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 THURSDAY, DECEMBER 1, 1994 15 VOLUME XLIII 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: LIEUTENANT_DONALD_BURBRINK (Continued) _______ __________ ______ ________ 4 By Mr. Smith............................................. 5 5 By Mr. Stopher........................................... 29 By Mr. Smith............................................. 46 6 WITNESS: DR._ROBERT_P._GRANACHER,_JR. _______ ___ ______ __ __________ ___ 7 By Mr. Stopher........................................... 51 8 * * * 9 Hearing in Chambers...................................... 97 10 Open Court Proceedings................................... 99 Hearing in Chambers......................................101 11 Reporter's Certificate...................................130 12 * * * 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 2 A_P_P_E_A_R_A_N_C_E_S _ _ _ _ _ _ _ _ _ _ _ 3 FOR THE PLAINTIFFS: 4 PAUL L. SMITH 5 Suite 745 Campbell Center II 6 8150 North Central Expressway Dallas, Texas 75206 7 NANCY ZETTLER 8 1405 West Norwell Lane Schaumburg, Illinois 60193 9 IRVIN D. FOLEY 10 Rubin, Hays & Foley 300 North, First Trust Centre 11 Louisville, Kentucky 40202 12 FOR THE DEFENDANT: 13 EDWARD H. STOPHER 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 Thursday, December 1, 1994, at approximately 9:15 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 SHERIFF CECIL: All rise. The Honorable Judge 10 John Potter is now presiding. All jurors are present. Court 11 is now in session. 12 JUDGE POTTER: Please be seated. Lieutenant 13 Burbrink, will you retake the stand. I'll remind you you're 14 still under oath. 15 Ladies and gentlemen, my sheriff tells me that a 16 couple of you are not feeling too good this morning, so if at 17 any time anybody wants to leave the courtroom, do not hesitate 18 to get up and leave the courtroom, and we'll understand why. 19 Mr. Smith. 20 MR. SMITH: It's probably associated with the 21 color red, Your Honor. 22 23 24 25 5 1 EXAMINATION ___________ 2 3 BY_MR._SMITH: __ ___ ______ 4 Q. Lieutenant Burbrink, you have in front of you, I 5 believe, the exhibits, the photographs that were introduced 6 yesterday. 7 A. Yes, sir; I do. 8 Q. Would you turn to Exhibit 122, please? 9 A. Yes, sir. 10 Q. That is a picture of the door to the 11 supervisor's office; is that correct, sir? 12 A. Yes, sir; that is correct. 13 Q. And do you know when this photograph was taken? 14 A. This photograph was taken that summer we were 15 there after the incident, before the plant closed. 16 Q. All right. Up on the top of that door there is 17 a sign that says, "Call 0560; if no answer, call 9-911." 18 A. Yes, sir. 19 Q. Do you know if that sign was present at the time 20 this shooting occurred on September 14th, 1989? 21 A. I'm going back now trying to look at the 22 photographs to see if I can find one that was there that day 23 to see if it was. I don't see any that indicate to me that -- 24 that were taken that day that indicate it was there or 25 indicate it wasn't there, to be quite honest with you, either 6 1 way. 2 Q. Right. You don't have a specific recollection 3 of that sign being there that morning? 4 A. No, sir; I do not. 5 Q. But that doesn't mean that it wasn't there? 6 A. That's correct. 7 Q. We do know that this photograph was taken in the 8 summer of 1990? 9 A. '91, I believe is when it was before the 10 business closed and was torn down. 11 Q. Okay. So some time had elapsed when Exhibit 122 12 was actually made? 13 A. Almost two years had elapsed; yes, sir. 14 Q. Okay. Do you know what number that is, that 15 number that's on 122? Do you know what that telephone number 16 refers to? 17 A. 0560? 18 Q. Yeah. 19 A. I believe that went to the security system. 20 Q. Within the Standard Gravure plant? 21 A. Yes, sir, within the Standard Gravure plant. 22 Because the other one is the 911; if you dial 9 you get an 23 outside line, and 911 would have been directed to the city 24 police department. The other one is their security system; if 25 you couldn't get hold of anybody there, then you needed to 7 1 call the police department. 2 Q. But whether that was there at the time, you 3 don't know? 4 A. I do not know. I don't have an independent 5 recollection of it, sir. 6 Q. In your investigation, did you make any 7 determination whether or not the lights were on on the morning 8 of September 14th, 1989, in Mr. Shea's office and Mr. McCall's 9 office or that conference room there? 10 A. Because what happened when the officers came in 11 to search, a lot of them went into those offices and turned on 12 lights, and basically they couldn't recall what the situation 13 was. I do know that the door to the conference room was open, 14 and the only reason I do know that is because there was a 15 casing from the AK-47 that was in underneath the conference 16 table itself, so it wasn't just inside the door where it might 17 have kicked, it was actually underneath the conference room 18 table there. So I'm just going by the fact that it would be 19 open in order for it to be injected into there. 20 Q. It would have had to have been kicked out of the 21 AK-47 to the right, in other words? 22 A. Yes, sir. When I arrived there the lights were 23 not on in that conference room and we turned them on. The 24 door to Mr. McCall's office, as I recall, was never open, the 25 lights were off in that because we really didn't -- the door 8 1 was shot through and the table was sheared off. That 2 conference room right above -- across from human relations, 3 that door was also closed because when we were going to 4 scenes, I was up there and Officer Michael McHugh showed me 5 that, and we had to actually get somebody, I think Grady 6 Throneberry to come in and unlock that door for us in order to 7 see that damage in there. 8 Q. How about Mr. Shea's office? Do you remember 9 whether that door was open or whether the lights were on when 10 you arrived? 11 A. When I arrived, the door was open and the lights 12 were on. 13 Q. But as to what the condition was at the time, 14 you just can't say because there was, I guess, a lot of people 15 in and out of there before you got there? 16 A. Yes, sir. They were searching for victims and 17 also searching for the gunman at the time. 18 Q. Why don't you describe for us, Lieutenant, the 19 scene when you arrived, and why don't you start by what time 20 it was when you arrived. 21 A. I arrived at about 9:25. Was alerted at home at 22 9:00, and I came straight to Standard Gravure there and met 23 with Lieutenant Moody out front, and then I went to the 24 location where Mr. Wesbecker was at and Mr. Ganote. At that 25 location there had been a water pipe of some sort -- I think 9 1 it went to the air-conditioning to fit -- the air-conditioning 2 had burst because one of the shots had hit it inside the break 3 room there. And there was a large amount of water lying 4 inside the break room and actually had gone out into that area 5 right outside the break room area there and I think into the 6 locker room, also. There was a substantial amount of standing 7 water there. Like I said, I noted the AK-47, the Sig Sauer 8 underneath Mr. Wesbecker, and I collected his driver's license 9 from his back pocket because at that time we did not have a 10 positive identification on the subject. 11 Q. Why don't we back up a little bit. You say you 12 met Detective Moody? 13 A. Lieutenant Moody; yes, sir. 14 Q. Lieutenant Moody at the front, the Sixth Street 15 entrance? 16 A. No. It's actually Armory Place, where that 17 little guard shack is there that we showed, you go out that 18 door. 19 Q. So what door would you have had to go in to get 20 inside the building? 21 A. That's the door that I went into right there by 22 The Courier-Journal; it's off of Armory Place. There's a 23 little park-like area or setting in front, and right there is 24 where I came in at. And right inside there you go around past 25 the elevators in The Courier-Journal building and then walk 10 1 through, and there's an entrance to the locker room, and to 2 the left there is the entrance to the pressroom, and that's 3 where I came in at. 4 Q. Were any of the survivors still at the scene 5 when you got there at about 9:25? 6 A. No, sir. They had all been transported to the 7 hospital at that point in time. 8 Q. Were any of the individuals who had been killed 9 in addition to Mr. Wesbecker still present at the scene? 10 A. Yes, sir. All of them, with the exception of 11 Lloyd White and Mr. Wible. They were transported to the 12 hospital, but the other subjects were all still at the scene, 13 to my recollection. 14 Q. How about Kenny Fentress, was he still there? 15 A. Fentress? No. Fentress had gone. In fact, 16 Fentress did not die until the 18th, in the hospital. He was 17 transported and was being worked on in the hospital. 18 Q. But he had already been taken to the hospital by 19 the time you got there? 20 A. Yes. Yes, sir. 21 Q. Maybe if we could get those exhibits of the 22 floor plan. So when you went into the building, you went 23 through this door? 24 A. Yes, sir. 25 Q. And then came around and walked down this hall? 11 1 A. Yes, sir. 2 Q. And how many officers were on the scene at that 3 time? 4 A. At that location there alone, there were 5 probably four officers and two or three EMS personnel right 6 there in front of the break room about where Mr. Wesbecker 7 was. There were several other ones located throughout the 8 plant. 9 Q. At that time when you arrived, was it known that 10 Mr. Wesbecker was the only shooter and that the building was 11 secure as far as a danger of other -- a potential danger of 12 other individuals on the premises? 13 A. No, sir; it was not. Basically the SWAT team, 14 which I was a member of but because I was tied up on this I 15 did not make the run, came through and went through other 16 areas of the building to see if anybody else was in there. At 17 a later time, myself and Captain Clan went through a portion 18 of the second floor just below the executive offices there to 19 clear it out, to make sure, because we did find one man hiding 20 in the building about an hour after we had been there, 21 probably around 10:00 was still hiding in there. 22 Q. But at the time you arrived, there was still 23 some question as to whether or not there could be another 24 individual on the premises with a weapon? 25 A. That's correct. We still did not know how many 12 1 shooters we had. We had people talking to people at the 2 hospital and so forth and other eyewitnesses. We were still 3 gathering information as to whether there could possibly be a 4 second person. 5 Q. At the time you arrived, was it known for sure 6 that Mr. Wesbecker was indeed one of the shooters, at least? 7 A. Yes, it was. That was gathered from Mr. 8 Hoffmann when he was there at the -- EMS -- he had told the 9 people, the EMS personnel, police come in, that the guy who 10 was doing the shooting, Wesbecker, was dead. He was sitting 11 out front by where Mr. Wesbecker was at in front of the 12 pressroom there. 13 Q. But Mr. Hoffmann had already been taken to the 14 hospital, also? 15 A. Yes. But he told some of the officers, the 16 first arriving officers and EMS personnel that. 17 Q. All right. Mr. Wible was in this area? 18 A. Yes, he was. 19 Q. And could you determine how many times he had 20 been shot? 21 A. I believe he was shot one time to the abdomen, I 22 believe. Cheryl Jackman, in fact, tried to talk to him. 23 Q. Beg your pardon? 24 A. Cheryl Jackman had arrived -- she was working 25 that morning. She had arrived on the scene and had actually 13 1 been there, tried to talk to Mr. Wible and comfort him while 2 they were waiting for the EMS personnel on that. Single 3 gunshot to the abdomen, Mr. Wible was shot. 4 Q. Was Mr. Wible still alive, as far as you know, 5 at the time Detective Jackman had arrived? 6 A. According to Detective Jackman, yes, he was 7 still alive, and she was trying to talk to him. And they were 8 working on him there and she was trying to, you know, get any 9 kind of information from him and talk to him and comfort him. 10 Q. But he had expired by the time you arrived? 11 A. I believe he expired on the way to the hospital 12 or they pronounced him at the hospital. 13 Q. Oh, he was -- 14 A. He was transported. 15 Q. But he was still there when you arrived? 16 A. No. He had been transported already. 17 Q. Okay. All right. 18 A. Mr. Ganote and Mr. Wesbecker were the only two 19 that were in that area when I got there. 20 Q. I thought Mr. -- well, were there any other 21 individuals in the break room that were dead? 22 A. Just Mr. Ganote. No, sir. The rest of them had 23 been transported. 24 Q. All right. Then what was your next -- how much 25 time did you spend in this area initially? 14 1 A. Probably about a half an hour initially. We 2 wanted to collect the weapons and make sure they got 3 photographed and so forth and that there was somebody that was 4 going to be there to stabilize that area until we get that 5 done. 6 Q. Was there somebody there that was standing guard 7 or securing this area by virtue of the fact that there was the 8 thought that there might still be somebody still on the 9 premises that presented a danger? 10 A. Yes, sir. There were two uniformed officers and 11 Detective Jackman was there and I think Detective Allen came 12 over there, also. 13 Q. Were you armed? 14 A. Yes, sir. 15 Q. What else did you do other than collect the 16 weapons and confirm the identity of Mr. Wesbecker? 17 A. Once I got the identity and made sure that the 18 scene was secure, I then went back up and we ended up setting 19 up a command post in the conference room there on the 20 executive level, and I met with Major Mercer and Chief Dotson 21 and Lieutenant Moody and gave them the driver's license of Mr. 22 Wesbecker and advised them what I had seen down there on the 23 first floor. 24 Q. All right. The conference room -- the command 25 post was set up in this conference room? 15 1 A. Yes, sir. 2 Q. And at that time, now we're talking, what, 30 3 minutes later by the time you get up to the command post? 4 A. Probably a little after 10:00; yes, sir. 5 Q. By that time had it been determined that there 6 was no one else that presented a danger on the premises? 7 A. The SWAT team was still going through the 8 building at that time. It's a very large plant and there are 9 some areas down in the basement apparently where they had a 10 fire at one time, and we didn't -- it was a large area to 11 search, and it was basically a very complicated area. So they 12 were having trouble backtracking, making sure they get every 13 nook and cranny they could, so it took a very substantial 14 amount of time for them to search. 15 Q. I assume they had to do that in some methodical 16 manner as per instructions? 17 A. Yes, sir. 18 Q. All right. So by the time you get to the 19 command post, was there any victims left on the third floor? 20 A. Yes. Sharon Needy and James Husband were on the 21 third floor. 22 Q. All right. Ms. Needy would have been in the 23 reception area? 24 A. Yes, sir. 25 Q. And Mr. Husband was in the bindery area, in this 16 1 area? 2 A. Yes, sir; he was. 3 Q. Mr. Stein had been transported? 4 A. Yes, he had. 5 Q. Mr. Conrad had been transported? 6 A. Yes, sir. Jackie Miller and Paula Warman had 7 also been transported, and so had Angela Bowman from that 8 area. 9 Q. Could you see evidence that there had been 10 people wounded there in that area? 11 A. Yes, sir. In each location there was blood, and 12 there was also some what we call EMS debris. Basically, it 13 was -- when they do patchwork on people and so forth and put 14 on monitors and try and stop the bleeding, they just tear open 15 the packages and leave them there. Obviously, they're not 16 concerned about cleaning that up, so we could tell where that 17 was, and that was most of the times where there was a blood 18 pattern there on the floor. 19 Q. Was there still a large amount of blood down in 20 the break room? 21 A. Yes, with water and so forth in there mixed in 22 with the water that was coming from the broken pipe there was 23 a large amount. 24 Q. Officer Ball has testified, and he's testified 25 that when he arrived there that break room area looked like a 17 1 river of blood. Was it still in that condition when you 2 arrived? 3 A. Well, I don't know that I -- I've got more 4 experience than Officer Ball in handling these type of things. 5 I don't know that I would call it a river of blood, to be 6 quite honest with you, but, I mean, there was a substantial 7 amount of blood and water. 8 Q. In your substantial amount of experience, have 9 you ever seen a homicide disaster such as this? 10 A. Well, I had one where a child was stabbed 170 -- 11 a seven-year-old was stabbed 170 times around an apartment and 12 the mother was also stabbed 150 times, and they ran through an 13 apartment. That was horrendous; there was blood everywhere. 14 It was probably more graphic than this one, but it's horrible. 15 There's no way to compare them. 16 Q. But this was the largest number of victims and 17 deceased individuals you had seen at one location, though, 18 wasn't it? 19 A. That I had personally been a part of; yes, sir. 20 In the FBI school that I took, they did the San Ysidro 21 McDonald's, they put that presentation on and showed 22 photographs from that, and there was 22 people killed in one 23 McDonald's there, so that was also a horrendous sight. 24 Q. The photographs that have been introduced into 25 evidence don't depict the scene as it actually was when you 18 1 came through there, do they, as far as a lot of these things? 2 A. Well, some of these were taken that summer in 3 '91. The ones that were taken that day that we have with the 4 numbers on the side, those do depict areas of the scene. They 5 don't show any of the bodies and any of the blood splattering. 6 Q. How much time did you spend on the third floor 7 of that building? 8 A. I didn't get out of there until -- I think I 9 cleared the scene at six something that night. 10 Q. Okay. Did you go down into the basement to the 11 bindery area? 12 A. I was responsible for every scene so I had to 13 assign a detective to every scene, explain to them what I 14 wanted, and then also I was -- at that point in time we didn't 15 have identifications on the bodies and there was people 16 calling in. We knew some people had been transported, so I 17 walked around with Grady Throneberry to identify the victims 18 so that we could get their personnel files and give them to 19 our chaplain for notification purposes and so forth. So I did 20 do that with him. So I saw every body and saw every scene. 21 Q. In the basement area, was Mr. Barger's body 22 still present? 23 A. Yes, sir; it was. 24 Q. And Mr. White? 25 A. Mr. White was transported to the hospital, so he 19 1 was not at the scene. 2 Q. But he later died, you know that? 3 A. Yes, sir; he did. 4 Q. Did you have any indication that any of these 5 individuals who were shot there that morning had that morning 6 posed any threat to Mr. Wesbecker, had made any overt 7 movements toward him? 8 A. There's no indication from any of the scenes 9 that there was any overt movement towards Mr. Wesbecker to do 10 anything. And in speaking to the people who were shot, the 11 victims and so forth, they never gave an indication that 12 really they were even aware of what was going on most of the 13 time. 14 Q. Mr. Hatfield and Mr. Seidenfaden -- 15 A. Seidenfaden. 