FAMILY COURT OF THE STATE OF DELAWARE COUNTY OF KENT COURTROOM #5
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IN THE MATTER OF:
PATRICIA P. DRISCOLL,
Petitioner,
Vs.
KURT T. BUSCH,
Respondent.
File No.: CK14-02747 Petition No.: 14-30621
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Transcript of Proceedings
January 12, 2015
FAMILY COURT OF THE STATE OF DELAWARE COUNTY OF KENT 400 Court Street Dover, DE 19901
HONORABLE DAVID W. JONES, Commissioner
The owner of this transcript will not copy, alter, transfer or otherwise use in an inappropriate manner. Inappropriate use includes, but is not limited to, using this transcript or the content of this transcript for the purpose of harassment, embarrassment, entertainment, inflicting emotional distress, exploitation, blackmail, loss of employment, and/or commercial gain.
PETITIONER: WITNESS
RESPONDENT:: WITNESS
N. Terry
C. Van Metre-
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Burrett 69
C. Cloutier
K. Busch
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PROCEEDINGS 4
MS. PAT MULLINS: ... Kent County is now in
session. The Honorable David Jones presiding in the
Matter of ...
THE COURT: Driscoll versus Busch.
MS. MULLINS: Thank you. [Laughter] . Please
be seated.
THE COURT: All right.
MALE VOICE: Good morning, Your Honor.
THE COURT: Good morning, everyone. We're back
on the record, I assume, since I can't see that. We're
back on the record in the matter of the PFA petition
filed by Ms. Driscoll against Mr. Busch. We left off
with Mr. Daunch's [phonetic] testimony. I believe we
completed that. Mr. Hardin?
MR. RUSTY HARDIN, ESQ.: Yes, Your Honor, we're
ready to proceed, if the Court is.
THE COURT: All right. Certainly.
MR. HARDIN: And we'll call Mr. Nick Terry.
THE COURT: All right. Mr. Nick Terry.
MS. MULLINS: Nick Terry.
[Background Noise]
MS. MULLINS: Take the stand right here, and
you can take your jacket off. Left hand on the Bible and
raise your right. State your full name.
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PROCEEDINGS
1 MR. NICHOLAS EDWARD TERRY: Nicholas Edward
2 Terry.
3 MS. MULLINS: Do you swear to tell the truth,
4 the whole truth, and nothing but the truth, so help you,
5 God?
6 MR. TERRY: I do.
7 MS. MULLINS: Spell your last name for the
8 record.
9 MR. TERRY: T-E-R-R-Y.
10 THE COURT: All right. Good morning, Mr.
11 Terry. Mr. Hardin, you may proceed.
12 N I C H 0 L A S E D W A R D T E R R Y, having
13 been first duly sworn, testif;ed as follows:
14 DIRECT EXAMINATION
15 BY .MR. RUSTY HARDIN
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Q: Good morning. Mr. Terry, if you will try
to keep in mind, the microphone in front of you is there,
so that you can be heard. Would 'you state your name
again, please?
A: Nicholas Edward Terry.
Q: And, Mr. Terry, how old a man are you?
A: Thirty-five.
Q: And where do you live?
A: I live in Thomasville, North Carolina.
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN
Q: And what's your occupation?
A: I'm a chaplain for Motor Racing Outreach.
Q: And how long have you been a chaplain for
Motor Racing Outreach?
A: For three years.
Q: Would you give the Judge a little bit of
the benefit of your background, where you grew up, your
profession, and how you got to where you are?
A: Sure, yeah. I spent ten years in the
sport of NASCAR as a competitor on the competition side,
as a pit crew member, going over the wall. I felt God's
leading me to ministry, and so instead of leaving the
sport to go into local church ministry, I became part of
the team at MRO, as one of their chaplains.
Q: All right. So when you say Motor Racing
Outreach, MRI--MRO are the initials that are used within
the organization?
A: Yes, sir, it's for Motor Racing Outreach,
that's right.
Q: And explain to the Court what MRO is,
please.
A: Yeah, basically, we provide pastoral care
for the NASCAR racing community. We are pretty similar
to what a local church would do, the only difference
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 7
being that we travel with the people and go with them,
but we provide a lot of the same care for the people.
Q: Now, do you have any type of official
relationship, one way or the other, with NASCAR?
A: No, we don't have any type of relationship
with them at all, no. We're not supported by them. They
give us the blessing to be out there serving and doing
what we do, but, no, no affiliation with them directly.
Q: So it'd be fair to say you're a totally
independent organization?
A: Yes, sir, that's right.
Q: And NASCAR is not paying your salaries or
anything like that?
A: No, we're funded just like a church is,
from the local community.
Q: Do you conduct services on weekends at
different racing venues?
A: Yeah, we do, we have--right after the
drivers' meetings every weekend, we have a service that
follows the drivers' meeting, which ends up being about
two hours before the race, and those services normally
last 20-to-25 minutes.
Q: And how do you travel? First of all, how
big of an organization is it? How many of you are there?
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 8
A: Yeah, I think there's about 14 of us on
staff, and maybe a couple of those are part-time. But
depending on the location of the race, we'll fly. If
it's somewhere we close, we typically drive, if it's only
five-or-six hours.
Q: Well, for instance, at the Dover
Racetrack, would you be there--well, how would you be
there? Would you be there in a motor home or what?
A: Yeah, it's different every weekend, but
for Dover, we would be there in a motor home versus if we
were on the West Coast, we would just be staying in a
hotel.
Q: All right. Are you married?
A: I am.
Q: And do you have children?
A: I do.
Q: And how old are your children?
A: They are seven, five, and four.
Q: And do they travel with you to these
different locations?
A: They don't go on a weekly basis. They end
up doing maybe five to eight a year.
Q: All right. In September of this past
year, and I'm going to be talking to you more
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 9
particularly about September 26th of 2014, was your
family traveling with you?
A: They were.
Q: And did you attend the racing--the race at
Dover in September of 2014?
A: Yes.
Q: And when you attended that race, were you
there in your motor home?
A: Yes.
Q: And would you kindly give us an idea of
what the schedule would be? If we assume that the 26th
of September was a Friday, what would your activities be?
A: Yeah, Friday would have been a day that we
were just at the track, just present during the day. There would have been qualifying and things like that
going on, Friday. And so Friday is typically a day where
we just make our rounds and connect with people that are there for the weekend, just to let them know that we're there, to be visible and just to be present.
Q: And do you know Kurt Busch?
A: I do.
Q: And how long have you known him?
A: About three years.
Q: And how would you describe, during that
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 10
period of time, your relationship with him? How often
would you be with him? Or were you social friends or
anything like that?
A: Yeah, I mean, really, the extent of your
relationship was just on pit road pre-race. He would
allow me the opportunity to pray for him before he raced,
and really, that was the extent of our relationship.
