11 19 12 0204 063341 Transcript by RJC B. Johnson OCRd After No Number Crop

AQ
OF
IN THE JUSTICE COURT OF THE
IN AND FOR THE COUNTY
THE HONORABLE PETER SFERRAZZA,
-000-
THE STATE OF NEVADA, )
)
Plaintiff, )
) Case No. RCR2011-063341
vs. ) Department No. 2
)
ZACHARY BARKER COUGHLIN,)
)
Defendant. )
---------------------- )
JAVS ELECTRONICALLY RECORDED TRANSCRIPT OF PROCEEDINGS
Trial to the Court
Monday, November 19, 2012
APPEARANCES:
For the Plaintiff: ZACH YOUNG, Esq.
Deputy District Attorney
For the Defendant: ZACHARY BARKER COUGHLIN, Esq.
In proper person
*** I N D E X ***
WITNESSES: Direct Cross RD RC RRD
LICHTY, Austin 31
TEMPLETON, Colton 131
GOBLE, Cory
ZARATE, Nathaniel
161
198
191 193
COUGHLIN, Zachary 249
EXHIBITS: MARKED ADMITTED
For the Plaintiff:
NONE
For the Defendant:
1- digital media,
1st 911 call
2nd video of event
2nd call
99 104
2- digital media,
911 call on 8/20/11
99 104
3-
4-
5-
6-
7-
8-
digital media
digital media
photographs
photographs
photographs
photographs
99
99
133
133
133
133
RENO, NEVADA, MONDAY, NOVEMBER 19, 2012 9:12 A.M.
-000-
THE COURT: We're ready to go. And what we're
going to do first is dispose of any remaining objections
to the subpoenas I have previously ruled on the motion for
mistrial which was denied. The subpoenas I ruled, with
the exception of the Alaxa (phonetic) subpoenas, all other
subpoenas were either improperly served or improperly
issued, unduly burdensome, were for witnesses or matters
irrelevant to the trial on the merits in this case or did
not specify what documents, if any, were being subpoenaed
in the case of the subpoena duces tecum.
So the following subpoenas are the only ones
that are going to be honored today.
The one for Nicole Watson is Nicole Watson
here? Okay. Was she served with -- did you pay her or
not? The witness fee?
MR. COUGHLIN: Your Honor, you told me that
would be waived or deferred.
THE COURT: I didn't say that. I said if you
presented proof to me that I ordered that it be waived or
deferred, I would consider that.
I reviewed everything
you furnished me.
I did not see such a document.
MR . COUGHLIN: I believe (indiscernible)
recording on the record that we had discussed my
indigency.
THE COURT: Well, I don't want to hear what you
believe
MR. COUGHLIN: No, I, (Indi scernible)
THE COURT: Do you have it cued up?
MR. COUGHLIN: No, I don't.
THE COURT: Not going to do anything on that.
Lucy Byington.
Gave you to last Thursday to get me that.
Lucy Byington.
MR. COUGHLIN: I'll just enter for the record,
Your Honor, I have a bar disciplinary, full-day hearing.
THE COURT: I understood that but I gave you
additional time to get that.
Lucy Byington.
MR. COUGHLIN:
I would like to preserve for the
record --
THE COURT: Okay.
MR. COUGHLIN:
He lied to the Court asserting
that he was given, I believe, authority to serve me by
email for a hearing
THE COURT:
He was not --
MR. COUGHLIN:
That's what he represented to me.
THE COURT:
That was an additional service to
make sure that you got it.
MR. COUGHLIN: That's not his representation.
THE COURT: Colton Templeton. Mr. Templeton is
here so we'll honor that subpoena.
Robert Dawson. Okay. Any proof that he was
offered a witness fee or that I waived it?
MR. COUGHLIN: I believe he hung up on me and
you did waive it. It's on the record, Your Honor.
THE COURT: All right, well
MR. COUGHLIN: I got the CD (Indiscernible)
testify under penalty of perjury that you
THE COURT: Well, you will have an opportunity
later today.
MR. COUGHLIN: Well, you --
THE COURT: Sir, sit down.
MR. COUGHLIN: I just need a correction for
perjury sake, Your Honor, that you -- I believe you
reserved the right to make me pay it later, if it wasn't
outright waived.
THE COURT: Austin Lichty. Okay. Mr. Lichty is
here, so we'll proceed with him.
Any other subpoenas I've already ruled on?
know Mr. Dogan is here but I believe I ruled on your
subpoena as well if it was ~ m o n those that I previously
ruled on.
I
MR. DOGAN: Your Honor, am I free to leave?
MR. COUGHLIN: Your Honor, I do not believe
anybody presented a subpoena on his behalf. Certainly the
city attorney doesn't represent the public defender.
THE COURT: All right. Mr. Dogan, tell me why
you want the subpoena quashed.
MR. DOGAN: Your Honor, I filed a motion to
quash the subpoena that was served on me by Mr. Coughlin.
There was no response. It's an admission that my motion
is worthy. Also I have no knowledge of the fact --
MR. COUGHLIN: Your Honor, could we have this
man sworn?
(Indiscernible cross talk.)
THE COURT: Wait a second, sir. You sit down.
He's an attorney, you're not. Come on.
Mr. Dogan.
MR. DOGAN: Your Honor, I'm not a percipient
witness.
I have no personal knowledge of the
THE COURT:
I'm just trying to find your motion.
You say you did file a motion with the court?
MR. DOGAN:
That's correct.
THE COURT:
Do you know what date it was?
MR. DOGAN:
About two weeks ago, I believe.
MR. YOUNG:
Your Honor, I have a copy of Mr.
Dogan's motion if you would like to see it.
THE COURT: I would but I'm sure it's in here.
MR. YOUNG: It was file stamped November 7th and
I was served a copy of this. That's how I have a copy.
THE CLERK: What's the title of it?
MR. YOUNG: Motion to quash subpoena duces tecum
is file stamped November 7, 2012, 10:24.
THE COURT: I do have it. It was one of the
first ones. It is in the order. And what it responds is
that the material requested by the subpoena duces tecum
was previously furnished to Mr. Coughlin and further that
Mr. Dogan does not have that and I granted that motion.
MR. COUGHLIN: Your Honor, I was never served
that.
THE COURT: Never served what?
MR. COUGHLIN: I never received that.
THE COURT:
Well, sir, according to this it was
mailed to you or faxed.
MR. COUGHLIN: It was faxed?
THE COURT:
And the subpoena you served him
wasn't about -- sir.
On top of that the subpoena you
served him wasn't a valid subpoena.
MR. COUGHLIN:
I would note for the record that
my attorney, Biray Dogan, is smirking at me menacingly.
THE COURT:
I would say it's not menacingly.
MR. COUGHLIN:
He changed his expression
since you
UNKNOWN MAN: Your Honor --
THE COURT: I think he had smiled and there is
no rule against smiling.
Anyhow, sir, that subpoena is quashed for the
reasons stated in the motion but for the further reason
that the document that you served him with was not a valid
subpoena.
MR. YOUNG: For the record, I'm showing
Mr. Coughlin a copy of the motion.
MR. COUGHLIN: Your Honor, just for the record I
believe notice the opportunity to be heard dictates that
I --
THE COURT:
You had notice and opportunity to be
heard, sir, and I ruled and we're done.
MR. COUGHLIN:
I was not served it, Your Honor.
In fact, I don't believe it's accurate.
That's not
appropriate service and --
THE COURT:
Sir, I furnished you everything in
this file and you had the opportunity to review it __
MR. COUGHLIN:
When did you furnish me with the
file?
THE COURT:
At the last hearing we had in this
case.
MR. COUGHLIN:
No, you didn't.
You printed off
a docket sheet (Indiscernible) --
THE COURT: Yes, which showed
MR. COUGHLIN: -- be in the file.
THE COURT: No, but --
(Indiscernible cross-talk.)
THE COURT: it listed everything in the file.
THE COURT: Sir, I'm not going to argue with
you. Do you have something to add? Go ahead and add it.
MR. COUGHLIN: Yeah, but
THE COURT: Add it right now, sir, because --
MR. COUGHLIN: You furnished me (indiscernible)
at the last hearing on October --
THE COURT: No, I furnished you a list of
everything that was in the file.
MR. COUGHLIN: Okay. That was October 27th --
22nd. This is November 7.
THE COURT:
I understand, but you were given
extra time to respond to the subpoenas.
The issue before
me was that I quashed everything pending a review and you
were given opportunity to show me proof that those were
valid subpoenas.
You had that subpoena.
If you didn't
have the subpoena, it never existed, sir.
Did you not
MR. COUGHLIN: You ruled on (Indiscernible)
THE COURT: Did you not purportedly serve Mr.
Dogan, with a subpoena?
MR. COUGHLIN: I didn't personally.
THE COURT: No, but did you draft it up?
MR. COUGHLIN: He filed a motion to quash.
THE COURT: I'm not talking about the motion to
quash. I was ruling on all the subpoenas that you had
attempted to serve or served and I told you that.
MR. COUGHLIN: I wasn't noticed that the hearing
would be about that and I don't --
THE COURT: Yes, you were noticed that by
Thursday you were to furnish me with all your points and
authorities, all of your evidence that those were valid
subpoenas, every subpoena including that one, even if he
hadn't made a motion.
MR. COUGHLIN: Even if I hadn't made a motion?
THE COURT:
Even if he had not made a motion to
quash it.
There were lots of people who didn't make
motions to quash their subpoenas.
MR. COUGHLIN:
And you quashed them because --
THE COURT:
Because they were either -- I told
you directly that you would have to present proof that
they were subpoenas validly issued by the Court and
properly served.
As to the subpoenas that you furnished me with
the documentation you furnished me, I found that those
attached to my order were the only ones that were either
validly served or properly executed.
Now the problem is, in addition to that, I
reserved ruling on whether or not the witness fees were
properly proffered and you were given the opportunity to
present that to me and you still haven't done that.
Anyhow, Mr. Dogan's subpoena is quashed --
MR. COUGHLIN: If I could do an offer of proof
for the record. He's refused to tell me much in the way
of his communications with Dorothy Nash Holmes
MR. YOUNG: I object, Your Honor.
THE COURT:
That's irrelevant to this case and
I've already ruled -- I've ruled on it.
THE COURT:
And it's irrelevant.
Sit down or
you'll be escorted out of the room, Mr. Coughlin.
Mr. Dogan, you are free to go.
All right.
Are we ready to go, Mr. Coughlin --
not Mr. Coughlin -- Mr. Young?
MR. YOUNG:
Your Honor, the only preliminary
matter that I have with respect to the subpoena for Austin
Lichty, he is present.
It was a defense generated
subpoena.
I took a look at the notice of witnesses that
was filed by the defense. Mr. Lichty is not mentioned on
the notice of witnesses. I certainly did not list him on
my notice of witnesses.
So per statute I would ask that he not be
allowed to testify. As an officer of the Court, I'll tell
you that I did speak with Mr. Lichty for the first time
this morning. The sum of his testimony isn't complicated.
So I don't want to mislead the Court saying his testimony
is so complicated that I need additional time. I'm just
letting the Court know he was never noticed.
THE COURT: All right. I'm going to, since he's
here and he was subpoenaed, I'll allow him to testify.
MR. YOUNG: Thank you.
THE COURT: Do you have no other --
MR. YOUNG:
Your Honor, if you recall, I put on
the State's witnesses and I had not rested.
At this time
I'll formally rest the State's case in chief.
THE COURT:
All right.
Mr. Coughlin, you can call your first witness.
MR. COUGHLIN:
Yes, sir, Your Honor.
I
recognize your ruling.
I'm not challenging it but I just
note on the certificate of service --
MR. YOUNG:
Your Honor --
THE COURT:
Sir, if you speak about something
I've already ruled on, you'll be in contempt of Court.
All right. I'm not going to argue with you. You may call
your first witness.
MR. COUGHLIN: I believe Zach Young was
subpoenaed --
MR. YOUNG: And my office --
THE COURT: Mr. Young's subpoena is quashed as
well. The only people left and I did email you the order.
If you do not have it, I will -- it was also mailed to
you. But I will provide you a copy of the order right
now, sir.
MR. COUGHLIN: What date is the service of that
order?
THE COURT: It was the day -- I told you I
prepared it -- you didn't bring it in until late Thursday
so I got it done Friday morning.
It was an order denying
motion for mistrial, prepared on November 16 at 11:41 a.m.
and November 16th at 11:42.
MR. COUGHLIN:
Your Honor, I wasn't able to -- I
gave you those subpoenas that were lawfully issued.
wasn't able to serve them.
THE COURT:
Sir, I'm not arguing with you about
the subpoenas.
The order is done.
You had your
opportunity.
MR. COUGHLIN:
I would like to preserve that for
I
the record that --
THE COURT: You've already preserved that.
MR. COUGHLIN: I don't believe I have, Your
Honor.
THE COURT: Yes, you have. You preserved it by
making your motion. If you disagree with the ruling of
the Court, you will have the proper opportunity following
trial in this case to appeal or seek post-conviction
relief, whatever you do. But so far as the ruling of the
Court it is done. Under our rules a motion once made
cannot be made again, sir.
MR. COUGHLIN: Sir, the basis for what I'm
arguing now (indiscernible) until this court closed on
Friday and I --
THE COURT:
No, sit down.
You're going to be in
contempt of court.
You have a copy of the order of the
Court.
Mr. Coughlin --
MR. COUGHLIN:
You are asking me, sir?
THE COURT:
Do you have a copy of the order of
the Court?
MR. COUGHLIN:
I don't believe so, sir.
THE COURT:
All right.
I'm going to ask that
you'll have both orders -- I have identified the people in
the courtroom that responded to the subpoena and you can
call them as witnesses.
You can testify yourself but it's
time for you to go forward, sir.
MR. COUGHLIN: Okay. I have a few preliminary
matters, Your Honor, that I would like to address like
Mr. Young did.
THE COURT: What's the preliminary matter?
MR. COUGHLIN: I believe there is a basis for
recusal, Your Honor.
THE COURT: Denied. Go ahead.
MR. COUGHLIN: Can I enter into the record the
basis for that?
THE COURT: You already had the opportunity to
recuse me a long time ago, sir.
MR. COUGHLIN: If there is
THE COURT: You can't do it during the trial.
MR. COUGHLIN: There's newly discovered
evidence.
THE COURT: Newly discovered evidence for
recusal?
MR. COUGHLIN:
I don't know that -- nothing with
respect to you, Your Honor, but with respect to the court
in general.
THE COURT:
I'll give two minutes to state what
it is.
MR. COUGHLIN: Yes, sir. Certainly. I just,
would say --
I
THE COURT : I don't believe it's timely, but go
ahead.
MR. COUGHLIN: Sir, some evidence
(indiscernible) become relevant to me recently. There is
an issue right now related to the eviction in the real
estate --
MR. YOUNG: Your Honor, I object to that. I
don't know how an eviction case has any relevance to this.
THE COURT: Well, I'll let him finish in two
minutes. Go ahead, sir.
MR. COUGHLIN: It goes to REV 2011-001708 which
was a summary eviction now on appeal before the Nevada
Supreme Court that ultimately led to a criminal trespass
eviction, custodial jaywalk arrest, the matter that I
subpoenaed Mr. Young and Mr. Dogan about on February 27th
is a violation of NRS 178.405 in the State
(Indiscernible) .
The newly discovered evidence relates to the
fact that I have learned that the (indiscernible) was
conducted outside of the 24-hour window required by
statute much less the fact the order itself did not
contain (Indiscernible).
THE COURT:
Has to do with that case, not this
one . Anything else, sir?
MR. COUGHLIN:
Well, the reason I bring this up ,
------------ --
Your Honor, is that I believe now of the Reno Justice
Court has refused to provide me information relevant to
when it transmitted (Indiscernible) order to the Washoe
County Sheriff's Office
THE COURT: I find that irrelevant to this case.
Anything else, sir?
MR. COUGHLIN: I don't believe the Reno Justice
Court responded to my subpoena (Indiscernible) state bar
hearing.
THE COURT: I'm sorry?
MR. COUGHLIN:
I subpoenaed some individuals
from the Reno Justice Court.
And I, as far as I know, I
haven't received any response from the individuals didn't
show up at my bar hearing.
THE COURT:
You can take that up with the bar,
sir.
MR. COUGHLIN:
It indicates some sort of
conflict.
THE COURT:
I don't know what conflict it
indicates.
If someone didn't show up in some separate
case unrelated to this one, then you have recourse in that
case.
MR. COUGHLIN:
Well, just to set forth more
clearly my basis for asserting there maybe a conflict in
there, I'm asking the Court (Indiscernible) is that to the
extent that the county would face substantial liability
were it to affect a improper lockout based on
(Indiscernible) invalid or void eviction order in that it
wasn't served within the amount of time required by
statute and that's --
THE COURT: They would prosecute you for
stealing a cell phone because of that?
