Griffin videotaped deposition

1 UNITED STATES DISTRICT COURT

2 CENTRAL DISTRICT OF CALIFORNIA

3

4 KENNETH MCDADE, et al., ) )

5 Plaintiffs, ) )

6 vs. ) NO. 2:12CV02892DMGJCG )

7 CITY OF PASADENA, et al., ) )

8 Defendants. )_______________________________)

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10

11 VIDEOTAPED DEPOSITION OF

12 OFFICER MATTHEW GRIFFIN

13 WOODLAND HILLS, CALIFORNIA

14 JULY 16, 2013

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21ATKINSON-BAKER, INC.

22 COURT REPORTERS(800) 288-3376

23 www.depo.com

24 REPORTED BY: KIMBERLY A. THORNTON, CSR NO. 11994

25 FILE NO.: A7074B3

1 UNITED STATES DISTRICT COURT

2 CENTRAL DISTRICT OF CALIFORNIA

3

4 KENNETH MCDADE, et al., ) )

5 Plaintiffs, ) )

6 vs. ) NO. 2:12CV02892DMGJCG )

7 CITY OF PASADENA, et al., ) )

8 Defendants. )_______________________________)

9

10

11

12 VIDEOTAPED DEPOSITION OF OFFICER MATTHEW

13 GRIFFIN, taken on behalf of Plaintiffs, at 21800 Burbank

14 Boulevard, Suite 310, Woodland Hills, California, commencing

15 at 10:09 A.M., on Tuesday, July 16, 2013, before Kimberly A.

16 Thornton, CSR No. 11994.

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1 A P P E A R A N C E S

2 FOR PLAINTIFF ANYA SLAUGHTER:

3 LAW OFFICES OF DALE K. GALIPO

4 BY: DALE K. GALIPO, ESQ. and

5 THOMAS C. SEABAUGH, ESQ. 21800 BURBANK BOULEVARD

6 Suite 310 Woodland Hills, California 91367

7 (818) 347-3333

8

9 FOR PLAINTIFF KENNETH MCDADE:

10 LAW OFFICES OF CAREE HARPER BY: CAREE HARPER, ESQ.

11 3435 Wilshire Boulevard Suite 2910

12 Los Angeles, California 90010 (213) 386-5078

13

14 FOR DEFENDANTS:

15 MEYERS NAVE BY: KEVIN E. GILBERT, ESQ.

16 555 12th Street Suite 1500

17 Oakland, California 94607 (508) 808-2000

18

19 ALSO PRESENT:

20 JOE HYMAN, VIDEOGRAPHER

21 ANYA SLAUGHTER

22 OFFICER JEFFREY NEWLEN

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1 I N D E X

2 WITNESS: OFFICER MATTHEW GRIFFIN

3 EXAMINATION PAGE

4 MR. GALIPO 7, 203

5 MS. HARPER 145, 206

6

7 EXHIBITS

8 PLAINTIFFS' DESCRIPTION PAGE

9 1 Google map 51

10 2 Black and white aerial 53 map

113 Black and white aerial 66

12 map

13 4 Black and white photocopy 100 of photograph

145 Black and white photocopy 203

15 of photograph

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1 INDEX (Continued)

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4 QUESTIONS WITNESS INSTRUCTED NOT TO ANSWER:

5 PAGE LINE

6 196 14

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8 INFORMATION REQUESTED:

9 NONE

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1 THE VIDEOGRAPHER: Good morning. My name is Joe 10:08

2 Hyman, your videographer. I represent Atkinson-Baker in

3 Glendale, California. I'm not financially interested in

4 this action, nor am I a relative or employee of any

5 attorney or any of the parties. Today's date is July 16, 10:09

6 2013. The time is 10:09. This deposition is taking place

7 at the 21800 Burbank Boulevard, Suite 310, Woodland Hills,

8 California, case No. 212-CV-02892-DMGJVG, entitled McDade

9 versus City of Pasadena.

10 The deponent is Ofc. Matthew Griffin. The 10:09

11 deposition is taken on behalf of the plaintiffs, and your

12 court reporter is Kim Thornton from Atkinson-Baker.

13 Counsel please introduce themselves. After all

14 counsel introduce themselves, the witness will be sworn in

15 by the court reporter. 10:09

16 MR. GALIPO: Dale Galipo on behalf of Plaintiff Anya

17 Slaughter.

18 MS. HARPER: Caree Harper on behalf of Kenneth McDade.

19 MR. GILBERT: Kevin Gilbert on behalf of defendants.

20 Also present is Jeff Newlen and the deponent Matt Griffin. 10:10

21 THE VIDEOGRAPHER: Thank you. Would you like to swear

22 in the our witness, please.

23

24

25 10:10

1 OFFICER MATTHEW GRIFFIN, 10:10

2 having first been duly sworn, was examined and

3 testified as follows:

4

5 EXAMINATION 10:10

6 BY MR. GALIPO:

7 Q Can you please state your name.

8 A Matthew Griffin.

9 Q Have you ever had your deposition taken before?

10 A I've been deposed once before. 10:10

11 Q How long ago was that?

12 A I'd estimate five years.

13 Q What was that in regards to?

14 A To a small traffic collision on duty.

15 Q Have you testified in court before? 10:10

16 A Yes.

17 Q On approximately how many occasions have you done

18 that?

19 A Say approximately 100.

20 Q Do you understand you have a duty to tell the 10:11

21 truth today?

22 A Yes, I do.

23 Q If I ask you a question and you do not understand

24 it, will you let me know?

25 A Yes. 10:11

1 Q If you need to take a break at any time, will you 10:11

2 let me know that?

3 A Yes.

4 Q You understand that the court reporter is taking

5 all the words that we say down on her fancy machine? 10:11

6 A Yes.

7 MR. GILBERT: Before we get going, we spoke briefly

8 beforehand. Officer Griffin does have two herniated disks.

9 So he may need to stand or take breaks or move around in

10 his chair. 10:11

11 MR. GALIPO: That is correct.

12 Q Is that correct? You have two herniated disks?

13 A Yes. If you see me shift, I apologize. Trying

14 to find the right position.

15 Q Do you know where the herniated disks are in your 10:11

16 back?

17 A I don't know the exact numbers in the low back.

18 Q Do you have herniated disk at the time you had

19 this incident?

20 A I wasn't suffering from any other symptoms. 10:11

21 Q You weren't suffering from any symptoms?

22 A No, sir.

23 Q Do you know how you ended up with herniated

24 disks?

25 A One was from weight-lifting injury many years ago 10:12

1 before I was hired as a police officer. 10:12

2 Q Was there another event that added to it?

3 A At some point I was in my house, and I had

4 fallen. But...

5 Q Was that before or after the shooting incident? 10:12

6 A I think it was before. I wasn't suffering from

7 any of the effects or symptoms.

8 Q You do believe you had a herniated disk at the

9 time of the shooting, but you don't believe --

10 A It's my -- sorry, sir. 10:12

11 MR. GILBERT: Let him finish.

12 Q BY MR. GALIPO: You weren't suffering from any

13 symptoms of the shooting?

14 A That's correct, sir.

15 Q But now you do feel you are suffering from 10:12

16 symptoms?

17 A Several days ago I ended up having a problem. I

18 couldn't stand up straight.

19 Q As far as being able to at least listen to my

20 questions and answer my questions, you think you will be 10:12

21 able to do that today?

22 A Yes.

23 Q And just might have to move around a little bit?

24 A Yes.

25 Q I may ask you for some estimates of time or 10:13

1 distance. I understand you probably weren't out there 10:13

2 looking at the secondhand of your watch when this happened,

3 and you probably weren't out there with a tape measure, but

4 because you were a police officer and because you were

5 there, you would have a better idea than I do with distance 10:13

6 and timing. So if I ask a question, will you try to give

7 me your best estimate?

8 A Yes.

9 Q It could even be a range, whatever applies, three

10 to five seconds, five to ten feet. You can give me a 10:13

11 range.

12 Do you understand that?

13 A Yes.

14 Q Do you understand that the testimony you're

15 giving today, although in the informal setting of this 10:13

16 conference room, has the same force and effect as if it

17 were given in a court of law before a judge and a jury?

18 A Yes.

19 Q Do you understand that portions of your testimony

20 including answers to questions asked could actually be read 10:14

21 in trial to the jury?

22 A Yes.

23 Q Have you reviewed any documents in preparation of

24 this deposition to refresh your recollection?

25 A Yes. 10:14

1 Q Can you tell me some of the documents or all the 10:14

2 documents, if you could, that you reviewed?

3 A The only thing that I read are my transcripts.

4 Q Did you say, "transcript" or "transcripts"

5 plural? 10:14

6 A The transcript of my interview with the

7 detectives.

8 Q And when was the last time that you reviewed the

9 transcript of your interview?

10 A Approximately two days ago. 10:14

11 Q When was the first time you had ever seen that

12 transcript?

13 A It was approximately -- I don't know. A few

14 weeks a month after the issue, and I was asked to --

15 MR. GILBERT: You've answered the question. Thank 10:14

16 you.

17 Q BY MR. GALIPO: So it was maybe two to four weeks

18 after the shooting?

19 A I'd say more than two but...

20 Q Approximately four? 10:15

21 A Yes, sir.

22 Q Okay. How old are you now?

23 A Thirty-six.

24 Q How old were you at the time of the shooting

25 incident? 10:15

1 A Thirty-five. 10:15

2 Q How tall are you?

3 A Five foot ten.

4 Q How much do you currently weigh?

5 A Approximately 205. 10:15

6 Q Was that your approximate weight at the time of

7 the incident?

8 A Yes.

9 Q Did you go to high school in California?

10 A No. 10:15

11 Q What state did you go to high school in?

12 A Colorado.

13 Q What year did you graduate from high school?

14 A I prefer not to say this. Is this --

15 Q That's pertinent. I'm not going to ask you where 10:15

16 you went to school. That's why I'm trying to ask the

17 questions in the way that I am. We have the right to know

18 your educational background, some basics. I specifically

19 didn't ask the name of the high school. We're probably

20 entitled to that too, but I decided not to ask that. Right 10:16

21 now I'm only asking the year you graduated.

22 A 1994.

23 Q After high school did you go to any college?

24 A Yes.

25 Q And tell me about that. 10:16

1 A I graduated from the university of Colorado. 10:16

2 Q And what years did you attend?

3 A 1994 through 1999.

4 Q And did you have any particular areas of study?

5 A Yes. 10:16

6 Q And what was that?

7 A One of them was micro-cellular biology.

8 Q Was there another one, or was that the name?

9 A Biochemistry.

10 Q And at the time that you obtained those degrees, 10:16

11 did you have a particular area of interest as far as what

12 type of work you wanted to pursue?

13 A At that time I wanted to become a Ph.D.

14 Q After graduating in 1999, did you have any

15 further college? 10:17

16 A No, sir.

17 Q When did you become a police officer?

18 A January of 2006 I was sworn in.

19 Q Can you just briefly tell me what your work

20 history was between graduating from college and becoming a 10:17

21 police officer. What type of work you did.

22 A I was in the Navy for two years.

23 Q What years were you in the Navy?

24 A 1999 through 2001.

25 Q And then after that? 10:17

1 A I worked at a -- I think two different jobs but 10:17

2 one of them was a laboratory job.

3 MR. GILBERT: Can you keep your voice up a little bit,

4 please.

5 Q BY MR. GALIPO: What type of work did you do at 10:18

6 the laboratory job?

7 A Laboratory technician.

8 Q What does a laboratory technician do?

9 A The company tested blood samples for the presence

10 of various viruses. 10:18

11 Q How long did you work there for?

12 A Approximately five years.

13 Q Was that to about 2005?

14 A Yes, sir.

15 Q And after that? 10:18

16 A I was hired by the L.A. County Sheriff's

17 Department.

18 Q Would that be in 2005?

19 A Yes, sir.

20 Q Did you go to their academy? 10:18

21 A I did.

22 Q And when did you go to the L.A. County Sheriff's

23 Academy?

24 A It was approximately September of 2005 through

25 January of 2006. 10:18

1 Q So were you hired by them before you started the 10:19

2 academy?

3 A It was -- I believe so. I was being paid by

4 them.

5 Q Was that the first law enforcement training you 10:19

6 had at the L.A. County Sheriff's Academy?

7 A I think so.

8 Q Did you ever work for any other law enforcement

9 agency before that?

10 A No, sir. 10:19

11 MR. GILBERT: Are you excluding the Navy?

12 MR. GALIPO: I'm going to get to that in a second.

13 That's a good point.

14 Q Let's talk about the Navy for a second. Did you

15 have any training in the Navy with respect to the use of 10:19

16 force?

17 A Yes, sir.

18 Q And did you have training in the Navy with

19 respect to the use of deadly force?

20 A Yes, sir. 10:19

21 Q And you had training with the sheriff's

22 department with respect to use of force?

23 A Yes.

24 Q And with the respect to the use of deadly force?

25 A Yes, sir. 10:19

1 Q Was there any differences with the respect to the 10:19

2 use of deadly force in your training as you learned it in

3 the Navy first what you learned in the sheriff's

4 department?

5 MR. GILBERT: Overbroad. Vague. 10:20

6 Go ahead, if you can.

7 THE WITNESS: It was much more in depth at the

8 sheriff's department.

9 Q BY MR. GALIPO: What was your -- while you were

10 in the Navy, did you ever -- what were your assignments 10:20

11 while you were in the Navy?

12 A I went to boot camp, and then I was classified as

13 an intelligence specialist, and I eventually worked on the

14 "U.S. Kitty Hawk" as an intelligence specialist.

15 Q What did you do as an intelligence specialist? 10:20

16 A I worked for a department where we recognized --

17 we were supposed to recognize whatever aircraft or ships or

18 submarines were around the ship, and I was supposed to

19 inform the captain, and I was supposed to build recognition

20 booklets for other people to use. 10:20

21 Q While you were in the Navy, did you ever have an

22 incident where had to use deadly force?

23 A No, sir.

24 Q In any event, you had more specific training with

25 respect to the use of force and use of deadly force when 10:21

1 you went to the sheriff's academy? 10:21

2 A Yes.

3 Q On the day of the shooting incident, what type of

4 gun or guns did you have on your person?

5 A I had two guns on my person. I had -- 10:21

6 Q Tell me about that.

7 A I had a 1911 style handgun as my primary handgun,

8 and then I had Smith & Wesson revolver as my backup.

9 Q Your primary handgun was kept in your holster?

10 A Yes, sir. 10:21

11 Q Right-handed or left?

12 A Right.

13 Q And your holster would be on your right side?

14 A Yes, sir.

15 Q Where was your backup weapon kept? 10:21

16 A Behind my mag pouch behind the waistband just to

17 the left of my navel.

18 Q Both weapons are semi-auto weapons?

19 A No, sir. The revolver is -- it's a resolver.

20 Q So your primary weapon was semi-automatic? 10:22

21 A Yes, sir.

22 Q And your backup weapon was a revolver?

23 A Yes, sir.

24 Q Semi-automatic weapon, how many rounds would it

25 hold in the magazine? 10:22

1 A Eight. 10:22

2 Q Plus one in the chamber?

3 A Yes.

4 Q You would normally load it to full capacity?

5 A Yes, sir. 10:22

6 Q Do you believe you had the rounds loaded prior to

7 the shooting incident?

8 A Yes, sir.

9 Q Do you know how many rounds were left in your

10 weapon after the shooting incident? 10:22

11 A Yes, sir.

12 Q What's your understanding?

13 A There were five left.

14 Q So you fired four times?

15 A Yes, sir. 10:22

16 Q With that weapon you have to press the trigger

17 each time; is that correct?

18 A Yes, sir.

19 Q And you believe you pressed the trigger four

20 times in this incident? 10:22

21 A Yes, sir.

22 Q Did you have pepper spray on you?

23 A I did.

24 Q What type was it? Just OC spray?

25 A It's the same variation that the department 10:23

1 approves. I'm not sure what the name is. 10:23

2 Q Did you have a police baton?

3 A Yes.

4 Q What type?

5 A It's whatever the department approves. I'm not 10:23

6 sure what the manufacturer is.

7 Q Do you know if it's an expandable baton?

8 A It is.

9 Q Black in color?

10 A Yes, sir. 10:23

11 Q Did you have a taser with you?

12 A Yes.

13 Q Would that be an X26 taser?

14 A I think so. It's whatever the department has

15 provided. 10:23

16 Q Your automatic weapon, did it have a tack light

17 on it?

18 A Yes.

19 Q Do you know if the tack light was on at the time

20 you fired your rounds? 10:23

21 A It was not.

22 Q Prior to the day of the incident, you had

23 training with respect to the taser?

24 A Yes, sir.

25 Q You had training with respect to the baton? 10:24

1 A Yes, sir. 10:24

2 Q And you had training with respect to pepper

3 spray?

4 A Yes, sir.

5 Q What was your understanding, based on your 10:24

6 training, as to when you can use a taser on somebody?

7 MR. GILBERT: Overbroad.

8 Go ahead.

9 THE WITNESS: It's a less lethal device.

10 Q BY MR. GALIPO: And so if someone was assaultive 10:24

11 and combative when, as you understood it, could you use a

12 taser?

13 A When you don't want to employ a deadly force or a

14 force that possibly results in great bodily injury.

15 Q And the tasers, as you understand it, it could be 10:24

16 used in probe or dark mode or in the dry stun mode?

17 A Yes, sir.

18 Q Were you trained in using it both ways?

19 A Yes, sir.

20 Q Was your taser on your left side? Is that where 10:25

21 you kept it on your duty belt?

22 A Yes, sir.

23 Q What's your understanding to use it in the probe

24 mode of what the distance would be between you and an

25 individual to be able to use it in a probe mode? 10:25

1 A I don't know the exact distance. 10:25

2 Q Do you know, for example, if you can use it if

3 you're within 10 feet or 15 feet?

4 A It's possible. It would go that far.

5 Q Prior to the day of the incident, had you ever 10:25

6 used your taser before in the line of duty?

7 A I never shot it before, no.

8 Q Had you ever used it in a dry stun mode?

9 A No, sir.

10 Q Had you ever used your police baton before? 10:25

11 A Not on a person.

12 Q Had you ever used pepper spray before the day of

13 the incident?

14 A As a deputy sheriff I have.

15 Q If you recall, when you went to the sheriff's 10:26

16 academy, did you have to study learning domains that were

17 part of post standards?

18 A Yes, sir.

19 Q And some of those dealt with some of the topics

20 such as use of force and use of deadly force? 10:26

21 A Yes, sir.

22 Q Tactics?

23 A Yes, sir.

24 Q Did you graduate from the L.A. County Sheriff's

25 Department? 10:26

1 A Yes. 10:26

2 Q Somewhere in the area of January, 2006?

3 A Yes, sir.

4 Q And then after that where did you go next? Did

5 you work for the sheriff's department? 10:26

6 A Yes, sir.

7 Q What was your assignment or assignments with the

8 sheriff's department?

9 A I was assigned to Twin Towers Correctional

10 Facility. 10:26

11 Q What time frame were you there?

12 A From January of 2006 through August of 2006.

13 Q And what was your basic assignment or assignments

14 while you were at the twin towers?

15 A I was primarily assigned to the seventh floor as 10:27

16 a custody deputy.

17 Q And after August of 2006, where did you go next?

18 A I lateraled to the Pasadena Police Department.

19 Q And how did you learn about the Pasadena Police

20 Department having a position or positions open? 10:27

21 A One of my fellow academy classmates was a

22 Pasadena police officer.

23 Q You kept in touch with him and he said, "Hey. We

24 may have an opening" or something to that effect?

25 A Yes. 10:27

1 Q And you applied and got accepted? 10:27

2 A Yes, sir.

3 Q Did you -- strike that.

4 When you worked for the sheriff department, did

5 you have some field training at twin towers after the 10:27

6 academy?

7 A Yes, sir.

8 Q Did some of that involve use of force and use of

9 deadly force?

10 A Yes, sir. 10:28

11 Q When you went to Pasadena, that would be in about

12 August or September of 2006?

13 A August of 2006, the end of August.

14 Q And did you have any training there with respect

15 to the use of force once you went to Pasadena? 10:28

16 A Yes, sir.

17 Q What was the form of your training once you went

18 to Pasadena with respect to the use of force? In other

19 words, was it classroom? field training? studying the

20 policies? Maybe a combination of all of that? 10:28


22 Go ahead.

23 THE WITNESS: It was all those things that you said.

24 There was a combination of being on training for

25 approximately six months. There's policy that we had to 10:28

1 learn and know. 10:28

2 Q BY MR. GALIPO: Okay. Do you believe that you

3 were familiar with the use-of-force policy for the City of

4 Pasadena prior to this incident?

5 A Yes, sir. 10:29

6 Q Do you believe you're familiar with the policy on

7 the use of deadly force?

8 A Yes, sir.

9 Q When was the last time you looked at the deadly

10 force policy for Pasadena? 10:29

11 A I don't know the exact date.

12 Q Do you know if it's been since the day of the

13 this incident?

14 A Yes, sir. I've reviewed the policy since the

15 day. 10:29

16 Q And what was the reason for reviewing it since

17 the day of this incident?

18 A Preparation for this deposition.

19 Q So do you think you reviewed it in the last 30

20 days? 10:29

21 A Yes.

22 Q If you could, take me through your assignments

23 when you first got to Pasadena in August of 2006 to

24 present. So this would include the time of the shooting.

25 What assignments have you had with Pasadena? 10:30

1 A I'm been assigned primarily to patrol. I was a 10:30

2 patrol police officer until the incident, and then I was

3 assigned for a short time after that to -- I believe it's

4 community resources and then after that I was assigned to

5 the heliport, and now I'm back in patrol. 10:30

6 Q Did you have field patrol field training with

7 Pasadena?

8 A Yes, sir.

9 Q How long did that last about?

10 A Approximately six months. 10:30

11 Q And during that time, did you have various field

12 training officers?

13 A Yes, sir.

14 Q Can you tell me the names of any of those field

15 training officers? 10:30

16 A I can name a few. I don't think it would be

17 comprehensive.

18 Q Just tell me the ones that you remember.

19 A There was Officer Burgess. He's a corporal now.

20 Q Do you know his first name? 10:31

21 A Anthony.

22 Q Okay.

23 A There was an Officer -- he's now a sergeant --

24 Roger Roldan.

25 Q Do you know how to spell his last name? 10:31

1 A R-o-l-d-a-n. 10:31

2 Q Okay. Thank you.

3 A Ofc. Mary Hooker.

4 Q Is she still with the department?

5 A I believe so. I believe she's a detective. 10:31

6 Q Okay. Anybody else that comes to mind?

7 A He's a sergeant now. He was an officer then.

8 Chris Kirby.

9 Q Do you know how to spell the last name?

10 A K-i-r-b-y. 10:31

11 Q Then there's --

12 A He's now a corporal. Steve Oberon.

13 Q Last name?

14 A O-b-e-r-o-n.

15 Q Okay. 10:32

16 A That's all I can recall.

17 Q That's pretty good. All right. And so some of

18 those individuals would have been involved in training you

19 with respect to tactics and the use of force; is that fair?

20 A Yes, sir. 10:32

21 Q Now, you said -- so from -- if we took August of

22 2006 and we went on about six months to February, 2007,

23 approximately would that be when you started on patrol by

24 yourself?

25 A Yes. 10:32

1 Q And Pasadena would be normally solo? 10:32

2 A Yes, sir. There is one area where they have

3 two-man cars, but primarily everywhere else is one-man car.

4 Q What area is two-man cars?

5 A Area two. It's designated area two. 10:33

6 Q What geographic area approximately? Is that

7 approximately area two?

8 A Northwest area Pasadena.

9 Q Did this incident happen in area two?

10 A Yes, sir. 10:33

11 Q How many areas are there altogether?

12 A Five.

13 Q So in areas one, three, four, and five will

14 normally be one-man cars?

15 A Yes, sir. 10:33

16 Q But two it's always two-man?

17 A Not always two-man.

18 Q Just to make sure I have your testimony correct,

19 it's primarily two-man in area two, but sometimes it could

20 be one-man? 10:33

21 A Yes, sir. Depending on staffing issues.

22 MR. GILBERT: Let me clarify. Are we talking about

23 officer assignments, or are we talking about all

24 assignments in the area? In other words, patrol officers

25 versus detectives or otherwise? 10:34

1 MR. GALIPO: I was pretty much focused on patrol 10:34

2 officers.

3 Q Is that correct?

4 A Yes, sir.

5 MR. GILBERT: Thank you. 10:34

6 Q BY MR. GALIPO: So then you would have been on

7 patrol at the time of the incident we're here to talk

8 about?

9 A Yes, sir.

10 Q What's your recollection as to what date the 10:34

11 incident we're here to talk about happened?

12 A March the 24th.

13 Q Of what year?

14 A 2011 -- or no. I'm sorry. 2012.

15 Q Do you recall what day of the week that was? 10:34

16 A I think it was a Saturday.

17 Q And then you said you went to community

18 resources?

19 A Yes, sir.

20 Q How long did you have that assignment? 10:34

21 A I believe it was three or four weeks. I'm not

22 certain.

23 Q And what did you do in that assignment?

24 A I rode with some school police for a little bit.

25 They just didn't want to set up patrol. I didn't do much 10:35

1 of anything really. I worked also at the PAL Center. 10:35

2 THE REPORTER: "PAL"?

3 THE WITNESS: Police Athletic League Center.

4 Q BY MR. GALIPO: And then you went to the

5 heliport? 10:35

6 A Yes, sir.

7 Q What time frame did you work there?

8 A I want to say sometime in maybe late May or early

9 June I went to the heliport, and I stayed there until

10 February of 2013. 10:35

11 Q What did you do there?

12 A I was trained and became a tactical flight

13 officer.

14 Q So you're flying the helicopters?

15 A I was not the pilot. I was the other person in 10:35

16 the helicopter doing the law enforcement duties while the

17 pilot flew it.

