-89. It was filled on 8-17-89. 24 Q. That means that he actually came to the facility 25 and presented the prescription on that date? 121 1 A. On 8-17; correct. 2 Q. Does Drug Emporium indicate when he picked the 3 prescription up? 4 A. No, sir. 5 Q. It could have been, I assume, presented and 6 filled and taken at the same time; am I right? 7 MR. SMITH: Objection to the leading, and calls 8 for speculation, Your Honor. 9 JUDGE POTTER: Why don't you rephrase it, Mr. 10 Stopher. 11 Q. Sure. The records indicate, if I understood 12 what you just said, the date on which he presented the 13 prescription? 14 A. Correct. 15 Q. Do the records indicate when he actually 16 received the capsules or the prescription bottle? 17 A. No. 18 Q. Don't indicate that in any way? 19 A. No. It just indicates that it was filled on 20 that day. 21 Q. Now, sir, on that date was there a number given 22 to that particular prescription? 23 A. Yes, there was. 24 Q. And what is that number? 25 A. 29621. 122 1 Q. 29621? 2 A. Correct. 3 Q. All right, sir. And is there another 4 prescription filling for Prozac? 5 A. Yes, there was. It was a refill of that same 6 prescription on 9-5-89. 7 Q. 9-5-89? 8 A. Correct. 9 Q. And what are the specifics on that, sir? 10 A. Same as the 29621: Prozac, 20 milligrams, 20 11 capsules, 1 capsule by mouth daily. 12 Q. And what is the number on that prescription, 13 sir? 14 A. That's the same number, 29621. That was just a 15 refill. 16 Q. So if it's a refill it gets the same number? 17 A. Correct. 18 Q. All right, sir. Now, sir, let me go back with 19 you, and in the months of August and September of 1989, do 20 your records indicate that Mr. Wesbecker had any other 21 prescriptions filled during those two months, sir? 22 A. Yes. 23 Q. Would you tell us the oldest one first? 24 A. For August? 25 Q. Yes, sir. August of 1989. 123 1 A. That would be Lithobid, 300 milligrams. 2 Q. All right. Now, what is the date of that 3 transaction, sir? 4 A. The date the prescription was filled was 5 August 17th, 1989. 6 Q. And can you give us the specifics of that 7 prescription? 8 A. Sure. It's written for Lithobid 300 milligrams, 9 number, 100. 10 Q. Wait a minute, number, 100? 11 A. 100 capsules, excuse me. 12 Q. That's the quantity? 13 A. Correct. 14 Q. All right. 15 A. Directions are one tablet at bedtime and two 16 tablets in the morning. 17 Q. And was that given a prescription number, sir? 18 A. Yes, it was. 19 Q. And what is that number? 20 A. 29619. 21 Q. Any others on that date or in August? 22 A. Yes, sir. 23 Q. All right. What's next? 24 A. August 17th, 1989, Restoril, 15 milligrams; the 25 generic that was dispensed was temazepam, 15 milligrams, 124 1 30 capsules. 2 Q. I'm sorry. Slow down just a minute, sir. 3 A. I'm sorry. Excuse me. 4 Q. The prescription was for Restoril, 15 5 milligrams? 6 A. Correct. 7 Q. And it was filled with a generic, temazepam? 8 A. Correct. Restoril, 15 milligrams. We 9 substituted temazepam, which is a generic medication, 30 10 capsules, 1 capsule at bedtime. 11 Q. And what was the -- did you say 15 milligrams 12 per capsule? 13 A. 15 milligrams; correct. 14 Q. All right, sir. What's next? 15 A. That is it. The next one is the Prozac. 16 Q. And in September of 1989, are there any other 17 prescription fillings? 18 A. No. 19 Q. Do you have any record of Restoril being filled 20 in September or refilled? 21 A. I don't see that. I see August 17th as the 22 original. 23 Q. What about Lithobid? Was it refilled, sir? 24 A. No, not to my -- not on the records here. 25 Q. Mr. Verenna, in connection with these documents, 125 1 do you have with you today, sir, all of the various 2 prescriptions that were filled at various times for 3 Mr. Wesbecker? 4 A. I've got the hard copies here in my hand with 5 me. 6 Q. All right, sir. 7 Robin, do we have all those as one exhibit? 8 MS. FISHER: Yes, sir. 9 Q. All right. Let me ask you quickly, sir, if you 10 can take a look at what we have marked -- let me ask you to 11 quickly take a look, sir, I think this is an exact copy of the 12 documents that were earlier presented, if you want to take a 13 look and confirm that. 14 A. Okay. (Reviews document) This is the same as 15 what I've got here, yeah. 16 Q. It's the same? 17 A. Yeah. 18 MR. STOPHER: All right. Your Honor, we move 19 the admission of what's been marked as Defendant's Exhibit 385 20 and ask that it be distributed to the jury. 21 JUDGE POTTER: Be admitted. 22 MR. SMITH: Can we have a second? 23 JUDGE POTTER: All right. I'm sorry. I thought 24 you-all had seen it. 25 MR. SMITH: All right. 126 1 JUDGE POTTER: Be admitted. 2 SHERIFF CECIL: (Hands document to jurors). 3 Q. Mr. Verenna, just to make sure that I 4 understand, take a look, if you would, please, sir, at the 5 documents that I've marked in the lower right-hand corner Drug 6 Emporium 760011 and -12. They are the last two pages, sir. 7 A. Okay. 8 Q. And if I read this correctly, it's a handwritten 9 prescription, correct, sir, from Doctor Coleman? 10 A. Correct. 11 Q. The date is 8-10-89? 12 A. Correct. 13 Q. And then I see a stamp that appears to be 14 August 17, 1989? 15 A. Correct. 16 Q. And then the next page, sir, is what? 17 A. That's the refill of that original prescription 18 on 9-5-89. 19 Q. And is that the back of that document, sir? 20 A. That's correct. 21 Q. All right. So the stamp on the first -- on 22 Page 11 indicates the date on which it was filled or presented 23 to be filled; right? 24 A. Correct. 25 Q. And the handwritten notation on the last page, 127 1 No. 12, is the refill date; correct, sir? 2 A. That's correct. 3 Q. Now, let me ask you, if you can, sir, to 4 identify which page in this document is the Restoril 5 prescription. I think if you'll look -- and my pages -- the 6 number is not exactly clear, but I think it's 760009? 7 A. Correct. 8 Q. Is that on that page, sir? 9 A. Yes, it is. 10 Q. And on this page it indicates that the 11 prescription was written on 8-10-89? 12 A. Correct. 13 Q. Restoril, and apparently it's stamped August 17, 14 1989? 15 A. That's correct. 16 Q. Is that the date on which it was filled on, 17 presented to be filled? 18 A. Yeah. 19 Q. Do you have the back of that document, sir? 20 A. Yes, I do. 21 Q. Does it indicate anything on the back of it? 22 A. Not as far as refill, no. 23 Q. All right, sir. Take a look at the Lithobid on 24 the same page, which is Page No. 9 again. Do you see it, sir? 25 A. Yes, sir. 128 1 Q. And it indicates August 11, 1989 -- 2 A. That's correct. 3 Q. -- is the date of the prescription. And it's 4 stamped, it looks like August 17, 1989; correct? 5 A. That's correct. 6 Q. And do you have the back of that document, sir? 7 A. Yes, I do. 8 Q. Does it indicate that it was refilled? 9 A. No. 10 Q. What are the prescription numbers for Restoril 11 and for the Lithobid? Are they indicated on here? 12 A. Yes. The Restoril is 29620; the Lithobid is 13 29619. 14 Q. And that's the stamp that's slightly obscured 15 above or under the date stamp? 16 A. That's correct. 17 Q. So they're apparently numbered then in sequence; 18 the Prozac was 29621, the temazepam or the Restoril was 29620, 19 and the Lithobid was 29619; correct, sir? 20 A. That's correct. 21 Q. Okay. That's all I have, sir. Thank you. 22 JUDGE POTTER: Mr. Smith? 23 MR. STOPHER: Excuse me, Judge. I forgot one 24 thing, and I apologize. Is there any objection if I -- 25 MR. SMITH: No. I don't object. What are you 129 1 going to do? 2 MR. STOPHER: I'm sorry. I apologize to 3 everybody. I just forgot another document that I meant to ask 4 about. 5 Let me show you another document, sir, and ask 6 you if you can identify what's been marked as Defendant's 7 Exhibit 388, sir. 8 (BENCH DISCUSSION) 9 MR. SMITH: We obviously want all of this stuff 10 out. 11 JUDGE POTTER: I'm sustaining Mr. Smith's 12 objection to introducing the notice of filing and the service 13 lists and that sort of stuff. Now we're down to a 14 November 27th, '93 letter. 15 MR. SMITH: We'd object to that as hearsay. 16 JUDGE POTTER: Okay. 17 MR. SMITH: And we object to the printout unless 18 he can identify the printout as being something done in the 19 course of business. There's prescriptions here for James and 20 Brenda and Kelly Werner. See on the top of the page? 21 Probably -- those were probably people that in the Wes -- 22 Wesley. 23 JUDGE POTTER: They're just people that happen 24 to be in alphabetical order, I guess. 25 Mr. Stopher, what does this add to what's 130 1 already in there? 2 MR. STOPHER: It indicates that Restoril and 3 Lithobid were all refilled. He states in the cover letter 4 they were switching at that point in time to -- we were in the 5 process of changing computer systems and some drugs did not 6 indicate on the system. As far as I'm concerned, he can 7 simply testify from the document. I don't have any interest 8 in the prescriptions for these other people, but I do have an 9 interest in the refills on Restoril and Lithobid. 10 JUDGE POTTER: Aren't those already established 11 by what's in the record? This record reports that the 12 Lithobid and the Restoril were refilled on September 5, 1989, 13 that they were refilled after the date of the original 14 prescription. 15 MR. SMITH: These prescriptions were the 16 evidence. He's already testified that they weren't refilled. 17 These prescriptions are the evidence of what was filled and 18 what wasn't filled. 19 JUDGE POTTER: Go through it again, Mr. Stopher, 20 about what this is going to add to what's already in. You've 21 got the Prozac being refilled. 22 MR. STOPHER: Your Honor, if you will look at 23 the captions here on Restoril, for example, do you see -- up 24 at the top of the page do you see the line where it says 25 refilled Restoril, 15 milligrams, Lee Coleman, 9-5-89? He 131 1 refilled the Restoril on September 5, 1989, and that I'm 2 interested in proving. The little hand cards that he had do 3 not show that, but this computer printout does show that. And 4 that's what he was trying to explain when he gave his 5 deposition. I didn't recommence the deposition. He sent me 6 the records. They were filed as part of the deposition and he 7 refilled the Restoril on September 5, 1989. 8 JUDGE POTTER: Let's take the lunch break. 9 We'll get him to testify and find out what's going on and then 10 call him back after lunch. 11 MR. STOPHER: That will be fine. 12 (BENCH DISCUSSION CONCLUDED) 13 JUDGE POTTER: Ladies and gentlemen, we're going 14 to take the lunch recess at this time. As I've mentioned to 15 you-all before, do not permit anybody to speak to or 16 communicate with you on any topic connected with this trial, 17 and any attempt to do so should be reported to me. Do not 18 discuss the case among yourselves or form or express opinions 19 about it. So that's going to get us till 1:45. We'll stand 20 in recess till 1:45. 21 (JURORS EXCUSED) 22 JUDGE POTTER: Have you got the original of that 23 with you? 24 MR. VERENNA: No, I do not. 25 JUDGE POTTER: Do you know what that is? 132 1 Mr. Stopher, do you want to go ahead and put on whatever 2 evidence you plan to put on? 3 Q. Mr. Verenna, would you explain to the Court what 4 this document is? 5 A. This is a profile or a printout medical expense 6 summary of -- as you'll notice, there's a couple different 7 names on there as far as patients' names on the far left side. 8 We were in the process of converting an RX computer system to 9 another RX computer system. We had to throw all the data on a 10 tape and that tape was stored to have that information. This 11 is a printout. Once we got that tape, we printed everything 12 out on actual paper of every single patient and prescription 13 that was filled at that store. 14 Q. All right. Including Joseph Wesbecker? 15 A. Correct. 16 Q. Is this a document that is kept in the ordinary 17 course and scope of the business of Drug Emporium? 18 A. The only reason it was kept is because -- well, 19 no. The only reason it was kept is because we were changing 20 computer systems. 21 Q. In other words, you were changing one system to 22 another one at the time these prescriptions were recorded; 23 correct, sir? 24 A. Correct. 25 Q. What do these show, first of all, with regard to 133 1 Joseph Wesbecker and his prescriptions in the summer and the 2 early fall of 1989? 3 A. It starts on 6-5-89 with Prescription No. 27195, 4 which is the generic, Restoril. 5 Q. And does this show that it was refilled after 6 6-5-89? 7 A. Yes. 8 Q. And when was it refilled, sir? 9 A. It was refilled on 7-7-89, and then again on 10 7-20-89. 11 Q. And it looks like on 9-5-89? 12 A. I'm sorry. Excuse me. Not on 9-5. I don't see 13 a 9-5. 14 Q. Look at the line, sir. It is the third line 15 down on that sheet. 16 A. I'm sorry. Excuse me. You're right. I'm 17 sorry. 9-5-89. 18 Q. That was the last time on which the Restoril was 19 refilled; correct? 20 A. Yes, it is. I'm sorry. 21 Q. And then it shows trazodone, 100 milligrams; 22 right, sir? 23 A. That's correct. 24 Q. And it's got prescription dates for that; 25 correct? 134 1 A. That's correct. 2 Q. And then it has Restoril again on the line that 3 is just below the line, the line that goes across the page. 4 Let me see if I can give you a better description by the 5 prescription number, 29620; correct? 6 A. That's correct. 7 Q. And it was filled on 8-17-89; correct? 8 A. That's correct. 9 Q. So what this document shows is that he had two 10 prescriptions for Restoril; one was No. 27195 and the other 11 one was No. 29620; correct? 12 A. That's correct. 13 Q. And he refilled the Restoril Prescription 14 No. 27195 on September 5, 1989? 15 A. That's correct. 16 Q. All right, sir. And these documents are 17 accurate and were produced by you as part of the business 18 records of Drug Emporium? 19 A. Yes, it was. 20 MR. STOPHER: Your Honor, we move the admission 21 of these documents and that testimony for these reasons. 22 JUDGE POTTER: Mr. Smith, do you have any 23 questions? 24 MR. SMITH: You didn't fill these prescriptions? 25 MR. VERENNA: No. 135 1 MR. SMITH: And you don't have any personal 2 knowledge of what's on this computer printout? 3 MR. VERENNA: All I have is the data that's on 4 here, on this piece of paper. 5 MR. SMITH: And there's no refill numbers on the 6 underlying prescriptions, either, is there? 7 MR. VERENNA: On which prescriptions are you 8 talking about? 9 MR. SMITH: On the Restoril, the Prescription 10 No. 27195? 11 MR. VERENNA: Prescription No. 27195, the actual 12 hard copy on the back has got a refill date of 7-20-89, 13 9-5-89. 14 MR. STOPHER: Your Honor, we don't care which 15 document it comes in by. We're certainly interested -- 16 JUDGE POTTER: Let him go ahead. Mr. Smith. 17 MR. SMITH: You didn't refill the Restoril; is 18 that right? 19 MR. VERENNA: I personally? 20 MR. SMITH: Yes. 21 MR. VERENNA: No. 22 MR. SMITH: That's all we have, Your Honor. 23 JUDGE POTTER: Let me just ask you something, 24 sir. Is your company going to go to the penitentiary if you 25 give up your originals there? 136 1 MR. VERENNA: No. 2 JUDGE POTTER: Will you put them in order, some 3 kind of order? 4 MR. VERENNA: Yes, I will. 5 JUDGE POTTER: And as I understand it, all -- 6 every bit of information that appears on this thing appears on 7 these sheets; is that right? 8 MR. VERENNA: Should be on these prescriptions, 9 yes. 10 JUDGE POTTER: And how does this thing, being 11 the computer printout, get from the sheets? I mean, is it 12 done at the same time that you do the sheets or is it done 13 months later or this was done when? 14 MR. VERENNA: The only reason this was done is 15 because we were changing computer systems. If we weren't, 16 this wouldn't come out. 17 JUDGE POTTER: So let me see if I understand 18 this correctly. What I'm calling 388 was generated by a 19 computer; is that right? 20 MR. VERENNA: That's correct. 21 JUDGE POTTER: When was the information -- first 22 of all, when was this sheet of paper generated? 23 MR. VERENNA: It was -- on the left-hand side in 24 the middle you'll seen run date 10-11-90. 25 JUDGE POTTER: Okay. And when was the stuff put 137 1 into the computer? 2 MR. VERENNA: I'm not sure. What stuff are you 3 talking about, the actual prescriptions? 4 JUDGE POTTER: Yeah. They were put in right 5 before that or each time he came in to get a prescription 6 filled? 7 MR. VERENNA: Each time they were filled, they 8 were put on a computer. When we switched computer systems and 9 they ran this on 10-11-90, they just generated all the data 10 that was in the computer system up to that point. 11 JUDGE POTTER: But this information that -- 12 let's take one, for example, his very first one, the Lithobid, 13 9-18-89. All right. Have I got it right? 14 MR. VERENNA: No. That's James Wesbecker. 15 JUDGE POTTER: I've got the wrong Wesbecker. 16 All right. Joseph's first one is 27195 and it was 6-5-89? 17 MR. VERENNA: That's correct. 18 JUDGE POTTER: And that was stuck into the 19 computer sometime close to 6-5-89? 20 MR. VERENNA: 6-5-89, it would have been in 21 there. 22 JUDGE POTTER: I'm going to allow this in, 23 provided over the lunch break Ms. Fisher does it with 24 everybody off of it -- with everybody off of it but Mr. 25 Wesbecker, just block off the top and the bottom. Is the 138 1 general Restoril, 15, is that your handwriting? 2 MR. VERENNA: That's my handwriting. Generic 3 Restoril. 4 JUDGE POTTER: And what you did to write in 5 generic Restoril is that you went back and looked in this 6 sheet of paper 27195 to see what was correct? 7 MS. ZETTLER: So, Judge, it's just this one 8 page, and she's going to take out references to everybody but 9 Joseph Wesbecker? 10 JUDGE POTTER: Right. Don't make the same 11 mistake I did. I got Brenda out but not James. 12 MR. STOPHER: Could I make one other suggestion? 13 I'd like to also over the lunch break make a photocopy of the 14 back side of the Prescription 27195, so that there will be no 15 confusion as to when it was refilled. 16 JUDGE POTTER: Maybe I didn't complete my 17 thought. But I'm going to have them stapled what's together 18 there with a big strong staple and make it 385A so we get the 19 originals in. 20 MR. STOPHER: Would it be all right to copy the 21 back side of that? 22 JUDGE POTTER: Yeah. If you want to make it 23 separate. 24 MS. ZETTLER: Could we ask the Court copy it as 25 opposed to taking the -- 139 1 JUDGE POTTER: Would you give those to Ms. -- 2 just so there's no -- you can look at them before you give 3 them to Ms. Fisher and, Ms. Fisher, will you put them in order 4 of the prescription date? 5 MS. ZETTLER: The original prescription date? 6 JUDGE POTTER: Right. I realize refills may 7 be... 8 (LUNCH RECESS) 9 SHERIFF CECIL: All jurors are present. 