Q: And in this particular matter, at some
time, did you become familiar with the woman, Patricia,
that he was dating?
A: I did.
Q: Do you know her full name?
A: Uh-huh.
Q: What is it?
A: Patricia Driscoll.
Q: And do you see Ms. Driscoll in the
courtroom today?
A: I do.
Q: And would you point her to the--for the
Judge, just for the record?
A: Yeah.
Q: All right.
THE COURT: The record will reflect
identification of Ms. Driscoll.
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 11
Q: Now, how long have you known Ms. Driscoll?
A: About three years as well.
Q: And did you ever do any counseling for
either one of them or visit with either one of them about
different issues they were concerned about?
A: I never counseled Kurt, particularly. I
had spent some time with Patricia a couple of times.
Q: All right. Now, on the particular evening
of September the 26th, were you and your family in your
motor home?
A: Yes.
Q: And did Ms. Patricia Driscoll contact you?
A: Yes.
Q: About what time would you say that was?
A: Roughly around 10 o'clock or so.
Q: Were your children still up?
A: One of them was awake and two were asleep.
Q: And what happened exactly?
A: My wife and I, and one of my children were
in the back bedroom watching television. On the foldout
couch upfront was another--one of my children was asleep,
and my other kid was awake. And that's when we got a
knock on the door, Patricia and Houston [phonetic] were
there.
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 12
Q: All right. Let me just--I'll take you
through question and answer, if I can?
A: Sure.
Q: And would you describe each of them as you
observed them when you went to the door?
A: Yeah, when I opened the door, I noticed
that Patricia was crying and that she was upset. Houston
was very somber, very quiet, and had his head down.
Q: Okay. And by the way, before this
morning, had you and I ever met?
A: No.
Q: Had you had conversations or contact by
Mr. Yarborough [phonetic] in my office?
A: In your office?
Q: Or no, from my office. Had you ever had
contact with Mr. Yarborough, who is sitting here--
A: [Interposing] Yes, yeah.
Q: All right. But had you and I ever met or
talked?
A: No.
Q: Okay. Did we meet this morning?
A: Yes.
Q: Let me go back now to that particular
night. Could you tell--how would you describe the
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 13
overall demeanor of Houston?
A: Houston was--he was very quiet. He didn't
say really hardly anything. He had his head down and was
pretty much minding to himself.
Q: Okay. Did he appear to be crying?
A: I wouldn't say he was not crying, but it
was really hard to tell. He may have had a tear running
down his face, but it was very quiet, head down--
Q: [Interposing] Because his head was down?
A: --to himself, yeah.
Q: All right. And what did Ms. Driscoll say
when you came to the door?
A: Well, I immediately asked her if she was
okay, and she said, no. So since my wife was there with
us, I invited them to come inside.
Q: Okay. So what'd you do then?
A: I sat her down and--at a little table that
is in the bus, for eating. We moved my kid that was
awake to the back bedroom, along with Houston, so they
could watch a show back there.
Q: All right. And then during the time that
you--when she moved into the living room there at the
table, was it well lit?
A: Yeah, I mean, the lights were on. It was
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 14
dark outside. It was night, but the lights were--
Q: [Interposing] But inside the motor home,
was it well lit?
A: Yes.
Q: All right. And then what happened once
you got Houston to the back?
A: Well, we just began to ask her what was
going on. We just said, hey, what's going on?
Q: What did she say?
A: She said that she had been texting with
Kurt and was concerned about him, and that she drove over
from D.C. or from wherever she lives. And she said she
drove over and that they got into an argument, and then
she came over to the bus.
Q: Did she tell you what happened--her
version of what happened during the argument?
A: Yeah, after we got to that point, she told
me that after they got there, they got in an argument.
That was about all she said. And then she told me about
the incident.
Q: What did she say?
A: She said that Kurt grabbed her by the neck
and pushed her back up against the wall.
Q: Okay. She didn't say anything about him
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 15
slamming her against the wall three times?
A: No.
Q: And when she said he grabbed her by the
neck and pushed her up against the wall, what did she say
then?
A: That was it.
Q: Did she say anything about her neck?
A: She said her neck hurt, and this back part
of her neck, lower head.
Q: Did she ask you to look at her?
A: She did.
Q: What'd she say?
A: She asked my wife and I, did we see any
marks on her, or any redness, or any scratches, or
anything of that nature.
Q: And did you lean forward to look?
A: Yeah, my wife leaned over the table, and I
leaned in to look as well.
Q: And what did you see?
A: We didn't see anything, any redness or
anything.
Q: So what did you tell her?
A: My wife told her that we didn't see
anything--
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 16
MS. CAROLYN M. MCNEICE, ESQ.: Objection.
Hearsay.
MR. HARDIN: It's all part there of that res
gestae--
THE COURT: [Interposing] Okay.
MS. MCNIECE: I'm sorry. I did not hear your
response, Mr. Hardin. I didn't hear it.
MR. HARDIN: It is all part of a particular res
gestae of the offense.
THE COURT: Well, certainly, I won't consider
the utterance of Ms. Terry unless she's scheduled to be
here as a witness, for the truth of the matter that she
asserted. This witness can testify about what he
observed and didn't observe. But I won't consider Ms.
Terry's utterance for the truth of the matter that was
asserted, unless she is here to testify.
MS. MCNIECE: Thank you.
MR. HARDIN: That's fine.
THE COURT: Mr. Hardin?
Q: And then what did you say?
A: There was no need for me to say that I did
or didn't see anything on her.
Q: Why is that?
A: Because my wife had already stated that.
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 17
Q: And did you see any marks on her at all?
A: No.
Q: So at the time, can you estimate the--did
she tell you how long--what time she got there, to his
place?
A: She didn't give me an exact time, but it
was a very short amount of time that she got there, from
the time she got to our bus.
Q: Yeah, how far away was your motor home
from his?
A: I don't know exactly where they were
parked, but probably 50-to-100 yards, I would guess.
Q: How certain are you--~n a matter of
minutes after this event, how certain are you that you
saw absolutely no marks on her neck?
A: I'm certain that I didn't see anything.
Q: And did you look carefully?
A: Yes.
Q: And did you tell her--after your wife said
she didn't see anything, what did she say, meaning
Patricia?
A: Nothing. That was the end of that
conversation.
Q: After you looked at her and didn't see
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 18
anything on her neck, what happened next?
A: She said her neck was hurting, and my wife
offered her Ibuprofen and a pack of frozen vegetables for
her neck ..
Q: Okay. And so did she take those?
A: Yes.
Q: And then how much longer did she stay
there?
A: Maybe 30-to-45 minutes after that.
Q: And what was the conversation generally
after that?
A: Really just listening to her talk about
just the emotion of--just that she was feeling in general
about, you know, I know she said she felt guilty that she
had drove over there, and said she was blaming herself
and things of that nature.