18 Q So I forget what the term is. So you would be

19 the eyes so to speak?

20 A Yes, sir. 10:36

21 Q And then now you're back on patrol?

22 A Yes, sir.

23 Q And that has been in the last -- when did you go

24 back on patrol?

25 A I'm not sure of the exact dates. Mid-February. 10:36

1 Q And do you have a particular geographic area 10:36

2 you're assigned to now?

3 A For the time being, I'm assigned to the Old Town

4 area. It's hard to determine or to tell you to describe

5 the exact boundaries. It's not an easy-to-describe 10:36

6 boundary.

7 Q Colorado would be part of it?

8 A Colorado. Yes, sir.

9 Q Do you know what your shift hours were at the

10 time of the shooting incident? 10:36

11 A Yes.

12 Q What were they?

13 A 7:30 P.M. to 8:30 A.M.

14 Q What days of the week did you work?

15 A Thursday night, Friday night, Saturday night. 10:36

16 Q And when would you normally sleep?

17 A Between about 9:00 A.M. and 5:00 P.M.

18 Q Would you do anything to help keep awake during

19 work? Drink coffee or Red Bull or anything like that?

20 A I'm not really a coffee or energy drink person. 10:37

21 Q Did you have a partner on the day of the

22 incident?

23 A Yes.

24 Q And who was your partner?

25 A Ofc. Jeffrey Newlen. 10:37

1 Q And he's present here today? 10:37

2 A Yes, sir.

3 Q Do you have an understanding as to how long

4 Officer Newlen had been a police officer as of the time of

5 this incident? 10:37

6 A I don't know what exact date he started. I know

7 it was after me.

8 Q Sometime after you?

9 A Yes, sir.

10 Q Now, at some point you're on patrol when you hear 10:37

11 some dispatch related to this incident; is that true?

12 A Yes, sir.

13 Q I'm going to ask you just about a few other

14 items, and you tell me if it's something you have reviewed

15 or not. Okay? 10:38

16 A Okay.

17 Q Have you ever listened to the dispatch tape?

18 A I believe I did the night of the incident.

19 Q Have you listened to it since?

20 A No, sir. 10:38

21 Q Have you ever looked at the call history log?

22 A No, sir.

23 Q Have you ever looked at the statement of

24 Officer Newlen?

25 A No, sir. 10:38

1 Q Have you ever looked at any photos of the scene? 10:38

2 A Of the scene -- I was interviewed by a detective,

3 and I was shown photos.

4 Q At the scene or during your statement?

5 A During my statement. 10:38

6 Q Since then have you looked at any photos at the

7 scene?

8 A No, sir.

9 Q Any diagrams of the scene?

10 A No, sir. 10:38

11 Q Have you ever looked at the autopsy report?

12 A It was provided to me, but I didn't understand

13 it. I'm not -- I don't know the medical terms.

14 Q All right. Have you looked at any investigation

15 reports? 10:39

16 A No, sir.

17 Q If something comes to your mind that you looked

18 at later that you forgot to tell me, will you let me know?

19 A Yes.

20 Q Prior to the day of the incident, had you ever 10:39

21 been -- had a gun call before? Some call where a gun might

22 be involved?

23 A Yes, sir.

24 Q Were you trained as a police officer that

25 sometimes information that comes into dispatch may be 10:39

1 inaccurate? 10:39

2 A Yes, sir.

3 Q That could include information that comes into

4 dispatch about guns?

5 A Yes, sir. 10:39

6 Q And were you trained as a police officer that

7 sometimes you need to investigate the situation to see

8 what's accurate and was not accurate?

9 A Yes, sir.

10 Q Had you been on gun calls before the day of the 10:40

11 incident?

12 A Yes, sir.

13 Q And do you have an estimate as to how many gun

14 calls you had responded to in some way either as the

15 primary or assisting unit? 10:40

16 A I don't have any idea, sir.

17 Q Here's where I'm going to ask you -- push you a

18 little bit for an estimate because I don't know if it's 5,

19 20, 50, 100. You can even give me a range, if you can.

20 Just to give me some idea. 10:40

21 A Okay. In my estimate at the time, I had been on

22 the job I think six years. So probably between 500 and

23 1,500-gun-related calls where a gun may have been involved.

24 Q And do you have an estimate as to -- in how many

25 of those calls a gun was actually recovered? 10:40

1 A I wouldn't know for sure. I don't. 10:40

2 Q Could you give me a percentage? Do you think

3 it's 10 percent of the time where a gun was actually found?

4 20 percent? What would be your estimate?

5 A I can give you a range in percent. 10:41

6 Q Sure.

7 A Between 10 and 20. I don't know.

8 Q So out of approximate 500 to 1,500 gun calls,

9 approximately 10 to 20 percent of the time a gun had been

10 found or recovered. Is that an estimate? 10:41

11 A It's in my estimate.

12 Q Okay. Who was driving the vehicle that night?

13 A I was.

14 Q And at some point -- strike that.

15 Your vehicle there's a police radio in the 10:41

16 vehicle; correct?

17 A Yes, sir.

18 Q Is there also some type of computer system in the

19 car that has printed information?

20 A Yes, sir. 10:42

21 Q And if you recall, your source of information

22 about this particular call, was it mainly through the

23 police radio?

24 A Yes, sir.

25 Q You weren't reading or trying to read the screen 10:42

1 while you were driving, were you? 10:42

2 A No, sir.

3 Q So your information that you had regarding this

4 call prior to seeing Mr. McDade would, basically, be from

5 the radio; is that fair? 10:42

6 A Yes, sir.

7 Q If one wanted to listen to the information that

8 you had or the information you didn't have, do you think

9 the best place to go would be the dispatch?

10 A Yes. 10:42

11 Q What do you recall being the initial broadcast

12 related to this incident?

13 A That an armed robbery had occurred at Raymond and

14 Orange Grove.

15 Q Anything other than that, do you recall from the 10:43

16 initial broadcast?

17 A There were two suspects described as male, black,

18 wearing dark clothing.

19 Q And the location of the robbery, again, as

20 reported was where? 10:43

21 A I believe it was Raymond and Orange Grove.

22 Q Any other information you recall with respect to

23 the initial broadcast?

24 A No, sir. Oh, I apologize. I had heard that it

25 happened two minutes ago. 10:43

1 Q So your understanding was that it happened 10:43

2 approximately two minutes before you got the call?

3 A Yes, sir.

4 Q And where were you approximately in the city when

5 you received that first dispatch? 10:43

6 A I was in the area of Lake Avenue and

7 Mountain Street.

8 Q And how far approximately is Lake and Mountain

9 from Raymond and Orange Grove?

10 A I don't know for sure. Approximately two, 10:44

11 three miles.

12 Q And after hearing the dispatch, did you then head

13 in the direction of Raymond and Orange Grove?

14 A Yes.

15 Q Do you recall if you were responding Code 3 or in 10:44

16 some other manner?

17 A I did not respond Code 3.

18 Q Code 3 would be lights and sirens?

19 A Yes.

20 Q Why did you not respond Code 3? 10:44

21 A I was not told to respond Code 3, and I was

22 pretty -- I think two to three miles is a pretty long

23 distance away, and I chose not to activate my sirens on my

24 own.

25 Q In order to respond Code 3, do you need to be 10:44

1 given permission or just something that you have discretion 10:45

2 to respond Code 3 as an officer when you think it's

3 appropriate?


5 Go ahead. 10:45

6 THE WITNESS: I have the discretion of broadcasting

7 that I'm rolling Code 3, but at the time a supervisor can

8 cancel that Code 3 response.

9 Q BY MR. GALIPO: So you could say, for example,

10 I'm responding or want to respond Code 3, and the 10:45

11 supervisor could get on the air and either be supportive of

12 that or tell you he doesn't want you to.

13 A That's correct.

14 Q Who was your immediate supervisor at the time of

15 this incident? 10:45

16 A I can tell you the names of the two supervisors

17 that I had that night.

18 Q Sure.

19 A Sergeant Dahlstein.

20 Q Can you spell the last name. 10:45

21 A D-a-h-l-s-t-e-i-n.

22 Q First name, if you remember. Maybe it will come

23 back to you.

24 A Yeah. I apologize.

25 Q Is that male or female? 10:46

1 A Male. 10:46

2 Q Who would be the other supervisor?

3 A Sergeant Carpenter.

4 Q Normal spelling?

5 A Yes, sir. 10:46

6 Q Do you remember the first name of Sergeant

7 Carpenter?

8 A Paul.

9 Q Okay. So you're driving your vehicle. You're at

10 Lake and Mountain, and you get a call of a reported robbery 10:46

11 that occurred at Raymond and Orange Grove and two male

12 blacks, you would say, with dark clothing?

13 A Yes, sir.

14 Q You had information that the robbery had happened

15 about two minutes before you got the dispatch? 10:46

16 A Yes, sir. The -- I'm sorry.

17 Q Go ahead.

18 A Armed robbery had occurred.

19 Q Armed robbery. Okay. And you are estimating you

20 were two or three miles from the location when you heard 10:47

21 the dispatch?

22 A Think so.

23 Q And then you headed in that location?

24 A Yes.

25 Q And you decided not to respond Code 3? 10:47

1 A Yes. 10:47

2 Q Now, at some point did you see Mr. McDade?

3 A Yes.

4 Q Who you now know to be Mr. McDade?

5 A Yes. 10:47

6 Q How much time would you say passed from the time

7 you heard the initial dispatch to the time you saw

8 Mr. McDade?

9 A Estimate two to three minutes.

10 Q And can you tell me where Mr. McDade was when you 10:47

11 first saw him?

12 A He was standing in the No. 1 lane of northbound

13 Fair Oaks. He was north of Orange Grove Boulevard.

14 Q Was he stationary when you first saw him?

15 Walking? Running? Jogging? What would you describe him? 10:48

16 A When I saw him, it looked like he was stopped in

17 the middle of the street, and he was looking back at us or

18 at me at least.

19 Q So when you first saw Mr. McDade, was he standing

20 and stationary in the street? 10:48

21 A That's what I recall, sir.

22 Q Where were you or your vehicle when you first saw

23 Mr. McDade?

24 A I was in the No. 1 lane of Orange Grove Boulevard

25 as it intersects Fair Oaks. 10:48

1 Q Now, if you could, tell me the route you took 10:48

2 from where you were initially when you heard the dispatch

3 to where you drove and first saw Mr. McDade.

4 A I drove in a straight line west on Mountain

5 Street from Lake to the intersection of Mountain and 10:49

6 Raymond, and then I made a left turn which is a southbound

7 turn onto Raymond. I drove to the intersection of Raymond

8 and Orange Grove. I made a right turn, which is a

9 westbound turn, onto Orange Grove.

10 Q And then how far did you travel west on Orange 10:49

11 Grove before seeing Mr. McDade?

12 A It's the distance between Raymond Avenue and Fair

13 Oaks Avenue. I don't know what the exact distance is.

14 Q Whatever that distance is?

15 A Yes, sir. 10:49

16 Q On Orange Grove tell me a little bit about the

17 lanes. How many lanes are there going westbound?

18 A I believe there's only two, but then they're at

19 that intersection, the intersection of Fair Oaks and Orange

20 Grove Boulevard. There's I think a southbound turn lane, 10:50

21 and then there's also a turn lane to go north, I think, on

22 Fair Oaks. I'm not certain.

23 Q You're saying you were in the No. 1 lane of

24 Orange Grove Boulevard when you first saw Mr. McDade; is

25 that correct? 10:50

1 A Yes, sir. 10:50

2 Q And had you got to the intersection yet of

3 Fair Oaks?

4 A Yes, sir. I was at the intersection. I drove

5 slowly out into the intersection. I didn't want to hit any 10:50

6 oncoming cars, and I had just pushed my car just out past a

7 crosswalk.

8 Q And how far was he from you approximately when

9 you first saw him?

10 A I don't know the exact distance. It's, I think, 10:50

11 around the area of where the north side of the Church's

12 Chicken. There's a restaurant called Church's Chicken on

13 the northeast corner of that intersection, and he looked

14 like he was about even with the restaurant.

15 Q Okay. What time was it approximately? 10:51

16 A I believe it was a few minutes after 11:00.

17 Q That would be in the morning or at night?

18 A P.M.

19 Q It was dark outside?

20 A Yes. 10:51

21 Q And just again and I realize you're envisioning

22 where you were and where the Church's Chicken place was,

23 but either in feet, yards, or car lengths, do you have some

24 type of estimate as to how far he was from you when you

25 first observed him? 10:51

1 A I don't know. Fifty to 100 yards. I'm not 10:51

2 really sure.

3 Q Okay. That's just an estimate?

4 A Yes, sir.

5 Q Now, just to give us a timing estimate, how much 10:52

6 time would you say passed from the time you first saw

7 Mr. McDade to the time you fired your shots?

8 A Thirty seconds to 45 to a minute. I'm not really

9 certain.

10 Q Now, on your way when you were en route towards 10:52

11 the location?

12 A Yes, sir.

13 Q And prior to seeing Mr. McDade, did you get any

14 updated dispatches regarding the incident?

15 A Yes. 10:52

16 Q Can you please tell me about that.

17 A I recall there being two further broadcasts. The

18 second broadcast reiterated an armed robbery had occurred.

19 I'm not sure if it was second or the third gave directions

20 of travel for the two suspects. One was stated to have run 10:52

21 south on Raymond, and one was stated to have run west on

22 Orange Grove Boulevard, and then on the third broadcast,

23 the broadcast stated that both suspects had firearms and

24 guns.

25 Q Anything else that you recall receiving 10:53

1 informationwise prior to seeing Mr. McDade? 10:53

2 A Not that I can recall right now.

3 Q I'm going to ask you a few items, and you tell me

4 if it's information you had or didn't have prior to seeing

5 Mr. McDade. 10:53

6 A Okay.

7 Q Were you given the age of either of the suspects?

8 A I don't know.

9 Q When you listened to the dispatch tape, do you

10 recall if there was anything with respect to age? 10:53

11 A I listened to that so long ago. I don't recall

12 what it actually said.

13 Q As you sit here today, do you recall having

14 anything with respect to their age?

15 A I remember it being young, but I don't know what 10:54

16 the broadcast actually stated.

17 Q Did you have anything with respect to height?

18 A Not that I can recall.

19 Q Anything with respect to weight?

20 A Not that I can recall now. 10:54

21 Q Anything with respect to facial hair? hairstyle?

22 A No, sir. Not that I can recall.

23 Q Anything with respect to tattoos or any other

24 identifying features?

25 A Not that I can recall. 10:54

1 Q Anything specific with respect to clothing? I 10:54

2 know you said, "dark." I'm just wondering were there any

3 specifics you recall in terms of a hat or particular type

4 of shirt or sweatshirt or pants or shoes? Anything

5 specifically? 10:54

6 A I just remember it was dark clothing on the top

7 and also dark on the bottom. I was driving and my

8 attention was also focused on driving.

9 Q Were you given any information as to what was

10 taken? 10:55

11 A Not that I recall.

12 Q Were you given any information as to where this

13 robbery had occurred? In other words, whether it was in

14 some type of a store at a bank or anything like that?

15 A I may have been provided that, but I took away 10:55

16 from the broadcast. The location which is Raymond and

17 Orange Grove. I don't know what they said on the

18 broadcast.

19 Q Do you remember anything being said about a

20 backpack being taken or anything like that? 10:55

21 A No. From that day I did not recall that.

22 Q Did you have any understanding as to who the

23 reporting party was prior to seeing Mr. McDade?

24 A No, sir.

25 Q How far was Mr. McDade when you first saw him 10:56

1 from Raymond and Orange Grove? 10:56

2 A It's the distance. Again, I apologize. I don't

3 know the distance between Raymond and Fair Oaks, but

4 whatever that distance is plus its distance, he was north

5 from the intersection which I estimate 50 to 100 yards. 10:56

6 Q Okay. When you first saw Mr. McDade, what was he

7 wearing?

8 A I remember him having dark clothing on top and

9 dark clothing on the bottom.

10 Q Let's try to be more specific. I understand, 10:57

11 obviously, you got at some point closer to him?

12 A Yes.

13 Q Tell me what type of pants was he wearing. Was

14 he wearing jeans? Was he wearing dress pants? Was he

15 wearing sweat pants? What type of pants? 10:57

16 A All I can describe they were long pants. I don't

17 know any further. I would just be guessing, and I don't

18 want to guess. I don't know.

19 Q How about shoes? What type of shoes did he have

20 on? Did he have on dress shoes? On tennis shoes? What do 10:57

21 you recall?

22 A I think they were athletic shoes, but I don't

23 know further.

24 Q How about his top? Did he have a long-sleeve

25 shirt or short-sleeve shirt? What do you recall? 10:57

1 A I don't know. I don't know what it was. 10:57

2 Q Do you recall if it was a sweatshirt? a T-shirt?

3 A sweater?

4 A I don't recall.

5 Q Did it have any hoody on it that you recall? 10:57

6 A I don't recall that.

7 Q Did he have anything on his head? Any type of a

8 hat or cap or anything like that?

9 A I don't remember.

10 Q Did you see anything in his hands when you first 10:58

11 saw him?

12 A No.

13 Q Had you ever seen him before to your knowledge?

14 A Not to my knowledge.

15 Q Was he carrying anything in his hands that you 10:58

16 thought may have been taken in the robbery?

17 A I don't remember anything.

18 Q What did you do then after initially seeing him

19 as you described? I assume you got closer to him.

20 A I felt that he matched the description of one of 10:58

21 the suspects. He was in the same general direction as one

22 of the suspects had allegedly run.

23 Q But you're saying when you first saw him, as I

24 understand your testimony, he was not running. He was

25 stationary; is that true? 10:59

1 A Yes, sir. He was standing in the middle of 10:59

2 Fair Oaks.

3 Q How many lanes are there on Fair Oaks?

4 A There are at least two southbound and two

5 northbound. 10:59

6 Q If we call the lane closer to the center of the

7 street the No. 1 lane and the next lane over closer to the

8 curb the No. 2 lane, you know what I'm referring to?

9 A Yes, sir.

10 Q What lane was he standing in, Mr. McDade, when 10:59

11 you saw him?

12 A The No. 1 lane.

13 Q Closer to the center of the street?

14 A Yes, sir.

15 Q Did you make some type of broadcast that you 10:59

16 believe you had spotted somebody who matches the

17 description?

18 A No.

19 Q Do you know if your partner made such a broadcast

20 to alert other officers in the area that you believe you 10:59

21 have spotted someone that matches the description?

22 A At what time, sir?

23 Q When you first saw him and you told me -- I think

24 you said you saw him, and you thought he possibly matched

25 the description. 11:00

1 A Yes, sir. Not at that time, no. Not when I 11:00

2 first saw him.

3 Q Did you activate your lights and sirens when you

4 first saw him?

5 A No, sir. 11:00

6 Q What did you do next after first seeing him?

7 A I made sure that there was no traffic coming

8 north or south. I think I was facing a red light, and I

9 slowly turned my car north.

10 Q So you're going north on what street now? 11:00

11 A I would now be going north on Fair Oaks.

12 Q And to go north on Fair Oaks, you would have

13 turned right?

14 A Right.

15 MR. GILBERT: How's your back? 11:01

16 THE WITNESS: It's okay.

17 MR. GILBERT: Let us know when you need a break.

18 Q BY MR. GALIPO: If it's okay, I'll go another 10,

19 15 minutes, and we'll take a break. Does that sound good?

20 A Okay. 11:01

21 Q You're going north on Fair Oaks after making a

22 right turn?

23 A Yes.

24 Q Which lane or lanes are you in?

25 A I turned into the No. 1 lane. 11:01

1 Q Is that the lane that Mr. McDade was standing in? 11:01

2 A Yes.

3 Q So he would have been on the same side of the

4 street?

5 A Yes. 11:01

6 Q And are -- your headlights would be on?

7 A Yes.

8 Q Did you ever activate your spotlight?


10 Q Do you know whether your partner ever activated 11:01

11 his spotlight?

12 A I don't know.

13 Q So is Mr. -- what happens next? You're now going

14 north on Fair Oaks in the No. 1 lane; correct?

15 A Yes. I turned very slowly into that No. 1 lane. 11:02

16 I was going to investigate the person that I saw there who

17 matched the description who was standing in the middle of

18 the street.

19 Q And then what happened?

20 A As I turned my car into the No. 1 lane slowly, I 11:02

21 have no intention of hitting pedestrians. He ran.

22 Q Okay. And how far do you think he was from you

23 when he first started to run?

24 A I don't know. Based on what I said earlier, I

25 don't know. Between 45 and 50 yards, I guess, based on 11:02

1 what I said. 11:02

2 Q And was -- before he started to run, was he

3 generally facing in your direction as you started

4 northbound?

5 A Yes, sir. I thought he was looking at us. 11:03

6 Q And which way did he -- strike that.

7 When he was looking in your direction, did you

8 ever see a gun in his hands?

9 A I didn't see anything in his hands.

10 Q Did you see anything on his person that looked 11:03

11 like a weapon to you?

12 A No, sir.

13 Q And which way did he initially run?

14 A He ran west across Fair Oaks.

15 Q So he would have crossed the center line and the 11:03

16 appropriate two lanes of Fair Oaks going west?

17 A Well, those two lanes go south.

18 Q I mean he was going west direction?

19 A Yes, sir.

20 Q I didn't word it very well. Sorry. What did you 11:03

21 do in response to seeing him run? Starting to run

22 westbound on Fair Oaks?

23 A I accelerated the car northbound so I could

24 follow him in the car.

25 Q Did you stay on your side of the street, or did 11:04

1 you angle towards where he was running? 11:04

2 A I think I stayed on my side of the street.

3 Q Did you see where he went to after crossing

4 the street?

5 A There is a business, I believe. I don't know if 11:04

6 it's changed, but it was a tire shop. He ran to the

7 parking lot whatever business is there.

8 Q All right. I'm going to show you a diagram from

9 Google, and we're going to take a break in five minutes,

10 but I want everyone to have a copy of this. I don't know 11:04

11 if this is going to help us or not.

12 You're going to let us know, but do you recognize

13 any of the streets in this diagram?

14 And I'll mark this as Exhibit 1.

15 (Plaintiffs' Exhibit 1 was marked for 11:04

16 identification.)

17 THE WITNESS: Yes, I do.

18 Q BY MR. GALIPO: Okay. And is it possible that

19 you could put a little rectangle on this diagram where you

20 believe your vehicle was when you first saw Mr. McDade if I 11:05

21 give you a pen?

22 MR. GILBERT: Can you have him just point? I'm

23 concerned with him making diagrams, writing on it. This is

24 not an aerial, and it may not -- I don't know if the

25 dimensions are right. 11:05

1 THE WITNESS: I know I did this during my interview. 11:05

2 I don't know if you have access to this. I'd be willing --

3 Q BY MR. GALIPO: Let me see. I don't know if we

4 do or don't. Why don't we start pointing, and I can write

5 it in. Why don't you point where you were approximately 11:05

6 when you first saw Mr. McDade.

7 A At this intersection.

8 Q Indicating the intersection of

9 Orange Grove Boulevard and Fair Oaks?

10 A Yes. 11:05

11 Q And would you have been in a westbound direction?

12 A Yes.

13 Q And where approximately do you believe Mr. McDade

14 was? He would have been somewhere in the street on

15 Fair Oaks? 11:06

16 A Yes.

17 Q And then you would have made this right turn --

18 A Yes.

19 Q -- to go northbound on Fair Oaks?

20 A Yes. 11:06

21 Q And you saw Mr. McDade running west?

22 A I saw him when I turned the car up. He started

23 running, yes.

24 Q And you continued north on Fair Oaks in the No. 1

25 lane? 11:06

1 A Yes, sir. 11:06

2 Q And then what happens?

3 A I turned into the parking lot to follow him.

4 Q And what parking lot is that?

5 A I don't know what the business is now. I don't 11:06

6 know if this is accurate, but here it says there's several

7 businesses here, and it's to the rear of these several

8 businesses.

9 Q Let me show you Exhibit 2.

10 (Plaintiffs' Exhibit 2 was marked for 11:06

11 identification.)

12 MR. GILBERT: Thank you.

13 THE WITNESS: You're welcome.

14 Q BY MR. GALIPO: This has -- we received this from

15 part of the investigation. Is there a Bates stamp? That's 11:07

16 okay. In any event, in the middle of Exhibit 2, it says,

17 "Area where suspect McDade was first seen by police." Do

18 you see that?

19 A Yes, sir. I do.

20 Q Is that the general area you believe that he was 11:07

21 first seen?

22 A That is the general area, yes.

23 Q And we see Church's Chicken in this exhibit;

24 correct?

25 A Yes, sir. 11:07

1 Q And then there's a -- says, "Area of 11:07

2 officer-involved shooting" with an arrow. Do you see that

3 on Exhibit 2?

4 A Yes, sir.

5 Q Is that the approximate area where the shooting 11:07

6 took place?

7 A I believe so.

8 Q So why don't we take a break now. That's good.

9 The Bates stamp -- the exhibit has a number on

10 the upper left. I don't know if that's a Bates stamp or 11:08

11 what it is, but it's 1240058. Whatever that signifies, we

12 have it.

13 Why don't we take -- we're getting up now to the

14 pursuit, and then we'll go into the shooting. Maybe this

15 is a good time for about a five-minute break. 11:08

16 THE VIDEOGRAPHER: We're going off the record at

17 11:08.

18 (A recess was taken.)

19 THE VIDEOGRAPHER: We're back on the record at 11:24.

20 Q BY MR. GALIPO: Okay. Are you ready to continue? 11:24

21 A Yes, sir.

22 Q So just backing up a little bit, you go -- make a

23 right turn on Fair Oaks which is you're going northbound,

24 and you're traveling in the No. 1 lane?