MR. COUGHLIN: Well, I have been arrested 10
times this year. That's certainly out of the ordinary.
THE COURT: Yes, I agree. It's out of ordinary.
But you are also out of the ordinary, sir.
I find no relevance, no logical connection
between the cases you've talked about and this case.
mean one Reno muni court had absolutely nothing to do this
incident, what happened there.
What happened with the
state bar and unless this case became part of it --
MR . COUGHLIN: It did.
THE COURT:
All right.
That case I refused to
testify.
I was requested to testify.
I said that it
would be inappropriate for me to testify in a case before
the state bar when I'm deciding your guilt or innocence in
this case.
So your motion to quash or to recuse me is
denied.
Are you ready to call your witness, sir?
MR. COUGHLIN:
Yes, sir.
And, Your Honor, if I
I
could just note there was -- Your Honor, I certainly don't
mean to go forward after you ruled on something. I guess
I'm unsure (Indiscernible) at this point but as to the
basis to the mistrial, the numerous violations of the
competency evaluation (indiscernible) by the prosecution
this year and the court in general, is that something open
for argument or --
THE COURT: No, it's not open for argument.
I've ruled on it.
MR. COUGHLIN: Okay. I am sure that I don't
believe the Reno Police Department officers are here
today.
They were appropriately served, properly issued
subpoenas.
I believe that's a basis for a continuance.
THE COURT:
Well, they were subpoenas duces
tecum and I reviewed them and found that they were
illegible and did not specify the documents requested.
And the one that did specify documents requested, those
documents were furnished to you.
MR. COUGHLIN:
But there was ones that weren't
subpoena duces tecum, sir.
Flat out show up to testify
witness subpoenas.
THE COURT:
Call the witness and we'll deal with
it at the
MR. COUGHLIN:
Call Officer Duralde.
THE COURT:
I'm sorry?
MR. COUGHLIN: I'll call Officer Duralde.
THE COURT: Okay. Where is the subpoena?
MR. COUGHLIN: I believe I had to give it to
you, Your Honor. I couldn't get back in time to serve the
rest of them on Friday because I called the court and
asked for them but the order wasn't ready.
THE COURT: Officer
MR. COUGHLIN: That was after delivering them to
the court on Wednesday, I believe.
THE COURT: Sir, I'll allow you to come up here
and look at these.
MR. YOUNG: If I could approach as well, Your
Honor.
THE COURT: Yes, Mr. Young. Go through them one
at a time and show them to Mr. Young as you go through
them because --
MR. COUGHLIN:
Based on that, no, I don't see
Ms. Watson here.
THE COURT:
I think I already called her.
MR. COUGHLIN:
But did you quash her subpoena,
sir?
MR. YOUNG:
Your Honor, we shouldn't have any
discussions at the bench.
This is just for him to review
the subpoenas.
THE COURT:
Just for you to identify the
subpoenas that you claim were properly issued and served.
I believe this might be Savannah Montgomery, Tanner
Chandler (phonetic), Ron Rossa (phonetic), James Zilanska
(phonetic), Scott Reese (phonetic).
MR. COUGHLIN: Your Honor, do I need --
MR. YOUNG: Again, I would ask that we don't
have any conversations at the side bar. Needs to be
recorded.
THE COURT: You, sir, just show me the subpoena
that you claim was served on --
MR. COUGHLIN: (Indiscernible. )
THE COURT: These are the ones you have been
furnished and are attached to the document that was --
MR. COUGHLIN: Right. Alaxa, Rossa.
THE COURT: What?
MR. COUGHLIN: You say I didn't furnish,
meaning
THE COURT: These are the ones that were
attached, were properly served but I was reserving ruling
on whether or not you had proffered the witness fee as
required by -- these are all attached to the order, sir.
MR. COUGHLIN: Yes, sir. I think I was
given that order --
THE COURT: Well, you were sent it last Friday
at your preferred method of service.
MR. COUGHLIN: I'm not seeing any of the
officers here.
THE COURT: These are subpoenas duces tecum in
which no documents were specified.
MR. COUGHLIN: Got it.
THE WITNESS: What?
That one doesn't say duces tecum.
THE COURT: These, sir, these weren't served.
MR. COUGHLIN: I believe they were.
THE COURT: The subpoena duces tecum of your
documents specify --
MR. COUGHLIN: Oh, there was the matter of this
inclusion in what was mailed was set forth in all the RPD
case numbers, matters that were requested.
THE COURT : What about them?
MR. COUGHLIN: Well, let's just attach it to
those and it was what specific documentation I'm
requesting.
THE COURT: I'm sorry, sir. It's not attached
to this and not filed by the court as required by the
rules and I've already ruled on it.
MR. COUGHLIN: Okay. All these were -- well,
this one wasn't because I couldn't get back to the court
after delivering it on Wednesday. That was one day after
my state bar hearing where they were seeking to disbar me.
THE COURT: You didn't deliver these to the
court on Wednesday. They were delivered on Thursday at
almost 5:00 o'clock. I waited for them to come in.
MR. COUGHLIN: Wasn't the 14th Wednesday and the
15 -- I know it was the day after the 14th, I know that.
THE COURT: The 15th was a Thursday.
MR. COUGHLIN: Okay. Yes, sir. I'm sorry I was
mistaken in that regard. These -- there's a -- the RPD
ones that are not the subpoena duces tecum, right here.
Savanna Montgomery, dispatcher; Ron Rossa, and Alaxa and
Mr. Reese, it's my understanding those were appropriately
served under NRS 174.345 and not seen any of those
witnesses here.
THE COURT: Pardon me?
MR. COUGHLIN:
I've not seen those witnesses
here today and I move for a continuance.
THE COURT:
Where is the one for
Officer Duralde.
The same problem.
Officer Duralde is
not in here by the way.
MR. COUGHLIN:
My understanding is --
THE COURT:
Your understanding is what?
MR. COUGHLIN:
That I put that in the envelope.
I don't want to speak -- I don't believe he was served the
original.
THE COURT:
Well --
I
MR. COUGHLIN: His was on one of the --
THE COURT: The bottom line, you have the right
request an order to show cause if you show proof that you
proffered the witness fee.
MR. COUGHLIN: Your Honor, you told me I didn't
have to proffer --
THE COURT: I didn't tell you that. You told me
told you that.
MR. COUGHLIN: I asserted that under oath.
THE COURT: Okay.
MR. COUGHLIN: Not (indiscernible) Mr. Young.
MR. COUGHLIN: It's not been rebutted by
Mr. Young, that assertion.
THE COURT:
It's been rebutted by me. I said
you had to furnish me proof by Thursday.
You have not,
the transcript.
MR. COUGHLIN:
The typed-out transcript?
THE COURT: No.
All had do refer to to you was
the line of the audio.
I told you all that.
I'm not
going to waste any more time.
Call your witnesses.
MR. COUGHLIN:
Your Honor, are you asking me if
I have it keyed up?
If I have it keyed up now, can I show
it to you?
THE COURT:
If you have it keyed up, yes.
MR. COUGHLIN: Or I can show it to you later.
THE COURT: You can show it to me later but
right now, you need to proceed with your trial, sir.
MR. COUGHLIN: Yes, sir.
THE COURT: We have been here for almost a half
hour and so far as I'm concerned you've accomplished
nothing.
MR. COUGHLIN: Okay. Your Honor, the last point
of issue would be that I was finally given the materials
that Mr. Leslie refused to give me even though I
subpoenaed them from Econ on October 3rd and he was still
(indiscernible) on the 22nd.
Those materials include the dispatch records
between the Reno Police Department and Econ and I believe
it demonstrates prosecutorial misconduct in that Mr. Young
asserted to this Court in filing and through argument and
by eliciting testimony that I believe there was a basis
for a mistrial that the information from dispatch was that
there was a possible fight.
I have those recordings.
There is no indication of a possible fight being
communicated to the Reno Police Department either in the
dispatch logs or in the recordings.
MR. YOUNG:
I object as untimely and there's no
basis for that other than his statements.
THE COURT:
Well, I don't know even know what
he's asking for. So it's denied.
MR. COUGHLIN: I have the audio recording
between the dispatch and the Reno PD. The whole point of
the suppression hearing which you reserved the right to
(indiscernible) enter a ruling on is that part of the
basis, the main basis for the pat-down, the probable cause
to do the search incident to arrest and all that is
that -- and Mr. Young has repeated this repeatedly,
possible fight, dispatch told them possible fight,
possible fight; disturbance, possible fight. And it was
just drilled into the record over and over.
THE COURT: That's not what I recall, sir. But
you'll be able to argue it. That's a fact that I'll need
to rule on in determining your guilt or innocence. So
let's move on.
MR. COUGHLIN: Yes, sir. Call my first witness,
I'll call Austin Lichty.
THE COURT: All right.
MR. COUGHLIN:
Well, I'm sorry, Your Honor,
actually, if I can, I'll call Nicole Watson.
THE COURT: Is Nicole Watson here?
(Indiscernible.)
MR. COUGHLIN:
I move for a continuance, sir.
THE COURT: Denied.
MR. YOUNG:
Your Honor, at least based on the
motion to continue, I can't imagine what she would have to
offer this Court that's of substance as necessary under
Hill-Bustos so unless I hear otherwise, I would also
oppose a continuance.
THE COURT: Well, the continuance is denied.
You did not present the proof that I requested on
Thursday, sir.
MR. COUGHLIN: With respect to the witness fees?
THE COURT: Yes.
MR. COUGHLIN: Oh, I offered to pay them.
THE COURT: You offered to pay them? Did you
proffer the witness fees?
MR. COUGHLIN: I couldn't verify if it was her
or not on the phone and
THE COURT: No, when you delivered the
subpoenas, sir, did the person who delivered the subpoena
have a check from you with the --
MR. COUGHLIN: It was mailed.
THE COURT: Well, did you enclose the check with
the mailing?
MR. COUGHLIN: I don't believe so.
THE COURT: All right. Then sit down. Call
your next witness.
MR. COUGHLIN: Yes, sir. If I could just
clarify, sir. Seems as though you pulled aside
(indiscernible) of subpoenas that you were reserving
ruling on those until I show you the payment proof?
THE COURT: Yes. Those are the ones that I --
those are the ones based on the records that I found to be
relevant, that they were properly subpoenaed with a
subpoena issued by this Court and that they were properly
served by mail. However, I reserved ruling on whether or
not the service was completed because of the requirement
that they be proffered the witness fee. All right. Go
ahead. Go ahead.
MR. COUGHLIN: That differs markedly.
THE COURT: No, it doesn't differ from what
told you the last court date, sir. I told you to submit
that to me by Thursday.
MR. YOUNG: Your Honor, you've asked
Mr. Coughlin no less than five times.
It calls
(Indiscernible). Can we move on?
It's quarter to 10 and
this is taking awhile.
THE COURT: All right. Go ahead.
I'll call Austin
Lichty, please.
Mr. Lichty, will you
come up.
MR. YOUNG:
Your Honor, if I recall correctly
the rule of exclusion had been invoked at the last
I
hearing.
MR. YOUNG: So before we take testimony.
THE COURT: I would ask that all of you who are
subpoenaed to testify, if you would wait outside, not to
discuss the case among yourselves or with anyone else
until called to testify. All right. And if you were
subpoenaed, you do need to wait here.
MR. COUGHLIN: Your Honor, I would just ask that
everybody (Indiscernible) but to the extent a witness'
family member in the courtroom
MR. YOUNG: I oppose that, Your Honor.
THE COURT: All right. It's been opposed. He
has the right to invoke the right of exclusion as well,
the rule of exclusion.
So come up here, sir.
MR. COUGHLIN:
I'll invoke the rule of exclusion
as well.
MR. YOUNG:
It already has been invoked.
THE COURT:
It's already been invoked.
You said
you didn't want to invoke it.
MR. COUGHLIN:
No, I didn't.
I said I wanted
everybody who wasn't going to testify to leave the
courtroom.
MR. YOUNG:
That's been done.
MR. COUGHLIN: And the family members.
MR. YOUNG: I oppose that. There is no basis in
law for that.
THE COURT: Please raise your right hand.
(The witness was sworn.)
THE COURT: All right. Sir. Unless someone is
subpoenaed, you cannot force them to remain in the
courtroom.
MR. COUGHLIN: But to leave the courtroom.
THE COURT: You can force them to leave the
courtroom under the rule of exclusion.
MR. COUGHLIN: That's what I attempted to do,
sir.
THE COURT: Well, everyone who is a witness in
this case has been requested to leave and they all have.
MR. COUGHLIN: I was just saying to the extent
that their family members it vitiates the import of the
rule of exclusion. So they are able to report on it
rather easily.
MR. YOUNG: Your Honor, again, I oppose. I
think you ruled on it.
THE COURT: Well, it doesn't really matter.
They have the free will to stay or leave if they wish. If
they have chosen to leave, you cannot force them to stay.
Go ahead, sir.
AUSTIN LICHTY,
called as a witness, having been first duly sworn, was
examined and testified as follows:
DIRECT EXAMINATION
BY MR. COUGHLIN:
Q
Good morning, Mr. Lichty. Thank you for
appearing today.
THE COURT: Oh, wait. Sir, would you spell your
first and last names for the record.
THE WITNESS: Austin, A-U-S-T-I-N. Lichty,
L-I-C-H-T-Y.
THE COURT: Thank you.
MR. COUGHLIN: Has he been sworn and I missed
it?
THE COURT: Yes, he was sworn.
MR. COUGHLIN: Thank you.
THE COURT:
You were sworn; right, sir?
(No audible response.)
THE COURT: Go ahead.
Your Honor, I believe you stated it was all
right if I remain seated at times.
THE COURT: That's fine.
MR. COUGHLIN: Okay.
BY MR. COUGHLIN:
Q Mr. Lichty, can you indicate what your date of
birth is, please?
MR. YOUNG: Objection, Your Honor, relevance.
MR. COUGHLIN: Your Honor, I believe it goes to
the relevance in that Mr. Lichty is heard on the 9-1-1
tapes explaining that because he was 17 years old he could
do what he wanted --
THE COURT: Ask him how old he was.
I'll sustain the objection to the date of birth
since that is a privileged date and can be used in a
public record, social security number, date of birth. But
you can certainly ask him how old he was when the call was
made.
MR. COUGHLIN:
Yes, sir, Your Honor, thank you.
THE COURT:
The age, not the date of birth.
BY MR. COUGHLIN:
Q Mr. Lichty, on August 20th, 2011, how old were
you?
A I was 18.
Q
You were 18.
Did you say something otherwise on
that date?
A I don't remember.
MR. YOUNG: Your Honor, objection to that.
THE COURT: What's the objection?
MR. YOUNG: Did you say something otherwise? I
don't understand what that question means, too broad.
MR. COUGHLIN: Your Honor, offer of proof would
be that I videoed --
THE COURT: Well, then ask him specifically what
it is, not otherwise. Did you say --
MR. COUGHLIN: Okay. Did you
THE COURT: Verbatim what he said.
BY MR. COUGHLIN:
Q Did you say you were younger than 18 on that
date?
A My life felt threatened, so, yes, I did.
Q Can you explain why you felt your life felt
threatened? Can you tell us that?
A That you were stealing from us and talking very
bad to us saying all this stuff. This was awhile ago. I
don't remember exactly what you were saying but you were
being very rude to us you were stealing stuff from my
friend.
Q And your life felt threatened?
A Because you're an adult and I was still just a
kid. I may have been 18. I'm still a kid though.
Q So do you feel -- when you were 18, did you feel
threatened -- did you feel your life was threatened in the
presence of any adult or
A To be honest I still feel threatened sitting
here with you.
Q Why is that?
A Because you are just a weird guy that keeps
calling me. You harass me. You want to talk about
Starbucks, how you told me you were (indiscernible) coach?
THE COURT: I'm sorry. I didn't hear what you
said.
THE WITNESS: Okay. Well, this happened --
THE COURT: No, no. I don't hear what you said.
I don't want you to --
THE WITNESS: He --
MR. COUGHLIN: Objection, Your Honor,
nonresponsive.
Maybe it is responsive actually.
I kind
of opened the door to it.
THE COURT:
What I asked you to do, sir, is
repeat what you had already said.
You said something
about that you felt threatened by him and he was calling
you constantly and then you said something else.
THE WITNESS:
I felt harassed.
THE COURT:
Harassed. Okay. What's your
question?
MR. COUGHLIN: I'm sorry, Your Honor. Is it all
right to record the proceedings?
THE COURT: No, it's not. We have a recording.
MR. COUGHLIN : But I'll be able to get a
recording of the proceedings?
THE COURT: I'll provide you with an audio
recording, not a transcript.
MR. COUGHLIN: Thank you, sir. Due to my
(indiscernible)--
MR. COUGHLIN : My indigency remains. Is there a
similar arrangement that's in place?
THE COURT: I will waive the cost of an audio
recording but everything has to be done specifically. I'm
not waiving every cost in this case.