16 Q. -- there in the basement area were shot in the 17 back, were they not? 18 A. Yes. They were working -- actually, they were 19 working on some piping or some kind of Marine Electric 20 electrical piping or something, condensers or whatever, down 21 there, and according to Mr. Hatfield, he was -- he thought it 22 was a joke at first. 23 Q. But Mr. Seidenfaden and Mr. Hatfield hadn't 24 blocked his -- Mr. Wesbecker's way or anything? 25 A. No. They weren't even in his way. They were 20 1 fairly close to him, but they weren't in his way. They noted 2 that somebody came down and opened the door and they kind of 3 glanced up like you would if somebody entered the room, and 4 they went back to work and the next thing they know, they were 5 getting shot. 6 Q. And that appears to be the case with all of the 7 victims that you were able to interview, is that they weren't 8 aware of what was going on and weren't trying to stop 9 Mr. Wesbecker or impede his progress in any way? 10 A. That's correct. Nobody was. 11 Q. After you left the scene, I believe you said you 12 did other investigations and you told us about going to the 13 hospital the next day? 14 A. Yes, sir. 15 Q. Do you recall -- I believe we talked about your 16 talking with Mr. Scherer in the hospital? 17 A. Yes, sir. 18 Q. Do you recall what time of the day that was when 19 you arrived in the hospital on September 15th? 20 A. I was on the afternoon shift at that time, which 21 was started at four P.M. Just shortly after I came in, 22 probably around five or so. 23 Q. All right. So this would have been 20, 30 hours 24 after the shooting? 25 A. Something like that. 21 1 Q. And you talked with Mr. Scherer in his room and 2 he was in a private room, I believe you indicated yesterday? 3 A. Yes, he was. 4 Q. Then you had to go to the surgical intensive 5 care unit to talk with Mr. Campbell? 6 A. Yes, sir; I did. 7 Q. And I believe you said yesterday that you were 8 unsure whether or not he had had surgery at that time or was 9 fixing to have surgery? 10 A. Well, he had had some type of surgical 11 procedures done on him because when he came in, they took him 12 to Room 9, and they took him upstairs to do some type of 13 surgical procedures on him to stop the bleeding and so forth; 14 that's just their normal procedure. He was in SICU. I don't 15 know if he went -- some of them went back and had additional 16 surgery after that. I'm not sure if that was Mr. Campbell's 17 case or not. 18 Q. Can you recall physically seeing Mr. Campbell 19 there in the surgical intensive care unit that day on the 20 15th? 21 A. I mean, I can remember doing the interview and 22 stuff, and I know who he is. 23 Q. Yes. But do you recall whether he had -- he was 24 shot in, I believe, all four extremities? 25 A. Yes. 22 1 Q. Do you recall him being bandaged up or have his 2 wrist elevated or his legs elevated in any way? 3 A. He was bandaged up with stuff on his knees. If 4 I remember correctly, it was in his joints and so forth. His 5 elbows and his knees and so forth, if I remember correctly, 6 and he was bandaged up; yes, sir. 7 Q. Do you recall he had a morphine pump? 8 A. He had an IV. I don't know if it was a morphine 9 pump or not, sir. 10 Q. And Mr. Hoffmann, can you recall his condition 11 when you talked with him? 12 A. He was also bandaged up in SICU. 13 Q. Is it your understanding Mr. Hoffmann had been 14 shot in the chest or the back, maybe both, and had, among 15 other things, a punctured lung? 16 A. That's consistent, I think; yes, sir. 17 Q. And he also had an IV? 18 A. Yes, sir. Everybody -- I mean, in SICU, 19 basically they all have because that's how they're 20 administered their medicine is through that way so they're not 21 constantly getting stuck, and they're constantly getting 22 fluids because they need the fluid, and so everybody has an 23 IV. I don't know what kind of medication they were taking, 24 no. 25 Q. Okay. And I believe Mr. Hoffmann did tell you 23 1 that he didn't take any threats Mr. Wesbecker had made as 2 serious? 3 A. That's correct. He thought it was a joke. He 4 said that Mr. Wesbecker thought he was tough and he liked to 5 be called Rocky, like the boxer, but it was kind of a play on 6 words, I guess being sarcastic about it, because he really 7 wasn't tough like that. 8 Q. He really wasn't tough like that, according to 9 Mr. Hoffmann? 10 A. Yes. 11 Q. In fact, all of the victims that you were able 12 to talk to were of the same opinion that they never felt 13 threatened by Mr. Wesbecker prior to September 14, 1989, 14 didn't they? 15 A. They all expressed that they had heard threats 16 from him, but none of them had ever acted out toward those 17 threats or did anything personal securitywise at their home or 18 anything else, no. 19 Q. You got the impression that they had not 20 considered him violent or capable of violent acts before 21 September 14th, 1989? 22 A. They knew he had weapons and so forth, but I 23 don't know that they ever felt that -- I guess they felt he 24 was crying wolf. 25 Q. All right. When you attempted to talk to 24 1 Mr. Fentress, you were not able to because he was in the 2 operating room in very critical condition? 3 A. Yes. He never was interviewed in regards to 4 this case. 5 Q. And I believe you say that you asked to talk to 6 Angela Bowman, but you were advised that she was down being 7 re-X-rayed in order to determine if she indeed had her spine 8 severed; is that right? 9 A. Yes. That day when I went there they had taken 10 her downstairs and were doing -- it may have been an MRI or 11 something like that, but they were doing X-rays on her spine. 12 Q. And you asked about John Stein, Jr., and were 13 advised that he was getting a CAT scan to see the extent of 14 damage that was done to his brain because he was shot in the 15 head? 16 A. Yes, sir. To my knowledge, to this day no one 17 has really had an opportunity to interview Mr. Stein in 18 regards to his knowledge. 19 Q. Did you go to either of Mr. Wesbecker's homes? 20 A. No, I did not. 21 Q. Do you know who did make the investigation into 22 Mr. Wesbecker's homes? 23 A. Yes, sir; I did. Being a supervisor I received 24 their letters and reviewed them. That was Sergeant Gene 25 Waldridge and Detective Terry Clark went out there and 25 1 Detective Aaron Graham also assisted them. 2 Q. Was it your understanding that the police 3 department determined that Mr. Wesbecker was indeed 4 maintaining two residences? 5 A. Yes, he was. One on Blevins Gap and one on 6 Nottoway Circle. 7 Q. And that he and his wife were estranged but that 8 they were still seeing each other frequently? 9 A. Yes, sir. 10 Q. And that the night before this, Mr. Wesbecker 11 had slept in his ex-wife's home on Blevins Gap; is that right? 12 A. He had stayed there; yes, sir. 13 Q. And that this was -- had apparently been for 14 some time, a period of weeks, a normal arrangement for them? 15 A. Yes, sir. That's correct. 16 Q. That he would spend the night at Blevins Gap and 17 during the day he might come by the residence on Nottoway 18 Circle; is that right, sir? 19 A. Yes, sir. 20 Q. And you searched both houses because you knew he 21 had spent a significant amount of time at both locations? 22 A. That's correct. Yes, sir. 23 Q. You found medication bottles at the Blevins Gap 24 location, did you not, sir? 25 A. There was medication found at both residences; 26 1 yes, sir. 2 Q. And you found -- when -- is part of the normal 3 procedure to collect up all medication bottles that are found; 4 correct, sir? 5 A. Yes, sir. 6 Q. And then what do you do, take those to the 7 coroner or identify those to the coroner as being found at a 8 residence where a particular individual is residing? 9 A. Yes, sir. We first alert the medical examiner 10 because when they do the autopsy there's blood work that is 11 done and sent to the lab to determine what medication's in 12 their blood. This helps them identify or start looking for 13 something that they won't miss, so we usually let them know 14 what we found so they can try and identify it in the forms 15 that we send. And we let the coroner know, and basically 16 they're told the same time that the medical examiner is. We 17 then take them and put them in our property room and we send 18 them off to the Kentucky state lab to have them identified. 19 Q. So if a bottle is found at a particular 20 location, whether it be full or empty, it will be taken -- 21 when I say bottle, I mean a pill bottle, it will be taken by 22 the police department as part of the normal investigation; 23 correct, sir? 24 A. Most of the time; yes, sir, unless there's some 25 other reason not to take it. But in a case like this it would 27 1 have been taken; yes, sir. 2 Q. And it's your understanding that that did in 3 fact occur in this? 4 A. It did occur; yes, sir. 5 Q. And then the coroner is advised that particular 6 bottles have been found and identified as a particular drug; 7 correct, sir? 8 A. We give them basically what it says on the 9 outside of the bottle, whatever it -- ibuprofen or whatever it 10 says on there. We tell them and we identify the number of 11 pills and milligrams in it and what the pills look like. 12 Q. You'll even take an empty bottle, too, won't 13 you, if it's still empty in the medicine cabinet? 14 A. A lot of times we take it so we can show them 15 what it is -- the medical examiner, the coroner what it is 16 that that person may have been taking, especially in a case 17 where there may have been an overdose of some sort. 18 Q. And, in fact, in this case there were some empty 19 pill bottles taken from the premises, were they not? 20 A. They may have been identified. I'm not sure if 21 they were taken, though. The list I've got doesn't show any 22 of the empty ones. It shows ones with medications. 23 Q. And some of these were prescriptions written 24 back for some period of time? 25 A. Yes, sir. 28 1 Q. And you advised the coroner of that and then the 2 purpose of that is so the coroner can ask the lab to check for 3 those specific drugs, right, the blood work? 4 A. Yes, sir. Yes, sir. 5 Q. And there may not be any drug but there will be 6 a request that the drug be checked for at the time; right, 7 sir? 8 A. Well, basically, they tell them these are the 9 pills that the subject may have been taking and then in your 10 lab tests, you know, you may want to look for these drugs in 11 the blood work. 12 Q. All right. I notice that you're in a suit and 13 tie today. Are you trying to impersonate a lawyer, 14 Lieutenant? 15 A. No, sir. I've got to go on a trip this 16 afternoon and my uniform is packed away. And if my wife 17 didn't pack it and if I had to pack it, it wouldn't look very 18 good for Saturday, so I let her pack it. So I'm in a suit 19 today. 20 Q. You're one of the team officers for a semi-pro 21 basketball team here? 22 A. No. It's the University of Louisville. It's 23 not a semi-pro; it's a university team. If you're talking 24 about University of Kentucky, they were semi-pro a couple 25 years ago. 29 1 Q. I'll let you -- I won't ask you any more 2 questions so you can get about your business. 3 A. Okay. 4 JUDGE POTTER: Mr. Stopher. 5 6 FURTHER_EXAMINATION _______ ___________ 7 8 BY_MR._STOPHER: __ ___ _______ 9 Q. Lieutenant Burbrink, we've talked yesterday and 10 then again today about the report that you did dated 11 September 15, 1989; is that correct, sir? 12 A. Yes, sir. 13 Q. And is that a report that you authored, 14 detailing the work that you did particularly in interviewing 15 witnesses? 16 A. Yes, sir; it is. 17 Q. Let me show you a copy of that report, sir. 18 MR. SMITH: May we approach, Your Honor? 19 (BENCH DISCUSSION) 20 MR. SMITH: This document is hearsay and we 21 would object to it on that basis. Additionally, it has 22 conclusions and speculation that have no probative value. 23 This officer has not been identified as an expert concerning 24 these matters. 25 MR. STOPHER: It's not hearsay. He authored it 30 1 and it is his report in the due course of his business as 2 summarizing the investigative work that he did and 3 particularly the interviews of these people. 4 MR. SMITH: But under specific rules these are 5 not allowed to be admitted. 6 JUDGE POTTER: Mr. Smith is right. Objection 7 sustained. 8 (BENCH DISCUSSION CONCLUDED) 9 Q. Let me ask you to take a look at that report, 10 sir, and let me ask you to refer to the interview with Gordon 11 Scherer. 12 A. Yes, sir. 13 Q. Would you tell us what Mr. Scherer gave you as 14 his date of birth? 15 A. 12-4 of '40. 16 Q. And what did he state his home address was? 17 A. 4519 Blenheim Road. 18 Q. And his home phone number? 19 A. 897-2689. 20 Q. And what did he give as his Social Security 21 number? 22 A. 405-52-2584. 23 Q. Would you look at the interview of Michael P. 24 Campbell? 25 A. Yes, sir. 31 1 Q. What address did he give you, sir? 2 A. 2909 South Third Street. 3 Q. And did he give you his home phone number? 4 MR. SMITH: Your Honor, may we approach again, 5 please? 6 (BENCH DISCUSSION) 7 MR. SMITH: I don't know the purpose of this. 8 I'd like to maintain my client's home address and phone 9 number. I mean, this is being -- and I'd like to maintain 10 their confidentiality as far as their home phone number and 11 their Social Security number. I don't see the purpose in 12 that. 13 MR. STOPHER: Well, I tried to avoid it by 14 putting the document in and you objected. And you're trying 15 to maintain that these people were out of their minds and 16 didn't know what they were saying, and this indicates their 17 state of mind and their ability to recall, and that's the 18 reason I'm asking him. 19 JUDGE POTTER: I think Mr. Smith is -- I mean, 20 police reports cannot come in. I think Mr. Stopher is 21 entitled to ask whether or not the people, you know, were able 22 to give their telephone numbers and addresses and whatnot. If 23 he wants to emphasize that by having the detective read the 24 numbers, he can. As far as these people's privacy goes, I 25 can -- this thing is not being televised, it's not going to be 32 1 in the newspapers, and I can guarantee you when they come to 2 edit this thing for TV, they're not going to put this part in. 3 (BENCH DISCUSSION CONCLUDED) 4 Q. Going back to where we were, sir, with regard to 5 Michael Campbell, did he give you his address when you 6 interviewed him, sir? 7 A. Yes, sir; he did. 8 Q. And what address did he give you? 9 A. 2909 South Third Street. 10 Q. And did he give you his home phone number? 11 A. Yes, sir; he did. 12 Q. And what home phone number did he state? 13 A. 636-0288. 14 Q. And did he give you his date of birth? 15 A. Yes, sir; he did. 16 Q. And what date did he give you? 17 A. 4-29-38. 18 Q. And did he give you his Social Security number? 19 A. Yes, sir; he did. 20 Q. And what number did he give you? 21 A. 406-48-7842. 22 Q. With regard to William Hoffmann, when you 23 interviewed him, sir, did you ask him for his address? 24 A. Yes, sir; I did. 25 Q. And what address did he give you? 33 1 A. 3004 Seminole Lane in Jeffersonville, Indiana. 2 Q. And did he give his home phone number? 3 A. Yes, sir; he did. 4 Q. And what was that? 5 A. 283-6750. 6 Q. And what did he give as his date of birth, sir? 7 A. 2-5-48. 8 Q. And his Social Security number? 9 A. 303-52-0717. 10 Q. Lieutenant Burbrink, did you get this 11 information from these three men from their driver's license 12 or from some document? 13 A. No, sir. I got it from them -- from my 14 interview with them. That was one of the first questions I 15 asked them. 16 Q. And why did you ask them those kinds of things 17 if you could have gotten those kinds of information from a 18 hospital record or from a driver's license? 19 A. For a number of reasons, the first reason being 20 it breaks a little bit of the ice there and gives them 21 something easy to answer. It's also to determine what state 22 of mind they're in and to determine whether or not they can 23 recall what's going on. It's the same thing with somebody on 24 the street if you're not sure if they're intoxicated or groggy 25 on medication or whatever. You want to make sure that they 34 1 can remember these simple facts that everybody that's their 2 age should remember and should know. So you get a state of 3 their mind whether they can remember things. And you also 4 look at the answers they give you later on; if they're 5 consistent with other answers, then you can tell they're in 6 control of their faculties and they know what they're saying 7 and they're using their memories and are not drugged up on 8 some kind of medication and can't recall. 9 Q. Did you find in the instances that you 10 interviewed these three men that the information that they 11 gave you was unreliable or should be discarded because they 12 were in some way unable to recall or to state what they 13 recalled? 14 A. No, sir. Their information was consistent with 15 each other as to the thing. The only thing, there was one 16 inconsistency that we later identified with Mr. Scherer. He 17 was talking about Lloyd White being in the room with them -- 18 in the break room when the shooting occurred. We actually 19 found out that Mr. White had been there earlier talking and 20 went back out to wipe down some tools, and I guess with the 21 thing that was going on, he thought that he was still there. 22 Q. All right, sir. Lieutenant Burbrink, let me go 23 back for just a moment and spend just a few minutes with 24 regard to the maps. You've drawn them out and you've shown 25 the videotape as well as some still photographs of the various 35 1 locations. Did you walk that route yourself on many 2 occasions, sir? 3 A. Yes, sir; I did. 4 Q. Would you tell the jury approximately how far it 5 is from the door on Sixth Street, where he entered, to the 6 supervisor's office and the break room, if you walk it 7 continuously? 8 A. It's about probably three hundred yards totally, 9 about three football fields long, I guess, in distance. Now, 10 obviously, he takes an elevator in two spots and that takes up 11 some space and some time that you don't actually walk. But it 12 probably was about 25 minutes -- 20 to 25 minutes of walking 13 if you're doing what he was doing. Now, a continuous walk, 14 going through, catching the elevator and stuff, you're talking 15 probably 15 minutes. 16 Q. The distance was about three football fields or 17 three hundred yards? 18 A. That's about correct; yes, sir. 19 Q. That would be about 900 feet? 20 A. Yes, sir. 21 Q. More than an eighth of a mile? 22 A. Yes, sir. 23 Q. And to walk it on that date, what was your 24 estimate of the time that he was in the building from the time 25 that he entered until the time that he committed suicide? 36 1 A. About 20, 25 minutes. 2 Q. During the investigation, Lieutenant Burbrink, 3 did you find any evidence that Mr. Wesbecker ran at any time? 4 A. No. During the course of our investigation, in 5 speaking to several of the victims and other eyewitnesses, the 6 only time we could ever determine that he made a sudden 7 movement was when he was walking past and Mr. Sallee was to 8 his left, and according to Mr. Hatfield, he kind of jumped 9 into that room and fired at Mr. Sallee, but that's the only 10 sudden movement that we could ever determine from anybody that 11 we spoke to. 12 Q. All of the other movements were how? 13 A. Very mechanical, just walking step by step by 14 step, with basically showing no emotion. 