25 A Yes. 11:25

1 Q And as you're proceeding northbound, you see 11:25

2 Mr. McDade running in a west direction?

3 A He goes from a stationary position to running,

4 yes.

5 Q Okay. Where did you see him running to? Into a 11:25

6 parking lot? Onto a sidewalk? What did you observe?

7 A To the rear of this business complex I guess.

8 Q And what business complex looking at Exhibit 2

9 are you referring to?

10 A Exhibit 2 is this one. 11:25

11 Q Yeah.

12 A Here it's denoted as the Mandarin Los Primos.

13 Q Okay. So Fair Oaks we see running from the

14 bottom of the page to the top towards the left-hand side;

15 correct? 11:26

16 A Yes.

17 Q And west of Fair Oaks is this business that

18 you're referring to?

19 A Yes.

20 Q And he ran into that business. Is that a parking 11:26

21 lot with different businesses?

22 A I think so according to this evidence.

23 Q And then what did you then do?

24 A Well, if I may, when he started running, he

25 grabbed his waistband. I accelerated my response at that 11:26

1 point, and I followed him into the this parking lot, this 11:26

2 back area.

3 Q You pulled your vehicle into that parking lot?

4 A I did.

5 Q And at some point did you then close the distance 11:27

6 between you and him?

7 A The distance ranged.

8 Q How close did you get to him at that point when

9 you pulled into the parking lot?

10 A He was still running. So I close the distance 11:27

11 when I drove north on Fair Oaks but then, for example, he

12 was able to run. I had to negotiate the curb, and I had

13 never been back there before. So, initially, I closed the

14 distance, and then he was able to run in more of a straight

15 line. So the distance changed. 11:27

16 Q Okay. Let me ask you this. The weapon that you

17 had your -- which is an automatic, is that a .45 caliber

18 weapon?

19 A Yes.

20 Q Was that issued by the department to you? 11:27

21 A No.

22 Q How did you obtain that particular weapon?

23 A I purchased it.

24 Q And when did you purchase that weapon?

25 A I think it was in August of 2001. 11:28

1 Q Okay. What type of semi-automatic weapon, if you 11:28

2 know, is department issue for the officers?

3 A Generally, they issue a Glock .22.

4 Q Is that a .9 millimeter?

5 A It's a .45 caliber. 11:28

6 Q .45 caliber. So your caliber would have been

7 larger?

8 A Yes.

9 Q The vehicles that you drive the control vehicles,

10 do they have some recording capability? 11:28

11 A Yes.

12 Q What type of recording capability do they have in

13 terms of video recording?

14 A They have something that many people would

15 recognize as a dash cam. 11:28

16 Q And how is that turned on if you want to activate

17 it? How is it turned on?

18 A There are several methods. I can manually turn

19 it on by hitting a record button, or I could move the light

20 bar switch to the red lamp. I can turn on the red lamp 11:29

21 turning on the full license sirens would do the same thing,

22 or if we get into a big enough collision, the recorder will

23 automatically turn on.

24 Q So just to repeat -- and correct me if I'm

25 wrong -- you could manually turn it on by flipping a 11:29

1 switch? 11:29

2 A Not a switch. Hitting a button.

3 Q Hitting a button by going lights and sirens. It

4 automatically goes on, and if you get into a big enough

5 collision, that will also activate it? 11:29

6 A Yes, sir.

7 Q How about any recording device? Audio recording

8 device that you have on your person? Did you have anything

9 like that?

10 A I had an audio recorder that night. 11:29

11 Q And how is that activated?

12 A Keep it in my pocket. I have to take it out,

13 flip the hold button, flip the record button and generally

14 flip the hold button back on.

15 Q And you would normally keep it in your left front 11:30

16 pocket?

17 A Left breast pocket.

18 Q At any point in time after seeing Mr. McDade, did

19 you do anything to activate the dash cam?

20 A No, I didn't. I didn't have time. 11:30

21 Q How long do you think it would have taken to

22 activate it by pressing the button?

23 A I wasn't able to press the button. At this time,

24 I had my gun in my right hand and the steering wheel in my

25 left. 11:30

1 Q When you first saw Mr. McDade, did you already 11:30

2 have your gun in your hand?

3 A No, sir.

4 Q You could have activated it at that time?

5 A I could have but at that point he hadn't yet run, 11:30

6 and it was just going to be an investigative "Hey. Why are

7 you standing in the street?" stuff.

8 Q So are you saying you didn't activate your dash

9 cam because you didn't have time?

10 A Yes, sir. 11:31

11 Q How about your audio recorder?

12 A I didn't have time there that requires more

13 manipulation than the dash cam.

14 Q Where is the button for the dash cam in the car?

15 A It's -- if you can imagine where your rearview 11:31

16 mirror is, it's just to the left of it.

17 Q Did you ever ask your partner officer to activate

18 it?

19 A I did not.

20 Q How much time would you say passed from the time 11:31

21 you first saw Mr. McDade to the time you pulled into this

22 parking lot of those businesses you referred to?

23 A My estimate would be -- I'm sorry. The question

24 again was?

25 Q From the time you first saw him to the time you 11:32

1 pulled your vehicle into that parking lot. 11:32

2 A Four seconds, five seconds.

3 Q And what would you estimate the time to be

4 between the time you first saw him and the time you started

5 to run? 11:32

6 A I would estimate that about one second. As soon

7 as I turned my car, he appeared to run.

8 Q Now, and when in this sequence did you pull your

9 gun out?

10 A It's when I first saw him grab his waistband and 11:32

11 he ran into the rear parking lot area of these businesses.

12 Q When he was running west, would his left side be

13 primarily to you?

14 A Yes, sir.

15 Q And when you say he grabbed his waistband -- 11:33

16 A Yes, sir.

17 Q Which hand?

18 A His right hand, sir.

19 Q His right hand would have been farther away from

20 you? 11:33

21 A Yes.

22 Q Could you actually see his right hand at that

23 point?

24 A No.

25 Q Were you miked up so -- how was your police radio 11:33

1 miked up on you at that time? 11:33

2 MR. GILBERT: Vague.

3 MR. GALIPO: It is kind of vague.

4 Q What I'm really asking -- that's a poor question.

5 But some officers carry the mike on their lapel. How did 11:34

6 you have it?

7 A I had my actual microphone on my lapel. I have

8 an ear piece in my ear, but when I'm in the car, the police

9 radio is generally turned up loud enough that I no longer

10 hear this. It's the predominate form of communication in 11:34

11 the car.

12 Q Did you make a dispatch that you spotted who you

13 believed to be a suspect in the robbery?

14 A No, sir.

15 Q Did you make a dispatch that someone is running 11:34

16 from you and that person is holding their waistband?

17 A No, sir. If I may, I was holding a gun and the

18 steering wheel. I wasn't able to manipulate any mike or my

19 lapel mike.

20 Q I'm just asking if you ever made a dispatch. 11:34

21 You're saying you didn't, and part of the reason was you

22 had the gun in your hand and you didn't have time to do

23 that?

24 A Yes, sir. And the steering wheel.

25 Q Did your partner, if you heard, ever make a 11:35

1 dispatch that "We spotted who we believe to be a suspect in 11:35

2 the robbery"?

3 A When we were driving west through that back

4 parking lot, I believe just after actually going past the

5 southbound lanes of Fair Oaks, I remember him on the 11:35

6 microphone saying something in the microphone. I assumed

7 he was radioing our location and that we were in pursuit.

8 Q Do you know if there's anything on the dispatch

9 either from you or Officer Newlen that says, "We're chasing

10 someone, and they're holding their waistband"? 11:35

11 A I do know that never was broadcast.

12 Q Do you know if anything was broadcast to the

13 effect "We're chasing someone, and we believe he has a

14 gun"?

15 A I don't believe there's anything until later on 11:36

16 in the pursuit.

17 Q Was there anything mentioned prior to shots being

18 fired that you were in pursuit of someone that you believed

19 had a gun?

20 MR. GILBERT: When you say "mentioned," you mean 11:36

21 broadcast?

22 MR. GALIPO: Yes. Broadcast. Thank you.

23 THE WITNESS: Yes, sir.

24 Q BY MR. GALIPO: There was something broadcast

25 before shots were fired that you believe this was a gun? 11:36

1 A I didn't broadcast that but, yes. I heard that 11:36

2 being broadcast by my partner.

3 Q What do you recall being broadcast with respect

4 to believing the guy had a gun?

5 A I know only he was broadcasting, and he was in 11:36

6 foot pursuit of the suspect. I believe he gave a

7 description and direction. I'm not sure.

8 Q My question is a little more specific. If I

9 understand your testimony, you're saying at some point you

10 heard Officer Newlen making some type of broadcast? 11:36

11 A Yes, sir. While in the car.

12 Q While in the car. What I'm specifically asking,

13 and I'll break it down, did you hear Officer Newlen ever

14 say words to the effect "The guy is holding his waistband,"

15 or "We believe he has a gun"? 11:37

16 A No. I never heard him say that that I can

17 recall.

18 Q Just that someone was running and you're pursuing

19 him?

20 A Yes, sir. If I may, I said that. 11:37

21 Q I'm sorry?

22 A I said -- I know I said, "I think he's got a

23 gun," but I don't think I ever heard him say that.

24 Q You said that to who?

25 A I said that to Officer Newlen in the car as we 11:37

1 were driving through the rear alley parking lot. 11:37

2 Q Well, if you were chasing someone that you

3 thought had a gun, wouldn't you want your fellow officers

4 to know that?

5 A I told that to Officer Newlen. 11:37

6 Q How about your other officers that were in the

7 area? Based on your training, you want them to know this?

8 A Ideally, yes, sir.

9 Q And I take it you don't recall specifically what

10 Officer Newlen said. You just generally remember something 11:38

11 about the pursuit?

12 A At which point, sir?

13 Q When you pulled into that parking lot area.

14 A In that parking lot area, I heard him on the -- I

15 remember seeing him grab the microphone. I don't recall 11:38

16 exactly what he said. I guess I assumed it was pertaining

17 to this pursuit, but I don't know what he said, sir.

18 Q What happens next? Now you're in the parking

19 lot. What happens next?

20 A We're continuing to -- I'm continuing to follow 11:38

21 him. I've never been back in that parking lot before. We

22 follow him through the parking lot.

23 Q And was he running at that point?

24 A Yes, he was.

25 Q In which direction was he running? 11:39

1 A He continued to run west and by virtue of the 11:39

2 buildings, he started running southwest.

3 Q For how long of a period approximately did you

4 observe him running west in the parking lot as opposed to

5 southwest? 11:39

6 A Two or three seconds.

7 Q And during that two or three seconds, would you

8 say he was walking, jogging, or running?

9 A I would say, if I could, he was sprinting.

10 Q Did he appear to be a fast runner to you? 11:39

11 A Yes, sir.

12 Q And during this two to three seconds that he was

13 sprinting in a west direction in the parking lot, how far

14 approximately were you from him during that time?

15 A The distance ranged because he was able to run in 11:40

16 essentially a straight line direction whereas I had to

17 maneuver around at least one corner and then another

18 corner, and then I ended up not being able to maneuver

19 enough, and I hit a wall there.

20 Q Is this all while he was running west? 11:40

21 A Yes, sir.

22 Q So when you say the distance ranged, what would

23 it range from?

24 A I don't know. I probably got as close as

25 five feet and as far as various times 20, 25 feet. I'm not 11:40

1 certain but... 11:40

2 Q That's an estimate?

3 A Yes, sir.

4 Q So when you got as close as five feet, would that

5 be before you hit the wall? 11:41

6 A It would probably be just before we hit the wall,

7 yes, because I slowed down when I hit the wall. So I did

8 not continue to hit the wall.

9 Q When you were approximately five feet from him,

10 were you looking generally at his back? 11:41

11 A Yes.

12 Q And was he offset more one way or the other from

13 the center of your car, or you think he was pretty lined up

14 with the center of your patrol vehicle when you were

15 five feet away? 11:41

16 A I recall him being kind of in my line of sight.

17 At that point, I was to the extreme right side of that

18 small alley hitting a wall. So I remember being in the

19 middle of the alley itself.

20 Q Okay. So I just want to -- let me see here. 11:42

21 Looking at Exhibit 3, there is kind of a line drawn.

22 (Plaintiffs' Exhibit 3 was marked for

23 identification.)

24 Q BY MR. GALIPO: Does that generally depict the

25 path that you think you took? 11:42

1 A There are a couple of lines here, sir. 11:42

2 Q That's fair. All right. Let's start with the

3 intersection of Orange Grove and Fair Oaks. There's an "X"

4 there?

5 A Yes, sir. 11:43

6 Q Is that where you were approximately when you

7 first saw Mr. McDade?

8 A Yes, sir.

9 Q And then looking up on Exhibit 3, there's an "X"

10 in the roadway of Fair Oaks. Is that where Mr. McDade was 11:43

11 approximately when you first saw him?

12 A Yes, sir.

13 Q And then this line from the first "X" to turning

14 into that parking lot, is that the approximate path you

15 took from where you were when you first saw him to pulling 11:43

16 into this parking lot?

17 A Yes, sir.

18 Q And then once we get into the parking lot as

19 depicted in Exhibit 3, is that the general path your

20 vehicle took once in the parking lot? 11:43

21 A Yes, sir.

22 Q Okay. Now, can you put a circle as to where it

23 was approximately where you hit the wall?

24 A There's exactly a circle on here.

25 Q There is? 11:43

1 A Yes, sir. 11:43

2 Q Right here?

3 A Yes, sir.

4 Q So where the circle is on Exhibit 3, that's where

5 you hit the wall? 11:44

6 A Approximately, yes.

7 Q And how much time would you estimate passed from

8 the time you entered the parking lot to the time you hit

9 the wall?

10 A Five to eight seconds. 11:44

11 Q And what -- was Mr. McDade running that entire

12 time?

13 A Yes, sir.

14 Q Was he sprinting the entire time?

15 A Yes, sir, he was. 11:44

16 Q You said the distance would range from closest

17 5 feet to maybe approximately 25 feet?

18 A Yes, sir.

19 Q And you believe you got approximately five feet

20 from him shortly before you hit the wall? 11:44

21 A Yes, sir.

22 Q Okay. During this time frame Officer Newlen is

23 in the car with you?

24 A Yes, sir.

25 Q At any time before you hit the wall, did you see 11:44

1 a gun in Mr. McDade's hand? 11:45

2 A I couldn't see his right hand. I could see his

3 left. It was swinging like somebody when they run his

4 right hand was concealed by his waist and there was some

5 sort of thing protruding from his hand. 11:45

6 Q Let me ask you this. You initially saw him in

7 the street, I think, facing your direction; correct?

8 A Yes, sir.

9 Q And you already told me at that time you didn't

10 see anything in his hands; is that true? 11:45

11 A That's true.

12 Q And then you're saying, as he was running -- are

13 you saying, as he was running, his right hand was out of

14 your view?

15 A I was saying as he ran, as he turned to run, he 11:45

16 clutched his -- using his right hand, he clutched the right

17 side of his waist, and he sprinted through this parking lot

18 swinging his left arm like a normal person might when they

19 run, and his right hand stayed at his waist and never swung

20 freely. I was never able to see his hand. 11:46

21 Q And that's the point I want to clarify. In the

22 five to eight seconds between you entering this parking lot

23 and your vehicle hitting this wall, did you ever see

24 Mr. McDade's right hand?

25 A No, sir. 11:46

1 Q At any point before you shot him, did you see a 11:46

2 gun?

3 A I wasn't able to see his hand, but I did not see

4 a gun.

5 Q Did you ever see an object at any point before 11:46

6 you shot him that you thought was a gun?

7 A I can't -- I couldn't tell one way or the other

8 because I wasn't able to see his hand.

9 Q Let me tell you why I'm asking.

10 A Okay. I apologize. 11:46

11 Q Don't. You're doing fine. I handle a lot of

12 these cases, and the facts of every case is different.

13 Sometimes an officer sees a gun in the person's hand.

14 Sometimes an officer sees an object in their hand that they

15 thought was a gun and turns out it was something else. 11:46

16 I'm just asking you did you ever see what you

17 believed to be a gun in his hand?

18 A No, sir.

19 Q Did you ever see an object of any kind in his

20 hand? 11:47

21 A As I said earlier, I wasn't able to see his hand.

22 Q So I guess you never saw an object in his hand;

23 is that fair?

24 A I wasn't able to see his hand clearly, no.

25 Q Let me try again. Did you ever see an object in 11:47

1 his hand? 11:47

2 A No.

3 Q Okay. So we're up to the time that you hit the

4 wall?

5 A Yes, sir. 11:47

6 Q Why do you think you hit the wall?

7 A If I can use this?

8 Q Exhibit 3?

9 A Exhibit 3.

10 Q Sure. 11:47

11 A It's a fairly narrow area back there. I had to

12 make a fairly almost 90-degree turn, I guess, not to hit

13 the building that I ended up hitting. After I turned to

14 avoid that, I was going to hit what is the building on the

15 northeast corner. I had to quickly try to correct the 11:48

16 steering wheel.

17 I turned back towards the house I ended up

18 hitting, and I was doing all this with my one hand. My

19 right hand was still holding onto my gun, and I was doing

20 all the turning with my left hand. I wasn't able to turn 11:48

21 the wheel fast enough to avoid hitting the structure.

22 Q Was your gun at any time pointed at Mr. McDade

23 during this five to eight seconds before you hit the wall?

24 A No. If you're asking did I stick it above the

25 dashboard and point at him, no, sir. 11:48

1 Q Did you point at him in any way before you hit 11:48

2 the wall?

3 A No, sir.

4 Q But you had it in your right hand?

5 A Yes, sir. 11:48

6 Q Do you know if Officer Newlen had his gun out

7 before you hit the wall?

8 A I think he had it out, but I can't be certain.

9 Q Did you hear any commands given to Mr. McDade by

10 either yourself or Officer Newlen before you hit the wall? 11:49

11 A No, sir. One of the barriers to that literally

12 was my window was still up. I wasn't able to and even if I

13 could, he was directly in front of our car, and I couldn't

14 yell to him. I would have been yelling inside a closed

15 car. 11:49

16 Q Did you ever consider putting your window down?

17 A I very much wanted to put my window down.

18 Q The dispatch or communication you heard that

19 Officer Newlen make, understanding you don't recall the

20 details, do you know if that was made before or after you 11:49

21 hit the wall?

22 A Before, sir. It was just after we turned into

23 that rear parking lot area.

24 Q How would you describe the impact with the wall?

25 Would you say it was slight? medium? heavy? How you would 11:50

1 describe the impact? 11:50

2 A Not medium, not slight. It was a minor impact.

3 Q Minor impact?

4 A Yes, sir.

5 Q And what part of your vehicle impacted the wall? 11:50

6 A The front passenger side quarter panel like where

7 the front passenger side tire would be.

8 Q Did you ever see damage on your vehicle after the

9 incident?

10 A After the incident, yes, sir. 11:50

11 Q What type of damage did your vehicle have if you

12 remember?

13 A Just scraping.

14 Q In that area?

15 A Yes, sir. 11:50

16 Q What happens after you hit the wall? What

17 happens next?

18 A I grabbed the steering wheel and turn it far

19 enough so we're not hitting the wall.

20 Q Okay. You tried to separate the vehicle away 11:51

21 from the wall. That was probably good, and then what

22 happened?

23 A I saw Mr. McDade running southwest across Sunset.

24 Q Are you looking at his back at that point?

25 A I'm looking at several things but, yes. I'm 11:51

1 looking at his back. 11:51

2 Q As he's walking across Sunset, can you see his

3 right hand?

4 A No.

5 Q And is that in part because of the position he 11:51

6 was in relative to you?

7 A There are probably several factors. I wasn't

8 able to keep my hands on him the entire time because I was

9 driving the car. I looked --

10 Q That's okay. When you made the collision with 11:52

11 the wall, would it be correct that you took your eyes off

12 him for some period of time at the time of impact?

13 A Split second.

14 Q So when you see him crossing Sunset in a

15 southwest direction; is that correct? 11:52

16 A Yes, sir. According to this, yes, sir.

17 Southwest.

18 Q Does that seem correct to you?

19 A Yes, sir.

20 Q Where were you as he was crossing Sunset? 11:52

21 A I was just at the -- I was exiting the alleyway

22 where I just collided into the wall. Just exiting it.

23 Q And was Officer Newlen still in the car at that

24 point?

25 A Yes, sir. 11:52

1 Q And then where did you go next? 11:52

2 A After making sure that I wasn't going to hit

3 anything, I looked left -- sorry -- south down Sunset and

4 north up Sunset. I crossed out of the alley, and I turned

5 south onto Sunset Avenue. 11:53

6 Q Which would be going which direction?

7 A Well, according to this, it's a little bit

8 southeast. South, southeast.

9 Q But did you have to turn left --

10 A Turned left. 11:53

11 Q And was that the direction that Mr. McDade was

12 running?

13 A Not exactly no, sir.

14 Q Why did you turn left?

15 A I turned left so I would stay on the roadway. 11:53

16 Q You didn't think you would make a right turn?

17 A Well, he ran southwest. I was attempting to

18 follow him. He ran across the street onto the sidewalk or

19 across the parkway onto the sidewalk and through this

20 business. I'm not sure if this is a current -- Fair Oaks 11:53

21 Family Dental Office is still there, but he ran through

22 that property.

23 Q Did you finish your answer?

24 A Yes, sir.

25 Q At some point did Officer Newlen get out of the 11:54

1 vehicle? 11:54

2 A Yes, he did.

3 Q At what point did Officer Newlen get out of the

4 car?

5 A Well, you would like me to skip? Because -- 11:54

6 Q I rather that you keep going. So at some point

7 he's still in the car?

8 A He's still in the car. I have turned left onto

9 Sunset. I see Mr. McDade running southwest across this

10 property. I again look to the left and to the right. So I 11:54

11 can make this right turn onto Orange Grove in an attempt to

12 follow Mr. McDade as he was running.

13 Q And so then you turn right on Orange Grove?

14 A I did.

15 Q So looking at Exhibit 3 again, the line at least 11:54

16 coming onto the alley going left on Sunset and right on

17 Orange Grove would be the approximate path your vehicle

18 took?

19 A Yes, sir.

20 Q And then after you turned right on Orange Grove, 11:55

21 what happens next?

22 A I accelerated because I knew at that point I

23 was -- he was gaining ground on us. He was getting further

24 away. I accelerated about this point. I looked over, and

25 I saw him stopped, and he was about or he started to run 11:55

1 the other direction. 11:55

2 Q Okay. Which would be in which direction?

3 A At that point he was running northeast.

4 Q From southwest he stopped and started running

5 northeast? 11:55

6 A Yes, sir.

7 Q And this is when you were on Orange Grove?

8 A Yes, sir.

9 Q And then what did you do?

10 A Well, I looked over. I saw him looking at us and 11:55

11 stopping his motion. I slammed on the brakes because I

12 wanted to follow him, and at that point I was able roll

13 down my window. That was the first opportunity I had, and

14 then Officer Newlen exited the car.

15 Q Let me stop you right there. Did you bring your 11:56

16 vehicle to a stop at that point?

17 A Yes, sir.

18 Q And are you stopped somewhere where the end of

19 this line would be looking at Exhibit 3 on Orange Grove?

20 A In the vicinity yes, sir. Yes. 11:56

21 Q And now at that point you put your window down?

22 A Yes, sir.

23 Q And does Mr. McDade come to a stop at some point

24 around the same time?

25 A Yes, sir. Physically he was running southwest, 11:56

1 and then he stopped, and he turned and changed directions. 11:56

2 Q How long was he stopped for before changing

3 direction?

4 A A split second. He was sprinting southwest,

5 stopped, sprinted northeast. 11:56

6 Q And why did you feel that was a good time for you

7 to put your window down?

8 A Because at that point I brought the car to a stop

9 because I saw him changing direction. So I knew I had to

10 change direction on the car. I stopped the car and at that 11:57

11 instant it was not necessary for me to control the

12 direction of the car. The car was stopped momentarily. So

13 I took my hand off the wheel and rolled it down.

14 Q Why did you want to put the window down?

15 A Because I thought he was an imminent threat. I 11:57

16 thought he had a gun.

17 Q But you didn't shoot him then, did you?

18 A No, I did not.

19 Q Okay. Why didn't you shoot him then?

20 A Because at that point he wasn't threatening me. 11:57

21 Q Isn't it your training even if you see a gun in

22 someone's hand you can't necessarily shoot him?

23 A That's true, sir.

24 Q Now, I just want to break this down a little bit.

25 At the time you came to a stop, as I understand, your 11:57

1 testimony Mr. McDade is running in a southwest direction, 11:58

2 and you're pursuing him?

3 A Yes, sir.

4 Q And then he suddenly stops and starts moving in

5 the opposite direction which would be northeast? 11:58

6 A Yes, sir.

7 Q And during this time frame that he's changing

8 directions, you stop your vehicle and put down your

9 driver's side window?

10 A Yes, sir. I see that he's changed directions. 11:58

11 Q Before he changed directions, what would be the

12 distance between the front of your vehicle and Mr. McDade

13 if we took, like, the second or two before he stopped?

14 A It would -- it would be just an estimate. I had

15 accelerated pretty much as hard as I could to catch up to 11:58

16 him so the range second or two before he stopped anywhere

17 between -- I don't know. I mean it would be just a guess.

18 I don't know.

19 Q I don't want you to guess. In other words, I

20 don't know if you got 50 feet from him. I don't know if 11:59

21 you got ten feet from him. The closest point.

22 A What happened was I accelerated after I made sure

23 that I wasn't going to collide into any cars. I made this

24 right turn and accelerated and looked over, and he had just

25 stopped. The distance between the front of my car and 11:59

1 where he had stopped, it was fairly small. It's a -- I 11:59

2 don't know. Twenty to 30 feet.

