Nodine,May21,2012

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ROUGH DRAFT COPY ONLY!!

DO NOT FILE!! *** DO NOT FILE!!

R-1

IN THE CIRCUIT COURT OF THE

TWENTY-EIGHTH JUDICIAL CIRCUIT OF ALABAMA

-BALDWIN COUNTY, ALABAMA-

_________________________

)

STATE OF ALABAMA, )

)

Plaintiff, )

)

vs. ) CASE NOS.: CC-10-1745;

) CC-11-1635

STEPHEN NODINE, )

)

Defendant. )

_________________________)

TRANSCRIPT OF PROCEEDINGS

HELD BEFORE: HON. CHARLES C. PARTIN

Circuit Judge

DATE: May 21, 2012

PLACE: Baldwin County Courthouse

Courtroom No. 4

Courthouse Square

Bay Minette, Alabama 36507

REPORTED BY: SHELAGH DUNCKLEY, ACCR #222

Official Court Reporter

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DO NOT FILE!! *** DO NOT FILE!!

R-2

A P P E A R A N C E S

REPRESENTING THE STATE:

JOHN DAVID WHETSTONE, ESQUIRE

Special Prosecutor

Attorney General's Office

Post Office Box 1269

Bay Minette, Alabama 36507

(and) JAMES H. RUTTER, III, ESQUIRE

Assistant Attorney General

P.O. Box 300152

Montgomery, Alabama 36130-0152

REPRESENTING THE DEFENDANT:

PASCAL BRUIJN, ESQUIRE

Attorney at Law

Post Office Box 811

Fairhope, Alabama 36532

(and) JOHN BECK, ESQUIRE

Attorney at Law

Post Office Box 931

Fairhope, Alabama 36532

SHELAGH DUNCKLEY, ACCR #222


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SHELAGH DUNCKLEY, CSR, ACCR #222

OFFICIAL COURT REPORTER

R-3

I N D E X

ITEM: PAGE:

PROCEEDINGS HELD ON MAY 21, 2012 6

WITNESSES CALLED BY THE DEFENSE:

JEFF DUNN:

DIRECT EXAMINATION 8

CROSS EXAMINATION 26

REDIRECT EXAMINATION 32

RECROSS EXAMINATION 32

FURTHER REDIRECT EXAMINATION 35

FURTHER RECROSS EXAMINATION 37

TRENT WILHELM:





ANGELA JARMAN-BROWN:




DR. EUGENE HART:





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R-4

I N D E X - C O N T I N U E D

ITEM: PAGE:

FURTHER REDIRECT EXAMINATION 93

DAN DOLLARHIDE:


VOIR DIRE EXAMINATION 100

DIRECT EXAMINATION CONTINUED 101



JUSTIN CLOPTON:




DANIEL STEELMAN:



JOHN DAVID WHETSTONE, JR.:


JOHN DAVID WHETSTONE - Limited testimony 129

DENNIS KNIZLEY:



HALLIE DIXON:



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R-5

I N D E X - C O N T I N U E D

ITEM: PAGE:


JUDY NEWCOMB:



WILLIAM SCULLY III:


PASCAL BRUIJN:


REPORTER'S CERTIFICATE 257

* * * * * * * * * *

E X H I B I T I N D E X

EXHIBIT NUMBER: IDENT. ADM.

Defendant's Exhibits 1 and 2, photos

taken before the death

14 17

Defendant's Exhibit No. 3, photo of

hand injury

16 20

Defendant's Exhibit No. 4, copy of

handwritten notes

19 25

Defendant's Exhibit No. 5, report 99 256

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R-6

(THE FOLLOWING PROCEEDINGS WERE HELD ON MAY 21, 2012,

BEFORE THE HON. CHARLES C. PARTIN, CIRCUIT JUDGE, IN

COURTROOM FOUR, COMMENCING AT 9:00 A.M.:)

THE COURT: Good morning. You can be

seated. Where is everybody?

MS. NEWCOMB: Judge, they went out that

door.

THE COURT: Tell them --

MR. WHETSTONE: Excuse me, Your Honor. We

were out there discussing the matter to help

things go faster.

THE COURT: Nine o'clock is the time to be

in the courtroom.

MR. WHETSTONE: Yes, sir, Your Honor.

THE COURT: This is a hearing on all

pending motions. And are there any outstanding

motions other than the Defendant's motion to

dismiss and the motion to change the venue?

MR. BRUIJN: No, Your Honor. Those are the

ones.

THE COURT: Is the State aware of any other

motions?

MR. WHETSTONE: No, sir. I think they're

all Defense motions.

MR. BECK: Correct.

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R-7

MR. BRUIJN: Yes, sir.

THE COURT: All right. The Court will

first take up the Defendant's motion to dismiss.

MR. BECK: Yes, sir. May we invoke the

rule, please, Your Honor?

THE COURT: Yes, sir. Anyone that is in

the courtroom that is going to testify as a

witness other than an attorney will need to step

out into the hallway. If you are here to observe

the proceedings you're more than welcome to stay

in the courtroom.

MR. WHETSTONE: May I approach, Your Honor?

MR. BECK: That does not apply to you.

MR. WHETSTONE: I'm a witness, Your Honor,

and Ms. Newcomb is a witness.

THE COURT: Anybody that is an Officer of

the Court is not subject to the rule.

MR. WHETSTONE: Thank you.

MR. BECK: Yes, Your Honor.

MR. WHETSTONE: And Mr. Scully, of course,

is.

(Rule invoked.)

MR. BECK: May I step out, please?

THE COURT: Yes, sir.

MR. BECK: Thank you.

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R-8

(A brief pause was held.)

JEFF DUNN,

the witness, having been sworn to tell the

truth, the whole truth, and nothing but the

truth, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. BECK:

Q. State your name, please, sir.

A. Jeff Dunn.

Q. And, Mr. Dunn, where are you employed?

A. I'm employed as an investigator with the District

Attorney's Office.

Q. When did you become employed by the District

Attorney's Office?

A. January of 2011.

Q. And what is your role in the District Attorney's

Office?

A. As an investigator, assigned to different

investigations as the D.A. sees fit, and I'm also

assigned to the drug unit.

Q. And shortly after you became an investigator with

the District Attorney's Office, did you begin

reviewing the case of the State of Alabama versus

Stephen Nodine?

A. Yes, I did.

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R-9

Q. And who directed you to begin investigating that

case and looking over that case?

A. Ms. Dixon.

Q. And did she indicate to you why your office would

be doing that?

A. Yes, sir, she did.

Q. In your investigation, what was the purpose of

you reopening the investigation or opening the

investigation and looking into it?

A. Because there was still too many unresolved

questions about the case.

Q. And was it also to gain an overall familiarity

with the case as well, since your office would be

handling it?

A. Yes, it was.

Q. And was there anybody else from the District

Attorney's Office that joined you in this

investigation?

A. Well, primarily it was Investigator Dean McGowan

and myself, but there were others involved as well,

Trent Wilhelm and Dan Dollarhide.

Q. Did you all have different roles and

responsibilities as far as reopening that

investigation?

A. Yes.

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R-10

Q. And what were the different responsibilities

amongst you?

A. Well, Dean and I primarily just dissected the

case, went back and reviewed a lot of the witnesses

involved in the case, while Dan Dollarhide was

primarily focused on the technical side, the

computer stuff, doing the emails, the cell phone,

that type of thing.

Q. And what specifically did you do to reopen this

case, or to further the investigation?

A. Well, the first step was to just get familiar

with the entire case. I was aware of the case. I

was working with the Sheriff's Office at the time

of the -- back in May at the time of Angel's death,

so I was familiar with the case just from being in

the office. I wasn't assigned to the case. I was

working narcotics at the time, but we shared the

same building. I was able to review pictures and

stuff at that time, so I was familiar with it but I

didn't know it from start to finish. And that's

what we started off doing, just going piece by

piece and then going out and interviewing the

witnesses we thought were necessary.

Q. Do you recall which witnesses were interviewed?

MR. WHETSTONE: Your Honor, unless it goes

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R-11

to the motion, I'm going to object. I don't want

to try the case today and I would object to that

unless it's relevant to the motion before the

Court.

THE COURT: I sustain the objection.

MR. BECK: Yes, sir.

BY MR. BECK:

Q. At some point while you were investigating this

case, did you become concerned about certain

evidentiary matters?

MR. WHETSTONE: Objection, Your Honor,

unless it goes to the motion before the Court.

THE COURT: Overrule the objection.

BY THE WITNESS:

A. Well, actually, I first became concerned with the

case when I first started looking into it when I

was working with the Sheriff's Office. And then it

just became more evident once I started looking

into it with the D.A.'s Office.

BY MR. BECK:

Q. What do you mean by that, sir?

A. Well, when I looked at the pictures, when I

worked at the Sheriff's Office, to me was evidently

a suicide.

MR. WHETSTONE: Your Honor, I object, and I

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R-12

-- that was the reason I did it.

THE COURT: Well --

MR. WHETSTONE: I object. He's just

testified that it was a suicide. This is, this

is over prosecutorial misconduct, relative to the

handling of certain evidence, not what this

officer thinks.

THE COURT: Well, as the Court understands

the motion, it's alleged that certain things were

withheld, and things of that nature.

MR. BECK: Yes, sir. There is three major

cruxes of the motion, but this is foundational to

-- Mr. Dunn is one of the people that --

THE COURT: Well, the Court is not

concerned with Mr. Dunn's opinion. I mean, if

he's going to testify to facts, I'm willing to

listen.

MR. WHETSTONE: Yeah, because we could get

opinion evidence, Your Honor, and say the

opposite thing that he just said. That's the

reason I objected to it.

THE COURT: All right.

BY MR. BECK:

Q. Mr. Dunn, during the course of your

investigation, did you become aware of certain

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R-13

photographs that were contained in the D.A.'s file?

A. Yes, I did.

Q. And were they necessarily photographs that were,

that were, that you felt relevant to your opinion

that you had derived in the case?

A. Yes.

Q. And what were the nature of those photographs?

A. Well, part of the, ah, it's going to be -- the

expert witness at the first trial was Dr. Downs,

and he alleged, in his opinion, that there was a

struggle. And that, um, the wounds that were --

the pictures that were taken at the autopsy --

MR. WHETSTONE: Your Honor, I object again.

He's talking about Dr. Downs' opinion. We are

talking about -- I thought we were talking about

things that the District Attorney did not

provide.

MR. BECK: We are, sir.

MR. WHETSTONE: Now we're talking about

opinions.

THE COURT: Well, let's get down to the

meat of it, Mr. Beck.

MR. BECK: Yes, sir.

BY MR. BECK:

Q. What were the pictures that drew your attention?

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R-14

A. Photographs of Angel Downs' hands from the night

before her death.

Q. What did those photographs depict?

A. Injuries to her hands that were described as

being defensive wounds in the testimony.

Q. And were those pictures of Angel Downs while she

was alive?

A. Yes.

MR. BECK: May I approach the witness,

please, Your Honor?


(Defendant's Exhibits 1 and 2,

photographs, were marked.)

MR. WHETSTONE: May it please the Court?


MR. WHETSTONE: I have no objection to the

introduction. Mr. Beck has informed me that

these are the pictures from discovery that were

provided to him by the State of Alabama, and I

have no objection to them, to the introduction.

THE COURT: Let's get them identified.

MR. BECK: Yes, sir.

BY MR. BECK:

Q. I'm going to hand you what's been identified as

Defendant's Exhibits No. 1 and 2. Can you tell the

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R-15

Court what those photographs depict?

A. These are photographs of the night before Angel's

death, when she was out with friends after working

at the Wharf.

Q. And are those the same photographs that you

discovered in the State of Alabama's case file?

A. Yes.

MR. BECK: Move Defendant's 1 and 2 into

evidence, Your Honor.

THE COURT: Defendant's Exhibits 1 and 2

are admitted.

BY MR. BECK:

Q. And referring to Defendant's Exhibit No. 2, what

on that photograph is of significance to you?

A. Injury to her right middle finger.

Q. And Defendant's Exhibit No. 1, is that a blowup

of that same photograph?

A. Yes, it is.

MR. BECK: May I publish these to the

Court?

THE COURT: Yes, sir. Thank you.

MR. BECK: Yes, sir.

BY MR. BECK:

Q. And so I'm clear, Mr. Dunn, were those

photographs in the possession of the State of

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R-16

Alabama when you took over the investigation or

conducted the investigation in this case?

A. You know, they were there when I came into the

office on January the 17th of 2011.

Q. And when you discovered those photographs did you

take any steps to make your boss, or anybody else,

aware of the existence of those photographs?

A. When I found the photographs I went back and

grabbed photographs from the autopsy and compared

it. Once I did that, I went to Ms. Dixon and

others involved in the investigation.

Q. I'm going to hand you what's been marked for

identification as Defendant's Exhibit No. 3. Would

you tell us what that photograph is?

A. That's photographs of the autopsy, showing

Angel's right thumb and injuries to her right

middle finger.

Q. And was that taken directly out of the District

Attorney's case file?

A. Yes, it was.

MR. BECK: I move to introduce Defendant's

Exhibit No. 3.

THE COURT: Defendant's Exhibit 3 is

admitted.

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R-17

BY MR. BECK:

Q. In your investigation did you have an opportunity

to speak to Dr. Eugene Hart?

A. Yes.

Q. And who was present with you when you spoke to

Dr. Hart?

A. Investigator Dean McGowan.

Q. And what was the purpose of the meeting with Dr.

Hart?

A. Just basically to go back over the autopsy and

the autopsy photos, and this was from dissecting

the case, part of Dr. Downs' testimony about

injuries to Angel.

Q. And was there any particular reason or purpose

for that meeting with Dr. Hart?

A. Well, we had -- from interviewing other folks

involved with the investigation, we had -- of

course, I had heard rumor of it.

MR. WHETSTONE: Your Honor, again --

THE COURT: I sustain the objection to some

rumor.

MR. BECK: Yes, sir.

BY THE WITNESS:

A. We were looking into the fact that the autopsy

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R-18

report was changed the morning of the Grand Jury.

BY MR. BECK:

Q. And what was the basis of that information to

you?

A. Say again.

Q. What was the basis of that information and your

belief?

A. That Dr. Hart had been pressured into changing

his report the morning before, or the morning of

Grand Jury.

Q. And do you recall the date of Ms. Downs' death?

Would you agree that that was May 9th --

A. Yes.

Q. -- of 2010?

A. That's correct.

Q. And are you aware of when the Grand Jury

considered this matter?

A. It was 15 days later, on -- I believe it was May

24th.

Q. And was that when the Grand Jury actually

returned their indictment?

A. It was the date it was presented, or it could

have been the same day it was return. I'm not

sure, but it's the date of the indictment anyway.

MR. WHETSTONE: I'm going to object to it.

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R-19

MR. BECK: May we approach, please?


(Bench conference was held as

follows:)

MR. BECK: Defendant's Exhibit No. 4 for

identification is what we believe to be

Ms. Newcomb's notes that were taken during her

meeting with Dr. Hart. We expect Mr. Dunn to be

able to identify these notes as having come from

the District Attorney's case file, and also that

he is familiar with Ms. Newcomb's handwriting,

and that it's his belief that these are, in fact,

her notes from that meeting.

MR. WHETSTONE: Were these notes discovered

to you by Ms. Dixon or by any --

MR. BECK: By the District Attorney's

Office.

MR. WHETSTONE: I understand, but --

MR. BECK: Yeah.

MR. WHETSTONE: Your Honor, I'm going to

object to these. It's obviously -- the Court can

see where this is going, and these are very

extreme for the Defense Counsel to get

handwritten notes of a District Attorney on a

work product. I don't think it's ever been done

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R-20

to my knowledge.

MR. BECK: They were provided to us by the

State of Alabama prior to Mr. Whetstone's --

MR. WHETSTONE: By the new District

Attorney?

MR. BECK: No, sir. No, sir.

MR. WHETSTONE: Us?

MR. BECK: No.

THE COURT: Everybody be quieted just a

second.

MR. WHETSTONE: Yes, sir.

THE COURT: Who provided what has been

identified as Defendant's Exhibit 4?

MR. BECK: Mr. Dunn.

THE COURT: All right. So it came out of

the District Attorney's file?

MR. BECK: Yes, sir. Prior to the

superintendant -- superintending of this case by

the District Attorney, while Ms. Dixon was still

actively the District Attorney on this case.

THE COURT: Well, the Court is concerned

that, um, it's obviously work product of the

prior administration. Um --

MR. WHETSTONE: Your Honor, there has been

hostility between the two in this matter.

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R-21

THE COURT: Well, the prosecution is the

State of Alabama.

MR. WHETSTONE: Yes, Your Honor. Yes, sir.

THE COURT: And Ms. -- I mean, the fact of

the matter is, it appears that this is work

product of Ms. Newcomb.

MR. WHETSTONE: Yes, Your Honor.

THE COURT: And, um, I mean, I don't know

what the contents are. I can't read it sideways

and without my glasses on.

MR. WHETSTONE: I don't know the content

either, Judge.

MR. BECK: I can help that part.

MR. WHETSTONE: Your Honor, may I make a

suggestion?


MR. WHETSTONE: Maybe Mr. Beck could reveal

to the Court, the general content to the Court,

and what he thinks is relevant. And if it's that

powerful, it may be handled in that way. I think

that, if it doesn't show anything then --

THE COURT: All right. Why don't we just

make it a Court's exhibit.

MR. BECK: Yes, sir.

MR. WHETSTONE: All right, sir.

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R-22

THE COURT: And I mean, you can examine the

witness, but that way it wouldn't be in the

public domain because I'm concerned that it is

work product.

MR. BECK: I understand.

MR. WHETSTONE: Yes, sir. And I would ask,

if the Court's ruling is, he can be examined from

this work product?

THE COURT: And Counsel, bear in mind that,

the, um, successor District Attorney had as much

authority as the first District Attorney did.

MR. WHETSTONE: That's correct, Your Honor.

THE COURT: Or as the Attorney General has.


THE COURT: And we're dealing with one

prosecution.


THE COURT: And it's a -- as far as the

Court is concerned, what will be marked Court's

Exhibit 1 --

MR. WHETSTONE: Your Honor.

THE COURT: -- um, was -- I mean, it hasn't

been divulged to anyone other than -- I guess you

say that, um, Mr. Dunn gave you this?

MR. BECK: During the period of time that

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R-23

Ms. Dixon's office was handling this case.

THE COURT: All right. Well, then it may

have been released.

MR. BECK: Yes, sir. That would be our

position.

MR. WHETSTONE: I understand. I have been

in this business, Your Honor, for 40 years so I

think -- I know the Court has, too. I have never

been in exactly one like this in my career, so

this is new ground for me.


MR. WHETSTONE: I'm an old dog, but this is

a new ground for me and I -- I don't want --

THE COURT: What I'm saying is that if Ms.

Dixon released Court's Exhibit 1, then it would

lose its work product privilege.

MR. WHETSTONE: Yes, sir. I understand the

point.

MR. BRUIJN: We can lay the foundation

through Mr. Dunn as to that.

MR. WHETSTONE: I don't think that there's

any doubt that Ms. Dixon released it.

THE COURT: At this time, I'm going to

sustain the State's objection to 4 but it will be

marked as Court's Exhibit 1, and if the proper

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R-24

foundation is lead, I may admit it.

MR. BECK: Yes, sir. Okay. Thank you,

Judge.

(The bench conference ended.)

(Defendant's Exhibit 4 was marked as

Court's Exhibit 1, for

identification.)

BY MR. BECK:

Q. Mr. Dunn, I'm going to hand you a document that's

been marked as Defendant's Exhibit 4 and Court's

Exhibit No. 1. Do you recognize that document?

A. Yes, sir, I do.

Q. And how did you come into possession of that

document?

A. It was in the District Attorney's case file on

this case.

Q. And, and generally speaking what is that

document?

A. It's three pages of handwritten notes that I

believe is by Ms. Newcomb.

Q. Why do you believe that those are handwritten

notes by Ms. Newcomb?

A. Well, two things. Her handwriting -- well, the

handwriting appears to be Ms. Newcomb's just from

my experience seeing her notes on different Grand

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R-25

Jury files throughout the years, and it went along

with the interviews that we conducted in this case.

Q. When you say the interviews that you conducted in

that case, was there particular context that you

have been able to ascribe to those notes, when

those notes were taken?

A. Yes.

Q. And what would that be?

A. The meeting with Dr. Hart the morning of the

Grand Jury.

MR. BECK: Your Honor, at this time, I

move to introduce Defendant's Exhibit 4, Court's

Exhibit No. 1.

MR. WHETSTONE: Objection, the special

predication, work product.

THE COURT: I'm going to sustain the

objection at this time, unless proper predicate

is laid.

MR. BECK: Yes, sir.

BY MR. BECK:

Q. Mr. Dunn, were you personally involved in any

issues revolving around the BlackBerry phone that

belonged to Angel Downs?

A. I was aware of them, but I had no part of that

part of it.

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R-26

Q. Was that handled primarily by Mr. Dollarhide?

A. Yes.

Q. And again, you were not a member of the District

Attorney's Office when this case, when this event

occurred in May of 2010?

A. No. I was still with the Sheriff's Office at

that time.

Q. And did you have any involvement in the case in

May of 2010?

A. No.

Q. Okay.

MR. BECK: Nothing further.

THE COURT: You may cross examine.

CROSS EXAMINATION

BY MR. WHETSTONE:

Q. Jeff, how you doing this morning?

A. Good.

Q. How many murder cases had you worked before you

worked this one?

A. Ah, never as lead investigator but I have worked

several.

Q. But this was your first time -- were you the lead

investigator on this one?

A. No. I was kind of, I guess you'd call it a

co-case agent on this one.

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R-27

Q. Okay. You did not handle the BlackBerry?

A. No, sir.

Q. You were -- were you familiar with all of the

evidence surrounding this matter, the death of

Angel Downs?

A. Prior to?

Q. After you came to the D.A.'s Office. You said

you started investigating the matter.

A. Yes, after several months I was pretty familiar

with it.

Q. Were you familiar with any impeachment evidence

delivered in Mobile?

A. No.

Q. Did you look for any impeachment evidence in

Mobile?

A. Unless you can be more specific, I don't know

what you're talking about.

Q. Were you aware that there was an impeachment

investigation going on in Mobile?

A. In reference to who?

Q. In reference to Mr. Nodine?

A. Impeachment from his office over there?

Q. Impeachment evidence from Mobile. I'm asking,

did you go to Mobile and ask Mr. John Tyson to

subpoena the records?

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R-28

A. No.

Q. Okay. Were you aware of any other evidence

coming from persons who had discussed matters with

Mr. Nodine, that was against what your conclusion

is today?

A. I'm not following you on that.

Q. Did you investigate any evidence out of the state

of Florida against Mr. Nodine as it relates to this

case?

A. I still am not following what you're asking. I

don't see what the bearing on this case has to do

with that.

Q. Well, I understood you thought that -- you came

to a certain conclusion, is what you told Mr. Beck.

And I'm wondering how much evidence you looked at

that showed Mr. Nodine was guilty.

A. I reviewed the entire case file, and other than

them being at the beach in Pensacola, Florida, the

state of Florida had nothing to do with this case.

Q. You ever heard of Santa Rosa, Florida?

A. I have.

Q. Ever interviewed people over there in Santa Rosa,

Florida?

A. No, sir, I haven't.

Q. Had your investigators?

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R-29

A. I'm not aware of that.

Q. Are you aware of reports that they have and what

was said to them by inmates at Santa Rosa County,

that was with Mr. Nodine?

A. I was reviewing the facts and not hearsay from

jailhouse rumors.

Q. You're reviewing facts of statements allegedly

made by Mr. Nodine that was against his interest in

this case. That was no interest to you?

A. I still don't have any clue what you're talking

about.

Q. Let me go back, Jeff. I'm not trying to trick

you, okay?

A. I'm not worried about you tricking me.

Q. Good. What I'm asking you is, did you review any

report from your office of one of your

investigators relative to statements made by

inmates at Santa Rosa County, that was in the same

cell block with Mr. Nodine?

A. Okay. Now I'm familiar with what you're talking

about. There was, two investigators went over

there and talked to an inmate over there. And what

he had to say was the most ridiculous thing I ever

heard in my life.

Q. Yes, sir. Did you talk to any other inmates who

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R-30

attempted to call the District Attorney's Office?

A. I have not.

Q. If other inmates had been contacted, would that

have changed your mind?

A. Unless they were there the night that this

happened and had some specific facts on it, no it

wouldn't.

Q. So, in other words, if an inmate was not with

Angel Downs, but overheard Mr. Nodine say things

about the matter, that would be of no interest to

you?

A. Well, it depends on what it is. But if it's the

one that you're talking about where she was

supposedly picking corn out of her teeth with a gun

barrel, I wouldn't have much interest in that.

Q. And who said that?

A. The guy you referred to in Santa Rosa.

Q. Did he say Mr. Nodine said that?

A. That's what he said.

Q. And what else did he say?

A. I don't know, but I never heard that part of it.

Q. You didn't hear him say that, I got away with it?

A. No, I never heard that before.

Q. Not in that report?

A. I've never seen that report.

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R-31

Q. Ah.

Do you know of any other report outside of

that inmate, Jeff?

A. I have heard there was some other inmates that

had some information, and I think that was, um,

after you took over the case, this case, and it had

to do with your compelling evidence.

Q. Pardon?

A. The part I heard was about your compelling new

evidence, and it had to do with inmates.

Q. You knew what my new compelling evidence was?

Where did you hear that from, Jeff?

A. Just the rumor mill.

Q. I'm talking about inmates right now, before I

took over, Jeff.

A. I --

Q. Not this one, about another one in Santa Rosa

County.

A. I'm not familiar with anybody else prior to that.

Q. And you're also aware of one after I took over

because the inmate sent Ms. Dixon a letter, didn't

he?

A. I'm not aware of that.

Q. You're not aware that an inmate sent Ms. Dixon a

letter saying, I have information about this

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R-32

matter?

A. Was that after you took over the case?

Q. Yeah.

A. Once you took over the case, I was through.

Q. I'm just wondering whether or not you're aware of

that letter.

A. I'm not.

MR. WHETSTONE: That's all. Thank you.

THE COURT: Any redirect?

MR. BECK: Just briefly.

REDIRECT EXAMINATION

BY MR. BECK:

Q. When you were investigating this case, did you

seek out or place any emphasis on the utilization

of jailhouse snitches to further your case?

A. No, I did not.

Q. Would you be concerned about a prosecution that

relied on jailhouse snitches in a case such as

this?

A. Absolutely.

MR. BECK: That's all.

MR. WHETSTONE: Very quickly, Your Honor.

RECROSS EXAMINATION

BY MR. WHETSTONE:

Q. We use people all the time in court that way,

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R-33

don't we? Almost every drug case has one.

A. Not from a jailhouse snitch, no.

Q. No, sir, but from somebody you are trying to get

to do something for you.

A. Oh, yeah.

Q. Oh, yeah.

A. We use informants almost all the time.

Q. Not very uncommon? Not uncommon at all.

MR. WHETSTONE: If I got an answer, Your

Honor -- question, Your Honor, about the

pictures, may I go back into that briefly?