10 JUDGE POTTER: Please be seated. 11 Ladies and gentlemen of the jury, let me mention 12 to you, we've introduced into evidence -- and the reason 13 there's not been any copies made of it is you'll have the same 14 problem you've got, but the originals of what your Exhibit 385 15 will be introduced into evidence as 385A, that way when you 16 get back to the jury room if there's any question about what's 17 front or back or the same piece of paper, you've got the 18 originals. The reason I'm not giving you copies is if we make 19 copies, then you'll have the same problem as what we've 20 already got. 21 Mr. Verenna, I remind you you're still under 22 oath. 23 Mr. Stopher. 24 MR. STOPHER: Thank you, Judge. 25 Mr. Verenna, let me hand you a document that's 140 1 been marked as Defendant's Exhibit 388, and ask you if you can 2 identify this for us, please, sir. 3 A. Yes, I can. 4 Q. Would you tell us generally what it is. 5 A. This is a history profile printout of 6 medications for Mr. Joseph Wesbecker. 7 Q. And did you obtain this printout at our request, 8 sir? 9 A. Yes, I did. 10 Q. And there are some handwritten notes on this 11 document? 12 A. Correct. 13 Q. And whose are those, sir? 14 A. Those are mine. 15 MR. STOPHER: All right. Your Honor, we move 16 the admission of Defendant's Exhibit 388, and ask that a copy 17 of this be published to the jury. 18 JUDGE POTTER: Be admitted. 19 SHERIFF CECIL: (Hands document to jurors). 20 Q. Take a look at Line 1 on this document, sir. 21 Can you tell us what that refers to? 22 A. Up at the top? 23 Q. Yes, sir. 24 A. That is a Prescription 27195 for generic 25 Restoril, 15 milligrams, that was filled on 6-5-89, for Joseph 141 1 Wesbecker. 2 Q. All right. I see handwritten in there G-E-N. 3 What does that stand for, sir? 4 A. Generic. It stands for generic. 5 Q. All right. And then Restoril, 15 milligrams? 6 A. Correct. 7 Q. And that's your handwriting? 8 A. Yes, it is. 9 Q. Do you have, sir, the copy of the Prescription 10 27195? 11 A. It's up there, yes. 12 Q. Let me hand those originals back to you, sir. 13 A. Yes. 14 Q. Have you got it, sir? 15 A. Yes, sir. 16 Q. Let me show you a copy of that document, sir, 17 which I've marked as Defendant's 385B, and let me ask you if 18 that conforms to the original that you have there, sir. 19 A. Yes, it does. 20 Q. And does this show the front and the back of 21 that Restoril prescription? 22 A. Yes, it does. 23 MR. STOPHER: Your Honor, we'd move the 24 admission of this Document 385B, and ask that it be published 25 to the jury. 142 1 JUDGE POTTER: Be admitted. 2 SHERIFF CECIL: (Hands document to jurors). 3 Q. Now, sir, in looking at the document that's 4 385B, what is the prescription number on this, sir? 5 A. 27195. 6 Q. And what is it for? 7 A. Restoril, 15 milligrams. 8 Q. And can you look at this document, sir, and tell 9 us when it was filled and when it was refilled? 10 A. It was filled on 6-5-89. It was refilled on 11 7-20-89, and again it looks like 9-5-89. 12 Q. All right, sir. Looking at the computer 13 printout, which is Defendant's Exhibit 388, sir, can you tell 14 us what prescriptions Mr. Wesbecker had refilled on 15 September 5, 1989? 16 A. Looking at the printout, on 9-5-89, there was a 17 generic Restoril. 18 Q. How many tablets, sir? 19 A. I'm sorry. Generic Restoril, 15 milligrams, 20 number, 60. 21 Q. That would be 60 tablets? 22 A. Correct. And then 9-5-89, Prozac, 20 23 milligrams, number, 20, 20 capsules. 24 Q. So on September 5, the refill was for Restoril 25 60 tablets; Prozac, 20 tablets? 143 1 A. That's correct. 2 Q. That's all I have, sir. 3 JUDGE POTTER: Mr. Smith. 4 5 EXAMINATION ___________ 6 7 BY_MR._SMITH: __ ___ _____ 8 Q. Mr. Verenna, in looking at Exhibit 385, I don't 9 see any prescriptions for imipramine. Are there any 10 prescriptions for imipramine? 11 A. In Exhibit 385? 12 Q. Right. 13 A. No, there's not. 14 Q. And I believe you said your records were for 15 over what period of time, from June of 1987 until September of 16 1989? 17 A. I think it was 7 of '87 through September of 18 '89. 19 Q. All right. And you filled no prescriptions for 20 imipramine during that period of time? 21 A. I did not, no. 22 Q. And your Drug Emporium did not fill any, either? 23 A. Back in August of '87, we did. It's written -- 24 prescription is written for Tofranil, 50 milligrams. Tofranil 25 and imipramine are the same thing. 144 1 Q. Tofranil and imipramine are the same thing. And 2 when did you fill a prescription for imipramine? 3 A. That was filled on 8-10-87. 4 Q. Two years and twenty-something days before 5 September 14th, 1989; is that right? 6 A. That's correct. 7 Q. And what were the instructions in connection 8 with how Mr. Wesbecker should take the imipramine on that 9 occasion? 10 A. Directions on the prescription are four tablets 11 at bedtime. 12 Q. And if he had taken those four tablets at 13 bedtime two years and several months before this incident 14 occurred, when would he have used up all of the imipramine? 15 A. If he would have used the refills that were on 16 here; is that what you're saying? 17 Q. If he had taken the medication as directed, when 18 would it have been used up? 19 A. Three months. 20 Q. In three months? 21 A. With the refills. 120 of them, 4 at bedtime 22 would be a month's supply and there were two refills 23 indicated, so a three-month refill would have exhausted his 24 prescription. 25 Q. So he should have been out of the imipramine 145 1 within three months; is that right? 2 A. On that prescription. 3 Q. And there are no other prescriptions for 4 imipramine, are there? 5 A. There's one back in '88. 6 Q. And how many was he to receive then? 7 A. Actually there's one earlier than that. Excuse 8 me. There's Prescription No. 8393, January the 1st, 1988. 9 Q. All right. And when should he have used all of 10 those? 11 A. Within a month period, the same prescription, 12 120, 4 at bedtime. 13 Q. And are those the only prescriptions for 14 imipramine? 15 A. There's one on 4-6-88 that was filled on 4-17 of 16 '88. 17 Q. And when should that have been used up, sir? 18 A. Within a month, one-month period. 19 Q. Any other prescriptions for imipramine? 20 A. No. No. 21 Q. How about desipramine? Do you know what 22 desipramine is, sir? 23 A. Desipramine is a generic of Norpramin, brand 24 name of Norpramin. 25 Q. What class of drug is that, sir? 146 1 A. Type of drug? 2 Q. Yes. 3 A. Antidepressant. 4 Q. All right. Are there any prescriptions of 5 desipramine filled by Drug Emporium during that last two years 6 of Mr. Wesbecker's life? 7 A. No. There's none. 8 Q. None whatsoever? 9 A. Not on his records, no. 10 Q. How about nortriptyline? 11 A. Yes. 12 Q. When was a prescription for nortriptyline 13 issued? 14 A. One was written on 6-29-88. It was filled on 15 July 5th, '88, the first time. 16 Q. And when was the last one? Is that Pamelor? 17 A. Yeah. Pamelor is nortriptyline. September 18 26th, '88. 19 Q. And when should that prescription have been 20 consumed, if taken according to the doctor's directions? 21 A. Twenty-five days after that date of September 22 26th. 23 Q. So the prescriptions for the imipramine and 24 nortriptyline filled by Drug Emporium, if taken according to 25 the doctor's instructions, would have been used up by 147 1 September 14th, long before September 14th, wouldn't they? 2 A. Yes. 3 Q. And you have no records of filling any 4 prescriptions for desipramine; is that right, sir? 5 A. That's correct. 6 Q. As I understand it, you never waited on Mr. 7 Wesbecker yourself? 8 A. That's correct. 9 Q. Have no recollection of who Mr. Wesbecker is or 10 anything of that nature? 11 A. No, sir. Not at all. 12 Q. Thank you, sir. 13 MR. STOPHER: Nothing further, Your Honor. 14 JUDGE POTTER: Thank you very much, sir. You 15 may step down. 16 Mr. Stopher, do you want to call your next 17 witness. 18 MR. STOPHER: Ray Yeager. 19 JUDGE POTTER: Sir, could I get you to step down 20 here and raise your right hand, please. 21 22 RAY YEAGER, after first being duly sworn, was 23 examined and testified as follows: 24 25 JUDGE POTTER: Would you have a seat here in the 148 1 witness box. Would you state your name loudly and clearly for 2 the jury and then spell it for me, please. 3 MR. YEAGER: Ray Anthony Yeager, R-A-Y, 4 A-N-T-H-O-N-Y, Y-E-A-G-E-R. 5 JUDGE POTTER: And answer Mr. Stopher's 6 questions. 7 8 EXAMINATION ___________ 9 10 BY_MR._STOPHER: __ ___ _______ 11 Q. Mr. Yeager, what is your present business 12 address, sir? 13 A. 4402 Kiln Court, Louisville, Kentucky. 14 Q. And how old are you, sir? 15 A. I am 40. 16 Q. And how are you employed at the present time, 17 sir? 18 A. I'm the owner of Ray's Indoor Shooting Range. 19 Q. And what is Ray's Indoor Shooting Range, sir? 20 A. It's a facility that has an indoor shooting 21 range for people to come in and test fire or target practice 22 with firearms, and we also have retail ammunition and 23 supplies, and also associated with the business is a gun shop. 24 Q. And in connection with that gun shop, do you 25 sell firearms and ammunition? 149 1 A. Yes, sir. 2 Q. Mr. Yeager, approximately how long have you 3 operated Ray's Indoor Shooting Range and the gun shop at that 4 location? 5 A. Since 1986, probably September of '86. 6 Q. Now, sir, with regard to the shooting range, I 7 think you described it as an indoor range; am I right? 8 A. Yes, sir. 9 Q. Are there certain types of weapons that cannot 10 be fired at that range? 11 A. We only allow handguns. We do not allow any 12 rifle cartridges to be fired in the range. 13 Q. Can -- is it permissible at that range to fire a 14 firearm like the AK-47? 15 A. No, sir. 16 Q. Has that ever been allowed at that range going 17 back to 1988, or thereabouts? 18 A. Just recently with special plastic-core target 19 ammo. 20 Q. All right. Let me rephrase the question, then, 21 sir. Prior to September of 1989, was it allowed to fire an 22 AK-47 at that indoor range? 23 A. No, sir. 24 Q. Mr. Yeager, at my request, have you obtained 25 copies or perhaps you have the originals of certain documents 150 1 at your shop relating to Joseph Wesbecker? 2 A. Yes, sir. 3 Q. Let me try to deal with these, first of all, 4 sir, in chronological order, if I may. Let me show you a copy 5 of a document and you compare it to your original, which I 6 have numbered Defendant's Exhibit 450. Do you see that, sir? 7 A. Yes. 8 Q. That's a Form 4473? 9 A. Yes, sir. 10 Q. Does that appear to be an accurate copy of a 11 document in your possession and control, sir? 12 A. Yes, sir. 13 MR. STOPHER: Your Honor, we move the admission 14 of this document and ask that it be published to the jury. 15 JUDGE POTTER: Be admitted. 16 SHERIFF CECIL: (Hands document to jurors). 17 Q. Mr. Yeager, would you briefly describe this 18 document and what it relates to? 19 A. The 4473, or as we call it, a yellow sheet, is a 20 document that must be filled out by the purchaser of a handgun 21 prior to accepting delivery of that handgun. It's required by 22 federal law. 23 Q. And who is the purchaser in this case, sir? 24 A. This indicates Joseph Wesbecker. 25 Q. And what is the date of purchase? 151 1 A. 1-3 of '88. 2 Q. And what is the firearm that was purchased on 3 that date? 4 A. It is a Raven Arms P25, .25 caliber, 5 semiautomatic pistol. 6 Q. Can you give us a brief description of what that 7 is, sir? 8 A. It's a pistol about the size of a cigarette 9 package that fires a small-caliber pistol shell. 10 Q. Let me next show you a copy of a document, sir, 11 that -- and I'll again ask you to compare it to yours -- is 12 numbered Defendant's Exhibit 451. Does that conform to your 13 copy, sir? 14 A. Yes, sir. 15 MR. STOPHER: Your Honor, we move the admission 16 of Defendant's Exhibit 451, and ask that it also be 17 distributed. 18 JUDGE POTTER: Be admitted. 19 SHERIFF CECIL: (Hands document to jurors). 20 Q. This is another Form 4473? 21 A. Yes, sir. 22 Q. And it's from your shop again, sir? 23 A. Yes, sir. 24 Q. And the purchaser, of course, is Joseph T. 25 Wesbecker? 152 1 A. Yes. 2 Q. And what is the date of this one, sir? 3 A. 2-9-88. 4 Q. And what is the firearm described in this 5 document? 6 A. It's a Smith & Wesson, Model 12, six-shot 7 lightweight, probably a two-inch revolver. 8 Q. And what caliber is it, sir? 9 A. .38 caliber. 10 Q. Let me show you a document that I've marked as 11 Defendant's Exhibit 455. And I apologize for the fuzziness of 12 this copy, sir, but hopefully we'll be able to clear it up. 13 Can you identify that for us, sir, and tell us if it conforms 14 to your copy? 15 A. It's a -- one of the shop receipts or gun shop 16 receipts from either the indoor shooting range or the gun 17 shop. 18 Q. And is it the same date, that is, February 9, 19 1988, as the Form 4473? 20 A. Yes, sir. 21 MR. STOPHER: Your Honor, we'd move the 22 admission of this document, which is marked Defendant's 23 Exhibit 455, and ask that it be distributed. 24 JUDGE POTTER: Be admitted. 25 SHERIFF CECIL: (Hands document to jurors). 153 1 Q. First of all, Mr. Yeager, what does this 2 document show was the purchase price of the Smith & Wesson .38 3 pistol? 4 A. I can't quite read it. It appears that it's 5 approximately $159. 6 Q. And then with tax and it appears there was -- 7 what else was there? 8 A. There's also a box of ammunition sold with the 9 firearm. 10 Q. Total price looks like it's what, sir? 11 A. Probably $173. 12 Q. How was it paid? 13 A. There's no indication whether it was paid cash, 14 check or charge. 15 Q. In any event, it was paid at the time of 16 purchase? 17 A. Yes, sir. 18 Q. Let me next ask you, sir, at the time of the 19 purchase of a new firearm at your store, is there any coupon 20 given for range time? 21 A. Yes. With all the firearms we sell, we give the 22 customer a coupon to take the firearm to our indoor shooting 23 range and try the firearm out or practice with it. 24 Q. Let me show you four different receipts for 25 range time and let me try to deal with them in chronological 154 1 order. 2 I think the first one, Robin, is 456. 3 MR. SMITH: If Mr. Stopher would like to 4 introduce those in a group, we're not going to have any 5 objection to them, if it will speed the process up, we'll 6 certainly be glad to. 7 MR. STOPHER: All right. 458, 459 and 460. 8 JUDGE POTTER: There's going to be no objection 9 to them; is that right, Mr. Smith? 10 MR. SMITH: That's correct, Your Honor. 11 JUDGE POTTER: Give them to my sheriff and 12 she'll pass them out so they'll have them while he talks about 13 them. 14 Q. Mr. Yeager, looking at 456, what is that, sir? 15 A. I don't believe I have 456. 16 Q. All right. Let me give you a copy, sir. 17 A. 456 is one of our range sign-in sheets that 18 indicates that it was signed by Brenda and Joe Wesbecker on 19 January 4th, 1987. It reflects that they came in with a 20 coupon for range time and they weren't charged for range time 21 and they bought one target. I might also add that the date 22 was January 4th, 1987, that 1987 may in fact be 1988. 23 Q. In other words, looking back at Exhibit 450, the 24 little .25 caliber Raven was purchased on January 3, 1988; 25 right, sir? 155 1 A. Yes, sir. 2 Q. And the purchaser would have received a coupon 3 for free range time? 4 A. Yes, sir. 5 Q. And 456 is free range time of a half an hour? 6 A. Yes. 7 Q. And it may be an error in recording the year? 8 A. Most likely being it was the transition from '87 9 to '88. 10 Q. All right, sir. Looking next at 458, sir, is 11 that again a document for free range time? 12 A. Yes. Free range time with a coupon. 13 Q. And that, I believe, is the day after the 14 purchase of the -- or the day of the purchase of the .38; is 15 that correct, sir? 16 A. It appears to be the day after the purchase of 17 the .38. 18 Q. And there was apparently ammunition purchased, 19 as well, of a .38 caliber? 20 A. Yes, sir. 21 Q. And the next one is 459. And can you give us 22 the date of that range time, sir? 23 A. The date of that -- I can't read it real clear, 24 but it appears to be 4-14 of '88. 25 Q. April 14 of 1988? 156 1 A. Yes, sir. 2 Q. And who used the range according to this 3 document? 4 A. Joseph Wesbecker. 5 Q. On the first two, apparently Brenda Wesbecker 6 signed, as well as Joe or Joseph T. Wesbecker; correct? 7 A. Yes, sir. 8 Q. And how much time was spent on the first two? 9 A. It looks like on the first two a combined total 10 of one hour. 11 Q. And then on 459, how much time, sir? 12 A. It shows 20 minutes. 13 Q. And finally on 460, what's the date of that, 14 sir? 15 A. That's 6-18 of '88. 16 Q. And how much time was spent on that date? 17 A. It shows 15 minutes. 18 Q. And the person using the range was whom, sir? 19 A. Joseph Wesbecker. 20 Q. At my request, sir, have you produced records 21 and have you reviewed them to try to determine if there were 22 any other range times occupied by Joseph Wesbecker in that 23 time period prior to September 14, 1989? 24 A. Yes, sir. 25 Q. And were you able to find any such, sir? 157 1 A. To the best of my knowledge, we haven't found 2 anything other than what we see in front of us now. 3 Q. All right. Now, sir, lastly let me direct your 4 attention to a receipt, it should be 461. And what is this, 5 sir? 6 A. It's a sales receipt for four boxes of 7 Winchester nine-millimeter ammunition on 9-10 of '89, made out 8 to J. T. or J. F. Wesbecker. 9 Q. And does it indicate -- is this a record from 10 your range, sir, and from your shop? 11 A. Yes, sir. 12 MR. STOPHER: All right. Your Honor, we move 13 the admission of Defendant's Exhibit 461, and ask that it be 14 distributed. 15 JUDGE POTTER: Be admitted. 16 SHERIFF CECIL: (Hands document to jurors). 17 Q. Now, sir, with this document in front of all of 18 us, what is the date of this document, sir? 19 A. 9-10-89. 20 Q. And it refers to the purchase of what again? 21 A. Four boxes of Winchester USA nine-millimeter -- 22 115-grain, nine-millimeter shells. 23 Q. And four boxes would be how many rounds or -- 24 A. Fifteen rounds to a box for a total of two 25 hundred shells. 158 1 Q. Two hundred shells. What type of ammunition is 2 this, sir? 3 A. This is standard -- just your basic 4 nine-millimeter type shell with a full metal jacket bullet. 5 Q. What is a full metal jacket bullet? 6 A. It's a bullet that has the complete surface of 7 the projectile enclosed in a copper jacket. 8 Q. Does it serve some special purpose or have some 9 special function or use or restrictions? 10 A. No. I think its main purpose is to increase the 11 reliability of that particular caliber of ammo in 12 semiautomatic firearms. 