3 Q Okay. Now, when he changed -- before he changed

4 direction, you're, basically, looking at his back left side

5 or more center back? 11:59

6 A The angle changed. When he -- when I was still

7 in the alley and he was running southwest, I was able to

8 see the back and right side, but then as I drove and I got

9 on the other side of him, I was able to see his left side,

10 but then I also saw him stop and turn around, and I saw the 12:00

11 front of him.

12 Q Right. This is what I want to break down.

13 A Okay.

14 Q So when you were in the alley and saw his back

15 right side? 12:00

16 A Yes.

17 Q At that point, did you see his right arm?

18 A I saw it was down by his side, and he was still

19 grabbing his waistband.

20 Q I want to break this down. Could you see his 12:00

21 right arm?

22 A Yes.

23 Q Could you see -- and this is when you were in the

24 alley looking at his back right side. Could you see his

25 right hand? 12:00

1 A No. I still couldn't see it. 12:00

2 Q When you were pursuing him and you saw his left

3 side, I assume that's as you were coming down Orange Grove

4 again?

5 A Yes. 12:01

6 Q Could you see his right arm at that time when you

7 were looking at his left side?

8 A I didn't have very much -- I did not spend much

9 time looking at him. Because after I made the turn, I

10 accelerated. I looked over, and he had just stopped, and 12:01

11 he had turned toward us, and his hand was still down by his

12 right side, and he was still grabbing his waistband. Then

13 he took off.

14 Q Okay. Now, you say when he changed direction,

15 you saw the front of him? 12:01

16 A Yes, sir.

17 Q Could you see his right hand at that point?

18 A No.

19 Q You still couldn't see his right hand?

20 A No. It was still obscured by his waistband still 12:01

21 something coming out of his hand.

22 Q Here's where I want to be specific. Did you see

23 actually with your own eyes see his right hand inside his

24 pants?

25 A No, sir. What I saw he was grabbing his 12:02

1 waistband, and there was something protruding from the top 12:02

2 of his hand. So I wasn't able to see his right hand.

3 Q So you're saying that when you were looking at

4 his back -- when you were looking at his right side when

5 you were in the alley, you could not see his right hand; is 12:02

6 that correct?

7 A That's correct.

8 Q You're saying when you were looking at his left

9 side, you could not see his right hand; is that correct?

10 A That's correct. 12:02

11 Q And you're saying when you turned to face his

12 direction, you could not see his right hand?

13 A Yes.

14 Q His shirt, was it long? Was it -- was any

15 clothing of the shirt blocking his hand? 12:02

16 A No. I think he was grabbing something in his

17 waist some part of his pants. I don't think it was his

18 shirt.

19 Q Let me ask you this: I'm going to jump forward

20 for a moment. After shots were fired by yourself and 12:03

21 Officer Newlen, was his -- did either you or Officer Newlen

22 pat him down to see if he had anything in his waistband?

23 A I didn't pat him down.

24 Q Do you know in Officer Newlen did?

25 A I don't know. 12:03

1 Q Weren't you interested after you shot him to see 12:03

2 if he had something in his waistband or not?

3 A Yes, sir. But at that point he still wasn't

4 handcuffed.

5 Q To your knowledge, based on your observations 12:03

6 being at the scene, after he was shot did he have anything

7 in his waistband?

8 A To the best of my knowledge, no.

9 Q Okay. Up to the point where he changed

10 direction, had you issued any verbal commands to him? 12:03

11 A No.

12 Q Had you heard him say anything to you?

13 A No.

14 Q Did you hear Officer Newlen issue any verbal

15 commands to him? 12:04

16 A No.

17 Q Was there any further dispatch, if you recall,

18 with respect to where you were at that point?

19 A When he was turning around?

20 Q Yes. 12:04

21 A No, sir.

22 Q Was there any dispatch at that point that you

23 thought he had a gun or was holding his waistband made by

24 Officer Newlen?

25 A No. 12:04

1 Q Did you, when you had the moment to put the 12:04

2 window down, make a dispatch then to say you thought he

3 might have a gun or you need a perimeter of containment or

4 officer assistance?

5 A No, sir. I was struggling to catch up to my 12:04

6 partner. I was struggling to put the car in reverse and

7 after rolling down the car --

8 Q Rolling down the window?

9 A Yeah. I'm sorry. Rolling down the window after

10 putting in reverse, I grabbed the wheel again. 12:04

11 Q If you know, did Officer Newlen get out of the

12 vehicle before or after you put the window down?

13 A He left just -- I'm sorry. Just before I put the

14 window down.

15 Q Okay. So what I was asking maybe I didn't do it 12:05

16 so well. Is there a reason why in that second or two you

17 didn't try to make a dispatch at that point?

18 A I didn't because my partner was in foot pursuit

19 of an armed robbery suspect who I believed to have a gun.

20 Rather than to put my gun away and grab the microphone and 12:05

21 stay stationary there, I put the car into reverse and

22 backed up, and then I followed my partner.

23 Q You wouldn't have to put your gun away

24 necessarily to make a dispatch, would you?

25 A Yes, sir. 12:05

1 Q You think you would. You couldn't have done it 12:05

2 with your left hand?

3 A No. Because I wanted to drive. I guess I could

4 have done this, but if the radio is turned up, which it

5 normally is and I key this mike, I think it reverberates 12:06

6 makes a terrible racket on the radio, and nobody can hear

7 you. I would have to reach over, unhook the microphone,

8 and make the dispatch there, and I wouldn't do that. I

9 would have to -- I mean I wouldn't reach with my left hand.

10 I would have to holster up, grab it. I saw the problem of 12:06

11 putting into reverse and catching up to my partner.

12 Q Okay. In any event, you put the window down at

13 about that time Officer Newlen got out of the car and was

14 chasing Mr. McDade on foot?

15 A Officer Newlen got out of the car like -- I saw 12:06

16 Mr. McDade stop in a reverse direction. I slammed on the

17 brakes. At that point the vehicle was stopped. That's

18 when Officer Newlen exited the vehicle.

19 Q Okay. And then you put your window down; is that

20 correct? 12:07

21 A Yes.

22 Q Did you in your mind think that Mr. McDade was

23 trying to run away from you?

24 A Yes, sir. I thought he was trying to evade us.

25 Q You have training, do you not, that a lot of 12:07

1 people run from the police for a lot of different reasons? 12:07

2 A I've experienced people do it for a variety of

3 reasons.

4 Q It could be anything from some people are afraid

5 of the police. Some people have outstanding warrants, a 12:07

6 whole variety of reasons people run from the police; is

7 that fair?

8 A Yes, sir.

9 Q How you would describe Mr. McDade in terms of

10 height and weight based on what you observed? 12:08

11 A Medium height, medium weight kind of on the

12 thinner side. He wasn't stocky or brawny.

13 Q What was your assessment of age?

14 A Young. Probably early 20's.

15 Q So did you then move the car from drive to 12:08

16 reverse?

17 A Yes, sir.

18 Q Because now you wanted -- looking at Exhibit 3,

19 you wanted to back up on Orange Grove?

20 A Yes, sir. 12:08

21 Q And did you?

22 A I did.

23 Q And after backing up on Orange Grove, did you

24 then go down Sunset?

25 A Yes. 12:08

1 Q Kind of in the direction. We see some of the 12:08

2 lines drawn in Exhibit 3?

3 A Yes, sir.

4 Q As you were backing up, were you able to see

5 either Officer Newlen or Mr. McDade? 12:09

6 A I don't recall seeing them. I remember looking

7 over my left to make sure I wasn't going to hit any traffic

8 as I backed up, and then I don't remember looking at the

9 sidewalk. I think by that point I think they had run up

10 the sidewalk far enough. I wasn't able to see them. 12:09

11 Q Up to this point in time, did you activate any of

12 your emergency lights?

13 A No, sir.

14 Q Is there a reason why you didn't?

15 A I didn't have opportunity to. 12:09

16 Q And then you started proceeding down Sunset?

17 A Up Sunset, yes, sir. North on Sunset.

18 Q So you backed up to a point where you could then

19 pull forward going north on Sunset?

20 A Yes, sir. 12:09

21 Q And when you started north on Sunset, could you

22 see either Mr. McDade or Officer Newlen?

23 A I passed Officer Newlen, and then I saw

24 Mr. McDade.

25 Q Okay. When you started north on Sunset, could 12:10

1 you see where Officer Newlen was at first? 12:10

2 A No. Not at first, no. When I -- when I first

3 put it in drive, no, sir.

4 Q But as you were going farther north at some

5 point, you saw him and passed him? 12:10

6 A Yes, sir.

7 Q And where was Officer Newlen when you saw him?

8 A I don't know. If you're asking where if he was

9 in front of a particular house, I don't know.

10 Q Was he on the driver's side of your vehicle or 12:10

11 the passenger's side of your vehicle when you saw?

12 A The driver's side, the west side of Sunset.

13 Q Was he running?

14 A Yes, sir.

15 Q Did he have his gun in his hand? 12:10

16 A I believe so.

17 Q Did he appear to be seeking any cover?

18 A From what I recall, he was running north after

19 Mr. McDade up the sidewalk. I don't think he was seeking

20 cover, no. 12:11

21 Q If you know, was there any further broadcast

22 where the foot pursuit was going at this point and alert

23 other units?

24 A Further broadcast?

25 Q Yeah. I think you said early on there might have 12:11

1 been a broadcast when you first pulled into the parking lot 12:11

2 before you hit the wall that Officer Newlen made about the

3 pursuit?

4 A Yes, sir.

5 Q I'm wondering after you hit the wall if you know 12:11

6 if there were any further broadcasts.

7 A After Officer Newlen went in foot pursuit and I

8 would estimate just before I put the car into drive and

9 turn north up Sunset or northwest, I heard him putting on a

10 broadcast that he was in foot pursuit. 12:11

11 Q And that would have been after he got out of the

12 car?

13 A Yes, sir.

14 Q Anything in that broadcast that you can recall

15 about someone holding their waistband or someone having a 12:12

16 gun?

17 A I don't know exact words he used, sir. I think I

18 gave a brief description and location of travel.

19 Q And then you say at some point you saw

20 Mr. McDade? 12:12

21 A Yes.

22 Q Where was Mr. McDade when you saw him again?

23 A He was still running northwest on the west

24 sidewalk.

25 Q And that's the same sidewalk that you saw Officer 12:12

1 Newlen on? 12:12

2 A Yes.

3 Q Do you have any estimate as to how far they were

4 apart? How much ahead of Officer Newlen Mr. McDade was?

5 A I don't. 12:12

6 Q What do you do after you see Mr. McDade again on

7 the west sidewalk?

8 A Well, at that point, I'm traveling at a high rate

9 of speed when I see him. I draw even with him, and I put

10 my car -- I slam on the brakes. 12:13

11 Q When you say "high rate of speed," what type of

12 speed are you referring to?

13 A I probably -- this is just an estimation. I went

14 from zero miles an hour at this intersection to when I put

15 it into drive. I probably accelerated to 40 or 50 and 12:13

16 slammed on the brakes again. It's just an --

17 Q Estimate?

18 A An estimate.

19 Q And you slammed on the brakes at that point

20 because you got even with Mr. McDade? 12:13

21 A Yes.

22 Q Did you go slightly past him to try to cut him

23 off, if you will?

24 A No. I drew even with him.

25 Q What was your intention of drawing even with him 12:13

1 at that point? 12:13

2 A I wanted to catch him.

3 Q But if you slammed on your brakes and he kept

4 running, then what was your next plan?

5 A I don't know. It didn't happen. I probably -- 12:14

6 well, I may have gone on foot pursuit of him.

7 Q When you slammed on your brakes, was he still

8 running?

9 A Yes.

10 Q And how far would you say he was from your 12:14

11 driver's side window when you slammed your brakes and came

12 to a stop?

13 A It's just an estimate. I was in the middle of

14 Sunset, and it's fairly small street. There's cars parked

15 on the west curb and cars parked on the east curb. I think 12:14

16 it's theoretically supposed to be a two-lane road, but it's

17 not really. I was stopped in the middle there. So the

18 distance from -- I don't know -- from my door to him maybe

19 20, 25 feet.

20 Q Okay. You're in the street stopped. He's on the 12:15

21 sidewalk?

22 A Yes.

23 Q Does he stop at some point?

24 A Yes.

25 Q Does he stop after you stop? 12:15

1 A Yes. 12:15

2 Q When you slammed on your brakes, was there some

3 screeching of the tires at that point?

4 A I don't know. I don't know.

5 Q But you went from 40 or 50 to a complete stop? 12:15

6 A Yes.

7 Q In a relatively short period of time?

8 A Yes.

9 Q What happens next?

10 A I put the car into what I think is park. I see 12:15

11 Mr. McDade continue a few steps up the sidewalk, and then

12 he turns towards me.

13 Q So he would have had his right side to you, and

14 then he turns toward you to face you?

15 A Yes. 12:15

16 Q When he turns toward you to face you, do you see

17 a gun or anything that looks like a gun at that point?

18 A He's still grabbing his waistband. I still can't

19 see his hand.

20 Q So I take it you don't see a gun at that point; 12:16

21 is that correct?

22 A If you're asking if I saw the item metal, no, I

23 did not. I couldn't see his right hand though.

24 Q Did you see an object that looked like a gun to

25 you at that point? 12:16

1 A No. 12:16

2 Q How much time would you say passed from the time

3 you stopped your vehicle and the time you fired your first

4 shot?

5 A Maybe one and a half, two seconds. But I did not 12:16

6 shoot him. I didn't shoot at him as he was standing in the

7 sidewalk.

8 Q I understand that. I read your statement. I'm

9 trying to get a timing.

10 A Okay. 12:17

11 Q Do you believe you were the first one that shot?

12 A Yes.

13 Q In other words, you didn't hear Officer Newlen

14 shooting at him before you shot, did you?

15 A No. 12:17

16 Q You didn't hear any gunshots before you fired

17 your first shot, did you?

18 A No.

19 Q You didn't believe you were being shot at before

20 you fired your first shot? 12:17

21 A I thought he was maneuvering to take a shot.

22 Q Did you hear any shots that you thought were

23 being fired at you before you fired your first shot?

24 A No.

25 MR. GALIPO: This is a good time, Mr. Videographer? 12:17

1 You gave me a five-minute warning. We'll take a break 12:17

2 here.

3 THE VIDEOGRAPHER: This completes DVD 1, Volume I, of

4 Ofc. Matthew Griffin. We're going off the record at 12:17.

5 (A recess was taken.) 12:30

6 THE VIDEOGRAPHER: This is the beginning of DVD No. 2,

7 Volume I, in the continuing testimony of Ofc. Matthew

8 Griffin. We're back on the record at 12:30.

9 Q BY MR. GALIPO: Okay. So we're up to the point

10 where he's running up the sidewalk and you bring your 12:30

11 vehicle to a stop. Are you with me where we're at?

12 A Yes.

13 Q Now, didn't you kind of angle your car in front

14 of him to some extent?

15 A No. 12:31

16 Q Did you say in your statement that you angled

17 your car in front of him?

18 A I turned it slightly. It would be northwest. I

19 did not angle in front of him.

20 Q What I'm asking you is did you say in your 12:31

21 statement that you angled your car in front of him?

22 A I don't know what the statement says, sir.

23 Q Let me just show you. This is the bottom of, I

24 think, page 10, and I have it underlined. You can read it

25 to yourself for a moment, if you would like, the last 12:31

1 couple of lines and you can read a little before or after 12:31

2 if you want to put it in context.

3 A This is what that says, but I think there's

4 another part where I clarify. I can't -- if you're asking

5 if I drove up in front of him and cut him off with the car, 12:32

6 I know I didn't do that.

7 Q What I was asking -- there were two questions.

8 One whether you angled your car in front of him, and what's

9 your answer to that?

10 A I angled it -- if you were looking at Sunset, I 12:32

11 pointed it. Even though this is already northwest, I

12 pointed it a little slightly more northwest.

13 Q And my second question whether you said in your

14 statement that you angled your car in front of him.

15 A That's what that says. 12:32

16 Q It also indicates in your statement, "As he was

17 running, I get in front of him and hit the brakes." Is

18 that what you did? And I'll show you that reference too on

19 lines 15 and 16 on the same page.

20 A Yeah. That's what that says. 12:33

21 Q Is that what you did? You got in front of him

22 and hit the brakes?

23 A No. I drew even with him, and I was still in the

24 street. I know that may sound like I literally drove up

25 the sidewalk in front of him. I did not. 12:33

1 Q What I'm wondering if you actually passed him 12:33

2 where he was on the sidewalk and angled your vehicle and

3 then brought it to a stop.

4 A I don't know. I think I drew even with him. I

5 know it's a long statement. I certainly clarified it later 12:33

6 on, but that's what I said at that point, yes.

7 MR. GILBERT: You've answered. Thank you.

8 Q BY MR. GALIPO: So as you're bringing your

9 vehicle to a stop, you can see his right side?

10 A Yes. 12:34

11 Q You can see his right arm?

12 A Yes.

13 Q And then you're saying at some point he turns in

14 the direction of the driver's side of your vehicle?

15 A Yes. 12:34

16 Q And you can see his front at that point?

17 A Yes.

18 Q And in between -- did he stop momently? Meaning

19 Mr. McDade at that point?

20 A He stopped. Changed directions. 12:34

21 Q And from -- strike that.

22 And the last time you had seen your partner

23 Officer Newlen, he was running up the sidewalk?

24 A Yes.

25 Q In the direction of Mr. McDade? 12:34

1 A Yes. 12:34

2 Q And did you assume that he was continuing to run

3 up the sidewalk? Newlen?

4 A Yes.

5 Q And in between the time that you brought your 12:35

6 vehicle to a stop and the time you fired your first shot,

7 did you say anything to Mr. McDade?

8 A No.

9 Q Did he say anything to you?

10 A No. 12:35

11 Q Did he ever verbally threaten you, for example?

12 A No.

13 Q Did you ever say to him, "Put your hands up"

14 before you shot him?

15 A No. 12:35

16 Q "Let me see your hands"?

17 A No.

18 Q "Drop it"?

19 A No.

20 Q Did you yell out "gun"? 12:35

21 A No.

22 Q Did you give him any warning at all you were

23 going to shoot?

24 A No.

25 Q Did you hear anybody -- anybody else give him any 12:35

1 specific commands like Officer Newlen before you fired? 12:35

2 A No.

3 Q After bringing your car to a stop, what gear, if

4 you know, did you put it in?

5 A I know that I ended up actually putting it into 12:36

6 reverse.

7 Q How do you know that?

8 A Because it started rolling in reverse before I

9 exited the vehicle.

10 Q Well, if you know, was your car in reverse when 12:36

11 you fired your first shot, or do you think you put it in

12 reverse after you fired your first shot?

13 A No. I think I put it in reverse before I put --

14 before I fired my first shot.

15 Q So you believe your car was in reverse when you 12:36

16 fired all four of your shots?

17 A Yes.

18 MR. GILBERT: Are you asking does he believe now, or

19 did he believe then his car was in reverse at the time?

20 MR. GALIPO: The question was posed what he believes 12:36

21 now.


23 Q BY MR. GALIPO: And you believe that, in part,

24 because at some point, the car was rolling backwards?

25 A Yes. 12:36

1 Q And you believe that based on what you know now, 12:36

2 that you most likely put it into reverse before you fired

3 your shots?

4 A Yes.

5 Q And it was in reverse when you fired your four 12:37

6 shots?

7 A Yes.

8 Q So your window is down. You see Mr. McDade

9 initially about 20 or 25 feet from you on the sidewalk?

10 A About that, yes. 12:37

11 Q Why don't you give him a command?

12 A I don't have the time to give him a command.

13 Q And how close was he to the car when you shot

14 him?

15 A He was close enough that I could almost reach out 12:37

16 and touch him. He was about a foot and a half, two feet.

17 Q In this time frame in between him starting from

18 20 to 25 feet away to getting to two feet, you're saying

19 you didn't have any time to give him a command?

20 A I did not, no. 12:38

21 Q You are -- you do have training with respect to

22 giving commands; correct?

23 A Yes.

24 Q And is part of your training that one command you

25 may give under certain circumstances is to "Put your hands 12:38

1 up"? 12:38

2 A Yes.

3 Q Is that a command sometimes that is done for the

4 safety of the officers to make sure the person doesn't have

5 anything in their hands? 12:38

6 A Yes.

7 Q "Let me see your hands" may be a similar type of

8 command that you have training on?

9 A Yes.

10 Q "Freeze" or "Don't move" or "Stop" or "I'll 12:38

11 shoot" is that another series of commands that you've heard

12 before?

13 A Yes. I've heard those.

14 Q "Get down on the ground." You've heard that

15 before? 12:39

16 A Yes.

17 Q Now, is your car, then, at some type of angle on

18 the street, you believe, when you initially came to a stop?

19 A Yes. Only very slightly more northeast than the

20 street itself. 12:39

21 Q Okay. I'm going to show you another picture --

22 We'll mark this as Exhibit 4.


24 identification.)

25 Q BY MR. GALIPO: Do you know whether that shows 12:39

1 your patrol vehicle, or is that some other vehicle, if you 12:39

2 know?

3 A I think that's my vehicle. It's the one I was

4 riding that night.

5 Q All right. And is that where you think, in 12:40

6 general, you were on the street at the time you fired your

7 shots?

8 A In general, yes.

9 Q Okay. And are we looking at Sunset?

10 A I think so. 12:40

11 Q And is the photographer looking generally north

12 or northwest, I guess, as the street runs?

13 A Yes.

14 Q Are you saying that when you first stopped your

15 vehicle, that Mr. McDade was on the west sidewalk? 12:40

16 A Yes.

17 Q And can you even see the west sidewalk in this

18 particular photograph?

19 A I don't think so.

20 Q So he would have been off this photograph? 12:40

21 A I think so, yes.

22 Q So you're saying he then went from that position

23 and covered the distance all the way to get to a position

24 where you could touch him?

25 A Yes. 12:41

1 Q Was he going straight towards your door? 12:41

2 A Yes.

3 Q Did you ever think that he might be surrendering

4 at that point?

5 A No. 12:41

6 Q Well, he's coming straight towards your door;

7 correct?

8 A He was sprinting towards my door.

9 Q And you hadn't given him any commands up to that

10 point; true? 12:41


12 Q So what happens as he coming towards your door?

13 A He's --


15 Go ahead. 12:41

16 THE WITNESS: He's sprinting towards my door. He was

17 still holding the right side of his waistband with his

18 right arm with his right hand, and I still couldn't see his

19 hand. He ran up to my door.

20 Q BY MR. GALIPO: And then what? 12:42

21 A He started to -- I refer to as sliding laterally

22 back towards where the rear door along the driver's side

23 is.

24 Q Okay. As you see him coming towards your door,

25 do you at some point put your gun at him? 12:42

1 A Yes. Yes. 12:42

2 Q And when is it that you point your gun at him as

3 he's coming towards your door?

4 A I'm sorry?

5 Q You say at some point you saw him on the 12:42

6 sidewalk; true?

7 A Yes, sir.

8 Q And then at some point you're saying he's running

9 towards your door; is that correct?

10 A Yes. 12:42

11 Q Do you point your gun at him as soon as you see

12 him leaving the sidewalk going towards your door, or is it

13 somewhere in the middle of that?

14 A Somewhere in the middle of that.

15 Q And then after you point your gun at him, you say 12:42

16 he starts sliding towards the rear?

17 A Yes.

18 Q Did you consider he might want to be wanting to

19 get out of the line of your gun pointed at him?

20 A No. 12:43

21 Q You're saying that he got almost to where you

22 could touch him?

23 A Yes.

24 Q And as -- as he -- was he essentially in a

25 position just outside your driver's door initially when you 12:43

1 were pointing your gun and he was approaching the door? 12:43

2 A Yes.

3 Q And you think he got within how many feet of your

4 door?

5 A One and a half or two feet. 12:43

6 Q And when he got that close to your door, could

7 you see him from the waist down?

8 A What do you mean? Like from his waistband down?

9 Q Yes.

10 A I could still see his waistband. 12:43

11 Q You could?

12 A Yes.

13 Q So that wasn't blocked from your view?

14 A No.

15 Q And how were you positioned in your seat when he 12:43

16 was approaching your door and you could still see his

17 waistband?

18 A I was facing forward.

19 Q Towards the steering wheel?

20 A Yeah. My head was turned, but my body -- my body 12:44

21 wasn't turned.

22 Q Your gun was pointed at him?

23 A When he first started running, it was probably

24 turning the gear shifter, and then I probably brought it,

25 and then as he approached, I probably brought it above the 12:44

1 window line of the door. 12:44

2 Q Did you turn the shifter with the same -- with

3 your right hand that had the gun in it?

4 A Yes.

5 Q So you believe you came up what you believe now 12:44

6 put the car from drive to reverse and then pointed your gun

7 at him?

8 A Yes.

9 Q As he was approaching your door?

10 A Yes. 12:44

11 Q And so assuming you're sitting where you are now

12 you're in the driver's seat and your driver's side window

13 would be to your left, how did -- can you show me how you

14 had -- and we've got the video rolling -- how you had the

15 gun pointed as he was approaching the door. 12:45

16 A As he approached?

17 Q Right.

18 A It was like this.

19 Q And you were pointing at him?

20 A Yes. 12:45

21 Q And then you say he started -- I don't want to

22 mince your words. Sliding?

23 A Laterally.

24 Q Which would be towards the rear of the car?

25 A Yes. 12:45

1 Q Was he moving at that point out of the direction 12:45

2 your gun was pointed at him?

3 A Yes.

4 Q And then what happened?

5 A I fired. 12:45

6 Q Well, when he moved to the -- towards

7 the -- strike that.

8 Your car is a four-door car?

9 A Yes, sir.

10 Q Did he move in the direction of the rear door on 12:45

11 the driver's side?

12 A Yes.

13 Q Did he slightly go out of your view at that

14 point?