BY MR. WHETSTONE:

Q. Your testimony was, you found these pictures in

the District Attorney's case file?

A. That's correct.

Q. What size were they? Were they this size?

A. Actually, they were kind of round. They were on

a disk.

Q. In fact, you didn't find these pictures, did you?

A. I absolutely did.

Q. Well, I'm talking about this exact document.

A. That exact document was in the, ah, District

Attorney's files.

Q. Was it this exact size?

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R-34

A. It was on a disk.

Q. Okay. So what I'm trying to say, you blew up

this document, didn't you?

A. No, sir. I printed out that document. This

picture here has been blown up, not that one.

Q. Okay. But this is printed out to a certain size,

okay?

A. It gives -- I printed out a full page size, yes,

sir.

Q. But when you looked at the disk, how big was it?

A. About the size of the monitor, yes, sir.

Q. Okay. You did not find --

MR. WHETSTONE: And I'm referring to

Defendant's Exhibit 1 now, Your Honor.

BY MR. WHETSTONE:

Q. You did not find this in the District Attorney's

file, did you?

A. A blown up picture?

Q. Yes, sir.

A. No. I blew it up.

Q. You blew it up.

A. From that photo.

Q. So from that photo, in order to get this clear

shot of that mark on the knuckle, you had to blow

it up.

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R-35

A. No, sir. I could see it plainly on Exhibit 2,

and I just blew it up so that everybody else could

see it.

Q. Yes, sir. What day was this picture taken?

A. The -- it would have been May 8th.

Q. Okay. Do you know whether or not Mr. Knizley got

these pictures?

A. According to Trent Wilhelm he did, shortly before

the beginning of the trial.

Q. So Mr. Knizley had these pictures before the

trial?

A. It was my understanding, yes, sir.

Q. And Trent Wilhelm is who?

A. An investigator with the District Attorney's

Office.

MR. WHETSTONE: Pass the witness.

FURTHER REDIRECT EXAMINATION

BY MR. BECK:

Q. Do you know if Dr. Downs got those pictures?

A. The one of the night before on May the 8th?

Q. Those pictures?

A. He had the autopsy photos, Exhibit 3, but Exhibit

1 and 2, he did not.

Q. And you're familiar with Dr. Downs' opinions that

those wounds were indicative and consistent with

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R-36

defensive wounds; are you not?

A. That's what he said, yes, sir.

Q. If Dr. Downs was your forensic pathologist and

your expert, would you expect him to review every

photograph, including those showing injuries that

are completely inconsistent with his opinion?

MR. WHETSTONE: Objection, Your Honor.


BY MR. BECK:

Q. Not to belabor this, and I'll wrap up. If one

jailhouse snitch approached you and he was facing

pending capital murder charges, or the equavilent

in the state of Florida, would that concern you,

sir?

MR. WHETSTONE: Your Honor, I don't know if

that's true or not.

THE COURT: Well, I overrule the objection.

BY THE WITNESS:

A. If that was the case, yes, that would concern me.

BY MR. BECK:

Q. If the second jailhouse snitch just pled guilty

in Federal Court to 260 months on a federal

conspiracy, drug conspiracy charge, would that give

you pause for concern?

A. Absolutely.

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R-37

Q. I you're familiar with the Federal system

intimately, aren't you, sir?

A. Very familiar.

Q. Is that dynamic with jailhouse snitches common or

uncommon in the Federal system?

A. It's very common. They're looking for a Rule 32.

Q. And if another person claimed that a jailhouse

snitch had approximately half a dozen prior

felonies, including a prior conviction for

manslaughter, originally charged with murder, would

that give you pause to consider the veracity and

believability of anything that person ever had to

say?

A. Yes.


FURTHER RECROSS EXAMINATION

BY MR. WHETSTONE:

Q. Would you go talk to them?

A. Yes.

Q. Yes. And did you talk to them all?

A. The ones I became familiar with were after I was

off the case.

Q. Would it make any difference to you if they

didn't want anything in return?

A. I have never seen a jailhouse snitch that didn't

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R-38

want something in return.

Q. So if he didn't want anything in return, that

would indicate veracity, wouldn't it?

A. (No response.)

Q. Or if he knew some of the facts about the case?

A. Facts from?

Q. Mr. Nodine.

A. If he heard something straight out of

Mr. Nodine's mouth?

Q. Yes, sir.

A. I would want to hear what he had to say.

Q. Yes, sir. And there is no reports that you have

seen, except for one?

A. I have never seen a report. I just know that two

investigators went over there and talked to a guy

in Santa Rosa.

MR. WHETSTONE: No further questions.


THE COURT: You may step down and you can

be excused. Thank you.

(Witness excused.)

(This completes the testimony of Jeff

Dunn.)

MR. BECK: I need to confer with

Mr. Whetstone briefly, Judge.

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R-39


MR. BECK: I guess what I was asking, you

don't need him, do you?

MR. WHETSTONE: No, sir. He can leave. He

testified. That's fine.

Excuse me, Your Honor. I apologize. He

has a witness that wanted to be released and I

have no objection.

MR. BECK: His mother is in surgery this

morning. I just wanted to make sure

Mr. Whetstone didn't expect or need to call him.

Your Honor, I call Trent Wilhelm.

THE COURT: You can have a seat and I'll

swear you in.

TRENT WILHELM,




DIRECT EXAMINATION

BY MR. BECK:

Q. Mr. Wilhelm, I want to -- let me just ask you a

couple of preliminaries, first of all.

You're an investigator with the District

Attorney's Office; is that correct?

A. Yes, sir.

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R-40

Q. And how long have you maintained that position in

the District Attorney's Office?

A. Since 2006.

Q. So you would actually be an investigator that had

been there in the prior administration under

Ms. Newcomb; is that correct?

A. That's correct.

Q. And you're also, of course, with Ms. Dixon,

correct?

A. Yes, sir.

Q. Were you involved directly in the investigation

of the Downs case?

A. Yes, sir.

Q. And what was your role?

A. I had a number of responsibilities, from -- I

mean, dozens and dozens of things I participated

with.

Q. Okay. Case file preparation for one thing?

A. Yes.

Q. All right.

MR. BECK: May I approach the witness, Your

Honor?


BY MR. BECK:

Q. Defendant's Exhibit No. 1 and No. 2. I want to

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R-41

make sure we clear something up. Do you recognize

those photographs?

A. Yes, sir, I do.

Q. Okay. And do you know when those photographs

came into the possession of the District Attorney's

Office?

A. I believe that would be December the 3rd, 2010.

Q. And that was within a day or two of the beginning

of the trial of this case; is that correct?

A. That's correct. Trial started Monday and I

believe we obtained these Saturday.

Q. Okay. And who did you obtain them from?

A. Kayla King.

Q. Is it your testimony that those photographs were

turned over to Mr. Knizley, who was representing

Mr. Nodine?

A. Yes, sir, it is.

Q. And do you know if those photographs were turned

over to Dr. Downs, who was the State expert?

A. I do not believe they were.

Q. Prior to the Grand Jury meeting in this case, do

you recall a meeting wherein Dr. Downs was present

and several members of the District Attorney's

Office was present, and also the lead investigator

from Gulf Shores was present, among other people?

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R-42

A. Yes, sir.

Q. Do you recall all the people that were actually

at that meeting by name?

A. Not everyone.

Q. Can you tell me who you recall?

A. Myself, Justin Clopton, Ms. Judy Newcomb, John

Stewart, Warren Stewart, I believe Anthony Lowery,

Daniel Steelman.

Q. Was Angela Jarman present?

A. Yes, sir, I believe so. Dr. Hart and Dr. Snell.

Q. And Dr. Snell was the State Chief Medical

Examiner at the time; is that correct?

A. Yes, sir, that's correct.

Q. And, of course, Dr. Hart was the forensic

pathologist that performed the autopsy; is that

right?

A. That's right.

Q. Do you recall how long that meeting lasted?

A. Maybe an hour.

Q. What was the purpose of that meeting?

A. My recollection, we were there to discuss with

Mr. Snell and Dr. Hart, our belief -- some evidence

that we believed showed that the injuries that he

documented on the autopsy report were more

consistent with a homicide and not a suicide.

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R-43

Q. And you're talking about, one thing would be the

wounds on the hand?

A. That was one thing.

Q. That was one thing. And, Mr. Wilhelm, at that

point was it your understanding that Dr. Hart, Dr.

Hart's belief was that this was a self-inflicted

gunshot wound?

A. No, sir. I don't know if that would be accurate.

I know in the autopsy report, I believe he listed

the manner of death as undetermined.

Q. And do you understand that the autopsy was

actually -- the report was actually completed some

time after that meeting?

A. That's correct.

Q. And was the purpose of that meeting with Dr. Hart

to, again, to point out to him reasons why the

District Attorney's Office felt that this was a

case of homicide as opposed to suicide?

A. Yes, sir. And to explain to him what we had

uncovered and believed.

Q. And as a result of that meeting, Dr. Hart came

back with a decision that the cause of death was

undetermined; is that correct?

A. Yes, sir, I believe so.

Q. And during that meeting, you say John Stewart was

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R-44

present among other people?

A. Yes.

Q. Do you recall Mr. Stewart, or anybody else

associated with the District Attorney's Office,

raising their voice with Dr. --

A. I remember John Stewart did get upset and he did

raise his voice.

Q. And that was directed at Dr. Hart, correct?

A. He was frustrated, but John Stewart did get

frustrated quite easily.

Q. That was with Dr. Hart, correct?

A. That's correct.

Q. Were you aware whether or not Dr. Hart knew John

Stewart prior to that meeting?

A. I don't know. I would assume he did. John

Stewart was in law enforcement for quite some time,

but I don't know.

Q. Okay.



MR. WHETSTONE: Thank you, Your Honor.

CROSS EXAMINATION

BY MR. WHETSTONE:

Q. When you saw the photos, were they this size or

how would --

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R-45

When you looked at them, what was the purpose

of looking at these photos?

A. The size that I saw these photos, when we

obtained them on a cell phone camera, were

approximately one inch by one inch.

Q. One inch by one inch, not blown up to this

proportion?

A. That's correct.

Q. Did you see anything yourself, when you looked

that the one inch-one inch, that brought something

to attention to you?

A. No, sir.

Q. Did you report it to Ms. Newcomb?

A. No, sir.

Q. Did any investigator report anything to

Ms. Newcomb that, we see something on this picture

that may show this wound?

A. No, sir.

Q. Did you give these pictures to Mr. Knizley as you

said?

A. We did.

Q. Did Ms. Newcomb -- did you talk with Ms. Newcomb

about these photos?

A. She was aware we obtained the photos, yes, sir.

Q. And did -- essentially what they show is a party

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R-46

in Pensacola?

A. No, I believe it's a party in Orange Beach.

Q. Orange Beach. Excuse me. Wrong city. But you

didn't see anything that you thought was important

in these photos?

A. I did not.

Q. And you didn't report to Ms. Newcomb or no other

investigator would have done, or did so?

A. No, sir, they did not.

Q. Was it common for the investigators to look over

the information and to report to Ms. Newcomb what

was going on?

A. That would be standard procedure, yes, sir.

Q. And -- yeah. And then you helped put the case

together and showed her what was relevant in some

cases?

A. Exactly.

Q. Ms. Newcomb had just finished a capital murder

case; had she not?

A. Yes, sir.

Q. And it had taken up most of her time?

A. That's correct.

Q. Would it be fair to say that she relied on you

and other investigators to put this case together?

A. She did.

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R-47

Q. Do you intentionally suggest to withhold any

evidence from the Defense in this matter while you

worked for Ms. Newcomb?

A. No, sir, I did not.

Q. You indicated that you still work for the

District Attorney's Office.

A. Yes, sir.

Q. Are you working on this case now?

A. No, sir.

Q. You have been removed from the case?

A. Yes, sir.

MR. WHETSTONE: No further case -- further

witness.


BY MR. BECK:

Q. And you were removed because Ms. Dixon was

removed; is that right?

A. Yes, sir.

Q. When you say you looked at a one-by-one picture,

you're talking about the preview pane; is that

correct?

A. Yes, sir.

Q. You are not talking about when you actually click

the photo then you have got a high-definition, full

photograph, do you?

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R-48

A. No, sir. What I meant was, when we reviewed --

they were on a cell phone and her screen was

approximately one inch by one inch. We just

plugged the cell phone into my computer and

downloaded the photos onto a CD.

Q. Because y'all asked her for those photos, right?

A. Mm-hmm.

Q. Because they might contain something of

evidentiary value, correct?

A. And we didn't know she had the photo till she got

there that day. That's why we asked.

Q. And that's fair. I understand that. But that's

why you asked her, because it could have

evidentiary value; is that right?

A. It could. Yes, sir.

Q. And so instead of looking at it on that little,

tiny photo screen, you downloaded it so you can put

it on a hard drive; is that right?

A. Yes, sir.

Q. And that's what you did.

A. That's what we did.

Q. And you reviewed the photos, correct?

A. We did look at the photos.

Q. Okay. And you clicked on the photo files and

actually opened them up and looked at them,

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R-49

correct?

A. I can't say -- I can't testify that I did that to

every photo, no.

Q. You are not the only investigator who was working

on this case, getting this case ready, were you?

A. No, sir.

Q. There's certainly other Assistant District

Attorneys who were working on the case; is that

right?

A. There was.

Q. And this was a high profile case; is that

correct?

A. That's correct.


THE COURT: Any recross?

MR. WHETSTONE: Very briefly.

RECROSS EXAMINATION

BY MR. WHETSTONE:

Q. Trent, was there a master file of this case kept

in the District Attorney's Office when you were

working for Ms. Newcomb?

A. Yes, sir, there was.

Q. Did you put together that master file?

A. I did. Yes, sir.

Q. Was it indexed?

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R-50

A. Yes, sir.

Q. Do you know where that master file is today?

A. No, sir.



I call Angela Jarman.

THE COURT: You can step down.

MR. BECK: And may Mr. Wilhelm be excused,

Your Honor.


(Witness excused.)

THE COURT: You can come and have a seat in

the witness stand, please.

ANGELA JARMAN-BROWN




DIRECT EXAMINATION

BY MR. BECK:

Q. Would you state your name, please, ma'am?

A. At the present time it's Angela Brown.

Q. And you were formerly known as Angela Jarman; is

that correct?

A. Yes, sir.

Q. And where do you work, ma'am?

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R-51

A. At the Brewton Police Department.

Q. And what is your function at the Brewton Police

Department?

A. Patrol officer and acting sergeant at this time.

Q. Speak up a little bit.

A. I'm sorry. Patrol officer.

Q. Okay. And, Angela, you're familiar, obviously,

with the Downs case, correct?

A. That's correct.

Q. And did you have -- did you take part in this

investigation in any fashion?

A. Yes, sir.

Q. And what did you do in this case?

A. I was an investigator with the Baldwin County

Sheriff's Office at the time, and one of the

investigators assigned to assist in investigating

the case.

Q. And did you interview some witnesses?

A. I did.

Q. Were you present at certain meetings?

A. Yes, sir.

Q. And who was your direct supervisor at the time?

A. My sergeant was Mike Gall, but he was not

involved in the investigation.

Q. Yeah. For the purpose of this investigation who

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R-52

were you reporting to at the Sheriff's Department?

A. Lieutenant Tony Nolfe.

Q. Okay. And you have got -- do you have some

background in forensic investigations, or, or

investigations of homicide?

A. I do. I have been to many training classes. I

worked for Escambia County, Florida, for eight

years prior to accepting employment with the

Baldwin County Sheriff's Office. And of those

eight years, four of them were spent in

investigations.

Q. And did those include homicide?

A. Yes. Major crimes and homicide, yes, sir.

Q. How many homicide cases would you estimate that

you have been a part of or worked?

A. Actually, I can't even estimate a number.

Q. More than ten?

A. Absolutely.

Q. More than fifty?

A. Probably, yes.

Q. Have you received training from experts?

A. Yes, sir.

Q. Such as Jan Johnson and others?

A. Jan Johnson was actually the head of crime scenes

at the Escambia County Sheriff's Office when I was

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R-53

employed there.

Q. And you brought your background and skills to the

Baldwin County Sheriff's Office in what year?

A. 2008.

Q. Approximately how many homicide cases did you

work with the Baldwin County Sheriff's Office?

A. Just estimating, death cases, about maybe 10 to

15.

Q. And you weren't there very long, were you? Just

a couple of years, or --

A. I was there for three years.

Q. Three years. Part of your function as an

investigator in this case was to suggest certain

courses of action; is that fair?

A. Yes, sir.

Q. Were you present at a meeting with Dr. Eugene

Hart and members of the District Attorney's Office,

Justin Clopton and other people?

A. Yes, sir.

Q. And in proximity to the Grand Jury actually

considering this case, what was the timeframe when

that meeting took place?

A. Um, that particular meeting where Dr. Hart was

present was after Grand Jury indictment -- wait --

or just prior to Grand Jury indictment.

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R-54

Q. Okay. And --

THE COURT: Well, it obviously was either

before or after.

BY MR. BECK:

Q. Were you correcting yourself or do you recall

exactly when the timing of that meeting was?

A. It was so long ago. I'm trying to remember. Um,

I can't remember specifically if it was pre-grand

jury or if it was pre-trial meeting.

Q. Okay. You do recall a meeting with Dr. Hart

being present; is that correct?

A. Yes, I do.

Q. Do you recall who was at that meeting?

A. Um, Danny Steelman, Tony Nolfe, myself, Justin

Clopton, Dr. Hart, and I believe his supervisor was

present.

Q. Dr. Snell?

A. I'm not sure of his name, but I know that he was

Dr. Hart's supervisor from Montgomery or

Birmingham.

Q. And do you recall members of the District

Attorney's Office being present?

A. Trent Wilhelm was present, the District Attorney

herself was present.

Q. Ms. Newcomb?

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R-55

A. Ms. Newcomb. Um --

Q. Do you recall John Stewart being present?

A. There was John Stewart and Warren Stewart, but I

get them confused.

Q. Okay. Approximately how long was that meeting

with Dr. Hart, if you recall?

A. At least an hour.

Q. And in your opinion what was the purpose of that

meeting based on the context of that meeting?

A. Um, to gather -- to basically find out the

reasoning behind Dr. Hart's ruling, initial ruling.

Q. What was your understanding of that ruling,

ma'am?

A. His initial ruling was that it was a suicide.

Q. And when the meeting was concluded, do you recall

Dr. Hart being willing to change his opinion to

some extent?

A. Yes.

Q. And how was that changed?

A. It was ruled as --

MR. WHETSTONE: Your Honor, if she's

testifying to the mind of Dr. Hart, I would

object.

THE COURT: Well, I'm not going allow the

witness to testify to his mental state, but if

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R-56

she knows that some report was changed, I'll

allow her to testify to that, as to her role as

investigator.

MR. WHETSTONE: Yes, sir. I was objecting

to him asking her what Dr. Hart was thinking,

versus what --

THE COURT: I don't think that was the

question. Read the question back.

COURT REPORTER: Yes, sir.

QUESTION: "And when the meeting

was concluded, do you recall Dr. Hart

being willing to change his opinion to

some extent."

ANSWER: "Yes."

QUESTION: "And how was that

changed?"

THE COURT: All right. Overrule the

objection.

BY THE WITNESS:

A. It was ruled as undetermined.

BY MR. BECK:

Q. And did the -- was the meeting, did it appear to

be focused primarily on the District Attorney's

Office attempting to get Dr. Hart to change his

opinion to homicide?

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R-57

MR. WHETSTONE: Objection to leading. That

was a statement versus a question.


BY MR. BECK:

Q. Do you recall -- what was the demeanor of the

meeting?

A. Um, we were -- well, I say "we." The line of

questioning directed at Dr. Hart was trying to

ascertain why he ruled it as a suicide as opposed

to undetermined.

Q. And was Dr. Hart challenged during that meeting?

A. Yes.

Q. And how was that being challenged manifest?

A. I don't understand.

Q. What did people do to challenge him?

A. He was asked questions over and over several

times.

Q. And was it the same questions over and over?

A. Some of them, yes, sir.

Q. Did the tone of the, of that meeting ever ramp

up? Was it ever any -- was it loud? How would you

describe that?

A. At one point it got very loud, yes, sir.

Q. And do you recall the context of why that meeting

got loud with Dr. Hart?

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R-58

A. Um, one of the D.A. investigators, Mr. Stewart,

and I'm -- it's the dark haired Mr. Stewart. I'm

not sure which one that is.

Q. Yes, ma'am.

A. He got very loud and began to yell at Dr. Hart

and basically yelling his questions at him, wanting

to know why it was ruled as a suicide.

Q. Did Mr. Stewart appear to be upset by that?

A. Yes. Yes, he did.

Q. And in your experience had you ever seen a

forensic pathologist who performed an autopsy,

treated in that manner by any investigator?

A. No, sir.

Q. There was also a piece of evidence that was

recovered in this case which has been described as

the BlackBerry phone that belonged to Ms. Angel

Downs. Are you familiar with that?

A. Yes, sir.

Q. And at any point did you ever suggest a course of

action with respect to, um, to having that device

checked out or the messages retrieved off of that

device?

A. Yes, sir.

Q. And what was your involvement with respect to

that?

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R-59

A. I suggested to other investigators that were

involved in investigating this case, to have the

BlackBerry sent to Homeland Security.

Q. And to your understanding at the time, why was it

necessary to send that device to Homeland Security?

A. Because BlackBerrys have a unique system,

password system, where if you enter the incorrect

password, I think it's ten times, it will

completely wipe the phone's memory.

Q. And why, in your role as an investigator, why did

you suggest sending that device to Homeland

Security?

A. Because of the complexity of the BlackBerry

system and the resources available to Homeland

Security, I was quite sure that they could obtain

the information from the BlackBerry.

Q. And how was your suggestion received?

A. It was received and went nowhere.

Q. Okay. And who did you, who did you make your

feelings about this known to?

A. Other investigators.

Q. Mr. Nolfe, or --

A. Um, I don't think I -- I don't recall directly

expressing it to Lieutenant Nolfe, but I know that

it was discussed with other members of the

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R-60

investigative team.

Q. Do you recall the, the period of time immediately

prior to the Grand Jury considering this case?

A. Yes.

Q. Do you recall it being a long time or a short

time?

A. Short time.

Q. And were demands placed on you and other members

of your department concerning finishing your

investigation to get this thing to Grand Jury?

A. Absolutely.

Q. And tell me -- describe to me what happened with

respect to that.

A. We had several meetings where we were tasked with

certain things --

MR. WHETSTONE: Your Honor, I object. I

think it's outside the scope of what we're here

today about, unless he can tie it in.

MR. BECK: Goes to motive. Very important.

MR. WHETSTONE: Motive?

MR. BECK: Motive for bringing this

prosecution, Your Honor, in a very, very short

period of time. This case was taken to a Grand

Jury in less than two weeks, which I expect the

evidence to show that, of a case of this

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R-61

complexity and magnitude, was highly, highly

unusual.

THE COURT: Well, what does that have to do

with failure to disclose evidence?

MR. BECK: Well, what I have alleged, Your

Honor, is three specific things. It's the

failure to disclose with respect to the picture.

We have the failure of the District Attorney's

Office to take the BlackBerry to Homeland

Security and to retrieve that information, which

by all accounts should be able to be retrieved.

And then we also have the allegation concerning

Dr. Hart, and the meeting with Dr. Hart and undue

influence.

THE COURT: The last question went to

whether or not there was pressure put on them to

finish the investigation.


MR. BECK: Yes, sir. It was all during the

context and the timeframe of Dr. Hart.


MR. BECK: At some point may I make an

offer of proof to the Court?

THE COURT: I mean, obviously I know the

date of death, and I can look at the indictment

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R-62

and see when it was return, and it was a short

period of time.

MR. BECK: Yes, sir. But I think what I'm

suggesting is that the motivations of the

District Attorney's Office are manifest in this

case with how rapid this case -- it was demanded

that this case get to a Grand Jury and that

investigators not be able to complete doing their

job, and that this case was rushed. And quite

frankly, given the timing of the election of the

District Attorney at the time, that it certainly

goes to the motive of the District Attorney for

submitting prosecutorial misconduct. It's

actually very central. And I think that we

should be able to establish the motive, or what

we ascribe as the motive of the District Attorney

in committing any acts of prosecutorial

misconduct.

THE COURT: Well, I sustain the objection

to the question of whether they were under

pressure to speed up the investigation. It

obviously was done within a three-week period.

BY MR. BECK:

Q. Were you personally given enough time to conduct

an examination and an investigation on your part

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R-63

that you felt was sufficient?

A. With respect to the tasks that I had to complete?

We worked an enormous amount of overtime and were

rushed to complete those tasks immediately.

Q. And do you know why?

MR. WHETSTONE: Objection, if it goes to

the previous question you just sustained, Your

Honor.


MR. BECK: One moment please, Your Honor.


(A bench conference was held as

follows:)

MR. BECK: I would like to make an offer of

proof with this witness. I don't know how the

Court wants to conduct that. Again, what I just

described previously concerning the motive of

the, of the District Attorney at the time. I'm

just going to be very blunt. It appears that

this case was taken to a Grand Jury extremely

rapidly, which was a mere few days prior to the

election that Ms. Newcomb was handling. I also

expect to --

THE COURT: Well, you can ask this witness

the date of the election. I'm assuming you're

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R-64

referring to the republican primarily.

MR. BECK: I am, Your Honor.

THE COURT: There wasn't actually an

election.

MR. WHETSTONE: If I may, Your Honor, one

of the reasons I'm objecting is, this Court

issued an order about what would be heard today,

and this is brand new testimony relative to

motive that is political in nature. That is not

alleged. I'm not even sure it's grounds for, for

a dismissal. But we certainly didn't know there

was going to be political motive brought up

today. We thought it was going to be the three

things that the Court allowed to be heard today,

and the motion to change venue.

THE COURT: I'll allow you to make just an

offer right now. You can state what you want to

state.

MR. BECK: Yes, sir. We would expect that

this witness testified that -- she would testify

that her, other folks in her department, herself

included, were pressured to complete this

investigation for a rushed Grand Jury, that

several police officers expressed their

displeasure with rushing this investigation. And

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R-65

there was certainly not a continuity of opinion

amongst police officers concerning whether this

was a case of self-inflicted suicide or homicide.

MR. WHETSTONE: I object to it only on the

basis of, that the political motive is being

brought in too late. And, number two, it's not

grounds alleged in their motion.

THE COURT: Okay. All right. Have you

finished your examination?

MR. BECK: I have, Your Honor.

(Bench conference ended.)

THE COURT: You may cross examine,

Mr. Whetstone.

CROSS EXAMINATION

BY MR. WHETSTONE:

Q. In your investigation -- what did you say was

your part in this investigation?

A. I was one of the investigators assigned to assist

in investigating this case.

Q. What did they ask you to do, for example?

A. Interview witnesses, collect evidence, um, assist

in processing the truck, executing search warrants.

Q. Okay. And you performed those functions?

A. Yes.

Q. How much contact did you have with the District

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R-66

Attorney's Office?

A. I was present in the meetings.

Q. Yeah. What I'm asking is, was it every day or --

A. No.

Q. Okay. Um, the BlackBerry, you suggested to

someone that you wanted that BlackBerry opened?