Q: And what do you mean, she said she was
blaming herself?
A: Well, she said it was my fault, I drove
over here. And we just listened and the only counsel we
gave her was to either go back home or to go to a hotel
for the night.
Q: Now, in your practice, do you attempt, one
way or the other, to sort through one side or the other
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 19
of a story, when a person is telling you about something?
Sort of explain what your practice is about counseling,
in other words.
A: Yeah, I mean, I never question anybody
that brings anything to me that says anything about any
particular situation. I feel that my job as a chaplain
is not to make judgment on whether anything anybody says
to me is right or wrong. It's my job to listen and to
care for them the best that I can.
Q: And was that what you were doing that
night?
A: Absolutely.
Q: Does your wife ever participate with you
in visiting with people that come to you over situations?
A: Sometimes.
Q: All right. And in this particular case,
did you have any further conversations, other than what
you just mentioned, or contact with Houston?
A: No, not with Houston.
Q: Did Houston ever come out of the bedroom
that night, before they left?
A: He did.
Q: And do you remember that and what do you
remember about it?
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 20
A: He came out about halfway through our time
together, and he asked if Kurt was going to be okay, and
that was the only question he asked that night.
Q: Did he say anything about Kurt ever having
done anything to his mother?
A: That's the only thing he said--
MS. MCNIECE: [Interposing] Objection.
Hearsay.
THE COURT: Well, I think the answer is that he
didn't say anything, so that objection will be overruled,
to that extent.
MR. HARDIN: All right.
Q: Now, during the period of time that she
was there, do you recall making any recommendations to
her, or suggestions about where she should go or
anything?
A: Yes.
Q: How did that--
MS. MCNIECE: [Interposing] Objection. Asked
and answered. He already said he advised her to go
either to a hotel--
THE COURT: [Interposing] I'll allow the
witness to answer.
Q: What did you tell her?
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 21
A: Yeah, we said, we could either help you
get to a hotel tonight, if you need help doing that, and
get you set up for the night, or either we would counsel
you to drive home for the evening.
Q: All right. Now, when you were visiting
with her that night, after you finished 45 minutes or so,
or an hour--the total time she was in your trailer, you
would say is about how long?
A: I would say about 45 minutes.
Q: And by the time she left, did you see any
bruises or any redness on her neck then?
A: I did not.
Q: When she left, did--and when she left with
Houston, what time of night would you expect that to have
been?
A: 10:45 or 11 o'clock, somewhere around
there.
Q: Okay. Now, at some time last year, were
you contacted by Mr. Yarborough, that I asked you about
earlier?
A: I was.
Q: And did you talk to him over the phone?
A: I did.
Q: And were you aware that there were
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 22
hearings in this case in December of last year?
A: I was.
Q: Did we attempt to get you to come as a
witness then?
A: You guys asked me if I would come.
Q: And what was your position?
A: I said, no.
Q: All right. And why did you say no?
A: Well, mainly because I didn't want to pick
a side. I didn't want to support Kurt or support her,
but I wanted to support both of them, the best I could.
Q: All right. And so basically, you wanted
to stay out of it, if you could. Is that true?
A: Yes, I do.
Q: All right. Now, obviously, you arrived
today at our request, correct?
A: Yes.
Q: And why did you change your mind and
decide to come in?
A: Well, because you guys shared some
information with me about things that were said in here
under oath, that were not true, about me, things that I
did not say--
THE COURT: [Interposing] Excuse me.
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 23
MS. MCNIECE: Excuse me.
THE COURT: My understanding, counsel, is at
the beginning of this proceeding, the witnesses were
sequestered. This witness is now telling me that counsel
shared with the witness, things that other witnesses said
in the proceeding?
MR. HARDIN: We shared with him, testimony in
the trial. That's what it is. And he was not a witness.
He was never sequestered.
MS. MCNIECE: I have to object on that basis.
Also, I'm not sure if in fact, it was Mr. Hardin who said
that, or another member of his staff. For instance, he's
talking about a Mr. Yarborough, and I don't know who that
is.
MR. HARDIN: Well, we just pointed him out.
THE COURT: Mr. Yarborough is--
MS. MCNIECE: [Interposing] I thought that was
it. I've never been introduced to him--
THE COURT: --his--the assistant is present.
MR. HARDIN: Your Honor, if I may? May I be
heard on it--
THE COURT: [Interposing] Yes, you may.
MR. HARDIN: He was given testimony that was
given in open court, to review to see if it was accurate
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 24
as to what he said. This is the witness, she said, that
we bribed and that we threatened. Now, I am surely
entitled to inquire of that witness, if that is in fact
sortreth.ing t.hat. happened. And it goes directly to her
credibility. She swore under oath that we threatened her
and that we bribed her--bribed him. And he was never a
witness. He had declined to be a witness.
THE COURT: Well, here's the distinction
though, Mr. Hardin. The distinction is--well, I think
one thing that we're going to need to get into with the
witness is the extent to which testimony that was
presented in court was disclosed to the witness in
anticipation of the witness being a witness in the
proceeding. Because it doesn't really matter, Mr.
Hardin, whether the witness is someone who you've
identified somehow, pretrial, or whether the witness is
someone who you decided to call as a witness at some
point in time during the proceeding.
We're going to have to determine the extent to
which sequestration may have been violated, and then the
Court is going to have to make a determination with
regard to what to do as it relates to the witness'
testimony. So I'll allow--Ms. McNeice, if you wish to
voir dire the witness as it relates to any sequestration
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 25
violation, I'll allow you to do that. And then we'll
make a determination with regard to how to proceed.
Or, Mr. Hardin, if you wish to preliminarily
begin the voir dire about what testimony was shared with
the witness--
MR. HARDIN: [Interposing] Well, what I was
going to do, and I think it'd be for the ease of the
Court and for the other side, I've made copies of the
excerpts of the transcript, the official transcript that
he was sent. So that the Court understands, he was sent
this, to ask if this accurately reflected what he had
said and what had happened. And I've got copies here
that I can give Defense and you, and he can look at to
identify whether this is what he received from us.
THE COURT: Okay.
MR. HARDIN: And then you will have a basis to
sort of start thinking about--
THE COURT: [Interposing] All right. What I'll
do is, I'm going to recess, so that you can share those
transcripts with Ms. McNeice. Ms. McNeice, then we'll
see whether or not there's some sort of application as it
relates to the witness' testimony, based on the
sequestration violation that is alleged, at least.
MS. MCNIECE: Your Honor, before you take a
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 26
recess, I'd like to present to the Court, he's called
this an official transcript. This is not indeed, an
official transcript. It is not a transcript that's been
prepared by any court reporter. It is not--or any person
that has used the recordings of this Court.
THE COURT: Okay.
MALE VOICE: That's incorrect.