13 Q. What sort of a weapon could fire this type of 14 ammunition, sir? 15 A. There's hundreds of different weapons, including 16 a few revolvers, even, but it would most likely be a 17 semiautomatic, nine-millimeter handgun. 18 Q. Let me ask you this, then, sir. Can this type 19 of ammunition be fired by a nine-millimeter Sig Sauer 20 semiautomatic pistol? 21 A. Yes, sir. 22 Q. Can it be fired by a Mac-11 semiautomatic 23 pistol? 24 A. Yes, sir. 25 Q. Mr. Yeager, on that date, I see up at the top 159 1 there two business locations listed, one on Kiln Court, which 2 you gave to us earlier as your present address, and one on 3 Preston Highway? 4 A. Yes, sir. 5 Q. Were both of those locations in operation on 6 this date? 7 A. Yes, sir. 8 Q. Does this document tell us which shop was 9 involved? 10 A. No, sir. 11 Q. Can you tell by looking at the received-by 12 initials down at the bottom, it looks like it says KM or KB? 13 A. KM. That individual worked in both stores, but 14 he worked primarily at the indoor shooting range. 15 Q. So if he worked primarily at the indoor shooting 16 range, which one of the locations would that be? Could it 17 still be either one? 18 A. It would be the Kiln Court location but, like I 19 said, this receipt is used at both locations. 20 Q. So let me ask you this, sir. With regard to the 21 Kiln Court location, can you give us a brief description as to 22 where that's located? 23 A. That's over in the old Brickyard Park between 24 Bishop Lane and Newburg Road. 25 Q. Is there a landmark nearby? 160 1 A. Bashford Manor Mall. 2 Q. Bashford Manor Mall. Mr. Yeager, finally, on 3 September 10, 1989, the receipt indicates the name J. T. 4 Wesbecker. Is that his signature or is that someone that 5 wrote that in there with just his name? 6 A. That, I have no way of knowing except that the 7 writing appears to be identical to the writing on his sign-in 8 sheets from the range. 9 Q. And on that date, sir, the receipt indicates, I 10 think it says paid or P-D? 11 A. Yes. 12 Q. And does this one indicate how he paid for this? 13 A. Yes. It indicates he paid for it with cash. 14 Q. Mr. Yeager, at my request have you looked for 15 any other records at your shop concerning any other sales of 16 weapons or ammunition to Joseph Wesbecker prior to September 17 14, 1989? 18 A. Yes. We have looked and also furnished 19 documents. 20 Q. And the things that I've put on the table here 21 and we've marked and identified them, are those the extent of 22 them, as far as you know, as far as the sale of weapons and 23 ammunition to Mr. Wesbecker? 24 A. Yes, sir; they are. 25 Q. Thank you, sir. That's all I have. 161 1 JUDGE POTTER: Mr. Smith. 2 3 EXAMINATION ___________ 4 5 BY_MR._SMITH: __ ___ _____ 6 Q. Mr. Yeager, you looked at Exhibit 461, which is 7 the receipt for the 200 rounds of nine-millimeter ammunition, 8 and I think the record has established that Mr. Wesbecker was 9 consuming Prozac on this occasion, and compare the signature 10 with the sign-in sheets. If you'll look at 456 -- have you 11 got that in front of you? 12 A. Yes, sir. 13 Q. That's dated January 4, 1987, but I believe you 14 said that would probably be 1988; is that right, sir? 15 A. Yes, sir. 16 Q. And that was around the purchase of the -- which 17 weapon? 18 A. January 4th, that was around the purchase of the 19 Raven P25. 20 Q. That's the small weapon, the Raven P25 is a 21 little weapon. That's normally purchased for use by women, is 22 it not? 23 A. Not necessarily. 24 Q. But a lot of women purchase those? 25 A. Well, I wouldn't say -- well, it would not be 162 1 any more women than men. 2 Q. I notice it says that Brenda Wesbecker is the 3 name up on top of 456. Does that indicate the individual that 4 was using the shooting range? 5 A. Well, the bottom portion would indicate the 6 individuals that are using the shooting range. 7 Q. And that has Brenda Wesbecker and Joe Wesbecker? 8 A. Yes, sir. 9 Q. The thing of interest to me was it was signed 10 Joe Wesbecker in January of 1987 or '88, but in September of 11 '89, it was J. T. Wesbecker, isn't it? 12 A. Yes, sir. 13 Q. On Exhibit 461. Then if you look at Exhibit 14 458, the signature is Joseph T. Wesbecker; right? 15 A. Yes. 16 Q. And, again, back to 461, it's signed J. T. 17 Wesbecker on the September 10th, 1989 notation; right? 18 A. Yes, sir. 19 Q. Then, again, if you look at Exhibit 459, April 20 1988 visit that Mr. Wesbecker made to your establishment, it's 21 signed Joseph T. Wesbecker; isn't it? 22 A. Yes, sir. 23 Q. But again it's signed J. T. Wesbecker in 24 September of '89; correct? 25 A. Yes, sir. 163 1 Q. And if you look at 460, the transaction on June 2 18th, 1988, it's signed Joseph T. Wesbecker there, isn't it? 3 A. Yes, sir. 4 Q. But then in September of 1989, four days before 5 this incident occurred, it's signed J. T. Wesbecker, is it 6 not? 7 A. Yes, sir. 8 Q. I note that the rifles are not permitted at your 9 range? 10 A. Yes, sir. 11 Q. Or weren't permitted during this period of time? 12 A. That's correct. 13 Q. Is the reason for that that by virtue of the way 14 your range is constructed, that it's not set up for rifles; 15 you have to use pistols there? 16 A. Yes, sir. That's true. And also probably the 17 safety aspect and the extra noise is a factor, also. 18 Q. So when you say you prohibited AK-47s from being 19 discharged at your premises at this time, it wasn't because 20 AK-47s were illegal, but it was because you had a generic 21 prohibition against all rifles at the time? 22 A. Right. That type of rifle fires a shell that's 23 bigger than what we allow for our range. 24 Q. And it makes too much noise and has too much 25 velocity; is that right? 164 1 A. Generally so. 2 Q. Is there any prohibition for discharging a 3 weapon out in the country here in Kentucky? 4 A. No, sir. None that I know of. 5 Q. In other words, if you owned a small ranch or 6 acreage, you could go out and discharge your weapon and set up 7 a target in the country here? 8 A. Yes, sir. 9 Q. Just like in Texas? 10 A. Yes, sir. 11 Q. That's all I have. Thank you, Mr. Yeager. 12 JUDGE POTTER: Thank you very much, sir. You 13 may step down. 14 Mr. Stopher, do you want to call your next 15 witness? 16 MR. STOPHER: Yes, Your Honor. We'll read the 17 deposition of Doctor Morton Leventhal. 18 JUDGE POTTER: And because things have gone 19 faster than people planned, this will be the last witness 20 planned. 21 I know this is a little quick on you, but these 22 depositions, unless you're fairly fresh, seem to take more 23 concentration than when you've got a live witness, and because 24 things have gone a little faster than people had planned today 25 you-all will get out a little early, so what I'm going to do 165 1 is take a 15-minute recess at this time and then we'll come 2 back and do the deposition and then you-all can go home. 3 Again, do not permit anybody to communicate with you on 4 anything about this case, including each other, and do not 5 form or express any opinions about it. We'll take a 15-minute 6 recess. 7 (RECESS) 8 SHERIFF CECIL: The jurors are now entering. 9 (BENCH DISCUSSION) 10 JUDGE POTTER: Mr. Higgs advised my sheriff that 11 he knows Mr. Ray -- I can't remember his last name, and does 12 anybody want me to ask him any questions about that? 13 MS. ZETTLER: No. 14 MR. STOPHER: No. 15 JUDGE POTTER: Okay. 16 (BENCH DISCUSSION CONCLUDED) 17 SHERIFF CECIL: All jurors are present. Court 18 is now in session. 19 JUDGE POTTER: Please be seated. 20 Mr. Stopher, do you want to call your next 21 witness? 22 MR. STOPHER: Yes, Your Honor. The deposition 23 of Doctor Morton Leventhal. 24 JUDGE POTTER: Okay. Ladies and gentlemen, 25 again, I caution you against somehow treating deposition 166 1 testimony as other than sworn testimony given under oath. 2 It's entitled to the same treatment you would give it if the 3 person were here live. 4 Mr. Stopher. 5 (THE FOLLOWING PORTIONS OF THE DEPOSITION OF 6 MORTON LEVENTHAL, Ph.D., WERE READ BY MR. EDWARD 7 STOPHER READING THE QUESTIONS AND MR. LAWRENCE 8 MYERS READING THE ANSWERS) 9 MR. STOPHER: Your Honor, this is the deposition 10 of Doctor Morton Leventhal. It was taken on October 24, 1991, 11 and after Doctor Leventhal was sworn, he testified and 12 depressed as follows: 13 Q. Doctor Leventhal, would you give the Court and 14 jury a brief description of your educational background, 15 please. 16 A. Yes. I have a doctorate in clinical psychology 17 from the University of Kansas, Menninger Foundation trained, 18 and I am a Diplomate of the American Board of Professional 19 Psychologists. 20 Q. Tell us, please, sir, what a psychologist is. 21 There is some confusion generally with people between a 22 psychiatrist and psychologist and that kind of thing. If you 23 would just tell us, please, sir, what it is. 24 A. Well, I can only speak as a clinical 25 psychologist. I have a doctorate in psychology, and my major 167 1 focus is working with people. Part of the focus is to 2 evaluate them psychologically, do what I call psychodiagnostic 3 evaluations, which is utilizing a series of tests and, based 4 on the data which I get from these tests, arriving at some 5 sort of diagnostic picture of the individual. And, also, of 6 course, I also am involved in treatment. I don't use 7 medication or any kind of physical treatment, only talking 8 treatment. 9 Q. In other words, sitting down and discussing the 10 patient's problems with them and what the resolution might be? 11 A. Right. 12 Q. Do psychiatrists refer work to psychologists and 13 do psychologists refer work or patients to psychiatrists? 14 A. To some extent, yes, depending upon the 15 situation. When I was here in Louisville, my practice 16 consisted a great deal of doing psychodiagnostic evaluations 17 for patients in the hospital, and these would be referred by 18 psychiatrists. 19 Q. How long did you practice here in Louisville in 20 the area of psychology? 21 A. Twenty-five years. 22 Q. And in that connection did you work with any 23 particular hospitals? 24 A. Well, yes, I began as chief of psychological 25 service at the Louisville VA Medical Center. 168 1 Q. How long were you there, sir? 2 A. Twenty-five years. And then I was also on the 3 staff of Our Lady of Peace and I was chairman of the 4 psychology -- I guess not service, but the psychology group at 5 Our Lady of Peace. 6 Q. Did you ever hold any offices in any groups of 7 psychologists that practiced that profession here in 8 Louisville? 9 A. Well, I was president of the Kentucky 10 Psychological Association and also the Louisville 11 Psychological Society. 12 Q. How do you happen to be in Louisville on this 13 particular day? Is it in connection with some meeting? 14 A. Yes. The Kentucky Psychological Association is 15 honoring older past presidents, and when I was contacted for 16 people to come to Florida for the deposition, I thought I 17 would make the interesting suggestion that I come here and 18 combine two things. I always like to have two birds with one 19 stone if I can do it, and this worked out to everybody's 20 satisfaction, so here I am. 21 Q. We appreciate your doing that. It's more 22 convenient for all the lawyers, too, I think. In connection 23 with your practice of psychology in Louisville, did you have 24 an occasion to see Joseph Wesbecker as a patient? 25 A. To evaluate him for Doctor Senler, yes. 169 1 Q. Doctor Senler, who is he, please? 2 A. She is a psychiatrist in practice here in town, 3 and she was Mr. Wesbecker's psychiatrist when he was 4 hospitalized at Our Lady of Peace Hospital, and she asked me 5 to come and see him and do a psychodiagnostic evaluation. 6 Q. Can you give us a day, month, and year when you 7 saw Mr. Wesbecker at the request of Doctor Senler? 8 A. It was April 20th, 1984. 9 Q. Tell us, please, sir, where you saw him. 10 A. At the hospital. 11 Q. What kind of ward was he in when you saw him? 12 A. At this point, I don't recall what ward he was 13 on. I saw him in an office. He came to the office. He 14 wasn't brought, so I assume he was in an open ward. 15 Q. Tell me what Doctor Senler had asked you to do 16 in connection with Mr. Joseph Wesbecker. 17 A. Just to administer tests and evaluate him and 18 arrive at some sort of diagnostic picture for her to work with 19 in her treatment. 20 Q. Tell us please, sir, what tests you did. 21 A. I did the WAIS, which is the Wechsler Adult 22 Intelligence Scale, the Rorschach, and the Bender-Gestalt. 23 Q. Tell us what each of those tests do in 24 connection with providing you with data which is useful in 25 evaluating the psychological picture of any particular person. 170 1 A. Well, the WAIS is basically an intelligence 2 test, but I have my own concept of what intelligence is. I'm 3 not sure other psychologists would agree with it. I feel 4 basically what the test does is to sample behavior, and 5 intelligence is simply a power construct and how it's utilized 6 in various kinds of tests reflects something about the 7 person's psychological makeup, so I use it as a clinical 8 instrument. 9 In other words, I give an intelligence test. I 10 get out of that some sort of an I.Q. measure, but basically 11 I'm looking at the skills as it's broken down in the subtests. 12 Each of these is made up of various subparts, or this one is 13 anyway. Then by evaluating and analyzing what the person is 14 strong in or what they're weak in, I arrive at some sort of 15 inferences about the person from that. 16 Q. Tell me what sort of skills are evaluated by 17 this test, please. 18 A. Basically the subtests call for information, 19 which is to what extent has the person acquired information in 20 line with their essential intelligence level; their ability to 21 comprehend things as other people do in our society, certain 22 concepts and so on; the capacity to arrive at concepts, that 23 is, abstract reasoning; memory span, which is a series of 24 numbers; their vocabulary; and then their visual-motor 25 coordination, various tests which look at aspects of 171 1 visual-motor coordination and perception. 2 Q. Is there any sort of scale that you use in 3 describing a person's intelligence when you finish this and 4 the other tests? 5 A. Well, the summation of all the subtests, the 6 scale scores, and you arrive at an approximation of the 7 intelligence level. I don't think we ever really measure 8 intelligence; we arrive at an approximation of the level of 9 the intelligence in the person. 10 Q. When you say in one of your reports that Mr. 11 Wesbecker was a bright normal person, is that a category 12 within -- 13 A. Yes. That's a category. I.Q.s are broken down 14 into average, bright normal, superior, and then, of course, 15 down to the lower end of the spectrum. He was above average. 16 110 to 120 would be above average, 120 and above would be 17 superior. 18 Q. How long did it take to administer the Wechsler 19 Adult Intelligence Scale? 20 A. Somewhere around 45 minutes to an hour. 21 Q. What was the next test that you did? 22 A. I did the Rorschach, which is the famous inkblot 23 test. 24 Q. What is it supposed to help you with? 25 A. As I see it, it gives you a picture of the way 172 1 in which this person perceives their world and structures 2 their world perceptually, and it also taps emotional 3 development, extent of -- I mean, emotionality in the person, 4 their ability to perceive reality accurately, those kinds of 5 dimensions. 6 Q. How long did that test take, approximately? 7 A. Around a half hour. 8 Q. And the next test that you administered? 9 A. I did the Bender-Gestalt, and I do it two ways. 10 I kind of originated this, I guess. There are tests which 11 measure memory for designs. This is again a visual-motor 12 test. You show the patient a picture and take it away and 13 then they have to reproduce it. The Bender essentially is a 14 copy; you just lay it out there and the person copies it. 15 What I did was instead of giving two tests, I'd just take the 16 Bender and I administer it for five seconds and take it away 17 and have them copy it and then I give it back to them -- I 18 mean, reproduce it and then I give it back to them and have 19 them copy it. So I use the same test instead of two different 20 tests. It's a matter of saving time and carrying things 21 around with me. 22 Q. About how long did that take? 23 A. Fifteen minutes to a half hour. 24 Q. Would you take what I'm going to ask the Court 25 Reporter to mark as Deposition Exhibit No. 1 and have a look 173 1 at the copy that will be filed with your deposition and with 2 the Court. 3 MR. STOPHER: Then, Your Honor, the -- I believe 4 the entire file was marked as Exhibit 1. 5 Just to make sure you've got a copy of the same 6 thing, may we have this distributed, also? 7 MS. ZETTLER: Can we have just one second to 8 take a quick look at it? 9 JUDGE POTTER: All right. 10 MS. ZETTLER: It's fine, Your Honor. 11 JUDGE POTTER: Be admitted. 12 SHERIFF CECIL: (Hands document to jurors). 13 Q. The first page of that is the Wechsler Adult 14 Intelligence Test; is that correct? 15 A. Yes. 16 Q. I'm going to ask you to mark at the top of that 17 page in the corner with a circle around it an A so we'll 18 understand what that is. 19 A. (Witness complies). 20 Q. Then mark all of the pages that are part of that 21 test with an A, if you would. 22 A. With an A? 23 Q. Yes, with a circle around it so we can keep it 24 straight. The first two pages have been marked with an A so 25 far. The third page is marked with an A. The fourth page is 174 1 marked with an A. 2 A. That's it. 3 Q. Now, go to the next test and let's write the 4 name of the test, if you would, in block letters at the top or 5 the bottom, either one. Is this the one where we've got the 6 upside-down numbers? 7 A. No. No. This is the designs, drawing of 8 designs. This is a copy. 9 Q. Put "copy" and let's mark it with a B and a 10 circle around it. How many pages? 11 A. Just two. The second one is what I called 12 tachistoscopic, which is a fancy psychological word for 13 meaning the patient has a short time to look at the design and 14 then reproduce it. I'll put T-A-C-H. 15 Q. And is that a B? 16 A. That's a B. 17 Q. Put a circle around it. 18 A. (Witness complies). 19 Q. The next page, please. 20 A. That's the Rorschach test. 21 Q. Write "Rorschach" at the same place that you 22 wrote the others. 23 A. (Witness complies) It's a bunch of letters and 24 marks beside the letters. I didn't know I would have this 25 distinguished group looking at my hen scratching here. I 175 1 would have been more careful. That's C. 2 Q. With a circle please. 3 A. (Witness complies). 