A. Yes, sir.

Q. And you suggested an agency of the government

that might be able to open it?

A. Correct.

Q. And you selected Homeland Security?

A. Correct.

Q. Are you aware of any agency of the State of

Alabama that does that type work?

A. No, sir.

Q. Are you aware of the computer forensics lab

that's located in Birmingham, Alabama, that does

computer forensics of computers?

A. I am.

Q. Are you aware of whether or not that agency was

contacted to try to open up the BlackBerry?

A. There was some discussion of that, but I don't

remember exactly what the outcome was.

Q. Were you at trial?

A. Was I at trial?

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R-67

Q. Were you at the trial of this case for

Mr. Nodine?

A. I was a witness, yes, sir.

Q. Did you hear the testimony --

A. No, I did not.

Q. Well, I haven't even finished the question yet.

If you will give me a little time.

You a little angry?

A. No, sir.

Q. Okay. Were you present when --

MR. WHETSTONE: What's his name, James?

MR. RUTTER: Russell Yawn.

BY MR. WHETSTONE:

Q. -- Russell Yawn testified in the previous

trial --

A. No, sir.

Q. -- concerning, concerning his efforts to open the

BlackBerry?

A. No, sir. I was a potential witness so I was

seated in the hall.

Q. Okay. You weren't present. Okay. Were you ever

informed by your other officers before the trial,

that the Blackberry had been attempted to be opened

by forensic labs in Birmingham, Alabama, and it

couldn't be done?

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R-68

A. I was advised that attempts were made to gain the

information from the BlackBerry, and that they had

-- they were unable to retrieve the information.

Q. Okay. So you have evidence that they attempted

to open it?

A. Correct. And after receiving word that it could

not be done, I suggested that it be sent to

Homeland Security.

Q. Ah. Okay. But there were efforts to open it?

A. Yes, sir.

Q. Now, do you know Mr. Dennis Knizley?

A. Not personally, no, sir.

Q. Have you ever seen him before?

A. Yes, sir.

Q. You see him in the courtroom today?

A. Yes, I do.

Q. And you knew he was the Defense Attorney for

Mr. Nodine's case?

A. Correct.

Q. Are you aware that Mr. Knizley would have had the

right to have this BlackBerry tested?

A. Absolutely.

Q. Did he so request?

A. I was not privy to that request, if it was made.

Q. My point is, that evidence can be examine by

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R-69

either side.

A. Right.

Q. And you have been a police officer for a long

time and that's quite common.

A. Yes, sir.



BY MR. BECK:

Q. Briefly, ma'am. In an investigation like this,

did you and would you consider that BlackBerry to

be a very important piece of evidence?

A. Absolutely.

Q. Why was that?

A. Because it contained information prior to her

death, conversations between the suspect and

Ms. Downs.

Q. Now, you just testified that, um, that the

Defense could have sought to have that BlackBerry

checked; is that right?

A. Yes, sir.

Q. Okay. But you agree that probably Homeland

Security would be about the only agency that could

open that BlackBerry --


BY MR. BECK:

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R-70

Q. -- or is that just who you suggested?


BY THE WITNESS:

A. I suggested Homeland Security because of the

sophistication of the equipment that the United

States Government has.

BY MR. BECK:

Q. Do you know if a Defense Attorney has access to

that?

A. No, sir, I don't know.


MR. WHETSTONE: I have no further

questions.

THE COURT: Thank you. You can step down

and you can be excused.

(Witness excused.)

MR. BECK: The next witness will be Dr.

Eugene Hart.

THE COURT: Dr. Hart, you can come and have

a seat in the witness chair, please, sir.

DR. EUGENE HART,




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R-71

DIRECT EXAMINATION

BY MR. BECK:


A. My name is Eugene Hart.

Q. And, Dr. Hart, what do you do, sir?

A. I'm one of the medical examiners in Mobile.

Q. And with respect to the Angel Downs case, what

was your function?

A. I was the pathologist who did the autopsy on Ms.

Downs.

Q. And, of course, you previously testified and been

admitted as an expert before this Court; is that

correct?

A. That's correct.

Q. Dr. Hart, I want to turn your attention to the

timeframe from the time that you first conducted

the autopsy, up until you testified before the

Grand Jury. You with me?

A. Right.

Q. Okay. The -- when you conducted the autopsy,

first of all, who was present with you?

A. Um, it was myself. It was Detective Clopton, and

the morgue technician.

Q. And, of course, Detective Clopton was the

investigator at the Gulf Shores Police Department;

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R-72

is that correct?

A. That's correct.

Q. And shortly after you conducted the autopsy,

there was an occasion where you were asked to look

at the body a second time; is that correct?

A. Yes.

Q. Collect fingernail clippings; is that right?

A. Yes. I was told by somebody in the District

Attorney's Office that they were going to send the

body back, and this was a few days after the

autopsy. And they wanted me to, ah, check the

fingernails, and also look at the back of the scalp

again.

Q. In your experience -- first of all, let me ask

you, how long have you been doing this?

A. I started work in Mobile in 2005.

Q. In your experience, have you ever been asked to

look at a body a second time like this?

A. Not at that time, no.

Q. And during the autopsy itself -- I'm not going to

go through everything that you do within an

autopsy, but did you, based on the information that

you gathered at the autopsy, and based on the

information that you had gathered from other

sources, did you find anything that you believe was

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R-73

consistent with a self-inflicted gunshot wound?

A. Yes.

Q. And do you recall what those factors were, sir?

A. Yes, I do.

Q. What were they, please?

A. Well, first of all, it was a contact gunshot

wound to the right temple.

Q. And if I -- may -- would it be okay if I ask you

about each one very briefly as you go through them?

A. Of course.

Q. A hard contact that is more indicative of a

self-inflicted gunshot wound, why?

A. Well, I don't know why that is.

Q. Is that statistically? Just --

A. Well, it's been found that in these cases where

someone has died of a single gunshot wound of the

head, if it's a contact gunshot wound, it's much

more likely to be self-inflicted. And if it is not

a contact gunshot wound, it's much more likely to

be a homicide.

Q. And what about the angle of the actual bullet and

the --

A. The, ah, the path of the bullet went right to

left, upward, and slightly front to back.

Q. Is that more consistent with suicide or homicide?

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R-74

A. Again, I don't know of any studies that have

actually looked at that.

Q. What else was consistent with suicide, Dr. Hart?

A. Well, on autopsy, there was no sign that she had

been in a struggle, which is something that we look

at in these cases. Also, it was reported that the

weapon thought to have been used was lying next to

her, and again, that's typical for a suicide and

not typical for a homicide. And finally, she --

it was reported, at any rate, that she had tried to

kill herself in the past.

Q. And was that something that was important to you

to know also in your role?

A. Yes.

Q. And your role is to give your opinion. It's your

expertise, correct?

A. That's correct. Yes.

Q. And you made that opinion known, first of all, to

Detective Clopton, did you not, during the autopsy?

A. I did. Yes.

Q. And did Detective Clopton ever challenge you

about that opinion during the autopsy?

A. No.

Q. Did he appear to share your belief?

MR. WHETSTONE: Objection as to what --

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R-75



BY MR. BECK:

Q. Was there anything about the injuries that -- or

any of the information that you had, that was

consistent with a homicide?

A. No.

Q. Now, you have given -- you gave an undetermined

cause of death in this particular case on your

autopsy; is that correct? On your report?

A. Yes, I did.

Q. And you have given undetermined reports before;

is that correct?

A. That is correct. Yes.

Q. In the past when you have given a finding of

undetermined, was that consistent with the belief

of law enforcement? Were y'all, you know, in

lock-step with your opinion that it was

undetermined?

A. Yes. As far as I can recall in those other

instances, there was agreement between my findings

and the law enforcement.

Q. Was there something different about this case?

A. Um, yes.

Q. What was that?

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R-76

A. Well, there was, ah, um, disagreement, I guess

you could say.

Q. When was that disagreement made known to you,

sir?

A. Well, actually at the very beginning when I had

finished the autopsy and said that the findings

were consistent with suicide, it was again reported

to me that there were still doubts in the

investigating agency as to whether this was a

homicide.

Q. Was that reported to you from the District

Attorney's Office?

A. Um --

Q. Or did you at least describe that as the source?

A. I really couldn't say what the source of that

was. Um, again these were just -- I believe on

that day of the autopsy it was, ah, may have been

Detective Clopton who had mentioned that there was

some in the investigating agency that thought that

this was a homicide, and so that is why I didn't

call it suicide at the very beginning.

Q. And shortly after the autopsy, did this case go

to a Grand Jury fairly quickly?

A. Ah, again, I don't know what the average time to

go to Grand Jury is, but yes, it did go to Grand

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R-77

Jury, I believe it was that same year. Maybe it

was the next year. I'm not sure when.

Q. If I suggested it was within two weeks of the

death, would that sound consistent to you? Do you

recall that?

A. That seems awfully soon.

Q. That would be quick, wouldn't it?

A. Yes, that would be quick. Ah, I would, again,

think that it would have been a few months after

the death, but then again, I don't really recall.

Q. You don't have an independent recollection of

that, it's just what would be normal?

A. Well, again, what's normal varies from case to

case. It could be a year after a death before it

goes to a Grand Jury. But --

Q. Have you ever been -- reported to a Grand Jury

within two weeks of actually performing an autopsy?

A. Again, that seems awfully quick.

Q. And, Doctor, prior to the Grand Jury, your Grand

Jury testimony, do you recall a meeting with

members of the District Attorney's Office,

Detective Clopton, other investigators?

A. Yes.

Q. And do you recall a Dr. Snell being there, as

well?

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R-78

A. That's correct. Yes.

Q. And who is Dr. Snell?

A. At that time Dr. Snell, Dr. Kenneth Snell, was

the Chief Medical Examiner in Alabama.

Q. And was it unusual for Dr. Snell to be present at

that meeting in your estimation?

A. Um, yes. It was a first for me.

Q. And what was the purpose of that meeting as you

understood it?

A. As I recall, it was -- It was to just put forth

the evidence that they had collected at that time.

Q. The District Attorney's Office?

A. Yes.

Q. And do you recall Ms. Newcomb being present?

A. Yes. Ms. Newcomb was there.

Q. Do you recall one of her investigators by the

name of John Stewart being present? Or do you

remember them by name?

A. I'm afraid I don't remember their names.

Q. You don't know John Stewart, do you? By name.

A. I -- not by name, no.

Q. And during that meeting, would you agree with me

that, that investigators from the District

Attorney's Office were offering you reasons why

they believed this to be a homicide as opposed to a

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R-79

suicide?

A. Yeah. I think that would be a fair statement.

Yes.

Q. And do you recall some of the things that they

suggested to you during this meeting that would be

consistent with a homicide, or what they claimed

was consistent with a homicide?

A. I'm not sure I understand that question.

Q. Let me ask it a different way.

Did you find any of the things that they were

suggesting to you, to be of value in your

determination?

A. Well, I don't know if I would say that they were

valueless, but nothing offered was convincing as to

this case being a homicide, in my opinion.

Q. Have you ever had a case where you conducted the

autopsy and the prosecution brought in another

expert?

A. Ah, no.

Q. And you're aware, of course, that's what happened

in this case; is that right?

A. Yes.

Q. During the meeting with the District Attorney's

Office, how long did that meeting last?

A. Oh, I don't recall. An hour, maybe two.

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R-80

Q. And again, was that immediately -- Was that the

same morning that you testified before the Grand

Jury?

A. Yes.

Q. And at that point you had not -- you had not made

a finding concerning your position on any kind of a

report; is that right?

A. At that time the report had not been signed out,

no.

Q. Right. And after that meeting was concluded,

because of a disagreement between you and the

other -- and the District Attorney's Office, you

left the cause of death as being undetermined; is

that a fair characterization?

A. Well, ah, again, it was left as undetermined, and

this was on the advice of Dr. Snell, because,

although our findings were consistent with suicide,

the law enforcement agencies still thought this was

a homicide, and we couldn't prove that it wasn't a

homicide.

Q. Do you know which law -- I'm sorry. Were you

done with your answer?

A. Yes.

Q. Do you know which law enforcement agencies were

telling you that this was a homicide?

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R-81

A. I really don't know.

Q. But you know the District Attorney's Office was

positing that position.

A. Yes.

Q. And do you recall during that meeting, one of the

investigators from the District Attorney's Office

getting loud with you?

A. (No response.)

Q. Raising his voice?

A. Oh. Uh, no, I don't recall that.

Q. Okay. If other witnesses have testified as to

that fact, are you saying that didn't happen or you

don't recall?

A. I just, I just don't recall.

Q. I believe you testified previously about the

ability to always change your report later on. Is

that a somewhat accurate statement? If you get

additional information about a case, that you have

the right and duty to update your report from your

autopsy?

A. Yes. These autopsy reports can be amended.

Q. Has anybody from law enforcement, or the State of

Alabama, given you any additional information about

this case since you issued your report?

A. Um, no, I don't believe so.

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R-82

MR. BECK: One second, please, Your Honor.



MR. WHETSTONE: Is he through?

THE COURT: I don't know.

MR. BECK: One moment, please, sir.

MR. WHETSTONE: I'm sorry. I didn't hear

ya.




CROSS EXAMINATION

BY MR. WHETSTONE:

Q. Good morning, Doctor.

A. Good morning.

Q. I'm David Whetstone. I know we have run in

together once or twice before in our life, I think.

A. We have met. Yeah.

Q. Good to see you. I have been in this business a

good while, so I'll ask you a few questions.

When you did the first autopsy, I believe, and

you were being asked, it's based upon your findings

after you review the body and the crime scene. So

it's a, it's a factual analysis; is it not?

A. Um, well, first of all, there was only one

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R-83

autopsy.

Q. Yes. I'm sorry.

A. And, yes, forensic sciences is a science, and we

deal in facts, or what we think are facts.

Q. It's different from police science, isn't it?

A. Um, I would -- I wouldn't know. I don't know

police science.

Q. Okay. It's a particular science in Alabama which

is independent of police agencies; is that not

correct?

A. The Department of Forensic Sciences is

independent of law enforcement.

Q. And that's unusual in this country, isn't it?

A. No. That's the normal.

Q. It is now. I guess when I first started it

wasn't. But that's the --

So you would perform investigations for the

Defense as well as you would perform for the State

of Alabama.

A. Well, we perform investigations, and the evidence

we uncover is for anyone's benefit.

Q. So the evidence that you had subjected --

And you didn't know anything about the case

when you were doing the autopsy, or very little;

would that be fair?

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R-84

A. Well, I knew what I was told.

Q. Were you told that there was a problem between

Mr.[sic] Downs and Ms.[Sic] Nodine?

A. Not that I recall, no.

Q. Were you told that he was there seconds, or

minutes, or present at the scene when the gun went

off?

A. No, I don't believe I was.

Q. Were you told that there was previous assaults

against Mister -- Ms. Downs by Mr. Nodine in

multiple locations?

MR. BRUIJN: Object to the relevance of

this line of questioning.


BY THE WITNESS:

A. Not that I recall, no, sir.

BY MR. WHETSTONE:

Q. Yes, sir. Were you told that she was afraid of

him?

A. Ah, no, not that I recall.

Q. Were you told that as the gunshot went off,

Mr. Nodine left in his County red truck at a high

rate of speed away from the scene?

A. Well, I was told that at some time, but I'm not

sure when.

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R-85

Q. My point is, that would indicate -- would that

indicate something different to you? Those facts?

A. Well, no, not necessarily.

Q. It wouldn't tend to indicate that perhaps he was

involved with the shooting?

A. Well, no, not necessarily.

Q. Okay. The self -- second review of the body, did

it reveal anything to you that you didn't know

before?

A. Well, as I recall, I had, um, looked -- taken

pictures of the scalp and noticed that blood had

shifted. Again, the significance of this I'm not

sure, but that, that looked different from the

first time I looked.

Q. Okay. Can you tell me what you think that meant,

or what did you draw from that?

A. Well, um, it just -- it could have been a sign of

decomposition. It could have been blood in the

facial tissues shifting with gravity. Um, it could

have been just the lividity shifting. Um, I

believe those are the only three.

Q. Could it have been a blow?

A. A blow?

Q. A blow?

A. You mean trauma?

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R-86

Q. Yes.

A. No.

Q. Okay. Now, going back to the other question I

didn't ask you about, were you told that there was

no suicide note?

A. I was told that Ms. Downs had left no suicide

note for this gunshot wound.

Q. Were you told that she was seconds, or minutes

before the shot rang out, that she was planning to

go to a party and was happy?

A. I don't recall.

Q. Would that have any impact upon whether or not

someone would just shoot themself and no

depression?

A. Well, no. No, it wouldn't. It wouldn't have

affected my decision, no.

Q. Yes, sir. And I understand that your position --

and I'm not trying to pick on you, Dr. Hart, really

and truly. I understand your position is based

upon percentages of the gunshot wound that was to

the head and gun was found near her body. Would

that be the primary reason you determined suicide,

because of studies that indicate that's more

likely?

A. That, and the fact that she had attempted suicide

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R-87

in the past.

Q. Outside of that, is that based -- is that the

reason that you based on your initial conclusion?

A. Those are the major factors, yes.

Q. And was law enforcement telling you all this

other evidence that they had that indicated a

homicide at that meeting that was described by Mr.

Beck?

A. I'm not sure what other --

Q. Were they relating to you the evidence that they

had found that suggested it was a homicide?

A. They -- As I recall, they were relating evidence

pretty much about where Mr. Nodine had been that,

that night.

Q. Did they reveal to you at that time, the phone

calls that came up to a timeline as Mr. Nodine was

arriving at Ms. Downs' house?

A. They may have. I don't recall.

Q. Okay. You obviously didn't interview Ms. Downs,

so you don't know what was in her mind at the time

the gun went off.

A. Obviously not.

Q. Right. So when you concluded suicide, it was

based just upon the facts that you have reported

today.

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R-88

A. Well, again, manner of death in this case is

still undetermined.

Q. Okay.

A. Ah, but the findings at autopsy that I saw and

were reported to me, were consistent with suicide.

Q. Yes, sir. You really can't say who pulled the

trigger, can you?

A. Autopsy is not going to reveal who pulled the

trigger in this case.

Q. Yes, sir. And, ah --


BY MR. WHETSTONE:

Q. Mr. Beck was asking you questions concerning your

opinion and that the doctor from, I guess,

Birmingham had come down. Was it Dr. Snell?

A. Dr. Snell.

Q. Is he from Birmingham?

A. He was in Montgomery at that time.

Q. Okay, Montgomery.

And did the officer, or anybody, threaten you,

or coerce you, or force to you change your

professional opinion?

A. No, not that I know of.

Q. Would you have done so as a scientist?

A. No.

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R-89



BY MR. BECK:

Q. And, sir, would you agree with me that the main

purpose of that meeting was to have the District

Attorney's Office, through their investigators,

describe for you their belief as to why this was a

homicide?

A. Yes, that was my impression.

Q. And why in the world do you think that they

wanted you to know their impression?

MR. WHETSTONE: Your Honor, I object, if

he's trying to get into the minds of the

investigators.


BY MR. BECK:

Q. Did it appear to you that the purpose of that

meeting was to change your mind from suicide to

homicide, or at best, undetermined?

A. Um, again, I really don't know what their

motivations were.

Q. How did it feel to you?

A. Well, ah, yes. I, I think that, again, that the

case hadn't been assigned out at that time. And,

ah, it seemed like they wanted the manner of death

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R-90

to be listed as homicide.

Q. And that was -- That was the reason for the

meeting, for the most part?

MR. WHETSTONE: Objection to the reason of

someone not here.


BY MR. BECK:

Q. Mr. Whetstone asked you a series of questions, if

you knew this, would it change your opinion.

Do you have any way to know if any of the

questions that Mr. Whetstone asked you were based

in fact?

A. No.

Q. And were you also made aware of the toxicology

that was performed in this case?

A. At some point, yes.

Q. And do you recall what that was?

A. I have the report right here.

Q. Do you recall alcohol being in her system?

A. I'm sorry. I'm looking for the report.


BY THE WITNESS:

A. Um, yes. There was ethanol in her system.

BY MR. BECK:

Q. In what amount?

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R-91

A. .099 grams per one hundred milliliters.

Q. And what does that convert to in common

vernacular? A .09? .009?

A. It would be a .099.

Q. Which -- Are you familiar with the legal limit?

A. Yes. The legal limit is .08.

Q. And so that reading would be above the legal

limit.

MR. WHETSTONE: Your Honor, I object to

that. That's not the legal limit for that woman

to have in her blood steam. She wasn't driving a

car.

MR. BECK: I withdraw the question. He is

right.

BY MR. BECK:

Q. In your opinion, would that have made her

intoxicated?

A. Um, yes. She should have been intoxicated at

.099.

Q. And what else? What else was in her system?

A. She also had Alprazolam.

Q. That is that otherwise known as?

A. Xanax.

Q. What else was in her system?

A. She had amphetamine in her system.

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R-92

Q. Anything else, sir?

A. Also Zolpidem.

Q. And what is that better, otherwise known as?

A. Ambien.

Q. What is Ambien?

A. It's a sleep aid.

Q. And in your expertise and professional opinion,

is that particular sleep aid related to other

potentially devastating side effects?

A. I really couldn't say.

Q. Is that beyond your expertise?

A. Yes.

Q. And did the toxicology that you see today, is

that something that you considered to be more

indicative of suicide, or more indicative of a

homicide?

A. Um, well, it could go either way.

MR. BECK: That's all I have for Dr.

Downs[sic].

THE COURT: Any recross?

MR. WHETSTONE: Very quickly.

You have got in your report --

MR. BECK: I'm sorry. I didn't mean Dr.

Downs. Excuse me.

(Laughter in the courtroom.)

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R-93

MR. WHETSTONE: Well, that's --

RECROSS EXAMINATION

BY MR. WHETSTONE:

Q. On two, on the first page, Doctor, on your final

diagnosis --

A. Yes.

Q. -- um, abrasion to the right hand. What did you

-- Do you recall what those abrasions were?

A. There were some minor blunt-force injuries on Ms.

Downs' right hand.

Q. And did you ascribe any evidence to that, as to

why there were blunt-force injuries on her right

-hand?

A. No. The significance of these injuries is

unknown to me.

Q. Okay.


questions.

FURTHER REDIRECT EXAMINATION

BY MR. BECK:

Q. And if you saw a picture of those particular

injuries on a photograph of Ms. Downs the day

before, would that then give you pause to

reconsider the significance?

A. Well, if they were on her hand before she killed

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R-94

herself, or rather before she died, then certainly

I might think that it was very little significance

to those injuries.

Q. And you're looking at Defendant's Exhibits 1 and

3 right now; correct?

A. This is 3, (indicating). This is 1,

(indicating). Yes.

Q. And Defendant's 3 is photos from the autopsy; is

that correct?

A. That is correct.

Q. And most prominently, there is an injury on the

middle finger around the knuckle.

A. Yes, there is.

Q. Okay. And do you see that same injury, or what

appears to be the same injury, on that photograph

from Defendant's Exhibit No. 1?

A. Yes. I see something in the same position that

looks very similar.

Q. And if Dr. Downs had testified previously that,

that injury was one of the main reasons he felt

that this was a homicide because it was a defensive

wound --

MR. WHETSTONE: Your Honor, I object to the

characterization of "main reason."


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R-95

BY MR. BECK:

Q. If a primary reason, or a primary finding of Dr.

Downs was ascribing that injury as a defensive

wound to be consistent with homicide, would you

agree or disagree with that opinion?

MR. WHETSTONE: Again, I object. "Primary"

is an improper word used. I could understand

"evidence" of it, but him describing it as a

primary reason, I object to it.


BY THE WITNESS:

A. I would disagree.

BY MR. BECK:

Q. You are the State of Alabama -- you're the

person that did this autopsy in this case, correct?

Obviously.

A. Yes, it is.

Q. Nobody has taken you off this case, have they?

A. No.

Q. Has anybody from law enforcement or the State of

Alabama given you this picture, or any other

pictures of Ms. Downs from the day before?

A. No, they haven't.



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R-96

THE COURT: Doctor, you can step down and

you can be excused.

(Witness excused.)

THE COURT: We are going to recess court

for a morning break and we'll reconvene at five

minutes after eleven.

(Recess held.)

THE COURT: You can call your next witness.

MR. BECK: Thank you, Your Honor. Dan

Dollarhide.

DAN DOLLARHIDE,




DIRECT EXAMINATION

BY MR. BECK:


A. Dan Dollarhide.

Q. What is your function in the District Attorney's

Office?

A. I'm an investigator.

Q. And how long have you been employed as such?

A. I have been an investigator with the District

Attorney's Office since January 17th of last year.

Q. And how much prior law enforcement experience do

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R-97

you have?

A. About 15 years.

Q. And, Dan, did you become involved in the

investigation of the Downs case at some point?

A. I did.

Q. And in what context?

A. As an investigator with the District Attorney's

Office, I was asked to check on a few of the -- do

a couple of followup things on the case when we

came into the office.

Q. Okay. And what were the things that you were

assigned?

A. One was, there was a piece of evidence, a

BlackBerry phone that had not been -- had data

extracted from it, and I was asked to see if I

could make headway on that.

Q. And what steps did you take with respect to that

BlackBerry? That's what I wanted to focus on with

you.

A. Okay. Initially, the BlackBerry was turned over

to me from evidence, that and a couple of laptop

computers, and I took them to Gus Demotrellis(ph)

-- and if I butchered his last name, I apologize --

over in Mobile to see if he could accesses the

data.

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R-98

Q. And with respect to the BlackBerry, where did you

ultimately end up sending the BlackBerry to have

data retrieved?

A. Ultimately it was sent to -- well, it was sent by

me over to the FBI office in Mobile to Agent Lisa

Ryder, who then transferred it to their CART unit

in Quantico, Virginia.

Q. And is it your understanding that that's where

the expertise was available to open this

BlackBerry?

A. Yes, it was.

Q. To the exclusion of anyone else?

A. Are you asking me if the expertise was excluded.

Q. Could anybody else do it?

A. No. The -- initially -- my initial thought was

maybe Gus would be able to access the data, but in

talking with him and Lisa Ryder, we all determined

that the better route to do, would be sending it to

the FBI. They're more qualified. And I spoke with

members of that unit in Quantico by telephone so

they could explain to me very loosely what their

process would be, and make sure it was going to

suit what we were doing.

Q. And that is an expertise available to law

enforcement agencies, correct?

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R-99

A. Yes.

Q. Not necessarily private individuals?

A. I would not think so.

Q. And after some period of time, did you, in fact,

get a report back from the FBI detailing

information from that BlackBerry phone?

A. Yes, we did.

Q. What type of information did you get?

A. Um, well, the report contained text messages that

had been on the phone, emails, contact lists, um,

there was call records, things of that nature, the

things that you would expect to find on a

telephone.

(Defendant's Exhibit 5 was marked.)

BY MR. BECK:

Q. I'm handing you what I marked for identification

as Defendant's Exhibit No. 5. Would you identify

that document, please?

A. This appears to be the report that they sent back

that includes text messages, both sent and

received, from that BlackBerry.

Q. And does that report fairly and accurately

represent the report that you got back? Is it the

same report that you got back?