15 A Yes. 12:45

16 Q Did you fire when he was slightly out of your

17 view?

18 A I did.

19 Q And how did you fire when he was slightly out of

20 your view? How did you have the gun angled at that point? 12:46

21 A I followed what I thought what his path would be.

22 Q In essence, over your left shoulder?

23 A It was still sticking out the window.

24 Q Your gun was sticking out the window?

25 A Yes. But I didn't shoot the car. 12:46

1 Q Would it be fair to say you didn't want to shoot 12:46

2 the car?

3 A Yes.

4 Q You were intending to shoot him?

5 A Yes. 12:46

6 Q And so your gun is now out the window, and is it

7 pointing slightly back towards where the rear door would

8 be?

9 A Yes.

10 Q Okay. Now, you had last seen your partner 12:46

11 running up the sidewalk; correct?

12 A Yes.

13 Q Did you think in your mind as to you might be

14 shooting in the direction of your partner?

15 A At that moment, no. 12:47

16 Q At any moment?

17 A Yes. After I exited the vehicle.

18 Q Why did you think after you exited the vehicle

19 you might be shooting in the direction of your partner?

20 A I was concerned that I had shot him. 12:47

21 Q Why?

22 A Because he was in that same direction.

23 Q Did you think about that before you fired the

24 shots?

25 A No. 12:47

1 Q Now, when you fired the first shot -- I just want 12:47

2 to take this at that moment in time -- could you see

3 Mr. McDade?

4 A Yes.

5 Q What part of his body could you see when you 12:47

6 fired the first shot?

7 A It was probably from here down to just probably

8 his mid thigh.

9 Q Meaning about from his neck to his mid thigh?

10 A Yeah. Just from neck. 12:47

11 Q Which way was his body positioned relative to

12 your vehicle when you fired the first shot?

13 A His body was still facing my vehicle.

14 Q So you were looking at the left side of his body?

15 A I was looking at the front of his body. 12:48

16 Q Here's where I'm having difficulty, and it may be

17 just me. I'm imagining that he approaches the open

18 driver's window of the driver's door, and then it sounds

19 like you're saying he moved laterally to the rear door on

20 the driver's side; is that correct? 12:48

21 A Yes.

22 Q And you had to angle your gun backwards in order

23 to shoot him.

24 A Yes.

25 Q So it seems to me at this point you're not 12:48

1 looking directly at his front. You would be, I guess, 12:48

2 maybe looking at his front but at an angle?

3 A Yes.

4 Q Is that fair?

5 A Yes. 12:48

6 Q Could you see his right hand at the time you

7 fired the first shot?

8 A The time I fired the first shot, yes.

9 Q How about the time you fired the second shot?

10 A I don't know at what point I lost his view -- I 12:49

11 don't know in which succession whether it's between the

12 second and the first or the second and third or the third

13 and the fourth. I don't know when I lost view of him.

14 Q How far do you think he was from you when he

15 fired the first shot? 12:49

16 A Two feet.

17 Q Where were you aiming when you fired the first

18 shot?

19 A Center mass.

20 Q Which was where on him relative to where you 12:49

21 were?

22 A Just center mass.

23 Q Chest?

24 A Yeah.

25 Q Okay. From two feet away you were aiming center 12:49

1 mass first shot? 12:49

2 A Yes.

3 Q And you were pretty confident the first shot in

4 the sequence. Because I understand the other shots was

5 your shot. 12:49

6 A I'm sorry. Say that again.

7 Q I understand there were other shots were fired.

8 A Yes.

9 Q Which you now know were Officer Newlen's shots.

10 A Yes, I heard. 12:49

11 Q But in the sequence that you heard, were you

12 confident that the first shot fired was your shot?

13 A Oh, yes.

14 Q So the first shot you fired would be at the

15 center mass from about two feet away? 12:50

16 A Yes.

17 Q How about the second shot? Still aiming center

18 mass?

19 A Yes.

20 Q Still two feet away? 12:50

21 A At this point, he's still moving away from me.

22 The distance is increasing. I don't know how far he was.

23 Q Did you get the impression he might be trying to

24 get out of the gunfire?

25 A No. I didn't get that impression. 12:50

1 Q But you did get the impression that he was 12:50

2 approaching the open driver's window of your car. You had

3 your gun pointed at him, and he moved toward the rear?

4 A Yes.

5 Q Then you fired a shot, and he continued to move 12:50

6 towards the rear?

7 A I think he moved towards the rear, yes.

8 Q And then you fired. So at some point you could

9 no longer see his right hand; is that correct?

10 A Correct. 12:50

11 Q But you continued firing --

12 A Yes.

13 Q -- until you finished four shots in total?

14 A Yes.

15 Q Do you know where he was when you fired your 12:51

16 fourth shot?

17 A Still somewhere in the car near the car, but I

18 don't know exactly where.

19 Q Your training with respect to deadly force at the

20 academy, is it your training that deadly force is a last 12:51

21 resort?

22 A Yes.

23 Q Is your -- in your training and does post teach

24 that deadly force should only be used in the dire risk of

25 circumstances? 12:51

1 A Yes. 12:51

2 Q Is it your training that deadly force should only

3 be used when no other reasonable options are available?

4 A Yes.

5 Q Is it your training that a warning that deadly 12:51

6 force is going to be used should be given when feasible?

7 A I'm not sure what the exact policy says. If

8 possible, yes.

9 Q But is that your understanding that, if possible,

10 you should give a warning before using deadly force? 12:52

11 A If possible, yes.

12 Q And is the reason, based on your training, that

13 you should give a warning to give the person a chance to

14 comply before killing them?

15 A I'm not sure what the reasoning is. 12:52

16 Q Is it your understanding that with respect to the

17 use of deadly force, an officer is responsible to justify

18 every shot?

19 A Yes.

20 Q Now, do you have any training with respect to 12:52

21 background when using deadly force?

22 A Yes.

23 Q What's your training with respect to background?

24 A That --

25 MR. GILBERT: Vague. 12:52

1 Go ahead. 12:52

2 THE WITNESS: That you should be aware of what your

3 background is.

4 Q BY MR. GALIPO: What was your background as you

5 were firing the four shots? 12:53

6 A There was the west sidewalk of Sunset.

7 Q And were there homes on that sidewalk?

8 A Yes.

9 Q Was that the sidewalk that Officer Newlen was

10 running on? 12:53

11 A Yes.

12 Q Were you aware of your background as you were

13 firing?

14 A Yes.

15 Q Prior to Mr. McDade changing directions that 12:53

16 sounded somewhat when you stopped your vehicle, he stopped

17 and changed directions and ran towards your vehicle; is

18 that true?

19 A Yes. He changed directions towards my vehicle.

20 Q Was that the first time in your pursuit that you 12:54

21 saw him stop and change directions?

22 A No.

23 Q How many times before that had you seen him stop

24 and change directions?

25 A One other time. 12:54

1 Q Now, after your four shots did you hear other 12:54

2 shots?

3 A I did.

4 Q And how much time would you say passed between

5 your -- did you hear the other shots after your fourth 12:54

6 shot?

7 A I heard two shots after my last shot, yes.

8 Q You now know those shots were fired by Officer

9 Newlen; is that correct?

10 A Yes. 12:54

11 Q How much time would you say passed from your

12 first shot to your fourth shot?

13 A Second and a half, two seconds.

14 Q Was there any pause between your two shots?

15 A No. 12:54

16 Q Did you ever reassess the situation after one or

17 two shots or you just shot the four shots consecutively?

18 A Consecutively.

19 Q And how much of a pause was there from your last

20 shot to when you heard the shot or shots after that? 12:55

21 A They were consecutive. There was no pause.

22 Q Were you trained on the concept of contagious

23 fire?

24 A I know when it is, yes.

25 Q What's your understanding of what contagious fire 12:55

1 is? 12:55

2 A My understanding is if you fire, other people may

3 fire just because they hear you firing.

4 Q Were you trained on the concept of cross fire?

5 A Yes. 12:55

6 Q What is your understanding of what that is?

7 A It's when two people are facing each other, and

8 they shoot. They don't want to hit each other.

9 Q Now, what did you do immediately after you heard

10 all the shots? What did you do next? 12:55

11 A Well, I -- while I was firing, I was moving to

12 the passenger seat of my vehicle.

13 Q As you were firing your four shots, were you

14 moving towards the passenger seat?

15 A Yeah. 12:56

16 Q Well, I would assume if you were moving towards

17 your passenger seat and Mr. McDade was moving toward the

18 rear of your vehicle, he must have went out of your view at

19 some point.

20 A Yes. 12:56

21 Q Did he go out of your view as you were firing the

22 shots?

23 A Yes.

24 Q After the last shot you heard, what did you do

25 next? 12:56

1 A I sat up and exited my vehicle. 12:56

2 Q And what was Mr. -- strike that.

3 You want to have Anya step out for about ten

4 minutes? This might be a little --

5 You want to listen? 12:56

6 What was Mr. McDade's position when you got out

7 of the vehicle as you observed?

8 A He was to the rear of my vehicle. I think he was

9 somewhere around the area of the back bumper.

10 Q Was he on the ground? 12:57

11 A He was, yes.

12 Q What was his position on the ground? Was he on

13 the side? on the his back? Facedown? What do you recall?

14 A He was lying on his left side. He was facing

15 west. 12:57

16 Q Okay. Where was -- you could see his right hand

17 at that point?

18 A No. Still couldn't see his hands.

19 Q Still clutching his waistband?

20 A Yes. 12:57

21 Q Your testimony is from the time he started to run

22 throughout this pursuit, the time he approached your

23 vehicle when you initially shot him, and even after you

24 shot him, he's laying on the ground, and his right hand is

25 still clutching his waistband? 12:57

1 A Yes. 12:57

2 Q Do you know if anyone took a picture of that at

3 that point?

4 A No. I don't think anybody took a picture.

5 Q Did you see that his hand was somehow stuck to 12:58

6 his waistband?

7 A No. I mean I approached him but --

8 Q By the way, before you shot him, did you see

9 anything protruding from his body that you thought was a

10 gun? 12:58

11 A No, I did not.

12 Q So what do you do now? You get out of your car

13 and see him in that position. What do you give him next?

14 A I gave him commands.

15 Q Was that the first commands you gave him after 12:58

16 you shot him?

17 A Yes.

18 Q What were your commands?

19 A Something to the effect "Let me see your hands."

20 Q Why did you give him that command? 12:58

21 A Because I still couldn't see his hands.

22 Q And that's the command you give if you can't see

23 someone's hands?

24 A Yes.

25 Q And then what happened? 12:58

1 A I approached him and kneeled over him. 12:58

2 Q Where was Officer Newlen at that point?

3 A I think he was on the other side. So he was

4 directly across from me on the other side of Mr. McDade.

5 Q Did you see a gun anywhere on the ground? 12:59

6 A No.

7 Q Did you see a gun on his person or in his hand?

8 A No.

9 Q Was he patted down for weapons?

10 A Eventually, yes. 12:59

11 Q Any gun found to your knowledge?

12 A Not to my knowledge.

13 Q Any object found to your knowledge on his

14 waistband?

15 A No. 12:59

16 Q Did you ever see him put his hand in his pocket?

17 A No. Not in his pocket.

18 Q Did you ever -- and I'm going to ask you again to

19 make sure we're clear. Did you ever actually see his hand

20 inside of his pants like reaching down inside his pants? 12:59

21 A No.

22 Q Could you tell if he was still alive?

23 A He was making some sounds.

24 Q Could you tell if you struck him?

25 A I didn't know. I assumed so. I saw blood. 12:59

1 Q Were you curious after you shot him as to whether 01:00

2 or not he had a gun?

3 A Yes.

4 Q And did you find out that he did not have a gun?

5 A I found out that no gun was ever found. 01:00

6 Q Did you make a dispatch after shooting him?

7 A I tried. As it turns out, I listened to the

8 audio. It didn't go out. My radio broadcast was never

9 broadcast.

10 Q Now, when you got out of your car, if you know, 01:00

11 what gear was your car in?

12 A Reverse.

13 Q And how do you know that?

14 A Because it hit me in the back.

15 Q So the car is still moving back? 01:00

16 A I exited my vehicle. I kneeled over to check

17 Mr. McDade, and the car -- and the door that was still

18 open, hit me in the back.

19 Q Do you know if the car was moving backwards as

20 you were firing your shots? 01:01

21 A I know it was not.

22 Q You had your foot on the brake?

23 A Absolutely.

24 Q And once you took your foot off the brake, it was

25 idling afterwards? 01:01

1 A Yes. 01:01

2 Q Did the car also hit Mr. McDade?

3 A No.

4 Q Are you sure about that?

5 A Yes. 01:01

6 Q So, in any event, are you saying the open

7 driver's door hit you?

8 A It did.

9 Q And then Officer Newlen stepped in your car to

10 put it in park? 01:01

11 A Yes.

12 MR. GALIPO: Okay. I think this is a good time for a

13 lunch break. Is this a good time for everybody? Okay.

14 THE VIDEOGRAPHER: We're going off the record at 1:01.

15 (At the hour of 1:01 P.M., the proceedings were 02:04

16 adjourned for lunch.)

17 -oOo-

18 (At the hour of 2:07 P.M, the following proceedings

19 were had:)

20 THE VIDEOGRAPHER: We're back on the record at 2:07. 02:07

21 Q BY MR. GALIPO: Okay. Are you ready to proceed?

22 A Yes, sir.

23 Q Were you intending to detain Mr. McDade?

24 A My intention was to stop him, yes. To detain

25 him. 02:07

1 MR. GILBERT: Belatedly vague as to time. 02:07

2 Q BY MR. GALIPO: Up to the time that -- well, up

3 to the time you shot him, was your intention to detain him?

4 MR. GILBERT: Vague as to time. Forgive me. I'm just

5 referencing from the point. I think he testified earlier 02:07

6 regarding his initial thoughts when he first saw him.

7 Q BY MR. GALIPO: From the time you first saw him

8 all the way up to until you shot him, was it your intention

9 to detain him?

10 A Yes. 02:07

11 Q As part of your training when detaining someone,

12 is it your training that you have to try to do that to take

13 the suspect safely into custody?

14 A Yes.

15 Q What was your intent or plan at the time you 02:08

16 stopped your car? What were you intending to do next to

17 detaining him?

18 A My intent was -- stopping in that position was to

19 get even with him and then essentially box him in.

20 Hopefully, at that point, he would have given up, stopped, 02:08

21 and we could have talked to him, find out who he was.

22 Q Were you intending to also give him some command?

23 A Yes.

24 Q And what type of commands were you intending to

25 give him? 02:08

1 A "Stop. Put your hands up. Let me see your 02:08

2 hands," things like that.

3 Q Now, as I understand your testimony, when you

4 fired the first shot, Mr. McDade was facing towards the

5 driver's side of the car; is that correct? 02:09

6 A Yes.

7 Q And would he be more facing the area directly to

8 the rear door on the driver's side?

9 A No. He was facing me, the driver's door.

10 Q When you fired the first shot? 02:09

11 A Yes.

12 Q I thought I heard you testify before our break

13 that he had slid towards the rear before you fired the

14 first shot?

15 A He was in front of my door, and he was starting 02:09

16 to slide. So he was still in front of me. His chest was

17 still -- the front of his body was still facing the

18 driver's side.

19 Q Just so I have it correctly, did he start to

20 slide towards the rear before you fired your first shot? 02:10

21 A Yeah. But it was just as -- just as he started.

22 Q Now, at some point -- strike that.

23 At the time you fired your second shot, was he

24 facing or front of his body facing towards the rear of your

25 vehicle? 02:10

1 A I don't know. I don't think so, no. 02:10

2 Q At the time you fired the third shot, was the

3 front of Mr. McDade's body facing rear of your vehicle?

4 A I don't know.

5 Q At the time you fired the fourth shot, was the 02:10

6 front of Mr. McDade's body facing the rear of your vehicle?

7 A I don't know.

8 Q Did you ever see Mr. McDade in any type of

9 crouched position as you were firing the shots?

10 A No. 02:11

11 Q Did you hear Mr. McDade say anything after shots

12 were fired at any time?

13 A No, I didn't.

14 Q Who handcuffed him?

15 A I'm not sure who. Actually, I think Officer 02:11

16 Newlen did.

17 Q Did you observe Officer Newlen handcuffing him?

18 A Yes.

19 Q And how much time would you say passed from the

20 time you got out of your vehicle to the time Mr. McDade was 02:12

21 handcuffed?

22 A My estimate would be ten to five seconds.

23 Q And you indicated you did give him some commands

24 after you got out of your car?

25 A Yes. 02:12

1 Q And those commands were "Let me see your hands" 02:12

2 or something to that effect?

3 A Yes.

4 Q Any other commands that you can recall giving him

5 other than that? 02:12

6 A No.

7 Q And when he was handcuffed, would he have been

8 essentially chest down?

9 A When he was handcuffed, yes.

10 Q At some point you said you became concerned that 02:12

11 you may have shot in the direction of Officer Newlen?

12 A Yes.

13 Q When did you first have that concern?

14 A After I exited the vehicle and I think that the

15 point we had already handcuffed Mr. McDade, and I think I 02:13

16 asked Jeff if I had shot him.

17 Q You asked Jeff Newlen if you had shot him?

18 A Yes.

19 Q And why did you ask him that?

20 A Because I didn't know where he was when I fired 02:13

21 the shots.

22 Q And what did he tell you?

23 A He said he was not shot.

24 Q Who was the next officer on scene, if you know?

25 A It was Ofc. Joe Reinbold. 02:13

1 Q How much time would you say passed from the time 02:13

2 of the shots being fired to you seeing Officer Reinbold on

3 scene?

4 A Ten to 15 seconds.

5 Q Were you aware prior to firing your shots that 02:14

6 other officers were en route to assist?

7 A Yes. Yes.

8 Q And how were you aware of that based on your

9 training?

10 A I heard other officers inquiring about the call. 02:14

11 Q So it was your understanding other officers were

12 on the way?

13 A Yes.

14 Q And then within a very short period of time after

15 the shoot, you saw Officer Reinbold? 02:14

16 A Yes.

17 Q Are you familiar with the concept of containment?

18 A Yes.

19 Q What does that mean to you?

20 MR. GILBERT: Overbroad. 02:14

21 Go ahead.

22 THE WITNESS: I believe what you're referring to when

23 officers will be positioned around a certain area so they

24 contain whatever they're looking for inside of that area.

25 Q BY MR. GALIPO: Is that something you were trying 02:14

1 to establish some containment on Mr. McDade? 02:14

2 A I wasn't setting up a containment, no

3 Q Are you familiar with the concept called

4 perimeter?

5 A Yes. 02:15

6 Q What does that mean to you?

7 A To me it's the same thing. Setting up a

8 perimeter or setting up a containment. Same thing.

9 Q Did you have any information that any type of

10 helicopter was involved in the pursuit? 02:15

11 A No.

12 Q How long did you stay at the scene after the

13 shooting but before you went somewhere else? And I'm

14 including the scene to mean anywhere on that street.

15 A It was between five and probably ten minutes. 02:15

16 Q Where did you go from the scene?

17 A Off this street are you referring to?

18 Q Wherever you went, yes.

19 A Well, we were driven back to the station.

20 Q Who drove you back to the station? 02:16

21 A Corporal McKinney.

22 Q Was it just you and him in the vehicle?

23 A Me, him, and Officer Newlen.

24 Q Did you give a public safety statement at the

25 scene? 02:16

1 A Yes. 02:16

2 Q Who did you give that public safety statement to?

3 A Sergeant Dahlstein.

4 Q Do you know how to spell the last name?

5 A Yes. 02:16

6 Q I think you previously spelled it.

7 A I think I did.

8 Q Same spelling?

9 A I believe so.

10 Q Did you ever tell Sergeant Dahlstein at the scene 02:16

11 specifically that you shot Mr. McDade because Mr. McDade

12 was holding his waistband?


14 Q Did you tell any officer at the scene

15 specifically that you shot Mr. McDade because Mr. McDade 02:16

16 was holding his waistband?


18 Q Now, how long did you stay at the police station

19 after getting there from the scene?

20 A I think I stayed there from approximately 11:20 02:17

21 to 3:00 or 4:00 A.M.

22 Q And what were you doing there during that time?

23 A I was sequestered in a room with my criminal

24 lawyer and also with my representative, my union

25 representative. 02:17

1 Q And for how long were you in the room with your 02:17

2 criminal lawyer and your union representative?

3 A For about 11:20 till about 3:00 or 4:00.

4 Q At some point you gave a statement; is that

5 correct? 02:17

6 A Yes, sir.

7 Q And is that the transcription or the statement

8 you were referring to that you received earlier?

9 A Yes.

10 Q When did you give that statement? 02:17

11 A That was, I believe, sometime on Monday,

12 midmorning, I think.

13 Q I think you indicated that you believed the

14 incident happened on -- did you say Saturday?

15 A Yes, sir. 02:18

16 Q And so you would have been with your criminal

17 attorney and your union representative to, like, 3:00 or

18 4:00 in the morning. That would actually be on Sunday?

19 A Yes, sir.

20 Q Were you anticipating giving a statement at that 02:18

21 time?

22 A Yes.

23 Q And do you know why it was that you did not give

24 a statement at that time?

25 A I don't. 02:18

1 Q In any event, they told you to come back on 02:18

2 Monday?

3 A We were sequestered in a hotel until sometime

4 Sunday mid morning.

5 Q Who sequestered you, if you know? 02:18

6 A The Corporal McKinney was with us.

7 Q When you say "we were sequestered," who also was

8 sequestered?

9 A Officer Newlen.

10 Q And this was a hotel somewhere in Pasadena? 02:19

11 A Yes.

12 Q That would have been on Sunday?

13 A Yes, sir.

14 Q And then on Monday did you go back to the police?

15 A Yes. 02:19

16 Q Is that where your statement was taken?

17 A Yes.

18 Q How did you get from the hotel to the police?

19 A I think Corporal McKinney drove us.

20 Q When you gave your statement on Monday, who was 02:19

21 present for your statement?

22 A My criminal lawyer and the two detectives,

23 Detective Bzdigian and Detective Van Hecke.

24 Q And were you aware it was being recorded?

25 A Yes. 02:19

1 Q There's a reference to Audra Call? 02:20

2 A Yes.

3 Q Was that the attorney you're remembering?

4 A Yes, sir.

5 Q Is that the same person that came on the Saturday 02:20

6 night?

7 A Yes, sir.

8 Q Other than giving your public safety statement

9 and observing Mr. McDade being handcuffed, what else did

10 you do while you were at the scene before you left after 02:20

11 the shooting?

12 A Nothing. I was just on the parkway waiting.

13 Q Did you observe any casings from your gun

14 anywhere on the ground?

15 A I saw them initially in the vicinity of the car 02:20

16 but --

17 Q Do you know if any casings ended up in your car?

18 A I don't know.

19 Q You do recall seeing some casings, but you're not

20 exactly sure where? 02:21

21 A Correct.

22 Q Going back to the original call, did you have any

23 information that any shots had been fired?

24 A No.

25 Q Did you have any information that anybody had 02:21

1 been injured? 02:21

2 A No.

3 Q Were you concerned that the windows being up

4 might create a deflection in your bullet?

5 A Yes. 02:21

6 Q So one of the reasons you wanted to put the

7 window down when you fired, there would not be a

8 deflection?

9 A Yes.

10 Q Were you trying to push Mr. McDade down at some 02:23

11 point after the shooting to keep him because of the car

12 rolling backwards?

13 A I was trying to protect him, and I think I ended

14 up pushing him flat down. The car door hit me in the back,

15 and I fought against the door. 02:23

16 Q When you first got out of the car when you looked

17 at him initially, did you know if he had been shot or not?

18 A I didn't know.

19 Q You didn't shoot him when you got out of the car,

20 did you? 02:23

21 A No.

22 Q But you're saying you couldn't see his hands when

23 you got out of the car?

24 A Correct.

25 Q And you didn't see him when you saw him on the 02:23

1 sidewalk? 02:23

2 A No.

3 Q Why not?

4 A Because at that point he wasn't an imminent

5 threat to me. 02:23

6 Q I apologize. There's going to be a little pause.

7 I'm looking at my notes.

8 A That's okay.

9 MR. GILBERT: You need to stand up? You're okay?

10 THE WITNESS: It's okay. 02:24

11 Q BY MR. GALIPO: You reference in your statement

12 thinking about trying to box him in, is that what you were

13 thinking of trying to do?

14 A Yes, sir.

15 Q And you had been partners with Officer Newlen for 02:25

16 about how long before this incident?

17 A For the entire patrol year previous and then from

18 February to that point.

19 Q About a year and a half or so?

20 A Yes, sir. 02:25

21 Q Little over a year and a half?

22 A Yes, sir.

23 Q I don't know if you have a copy of your statement

24 handy if you don't. On the bottom of page 22, I'm going to

25 show you this, but I'm going to read this to you and maybe 02:26

1 you can explain this to me. 02:26

2 The detective says, "When you say he was

3 a little bit ahead of you, how far? How

4 many steps maybe?"

5 And you respond, "When he started running 02:26

6 back towards me, just a few.

7 Detective says, "A few steps?"

8 You say, "Yeah. Probably, you know,

9 between five, six, seven feet."

10 Take a look at that. It's at the bottom of 22 to 02:26

11 the top of 23 and see if you can tell what you were

12 referring to.

13 MR. GILBERT: You can if you want.

14 Q BY MR. GALIPO: Did you have a chance to look at

15 that? 02:27

16 A Yes, sir.

17 Q Do you know what you were referring to in that

18 reference?

19 A Yes, sir.

20 Q Can you please explain that. 02:27

21 A As he ran up the sidewalk, I pulled alongside of

22 him, slammed the car into park. His momentum -- something

23 carried him a few steps farther ahead of where I stopped my

24 car, and he turned toward me and ran back toward my car.