MR. COUGHLIN: I appreciate that.
BY MR. COUGHLIN:
Q
So you felt your life was threatened.
Were you
there with others?
A Yes, lots of others.
Q So even
how many others were you there with?
Could you give us an estimate?
A No idea.
Q So
A I was one of the first ones because -- okay.
I
Ask me
Q I'm sorry? I couldn't understand
THE COURT: He said he was one of the first
ones. Just go ahead and ask your question.
MR. COUGHLIN: After he said I was one the first
ones then he said something else.
THE COURT: He said go ahead and ask your
question.
MR. COUGHLIN: Okay.
BY MR. COUGHLIN:
Q So were you one of the first to approach -- and
know this might sound weird, Mr. Lichty, but I'll
probably just refer -- when you think I might say myself
I'm just going to say the suspect throughout this.
But when you were -- were you one of the first
to approach the suspect?
A (Inaudible.)
Q Did you do that in a group, approach the
suspect?
A I don't remember.
Q Did you do it alone?
A I possibly was the first one --
THE COURT:
Mr. Lichty, I'm going to ask you to
move a little closer to the mic because we have trouble
picking these up.
THE WITNESS: Okay.
THE WITNESS: I was definitely one of the first
and I followed you on your bike and your chain broke and
that's when we, everyone started catching up. But I was
one of the first.
BY MR. COUGHLIN:
Q Are you sure you weren't alone and the first?
A I don't remember.
Q Do you remember why you approached the suspect?
A Because I was told that you stole a phone and it
was someone -- one of your witnesses or one of the people
you wanted to bring in called me --
Q (Indiscernible.)
A And said they thought it was my phone.
Q Can you say their name?
A Nicole Watson.
Q She was calling you?
A Thinking it was my phone and he told me that a
phone was stolen.
Q Okay.
And then how did that result in you
approaching the suspect?
A She told me that -- she pointed because we were
all just at the ice rink and we were all together.
There
was a few of us out in the middle skateboarding and there
was people out on the side, on the little seating area.
She called me and she pointed when I looked over at her
because I answered my phone and you were riding away on
your bike.
Q
She called you. Did she say something? Did you
answer the phone?
A She said that someone picked up a phone next to
us and then she pointed at you.
Q She said someone picked up a phone next to them.
Where would that have been?
MR. YOUNG: Your Honor, I object to that. I did
not object initially on hearsay but again too much into
what Ms. Watson said, that's hearsay. What I did allow
was the initial question, why did Mr. Lichty approach the
suspect.
THE COURT: All right. Objection overruled. Do
you have a response?
MR. COUGHLIN: Yes, Your Honor. I recall my
suppression hearing consisted pretty much entirely of
hearsay testimony.
MR. YOUNG: That's not the trial.
MR. COUGHLIN: But then you sought to copy and
paste everything from the motion to suppress hearing
THE COURT: Okay. Sir, you have to respond to
this objection, not some other objection or some other
dialogue that took place.
MR. COUGHLIN: It's not --
THE COURT: This objection, what's your response
to the hearsay objection?
MR. COUGHLIN: It's not going to prove the truth
of the matter asserted but to the extent that it's a
present sense impression indicating higher degree of
veracity
THE COURT: Where is it going to, sir?
MR. COUGHLIN: What's that?
THE COURT: What is it going to.
MR. COUGHLIN: In terms of relevancy objection?
THE COURT: No, in terms of hearsay objection.
You said it was not hearsay.
MR. COUGHLIN: The effect on the listener.
THE COURT: The effect on the listener.
MR. COUGHLIN: What she's telling him.
THE COURT: You can ask him what he did as a
result ofwhat she told him.
MR. COUGHLIN: I would like to know what she
told him.
THE COURT: Objection sustained. Go ahead.
MR. COUGHLIN: So I can't ask him what she told
him?
THE COURT: Objection is sustained. It's
hearsay.
MR. COUGHLIN: All right.
BY MR. COUGHLIN:
Q So how did you wind up approaching the suspect?
A I skated after you on my skateboard.
Q But why, why did you do that?
A Because I was told you stole my friend's phone.
Q By who?
A Nicole Watson.
Q Did she indicate specifically how and where the
phone was stolen?
MR. YOUNG: Your Honor, this again, I would
object, same ruling you just made.
THE COURT: Sustained. You said doesn't matter
if it true or not what she said to him.
MR. COUGHLIN: Well, it matters where she
said --
THE COURT: Well, either it matters or it
doesn't. Now you are saying it does matter.
MR. COUGHLIN: No, I think it does matter, Your
Honor, because --
THE COURT: Okay. Then it's hearsay and the
objection is stained. Go ahead.
BY MR. COUGHLIN:
Q Where was the phone stolen from?
MR. YOUNG: Your Honor, objection.
THE COURT: That's hearsay.
MR. COUGHLIN: If he knows he can answer.
THE WITNESS: From the ice rink. It was sitting
on the sitting area.
BY MR. COUGHLIN:
Q Sitting on the sitting area?
A Yeah. Like the border on the ice rink where
people always sit.
Q Would that be called a ledge by some?
A Yeah, I guess you could call it the ledge.
Q Okay. And is it your understanding that the
suspect just walked up next to a group of people --
MR. YOUNG: Your Honor, I object to your
understanding.
If he knows firsthand he can answer but
asking what your understanding --
THE COURT:
If you saw someone take the phone
you can answer.
If you heard it from someone else you
cannot.
MR. COUGHLIN:
And I'll just preserve for the
record, Your Honor, we have a multitude of what someone
else told Zarate and Goble in the first couple of days of
trial.
You've given some of the rulings so far --
THE COURT: Okay.
Sir, I've ruled again.
So go
ahead.
MR. COUGHLIN: So you sustain yet another
objection by Mr. Young, the district attorney
THE COURT: The same objection. It is
hearsay
MR. COUGHLIN: That you overruled when I made
it.
THE COURT: -- if it's offered for the truth of
the matter at issue. This witness, unless he has personal
knowledge of who took the cell phone, you asked why he
chose to go after you, it's because someone told him that.
But as to whether he actually saw you take the cell phone,
he can only answer that if he saw you take the cell phone.
BY MR. COUGHLIN:
Q Did you see the suspect take the cell phone?
THE COURT: Sir, you have to answer that out
loud.
THE WITNESS: No.
BY MR. COUGHLIN:
Q
Okay. Did you approach the suspect alone?
A I don't remember. This was a year ago.
Q Have you seen any videos on YouTube about this?
A No.
Q You've seen no videos on YouTube about this?
A No.
Q If we searched your home computer, would we find
any remnant --
MR. YOUNG: Objection, argumentative.
(Indiscernible cross-talk.)
THE COURT: When you said this, sir, what do you
mean this?
MR. COUGHLIN: Anything connected to this
incident.
THE COURT: Connected, that's very broad.
MR. COUGHLIN: Any reasonable definition of
connection, any subsequent interviews that took place
there a week later where Mr. Lichty saying, Hey
THE COURT: I'm going to sustain the objection.
MR. YOUNG: Also asked and answered.
THE COURT: Only thing, if there is something on
a video of the incident.
MR. YOUNG:
Your Honor, I would ask that
Mr. Coughlin stop looking at Mr. Lichty's mother.
This is
getting dangerously close to me asking for sanctions
against Mr. Coughlin.
He's now per your order a licensed
attorney.
The last thing he should be doing is looking
back at Ms. Lichty during this conversation.
I would ask
that he start watching himself.
MR. COUGHLIN:
If I am a licensed attorney I can
issue subpoenas.
THE COURT:
He's not licensed, sir.
MR. YOUNG: You're right. He's temporarily
suspended. However, he's allowed act in his own defense.
He does not need to be looking back in the gallery at the
witness' mother.
THE COURT: All right. Sir, you do not need to
look at the witness' mother.
MR. COUGHLIN: I'll preserve the record. I have
no idea who that woman is.
MR. YOUNG: Well, he's looking back at her.
THE COURT: Now he knows.
Sir, you are instructed not to look at the
victim's mother or the alleged victim.
MR. COUGHLIN: Okay. If I can
(inaudible)glaring at me and smiling with Mr. Leslie, I
would appreciate that
THE COURT: To my knowledge it hasn't happened.
Go ahead, sir. Why don't you pay attention to your case?
BY MR. COUGHLIN:
Q Did you say something to the suspect about his
butt hole being widened while he was in jail?
A I don't remember.
Q If I showed you a videoed would that help
refresh your recollection? You need to answer with an
audible response, sir, because this is being recorded and
it will probably be typed up into a transcript and if
there is a conviction that would probably be on the Nevada
Supreme Court's website?
MR. YOUNG: (Inaudible)
THE COURT: Huh?
MR. YOUNG: Ask a question, not a statement.
THE COURT: True. Sir, you are threatening the
witness by your statement so
MR. COUGHLIN: It's not my intention.
THE COURT: Well, you are. You can ask a
question and you'll have to accept the answer.
MR. COUGHLIN: Okay.
BY MR. COUGHLIN:
Q If I showed you a videotape of you saying, Did
your butt hole get widened while you were in jail, would
that help refresh your recollection?
A Sure .
Q Okay. Did you make any calls that night with
your phone in connection with the arrest or the moments
prior thereto.
A I think I let Cory use my phone to call 9-1-1
but I don't remember completely.
Q What's your phone number?
MR. COUGHLIN:
It goes to establish, one,
veracity, and, two, chain (indiscernible) -- I have the
call records. I can impeach his testimony or his
recollection and the extent to which they are
THE COURT: Well, first of all, it's got to be
relevant. What's the relevance?
MR. COUGHLIN: We've had a great deal of
testimony with respect to who called who and when. Most
of it during Mr. Young's case in chief where we weren't
told who by name called who and couldn't remember this or
that and who could actually say they had percipient
knowledge of seeing this or that happen. That was
curiously vague all throughout Mr. Young's case in which
relied primarily on hearsay which he was allowed to admit
in evidence.
THE COURT: Sir. The hearsay was for probable
cause and the police officer. This is not. This is for
guilt or innocence.
And, sir, you have the phone number
you said.
MR. COUGHLIN:
I don't know who they are --
THE COURT: He said that a phone call was
possibly made from his phone to the dispatch by Cory.
Doesn't matter what phone was used.
It's what the
statement was made to dispatch.
And you have that
statement.
MR. COUGHLIN:
I found it does matter quite a
great deal whose phone was used and where it places him
and what it would enable them to see or do and how it
relates to previous testimony.
And further, Zarate and Goble testimony was not
related to probable cause at all. In fact, Mr. Leslie
refused to call him at the motion to suppress hearing
despite
THE COURT: Okay. I'll sustain the objection.
Go ahead.
MR. COUGHLIN: So you made --
THE COURT: I sustained the objection. Go
ahead. I'm sorry.
BY MR. COUGHLIN:
Q Mr. Lichty, seems as though your last answer was
that you let Cory use your phone to call 9-l-1?
A I'm not sure but I think so.
Q Did you use your phone or allow anybody else to
use it at any time that night for any other purpose?
A I don't remember.
Q Okay.
So you wouldn't have been a part of
attempting to verify whether or not the suspect had the
phone via attempting to call it?
A No.
Q 00 you have any recollection of that?
A I don't know.
Q Please don't look to Mr. Young for coaching.
A I don't know what recollection means. So if you
want to elaborate on it, that would be nice.
Q You said you don't know what recollection means?
A Uh-huh.
THE COURT: Recollection means, do you remember.
THE WITNESS: Oh. I don't remember. It was a
long time ago. I don't remember what calls we made. It
was over a year ago.
BY MR. COUGHLIN:
Q Okay. And on that night, just to go back a
little bit, did you say something to the effect of I'm 17.
I'm a miner. You can't touch me. I can get away with
doing things to you?
A Maybe the first half, not the end.
Q Could you give me idea what specifically you
remember saying in that regard?
A I don't remember.
Q But you remember well enough to tell me not the
end part but what I --
A Yeah, because I would not say that I can touch
you. I wouldn't.
Q Did you touch me that night?
A No.
Q Did you make a lunging attempt to reach into my
pocket?
A No.
Q Did you make anything that might reasonably be
characterized
A Maybe pointed at your pocket because we saw the
phone light up when someone called it.
Q Okay. I'm not saying this to badger the
witness, Your Honor, but he's a young man and I would just
like to remind him you are under oath, sir --
THE COURT: Sir, you don't need to remind him
that. The Court has already swore him under oath under
the penalty of perjury.
MR. COUGHLIN: I just don't know that he
understands what that means at all, the consequences that
might attach thereto.
THE COURT: You can ask him. You can't tell
him. You can't threaten him.
MR. COUGHLIN: I'm not trying to threaten him,
Your Honor.
THE COURT: Well, then you can ask him if he
understands what perjury is.
MR. COUGHLIN:
I'm a little bit offended that
you think I'm trying to threaten him.
THE COURT:
Well, I'm a little bit offended that
you are telling me what I'm doing here.
I'm telling you
that I believe that you are attempting to intimidate the
witness.
MR. COUGHLIN: You think it's possible that I'm
trying to tell a young man, Hey, there's real life
consequences. You don't have as much skin in the game,
some of these people that may be coaching you up, just
play it straight.
THE COURT: Sir, so far as I'm concerned, I
interpreted it as intimidation. So you can ask him, as I
said, if he understands what perjury is, if that's what
you want to know.
BY MR. COUGHLIN:
Q Do you understand what perjury is?
A Do you want to explain it?
THE COURT:
I'll explain it, sir .
It's lying
under oath.
THE WITNESS:
That's what I believe.
THE COURT:
And if you lie under oath, you can
be prosecuted for a felony which has a consequence of one
year in prison.
THE WITNESS:
Yes.
THE COURT:
All right.
Go ahead.
BY MR. COUGHLIN:
Q Have you been told might go by Mr. Young with
respect all (Indiscernible) prosecuting for perjury -- the
likelihood of being prosecuted for perjury?
MR. YOUNG: What was that last question?
BY MR. COUGHLIN:
Q Has Mr. Young or anyone from the district
attorney's office made any statements to you with respect
to the likelihood that you would actually be prosecuted
for perjury if you happened to be caught perjuring your
testimony?
A I'm not lying. So fine.
Q That's not what I asked you. I asked you, sir,
if Mr. Young made any statement in any way related to the
actual chances --
A I just talked today for the first time and we
just talked about this case.
We didn't talk about
anything else.
Q Right. Okay.
Now I'll ask you for a third
time, please this time actually --
BY MR. COUGHLIN:
Q -- answer my question?
MR. YOUNG:
He's starting to badger the witness
now with the question.
THE COURT:
All right.
Restate the question,
sir.
BY MR. COUGHLIN:
Q Did Mr. Young at any time in your relations with
him or anyone with the district attorney's office make any
statements to you that indicated the likelihood of your
being prosecuted for perjury (indiscernible) or did they
make any specific indication of the likelihood would be?
THE COURT: Now the question is going on
forever. Did Mr. Young say anything about you being
prosecuted for perjury?
THE WITNESS: No.
THE COURT: The answer is no. Go ahead.
BY MR. COUGHLIN:
Q So that probably wouldn't (indiscernible) any
chance of it
THE COURT: Any statements about being
prosecuted for perjury includes the chance or not
MR. COUGHLIN: Point taken, Your Honor.
BY MR. COUGHLIN:
Q Okay. So, you say that at no time that night
did you either attempt to reach into the suspect's pocket
or make a lunging type of movement with your right hand
toward the suspect, say, left front short pocket?
A No. Maybe pointed at it but no reaching.
Q You point --
A Because we saw the phone light up. That's why,
when someone called it.
Q Did you specifically see it light up?
A Yes, I did.
Q When was that?
A That night.
Q Okay.
That helps but maybe if you could be a
little bit more specific about
A This was a year --
Q -- what happened that night?
A -- more than a year ago.
I don't remember
exactly what time that happened. Sorry.
Q Okay. I'm not so much looking for a specific
minute number but maybe if we put some sort of reference
point in the night. Did you, say, see it light up prior
to Ms. Watson calling you and announcing that it was
missing?
A It was when we were all circled around you
waiting for the police to come .
Q Okay. So would it have been at a point where
you were one of the initial -- in a group approaching the
suspect?
A No.
Q Did this group you estimated 20 all
simultaneously converge upon the suspect?
A No, slowly people started coming.
Q Can you describe that specifically, starting
with who do you first recall approaching the suspect,
whether or not they were alone and specifically indicating
where do you fit into that.
A I don't remember.
Q Can you explain the me how you are able to
testify as to certain things but then not remember other
things?
A Sometimes you know stuff, sometimes it just
goes. I don't know.
Q Right. But you're testifying is to things that
if you can't remember them, then you wouldn't have been
able to know the thing said immediately --
MR. YOUNG: That's argumentative.
THE COURT: All right. Sustained.
BY MR. COUGHLIN:
Q So would you say you were one of the initial
group of three who approached the suspect?