A. Yes.

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R-100

Q. With respect to the text messages, correct?

A. Correct.

Q. And it's also -- this is marked as Defendant's

Exhibit No. 5, and also bate stamped by the State

of Alabama, 2899, State versus Nodine.

MR. BECK: Move Defendant's No. 5 into

evidence.

MR. WHETSTONE: Your Honor, I'm not sure if

there is any other extraneous information on this

particular document, which this witness may not

be able to identify. And I would object to it on

the basis that he's got handwritten things all

over it, which I'm not sure he can --

THE COURT: Well, you want to take the

witness on voir dire?

MR. WHETSTONE: Briefly.

THE COURT: Go ahead.


VOIR DIRE EXAMINATION

BY MR. WHETSTONE:

Q. Officer, these names that are listed here on this

front page, where did they come from?

A. The handwritten names? I do not know.

MR. BECK: And I would note to the Court

that this is the copy that we got from the

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R-101

Attorney General last week in the discovery

packet. So the names that are written on there

may not have been made by this witness, but

presumably someone attached to this

investigation.

MR. WHETSTONE: Someone. And the reason I

objected, Your Honor, is that some of these names

mean things to me. And I guess we can redact

them, but we can do that later.

MR. BECK: I have got it right now, Judge.

THE COURT: You have a clean copy?

MR. BECK: Yes, sir.

THE COURT: Okay. Let's mark that as

Defendant's 5.

COURT REPORTER: (Complied.)

DIRECT EXAMINATION CONTINUED

BY MR. BECK:

Q. And I'm going to hand you what's now been marked

as Defendant's Exhibit No. 5. Is that the same

document that I just handed you with the

handwritten names removed?

MR. WHETSTONE: No objection, Your Honor.

THE COURT: Defendant's Exhibit 5 is --

MR. WHETSTONE: Wait just a minute. He's

found something.

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R-102

THE COURT: There are some handwritten

names.

MR. BECK: Okay. Oh, I didn't know that.

Dave, I highlighted the ones from --


MR. WHETSTONE: I have no objection to the

way Mr. Beck is going to proceed in that regard,

Your Honor. He's going to explain away --

THE COURT: The Court has already admitted

Defendant's Exhibit 5.

MR. WHETSTONE: Okay, then I will sit down,

Your Honor.

BY MR. BECK:

Q. I am showing you a call record number 70, just as

an exemplar, and that phone number right there, do

you recognize that telephone number?

A. I don't have the phone numbers committed to

memory, sir.

Q. Okay. Did you review the text messages that were

retrieved from that telephone?

A. Yes, I did. I have reviewed them.

Q. Did you review the text messages and associate

them, at some point, with telephone numbers?

A. Yes, I did.

Q. And turning to messages 50, 51, 53, and 54, not

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R-103

because anything was written on that, but can you

-- do you recognize the contents of those text

messages?

A. Yes, I do.

Q. And does that refresh your recollection as to the

phone number on that, on those particular records?

A. Yes, sir.

Q. And whose phone number does that belong to?

A. That would have been Mr. Nodine's phone number.

Q. And turning your attention directly to those

telephone records, what was the date and the time

that those, that those text messages were sent?

A. Um, particularly number 50, beginning with that,

it was sent on May 5th, 2010.

Q. And were those times Greenwich Mean Time, which

was five hours off?

A. I believe. As I recall they were. Correct, they

were in Greenwich Time.

Q. Okay. And on May 5th, at approximately 1448:30

we have a string of messages that were sent from

that BlackBerry; is that correct?

A. Yes, sir.

Q. And they were sent from Angel Downs to whom?

A. Appears to be Mr. Nodine's phone.

Q. Okay. And can you tell me what those messages in

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R-104

particular say?

A. Would you like me to read the messages?

Q. Yes. Just those.

A. Message 50 says, If you want it -- and "it" being

in quotation marks -- you get it.

And then it has a comma, smiley face.

51 says, begins with a smiley face, and then

says, Don't forget your -- spelled U R --

quotations, cover, too.

The next message is a different number. The

same number would be message 53. It says that I am

cautious. And then it has a smiling face.

Message 54 says, Your phone won't C H G --

which I take to be change -- unless your car is on.

Or charge, rather. That's a good one.

Q. Okay. And those four messages were all sent on

the same day, within half an hour of each other?

A. Yes, sir.

Q. Had you reviewed the transcript of the first

trial at all?

A. Some of it, yes, sir.

Q. Was there -- in your investigation was there any

significance that you ascribed to those text

messages and the timing?

A. Well, as far as -- I guess I don't quite

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R-105

understand.

Q. Um, were you aware of the allegations of stalking

against Mr. Nodine that were, that were one of the

counts of the indictment, and also part of the

felony murder charge?

A. Yes, sir.

Q. And what significance did those particular

messages have with respect to those charges?

A. Well, it appeared to me that the timing of those

messages, that they approved to invite contact with

Mr. Nodine, which is in contrast to what I would

expect to see in a stalking situation.

Q. And did they appear to invite intimate contact

with Mr. Nodine to you?

A. Yes.

Q. And would you agree with me that the Mullet Toss

event occurred on or about April 25th, 2010?

A. Yes, sir.

Q. And these messages would have been transmitted

approximately four days prior to Ms. Downs' death?

A. Yes.

MR. BECK: That's all I have.



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R-106

CROSS EXAMINATION

BY MR. WHETSTONE:

Q. Have you ever been to any courses concerning

domestic violence and the affect it has on a person

who is being beaten, or being assaulted, upon her

relationships to the person doing it?

MR. BECK: I object to the relevance.

THE COURT: Overrule the objection. It's

cross examination.

MR. BECK: Yes, sir.

BY THE WITNESS:

A. I'm sure I have.

BY MR. WHETSTONE:

Q. Yeah. Have you seen women go back to men, even

though they had been beaten, in your career?

A. Yes, I have.

Q. Not -- pretty common, ain't it?

A. I have seen it happen. Yes, sir.

Q. How many incidences of assault did you uncover

that Mr. Nodine had against Angel Downs before her

death?

A. I -- that really wasn't the part of the

investigation I really had a whole lot to do with.

I couldn't say that I uncovered anything, sir.

Q. You mentioned one, or Mr. Beck did, at the Mullet

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R-107

Toss.

A. I'm familiar with the event, but I didn't --

again, speaking to the witnesses wasn't really part

of what I was doing.

Q. Mr. Beck asked you whether or not you were

investigating the stalking issue. Would it be

relevant for you to know how many times he has

attacked her, or threatened her, relative to

whether or not he was stalking her?

A. Um, I wasn't actually investigating the stalking

case, but yes, sir, I could see where that would be

relevant.

Q. Are you familiar with the New Orleans incident?

A. Only anecdotically. I did look into that myself.

Q. Okay. Do you know whether or not she felt like

he was going to kill her? Do you have any evidence

of it?

A. I, I don't recall, sir. I'm sorry.

Q. Okay. Did you investigate any alleged stalking

in the state of Florida with another woman?

A. I don't -- I didn't, no, sir.

Q. Are you aware of it, or have you been made aware

of it by anybody else?

A. I -- maybe if you could --

Q. Pardon?

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R-108

A. -- refresh my memory a little bit. I'm not real

sure what you are speaking of.

Q. Well, I'm trying not to get into the specifics of

it because Judge Partin has ruled --

I'm asking if you were aware of anything.

A. You're asking about in the state of Florida?

Q. Yes, sir. South Florida.

A. I'm sorry.

Q. Okay. Okay.

MR. WHETSTONE: That's all, Your Honor.

Thank you.


BY MR. BECK:

Q. Do you understand that stalking requires a

continuity of events?

A. Yes. I mean, I haven't -- it's been a while

since I looked at the stalking code, but I believe

it's a series.

MR. WHETSTONE: Your Honor, if he's asking

for a legal conclusion, we maintain that's up to

the Court.

THE COURT: He's already answered the

question.

BY MR. BECK:

Q. And certainly text messages from Ms. Downs to

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R-109

Mr. Nodine inviting intimate contact four days

beforehand, would not be consistent with a

continuity of purpose with respect to --

MR. WHETSTONE: Objection; calls for a

legal conclusion.




THE COURT: All right. Investigator, you

can step down and you can be excused.

THE WITNESS: Thank you, Judge.

(Witness excused.)

MR. BECK: May I have one moment please,

sir?


MR. BECK: I call Justin Clopton.

THE COURT: Officer, you can have a seat in

the witness chair and I'll swear you in.

JUSTIN CLOPTON,




DIRECT EXAMINATION

BY MR. BECK:

Q. Would you state your name, please, sir?

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R-110

A. Justin Clopton.

Q. And, Justin, what is your profession?

A. I'm a law enforcement officer.

Q. With the City of Gulf Shores?

A. Yes, sir.

Q. And what do you do with the City of Gulf Shores

specifically?

A. I'm a corporal, a shift corporal for the -- I

guess you could say on the road, is what we

actually call it.

Q. To be fair to you in your testimony, have you

been working some long hours this weekend down in

Gulf Shores?

A. Oh, yeah.

Q. Justin, did you have involvement with the Downs

case?

A. Yes, sir, I did.

Q. And what involvement did you have?

A. I was the lead investigator for the City of Gulf

Shores when that took place.

Q. And were you the designated liaison for the City

of Gulf Shores as far as this investigation was

concerned?

A. Yes, sir.

Q. And were you present at the autopsy?

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R-111

A. Yes, sir.

Q. And you were with Dr. Hart at the autopsy, and

were you also present at a meeting with Dr. Hart

after the autopsy?

A. That's correct.

Q. During the autopsy itself did you ever -- did

you give Dr. Hart any background concerning the

incident itself, and what y'all had learned?

A. Yeah. The autopsy had already started by the

time I got there, and I did fill him in on what we

suspected happened.

Q. Okay. And what did, what did you tell him you

all suspected happened at that point?

A. Well, of course, our thought was, you know,

everything looked consistent with suicide, but

there was circumstances that was surrounding the

case that we just did not have pieces of the puzzle

to match with it.

Q. And certainly, was it valuable to have Dr. Hart

look at the body with his professional expertise

and give an opinion?

A. That's correct.

Q. And did Dr. Hart express to you an opinion during

the performance of the autopsy?

A. That's correct.

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R-112

MR. WHETSTONE: Objection to what Dr. Hart

said.


BY MR. BECK:

Q. And what did Dr. Hart say?

A. He also stated that it seemed consistent with

suicide, or a self-inflicted gunshot wound.

Q. Fast forward to the meeting that occurred with,

uh -- where Dr. Hart was present. Do you recall

other people that were present at that meeting?

A. There were quite a few.

Q. Members of the District Attorney's Office?

A. Yes.

Q. Ms. Newcomb?

A. Yes.

Q. John Stewart?

A. John Stewart was there.

Q. Ms. Jarman?

A. Yes.

Q. And a number of other people. Certainly Dr. Hart

and Dr. Snell, too?

A. Yes.

Q. And where did that meeting take place?

A. I want to say it was at the District Attorney's

Office across the street.

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R-113

Q. And in proximity to this case being presented to

the Grand Jury, or actually Dr. Hart giving his

testimony, how close in time was that meeting? Was

it the same day Dr. Hart testified?

A. I cannot recall that, if the meeting was the same

day.

Q. And do you recall from the time that Ms. Downs

died to the point where the case went to the Grand

Jury, do you remember how much time had elapsed?

A. Personally, it seemed kind of short, but I cannot

remember exactly how long it took. I know it was a

few weeks. And a few weeks, I cannot really

elaborate on how long that was. I cannot remember

exactly.

Q. What do you mean, it felt short?

A. Well --

Q. You said, "it felt short." What did you mean by

that?

A. I have not worked a whole lot of murder

investigations in my career, although I am a

16-year veteran of law enforcement. But the ones I

have been involved in, I mean, it seemed like it

took an amount of time to be able to collect all

the evidence that we needed, to sufficiently to

prosecute the case.

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R-114

Q. And it the feel to you that this was quick with

respect to that?

A. It seemed a little quick.

Q. Okay. And were you told to have reports ready in

a very quick manner for that Grand Jury?

A. Yeah. We were, we were rushed. I mean, it --

Q. And when you say --

A. We worked long hours getting all that together.

Q. And which entity rushed you?

A. Well, I would say D.A.'s Office did also, but the

Sheriff's Office was involved also, which we all

were trying to work together to get all of it as

organized as we could.

Q. Was it expressed to you the reason for it being

rushed? Was it to get it to the Grand Jury?

A. It was to get to Grand Jury.

Q. Did you ever express your personal displeasure,

or hesitancy, regarding how quickly this case was

being required to be investigated?

A. No, I did not.

Q. And at the meeting that I mentioned previously

with Dr. Hart and Dr. Snell, how would you describe

the demeanor of that meeting?

A. It got kind of, at one time a little, I would say

irrational.

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R-115

Q. Mm-hmm.

A. Some of the D.A.'s investigators did get kind of

upset on some of the disagreements with Dr. Snell

and Dr. Hart's decision.

Q. And Dr. Snell and Dr. Hart, when that meeting

started, what was their position and what was their

expert opinion?

A. Well, their position, they really didn't know why

they were there. Ah, based on their opinion, you

know, by looking at the pictures, they was pretty

much clear to us, I -- as my opinion, that this was

self-inflicted. And it didn't seem that, you know,

there wasn't much that they could change based on

what they saw.

Q. And by the end of the meeting did they agree to

list the cause of death as undetermined?

A. Yes, they did. And, ah, more or less, I feel the

reason why they did this was because it was still

an ongoing investigation, and that was more like

what we was trying to express to him during this

meeting.

Q. Mm-hmm. And was -- do you recall members of the

District Attorney's Office telling Dr. Hart,

expressing to him why they actually believed this

was a homicide?

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R-116

A. Yes.

Q. And if aspects of the investigation were ongoing

and cause of death was to be left undetermined,

would that be consistent with your feeling that

this investigation was rushed?

A. Could be.

Q. Did anybody ever express to you why the Grand

Jury was meeting in such short order?

A. No.

MR. BECK: That's all I have.

CROSS EXAMINATION

BY MR. WHETSTONE:

Q. Good morning.

A. Morning.

Q. Busy weekend?

A. Slightly.

Q. You were performing the investigation and one of

the first officers on the scene?

A. I was there about 30 minutes after it had taken

place.

Q. Were you aware of, that Mr. Nodine had been there

and had left at a high speed?

A. We were suspecting it, yes.

Q. Does that mean anything to law enforcement when

somebody flees from the scene?

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R-117

A. Definitely does.

Q. Indicates guilt, doesn't it?

A. Could.

Q. Yeah. Were you aware that there had been threats

against her at that time?

A. No, I was not.

Q. So that part of the investigation you weren't

aware of?

A. Right.

Q. Were you asking Dr. Hart to leave the decision

open while y'all conducted your investigation?

A. No, sir, I did not.

Q. Did you think it was wise to leave it open

until --

A. I think it would have been.

Q. Right. Not make a call?

A. Right.

Q. Do you think, was Dr. Hart forced to change his

opinion?

A. No, I do not.

MR. BECK: Object and move to strike.

THE COURT: Deny the motion to strike.

He's answered.

MR. WHETSTONE: Okay.

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R-118

BY MR. WHETSTONE:

Q. Did you see anything at the scene that night that

suggested something other than suicide?

A. Probably not that night -- well, yes. I mean,

different photographs that I had taken, um -- there

are reasons why we've taken photographs. It's

because it's, it's something of the obvious nature

that we need to look into more specifically.

Q. You can't always tell a book by looking at its

cover?

A. That's correct.

Q. And so you wanted to look on the inside of that

book?

A. That's correct.

Q. And is that what you were doing?

A. Yes, sir.



BY MR. BECK:

Q. And certainly, in your opinion, it would have

been wise to continue looking until all the

evidence would have been evaluated before sending

it to a Grand Jury.

A. Obviously.

Q. And have you been made privy to additional

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R-119

evidence that's been interpreted and recovered in

this case?

A. Uh, since trial I have only had one meeting with

the Attorney General's office, and, ah, other

evidence I have not really -- no one has actually

told me about the evidence that -- you know, what's

been found.

Q. Were you present with the meeting with Dr. Downs

since the trial?

A. No.

Q. All right. That's all.


THE COURT: All right, Officer Clopton, you

can step down and be excused.

(Witness excused.)

MR. BECK: I call Danny Steelman.

THE COURT: Officer, you can come and have

a seat in the witness chair.

DANIEL STEELMAN,




DIRECT EXAMINATION

BY MR. BECK:


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R-120

A. Daniel Steelman.

Q. You go by Danny?

A. Yes, sir.

Q. And, Danny, what is your profession?

A. I'm an investigator for the Baldwin County

Sheriff's Office.

Q. In May of 2010, is that how you were also

employed then?

A. Yes, sir.

Q. And were you involved in the Downs case?

A. Yes, sir.

Q. And what was your function in that case?

A. Um, I first got involved on the night of May 9th,

called up to our annex building to interview

Mr. Nodine.

Q. And were you involved in the investigation after

interviewing Mr. Nodine?

A. Yes, sir.

Q. And what else did you do in the investigation?

A. I drew a search warrant and executed it on his

vehicle. I also -- I mean, I did a lot of

different interviews, and a lot of stuff in general

over the next couple of weeks in the investigation,

and months later as well.

Q. With respect to evidence collection and

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R-121

submission of the evidence?

A. I didn't submit any evidence that I recall.

Everything kind of went back to Detective Clopton

with Gulf Shores Police Department. Detective

Clopton did bring me items and I did look at some

of the items, various different items of the case.

Clothing, and items that I recovered from the

vehicle with Mr. Nodine. I did look at the firearm

that was recovered by Detective Clopton prior to it

going to DFS, and then also after it came back from

DFS.

Q. And I think you actually lifted prints off the

gun after it was sent to DFS.

A. Yes, sir, that's correct.

Q. Okay. And is it true that that gun had already

been cleaned by DFS by the time it got back to you

to lift the prints?

A. It was in a different state when it returned to

me than when I first saw it. I saw it -- I don't

recall the date off the top of my head. It was

brought to me by Detective Clopton, and he came up

to the Sheriff's Office. I took a picture of the

gun, and then Detective Clopton took it with him to

submit to the lab, then brought it back to me

afterward, for fingerprint processing. It was --

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R-122

as far as wiped down, it was altered. It wasn't in

the same state. I don't know exactly what they did

to it, but it was changed.

Q. Did you request the opportunity to lift

fingerprints prior to it being sent off to DFS?

A. There was a discussion and a meeting about that,

and I was told that it was going to be sent to DFS.

Q. You were not permitted to lift prints at that

point?

A. Um -- it's more than just a simple yes or no

answer on that, sir.

Q. I'm sorry. Okay.

A. You want me to elaborate?

Q. Yes, sir.

A. It was a meeting. We had a discussion. The

discussion was about the firearm, the defect on Ms.

Downs' head. There were several people in the

meeting from Gulf Shores Police Department, and the

Sheriff's office, and Baldwin County D.A.'s Office.

And during that meeting someone, it wasn't me,

suggested -- I don't remember who suggested it --

that we bring the gun back from that meeting to the

Sheriff's Office and I would examine it, look at

some of the blood, maybe talk about fingerprinting

it and photographing it. And there was discussion.

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R-123

Some people broke away. And I was dealing with

Mr. John Stewart at this point, he came back and

told me that, You know, Hey, Detective Clopton is

going to keep the gun. We don't want you

manipulating it or doing anything with it. You can

take a picture of it so we can compare it to the

defect on the head, but we are going to send it off

to DFS to do everything else to it.

Q. And, of course, DFS never lifted the prints, did

they?

A. No. I talked to Detective Stewart about it, I

told him, that's not what DFS does. And he said,

Well, you're not armor. You're not qualified to do

anything with it but photograph it.

Q. Not to belabor it, but you've obviously had quite

a bit of training in lifting fingerprints,

fingerprint analysis, and collection of evidence,

haven't you?

A. I have had some training, yes, sir.

Q. Okay. What was -- were you the Sheriff's

Department liaison in this investigation?

A. Yes, sir, I was. Most of the work product from

the other investigators, the Sheriff's Office,

would come to me and I would give to Mr. Stewart.

And I was kind of handling the gathering of our

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R-124

paperwork from the Sheriff's Office and bringing it

to Mr. Stewart, who was my contact in the D.A.'s

Office.

Q. And where y'all given a deadline to have reports

finished by a certain time?

A. We had a meeting at our -- it's called a Central

Annex for the Sheriff's Office building, but an

annex building in Robertsdale. The probate office

and all is housed there. And there was a deadline

on getting these reports done, because I remember

some of the guys had to stay late to get their work

done and typed up.

I don't remember the deadline. I don't

remember the day of the meeting, but yeah, it was

said that we need them completed ASAP, and get the

reports turned in because it's going to be going to

the Grand Jury. I don't remember if it was the

next day or the next week, or -- but seems like it

was later in the week it was going to Grand Jury.

Q. Did it, did it feel rushed?


object. It's outside the scope of the three

things that we are --


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R-125

BY MR. BECK:

Q. And, Mr. Steelman, were you present for a meeting

with Dr. Hart in the District Attorney's Office?

One of the folk that was present prior to Dr. Hart

testifying?

A. Yes, sir.

Q. Okay. Thank you. And, um, do you recall the

demeanor of that meeting with Dr. Hart?

A. I mean the meeting, it ebbed and flowed. I mean,

it wasn't a -- the whole meeting wasn't exactly the

same.

Q. And do you recall, do you recall any point in

that meeting where discussions with Dr. Hart were

heated and loud, concerning his opinions in this

case?

A. They did become heated at one point.



MR. WHETSTONE: Very briefly.

CROSS EXAMINATION

BY MR. WHETSTONE:

Q. When you went to the scene, did you lift any

fingerprints at all?

A. I didn't go to the scene.

Q. Not the scene. Later on did you lift any prints?

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R-126

A. From?

Q. The gun?

A. The gun. I attempted to lift prints and did not

find any of value.

Q. Okay. Of any value.

The, um, when you read the reports and you

took the statements from Mr. Nodine that night, did

they seem consistent with what you saw on the scene

that night, or were they inconsistent?

A. I didn't see the scene.

Q. Well, you were made aware of the scene.

A. Yes, sir, later by Detective Clopton.

Q. Were there any inconsistencies that alarmed you

at that time?

A. Detective Clopton didn't really give me a lot

about what the scene looked like. It was more

about, an eyewitness in the area that saw him

leaving the area.

Q. That's what I was getting at. Did that suggest

something to you?

A. It suggested that during the time of the shooting

event that Mr. Nodine would have been in very close

proximity.

Q. And left in a hurry?

A. And left in a hurry, yes, sir.

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R-127



THE COURT: You can step down and you can

be excused.

(Witness excused.)


MR. BECK: I call J.D. Whetstone.

THE COURT: Mr. Whetstone you can have a

seat and I'll swear you in.

JOHN DAVID WHETSTONE, JR.,




DIRECT EXAMINATION

BY MR. BECK:


A. John David Whetstone, Jr.

Q. And, of course, you're Mr. Whetstone's son; is

that right?

A. Yes, sir.

Q. And in May of 2010, how were you employed?

A. I worked at the District Attorney's Office as an

investigator.

Q. Okay. And I want to ask you -- you go by J.D.,

right?

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R-128

A. Yes.

Q. J.D., I just want to ask you about one thing.

You are familiar with the BlackBerry phone; is that

correct?

A. A little bit, yes, sir.

Q. And did you ever make suggestions to anyone in

the District Attorney's Office that, that

BlackBerry phone could, in fact, be opened by the

FBI?

A. No.

Q. All right. Did you ever make that statement to

your father?

A. Ah, no, not by the FBI. I did receive -- I

called REM, which is the maker of the phones, and I

-- they never verified that the phone could be

gotten into, but, you know, they said that they

would get their legal department to call us back.

And I never got the return call.

Q. Did you ever make the statement to anybody that,

yes, this phone can be opened, or words to that

effect?

A. No.

Q. Did you ever mention that to your father?

A. No.

Q. Okay. All right.

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R-129


THE COURT: Any cross examination?

MR. WHETSTONE: No, sir.

THE COURT: You can step down and you can

be excused.

(Witness excused.)

MR. BECK: I call Mr. Whetstone briefly for

the purpose of that question.

MR. WHETSTONE: If it's for that limited

purpose, Judge, I --

MR. BECK: Limited purpose.

MR. WHETSTONE: -- presume there's no

ethical issue involved with me prosecuting and

taking the witness stand.

MR. BECK: I think that's proper.

THE COURT: Shelagh, are you ready?

COURT REPORTER: Yes, sir.

(Limited testimony of John David

Whetstone was given at the bench as

follows:)

MR. WHETSTONE: My son, J.D., informed me

that he had called REM. He was very excited

about it, and he thought that REM might be able

to open that phone and then legal call him back.

And that indicated to me that they could

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R-130

technically open it, but there may be a legal

issue about opening it. And I believed the phone

could be opened, and I thought the phone should

be opened.

MR. BECK: And you expressed that to Ms.

Dixon?

MR. WHETSTONE: I told Ms. Dixon that. I

told them I would not try the case unless they

tried to open it.

At that time, Your Honor, Ms. Dixon had

asked me to consider trying the case for her, and

told her I would. And I told Ms. Dixon that I

did not want to go forward without trying to open

that phone. That is absolutely correct.

THE COURT: Okay.


MR. BECK: I call Hallie Dixon.

(Brief pause.)

MR. BRUIJN: Ms. Dixon is not located where

she was previously located. Anybody else?

MR. BECK: Yeah. Let me call Dennis

Knizley.

MR. WHETSTONE: Beck.

May I approach the bench, Your Honor?


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R-131

MR. WHETSTONE: I have no idea what

Mr. Knizley is about to say, but --

THE COURT: That makes two of us.

MR. WHETSTONE: Yes, sir. But he is on the

stand and under oath, and I'm quite sure he will

tell the truth as he always has. But I don't

know what he's going to say, but he was the

lawyer of Mr. Nodine and I'm assuming they're

waiving his attorney/client privilege.

THE COURT: Well, as to anything they ask

him, he is.

MR. BECK: I don't anticipate asking Mr.

Knizley any questions concerning any discussion

with Mr. Nodine, certainly.

MR. WHETSTONE: You understand what I'm

getting at, Your Honor.

THE COURT: The fact that he takes the

stand doesn't open him up to where you can cross

examine him concerning any privileged

communication.

MR. RUTTER: Yes, sir.

MR. WHETSTONE: Yes, sir. What I was going

to say, if he got into something and he only got

into a limited portion of something, I should be

able to cross examination as to the other portion

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R-132

of it, would be my belief. That would be a fair

cross examination. I'm not sure he's going to do

that.

MR. BECK: I would suggest that's

Mr. Knizley's duty to invoke any privilege that

he feels is appropriate, based on anything --

MR. WHETSTONE: With all due respect, I

think it's --

THE COURT: I have no idea what Mr. Beck is

going to ask him.

MR. WHETSTONE: I guess we shall start.

Thank you.