25 When he made that turn, he was five, six, seven feet in 02:27

1 front of where the front of my car was. 02:27

2 Q I see. Okay. Thank you for that. Did you at

3 any time see any muzzle flash coming from Mr. McDade?

4 A No.

5 Q In your statement you have a reference to "We 02:28

6 getting hit by the door." Do you know if Mr. McDade may

7 have also been hit by the door?

8 A It was my thought that, as this door dragged me,

9 it was also because I was kneeling over the top of him that

10 it would start to drag the both of us. I was afraid the 02:28

11 bottom of the door would hit him and drag him. In other

12 words, if I stood up and walked away, he would have been

13 dragged away.

14 Q Do you recall Mr. McDade saying, "Why did you

15 shoot me?" or words to that effect? 02:29

16 A I don't recall that.

17 Q Were the paramedics -- did they get there before

18 you left the scene?

19 A Yes. I think so.

20 Q Where were you when the paramedics got there, if 02:29

21 you recall?

22 A I think I was in the parkway.

23 Q In the parkway?

24 A On the parkway. I was being pulled away from the

25 scene. 02:29

1 Q Did you put one knee on top of him when he was on 02:29

2 the ground? Mr. McDade?

3 A Yes. It wasn't in a crushing fashion but --

4 Q Did some officer sometime after this shooting ask

5 you whether or not the guy, meaning Mr. McDade, had been 02:30

6 searched thoroughly?

7 A I think so, yes.

8 Q And you said, "No"?

9 A Correct.

10 Q Why would you not have searched him thoroughly if 02:30

11 you thought that he had a gun?

12 A I don't think there was that much time between

13 being asked that question and between when I -- when the

14 car had been put in park and we handcuffed him.

15 Q But wasn't the -- you referencing in your 02:30

16 statement an officer, you're not sure who came later 45

17 seconds later asked if he had been searched thoroughly?

18 A I think he was asking me, and I hadn't searched

19 him thoroughly.

20 Q You're saying there really wasn't enough time? 02:31

21 A Yes.

22 Q Did someone tell you and Officer Newlen to "chill

23 out" after this meeting?

24 A Yes.

25 Q Do you know who that was? 02:31

1 A I know we were sequestered off on the parkway by 02:31

2 Corporal McDonald.

3 Q When did you holster your gun again?

4 A I think prior to handcuffing Mr. McDade.

5 Q Did he appear to be moving to you when he was on 02:31

6 the ground?

7 A No.

8 Q You were asked in your statement about whether

9 you had -- whether you activated your spotlight, and you

10 indicated you didn't have an opportunity. Is that your 02:32

11 testimony? You didn't have an opportunity to activate the

12 spotlight?

13 A Correct.

14 Q And I think you've already indicated that at the

15 time of your statement, you did some type of a drawing 02:32

16 just, basically, showing where things were?

17 A Yes.

18 Q Did you ever see him reaching his waistband with

19 his left hand?

20 A No. Not that I can recall. 02:33

21 Q You said you responded. You estimated between

22 500 and 1,500 gun calls in your career?

23 A Yes, sir.

24 Q To your knowledge, were there any shots fired in

25 any of those calls? 02:34

1 A Yes. 02:34

2 Q By the police?

3 A Yes. Yes.

4 Q How many?


6 Q Do you have any estimate?

7 A I mean I don't have any accurate estimate.

8 Q Well, do you know more or less than three times

9 where officers actually fired shots?

10 A That officers actually fired shots that I 02:34

11 responded myself?

12 Q That you responded. You told us earlier, I

13 think, you responded either as assisting or primary on gun

14 calls between 500 and 1,500 times?

15 A Yes. 02:35

16 Q My specific question out of those calls that you

17 responded, how many times, to your knowledge, did police

18 officers fire?

19 A Oh, officer-involved shootings?

20 Q If any. 02:35

21 A I don't know. Just a few maybe. I don't know

22 for sure.

23 Q Maybe two or three or something like that?

24 A That would probably be accurate.

25 Q Did you have a bullet-proof vest on? 02:35

1 A Yes, sir. 02:35

2 Q When did you first learn that Mr. McDade had

3 died? Was that while you were at the scene or sometime

4 after?

5 A While I was at the station. So between 11:20 and 02:36

6 3:00 or 4:00.

7 Q Now, at the time of your statement -- and I'll

8 show you this reference. You were asked specifically what

9 he was wearing whether it was a long-sleeve shirt or

10 short-sleeve shirt, and you couldn't remember. Is that 02:36

11 accurate?

12 A I believe so.

13 Q I'll show you this is on page 68. I don't know

14 if it was a long-sleeve shirt or short-sleeve and then the

15 detective says, "It's fair to say you don't remember 02:36

16 exactly what he was wearing," and that's correct?

17 A Yes, sir.

18 Q At least on the Monday when you were asked if he

19 had a short-sleeve shirt or long-sleeve, would it be fair

20 to say you don't recall? 02:37


22 Q Do you ever recall Officer Newlen saying anything

23 in between the time he got out of the car and the time of

24 the shots?

25 A I think he asked for the guy to show him his 02:37

1 hands or "Let me see your hands," something to that effect. 02:37

2 Q Was that before the shots or after?

3 A I'm sorry. After the shots.

4 Q So from time he got out till the time of the

5 shots, did you hear Officer Newlen say anything? 02:37

6 A I didn't hear, no.

7 Q If it's okay, we'll take a short break, and I'm

8 going to confer with Ms. Harper and see how we're going to

9 proceed with the rest.

10 THE VIDEOGRAPHER: We're going off the record at 2:38. 02:38


12 THE VIDEOGRAPHER: We're back on the record at 2:54

13 P.M.

14 Q BY MR. GALIPO: Did you at any time -- at any

15 time see both of Mr. McDade's hands on his waistband? 02:54

16 A Both on his waistband? No, sir.

17 Q You indicated that you saw his hand at or

18 clutching his waistband. His right hand; correct?

19 A Yes.

20 Q Did you ever see at any time before you shot that 02:55

21 hand coming away from his waistband?

22 A No.

23 Q Did you ever see at any time before you shot that

24 hand going further in his waistband?

25 A No. 02:55

1 Q I'm going to ask you about a few of the prior 02:55

2 complaints.

3 A Sure.

4 Q Some of this was exchanged in discovery. I'm not

5 going to spend a lot of time on it, but I just have a few 02:55

6 questions, and I'll try to identify the complaint just to

7 jog your memory.

8 A Yes, sir.

9 MR. GILBERT: Just for the record, I would object to

10 any detailed examination. I have no problem with 02:56

11 superficial discussion of it. If we need to get into more

12 detail, we can talk about it when we get there.

13 MR. GALIPO: That's fine.


15 MR. GALIPO: You're welcome. 02:56

16 Q First of all, are you aware that there had been

17 some complaints lodged against you as a police officer?

18 A Yes, sir.

19 Q Was one of them relating to the shooting of a

20 dog? 02:56

21 A I wasn't aware of a complaint.

22 Q Did you shoot a dog at some point?

23 A Yes, sir.

24 Q And was that before or after this incident?

25 A Before. 02:56

1 Q Was there an incident where you and Officer 02:56

2 Newlen had to use some force taking someone into custody

3 and there was some complaint about that?

4 A At what point? I'm not doubting it, but I don't

5 know to what you're referring. 02:57

6 Q Let me ask you this: Do you have an estimate as

7 to how many times you and Officer Newlen had to use force

8 to take someone into custody? Take someone into custody?

9 MR. GILBERT: Vague as to "force."

10 MR. GALIPO: Yes. That's a fair objection. 02:57

11 Q Anything more than just handcuffing? I mean

12 punching, kicking, taser, pepper spray, baton.

13 MR. GILBERT: Are you excluding or including pain

14 compliance technique?

15 MR. GALIPO: I'll include that for purposes of this 02:57

16 question.

17 THE WITNESS: Including control holds or no?

18 Q BY MR. GALIPO: Not control holds.

19 A I don't recall ever being partnered with him and

20 striking somebody or kicking somebody or using a baton or 02:58

21 anything like that. I use control holds.

22 Q Okay. When there is a complaint filed against

23 you. If you know, is it brought to your attention in some

24 way by the department?

25 A I don't know if it's an official -- if there's an 02:58

1 official notice. 02:58

2 Q Were you aware that there had been several

3 African-Americans that had filed complaints against you?

4 MR. GILBERT: Vague. Misstates evidence.

5 Go ahead. 02:59

6 THE WITNESS: I know of one for sure, but that wasn't

7 with Officer Newlen. I don't know. That was from quite a

8 number of years ago.

9 Q BY MR. GALIPO: The African-American complaint

10 that you're thinking of is which one? 02:59

11 A I think it was sometime in 2007. Maybe it was at

12 the outset of our dash cam technology. I know that because

13 it was caught on tape the entire episode. That was with a

14 different officer.

15 Q What happened in that incident just basically? 02:59

16 A We pulled a car over for having, I believe, was

17 broken taillight or broken brake light, and the gentleman

18 was most unhappy with our traffic stop, and he complained

19 on us.

20 Q The shooting of the dog, what happened with that? 03:00

21 A I responded to a -- I haven't read this report or

22 refreshed myself, but I responded to some kind of a call of

23 a dog being loose, a large dog, and I got to the area. I

24 saw the dog. I was friendly with the dog. It actually

25 came up, jumped up on me in a friendly manner, and its head 03:00

1 was at about chest height. One of its paws, actually, tore 03:00

2 the grip on my duty gun that day.

3 I tried to escort the dog. I tried to entice it

4 back in my car until animal control arrived. Somebody was

5 walking their two little dogs down the sidewalk and decided 03:01

6 to watch me and try to entice this dog into my backseat,

7 but my idea was put it in the backseat and until animal

8 control could come and deal with the situation. I threw

9 Doritos in my backseat I had handy. The dog refused. He

10 saw these little dogs on the side of the street. He went 03:01

11 from the No. 2 lane of -- I think was No. 2 lane -- of

12 southbound San Gabriel. I think it was across the No. 2,

13 the No. 1. The No. 1 and No. 2 of northbound and he

14 attacked one of these dogs.

15 But the owner refused to let go, and I was afraid 03:01

16 the large dog that I was there for was going to attack the

17 human being, the owner, and so I discharged my weapon

18 twice.

19 Q Did you strike the dog?

20 A Yes. 03:02

21 Q To your knowledge, did the dog die?

22 A Yes.

23 Q Did the dog ever actually attack the owner?

24 A No.

25 Q Now, there's a complaint of a Mr. Johnny Turner. 03:02

1 Does that ring a bell? There was some incident where it 03:02

2 was reported that a gentleman may have locked his

3 girlfriend outside the apartment and was inside with a

4 child and a gun, and then there turned out to be no gun,

5 but he complained that you or other officers present had 03:03

6 pointed a gun to his head?

7 A I'm not familiar with that name. Can you give me

8 a date maybe or location?

9 Q Sure. Let me see May 4, 2007, at 586 East

10 Washington Boulevard, Apartment No. 3. 03:03

11 A That doesn't ring a bell. I'm sorry.

12 Q Okay. Do you sometimes have to give an interview

13 to internal affairs when requested?

14 A For internal affairs investigation, yes, sir.

15 Q Yes. 03:04

16 A I think I've been there once.

17 Q With respect to this particular shooting incident

18 with Mr. McDade, were you in any way disciplined?

19 A No, sir.

20 Q Did you receive any retraining as a result of 03:04

21 this incident?

22 A No, sir.

23 Q Did you ever go back to the scene and do a

24 walk-through?

25 A No, sir. 03:05

1 MR. GALIPO: Okay. I think that's all the questions I 03:05

2 have at this time, but I believe Ms. Harper is going to

3 have some questions.

4 THE VIDEOGRAPHER: You want to switch seats or hand

5 her the mike? 03:06

6 MR. GALIPO: Sure. I can hand her the mike.

7 THE VIDEOGRAPHER: It's long enough.

8

9 EXAMINATION

10 BY MS. HARPER 03:06

11 Q Officer, you need a break?

12 A No. I'm fine. Thank you.

13 Q Officer, you gave us a statement March, 2012,

14 regarding this incident to Detectives Van Hecke and

15 Bzdigian. 03:06

16 A Bzdigian.

17 Q And were you sworn in prior to giving that

18 statement?


20 Q Can you state today that everything you said on 03:06

21 that date was true and correct under the penalty of perjury

22 in the state of California? Can you swear to that?

23 MR. GILBERT: Overbroad. If you want to give him the

24 transcript and let him read and go sentence by sentence, we

25 can take at time, but I will remind you the deposition is 03:07

1 one day of seven hours. Do you want him to go through and 03:07

2 read every sentence and say whether it's truthful?

3 Q BY MS. HARPER: Have you had an opportunity to --

4 there's a notice of errata. There's some changes that have

5 been made; correct? 03:07

6 A Yes, I see this.

7 Q There's some handwritten notations in that

8 document. You can peruse through it if you like. There's

9 some handwritten delineations and corrections. I'd like

10 you to tell me did you make those changes or someone else 03:07

11 to your knowledge?

12 MR. GALIPO: For example, there's some on page 14 if

13 that helps.

14 THE WITNESS: What page? Is that in terms of

15 transcription? 03:07

16 Q BY MS. HARPER: I think it's handwritten 14.

17 A What's this number down here?

18 MR. GILBERT: Section 6, 176.

19 THE WITNESS: This here. There is my handwriting.

20 This, this, and this is not. 03:08

21 Q BY MS. HARPER: Do you know who may have made

22 other corrections to that document?

23 A I don't know.

24 Q Are the corrections to the document correct to

25 your knowledge? 03:08


2 Q BY MS. HARPER: The ones you did not make.


4 THE WITNESS: You mean on this page or every page?

5 Q BY MS. HARPER: Well, let's start with that page. 03:08

6 MR. GILBERT: Are you asking if there's a correct

7 transcription, or are you asking if it's a correct

8 statement?

9 Q BY MS. HARPER: Are the corrections a correct

10 statement of how you remember it? 03:08

11 A In looks right.

12 Q And if you flip to the front of the first page,

13 there's a chart there, and if you flip through the first

14 few pages there, did you have an opportunity to compare

15 that chart with certain corrections to the actual document 03:09

16 when it was completed?

17 A You know, I've never compared this errata sheet

18 to the document.

19 Q So you've never had a chance to review those

20 alleged corrections that were made by you and someone else? 03:09

21 A I was asked to compare my audio to what I saw,

22 and this came sometime afterwards.

23 Q Okay. Did you have any notes with you when you

24 were giving your statement on that date?

25 A No, ma'am. 03:09

1 Q Did you review anything prior to giving the 03:09

2 statement on that date?

3 A The night of I listened to the audio tapes like I

4 stated earlier.

5 Q And you listened to the radio traffic prior to 03:10

6 giving the March statement to Huntington Court Reporters?

7 A I listened to that the morning after. It

8 happened on a Saturday. I probably listened to it Sunday

9 morning 11:20 P.M. 3:00 or 4:00 A.M., and I gave the

10 statement just to the detectives on Monday. 03:10

11 Q So you had an opportunity to hear some of the

12 evidence before giving a statement; right?

13 A Yes, ma'am.

14 Q Now, you have a B.S. in micro-cellular --

15 A Bachelor's of the arts. 03:11

16 MR. GILBERT: Wait until she finishes the questions.

17 Q BY MS. HARPER: Tell me again. Sounds so high

18 tech. I'd like you to restate it.

19 A It was technically submolecular, cellular

20 environmental biology. 03:11

21 Q Was that in preparation to be a doctor or

22 scientist or what?

23 A At that point, I wanted to be a scientist Ph.D.,

24 something along those lines.

25 Q Why did you become a police officer? 03:11

1 A Because I tried to live that lifestyle, the Ph.D. 03:11

2 lifestyle, and found it was very difficult. Lots of

3 laboratory time.

4 Q You didn't like being indoors?

5 A I was looking at microscopic worms and things 03:11

6 like that.

7 Q And then -- but police officers kind of like

8 polar opposite. What made you choose law enforcement?

9 A Well, I joined the Navy first, and there was the

10 kind of lifestyle that I liked. Active and busy. 03:12

11 Q But in the Navy you weren't military police. You

12 were a --

13 A Intelligence.

14 Q Intelligence. So paperwork there too; correct?

15 A Less so than what would have been Ph.D. 03:12

16 Q Did you ever play any sports in high school?

17 A Yes, ma'am.

18 Q What sport?

19 A Played football.

20 Q What position? 03:12

21 A Lineman.

22 Q Okay. Were you the same size about now as you

23 were then?

24 A Yeah. Roughly.

25 Q Any other sports? 03:12

1 A I wrestled for a short while. Played one season 03:12

2 of baseball.

3 Q What position?

4 A Pitcher.

5 Q Okay. Do you have any martial arts training? 03:12

6 A No.

7 Q Do you have any other type of hand-combat

8 training?


10 Go ahead. 03:13

11 THE WITNESS: I have what little I got in the Navy and

12 then from the sheriff's department, everything from the

13 Pasadena Police Department, and then I've taken a few

14 courses on my own.

15 Q BY MS. HARPER: What courses on your own? 03:13

16 A They're handgun courses.

17 Q Oh, handgun. Not specifically towards a weapon

18 but hand-to-hand combat, weaponless combat training.

19 A No.

20 Q What training did you get in the Navy? 03:13

21 A It was how to manipulate, and, I guess, shoot an

22 M6.

23 Q But no physical -- not talking about weapons.

24 A Oh, I'm sorry. No.

25 Q In the academy did you learn about the escalation 03:13

1 of force at all? 03:14

2 A Yes.

3 Q And sometimes when they taught you about the

4 escalation of force, what is your understanding with regard

5 to the use of deadly force? 03:14


7 Go ahead.

8 THE WITNESS: I should use only the force that's

9 reasonable. I don't have to necessarily go step by step on

10 the force chart. 03:14

11 Q BY MS. HARPER: Okay. While you were driving,

12 you pulled your handgun out of your holster while you were

13 driving?

14 A Yes, ma'am.

15 Q Is that correct? 03:14

16 A Yes, ma'am.

17 Q Were you seat belted in at the time?

18 A At the time, no.

19 Q And you carry Safariland holster. You wear

20 Safariland holster? 03:15

21 A Yes, ma'am.

22 Q Which is not directly around your belt like a

23 traditional belt. It hangs a little lower?

24 A Yes, ma'am.

25 Q It's not exactly easy to extract your handgun 03:15

1 from a seated position in a driver's seat; is that correct? 03:15

2 A Actually, my disposition such that it's easier to

3 do.

4 Q If you're sitting down and yours is a little bit

5 on your thigh, the Safariland is going to be on your thigh, 03:15

6 not your hip; correct?

7 A Correct.

8 Q And how long would you say it took you to extract

9 your handgun from your holster while you were driving?

10 A Less than a second. 03:15

11 Q What was the imminent harm just before you

12 extracted your handgun from your holster? What was the

13 imminent danger that caused you to withdraw that handgun?

14 A I thought Mr. McDade had a firearm and that if he

15 chose to stop and turn around and shoot, then I would at 03:16

16 least have an opportunity to fire back.

17 Q So at the time Mr. McDade's back is to you and

18 he's running away from you, but you felt that your life was

19 in great danger at that time?

20 A I was a worried that he had a handgun and may use 03:16

21 it, yes.

22 Q With his back to you?

23 A His back was to me at that moment, but that

24 doesn't mean that he couldn't stop.

25 Q Did you have the ability to stop as well if he 03:16

1 stopped? 03:16

2 A I could have stopped the car, yes.

3 Q And you had contemplated if you had to shoot him,

4 the projectiles would not go through the window of your

5 car. So you rolled the window down; correct? 03:16

6 A Yes.

7 Q So you were preparing for having to shoot him;

8 correct?

9 A The possibility, yes.

10 Q And in your preparation, how long did you take to 03:17

11 prepare for that decision?


13 THE WITNESS: I don't known what you mean, ma'am.

14 Q BY MS. HARPER: How many seconds did it take you

15 to prepare for the decision to extract your handgun? 03:17


17 THE WITNESS: As soon as I saw him start running.

18 Q BY MS. HARPER: Away from you?

19 A Away from me with his hand on his waistband and

20 swinging the other arm. I felt that he may have had a gun 03:17

21 so then I removed my handgun.

22 Q So a few seconds?

23 A As soon as saw him dart across the

24 intersection -- not the intersection, the street.

25 Q Just prior to that extraction of your handgun, 03:17

1 would it have been possible for you to reach and hit your 03:17

2 siren or your lights before the extraction of your handgun?

3 A It would have been possible, but at that point he

4 was already running and was already grabbing his waist.

5 Q What's your primary concern as a police officer? 03:18

6 What's your primary duty?

7 A Preserve life.

8 Q And this shooting happened in a residential area;

9 correct?

10 A Yes. 03:18

11 Q And were you chasing -- you had gotten a call of

12 a 211 that just occurred two minutes ago; correct?

13 A Armed 211.

14 Q Armed 211. And the suspects were running in a

15 residential area; correct? 03:18

16 A Yes, ma'am.

17 Q You thought Mr. McDade was a dangerous man with a

18 gun; correct?

19 A Yes.

20 Q Would you feel it that it was your duty to 03:18

21 protect citizens in the community to alert them the police

22 are here and they're chasing someone that we feel is

23 dangerous, wouldn't alerting them with lights and sirens

24 give them a heads up to either get cover, go inside, or do

25 something in your mind? 03:19

1 A In my experience, no. That's not the best way. 03:19

2 Q Okay. So when you're driving Code 3 and to and

3 in general you've driven Code 3 lights and sirens; right?

4 A Yes, ma'am.

5 Q What do you mean the people to do when you 03:19

6 activate lights and sirens?

7 A My purpose is to get vehicles to move to the

8 side.

9 Q For their safety; correct?

10 A Yes. And so that I can drive past them. 03:19

11 Q But also for their safety to get out of the way;

12 right?

13 A Yes.

14 Q You mentioned in your statement that you've never

15 been through that particular alley before? 03:19

16 A Yes.

17 Q The one that you hit?

18 A Correct.

19 Q And that alley you say you spilled out into

20 Sunset. Did you use the word "spill out"? 03:19

21 A I think I did.

22 Q Now, that's a sidewalk; correct?

23 A Yes.

24 Q And you didn't have lights and sirens on when you

25 were accelerating towards Mr. McDade; correct? 03:20

1 A That's correct. 03:20

2 Q What about the possible pedestrian that could

3 have just been innocently walking on the sidewalk? Would

4 that have jeopardized their safety?

5 A That's why I had slowed down as I exited the 03:20

6 alley and that's why he increased his distance from us.

7 Q Do you not feel it was a duty to alert the

8 pedestrians and the residents in the neighborhood that

9 there was an active chase for a potential felon going on?

10 A That's not how I would alert people. That's not 03:20

11 the primary or that's not why I used the lights and sirens.

12 I don't use that to alert pedestrians or residents.

13 Q What do you use?

14 A I don't go door to door. Depending on the

15 situation, we would have dispatch call and do a reverse 03:20

16 call to a geographical area.

17 Q When you're in a foot pursuit dispatch, doesn't

18 have time to do a reverse. It's something that's happening

19 pretty rapidly; correct?

20 A Yes, ma'am. 03:21

21 Q That alleyway that you had the accident in and

22 there was a sidewalk when you spilled out onto

23 Sunset Avenue, could you not have gotten on your PA and

24 said, "Police. Stop running." Could you not have made

25 that announcement prior to extracting your handgun? 03:21

1 A No, ma'am. 03:21

2 Q Why not?

3 A Because my right hand was on my handgun. I

4 thought he had a gun, and if he decided to stop, turn

5 around and use it, I would have had a microphone in my hand 03:21

6 instead of my gun.

7 Q Prior to extracting your handgun, could you have

8 told him -- well, let me strike that.

9 Is there a possibility he didn't know you were a

10 police officer? 03:22

11 A I mean I don't know what he was thinking.

12 Q Are you familiar with drive-by shootings?

13 A I know what they are, yes.

14 Q And sometimes people drive by and chase people

15 down and, in fact, it's happened in Pasadena with just this 03:22

16 past year where people have driven by and have shot people

17 through a vehicle; correct?

18 A I think so. I'm not sure.

19 Q Yes. Okay. So to distinguish you as a peace

20 officer from someone who may be a drive-by shooter in the 03:22

21 northwest area, how would Mr. McDade know that he needed to

22 stop for you?

23 A I think that he saw my car at least three times

24 that I know of, and he saw it from the side and then from

25 the front and the side again and the other side, and I was 03:22

1 in a marked unit with the light bar and spotlights and the 03:23

2 black and white.

3 Q In your --

4 MR. GILBERT: Were you done answering?

5 THE WITNESS: Yes. 03:23

6 Q BY MS. HARPER: In your statement you said you

7 didn't use your spotlight; correct?

8 A Correct.

9 Q So your spotlight was not on.

10 A I was not referring to it being on. I was 03:23

11 referring to it being on the car.

12 Q But if it's not on in the street, you described

13 in your statement as being a dark street; correct?

14 A Yeah. There's still visible light. You could

15 still see them. 03:23

16 Q You're referring to the visible light as being

17 the intersection of Orange Grove and Sunset?

18 A It was that too, yes.

19 Q And the shooting occurred in the area of 751 and

20 753 Sunset; correct? 03:23

21 A Uh-huh.

22 Q Which is about a football field away from the

23 light of Orange Grove and Sunset?

24 A Yeah.

25 Q The front of your car is black and the back of 03:24

1 your car is black. You are -- you have no red lights or 03:24

2 sirens or anything on to say I'm the police. What notice

3 did you give Mr. McDade that he was required to stop for

4 you and you were detaining him?