4 Q. And the next page? 5 A. Also Rorschach. Do you want me to write the 6 same thing? 7 Q. Just put the C on the next page. 8 A. (Witness complies) That's it. 9 Q. Thank you, sir. So there are 2 pages to C? 10 A. Yes. 11 Q. Now, after these tests are done, do you sit down 12 and study them? 13 A. Yes. Initially I look at them briefly and get 14 some ideas because I like to leave a note the same day for the 15 referring psychiatrist so they have something to work with, 16 rather than wait for me to go back to my office and score 17 everything up and then write them a formal report, so at least 18 they have something that they can initially begin working on 19 until they receive my formal report, which comes later. 20 Q. If you look at the next page in the record, 21 there is a handwritten consultation note, and that's the note 22 that you're referring to that you put in the file right away 23 so that Doctor Senler could see your preliminary thoughts 24 about Mr. Wesbecker? 25 A. Right. 176 1 Q. And then the next page is your official report, 2 which is dated April the 28th, 1984? 3 A. Correct. 4 Q. With the handwritten notes behind it? 5 A. Somehow I didn't get my copy -- here it is. I 6 don't have it in the same sequence you have it. Yes, April 7 28th is my final report to her. 8 Q. I'm going to ask you, please, sir, to look at 9 the consultation notes that you filed in the hospital records 10 or placed in the hospital records dated 4-20-84, which are the 11 handwritten notes. 12 A. Uh-huh. 13 Q. If you would, so that it will be clear for all 14 of us, if you would please read into the record the first 15 sentence of that note and then I'll ask you some questions 16 about it. 17 A. "My initial impression of Mr. Wesbecker is of a 18 rather paranoid, very dependent man who is extremely angry at 19 what others have done to him, feels unable to express this 20 fear for fear of jeopardizing his dependent relationships and 21 so turns his anger against himself." 22 Q. All right, sir. Do you have a recollection as 23 to whether or not Mr. Wesbecker at the time you saw him was in 24 the hospital after having attempted to commit suicide? 25 A. Yes. I believe that's the reason I saw him. 177 1 Q. Now, when you say he is a rather paranoid, very 2 dependent man who is extremely angry, what, first, does 3 paranoid mean? 4 A. It goes in with his dependency. Essentially he 5 projects or he -- he projects the responsibility for things 6 that happened to him onto others; in other words, it's not his 7 failing. As I see it clinically, it's a reflection of his 8 dependency. Dependent people rely on others to satisfy their 9 needs. It's a very quick turnover to say, well, since I'm 10 dependent on them for my needs, I also depend on them for the 11 bad things that happen to me, so it's their fault that bad 12 things happen to me. Good things and bad things both come 13 from others, in other words. 14 Q. Rather than from him? 15 A. Rather than from myself. "I don't initiate 16 this, it comes from externals." 17 Q. How does that, if it does, relate to this 18 condition that you found that he was extremely angry? 19 A. Well, when one is in that situation that I just 20 described, they're out of control, they feel out of control 21 and they feel that others do things to them and they therefore 22 respond with anger. So they're basically very angry people 23 because they don't feel as though they are in charge of what's 24 going on in their own lives. 25 Q. When you say he's unable to express his fear -- 178 1 unable to express for fear of jeopardizing the dependent 2 relationship, describe what that means to us, please. 3 A. Well, that's the bind these people are in. They 4 are dependent on others. If they express their anger they may 5 get retaliation from people, rejection and so on, so they are 6 unable to express their anger because they will jeopardize 7 this dependent relationship, and they're stuck with the anger 8 with no place to go except oftentimes against themselves. 9 Q. The next sentence I believe begins, "In this 10 regard." Would you read that to us, please. 11 A. "In this regard, the potential for self-hurting 12 behavior is present, although not critical at this time." 13 Q. At the time you saw him you didn't believe he 14 was about to commit suicide or something like that? 15 A. Imminently suicidal, no. 16 Q. Then read the next paragraph for us, please. 17 A. There is some evidence of a long-standing 18 perceptual handicap so that he tends to misperceive some 19 things and shows a waxing and a waning," up and down like 20 petit mal in children who go in and out. 21 Q. I didn't understand that. 22 A. Petit mal is a syndrome that you see in children 23 who are in and out of awareness, they sort of float away at 24 times. It's a kind of epilepsy, and it's mostly 25 characteristic of children rather than adults. 179 1 I was just saying here it's like that, he didn't 2 have that, because his efficiency would go up and go down. He 3 would be good in one moment and then poor the next, so it was 4 a fluctuating kind of effectiveness that he demonstrated in my 5 test. How much this has to do with his current situation, I 6 cannot say. 7 Q. Now, when you talk about perceptual handicap, 8 what do you mean by that? 9 A. Well, I'm suggesting here on the basis of some 10 evidence that I saw in the tests a possibility of a 11 long-standing organic problem, brain damage of some sort, not 12 the kind that led to very obvious kinds of behavior but the 13 kind of damage which would affect his visual-motor 14 coordination and efficiency and so on. I saw this in the 15 tests, and I guess from that inferred the possible presence of 16 this kind of perceptual handicap. 17 Again, this is something which is seen in school 18 children. That's why they have special classes for them. 19 They're easily distractible, they're not effective in certain 20 areas, and I could speculate that this could have been a 21 factor in his developing his mistrust of other people, because 22 kids laugh at other kids that can't do things skillfully and 23 the child doesn't understand that, so they project the 24 responsibility for it onto other people. So this could have 25 been the beginnings of his paranoid development that we see as 180 1 an adult. 2 Q. In the next paragraph I believe you say, "I do 3 not feel he is psychotic, somewhat schizoid." Did I read that 4 right? 5 A. Uh-huh. 6 Q. What is somewhat schizoid as it relates to Mr. 7 Wesbecker? 8 A. Well, somewhat schizoid people are people that 9 don't relate to others very comfortably. They tend to be 10 daydreamers, they avoid contact with others because they're 11 uncomfortable with other people. And, as I said before, his 12 relationships were a source of discomfort to him. Also, they 13 tend to be very idiosyncratic in the way they perceive the 14 world. 15 Q. What does idiosyncratic mean? 16 A. They don't see it as other people do. They're 17 not as bound by reality, if you want to put it that way. They 18 tend to put their personal stamp on the interpretation of 19 events or external occurrences and so on, which is different 20 from other people. For example, he might say to somebody, 21 "Did you hear what he just said to me? Did you get the idea?" 22 And you'd say, "No. What did he say?" "Well, he said 23 something about me, you know. I understood that. I perceive 24 that." Well, most people wouldn't have perceived it, but he 25 would perceive that as a slight or something which he would 181 1 then take umbrage with and so on. That's an example. I don't 2 know that he ever did that or not, but it's an example of what 3 I'm talking about in trying to exemplify what I meant by 4 schizoid, but not to the point where he is totally out of 5 contact with reality, which is why I said he wasn't psychotic 6 at that time. 7 Q. Then you say, "But his thinking is intact, 8 verbal I.Q. 112"? 9 A. Yes. If he were psychotic his thinking would 10 not be intact. 11 Q. Then I believe you indicated that a more 12 detailed evaluation would follow; is that correct? 13 A. Right. 14 Q. Would you look at your more detailed evaluation, 15 please, sir. Have you had a chance to read this over? 16 A. Yes. I didn't memorize it. 17 Q. Tell us what the key points from a 18 psychologist's point of view are in the report and what you 19 were trying to say to Doctor Senler about Doctor Senler's 20 patient. 21 A. Well, I guess the first thing I was saying about 22 him was that he was kind of an odd duck. I said that actually 23 in the letter. Unlike many of my colleagues, I don't spend a 24 long time interviewing patients before I do the tests. I feel 25 they've been interviewed by social workers and by 182 1 psychiatrists and so on, and I really don't feel like I add 2 anything to that, so my interview with him is initially to 3 establish some rapport, to get them cooperating with my tests 4 and so on, and just to get kind of a pleasant relationship 5 established. That was very difficult to do with this man. He 6 was cooperative and he was courteous. He wasn't hostile, but, 7 as I said in the report, nothing bizarre or peculiar, but just 8 odd. And I never felt I had a good rapport established with 9 him. He was vague about his reason for attempting suicide. 10 He was bitter about the things in his life and so on. 11 Q. Bitter about what, for example? 12 A. Well, he talked about his current wife's first 13 husband, her children, that they were against him. Again, the 14 paranoid kind of thing. Well, that's about it. That was the 15 first thing I wanted to get across that this man, unlike most 16 patients that I had contact with, was a very difficult person 17 to establish rapport with because of his oddness. 18 Q. What about this quote and in what context did he 19 say it, quote, I had enough? Was that in connection with him 20 trying to kill himself? 21 A. Yes. 22 Q. Was it with his family that he had had enough, 23 is that the impression that you got? 24 A. Things that were happening to him, his wife's 25 first husband, as I recall, was doing some things -- I don't 183 1 have notes on that at this point, but were doing some things. 2 Her children he felt were against him and he just had enough 3 of the situation, so he wanted out. As I said, his reasons 4 were kind of vague and nebulous. They were not very precise, 5 but it was that general feeling of I want to escape from the 6 situation so I tried to kill myself. 7 Then I think the next key point was this 8 possibility of a perceptual handicap, the organic factor which 9 I saw, and the discrepancy between his verbal ability and his 10 visual-motor ability. That's often seen as an indicator of 11 some kind of organic deficit. His was very significant, a 12 20-point differential. His 112 verbal score, his performance 13 score was only 92, which is a very significant drop in 14 efficiency, which makes you wonder, because he was in a field 15 where he was working with his hands and I could see where that 16 would be very stressful to him. 17 Q. Because of his inability to perform as well? 18 A. Yes. And as I said earlier, it very possibly 19 could have been a factor early in his life to the point where 20 he was mistrustful of other people and felt that they were 21 doing things to hurt him and so on because he couldn't measure 22 up. 23 Q. You make the comment again that he had a bright 24 normal -- or you make the comment that he had a bright normal 25 intellectual endowment? 184 1 A. Uh-huh. 2 Q. And then you go on to discuss this feature of 3 the difference between his -- 4 A. Right. 5 Q. -- two scores? 6 A. It's my feeling that the highest score a person 7 can achieve is the best measure of their potential, and then 8 from that point you look at things that are below their 9 potential and you think why is this lower, what's caused this 10 to be below this potential, why did they not perform at that 11 level in all the other tests. That's the basis for my 12 evaluation of this thing, my analysis. 13 Q. Look at the last two sentences of that 14 discussion on the first page and read those into the record, 15 please, sir, and explain to us what you meant by that. 16 A. Starting with what? 17 Q. "As well, he is a very dependent." 18 A. "As well, he is a very dependent man and tends 19 to avoid active participation with the world unless the 20 situation is clearly structured for him and he has fairly 21 immediate guidance and support. Finally, he is currently 22 quite anxious, and this tends to impair his efficiency and at 23 times leads to rather total immobilization." 24 Q. What do you mean by total immobilization? 25 A. I guess I was thinking in terms of his "I had 185 1 enough, I can't handle anything anymore." That, to me, would 2 be kind of total immobilization. I can't do anything to 3 affect or to improve my situation, I can't, and if they won't 4 change then there's nothing I can do. I think this is 5 characteristic of paranoid people. I think that they -- 6 paranoid people can attempt suicide because they've reached 7 the point -- depressed people attempt suicide by saying, "I'm 8 not good enough, I'm worthless, I can't do anything." 9 Paranoid people say, "They won't let me. I can't do anything 10 because they won't let me. They're against me and the world 11 is against me and circumstances are against me." 12 So either one can kill themselves but for very 13 different reasons. This is my view of it, and I think he 14 occasionally would reach this point where he'd say, "I can't 15 do anything. I can't fight them. You can't fight City Hall. 16 They're too big for me, so I'm going to bow out." 17 Q. Look at Page 2, and there are some words I want 18 to ask you about. You indicate that the man is 19 passive-dependent, rather paranoid, and somewhat schizoid man? 20 A. Uh-huh. 21 Q. Define passive-dependent, rather paranoid and 22 somewhat schizoid, if you want to break it up into three 23 categories or whatever so that we can understand how this 24 relates to Joseph Wesbecker. 25 A. I think I talked about the schizoid aspect 186 1 before. Passive-dependent refers to someone who is passive 2 and depends, as I said, on other people or circumstances to 3 supply them, to gratify their needs. This goes hand in glove 4 with the paranoid aspect because if you are dependent on other 5 people to satisfy your needs and they aren't being satisfied, 6 then you blame the other people. It's their fault. I would 7 be a happy man if it weren't for circumstances, them, what 8 have you. So you avoid taking responsibility for this 9 yourself. You project it onto other people because of your 10 basic orientation, which is passivity and dependency. 11 The schizoid, as I said before, is someone who 12 tends to have, from my view, an idiosyncratic view of the 13 world. They're the ones who look at things somewhat 14 differently from other people and tend to avoid the world 15 because they see the world as threatening so they withdraw 16 into themselves. I guess the most signal term which is used 17 about schizoids is withdrawn, shy, withdrawn kinds of people 18 who just don't relate to others very comfortably. 19 Q. All right, sir. You characterize him down 20 toward the end of that paragraph as a borderline personality 21 with paranoid features. What is a borderline personality as 22 it relates to Mr. Wesbecker? 23 A. I think that books have been written about 24 borderline, and I'm not sure I have read them recently so I 25 can't tell you about it. The way I was seeing it was that 187 1 this is a man who goes in and out of -- like I talked about 2 his fluctuating efficiency. Also he goes in and out of 3 relationship with the world. 4 In other words, his perception of the world is 5 at best borderline. He doesn't see reality quite as we all 6 do, hopefully, and he tends to at times -- under stress he can 7 see the world very, very personally in such a way that if he 8 tries to compare it, if he says to you, "Don't you see that," 9 you would say, "No, I don't see it." He sees it. So that's 10 kind of a projection of his fantasy or daydream onto the world 11 and this perception of what's going on in the world around 12 him. So he can go in and out of that aspect. 13 Q. Right before you get to the diagnostic 14 impression you say, "I think he will be a difficult person to 15 treat in that he really doesn't trust anyone." Tell us what 16 you meant by that in terms of Wesbecker and his treatment 17 course. 18 A. Well, I think in order to really get to the root 19 of his difficulties you have to have a relationship, and I 20 talked earlier about how difficult I felt it was to establish 21 a relationship with him, a relationship involving trust. And 22 since this man is so basically mistrustful or was so basically 23 mistrustful, I couldn't see where he could establish that kind 24 of relationship with anyone who would treat him in a 25 therapeutic relationship. I'm talking now about 188 1 psychotherapy, not drugs. I think he could respond to drugs, 2 I mean, he could take drugs, he would take them because he 3 would cooperate, but he would not be involved in a 4 relationship whereby he could really open up to somebody and 5 trust them enough to tell them what he was really thinking and 6 so on, so I felt he was a difficult treatment case from that 7 standpoint. 8 Q. In summary, would you give us your diagnostic 9 impression, please, sir. 10 A. Well, I said acute anxiety and a borderline 11 personality, and I mentioned what I considered the 12 long-standing perceptual handicap is present but represents 13 only one factor in the personality development. Potential for 14 self-destructive behavior still exists, but I don't feel it is 15 an imminent prospect at this time. I didn't think, as I said, 16 he was imminently suicidal, but the roots were there and the 17 seeds were there for continued behavior, and since he was not 18 a good treatment case I didn't see that there was much hope 19 that this could be alleviated. 20 Q. Other than on the occasion that you have 21 described for the Court and jury and us here today, did you 22 have any other opportunity to see or consult with Mr. 23 Wesbecker on any other occasion? 24 A. No. That was the only time. 25 Q. Doctor, in your meeting with him and evaluation, 189 1 did he ever mention his job? 2 A. I don't recall that, no. Basically he was 3 talking about his family. As I say, I spend very little time 4 discussing that kind of situation because I think the social 5 workers and the psychiatrists would get into that, so I 6 didn't, but he offered this bitterness about his family. I 7 guess the response to my question of him of how come you tried 8 to kill yourself, which is something I like to ask someone 9 who's just tried to kill themselves, and he talked mostly 10 about his family and his wife's first husband and the children 11 reflecting, as I say, bitterness and the idea that he had 12 enough, he just couldn't handle it anymore, but didn't talk, 13 as I recall, nothing about his job. 14 Q. Or the office? 