DENNIS KNIZLEY,




DIRECT EXAMINATION

BY MR. BECK:


A. Dennis Knizley.

Q. And, Dennis, what do you do?

A. I'm a lawyer.

Q. And did you represent Stephen Nodine back in --

from some time after May of 2010 until his trial in

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R-133

December of 2010?

A. Yes, sir.

Q. I want to call your attention to the days

immediately leading up to the trial. Did you at

some point during a pretrial hearing, discuss or

make known to the Court, the absence of a report

from the State's expert, Dr. Downs?

A. Yes, sir.

Q. And, and at some point did you, in fact, get that

report from Dr. Downs?

A. Yes, sir. We had filed a motion to exclude his

testimony because we hadn't had that information,

and Judge Partin conducted a hearing on a Thursday

before the trial begin on Monday, at which time

Ms. Newcomb produced the report that Thursday

morning.

Q. And that Thursday morning, that report that you

got from Dr. Downs, was that the first time that

you had been made aware of his opinions, or at

least what his opinions are based on?

A. I think Ms. Newcomb had certainly indicated that

he would have a different opinion than Dr. Hart,

but far as anything in any specifics whatsoever,

that was the first time we saw that.

Q. And specifically there were -- was there anything

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R-134

that Dr. Downs had put forth concerning defensive

wounds to Angel Downs's hands?

A. Yes.

Q. Okay. And how that become known to you, and in

what context.

A. Again, the report came on Thursday morning. The

report included a number of things that we had

never heard of before. One of those being some

indication there was a defensive wound, what he

characterized as such, on her hand.

Q. And at -- do you recall when the trial began?

A. The date, I'm not certain, but the Monday morning

after that hearing on Thursday.

Q. All right.

A. And in, I think, early December.

Q. And at some point, were you given additional

discovery in the form of a disc by the District

Attorney's Office?

A. The discovery -- yes. The discovery was coming

in routinely. And I think it was over that

weekend, and I may be incorrect about that, but

some time after that hearing some additional

discovery came in.

Q. And do you recall -- do you recall, was that the

morning of the trial, or would it --

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R-135

If there was previous testimony -- and I think

you were in here -- Mr. Wilhelm stated that the

witness Kayla(ph) King gave them those photographs

that we are referring to over the weekend, on a

Saturday, do you recall then, when you would have

gotten those?

A. It may have been during the trial, I don't

recall. But the Kayla King information came by way

of something she had videoed with her camera, with

her camera phone at a party that night, and some

still photographs, as well.

Q. And did it become apparent to you at some point

later on, that there was a photograph on that disc

that actually showed Ms. Downs with that, what had

previously been labeled as a defensive wound?

A. Later on, of course, when we heard about the

defensive wound, we had our own photographs that we

began to research to see if that was indicative on

there, and we found some. But later on, it was

determined that her hand had that wound on there.

Q. All right. And again, you just got that

information just a couple of days before the trial

started; is that right?

A. It may have been during the trial.

Q. Okay. All right. And the information that Dr.

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R-136

Downs had actually relied upon, that wound, as

being evidence of a defensive wound.

A. His testimony -- both his report and his

testimony, he relied upon that as being a defensive

wound.

Q. Now, when you found, when you found -- when you

got that information, mere days before going to

trial, did you then start to look for evidence of

your own photographs that showed that same wound?

A. We did.

Q. And did you find some?

A. We did.

Q. And what was the nature of that photograph, or

photographs?

A. There were more than one photograph. It was

actually the photograph of the beach the day of

Ms. Downs's death. There were a number of

photographs with Mr. Nodine in the photographs, as

well. But, ah, the wound to her fingers on both

hands, I recall, were blown up. And you, ah -- it

was clear that she had some discoloration, or some

mark at the same location where Dr. Downs was

contending it was defensive wound, and that was

present before her death.

Q. I'm showing you Defendant's Exhibit No. 3, which

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R-137

is from the autopsy, and Defendant's Exhibit No. 1,

which is from that same disc from Kayla King. Is

that a -- as Mr. Nodine's attorney, is that

something that you would have found to be of value

in defending Mr. Nodine?

A. Yes.

Q. And to your knowledge was that photograph ever,

ever given to Dr. Downs?

A. Not to my knowledge. Um -- not to my knowledge.

Q. Okay. With respect to the BlackBerry telephone,

were you ever given information from the District

Attorney's Office, or any investigator that, that

the BlackBerry was unable to be opened?

A. Yes.

Q. Do you recall the source of that information and

the content of that information?

A. The BlackBerry was discussed. Detective Clopton

and I had conversations about it, and I don't

recall whether the District Attorney was present

during those, but the substance of it was that

Detective Clopton, or someone at his insistence,

had contacted the -- they attempted to open it.

They'd used a couple of the passwords. They

contacted the manufacturer. If they used ten

passwords, as has been previously discussed here,

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R-138

the memory would be permanently erased. They had

no mechanism or expertise in which to open that

BlackBerry.

Q. And did you rely on that position?

A. I did, as well as, I did some preliminary

investigation, and I could not find anyone who said

they had the expertise to do so, as well.

Q. Do you have access to the FBI and the folks down

at Quantico?

A. No, sir.

Q. How long have you been a criminal defense

attorney, Mr. Knizley?

A. Thirty-two years.

Q. And if you had to estimate, how many murder cases

have you handled?

A. Fifty.

Q. In your 32 years, have you ever seen a case where

an indictment was returned on a murder within a

couple of weeks?


Goes beyond the scope of why we're here.


BY MR. BECK:

Q. Do you recall when the Grand Jury returned the

indictment in this case?

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R-139

A. Yes, sir.

Q. And when was that?

A. Um, I want to say May 24th or 25th.

Q. And was there a significant event that, that was

coming up within a week after that period of time?

A. Yes, sir.

Q. And what was that?

A. It was a republican primary for the District

Attorney's race in Baldwin County.



CROSS EXAMINATION

BY MR. WHETSTONE:

Q. Good morning, Dennis. This won't take long.

MR. WHETSTONE: Just a minute or two, Your

Honor.

BY MR. WHETSTONE:

Q. You have been doing this a long time, as you

said.

A. Yes, sir.

Q. And you presented a very vigorous defense of

Mr. Nodine; did you not?

A. I would think we did.

Q. And, in fact, that jury did not reach a

decision --

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R-140

A. That's correct.

Q. -- as to the case. In the case that Mr. Beck is

referring to on the pictures, you discovered that

prior to Dr. Downs' testimony, didn't you?

A. I had the pictures, but we focused on another set

of pictures, not necessarily that set, to indicate

the same evidence that could have developed.

Q. Is it sometimes defense lawyers look at things

differently than prosecutors?

A. Yes.

Q. Is it unusual for forensic defense lawyers to use

different forensic people to show a different

possibility than a State forensics?

A. If the prosecution's forensics testimony is not

what we want, we are going to go look for something

else.

Q. Yeah. And the same thing about psychiatry.

A. Certainly.

Q. Certainly. And so looking at different parts is

not unusual in your business. The point I was

trying to make is you rigorously cross examined Dr.

Downs relative to this particular wound, or the

wounds on both hands.

A. I felt I did.

Q. Yes, sir. And so that was known by the jury?

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R-141

A. David, the fact that there was a wound?

Q. That there was, existing prior to her death.

A. Ultimately it was, but we, I think, held that to

our case and developed it in our case that --

though we developed it with Dr. Downs, that he

relied upon that in cross examination of him. And

then in the Defense's case we brought photographs

to say, well, though he relied upon that, they

existed earlier in that day.

Q. You did it to impeach Dr. Downs?

A. Yes.

Q. Yes. And if someone had knew the glove wouldn't

fit, they wouldn't have asked for the glove to be

put on, would they?

A. Um, give me that one again, David, if you would,

please.

Q. My point is -- this is my last question.

My point is that if someone were giving you

what was obviously a wound on this hand, if they

had known about it, they would have not tried to

introduce it, would they? Knowing that you would

be able to use it against them?

A. Um, you would think they wouldn't, unless they

thought, you know, I wouldn't catch it or --

Q. They didn't know.

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R-142

A. That's certainly an explanation.



THE COURT: All right, you can step down,


(Witness excused.)

THE COURT: The Court is going to be in

recess for lunch and we will reconvene at 1:00.

(Lunch recess held.)

THE COURT: The Defendant can call its next

witness.

MR. BECK: Your Honor, I call Hallie Dixon.

I believe this will be my last witness, Your

Honor.

THE COURT: Okay.

HALLIE DIXON,




DIRECT EXAMINATION

BY MR. BECK:

Q. Good afternoon.

A. Hi.

Q. Would you state your name, please, ma'am?

A. Hallie Dixon.

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R-143

Q. And what do you do, ma'am?

A. I'm the Baldwin County District Attorney.

Q. And how long have you been the District Attorney

in Baldwin County?

A. Got sworn in January the 17th, I think, of 2011.

Q. And you had previously worked in the District

Attorney's Office prior to becoming the District

Attorney; is that correct?

A. Yes.

Q. And -- but you were so employed in the District

Attorney's Office in May of 2010?

A. No.

Q. And what were you doing at that point in your

life?

A. I was working -- well, I was technically on a

leave of absence from my job with the Attorney

General's office at that time. I was running for

office.

Q. And that was the Republican primary?

A. Yes.

Q. And was that on or about June 1st of 2010?

A. Yes.

MR. BECK: May I approach, please, Your

Honor? I just want to find Court's Exhibit No.

1, please, sir.

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R-144

THE COURT: (Complied.)

MR. BECK: Yes, sir.

BY MR. BECK:

Q. You were sworn in, in January. January of 2011,

correct?

A. Yes, sir.

Q. And at some point did you open, or reopen an

investigation in the Angel Downs case?

A. Yes, sir.

Q. And I assume that there were many other cases

that were also pending at that time that you had to

inherit; is that correct?

A. Yes.

Q. Now, did you, did you -- was there a liaison from

the prior administration to your administration,

with respect to transitioning cases?

A. Mr. Whetstone made an effort to act in that

capacity, yes.

Q. When you say "made an effort," what do you mean

by that?

A. We met a couple of times. Mr. Whetstone called

me multiple times, discussed the situation, the

difficulties, and I will say that he made a couple

of efforts to -- I mean, based on what he told me,

of course. There were some efforts on his part, as

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R-145

well as the Sheriff's, I think, to perhaps work out

something where I will be able to work in the

office, or get access to things in the office, that

type of thing. So we talked -- I want to say we

probably met. One meeting I specifically recall,

maybe twice, but one meeting and telephone calls is

predominately the way it went.

Q. With respect to the Downs case, did you ever ask

Mr. Whetstone to prosecute this case?

A. No.

Q. And specifically with respect to this case,

you're familiar with, obviously, with the

BlackBerry telephone issue; are you not?

A. Yes, sir.

Q. And did you have a conversation with

Mr. Whetstone concerning that BlackBerry phone and

being able to open that phone?

A. There was a -- during our meeting -- and to the

best of my recollection was that one meeting, and

we had it down at the Sheriff's Office, sort of a

substation there at the Foley Satellite Courthouse.

And it was myself, Mr. Whetstone, and the Sheriff,

Hoss Mack. We met. We discussed -- the Koons case

was one of the cases that he and I talked about,

was a capital case that we talked about maybe me

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R-146

trying in the interim, that kind of thing, and a

lot of other things. But yes, we did talk about

the Nodine case.

At that point in time I was relaying to him

what I was being told from law enforcement, of

course, and -- because I had been approached by law

enforcement about the case and about needing to

relook at the case. I related that to him. We

talked about some of the issues, and Mr. Whetstone

said at that point that J.D., his son, who worked

for Ms. Newcomb and later worked for me for a

while, that he had -- he knew there was a way to

get into it and he had told Judy there was a way to

get into it, and he told them all there was a way

to get into it, but they just didn't get it done.

But it wasn't -- it was Mr. Whetstone telling me

that J.D. had told Mr. Whetstone that.

Q. Did Mr. Whetstone ever tell anything to you along

the lines of, I'm not going to handle this case if

I can't open that BlackBerry?

A. No. Again, I never asked anybody to take the

case.

Q. And, you had just mentioned that, that law

enforcement had opened up some discussions with

you, I guess collectively, about the Nodine/Downs

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R-147

case; is that correct?

A. I had been approached specifically -- and, I'm

sorry, I don't remember the date, but there was an

event. I think it might have been -- I can't

remember what it was, but there was an event held

with law enforcement, may have been the law

enforcement breakfast that we hold monthly at the

little Community Center there in Silverhill. I

specifically remember that. And at that specific

meeting the Chief, Dale Moore, of Gulf Shores had

come up to me --


anything that someone may say -- hearsay --

relative to this case.

THE COURT: I sustain an objection to

hearsay.

BY MR. BECK:

Q. At some point in your capacity as the District

Attorney, did you become concerned about the

integrity of the investigation in this case?

A. Yes.

Q. And based upon those concerns what actions did

you take?

A. Based on the concerns of law enforcement, having

been related to me, when we got in, I had assured

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R-148

everybody that I would take a fresh look at it, but

I wouldn't just go off on it, and that we would do

everything we could to not only look at everything

that was there, but to also look at what else we

might learn. And so that's basically where we

started.

And the first question we had was: Does the

prosecution have everything that it could have, all

the evidence? And, Did the jury, the experts, the

witnesses, actually know all of the evidence at the

first indictment, the first trial? If we answered

that, no, which we did, we then took it back and

broadened our investigation, is what I would say.

Q. And was the BlackBerry, the information that was

gained off of the BlackBerry integral to that

decision?

A. Yes.

Q. Or important to that decision?

A. Yes.

Q. And why was that?

A. In any criminal investigation, especially an

investigation of this nature, where the minutes up

to and the minutes during are so at issue and

confusing, and there is no eye witnesses, and that

type of thing, cell phone data, emails,

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R-149

communications, right up to, as well as in the days

and weeks preceding, would answer, in my mind, a

lot of things. The tenor of their relationship,

whether it was a domestic violence tenor, if you

will. The stalking, we had to answer the stalking

question. Was there evidence that -- of stalking,

or were they in willful communication and

participation? That kind of thing.

Q. And based upon the evidence that was recovered

from that BlackBerry, did that change your opinion

as to the stalking element?

A. Yes.

Q. And in what way?

A. In part, based on that evidence, um, as to the

stalking, we were able to determine that they were

in constant and regular communication; that it was

not a one-way communication, that there were no

threats being made, or any kind of emotional,

abusive-toned emails and things in those days

preceding.

Most of anything, that it was, um -- Ms. Downs

was in a -- was participating in a relationship

right up there until the end. And even chose

Mr. Nodine again over her friends the day of. And

that, in my mind --

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R-150

I understand that stalking and domestic

violence are not one in the same thing. Whether

there was domestic violence is one thing, but

whether she was being stalked, I think everybody,

including every investigator, the Sheriff, and

everybody else agreed that there was no evidence

that she was being stalked.

Q. And from the time period specifically,

specifically between the Mullet Toss on May the

25th and the death of Ms. Downs, where there emails

or text messages recovered that would contra

indicate stalking?

A. Yes.

Q. And were some of those emails of a -- could be

interpreted as a sexual nature?

A. They can be interpreted that way.

Q. Would you agree with me that the BlackBerry phone

and the opening of the BlackBerry phone was

extremely important?

A. It was very important to me and to my

investigators, and I believe every investigator

involved.

Q. Were you -- Mr. Dunn testify earlier this

morning. Was Mr. Dunn, Mr. Dollarhide, and

Mr. McGowan, were those the chief investigators

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R-151

from your office that began re-looking at this

case?

A. Yes.

Q. During the period of time that you initially

gathered items, gathered evidence from the prior

administration, did you come across, first of all,

all the discovery?

A. I have no -- I have no way of knowing, according

to the file what was or was not provided. I had

conversations in which I asked Trent Wilhelm, as

well as Robert Nichols and William Scully, who were

both A.D.A.s, Assistant District Attorneys, who

worked with Ms. Newcomb on this case. And I asked

them, Hey, was this given? Was this given? Did

y'all know about this? and that kind of thing.

But there was no way -- what I was told was,

there was open-file discovery, and that the Defense

had just been given everything. I had no

documentation as to what was, in fact, provided and

what was not.

Q. Towards that end, did you write a letter

addressed, I believe to Mr. Whetstone and cc'd to

me, basically listing what you felt was either --

discoverable items that may have exculpatory value?

A. Yes.

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R-152

Q. Okay. Whether you were aware whether they had

been released or not released?

A. Yes.

Q. There was -- earlier we have admitted a couple of

pictures, Defendant's Exhibits No. 1, and No. 3 --

excuse me -- No. 1 and No. 2. Are you familiar

with that picture and that blowup of the picture?

A. Yes.

Q. Okay. And when was that photograph, the

existence of that photograph and the relevance of

that photograph brought to your attention?

A. I specifically remember where I was. There was a

few of us working on the case in the conference

room and Investigator Dunn and I think Dean

McGowan -- but I'm not certain -- had been in his

office. They came in and told me, actually, that

they -- that there was this picture. Did you know

about this picture? Hey, there is this picture.

And I went into, actually Jeff's office at the

time, Mr. Dunn's office at the time in my office,

and they showed me the picture that you're

referring to, the regular one, and then blew it up

and showed me what they were talking about.

At that point in time, within a day or so

afterwards, I actually had asked, I think it was

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R-153

William Scully. Robert Nichols might have been

there. I think we asked Wilhelm, as well, Hey, did

y'all give this? You know, that type of thing. So

that's when I found out about the picture, though.

Q. And you -- the significance and importance of

that picture was fairly obvious to you and your

investigators?

A. Glaringly so. Yes.

Q. Did you, ah -- have your investigators talked to

Dr. Hart?

A. Yes.

Q. Did you have your investigators go back and talk

to Dr. Downs, who was the original State expert?

A. Actually, I, myself, and investigators and --

went and talked to him to begin with, as well as my

Chief Deputy Rushing Payne.

And then on a second visit after we discovered

that picture and a couple of other things that we

felt like Dr. Downs should -- quite frankly, I

wanted to know whether or not Dr. Downs testified

to what he did on the stand, knowing the falsity of

some of it, or whether or not he did not know what

he testified to was false. That was a critical

point for me.


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R-154

object to any characterization that Dr. Downs has

perjured himself on the stand.

THE COURT: Well, the witness has already

answered.

MR. WHETSTONE: Or any additional questions

that would be hearsay --

MR. BECK: I wasn't going to ask --

MR. WHETSTONE: -- that Dr. Downs may have

told her.

MR. BECK: I'm not eliciting any testimony

about that subject.

THE COURT: Just ask another question.

MR. BECK: Yes, sir.

BY THE WITNESS:

A. I'm sorry. Let me just directly answer you on

that.

BY MR. BECK:

Q. Yes, ma'am.

A. Sergeant Steelman and Dollarhide met the second

time with Dr. Downs, just to be clear.

Q. Okay.

And you were -- you're familiar with,

concerning a meeting that had occurred between Dr.

Hart and the members of the District Attorney's

Office -- we have had several people testify here

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R-155

today -- that occurred prior to the Grand Jury.

Are you familiar with that meeting?

A. I heard tell of that meeting pretty much right

around the time it -- right after it happened.

MR. BECK: May I approach the witness, Your

Honor?


BY MR. BECK:

Q. I'm going to show you what's been marked as

Court's Exhibit 1 and Defendant's Exhibit No. 4,

and I would ask you to identify that document.

A. Defendant's 4, Court's Exhibit 1, are xeroxed

copies of handwritten notes regarding a meeting

with Dr. Hart that go through, essentially, the

details of the meeting and make notes regarding

Grand Jury and such -- that's your answer -- that

we provided in discovery to -- excuse me -- that we

provided to you-all, as well as Mr. Whetstone.

Q. Where did those handwritten notes come from?

A. They actually came -- they were contained with

other handwritten notes.

I mean, you have to understand, there was, um,

often the case, after a trial things get scattered

and shuffled, and that's kind of what this file was

like. So these notes, with other handwritten notes

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R-156

and miscellaneous stuff, all kinds of stuff, were

in boxes, and this came from one of the boxes

containing the prosecuting staff's notes, that type

of thing.

Q. Okay. And, um, and you turned that, those notes

over to the Defense and over to the new team of

prosecutors, correct?

A. Yes.

Q. And --

MR. WHETSTONE: Your Honor, may I interject

at this time? Because --


MR. WHETSTONE: -- the Court had asked at

what time, earlier.

MR. BECK: I'm sorry. Sir?

MR. WHETSTONE: At what time she turned

them over.

BY MR. BECK:

Q. Do you recall when you turned them over?

A. I know I provided them to the -- let me -- Ooo --

I'm actually going to have to say that you would

actually have to talk to my staff regarding what

was provided to y'all. I might have misspoken. I

don't know when these were provided to the Defense

or even if we provided them directly to y'all. I

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R-157

believe they were provided to y'all during the time

period after our Grand Jury had indicted on

criminally negligent homicide and before the

superintending of the case. I had met with Defense

Counsel, Mr. Beck being one. I was trying a

capital murder case. I had asked for some time

before I nolle prossed the other murder case. And

I had talked to, I think in court one day,

Mr. Beck, when you and I mentioned, and I had just

asked them to be patient with us, that we would

give them everything, I would give them all of the

exculpatory information. I don't know if Mr. Dunn

had provided it then, or if it came with the other.

So on when it was given to the Defense, you would

have to ask my staff who actually managed that. As

far as when it was given to the prosecutors, it was

given along with every other document in this case.

Boxes and boxes, when the A.G.'s office

superintended or they came and picked up discovery,

or it was dropped off to them.

Q. And in the letter that you wrote detailing what

you consider to be exculpatory information, were

the substance of those notes included by reference

in that list?

A. Yes.

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R-158

Q. And now, do you recognize the handwriting on

those notes?

A. Yes.

Q. And what is the basis for your knowledge of the

handwriting on those notes?

A. Well, I will tell you. We were sitting around a

table. And I worked for Ms. Newcomb, of course,

from 2006 to 2008. Of course, I saw her

handwriting at that point in time. I was even the

Chief Assistant at one point in time and saw her

notes. And the way it really popped out on me

though, and several of the other prosecutors who I

asked to identify them was, on Grand Jury cases we

have a form and the prosecutor who reviews those

forms makes notes. Reviews the file and makes

notes so that -- for whoever presents. And I can

tell you, I have seen hundreds, and hundreds, and

hundreds of those.

In addition, I actually went, before

testifying -- because I wanted to make sure I was

accurate and we have all agreed we all think it's

her notes -- but I actually pulled some old leave

slips and things of that nature to make absolutely

certain and just look at it and make sure for

myself that my recollection of her handwriting is

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R-159

accurate. And that appears to be Ms. Newcomb's

handwriting to me, as well as everybody else that

was working on the case with us.

Q. So you actually, prior to this hearing, have

looked at those notes --

A. Yes.

Q. -- and compared them to known samples of her

handwriting?

A. Yes.

Q. And, and what is your opinion as to who wrote

those notes?

A. Appears to me that Ms. Newcomb wrote the notes.

It was definitely one of a handful of people in

that room, and it was definitely, in my opinion,

Ms. Newcomb's.

MR. BECK: At this point, Your Honor, I

move to introduce as Defendant's Exhibit No. 4

what's previously been marked as Court's Exhibit

No. 1, or it can stay Court's Exhibit No. 1,

because I understand --

MR. WHETSTONE: Improper authentication.

THE COURT: Overrule the objection, and

Defendant's Exhibit 4 is admitted.

BY MR. BECK:

Q. These notes that have been introduced, do they

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R-160

appear to be in the context of any specific event?

A. Yes.

Q. And what would that event be?

A. Based on the contents of the notes you can

clearly see that it is a -- it I appears to be a

conversation regarding, or detailing a meeting

where they are talking about what Dr. Hart has

said, what others have said, what they can do

strategically with it, what certain elements,

physical elements --

For example, the notes show where they have

been corrected as far as, it's not a bruise on her

head but -- you know, things of that nature. So it

is detailing what appears to be the meeting in

which Dr. Hart is saying what his opinion is, and

then notes in kind of response to that.

Q. And I'm not going to go through every single

thing, but do these notes say, cause of death, COD,

undetermined. We can live with it?

A. Yes.

Q. If suicide then we need to know?

A. Yes.

Q. No evidence of a struggle. More likely suicide?

A. Yes.

Q. And you can take something out of anything, but

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R-161

had to be certain?

A. Yes.

Q. And then, suck at Grand Jury.

Did you see that?

A. Yes.

Q. Do you have any idea what the context of that

statement is?

A. If I can -- I believe it's the reference above

it. If I could look at the letter.

Q. (Complied.)

A. Ah, it says, Blood spatter on right hand. Suck

at Grand Jury. Abrasions on hand probably happened

at time. No evidence of --

And so it's the, suck at Grand Jury, is blood

splatter on right hand. Was referencing the fact

that Dr. Hart saw blood spatter on Ms. Downs' right

hand.

Q. Throughout the course of your investigation and

re-presentment of this case to another Grand Jury,

have you had discussions with members of your

office and members of other law enforcement

agencies concerning this case?

A. Absolutely.

Q. And do you -- and did you have concerns about

prosecuting this case as a murder case?

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R-162

A. We made a determination with all involved, the

Sheriff, the Sheriff's, you know, higher ups, the

Chief of Police, the case agents from both

agencies, and every investigator in my office, said

we could not prosecute on the original indictment,

for one, and that we had no evidence that

Mr. Nodine actually shot Ms. Downs. That the

evidence indicated, the evidence we had, what we

had, indicated a self-inflicted gunshot wound. And

based on that, everybody was in accord and all

opinions given, which pretty much everybody gave

their opinion, was that I could not prosecute on

the murder.

Q. Do you recall any member of law enforcement

expressing to you a contrary opinion? Anybody

specifically?

A. No, not after the -- our investigation was

complete. There was -- I think the Sheriff said

that back then, before they knew everything, you

know, at the very beginning before everything was

known, that he felt like it should go to a jury on

murder, but that after our investigation, after we

got into the BlackBerry, after we reviewed the

blood spatter with an expert, after all those

things, after we re-interviewed Dr. Hart and let

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R-163

him know about some of the things that we were

concerned about, he changed his opinion to us, and

after all of that everybody was in accord. Not a

single law enforcement officer said we had probable

cause for a murder.

Q. And the Sheriff, specifically Sheriff Mack,

expressed that opinion to you?

A. Yes.

MR. WHETSTONE: Objection.


BY THE WITNESS:

A. Now I did not talk to every single law

enforcement officer in the county, obviously.

BY MR. BECK:

Q. Yes, ma'am. Yes, ma'am.

And you had just said that Dr. Hart had

changed his opinion. Is that what you meant to

say?

A. No. Dr. Downs. Excuse me.



CROSS EXAMINATION

BY MR. WHETSTONE:

Q. Hallie, would it -- good morning. Excuse me, Ms.

Dixon.

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R-164

A. You can call me Hallie. I'm a first name kind of

girl, so it doesn't bother me.

Q. Okay. You would describe mine and your

relationship as being relatively amicable; wouldn't

you?

A. We have a peaceful, professional relationship.

Q. And the, um -- would you describe your

relationship with Ms. Newcomb as being strained?

A. I will say that Ms. Newcomb's -- our relationship

doesn't have any bearing on this. I know people

would like it to, but it doesn't.