5 A I didn't give him any notice. 03:24

6 Q Okay. Now, also in your statement -- well,

7 actually, on direct with Mr. Galipo you specifically said

8 that you did not -- it was not your intent to cut him off

9 to cut off Mr. McDade when you drove next to him and you

10 passed Officer Newlen. You said that today; correct? 03:25

11 A Yes.

12 Q Okay. Can you turn to page 171 -- 00171. Okay

13 if you look at the bottom of the page at line 21, why would

14 you tell Mr. Galipo today it was not your intent to cut him

15 off, however, in March you said, quote, "my intent is to 03:25

16 cut off the suspect"?

17 A I used probably not the best English. I could

18 have described this as not -- I wanted to catch up to him,

19 but I didn't want to physically put the car in front of him

20 to cut him off and cut off his path. 03:26

21 Q Can you see how it would be two different things

22 that you have said? One thing in March and then a

23 different thing today?

24 A If somebody read this, but I believe I clarified

25 it later on. 03:26

1 Q So your intent was to cut off Mr. McDade while he 03:26

2 was running; correct?

3 A No. Well, can you elaborate? Do you mean was I

4 to drive up in front of him and block his path? Is that

5 what you're asking me? 03:26

6 Q Well, you tell me.

7 A No. That was not my intent.

8 Q So the statement you gave in March is incorrect?

9 A I did not mean to cut him off with the car and

10 block his path. 03:26

11 Q So the statement that you gave in March is

12 incorrect?

13 MR. GILBERT: He's answered the question, and he told

14 you he's clarified it later in the statement. If you want

15 to look at the entirety of his statement and take all the 03:27

16 references to that and put it together in front of him, you

17 can ask him all of them in their entirety. If you want to

18 take one sentence out of context and ask him if it's

19 represented the entire statement, you can do that, but at

20 this point it's asked and answered. 03:27

21 Q BY MS. HARPER: So your intent was not to cut off

22 Mr. McDade when you drove past your partner, and you turned

23 northwest?

24 A What do you mean by "cut off"?

25 Q What do you mean by it when you said it in March? 03:27

1 A I meant to drive up to where he was. Alongside. 03:27

2 Q Okay. You described Mr. McDade as sprinting;

3 correct?

4 A Yes.

5 Q Very fast? 03:27

6 A Yes.

7 Q Is it -- are you saying you were going to drive

8 parallel with him and then do what?

9 A As I said earlier, potentially get out of my car

10 to continue the foot pursuit. 03:28

11 Q If he's sprinting, you were going to drive

12 parallel with him and then think you can get out of your

13 car and catch him if he was going that fast?

14 A At that point he had been running for a fairly

15 long distance. People tire out. 03:28

16 Q But he was still out running your partner; right?

17 A But I had not yet been running.

18 Q So why didn't you get out of your car and engage

19 in a foot pursuit?

20 A Before I had the opportunity to exit my vehicle, 03:28

21 he ran up to the door.

22 Q Well, sir, isn't it true you put your vehicle in

23 front of Mr. McDade and, in fact, caused him to run into

24 your car?

25 A No. 03:28

1 Q Isn't it true that you shot him at point blank 03:28

2 range just below his navel?

3 MR. GILBERT: Vague as to "point blank range."

4 Q BY MS. HARPER: Isn't it true you shot him at

5 point blank range at your driver's side door as you made 03:29

6 your turn northwest?

7 MR. GILBERT: Same objection. Vague as to point blank

8 range.

9 THE WITNESS: What turn?

10 Q BY MS. HARPER: When you drew parallel to him, 03:29

11 you made a slight turn to the northwest -- correct? -- and

12 slammed on your brakes?

13 A Slammed on the brakes.

14 Q Right. And Mr. McDade ran into your car;

15 correct? 03:29

16 A He diverted his path, stopped, and ran towards my

17 car, and I fired at point blank range.

18 Q You put yourself in his running path, and then

19 you shot him; correct?

20 A No. 03:29

21 Q Now, you and your partner have done scenarios and

22 talked about various scenarios and plans that you would do

23 if certain situations such as this arise; correct?

24 A Yes.

25 Q So that you have practice; right? 03:30

1 A So that we would know what would happen. 03:30

2 Q And you know what the other is going to do?

3 A Yes.

4 Q So there's no split-second decision making. You

5 already know what you're going to do; right? 03:30


7 Go ahead.

8 THE WITNESS: One would hope we would do that.

9 Q BY MS. HARPER: Okay. And taking out your

10 handgun, that wasn't a split-second decision because you 03:30

11 had been driving for -- how long would you say you were

12 driving with one hand on your steering wheel and the

13 handgun in the other hand?

14 A Since I first started running.

15 Q Estimate the time, please, sir. 03:30

16 A I think I estimated earlier if the entirety

17 between 30 and 60 seconds somewhere in there.

18 Q So that wasn't a split second. You didn't have a

19 second to make that decision to take your handgun out;

20 right? 03:31

21 A That was a split-second decision.

22 Q To take your handgun out was a split-second

23 decision?

24 A To keep it out was a decision I made as long as

25 his hand was hidden. 03:31

1 Q So to keep it out was a calculated decision; 03:31

2 correct?

3 A I decided to keep it out.

4 Q As opposed to holstering and getting on the radio

5 and calling for additional units and giving the direction 03:31

6 of travel; correct?

7 A I chose to keep my handgun out, yes.

8 Q You could have chosen to reholster and radio the

9 other units your location so that a perimeter could have

10 been established; correct? 03:31

11 A It's possible I could have done that.

12 Q That would have been a lower level of force

13 rather than shooting him; correct?

14 A It would have been lower.

15 Q You could have instructed your partner to get on 03:31

16 the radio and give a location of the foot pursuit, could

17 you not?

18 MR. GILBERT: Vague as to time.

19 Q BY MS. HARPER: While you were chasing

20 Mr. McDade? 03:32

21 A It was my assumption at the time he had done

22 that.

23 Q Why would you need to assume if you're in the

24 same car?

25 A He got on the radio and picked it up and started 03:32

1 talking into it. I thought that broadcast had come out. 03:32

2 Q And it had not to your knowledge?

3 A Listening to the audio after the fact, it had

4 not.

5 Q Did you hear helicopters during your pursuit 03:32

6 overhead?

7 A No.

8 Q And at no time did you see any bulges on

9 Mr. McDade's waistband at all; correct?

10 A It was obscured by his hand. He was grabbing his 03:32

11 waist.

12 Q Prior to extracting your .45 caliber handgun

13 which is the highest level you're allowed to carry;

14 correct?

15 A Yes. 03:32

16 Q That's the largest, most powerful caliber you're

17 allowed to carry at your police department; correct?

18 A Yes.

19 Q Prior to extracting your .45, did you not have

20 the ability to illuminate the area with a spotlight to give 03:33

21 a cursory view of Mr. McDade to see if you could visually

22 see any weapons on him at all? Could you have done that?

23 A I could have, but my headlights were on him.

24 Q And in answering to the question with regard to

25 the spotlight, does a spotlight give a more directed view? 03:33

1 A Yes. 03:33

2 Q That's why they put them on the police cars;

3 right?

4 A To illuminate things, yes.

5 Q So prior to extracting the highest caliber 03:33

6 weapon, you're allowed to carry, could you not have

7 illuminated Mr. McDade a little bit more to see if, in

8 fact, he was just holding his pants up or holding an

9 object? Didn't you have that choice, sir?

10 A No. He was running already by that point. He 03:33

11 started running and grabbed his waistband.

12 Q You testified earlier you got between 5 and

13 20 feet of him. When you were within 5 to 20 feet of him,

14 you did not have the option to fully illuminate him to see

15 and just try to see better if he had a weapon on him? 03:34

16 A No.

17 Q Why?

18 A Because he ran directly from my car.

19 Q Your spotlight doesn't go beyond five feet?

20 A It does. 03:34

21 Q So why didn't do you it?

22 A Because I was concerned that he was coming to

23 kill me.

24 Q He was coming to kill you?

25 A Yes. 03:34

1 Q As he ran from you while you were in a vehicle? 03:34

2 A As he ran at my car.

3 Q Okay. I'm talking about while you're chasing

4 him --

5 A Okay. 03:34

6 Q -- and his back is to you, you had prior to

7 extracting a .45 caliber handgun and driving with one hand

8 on the wheel and a gun in the other, the gun hand could not

9 have been on a spotlight spotting his visual clothing for

10 bulges or weapons? Could you not have done that? 03:35

11 A No, ma'am. He was in full sprint.

12 Q Could he sprint faster than your vehicle, sir?

13 A At certain points he was traveling faster than my

14 car.

15 Q How is that? 03:35

16 A When I had to stop to make turns within that

17 alley, when I had to stop at the sidewalk of the east

18 sidewalk of Sunset as I spilled out of the alley as I

19 turned onto Sunset.

20 Q Do you have any idea why you didn't request your 03:35

21 partner to illuminate Mr. McDade with his spotlight?

22 A He was doing what he thought was best, and I was

23 doing what I thought was best.

24 Q What was he doing?

25 A At one point he was on the radio making a 03:35

1 broadcast. 03:35

2 Q In the academy you're trained to multitask;

3 correct?

4 A Yes.

5 Q Did you go to Bob Bondurant school of driving? 03:36

6 A I don't know who that is.

7 Q Did you go to driving school that teaches you how

8 to do high-speed driving chases?

9 A Yes, ma'am.

10 Q And you learned how to talk on the radio, run the 03:36

11 siren and do multiple things while you're in the car;

12 correct?

13 A Yes.

14 Q You're not an average citizen. You're allowed to

15 talk on the cell phone, radio. You're allowed to talk on 03:36

16 the radio, run your siren, and drive the call 100 miles an

17 hour -- correct? -- if you need to?

18 A I wouldn't do those things in concert, no.

19 Q I bet you if someone shot one of your partners,

20 you would chase them at 100 miles an hour, wouldn't you? 03:36

21 MR. GILBERT: Speculation.

22 THE WITNESS: I rarely drive 100 miles an hour. It's

23 very dangerous.

24 Q BY MS. HARPER: Okay. You're taught in the

25 academy to multi-task; correct? 03:36

1 A Yes. 03:36

2 Q So you were saying that your partner was doing

3 what he thought was best. What was he doing at the time

4 you were chasing Mr. McDade with Mr. McDade's back to you?

5 What was your partner doing? 03:37

6 A At one point he was making a radio broadcast.

7 Q And then what?

8 A And then he was following -- or he was keeping an

9 eye on Mr. McDade.

10 Q Keeping an eye illuminated with the spotlight? 03:37

11 A I don't know.

12 Q You don't know if you saw a spotlight?

13 A I don't know if he activated his spotlight.

14 Q Would the spotlight not be visible if turned on?

15 Wouldn't it be visible to you too? 03:37

16 A I might not have perceived it.

17 Q Did you get tunnel vision or something?

18 A No. I was looking at things like sidewalks and

19 streets and Sunset, Orange Grove.

20 Q So are you to say if your partner turns on his 03:37

21 spotlight, you don't know when it's on?

22 A I may not perceive it, ma'am.

23 Q What kind of spotlights are these?

24 A I don't know if you're asking for manufacturer.

25 I don't know. 03:38

1 Q These are supposed to illuminate things more than 03:38

2 your headlights; right?

3 A Yes.

4 Q If your partner turns a spotlight on and you

5 can't tell if it's on or not, I'm just trying to ask you 03:38

6 what kind of spotlight is this?

7 A I may not have been looking where the spotlight

8 was pointing if it was on. I was looking at the sidewalk

9 and the streets.

10 Q Were you looking at the sidewalks and the 03:38

11 streets?

12 A Uh-huh. Yes.

13 Q With the gun in the hand and the steering; right?

14 A That's where they were, yes.

15 MS. HARPER: I'm going to save some tape and pause for 03:38

16 a hot second here 335 just so I can set something up for

17 the screen.

18 THE VIDEOGRAPHER: Do you want me to go off?

19 MS. HARPER: Yes. If we could go off the record. I

20 need to save this time. 03:39

21 THE VIDEOGRAPHER: We're going off the record at 3:39.


23 THE VIDEOGRAPHER: We're back on the record at 3:40.

24 Q BY MS. HARPER: It's almost better on the

25 ceiling. Now, I'm looking at discovery that's been given 03:40

1 from defense COP002184(1). 03:40

2 Officer, can you tell me who that person is

3 depicted there?

4 A I think that's me.

5 Q Okay. Officer, let me see if I can go on the 03:41

6 ceiling. Officer, can you tell me who that is?

7 A I think that's me.

8 Q Is that the night of the incident?

9 A I don't know.

10 Q You don't know? 03:41

11 A I don't know.

12 Q Were pictures taken of you the night of the

13 incident?

14 A Yes, ma'am.

15 Q If I turn my computer around and give you a 03:42

16 better view, can you tell if that's you the night of the

17 incident?

18 A That's me. I mean I don't know if it's me that

19 night.

20 Q Okay. All right. 03:42

21 And Madam Court Reporter, if you could record

22 what is being played.

23 THE REPORTER: I need a verbal.

24 MS. HARPER: I'm going to give it to you. I just want

25 you to record. 03:43

1 (An audio clip is played.) 03:43

2 THE REPORTER: Excuse me. I can't get this. I'm

3 sorry. I can't understand it.

4 MS. HARPER: Okay. This is -- if you can't get it,

5 you don't have to get it. For identification purposes this 03:44

6 is COP002533.

7 Q And Officer Griffin, I'm going to ask you if this

8 is what you heard the night -- do you need to take a break

9 since you're talking to your attorney? Would you like a

10 break? I'm going to ask you if this is the call that you 03:44

11 heard the night of the incident. Okay? And I'll put it a

12 little closer to you since there's no actual -- there's

13 just music symbols, and I don't have a picture on here.

14 (A audio clip is played.)

15 MS. HARPER: I'm going to pause it at five minutes and 03:50

16 49 seconds.

17 Q First, Officer, did you hear a voice that said,

18 "Units at Orange Grove and Sunset. You're going to have to

19 open that up for the RA"?

20 MR. GILBERT: Objection. To the extent that the 03:51

21 playback was poor quality done on small speaker and

22 difficult to hear.

23 You can answer.

24 THE WITNESS: I heard that.

25 Q BY MS. HARPER: Can you in layman's terms explain 03:51

1 what that means. 03:51

2 A That means at that point and I don't know who

3 said it sounded like -- okay. I was just saying if there

4 were units that had blocked that intersection off, that

5 they would need to allow the RA to make it's way through. 03:51

6 Q And to your knowledge did the RA, which is the

7 paramedics; correct?

8 A Yes.

9 Q Were they allowed to make their way through that

10 intersection? 03:51

11 A To the best of my knowledge, yes.

12 THE VIDEOGRAPHER: Maybe after this question?

13 Q BY MS. HARPER: Did you see their truck make

14 their way through, or did they have to get out on foot and

15 make their way through? 03:51

16 A I can't recall clearly, but I think I remember

17 their actual RA, I think, being south of where my car was.

18 Q So you believed that the actual truck was allowed

19 to make their way through the intersection of Orange Grove

20 and Sunset? 03:52

21 A I remember a vehicle. I'm not sure if it was

22 their engine or was their RA.

23 Q And last question before you take your break

24 there. When yourself and your partner were asked to go

25 chill out on the curb, how close in proximity were you 03:52

1 chilling out? 03:52

2 A I don't know.

3 MR. GILBERT: Close to each other or close to the

4 site?

5 MS. HARPER: Yeah. Close to each other. 03:52

6 THE WITNESS: We were separated by 15, 20 feet.

7 Q BY MS. HARPER: And directly after the shooting,

8 did you speak to each other immediately after the shooting?

9 A About what?

10 MR. GILBERT: Vague. 03:52

11 Q BY MS. HARPER: Immediately after the shooting,

12 did you say anything to Officer Newlen?

13 A Yes, we did.

14 Q Okay. And immediately after Officer Reinbold

15 arrived, did you continue to talk to Officer Newlen? 03:53

16 A We were asking whether or not he was handcuffed

17 or needed to be handcuffed.

18 Q After McDade was handcuffed, did you continue to

19 talk with Officer Newlen?

20 A No. 03:53

21 Q You said nothing else to Officer Newlen after

22 Mr. McDade was handcuffed?

23 A I probably asked him, "Are you okay?"

24 Q Did you ever say, "I thought that mother fucker

25 was going to shoot me"? 03:53

1 A Not that I recall, no. 03:53

2 Q Did you ever use the words "mother fucker" that

3 evening?


5 MS. HARPER: You want to take a break? 03:53

6 THE VIDEOGRAPHER: We're off the record at the 3:53.

7 This is the end of DVD No. 2.


9 THE VIDEOGRAPHER: This is the beginning of DVD No. 3,

10 Volume 1, in the continuing testimony of Officer Matthew 04:04

11 Griffin. We're back on record at 4:04 P.M.

12 Q BY MS. HARPER: Officer Griffin, the tape that

13 you just heard, do you recognize that?

14 A Yes, ma'am.

15 Q Was that the dispatch tape that you heard the 04:04

16 evening of March 24, 2012?

17 A Yes, ma'am.

18 Q Did you recognize your own voice on there?

19 A I didn't.

20 Q Did you recognize the call that went out 211 just 04:04

21 occurred two minutes ago?

22 A Yes, ma'am.

23 Q Did you recognize any voices on there?

24 A I recognized several. I recognized --

25 Q I'll narrow it down. Did you hear your partner 04:05

1 go in a foot pursuit? 04:05

2 A Yes.

3 Q What did you hear him say?

4 A He gave the direction of travel and description

5 of the subject. 04:05

6 Q And did you hear that simultaneously as that was

7 occurring? Did you hear it that night on your own radio?

8 A I knew he was putting out a broadcast. I didn't

9 pick up the fine details. I only got the location and

10 direction. 04:05

11 Q No. When he was actually saying it, were you

12 hearing it as he was running while you were in the car?

13 A Yes.

14 Q And at that time you were catching up to

15 Mr. McDade while he was putting out the broadcast? 04:05

16 A Yes.

17 Q Now, you say that Mr. McDade just ran into your

18 car; is that correct?

19 A He ran at my car.

20 Q And he sprinted toward your car; correct? 04:06

21 A Yes.

22 Q And please define what you mean to convey when

23 you say, "sprint." You can use your motions since you're

24 on video. What do you mean when you say "sprint"?

25 A He ran very quickly from the sidewalk to my 04:06

1 driver's door. His left arm was still swinging. His right 04:06

2 hand was still grabbing his waist, his waistband, the right

3 side.

4 Q And you never saw that right hand elevate at any

5 time; correct? 04:06

6 A Correct.

7 Q That right hand stayed where it was all the way

8 up until the point you shot him; correct?

9 A Correct.

10 Q And you shot him because why? 04:07

11 A Because I thought he was going to get behind me

12 and shoot me in the back of the head.

13 Q Was there a chance that he could have been

14 injured on the right side? Did you consider that?

15 A I did not. 04:07

16 Q Was there a chance that he was coming to you for

17 help? Did you consider that?

18 A I did not.

19 Q In the broadcast did you hear black male with the

20 black hat, black shirt and black pants? Did you hear that 04:07

21 on the tape?

22 A I heard that on this tape, yes, I did.

23 Q And Mr. McDade had on a white cap; isn't that

24 true?


1 Q Do you not recall? 04:07

2 A I don't recall.

3 Q Now, after you shot Mr. McDade the first time,

4 you feared for your safety; correct?

5 A Yes. 04:08

6 Q The second time you still feared for your safety

7 even though you could not see him; is that correct?

8 A Yes.

9 Q Why?

10 A Because I thought he was behind me maneuvering to 04:08

11 shoot me.

12 Q Was your car still working after you shot from

13 inside the car?

14 A Define working.

15 Q Drivable. 04:08

16 A I was stopped. I assume it was working.

17 Q Okay. So after your first shot, the imminent

18 threat is over, why didn't you put it in drive and drive

19 off?

20 MR. GILBERT: Misstates evidence. 04:08

21 THE WITNESS: I didn't know my imminent threat was

22 over.

23 Q BY MS. HARPER: Okay. You couldn't see him any

24 longer; correct?

25 A Correct. 04:08

1 Q Okay. Why didn't you put your car in drive and 04:08

2 drive off and drive down further down the block?

3 A Because I didn't know if he was still behind me

4 about to shoot me.

5 Q So you're just randomly shooting behind you over 04:08

6 your shoulder. Partner be damned; right?

7 MR. GILBERT: Misstates evidence.

8 THE WITNESS: I don't think randomly is the right

9 word.

10 Q BY MS. HARPER: Well, you didn't know who was 04:09

11 behind. You couldn't see if he was pulling a weapon, and

12 you had the ability to move to a more secure location and

13 you chose not to. Why did you choose not to move?

14 A It's not correct. I knew who was behind me.

15 Mr. McDade was behind me. 04:09

16 Q Why did you choose not to move your car?

17 A That moment that he was behind me, there was a

18 split second. I didn't have the opportunity to put the car

19 into drive before I would have been out of the line of

20 fire. 04:09

21 Q All you had the opportunity to do was unload the

22 most powerful weapon that your department is allowed to

23 carry; correct?

24 A I don't know that my weapon is the most powerful.

25 I fired four times. 04:09

1 Q Okay. And that's all you could have done. 04:10

2 There's nothing else in your realm of possibility that you

3 have done?

4 A That's correct.

5 Q And you could not have put your car in drive and 04:10

6 drive forward?

7 A Not quickly enough.

8 Q Why?

9 A To get out of harm's way.

10 Q Why? 04:10

11 A Because the speed of a gun -- the speed of a

12 bullet is faster than the speed of me putting my car in

13 park -- I am in drive.

14 Q You did not even see a gun. You saw nothing.

15 A I thought he had a gun. 04:10

16 Q The only firing -- the only shots you heard were

17 your own prior to Mr. Newlen shooting. So after you

18 dispersed one bullet, cranking it in the drive and peeling

19 out of there, that was an option; correct?

20 A No. 04:10

21 Q Why?

22 A Because I didn't know if Mr. McDade was still

23 behind me.

24 Q You continued to shoot him as he was falling;

25 correct? 04:10

1 A I don't know what he was doing. 04:10

2 Q Okay. Do you know where the locations of his

3 wounds were?

4 A No.

5 Q Do you know the trajectory of the bullets of his 04:11

6 wounds?

7 A I don't.

8 Q Has anyone informed you do you have any knowledge

9 that the trajectory of the bullets are going downward?

10 A I don't know that. 04:11

11 Q Were you shooting downward out of your window?

12 A Not to the best of my knowledge.

13 Q Were you shooting upward out of your window?

14 A No.

15 Q Which direction were you shooting? 04:11

16 A Behind me and what I thought was center mass.

17 Q Okay. And if the center mass was sliding along

18 the rear of your car getting lower, that means you were

19 shooting downward; correct?

20 A If that's what the trajectory says. 04:11

21 Q Have you seen any autopsy photos in conjunction

22 with this case?

23 A I have not.

24 Q Now, you jumped out of the car, and you were so

25 concerned about this weapon that you immediately did a pat 04:12

1 search to get the weapon that you believed he had; right? 04:12

2 A Are you asking me what I did as soon as I left

3 the car?

4 Q No. I'm saying you were so concerned about

5 Mr. McDade having a weapon that you immediately jumped out 04:12

6 of the car and made sure he didn't have a weapon in his

7 waistband; correct?

8 A No.

9 Q But you were so concerned about this that you had

10 to shoot him four times. So that was your immediate -- you 04:12

11 had to get to that weapon; right?

12 A I went to Mr. McDade.

13 Q And you continued to have him at gunpoint?

14 A Yes.

15 Q Even though you couldn't see his hands? 04:12

16 A That's why I had him at gunpoint.

17 Q So he could have shot you, and you wouldn't have

18 seen what his hands were doing. Why would you not do a

19 immediate pat-down of the waistband area immediately?

20 A I didn't understand your question. 04:13

21 Q Immediately upon exiting the vehicle, why

22 wouldn't you immediately pat down the area in which you

23 were so concerned about his waistband?

24 A I covered that distance. I traversed that

25 distance to Mr. McDade covering him at gunpoint. Then the 04:13

1 car hit me in the back that took my focus off of his hands, 04:13

2 and as soon as I could, we handcuffed him.

3 Q No. Prior to the car hitting you in the back,

4 you put your left knee on the lower part of Mr. McDade's

5 body and one hand on his shoulder; isn't that true? 04:13

6 A No.

7 Q Didn't you have his blood on your left pant leg?

8 A I believe it was on my right.

9 Q You had enough time to get on him. You weren't

10 just kneeling over him. You were on him with your body; 04:13

11 isn't that true?


13 THE WITNESS: I traversed the distance. I had my gun

14 trained on him. I put my -- I think it was my left hand on

15 his shoulder, my right -- I'm sorry -- my left knee just on 04:14

16 the other side of his back because I couldn't see his

17 hands, and at that point the door hit me in the butt.

18 Q BY MS. HARPER: Now, with your left hand why not

19 pat the area that you were so concerned about that caused

20 you to shoot him? Why not pat that area immediately? 04:14

21 A Being hit with the door and being near him

22 happened almost simultaneously.

23 Q Well, it didn't quite happen simultaneously

24 according to your statement, did it?

25 A I saw the car rolling back, and it hit me in the 04:14

1 back. 04:14

2 Q Well, you had enough time to say, "Let me see

3 your hands" before the door hit you in the back; isn't that

4 true?

5 A That's as I walked back to him. 04:14

6 Q You walked back to him?

7 A Yes.

8 Q Okay. You didn't run back to him?

9 A I don't think I did. I think I exited the door,

10 and I pointed my gun at him. I told him to let me see his 04:15

11 hands, and I moved back towards him. I don't think I ran

12 towards him. I don't know.

13 Q That's a couple seconds in between there;

14 correct?