15 A. Or the what? 16 Q. Or, quote, the office? 17 A. No. 18 Q. Doctor Leventhal, I have a couple of questions. 19 How long did you spend with Mr. Wesbecker? 20 A. I would say about two hours. 21 Q. The tests that you ran, I didn't hear, did you 22 run any tests where the tests themselves revealed any type of 23 disorder? 24 A. Well, that's all I based my report on, the 25 tests. 190 1 Q. What tests showed a disorder? 2 A. Well, as I said, the WAIS, for example, the 3 Wechsler Adult Intelligence Scale showed a discrepancy between 4 the verbal and the performance. 5 Q. Is it my understanding that a person on this 6 test who, for instance, is above average in intelligence but 7 who cannot perform manual dexterity for whatever reasons, that 8 that's an indication that he's a psychotic person? 9 A. No. I didn't say that. It suggested to me the 10 possibility of some long-standing organic problem, not 11 psychosis. 12 Q. Not anything to do with his mental problems but 13 maybe physical? 14 A. Well, it's hard to say. Visual-motor 15 coordination can be considered part of the mind in terms of 16 perceiving something visually, interpreting it and then 17 translating it to your motor skills, so that is involved with 18 the mind. I think with that discrepancy I thought that one of 19 the things that might be interfering with it is the possible 20 long-standing organic. 21 Q. Have you ever treated anyone like or similar to 22 Mr. Wesbecker who may have acquired those problems through 23 chemical involvement? 24 A. That's a possibility. Of course, I wasn't 25 treating him. 191 1 Q. Right. I understand. 2 A. I was evaluating him. That's a possibility, but 3 I think -- I'm trying to think of how to make a distinction. 4 I think that that would attack certain specific tests more 5 clearly and his was generally lower, and so this led me to 6 believe that it was a long-standing problem rather than an 7 immediate problem. 8 Q. Now, in the two hours and these various 9 intelligence tests, other than the difference between the 10 I.Q. -- which was high average; right? 11 A. The verbal I.Q. was high, bright normal. 12 Q. And other than the inability to perhaps carry 13 out manual tasks -- 14 A. Well, let me correct that. It wasn't inability. 15 I mean, he was still functioning at the average level, but it 16 was lower than. 17 Q. Okay. A difference between what you would 18 perceive a high average intelligent person being able to 19 perform the manual tasks, his was a little bit lower? 20 A. His was considerably lower. 21 Q. Considerably lower, okay. Now, other than that 22 test, any other tests that you conducted that you have talked 23 about that would show some psychological problem other than 24 what you acquired from him by conversation? 25 A. Yeah. The Rorschach, if I could find my -- here 192 1 it is. The Rorschach test suggested someone who was, as I 2 said before, I would say borderline in terms of their 3 perception of reality. 4 Q. Explain that. 5 A. That's this sheet right here with the funny 6 numbers. 7 Q. With the funny numbers? 8 A. And marks. 9 Q. Is this it right here? 10 A. That's it, yes. 11 Q. Okay. If you look at F plus percent -- 12 A. Pardon me? 13 A. Below the line, there's a line across. 14 Q. Yes. At the bottom? 15 A. Yes. It's circled, F plus percent is circled, 16 53 over 69. 17 Q. Over 69? 18 A. Yes. That is marginal. 19 Q. Who made this? 20 A. I did. 21 Q. Okay. 22 A. I circled it. 23 Q. Where did it come from? 24 A. Where did it come from? 25 Q. Yes. 193 1 A. From the scores of the -- you don't have that 2 sheet? The second sheet. There's a second sheet with my 3 writing on it. 4 Q. This one here? 5 A. Yes, that's it. If you look at that, you see a 6 bunch of scores. 7 Q. Is this all in your writing? 8 A. Yes. 9 Q. And is this all in your writing, too? 10 A. Yes. 11 Q. These came from something, did they not? 12 A. From his responses to the inkblot test. 13 Q. But do you have that? 14 A. That's it. I don't have the test with me, no. 15 It's a series of ten inkblots which you show the patient and 16 they respond what they see. I didn't bring the test itself 17 with me, no. 18 Q. For instance, just take Number One. 19 A. All right. 20 Q. You've got something there that says parentheses 21 pick up? 22 A. He picks up the card. 23 Q. What card is that? 24 A. That's the Rorschach card. 25 Q. What card? Doesn't it have a number? 194 1 A. Number One. 2 Q. Number One. What does that show? 3 A. It's a blot of ink. 4 Q. And what did he say about it? 5 A. He said two big butterflies on a flower. 6 Q. What do most people say? 7 A. One big butterfly. 8 Q. One big butterfly. 9 A. And no flower. 10 Q. No flower. Okay. 11 A. All right. So those are bad responses. 12 Q. Those are bad responses? 13 A. Does that give you some idea or do you want to 14 go on? 15 Q. I appreciate that. 16 A. That's the Rorschach test. 17 Q. What is this thing here? 18 A. That's the Bender-Gestalt. That's the thing I 19 talked about that I described how I show it for five seconds, 20 take it away, and he has to draw it from memory and then I 21 give it back to him and he copies it. Now, his memory was 22 very bad, suggesting again the possibility of something 23 organic. The copy wasn't too bad except he rotated one of the 24 figures, which also sometimes is indicative of an organic 25 problem, so this helped confirm my impression from the WAIS of 195 1 the presence of some kind of organic problem. That's why I 2 gave it. 3 Q. I'm not going to ask you to go over again 4 everything you have already been asked about, but could I 5 interpret what you said is that Joseph Wesbecker had some 6 psychological problems; is that correct? 7 A. Yes. 8 Q. Is psychological a good term? 9 A. That's a good term. 10 Q. And he had some -- in your opinion, some 11 evidence of paranoia; is that correct? 12 A. Uh-huh. 13 Q. And in your opinion schizophrenia or schizoid? 14 A. Schizoid. 15 Q. That's different than paranoia? 16 A. Yeah. 17 Q. Okay. And he also was dependent and he also 18 seemed stressful? 19 A. He was anxious. 20 Q. Anxious. Does psychotic as you used the term 21 psychotic there, does it include paranoia and schizophrenic in 22 sort of a general term? 23 A. He was not schizophrenic. 24 Q. Schizoid? 25 A. Not psychotic, that's right. Paranoid or 196 1 schizoid is not necessarily psychotic. 2 Q. It does not mean that, does it? 3 A. It does not mean that; right. Psychotic people 4 can be paranoid, paranoid schizophrenics, but he was not that. 5 Q. Did I understand you to say that he did have 6 some schizophrenia or some schizoid? 7 A. Schizoid. 8 Q. What's the difference between schizoid and 9 schizophrenia? 10 A. Schizophrenia is a psychosis where the person 11 loses touch with reality. Schizoid is a person, as I 12 mentioned before, shy, withdrawn, uncomfortable with people, 13 but their thinking is still intact and, as I said before, his 14 intelligence... 15 Q. All right. My understanding is also that you 16 felt that his treatment was going to be extremely difficult? 17 A. Psychotherapy. 18 Q. Psychotherapy treatment; is that correct? 19 A. Yes. 20 Q. And all of this, Doctor Leventhal, you concluded 21 from the tests that you gave to him and interviewing him all 22 in about a two-hour period? 23 A. That's right. The interview was very brief. 24 Q. But you came to these conclusions about this man 25 in just that relatively short period of time, two hours? 197 1 A. Yeah. I'm pretty good. 2 Q. Now, a couple other questions and I'll quit. 3 What is this thing with the numbers upside down? 4 A. That's part of the WAIS, the Wechsler Adult 5 Intelligence Scale. It's broken down into subtests and that's 6 some of the subtests. I'm not sure why you have those, but 7 that's all right. 8 Q. Let me ask you a couple of questions here. This 9 test, the Wechsler test, can be given on perfectly normal 10 people and they'll show either their I.Q. or their 11 intelligence quotient on a fixed scale of like you have said 12 110 and above to 120 would be above average, 120 would be 13 superior, and that test alone would not necessarily reveal any 14 type of psychological deficiencies or problems in the people; 15 is that correct? 16 A. No. I said before I use it as a clinical 17 instrument. It does show that. 18 Q. Pardon? 19 A. It does show psychological problems or 20 personality factors and so on. 21 Q. That's what you believe? 22 A. That's what I believe. 23 Q. But I thought you continued that there are other 24 psychologists who do not agree necessarily with that. 25 A. Until they take a course from me. 198 1 Q. Until they take a course from you? 2 A. Then they come around to my way of thinking, if 3 they want to. 4 Q. But you do agree that there are many 5 psychologists who give this test who do not believe that they 6 show, because they haven't had your course, they do not 7 believe they show any psychological problems? 8 A. No. I'm not sure that I agree with that. I 9 think that most psychologists would say that certain 10 psychological problems do show up in the intelligence tests 11 when there are marked discrepancies between the people's 12 abilities. They may not use it as I do, necessarily, but they 13 would, for example, subscribe to the idea that this would show 14 the possible presence of organic brain damage, it would show 15 some paranoia, and so on, but as I said, they might not do it 16 in the same way I do. 17 Q. You are not a medical doctor? 18 A. Right. 19 Q. Is that correct? 20 A. That's correct. 21 Q. You have a doctor in philosophy of psychology; 22 correct? 23 A. Right. 24 Q. So you would not be a, quote, practicing 25 physician? 199 1 A. Exactly right. 2 Q. Is that correct? 3 A. Yes. 4 Q. Doctor, at any time when you were in Mr. 5 Wesbecker's presence, did he ever threaten anybody or any 6 groups of persons? 7 A. No. I can't recall any threats. He merely 8 talked about how they had mistreated him and how angry he was 9 and bitter he was about that as an explanation for the reasons 10 that he attempted suicide. 11 Q. Again, you said earlier, though, he didn't talk 12 specifically about his employer? 13 A. No. No. 14 Q. His fellow employees or the office or anything? 15 A. No, none of that. 16 Q. Did he ever express any homicidal intentions at 17 all? 18 A. No. 19 Q. And based upon these tests, you saw elements of 20 both the depressed side and the paranoid side? 21 A. I saw mostly the paranoid and anger, and I saw 22 that since he couldn't because of his dependency express the 23 anger, one of the natural reactions is to turn against 24 yourself. The logical thing is I can't hit you so I hit me; 25 the anger is internalized and that's what I saw happening or 200 1 this is how I explained his attempted suicide. The question 2 of homicide had not come up at that point, so I didn't address 3 it, and I probably should have. 4 Q. Again, you say that's based upon the tests. 5 What exactly in these three tests would you base your opinion 6 today that he was capable of homicide? What in these three 7 tests would you base that on? 8 A. I think the paranoid element, which was very 9 strong, the amount of anger which I sensed in the tests 10 expressed in various ways. These things combined, when you 11 blame other people for what's happening to you and you're very 12 angry and the control of the anger is weakening, that would be 13 a basis of possible acting-out behavior. 14 Q. Doctor, is there anything in your tests which 15 would indicate that this patient at that time was 16 manic-depressive? 17 A. No. I didn't see evidence of that. 18 Q. Would your tests, either of those three, would 19 they show manic-depressive traits? 20 A. Yeah. I think probably -- I'm trying to think 21 what I would look for. Nothing struck me in the tests, but I 22 have diagnosed people as manic-depressive before, so I'm 23 assuming that there is evidence in the tests to indicate that. 24 Q. Were you looking for that? Would you have 25 tested him differently if you were looking for 201 1 manic-depressive? 2 A. I was looking for possible psychological 3 personality factors which would explain or clarify the 4 suicidal behavior and also enable me to make certain 5 predictions about future behavior, because that was the 6 doctor's concern, and so depression, of course, was one of the 7 things that I would look for. I didn't see much depression. 8 The suicidal thing I got from the paranoid and his dependency, 9 his inability to express the anger, logically then he turned 10 it against himself. 11 As I said before, I think I explained my view of 12 suicide by depressed people as against suicide by paranoid 13 people. There's a difference. They're both suicide so the 14 behavior is the same, but the reasons, the rationale behind 15 it, the underpinnings are different, and I didn't see the 16 depressed picture. I saw the -- 17 Q. The paranoid picture. I believe you also 18 mention that was more consistent with also having homicidal 19 thoughts, too, the paranoid side as opposed to the depressed 20 side? 21 A. Yes. 22 Q. And that's something you neglected to put in 23 your report at that time? 24 A. I did. 25 Q. I would like to talk a little bit about anxiety 202 1 level and how significant his anxiety level was at the time 2 based upon your tests. 3 A. He was quite anxious and that's the thing that I 4 mention, but I didn't see that as indicative as I should have, 5 probably, speculate that this indicated or could indicate some 6 weakening of controls over the anger. 7 Q. Okay. 8 A. But it was a primary factor, acute anxiety. 9 Q. Acute anxiety. Is that again consistent with 10 suicidal tendencies? 11 A. Well, anxiety, I suppose it's part of a picture 12 when people do try to hurt themselves, but anxiety is a 13 separate thing apart from the suicide. 14 Q. But taken with the rest of your diagnosis and 15 your findings, is that an indicator of one of the things -- 16 A. That something is going on, that he doesn't have 17 a comfortable -- see, you can be very passive-dependent, as I 18 described him, and have a situation where your needs are being 19 met and you're not anxious. What makes people anxious is when 20 things are not working for them, their defenses are not 21 working for them, they're not being gratified, their needs 22 aren't being gratified and they become more and more anxious, 23 and then controls begin to weaken. 24 Q. Is that control also with regards to ability to 25 control their actions towards others? 203 1 A. Right. 2 Q. And, again, that's where the homicidal ideation 3 would come in? 4 A. Very possible. 5 Q. Is there anything in your tests which would 6 indicate that Joseph Wesbecker was having mood swings at that 7 time? 8 A. Well, the mood primarily was a negative mood, 9 paranoid, bitter. I didn't see any swings, no elation that I 10 could see. I would look for that. 11 Q. There was no manic behavior? 12 A. Right. 13 Q. Doctor, do you know what his occupation was? 14 A. Did I know? Yeah, I had written down pressman. 15 I'm not sure I know what that is. 16 Q. Did he give that to you? 17 A. Yeah. As part of the -- the front sheet of the 18 WAIS asks for occupation, so I wrote that down and also how 19 much education he had and so on, you ask for that data. 20 Q. Did that show where he was working? 21 A. No. 22 Q. Do you know where he was working? 23 A. Did I know at the time? 24 Q. Yes. 25 A. I don't believe so. 204 1 Q. That didn't have anything to do when you were 2 testing for verbal and motor skills as far as what type of 3 work he was doing, did that become important? 4 A. I suspect what a pressman did and I thought that 5 he might be having a problem doing it as effectively as other 6 people because of the lowered visual-motor coordination, that 7 it might be a problem. You would expect someone who worked 8 with their hands, like if I see a mechanic generally I would 9 expect that their visual-motor would be higher than the verbal 10 because they're people who like to work with their hands, and 11 if it is lower in them it's more significant to me than from a 12 college professor. If I was testing a college professor and 13 his visual-motor was less, somewhat less, I wouldn't be that 14 concerned, but certainly someone who works with his hands if 15 it's much, much lower then it would have more impact, I think, 16 in my thinking. 17 Q. In this case it was significant? 18 A. Yes. 19 Q. Did you go on with that, did you kind of delve 20 into that any more? 21 A. With him, you mean? 22 Q. Yes. 23 A. No. See, I didn't have the test results at that 24 point. As I said, my interview essentially was not to get 25 history, and I don't read the history. The social workers 205 1 have taken histories, the psychiatrists have, the file is full 2 of it. But, again, my idiosyncratic method is not look at the 3 history by other people's opinions or by information in there 4 that might affect me. So I just interview the patient, get 5 the basic data, and then go on and do the tests, let the tests 6 speak for themselves, so to say. 7 Q. Then when you talked about in your report, "I 8 had enough," did you delve into what it was that he had enough 9 about; in other words, can you focus work place or home? 10 A. It was home. I said before he was talking about 11 his wife's first husband who was giving him a hard time and 12 her children. It was his current wife, yes. I tried to 13 pursue that a little bit with him, but he was so vague about 14 it I couldn't pin him down as to how those factors conspired 15 to lead to his suicide attempt. He was very vague about that. 16 As I said in my report about that, vague and very poorly 17 defined. He didn't have a good reason that struck me at the 18 time that what he was telling me was not justification for 19 that kind of act, but he said, "I had enough," and that was 20 it. That was the best I could get from him. 21 Q. But is that part of your function to delve in 22 deeper or just give sort of the results of the testing to, in 23 that case, Doctor Senler? 24 A. Right. 25 Q. And that would be his job, Senler's job -- 206 1 A. Her job. 2 Q. -- to take what you've got in the examination 3 and then he -- she would go ahead and go into each one of 4 these things and get as far as she could? 