THE COURT: Okay. Well, I do have a transcript
in my file, so I'm assuming that that--
MALE VOICE: [Interposing] Yeah--
MR. HARDIN: [Interposing] It is.
MALE VOICE: We ordered it, and it is the
official transcript.
THE COURT: I'm assuming that there was a
transcript ordered by someone. But in any event, what's
relevant is that it is what was shown to the witness,
allegedly. And when we're talking about a sequestration
violation or an alleged sequestration violation, we need
to make a determination with regard to the extent to
which any alleged sequestration violation may have
infected the witness' testimony.
And so I'll allow you to review that portion of
the transcript, which apparently, it must be an official
transcript or it wouldn't have landed in my file. So
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 27
I'll allow you to review that and we'll take a recess.
And let the Court know when you're ready and we'll have
voir dire as it relates to - -
[Background Noise]
MS. MCNIECE: Thank you.
THE COURT: We're in recess.
FEMALE VOICE: All rise.
[END 436261 20150112-0910 PART1.WMA]
[Whereupon, a recess was taken.]
[END 436261_20150112-0955 PART2.WMA]
MS. MULLINS: Family Court back in session.
Please be seated.
THE COURT: All right. Good morning again,
everyone. Ms. McNeice, you've had an opportunity to
review the transcript that Mr. Hardin had referenced
previously, about the testimony in this proceeding that
had been shared with the witness. Is that correct?
MS. MCNEICE: That's correct, Your Honor.
THE COURT: Okay. And do you have some
application based upon the transcript that you've been
given?
MS. MCNEICE: Yes, I am first not familiar with
the reporting and transcription service that is listed on
the bottom of this. I'm only familiar with transcription
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 28
services in Delaware that are used by this Court. That's
my first application, is that, in fact, this is not an
official transcript, but rather was completed through
some recording device that Mr. Hardin secured.
My second application is that this witness has
been approached and provided with a segment of testimony
that is part of two days' worth of extensive testimony
presented, not just by my client, but by many other
witnesses. I would suggest to the Court that his
testimony has been tainted. He has been provided with
snippets material taken out of context. He was sent,
apparently, these materials through a screenshot, rather
than actually provided with a piece of paper that we
generally refer to as a transcript that is a formal
presentation of the testimony.
And on that basis, I would suggest that his
testimony should be stricken in its entirety.
THE COURT: Mr. Hardin, I will certainly--I
haven't seen yet, the portion of the transcript that was
provided to Mr. Terry, and so obviously, I'll need to
review that. As well as, I will allow either party or
both parties to voir dire the witness, as it relates to
the transcript that was shown to the witness, and the
impact that may have had on the witness' testimony.
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 29
So I will take a look at the pages. I do have
an official transcript in my file. Ms. McNeice, the way
we have proceedings transcribed is, we actually--when a
party pays for them, we send the tape-recording of these
proceedings off to a transcription service. I don't know
where they're located now. They used to be located in
North Carolina. And the transcription service
transcribes the proceedings for us, and that's how we
make an official court transcript. And there appears to
be one in my file.
We don't allow recording devices in our
courtrooms, so we don't allow people to independently
tape record what happens here. And so I'm just going to-
-well, I can't assume--
MR. HARDIN: [Interposing] If I may--
THE COURT: What I can do is, I can compare
what Mr. Hardin presents to the transcript that I have in
my file, to see if it's authentic.
MR. HARDIN: If I may, Your Honor?
THE COURT: Sure.
MR. HARDIN: What I would propose is, I can
show--I've marked as Respondent 12, the excerpt that we
say that we sent.
THE COURT: Uh-huh.
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 30
MR. HARDIN: And for your reference, to see if
it's accurate, once we tender it to you, it's Pages 182
and 183 of the first day.
THE COURT: Okay. All right. Thank you.
MR. HARDIN: And then for the record, if I
could make a proffer, if it's okay with the Court?
THE COURT: Uh-huh.
MR. HARDIN: This witness had made it clear
that he was not going to be a witness in the case.
THE COURT: Yeah, I think I've heard the
witness' testimony. I don't need any further proffer in
the presence of the witness--
MR. HARDIN: [Interposing] I just wanted one
for the record. Yes, sir.
THE COURT: Okay.
MR. HARDIN: And then because--depending on the
Court's ruling. And then you will see on this exhibit,
that it was--this excerpt of two pages was sent to him on
January the 8th of this year.
THE COURT: Uh-huh.
MR. HARDIN: And you will see on this exhibit,
his response to us. And so what I would propose--and at
that time, he was not a witness. He was somebody that we
were trying to persuade to be a witness, but we had been
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 31
unsuccessful in doing so.
THE COURT: Well, we can get to that point when
the Court determines whether to make a ruling. If
someone is a potential witness, they are subject to
sequestration, just as much as someone is on some
official witness list. We don't sort of do that here in
Delaware.
We don't limit the witnesses that you can call,
by placing people on a list of witnesses, and it's fair
game to share testimony with people who aren't on that
list, but not with people who are. In Delaware, all
potential witnesses are sequestered, and therefore, it's
not appropriate to share the transcription of testimony
with potential witnesses.
MR. HARDIN: If I may? If the Court--what you
will see is, this is specifically asking him if things
said about him, and that he said were true.
THE COURT: Uh-huh.
MR. HARDIN: If you recall, what you'll see
there, this has to do with whether or not we had bribed
him or whether we had threatened him.
THE COURT: Uh-huh.
MR. HARDIN: Obviously, as you know, we have an
obligation to pursue and find out whether that is true or
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 32
not, and to see what his reaction is to that, because
that was the first time we had ever heard that. She
swore under oath, that was true.
THE COURT: Uh-huh.
MR. HARDIN: We believed then and are certain
now, that was perjury. We had an obligation to check
into that. And the only--the easiest and most accurate
way, rather than us just talking to him, is to show him
exactly what was said and ask if that is true. It is
then that he informed us, it was not. And then he can
tell you one way or the other, in his mind, why he ended
up here.
But that is what--and at the time he showed--he
was--I think under the law, Your Honor, in all due
respect, I'm not aware of any case that says a witness
cannot be asked if testimony about him is true or not,
which is what this was.
THE COURT: Well, a witness can be asked to
deal with subject matter, but once witnesses are
sequestered, there's an order that says that they can't
be present or have disclosed to them, anything that's
been said in court. And so we'll deal with this.
But first and foremost, I think what we've got
to deal with is, what was disclosed to the witness?
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VOIR DIRE OF N. TERRY BY R. HARDIN 33
1 MR. HARDIN: How about if I show that to him
2 now?