15 A Yes. 04:15

16 Q How many seconds would you estimate?

17 A I don't know.

18 Q Three to five?

19 A Yeah.

20 Q Can you give me an estimate? 04:15

21 A I don't know. Between two and five seconds.

22 Q Okay. Two and five seconds. How long would it

23 take to do a cursory search of the waistband?

24 A I was getting hit by the door, ma'am.

25 Q You hadn't gotten hit by the door yet though. 04:15

1 You had enough time it get on him and give him instructions 04:15

2 and walk back to him before the door hit you; correct?

3 A From the time I was kneeling over him to when I

4 got hit by the door, it was nearly simultaneous.

5 Q Okay. And you were hit by the door because why? 04:15

6 A Because my car I had left it in reverse instead

7 of park, and I had exited the door. I left the door open,

8 and as it moved back, I was still in the path of the door.

9 That's how close we were to the car, and it hit me.

10 Q And it not only hit you, it hit you, and you fell 04:16

11 on top of him, and the door hit him as well?

12 A I don't think it hit him.

13 Q Didn't you give a statement saying he was

14 initially on his left side, and then he was on his stomach

15 probably because the door hit him? 04:16

16 A Probably because I pushed him while I fought the

17 door.

18 Q So not only did you shoot him four times, you let

19 the car run over him too; right?

20 A No, ma'am. 04:16

21 MR. GILBERT: Misstates evidence.

22 THE WITNESS: The car did not roll over him. In fact,

23 I broke the door, I think.

24 Q BY MS. HARPER: Because you were trying to

25 protect him; right? 04:16

1 A Yes. 04:16

2 Q And you were so concerned about protecting him

3 that you immediately initiated first aid efforts on him;

4 correct?

5 A I didn't even have an opportunity to. 04:16

6 Q You didn't have an opportunity to or chose not

7 to?

8 A I did have not the opportunity.

9 Q Isn't it true that you said it was all bloody?

10 He was all bloody, and you did not administer aid when you 04:17

11 gave your statement March 26, 2012? Didn't you say it was

12 blood all over, and you did not administer any first aid?

13 Yes or no?

14 A Can I see it?

15 Q I just want to know if you recall saying that. 04:17

16 A I don't know if those are my words exactly. If

17 you can point them out.

18 Q Was there a lot of blood on Mr. McDade after you

19 shot him?

20 A There was a blood. 04:17

21 Q Was there a lot of blood?

22 A I don't know if I characterize it that way. I

23 don't recall.

24 Q Do you recall saying that Officer Newlen came

25 over and put the car in park and got gloved up quickly? 04:17

1 A I don't believe those two things happened because 04:17

2 of one another.

3 Q I didn't ask that part. I just asked if you

4 recall saying that.

5 A He did put the car in park later on. He did put 04:17

6 his gloves on.

7 Q And you didn't have your gloves on; correct?

8 A I did not.

9 Q Okay. And you didn't administer aid, did you?

10 A At that time I was pushing his elbows together so 04:18

11 we could handcuff him.

12 Q But my question was you didn't administer aid,

13 did you?

14 A No.

15 Q You didn't try to stop any of the bleeding 04:18

16 wounds, did you?

17 A No.

18 Q Why?

19 A I did not have an opportunity. Other officers

20 arrived, and they pulled us away from the scene. 04:18

21 Q What were the public safety questions you were

22 asked?

23 A I don't know what they were. I can read them for

24 you, but I don't know what they were.

25 Q You don't remember -- 04:19

1 A No. 04:19

2 Q -- what they were, and you characterize yourself

3 as being stuck in the car like a sitting duck?

4 A Yes.

5 Q So in some way you felt Kendrec had you stuck in 04:19

6 the car and you were a sitting duck?

7 A At various times, yes.

8 Q How many times? You say "various."

9 A One that I can remember when I was in the alley

10 and, number two, when I was sitting in the car, and he was 04:20

11 running at me.

12 Q His back is to you, and he's running from you,

13 and you have a .45 with two magazines, and your partner has

14 .40 caliber, and you're the sitting duck?

15 A Yes. 04:20

16 Q Do you remember the paramedics arriving?

17 A Not specifically, no.

18 Q Did you hear Kendrec say, "Why did they shoot

19 me"?

20 A I don't recall that. 04:20

21 Q Have you ever been in any hand-to-hand fights

22 with detainees or suspects on your tenure during your

23 tenure as a police officer?


25 THE WITNESS: What do you mean by "hand-to-hand"? 04:21

1 Q BY MS. HARPER: Have you had to throw down? 04:21

2 Fight? Fists?

3 A I don't think I actually punched somebody or

4 kicked somebody. I've used control holds, wrestled with

5 people to the ground and get them in handcuffs but no 04:21

6 throw-down or punches.

7 Q And you never used your baton on duty?

8 A I have but not on a person, no.

9 Q What did you use it on?

10 A Kicking garbage, open doors. 04:21

11 Q In six years you never hit anybody with a baton?

12 A I have not.

13 Q And you've never tasered anybody?

14 A I never actually deployed the taser, no.

15 Q So you just know how to shoot; right? 04:22

16 A I knew how to do all those things.

17 Q Did you put handcuffs on Mr. McDade?

18 A No.

19 Q Who did?

20 A I think it was Officer Newlen. 04:22

21 Q And when you were questioned by Detective

22 Bzdigian --

23 THE REPORTER: What was it? I'm sorry.

24 MS. HARPER: B-z-d-i-g-i-a-n.

25 Q -- he asked you on page 194, "Did you have an 04:23

1 opportunity to search him, or did you search him at the 04:23

2 time?"

3 Your answer, "We started handcuffing him. I

4 think I rolled him over a little but, you know, like there

5 was blood everywhere, and he was handcuffed, and I didn't" 04:23

6 -- "I didn't do a search."

7 Do you recall saying, "There was blood

8 everywhere"?

9 A Yeah. I see that.

10 Q So was there blood everywhere? 04:23

11 A That's what I said at the time, yes.

12 Q Do you independently recall that today?

13 A I remember blood. I don't remember being

14 everywhere.

15 Q This would be more accurate since it happened -- 04:24

16 you gave that report after the incident?

17 A That's right.

18 Q Okay. And on page 196 in the middle part of the

19 page, Detective Van Hecke says, "Okay. Did you talk to

20 Jeff about what occurred?" 04:24

21 And your attorney objects and says, "I think

22 you're getting into administrative stuff now."

23 Have you talked to Jeff about what -- Officer

24 Newlen about what occurred?

25 A No. 04:24

1 Q Still to this day? 04:24

2 A I haven't gone into the particulars, no.

3 Q Have you gone into anything about it?

4 A We talk about the broad strokes but not the

5 details. 04:25

6 Q What broad strokes?


8 Q BY MS. HARPER: At any time?

9 A Not before this interview.

10 Q After this interview and before this deposition. 04:25

11 A Yeah. We talked about it.

12 Q What have you talked about?

13 MR. GILBERT: Excluding any conversations with legal

14 counsel.

15 THE WITNESS: Just what had happened. 04:25

16 Q BY MS. HARPER: So you've discussed what happened

17 that night together?

18 A Not in the minutia, yeah -- or not including

19 minutia but, yes.

20 Q Did you come to some agreement about what he saw 04:25

21 and did versus what you saw and did?

22 A No, ma'am.

23 Q Did anyone ever tell you not to discuss the

24 incident with each other?

25 A I think somebody probably said that. I don't 04:25

1 know, but I know I wasn't going to discuss it with him, and 04:25

2 I know he wasn't going to discuss it with me.

3 Q You just said you have discussed it in broad

4 strokes.

5 A Prior to this interview and for some time after 04:26

6 we haven't.

7 Q But now you have?

8 A Now we have.

9 Q Has anyone ever came to you and say, "Now it's

10 okay to discuss the incident"? 04:26

11 A No.

12 Q So you decided that on your own; right?

13 A I mean no one ever told us not to, I guess.

14 Q You just said someone did?

15 A At the time somebody probably said something 04:26

16 about not discussing it. We never discussed it. We never

17 made any stories or anything.

18 Q But no one has come and gave you the clear

19 litigation is still going on here; right? Yes?

20 A It appears so, yes. 04:26

21 Q And so no one has ever come back and said, "Hey.

22 You guys can discuss what happened and get your stories

23 together"?

24 A Nobody has ever said that.

25 Q How many times would you say you've talked to 04:27

1 Officer Newlen about this incident? 04:27

2 A I don't know.

3 Q Estimate, please.

4 A Maybe a couple. Maybe.

5 Q Okay. And has -- can you give me an idea what 04:27

6 specifically has been said?

7 A I said I was glad I didn't end up shooting him.

8 Pretty sure he was glad he didn't shoot me. I mean I don't

9 know what you're really asking for, I guess.

10 Q No one said that you were sorry that you actually 04:27

11 killed an unarmed person though; right?

12 A I didn't say that, and I don't think he said it.

13 Q Are you sorry you killed an unarmed person?

14 A I can't answer that for you.

15 Q Not for me. Are you sorry you killed an unarmed 04:28

16 teenager?

17 A I'm telling you I don't have an answer for you.

18 Q As you sit here today, do you care that you

19 killed a 19-year-old kid without a weapon?

20 MR. GILBERT: He's answered the question that he 04:28

21 cannot answer it. It's now argumentative.

22 MS. HARPER: It's not.

23 THE WITNESS: I told you I don't have an answer for

24 you, ma'am.

25 Q BY MS. HARPER: Do you have feelings about taking 04:28

1 the life of a 19-year-old? 04:28

2 A I don't have an answer for you.

3 Q So that's no?

4 MR. GILBERT: He's answered the question.

5 Q BY MS. HARPER: You're just glad you didn't shoot 04:28

6 Officer Newlen; right?

7 MR. GILBERT: Misstates testimony.

8 Q BY MS. HARPER: Are you just glad you didn't

9 shoot Officer Newlen?

10 A Among other things I'm glad I didn't shoot 04:29

11 Officer Newlen.

12 Q What other things?

13 A I'm just glad I didn't shoot Officer Newlen.

14 Q Do you regret any of this happening? Do you feel

15 any remorse? 04:29

16 MR. GILBERT: Compound. Asked and answered.

17 He's told you he can't answer those questions.

18 Q BY MS. HARPER: I have a mother of a 19 year old

19 kid whose passed away sitting here. Do you care that

20 you're the one who shot him? Do you even care? 04:29

21 MR. GILBERT: Argumentative. If you want to move on

22 to factual questions, please proceed.

23 Q BY MS. HARPER: Do you even care?

24 MR. GILBERT: He's told you he can't answer.

25 MS. HARPER: Are you instructing him not to answer? 04:29

1 MR. GILBERT: He's already answered. 04:29

2 THE WITNESS: I told you I don't have an answer for

3 you, ma'am.

4 Q BY MS. HARPER: When you were transported to the

5 station together, you had a conversation in the vehicle; 04:29

6 correct?

7 A No. Not that I'm aware of.

8 Q You carry a Smith & Wesson two-inch five-shot

9 revolver on your belt as well; correct?

10 A Yes. 04:30

11 Q You have the choice to activate your MAV system.

12 What does MAV stand for?

13 A Mobile audio video.

14 Q Why did you choose not to activate that?

15 A I did not have time to activate that. 04:30

16 Q As soon as the call went out, you never had the

17 time to activate it; right?

18 A There's no reason to activate it when the call

19 first came out.

20 Q Okay. Finishing up here just a couple of more 04:30

21 questions. Have you ever heard that Pasadena police made a

22 written procedure for officers to follow in regard to

23 recording equipment? Department policy calls for officers

24 to go into emergency response mode or Code 3 when they are

25 in direct pursuit of a suspect. Have you ever heard of 04:31

1 that policy? 04:31

2 MR. GILBERT: Vague as to time. Overbroad.

3 Go ahead.

4 THE WITNESS: Yes. I know there's a policy.

5 Q BY MS. HARPER: Were you ever in direct pursuit 04:31

6 of Kendrec McDade?

7 A We were pursuing him, yes.

8 Q Did you go into emergency response mode? Yes or

9 no?

10 A No. 04:31

11 Q So you did not follow the policy?

12 A I did not have the opportunity to activate the

13 MAV device.

14 Q So you did not follow that policy?

15 MR. GALIPO: Calls for a legal conclusion. 04:32

16 I'll advise you not to answer that.

17 Q BY MS. HARPER: Okay. Have you heard of a

18 statement by Lieutenant Riddle that said Newlen and Griffin

19 were in, quote, "stealth mode," not Code 3?

20 A No. 04:32

21 Q Do you know what stealth mode is?

22 A I don't know what that is.

23 Q Have you ever heard of stealth mode?

24 A No.

25 Q Were you trying to sneak up on Kendrec McDade at 04:32

1 any time? 04:32

2 A No.

3 Q So you've never heard a quote by Lieutenant

4 Riddle as saying, "As a street cop, unless somebody's life

5 is threatened, I don't want to scare the bad guys and let 04:32

6 them know we're coming"?

7 A No.

8 Q You wanted Mr. McDade to know you were coming;

9 right?

10 A I was in a black-and-white police car. 04:33

11 Q You wanted Mr. McDade to let him know you were

12 coming; right?

13 MR. GILBERT: Vague as to time. Overbroad.

14 If you understand, you can answer.

15 Go ahead. 04:33

16 THE WITNESS: I don't know what you mean.

17 Q BY MS. HARPER: When you were chasing him, you

18 wanted him to know you were pursuing him; correct?

19 A I felt he knew we were pursuing him.

20 Q Not trying to get into his mind because he's 04:33

21 wondering -- he went to the grave wondering why you shot

22 him. So I'm asking you you wanted him to know that you

23 were coming. You were pursuing him; right?

24 MR. GILBERT: Vague. Calls for speculation if that

25 was in his mindset or something thought about. 04:33

1 If you can answer, go ahead. 04:33

2 THE WITNESS: I don't know what you're asking.

3 Q BY MS. HARPER: Did you want Mr. McDade to know

4 he was being pursued by you?

5 A I don't know. He was -- I wasn't thinking about 04:33

6 what he wanted.

7 Q Usually if you're chasing somebody, don't you

8 want them to know that you're trying to get them so you can

9 get them? Catch up with them and have them comply with

10 your lawful orders? 04:34

11 MR. GILBERT: Overbroad. Vague.

12 THE WITNESS: I would like him to stop.

13 Q BY MS. HARPER: You wanted him to stop; right?

14 A Yes.

15 Q And you did everything you could to get him to 04:34

16 stop; right?

17 A I chased him, yes.

18 Q No. You did everything you could that night to

19 get him to stop. Yes or no?


21 THE WITNESS: Everything that I could, yes.

22 Q BY MS. HARPER: Are you friends with

23 Officer Alvarado?

24 A Yes.

25 Q How long have you known Officer Alvarado? 04:34

1 A I don't know. Probably -- I don't know. Six, 04:34

2 five, four years. I don't know how long he's been an

3 officer.

4 Q And you hang out a lot?

5 A No. 04:35

6 Q You go out socially?

7 A No.

8 Q You've never gone out socially?

9 A Gone out once or twice socially.

10 Q I'm going to call your attention to May 8, 2013, 04:35

11 in an incident involving a fight in Old Town in which you

12 were called to a location where Officer Alvarado was

13 breaking up a fight. Do you recall taking photographs of

14 the hands of a Joshua Gomez?

15 A No. Provide more information. 04:35

16 Q I can show a copy of a report just for

17 recollection only, not for an exhibit. Actually, let me

18 give you a different copy. That's the one I marked on.

19 I'm sorry.

20 A Did you want me to read it? 04:36

21 Q No. I want you to go to the page where -- go to

22 the last page where it says Officer Griffin. That will be

23 page 5. "Officer Griffin arrived at my location and

24 photographed Officer Alvarado and his hands showing no

25 damage to his hands that may have been caused by strikes 04:36

1 made by someone. Office Griffin then responded to PPD jail 04:36

2 to photograph Gomez's injuries and the abrasions to Officer

3 Burchett's elbows and knees."

4 Do you recall that incident?

5 A I mean, honestly, I don't recall it. 04:36

6 MR. GILBERT: You've answered it. Thank you.

7 Q BY MS. HARPER: Did you finish with your answer,

8 sir?

9 A I was going to say I take a lot of photos. I

10 don't recall this one in particular. 04:37

11 Q And in Old Town May 18 last week?

12 MR. GILBERT: Last week?

13 MS. HARPER: I'm sorry. My bad.

14 Q Now, in this report you took photographs of

15 Officer Alvarado only when there were other officers that 04:37

16 were involved. You can review the report, and can you tell

17 me why you only took photos of his fists and not the six or

18 seven officers there?

19 MR. GILBERT: He's already testified he doesn't recall

20 this incident. How is he going to testify to why he took 04:37

21 action about an incident he doesn't recall?

22 MS. HARPER: He's only read the back page. I'm giving

23 him an opportunity to read the full page.

24 MR. GILBERT: Relevance.

25 But go ahead, if you can. 04:38

1 THE WITNESS: I'll try. 04:38

2 Q BY MS. HARPER: And, Officer, if you don't

3 recall --

4 A I mean this doesn't jog any memories, ma'am. I'm

5 sorry. 04:39

6 Q Now, with regard to the complaint that you got

7 for discrimination by the African-American male who

8 complained on you, said you were singling him out for being

9 black in the neighborhood --

10 A I don't know what incident you're referring to, 04:39

11 ma'am.

12 Q Internal affairs investigation 2009035 Mr. Galipo

13 referred to earlier.

14 A Is that with Johnny Turner?

15 Q Yes. Do you recall that? 04:39

16 A I don't recall that incident, no.

17 Q Where you said you were stopping him just because

18 he was black?

19 A I believe, if I'm correct, Mr. Galipo is

20 referring to something different other than a traffic stop. 04:39

21 Q No, no. This was a pedestrian stop. A number of

22 auto burglars occurred in the area.

23 A I recall him referring to something at a house

24 586 East Washington male who locked somebody out of a

25 house. I don't recall this one. 04:40

1 Q Let me show you Bates stamped 1841 at the bottom, 04:40

2 and if this jogs your -- does that jog your memory at all?

3 A A little bit. Did you want me to read the whole

4 thing?

5 Q Jog your memory? 04:41

6 A Okay.

7 Q Would you say that you detain -- let me rephrase.

8 Area 2 is northwest Pasadena; correct?

9 A That's correct.

10 Q That's a predominantly African-American part of 04:41

11 the city?

12 MR. GILBERT: Foundation.

13 THE WITNESS: I don't know the demographics.

14 Q BY MS. HARPER: What's your nationality?

15 A I'm Asian predominantly. 04:41

16 Q Can you break it down?

17 A I'm half Asian.

18 Q And half what else?

19 A Caucasian.

20 Q Have you had any other complaints about singling 04:41

21 out African-American males for any reason to your

22 knowledge? Have you had any other complaints?

23 A Not that I'm aware of.

24 MS. HARPER: No further questions.

25 MR. GALIPO: I just have a few. 04:42

1 THE VIDEOGRAPHER: You want to grab the mike? 04:42

2 MR. GALIPO: Sure. Thank you.

3 What exhibit number were we up to? I can't

4 remember.

5 MS. HARPER: I think we did 4 was the last one. 04:42

6 MR. GALIPO: 4 was the last one.

7 I'm going to mark No. 5.


9 identification.)

10 THE WITNESS: These are different photos. 04:42

11 MR. GILBERT: They're two different photos.

12 MR. GALIPO: Are they different photos? Okay. Let's

13 do the front. The one that shows the front of the car.

14 MR. GILBERT: 5?

15 MR. GALIPO: Yeah. And I have a separate one. Okay. 04:43

16 Sorry about that.

17

18 FURTHER EXAMINATION

19 BY MR. GALIPO:

20 Q You believe that's your car? 04:43

21 A It looks like my car, yes.

22 Q And do you believe that was the spot -- strike

23 that.

24 Did you know how far your car rolled back before

25 it was put in park? 04:43

1 A I don't know how far. 04:43

2 Q Do you believe that's generally the area of the

3 street your car was in at the time the shots were fired?

4 A I think so, but I think the previous exhibit

5 would probably show better because of the casings. 04:43

6 Q This one here?

7 A I believe so.

8 MR. GALIPO: Let's make this Exhibit 6.

9 Q Looking at Exhibit 6, does that --

10 MR. GILBERT: Counsel, I think Exhibit 6 and 4 are the 04:44

11 same I think.

12 MR. GALIPO: That makes it easy. No wonder I don't

13 have other copies.

14 Q Let's just look at Exhibit 4. Thank you. Do you

15 believe that's the approximate position of your car at the 04:44

16 time of the shots?

17 A No. I think my car if you could extrapolate or

18 imagine it was up further where I assume. I don't know. I

19 think these are casings. So my car was ahead of where it

20 is now. 04:44

21 Q How far ahead?

22 A I don't know for sure. Whatever this distance is

23 between here and here. This is the general area where my

24 car would have been.

25 Q But are you saying that Mr. McDade was on the 04:44

1 sidewalk that would be to the left of this picture out of 04:44

2 this picture?

3 A Yes.

4 Q And the NFD that we heard on the dispatch, does

5 that stand for "no further details"? 04:45

6 A I believe so. That's normally what that stands

7 for.

8 Q And you said, if I understood your testimony,

9 that after the first shot Mr. McDade moved behind you?

10 A Yes. He was still moving laterally. 04:45

11 Q And you didn't know what he was doing in that

12 position?

13 A Correct.

14 Q And in looking at Exhibit 4, shows the rear of

15 the car; is that right? 04:45

16 A Yes.

17 Q Can you tell what's on the trunk area?

18 A I don't know.

19 Q In Exhibit 5 that shows the front of the car.

20 Could you tell what's on the hood? 04:46

21 A I don't know. I don't know what it is.

22 Q The items on the side does that appear to be

23 blood and clothing items. Things of that nature?

24 MR. GILBERT: On the side in the street?

25 MR. GALIPO: Yeah. Thank you. 04:46

1 THE WITNESS: I believe so. 04:46

2 MR. GALIPO: We'll make sure get you a copy.

3 Okay. That's all the questions I have.

4 Does any other counsel have any further questions

5 today? 04:46

6 MS. HARPER: I'm sorry. One last one.

7

8 FURTHER EXAMINATION

9 BY MS. HARPER:

10 Q Did you sign any verifications for any 04:46

11 interrogatories you received?

12 A I don't know.

13 Q Have you signed anything in conjunction with this

14 case?

15 A I don't know. I'm not sure if I received 04:47

16 correspondence from my criminal lawyer. I don't know.

17 Q Do you know what a verification is? Verification

18 form?

19 A No.

20 MS. HARPER: No. We haven't gotten verifications for 04:47

21 interrogatories, and that's one the things motion to

22 compel. Stuff is verified.

23 MR. GALIPO: I'm sure we can talk about that.

24 I'm sure if there's verifications that need to be

25 received, you'll follow up the best you can and see that we 04:47

1 get those? 04:47

2 MR. GILBERT: Absolutely. Just let me know which ones

3 you haven't received and happy to send verifications over.

4 MS. HARPER: Zero. And it's been six months.

5 MR. GILBERT: I'll look into it and find out. 04:47

6 MR. GALIPO: Okay. Thank you.

7 So we need to do a stipulation before our video

8 goes off the record, and I propose that we stipulate to

9 relieve the court reporter of her custodial duties under

10 the applicable Code of Civil Procedure; and that we forward 04:48

11 the original transcript to defense counsel's office. We'll

12 make it available for the officer to read and review the

13 questions and answers.

14 You have the right to make changes to your

15 answers, but it can be commented on, but you have the right 04:48

16 to review it, make changes, sign it under penalty of

17 perjury. You think that could be done within 30 days of

18 receipt?

19 MR. GILBERT: This is a question for you.

20 THE WITNESS: Yeah. 04:48

21 MR. GALIPO: That give you enough time to work with

22 your lawyer?

23 THE WITNESS: Yes.

24 MR. GALIPO: And defense counsel shall maintain

25 custody of the original transcript. I ask that all counsel 04:48

1 be notified of the signing and any changes within 15 days 04:48

2 of your notification; and that I further ask that the

3 original be made available for any further proceedings upon

4 reasonable request.

5 And, further, if the original is unsigned or 04:48

6 becomes lost, destroyed, or otherwise unavailable, we'll

7 agree that a certified copy can be used in its place for

8 any and all purposes.

9 MR. GILBERT: So stipulate.

10 MS. HARPER: So stipulate. 04:49

11 THE REPORTER: Did you want to order a copy?

12 MS. HARPER: Yes, please.

13 THE VIDEOGRAPHER: This, then, completes DVD No. 3 and

14 concludes the testimony of Ofc. Matthew Griffin. We're off

15 the record at 4:49.

16 (The deposition concluded at 4:49 P.M.)

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4 ***

5 I certify, under penalty of perjury under the laws of the

6 United States of America, the foregoing is true and

7 correct.

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9 Executed at ______________________________ (Place)

10on_______________.

11 (Date)

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13 ____________________________ OFFICER MATTHEW GRIFFIN

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1 STATE OF CALIFORNIA ) ) SS.

2 COUNTY OF LOS ANGELES)

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4 I, KIMBERLY A. THORNTON, Certified Shorthand

5 Reporter, Certificate No. 11994, for the State of

6 California, hereby certify:

7 I am the deposition officer that stenographically

8 recorded the testimony in the foregoing deposition; prior

9 to being examined, the deponent was by me first duly sworn;

10 the foregoing transcript is a true record of the testimony

11 given. Before completion of the deposition, review of the

12 transcript (xx) was ( ) was not requested. If requested,

13 any changes made by the deponent (and provided to the

14 reporter) during the period allowed are appended hereto.

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16 Dated July 29, 2013.

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19 ___________________________________

20 KIMBERLY A. THORNTON, CSR NO. 11994

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Griffin videotaped deposition

Documents

Transcript of Griffin videotaped deposition