Q. I was thinking Mr. Beck's questions earlier was

suggesting a strained relationship between

Ms. Newcomb, or maybe the officers working for you

now. Would that be a strained relationship?

A. I can't tell you what Ms. Newcomb feels. I mean,

obviously -- I can tell you that in my life, I

don't have any time to worry about the past. I

have a lot on my plate and I'm perfectly happy

moving on with everything else I have ahead of me.

Q. And it would be fair to say that any prosecutor,

or defense attorney, would want to know what was on

the BlackBerry.

A. Absolutely.

Q. Do you have any idea why Mr. Knizley didn't want

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R-165

to know?

A. I couldn't -- I have no idea that Mr. Knizley

didn't want to know.

Q. My point is that he could have checked the

BlackBerry himself, could he not?

A. My experience with defense lawyers is that they

just sit back and let us -- no offense, but they

sit back and let us not do our jobs well, and then

point out that we didn't. That's my experience

with them.

Q. Hasn't borne true in this hearing. The --

A. I don't know.

Q. -- point being, Mr. Knizley, had he wished, could

have had the BlackBerry checked himself.

A. I do not know. I know that the way we did it was

through channels that Mr. Knizley would not have

had. It was specifically through our channels with

the Federal Bureau of Investigations. So, no,

these avenues and the agency in Washington, I

believe, or at Quantico, that did the review is --

it's, I mean, basically, I was told, are super

secret. Same group that did Ben Ladin's phones, I

mean, that kind of thing. So, no, those avenues

would not be open to any private individual,

Defendant or no.

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R-166

Q. It would be hard to believe that somebody

couldn't open this thing, wouldn't it?

A. Very hard to believe.

Q. But people were told they couldn't open it?

A. I couldn't tell you that.

Q. Were you -- did you read the transcript of the

first trial?

A. Some of it.

Q. From the Forensic Science expert from Birmingham

that said you couldn't open it?

A. I know there was a report from, um --

Q. What is his name?

A. -- the guy -- do you want me to answer, Mr.

Whetstone? Sorry.

Q. Excuse me.

A. There was a report from Mr. Yawn, I believe,

somebody up there at, um -- I don't know if that

was the Huntsville lab or the -- I don't remember

which lab, but they work, I believe, through O.P.S.

I'm not real sure. But Mr. Yawn, Russell Yawn, I

believe is his name, had reviewed it. And from my

conversations, and from his report, when he

received the BlackBerry there had been five or six

attempts already made, and he returned it saying --

and I don't have the report in front of me, so I

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R-167

may -- but basically, he said there had been

multiple attempts already made to open the

BlackBerry and if he continued he might lose data,

and sent it back.

Q. But you don't remember reading in the transcript

of the first trial that Mr. Russell Yawn testified

that they couldn't open it? The computer lab?

A. Well, that's what I'm saying. He did a report

that said --

Q. I mean testifying.

A. Oh, no, I don't know what all was in those. I

don't know what he testified to.

Q. Okay.

A. I would assume he testified that he couldn't open

it.

Q. Or couldn't open it,

A. Mm-hmm.

Q. Ah, as it relates to the testimony that you gave

concerning this matter, did you ever subpoena the

investigation of Mobile County into the impeachment

of Mr. Nodine as to what evidence Mobile County had

relative to his stalking?

A. No. I had a couple of conversations, and we had,

um, volumes of information from the impeachment

hearing. In fact, I actually -- apparently,

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R-168

Ms. Newcomb had got it. Because the impeachment

hearing occurred a long time before I got into

office. And we had the notes from Niki Patterson,

who worked at the Mobile County District Attorney's

Office. I believe she was a Chief's Assistant

D.A., and we had her notes from everything that

went on. And yes, I absolutely reviewed her notes

of what occurred during the impeachment

proceedings, but if there is evidence, no, not

unless it -- unless it existed in the file that

Ms. Newcomb had, I wouldn't have had it. Nor would

I have known to look because we had Ms. Patterson's

notes.

Q. Were you aware of how many times Mr. Nodine had

allegedly injured this lady prior to this fatal

incident?

A. Okay, I was aware of, throughout the course of

this investigation, there were -- like any, as you

well know, a lot of chatter about domestic

violence, a lot of people saying it. Um, but like

in a lot of investigations, when you -- and, in

fact, Robert Nichols and William Scully said this

to me --


hearsay from anybody else.

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R-169


BY THE WITNESS:

A. Just, it was consistently found, is what I will

say, that when you went to the witnesses who

actually were the people that said this had

happened, that it kind of blew out in smoke. I

mean, just like the first go 'round of the trial,

you couldn't get somebody who had seen this occur.

I will say that we ended up coming up with

more than one incident, one being in November of

2009, a football game when they were down in New

Orleans that we -- I believe, based on what I have

seen, to have been a domestic violence incident.

And there was an incident at Mullet Toss that

year that has been charactered as domestic

violence, and in my opinion, calling a female a

name that she was called, which was verified, was

domestically violent. But no one that we asked had

seen the -- any kind of physical abuse, is what I

would say.

Q. You were aware that there was a police report

made in New Orleans, weren't you?

A. I don't know that I have seen the police report.

I was aware in 2010, actually there was an email

where he essentially admits to her beating him up

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R-170

and, you know, he basically excuses his behavior by

saying that she called him fat, and she made a

reference to erectile dysfunction.

Q. Right.

A. And at that point in time, my understanding is

there was violence. And I think his email, in my

opinion, his email to her about that incident shows

that he had struck her and been violent to her

while in New Orleans in November of 2009. Let me

make that clear.

Q. Did that indicate that she had a -- did you find

evidence that she had a fear of her life from him

after that incident?

A. No. In reviewing the emails after the fact, in

reviewing their communications even to the extent

that, you know, Ms. Downs was in a -- it was a

terrible, toxic, terrible relationship. But from

what her emails to him, even to the extent that

when she was telling her family that she was

running away from him, there were emails to him

that invited him to come up to her family's house

with her.

So far as what she was communicating to him

which would be pertinent to stalking, no, I did not

find evidence of that.

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R-171

Q. Do you know a person by the name of Emily

Simmons?

A. Yes.

Q. Have you taken evidence from her relative to what

happened in this case?

A. I believe -- and you will have to correct -- I'm

not sure. We had a few folks -- yes, there has

been evidence gathered for her, without going into

the piercing the Grand Jury and that kind of thing.

But yes, Ms. Simmons has made multiple statements

to multiple people at multiple times.

Q. She didn't work for Mr. Nodine, did she?

A. Not that I'm aware of. I don't know. She might

have in the past. There were several friends that

Angel had, of course, as part -- they had mutual

friends and everything else. There were several

friends that the relationships seemed to overlap.

I do not know at the time if one of them worked

for, had worked ever -- but to my knowledge, there

was nothing in my file that said that Ms. Simmons

worked for Mr. Nodine at the time this all

happened.

Q. May be my mistake. I'm not trying to trip you

up.

Do you know a person by the name of Mandy

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R-172

Gordan?

A. I recall the name from reading her statements, I

believe. I do not --

Q. Did she give you a statement that indicated to

you anything that may happen to Angel Downs by

Mr. Nodine?

A. Mr. Whetstone, you have to understand, I had -- I

have reviewed over probably 60 or 70 individual

statements, and then multiple statements of

individual people, and then some of those people

gave multiple statements. I can tell you this,

that if you have the interview I will be happy to

look at it, but I know for a fact that my

investigators and the Sheriff's Office attempted to

talk to every single person and we pulled everybody

in, as well as Ms. Newcomb's office the first time,

and nobody was able to testify as to having

witnessed from firsthand, stalking or that type of

thing. That was one of the bigger challenges we

had.

Q. Do you know of an instance where he went to the

house and stayed out all night and wouldn't be let

into her house? Do you remember that incident?

A. Back one of the earlier times they had dated, I

want to say it might have been in '08, or could

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R-173

have been earlier than that, Ms. Downs was dating a

man. And if you will give me a minute, I might be

able to come up with his name, but they're all

going to blend together. I can come up with it.

But she was dating another individual. She

and Mr. Nodine had split up temporarily, turned out

to be temporary. They had split up and Mr. Nodine

came to the house and she had the new, um,

boyfriend with her in the home. And he was, I

believe, intoxicated and was banging on the doors

and trying to get her to let him in, and crying,

and doing all that, and slept in his car.

And the boyfriend, the new boyfriend, my

understanding is, got fed up. I don't know that

there was a police report from it, though. I don't

believe there was.

Q. You are familiar in that case that there was a

new boyfriend this time, don't you?

A. Actually, no, I was not. Well, I mean, I knew

that -- let me -- boyfriend, no. I knew that

Ms. Downs had been, was moving on to some extent

and was starting to date other people. It wasn't

the first time, of course, but yes, this would have

been another point in their relationship when

Ms. Downs was beginning to date other people, yes.

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R-174

Q. And that he found out about it?

A. There are text messages that indicate that he is

aware of her dating others. I'm trying to think.

This would have been probably a week or two maybe.

Q. Before the death.

A. I think it may have been longer than that. Don't

let me characterize the time, but there was a

statement. And again, its what you can infer. It

is not like he said, I know you're seeing, Blank.

I hear you're going out. Oh, you've moved on.

That kind of thing, so, yes.

Q. Are you familiar that Mayor Craft of Gulf Shores

had introduced Mr. Nodine to the new boyfriend?

A. On the golf course perhaps? Here's what I

recall. There was an email from Mr. Nodine or a

text message that we recovered from the BlackBerry.

And my understanding --I do not know from

Mr. Craft, but my understanding is, they were all

out playing golf together.

Q. I think this came from the first transcript of

the first trial. I didn't know if you had gone

back and seen that or not. I was just asking you

-- that occurred right before the --

A. I believe --

Q. -- death.

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R-175

A. I do believe I have heard that. What I tie it to

is the text message where Mr. Nodine text messages

Ms. Downs and makes a reference. I mean,

apparently he's there at that point with -- gosh.

Was it Bonduran, or Beauxduran? I can't remember.

Q. Was it your review of the evidence that

Mr. Nodine would be explosive in his personality

when he didn't get his way?

A. Some people said that, yes. We didn't -- I did

not have -- other than the documented instances

that I have mentioned to you already, I did not

have before me documented instances. But, yes,

that was something that Ms. Downs' friends

particularly, regularly said. But then we had

things like that Aaron character who was in bed

with her that characterized it totally different.

Q. What about the Sheriff of Mobile County?

A. I don't -- I'm not aware. I haven't spoken with

the Sheriff of Mobile County.

Q. Have you had any incident relative to a BP

incident in Mobile where he was escorted away?

A. I heard something about that, but by that time I

believe y'all had superintended the case, maybe.

Was it something -- well, the bottom line is, I

heard something about that through the media.

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R-176

Q. Were you familiar with any Florida incidents

concerning domestic violence of Mr. Nodine in the

state of Florida?

A. To be clear, when I received the file that was

already there. There were, I can't even tell you

how many random accusations from various people

that -- let's just say Mr. Nodine is not a popular

person, okay? And there were lots of accusations.

There was like a whole pamphlet or binder given by

some lawyer that went through all kind of stuff. I

mean, all kinds of accusations, and rumors, and

this and that.

The way I handled that was, those that had

been in the office before that had worked on the

case, I asked them, because it existed before the

first trial, Did you run all this down? Yes,

nothing came of it. And so we didn't pursue it any

further. I had been told it had already been

looked into.

Q. My point is, did you ever receive any

documentation from the State of Florida that

Mr. Nodine had been involved with a domestic

violence situation in the state of Florida?

A. From the State of Florida --

Q. In the state of Florida.

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R-177

A. -- are you asking?

Q. The police department.

A. I did not receive that documentation to my

knowledge. Whether it was in that file to begin

with --

Q. Have you ever seen it?

A. No.

Q. Okay. Now, we recently received a box this past

week from you that contained some additional

information, and you forwarded to me some stuff

Friday, I think, of this week, that you wanted me

to make sure I had.

A. There was a box in my office that when the AG's

office came through, they said they didn't want it.

And so -- but when I -- I didn't know about that

until last week and when I found out about it, I

about flipped my lid and made sure it got to y'all.

Q. Contained in that box was an interview from the

State of Florida involving an inmate who was with

Mr. Nodine in the state of Florida, Santa Rosa

County, I believe.

A. That was -- that -- while, yes, that was provided

to you recently, that was not part of the box.

Q. Oh.

A. The box was evidence that had not -- that was

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R-178

here before the first trial that was part of

Ms. Newcomb's file, that was not used at trial the

first time. And it had been given to Trent Wilhelm

in the office, and he had put it in the D.A.'s --

Q. I'm specifically referring to a report that your

investigator did.

A. Right.

Q. They went to Santa Rosa County.

A. Yes. And forgive me. I just wanted to make

clear that that wasn't part of the old stuff. That

was the new stuff.

Q. I appreciate that because I didn't know if it was

or not.

A. Right.

Q. But in that report it talks about conversations

between that inmate --

A. Yes. Absolutely.

Q. -- to Mr. Nodine.

A. Mr. Hassman. Yes.

Q. And there is a statement from that inmate that

indicates that Mr. Nodine has complicity in the

death of Angel Downs.

A. The inmate reports that along with other things,

yes.

Q. Yes. But he reports what Mr. Nodine told him?

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R-179

A. He reports what he says Mr. Nodine told him, yes.

Q. Okay. I'll take that, but isn't that true of

what every witness does?

A. Particularly jailhouse snitches, yes.

Q. And people who use -- and have you ever used

people who are co-defendants? Federal government

does it all the time, don't they?

A. In general, absolutely they're used.

Q. Absolutely.

A. Absolutely.

Q. Do you know whether or not this snitch, or person

who reports this, asked for anything in return?

A. I am unaware of that. You'd have to ask Dan

Dollarhide.

Q. Okay. Do you remember the letter you received

concerning a person in the Baldwin County jail that

had information?

A. Yes, sir.

Q. And you contacted me --

A. Yes, sir.

Q. -- or the Attorney General's office. I forgot

who it was.

A. I think both.

Q. Both. And we told you we would interview that

one?

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R-180

A. Yes, sir.

Q. Are you familiar with another inmate in Santa

Rosa County that contacted your office, and that

your office never returned, or got back with that

inmate?

A. No. Actually the other inmate you're referring

to, the information we were provided was from a DEA

agent, and you would have to ask Mr. Dollarhide,

because he's the one. But multiple, multiple

messages and attempts -- we didn't even know who it

was. We didn't have any information, just that

this person supposedly had information. And

Investigator Dollarhide, at my insistence, he beat

his head up against that wall for weeks, trying to

get this supposed agent to call us back so we could

go interview them, and we never heard back. Never

could figure out who it was to go interview them.

Now, that's -- again, you'll have to ask

Investigator Dollarhide the details. That's what

my understanding is, and I do know that they

attempted to contact her and never got back.

Q. You don't know what that inmate told the DEA, or

what they told the Attorney General's

investigators?

A. Absolutely not.

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R-181

Q. Are you familiar with Mr. Nodine's statement that

he made the night, I guess or maybe the next day,

whenever this occurred?

A. I'm familiar with the notes, essentially, yes. I

mean, I wasn't there, but I have been in regular

contact with the investigators who handled --

Q. Do you believe it's plausible that Mr. Nodine

waved at Angel Downs while she stood in the roadway

after she had been shot?

MR. BECK: Objection to what she believes

is plausible.


BY MR. WHETSTONE:

Q. My point is, if that were true --

MR. BECK: Objection. It's still presuming

the same question he just asked.



BY MR. WHETSTONE:

Q. Did you consider whether or not his statement had

anything to do with his possibility of guilt?

A. Absolutely.

Q. And did you find inconsistencies in his statement

that he gave to the Sheriff?

A. His statement --

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R-182

Q. Yes, ma'am.

A. -- and his actions --

Q. Yes, ma'am.

A. -- after, and everything you have asked is --

Q. Yes, ma'am.

A. -- exactly why we gave it to a Grand Jury, and he

was indicted. So, yes, absolutely I believe that

his statement indicated that he was -- it was self

serving, and I do not believe it was truthful.

That's my belief.

Q. Did you review the -- it may have been the

iPhone. I forget whether it was an iPhone or a

BlackBerry, but --

A. There's several phones that were over here, yes.

Q. -- relative to his last conversation with Angel

Downs.

A. Now, are you going to hold me to milliseconds --

Q. No, no --

A. -- or --

Q. No. I --

A. Because they are very confusing and --

Q. No. No.

COURT REPORTER: One at a time.

BY THE WITNESS:

A. I'm very familiar with the timeline. Extremely

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R-183

so.

BY MR. WHETSTONE:

Q. Let me make sure I have got it down. Did you

arrive at a time that you believed Angel Downs was

shot?

A. Can you give me a base time? Because --

Q. Let me give you what I believe to be, if I may --

make sure she can identify it. We believe that's

the 911 call at 7:53. Does that help you?

A. That sounds -- hang on. Let me look back.


BY MR. WHETSTONE:

Q. Just for the purposes of getting her time

straight.

A. Yes. And I -- that's -- I can't -- that's not

going to be right down to the minute or second

because some of what you will find in our reviewing

them is, like even the forensics download from her

BlackBerry shows a little bit different time. And

some in different timeframes than, say, the 911

call. So there is a little time discrepancy in all

of the different sources of times, but --

Q. Okay.

A. -- essentially, yes. I mean, the way they

narrowed it down -- again, this wasn't me. It

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R-184

would have been Investigator Steelman and the

others that were involved -- narrowed it down to

about a six or -- five or six minute window, is

what they were showing.

Q. So there was a text message that Stephen Nodine

is here?

A. Yes.

Q. And before that, there was a message that says,

How do you shoot somebody to stop him from coming

in, wasn't that right?

A. Telephone call, yes.

Q. Telephone call. So you got a message, How do I

stop him? And then a few minutes later, Stephen

Nodine is here.

A. Yes.

Q. And three minutes later Angel Downs is dead. And

three minute --

MR. BECK: Is that question, Your Honor?

MR. WHETSTONE: Yeah. Asking if this is

not true.

BY MR. WHETSTONE:

Q. Stephen Nodine is taking off in his truck.

A. Go back to the first time. We do get --

Mr. Whetstone, let me just answer it.

Mr. Nodine is calling Angel Downs and we know

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R-185

that he is heading back towards her house at that

time. Angel Downs, during this same timeframe

makes multiple phone calls to sister. Sister

eventually speaks with her. They -- or leaves --

no. She leaves a voicemail, perhaps, I think on

sister's phone, or talks to the sister. I'm sorry.

I get all confused.

Talks to sister about, if somebody is breaking

in where do you shoot them? Sister asks about

whether it's -- anyway, there is this conversation.

Within minutes there is a text message,

Stephen Nodine is here, from the BlackBerry that

was next to her bed. And then, yes, within -- I

mean, I want to say it was between four minutes, or

three minutes or less. Actually, may have been

less. May have been two or three minutes, she's

dead.

Q. Do you know if Stephen Nodine ever called Angel

Downs after she was dead?

A. According to my phone records, he did not.

Q. He did not. Do you find that flight from the

scene is evidence of guilt?

MR. BECK: Object to the form of the

question.


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R-186

MR. WHETSTONE: Yes, sir, Your Honor.

BY MR. WHETSTONE:

Q. Do you believe that Mr. Nodine fled from the

scene from the evidence?

A. Our evidence is, yes, Mr. Nodine -- I mean, um,

multiple witnesses -- fled from the scene, yes.

Q. Did you time how long it took him to get from

Fairhope to Fort Morgan Road?

A. Yes.

Q. Less than 30 minutes?

A. Yes.

Q. Do you know how many stop lights and four-way

stops are on that way to that route?

A. If that's what they -- there is no way I can say.

I mean, it depends on if you go down County Road

10, over to 49, over to 54, over to -- I mean,

there's like, as you well know, back roads,

multiple ways. But it takes --

Q. The route described by Mr. Nodine.

A. I don't know about red lights. Let me think.

Multiple -- from --

Q. Let me see, Hallie. I'm not trying to --

THE COURT: What has that got to do with

the price of tea in China with respect to this

hearing?

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R-187

MR. WHETSTONE: Shows you how fast he got

from one place to another, Your Honor. And that

the flight was extremely fast. Averaging -- a

high rate of speed. That's the point.

THE COURT: Well --

BY MR. WHETSTONE:

Q. And whether or not you took that into account?

A. Absolutely. Yes.

Q. Okay. Your testimony is that these notes that

the Judge let in, were the notes of Judy Newcomb.

A. Appears to be her handwriting to me.

Q. Are you absolutely sure, Hallie?

A. I'm not a handwriting expert. It was my opinion,

based on looking at not only these but also her

notes on various documents that we actually checked

to make sure, as well as the other people involved

in the case at the time, even her employees

identified those as her notes.

Q. Do you surrender your notes to the Defense?

Handwritten notes of your theories of the case?

MR. BECK: I object to the relevance.

MR. WHETSTONE: It's work product.


BY THE WITNESS:

A. If it contained exculpatory information,

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R-188

absolutely.

BY MR. WHETSTONE:

Q. Even your notes?

A. If I wrote down exculpatory information I would

do one of two things. I would do what I have done

in this case, and multiple others, which is,

instead of providing my handwritten version, I have

typed it out and said, this is the information you

need to know. Or I have actually given my notes or

investigators' notes. If it's not in another

written format I have given that, when it contains

things of that nature, yes.

Q. My point is that sometimes notes are conclusions

and you're wondering and you're writing down things

that later on you change your mind about.

A. And that would not be discoverable to me. That's

not why we provided these.

Q. Okay. Now, if these are not the handwritten

notes of Judy Newcomb, do you know who they may be?

A. It is obviously one of the prosecution team who

was in that meeting because it was obviously

regarding their discussion prior to Grand Jury.

Q. But you don't, if it's not the notes of Judy

Newcomb.

A. It looks like her handwriting to me, and it is,

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R-189

like I said, it is in our file. It is regarding --

and from the content it was very clear that it is

somebody on the prosecution team. That is in our

file along with other notes from prosecutors and

Ms. Newcomb, and it was plainly a discussion with

Dr. Hart, mentions Dr. Snell, and even talks about

preparing for Grand Jury. So that's what I can

tell you about those notes.

Q. At the top of the notes are stars. Did you make

those stars?

A. No.

Q. Okay. If suicide, then we need to know.

A. That's right.

Q. That would be an indication that whoever was

writing these notes wanted to review whether or not

they believed it was suicide?

A. At least at the beginning, yes.

Q. Yeah.

MR. WHETSTONE: I'm almost through, Your

Honor.

THE COURT: Take your time.


You all right?

THE WITNESS: Now I know what those

witnesses are always talking about. Put a

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R-190

cushion here.

MR. WHETSTONE: Yes. Your Honor, it's a

hard chair.

BY MR. WHETSTONE:

Q. Did you find anything in the area concerning that

she was unhappy that day?

A. Wait. Anything --

Q. Anything. Any evidence that she was unhappy,

from the emails?

A. From the emails and text messages?

Q. Or any of the evidence, that day.

A. There were conflicting reports from the various

people there. Mr. Whetstone, can you -- I mean, by

unhappy, do you mean --

Q. I was wondering if you found a suicide note or --

A. Oh. No.

Q. -- an, I'm unhappy with my life, or --

A. No. No. I understand what you're asking now.

Sorry. I didn't.

Q. Yeah.

A. No. Absolutely not.

Q. You had indicated earlier that you felt like that

he was responsible, that somebody returned the

charge, a Grand Jury.

A. Yes. I feel like -- I believe Mr. Nodine should

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R-191

face charges, should face a trial and let a jury of

his peers determine his guilt or innocence of what

our Grand Jury indicted him on, with all of the

evidence and not part of it. That's what I think

should happen. I think that's the way our system

is designed.

Q. And your conclusion was that it was a homicide

but not a murder?

A. Wasn't my conclusion. It was the conclusion of

those investigating and the Grand Jury's

conclusion.

Q. Okay. But that it was a homicide?

A. Yes.

Q. And not a murder?

A. Excuse me. Wait. Going back -- I'm sorry. It's

a death case. Let me get technical with it.

Homicide being the death at the hands of another?

Is that what you're asking me? Like, the technical

definition of homicide? Because, no, obviously.

Q. I'm sorry. I thought you said you indicted him

for criminally negligent homicide.

A. But under the theory that a person can be held

responsible under the causation aspect if, but for

that person's actions, without a superintending or

intervening cause to overbear the will, and all

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R-192

that good stuff, but for that person's actions the

person would still be alive, for example. To

overly simplify.

Q. I understand.

A. That's what -- that was one of the charges and

the options that we presented to a Grand Jury and

that's what the Grand Jury decided he should face

trial on.

Q. Okay.



BY MR. BECK:

Q. The Grand Jury considered murder?

A. Without -- let me answer it without -- making

sure I don't violate any kind of issues with the

Grand Jury proceedings. My office submitted all --

yes, my office submitted murder charges and it was

no billed, which is part of the public record.

Yes.

Q. Yes. And I believe that you had made that known

that the Grand Jury considered murder, and

manslaughter, and criminally negligent homicide,

and returned no bills for murder and manslaughter;

is that correct?

A. Murder, two different theories of manslaughter, I

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R-193

believe, and criminally negligent homicide, as well

as stalking. Yes, all of those were submitted.

Q. You have been asked a multitude of questions

concerning bits and pieces of the evidence, or, or,

or supposedly evidence. What were the reasons that

you, and your office collectively, felt that this

was a self-inflicted wound?

A. Can I refer to, actually it's something y'all all

have. It's my notes that I sent to y'all about --

MR. WHETSTONE: I don't have them here,

but --

BY THE WITNESS:

A. Essentially, everything -- we started with what

was known at the time, the opinions of others known

at the time. Okay?

MR. WHETSTONE: Your Honor, I object if we

are going to go back through the trial, as far as

it being germane.

MR. BECK: Well, it's reply in kind to the

questions he asked on cross examination.

MR. WHETSTONE: I asked on cross because he

brought a certain question up with her on direct.


BY MR. BECK:

Q. Specifically having to do with what has been

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R-194

characterized as jailhouse snitches, do you

consider the evidence and testimony from a

jailhouse snitch a little bit closer than you might

from a different type of witness?

A. We absolutely start with skepticism with

jailhouse snitches for very good reasons, and it's

only responsible to do so. We begin our analysis

of their credibility with, first, what did they

say? You assess whether or not what they said is

accurate. For example, when they -- Mr. Hassman

gave a totally -- said that Angel was picking her

corn out of her teeth with a gun, saying that

Nodine said she shot herself in the mouth, which

totally discredited Mr. Hassman, of course. So you

start with that, Is the information they have given

you credible?

And then you look for, of course, other

reasons to be bias. If we can establish that we

believe they're credible, it's up to the Defense to

go at them from there.

Q. And is it common to get letters from people from

the jail claiming to know something about a crime?

A. I have gotten -- on this case alone, we have

gotten emails and letters from everything from, a

different County Commissioner killed her, to -- in

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R-195

Mobile, to tell me -- I mean, yes. It's

exceedingly common. And the more high profile, and

the more inmates think we're invested, the more

jailhouse mail we get.