15 Q. With regard to your investigation, did you find 16 any evidence that Mr. Wesbecker yelled or ranted or raved at 17 any time that morning, sir? 18 A. No, sir. In talking to several of the people, 19 he had no comment whatsoever. Mr. Pointer said he almost 20 brushed past him and didn't say a word. The only person that 21 we ever determined that he actually spoke to was Mr. Tingle 22 down in the reel room, I guess is what it is, below the 23 pressroom there. That's the only person that we could ever 24 determine that he ever spoke to. 25 Q. Lieutenant Burbrink, in connection with the 37 1 route and the people that were shot, were all of the people in 2 the route or along the route that he took that he fired at or 3 fired to? 4 A. Were they all along the route, everybody? 5 Q. Yes, sir. 6 A. Yes, sir. 7 Q. Now, sir, with regard to the investigation at 8 Nottoway Circle at the house there, you mentioned earlier that 9 there were prescription medications that were recovered at the 10 home at Nottoway? 11 A. Yes, sir; there was. 12 Q. Let me hand you a document, sir, and ask you if 13 you can identify that. 14 A. Yes, sir. This is a -- 15 JUDGE POTTER: Wait just a second. 16 MR. SMITH: May we approach, Your Honor? 17 (BENCH DISCUSSION) 18 MR. SMITH: Same objection. It's part of his 19 police report, not admissible under the rules. 20 JUDGE POTTER: Let me see what it is, Mr. Smith. 21 Having had a chance to read it, Mr. Smith, do you still have 22 an objection? 23 What is the relevance of this, Mr. Stopher? 24 MR. STOPHER: Two items: Number One, the amount 25 of Prozac that was recovered on the two prescription 38 1 medications and then, secondly, the other medications that 2 were recovered. It identifies specifically what was there and 3 what wasn't there. There aren't any conclusions in it; it's 4 just a simple listing of items that were recovered. 5 JUDGE POTTER: I think Mr. Smith may be right 6 that this is not admissible, but unless there's something that 7 you think is prejudicial about it, Mr. Smith, I'm going to 8 admit it because it really is just an inventory of the drugs 9 they found at various places and, you know, I guess I could go 10 get the policeman that picked it up to come in here and 11 testify. 12 MR. SMITH: As long as he doesn't draw any 13 conclusions or, you know, make any scientific observations. 14 JUDGE POTTER: Well, he can't. 15 MR. STOPHER: He can't do that. 16 MR. SMITH: Then maybe he won't ask him. 17 (BENCH DISCUSSION CONCLUDED) 18 Q. Lieutenant Burbrink, would you tell us what that 19 document is, sir? 20 A. Yes. This is a copy of a crime lab examination 21 report that was done on some drugs that were confiscated from 22 both the house on Nottoway and Blevins Gap. The front page 23 tells who it was submitted by and the date that it was taken 24 to the lab. The date it was taken to the lab was 9-15, the 25 day afterwards, 9-15-89. It was taken -- arrived there at 39 1 1:30 P.M. It was brought by Detective Moore and Timmons. 2 They are the narcotics officers. When stuff is put in the 3 property room, it's got to be identified in the lab. It's put 4 into a certain vault, they have a key to it, they bring it and 5 they transport it to the lab and turn it over to the examiners 6 there, and then they also come back and get it. 7 MR. STOPHER: Your Honor, we'd move the 8 admission of Defendant's Exhibit 476 -- 9 MR. SMITH: No objection, Your Honor. 10 MR. STOPHER: -- and ask that it be published. 11 JUDGE POTTER: Be admitted. 12 SHERIFF CECIL: (Hands document to the jurors). 13 Q. Lieutenant Burbrink, would you look at this 14 list, and there are eight exhibit numbers on the second page; 15 correct, sir? 16 A. Yes, sir. 17 Q. Were all of these, in looking at the list, 18 without making you read each one of them, all prescription 19 medications for Joseph Wesbecker? 20 A. Yes, sir; they were. 21 Q. And identified here were Number One, Lithobid, 22 that contained how many tablets? 23 A. Twenty-five pink tablets. 24 Q. Number Two, Prozac, how many tablets? 25 A. Fifteen. 40 1 Q. Number Three, Prozac, containing how many 2 tablets? 3 A. Nine. 4 Q. Number Four, temazepam? 5 A. Yes, sir. In this one there was 29 orange 6 tablets, and there was one pink tablet, and it was differently 7 marked than the other ones, and all of them were examined. 8 Q. Number Five was Pamelor? 9 A. Yes, sir. Thirty tablets. 10 Q. Number Six was imipramine? 11 A. Yes, sir. Again, this is one there was two 12 separate types of pills in this bottle; one of them had eight 13 green tablets marked 6203 and the other one contained 160 14 green tablets marked GG 42. 15 Q. Number Seven, ibuprofen? 16 A. One. 17 Q. Number Eight, trazodone? 18 A. Four tablets. 19 Q. Let me next show you a photograph that was 20 previously marked as part of an exhibit, Defendant's Exhibit 21 276, sir. And let me refer you particularly to the photograph 22 that is numbered in the lower right-hand corner 664, and the 23 one that is right behind that is numbered 665. Do you see 24 those, sir? 25 A. Yes, sir; I do. 41 1 Q. Are these police photographs, sir? 2 A. Yes, sir; they are. 3 Q. And do you know what is portrayed or what's 4 pictured in these two photographs? 5 A. Yes, sir; I do. 6 Q. Would you tell the jury what's shown. 7 A. This is at the house on Nottoway Circle. It's 8 in the kitchen on a dishwasher. You can see it's a 9 dishwasher, and it's a Time magazine from -- I think it was 10 February -- that was opened up to a page laid there on top the 11 dishwasher, and I remember the one page had one of the police 12 officers in one of the shootings holding up an AK-47. There 13 were several other photographs that talked about violence at 14 different locations and guns. 15 Q. Let me show you a copy of that edition of the 16 magazine. Let me show you, first of all, the complete 17 magazine, not the one recovered but an exemplar. Can you 18 identify that for us? 19 (BENCH DISCUSSION) 20 MR. SMITH: This is hearsay. He's attempting to 21 introduce the entire magazine. It's not the magazine that was 22 found. There were some photographs of what was open on the 23 scene. He's trying to attempt to introduce the entire 24 magazine with the entire photographs. It's not material or 25 relevant and certainly not appropriate cross-examination. 42 1 JUDGE POTTER: Well, it is beyond the scope of 2 the cross-examination. Have you seen the whole magazine, 3 Mr. Smith? 4 MR. SMITH: No. 5 MR. STOPHER: It was introduced. It's in the 6 police -- 7 MR. SMITH: Photographs were produced. 8 MR. STOPHER: Your Honor, I did produce it. I 9 did produce it. I didn't keep a detailed record of the 10 mountains of materials that I produced, but this comes as no 11 surprise to anybody. The photograph of it has already been 12 introduced though Brenda Wesbecker. 13 MR. SMITH: This is so prejudicial. 14 JUDGE POTTER: Is the only thing that's going to 15 be introduced is the Xerox of the pictures? 16 MR. STOPHER: Yes, sir. 17 JUDGE POTTER: I'm going to overrule the 18 objection. 19 (BENCH DISCUSSION CONCLUDED) 20 Q. Would you take a look, sir, at Defendant's 21 Exhibit 475. Can you tell us what that is, please, sir? 22 A. Yes, sir. The front of it is the front of the 23 Time magazine from February 6, 1989, where there was an 24 article that talked about armed America, and the inside is the 25 article itself. I'm a Time subscriber and I've had this 43 1 magazine for the last 15 years, and any articles regarding 2 police-related work I cut out and keep. In fact, I've got 3 this same article in my file at my office. 4 Q. Would you refer, sir, to this article and match 5 it up, if you can, to the photograph that's No. 664? 6 A. Yes. The way it was opened up was actually 7 page -- if you go back, Page 22 and 23 are the two that match 8 each other, should butt up against each other. And that's the 9 way it was open to, so the 22 and 23 were open. 10 MR. STOPHER: Your Honor, we move the admission 11 of Defendant's Exhibit 475 and ask that it be distributed to 12 the jury. 13 MR. SMITH: We object to that, Your Honor. 14 There's no evidence that this is Mr. Wesbecker's -- Mr. 15 Wesbecker read this. It's prejudicial and inflammatory. It 16 raises issues not -- 17 MR. STOPHER: Objection to the statements in 18 front of the jury. 19 JUDGE POTTER: Objection is overruled. 20 SHERIFF CECIL: (Hands documents to jurors). 21 Q. Lieutenant Burbrink, in addition to the 22 investigations at the scene and of interviews of individuals 23 that were in the building and the searches at Nottoway and 24 Blevins Gap, did the police undertake an investigation of the 25 weapons that had been purchased by Mr. Wesbecker? 44 1 A. Yes, sir; we did. 2 Q. And in the course of that investigation was 3 there evidence found that he had purchased a Winchester 4 pump-action Defender shotgun? 5 A. Yes, sir. 6 Q. Was that item ever recovered or found by the 7 police after September 14, 1989? 8 A. No, sir; it was not. There was an Ithaca 9 shotgun recovered, but not a Winchester. 10 Q. Not a Winchester Defender pump-action shotgun? 11 A. That's correct. 12 Q. Was it ever discovered, sir, where Mr. Wesbecker 13 kept his weapons and ammunition that were used at Standard 14 Gravure? 15 A. That day we know from talking to witnesses there 16 they were in the back of the vehicle with the cover over the 17 top of them. According to Brenda, they were not at her house 18 on Blevins Gap. There were some weapons found on Nottoway. 19 That's where we assume they came from. 20 Q. Did you ever find a particular place in the 21 Nottoway residence in which weapons had been stored or the 22 weapons that he used at Standard Gravure had been stored? 23 A. There was a -- let me find it here. There was 24 an attic entrance in the ceiling of a closet up in the -- I 25 guess it's how you attain the area to the attic, that we 45 1 determined some of the things were stored up there because of 2 the way the insulation was messed up and there were some 3 indentations in the wallboard. 4 Q. Where is this, sir? 5 A. On Nottoway. 6 Q. And what entrance are you talking about? 7 A. To get up through the attic you have to go 8 through a closet. 9 Q. And where is the entrance to the attic from the 10 closet? 11 A. In a bedroom, Mr. Wesbecker's bedroom there on 12 Nottoway. 13 Q. All right. And if you get into the closet how 14 do you get up in the attic? 15 A. There's a -- you have to climb up into there, 16 basically. You have to climb up like in a closet shelf. It's 17 one you can reach up and pull the lid over top of it and you 18 can pull yourself up into it and get a stepladder or a chair 19 to get up into it. 20 Q. Yesterday, Lieutenant Burbrink, you were asked 21 about investigations concerning murder and cocaine; do you 22 recall those series of questions, sir? 23 A. Yes, sir; I do. 24 Q. In the time that you have worked, sir, as a 25 homicide detective and sergeant, have you ever been involved 46 1 in an investigation of a murder or a homicide in which the 2 perpetrator was taking Prozac? 3 MR. SMITH: We'd object to that, Your Honor. 4 Obviously, Mr. Wesbecker was on Prozac. 5 MR. STOPHER: Other than Mr. Wesbecker. 6 JUDGE POTTER: Sustained. 7 MR. STOPHER: That's all, Your Honor. Thank 8 you. 9 10 FURTHER_EXAMINATION _______ ___________ 11 12 BY_Mr._SMITH:. __ ___ ______ 13 Q. One other question, Lieutenant. You said when 14 you interviewed Mr. Scherer -- 15 A. I couldn't hear you, sir. 16 Q. That's why I was coming over here. You said 17 when you interviewed Mr. Scherer you had gone to work at five 18 P.M. that day? 19 A. Four P.M. 20 Q. Four P.M.? 21 A. Yes, sir. 22 Q. Are you sure it couldn't have been earlier? 23 A. I could have been on overtime; there was a lot 24 of overtime on that. But it was in the afternoon, I know 25 that. 47 1 Q. Because he was discharged from the hospital at 2 three P.M. that afternoon. 3 A. He was discharged shortly after I got done 4 talking to him, so that could have been correct. Yes. He was 5 discharged shortly thereafter because actually we went back to 6 the hospital the next day and I went back to just check on 7 some people and he was already gone at that point in time. 8 Q. Thank you, sir. 9 JUDGE POTTER: One second, Detective. Let me 10 see you-all up here. 11 (BENCH DISCUSSION) 12 JUDGE POTTER: I'm having a little bit of a 13 guilty conscience, so what I want to make sure is that I 14 haven't done something and put somebody at a disadvantage. 15 That report on what they sent to the lab probably should not 16 have come in, but it's not going to be in dispute. They could 17 have called in somebody else. That report is what they sent 18 to the lab. It does not include whatever labels or models 19 they found out there. And so what I want to do is just alert 20 Mr. Smith that if he wants to take a minute and put in through 21 this detective whatever labels or models -- obviously they're 22 not going to send an empty bottle to the lab because they only 23 send the ones with pills. I don't know if you've gone over it 24 enough to know whether there were other things. I will bend 25 the rules the same way for you to let you put in what other 48 1 stuff was found out there. And if you don't want to take the 2 time to do it through this witness and review the police 3 reports, and just we'll put it in by agreement at some later 4 time, if that's the way you want to look at it. Do you 5 understand what I'm saying? 6 MR. SMITH: Yeah. Let me at least with this 7 witness clarify with him that this is not necessarily all of 8 the bottles. Isn't that the point? 9 JUDGE POTTER: That's the point. 10 MR. SMITH: Okay. 11 (BENCH DISCUSSION CONCLUDED) 12 Q. In connection with Exhibit 476, Lieutenant, this 13 listing of bottles, or materials in bottles? 14 A. Yes, sir. 15 Q. That is stuff that was sent to the lab; right? 16 A. Yes, sir; it is. 17 Q. That doesn't necessarily mean that's all the 18 pill bottles that were found at the house? 19 A. I think it is the ones that had pills in it, the 20 ones that were sent. Obviously we would not send anything 21 that didn't have any pills in it because there was nothing to 22 identify. I'm not sure -- I'm not aware of that. I'd have to 23 look through this document here to determine if there's any 24 other ones. Do you want me to go ahead and do that? 25 Q. If it can be done within a couple of seconds. 49 1 A. Sure (reviews document). 2 Q. Getting close? 3 A. Hope so. Okay. At the one on Nottoway, 4 everything that was located there, the prescription medication 5 and stuff that was found in there was taken and sent to the 6 lab. And I don't see where there was any empty pill bottles 7 that were left there or that were not noted in his report. 8 Q. Would that necessarily have been noted? 9 A. Yes, because -- it should have been because if 10 they took the other ones they are looking for some type of 11 medication, and they knew that he had had some personal 12 problems because of talking to Brenda Wesbecker, so they would 13 have taken those or at least documented them in his report 14 that he found them. He may not have taken the empty bottles. 15 But at least he would have documented them. Now, the only 16 times we would have taken them is if the refills marked along 17 with it, where you get a refill, then we really are kind of 18 bound to take that so nobody goes back and refills the 19 prescription. 20 Q. All right. While you're looking through that, 21 isn't it true in connection with your talking with Brenda 22 Wesbecker your investigation revealed that she had related 23 that Mr. Wesbecker had seemed much more angry and jittery over 24 the last few weeks prior to this shooting? 25 A. Yes, sir. 50 1 Q. And that he seemed changed in her opinion over 2 the last few weeks prior to the shooting? 3 A. That was her statement to Sergeant Waldridge. 4 Again, at the one that I see there at Blevins Gap and so 5 forth, that medications found at the top of the dresser and 6 the drawer of the bedside table were collected, and those were 7 the ones that we sent to the lab. 8 Q. Okay. Thank you, sir. 9 JUDGE POTTER: Thank you very much, sir. You 10 may step down; you're excused. 11 Your next witness is a longer one, Mr. Stopher? 12 MR. STOPHER: Yes, sir. 13 JUDGE POTTER: Okay. Why don't we take the 14 morning recess, ladies and gentlemen. Don't let anybody 15 communicate with you about this case. Don't talk to anybody 16 about the case. Don't discuss it among yourselves or form or 17 express opinions. We'll stand in recess for 15 minutes. 18 (RECESS) 19 SHERIFF CECIL: The jury is now entering. All 20 jurors are present. Court is back in session. 21 JUDGE POTTER: Please be seated. 22 Mr. Stopher, do you want to call your next 23 witness? 24 MR. STOPHER: Yes. Doctor Robert Granacher, 25 Your Honor. 51 1 JUDGE POTTER: Sir, would you step down here and 2 raise your right hand, please. 3 4 ROBERT P. GRANACHER, JR., M.D., after first 5 being duly sworn, was examined and testified as follows: 6 7 JUDGE POTTER: Would you walk around, have a 8 seat in the witness box, keep your voice up good and loud, and 9 would your state your name and then spell it for me, please. 10 DOCTOR GRANACHER: Robert Phillip Granacher, Jr. 11 G-R-A-N-A-C-H-E-R. 12 JUDGE POTTER: Answer Mr. Stopher's questions. 13 14 EXAMINATION ___________ 15 16 BY_MR._STOPHER: __ ___ _______ 17 Q. Doctor Granacher, let me ask you to try to speak 18 up into the microphone. Even though this appears to be a 19 relatively small area, without the mikes we all have 20 difficulty hearing. So if you'll try to direct your voice in 21 that direction, it will help. 22 Where is your office location, sir? 23 A. In Lexington, Kentucky, St. Joseph Office Park, 24 1401 Harrodsburg Road. 25 Q. And, Doctor Granacher, do you also live in the 52 1 Lexington area, sir? 2 A. I do. I live within Lexington. 3 Q. And what is your profession, sir? 4 A. I'm a medical doctor and a psychiatrist. 5 Q. Doctor Granacher, where are you originally from, 6 where were you raised? 7 A. Well, down the river from here in Meade County. 8 I grew up outside Brandenburg on a small farm with eight 9 brothers and sisters. 10 Q. And did you go to schools in that area, sir? 11 A. Yes, sir. I went through the public schools of 12 Meade County. 13 Q. And after you graduated from high school what 14 did you do, sir? 15 A. Well, I then pursued a course of education in 16 what's known as premedical training. I knew when I went to 17 college I intended to be a physician, so I started at the 18 University of Kentucky and finished at the University of 19 Louisville, so I've been in both institutions. 20 Q. And did you get a bachelor's degree from the 21 University of Louisville? 22 A. I did, sir, in chemistry. 23 Q. And what year did you get a bachelor's degree in 24 chemistry at U of L? 25 A. 1969, I think. 53 1 Q. Okay, sir. I might as well go ahead and ask the 2 tough question now. How old are you now, sir? 3 A. Fifty-three. 4 Q. Doctor Granacher, after you graduated from the 5 University of Louisville in 1969, did you pursue your 6 education further? 7 A. I did, sir. I went to Lexington to go to 8 medical school at the University of Kentucky, at the Chandler 9 Medical Center. 10 Q. And did you graduate from medical school at 11 U of K? 12 A. I did, yes. 13 Q. And what year was that, sir? 14 A. 1972. 15 Q. And are you a licensed and practicing physician 16 in the state of Kentucky, sir? 17 A. Yes, sir. I've had a license to practice 18 medicine in Kentucky since 1973, and that license has been 19 continuously in force since. 20 Q. After you graduated from the University of 21 Kentucky medical school, did you get some postgraduate medical 22 education, sir? 23 A. I did, sir. All medical doctors take the same 24 education in medical school, so heart surgeons, pediatricians, 25 gynecologists, psychiatrists all have the same basic medical 54 1 training. Medical doctors then split off into what are called 2 residencies; that's where specialty work is done. So I was a 3 resident in psychiatry at the medical school in Lexington and 4 chief resident of psychiatry. And then I left and completed 5 my residency at Harvard Medical School in Massachusetts 6 General Hospital. 