3 THE COURT: I'll take a look at that. And I'm
4 referencing the pages here. Ms. McNeice, you're
5 standing. I'm assuming that you'll have an application
6 once we hear from the witness--
7 MS. MCNEICE: [Interposing] I will, thank you.
8 I--
9 THE COURT: [Interposing] Okay, Thank you.
10 MS. MCNEICE: --will wait.
11 MR. HARDIN: And if I may?
12 VOIR DIRE BY
13 MR. RUSTY HARDIN
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Q: My question to you, sir, is if you'll look
at that and see if that appears to be an accurate copy of
what was forwarded to you by email, Respondent's 12?
A: Yes, it is, yes.
Q: Okay.
MR. HARDIN: May I tender it to the Court?
THE COURT: Sure. Thank you. All right. If
you have questions of the witness as it relates to this,
I'll allow you to ask him.
MR. HARDIN: Thank you very much.
Q: Now, Mr. Terry, my question to you was--
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VOIR DIRE OF N. TERRY BY R. HARDIN 34
let me take you back in reference. You had testified
that you had originally not intended to appear as a
witness. Is that correct?
A: That's right.
Q: And at the time that you received this
email that is Respondent's 12, I just showed you, at that
time, did you intend to be a witness?
A: No.
Q: And had you informed us at that time, that
you didn't--that you were respectfully declining to be a
witness.
A: Yes.
Q: Okay. For the reasons that you gave the
Court earlier.
A: Yes.
Q: All right. Now, at any time, did we
suggest to you, what you should say or try to get you to
say anything?
A: Absolutely not.
Q: After you received that particular bit of
testimony, Respondent's 12, that she has been given, what
was your reaction to it when you saw it?
A: Well, my immediate reaction was, it was
not true.
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VOIR DIRE OF N. TERRY BY R. HARDIN 35
Q: And so did that have any impact on your--
THE COURT: [Interposing] Your reaction, sir,
was that what was not true?
MR. TERRY: What was stated in the reporting.
Q: Let me be more specific with you--
THE COURT: [Interposing] Okay. You--
Q: Let's start with 182. On Line 13, it
reflects--well, let's go back. Let me go back before.
There's a question on Line 8. Could you tell me who we
have supposedly threatened or bribed? In answer, she
said, you named some of my staff members, and do I know
these people. And the question on Line 12, which ones
did we threatened? And the answer was Matt Ballard
[phonetic]. You also threatened the preacher, Nick
Terry. I was on the phone with him last night. Is that
true? Did we ever threaten you?
A: No, you did not.
Q: And question, we threatened him? Answer,
yes, you did, and then you also bribed him and tried to
get him to change his story. Is that true?
story?
A: You did not bribe me, no.
Q: Did we try to get you to change your
A: No.
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VOIR DIRE OF N. TERRY BY R. HARDIN 36
Q: Have you always told us the same thing?
A: Yes.
THE COURT: All right. Sir, in what respect
did th-e':.'',di.sclosure of this cause you to change your mind
with regard to whether you wished to be a witness in this
proceeding or whether you wished to remain neutral in
this matter, as you've stated previously?
MR. TERRY: Yeah, the difference in that was
after reading that, what I wanted was for the
Commissioner or the Judge to hear from me directly, to
have my testimony, to be able to make fair judgment.
THE COURT: Okay. And, sir, did you actually
have a conversation with Ms. Driscoll, the night before
the proceeding, that she was discussing in this
testimony?
MR. TERRY: Yeah, uh-huh, yes, sir.
THE COURT: So you did have that conversation
with her?
MR. TERRY: It was the Sunday before, yes, sir.
THE COURT: Okay.
MR. HARDIN: Which was not the night before,
just for the Court.
THE COURT: Right, the proceeding began on a
Tuesday. So you had a conversation with Ms. Driscoll,
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VOIR DIRE OF N. TERRY BY R. HARDIN 37
the Sunday before the proceeding began.
MR. TERRY: Yes, sir.
THE COURT: All right. And did you and Ms.
Dr:iosc.o~,l in that conversation, discuss your interactions
with Mr. Busch and his counsel?
MR. TERRY: The only thing she said that--was
that she heard that I was coming up here, and I told her
that I was not.
THE COURT: Uh-huh. And did you discuss with
Ms. Driscoll, why you were not coming?
MR. TERRY: I did, yeah, I told her the same
thing that I shared with the Court, was that, I was not
going to pick a side, him or her, to support through this
process.
THE COURT: Okay. So the part of the testimony
that's not true, that you're telling the Court about, is
that--is the part about being threatened by Mr. Hardin's
firm or Mr. Busch's defense counsel, and that they bribed
you and tried to get you to change your story. That's--
MR. TERRY: [Interposing] That's right.
THE COURT: That's the part that's not true.
MR. TERRY: Yes, sir. They've been very
professional and respectful the whole time.
THE COURT: Okay. And so did you have any
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VOIR DIRE OF N. TERRY BY R. HARDIN 38
conversation with Ms. Driscoll, to the effect that things
like that had occurred, in your conversation with her?
MR. TERRY: I told her that they approached me
and asked me if I would come, yes.
THE COURT: Okay. As part of your conversation
with Ms. Driscoll, did you discuss whether or not you had
been threatened or bribed by Mr. Hardin's office or
anyone on behalf of Mr. Busch?
MR. TERRY: No.
THE COURT: Okay. All right. And you didn't
have that discussion or you told her that that hadn't
happened?
MR. TERRY: No, we did not have that
discussion.
THE COURT: Okay. All right. Mr. Hardin, did
you have further questions of the witness as it relates
to this--
MR. HARDIN: [Interposing] I do, Your Honor.
THE COURT: Okay. All right.
Q: I want to ask you--
MS. MCNEICE: [Interposing] Excuse me. If I
just might clarify? Is this by way of voir dire or is
this continued--
THE COURT: [Interposing] This is voir dire.
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VOIR DIRE OF N. TERRY BY R. HARDIN 39
No, we're not continuing the testimony at this point.
We're just voir diring the witness at this point--
MS. MCNEICE: Thank you.
MR. HARDIN: Oh, I'm sorry. I misunderstood.
Q: On the particular--when you had the
conversation with her, the Sunday before the hearing
started in December, which was on a Tuesday, was that by
phone or by text?
A: By phone.
Q: Okay. And had ya'll texted any--had she
initially texted you before that phone conversation?
A: She had texted me, asking me if I could
call her. And we were having my daughter's birthday
party and told her that I'd call her later that
afternoon.
Q: And so that's how the conversation
happened? You returned her call on that Sunday?
A: Yeah.
Q: How long would you estimate that ya'll
talked?
A: Five minutes, maybe.
Q: Now, reading this, that you wrote--that
you were sent, Pages 182 and 183 of the transcript, would
your testimony have been the same before you got it than
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VOIR DIRE OF N. TERRY BY R. HARDIN 40
after you got it?
A: Yeah, it's been the same, yes, sir.