5 A. Yeah. That was her function. 6 Q. You just do the testing, sir? 7 A. Yes, sir. 8 Q. Thank you, sir. 9 MR. STOPHER: Then we'd like to read, Your 10 Honor, the report which I think there were sections referred 11 to, which is dated April 28th, 1984. 12 MS. ZETTLER: Your Honor, may we approach? 13 (BENCH DISCUSSION) 14 MS. ZETTLER: The report is attached to the 15 deposition, they essentially read the entire thing in as it 16 was. Putting us in the position of objecting to have the 17 report read in is just repetition, and they're trying to 18 highlight it by repetition. It's already been in through the 19 deposition in its entirety. 20 JUDGE POTTER: Mr. Stopher, isn't it in as an 21 exhibit and you've covered all the important parts with him? 22 MR. STOPHER: I don't know that we went over all 23 the important parts. I didn't take the deposition and there 24 were a lot of attorneys chipping in and every word is not in 25 there. 207 1 MS. ZETTLER: The jury can read it for 2 themselves and, frankly, if they didn't read or go over 3 something in the deposition -- this is not Doctor Leventhal; 4 this is somebody up there reading, and we object strongly to 5 Mr. Stopher trying to clean up his deposition that he didn't 6 get to at the time he had the crack at this guy. 7 MR. STOPHER: I just would like to be able to 8 read this exhibit just like we read all other exhibits. It's 9 only two pages. 10 MS. ZETTLER: There's no reason for it, Your 11 Honor. 12 JUDGE POTTER: Wait. Wait. 13 It's in as an exhibit. I'm going to let him 14 read it. 15 (BENCH DISCUSSION CONCLUDED) 16 Q. Again, sir, would you refer to the report of 17 April 28, 1984, which is an exhibit and read that 18 one-and-a-half page document, sir? 19 A. "Dear Doctor Senler, this is my report on Mr. 20 Joseph T. Wesbecker seen on 4-20-84, at Our Lady of Peace for 21 a psychodiagnostic evaluation. Tests Administered: WAIS, 22 Bender-Gestalt, Rorschach. 23 "Behavioral Observations: Mr. Wesbecker was 24 most courteous and cooperative, although I felt a sense of 25 distance and almost alienation when with him. Rapport was 208 1 acceptable on the surface, but I really never felt any sense 2 of a real relationship. There is nothing strikingly bizarre 3 or peculiar about him, yet one feels a strangeness which is 4 hard to define. He spoke rather bitterly about the stressors 5 in his life, his first wife, his current wife's first husband, 6 his children, at al. Despite this, his reasons for attempting 7 suicide are rather nebulous. I suppose I could sum it up by 8 saying he struck me as a quite odd duck, although I have 9 difficulty really putting my finger on what gave me that 10 impression. 11 "Discussion: Mr. Wesbecker is a man of bright 12 normal intellectual endowment as his verbal I.Q. of 112 would 13 indicate. He is, however, only functioning in the average 14 range, obtaining a full scale I.Q. of 104. There is a 30 15 point" -- that's a typo. It's actually 20 point. 16 JUDGE POTTER: You're just reading, Mr. Myers. 17 A. "... discrepancy between his verbal I.Q. and his 18 performance, 92, and this is highly significant and seems 19 attributable to several factors. First, there is some 20 evidence of a long-standing perceptual handicap which he has 21 striven mightly to hide, but which has undoubtedly been a 22 stress factor for a long time. As well, he is a very 23 dependent man and tends to avoid active participation with the 24 world, unless the situation is clearly structured for him and 25 he has fairly immediate guidance and support. Finally, he is 209 1 currently quite anxious, and this tends to impair his 2 efficiency and at times leads to rather total immobilization. 3 "Basically, the picture is of a 4 passive-dependent, rather paranoid, somewhat schizoid man who 5 perceives the world as threatening and harbors a great deal of 6 anger at what "they" have done to him. While he is not 7 frankly psychotic, his perceptions of the world can best be 8 described as "borderline" and he is probably best 9 characterized as a borderline personality with paranoid 10 features. How much the long-standing perceptual difficulty 11 had to do with this is difficult to say, but it most certainly 12 was a factor. 13 "Currently, he is attempting to contain his 14 anger so that it doesn't jeopardize the gratification of his 15 dependency needs by alienating support figures. To do this, 16 he tends to turn his anger against himself and so a potential 17 for self-destructive behavior remains, although the danger of 18 acting out is not imminent. I think he will be a difficult 19 person to treat in that he really doesn't trust anyone enough 20 to engage in a psychotherapeutic relationship, the only 21 possible vehicle for getting at the personality disorder. 22 "Diagnostic Impression: Acute anxiety in a 23 borderline personality. Evidence of a long-standing 24 "perceptual handicap" is present but represents only one 25 factor in the personality development. Potential for self- 210 1 destructive behavior still exists, but I don't feel it is an 2 imminent prospect at this time. 3 "Thank you for the referral. I trust my report 4 will prove helpful." 5 JUDGE POTTER: Okay. Ladies and gentlemen, 6 we're going to take the evening recess till 9:00 tomorrow 7 morning. As I mentioned to you-all before, do not permit 8 anybody to communicate with you in any way about this case, 9 and that includes information that might come to you 10 inadvertently through a newspaper or a friend just talking to 11 you about the case. Do not discuss it among yourselves and do 12 not form or express opinions about it. We'll stand in recess 13 till 9:00 tomorrow morning. 14 (JURORS EXCUSED; HEARING IN CHAMBERS) 15 JUDGE POTTER: Let me give each of you-all a 16 copy of an order I've entered. I think we had a discussion 17 off the record earlier this morning, and I told you-all that I 18 had decided how I was going to rule and that what we're 19 talking about is the denial of the motion by Lilly for a 20 summary judgment on punitive damages; that I had decided how I 21 was going to rule and I had promised you-all something more 22 than that in writing, but had decided that if I gave you 23 something more extensive it might end up in the newspaper or 24 create some publicity that in some way might work its way into 25 the trial, and so if no one objected, I preferred just to deny 211 1 the motion and go on. And while Lilly objects to the ruling, 2 they did not have any objection to it not being done with any 3 kind of extended opinion. But my thought was that in ruling 4 on that kind of motion, you assume a lot of facts just because 5 you have to take everything most favorable to the Plaintiff, 6 and if I did that, I was afraid that people reading it might 7 not put it in context and might give the denial of the motion 8 more meaning than it actually deserves. 9 We have Mr. Rakow. Before we go over Mr. Rakow 10 line by line, the Plaintiffs have sort of a general motion 11 that the expert opinion that Mr. Rakow is planning to issue in 12 this case or give in this case is really not appropriate. Or 13 why don't you articulate it, Ms. Zettler. 14 MS. ZETTLER: Well, Your Honor, just from a 15 procedural standpoint, Mr. Rakow has never been designated by 16 Lilly to be an expert in this case. They have designated 17 other experts in this area: I believe Mr. Fox, Mr. Mercer and 18 Mr. Winstel. They don't need this man's testimony. 19 JUDGE POTTER: Wait. Wait. I'm looking at -- 20 to me, Mr. Fox is sort of the same type of thing. Who are the 21 other two, because I didn't make notes of other two people 22 that I thought were going to be... 23 MS. ZETTLER: Ed Mercer and Ed Winstel are both 24 police officers here, Judge. They're both going to be offered 25 to give opinions on the number of different issues that 212 1 pertain to issues of security at Standard Gravure. 2 JUDGE POTTER: Okay. The two police officers. 3 I really didn't count them. 4 MR. STOPHER: Neither one of them are designated 5 for that, Judge. Neither one of them has testified about 6 that. 7 JUDGE POTTER: Well, I read one of them. I 8 thought one of them was Burbrink and the other one was -- I 9 just took them off the -- 10 MS. ZETTLER: No. Those are lay cops, I guess 11 is a better way to put it. Jackman and Burbrink are 12 investigating officers. They haven't been designated as 13 experts. 14 JUDGE POTTER: Let me go get my notes. 15 (JUDGE POTTER LEAVES AND REENTERS CHAMBERS) 16 JUDGE POTTER: Yes. Winstel and Mercer. I 17 thought they were more scene people. 18 MR. STOPHER: They are, Judge. They have 19 nothing to do with security at Standard Gravure, offered no 20 opinions on that when the Plaintiffs took their depositions, 21 and the same is also true with regard to Mr. Fox. His 22 expertise is criminology and not security of the premises. 23 JUDGE POTTER: Okay. Go ahead, Ms. Zettler. 24 MS. ZETTLER: Well, obviously we differ in our 25 opinion on that, Judge. If the cops were just truly -- 213 1 JUDGE POTTER: No. Let's talk about Mr. Rakow. 2 MS. ZETTLER: I know. The point I'm trying to 3 make is if the policemen were not being offered to render 4 opinions then why were they set out as experts. But, 5 anyway... Mr. Rakow, first of all, was offered as an expert 6 purely against Hall Security, not Standard Gravure. What 7 Mr. Stopher attempted to do in his deposition was try to get 8 him to render opinions about Standard Gravure, which he has 9 designated those questions and answers as parts of the 10 deposition that he wants to read. 11 In addition, the only reason they're really 12 offering Mr. Rakow is because they want to try to get in that 13 we had an expert that we had designated against Hall Security 14 that we are not using at this time. We feel that's in 15 violation of the Court's order about evidence of other 16 settlements in the cases and would prejudice us to a great 17 extent if they're allowed to use the deposition for that 18 purpose. 19 Finally, I guess, -- and I haven't read what 20 they submitted today and I would like an opportunity to read 21 that and possibly make a response in writing -- I don't 22 believe they've established, as the Court pointed out last -- 23 or the week before last -- Number One, if there is a duty 24 either by law or by standard within the community here for 25 Hall Security or Standard Gravure to provide security and, if 214 1 there is a duty, what that duty entails. Mr. Rakow never 2 testified in his deposition as to any standard in this 3 community. He testified in retrospect. Frankly, I don't 4 think he was very effective in his opinions. He never gave an 5 opinion that any of the actions or lack thereof of by either 6 Hall or Standard would reach a substantial -- become a 7 substantial contributor to the events on September 14th, 1989. 8 JUDGE POTTER: Okay. Ms. Zettler, Mr. Stopher's 9 brief this morning, I have read it during the day, and it is, 10 at least in my opinion, different from the tendered 11 instructions. It strikes me that the instructions against 12 Standard Gravure are going to be -- I hate to keep getting up 13 and leaving, but wait just a minute. 14 MR. SMITH: Just as long as you come back, Your 15 Honor. 16 JUDGE POTTER: All right. 17 (JUDGE POTTER LEAVES AND REENTERS CHAMBERS) 18 JUDGE POTTER: When I talked on, a week ago 19 Friday, the tendered instructions by Lilly just put a duty on 20 Standard Gravure to furnish a reasonably safe workplace to 21 others and the premises and just put the duty on them to 22 provide reasonable security to report to the police, to enact 23 and enforce rules prohibiting unauthorized persons, to provide 24 reasonably safe evacuation routes, et cetera. Their brief is 25 much closer to what I thought the eventual instructions would 215 1 be. And not that I've come to any conclusion, but it would be 2 something that they had a right to -- duty to use ordinary 3 care to protect their employees. If they realize or should 4 realize that they're at unreasonable risk or harm from another 5 or that they realize or should realize that there's a 6 likelihood of something. I'm just picking some quotes out of 7 the... That they had a duty to protect them, their employees, 8 from reasonably foreseeable criminal acts. I'm just picking 9 some quotes out of the various authorities cited to me in 10 their brief. 11 And, Mr. Stopher, I guess my problem is with 12 the -- for planning purposes, Ms. Zettler, I think there will 13 be an apportionment between Mr. Wesbecker, Lilly and Standard 14 Gravure, because no matter which one of that formulation I 15 pick, or if I pick just the one that Lilly has suggested, I 16 think there's enough evidence to take the issue to the jury. 17 My idea with -- my problem with Mr. Rakow as 18 goes to Standard Gravure is that he doesn't address that 19 issue. He addresses what would happen in a perfect world. 20 And let me just say one more thing, Mr. Stopher, and then I'll 21 listen to you. 22 When I was on this vacation over the break, I 23 was shopping for -- a gift shop in a museum, and there was a 24 stocking stuffer called Famous Cowboy Sayings, and I bought 25 one for each son. And it had such smart things in it as don't 216 1 kneel when you -- don't squat down with your spurs on. But 2 there was one -- we were reading as we were driving along, and 3 there was one saying in there that kind of, I think, for me, 4 describes Mr. Rakow and maybe Mr. Fox is, "Never ask a barber 5 if you need a haircut." And these gentlemen are in the 6 business of telling you how to run a perfect protection, and 7 it's just how much money you want to spend and how much of the 8 perimeter you want to defend, to quote him. And does he 9 address the issue, Mr. Stopher, of what an employer should do 10 or would do under certain circumstances. 11 And that's my problem with him is he doesn't 12 address Standard Gravure. If he had run 20 companies and he 13 says in our companies what happens is this, he might be a 14 different situation as far as Standard Gravure. And I know 15 I've said a lot, but go ahead and say what you want to say. 16 MR. STOPHER: Sure. The fact of the matter is, 17 Judge, that I didn't hire Mr. Rakow, Mr. Foley did. And he 18 was given information about Standard Gravure and its method of 19 operation. He was then asked to give opinions, which were 20 stated in advance in writing as to what his opinions were. 21 And in this deposition and in the particular pages that I've 22 marked in here -- and I apologize I didn't bring my little 23 outline along, but basically what Mr. Rakow said was that -- 24 if you'll look at page -- let's see -- 97. He is, I believe, 25 sir, being questioned by either myself or Mr. Morris, who is 217 1 one of the Plaintiffs' attorneys, and he's asked, "Did you 2 find that the level of security in this situation, that is, at 3 the Standard Gravure company on September 14, 1989, did you 4 find that that level of security was determined by the 5 Standard Gravure company," and he says, "I suppose by contract 6 it was." 7 He then goes on to give opinions down at the 8 bottom here of Page 99, Your Honor, or in the middle of 9 Page 99, Line 10, he goes on and says, "And have you been 10 informed that Mr. Shea said that the level of security was 11 appropriate for the kind of business that he was operating? 12 "Answer: That was his opinion; yes, sir." Yes. 13 I understand, and that Don McCall -- and then he goes on to 14 ask him about other people there. He then -- "In your review 15 of the depositions in the case, did you find that the level of 16 security for the Standard Gravure building there on September 17 the 14th was the same level of security that had been in 18 effect for a number of years going back," and he says yes. 19 Did you review -- and then he finally gets down here 20 someplace, if I can find it, that he gives his opinions. 21 JUDGE POTTER: He's got -- I mean, he -- I don't 22 have any problem with that. 23 MR. STOPHER: Yeah. Actually, Judge, it's on 24 Page 102. This is Mr. Morris asking him, "In your opinion, 25 did the level of security there, in September of 1989, at the 218 1 Standard Gravure building meet accepted standards for the 2 industry," and he's talking about the printing industry. 3 "In my opinion, no. 4 "And how in your opinion was the level of 5 security less than standard?" 6 And then he goes on here for several pages to 7 describe all the details of what is substandard about that 8 level of security. And then he finally gives the opinion, 9 Judge, that if the security had been as it should have been, 10 that this would not have occurred or it would have been 11 substantially reduced in scope. 12 JUDGE POTTER: Where does he say that? 13 MR. STOPHER: All right, sir. 14 JUDGE POTTER: Because I've marked your 103 and 15 your 104. That was I guess another thought I had with him. 16 Particularly as to Hall Security, he never really mentions how 17 things would be different if Hall Security had pulled the fire 18 alarm. 19 MR. STOPHER: Judge, I didn't even designate 20 that. He does not separate and did not separate, and I asked 21 him this specifically, he does not segregate the 22 responsibility between Standard Gravure and Hall Security. He 23 basically took the position that he couldn't do that. But he 24 does go on here -- let me see if I can get to where I ask him 25 these questions. 219 1 MS. ZETTLER: I think he just passed it up, 2 Judge, where he says it's a possibility. 3 JUDGE POTTER: Let him find it. 4 MR. STOPHER: He gives a lot of opinions, Your 5 Honor, on Page 152 -- I shouldn't say a lot of opinions; he 6 gives an opinion on 152 and 153 as what should have been done 7 to defuse the situation, given the history of threats and, 8 of course, those things were not done. 9 MS. ZETTLER: Where are you talking about, Ed, 10 because I don't see it? 11 MR. STOPHER: 152, 153, 154. On Page 166, 12 Judge, he gives opinions about the inadequate security in 13 terms of personnel, the location of the personnel, the 14 training of the personnel, the supervision of the personnel. 15 There was a failure to act in accordance with standards that 16 were applicable in the industry. Then he was asked, "Is it 17 your opinion, sir, that if those matters had been handled 18 properly, that the scope of this tragedy may have been 19 substantially reduced," and his answer was, "I think so." 20 "Is it your opinion, sir, that human life may in 21 fact have been saved? 22 "Could have been. 23 "And that the injuries might have been avoided 24 or reduced? 25 "It's a possibility; yes, sir. 220 1 "In connection with Mr. Throneberry's own 2 qualifications and experience," and then he goes on from 3 there. 