MR. YOUNG:
Your Honor, asked and answered.
THE COURT:
Well, I don't think he asked him if
he was the initial group of three.
So I'll allow
question.
THE WITNESS:
I don't know.
I was one of the
first.
BY MR. COUGHLIN:
Q Would you say one of the first five?
A Yeah.
Q But not one of the first seven?
A I honestly don't know.
Q Do you remember when you first started talking
to Mr. Goble about his phone perhaps being missing?
A I don't remember.
Q When would you say you first became aware as to
whose phone might be missing?
A As soon as I got the phone call and they said
that a phone was stolen and it wasn't mine and the only
other person I know that has an iPhone was Cory.
Q Okay.
What did you do immediately thereafter?
A Went after you.
Q You didn't look around for Cory and ask him if
he had his phone?
A I don't remember.
Q Well, okay.
That's where I get confused is you
immediately prior had a definitive answer and the next
question you couldn't remember.
MR. YOUNG:
Your Honor, objection, that's not a
question, statement.
MR. COUGHLIN:
It was asking for clarification.
THE COURT:
It's is a statement.
Ask a
question, sir.
MR. COUGHLIN: Okay.
BY MR. COUGHLIN:
Q And -- I'm sorry, Your Honor, I don't mean to go
back or (Indiscernible) on your ruling. Can I ask, what
did, I guess Ms. Watson you said tell you that made you go
after the suspect?
MR. YOUNG: Objection, Your Honor. You covered
this and we've gone over this and you previously stated if
he kept going after previous rulings you would consider
holding him in contempt. He continues to do that.
THE COURT: All right. Sir, the ruling was and
I'll clarify it one last time that what she had said is
hearsay to him except his reaction to what he said is not
hearsay.
So if based on what she said, he determined to
go after you, that's the only purpose of it, it's admitted
for that purpose alone and not the specific content of
what she said to him. All right.
MR. COUGHLIN: Okay. With respect to whether it
goes to his state of mind, his fearfulness, did this __
THE COURT:
State of mind is irrelevant, sir.
don't care if he was afraid of you or not.
What
difference does it make?
MR. COUGHLIN:
Well, one, goes to impeach his
earlier testimony that he was in fear of his life and,
I
two --
THE COURT: What if it did? It is not relevant
to whether or not you stole the cell phone.
MR. COUGHLIN: I think it goes to a material
fact in evidence because one of the elements of that petty
larceny charge -- and Your Honor, I'm sorry, I don't know
and I apologize if you ruled on this but did you issue a
ruling with respect to my motion that the possession or
receiving stolen property charge is unsupportable as a
complaint was plead in that it did not mention --
THE COURT: Yes, I denied the motion.
MR. COUGHLIN: Under Staub, the mandatory
authority in Nevada.
THE COURT: I denied the motion. It's an issue
of fact and you had the opportunity to argue that at the
close of the evidence, sir.
MR. COUGHLIN: We can't take judicial notice
that the complaint does not mention from another?
THE COURT: Sir, I've ruled.
BY MR. COUGHLIN:
Q So how many times would you say -- you testified
that you saw the phone light up?
A Yes.
Q How many times would you say -- did that happen
once?
A Yes, it happened once and you flipped the phone
over so we couldn't see it anymore.
Q So you would say you were only able to see that
once?
A From what I remember.
Q Okay. Is it the case that the phone just lit up
to indicate an incoming call?
A It happened when we called.
Q All right. So there was a connection made?
A Yes.
Q That some how verified to you what you were
trying to find out?
A Yes.
Q But the phon had one of the apps where it just
lights up rather than --
A You can also see the design.
Q The imprint kind that it
A Yeah, and it was painted a picture, Cory took a
picture of and you see the colors in it.
Q Okay.
A It was obvious that it was his phone.
Q Okay.
And Cory it had it set to that incoming
call notification where the screen only lights up and
I
there is no vibrating?
A Yes.
Q So it didn't vibrate?
A I don't remember completely but I don't know.
Q Is that how Cory likes to set his phone up?
MR. YOUNG: Objection.
THE WITNESS: I don't know.
THE COURT: He already answered. Go ahead, sir.
MR. YOUNG: I was going to object to personal
knowledge but he said he doesn't know so that's good
enough.
MR. COUGHLIN: Okay.
BY MR. COUGHLIN:
Q But you didn't hear any vibrating or any ring
tone. You just saw it light up?
A We were all -- it was the heat of the moment.
It's kind of like it just goes away, like you black out
when stuff happens.
I only remember parts of that night.
don't remember everything, every little detail.
Q Okay.
I'm asking you, do you remember hearing
any indication --
A I don't remember.
Q But you are saying you remember seeing
something?
A I remember seeing it light up for sure.
Q Which pocket would that have been in?
A I don't remember.
Q What side of the suspect were you on?
A I don't remember.
Q Who was there with you with gauged ears?
THE COURT: Who was there what?
MR. COUGHLIN: A gentleman -- I asked him who
was there with you with gauged ears which is kind of like
a cork, get a huge hole cut into their earlobe put a cork
in it, somewhat similar to maybe an African
tribal-type person.
BY MR. COUGHLIN:
Q Do you recall an individual like that?
A I think his name is Peanut but I don't know his
real name.
Q
You think is name is Peanut?
A I think.
But I don't know his real name.
Q
What else do you know about Peanut?
A
Absolutely nothing.
Q
How did you know his name is Peanut?
A
Because I think Cory and I went and talked to
him about
the situation like when the police arrived
because he came over and asked what happened to us and he
gave us his name . He said his name was Peanut.
Q Was he part of an initial group with you and
Cory approaching the suspect, the group of three?
A Group of three? I don't remember.
Q Do you recall whether he showed up
A I think he showed up
Q after the suspect was in the squad car in
handcuffs or was he part of the
A He showed up when the police were there I think
but I don't remember. It was a year -- it was like a year
and a half ago we're talking about.
Q Have you heard any videos on YouTube of this
incident?
A I have not.
Q None of your friends have mentioned or Googled
their names or anything, turned up a video on YouTube?
A (No audible response.)
Q Okay.
Did you catch up with anybody else that
night?
A To Cory to call the cops.
Q Just to Cory?
A
From what I remember.
I think I did.
I think
Cory used my phone to call the police but I don't
remember.
Q Okay.
Did you pass your phone to Peanut at all?
A No, because I don't know that kid and I wouldn't
trust that. It's like me giving my phone to you. I don't
know you. I don't trust that.
Q Okay. Where with you -- so it was your
understanding the suspect just grabbed the phone off the
ledge?
MR. YOUNG: Your Honor, objection. He's already
answered he did not see the suspect grab the phone. For
him to ask, what's your understanding, that goes to
either, one, hearsay, or two, had no personal knowledge.
MR. COUGHLIN: I'm more asking to understand
what his state of mind was with respect to whether
someone
THE COURT: His state of mind is irrelevant so
I'm going to sustain the objection.
BY MR. COUGHLIN:
Q Who else was there prior to the police arriving,
in the group with you?
A All the people -- I don't know the people you
subpoenaed. Robert was there.
Colton was there. Cory
was there. Nate was there.
There's a lot of people that
didn't know that were there.
Q Was Nicole Watson there?
A Yes.
I
Q When is the last time you spoke with Nicole
Watson?
A Maybe once after that night.
Q Just once after that night?
A I think so.
Q But you two are well acquainted enough that
night that she called you immediately --
A Yeah.
Q about the phone?
A We used to be friends. But I don't know what
happened to it.
I don't know where she went, if she moved
or what happened.
Q Is she a student at McQueen High School.
A
I don't know if she still is.
She was.
Q Were you?
A I was.
Q Are you a freshman in college this year?
A Yes, I am.
Q Did you make any statements about Cory being 24
years or old or so but still have (Indiscernible) someone
who was 17?
MR. YOUNG:
Your Honor, objection.
Relevance
(Indiscernible) question.
THE COURT:
What's the relevance, sir?
MR. COUGHLIN:
I think it would go to, one, the
veracity of Mr. Goble's testimony previously. We have got
Mr. Lichty's relationship with Mr. Goble and his
assessment of the veracity of Mr. Goble's apparent claim
that he was all times not negligent on this night in
question.
MR. YOUNG: Your Honor, I heard no basis in that
response to show why this is relevant.
THE COURT: Objection sustained.
MR. COUGHLIN: Sir, may I have one more sentence
to (indiscernible) why I belief.
THE COURT: What?
MR. COUGHLIN: May I address that with a little
bit more of an offer of proof?
THE COURT: A little bit.
MR. COUGHLIN: It's my understanding that one
claim of (indiscernible) in this case might be that this
was lost or mislaid or abandoned property and the extent
to which
and therefore larcenous intent did not exist
at the time of any alleged taking sufficient to under
mandatory authority in Nevada law auger for an acquittal
here, the extent to which Goble either allegedly left a
iPhone on the ground in the middle of the skate plaza
versus leaving it --
THE COURT:
Well, sir that depends on when the
alleged taking is and I know that's your argument that the
alleged taking occurred when you first received the phone.
But there is another , argument that the alleged taking
occurred when you refused to surrender the phone. We'll
hear that in argument.
But right now, sir, you can ask specifically if
Mr. Goble is negligent caring for his property I guess,
but not whether he was mature or not. I don't know what
relevance that has.
MR. COUGHLIN: Yes, sir, Your Honor, just to
clarify. Made no representations with regard receiving or
not receiving the phone or any possession of the phone,
especially given that the suppression motion is still up
for debate
MR. YOUNG: That's inaccurate. It's not.
MR. COUGHLIN: That is accurate.
THE COURT:
Well, it is not up to debate, sir.
I ruled on the motion.
MR. COUGHLIN:
And I cite it in my briefs to
where you let that up for further review and I think
that's particularly appropriate --
THE COURT:
Sir, I ruled on this right now.
So
go ahead.
We're not going to argue something else.
MR. COUGHLIN:
If I could preserve the record
the extent to which --
THE COURT:
Your question, you had a question.
MR. COUGHLIN: Right.
THE COURT: The question was whether or not --
MR. COUGHLIN: This is a big deal.
THE COURT: Well, maybe in your mind.
MR. COUGHLIN: Well, it is because Mr. Leslie
(indiscernible) 90 percent of the time. He's prejudice
THE COURT: You, sir, are running the case right
now.
MR. COUGHLIN: Right. In the ninth inning I get
to take over after Mr. Leslie (indiscernible) the first.
THE COURT: Well, so far --
MR. COUGHLIN: And prejudicial
THE COURT:
this witness has not helped your
case. Let's put it that way.
So go ahead.
MR. COUGHLIN:
Yes, sir.
THE COURT:
If you want to elicit something
about Mr. Goble's negligence in taking care of his cell
phone go ahead and do that.
MR. COUGHLIN:
Thank you, Your Honor.
Yes.
BY MR. COUGHLIN:
Q Please, Mr. Lichty, would you respond to that
issue that --
THE COURT: No.
You ask your question.
I'm not
asking your questions.
MR. COUGHLIN:
Yes, sir, Your Honor.
BY MR. COUGHLIN:
Q Was there some indication that night that
Mr. Goble was negligent in some regard with his
(Indiscernible)?
MR. YOUNG: I object to that as far as the use
of negligence. It's a legal term that calls for a legal
conclusion. He can ask facts of what happened. But any
argument as to whether he's quote-unquote negligent, I'm
not conceding he was, but any argument, that's argument's
sake. Mr. Coughlin may ask questions as to the basis --
THE COURT: Sustained. The word negligence, you
can ask him questions relative to the facts from which the
Court can conclude that he was negligent.
BY MR. COUGHLIN:
Q Okay. Would you say Cory was careful with his
alleged phone that night?
A I don't remember.
Q What do you remember about where the phone was
and anything Cory said about it?
A That he didn't want to break it in his pocket
because we were skateboarding and we fall all the time so
he put it down next to the girls, I guess, I don't know.
Q Next to what girls?
A Nicole Watson.
Q And Lucy Byington?
A Yeah.
Q Okay.
So it was seated right next to them?
A
It was something Cory did.
I don't know .
But
that's what I thought.
told where the phone was placed?
Q But you were
MR. YOUNG:
Objection, Your Honor, hearsay.
COURT: Yes, objection
sustained.
THE
MR. COUGHLIN:
Negligence,
analysis or mislaid
or abandoned property?
THE COURT:
It's still hearsay.
You can
establish it from somebody else if you wish.
MR. COUGHLIN:
Well, I don't know that Ms.
Watson or Ms. Byington will appear, or Mr. Dawson.
So to
that extent he might be one of the only opportunities to
get the testimony in that regard.
MR. YOUNG: He can certainly ask which I would
not object to if he saw where the phone was. But he
cannot ask where he heard the phone.
THE COURT: Where was it?
MR. YOUNG: I just want to be clear about my
objection. Mr. Coughlin asked what was your understanding
where the phone was. Mr . Coughlin is free to ask the
witness if he saw where Mr. Goble's phone was and if he
saw firsthand, I'm not going to object to that. But as
far as his understanding of what occurred, that
THE COURT: All right. Then the objection is
still sustained. You can ask the question as Mr. Young
suggested.
BY MR. COUGHLIN:
Q Did you see where the phone was?
A I did not.
Q Did you see the suspect come into the possession
or receive the phone?
A No.
Q Did you ever actually see the phone in the
suspect's possession?
A Yes, when it lit up in your pocket.
Q Were you able to verify for sure that it was
that phone?
A Yes.
Q How so?
A The picture on it and the way you flipped it
over as soon as it started lighting up .
Q And that to you was conclusive proof?
A Yes.
Q Okay. And you could see through, what was it,
phone in the pocket at the time?
A (Indiscernible) what you were wearing.
Q You don't know what I was wearing?
A I don't.
Q But you are able to testify that you can see
through it?
A Yes. Because I do remember seeing the phone.
Q Okay. Was anyone physically or violent toward
the suspect?
A I don't know.
Q You have no recollection of that; is that
correct?
A That is correct.
Q Were you yourself at all?
A No.
Q Did you call the suspect a faggot and say give
us the phone, faggot, or something like that?
A I might have called names.
Q Such as faggot?
Do you know whether you were captured saying
that on a 9-1-1 recording.
A I don't know.
Q Did Mr. Goble at any time on that night say, I'm
going to reach into his pocket right now?
MR. YOUNG:
Objection, hearsay.
MR. COUGHLIN:
(Indiscernible.)
THE COURT:
I will overrule that objection.
think he can testify what he heard Mr. Goble say and it's
not really hearsay because it's not offered for the truth
I
You can
of whether or not he reached into his pocket.
answer that question, if you know.
THE WITNESS:
I don't know.
I just worried
I don't know what
about what was going on with the phone.
people are saying.
BY MR. COUGHLIN:
Q Did the suspect say anything like, Hey, lets all
be peaceful and wait for the police to arrive and resolve
this peacefully?
That is hearsay.
MR. COUGHLIN:
Goes to his -- the effect on the
listener.
MR. YOUNG:
I don't know how that goes to the
effect on Mr. Lichty.
THE COURT: I'll sustain that objection.
BY MR. COUGHLIN:
Q Was the suspect talking peacefully with you?
A No.
Q How would characterize his behavior?
A Being rude and maybe defiant.
Q In what way was he defiant?
A He knew that he had the phone and we did ask
peacefully at first if we could just have it back and we
wouldn't get the police involved and he just was
persistent on saying he didn't have it until the cops
came.
Q Did the suspect say anything like, If it's your
phone why would you leave the phone your mom and dad got
you, 300 bucks on --
MR. YOUNG: Objection, Your Honor, hearsay.
THE WITNESS: I have no idea.
MR. YOUNG: Clear-cut hearsay.
THE COURT: Sustained.
MR. COUGHLIN: Why, it's going to
THE COURT: You can testify, sir.
MR. COUGHLIN: I know I can. That goes to
whether or not (indiscernible) argument.
THE COURT: His defiance argument? That's his
impression of your behavior.
MR. COUGHLIN: And further it wouldn't be --
THE COURT: You are the one who asked him.
MR. COUGHLIN: Yes.
THE COURT:
I don't know whether it's relevant
anyhow, but it wasn't objected to.
MR. COUGHLIN:
He made the statement that the
suspect, said just I don't have your phone and if the
suspect made a statement in that vein it would tend to
indicate something along the lines of well, who knows
whose phone it is.
Might have --
THE COURT:
That is reading your mind, sir,
which you can't do. That's pure speculation and is
objectionable. Anyhow, this witness' understanding of
your motivation to me is irrelevant.
MR. COUGHLIN: I'm trying to ascertain his
understanding of whether or not the suspect truly said yes
or no basis to having the phone or being aware
THE COURT: He already said that you denied that
you had the phone.
MR. COUGHLIN: And I'm asking was something said
that might tend to indicate something less than denial.
THE COURT: Ask a question, sir.