Q: I understand that you've given a reason as
to why you decided to come to court, but has that--did
those two pages you received have anything to do with
what you're saying?
A: No.
Q: Do you understand what I mean? In other
words, you've explained that it impacted your decision to
come tell the Judge, so he would have the full story,
correct?
A: Yes, yeah.
Q: But what you're telling him is that it's
the same that you would have said, if you had come before
you ever received it.
A: Yes, it's the same.
Q: All right. Was your decision simply--was
the impact of these two pages simply that it made you
decide that you wanted to make sure the Judge knew the
whole story, but not--it didn't affect the impact--
MS. MCNEICE: [Interposing] Objection.
Leading.
MR. HARDIN: Excuse me.
Q: --the accuracy of what you were saying?
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VOIR DIRE OF N. TERRY BY R. HARDIN 41
A: Yes, that's why I wanted the Judge to hear
my testimony.
Q: Why is that?
.A: So that he could make a fair judgment on
what happened.
Q: All right.
MR. HARDIN: That'~ all I have on the voir
dire.
THE COURT: Ms. McNeice, do you wish to voir
dire the witness further?
MS. MCNEICE: I do. Thank you. May I approach
and review the document that--
THE COURT: [Interposing] Do you want the
document that's been admitted?
MS. MCNEICE: Yes, if I--
THE COURT: Certainly.
[Background Noise]
THE COURT: I have the official transcript. I
can refer to those pages.
it--
MS. MCNEICE: Is this all - - yours?
MALE VOICE: Yeah, is it in your way?
MS. MCNEICE: No, I didn't know if you needed
[Crosstalk]
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VOIR DIRE OF N. TERRY BY C. MCNEICE 42
1 MS. MULLINS: Okay. You need to keep the
2 microphone--
3 MS. MCNEICE: [Interposing] All right. Thank
4 you.
5 VOIR DIRE BY
6 MS. CAROLYN MCNEICE
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Q: Mr. Terry, I'm going to review this
document. And again, this was sent to you in this form
of what we call a screenshot. Is that what you recall?
A: Yes, ma'am.
Q: And you received it as an email, correct?
A: As a text.
Q: As a text on, it appears to be, January
8th?
A: Yes, ma'am.
Q: Do you recall receiving that?
A: Yes, ma'am.
Q: And do you recall a phone call from
someone--well, excuse me, strike that. Did you receive a
phone call from someone in Mr. Hardin's office, prior to
receiving this text?
A: Any time prior to?
Q: No, on January 8th, prior to receiving
this text.
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VOIR DIRE OF N. TERRY BY C. MCNEICE 43
A: No.
Q: So they sent it to you.
A: Yes.
Q: Without any warning that it was coming.
A: Yes.
THE COURT: Specifically, sir, Ms. McNeice has
referred to they. Can you tell me who sent that text to
you?
MR. TERRY: Mr. Yarborough.
THE COURT: Okay. Thank you.
Q: And who is it again, that you understand
Mr. Yarborough to be?
THE COURT: Had you ever met Mr. Yarborough
before today, sir?
MR. TERRY: Not in-person, no, just over the
phone.
THE COURT: Okay. Did you meet him today?
MR. TERRY: In-person--
THE COURT: [Interposing] Did someone introduce
themselves to you as Mr. Yarborough?
MR. TERRY: Yes, sir.
THE COURT: And is that person here?
MR. TERRY: Yes, sir.
THE COURT: Okay. Could you point him out?
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VOIR DIRE OF N. TERRY BY C. MCNEICE 44
MR. TERRY: Yes, sir, right here.
THE COURT: Okay. Thank you.
Q: Do you recall the number of times you
spoke with Mr. Yarborough prior to receiving this text?
A: Twice verbally over the phone.
Q: Okay. Do you remember the dates of those
phone calls?
A: I do not exactly, no.
Q: Would it have been after you spoke with
Ms. Driscoll concerning the pending trial?
A: No, it was before that. The first phone
call that I got from Mr. Yarborough was--I don't know the
exact date, but probably the second-to-third week in
November.
Q: That's November 2014, of course.
A: Yes, ma'am.
Q: On the back of this collection of papers
referencing the screenshot of Pages 182 and 183, there
a--there is some information.
A: Uh-huh, yes, ma'am.
Q: Have you read this today, sir?
A: I read it just a few minutes ago.
Q: Okay. And this represents what?
A: That was my response to Mr. Yarborough.
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VOIR DIRE OF N. TERRY BY C. MCNEICE 45
Q: And who is Jim?
A: Jim Yarborough.
Q: Okay. You said you--what day did you send
this?
A: The same day on the 8th.
Q: Okay. You said, I'm at a conference in
Alabama and traveling home this afternoon.
A: Yes, ma'am.
Q: And your home is in North Carolina, sir?
A: Yes, ma'am.
Q: When did you arrive in Delaware to
participate in this trial today?
A: Last night--actually, early this morning,
we landed in Philadelphia about midnight, and then drove
down here.
Q: Who's we, sir?
A: Me and my boss, president and CEO of Motor
Racing Outreach, Billy Mauldin.
Q: And is he here today?
A: Yes, ma'am.
Q: Is he in this courtroom right now?
A: Yes, ma'am.
Q: And did you speak with Kurt Busch prior to
your testimony here today?
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VOIR DIRE OF N. TERRY BY C. MCNEICE 46
A: No.
Q: I'm sorry. With regard to this trial?
A: No, rna' am.
Q: And did you fly--what--how did you fly?
What--
A: [Interposing] We flew commercial.
Q: And what was that, sir?
A: We flew a commercial flight out of
Charlotte.
Q: Specifically, what was the name of that
flight or the airline?
A: u.s. Airways.
Q: And who paid for that flight, sir?
A: Motor Racing Outreach.
Q: And who paid for your room?
A: Motor Racing Outreach.
Q: You--strike that. Is your wife here
today, sir?
A: No, ma'am.
MS. MCNEICE: I have nothing further on voir
dire.
THE COURT: Mr. Terry, I have just a few more
questions of you. As part of this transcript that--this
is a transcript of--obviously of Ms. Driscoll's
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PROCEEDINGS 47
testimony, as you understand it. There's an allegation
that you had advised Ms. Driscoll that someone, on behalf
of Mr. Busch, had offered financial assistance. Okay.
Did you have any discussion with her, as it related to
whether you had been offered financial assistance by Mr.
Busch or anyone on his behalf, you or your organization?
MR. TERRY: No.
THE COURT: Okay. To your knowledge--do you
have any knowledge regarding who financially supports
your organization?
MR. TERRY: Yeah, we're supported by the NASCAR
community members.
THE COURT: Okay. And do those community
members include Mr. Busch?
MR. TERRY: They could, yes.
THE COURT: Okay. Do you have any direct
knowledge of whether or not Mr. Busch or anyone on his
behalf has provided financial support to you or your
organization?