4 So he does express opinions, Number One, that 5 based on the history of threats, that Standard Gravure failed 6 to act appropriately in two regards, one is in dealing with 7 the person who made those threats, where he describes that 8 they should have made contact with Mr. Wesbecker; secondly, in 9 terms of providing reasonable security for the occupants of 10 the building. And then he goes on to say that if those things 11 had been done that, in his opinion -- "Is it your opinion that 12 if those matters had been handled properly, the scope of this 13 tragedy may have been substantially reduced," and his answer 14 was, "I think so." 15 Now, the fact of the matter is, Your Honor, I 16 did not introduce this man as a witness of mine for the simple 17 reason that the Plaintiffs introduced this man and his 18 opinions. There were no objections to my questions of him as 19 being incompetent or inappropriate or inadequate. And the 20 fact of the matter is that this testimony is not just 21 testimony that's to be viewed in a vacuum; it is accurate 22 testimony or supposed to be accurate testimony that's to be 23 used for all purposes, and it can't be withdrawn or shielded 24 in some way by saying that, well, this was to be used only for 25 this limited purpose. 221 1 JUDGE POTTER: No. I agree with that. 2 MR. STOPHER: I think that under the law, 3 Standard Gravure had a duty to act reasonably, to exercise 4 ordinary care. In light of the circumstances, it is Mr. 5 Rakow's opinion that after he read about the threats, in 6 particular, which I gave to him by hypothetical and some of 7 which he knew on his own, that the security there was 8 inadequate. And I think that is an appropriate opinion, 9 particularly, Your Honor, in rebuttal to the opinion of 10 Mr. Shea, which came in through questioning by somebody else 11 that Ms. Zettler wanted to put in as a matter of, quote, 12 completeness. He was asked by Mr. Carroll whether or not he 13 thought that the security there was adequate, and Mr. Shea 14 said yes. And we most definitely think that the testimony of 15 Mr. Rakow, whose expertise is security of premises, is 16 admissible and is relevant to the issue as to whether or not 17 Standard Gravure exercised ordinary care under these 18 circumstances where they knew or should have known that there 19 was an unreasonable risk of foreseeable or reasonably 20 foreseeable criminal activity against the premises or against 21 the people that operated there. 22 MS. ZETTLER: May I respond, Your Honor? 23 JUDGE POTTER: Uh-huh. 24 MS. ZETTLER: First of all, I'd like an 25 opportunity to read and respond to the brief that they 222 1 submitted today because this is a very important issue, and I 2 don't think it's something that should be just taken lightly. 3 I mean, if it turns out that what they've submitted to you, 4 Judge, is not the law and is not the standard, letting in his 5 deposition is going to prejudice us even more. Okay? 6 Second of all, as Mr. Stopher himself pointed 7 out, this man said things like "it was a possibility; it could 8 have happened." He never says that it's his opinion that this 9 is a substantial factor. He says it could have been. He 10 gives him a hypothetical, which he doesn't ask him if it's his 11 opinion within the scientific standard given these facts. 12 This man was offered against Hall Security in response to a 13 motion for summary judgment, and he was not asked nor did he 14 render opinions about Standard Gravure. 15 JUDGE POTTER: Well, he did. 16 MS. ZETTLER: Now, frankly, I don't have my copy 17 of the deposition with me because I wasn't expecting us to do 18 this. 19 JUDGE POTTER: (Hands document to Ms. Zettler). 20 MS. ZETTLER: I have all my stuff marked on all 21 my pages, so I can't -- I don't have it with me, so I can't 22 cite you to specific chapter and verse, but he says in there 23 he's not rendering opinions against Standard Gravure, not that 24 he can't distinguish between the two. Those pages that Mr. 25 Stopher has cited are opinions that he has given in the 223 1 context of the security provided by Hall Security, not the 2 security provided by Standard Gravure. 3 Again, if -- you know, they should have hired 4 their own expert in this case if they wanted to, and they have 5 hired experts that they're going to put on the stand. 6 JUDGE POTTER: Well, well... 7 MS. ZETTLER: And what they want to do is get in 8 the fact that this guy was our expert and that we aren't using 9 him now and, hopefully, by that, bootstrap the fact that we at 10 one point or another sued Hall Security, and that they are no 11 longer a party in this case, leaving the impression that it 12 was settled. 13 I think the biggest thing right here, though, 14 Judge, is I really want an opportunity to read that brief. 15 I'd like to check the citations; I'd like to see if the law is 16 accurate. 17 JUDGE POTTER: Well, their brief is, as I say -- 18 I mean, it's kind of what I expected. Okay? And when we get 19 down to actually picking words, it may be important to read 20 their brief, but right now, whether you pick -- and I'm 21 quoting from Page 5 that says, "The Kentucky courts have 22 applied those sections to impose liability in a variety of 23 contexts, quote, for the failure of a person to prevent 24 reasonably foreseeable criminal conduct." 25 MS. ZETTLER: You're at Page 5? 224 1 JUDGE POTTER: Yeah. 2 MS. ZETTLER: I know, but I don't see that 3 there. 4 JUDGE POTTER: Up at the top. It's not a quote. 5 MS. ZETTLER: I see it. Okay. 6 JUDGE POTTER: It's a quote from their brief, 7 not their brief quoting a case. 8 MS. ZETTLER: I see. Okay. I just think -- 9 JUDGE POTTER: And my problem is and -- that I 10 do not see that as to Standard Gravure, Mr. Rakow addresses 11 what the legal standard is. Legal standard is, at least in my 12 opinion, currently substantially below what Mr. Rakow and 13 apparently most people in the security industry would consider 14 appropriate. If General Electric does not want to put a guard 15 on its gate, that's up to the General Electric plant people. 16 I think anyone in the security industry would say, gee whiz, 17 you need somebody to check the parking lot and that kind of 18 stuff, but as far as the criminal acts of third parties, I 19 don't think they're obligated to do that until something crops 20 up. 21 And as I kind of see it, if the jury believes 22 that Standard Gravure acknowledged it made Mr. Wesbecker's 23 approach reasonably foreseeable, it's not an issue of whether 24 they did the appropriate thing; they didn't do the appropriate 25 thing. Not that I'm going to direct a verdict, but I see the 225 1 fight over Standard Gravure not so much on whether they did 2 the appropriate thing, but whether or not all this talk among 3 the employees and, quote, threats, unquote, makes it such that 4 they -- his conduct was reasonably foreseeable or his conduct 5 presented -- his threats made, you know, the situation 6 unreasonably dangerous there. 7 So I am going to sustain the Plaintiffs' motion 8 to exclude Mr. Rakow as an expert witness. I guess the thing 9 to do now is to introduce his deposition by avowal, pages -- 10 the whole thing. 11 MS. ZETTLER: I think they did just about all of 12 it, Judge. 13 JUDGE POTTER: Ms. Zettler, do you have any 14 desire to go through and argue about what their avowal 15 testimony is? If I'm wrong and you prevail, you can argue 16 that part out with the Court of Appeals. 17 MS. ZETTLER: Wait. I guess I'm confused. 18 You're not letting the deposition in; right? 19 JUDGE POTTER: I'm sustaining your objection 20 to -- 21 MS. ZETTLER: Okay. 22 JUDGE POTTER: -- using him as an expert witness 23 on the standard of care of Standard Gravure, and now it comes 24 to what they want to put in by avowal. 25 MS. ZETTLER: Okay. I guess the only thing I 226 1 would like to do, Judge, is enter or file a copy of our 2 objection -- our formal objection. They were served with that 3 over the weekend, so... That should be an original. Other 4 than that, I don't think we need to get into a full-blown 5 motion. I think we can just stand on what we've talked about 6 today and in the past on the subject. 7 JUDGE POTTER: Okay. Except for getting down to 8 the nitty-gritty of going over the depositions to be used in 9 the next couple of days, does that take care of everything 10 that's still... 11 MS. ZETTLER: Right. Let me tell you what -- 12 I've given them on -- and I'll be honest with you. I got home 13 and I found I didn't have Doctor Moore or Doctor Schramm's 14 dep with me. I don't know what happened. I will do those 15 this evening before sevenish and get them to Larry tonight, if 16 you want to meet in the morning and go over those. If they're 17 anything like the other doctors' depositions, there shouldn't 18 be too many objections. I didn't have too many objections to 19 those. 20 MR. MYERS: I'll be glad to meet tomorrow 21 morning. 22 MS. ZETTLER: And the same thing with -- I'll do 23 Timothy Lattray's tonight, too, which we didn't get until last 24 week, so... And I think that's it. 25 MR. MYERS: That leaves us with three fairly 227 1 short doctors, Doctor Senler, Doctor Beanblossom and Doctor -- 2 MS. ZETTLER: Right. I'm talking about the ones 3 I haven't gotten the objections to you yet. 4 MR. MYERS: Those are the three that are 5 outstanding. 6 JUDGE POTTER: All right. Let's make it -- how 7 about seven? We'll move it up. That will give us plenty of 8 time. Because that will give Mr. Stopher stuff to put in his 9 bucket tomorrow. 10 MS. ZETTLER: Yeah. 11 MR. STOPHER: Okay. I just want to make sure 12 now that I've got stuff ready to go at 9:00, because, I mean, 13 when you take out Rakow -- 14 JUDGE POTTER: Have you got readables? 15 MS. ZETTLER: Yeah. 16 MR. STOPHER: See, we've read everything that's 17 been determined by the Court. 18 JUDGE POTTER: Right. They are not videos; 19 these are read? 20 MR. STOPHER: Right. 21 MS. ZETTLER: Right. And these -- and, Judge, 22 frankly, I think we can get through these either tonight, if 23 you want to do them tonight, or tomorrow morning. 24 MR. STOPHER: I think we ought to do something 25 tonight, Judge, because -- 228 1 JUDGE POTTER: Okay. Have you got one where 2 both of them -- both of you have filed your objections? 3 MS. ZETTLER: Sure. 4 MR. STOPHER: I'd like to take them in 5 chronological order if we can, so that it's not as confusing 6 as it might otherwise be. And if you start, Judge, with 7 Doctors Duran and Beanblossom and Senler before you get to 8 Moore and Schramm. 9 JUDGE POTTER: Okay. Okay. 10 MS. ZETTLER: That works out good, Ed, because 11 those are the ones that I've looked at and made my objections 12 to. 13 JUDGE POTTER: Okay. 14 MR. STOPHER: That way, Judge, I'll have stuff 15 marked and I can read it tomorrow and we won't get bogged 16 down. 17 JUDGE POTTER: Okay. Are you going to stay 18 around? 19 MR. STOPHER: I haven't got anyplace else to go. 20 I want to hear what the objections are to Doctor Beanblossom, 21 which is a whole whopping 13 pages in length. 22 MS. ZETTLER: Well, there's only two objections, 23 so... 24 JUDGE POTTER: Wait. Wait. 25 MR. STOPHER: You want to start with Duran? 229 1 JUDGE POTTER: Doctor Duran is whom? 2 MR. STOPHER: He is a physician, Judge, who saw 3 Mr. Wesbecker because of a stress-induced torticollis, which 4 is a neck situation where he tenses up as a result of stress. 5 JUDGE POTTER: When did he see him? 6 MR. STOPHER: 1980, sir, May the 28th, at the 7 emergency room. 8 JUDGE POTTER: Okay. All right. Let me go get 9 a pencil. 10 (JUDGE POTTER LEAVES AND REENTERS CHAMBERS) 11 JUDGE POTTER: The first group, 15 through 17, 12 are overruled. He does say, "Let's say it would be probable." 13 He doesn't have to use the magic words. 14 MS. ZETTLER: When you say it would be probable, 15 you're talking about the area where they're trying to tie in 16 this second emergency room visit with the torticollis that he 17 saw early on? 18 JUDGE POTTER: Right. Well, as I understand it, 19 they asked him a question that, May 28th do you have an 20 impression as to the cause for his torticollis, and he says 21 it's hysterical reaction, and then on Page 16 he says that 22 it's probable, at Line 15. 23 MR. STOPHER: Judge, the stuff on Page 19, I 24 don't have any objection to taking out. 25 MS. ZETTLER: Starting with Page 18, Line 25? 230 1 MR. STOPHER: Yeah, Line 25. 2 MS. ZETTLER: Through where? The insurance 3 billing and all that? 4 MR. STOPHER: Let's see. Uh-huh. Down to 5 Page 20. 6 MR. STOPHER: So it will come out from Page 18, 7 Line 25, through Page 20, Line 4. 8 MS. ZETTLER: Okay. 9 JUDGE POTTER: So the objection is overruled -- 10 let's do it this way. 11 MS. ZETTLER: Why don't I just withdraw the 12 objection to the first couple of lines, 19 through 24. 13 JUDGE POTTER: So that one is overruled and the 14 other one is sustained. 15 MR. STOPHER: On Page 20, I don't think this was 16 designated or objected to by the Plaintiffs, but I think the 17 testimony about, "My name is Tracy Prewitt, I represent Doctor 18 Coleman," ought to come out. 19 MS. ZETTLER: Okay. That's fine. I missed 20 that. Thank you, Ed. 21 MR. STOPHER: I think the same thing applies to 22 Nick Stein. 23 MS. ZETTLER: That's partially in the objection 24 on Page 21, too. 25 JUDGE POTTER: All right. I'm going to 231 1 sustain -- overrule 21 and sustain 22, 10 through 17. 2 MR. STOPHER: Yeah. I agree with that. That 3 ought to come out. 4 MS. ZETTLER: This is -- 5 JUDGE POTTER: The first part of 22. Let me 6 look at the second part of 22 with 23. 7 MR. STOPHER: I don't have any problem with 8 taking out the second part of 22. 9 JUDGE POTTER: And 23? 10 MR. STOPHER: Does that go on on the same... 11 MS. ZETTLER: Uh-huh. 12 JUDGE POTTER: I mean, if you-all can agree 13 that -- 14 MR. STOPHER: I mean, the congenital stuff I 15 don't think is relevant. 16 JUDGE POTTER: I'm going to overrule the second 17 22 and 23. If you-all agree you want to take it out... Maybe 18 they want to rule out that somebody on the jury has heard 19 about it as being congenital. 20 MR. STOPHER: I think we can take out the last 21 four lines there on 22 and the first three lines on 23. 22 MS. ZETTLER: Okay. 23 MR. STOPHER: I think that takes care of that 24 one. 25 MS. ZETTLER: You didn't rule on 23, Judge. 232 1 JUDGE POTTER: Yeah. I overruled it. 2 MS. ZETTLER: Did you? 3 JUDGE POTTER: To the extent -- except to the 4 extent that you-all said you wanted to take out the 5 congenital. 6 MS. ZETTLER: Okay. Can I just make one thing 7 clear for the record? 8 JUDGE POTTER: Yes, ma'am. 9 MS. ZETTLER: All of these opinions that he's 10 giving about the torticollis being an anxiety thing is all 11 based on a subsequent visit to the hospital regarding anxiety 12 that somebody then turns around and tries to connect up. 13 Okay? I just want it understood for the record that it's not 14 something that he came up with, Number One, on his own and, 15 Number Two, that that's something that he had said in his 16 original diagnosis of the torticollis. That's where I think 17 that the questions are improper. 18 JUDGE POTTER: I didn't understand -- just so 19 I'll understand... 20 MS. ZETTLER: Sure. His original diagnosis of 21 torticollis was made on -- hold on one second. 22 JUDGE POTTER: May 28? 23 MS. ZETTLER: May 9th, 1980. Then on May 28th 24 he goes into the hospital with anxiety, not torticollis, okay. 25 And they turn around and connect up this torticollis. 233 1 JUDGE POTTER: Who is "they"? 2 MS. ZETTLER: Mr. Stopher, et al, who was at the 3 deposition. 4 MR. STOPHER: I wasn't at the deposition. 5 MS. ZETTLER: Or Mr. Freeman, I'm sorry. Turn 6 around and connect up the torticollis with the anxiety that 7 happened after, subsequent. He's speculating all over the 8 place. He's saying, well, it could have been, it could have 9 been, it could have been. I just want it clarified for the 10 record that that's what he's doing. 11 JUDGE POTTER: All right. I understand. But 12 basically, as I understand it, the doctor didn't see him when 13 he came in for the anxiety; he only saw him the one day for 14 the torticollis? 15 MS. ZETTLER: Oh, yeah. Before the anxiety. 16 JUDGE POTTER: Right. And so they say, I want 17 to show you a medical record or assume, or whatever, that he 18 came back how much later, three weeks later for anxiety, what 19 do you think about the torticollis, and he said it's probable 20 because there were no other causes and it went away. 21 MS. ZETTLER: And then he reaches the level of 22 an expert that has not been submitted as an expert. 23 JUDGE POTTER: Well, okay. Beanblossom. 24 MS. ZETTLER: Another short but sweet one, 25 Judge. 234 1 MR. STOPHER: I think I am going to leave 2 you-all on this one because I think the next two are pretty 3 straightforward. 4 JUDGE POTTER: Rank has its privileges, huh, Mr. 5 Stopher? 6 MR. STOPHER: Well, I think I better go back and 7 -- since you struck Rakow, I guess I better go back and get 8 somebody to fill in the time tomorrow. 9 I do think, Judge, if I could say in response to 10 your ruling, that there is one thing that I would like for you 11 to reconsider about that, and that is that if I understand you 12 correctly, and I'm not -- I want to make sure that I do. 13 You're excluding his testimony on the basis that, as you see 14 it, the jury issue is whether or not it was reasonably 15 foreseeable, the risk was unreasonably foreseeable. 16 JUDGE POTTER: Right. 17 MR. STOPHER: Not what the consequences of -- in 18 other words, let's assume for the moment that Mr. Shea had 19 said, "You're right, Mr. Stopher, the risk was unreasonable 20 and we failed to do anything about it." Okay? Let's just 21 assume that hypothetically. If I understand the Court's 22 ruling, if Mr. Shea had said that, then Mr. Rakow's opinions 23 would have been relevant as to what level of security would 24 have been adequate and should have been in place. 25 JUDGE POTTER: Or, better yet, Mr. Shea said, 235 1 "Yes, I got a certified letter, that I believed he was coming 2 and I took every precaution possible to stop him." Then Mr. 3 Rakow would be permissible to address what could and could not 4 have been done to protect the place. 5 MR. STOPHER: You see, my position is that I 6 believe that there is evidence in this case to support a 7 conclusion that Standard Gravure knew or should have known. 8 And, given that threshold -- now, there may be a dispute about 9 it; admittedly, it is a jury issue. But given that threshold, 10 then I am entitled to prove through Mr. Rakow or anybody else 11 that's qualified as an expert, as to what level of security, 12 given that set of circumstances, should have been in place. 