7 Q. And when did you complete your residency at 8 Harvard Medical School? 9 A. June 30, 1975. 10 Q. After completing -- well, let me back up, sir. 11 With regard to that residency and the work at Harvard, what 12 did that relate to, what field or fields? 13 A. The work at Harvard, sir, was in 14 psychopharmacology, the branch of medicine that deals with 15 medicines and chemicals that affect mental and brain function. 16 Q. And did you also complete residencies in 17 psychiatry? 18 A. Yes. It was all a part of the same residency. 19 I was just allowed to do a special year at Harvard to -- I 20 also was a resident at Harvard, but most of it was in 21 psychopharmacology. 22 Q. After that time, sir, when you finished at 23 Harvard in 1975, what did you do? 24 A. Well, I came back home to Kentucky. I came back 25 to Lexington; I've been there ever since. So in 1975, when I 55 1 returned home, I took a salaried position. For about 25 2 months I worked as the medical director of the admissions 3 service at Eastern State Hospital, the hospital that would be 4 equivalent, say, to Central State Hospital here in Louisville. 5 I supervised other psychiatrists and treated patients. I left 6 there in 1977, and spent a year at the Veterans Administration 7 Hospital and the college of medicine, as well, doing research 8 and treating veterans. 9 Q. Doctor Granacher, from that time up to the 10 present, how have you been occupied in your profession? 11 A. In 1978, sir, I went into private practice in 12 Lexington. I continued my affiliation with the medical 13 school, and it continues to this day, where I'm a clinical 14 professor. But I teach voluntarily; I'm not a paid professor. 15 My primary work is in private practice. My private practice 16 consists of a number of components. I treat patients. Like 17 any other psychiatrist, about half of my time is spent 18 treating patients, either psychiatric patients or patients 19 with sleep disorders. I'll get to that in a minute. 20 So I treat the ordinary kinds of mental patients 21 that any psychiatrist would see, those that have depression, 22 those that have anxiety states, those that have schizophrenia 23 or other serious mental disorders. I deviate, though, a bit 24 into some areas that some psychiatrists don't work in. One 25 area that I work in extensively is in brain injury. I teach 56 1 courses across the country and have an evaluation system in 2 Lexington for the evaluation of serious brain injury, people 3 that have had closed-head injuries in automobile accidents, 4 coal mine accidents, fall off of buildings, et cetera. 5 The other half of the time, though, when I'm not 6 treating patients, I'm involved in the kind of work we're 7 going to be discussing here today, and that is a small area of 8 medicine known as forensic psychiatry, F-O-R-E-N-S-I-C. The 9 way I use the word, it means medical/legal analysis, so as a 10 physician it's a medical/legal analysis. And I'm one of 263 11 psychiatrists in North America that is board certified to do 12 that kind of work. 13 Q. With regard to that forensic psychiatry work, 14 sir, you mentioned that it is connected with law and medicine; 15 do I understand correctly? 16 A. Yes, sir. I am not a lawyer, I am a physician, 17 but I am trained to analyze legal cases or a person's mental 18 state where it's raised as an issue in a civil, such as this 19 case, or a criminal case or an administrative case such as 20 workers' compensation or Social Security. 21 Q. And if I understand correctly, that involves 22 items in the courtroom, disputes in the courtroom of either a 23 civil nature or a criminal nature? 24 A. Yes, sir. If you're going to go into forensic 25 psychiatry you're going to be in a courtroom; there's no way 57 1 to get out of that. You're going to work with lawyers and 2 judges and administrative bodies; there's no way to get out of 3 that. It's part of the profession. You're trained to be of 4 service to judges and lawyers, institutions, those that work 5 in the judicial process or litigate or hear disputes. 6 Q. Doctor Granacher, in connection with that work, 7 approximately how many times have you testified in a 8 courtroom? 9 A. Inside a courtroom, sir, it may sound 10 surprising, but not very often. I only am in a courtroom like 11 this four or five times a year. I testify a lot, but it's by 12 deposition in my office with a court reporter. 13 Q. And over the years, sir, how many times, 14 approximately, have you testified by deposition or in a 15 deposition? 16 A. Approximately 4,000 times. 17 Q. And in connection with the cases that you have 18 worked on or with, sir, you've worked on criminal cases? 19 A. Oh, yes. Many criminal cases. 20 Q. And would these be criminal cases that would 21 involve crimes of violence? 22 A. Yes, sir. Murder, kidnapping, armed robbery, 23 rape, various kinds of assault and battery. 24 Q. In connection with that work, sir, do you 25 testify on behalf of the prosecution or on behalf of the 58 1 defendants or how does it break down? 2 A. Both, sir. I -- my particular way of practicing 3 is if someone asks me to assist in a case, I don't care 4 whether it's the plaintiff or the defendant, if I'm contacted 5 I will review the case, and if I feel I can be of service I'll 6 take the case. So we don't discriminate between plaintiffs 7 and defendants, we work for both. 8 Q. In connection with criminal matters involving 9 homicide, sir, have you worked with law enforcement officials? 10 A. Oh, yes. Yes, sir. Police, sheriffs, jails. 11 Q. And in connection with criminal cases have you 12 sometimes worked with defendants? 13 A. Yes, I have. I have testified on behalf of 14 defendants accused of murder. 15 Q. Have you testified on issues related to mental 16 competency and sanity or insanity in criminal matters, sir? 17 A. I have, sir, right in this city, competency to 18 stand trial. 19 Q. And is that something that you have done as a 20 psychiatrist and a forensic psychiatrist? 21 A. Yes, sir. 22 Q. Doctor Granacher, in connection with -- you 23 mentioned you are one of 263 forensic psychiatrists in the 24 country, if I understand you correctly. 25 A. Actually, in North America. Our board is a 59 1 Canadian and American board. 2 Q. You are board certified in that specialty? 3 A. Yes, sir. 4 Q. Are you board certified in other specialties, 5 sir? 6 A. Yes, sir. Three others. 7 Q. And what are the other three board 8 certifications that you have? 9 A. General psychiatry, which is basically what all 10 general psychiatrists are, treating patients; geriatric 11 psychiatry, which is a subspecialty that deals with the 12 special problems of older people, disorders following strokes, 13 Alzheimer's disease, those kinds of things; then the third 14 specialty is sleep disorder medicine. 15 Q. Doctor Granacher, in connection with those 16 matters in which you are board certified, do you sometimes 17 treat patients as a general psychiatrist, a geriatric 18 psychologist or a specialist with regard to sleep disorders? 19 A. I treat patients with those kinds of problems on 20 a daily basis; yes, sir. 21 Q. And are you connected with any hospitals or 22 institutions dealing with mental health or mental illness? 23 A. Yes, sir. I now confine my practice to 24 St. Joseph Hospital in Louisville (sic). I used to work at 25 many of the city hospitals, but it's too hard to get around, 60 1 so as I've gotten older and busier, I've confined it to St. 2 Joseph Hospital. We run a large mental health unit within 3 that hospital. 4 Q. I think you said St. Joseph Hospital in 5 Louisville. 6 A. I'm sorry. That was the old hospital. No. 7 This is in Lexington. 8 Q. All right, sir. And approximately what size 9 hospital is St. Joseph's in Lexington, sir? 10 A. It's roughly 500 beds, about 480 beds. 11 Q. And does it have a psychiatric clinic or ward? 12 A. Yes, sir. The whole sixth floor of the hospital 13 is a psychiatric unit that treats ordinary kinds of mental 14 disorders as well as substance abuse and alcoholism. 15 Q. Doctor Granacher, in connection with your 16 background, have you published articles on mental health? 17 A. Yes, sir; I have. 18 Q. On mental illness? 19 A. A book, book chapters, medical journal articles. 20 Q. And in connection with your work, have you 21 studied homicide? 22 A. Yes, sir, quite a bit. 23 Q. Have you not only studied homicide but have you 24 written on homicide? 25 A. Yes, sir. 61 1 Q. Doctor Granacher, in connection with this 2 particular case, that is, the case involving Joseph Wesbecker 3 and the shootings that occurred at Standard Gravure on 4 September 14, 1989, have I employed you as an expert witness 5 to testify in this case? 6 A. You did, sir. 7 Q. And in conformity with that employment, have you 8 charged for the time that you spend in working on this matter 9 and having worked on this matter? 10 A. I did, sir. I charged you the same rate that I 11 charge any other lawyer, plaintiff or defense lawyer. 12 Q. And what is that rate, sir? 13 A. The rate -- my charges to date I think are 14 somewhere between forty and fifty thousand dollars. 15 Q. And in connection with that work, would you 16 generally outline what you have done in connection with the 17 scope of that work? 18 A. Yes, sir. I've been at this for more than a 19 year. I have in my office in Lexington approximately 150 20 depositions, all of the medical records that could be obtained 21 on Mr. Wesbecker, depositions of his family, depositions of 22 workers at Standard Gravure, depositions of neighbors. I have 23 articles about Prozac, which of course is an issue in this 24 case, articles about other areas of mental health, psychiatric 25 medicine, items such as -- I went through the receipts showing 62 1 where Mr. Wesbecker purchased guns, how he purchased those, 2 his activity at shooting galleries. I -- as part of my work, 3 I came with Mr. Stopher here to Louisville quite sometime ago, 4 went through the Standard Gravure plant so I could see for 5 myself the physical plant. We photographed that area, made 6 movies of the area. I have reviewed the photographs the 7 police took of the area at the time of their investigation, 8 the architectural layout of the plant, the plans, his route 9 through the -- Mr. Wesbecker's route through the plant, 10 through Standard Gravure. Numerous items of information. 11 I had to have an understanding of what he was 12 like in life because I never met him. And for me to do that, 13 as a forensic psychiatrist, I have to rely on eyewitness 14 accounts of other people who give sworn testimony within this 15 particular case. We do that to construct what's called a 16 psychiatric autopsy. So the purpose of my evaluation is to 17 try to understand the mind of Joseph Wesbecker from early in 18 life until September 14th, 1989. 19 Q. In terms of the volume of materials, was that an 20 easy task, sir? 21 A. No, sir. It's the largest task I have 22 undertaken in my career in forensic psychiatry. It's the 23 largest amount of information I've ever had to deal with, the 24 largest number of depositions I've ever had to deal with, the 25 largest case that I personally have ever seen in my career. 63 1 Q. Doctor Granacher, in connection with the 2 materials that you have reviewed, are you now in a position to 3 understand the mind of Joseph Wesbecker? 4 A. Yes, sir. I have a unique opportunity of being 5 a Monday morning quarterback, being able to go back in time, 6 look at things that many other people who dealt with him on a 7 daily basis didn't know or never saw, and formulate a 8 conclusion about his life and his actions. 9 Q. Doctor Granacher, in that regard, do you have an 10 opinion based upon your review and your training and 11 experience as a psychiatrist and forensic psychiatrist, as to 12 whether or not Prozac is an unreasonably dangerous medication 13 for the use in treating depression? 14 A. I do have an opinion, sir. 15 Q. And what is that opinion? 16 A. Prozac is perfectly safe and acceptable for use 17 in the treatment of depression in human beings. 18 Q. Do you have an opinion, sir, as to whether or 19 not Prozac was a substantial factor in causing or contributing 20 to cause Joseph Wesbecker's violent actions on September 14, 21 1989? 22 A. I do have an opinion, sir. 23 Q. And what is that opinion? 24 A. Prozac played no role whatsoever in the actions 25 that Joseph Wesbecker took at Standard Gravure. 64 1 Q. Do you have an opinion, Doctor Granacher, as to 2 what were the roles or the causes or cause of his violent 3 actions on September 14, 1989? 4 A. I do have an opinion, sir. 5 Q. And can you tell us briefly what that opinion 6 is? 7 A. Yes, sir. The opinion is what happened 8 September 14th, 1989, at the hands of Joseph Wesbecker was a 9 confluence of three life patterns that ran in parallel, like 10 three roads that all ended at an intersection on September 11 14th, 1989. The first road is the adult aggression throughout 12 his life that Joseph Wesbecker demonstrated towards others and 13 the homicidal intent that he carried in his mind almost on a 14 daily basis towards other people. So that's Road Number One. 15 Road Number Two, running in parallel with that, 16 is he was a mentally ill man. He had a mental illness. So 17 his homicidal intent is kind of a straight road until 18 September 14th, 1989. Interspersed and weaving in and out of 19 that is Road Number Two, is mental illness. 20 And then Road Number Three, which also weaves in 21 and out of Road Number One, is the phenomenal hostility and 22 animosity that Joseph Wesbecker held towards Standard Gravure 23 and the personnel, some personnel at Standard Gravure. Those 24 three roads came to an intersection on September 14th, 1989, 25 when Joseph Wesbecker caused the deaths and mayhem that he did 65 1 at Standard Gravure. 2 Q. Doctor Granacher, with regard to these three 3 roads or the three life patterns, is there any one event, any 4 one fact, any one item that caused this? 5 A. No, sir. If you pull any one fact or any one 6 item out, it's like taking a piece out of a puzzle, and if you 7 look at that and hold it up to the light and look at that 8 piece, your mind cannot tell you what the whole puzzle looks 9 like. You have to lay all the pieces down on the table and 10 put them together, and when you do that then you can see a 11 fabric in Joseph Wesbecker's life and mind that led to the 12 behavior he displayed September 14th, 1989. 13 Q. Doctor Granacher, in connection with these three 14 life patterns, have you analyzed Joseph Wesbecker with regard 15 to those three life patterns? 16 A. I have, sir. 17 Q. And are those three life patterns items that you 18 have detailed based on your analysis of the records in this 19 case? 20 A. Yes, sir. 21 Q. Let me ask you, first of all, sir, about -- I 22 think you said Life Pattern Number One was adult aggression 23 and homicidal intent? 24 A. Yes, sir. 25 Q. Have you detailed -- first of all, sir, let me 66 1 ask you, what generally does that refer to? 2 A. Well, it refers, sir, to my analysis of the 3 information that leads me to the conclusion that Joseph 4 Wesbecker began to form the intent to harm people at Standard 5 Gravure around 1983, which clearly is six years before this 6 act took place. By form the intent, I mean that he began to 7 consciously think of individuals that he wanted to kill, the 8 reasons he wanted to kill them. He put that in his mind, and 9 he slowly evolved a plan, which he carried out on September 10 14th, 1989. 11 Now, the way I know that is he left little bread 12 crumbs all over the place. He would drop a bread crumb for 13 one person, bread crumb for his wife, bread crumb for his son, 14 bread crumb for someone else. No one ever had all the bread 15 crumbs so that they could follow the trail, but they were all 16 out there. And with my ability now to be able to go look at 17 everyone else's work and production and testimony, you can see 18 the pattern. 19 He had specific intent to kill these people. It 20 didn't turn out I don't think the way he wanted it to, but he 21 had the specific intent on September 14th, 1989, to go into 22 that plant, specifically go for three areas; the management, 23 foremen and Paula Warman, who wrote a letter about his 24 insurance benefits. He got sidetracked because events don't 25 always turn out the way we want, but that was his original 67 1 goal, and it culminated in his shooting and him taking his own 2 life. 3 Q. Let me deal, first of all, sir, with Life 4 Pattern Number One, the adult aggression, and beginning in -- 5 I think you said approximately 1980? 6 A. Yes, sir. When I looked at the aggression part 7 of his behavior, there were some events before he began to 8 focus on Standard Gravure that took place that portrayed his 9 overall aggressive tendencies. In 1980, he smacked a woman at 10 a place here in Louisville called Media Mix, he physically 11 struck a woman in that place; Mr. Tingle reported that in his 12 deposition. 13 Q. Let me make some notes and follow along with 14 you, sir. This life pattern that we're referring to would be 15 best captioned how, sir? 16 A. The caption I used was aggression. This theme 17 of aggression, which I think is part and parcel of Mr. 18 Wesbecker's personality, was a significant part of it. So in 19 1980, he got into an altercation with a woman at Media Mix, a 20 nightspot somewhere near where he worked, I think, and struck 21 a woman. Now, see, if you pull that out of context and just 22 look at that, that doesn't mean anything, but it's a beginning 23 of a pattern that began to be like a snowball. It started out 24 real small, as it went down the hill it picked up more and 25 more snow until it rolled and rolled and rolled and could not 68 1 be stopped. 2 The next element I found which was of importance 3 to me looking at his mind or the mind of Joseph Wesbecker in 4 terms of aggression was threatening to kill Doctor Beasley. 5 Doctor Beasley had nothing to do with Standard Gravure. 6 Doctor Beasley was the ex-husband of his wife Brenda. She 7 told in her, you know, deposition about that event. 8 Someone by the name of Metten also was aware 9 that -- Joseph Wesbecker told Metten that he actually stalked 10 Doctor Beasley, almost pretending how to kill him. Wesbecker 11 told people it would be very easy to just pull up beside 12 Doctor Beasley and blow him away in his car. You see, that 13 kind of thought -- human beings don't do things that they 14 don't think of, by and large. That kind of thought in those 15 of us that study homicidal behavior begins to paint a pattern, 16 and that is a heinous, aggressive homicidal thought. That's 17 not just somebody who's angry at his wife's ex-husband. 18 I'm sure the jury has heard about his son's 19 problems. Well, back in the early 1980s, James had a 20 therapist, Ms. Minch. Ms. Minch wanted to work with Joseph 21 Wesbecker and James to try to resolve these issues, and Ms. 22 Minch very dramatically portrays in her deposition the 23 tremendous aggression that she saw in Joseph Wesbecker. She 24 described it that he would point his finger in her face and 25 yell at her in a very loud, angry fashion, he would get 69 1 red-faced, was very aggressive with her and frightening to 2 her. Now, those individuals have nothing to do with Standard 3 Gravure. 