Q. And in this particular case, do you have an

estimate as to how many jailhouse snitches have

tried to contact your office or other investigators

to offer testimony?

A. Upwards of ten. Now, to be clear, that's not all

mail. Some of that is grandma calling saying, I

don't want to tell you his name until you tell me

what you can do for him and if you do -- that kind

of stuff.

Q. Right.

A. But, yeah, I would say ten or more have reached

out at some point since I got in office, yeah.

Q. But clearly, the concern would revolve around the

motivation for someone in that position to

hopefully get something in return.

A. Their concerns were motivation, but, of course,

depends on the credibility of the statement and the

indicia of reliability within the statement itself.

So, yes, there is questions regarding motivations

though, Mr. Beck. Yes.

Q. And certainly, if you had one person who was, for

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R-196

instance, facing capital murder charges in the

state of Florida, would that cause you a little

pause before considering their statement? Not that

you will reject it completely.

A. It would be one of the things I look into, yes.

It would be one the factors. But if it bore

sufficient, you know, details, that there is no way

he could have known --

Now, on this case it's going to be hard

because trial was tweeted. But, yes, if he had

indicia or reliability, I can't say that I wouldn't

put him on the stand if I believed he was truthful,

but the fact that he was charged with capital

murder would affect my decision.

Q. Or had just recently pled to 262 months on a

federal conspiracy charge?

A. Yes, that would -- yes.

Q. The Grand Jury that returned -- the first Grand

Jury in this case, was, ah, approximately two weeks

after the death of Ms. Downs, would you agree with

that?

A. It's my understanding, yes.

Q. At that time were you, and Ms. Newcomb, and one

other person involved in a political race seeking

the office of the District Attorney?

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R-197

A. Yes.

Q. And what was the date of the primary?

A. June the 1st, 2010. Gosh, it seems like it's

been longer than that.

Q. And was that within one week of the Grand Jury,

or approximately one week after the Grand Jury

returned the indictment in this case?

A. I believe so.



questions.

THE COURT: Thank you. You can step down

and be excused.


(Witness excused.)

MR. BECK: Nothing further from the

Defense.

THE COURT: All right. Is the State going

to present any evidence?

MR. WHETSTONE: Yes, Your Honor. We'll put

on Ms. Judy Newcomb.


JUDY NEWCOMB,



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R-198


DIRECT EXAMINATION

BY MR. WHETSTONE:

Q. What is your name, please?

A. Judy Newcomb.

Q. And Ms. Newcomb, did you hold political office in

Baldwin County?

A. I was the District Attorney in Baldwin County.

Q. And when was that, Ms. Newcomb?

A. From 2006 to January of 2011.

Q. And were you with the District Attorney's Office

prior to that time?

A. Um, I was initially employed in the District

Attorney's Office in -- you know, I thought I'd

never forget this, but either October of 1992 or

'91. At the moment I'm not totally sure.

Q. And in what position did you eventually rise to

in that office?

A. Chief Assistant.

Q. Do you remember how many years you were Chief

Assistant?

A. Became Chief Assistant in December of 1994.

Q. Did Ms. Dixon work with you when you became

District Attorney?

A. I hired Ms. Dixon initially as an Assistant

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R-199

District Attorney. And for a brief period of time

she was in the position of Chief Assistant District

Attorney, but Ms. Dixon had a lot of family issues

during that time period.

Q. And did she leave the office?

A. She did leave the office.

Q. So you're familiar with her personally?

A. I am.

Q. Okay. And, um, while you were in this case --

this case was tried when?

A. In December of 2010.

Q. And right before that case were you in another

case?

A. Troy MacDonald. We did that capital murder case

and this case literally back to back. I think

there might have been a day or two in-between.

Q. Did you depend upon your investigators to provide

a lot of the discovery since you were in trial?

A. Well, I mean it was a team effort. And it was

explained to Mr. Knizley when he did a motion for a

speedy trial, the fact that we were still

investigating this case, and if he wanted to insist

on a speedy trial, that he would be getting things

up until the last minute. And, of course, once

that I was involved in Troy MacDonald's case,

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R-200

Mr. Scully and Trent were primarily responsible for

dealing with him regarding discovery. And

Mr. Scully and Trent Wilhelm -- well, I had also,

but probably the primarily two people dealing with

Mr. Knizley, turning over discovery during the

whole time period.

Q. Did you have a -- under the circumstances, did

you have an amicable relationship with Mr. Knizley?

A. Oh, yeah. I mean, he had trouble opening -- we

got him software. We did everything we could to

keep the case on track for him.

Q. Did you ever try to restrict any evidence that

Mr. Knizley would receive?

A. No. In fact, to avoid some of the issues that

they're alleging here, we provided open-file

discovery in that case, which is not something we

typically do, because we knew we had a limited

amount of time. There was a lot of documents, so

Mr. Knizley had access to the complete file.

Q. Did the election that Mr. Beck alluded to cause

any friction between you and any of the officers

that work for Ms. Dixon?

A. The particular -- well, the Sheriff's Department

was definitely behind Ms. Dixon. And, in fact, you

know, as I have told you during this investigation,

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R-201

and I have asked for you to look at the phone

records, they were literally calling Ms. Dixon in

the middle of our meetings and interfering,

actually, with the investigation.

Q. In the case that we have, when I was -- when you

were still D.A., did I make an offer to try the

Nodine case if you couldn't try it?

A. At the time that we thought that we were doing,

Troy MacDonald and Nodine and a number of --

Well, actually what happened -- and Ms. Dixon

has forgotten this -- is, in the fall of 2010, we

actually provided her an office in Fairhope, a

secretary. And once a Judge would continue a case,

we sent those cases to Fairhope for her and whoever

she wished to review them, along with, you

volunteered your services to help in any sort of

transition of the larger cases, and we also tried

to keep you informed on some of the larger cases

because it had been indicated that she had agreed

to work with you. And she ultimately chose not to

avail herself with that.

Q. But my point is, there's been some friction.

A. Friction?

Q. After the election.

A. (No response.)

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R-202

Q. Friction.

A. Friction. Yes, I would guess you would say there

was friction.

Q. Okay.

A. I mean, I don't -- you know, I mean, I would say

the friction was, our office offered to do what

needed to be done, and those offers were rebuffed

and yet we were complained about. So if that's

friction, yes.

Q. And what I'm trying to get to is, there are three

allegations made today that I would like to get

into --

A. Okay.

Q. -- that Judge Partin is going to rule on. One is

the picture of the injury on the hand. I think it

is shown in Defendant's Exhibit 1, I think.

A. Okay.

Q. And it is blown up from this picture.

A. All right.

Q. Have you ever seen that picture before?

A. No.

Q. Did you ever tell anyone to hide that picture

from Mr. Knizley so he wouldn't be able to see it?

A. No. It's my understanding that all of the

pictures were given to Mr. Knizley.

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R-203

Q. My point is, you haven't seen it before?

A. I haven't seen that picture, no, at all.

Q. Okay. Did you ever instruct any officer not to

give Mr. Knizley any relevant pictures?

A. No. He was given all -- everything we got, he

got. He actually got more than we got.

Q. But my point -- because this was the picture they

introduced. This is Defendant's Exhibit 3. Would

you take a look at it? Was that the -- some of the

wounds that were described by Dr. Downs?

A. Um, I mean, I'm assuming. If this was one of the

autopsy photographs in there, um -- I mean, I'm

sorry, but these photographs, I'm not saying --

they just -- that's odd to me. But I mean, it

almost looks like a red --

Um, I don't know what -- I mean, I didn't see

these and I'm assuming these are the autopsy

pictures.

Q. Okay. Did Mr. Knizley make a lot to do about

this picture, or the fact that -- on cross

examination of Dr. Downs?

A. See, the reason I'm having difficulty is, my

recollection, my recollection is he mainly talked

about this finger here. And he and Dr. Downs got

into a discussion about whether something was a

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R-204

freckle or a cut.

Q. Was it hard to determine if it was a cut or

something else?

A. No. She had a cut and a freckle.

Q. Okay. So -- okay.

But the bottom line on the pictures, you never

withheld any pictures from Knizley.

A. (Shaking head negatively.)

Q. Did you intentionally find this picture before

trial and present it to Dr. Downs as being a

defensive wound when you knew it was not?

A. No. Actually, I mean, this is the first day I

have seen these pictures, and I think y'all need to

look at some other pictures. Because we did try to

look at other pictures that we had prior to that

time and we didn't observe anything.

Q. And what I'm trying to get from -- the question

is, is, did you know that one of those injuries was

before the death? Did you withhold that

information and pretend that it was done after the

death in order to get a conviction?

A. No.

Q. Secondly, the BlackBerry, did you try to open the

BlackBerry?

A. We tried desperately to open the BlackBerry.

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R-205

Q. What all steps did you take to open up the

BlackBerry?

A. You need to understand these are all done by my

investigators and reported to me. But we went even

from FBI to REM, to our State Forensic Computer

Lab, which is run in conjunction with the Secret

Service. And we certainly felt if anybody could

open the BlackBerry, the Secret Service would have

that. And we were informed by all of those, the

FBI, DTS, the State Forensic Lab, the company, that

the BlackBerry could not be gotten into.

Now, this is gratuitous, but you need to

remember in 2010 --

MR. BECK: Object to the narrative.

MR. WHETSTONE: Okay.

THE COURT: Just ask another question.

BY MR. WHETSTONE:

Q. Was the BlackBerry -- was part of the issue

whether or not the BlackBerry might lose some of

its peculiar characteristics or trade secrets?

A. Well, in 2010 BlackBerry was in the midst of a

fire storm internationally about protecting data on

their phone. And there were all sorts of --

MR. BECK: I'm going to object to her

testifying about --

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R-206

BY THE WITNESS:

A. Well, I mean, this is the --

MR. BECK: -- what BlackBerry was concerned

about.

BY THE WITNESS:

A. -- point, why couldn't the --

MR. BECK: I'm making an objection, Your

Honor.

THE COURT: Well, just -- everybody can't

talk at one time if you want a record.

Now, what was your objection?

MR. BECK: My objection is that this

witness is testifying as to the company position

of BlackBerry concerning problems or fears that

they had with --

THE COURT: Well, the question had

something to do with the character -- read the

question back, please, ma'am.

COURT REPORTER: "Was the BlackBerry, was

part of the issue whether or not the BlackBerry

might lose some of its peculiar characteristics

or trade secrets?"

THE COURT: All right. I don't think the

answer was responsive to that question.

MR. WHETSTONE: Let me rephrase, if I may,

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R-207

Your Honor.

BY MR. WHETSTONE:

Q. You have been sitting in on this hearing.

A. Mm-hmm.

Q. And did you hear the testimony that my son, J.D.,

called REM?

A. I did hear that.

Q. And that REM called back and said, we'll have

legal call us back. Call your office back?

A. I don't know if that's what he said, but that was

my understanding of what happened.

Q. Legal, being a different group of people than

technical?

A. Yes.

Q. Which leads one to believe that technically it

can be opened?

MR. BECK: Object to leading. Object to

what the testimony --



BY MR. WHETSTONE:

Q. What do you conclude about the fact that legal

wanted to call you back versus technical?

A. Well, you know, as everybody has said, it's

technology, and somewhere on this planet there were

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R-208

people that can get into that phone. It was

whether you had the technology to do it. And legal

are the people that said there would not be access

to that phone.

Q. Okay. Now, did Mr. Knizley have access to the

phone?

A. He did.

Q. Did he ever ask you to run it by anybody other

than the people you have tried to run it by?

A. He did not.

Q. Did you inform him that you couldn't get it open?

A. To the best of my recollection, he and I talked

about every aspect of the case, and he knew that we

were having difficulty getting it open.

Q. Okay. Did you want to open the phone?

A. Yes.

Q. Did you use your best efforts to open the phone?

A. We did.

Q. The third issue, Dr. Hart. Do you remember the

testimony around Dr. Hart --

A. I do.

Q. -- and the meeting that you had regarding the

autopsy?

A. Well, actually a meeting was called that day

because the Grand Jury was coming into session, and

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R-209

we asked Dr. Hart to join a number of people that

were going to be witnesses at Grand Jury to come in

and review the case. And it was to talk to him

about all the evidence that we had gathered since

the autopsy, with him there and Dr. Smell.

Q. Who all -- you don't have to tell me all who was

there. I'll shorten this, if I may. Did you have

some of your staff with you?

A. I did.

Q. Including John Stewart?

A. I did.

Q. Were there other officers there?

A. I would say that there was probably -- just about

every officer that had participated in the

investigation was there. I mean, there might have

been somebody that wasn't, but the room was full.

Q. Was Mr. Nolfe there?

A. He was.

Q. Did anybody at that time, did they know what

theory you were proceeding at that time in this

case?

A. I'm sure some of the people knew.

Q. Did anybody object to it?

A. Not to me.

Q. Did you at any time threaten Dr. Hart or make any

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R-210

type of inappropriate pressure to get him to change

his professional opinion?

A. No.

Q. Did you give him any evidence that you thought

suggests he may be wrong?

A. Well, not that he was wrong, because my

understanding in my conversations with Dr. Hart he

had always said undetermined, but statistically to

him, it looked like a suicide.

Q. Okay. So could you live with undetermined?

A. Yeah. But what we wanted to show him was facts

that he did not have up to that time, and ask him

if they would make a difference to him, one way or

the other, to be suicide or a homicide.

Q. Did you find a wound behind the head that was not

photographed the first time?

A. Well, that was our understanding. I know that

Dr. Hart testified at trial that he had, in fact,

documented that wound and there were photos. But

our -- when he initially provided --

Photos that he initially provided to us did

not include those photos, and the photos that we

later received didn't appear to have been taken at

that same time. But, yes, I mean, it was sent back

because we saw the injury to the back of the head.

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R-211

Q. When you say, "we saw it," did someone examine

the body, or photograph the body?

A. It was at the coroner's office and I'm not sure

who noticed it.

Q. So it would have been somebody in law

enforcement?

A. It would have been somebody in law enforcement.

Q. That found the wound that Dr. Hart had not found,

or that you didn't know he found?

A. Well, you know, I mean, that was not documented

to us in what he had told the -- I mean, there was

no written thing other than pictures, what he had,

you know, communicated. That wound had not been

mentioned, nor did we, in our position, have a

picture of it. Like I say, at trial he said there

was a picture of it.

Q. Did you ever withhold -- let me rephrase that.

Did anyone of your staff make any accusations

against Dr. Hart, or -- I think the term has been

used several ways, one that it was kind of loud.

Dr. Hart described it a little bit milder than

that. How would you describe the meeting and the

discussions you had with them?

A. Well, you know, there was a lot of people in the

room and different people were not always talking

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R-212

to Dr. Hart. They were at times talking amongst

themselves, as well.

But as to Dr. Hart, from what I witnessed,

people were simply, you know, bringing up facts in

their different parts of the investigation that

they saw, or facts that they saw, asking Dr. Snell

and Dr. Hart if they would consider it, asking if

he needed more information, asking him if he would

go to the scene.

And I'll tell you there was some frustration

because Dr. Hart in that meeting didn't want to go

to the scene, did not want to appear to put any

more consideration into the case.

Q. Did you withhold any evidence in this case that

would be exculpatory, to your knowledge, from

Mr. Knizley?

A. No.

Q. Did you offer Mr. Knizley that you would agree to

a continuance, if Judge Partin, of course, agreed

to it, if he needed more time?

A. Yes.

Q. Okay. Did you rush this case to a Grand Jury in

order to -- for political purposes?

A. No.

Q. Okay. There have been two witnesses -- I've

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R-213

forgotten the officer's first name -- there he is,

and Ms. Dixon. And I'm referring to Defendant's

Exhibit 4 --

MR. WHETSTONE: Or Exhibit 1? (Directed at

court reporter.)

COURT REPORTER: Defendant's 4 was

admitted.

BY MR. WHETSTONE:

Q. Defendant's 4. I want you to look at Defendant's

4. Can you tell your own handwriting, Ms. Newcomb?

A. Mm-hmm.

Q. I want you to look at that and tell the Court

whether or not that's your handwriting.

A. This is not my handwriting.

Q. Do you have any idea whose handwriting that's?

A. No.

Q. Do you have any idea when it was put in the box?

A. No.


THE COURT: All right. We're going to

recess court for an afternoon break and reconvene

at, um, a quarter of three.

(Recess held.)


MR. BECK: Thank you, Your Honor.

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R-214

CROSS EXAMINATION

BY MR. BECK:

Q. All right, I just want to make sure we're clear.

Defendant's Exhibit No. 4, the handwritten notes,

you're saying that's not your handwriting and you

did not write those notes?

A. That's correct.

Q. Is that a definite, or --

A. It's a hundred percent, ten thousand definite. I

don't use the word "suck," either.

Q. All right. Who was sitting next to you? Do you

recall from that meeting who was next to you, on

either side of you?

A. I was sitting at the very end of the table and

most everybody else was sitting on the sides, or at

the side of room, and then Dr. Snell and Dr. Hart

were up towards the front of the table.

Q. I noticed that you have read those notes or

reviewed those notes several times today; is that

correct?

A. Mm-hmm.

Q. And you've looked at the context of the notes, or

at least the apparent context?

A. I have trouble reading them. You don't, but I

do. Thanks for your help.

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R-215

Q. Do you agree with me that the context of the

notes appears to be in the same context of the

meeting with Dr. Hart?

A. Well, parts of -- I don't think this first page

is.

Q. And why is that?

A. Because it looks more like somebody is preparing

for something.

Q. Okay.

A. Um, the second part could be.

Q. Do you recall anybody else taking notes during

that meeting?

A. Um, I'm sure there were a lot of people taking

notes. I didn't take notes during that meeting.

Q. You personally made no notes or took anything

down?

A. Not that I can recall. I had a yellow note pad

in front of me.

Q. Do you recall Angela Jarman sitting next to you

or near you?

A. Yeah. She and Tony Nolfe were talking a good

bit.

Q. Ma'am?

A. Yes. She and Tony Nolfe were talking.

Q. Okay. They were talking throughout the whole

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R-216

meeting?

A. Mm-hmm. I don't know about the whole meeting

because I wasn't focused on them, but I know at

times I couldn't hear what was being said up at the

front because they were interacting.

Q. And they were close to you?

A. Mm-hmm. And I have some, I have -- I'm writing a

thesis on tax evasion, and I have some notes that I

was making on tax evasion, if the Court would like

to see those, and you can obviously see that's not

my handwriting.

Q. And you had mentioned something about checking

phone records of deputies to see that they were

calling Ms. Dixon.

A. Right.

Q. And you had said that, I think your words were,

interfering with the investigation?

A. I was.

Q. In what way?

A. We were, we were -- initially the, ah, Assistant

Chief Beaman, because there was not a chief of

police in Gulf Shores at the time, the Sheriff and

I -- they actually called our office into the

investigation, and we discussed the fact that we

had a Grand Jury in session, and it was actually a

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R-217

joint decision that for probable cause, they would

like to have the opportunity to present the case to

a Grand Jury.

Q. Okay. What does that have to do with the

officers that were interfering with the

investigation?

A. Well, the officers were campaigning for Hallie,

and, ah, at some point -- although initially, the

first day I met with them, they wanted to know when

they could go arrest him --

Q. Who wanted to know?

A. -- arrest Mr. Nodine. And I explained, well, the

Sheriff and everyone has decided we are going to

present it to a Grand Jury and we need to gather

all the evidence.

Q. Which deputy or law enforcement officer told

you --

A. Tony Nolfe.

Q. Tony Nolfe told you that he wanted to arrest

Mr. Nodine that day?

A. He did. He did. Then, as Mr. Nolfe saw that it

was not what Ms. Dixon wanted, based on her

contacts with him, we saw things turn around.

Q. What information do you have that Mr. Nolfe was

talking to Ms. Dixon in the context of this

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R-218

investigation?

A. My investigators heard.

Q. Heard Mr. Nolfe?

A. Yeah. But again, I have asked everybody, if

you'll just go check Mr. Nolfe's cell phone

records, in a number of them you'll see that they

were in contact with Ms. Dixon multiple times

during that period.

Q. Well, certainly there were law enforcement

officers all throughout the county that supported

Ms. Dixon --

A. Mm-hmm.

Q. -- law enforcement officers all throughout the

county that supported you.

A. Mm-hmm.

Q. Some that supported Mr. Green; is that correct?

A. Mm-hmm.

Q. And you would not find it unusual for those law

enforcement officers talking with -- supporting Ms.

Dixon to actually be talking to her?

A. I would find it not acceptable for them to be

doing that on duty in the middle of the meeting for

an investigation, using their County cell phone.

Q. So did that occur during this meeting with Dr.

Hart specifically, do you know?

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R-219

A. No. Like I said, I was focused on Dr. Hart. But

Ms. Dixon told you that she was informed of the

meeting right after it happened. She testified to

that today.

Q. So Mr. Nolfe had indicated to you that he wanted

to arrest Mr. Nodine on the first day, and then

later on he was taking actions to, um, compromise

the investigation?

A. He was taking actions to not pay attention and

get work done that needed to get done.

Q. And was there a heated exchange between you and

Mr. Nolfe concerning finishing those reports and

getting the police reports and all aspects of the

investigation completed in time for the Grand Jury?

A. Actually, the discussion that occurred was

between me and the Sheriff. And I walked out of

the room when we had our meeting, when we were

supposed to be preparing for Grand Jury, and they

had not completed any of the reports regarding

their interviews.

I walked out and the Sheriff was on his way

in, and I said, Sheriff, they don't have the

reports complete. If you do not want this case to

go to Grand Jury, then I need to be able to know

that and we can go forward -- you can go forward at

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R-220

whatever pace you need to.

I thought it was the agreed upon decision that

this was going to go to this Grand Jury. After I

had that discussion with the Sheriff he went in and

set forth their schedule for getting things done.

Q. Did Mr. Nolfe communicate directly to you that he

felt that he was being rushed?

A. No. I can tell you why he wouldn't have done

that.

Q. Sure.

A. Because the reason he was having to leave was to

go to campaign events for Ms. Dixon.

Q. And did he tell you that?

A. No. I saw him at them because I would happen to

be there myself, too.

Q. Okay. Were there any other deputies or law

enforcement officers, to your knowledge, that were

interfering with the investigation?

A. I'm not saying in terms of -- I'm not saying they

were interfering. I'm saying Ms. Dixon was

interfering. They were slowing the pace down.

Q. And what information do you have that that came

directly from Ms. Dixon, that she was attempting to

slow your investigation down? Or is that what you

are saying?

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R-221

A. I guess you could probably say that at some point

I had never seen officers do -- with the Sheriff's

Department do interviews and not go back and write

them up.

Q. The, um, death of Ms. Downs occurred on May 9th;

is that correct?

A. Mm-hmm.

Q. And not asking you -- and I know, rightfully so,

your sensitivity to divulging what goes on in a

Grand Jury --

A. Mm-hmm.

Q. -- but do you recall the date that that Grand

Jury went into session to consider this case?

A. I really don't. That Grand Jury was the May

Grand Jury, and so they had been in session, and

they were on break. And then at a particular point

that people felt that they would have the

investigation complete, they were brought back to

report on the other cases and to hear this case,

which is fairly typical.

Q. It's been suggested that this Grand Jury reported

back on May 24th, 2010, which I believe would have

been a Monday. Does that sound correct?

A. I don't have any reason to dispute that. I'm

sure it was on record.

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R-222

Q. And typically the Grand Jury comes back and

reports, certainly after they have voted. And

presumably -- do you know how many days this case

was presented to that Grand Jury?

A. I really don't.

Q. Was it more than one day?

A. I really couldn't tell you. There was a lot of

witnesses, so it wouldn't surprise me if it took

more than one day, but it could have just taken a

full day.

Q. The meeting with Dr. Hart, do you agree that that

occurred on the same day that he was to testify in

front of the Grand Jury?

A. It did. It did.

Q. And would you agree with the statement that it

was anywhere from an hour to two hours long, that

meeting?

A. I would -- my recollection is it was less than an

hour. But, you know, rounding up to an hour would

be -- but did wasn't anywhere near two hours. Now

people were there, John -- sorry, Mr. Beck --

Q. I don't care.

A. -- for other, you know, things. So in terms of

their reference of about how long, the totality of

the meeting could have been much longer than when

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R-223

Dr. Hart and Dr. Snell were in there.

Q. Did Dr. Snell testify in front of the Grand Jury?

A. No, he didn't.

Q. And whose decision was it to present this case to

the May Grand Jury? Yours or the Sheriff's?

A. It would be mine.

Q. And did you ever indicate that you felt that this

investigation was being rushed and that it wasn't

ready to go to a Grand Jury?

A. No.

Q. Was there any reason in particular that this case

was sent to this Grand Jury as opposed to the next

Grand Jury?

A. There wouldn't have been another Grand Jury until

September.

Q. And certainly, there is the authority to arrest

someone prior to going to a Grand Jury if there is

probable cause.

A. Right. And people get arrested for murder on the

same day they commit it sometimes based on probable

cause.

Q. Yes. That's correct. And that was not done in

Mr. Nodine's case.

Going back to the meeting, did you summons Dr.

Snell to be present at that meeting?

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R-224

A. I did not summons Dr. Snell. I think somebody

from --

Q. That may be a bad choice of words.

A. I think somebody from our office asked Dr. Snell

to be there in light of some, actually difficulties

we had encountered in the Department of Forensic

Sciences in another case you handled with Marsha

Colby, so we thought it might be a good idea for

him to be there.

Q. Because there might have been a difference of

opinion?

A. Dr. Snell, in my opinion, you know, had initiated

this practice of Montgomery, or -- not Montgomery,

wherever he's from -- the head office reviewing, at

the request of defense attorneys, whatever someone

is doing in a local office. And I felt that it

would be good to have his input and ask him to

review it at the same time, so we did not have any

controversy.

Q. Did Dr. Snell give an independent review prior to

your meeting that you're aware of?

A. That's really kind of what we had hoped for and

asked, but that was not the impression I had when

he came that day.

Q. And did Dr. Hart -- and I believe I heard what

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R-225

you said in direct testimony. Is it your testimony

that Dr. Hart never told you that he felt that the

evidence that he had reviewed was consistent with a

self-inflicted gunshot wound?

A. Dr. Hart has always told me that his decision was

undetermined, but that statistically -- and he

always uses the word statistically -- when someone

is shot with their own gun in the head, it is a

suicide.

Q. And a hard contact type of wound, correct? Was

that part of what he relied on?

A. I think you're just wanting to say contact wound,

because actually hard contact is -- how hard this

contact was actually is evidence of something else.

Q. What is that?

A. That someone is forcibly -- you're holding a gun

against her head, such that it makes the imprint of

the gun. That is not typical for suicide in the

literature.

Q. Did Dr. Hart during this meeting tell you that

the reason for the imprint of the muscle was

because it was a contact wound and those gases

basically expelled out the other way?

A. At some point that was discussed. I don't know

that that's what he told, actually said. I'm not

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R-226

saying he didn't. That's not what I remember. I

remember what he testified at court, which is that

it was an imprint of the muzzle.

Q. And have you made statements, either during the

closing argument of this case or to the press, that

Mr. Nodine pushed that gun so hard against

Ms. Downs that it left a bruise or an impression?