BY MR. COUGHLIN:
Q Did Mr. Goble say, You just admitted you stole
my phone?
MR. YOUNG:
Your Honor, objection, hearsay.
THE COURT:
I'll allow the question.
BY MR. COUGHLIN:
Q You don't recall hearing anything like that?
A No.
MR. COUGHLIN:
I'm sorry, Your Honor, I'm trying
not to go back.
BY MR. COUGHLIN:
Q Did the suspect say anything about, Don't set
your phone on the ground and go skateboard away, a mile
away and then get mad --
MR. YOUNG: Your Honor --
BY MR. COUGHLIN:
Q -- that the world picks it up?
MR. YOUNG: Objection. Mr. Coughlin, he's
asking what the suspect said and that's hearsay. You've
ruled on this.
THE COURT: All right. Sustained.
MR. COUGHLIN: Yes, sir, Your Honor, I'm sorry,
I didn't mean -- Mr. Young, I didn't mean to --
THE COURT: Well, you can ask the question but
if I sustain the objection then you have to move on. Go
ahead.
MR. COUGHLIN: If I'm asking it not to prove of
truth of the matter asserted but to
THE COURT: Prove what?
MR. COUGHLIN:
The effect on the listener.
THE COURT:
The effect on this witness is
irrelevant.
I've already said that.
In fact, I think the
only effect on anyone that's relevant is you.
But --
BY MR. COUGHLIN:
Q Was the suspect there aggressive towards you?
A No, I don't think so.
Q (Indiscernible) physically aggressive towards
you?
A No.
Q Was he verbally aggressive toward you?
A I don't remember what you said.
Q But there wasn't any sort of body language or
anything that was aggressive or threatening?
A I don't know. I don't remember.
Q Okay. But a second ago did you just testify no
when asked if the suspect was aggressive?
A Restate that please.
Q I'm asking you just a minute ago when you were
asked was the suspect aggressive that night and you said
no.
A Yeah.
Q Okay.
A You just were defiant .
Q In what way is defiant?
A
Like you wouldn't give the phone back.
You were
just, you were lying about the whole thing.
You just
weren't being reasonable when it could have just been
easily solved.
Q Was there any indication why the suspect might
have taken that position?
A I don't know.
Q Did the suspect indicate --
MR. YOUNG:
Hearsay, if he's going to go ask
what he said.
THE COURT: All right. Go ahead with your
question.
BY MR. COUGHLIN:
Q Did the suspect make any indication that he
found it off putting that you're group of -- you said
essentially some 20, I assume they are all youths,
approached him in a hostile and aggressive manner suddenly
and --
THE COURT: Hearsay, sustained.
BY MR. COUGHLIN:
Q Did you or someone you were with make a 9-1-1
call that night alleging that someone just socked a minor?
A Not that I'm aware of.
Q You make any statement about you being a minor
and someone just socked you or punched you or touched you
in a way
A (Indiscernible. )
Q I'm sorry, couldn't hear you.
A No.
Q Okay. So you are sure about that?
A Pretty sure.
Q Okay.
And so just to follow up, that would
follow that neither you nor anyone you were aware of used
9-1-1 in an impermissible way by lying about someone just
having socked a minor to get --
MR. YOUNG: Asked and answered.
BY MR. COUGHLIN:
Q -- to get a more urgent response from the
police?
A I don't know. I don't know who called 9-1-1. I
think Cory did with my phone but I don't know.
Q Regardless of when you know who called 9-1-1, do
you know whether somebody called
THE COURT: He just answered that, sir.
THE COURT: Objection sustained. Move on.
MR. COUGHLIN: Okay.
BY MR. COUGHLIN:
Q Did you see -- once the officer arrived, where
were you positioned?
A I don't remember.
Q Do you remember the officer arriving?
A Yes.
Q Can you describe what you saw or heard?
A I remember them finding the phone and then Cory
did his lock thing and we figured out it was his phone.
And that's what I remember from that.
Q You remember them finding the phone?
A In your pocket.
And then Cory -- the officer
gave the phone to Cory. Cory unlocked it because he had a
pass code on it. And then Cory proved that it was his
phone by unlocking the pass code.
Q Okay. Did you ever see the officer attempt to
call the phone or would that have been pointless since you
couldn't see it light up anyway?
A I don't remember.
Q So you were there when the officer arrived?
Q Is that correct?
A Yes.
Q How many officers were there?
A I don't remember.
Q Were there five officers there when you --
A I don't know.
Q Okay.
Do you recall whether the officer
immediately started going through the suspect's pocket
or
A I don't remember.
Q Do you recall whether the suspect had a dog or a
bikewith him?
A He had a bike.
Q Do you recall whether he had a dog?
A I don't remember.
Q
You keep looking at Mr. Young.
Would you please
just answer my question --
A (Indiscernible.)
THE COURT: He's allowed to look at anyone he
wants. Mr. Young is not signaling him or anything. I've
been observing Mr. Young.
MR. COUGHLIN: I understand. I observed him
closely too especially on audio recordings, and I've
noticed at key points there seems to be certain signifiers
and vocal inflection and otherwise that would tend to
indicate trouble zone, trouble zone.
THE COURT: He's not doing anything. Right now
he's smiling at your statement.
MR. COUGHLIN: Okay. Got a good sense of humor.
BY MR. COUGHLIN:
Q Was the suspect, was he -- was he waiting to the
police or
MR. YOUNG:
Objection, Your Honor.
THE COURT:
Was he what?
MR. YOUNG:
I believe the question was, was the
suspect waiting for the police and I object to that based
on personal knowledge.
THE COURT:
Yeah -- I'll sustain the objection.
This witness has no way of knowing whether you were
waiting for the police or not.
MR. COUGHLIN:
Well, he can testify as to what
he perceived of whether the suspect was leaving, going
THE COURT: He can testify as to whether or not
you were there when the police arrived which he's already
which he's already done.
MR. COUGHLIN: But that's a different question.
I'm -- I'm not asking whether or not I was there. I'm
asking whether or not
THE COURT: You can ask if you tried to leave.
BY MR. COUGHLIN:
Q Did the suspect try to leave?
A When you first stole the phone, yes. But then
your bike broke and then we circled you and we wouldn't
let you until the cops came.
Q What did that entail.
Did you pull the suspect
down?
A No.
We just stayed around you so you wouldn't
gone anywhere.
Q Did the suspect try to go anywhere?
A No.
Because there was a lot of us making sure
that you weren't going to get away.
Q How would the suspect know you were making sure?
A Because we were in a circle around you.
Q Were some of you sitting down, some of you
standing up?
A I don't remember.
Q Okay. Did the suspect say anything like, Let me
go. I want to leave?
A I don't remember.
Q Did the suspect say anything like there was a 13
year old who just killed somebody, Stephen Gill, two
months ago --
MR. YOUNG: That's hearsay.
BY MR. COUGHLIN:
Q So everybody needs to relax?
THE COURT: Sustained. And this is the last
time. I think you -- I think I made it pretty clear, you
cannot ask him about statements you made. All right?
MR. COUGHLIN: Okay.
THE COURT:
So you are just wasting time by
continuing to do that.
BY MR. COUGHLIN:
Q Did you or anyone else that night say, I just
killed somebody, so that doesn't apply to me?
A What's your question?
Q Did you or anyone there that night say, I just
killed somebody two months ago?
A I don't know.
Q
You don't know.
Okay.
MR . COUGHLIN:
Your Honor, I would like to
refresh the witness' recollection and/or impeach his
testimony by offering into evidence some videos or
actually at the present, playing the video for him .
MR. YOUNG: Your Honor, as to refreshing
somebody's memory, Mr. Coughlin can attempt to refresh the
witness' memory by showing him something or other wise but
certainly not proper to admit it. I don't know what
specifically he's trying to refresh the witness' memory
of.
THE COURT: I'll tell what . I'll leave the
courtroom.
THE COURT: You can attempt to refresh his
memory and --
MR. COUGHLIN : Okay.
THE COURT:
Mr. Young can object when I come
back if he did something
MR. COUGHLIN:
I would ask that the trier of
fact remain in the courtroom.
THE COURT:
Well, you are wrong, sir.
MR. COUGHLIN:
I'm not asserting anything
THE COURT:
Because it made -- you have not
furnished to Mr. Young what you are offering in evidence.
MR. COUGHLIN:
Yes, I have.
THE COURT:
You have one, you've told him
exactly what you're offering in evidence?
MR. COUGHLIN: Well, Mr. Young, I would like to
offer at this time into evidence --
MR. YOUNG: And I agree with Your Honor's
ruling. He tried to refresh the witness' recollection.
He showed the witness but that should not at this juncture
come before the trier fact which is you.
THE COURT: That's normally how it goes, sir.
If the witness says that does not refresh my memory, then
you can offer it as past recollection recorded. All
right.
MR. YOUNG: If it can be authenticated.
THE COURT: If it can be authenticated. But I
think he can authenticate it.
MR. COUGHLIN: That's right. You did say that
earlier.
THE COURT: But at this point in time, I don't
know if it relevant.
I don't know anything about it. So
and the State does have the right to object to it.
MR. COUGHLIN: Yes, sir. And I would like to
offer -- or I would like to attempt to have Mr. Lichty
authenticate it, given he was there as a percipient
witness.
In fact, visible and audible in the video.
MR. COUGHLIN:
I would like to show --
THE COURT:
I'm going to give you 10 minutes to
do that and then I'll come back unless it's done quicker.
MR. COUGHLIN: This isn't for refreshing, it's
for authentication at this point.
THE COURT: Well, sir, you'll need to refresh
his memory outside of my presence.
MR. COUGHLIN: But I just said I'm doing this
for refreshing. I'm doing this to authenticate the video.
MR. YOUNG: Your Honor, I received numerous
videos from Mr. Coughlin. I don't know which video he's
talking about. I can give you the dates.
THE COURT: I've ruled on this. You'll have 10
minutes at most to get this done.
MR. COUGHLIN: To do what? I'm not attempting
to refresh his recollection. I'm attempting to have him
authenticate his video and testify as to whether it's, you
know --
THE COURT: He can't testify to the entire
video, sir.
MR. COUGHLIN: Well, it's not very long at all,
probably a minute.
THE COURT: You'll be able to do that with
Mr. Young right now and then I'll come back.
If Mr. Young
has no objection, you can attempt to authenticate it, if
that's what you want to do. But even if it's
authenticated, it is not admissible unless it is for
impeachment purposes so I don't know who you're going to
impeaching.
MR. COUGHLIN: It is for impeachment purposes.
THE COURT: Impeaching who?
MR. COUGHLIN: Mr. Lichty and Mr. Goble and
Officer Duralde and Mr . Zarate.
THE COURT: All right. Well, then you'll need
to do what I said.
MR. COUGHLIN: Just to clarify, that's to
refresh his recollection or authenticate it outside your
presence, Your Honor?
THE COURT: Yes, all of it.
THE COURT: If you're done sooner I'll come back
sooner.
MR. COUGHLIN: If I intend to show more than one
video should we try to do as much as we can?
THE COURT: With this witness, yes.
This won't be on the record.
What will be on
the record is what actually happens when we resume. All
right.
(A recess was taken.)
THE COURT : Please be seated.
MR. COUGHLIN:
Your Honor, I would like to enter
for the record, I feel very threatened by Jim Leslie here.
I would actually like to move for a protection order.
He's threatening me.
THE COURT: Denied. Denied. You are not going
to waste the Court's time anymore.
MR. COUGHLIN: He's very threatening.
THE COURT: He's not threatening you and I
ordered him to be here.
MR. COUGHLIN: Yes, sir. Your Honor, I would
like to have Mr. Lichty authenticate a couple of videos
and some 9-1-1 calls that he was a percipient witness to,
that was there to perceive --
THE COURT: He made the 9-1-1 call?
MR. COUGHLIN: Well, I think the testimony was
they were made from his phone that he passed to his friend
Cory.
MR. COUGHLIN:
What's that, sir?
THE COURT:
Did he make the 9-1-1 call?
MR. COUGHLIN:
I don't know
I mean I think it
was made with his phone.
Who dialed it, I don't know.
His voice is on it.
I don't believe
don't know. I I
would like to get his testimony on it.
THE COURT:
Well, you already have his
testimony.
MR. COUGHLIN:
With respect to this --
MR. YOUNG: Your Honor, being that it's a bench
trial so it's a little peculiar but I'll be objecting to
all but one of the audio/videos that I just heard. One of
them I have no objection to and that's for strategic
purposes only.
The other one I object to and so without you
hearing the videos, you'll not be able to know whether
they should be objected to.
THE COURT: All right. Bring them up here and
we'll look at least the beginning of each one and see how
it is germane to this witness.
MR. YOUNG: The other thing, because
Mr. Coughlin is attempting to admit this as evidence,
something needs to be marked and admitted with the Court.
THE COURT:
Well, we have DVDs; right?
MR. COUGHLIN:
I believe you do, sir, yes.
THE COURT:
Or the CDs.
I'm not sure what they
are.
MR. YOUNG:
The other thing is, I can address my
objections at the appropriate time but obviously
(indiscernible) just for the showing of the offer of proof
as to the way it is.
THE COURT:
All right.
Let's -- are they cued
up and ready to go? Do you have
MR. COUGHLIN:
Yes, sir.
MR. YOUNG: Your Honor, again, for you to make a
ruling, there needs to be something marked and admitted
with the Court. Mr. Coughlin is playing it off the
computer unless he wants to admit his entire computer as
evidence which I can't imagine he does, he needs to
provide something to
THE COURT: Are they audios?
MR. COUGHLIN: Sir, they are the 9-1-1 calls
provided
THE COURT: Are they audios?
MR. COUGHLIN: Those are audios.
MR. COUGHLIN: And then there's videos.
THE COURT: The videos will have to be admitted.
The audios you can play and picked up on the microphone.
MR. COUGHLIN: Okay. And so -- okay. The
videos are in the Court's files and Mr. Young is going to
provide these. They were attached .
THE COURT: I have no video, sir.
MR. COUGHLIN: On that's the DVDs?
THE COURT:
I have empty -- something you filed
in the last -- stuff you filed the other day and it was an
empty, looked like a cover for a video.
I don't want to
waste time on this.
Go ahead. We will take it in
evidence if we decide to use it or if -- well, you'll have
to leave it in evidence. Have it marked -- whatever you
are going to do have it marked right now.
MR. COUGHLIN: Okay.
THE CLERK: (Inaudible.)
THE COURT: Oh, I have no idea. I'll look at
the prior trial date that I would have marked it on. It
was testimony by Duralde.
Okay. We did have an Exhibit D -- Exhibit A and
B which were pictures of the cell phone which were
admitted.
MR. COUGHLIN: The previous trial there would
have been nothing to help me admit in evidence by
Mr. Leslie.
THE COURT: Do you have anything other than A
and B that were admitted?
THE CLERK: This will be Defendant's Exhibit 1
then?
MR. COUGHLIN:
Mr. Leslie refused it to utilize
it --
THE COURT:
I don't want to hear about
Mr. Leslie.
This is your case now so you present it as
best you can, sir.
THE COURT:
Do you have them ready to be marked?
MR. COUGHLIN:
Your Honor, just to clarify, the
Court only received one CD or DVD from me?
THE COURT: I didn't receive any.
MR. YOUNG: There has been no CDs or DVDs
admitted as evidence in this trial or marked for
identification even.
THE COURT: None were received either.
MR. COUGHLIN: None were received?
THE COURT: No.
MR. COUGHLIN: Or attached to --
THE COURT: It was a thing just like that that
you have and I believe I can find it but I just don't want
to waste time looking for it because right now we're
trying to move on with the trial.
MR. COUGHLIN: But you wouldn't have reviewed
them (indiscernible)
THE COURT: I would not have reviewed something
that you didn't furnish to me, no, sir.
MR. COUGHLIN:
But maybe it seems as though a
minute ago you indicated
THE COURT:
I would not have reviewed it in any
event without having used the envelope.
All right. There
is nothing in it.
MR. COUGHLIN:
Was that the Court's usual
practice to book it into evidence or something like that
(indiscernible)--
THE COURT: It is the Court's usual practice not
to review something that's not been submitted to the other
side in a timely manner, within 10 days. But furthermore
not to review something that is not in evidence, and it's
not in evidence.
MR. COUGHLIN: So even if it's attached as an
exhibit to a motion, the Court would not review it?
THE COURT: I would not review it without giving
the other side a chance to respond. But right now, sir,
I'm going to give you about two minutes. If you don't
have those marked and ready to go we'll move on to the
next thing.
MR. COUGHLIN: All right, sir. Actually at this
point can I first play them to impeach his testimony
rather than
THE COURT: No. First you need to have them
marked as an exhibit.
And then you need to ask him if he
said this and that on such and such a date.
THE COURT:
If he says, Yes, I did, it's over
with.
You don't even get to admit the impeaching
testimony.