4 My first finding of specific intent towards 5 employees of Standard Gravure where Joseph Wesbecker takes 6 this underlying kind of homicidal way of thinking he has and 7 begins to direct it on employees of Standard Gravure begins 8 about sometime in 1983 or '84. Mr. Gosling testified that 9 Joseph Wesbecker told him he wanted to kill Mr. McKeown. Mr. 10 Feewell (sic) testified that this was eating inside Wesbecker, 11 was eating on him, this thought of wanting to kill Mr. 12 McKeown. 13 MR. SMITH: Your Honor, we'd object to that. 14 There's been no testimony concerning that. 15 JUDGE POTTER: Let me see you-all up here. 16 (BENCH DISCUSSION) 17 JUDGE POTTER: Mr. Smith? 18 MR. SMITH: We'd object to the testimony as a 19 mischaracterization of the testimony. There's been no 20 testimony by anybody that Mr. Wesbecker said that or that 21 anything was eating on him. 22 MR. STOPHER: He's quoting from the depositions. 23 JUDGE POTTER: Under the rules of Kentucky, 24 stuff can come in through an expert, provided it's normally 25 relied on, and I think it has to be reliable, though. And, 70 1 Mr. Stopher, I'm going to -- to the extent he starts pulling 2 little bitty things out of little bitty depositions that are 3 hearsay, I'm going to sustain objections to bringing it in. I 4 mean, if he wants to paint the broad picture of kind of the 5 stuff that's been here at trial, I think he can do that. But 6 to have him go out and pull out one little word out of this 7 little deposition and one little word out of the thousands of 8 pages, I will sustain objections to him just wheelbarrowing in 9 tons of what is probably unreliable evidence. 10 So as long as he kind of stays on a general 11 theme we've had here, I think he can characterize in his own 12 way. But to just go back and, you know, pick out things that 13 we've never heard anything about that he doesn't know whether 14 it's hearsay or whatever it is, no one knows where it came 15 from. Just the fact that something came in a deposition 16 that's been read by an expert, I don't think gets it in at 17 trial. 18 MR. STOPHER: Judge, he mispronounced the name 19 of the witness. Maybe that's what the problem is. He 20 pronounced it Feewell, but the man who testified and gave this 21 deposition and was read at this trial is named Fewell, and 22 precisely what Doctor Granacher quoted is precisely what is in 23 this record, and he can give you or I can give you the page 24 number. This deposition was read into evidence in this case. 25 JUDGE POTTER: Okay. I have not kept that 71 1 detailed a note so I'm going to accept that as true and I'm 2 going to overrule the objection on this, but I do think 3 that -- I don't know how much detail he's going to go into. 4 Is he going to stick pretty much with what's come in at trial? 5 MR. STOPHER: Yes, sir. Pretty much what's come 6 in at trial. 7 MR. SMITH: That's the key. Pretty much. 8 JUDGE POTTER: It doesn't have to come in at 9 trial. If he wants to read a hospital record or something 10 that came in at trial, I don't have any problem with it. But 11 what we're talking about is going back to 300 depositions or 12 whatever you-all have taken as a little scrap of hearsay here 13 or there. I'll just have to take it up one at a time. 14 (BENCH DISCUSSION CONCLUDED) 15 Q. Doctor Granacher, would you spell the name of 16 the witness that you were quoting from that -- 17 A. F-E-W-E-L-L. 18 Q. You pronounced it Feewell. We've heard it here 19 as Fewell. 20 A. I apologize. I didn't know that. 21 Q. And is that the witness that you were referring 22 to, sir? 23 A. Yes, sir. 24 Q. All right. Would you go ahead, sir, and tell us 25 other items in the life pattern that indicate aggression? 72 1 A. Yes, sir. Somewhere during 1984 or 1985, Joseph 2 Wesbecker told Mr. Gosling that he wanted to kill McCall, 3 Shea, Warman, and McKeown. He also told Mr. Gosling that he 4 wanted to make a bomb for the plant, bring a gun in and shoot 5 everybody. When Mr. Gosling described Mr. Wesbecker when he 6 would talk about these things, he described him as getting red 7 and talking of how many people he wanted to kill. 8 In 1986, Joseph Wesbecker told Mr. Metten that 9 someone should kill Mike Shea. Did I pronounce that 10 correctly? 11 Q. Yes, sir. 12 A. Joseph Wesbecker told Mr. Frazier or Joseph 13 Wesbecker -- or Mr. Frazier noticed Mr. Wesbecker that he 14 seemed to threaten people and he hadn't done that before. 15 That was the first instance I could find where an employee of 16 Standard Gravure began to see a change in Wesbecker's behavior 17 of threats, and that was -- 18 Q. Now, let me ask you to repeat that one, sir, 19 because I didn't -- what time was that? 20 A. Somewhere in 1986 was Mr. Frazier's recollection 21 that Joseph Wesbecker seemed to threaten people and that had 22 not been his pattern before. 23 MR. SMITH: Your Honor, we'd object to that. 24 There's been no testimony whatsoever. Mr. Frazier was here 25 and did not testify in any way to that. 73 1 A. It's on Page 25 of his deposition. 2 JUDGE POTTER: Ladies and gentlemen, let me say 3 something to you. This gentleman, like some of the experts, 4 is being allowed to tell you why he has his opinion, okay, and 5 he's telling you what he thinks the facts were. He's not 6 heard any of the witnesses here; he's gone out and read stuff 7 and formed an opinion. And I'm going to admonish you that the 8 stuff, the facts, and I put quotes around that, that he says 9 he's basing his opinion on are being given to you only for the 10 purpose of evaluating the validity and probative value of his 11 opinion. Okay? Because he may say things that he thinks 12 happened and you-all have heard the real evidence and not 13 think it happened at all. Okay? And so this is why it's 14 being given to you, the basis for his opinion, so you can 15 evaluate whether or not to give it what value and validity to 16 give his opinion. What he's saying is not facts for you-all 17 to use for the case. 18 Go ahead, Mr. Stopher. 19 Q. I'm sorry, sir. The reference to Mr. Frazier, 20 was that in 1986? 21 A. That Wesbecker seemed to threaten people and he 22 hadn't done that before. 23 MR. SMITH: Your Honor, can I have a continuing 24 objection? There is just no evidence that -- Mr. Frazier did 25 not say that at this trial. 74 1 MR. STOPHER: I object to the argument in front 2 of the jury. 3 JUDGE POTTER: Mr. Smith, the jury, they've 4 heard the evidence on which they're to base their opinion and 5 they'll decide the case based on the evidence they've heard, 6 and they'll use that to evaluate this gentleman's testimony. 7 Q. What is next on the life pattern regarding 8 aggression? 9 A. Next was information Wesbecker told to Keilman, 10 K-E-I-L-M-A-N, and Keilman heard Wesbecker tell him that 11 Wesbecker wanted to shoot Popham, Cox and McKeown. 12 Now, we jump -- remember this thread I've been 13 discussing, this thread of aggression. We jump now away from 14 Standard Gravure to show that Wesbecker has this continuing 15 homicidal type of thinking to New Year's Eve 1987. 16 And Brenda Camp testified that Wesbecker threatened to blow 17 Melissa Beasley's brains out. Melissa Beasley, I understand, 18 was her daughter by Doctor Beasley. 19 Now, up until this point, New Year's Eve 1987, 20 things have been merely thoughts and statements. We now, 21 though, have an overt act. It's not clear in my reading of 22 the testimony exactly when this happened, but it appears that 23 in late 1986 or early 1987, that Wesbecker brought a loaded 24 gun into the plant, Standard Gravure plant, with the intent to 25 shoot Popham. He had it in a paper bag and Lucas testified 75 1 about that. 2 Q. Doctor Granacher, what is significant about that 3 event? 4 A. People who devise a plan to kill others, not a 5 crime of passion but where you actually formulate a plan and 6 you are a -- what's called a spree killer, such as we have 7 with Joseph Wesbecker, or a serial killer, have some 8 characteristics about them that criminologists and forensic 9 psychiatrists and police workers look for. And Joseph 10 Wesbecker had a number of these characteristics. All killers 11 of this type talk about killing. They tell people about 12 killing. Nobody wants to hear that stuff. Nobody wants to 13 pay any attention to it but it's talked about, and everybody 14 just -- it sort of zips over your head, well, that can't be. 15 That's one element. 16 The second element is these individuals have a 17 fascination with weapons. They handle weapons, they use 18 weapons. Not everybody, of course. I mean, I have weapons. 19 I'm a hunter. Other people who hunt have weapons. They say 20 guns don't kill; people do. But the people who want to kill, 21 have a fascination with weapons. This, to me, as a forensic 22 psychiatrist, was extremely important. 23 This man came into that plant, made an overt 24 statement that he wanted to kill someone and had the means to 25 do it. And in the testimony I read, Popham was called and 76 1 warned, "Stay away from Joe." That kind of overt act in a man 2 who's walking around with repeated homicidal thoughts against 3 his stepdaughter, his ex-husband -- his wife's ex-husband, 4 employees, and then comes into the plant with a gun and 5 specifically mentions he's going to kill someone, that is an 6 indication of a serious homicidal problem. What I could see 7 was since Joe talked about it all the time nobody paid any 8 attention but, as we can see, it was a very important element. 9 Q. In continuing on the life pattern of aggression, 10 sir, what else is important or significant? 11 A. Well, shortly after -- shortly after the start 12 of 1987, Joseph Wesbecker was hospitalized at Our Lady of 13 Peace Hospital. That was his last hospitalization, by the 14 way. His last psychiatric hospitalization was in 1987, March 15 of 1987. When he was admitted to that hospital, he was 16 evaluated by a nurse, Ms. Sheehan, and he told Ms. -- 17 Wesbecker told Ms. Sheehan that he felt like harming his 18 foreman "any way I can," was the way he put it. 19 Now we jump back more into specific names of 20 people at Standard Gravure. Sometime during 1987, early 1988, 21 Wesbecker told Senters, S-E-N-T-E-R-S, that he was going to 22 get even with Shea, McCall, Cox, McKeown and Warman. Now, in 23 this same time period, 1987-88, Wesbecker told Brenda, Brenda 24 Camp, that he wanted to blow up Standard Gravure with 25 dynamite. 77 1 Q. Yes, sir. 2 A. In the same time period, '87-'88, he was at work 3 and told Griffin, "I'll be back. I'm going to get these 4 SOBs," meaning employees that he was angry at at Standard 5 Gravure. 6 Q. What's next, sir? 7 A. We now move into '88. And it was of course in 8 1988 that Wesbecker was placed on long-term disability. 9 Pointer remembers a day at Standard Gravure when Wesbecker, 10 while on long-term disability, came into the pressroom office, 11 was angry and said he was going to come back and get them all. 12 MR. SMITH: Object to that, Your Honor. There's 13 absolutely no testimony whatsoever from Andrew Pointer 14 concerning that. 15 JUDGE POTTER: Let me see you-all up here. 16 (BENCH DISCUSSION) 17 JUDGE POTTER: I kind of tend to agree with 18 Mr. Smith on that one. 19 MR. STOPHER: Judge, it's in the record. 20 JUDGE POTTER: In the record of this trial? 21 MR. STOPHER: Mr. Pointer said that. He was one 22 of the first witnesses that testified. 23 MR. STOPHER: If you'll look, Your Honor, on 24 October 4, Page 177, it is in this record. 25 JUDGE POTTER: Let me see it. 78 1 MR. STOPHER: This is not the testimony, this is 2 just my abstract of it, that Wesbecker came into the office 3 and that he was going to come back and get them all. 4 JUDGE POTTER: My notes would say that somebody 5 told Mr. Pointer that. My notes would indicate that that was 6 something that somebody told Mr. Pointer that Mr. Wesbecker 7 had said, not something he said to Mr. Pointer. 8 MR. STOPHER: I think that's accurate, and I 9 think it was admitted to the record in this case and I think 10 Doctor Granacher can rely on it and cite it. He can cross- 11 examine that it may have been made by somebody else, but it 12 was admitted to and he testified that it was said. 13 JUDGE POTTER: Okay. It did come in but it 14 wasn't that he said it to Pointer; it was that he said it to 15 other witnesses. 16 MR. SMITH: It was denied that he said it to the 17 witnesses. 18 MR. STOPHER: Who denied it? 19 MS. ZETTLER: Mr. Hunkel. 20 MR. STOPHER: Mr. Hunkel? Who in the world is 21 Mr. Hunkel? 22 MS. ZETTLER: Calm down, Ed. I don't remember 23 the guy's name. I can find it real quickly. It was pointed 24 out to Mr. Pointer that the man who he said told him denied it 25 in his deposition. 79 1 MR. STOPHER: It's not in this record. 2 (BENCH DISCUSSION CONCLUDED) 3 JUDGE POTTER: Okay. Ladies and gentlemen, I'm 4 going to give you the admonition I've given you before is that 5 an expert goes over the record and he interprets what he sees 6 his own way. All right? And then you-all hear the evidence 7 at trial. And the only reason he's allowed to tell you how 8 he's viewing the case is so you'll be able to evaluate his 9 opinion. And if he bases his opinion on things that you find 10 from the evidence here in fact didn't take place, then you can 11 use that to maybe discredit his opinion. Okay? 12 He's entitled to tell you why he's saying what 13 he's said. But I caution you again, just because he says 14 something happened or he believes something happened is not 15 evidence for you in your case to say yes, that happened; it is 16 only for you to use it in deciding whether or not to give his 17 opinion validity or what probative value to give his opinion. 18 Do you understand what I'm saying? 19 All right. With that admonition, please 20 proceed, Mr. Stopher. 21 (BENCH DISCUSSION) 22 MR. STOPHER: I object to yelling out these 23 arguments in these statements. I've listened to this now for 24 a long time. The one that I'll never forget was yelling out 25 that Jimmy Wesbecker's testimony was distorted in front of 80 1 this jury. I have no objection to him making objections, but 2 yelling this stuff out for the purpose of telling the jury, I 3 object to and ask that it not be done anymore. 4 JUDGE POTTER: Mr. Smith, I really haven't 5 talked to you-all about this, but the way I do it is if you've 6 got an objection that can be stated in one word or two words, 7 leading, hearsay, something like that, you can do it from 8 counsel table or wherever you happen to be, but the sort of 9 the speaking objection, just ask to approach the bench. 10 MR. SMITH: That would probably, I guess, be a 11 three-word objection "assumes facts not in evidence." 12 JUDGE POTTER: Something like that I think is 13 fine. 14 MR. STOPHER: I object to his arguing that these 15 are facts that are not in evidence. If he has an objection he 16 can state the objection, but to make those kinds of statements 17 reflects on the credibility of this witness and on the record. 18 JUDGE POTTER: Well, three words, assumes facts 19 not in evidence, I guess that's four. Something like that he 20 can make it from where he's sitting, and if I have to, you 21 know, call you up here to get an explanation, I will. If not, 22 I'll rule on it. But in these sort of long explanations which 23 are really arguments, I'm going to have you come up here and 24 make them. 25 (BENCH DISCUSSION CONCLUDED) 81 1 Q. I think that we were discussing Mr. Pointer? 2 A. Yes, sir. 3 Q. And Wesbecker was in the pressroom office? 4 A. Yes, sir. Very angry and then came out and said 5 he was going to come back and get all of them. 6 Q. What's next, sir? 7 A. In the summer of 1988, we see this fascination 8 with weapons again. Ball observed Wesbecker on Fourth Street 9 at lunch with a banana clip. Banana clip is a half-circle or 10 quarter-circle clip that contains ammunition that could be put 11 into a rifle. 12 November of 1988, this was after the fire at 13 Standard Gravure, Wesbecker told Lucas, "It's a shame that the 14 building didn't burn." 15 In February of 1989, this was Lucas's 16 recollection, during that time period Wesbecker began to talk 17 about lists of people he wanted to kill or do away with, and 18 Mr. Lucas characterized it as the list was different each 19 time. But there appeared to be a number of elements that he 20 would repeatedly discuss in his lists, Warman, McCall, Popham, 21 Sitzler, management, and then the others that you've already 22 heard me describe. 23 Sometime in 1989, Wesbecker was at Hall's 24 Cafeteria discussing bombing Standard Gravure and that that 25 wouldn't be destructive enough and that he would have to plan 82 1 something else. 2 On Derby weekend, 1989, Brenda Camp testified 3 that Wesbecker told her, "If I told you the things I was going 4 to tell you, you'd call the police on me." 5 Around the same time, spring of 1989, Wesbecker 6 told Frazier that he wanted to get even with Shea and McCall 7 and wanted to fly a plane loaded with explosives into Standard 8 Gravure. 9 In early July 1989, starting at this point, 10 Wesbecker began to have a lot of contact with Mr. Lucas. He 11 had about three major contacts in that month. Wesbecker told 12 Lucas that he wanted to kill Shea, Cox and McCall. The way I 13 read the deposition the word "kill" was used. Mr. Lucas 14 thought that on August 26, 1989, that Wesbecker told him that 15 he had approached The Outlaws, a motorcycle gang, and 16 Wesbecker was telling Lucas that he had approached them to get 17 a contract, try to get a contract to have Cox, McCall and Shea 18 killed. 19 On September 6, 1989, Wesbecker went into a gun 20 store and Mr. Jackson was asking him about ammunition that he 21 might need for the weapon and Wesbecker said, "I got all the 22 ammo I'll ever need," and declined to purchase any. 23 On September 2nd, 1989, Lucas remembers 24 Wesbecker again talking about the motorcycle gang, and 25 Wesbecker was telling Mr. Lucas that he could get explosives 83 1 from the motorcycle gang to put on a plane. Lucas also 2 recalls Wesbecker using a term AK-AK. 3 September 9th, 1989, Wesbecker is discussing 4 with Lucas the killing of people at Standard Gravure and Lucas 5 says to him, "You know, you might kill some people you don't 6 intend to." And Wesbecker at that point says, "Well, I'll go 7 to Plan B then." We don't learn what Plan B was. He didn't 8 tell us. 9 Now, that, Mr. Stopher, in my opinion, is my 10 summary of the behavioral demonstrations of Joseph Wesbecker 11 starting in the early 1980s, showing the character of his mind 12 and that his mind thought about killing people, family 13 members, not blood family members but family members by 14 marriage, Standard Gravure employees, Standard Gravure 15 management, and that this culmination of events that occurred 16 September 14th, 1989, didn't appear as some impulsive act of a 17 man who just got up that morning, had a bad day, and decided 18 to go into the plant and blow some people away. It had been 19 rehearsed and thought about and in his mind for year after 20 year after year, eating away at him, eating at him. And, 21 remember, it's being covered and intertwined by the two 22 elements you haven't heard about, his mental illness and his 23 tremendous animosity at Standard Gravure. 24 But this is the underlying theme. This is the 25 thread that runs through Joseph Wesbecker. This is the thread 84 1 that led him to kill those people. 2 Q. Doctor Granacher, you mentioned the second road 3 that I think you said would go in and out, and what is the 4 category there, sir? 5 A. The second row, sir, my heading of that would 6 just be mental illness. 