A. I don't know that I said a bruise, but I think it

leaves the impression of the muzzle, yes.

Q. Based on his jamming that gun against her head

very hard. And was that consistent with what Dr.

Hart told you during that meeting?

A. Dr. Hart essentially said he wanted to consider

simply the body, so he's not going to -- he is of

the opinion it's against her head, yes, but not

necessarily who's holding the gun.

Q. In Defendant's Exhibit 4, which are consistent

with the notes that were taken during that meeting

-- do you agree with that, first of all? That

these notes appear to be somebody's notes taken

during that meeting? Starts off, the first --

first says Dr. Hart?

A. Well, I mean, first it says -- first it

references some sort of meeting on Saturday, as if

somebody is writing down when they're talking to

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R-227

him. Like, Saturday at 2 p.m. with a question, If

suicide then we need to know.

And I mean, just to be honest, it looks like

to me someone is highlighting things about what

they want to bring up.

Q. Mm-hmm. And the --

A. I mean, I'm not saying -- it's not -- they're not

mine, so I can't tell you, but I do not think

they're totally consistent with coming from that

meeting.

Q. Okay. Going to the second page. I think you

testified earlier that was a little more consistent

with what was discussed at that meeting; is that a

fair caricature?

A. The parts that -- yeah.

Skin hitting -- that's skin? Would you agree?

Q. Yes.

A. Okay.


BY MR. BECK:

Q. And that in that very first section it said, Dr.

Hart, underlined, not force of gun hitting skin,

skin hitting barrel?

A. Yes.

Q. Does that refresh your recollection as to what

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R-228

Dr. Hart said during that meeting?

A. That there was a discussion about that, yes, with

Dr. Hart. I can't tell you that that was my

recommendation of what he finally said. And I'm

not saying it's not what he said. I'm just saying,

Mr. -- because my next dealing with him was at

trial, where he testified that was an imprint from

the muzzle.

Q. And this statement here, does this refresh your

recollection about something else Dr. Hart said?

Contact gunshot wound, no other injuries. Looks

like, not wanting to be shot, not moving, turning

head, went straight through. Not, open quote, not

common way to kill someone, very way to kill self.

Does that refresh your recollection as to what

Dr. Hart would have said during that meeting?

A. Vic -- does that say, vic waiting to be shot?

Q. I can't -- I can't read that word right there.

But the question was, does it refresh your

recollection as to him saying something of that

nature?

A. Not in that context. I mean, I will tell you

that Dr. Hart always goes back to, statistically

someone using -- someone being shot in the head

with their own gun, studies have shown,

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R-229

statistically, that is a suicide.

Q. And do you recall talking to Dr. Hart about the

way that Ms. Downs' hair fanned out in that

meeting?

A. I believe -- I mean, I didn't talk to Dr. Hart

about that, but that was brought up, yeah.

Q. During that meeting?

A. Yeah.

Q. And Dr. Hart basically said, you can't make too

much out of that, or words to that effect; is that

correct?

A. That would be correct.

Q. Because there was no hair laying studies, things

of that nature; is that correct?

A. I don't recall that, but that's written there.

Q. No. I'm asking if it refreshes your

recollection.

A. No. I know the hair was discussed and I know to

him it didn't make -- it was of no significance,

but I honestly don't remember, um, you know, why.

Q. And did Dr. Hart also suggest that there was --

since there was no evidence of a struggle, it was

more likely suicide? Does that refresh your

recollection that he said that during that meeting?

A. He could have said -- again, the biggest thing I

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R-230

remember about Dr. Hart is, no matter what anybody

showed him or what anybody asked, he repeatedly

would say, statistically, when someone is shot in

the head with their own gun, it's a suicide.

Because the thing I do remember in that meeting was

Dr. Snell trying to encourage him to look at

different pictures and things that people were

handing him, because typically Dr. Hart, you know,

just says, statistically this is what it would look

like, but because y'all have the other facts you've

told me about, we are going to leave it

undetermined.

Q. Who in your office made the decision about the

sequencing of witnesses before the Grand Jury on

this case? Which witness is going to testify

first, second, third, fourth, in front of the Grand

Jury? Would that have been your decision or

someone else's?

A. Well, it probably would have been my decision to

some extent, and to some extent just availability.

Q. And you were the prosecutor that handled that

case in front of the Grand Jury?

A. I was. I was.

Q. And the last statements here say, Dr. Hart

Monday, Dr. Snell has to go to Grand Jury Monday,

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R-231

riding the fence.

Does that refresh your recollection as to the

authorship of these notes, or anything else that

Dr. Hart said during that meeting?

A. Well, there was never any plan for Dr. Snell to

go to Grand Jury. Um, and some of that is why I

come back to the idea that these are more like

notes of somebody who talked on the phone and was

making plans for Grand Jury, and making plans for

the meeting.

Q. The period of time from the day that it was

presented to the Grand Jury to the day of the

primary election is approximately one week. Does

that sound about right to you? May 24th to June

1st, a week and day?

A. What?

Q. A week and a day from the time --

A. You mean from when it was returned?

Q. Returned, yes.

A. It could have been.

Q. Does that sound right to you from your

recollection independently?

A. Could have been.

Q. Was there any motivation on your part to have

this case sent to a Grand Jury prior to the

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R-232

election?

A. No.

Q. During the week -- you mentioned the Troy

MacDonald case. I believe that was brought up as a

case you had also tried. The week before Mr.

Nodine -- before the election, that same week --

A. Wait a minute. Troy MacDonald's was in the fall.

Q. Is when you tried it, correct?

A. Yes.

Q. I'm giving you a timeframe.

A. That's what is confusing. What timeframe are you

giving me?

Q. I'm talking about the week before the election.

A. Okay.

Q. Do you recall, either yourself, or someone in

your office calling Mr. Bruijn, who represented

Mr. MacDonald, and giving him 72 hours to accept or

reject a plea deal on Mr. MacDonald? From a

Tuesday, the week before the election, on a Friday.

A. I don't think I called him, but I think the plea

deal that they eventually took had been out there

for months. And, yeah, I think at some point, I

don't know when, somebody did give him a cutoff. I

don't remember it being in that timeframe, but I'm

not saying it wasn't because I didn't talk to him

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R-233

about that.

Q. Do you recall that offer being made on Tuesday,

exactly one week before the election, and expiring

72 hours later on that following Friday?

A. No.

Q. During the meeting with Dr. Hart, do you recall

John Stewart raising his voice? And we all agree

John talks loud sometimes, but do you recall him

kind of getting in that red-faced demeanor and

raising his voice at Dr. Hart?

A. You know, I guess because I'm used to being

around, you know, John Stewart, I don't recall John

being any more boisterous than John would normally

be. Now, I do remember John leaving the room on

one occasion, and he appeared frustrated to me when

he left the room. But I'm not going to say that to

people that aren't used to being around John, that

maybe it wasn't, you know, louder than typical,

because John is just passionate about everything he

does.

Q. But you at least saw that he was frustrated,

though?

A. He was frustrated, yeah.

Q. And that frustration was directed at Dr. Hart,

right?

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R-234

A. You know, I didn't -- I mean, that -- I mean, if

y'all, if you knew John Stewart, the frustration

was probably more general than directed at anybody.

I mean, he's a school teacher and his demeanor, I

mean, he can get flustered at the people he works

with and stuff like that. But -- and that's what

I'm saying. I'm not saying he didn't raise his

voice or something, but it wasn't to the extent

that it seemed strange to me.

Q. Have you been made aware about the contents of

the text messages that were retrieved from the

BlackBerry device?

A. No.

Q. And if you were to learn that off of that

BlackBerry device -- and you have heard the

testimony. You have been here all day -- that from

the period of time, from the Mullet Toss up until

the time of Ms. Downs' death, that there was

communication from Ms. Downs to Mr. Nodine possibly

of a sexual nature, would you have found that to be

valuable to your case?

A. Well, I don't really -- I haven't -- if you want

to show me those. I didn't really hear what he was

saying, or understand what they were in response

to, for connotations you're putting to it. But I

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R-235

don't think it was ever in dispute that this was an

on-again, off-again, constant on/off again

relationship.

Q. Did you narrow down the period of time from April

25th at the Mullet Toss to May 9 as being an

important period of time for a continuing course of

time for stalking when you tried this case?

A. One period, yeah.

Q. Okay.

A. But our theory was, it involves all the periods.

Q. No, I understand that. But do you recall making,

specifically referencing that period of time, from

May 25th from the Mullet Toss up until Ms. Downs'

death, that there was an unbroken continuity of

stalking?

A. I don't think I said that. Could have, but --

MR. BECK: That's all, Your Honor.


THE COURT: All right. You may step down

and you may be excused.


(Witness excused.)

MR. WHETSTONE: One witness left, Your

Honor. Mr. Scully.

WILLIAM SCULLY III,

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R-236




DIRECT EXAMINATION

BY MR. WHETSTONE:

Q. What is your name, please, sir?

A. William Scully.

Q. And, Mr. Scully, what do you do for a living?

A. Right now I'm a private attorney in Daphne.

Q. Have you ever been an Assistant District Attorney

in Baldwin County?

A. Yes, sir. I was an Assistant District Attorney

in Baldwin County during this trial.

Q. And what was your -- I hate to use the word rank,

but what was your position at that time?

A. I was an Assistant District Attorney in regards

to this particular case. I assisted Ms. Newcomb in

preparing for and trying the Nodine case.

Q. Would you be second chair in this case?

A. I believe so.

Q. Okay. Did you have contact with Mr. Knizley in

this regard?

A. Yes, sir.

Q. Did you hand him the pictures that are one of the

issues today, before trial?

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R-237

A. I handed him, I believe, the exhibit that's

marked as Defendant's Exhibit 2. I believe I

handed him the disk that that picture came from.

Q. Did you, at any time, discuss with Ms. Newcomb

that, what Dr. Downs was going to say would not be

accurate because of the previous picture?

A. No, sir.

Q. Did you notice it yourself?

A. No, sir.

Q. Did you hide it in any way?

A. No, sir.

Q. Did you intentionally or with knowledge fail to

turn over any of the pictures, or edit the pictures

with Mr. Knizley?

A. No, sir.

Q. The BlackBerry, you were -- did you talk to REM?

A. I did. I spoke with a representative from REM

consistent -- my recollection is consistent to what

J.D. testified to, to some extent. Although, I

seem to recall that I called REM as opposed to them

calling us. It may have been that they called and

left a message, but I spoke with the REM

representative, and my understanding from them was

they would not, or could not, open the BlackBerry.

Q. Were other steps taken to open the BlackBerry?

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R-238

A. Yeah. I believe Warren Stewart may have spoken

with other law enforcement agencies, FBI, I'm not

entirely sure who, as well as Russell Yawn, who

examined the BlackBerry as well.

Q. Did you have an opportunity to review all the

evidence that was being presented in this case?

A. Yes, sir.

Q. Did you, at any time, advise Ms. Newcomb that she

shouldn't go forward with a murder case?

A. No, sir.

Q. You see any reason to so advise today?

A. No, sir.

MR. BECK: Object to the relevance.


BY MR. WHETSTONE:

Q. Did you assist -- did you work for Ms. Dixon

after Ms. Newcomb left as District Attorney?

A. Yes, sir.

Q. How long did you work for Ms. Dixon?

A. For approximately a year.

Q. Were you asked to provide her any information or

advice relative to this case?

A. Sporadically.

Q. Did you ever change your mind as to your earlier

conclusion?

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R-239

MR. BECK: Object to the relevance.

MR. WHETSTONE: I think there was testimony

earlier, Your Honor, that she talked to all kind

of law enforcement officers.


BY THE WITNESS:

A. No, sir, I didn't change my opinion on this.

BY MR. WHETSTONE:

Q. Were you present during Dr. Downs -- excuse me.

I said it myself. Not Dr. Downs, Dr. Hart's

meeting?

A. Yes, sir, I was there.

Q. Um, were you involved with the Grand Jury process

at all?

A. Yes, sir.

Q. Um, were you -- did you or anyone in your

presence at that meeting attempt to change his

opinion relative to what occurred?

A. Ah, my recollection of that meeting was that

there was information that was presented to Dr.

Hart. Again, I didn't, I didn't think that Dr.

Hart had formed an opinion. He certainly had not

issued a written opinion at the time we had that

meeting. One of the issues that we had had prior

with their office, was that they insisted on only

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R-240

giving testimony regarding, based on observations

of the body, which then, in light of Dr. Hart's --

some of the points that Dr. Hart brought up

regarding a prior, possible prior suicide attempt,

and there was another issue that did not have

anything to do with the body specifically, seemed

inconsistent.

I think the District Attorney's Office was

presenting some information to him that we believed

was relevant in his determination.

Q. Were any law enforcement officers in there

presenting any contrary opinions?

A. Contrary opinions to?

Q. To the District Attorney or to --

A. No. Certainly not.

Q. Any of them suggesting it was not a homicide --

A. No.

Q. -- in that meeting?

A. Not that I recall.

Q. Dr. Hart's opinion was, at that meeting was

undetermined?

A. Certainly that was the written opinion that he

issued.

Q. You know John Stewart?

A. I do.

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R-241

Q. John is rather passionate, isn't he?

A. He gets excited, yes, sir.

Q. Did you see anybody, including Mr. Stewart and

particularly Ms. Newcomb, use any type of undue

pressure against Dr. Hart?

A. No.

Q. In any way?

A. No, sir.


MR. BECK: No questions.

THE COURT: All right. You may step down


MR. WHETSTONE: Your Honor I have no more

witnesses.

(Witness excused.)

THE COURT: Any more witnesses?

MR. BECK: I would call Pascal Bruijn

briefly for rebuttal.


PASCAL BRUIJN,




DIRECT EXAMINATION

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R-242

BY MR. BECK:


A. Pascal Bruijn.

Q. And, Pascal, you are a practicing attorney?

A. That's correct.

Q. And you also represent Mr. Nodine; is that

correct?

A. That's correct.

Q. I wanted to ask you a question about another case

that you had handled, Mr. Troy MacDonald, do you

recall that case?

A. I do.

Q. And around the time that I mentioned with

Ms. Newcomb, the, uh -- were you given -- did you

have a conversation with someone from the District

Attorney's Office?

A. I did.

Q. And do you recall when that discussion took

place?

A. My billing records show that that discussion was

made on or about May 25th, 2010.

Q. May 25th, you said?

A. Correct.

Q. And was that a Tuesday?

A. I don't know.

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R-243

Q. And, and what was the nature of that discussion?

A. It was a plea offer in what was then the high

profile case in the county, I guess, Troy MacDonald

having killed Brianna Parish. And a plea offer was

made to settle it, and I was given 72 hours to

either accept or reject.

Q. And was that -- and what day of the week was the

-- did you have to give a final answer?

A. Before the end of that week, so that would be

that Friday.

Q. And so, if you were told to get back to them with

an answer on a capital murder case on a Friday, and

you had 72 hours, would that have put it on a

Tuesday that that offer was made to you?

A. Sure.

Q. Did you find that to be unusual in a capital

murder case?

A. It was a -- it was very unusual and highly

suspicious.

Q. And was a trial of Mr. MacDonald's case imminent

at that point?

A. I don't think so. Ah, there are no trial terms

after May 25th until August or September.

Q. Had you filed any motions with the court that

might be dispositive of the issue to your

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R-244

recollection?

A. No.

Q. And just to refresh the collective recollection,

the Friday that you were given to either accept or

reject that offer, where did that fall in

comparison to the date of the primary elections?

A. So, if I was given 72 hours until Friday, that

would be the Friday before the primary election for

the District Attorney on the following Tuesday,

June the 1st.

Q. And you said that you found that highly

suspicious. Why, sir?

MR. WHETSTONE: Objection as to why he

found it highly suspicious. It's outside the

scope of the inquiry today.




MR. WHETSTONE: I have no questions of

Mr. Pascal.

(Witness excused.)

MR. BECK: That's all from the Defense on

this motion, Your Honor.

THE COURT: Does either side wish to make

any oral argument?

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R-245

MR. BECK: We can just submit it and brief

it or --

MR. WHETSTONE: Whatever you want to do. I

can do it today, or we can do it by -- as he

suggested.

MR. BECK: I would ask -- humbly ask -- and

I know I'm responsible for us being here today,

but we do have my daughter's graduation this

evening, and I would ask the Court, if the Court

would please, that maybe we could submit any

arguments to the Court.

THE COURT: All right. That will be

satisfactory.

MR. WHETSTONE: Your Honor, did you want to

hear any evidence on the other matter?

THE COURT: Well, yes. I mean, what time

is the graduation?

MR. BECK: Judge, I need to, I need to get

back probably about -- I know people are coming

at 4:00, but if I can get back by 5:00, I'm good.

MR. BRUIJN: Your Honor, my motion won't take

long.

THE COURT: We are going to stop at 4:25

anyway.

MR. WHETSTONE: Yes, sir. Thank you.

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R-246

MR. BRUIJN: Your Honor, the other

remaining motion from the Defense is the motion,

supplemental motion for change of place of trial.

I'll briefly summarize our argument, Your Honor.

To my knowledge this is the most

high-profile case, the most written about, the

most live tweeted case we have had here in

Baldwin County. I have done some research on

Google and found there has been 74,000 articles

or mentions of my client's name in the media

since the May 9th, 2010 shooting of Ms. Downs.

This -- the pressure has been intense in

this case, in that, not only does the Mobile

Press Register run a weekly publication rate of

350,000 copies, there's also been almost daily

updates, especially if there's any motions, by

all three major news outlets. That's Fox, WKRG,

and Channel 15. And also, all the Twitter

accounts of all the individuals with the press

involved. It's also been on Face Book. It's on

al.com.

And, Your Honor, most of the responses

are negative towards my client. I have included

some in my motion. When my client was convicted

in Federal Court, some of the comments were,

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R-247

"scumbag," "I hope he gets much less time by way

of the needle," meaning, I hope he dies. I hope

he, um -- "He's a druggy." "He's trash." "He's

a woman-abusing murderer." And this has been

consistent with everything that I have seen on

the comment side of these articles, Your Honor.

Since the original filing of the motion

to change venue several things have happened, one

of which is the response by the State of Alabama

in which they concede that there has been a

saturation by the news media about this case in

the community, which is the jury pool. And in

that motion, in that response, the State

suggested Lee County or Houston County as

possible venues. I know that Your Honor had a

meeting with then-defense counsel, Mr. Knizley

and then-prosecution about perhaps moving it

there, and at that point everybody was in

agreement that it probably should be moved. I

know Your Honor did not make a final ruling

during that meeting.

Also, since that time my client has been

convicted in Federal Court. As part of the

pre-sentence report, a listing of his criminal

history was released by Brenda Kirby who was with

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R-248

the Press Register, and so everybody who has a

subscription to that newspaper now knows about

his criminal history. This, of course, we don't

believe it's proper to have a jury pool know all

this. Those would be issues subject to 404(b)

motions, 403 motions, 609 motions. But that's no

longer possible because it's in the public domain

now. Whereas, if this case were to be tried in

Lee County, it would be a fresh set of ears and a

fresh set of eyes, not people who have been

inundated almost three years, or almost daily

updates about this case.

Now, I say that because most -- I guess

all motions to move a trial is for pretrial

publicity. Not only have we had pretrial

publicity, we have had pretrial, trial, and

post-trial publicity. Just like today, we have

invoked the rule, there's witnesses outside;

however, there's newspaper reporters inside this

courtroom who are live tweeting. So the

witnesses are outside reading the updates to what

people are saying. And that's fine. I don't

think that any witnesses have changed their story

as a result of that. But my secretary and my

wife are following this as if they are here. So

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R-249

they are hearing evidence that may or may not be

admissible in Court, yet they hear it as if it

is, and they have formed opinions over the last

two years about this case that is based upon the

global output of information that has been put

out because of this case, a tiny fraction of

which is admissible.

And I mentioned the fact that my client

was convicted of a Federal case. He's also

convicted of a State case, the State drug case.

The general public knows about that. Again, that

would be a violation of his due process rights

under 403, 404, and 609, the same way with his

impeachment trial, Your Honor.

And so for those reasons and --


MR. BRUIJN: And, Your Honor, if I may,

there are two ways to prove a burden as to

whether or not a trial should be moved. One is

actual prejudice, in which I request that you

authorize us $10,000 or $15,000 to hire an expert

from South Alabama to poll the jury, poll to find

out whether or not people have an existing

opinion as to the guilt or innocence of my

client. The other way is, and I think the

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R-250

Supreme Court has described it as an inherent

prejudicial publicity which has so saturated the

community, which has a probable impact. If any

case has had a probable impact by the prejudicial

publicity it's the Steve Nodine case. As Ms.

Dixon has already indicated, he is not a very

liked person in this community.

And so, I think for those reasons, and

the fact that we relied on Ms. Dixon's

representation to the Court that she would not be

opposed to moving to Lee or Houston County, we

believe that Lee County would be appropriate.

The reason I said Houston County is not, in

researching this motion, I have talked to some

lawyers in those venues and half of the lawyers

in Houston County know about this case. I don't

know how or why, but they do. And I did not get

that in Lee County.


Mr. Whetstone.

MR. WHETSTONE: Your Honor, I was not the

person who filed that motion for the State of

Alabama relative to saturation.

THE COURT: But the State of Alabama did.

MR. WHETSTONE: Yes, Your Honor, the State

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R-251

of Alabama did. But the State of Alabama is now

represented by me, versus the person who filed

that. And I want the Court to know that I think

that, while there's been saturation, that is not

the question of whether or not you move it. The

question is whether or not he can get a fair

trial. And I believe over the years, that this

county is no longer like Monroe, where you have a

very small population where everybody knows

everything. It's a bigger county. And I think

the people of the United States, as well as this

county have developed a certain degree of a grain

of salt based upon what they see on the media. I

think they have seen it. I would not --

I'm not sure I would want a person on

the jury that never heard of this case in this

county. I don't know where you would find them.

A lot of people have heard. The Federal

Government, for example, was prepared to try the

master mind of 911 in New York City and they

moved it. Not because of unable to get a fair

trial; they moved it because of the security.

So I believe the history of this county

is that we're so large, so diverse, so separate,

that people can take into account news accounts

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R-252

that may be different and reach a fair verdict.

And I think that's the question.

I also think the reason that you hold it

in the county where this occurred is because the

people in this county will know the relationships

of Orange Beach and Fairhope and Gulf Shores.

They will know the geography of what we're

talking about. We don't have to explain that in

some other county.

Also the cost, Your Honor. The cost of

moving this on the victims as well as the State

of Alabama, and I presume on the Defense, would

be great. And what we are asking -- we agree

that there's been a great deal of publicity. I'm

not suggesting anything other than that, Your

Honor. What I'm suggesting is, there's

insufficient evidence to show that they can't get

14 people, or 12 people, that can fairly try this

case in this county with sufficient evidence, and

we'd ask the Court to leave it here.

If the Court determines that it shall

not be here, I have no objection to Lee or

Tuscaloosa, either one --

(Laughter in the courtroom.)

MR. WHETSTONE: -- in September.

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R-253

THE COURT: Well, whatever the Court

decides, it's not going to be based on football

rivalries.


MR. BRUIJN: And, Your Honor, I know

Mr. Whetstone was perhaps jesting when he said

Tuscaloosa, but it was mentioned that we shall

not have a county on the I-65 corridor, or within

range of the al.com, and I believe Tuscaloosa

would be in there.

THE COURT: Well, the whole State of

Alabama is subject to al.com.

MR. BRUIJN: Correct. And just to give you

some anecdotal information, my secretary, to this

day, will swear to you that there was blood found

on the outside of the vehicle that my client was

driving. And, of course, we know that's not

true, but she heard that through the media and

she believes that. And there's no way to put her

off that belief. And everybody has heard a

little snippet of whether or not he was convicted

of unethical morals, or whether or not he was

convicted in court of pills or marijuana.

Everybody has been so saturated with evidence, a

lot of it was not admissible, which is depriving

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R-254

my rights of a trial with due process. And

there's no harm in moving this particular case.

And we have had many, many cases, but this

particular case should be moved to Lee County

with a fresh set of ears and a fresh set of eyes.

MR. WHETSTONE: Your Honor, may I respond?


MR. WHETSTONE: I don't recall any cases

being moved from this county except for one,

years ago to Mobile. We have had cases moved

here, but I don't recall -- you may recall, Your

Honor. I don't recall. And I do think the

Constitution requires, as I remember it, to be

moved to the first county free of prejudice.

THE COURT: Mm-hmm.

MR. BRUIJN: And, Your Honor, in my

supplemental motion, I have mentioned at least

seven reported cases where cases have been moved,

so it's not an unusual thing.

THE COURT: All right. Were y'all going to

brief that also?

MR. BRUIJN: I can.


THE COURT: All right. Well, the Court

will take both motions under submission upon

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R-255

receipt of the post-hearing memorandums.

MR. BRUIJN: Yes, Your Honor.

MR. WHETSTONE: For purposes of me

understanding, are they going to do their brief

and then me respond to it? Is that --

THE COURT: Yes.

Before we leave, I wanted to ask a

question about Defendant's Exhibit 5.

(Bench conference was held as

follows:)

THE COURT: And Defendant's Exhibit 5 is

the report --

MR. BECK: Yes, sir.


MR. BECK: Yes, sir.

THE COURT: -- of the SMS messages. And

are these -- I just want to understand what I'm

looking at.

MR. BECK: Oh, yes, sir.

THE COURT: Are these messages that were

outgoing from Ms. Downs' phone?

MR. BECK: Your Honor, yes. The base of

this report is Ms. Downs' phone, so if it said

"sent" it went from her phone out, and if it says

"received" then --

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R-256

THE COURT: Okay.

MR. BECK: Yes, sir.

MR. WHETSTONE: This was supposed to be the

clean one, Your Honor, that we found out later on

wasn't as clean as we expected. But I think the

Court can take all that into proper context.

THE COURT: Okay. Well, it's -- the "sent"

and "received" made sense to me. Okay.


MR. BECK: Thank you, Judge.

(Defendant's Exhibit 5 was admitted

at the direction of The Court.)

(The Proceedings concluded at 3:38 p.m.)

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R-257

STATE OF ALABAMA)

COUNTY OF BALDWIN) CASE NO.: CC-10-1745;

CC-11-1635

REPORTER'S CERTIFICATE

I, SHELAGH DUNCKLEY, ACCR, Official Court

Reporter, duly commissioned and qualified, hereby

certify that the above proceedings were taken down by

me and transcribed by me, or under my personal

supervision, using computer-aided transcription, and

that the above is a true and correct transcript of

said proceedings.

I further certify that I am neither of counsel nor

of relation to the parties to this action, nor am I in

anywise interested in the outcome of this case.

I further certify that I am duly licensed by the

Alabama Board of Court Reporting as a Certified Court

Reporter, as evidenced by the ACCR number following my

name below.

So certified on this, the 6th day of February,

2013.

s/She l agh Dunc kl e y SHELAGH DUNCKLEY, ACCR #222


For the Honorable C. Joseph Norton

28th Judicial Circuit

Bay Minette, Alabama

Nodine,May21,2012

Documents

Transcript of Nodine,May21,2012