MR. TERRY: I have no idea.
THE COURT: You don't have any idea because you
don't take care of that?
MR. TERRY: That's right, yes, sir.
THE COURT: All right. Thank you, sir. All
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VOIR DIRE OF N. TERRY BY R. HARDIN 48
1 right. I'll hear argument. Mr. Hardin, unless you have
2 other questions of the witness on voir dire, I'll hear
3 argument as it relates to the application regarding the
4 witness' .testimony--
5 MR. HARDIN: [Interposing] Well, I just want to
6 be clear.
7 VOIR DIRE BY
8 MR. RUSTY HARDIN
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Q: Is it true or untrue that Mr. Busch or
anybody on his behalf offered you any type of financial
assistance to come--
MS. MCNEICE: [Interposing] Objection. Asked
and answered.
MR. HARDIN: Well, I just--
THE COURT: [Interposing] I'll allow it to be
answered.
Q: Did anybody on Mr. Busch's behalf, or Mr.
Busch, himself, offer you any financial assistance, or
your organization, to come here and testify?
A: No one has offered me anything.
MR. HARDIN: I guess for the purposes of voir
dire, that will do it.
THE COURT: All right. Thank you, sir. Ms.
McNeice, anything further as it relates to argument on--
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PROCEEDINGS 49
MS. MCNEICE: [Interposing] With regard--
THE COURT: --the testimony?
MS. MCNEICE: I'm sorry. I thought you had
completed those comments. With regard to this witness'
testimony, he indicated that he did not intend to
participate and did not intend to take sides for--after
apparently repeatedly telling Mr. Hardin's staff. He's
indicated that he talked to them twice prior to the trial
starting in December. He indicated that he would not
take sides. He was not going to testify.
My client's understanding that he had received
some offers in order to come, he's testified that that
was not--my client cast it as a bribe. He said that he
did not receive that and did not have that conversation
with her.
I suggest to this Court that Mr. Hardin's staff
has overreached, has interfered with his client's
decision, and that his testimony should--is tainted by
what he's heard here. As I said, he's then given a
snippet of two days ...
THE COURT: It's okay. You may continue.
That's just a conversation between counsel--
MS. MCNEICE: [Interposing] With two days'
worth of testimony. Certainly, my client can discuss on
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PROCEEDINGS 50
rebuttal, what she recalls from their conversations. And
I suggest that this testimony has been tainted and it
should be stricken.
THE COURT: All right. By the way, wherever
the exhibit is, it can be returned. Has it been? Okay.
All right. I'm ready to rule. Fortunately, the portion
of the testimony that was presented to this witness was
not testimony that related to the actual facts and
circumstances surrounding the allegation.
And to be honest, this whole sort of issue, as
it regards to whether or not Mr. Hardin's office had
attempted to bribe witnesses, really is not central to
the case, itself. Obviously, I understand the point that
Mr. Hardin's trying to make, as it relates to Ms.
Driscoll's testimony and the credibility of that
testimony.
I'm not inclined to strike the witness'
testimony as it regards to what he did or didn't observe
and what did or didn't happen in his presence, as those
portions of Ms. Driscoll's testimony and the testimony of
any other witness were not shared with the witness, and
therefore, couldn't have infected the witness' testimony.
Obviously, the parties are now aware of the
Court's view of sequestration orders, and I would expect
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PROCEEDINGS 51
that they will act accordingly. I'm not inclined to
strike this witness' testimony. However, as this is a
very limited section of the official transcript--and I
have reviewed it and made sure that it is part of the
official transcript that was shared with the witness.
And according to the witness' testimony, that
impacted his decision to come here, but I can't see that
this testimony, in and of itself, other than improperly--
would--in other words, other than impacting the witness'
motivation would have impacted his testimony, itself.
I'm certainly capable of judging the
credibility of witnesses, and so I'm not going to strike
the witness' testimony. I will allow it to continue.
MR. HARDIN: Thank you, Your Honor.
THE COURT: The standard, by the way, is
prejudice--and to be honest, exposure to this snippet of
the testimony is not a violation of a sequestration
order, that would have prejudiced this witness in terms
of exposing him to testimony with regard to the disputed
facts that are at issue in the case. And so the witness'
testimony will not be stricken and I'll allow his
testimony to continue.
MR. HARDIN: Thank you. Your Honor, if I
might? One thing I would point out when we talk about
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 52
1 the significance of it is, if you look at Line 14 at 182,
2 she says, I was on the phone with him last night. I'm
3 really answering what counsel was saying. And then she
4 goes down on 16 and says, you also bribed him to try to
5 get him to change his story. I think the clear testimony
6 testimony was that he had told her that, that night.
7 THE COURT: Yeah, I can--I've read the
8 testimony, so I do understand what the transcript says.
9 For the purposes of--
10 MR. HARDIN: [Interposing] I understand.
11 THE COURT: --the ruling that the Court's just
12 made, the witness' testimony can stand. I'm not going to
13 strike it because the testimony that was shown to him
14 wasn't really central to the testimony that he's
15 provided--
16 MR. HARDIN: Thank you.
17 THE COURT: --with regard to what he saw or
18 heard.
19 MR. HARDIN: Thank you. Let me move on. I
20 just have a couple of other minutes.
21 DIRECT EXAMINATION
22 BY MR. RUSTY HARDIN
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Q: I wanted to ask you the following
questions on another subject. Do you recall when you
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 53
were testifying about when she came in and you observed
no marks on her neck - - ? Okay.
MR. HARDIN: And I will refer the Court,
without telling the witness what it is, to Pages 191 and
192 of that transcript, for the following questions.
THE COURT: Okay. Hang on.
MR. HARDIN: And this is going to be of the
second day.
THE COURT: You can ask the witness questions
about what he did or didn't observe, sir. I'm capable of
reviewing the testimony and determining what was in the
testimony--
MR. HARDIN: [Interposing] I understand. I
just thought it'd be easier if the Court knew what I was
getting at. That's all.
THE COURT: That's okay. I'm capable of
relating it.
MR. HARDIN: All right.
Q: Did you ever tell Ms. Driscoll that night,
that her neck was red?
A: No.
Q: Did you ever say to her, yes, you and your
wife saw the red marks on her neck?
A: No.
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DIRECT EXAMINATION OF N. TERRY BY R. HARDIN 54
1 Q: If one were supposed to say they told me,
2 yes, they saw the red marks on my neck, would that be
3 true or untrue?
4 A: No, that's not true--
5 MS. MCNEICE: [Interposing] Objection. I'm
6 sorry. I didn't understand this question.
7 THE COURT: I understood it. It's appropriate.
8 Objection is overruled.
9 MR. HARDIN: Thank you very much. That's all I
10 have, Judge.