7 Q. And can you tell us what generally you mean by 8 this road and what its role is here briefly first, sir? 9 A. Yes. The diagnosis in this case is irrelevant. 10 In my opinion, Joseph Wesbecker was a mentally ill man. I 11 found diagnoses all over the place in medical records: 12 depressive neurosis, major depression, atypical bipolar 13 disorder, major affective disorder, dysthymia, paranoid 14 personality, schizoid personality. All of those people are 15 right, in my opinion, to some degree. 16 Joseph Wesbecker had two elements to his mental 17 illness that in my judgment are important in how it interplays 18 with his aggression. The first element, he suffered 19 depression. And we can call it all kinds of names, but in my 20 opinion he had a depressive illness. Secondly, he had a 21 personality disorder. Those are two distinct disorders. If 22 you look in the Diagnostic and Statistical Manual of Mental 23 Disorders, we call it DSM, DSM-III-R, DSM-IV, you'll find that 24 mental illness is listed in one area called Axis I, and 25 personality disorders are listed in another area, Axis II. 85 1 Sometimes they relate to each other; sometimes they don't. In 2 Joseph Wesbecker's case, in my opinion, they're intimately 3 related. But for his personality disorder, he would not have 4 behaved the way he did regarding his aggression, and but for 5 his depression, he would not have responded the way he did 6 regarding his aggression. 7 Now, the proof elements to me as a forensic 8 psychiatrist that demonstrate the mental illness of Joseph 9 Wesbecker, actually the earliest recollection I could find 10 where we might say he had a mental disorder was May 12th, 11 1980. That's in the Humana Southwest Hospital record. Joseph 12 Wesbecker was seen at that hospital for a muscular condition 13 called torticollis, T-O-R-T-I-C-O-L-L-I-S. That is a 14 twisting. Tort means a twisting; collis has to do with the 15 muscles in your neck. So a torticollis would be somebody's 16 neck that would twist either to the right or the left and it 17 would be hard for you to get it back around. When he was seen 18 in the hospital, though, in the record there he's described at 19 nervous. 20 On May 28th, 1980, 16 days later, he's back in 21 the Humana Hospital Southwest emergency room and now the 22 record says, "agitated, depressed, constant pacing." This is 23 something we're going to see about Joseph Wesbecker's mental 24 illness for the next nine years from 1980 onward, when he gets 25 agitated, he paces; he can't sit still. And we can see it in 86 1 that record starting May of 1980. Well, they were concerned 2 about him at the Humana Hospital, so the doctor who saw him 3 suggested to Mr. Wesbecker that he see a psychiatrist, and 4 they made arrangements for Mr. Wesbecker to see Doctor Hayes. 5 And three days later, on May 31st, 1980, Doctor Hayes admits 6 Wesbecker to the psychiatric unit at Baptist Highlands 7 Hospital. That's Wesbecker's first psychiatric 8 hospitalization. 9 The record reflects a number of problems, but 10 one of the major problems seemed to have something to do with 11 his recent divorce. But in that record, he told the people 12 who were evaluating him that he could not stay still at work. 13 He couldn't be still. He had to pace, jump and move around. 14 So here again, we see this restlessness, this pacing, 15 agitation. 16 Well, Doctor Hayes treated him, and over the 17 next year or so used an antidepressant called Norpramin, so 18 from May of '83 up until April of '84, Wesbecker took the 19 antidepressant Norpramin, N-O-R-P-R-A-M-I-N. He took a second 20 medicine with that called Navane, N-A-V-A-N-E. Now, Navane is 21 very important to me in this case. Navane is an antipsychotic 22 drug. The book I wrote was on the use of antipsychotic drugs 23 to treat serious mental disorders. Antipsychotic drugs cause 24 a neurologic side effect called akathisia, A-K-A-T-H-I-S-I-A. 25 It's a neurological disorder of motor restlessness. In the 87 1 readings that I've done in this case, it's been argued that 2 Prozac caused akathisia in Joseph Wesbecker. I haven't gotten 3 to why he didn't have that. That eventually will come out. 4 But the important thing here is that Navane is one of the most 5 likely drugs to cause akathisia there is. The antipsychotic 6 drugs, the major side effect is to produce akathisia. If 7 Joseph Wesbecker was susceptible to akathisia, he should have 8 gotten it through Navane. He took Navane for more than a year 9 and never told any of his doctors that it made him nervous or 10 restless. In fact, the notes of Doctor Hayes and later Doctor 11 Senler suggest that those medicines helped him for the most 12 part. So Navane did not cause akathisia, and it's one of the 13 most likely drugs to do so, telling me as a 14 psychopharmacologist that Mr. Wesbecker doesn't have the 15 tendency to get akathisia. 16 We move on to April 12th, 1984. Wesbecker at 17 this point is seriously depressed, apparently. Overdoses on 18 the Norpramin, he takes about 20 tablets of Norpramin and 19 about 40 tablets of an over-the-counter sleeping medication. 20 It makes him very confused, forgetful. He doesn't get medical 21 attention for that at that time, but then tries to kill 22 himself a second time on or about this same time by hooking up 23 a tube to his Oldsmobile and trying to gas himself with the 24 automobile exhaust. Brenda tells us about that, and she 25 witnessed that behavior in him. It's four days later on the 88 1 16th of April that Wesbecker is admitted to Our Lady of Peace 2 Hospital. This is now the second psychiatric hospitalization. 3 Let's look at the weaving now, watch the weave. Here comes 4 the aggression. 5 In the Our Lady of Peace Hospital records, 6 Wesbecker tells that he's having thoughts of blowing Doctor 7 Beasley's brains out. How do we know that Wesbecker's 8 rational about his thinking? Look at what else is in that 9 record. He says, "But he always has a witness with him," 10 indicating that he's able to tell the difference between right 11 and wrong or when he might get caught, kind of the old 12 policeman-at-your-elbow test. He knew that if he went after 13 Doctor Beasley, he always had somebody there that would see 14 Wesbecker shooting him. That's in the record. Out of that 15 hospitalization, we see the diagnosis of major affective 16 illness, so that's one of these depressive disorders. 17 Now, Doctor -- excuse me, at this 18 hospitalization, Doctor Senler picked up Wesbecker's care and 19 changes his medication. She prescribes a medication called 20 Etrafon, so we're now about June of '84. Up until about 21 December of '85. Etrafon -- I want you to pay careful 22 attention to this. Etrafon has two drugs in it. It has the 23 antidepressant amitriptyline, sometimes called Elavil, and it 24 has a drug in it like Navane called perphenazine, P-E-R- 25 P-H-E-N-A-Z-I-N-E. Perphenazine is very likely to cause 89 1 akathisia if you're susceptible to that disorder, and here we 2 find that from June of '84 until about December of '85, Joseph 3 Wesbecker takes a medication highly known to cause akathisia, 4 but I can't find anywhere in the records that he had akathisia 5 taking that medication. 6 So that's now Fact Number Two that leads me to 7 the conclusion that he was not prone to get akathisia from 8 drugs that might cause it; the first was his use of Navane for 9 about a year and the second is his use of this drug for almost 10 a year and a half. So he had two and a half years' exposure 11 to neuroleptic medication that might cause akathisia. He 12 never got akathisia. If he didn't get akathisia from those 13 drugs, he isn't going to get it from Prozac. 14 Our next mental event is January 13th, 1986. 15 Doctor Beanblossom, who is not a psychiatrist, sees Mr. 16 Wesbecker at the Humana Southwest emergency room. Wesbecker 17 comes in with a bunch of articles and thinks he's suffering 18 chemical exposure, that he is being exposed to toluene, 19 T-O-L-U-E-N-E. It's a solvent. And they use toluene in a lot 20 of industries, and I assume they used it at Standard Gravure. 21 Wesbecker is of the opinion that his brain is being poisoned 22 with toluene and he tells Beanblossom this, and Doctor 23 Beanblossom listened and did a careful assessment and actually 24 drew a blood sample and sent it off, measured it for toluene 25 and it came back 0.0, nothing in it. But that indicates -- 90 1 and this is going to be an important element as we weave in. 2 This is another weaving, see, this is the Standard Gravure 3 weaving now into this aggressive area because he links toluene 4 with Standard Gravure. 5 On June 24th, 1986, Wesbecker calls Doctor 6 Senler and complains, "My mind's racing and I can't shut it 7 off. I'm forgetting what I think." Doctor Senler prescribes 8 for Mr. Wesbecker the drug lithium. And Wesbecker stayed on 9 lithium on and off from '86 until the day of the shootings, 10 because at autopsy we know he had lithium in his blood, normal 11 levels, but he had lithium in his blood. So Doctor Senler, 12 however she interpreted these symptoms, decided to use lithium 13 and put Mr. Wesbecker on lithium. 14 He then changes doctors and ends up 15 November 18th, 1986, seeing Doctor Moore. Now, if I'm not 16 mistaken, he was referred to Doctor Moore by Pat Lampton, if 17 I'm not mistaken. Well, we see in Doctor Moore's records a 18 registration form. On that registration form, it asks the 19 patient the question: "When did your illness first begin?" 20 In other words, when did your mental illness first begin. 21 Joseph Wesbecker writes on that form, "1978." In his mind, he 22 feels that he started becoming mentally ill in 1978. That's 23 the first time I found that in the records when Wesbecker 24 actually thought his mental illness started. 25 He also put on that form, "My condition is 91 1 related to my work." There's the weaving now again of 2 Standard Gravure; you see weaving into his mental illness. 3 Doctor Moore made the diagnosis of atypical bipolar disorder. 4 That's just another kind of depression. I'm not going to get 5 into all the differences. When Doctor Moore saw Mr. Wesbecker 6 eight days later -- I'm sorry -- it was a couple months later 7 on January 26, 1987, he wrote a letter on that date, and 8 Doctor Moore put in the letter about Mr. Wesbecker the 9 following statement: "Working on the folder definitely 10 exacerbates -- exacerbate means to increase -- definitely 11 exacerbates his irritability and agitation." 12 Now we come to the third psychiatric 13 hospitalization, March 31st, 1987. This is the third and last 14 psychiatric hospitalization. Now, interesting point here, 15 every one of Wesbecker's psychiatric hospitalizations, all 16 three, came before Prozac, not a single psychiatric 17 hospitalization occurred after Prozac. What we find in those 18 records is we learn in this record Wesbecker tells the people 19 evaluating him at Our Lady of Peace -- Doctor Schramm was his 20 doctor, but he tells others that he's nervous, he's angry and 21 agitated towards his job and he's had at least 12 to 15 22 attempts at taking his life by hanging. 23 See, we didn't even know about those. Joseph 24 Wesbecker is a very private seclusive person. He doesn't tell 25 his psychiatrist what's going on, he doesn't tell his wife 92 1 what's going on. He just leaves little pieces. You only get 2 a little piece of this. None of these people had the whole 3 picture. They couldn't really know where he was coming from. 4 So we know that he made many efforts to kill himself that 5 nobody knew about. 6 It also says in that record that he wanted to 7 harm his foreman. Doctor Schramm made a diagnosis of the type 8 of depression called dysthymic disorder, D-Y-S-T-H-Y-M-I-C, 9 and a personality disorder which he called paranoid 10 personality. That means thinking-that-people-are-out-to- 11 get-you-type of personality. During that hospitalization, 12 Doctor Buchholz, a Louisville psychologist, neuropsychologist, 13 saw Wesbecker, and on April 1st, '87, found Wesbecker angry at 14 his job and work conditions, and Wesbecker told Doctor 15 Buchholz that his company was playing games with him, "playing 16 games with me" was how he told Doctor Buchholz. 17 Now, Wesbecker, like many patients who have his 18 kind of unfortunate mental illness, changes doctors a lot. So 19 now he's going to get his last doctor, Doctor Coleman, and 20 Doctor Coleman had Mr. Wesbecker fill out a form, July 6, 21 1987, ordinary doctor's intake form, you know, your name, 22 address and what's wrong with you, and so forth. On that 23 form, Wesbecker said he paces a lot. 24 So here we see this pacing again that's been 25 present since 1980. He didn't see Doctor Coleman. I assume 93 1 Doctor Coleman must have sent him the form to fill out or 2 something. 3 He saw Doctor Coleman July 8th. On the first 4 visit, Wesbecker tells Doctor Coleman and Coleman puts in his 5 notes, "Primary problem is stress on the job and employers, 6 and he feels they're jerking him around." And we've heard 7 that before. Remember, that was in the March of '87 admission 8 to Our Lady of Peace with Doctor Schramm. So here comes the 9 Standard Gravure thing winding its way in and out of this 10 aggression, mental illness line. 11 Doctor Coleman started some medication and Mr. 12 Wesbecker seemed to show an initial response. Doctor Coleman 13 noted on July 29th that Wesbecker's mood was more even. 14 On November 11th of '87, however, Doctor Coleman 15 learned of a significant episode of anger at work that Mr. 16 Wesbecker told him about. Now, we haven't gotten into the 17 Standard Gravure stuff yet, but we begin to see again this 18 twining in because on January 24th, 1988 -- January 24th, 19 1988, we see in Doctor Coleman's records that Mr. Wesbecker 20 had a consultation with a lawyer by the name of Berman, 21 B-E-R-M-A-N, about filing a workers' compensation claim 22 against Standard Gravure. So we're beginning to see -- Mr. 23 Wesbecker is thinking about disability, and with a number of 24 these doctors he's asked about the prospects of him getting 25 disability. 94 1 June 10th, 1988, Doctor Coleman starts Mr. 2 Wesbecker on Prozac for the first time. It appears, as best 3 the records can be reconstructed, that the Prozac was 4 discontinued on June 26, 1988, given 17 days exposure to this 5 drug. The reason it was discontinued is it made him drowsy. 6 That's what he told Doctor Coleman. 7 In between there, Doctor Coleman got a lithium 8 level and found it to be 1.5. But Doctor Coleman chose to 9 discontinue Prozac on -- he actually discontinued it about the 10 28th, but learned that Mr. Wesbecker had stopped it a couple 11 of days beforehand, so it appears that Wesbecker stopped 12 Prozac about the 26th because of drowsiness. 13 Then Doctor Coleman changes Wesbecker's 14 medicine, leaves him on lithium and a medication called 15 Pamelor, and on August 7th, 1988, granted Mr. Wesbecker a 16 medical leave from work. 17 Now, on August 8th, we begin to see something in 18 Doctor Coleman's records about illusions, I-L-L-U-S-I-O-N. An 19 illusion is not a hallucination. An illusion is when, for 20 instance, if I were to look at that wall, that's a real wall, 21 my eyes are seeing a wall, but the wall might be wavy or 22 appear to be moving to me, even though we know it's not 23 because it's affixed to the building. That would be an 24 illusion. And Wesbecker had illusions that the floor was 25 moving; he would look at the floor and it appeared to be 95 1 moving. And he reported that to Doctor Coleman on more than 2 one occasion, and Doctor Coleman on the 10th of August noted 3 that Wesbecker possibly had a disorder called schizoaffective 4 illness. So now we're seeing another kind of depression. I 5 think you'll need another page, Mr. Stopher. 6 Q. Okay. All right. I might need another set of 7 knees, too. 8 A. Between September 7th, 1988, and much of the 9 next six months or so, there are numerous items in Doctor 10 Coleman's records that discuss Wesbecker being focused on how 11 angry he is at work, these illusion problems. Then we get to 12 February 20th, 1989. Wesbecker calls Doctor Coleman and said 13 he had seen a news event about Halcion and he was worried 14 about it. Halcion is a sedative used for sleep. And Doctor 15 Coleman switched Mr. Wesbecker on this date to a second 16 sedative called Restoril. That substance was found in Mr. 17 Wesbecker's bloodstream at autopsy, so we know he was taking 18 it at the time of these shootings. 19 Restoril is also a sedative used for sleep. The 20 difference between Restoril and Halcion, though, is Restoril 21 lasts a lot longer. It has a half-life of about 10 to 17 22 hours, about the same as the drugs we use to treat anxiety 23 like Ativan, which has a half-life of 10 to 20 hours. So 24 these are all sedatives, and they're in an area of chemistry 25 called benzodiazepines. The drug you would be most familiar 96 1 with that's in this category would be Valium. So Halcion, 2 Restoril, Ativan, Valium are all benzodiazepines and all 3 sedatives. So for whatever reason, Doctor Coleman paid 4 attention to what Mr. Wesbecker was telling him, stopped the 5 Halcion, put him on Restoril. 6 On March 27th, Wesbecker reports to Doctor 7 Coleman that he feels better being off of Halcion and Doctor 8 Coleman decides to taper down the dose of lithium at that 9 time. 10 Then we come to August 10th, 1989, second time 11 Prozac is used. By my reading of the records, I found what I 12 think is the event that caused Wesbecker to tell Doctor 13 Coleman he was much more depressed and caused Doctor Coleman 14 to prescribe Prozac. Three days before that, the most 15 important person in his life died, his grandmother, the lady 16 who raised him. In my judgment, Wesbecker was really never 17 the same after that. And had it not been for his 18 grandmother's death, his stress, in my judgment, would have 19 been less. 20 So Doctor Coleman starts Wesbecker on the Prozac 21 on August 10th, 1989. And then the last time Doctor Coleman 22 saw Mr. Wesbecker was on September 11th, 1989, and on that day 23 discontinued Prozac. If you look at the original handwritten 24 note of Doctor Coleman he's got "nervous." And he stopped 25 Prozac on that day, and then it was three days later, of 97 1 course, on the 14th that these events occurred. 2 Now, we've seen the aggression line, the weaving 3 of the mental illness, and we've heard a little bit about 4 Standard Gravure being intertwined in this. The last prong of 5 this three-pronged time line of Joseph Wesbecker is his 6 relationship with Standard Gravure. 7 JUDGE POTTER: Mr. Stopher, maybe this might be 8 a good time to go to lunch. 9 MR. STOPHER: All right. 10 JUDGE POTTER: Okay. Ladies and gentlemen, I'm 11 going to take the lunch recess at this time. Ms. 12 Davis-Spalding, I don't mean to single you out, but are you 13 all right? 14 JUROR DAVIS-SPALDING: I'll get my blood 15 pressure checked at lunchtime. 16 JUDGE POTTER: All right. We'll take a lunch 17 recess. As I've mentioned to you-all before, do not permit 18 anybody to talk with you about this or communicate with you 19 about this case in any way. Don't discuss it among 20 yourselves. And we'll stand in recess till quarter of two, 21 one forty-five. 22 (LUNCH RECESS; HEARING IN CHAMBERS) 23 JUDGE POTTER: As you-all may or may not know, 24 Ms. Davis-Spalding -- or, Ms. Barbara Davis had some problems 25 this morning and went to -- you may or may not know she was 98 1 having problems this morning. Over the lunch break, another 2 juror and some of her friends took her to Jewish Hospital. 