If he says, No, I didn't, then if it is, and
you correctly state exactly what it is in the tape and he
denies it, then you can play it.
All right.
MR. COUGHLIN: Okay.
And you said I could play
the audio into the record at this point in asking him --
THE COURT: No. I said first of all, you have
to have them marked as an exhibit. Have you done that?
MR. COUGHLIN: Well, I believe you said if it's
audio, it doesn't need to be an exhibit (indiscernible)
THE COURT: No, I decided to the contrary.
Because we're not -- you have it mark it.
MR. COUGHLIN: I'm sorry. Your Honor, just the
fact that I had a hearing in my life a few days ago for my
bar license is somewhat (Indiscernible).
THE COURT: Sir, you've known about this
forever.
MR. YOUNG: Your Honor, if he doesn't have
any --
THE COURT: I set this trial a long time ago.
You waited to the last minute to move for a continuance.
After you
THE COURT:
After you had subpoenaed 30 or 40
witnesses then you decided to move for a continuance.
MR. COUGHLIN:
Well, when all my subpoenas were
quashed ex-parte by an email notice to me -- but you told
me when you set this trial there will there would be no
continuances.
THE COURT:
I did based on the fact that you
have had ample opportunity repeatedly and you were here
when we picked the date.
MR. COUGHLIN: Yes, sir. Just to clarify, if I
have this marked and moved in evidence can I then take it
back to play it or will I need
THE COURT: Sir, you can't have it marked and
admitted into evidence. If you want to impeach a witness,
first you have to confront him with the prior inconsistent
statement.
MR. COUGHLIN: I would like to do that now by
playing the audio into the record.
THE COURT: No. You confront him by asking him
the question, exactly the question.
MR. COUGHLIN: And that consists of playing the
audio?
THE COURT: No. Speaking works out of your
mouth.
Isn't it a fact that on this date, you said this.
MR. COUGHLIN: Okay. Thank you.
THE COURT:
Precisely as it is on the audio.
MR. COUGHLIN: Okay.
BY MR. COUGHLIN:
Q Mr. Lichty, isn't it a fact that on August 20,
2011, you said, I'm a minor.
I'm 17, you can't touch me?
MR. YOUNG:
Asked and answered, Your Honor.
He's already testified to this.
THE COURT: He did. So it's not even a prior
inconsistent statement. He already testified he said
that.
MR. COUGHLIN: No, he -- okay.
THE COURT: What's the next one?
BY MR. COUGHLIN:
Q Did you ever demand that the suspect give you
his dog or his bike?
A I don't remember.
Q You're looking at Mr. Young again. But please
just answer the question.
A I don't remember. I don't remember you even
having a dog. I remember the bike. I don't remember the
dog.
THE COURT: Sir, the question I told you you
could ask is, On this date did you say this, precisely
what he said that you are going to impeach him with. Not
did you say anything about a dog.
The question is, Isn't
it a fact that on this date at this time you said this?
MR. COUGHLIN: Okay.
BY MR. COUGHLIN:
Q Isn't it a fact that August 20, 2011,
approximately 11:26 p.m. you said, Give us the phone,
fagot?
A I don't remember.
It's possible.
Q Okay.
MR. COUGHLIN: I would like to play --
THE COURT: Wait, wait, wait. Did you, in fact,
during the recess play that for him?
MR. COUGHLIN: Yes. I believe we did.
THE COURT: Did he, Mr. Young?
Can you repeat that again?
BY MR. COUGHLIN:
Q Is it true that on August 20th, 2011,
approximately around 11:25, you said to the suspect, Give
us the phone, faggot?
A It's possible.
Q Well, I would like to play
THE COURT: When you said, is it possible
MR. COUGHLIN: I would like to play the
videotape.
THE COURT: He said it was possible.
MR. COUGHLIN: But he didn't say yes.
THE COURT: All right. Then I'll allow you to
play that portion of the audio exactly and ask him if that
refreshes his memory because it was unclear to me as to
whether or not his memory was refreshed outside of
courtroom. So go ahead.
MR. COUGHLIN : And he would be able to
authenticate the audio?
THE COURT: You can ask him if that's his voice?
Or is that you talking?
BY MR. COUGHLIN:
Q Is that you in the video?
THE COURT: I don't know what you have --
MR. YOUNG: Your Honor, is there an exhibit to
be marked?
THE COURT: I asked him to have it marked. But
I'll have it marked afterwards. We'll mark this as
Exhibit 1.
MR. YOUNG: He's playing it off his hard drive?
MR. COUGHLIN: No. This is off
MR. YOUNG: Well, have it marked.
THE COURT: Well, then we'll delay it further.
I would like --
MR. YOUNG: Just note my objection.
MR. COUGHLIN: If we could have it marked and --
THE COURT: All right. Pull it out and have it
marked. Do you have them all marked, sir? Anything that
you're going to attempt to do right now, have it all
marked.
MR. COUGHLIN: Okay.
THE COURT: Because we're going to stop at 10
to noon or --
How late can you be here --
THE CLERK: (Inaudible.)
THE COURT: Well, not 12:15.
We'll do it to 12 and by that time you'll be
finished with this witness, sir.
MR. YOUNG: Your Honor, I can't imagine this
witness even takes to noon.
THE COURT: Well, I don't know. The way he's
taking so far it is. That's why I'm trying to expedite
this. Bring him up, sir. Hurry up.
MR. COUGHLIN: Yes.
THE COURT: These will become part of the court
file but you'll be able to get copies made later if you
need them.
We can't put it on the front of the disc?
THE CLERK: I'm not sure. I can. I can try.
don't know how that will affect in his computer.
THE COURT: Well, normally it -- Huh?
MR. YOUNG: I think it goes in the envelope.
MR. YOUNG: Doesn't it go in the envelope?
THE COURT: Well, if we put it in the envelope,
it's fine but we need to get, match the right disc with
the right envelope.
You can write on the envelope if you
need one.
THE CLERK:
He's asking the question to change
I
something on the disc, the writing on the disc.
THE COURT: I don't know how he's going to
change it.
THE CLERK: (Inaudible. )
THE COURT: Who wrote it originally?
MR. COUGHLIN: Me.
THE COURT: All right. Then go ahead and change
it.
MR. YOUNG: Your Honor, while he's doing that,
can I check a message?
THE COURT: Yes.
Can you just on the envelope write something
from -- so we put the right disc in the right envelope.
That's all I'm concerned about.
Sir, it doesn't matter which order they are in.
You can just tell us which one you are referring to.
Why don't you start.
You can get the rest from
her.
MR. YOUNG:
If I can just see what Mr.
Coughlin
All right.
Exhibits, Defendant's exhibits 1
through 3 have been marked.
None have been admitted.
MR . COUGHLIN:
Sorry, I'm trying to -- if I can
just quickly -- this is the last one. Mark this as
Exhibit 4.
THE COURT: Just leave that up there with her
and get back to what you are doing.
MR. COUGHLIN: All right. So may I play this
now?
MR. YOUNG: Your Honor, there's been no
authentication.
THE COURT: I'm going to ask him to play the
part that deals directly with this witness.
(Exhibits 1-4 were marked for
identification.)
THE COURT: I'm going to ask him to play the
part that deals directly with this witness. Then you ask
him if that's his voice.
MR. YOUNG: And I'll be allowed to object.
THE COURT: Yes.
MR. COUGHLIN: (Indiscernible)
THE COURT: Yes. I don't even care if I hear
it. I can disregard it.
MR. COUGHLIN: I understand.
THE COURT: We're taking more time setting it
up.
(Video playing.)
THE COURT: But I do have a question.
Mr. Young, you did not object to the question
itself.
MR. YOUNG: What's the question?
THE COURT: About the witness calling him a
faggot.
THE CLERK: Does this get marked also?
MR. COUGHLIN: Yes.
THE COURT: That was the import of it.
MR. YOUNG: Fine. I believe he's already
testified to that so I object to that.
MR. COUGHLIN: Your Honor, you said the witness
calling a fight?
THE COURT: A faggot. I mean that's the short
summary. It was more than that .
MR. YOUNG: The testimony as I recall
Mr. Lichty, he used some words and didn't know or remember
what it was and demanded the phone back.
THE COURT: Yes.
MR. YOUNG:
So if that's what we're going to be
hearing here, there is nothing to refresh his
recollection, there's no reason to play the video.
MR. COUGHLIN:
Well, Your Honor, he could
authenticate it.
THE COURT:
No, it was whether or not he was
going to impeach him. But he never denied it.
MR. YOUNG: Exactly, there is nothing to impeach
him.
THE COURT: All right. Then I'll sustain the
objection on that one. Move on to the next one.
MR. COUGHLIN: And for authentication purposes,
sir.
THE COURT: No, I'm sustaining the objection as
to his answer on that that it would not impeach him
because he does not deny that he made the statement. He
simply said he does not remember whether or not he made
the statement. And furthermore I don't think it's
relevant whether he called you that or not.
MR. YOUNG: He already testified, he said to
give the phone back. If all Mr. Coughlin wants in is the
use of the word "faggot," there's (indiscernible.)
MR . COUGHLIN: Well, sir, I think it would go to
the effect on the accused and whether, there's -- testify
as to a group of 20 --
THE COURT: Okay. Objection sustained. Move on
to the next one.
Move on to your next question.
MR. COUGHLIN: Okay. Did you say something to
the suspect --
THE COURT:
Not something, did you say.
BY MR. COUGHLIN:
Q Did you say something to the effect of, Did your
butt hole get widened while you were in jail?
A It's possible, yeah.
THE COURT: When was this now?
MR. COUGHLIN: This would have been about
right after the suspect was released from a week in jail.
MR. YOUNG: Your Honor, I object to that. One
on relevance, two, on -- well, it's irrelevant, according
to Mr. Coughlin's offer of proof, it's a week after the
offense. There is no relevance there.
THE COURT: Okay. That one is sustained. Go on
to the next one.
BY MR. COUGHLIN:
Q Did you ever threaten the suspect to break his
camera when he was interviewing you?
MR. YOUNG: I would object as to ever. It's
overbroad. He can ask so far is the night of August 20th,
but beyond that it's irrelevant.
THE COURT: Okay.
MR. COUGHLIN: I think it goes to this witness'
credibility. It further goes to
THE COURT: The witness has the absolute right
not to talk to you.
MR. COUGHLIN: But doesn't have the absolute
right to throw cigarettes on me, punch me, call me a
faggot --
THE COURT: Then you should file a criminal
complaint against him, sir.
So far as this case goes, on the night of the
alleged theft, that's what we're talking about.
And then I would like to play the witness this
9-1-1 call and ask him questions related thereto.
THE COURT: Any objection to that one?
MR. YOUNG: I don't know which call he's talking
about -- if it's Mr -- is it your call?
MR. COUGHLIN: It's the one that at 11:26 and 20
seconds, it's Goble's call. I believe this is the one
with either dispatcher Weise or dispatcher Montgomery.
MR. YOUNG: I would have to hear which one it is
and I can lodge an objection at the relevant time.
THE COURT: All right. Go ahead.
MR. COUGHLIN: I can play it?
THE COURT: Yes.
MR. COUGHLIN: Okay.
THE COURT:
For authentication purposes. It's
not for impeachment.
MR. COUGHLIN: I think it might ultimately wind
up there if I can reserve that.
MR . YOUNG: Hasn't been authenticated yet. It
will be played and the witness can say.
(Tape played.)
MR. COUGHLIN: Sorry it's from the beginning.
MR. YOUNG: Is Mr. Coughlin moving, asking to
move that call into evidence?
MR . COUGHLIN: Yes.
MR. YOUNG: I have no objection to that call.
THE COURT: It's admitted.
(Exhibits 1 and 2 were admitted in
evidence.)
MR. COUGHLIN: I just want the truth to come
out.
THE COURT: Huh?
MR. COUGHLIN: I just want the truth to come
out.
MR. YOUNG: Me too.
MR. COUGHLIN: I don't have objection to
everything like Mr. Young.
MR. YOUNG: I have an objection to irrelevance
and inadmissible evidence.
THE COURT:
Well, anyhow, it's admitted so let's
not argue about something that's already admitted.
Anything else?
MR. COUGHLIN: If I could impeach Mr. Lichty and
ask him if this was his voice saying, Give us the phone,
faggot.
MR. YOUNG: Your Honor, you've already ruled
that.
MR. COUGHLIN: If I could play that again for
him.
THE COURT: I already ruled on that.
MR. COUGHLIN: If I --
THE COURT: Is it your voice?
THE WITNESS: Yes.
THE COURT: All right, done.
BY MR. COUGHLIN:
Q Sir, just to clarify. That's you saying, Give
us the phone, faggot?
THE COURT: He already said yes.
BY MR. COUGHLIN:
Q Okay are you saying it to the suspect?
THE COURT: He said yes. You're done. You
don't get to ask it five times.
MR. COUGHLIN: I'm sorry. Yes, sir.
BY MR. COUGHLIN:
Q Did you say that to the suspect or who were you
saying it to?
A Probably to you.
Q Okay.
A It would make sense.
Q Why were you using the term faggot?
MR. YOUNG: Objection --
THE COURT: Irrelevant, sustained.
MR. COUGHLIN: Your Honor, if I may make an
offer of proof.
MR . YOUNG: Your Honor, you sustained the
objection.
THE COURT: What's the offer of proof --
MR. YOUNG: This is taking entirely too long.
When you make a ruling, Your Honor, with all due respect,
Mr. Coughlin needs to move on. We're here at 11:30 now
and we're still on Mr. Coughlin's first witness. This is
getting way too long.
MR. COUGHLIN: I just want to respond to the
objection. It's my understanding, if I don't preserve it
for the record, I might --
THE COURT: Just state it. Go ahead. What is
your reason?
MR. COUGHLIN: Well, I think it goes -- the
suspect is afraid of these youth.
MR. YOUNG:
That would be effect on here which
Mr. Lichty is not qualified to testify to.
THE COURT: You're afraid because he called you
a faggot?
MR. COUGHLIN: Well, there is also and I don't
know if you could hear it
THE COURT: All right, sir. The objection is
sustained. Go on.
MR. COUGHLIN: Okay. If I could just quickly
inter --
MR. YOUNG: You just sustained
THE COURT: I already ruled on it. Next time
I'll have you escorted out.
All right. Go on, move on.
MR. COUGHLIN: If I could play him the part,
sir, where I believe it's his voice saying, give me your
dog. I'm going to take your dog.
THE COURT: We've already heard it.
MR. COUGHLIN: Can I ask him if that's his voice
saying that?
THE COURT: Yes.
THE WITNESS: I don't remember there being a dog
but it possibly could have been me.
BY MR. COUGHLIN:
Q Okay. So if I play your voice
THE COURT:
You are not going to play it again
because I think it's irrelevant whether you had a dog or
not.
MR. COUGHLIN:
Not about whether I had a dog --
whether he was trying to take the dog or steal the bike.
MR. YOUNG: Irrelevant.
THE COURT: If they were holding it you can
charge them but they didn't. You were holding the phone
according to what you said right there.
MR. COUGHLIN: I didn't say anything about
holding the phone .
THE COURT: Yes, you did. You said you reach
into my pocket. That wasn't you, sir?
MR . COUGHLIN: You said you heard my voice say,
If you reach into my pocket I will sue you?
THE COURT: Yes.
MR. COUGHLIN: And you interpret that to say
someone is admitting to holding a phone .
THE COURT: No, I didn't say that you admitted
to holding the phone. Go ahead.
MR. COUGHLIN: Yes, sir. I think you ruled that
I can't so I don't want to go against it or bring up or
go further into them trying to steal the bike where you
ruled that was irrelevant I believe.
THE COURT: I said it's irrelevant to whether or
not you took the phone. That's the only issue before me,
sir.
You're charged with stealing or taking a phone by
larceny or possession of stolen property, two counts.
MR. COUGHLIN: With the intent to permanently
deprive with the intent.
THE COURT: With everything that goes with it.
MR. COUGHLIN: Right and I think it goes to
that.
THE COURT: Goes to what?
MR. COUGHLIN: The intent to permanently
deprive.
THE COURT: Intent to permanently deprive if
they took your bicycle?
MR. COUGHLIN: No. If someone did, for the sake
of argument, have the phone and they felt that keeping the
phone in their pocket might be the only (indiscernible)
that would prevent this aggressive group of youths from
THE COURT: I'm not going to get into the
specifics of the case, now, sir.
MR. YOUNG: Your Honor, Mr. Lichty who's the
witness on the stand has no way of knowing what
Mr. Coughlin just suggested.
THE COURT: The objection was sustained. We're
done.
If you have any other questions for this witness,
now --
MR. COUGHLIN: Okay.
THE COURT:
Do you have any other questions?
MR. COUGHLIN: Yes.
BY MR. COUGHLIN:
Q Mr. Lichty, if, say, you -- if someone was, say,
trying to steal your dog or your bike
MR. YOUNG: Objection, Your Honor, I see where
this is headed.