11 THE COURT: All right. Ms. McNeice?
12 MS. MCNEICE: Thank you.
13 CROSS-EXAMINATION
14 BY MS. CAROLYN MCNEICE
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Q: Good morning, Mr. Terry.
A: Good morning.
Q: You indicated that Motor Racing Outreach
is supported by members of the NASCAR community.
A: Yes, ma'am.
Q: And that could include Mr. Busch, correct?
A: It could, yes.
Q: And you also said you just don't handle
that end of the business, so you're not sure who's
putting money in the plate and who isn't.
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CROSS-EXAMINATION OF N. TERRY BY C. MCNEICE 55
A: That's correct.
Q: Okay. As part of your ceremony--excuse
me. As part of your service, before each race, do you in
fact request contributions for the--from the
participants?
A: Yeah, we pass an offering basket, yes,
ma'am.
Q: Okay.
THE COURT: Sir, do your contributions
generally come in the form of just cash thrown in a
basket or?
MR. TERRY: No, most of them are sent directly
to the office.
THE COURT: Okay.
MR. TERRY: Yes.
THE COURT: Okay. All right. Thank you, sir.
You may continue.
MS. MCNEICE: Thank you.
Q: Where is that office, sir?
A: It's in Concord, North Carolina.
Q: Okay. When Ms. Driscoll appeared at your
door on the night of September 26th, you said it was
about 10 o'clock?
A: Yes, ma'am.
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CROSS-EXAMINATION OF N. TERRY BY C. MCNEICE 56
Q: Okay. And she related to you, her concern
for Mr. Busch. Were you surprised?
A: I wasn't surprised or not surprised.
Q: Had she come to you in the past about her
concern for Mr. Busch?
A: Yes.
Q: Had you offered her counseling with regard
to that topic?
A: Yes, ma'am, yes.
Q: And did that concern include Mr. Busch's
drinking?
A: She had shared with me about his drinking,
yes.
Q: Had you ever witnessed him drinking?
A: I have not, no.
Q: Had you ever given her information or
comments about what she should do to deal with Mr.
Busch's drinking?
A: We had talked about a couple of things,
yes.
Q: A couple of things, such as what, sir?
A: Such as, if he would've been willing to go
into an AA type program or talk with anybody from
something of that nature.
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CROSS-EXAMINATION OF N. TERRY BY C. MCNEICE 57
Q: Do you run any AA sessions?
A: I do not.
Q: And with regard to observing Mr. Busch
after a race, do you recall a race in Darlington, South
Carolina in roughly, May of 2012?
A: I do.
Q: And were you present when Mr. Busch was
reacting after a race?
A: I was present at the track, but not
present where he was at. I saw the same--just the
coverage on the television.
Q: Okay. You were not present--you were not
in Mr. Busch's presence--
A: [Interposing] Right.
Q: --when he was acting in a particular
manner.
A: That's correct. I was present at the
racetrack, but not in his presence.
Q: Okay. And what did you see?
A: I just saw a post-race altercation.
Q: You indicated that your wife was present
during your discussions with Ms. Driscoll when she
arrived at your trailer on September 26th, correct?
A: Yes, ma'am.
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CROSS-EXAMINATION OF N. TERRY BY C. MCNEICE 58
Q: And you know that also, your wife has been
interviewed by the Dover Police Department with regard to
this particular incident.
A: Yes, ma'am.
Q: Okay. And she may be called as a witness
at any criminal trial.
A: Yes, ma'am.
Q: Okay. Have you also spoken with the Dover
Police, sir?
A: I have.
Q: And you understand that you may also be
called as a witness.
A: Yes.
Q: Do you know if your--or your comments and
discussions with the Dover Police were recorded?
A: I do not know that.
THE COURT: Did you talk to them on the phone,
sir, or in-person?
MR. TERRY: On the phone.
THE COURT: Okay.
Q: You said Patricia told you that Mr. Busch
grabbed her neck and pushed her head against the wall,
correct?
A: That's correct--
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CROSS-EXAMINATION OF N. TERRY BY C. MCNEICE 59
Q: [Interposing] Is that what you recall?
A: Yes, ma'am.
Q: And that she also complained that her neck
hurt?
A: Yes, ma'am.
Q: Again, I believe you described an actual
area, where she was complaining of neck pain. Could you
show us again, where that was?
A: Yes, she just said it was here and on the
back.
THE COURT: Okay. So the first--because we
have to actually describe that for the record, sir,
because we don't--
MR. TERRY: [Interposing] Okay.
THE COURT: --videotape. We just tape record.
MR. TERRY: Yes, sir.
THE COURT: The first gesture that you made was
to your throat.
MR. TERRY: Yes.
THE COURT: And the second gesture you made was
to the back of your head or neck area--
MR. TERRY: [Interposing] Yes, sir--
THE COURT: --behind your head?
MR. TERRY: That's correct. Yes, sir, that's
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Phone: 212-346-6666 *Fax: 888-412-3655
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CROSS-EXAMINATION OF N. TERRY BY C. MCNEICE 60
correct.
THE COURT: Okay. All right.
Q: Okay. And you said your wife provided her
wit-h.some.assistance.
A: Yes.
Q: Ibuprofen and an icepack of sorts.
A: Yes, ma'am.
Q: Correct?
A: Yes, ma'am.
Q: Or some--
THE COURT: [Interposing] Frozen vegetables.
Q: Something cold--
A: [Interposing] Frozen vegetables.
Q: Frozen vegetables. That was cold--that
was what you had in the freezer at the time--
A: That was what we had, yes, ma'am.
Q: I understand.
THE COURT: Sir, where did she apply that, the
frozen stuff that you gave her?
MR. TERRY: Right on the back of the neck and
lower head.
THE COURT: Okay. Thank you.
Q: And when you say, she, who applied that?
A: Patricia.
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CROSS-EXAMINATION OF N. TERRY BY C. MCNEICE 61
1 Q: Did you ever speak with Kurt Busch, the
2 day following this discussion with Ms. Driscoll?
3 A: No.
4 Q: Did you see him?
5 A: Yes, I saw him on Sunday.
6 THE COURT: When you say you saw him on Sunday,
7 sir, does that mean you had a conversation with him or
8 you just witnessed him?
9 MR. TERRY: I talked to him--
10 THE COURT: [Interposing] Okay.
11 MR. TERRY: --for 30-to-45 seconds, prerace.
12 THE COURT: Okay.
13 MR. TERRY: And prayed with him. But we did
14 not--we didn't discuss any--
15 THE COURT: [Interposing] So that was a part of
16 your blessing of the drivers?
17 MR. TERRY: Yes, sir.
18 THE COURT: Okay.
19 MS. MCNEICE: I have nothing further.
20 THE COURT: Okay. Mr. Hardin?
21 MR. HARDIN: Real quickly.
22 REDIRECT EXAMINATION
23 BY MR. RUSTY
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