3 She is in the emergency room. A couple of minutes ago, I 4 spoke to the nurse there, and they have given her something 5 for high blood pressure and have ordered an electrocardiogram. 6 They don't know whether they're going to admit her or how long 7 she's going to be there or what the situation is. I'm open to 8 any suggestions. My initial reaction would be to recess until 9 9:00 in the morning, and then we'd have a pretty good handle 10 on it one way or the other then about whether to go on without 11 her or not. 12 MR. FREEMAN: I think that's the wise thing to 13 do, Judge. 14 MS. ZETTLER: Yeah. 15 JUDGE POTTER: And I think it's also -- I think 16 it will just -- I think the other jurors would take it better, 17 too, than just to drop somebody out over lunch hour. 18 MR. STOPHER: That's my idea. I would assume 19 that the two that took her might be a little bit upset. I 20 think her condition was not only distracting to her but to 21 some of the people around her. 22 JUDGE POTTER: Okay. Well, rather than just 23 send them home, I'm going to bring them back in and explain to 24 them what happened and what's going on, and then there's one 25 other matter that we need to take up after we get through with 99 1 that, so don't bolt. Okay? 2 MR. SMITH: All right. 3 (THE FOLLOWING PROCEEDINGS OCCURRED 4 IN OPEN COURT) 5 SHERIFF CECIL: The jury is now entering. All 6 jurors are present. 7 JUDGE POTTER: Please be seated. Actually, I 8 guess we need to correct that. There's one juror that's not 9 present. 10 SHERIFF CECIL: Right. 11 JUDGE POTTER: Ladies and gentlemen of the jury, 12 as you-all probably, I'm sure, know, Ms. Davis-Spalding went 13 to Jewish Hospital emergency room over the lunch break; she 14 had had some problems with her blood pressure. I've spoken 15 with the -- a nurse at the emergency room. She has not been 16 admitted. They have given her some medication for her blood 17 pressure and they have ordered a test. I mean, that's what 18 the nurse told me. I may have it a little bit garbled. But 19 it's not a life-threatening situation or anything like that, 20 as it was explained to me, but it's something that they need 21 to tend to. 22 And after talking with the attorneys, what we've 23 decided to do is that we're going to recess until 9:00 24 tomorrow morning. At that point, you know, we'll have a very 25 good handle on her condition and whether to go forward without 100 1 her or not. So what I'm going to do is recess till 9:00 2 tomorrow morning. What I'm going to do -- did Ms. Davis leave 3 her package there? 4 JUROR DUNCAN: I've got it. 5 JUDGE POTTER: Okay. Ms. Duncan, could I 6 empower you to take her package and put it on the cart? Are 7 you the one that -- do more than one of you have a bell today 8 or not? I thought I heard it coming from the back row. 9 UNIDENTIFIED JURORS: It's everywhere. 10 JUDGE POTTER: Even though Ms. Davis is sick, I 11 still have to observe -- you know, when you-all had earlier 12 comments about whether things were statistically significant 13 or not, I assume that it is statistically significant that all 14 of you are in Christmas dress today; is that right? It's not 15 by chance. I only mention that because I just didn't want you 16 to think that I'm so unobservant that I missed that. 17 All right. We're going to take the recess till 18 9:00 tomorrow morning. I'm going to, of course, give you the 19 same admonition that I've given you before. Do not permit 20 anyone to speak to or communicate with you on any topic 21 connected with this trial, and any attempt to do so should be 22 reported to me. Do not discuss the case among yourselves and 23 do not form or express opinions about it. Again, I emphasize 24 that talking about the case with other people applies to your 25 family, friends or getting information from the newspaper or 101 1 TV. I keep saying that, and I really think that's the hardest 2 part -- one of the hardest parts of being a juror is to have 3 something that you spend literally eight hours a day, because 4 we're here a lot of days from nine to five, that you have to 5 concentrate on and think about and try and do something with 6 and then not be able to go home and share that with somebody 7 or get some kind of feedback, I mean, in a totally innocent 8 way. I don't mean anything else. That is a very difficult 9 part of being a juror. And I appreciate that, and that's one 10 reason I mention that to you every day. First of all, the 11 judges' book suggests I do and, also, I think it's a good 12 idea. 13 Remembering my admonition, we'll stand in recess 14 till 9:00 tomorrow morning. 15 (JURORS EXCUSED; HEARING IN CHAMBERS) 16 JUDGE POTTER: Something has come to my 17 attention, and let me tell you what I know about it, tell you 18 how I'm tentatively planning to proceed, and see if anybody 19 has any suggestions. Ms. Myatt, who is -- I don't know 20 whether she's the producer or director or whatever, but 21 certainly the highest-ranking Court TV person stationed here 22 in Louisville -- right after I came back from lunch came to me 23 and said that it had come to her attention that Tim -- I can't 24 remember his last name, the TV cameraman -- has been going to 25 lunch, or at least the last several days -- to be actually 102 1 accurate, more than one day; I don't know if it was more than 2 one day or the last several days or whatever, had gone to 3 lunch with various jurors. That is a violation of his 4 contract with Court TV, and they're going to replace him. 5 Okay? So, but that's between him and Court TV. 6 My thought is that technically I don't see 7 anything wrong with that. I mean, I don't know if you-all are 8 aware of it, but several of the jurors have met friends for 9 lunch and things like -- you know, people they know from other 10 places have met them for lunch, you know, I haven't even 11 brought it up because I don't think there's -- certainly 12 they're allowed to do that. 13 Because he's in the courtroom, I guess 14 technically he's no different than anybody else, but because 15 he's there, because he's part of this thing, I wanted to bring 16 it to your-all's attention. What I thought I would do is ask 17 Ms. Myatt to step in and tell you everything she knows, which 18 is more than she's told me, because I asked her a few 19 questions and then I just asked her if she'd be available. 20 And then after that, if anybody wants -- and I'm embarrassed I 21 can't remember his last name; he's been very helpful about the 22 TV and things, Tim -- he gave me his card -- whatever his name 23 is, I'd ask him to step in and you-all can ask him any 24 questions you want to. 25 I guess, first of all, does anybody feel, 103 1 without more than him having lunch with a juror or -- I guess 2 one day he had lunch with several jurors and one day he had 3 lunch with one juror, and there may be more, but that's all I 4 know. Does anybody feel that, absent anything else, that's a 5 problem? I mean, it's probably not the happiest situation, 6 but technically I don't see it as a problem. 7 MR. STOPHER: The only concern I think everybody 8 would have is whether or not he's talked to them about the 9 case. 10 JUDGE POTTER: Right. So what I thought I'd do 11 is let her come in, tell you so you'll know what I know and 12 then, you know, if anybody feels -- we can bring him in and, 13 if necessary, we can examine the jury in the morning. Let me 14 go get Ms. Myatt. 15 (JUDGE POTTER LEAVES CHAMBERS AND 16 REENTERS WITH MS. KAREN MYATT) 17 JUDGE POTTER: Hi, Ms. Myatt. Have a seat. 18 MS. MYATT: Thank you, Judge. 19 JUDGE POTTER: I want to emphasize that I've 20 explained to the people here what you told me, which was 21 basically that you have a provision in your employment, or 22 it's a rule of Court TV that the -- your people you employ 23 don't fraternize with jurors or court personnel. And it's 24 come to your attention that Mr. Tim Tyler went to lunch on one 25 or more occasions with one or more jurors; is that right? 104 1 MS. MYATT: That's correct, Judge. 2 JUDGE POTTER: Why don't you tell them what you 3 told me, plus everything else you know. 4 MS. MYATT: Last evening about 7:30, I learned 5 that Tim had been invited to lunch by groups of jurors. This 6 week is the first time that it happened. Specifics are that 7 Monday, Marsha, your deputy, approached him and asked him to 8 come into the back hallway. When he did, Mike Miller, who is 9 a friend of his from church, somebody he's known since the age 10 of ten, was there and invited him to go to lunch with a group 11 of jurors. He went to lunch with a total of six jurors; Mike 12 Miller was one of them; Tammy, who is a young woman, tall, 13 long hair -- I don't know her last name -- was another, and 14 there were three or four others. All of them were women -- 15 all the others were women. He didn't even know their first 16 names. 17 They went to the Legal Street Cafe, which is 18 right across from the courthouse, apparently. He sat between 19 Mike and Tammy. There was just small talk discussed at lunch. 20 He couldn't even remember specifics. They were teasing Mike 21 about being quiet because he's kind of a quiet guy, and Mike 22 was embarrassed, and Tim was kind of trying to tease him a 23 little bit about that and that was the extent of it. He 24 walked back to the courthouse with them on Monday. 25 Tuesday, he says he walked out the door and the 105 1 juror named Tammy hollered after him and invited him to lunch 2 once again. It was the exact same group; they again went to 3 Legal Street Cafe. He said again it was just small talk 4 discussed. Nothing stands out in his mind. No one mentioned 5 anything about the trial until they got up to leave. They 6 were putting on their coats, and one of the middle-aged women 7 said to them, "How do you think things are going." He told me 8 he responded by saying, "We can't talk about that. We're not 9 supposed to talk about that." He's not sure who overheard the 10 exchange. The other people were there, but he doesn't recall 11 how close they were in proximity to where he was. 12 Then yesterday, he had lunch with one of them. 13 Tammy again approached him and asked him to go to lunch. They 14 went to the Galleria, and the subject of the discussion was, 15 basically, what type of work he had done in the past, whether 16 he had worked for Court TV in the past before, other 17 television outlets, broadcast outlets that he had worked for, 18 and that was the subject of the discussion. 19 And that is the extent of his contact with the 20 jurors. He did mention to me that he's overheard comments 21 made from the jury room when he's been back working on -- the 22 audio system apparently is adjacent, but none of those 23 comments were directed at him, and that's the extent of it. 24 JUDGE POTTER: Okay. And it's my understanding 25 that you-all are terminating his employment; is that right? 106 1 MS. MYATT: That's correct, Judge, as of 1:00 2 today. The only reason he's still on the premises is that you 3 wanted him available if the lawyers wanted to speak with him. 4 JUDGE POTTER: Okay. Does anybody else have 5 anything? 6 MR. FREEMAN: Did he know that he wasn't 7 supposed to do that? 8 MS. MYATT: He did know he was not supposed to 9 have contact with the jurors. He has been instructed by 10 Court TV and by Barry Withers, who is the crew chief, the 11 owner of Associated Video, who is working with Court TV in 12 this trial. 13 JUDGE POTTER: Barry is the heavyset guy that 14 sits behind the -- 15 MS. MYATT: Yeah, who sits upstairs with me and 16 runs audio. He was specifically instructed not to say 17 anything. Good morning is not even appropriate as far as 18 Court TV's concerned. The sanctity of the jury is something 19 that we impress upon all people who work with us, as well as 20 people who work for Court TV. 21 JUDGE POTTER: Does somebody else have any 22 questions of Ms. Myatt? 23 MR. FREEMAN: Were the comments that he 24 overheard by the jurors about the case? 25 MS. MYATT: I didn't ask him specific questions 107 1 about what he overheard coming from the jury room when he was 2 back in the audio room, so I can't tell you exactly what was 3 said, but it wasn't -- whatever it was was not directed at 4 him. 5 JUDGE POTTER: Okay. I think -- and I won't 6 make one side or the other ask about it, but I think what we 7 ought to do is ask Mr. Tyler to come in and tell us what he 8 knows. 9 Ms. Myatt, why don't you stay, since he is your 10 former employee. And let me just tell you what my concern is. 11 My concern is that the jury will feel they did something wrong 12 and they haven't, okay. They're under an admonition not to 13 talk about the case. There's no -- I mean, they go home and 14 go to parties over the weekend and they meet people and they 15 do everything. If there is a fault, it's with Mr. Tyler 16 because he, you know, was told part of your employment is this 17 and he didn't do it. 18 MR. FREEMAN: I think the lawyers probably ought 19 to confer as to whether or not it's going to have some sort of 20 adversarial effect or adverse effect upon the progress of the 21 case, because apparently the jurors are fond of him or they 22 wouldn't have invited him to lunch. And for him to lose his 23 job... 24 JUDGE POTTER: Well, and some of it has -- you 25 know, as far as -- I have asked him to do things that probably 108 1 I shouldn't have in the sense that the sound system out there 2 doesn't work very well or the building manager here has 3 difficulty working it and, apparently, Tim understands it, and 4 on numbers of occasions he has fixed something or done 5 something, and so we probably -- I won't say entrapped him 6 but -- 7 MR. SMITH: Are you suggesting maybe Karen 8 should reconsider her decision? 9 MR. FREEMAN: I threw it out for the group to 10 consider because I don't know what Ed thinks about it or you 11 and Nancy think about it or the Judge thinks about it. 12 JUDGE POTTER: Does everybody agree that we 13 ought to hear his view of what went on and then you-all can 14 chat and decide what you want to do further? Okay. Can you 15 ask him to step in, Ms. Myatt? 16 MS. MYATT: Sure. 17 (MS. MYATT LEAVES CHAMBERS AND REENTERS 18 WITH MR. TIM TYLER) 19 JUDGE POTTER: Hi, Mr. Tyler. Will you have a 20 seat. Let me just say this. It's come to my attention that 21 you had lunch with the jurors on one or more occasions. As 22 far as a court rule goes, the jurors can have lunch with 23 whoever they want to, but just because you've been so 24 intimately involved in the case and, also, I guess because 25 apparently it's a violation of your contract with Court TV -- 109 1 and that's not my concern, do you understand that? 2 MR. TYLER: Right. 3 JUDGE POTTER: Could I get you to just tell us 4 what went on so everybody will know? If they had had lunch 5 with Joe Schmoe we wouldn't be here, but it's just you've been 6 in the courtroom and know so much about the case and whatever, 7 it's just something we need to get up on the table so 8 everybody knows what it is and then we can go on. 9 MR. TYLER: Okay. As far as going to lunch with 10 them, there was absolutely nothing said about the case. There 11 was one time, and that was Tuesday just before we were leaving 12 the Legal Street Cafe, one of the jurors did say, "What do you 13 think about it," and I said, "I can't talk about it." That's 14 the only thing that's even been said. 15 JUDGE POTTER: Okay. But just for -- that hits, 16 I guess, the bottom line of what we might have been interested 17 in, but could you just recite for us how many times you went 18 to lunch and when and where? 19 MR. TYLER: Okay. Monday and Tuesday was a 20 group of us; we went to the Legal Street Cafe right at Seventh 21 and Jefferson, and then Tammy Duncan and I went to lunch 22 yesterday at the Liberty Street Cafe. 23 JUDGE POTTER: Legal Street is what we'd call 24 Holly's; is that -- 25 MR. TYLER: Yes. 110 1 MR. STOPHER: That's in the Legal Arts Building? 2 JUDGE POTTER: Yeah. Okay. That's Holly's. 3 MR. STOPHER: Used to be Holly's. 4 JUDGE POTTER: Used to be Holly's. Okay. Have 5 you -- one other thing that was mentioned -- and I have asked 6 you and I appreciate the extra effort you've given in trying 7 to get the court sound system to work, and you've been very 8 successful at it -- that you may have heard jurors say things 9 when you were back working on the sound system. Is there 10 anything you've heard -- what types of things did you hear 11 or... 12 MR. TYLER: Nothing that I can remember. 13 JUDGE POTTER: Okay. I mean, it was just them 14 talking about their life in general? 15 MR. TYLER: More or less it's just small talk. 16 JUDGE POTTER: But nothing about the case, I 17 guess is the bottom line? 18 MR. TYLER: No. 19 JUDGE POTTER: Does anybody else have any 20 questions? 21 MR. FREEMAN: Who were the jurors that you went 22 to lunch with on Monday? 23 MR. TYLER: I don't know all of their names. 24 MR. FREEMAN: Can you tell us where they sit? 25 MR. TYLER: That, I couldn't tell you, either. 111 1 I can tell you two people, Tammy Duncan and Mike Miller. Mike 2 Miller, I do know him; I'll let that be known up front. I've 3 known him since I was ten years old. We've gone to church 4 together. And as far as the other jurors, I don't know their 5 names. 6 JUDGE POTTER: Anybody else have anything they 7 want to ask Mr. Tyler? 8 Okay. Mr. Tyler, I know I don't have any right 9 to ask this, but would you mind just waiting a few minutes? 10 MR. TYLER: Sure. 11 JUDGE POTTER: Okay. Thank you. 12 MR. SMITH: Thank you, Mr. Tyler. 13 MR. FREEMAN: Thank you. 14 MS. MYATT: Thanks, Tim. 15 (MR. TYLER LEAVES CHAMBERS) 16 JUDGE POTTER: You-all want to confer among 17 yourselves for a few minutes and then we'll get back together, 18 or why don't you-all do that. 19 (OFF THE RECORD; RECESS) 20 MR. STOPHER: What we have agreed to is that we 21 think that the -- that what has been done so far has not 22 caused anybody any harm, and that there may be more harm 23 caused if he is let go. I mean, he obviously has a good 24 friend who is a juror and, quite frankly, none of us were 25 aware of that connection. Now, maybe that was disclosed to 112 1 the Court and to you. 2 MS. MYATT: I learned it at 7:30 last night, 3 Mr. Stopher. 4 MR. STOPHER: Okay. Well, maybe I 5 misunderstood, but I had heard -- 6 JUDGE POTTER: No. What Mr. Stopher's saying, I 7 thought Mr. Tyler said that he said up front that he knew one 8 of the jurors, and he may have done that and it slipped past. 9 That's what he was referring to. 10 MR. STOPHER: None of us -- if that was done up 11 front, none of us were aware of it, and, admittedly, it's been 12 a long time. But to get back to the point, we would strongly 13 recommend that he be kept on the job; that, obviously, he 14 would be told not to have any contact with the jurors and just 15 to politely decline. Now, it's going to be difficult because 16 they're going to say now, "Well, you did it before and what's 17 the matter now." And he needs to have a response that doesn't 18 blame the Court, any of the parties or the lawyers, and that 19 blames it on Court TV, as far as I can tell, and that he needs 20 to be particularly careful around Mike Miller. 21 MS. MYATT: Fair enough. Let me make a phone 22 call, and do you want me to get back to you-all? 23 JUDGE POTTER: Only if they want you to, or we 24 can just find out at 9:00 tomorrow morning. 25 MR. STOPHER: If, Karen, on the other hand the 113 1 producer says, "No, he's gone," then I think we want to get 2 some agreements from Mr. Tyler. We're very concerned -- one 3 of the primary reasons is we don't think there's anything 4 wrong yet, but if he leaves, he could have a conversation with 5 Mr. Miller or somebody else, not about the case, but about the 6 fact that he's been terminated, which -- 7 JUDGE POTTER: You're right, Mr. Stopher. 