THE COURT: Finish the question.
MR. YOUNG: I'm just trying to speed things up.
THE COURT: All right. Well let him finish the
question.
Go ahead.
BY MR. COUGHLIN:
Q If someone was trying to steal your dog or your
bike, would that color your view as to whether or not a
phone that they asserted was theirs was in fact theirs --
THE COURT: Sustained. Go on.
MR. COUGHLIN: Okay.
Can I play the next 9-1-1 call, sir?
THE COURT:
I don't know what it's about.
MR. YOUNG:
This is the one that Mr. Coughlin
may have objected to as hearsay.
MR. COUGHLIN:
This is not that one. I believe
this is Mr. Goble's second 9-1-1 call.
I believe this
one.
THE COURT: Go ahead and start it --
THE CLERK: What exhibit is it?
MR. COUGHLIN: These files are all found on
Exhibit No . 1.
THE CLERK: (Indiscernible) .
THE COURT: You can step down for a while, if
you want because he's taking so long.
MR. COUGHLIN: I object to that, Your Honor.
THE COURT: I don't care what you object to.
You're unprepared and not ready to go and I'm going to
give you about 30 seconds. If you are not ready to go,
we'll move on.
BY MR. COUGHLIN:
Q Mr. Lichty, did you witness anybody that night
or hear about holding picking the iPhone up and holding
it aloft and offering it up?
MR. YOUNG: Objection, hearsay. I don't know
how many times I have to object. He cannot ask what
Mr. Lichty heard somebody else say. How many times do
have to object?
THE COURT: Unless he heard the person hold it
up.
MR. YOUNG: Your Honor, that's hearsay.
I
THE COURT: No.
MR. COUGHLIN: Your Honor, if I could just.
THE COURT: It's not hearsay if he asks, Does
anyone own this phone.
MR. YOUNG: That's the very clear definition of
hearsay.
THE COURT: No, I don't think so. It's not
offered for the truth of whether or not someone owns the
phone.
Is that your question, sir?
MR. COUGHLIN: I think so, yes, Your Honor.
THE WITNESS: What was the question?
THE COURT: Did you hear anyone that night hold
up the phone and say, Does anyone here own this phone?
THE WITNESS: No.
BY MR. COUGHLIN:
Q Did you hear anyone say that they would throw
the phone in the river if someone didn't claim it?
MR. YOUNG: Objection, hearsay.
THE COURT: You can answer.
BY MR. COUGHLIN:
Q You don't know if you heard?
A I don't recall it . But it could be possible, I
don't know.
Q Okay. And that's as to whether you heard
that being said. Did you hear anything about that later
that night?
THE COURT: That objection is sustained.
BY MR. COUGHLIN:
Q Was there anything you witnessed to indicate
that the suspect received the phone from somebody else?
MR. YOUNG: Objection, hearsay.
MR. COUGHLIN: If he perceived
THE COURT: Okay. Did you see someone else give
the phone to this --
MR. YOUNG: Asked and answered. He already said
he didn't see Mr. Coughlin end up with the phone.
THE COURT: All right. Objection is sustained.
Go ahead.
I would like to play Mr. Lichty that second
9-1-1 call.
THE COURT: Go ahead. Start it, sir.
MR. COUGHLIN: Sorry. I'm sorry. Here we go.
This is actually the video.
Can I play the video?
MR. YOUNG: Objection, hearsay. This is Mr --
what I believe to be Mr. Coughlin speaking.
MR. COUGHLIN: It's a lot of people speaking and
Mr . Lichty is visible and audible on the video.
MR. YOUNG: And I don't know what the relevance
of what's about to be played.
THE COURT: Well, let me hear it and then I'll
rule.
MR. COUGHLIN: May I show the video as well,
sir?
THE COURT: You can bring it up here.
THE COURT: But you'll have to show it so that
the witness can see it as well.
MR. COUGHLIN: Yes.
THE COURT: Unless you put it over here.
(Tape played.)
MR. YOUNG: Your Honor, I object.
THE COURT: I don't think it's consistent with
anything.
THE WITNESS: (Inaudible. )
THE COURT: Okay. Go ahead. I'll admit it.
MR. COUGHLIN: Okay. Then there is another
video here. I believe this is actually --
MR. YOUNG: That last video, any questions as
far as authentication or anything, what you seen on the
------------- - ---
last video.
THE COURT: Well, I'm going to admit it. I
think it's self-authenticating. I can see the party in
it. I just want to move this on.
MR. COUGHLIN: Yes, if I may do the same with a
couple of other videos quickly here?
THE COURT: No, you can't do the same with a
couple of others. You'll have to have a question about
it. I don't know what the relevance -- even that one is
irrelevant.
MR. YOUNG: It is irrelevant.
THE COURT: I'm going to sustain the objection
on the other one. Go ahead. I'm overruling myself.
MR. COUGHLIN: This is the video of the arrest .
THE COURT: Video by who?
MR. COUGHLIN: Well, it was a video taken by a
phone in my pocket immediately the moments before the
officer arrived and then through the point where he I
guess --
THE COURT: Have you shown it to him.
(Indiscernible cross talk while tape is
playing. )
MR. YOUNG: (Indiscernible) Mr. Lichty can't
testify to this.
THE COURT: Yeah. Okay. You can testify it --
sit down.
MR. COUGHLIN: That's my fifth amendment
privilege
THE COURT: No, then you don't have to put it in
evidence.
MR. COUGHLIN: I know but you previously said
that anybody was there could authenticate it.
THE COURT: No, I said if they have personal
knowledge.
MR. COUGHLIN: He's in the video
(Indiscernible) .
THE COURT: All right. Then show him the video.
MR. COUGHLIN: May I approach?
THE COURT: Yes .
THE CLERK: The first video you took
THE COURT: The one he just did.
THE CLERK: Not offering?
THE COURT: I'm denying the admission of that.
There are some videos on this and I don't know
how you would identify them.
MR. COUGHLIN: Your Honor, that last video
impeaches his testimony. He's shown in the video reaching
into my pocket and lunging and he's also heard and seen
saying he's a minor.
MR. YOUNG: (Indiscernible), I didn't see that.
THE COURT: Neither did I.
MR. COUGHLIN: Well, might necessitate having a
closer view of it but it's there. I mean
THE COURT: (Indiscernible) .
MR. COUGHLIN: I had actually provided Mr.
Young's still frames
THE COURT: Well, sir, just to expedite this,
I'll admit it but go ahead. There's two that are
admitted. There is the 9-1-1 call and the video of the
incident itself. Go ahead.
(Tape playing.)
(Indiscernible cross talk while tape is
playing. )
MR. YOUNG: Your Honor, can you pause it?
MR. COUGHLIN: Should I pause it?
THE COURT: Yes, pause it.
MR. YOUNG: Your Honor, my objection at this'
point is we had a very specific motion to suppress hearing
in which you made rulings, one of which the phone
ultimately come in but some rulings that you say as far as
the search and some statements made were inadmissible.
What Mr. Coughlin now wants to play is that very episode.
So long as Mr. Coughlin knows what he's doing, I just want
to bring up the Court's attention that this is, surrounds
I the very motion to suppress that you in part granted.
MR. YOUNG: So long as he knows what he's doing.
THE COURT: (Indiscernible. )
MR. COUGHLIN: Your Honor, there is no buzzing,
no vibrating on this.
THE COURT: Okay. Go ahead.
MR. COUGHLIN: You took out the feeling of
vibrating and when you take out the hearing, the
vibrating
MR. YOUNG: Your Honor, now he's testifying and
now it's argumentative.
THE COURT: You need to play it. Go ahead.
MR. YOUNG: Is he moving to admit this as well?
THE COURT: Go ahead and play it.
(Tape playing.)
THE COURT:
How is the rest of this relevant
now?
(Indiscernible.)
THE COURT: What's the rest of this?
MR. COUGHLIN: He tried to help me with my dog
but, sir, if I may --
MR. YOUNG: Before we go on, is Mr. Coughlin
moving to admit that?
THE COURT: He said he was.
MR. COUGHLIN: Yes.
MR. YOUNG: So long as the record is clear
Mr. Coughlin (indiscernible) I have no objection to that.
THE COURT: It's admitted. Now here's the
problem. This is all Exhibit 1 but only parts of
Exhibit 1 are admitted.
THE CLERK: (Inaudible) trying to be specific as
to which one. I got the first 9-1-1 call and the first
video of the incident. So now this is --
THE COURT: So Exhibit 1, first 9-1-1 call and
then the video of the arrest .
MR. COUGHLIN: And, sir, if I may, Your Honor,
I'm sorry, I'm a little unclear, but the first video prior
to the police arriving, that does show Mr. Lichty --
THE COURT: What?
MR. YOUNG: What he's saying now is argument.
We still have the witness on the stand.
THE COURT: Yes.
MR. COUGHLIN: Mr. Zarate testified as to --
MR. YOUNG: Argumentative.
MR. COUGHLIN: joking reaching
(Indiscernible) .
THE COURT: Okay. Sir, that objection was
sustained on that video. I've gone back and forth on it
but I'm sustaining the objection on that video. I don't
care if he reached in your pocket or not, frankly. I
don't know that it's relevant in any way.
MR. COUGHLIN: (Indiscernible) feel fearful
or --
THE COURT: Well, if you had someone else's cell
phone I guess you should feel fearful. All right.
MR. YOUNG: Your Honor, we have witness on the
stand. Could we get back to question and answer please.
THE COURT: Sit down.
MR. YOUNG: I note it is five minutes to 12 and
you've earlier said you would give Mr. Coughlin until noon
for this witness.
MR. COUGHLIN: If you knew it was that person
but if they were trying to reach into your pocket might
tend to make you think --
MR. YOUNG: Your Honor --
THE COURT: I don't care what you thought.
told you this a whole bunch of times. We'll hear from you
or your argument as to your defense. All right.
I
THE COURT: I don't care what he thought, put it
that way.
MR. COUGHLIN: Okay. But I believe.
MR. COUGHLIN: It goes to his credibility which
to me is nil which considering a lot of things he said--
THE COURT: Credibility --
MR. COUGHLIN: (Indiscernible. )
THE COURT: You called him as a witness. So you
are impeaching your own witness.
MR. COUGHLIN: I'm impeaching the whole group
and the lies they told that wrecked my life.
THE COURT: You are impeaching this witness is
what you're doing, the witness you called.
MR. COUGHLIN: Right. And they are close friend
in a group.
THE COURT: Yeah, okay. Go ahead, sir.
BY MR. COUGHLIN:
Q This video, sir, contains Mr. Lichty making,
giving his account of the events that night specifically
indicating
MR. YOUNG: Is this a question?
MR. COUGHLIN: No.
MR. YOUNG: Then I ask that he ask a question.
THE COURT: Wait, wait. He's identifying the
video and it may save some time. Was this taped
afterwards?
MR. COUGHLIN: Yes.
THE COURT: Okay. It's denied.
MR. COUGHLIN: Can I --
THE COURT: No.
MR . COUGHLIN: indicate why I think it's
relevant?
THE COURT: No. I'm denying it. All right.
MR. COUGHLIN: It was irrelevant to the
objection?
MR. YOUNG: I'm objecting to relevance because
it was after the fact.
MR . COUGHLIN:
But it goes to show that he lies
readily about just about everything.
THE COURT:
What does he allegedly lie about,
sir?
MR. COUGHLIN:
Whether he saw, whether he saw
the phone being grabbed, who Nicole Watson and Lucy
Byington's names are.
Just about every statement he makes
is contradicted by statements --
THE COURT: Okay.
I'm going to deny it again.
MR. COUGHLIN:
Certainly.
THE COURT:
You had the opportunity to furnish
these to the prosecution as well.
MR. COUGHLIN: I did --
THE COURT: Earlier today you, you.
MR . COUGHLIN: He's had them for a year, sir.
MR. COUGHLIN: He's had them for a year.
THE COURT: So. I asked you earlier today to go
through these with him, to confront this witness.
MR . COUGHLIN: Well, there's more than the
amount of time you gave us worth of video.
THE COURT: Go on to the next thing because
we'll be finished in just a couple of minutes here.
MR. COUGHLIN: Should I play it or ask him a
question?
THE COURT:
I want you to ask a question.
MR. COUGHLIN: Okay.
BY MR. COUGHLIN:
Q Upon viewing that video, did you hear yourself
making any --
I think you might have ruled this admissible so
don't know if I can ask the question
not the arrest
video but the first one where he said I'm under age and
(Indiscernible) .
MR. YOUNG:
Asked and answered.
THE COURT:
I've already ruled on that three
I
times.
MR. COUGHLIN: Okay. You ruled on the video not
being admissible --
THE COURT: I ruled that he admitted that he was
17 when he was actually 18.
MR. COUGHLIN: What I'm getting at, sir, is the
extent to which they are gaming the 9-1-1 system and they
know what they need to say to get the response they want
which they got which was an arrest that wrecked my life by
saying --
THE COURT: They got an arrest because you
refused to return a cell phone that allegedly was in your
pocket.
That's why you got arrested, sir. It was clear
in that tape, very clear.
MR. COUGHLIN:
It was clear whose phone it was?
THE COURT:
No, it was clear on the tape that
the officer gave you the opportunity to surrender the cell
phone.
MR. COUGHLIN:
When he said "probably"?
THE COURT:
Okay.
I'm not going to argue with
you. Go ahead.
MR. COUGHLIN:
Okay.
But --
THE COURT:
I've already ruled on that specific
issue.
Do you have another question?
MR. COUGHLIN:
Okay.
I just -- to me it's not
that --
THE COURT: I don't care to you. You go ahead
and ask a question.
THE COURT: You are not going to argue with me
again.
MR. COUGHLIN: I'm sorry, sir. I don't mean to
argue with you.
THE COURT: You are.
MR. COUGHLIN: Well, I'm sorry, I don't
understand that it comes across that way and I'll take
note of that and not do that anymore.
THE COURT: Go ahead, sir.
All right. We're done with this witness unless
the State wants to cross-examine.
MR. YOUNG:
Your Honor, I have no questions.
You're free to go, sir.
MR. YOUNG :
For the record it's 12:02 p.m.
THE COURT:
I understand.
I was giving him the
opportunity to ask the question and he didn't.
So now
we'll move on and we'll continue this to the this
afternoon.
I would like you to identify which witness it
was here that you intend to call because I'm not going to
have people come back.
Chuck.
We're going to identify who's here.
Chuck, will you ask the witness to come.
THE COURT: Oh, no, he's gone. He's done.
MR. YOUNG: That was my question, Mr. Lichty, is
he free to go?
THE COURT: Yes.
THE COURT: Mr. Lichty is free to go. So go.
As to the other witnesses, I just need you to
identify yourselves by name. Stand up and say your name.
THE WITNESS: Colton Templeton.
THE COURT: Okay. Are you going to call
Mr. Templeton?
MR. COUGHLIN: Yes.
THE COURT: Okay. Sit down. You'll need to
come back at 1:30.
Either one of you.
MR. ZARATE: I'm Nathaniel Zarate.
THE COURT: Okay. Did you
MR. GOBLE:
Cory Goble.
MR. COUGHLIN:
Yes, I do.
THE COURT:
All right.
They will be here at
1:30.
I'm going to give you have a half-hour with each of
them.
When a half-hour is up, the State will be able to
cross-examine no more than a hour and we'll be done.
That
will take us at most three hours.
MR. YOUNG: Your Honor, for the record,
Mr. Goble and Mr. Zarate previously testified in the
State's case in chief. So I understand Mr. Coughlin
subpoenaed him back. But for the Court's information,
those have already testified --
THE COURT: I understand. You'll be able to
object to anything that was already testified to
previously.
MR. YOUNG: Make sure we don't drag this out.
THE COURT: Yes, sir, you are raising your hand.
UNKNOWN MAN:
I just never actually received a
subpoena to be here today.
I just thought it would be a
good idea.
Everything on the court was happening today
and I received a phone call from Mr. Coughlin trying to
subpoena me --
MR . COUGHLIN:
Your Honor, if he's going to
testify could we have him sworn?
THE COURT:
No, he's not testifying, sir.
MR. COUGHLIN:
I understand.
UNKNOWN MAN:
He called on the phone trying to
serve me a subpoena over the phone.
THE COURT:
When you come back you can move to
quash it if there was no subpoena and I'll rule on that at
that time.
THE WITNESS: Do I need to be here for the rest
of the afternoon.
THE COURT: Yes, you need to be here. I'm
ordering you to be here, not by subpoena, I'm just
ordering you to be here at 1:30. You can talk to
Mr. Young if there is some basis to quash the subpoena
that was allegedly served on you. Let me even see if
there is a subpoena. Do you have one for Mr. Goble?
MR. COUGHLIN: It was in the packet that I
didn't -- that I gave to the Court, Your Honor, on
Thursday. And I believe the certified slip pursuant to
174.345.