13 And it is his opinion that, given that background factually, 14 that the level of security was inadequate and that it may well 15 have prevented some or all of the injuries that occurred. 16 In other words, the consequences of that 17 knowledge, either actual or constructive, is what he speaks to 18 as to what should have been done. And I think that should be 19 admissible, even though, if I understand your ruling correctly 20 or your statements -- I don't know if it is a ruling -- it's 21 your opinion that that's pretty self evident that they didn't 22 do that, and that the issue is whether or not they had actual 23 or constructive notice. 24 JUDGE POTTER: Well, the issue for the jury, I 25 think, will be -- don't anybody think I'm going to direct it 236 1 because everybody agrees that Standard Gravure did nothing. 2 MR. STOPHER: They did nothing. 3 JUDGE POTTER: Right. So if they were put on 4 alert and needed to take some action because of what happened, 5 because they did nothing, they obviously -- I think a jury 6 could very easily find that they didn't do what they were 7 supposed to do. And Mr. Rakow is talking about as kind of a 8 generic, all-the-time kind of thing, perimeter and defensible 9 and that kind of stuff, and he's not saying -- and I'm not 10 sure an expert could say this, that when you get the certified 11 letters with the bomb threat, this is what you should do. 12 Maybe if he had said that, you know, this is what you do when 13 you know the man is coming or you suspect the man is coming to 14 kill people, this is what you ought to do. He didn't say 15 that. And maybe even if he had said that I would have ruled 16 that it was the kind of thing that another plant owner ought 17 to deal with or maybe it's something that a jury just does 18 their own ordinary care, because there are no experts in how 19 to react to vague threats of employees or even nonvague 20 threats of employees. 21 It's not one I'm real comfortable with making, 22 Mr. Stopher. I think it's a close one. But to help you 23 understand it, that's kind of where I am. 24 MR. STOPHER: Okay. I think you understand 25 where I am. I think that if there's an instruction on it, 237 1 which I think there should be, as supported by our brief, and 2 that this man speaks either generically as to what should have 3 been standard in the industry or if he speaks specifically as 4 to what should have been done under this set of circumstances, 5 I think it is helpful to the jury and that they should hear 6 it. 7 JUDGE POTTER: And I guess also in the back of 8 my mind is the idea that this is the kind of thing that maybe 9 the jury can do just about as well without an expert as they 10 can with an expert, and an expert is really just going to be 11 making your closing argument. One other thing while we're on 12 it, a lot of your brief dealt with Mr. Wesbecker. 13 Just for your planning purposes, Ms. Zettler, it 14 would be my thought that if the jury finds Lilly liable, that 15 there would in effect be a directed verdict against Mr. 16 Wesbecker and it would just be up to them to apportion between 17 him and Lilly and maybe Standard Gravure if they find Standard 18 Gravure at fault. But I really don't see myself submitting 19 the instruction that Mr. Wesbecker had a duty not to kill 20 people, and if you believe from the evidence that he violated 21 this duty you'll find him at fault. I mean, it's a directed 22 verdict case I think against him. I mean, that's just the way 23 I'm thinking currently. 24 MS. ZETTLER: I would like to have the 25 opportunity to submit a brief on that, Judge. 238 1 JUDGE POTTER: Well, I'll just tell you where 2 I'm thinking so you know where you're starting from. 3 MS. ZETTLER: Okay. I guess can we talk a 4 little bit about what we're expecting for tomorrow? 5 JUDGE POTTER: All right. Let's go down the -- 6 where's the letter? Mr. Stopher, we've done Mr. Duran. 7 You've got a medical records librarian? 8 MR. STOPHER: That's what I've got to run back 9 and make a quick call on, Judge. 10 JUDGE POTTER: Okay. Morton Leventhal, we did 11 today. 12 MR. STOPHER: Let me just take a quick look. 13 JUDGE POTTER: Where is Beanblossom on there? 14 MR. STOPHER: I must have skipped it. 15 MS. ZETTLER: Again, we'd like some sort of a 16 finite list so things don't keep getting switched around. 17 JUDGE POTTER: All right. Is Barbara Sheehan -- 18 MR. STOPHER: Yeah. I'll try to get her in. 19 JUDGE POTTER: How about David Moore? Is he 20 somebody we want to deal with in the morning? 21 MS. ZETTLER: Yeah. That's a dep I have. 22 MR. STOPHER: Yeah. And Schramm. 23 JUDGE POTTER: All right. So we've got 24 Beanblossom ready to do right now. We've got who else ready? 25 MS. ZETTLER: Senler, she's on that list. 239 1 JUDGE POTTER: We're doing those two tonight, 2 then we come in the morning and do some more of them. 3 MS. ZETTLER: We can do Moore, Schramm and 4 Lattray, probably, who is the one he wanted to do today but 5 didn't get to us until last week. 6 JUDGE POTTER: And that will get us out of the 7 doctors. 8 MR. STOPHER: Yeah, by Wednesday, right. 9 JUDGE POTTER: And then we've got Burbrink, 10 Jackman -- 11 MR. STOPHER: And Buchholz. So Wednesday we'll 12 have Buchholz, Burbrink and Jackman. 13 JUDGE POTTER: And these guys are all at your 14 beck and call; is that right? 15 MR. STOPHER: Right. Okay? 16 JUDGE POTTER: So we fill up tomorrow. 17 MR. STOPHER: So let me call and make sure. 18 Now, Jackman has got to come from Florida, so I'll go call her 19 now and see if I can speed her up and get her earlier than I 20 thought. 21 MS. ZETTLER: I'd like the names of the people 22 who are the medical records custodians if their depositions 23 were taken. 24 MR. STOPHER: Their depositions were not taken. 25 MS. ZETTLER: Okay. So you're just going to get 240 1 them in there to say -- 2 MR. STOPHER: To read the records. 3 MS. ZETTLER: To read the records? 4 JUDGE POTTER: Right. 5 MR. STOPHER: Right. Just like any medical 6 records custodian. 7 MS. ZETTLER: Well, when you say read the 8 records, you mean, you're going to have them sit there and 9 read what is written in the records or just establish that the 10 records are authentic? 11 JUDGE POTTER: Well, he's entitled, Ms. Zettler, 12 to have them introduce the records and then, provided it 13 doesn't get abusive, he can have them read from them. 14 MS. ZETTLER: You guys have a weird state. 15 Okay. I guess I'm still getting used to the differences 16 between Kentucky and Illinois, Judge. 17 MR. STOPHER: I'm going to run on for that 18 reason and try to... All right? 19 (MR. STOPHER LEAVES CHAMBERS) 20 JUDGE POTTER: Mr. Myers, who is Doctor 21 Beanblossom? 22 MR. MYERS: A family practice doctor. Saw 23 Wesbecker in January of 1986 for what Wesbecker thought was 24 toluene exposure. 25 MS. ZETTLER: And I already see a mistake, 241 1 Judge. I think for some reason my deposition doesn't have a 2 copy of the -- the lines on it are blank on it, so I think the 3 objection should read four through -- 4 JUDGE POTTER: What page? 5 MS. ZETTLER: Page 8, I'm sorry, 4 through -- 6 let's see. Now I don't even see what I objected to because 7 it's not objectionable. 8 JUDGE POTTER: I think maybe there's just a 9 mistake on Page 8. 10 MS. ZETTLER: I'm sorry. You know what it 11 should be? Line 21, just to keep out that Mr. Freeman. Just 12 take out that "your witness." 13 MR. MYERS: We'll take that out. 14 MS. ZETTLER: Because it goes along the lines 15 with 9, the I-have-no-more-questions stuff. 16 MR. MYERS: We'll take that out, too. 17 MS. ZETTLER: Okay. 18 JUDGE POTTER: Okay. Number 11 is -- Page 11 is 19 overruled. 20 MS. ZETTLER: And, Judge, it says, "And you 21 really didn't test him for those kinds of things." I mean... 22 JUDGE POTTER: Right. All right. This is hard 23 for me to do without... 24 MR. MYERS: This is a follow-up question, Judge. 25 We designated everything on Page 12, if that's a help. 242 1 JUDGE POTTER: That's a help. 2 MR. MYERS: And earlier, at Lines 7 through 13, 3 he said there was a note that he was upset with Gillespie, and 4 the follow-up is why was he upset with Gillespie, and he says 5 I don't know. 6 JUDGE POTTER: Oh, in his note he says something 7 about he was upset with Gillespie? 8 MR. MYERS: Right. 9 JUDGE POTTER: That comes in some -- overrule 10 12. (Examines document) Oh, Wesbecker is upset with 11 Gillespie. 12 MR. MYERS: Yes, sir. 13 JUDGE POTTER: All right. Now I understand. 14 MS. ZETTLER: Off the record. 15 (OFF THE RECORD) 16 JUDGE POTTER: Let's deal with Doctor Vicdan 17 Senler. Who is Vicdan Senler? 18 MR. MYERS: Doctor Senler is one of Mr. 19 Wesbecker's psychiatrists. 20 JUDGE POTTER: Ah. Who the doctor today sent 21 his reports to? 22 MR. MYERS: Correct. 23 MS. ZETTLER: Yes. 24 JUDGE POTTER: Okay. 25 MS. ZETTLER: Larry, can't you agree to this 243 1 first one? That was just when she was confused about the date 2 between March and May. 3 MR. MYERS: Well, but I think in order to 4 understand it it's got to be read. 5 MS. ZETTLER: I think it just confuses things 6 more. See it's punched out '86. Well, whatever. If you want 7 to read it, that's fine. 8 JUDGE POTTER: What is the correct thing, do 9 you-all know? 10 MS. ZETTLER: It's May 18th. Then he goes on 11 here and says this is punched out, I don't know what the month 12 is, May. May of '86? May 18th of '86. Okay. What was this 13 business about poison? 14 MR. MYERS: So it gets straightened out. I 15 think you've got to go through that in order to get it clear. 16 JUDGE POTTER: If you-all can't agree on maybe 17 changing the question so it comes out right, I'm going to 18 overrule it and let the doctor flounder. 19 MS. ZETTLER: That's fine. We'll let her 20 flounder. 21 JUDGE POTTER: 34 is overruled, too. 22 MS. ZETTLER: Our objection to that is that 23 she's completely speculating, completely speculating. 24 JUDGE POTTER: Right. But it was such a nice 25 speculation. 244 1 MS. ZETTLER: Oh, yeah. He hates women. 2 MR. MYERS: We'll take out 37, 17 through 23. 3 MS. ZETTLER: As an aside, every female 4 psychologist and psychiatrist -- and some of them are very 5 good friends of mine -- think that men all hate women. It's 6 amazing. 7 MR. MYERS: This next objection, Nancy, I have a 8 question. It says it starts on Page 40 at Line 1? 9 MS. ZETTLER: Right. 10 MR. MYERS: That's in the middle of an answer. 11 MS. ZETTLER: Well, yeah, because she starts 12 speculating in the middle of the answer. 13 JUDGE POTTER: All right. Okay. 14 MR. MYERS: I'll take out on Page 41, 1 through 15 3. 16 MS. ZETTLER: Can we compromise on this one, 17 Judge? 18 JUDGE POTTER: On Page 40, is he reading from 19 some note in her records? 20 MS. ZETTLER: Towards the bottom of the page 21 where the question where it says, now I have a note of 22 something, the stuff above that -- and what I was talking 23 about when I said compromise, if we can take out the stuff 24 where she's speculating what happened after she stops treating 25 him and goes on. I mean, take out where it starts "this is a 245 1 long time ago, you know." 2 JUDGE POTTER: Take out Page 40, Line 1 through 3 Line 11. 4 MR. MYERS: Okay. 5 MS. ZETTLER: Right. 41, he has agreed to come 6 out 1 through 3. Your tolerance for these has gotten shorter, 7 Judge. You're already looking for the second page. 8 MR. MYERS: This ties in with what Doctor 9 Leventhal testified about today about the tests he gave him in 10 April of '84. 11 MS. ZETTLER: I guess if I could just complain 12 about this, Judge. I know what you're going to do, but if I 13 could just get this in before you do it, is that they ask her 14 do you have any idea who they are, and she says, you know, it 15 was his unconscious mind that he checked. It could be 16 anybody, it could be her ex-husband, it could be the world 17 around him, all the people. 18 JUDGE POTTER: Well, that's who "they" are. I 19 mean, she believes -- okay. Her opinion of who "they" could 20 be that he was afraid of everybody or thought everybody was 21 after him. 22 MS. ZETTLER: But we have to keep in mind the 23 context that these depositions are being taken in are the 24 context in which Mr. Wesbecker goes in and shoots 20 people. 25 If you took this woman's deposition two days after she stopped 246 1 treating him, I'm sure her answers would be different, because 2 now she's looking at it in the context of retrospect. 3 JUDGE POTTER: Well, but she doesn't say that. 4 Okay. 41 and 42 is overruled. 43, Mr. Myers, are you giving 5 that one, is that where we are? 6 MR. MYERS: 43, 10 to 13, we'll take that out, 7 and 46, 7 to 9 I'll take out. And 47, I'll take out Line 4 8 and Lines 8 through 11, but she's finishing her answer on 9 line -- 10 MS. ZETTLER: Well, she's throwing something in 11 after the fact. 12 JUDGE POTTER: Wait. Let me see. 13 MS. ZETTLER: That's fine. If you want to leave 14 it in, that's fine. Actually it helps us, so that's fine. 15 JUDGE POTTER: 48. 16 MS. ZETTLER: This is where Mr. Stein is 17 confused as to what she said earlier. I don't think it adds 18 anything. 19 JUDGE POTTER: All right. Hold on. Let me get 20 to it. 48, 6 through 17. All right. I'm going to sustain 48 21 just because apparently it's clear before but one of the 22 lawyers was a little confused. 23 MR. MYERS: We'll take 51 and 52 out. 24 JUDGE POTTER: Okay. 53. 53 through 54 is 25 sustained. We're in the anecdotal level. 247 1 MS. ZETTLER: One other quick issue with Doctor 2 Senler, Judge. I want to avoid what happened today with Mr. 3 Verenna's testimony. Just looking through the exhibit to her 4 deposition, there's some stuff from the Office of the Coroner 5 in there and there's an order by Judge Eckert that lists Shea 6 Communications, Hall Security, Lee Coleman, everybody and his 7 brother, under letter of November 5th, 1990. 8 JUDGE POTTER: Okay. I tell you what, Mr. 9 Myers, are you planning to introduce some of her -- 10 MR. MYERS: I think so, but if we do, we'll 11 remove the letter from the coroner and the -- 12 JUDGE POTTER: Will you go through it real 13 carefully and clean it up and show it to Ms. Zettler first 14 thing in the morning, so if it has to be done, it can be done 15 before somebody tenders it? 16 MR. MYERS: Yes, sir. Is that all? 17 MS. ZETTLER: There's a letter by the Office of 18 the Coroner of November 27th. There's an order by Judge 19 Eckert November 5th, and then there's a letter February 8th, 20 1991, a letter by Ed, which is an additional order. I believe 21 that's it, but please double-check it. 22 MR. MYERS: Okay. I'll be glad to do that. 23 JUDGE POTTER: Off the record. 24 (OFF THE RECORD) 25 MR. MYERS: We've almost reached an agreement on 248 1 the medical records. 2 MS. ZETTLER: I just want one more opportunity 3 to review them before you give them to the jury just to make 4 sure that, you know -- 5 MR. MYERS: Okay. Yes. The only reason I say 6 so is because we are getting into the medical testimony. 7 MS. ZETTLER: Frankly, since Ed's been handing 8 all this stuff out to everybody as he goes along, I don't see 9 why you need an extra book. 10 MR. MYERS: Because when it goes out with the 11 jury there should be one composite exhibit. 12 JUDGE POTTER: I agree with that. 13 MS. ZETTLER: That's assuming all the records 14 come in, Judge. I mean, what I'd like to do is have an 15 opportunity to look at the book one more time from two 16 standpoints. One, to make sure that there are no things that 17 slip in like the Frank Ayd article in Doctor Coleman and, 18 Number Two, to make sure that they've been authenticated and 19 have gotten all these records in. 20 JUDGE POTTER: Okay. 21 MS. ZETTLER: I mean, there may be some stuff we 22 stipulate to. I don't know. But I just would like another 23 opportunity to look at it. 24 JUDGE POTTER: That's right. But that book can 25 contain things that don't come in through other witnesses. 249 1 And the fact that something comes in through another witness I 2 don't think would be grounds to take it out of that book. 3 MS. ZETTLER: What do you mean? You mean like 4 in Doctor Coleman's, the Frank Ayd thing? 5 JUDGE POTTER: All I'm saying is that, as I 6 understand Mr. Myers or Lilly, they want to get in one place 7 all his medical records or at least most of his medical 8 records. 9 MR. MYERS: Yes, sir. 10 JUDGE POTTER: And you're looking it over. 11 They've tendered it. Apparently it has certain certificates 12 and authentications on it, and if you have objections we'll 13 just have to take it up. But it won't be an objection that it 14 came in through another witness, because I think it would be 15 helpful to the jury to have all his records together in one 16 place. 17 MS. ZETTLER: Oh, that's not my problem. My 18 problem is if they put in this book a record that hasn't come 19 in through any witness. That's the thing. 20 JUDGE POTTER: All right. And it won't be an 21 objection that the medical records haven't come in through 22 another witness because there is a procedure in Kentucky for 23 certifying and whatnot. 24 MS. ZETTLER: Sure. That's fine. As long as 25 they authenticate it when they get it in. 250 1 MR. MYERS: But that exhibit has been entered 2 conditionally subject to your review. 3 MS. ZETTLER: No. No. It has not. 4 JUDGE POTTER: Well, we'll just have to go back 5 and look at it. It was my understanding, Ms. Zettler, that he 6 said these are Mr. Wesbecker's medical records. And 7 your-all's -- 8 MS. ZETTLER: And we said before you rule on 9 whether or not it's admissible we'd like the opportunity to 10 take a look at it. 11 JUDGE POTTER: Well, okay. At this point, if 12 they produce something that you have no -- well, let's see 13 what you object to, but my initial feeling is that -- 14 MS. ZETTLER: Right. We may have no objection. 15 But we'd just like an opportunity to look at it. 16 MR. MYERS: Yeah. I think we're close to being 17 done on those, to be honest. 18 MS. ZETTLER: I think just, you know, the 19 problem is we have things like today where a letter gets stuck 20 in there or that newsletter that was in Doctor Coleman's stuff 21 which was not in his original chart for Wesbecker. 22 MR. MYERS: Tomorrow we have Moore, Schramm and 23 Lattray? 24 JUDGE POTTER: Let's do seven. We'll punish 25 them. That will give people time to have a break if we get 251 1 finished early. 2 (PROCEEDINGS TERMINATED THIS DATE AT 5:28 P.M.) 3 * * * 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 252 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 253 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25