8 MR. STOPHER: -- may well work to somebody's 9 prejudice. So if the producer says, "No, he's gone," then I 10 think we do want to follow up with him and with you and with 11 the Court to make sure that whatever harm is going to be 12 caused is going to be minimized. 13 JUDGE POTTER: Mr. Stopher, your point is well 14 taken. It changes the timing of it. Could you go and get a 15 decision now? 16 MS. MYATT: I'll make the call right now and get 17 a decision now. 18 JUDGE POTTER: Because if he is gone, we want to 19 deal with it while he's still here. He's not going to come 20 back and talk to us tomorrow after he finds out he's fired. 21 MS. MYATT: Okay. Excuse me. 22 (RECESS) 23 JUDGE POTTER: Ms. Myatt. 24 MS. MYATT: I've spoken to the executive 25 producer of Court TV. He has agreed to allow Mr. Tyler to 114 1 stay, if Mr. Tyler wants to stay at this point; however, he 2 wanted me to make sure I made a record of this: We are very, 3 very concerned about this, and our inclination is to not have 4 him stay because he has violated a rule that we take very, 5 very seriously. But if it's the Court's wishes that this is 6 the way to prevent any further difficulty here, I will talk to 7 him about staying on. 8 JUDGE POTTER: Okay. Let's do this. You talk 9 to him about staying on, and then if he says he's going to 10 stay on, let him come in here and let me talk to him, and if 11 he says he's not going to stay on, ask him to come in here so 12 I can talk to him. Because I've come to the conclusion that 13 even though he's not a party, even though he is not connected 14 with the case, I think I have the power to order him to do 15 certain things, and primarily not talk to any of these people 16 till the case is over. And, I mean, you know, I would explain 17 to him that if he violated that, I'd plan on putting him in 18 jail. 19 MS. MYATT: I understand, Your Honor. 20 JUDGE POTTER: But hopefully he'll -- I guess my 21 point is I want to talk to him no matter which way he decides 22 to go on your offer. 23 MS. MYATT: Give me a couple of minutes and I'll 24 do what I can. 25 (MS. MYATT LEAVES AND REENTERS CHAMBERS) 115 1 MS. MYATT: Mr. Tyler has decided that if the 2 Court wants him to stay, he really has no other choice but to 3 stay. He understands that -- I have given him a strong 4 caution about further contact with jurors, and he expects to 5 hear it from you, as well, Judge. 6 JUDGE POTTER: Okay. Okay. Why don't you ask 7 him to step in. 8 (MR. TYLER ENTERS CHAMBERS) 9 JUDGE POTTER: Tim -- or, Mr. Tyler, let me just 10 say that I understand that your employer feels you violated 11 what your instructions were on your job, and I don't know 12 anything about that, and they were going to terminate you. 13 And the lawyers talked about it, and their decision was 14 obviously the jurors like you or they wouldn't have invited 15 you to lunch, and they should like you; you're a nice person, 16 from what I've seen. And so they asked Ms. Myatt if she would 17 reconsider, and she reconsidered, and it's my understanding 18 that you're willing to go ahead and finish your job as a 19 cameraman; is that right? 20 MR. TYLER: Yes, sir. 21 JUDGE POTTER: Okay. Let me just emphasize 22 something very importantly. One of the reasons the lawyers 23 asked her to reconsider was that they were concerned that if 24 you were terminated and the jurors liked you, which they 25 obviously do, somehow they would take it out on one side or 116 1 the other or the court system or whatever, you know. And so 2 what I'm going to do is ask that you have absolutely no 3 contact with the jury except to say, you know, "I can't do 4 that" if they invite you to lunch or say something to you. 5 MR. TYLER: Yes, sir. 6 JUDGE POTTER: And do you see any problem with 7 that? 8 MR. TYLER: I don't see any problem at all. 9 JUDGE POTTER: Do you see any problem with you 10 performing your job in a professional manner? I know this has 11 been very upsetting for you. I don't know it has, but it 12 would be for me if I were in your position, okay, that maybe 13 you're so upset or mad at me or mad at the lawyers or mad at 14 Ms. Myatt or mad at her boss that you feel that you'll have 15 difficulty performing in a professional manner from here on 16 out? Do you think you'll have any problem with this? 17 MR. TYLER: No, sir; I won't. 18 JUDGE POTTER: Okay. This is something I think 19 I kind of need to do to protect the record. I've asked you 20 and you've said you'd do certain things, but at this point I'm 21 going to order you to not have any contact with the jury or 22 jury members or anybody that, you know, is like a family 23 member of the jury, because what I don't want to do is get 24 back to Mr. Miller that there was this problem. 25 MR. TYLER: Okay. 117 1 JUDGE POTTER: Okay? And what that means is 2 that if it turned out later there was some sort of contact 3 other than to say, "No, thank you; I can't do that," you know, 4 I told the jurors I might put them in jail if they didn't go 5 along with what I told them, and I'll have to tell you the 6 same thing. And to the extent that my asking you to fix the 7 machinery and things like that sort of led you into a more 8 relaxed posture than you ordinarily would be, I apologize for 9 that. I won't ask you to do anything else. We'll get 10 somebody else to understand how to run the machine. 11 MR. TYLER: I don't have any problem with that, 12 either. 13 MR. FREEMAN: Don't say that, Judge. We won't 14 ever get it running right. 15 JUDGE POTTER: We may not get it running right. 16 But we may have led you into a more relaxed feeling than was 17 desirable, and to that extent we're sorry. But everybody here 18 likes you, and we hope you'll finish up your job and we'll all 19 get out of here in a week or two. Okay? 20 MR. TYLER: Yes, sir. 21 JUDGE POTTER: Thank you very much. We've got 22 other business, and so you-all can go on. 23 MS. MYATT: Thank you, Your Honor. 24 (MS. MYATT AND MR. TYLER LEAVE CHAMBERS) 25 JUDGE POTTER: Okay. What else is on the plate? 118 1 MR. SMITH: The Court had asked earlier this 2 week concerning the answers to interrogatories with respect to 3 Plaintiffs -- answers to Plaintiffs' interrogatories 4 concerning the punitive damages. I have had an opportunity to 5 review those, and it's my judgment that they're incomplete and 6 that they're inadequate. I have talked with Mr. Freeman about 7 that and pursuant to the Court's indication earlier, 8 Mr. Freeman is prepared to submit an employee. 9 MR. FREEMAN: The comptroller. 10 MR. SMITH: A controller of the corporation -- 11 MR. FREEMAN: The comptroller. 12 MR. SMITH: The comptroller to testify in 13 connection with that. 14 JUDGE POTTER: Let me see the answers so I'll 15 have some idea of what we're... 16 MR. SMITH: Basically the answers are is that 17 they are not able to determine profits. They gave us gross 18 sales information, but say they cannot determine profitability 19 from Prozac based on gross sales and based on their 20 accounting; is that accurate? 21 MR. FREEMAN: And adopted your figures, since 22 anything that we would do would be virtually a guess. And 23 we'll have Mr. Stanford here for the Court to inquire of him 24 as to how we produce books and records, if it's convenient 25 with the Court, on Tuesday morning at 8:00. 119 1 JUDGE POTTER: Okay. I tell you what, we'll 2 deal with it tomorrow afternoon. All right? 3 MR. SMITH: Okay. 4 JUDGE POTTER: I'll tell you this, Mr. Smith. I 5 probably did something I tell jurors not to do is some 6 investigation on their own. I called a stockbroker and asked 7 him to look to see if Lilly had, you know, in their various 8 releases that they put out had put out anything, and he tells 9 me they did it in this thing you had and whatever it is the 10 natural filing, and that all kinds of brokerage houses had 11 made estimates but, as near as he could tell, you-all had not 12 put that information out. 13 MR. FREEMAN: It just doesn't exist. 14 JUDGE POTTER: Because my gut feeling was that 15 in some place you-all had put it out. 16 You don't have to keep doing this because I'm 17 going to read for a second. 18 (OFF THE RECORD) 19 MR. FREEMAN: We need to be sure that this 20 portion of the record is sealed, until and if this becomes 21 admissible in court it's to be held in confidence. 22 JUDGE POTTER: Okay. Mr. Smith, I've taken a 23 look at the answers, and I can't remember exactly what Mr. -- 24 what was your accountant's name? 25 MS. ZETTLER: Tilton. 120 1 MR. FOLEY: Gwen Tilton. 2 JUDGE POTTER: Tilton came up with, but why 3 don't you talk with Mr. Freeman and see if you could come to 4 some sort of maybe agreement that if Mr. -- who's your 5 accountant? 6 MR. FOLEY: Gwen Tilton. 7 MS. ZETTLER: Gwen Tilton, Your Honor. 8 JUDGE POTTER: Tilton. Tilton. If Mr. Tilton 9 is called to testify and permitted to testify and uses the 10 procedure he did, that they're not going to pick on him. And 11 I don't know whether you think his is an underestimate or 12 overestimate and so you really want more, but my thought would 13 be that you, you know, consider that possibility. 14 MR. FREEMAN: We have no basis to object to what 15 he's done. 16 MR. FOLEY: She's done. 17 MR. SMITH: The problem is, is that she has 18 given an estimate based on merely gross sales that are 19 published in Lilly's annual reports, and she can't -- she can 20 tell you what the gross sales is and she could estimate to 21 some extent of profitability, but I think in her expert 22 disclosure she states specifically that she can't do this with 23 any accuracy by virtue of not having specific information 24 concerning specific cost-of-goods-sold things and advertising 25 expense and things of that nature. I suspect that her 121 1 estimate is low by virtue of their agreement not to question 2 her figures. Now, I have not given her these figures on gross 3 sales that have been submitted. I don't know, maybe you have, 4 Mr. Foley. 5 MR. FOLEY: I haven't given them to her. 6 MR. SMITH: It may be that her figures are not 7 the same. 8 MR. FREEMAN: I think that those are slightly 9 higher than what she had. 10 MR. MYERS: I think so, but I'd like to look 11 again. 12 MR. FOLEY: I worked with her, Your Honor, and I 13 understand that she was very, very conservative because she 14 was afraid to -- in other words, she feels she's very low. 15 JUDGE POTTER: But now that she knows there's 16 nothing on the other side she doesn't have to. I don't know. 17 I'm just saying why don't you-all think about it because, 18 quite frankly, if the case gets to the punitive damage phase, 19 I still say a hundred million one way or the other is not a 20 big issue. 21 MR. SMITH: I agree it is. I'm not going to 22 quibble over 100 million. I mean, I go through that in one 23 trip to Vegas but... 24 JUDGE POTTER: But you understand what I mean? 25 I mean, your estimate is 400 million or 300 million or 500 122 1 million, somewhere in that category from -- 2 MR. SMITH: What if it's 1.5 billion actually? 3 JUDGE POTTER: My only point is that you-all 4 talk about it, maybe call Ms. Tilton and see if she can refine 5 it. As I remember reading her thing, she not only has 6 different costs, what she basically did is take their total 7 profit margin and apply it to those sales; right? 8 MR. FOLEY: And I think she averaged their 9 overall cost of sales and assumed it was... 10 MR. SMITH: We'll try to get her this afternoon 11 and maybe report back and talk with Mr. Freeman overnight. 12 JUDGE POTTER: And see if maybe you-all can come 13 up with something because I -- if we can't, we'll have a 14 hearing on Tuesday. 15 MR. SMITH: All right. Additionally, the issue 16 of -- 17 MR. FREEMAN: One other thing, she obviously is 18 bound by the Court's order to keep all this in confidence. 19 MS. ZETTLER: Oh, yeah. 20 MR. SMITH: The other -- the next item is the 21 item of the penalties and sanctions that have been issued 22 against Eli Lilly and Company as a result of the product 23 Oraflex that was raised week before last. It is our intent to 24 offer in our rebuttal case the documents reflective of the FDA 25 -- or, the United States Department of Justice, indictments 123 1 and convictions, as well as the report of the United States 2 Congress on the conditions that existed with respect to 3 Oraflex and to criticisms issued not only against Eli Lilly 4 and Company but against the Food and Drug Administration, by 5 virtue of Lilly's failure to report these outside U. S. 6 adverse events. 7 Now, we could submit to the Court and to Counsel 8 the specific documents we intend to introduce into evidence. 9 We could -- I think that would -- what my thinking is, is 10 Lilly had agreed to bring a witness back to direct those 11 questions to, but I think instead of doing that, we'll just 12 introduce the various documents as part of our rebuttal case. 13 JUDGE POTTER: Okay. You're talking about 14 "how," and I guess we had not really crossed the bridge of 15 "whether." 16 MR. STOPHER: We would definitely like to be 17 heard on that, Judge, and like to submit our brief on that 18 matter. 19 JUDGE POTTER: Is there... 20 MR. STOPHER: So I guess the first thing is 21 probably we ought to take a look at what he intends to 22 introduce and then present it to you. 23 JUDGE POTTER: Yeah. 24 MS. ZETTLER: We're in the process of getting 25 appropriately certified and authenticated copies of all of the 124 1 documents, Judge. And what I plan to do tomorrow is submit to 2 the Court and to Lilly our motion for leave to introduce this 3 evidence with the documentation attached. 4 JUDGE POTTER: Okay. And even if you don't have 5 the certified copies, attach your fax copies or whatever you 6 have, with the assumption that you'll be able to follow it up 7 with, you know, if your motion is granted with certified 8 copies. 9 MS. ZETTLER: Sure. 10 JUDGE POTTER: Why don't you do that, bring your 11 motion tomorrow, and we'll deal with that on Tuesday when we 12 deal with that. 13 MR. SMITH: Next, and hopefully finally, it's my 14 understanding that Lilly is fixing to conclude their case; 15 that they might conclude it with the existing witness, Doctor 16 Granacher, or possibly one other witness. If so, you know, we 17 want to be -- we'd like to get some definitive idea when Lilly 18 is going to conclude their case so we can issue our subpoenas 19 and advise Lilly of the rebuttal witnesses we intend to call. 20 JUDGE POTTER: Let me say this. Even if they 21 finish with Doctor Granacher, tomorrow's a half day, you will 22 not have to do anything till Monday. I mean, I'll just tell 23 you that as a scheduling thing. 24 Mr. Stopher, what is your plan? 25 MR. STOPHER: Well, if it's a half day tomorrow, 125 1 Judge, I doubt that we will finish tomorrow, then. I may be 2 wrong about that. 3 JUDGE POTTER: What have you got in your bucket? 4 MR. STOPHER: Well, Mr. Mercer had angioplasty 5 on either Tuesday or Wednesday and is still in the hospital. 6 And I'm awaiting word as to when he'll be released, and 7 hopefully he will be able to testify on Monday. 8 JUDGE POTTER: Do you have anybody else besides 9 Doctor Granacher and either Doctor or Mr. Mercer? 10 MR. STOPHER: Right. I have Doctor Fox and 11 Doctor Schwab, and I am trying to decide whether or not it's 12 going to be repetitive, and I'll be in a much better position 13 to be able to deal with that tomorrow. But suffice it to say, 14 we're close to the end. I've cut out a lot of repetitive 15 stuff. 16 JUDGE POTTER: Okay. And the only witness you 17 have for tomorrow is Doctor Granacher? 18 MR. STOPHER: Yes, sir. 19 JUDGE POTTER: And I take it, Mr. Smith, that by 20 the time he gets through and the time you get through, if it 21 isn't noon it'll be awful close to it? 22 MR. SMITH: Do you plan on taking all morning 23 tomorrow? Do you think you'll be -- how much more time do you 24 think you've got with him? 25 MR. STOPHER: I don't know. 126 1 MR. SMITH: He's -- we're on the third road, I 2 believe. 3 MR. STOPHER: I think there's a good possibility 4 that I'll finish before noon. We usually go to one, so I 5 would like to get it done. 6 MR. SMITH: Okay. But I likely won't be able 7 then to get any cross-examination of him. 8 MR. STOPHER: No. I meant get it done in mid 9 morning, so we'll see. 10 MR. SMITH: Okay. Of course, we don't know what 11 our juror situation is going to be. 12 JUDGE POTTER: We're going to go tomorrow 13 regardless; it will just be a question of whether she's with 14 us or not. I mean, if she's not well by tomorrow, don't you 15 think that's why we have alternates? 16 MR. STOPHER: Your Honor, I'd like to wait and 17 see what her situation will be. If she's able to get here mid 18 morning or something, I would hate to see somebody put in 19 eight weeks and then get cut out because of a couple of hours. 20 JUDGE POTTER: Okay. We'll take it up in the 21 morning. 22 MR. FREEMAN: Just one other thing, Judge. For 23 planning purposes I had understood from Paul that their 24 witnesses would be lay in nature, and so that I don't have to 25 spend a lot of time trying to prepare for some additional 127 1 expert or something of that kind. They haven't identified any 2 other expert. 3 MR. SMITH: Do we have any experts? Unless I 4 decide to take the stand personally, myself, Joe. 5 MR. FREEMAN: That's fine. I will take you on 6 cross, then. 7 MS. ZETTLER: I was going to say, I want to see 8 that. 9 JUDGE POTTER: Okay. Just so we're all clear, 10 as far as Eli Lilly goes, they've got Doctor Granacher and the 11 possibility next week of the two names that he gave you; 12 right? 13 MR. STOPHER: Uh-huh. 14 JUDGE POTTER: And the Plaintiffs can rely on 15 that? 16 MR. FREEMAN: There were really three names, 17 Judge. 18 JUDGE POTTER: Three names. 19 MR. SMITH: Granacher, Fox and Schwab and 20 Mercer. 21 MS. ZETTLER: And we're going to get some sort 22 of definitive answer tomorrow? 23 JUDGE POTTER: Tomorrow afternoon. 24 MR. STOPHER: Yeah. 25 MS. ZETTLER: So if we need to get witnesses in 128 1 here on Monday, we can? 2 MR. STOPHER: Oh, yeah. 3 MR. SMITH: Well, he said we're not going to 4 have to have any witnesses by Monday, even. 5 JUDGE POTTER: No. If somehow Mr. Stopher 6 finishes and you finish tomorrow and they said they didn't 7 want anybody else, you'd have to have witnesses on Monday. 8 MR. SMITH: Okay. Believe it or not, I was as 9 concerned about letting them know in advance who they'll be. 10 MR. STOPHER: You could tell us tomorrow, 11 though, couldn't you? 12 MR. SMITH: Yeah, probably. At least give you 13 some to start off with. 14 JUDGE POTTER: Okay. And you're looking at -- 15 let's say Mr. Stopher finishes on Monday or Tuesday. You-all 16 think you can finish it by Friday? 17 MR. SMITH: Oh, yeah. I think we'll be able to 18 finish -- if Ed finishes tomorrow, I'm looking to not be in 19 excess of two days on my rebuttal case, potentially arguing 20 the case -- 21 MR. FREEMAN: I think you ought to spend at 22 least four days. 23 MR. SMITH: On my rebuttal? 24 JUDGE POTTER: We're closer than I thought we 25 were. Okay. I tell you what, I dictated my first draft of 129 1 some proposed instructions. I haven't even read them. I'll 2 give them to you tomorrow morning. 3 MR. SMITH: That would be great to have those 4 over the weekend. 5 (PROCEEDINGS TERMINATED THIS DATE AT 3:18 P.M.) 6 * * * 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 130 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 131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25