THE COURT: I have Nicole Watson, Lucy Byington,
Colton Templeton, Austin Lichty who has already testified.
Robert Dawson. That's it. And Nate Zarate.
MR. YOUNG: He's here (Indi scernible . )
THE COURT: I'm sorry.
MR . YOUNG: He's already here. He said he'll
stay. So are we good for lunch?
THE COURT: Yeah, go ahead.
MR. COUGHLIN: He said.
UNKNOWN MAN: May be excused as well, Your
Honor, until 1:30?
THE COURT: Absolutely. Everyone is excused.
You need to leave all of the exhibits with the
clerk, sir.
(Noon recess was taken.)
RENO, NEVADA, NOVEMBER 19, 2012, 1:45 P.M.
--000--
THE COURT: Okay. Mr. Coughlin, would you call
your next witness, sir?
MR. COUGHLIN: Yes, sir, Your Honor. Just note
that Mr. Goble.
UNKNOWN MAN: He just went to the restroom real
quick.
MR. COUGHLIN: Okay. If I may invoke the rule
of exclusion.
THE COURT: You will. Tell us the witness.
MR. COUGHLIN: Mr. Templeton, sir.
THE COURT: All right. Mr. Templeton, if you
would come out and the other two wait outside. As I
indicated this morning, you'll be limited to one half-hour
per witness.
Did you say Mr. Temp1eton?
MR. COUGHLIN: Yes.
THE COURT: All right. I think they
misunderstood you.
Come up here and be sworn right up here. Raise
your right hand.
THE COURT: Please be seated and then will you
spell your first and last name and then proceed,
Mr. Coughlin.
MR . COUGHLIN: Yes, sir.
THE WITNESS: C-O-L-T-O-N, T-E-M-P-L-E-T-O-N.
MR. YOUNG: Before we start this, is being
recorded?
MR . YOUNG: I just want to make sure that the
Court is recording this.
THE COURT: Yes.
MR. YOUNG: Per requirement.
THE COURT: Go ahead, sir.
MR. COUGHLIN: Thank you, Your Honor.
COLTON TEMPLETON,
DIRECT EXAMINATION
BY MR. COUGHLIN:
Q Good afternoon, Mr. Templeton. Thanks for being
here today.
Sir, have you seen any videos of any interviews
or maybe the arresting questioner?
A Any videos?
Q Yeah, like on YouTube or anything like that?
A No.
Q Okay. Do you have some -- what was your
recollection of what happened on that day?
A I did not see anybody take the phone. But once
the phone had been taken, I remember going over there and
you had it in your possession, it was in your left pocket.
And we were calling it and we could see the phone lighting
up through your pant pocket and we just asked you to give
it back and you said no. So then we called the cops
saying that (Indiscernible).
Q Okay. Can we break that down a bit? That's a
good overview and I appreciate that. But could we maybe
start with --
And, Your Honor, I think it might be helpful to
me and hopefully to the Court and if Mr. Young doesn't
have any objection to it, I would like maybe, we have some
nice color --
THE COURT: Have them marked. I don't know why
you didn't do it earlier.
THE CLERK: He tried but I had stuff I was
doing.
THE COURT: Okay.
MR. YOUNG: He just showed me that on the break
and I have no objections to it.
(Exhibits S, 6, 7, and 8 were marked
for identification purposes.)
MR . YOUNG: I have no objection to these.
MR. COUGHLIN: If I may approach, Your Honor.
(Discussion was held at the bench.)
THE COURT: All right. And they are admitted as
well based on the stipulation of the district attorney.
MR. COUGHLIN: Your Honor, if I may approach
just quickly.
THE COURT: Yes, go ahead.
MR. COUGHLIN: And let you see just generally
that I'm referring to. This is that
THE COURT: I know where it is. Go ahead.
THE WITNESS: Okay.
BY MR. COUGHLIN:
Q Mr. Templeton, could you -- the reason I got
these pictures out, I was hoping to maybe -- if you could
hold this and point to some stuff --
THE COURT: Indicate which exhibit it is.
MR. COUGHLIN: That's Exhibit 6, Your Honor.
And this is a wide view shot that captures some of the
post office, the skate plaza and the Center Street bridge.
MR. COUGHLIN: This, in fact, might be the best
one to work with in that it has all those kind of
landmarks. If you could hold that. If you could try to
make it so mostly, Your Honor, the Court can see it, but
once in a while help me and Mr. Young out.
Can you demonstrate where you were to start,
before anybody knew anything about a phone or anything
like that?
THE WITNESS: I was skating with my friends.
BY MR. COUGHLIN:
Q You were standing right about smack-dab in the
skate plaza?
A I was skating everywhere around there.
Q So you were skating, you weren't kind of engaged
in
A I was skating everywhere around there.
Q You were skating. You weren't kind of engaged
in
A I wasn't like sitting or anything.
Q You weren't sitting?
A Huh-uh.
Q You were maybe standing talking with somebody?
A I don't remember that.
Q When was the first point that you remember at
which something happened that, okay, action
I
A Some kid came over and asked us if one of us had
a cell phone, that somebody just walked off with it and
didn't know if it was ours and I said no and somebody else
went and tracked them down and it ended up being Cory
Goble's phone and he --
Q Okay. Hang on. I'm sorry. I know I asked an
open-ended question but if I may I would kind of press
pause and get a little more target.
So if we stop at some kid
THE COURT: You can put the photo down. You
don't need to hold it up.
MR. COUGHLIN: Yeah.
BY MR. COUGHLIN:
Q So the first thing, if you're a director writing
a story, the first thing that kind of happened that was
different that was noteworthy was a kid came up and made
some communication to you; is that correct, sir?
A Yes.
Q Okay. Can you describe that kid?
A I cannot.
Q Is he 10 years old or 22-ish?
A Guessing teenager, 17, 18 maybe.
Q Did he have like gauged ears?
A I think so.
Q Was he wearing like maybe a kind of an
I
Affliction brand type T-shirt, something like that?
A I don't remember that.
THE COURT: Mr. Coughlin, they are admitted so
need the photos up here.
MR. COUGHLIN: Oh, yes, sir.
THE COURT: As long as they are admitted.
MR. COUGHLIN: And I'll just quickly note for
the record, Your Honor, if I can, Exhibit 5 is from the
top of the CalNeva parking garage, kind of a birdseye
view.
Exhibit 7 is looking northerly on Center Street
bridge. And Exhibit 8 is more of the first floor of the
parking garage looking towards the old Riverside, a good
view of the skate plaza but not too much of Center Street .
BY MR. COUGHLIN:
Q Okay . So you said the kid, you would estimate
how old?
A 17, 18, somewhere in there.
Q Okay.
And did you say he did have the kind of,
the ears that looked like the cork-type fit into the
earlobes?
THE COURT:
He said they were gauged. You
already asked him.
MR. COUGHLIN: Okay. So it was, okay.
BY MR. COUGHLIN:
Q You said he came up to you and asked you if
what?
A There was a group of us and then he came up and
he asked if it was any of ours and we didn't think it was.
And then I think it was Nicole Watson said that Cory's
phone had got stolen. So we came over.
Q
Okay. So this gentleman with the gauged ears,
he wasn't a man who found the phone asking people? He was
a man who purported to have seen the phone be stolen or --
A I believe so, yes.
Q Can you tell us, kind of give us your best
recollection of specifically what he said?
MR. YOUNG: Your Honor, objection, one, he --
THE COURT: Sustained., go on.
MR . COUGHLIN: Okay. Yes, sir, Your Honor.
MR. COUGHLIN: And just quickly, it's offered to
see why Mr. Templeton did what he did next?
THE COURT:
He already testified what he did.
He said someone came over and said the phone was stolen
and it wasn't objected to before but it is objected to
now.
MR. COUGHLIN: Okay, yes, sir.
THE COURT:
So, he went over there.
MR. COUGHLIN: Yes.
THE COURT: We know why you went over there.
MR. COUGHLIN: Okay. And, Your Honor, may I
quickly get into some testimony as to --
THE COURT: You can. You got --
MR. COUGHLIN: Okay.
THE COURT: about 16 minutes left.
BY MR. COUGHLIN:
Q Was the phone, was there any indication by
anybody that the phone, somebody ran up and grabbed it off
the ledge or did something different happen or --
MR. YOUNG: Again, I'm going to object if he's
calling for specifics. Now, Mr. Coughlin is asking for
the truth of the matter asserted. I did not object
initially because it was simply, What did you know and why
did you do that. It was very brief and we got that point.
Now for Mr. Coughlin to give me specifics, what was
specifically told, again, it's hearsay.
THE COURT: All right. Unless this witness saw
the phone being taken I'm going to sustain the objection.
MR. COUGHLIN: Okay. And I think the question
was just asking for his percipient whatever he saw or
heard.
MR. YOUNG: He testified that he hadn't seen the
phone being taken.
MR. COUGHLIN: Okay. So I asked about what
somebody might have told him
THE COURT: That's hearsay.
MR. COUGHLIN: And that's hearsay. Okay. Point
taken. Point taken.
BY MR. COUGHLIN:
Q So the man with the gauged ears came up to you,
without -- I remember Mr. Young stating this, without
getting into too many specifics and that's probably a wise
trial tactic that he did, so I'll -- the fact that he
didn't go into too many specifics and didn't generate any
hearsay objection, I'll ask you, what did you do in
response to whatever it is he told you?
A I skated over there to where you were at on this
bridge.
Q Okay. So where --
THE COURT: Wait a minute. You say on this
bridge, which bridge is that?
THE WITNESS: The Center Street.
THE COURT: Okay.
THE WITNESS: It was like right in the middle of
the bridge.
THE COURT: I'm showing you what's marked as
Exhibit 7 . Is that a better photograph?
THE WITNESS: Yes.
THE COURT: And which part of the bridge was he
I
on, which side?
THE WITNESS: We were on this side probably
about in the middle.
THE COURT: When you say this side, that's the
west side?
THE WITNESS: Yes.
THE COURT: The west side of Center Street?
THE WITNESS: Yes.
THE COURT: All right. Go ahead, Mr. Coughlin.
BY MR. COUGHLIN:
Q Where was -- and this might be confusing but
I'm
just going to though refer to myself as the suspect.
A Okay.
Q On that exhibit, can you hold it up and show me
and the Court where Mr. Coughlin was when you first
THE COURT: The suspect or Mr. Coughlin?
MR. COUGHLIN: Well, Mr. Coughlin or the
suspect, I'll use. I'm just trying to avoid saying me,
Your Honor.
THE WITNESS: Sorry. So what did you want?
BY MR. COUGHLIN:
Q Once this gauged ear man told you whatever he
told you and it resulted in you focusing your attention on
the suspect, where was it suspect at that point?
A I believe --
Q (Indiscernible.)
A He was already on the bridge.
Q Okay. So he was already on the bridge?
A Yes.
Q About where on the bridge?
A Center of it on the west side.
Q Okay. So not quite where the bridge starts
but
A A little bit, in this area.
Q Where ultimately did the -- what happened next?
You saw the suspect centerly on the bridge, west side, and
what happened?
A There was already a few people around you and
heard it was my friend's phone so I skated over there to
see what was going on and we asked you multiple times to
give the phone back and you insisted you did not have it.
Q Okay. Let me just stop you there. You say you
were alerted by the man with the gauged ears who I
believe -- this might not be appropriate to say but
Mr. Goble testified to that being the kid he did not
really know.
Do you remember that?
THE COURT: It's not Mr. Goble. Ask him if he
remembers.
He already said he didn't know the kid.
MR. COUGHLIN: Okay.
I
BY MR. COUGHLIN:
Q Mr. Goble testified I'm sorry. So you are
saying gauged-ear guy came up to you and you don't recall
who was with you in the group?
A (Indiscernible.)
Q Might have been Nicole Watson and Lucy Byington?
A I honestly don't remember.
Q Okay. He came up to you, said something. You
trained your attention on the suspect who was from your
vantage point at the center of the skate park he was
center-ish on the Center Street bridge on the westerly
side.
And then next you, correct me if I'm wrong, you
seem to indicate it went from there. Was the suspect
alone at that point or was there already people accosting
him?
A There were already people over there.
Q Who -- okay.
Were they interacting with the
suspect or were they just --
A Yes.
Q Who were those people then?
A I don't remember exactly who went over there.
Q Were they people you knew?
A Yes.
Q You just can't remember who exactly.
A Yeah. I don't remember which one it was.
Q Do you know whether or not it was Mr. Goble?
A I believe it was.
Q Okay. But it's not as though when the man with
the gauged ears came up to you and whoever you were with,
Mr. Goble was right next to you and you witnessed
Mr. Goble, he told something about a phone and immediately
dart off over there or something like that?
A I don't remember being with Mr. Goble when the
kid with the gauged ears came up to us.
Q And he I guess I can't get into specifics?
What he told you
Your Honor, if I could just ask for some
clarification. I'm just wondering --
THE COURT: What difference does it make if the
gauged-ear man told him?
MR. COUGHLIN: I'm wondering why if he felt like
he told the right person in Goble and he seen Goble run
off -- which I don't know if that's the case -- why would
he keep going and telling other people -- maybe that's a
reasonable thing to do but --
THE WITNESS:
Maybe he didn't know whose phone
it was so he was going
BY MR. COUGHLIN:
Q Okay. So you don't know whether the people
accosting the suspect were doing so because they were told
by the same man you were that there was some issue?
A Yes.
Q They could have --
A (Indiscernible.)
MR. COUGHLIN: What's that?
THE WITNESS: Restate that please.
BY MR. COUGHLIN:
Q The people who went and accosted the suspect,
when you first trained your eyes on him on the Center
Street bridge?
A Yes.
Q Do you know why they had trained their attention
on him and went over and accosted him?
A Because they were told that you had his cell
phone.
Q By who?
A The kid with the gauged ears.
Q So you do know that?
A Yes.
Q You personally witnessed him telling somebody
who you can't remember who then subsequently went and
accosted the suspect?
THE COURT: He never testified anyone accosted
the suspect.
BY MR. COUGHLIN:
Q Well, how would you put it? They were over
interacting with the suspect?
A Yeah. Interacting.
Q Okay. Can you describe that interaction at that
particular introductory point, was it -- did it look like
something dramatic was about to happen? Did it look
peaceful? How many people were there? Was anybody with
the suspect? Things like that?
A I don't know how many people were over there but
the didn't like --
Q Was it 25 or closer to two?
A Closer to two .
Q Was it three?
A Maybe. I doubt it.
Q Was it the man with the gauged ears, Lichty
(indiscernible)?
A That could possibly be it but I honestly do not
remember .
Q So they might have been three initial
approachers who interacted with the suspect as a
(Indiscernible), as a threesome, group of three?
A Yes.
Q Might have been but you are not sure?
A Yes.
Q Okay. How could the man with the gauged ears be
over there while he's always telling you something that
caused you to train your attention on the suspect on the
bridge?
A I don't know if he was over there.
Q Okay.
A I don't remember seeing him over there at the
very beginning because I was too far away. I couldn't see
that.
Q Was Nathan Zarate near you?
A I don't remember if he was near me at the time.
I know he was in the premises.
Q You don't know if he was in the group
surrounding you though?
A Yeah, I don't remember that.
Q Okay. Do you know where Mr. Goble was at that
time?
A No.
Q Do you have any recollection of some sort of
gentleman who might have referred to as the man with the
6-pack picking up a hat and saying, Who's hat is this?
MR. YOUNG: Objection, Your Honor.
THE WITNESS: No. (Indiscernible)
MR. COUGHLIN: I'm sorry?
MR. YOUNG: I said objection, hearsay.
MR. COUGHLIN: Not by proof of the truth of the
matter asserted.
THE COURT: I'm going to sustain the objection.
BY MR. COUGHLIN:
Q So you really don't have any kind of -- what you
saw with your own eyes or heard with your own ears --
knowledge of how the phone might have wound up where it
wound up?
Q Okay. In fact you recognize me from a previous
interaction?
A Not from a previous one but from that actual
day.
Q From that night?
A Yes.
Q And was there, after say I was released from
jail, six or seven days later
A Yeah, a week later.
Q
Yeah, then maybe do you recall me filming you?
A Yes, I do.
Q
Were you
--
A Four cameras.
Q Okay. Did you ultimately maybe start filming me
with your iPhone?
A I did. But that phone is broken and I don't
have it anymore.
Q Okay. And you didn't take it out anywhere?
A Yeah.
Q Okay . So from there, you are still in the
center of the skate park, skate plaza?
A Yeah.
Q There is a group interacting with the suspect on
that bridge and then slowly -- so far you've proved pretty
fast and I would just ask you to try to go slower with
more specifics and detail in context where things are.
Could you slowly walk me through the scenes of that
particular, let's say, movie, what actually happened, put
it that way.
THE COURT:
Mr. Coughlin, I'm going to tell you
this, if he walks you too slowly, you're going to run out
of time.
So you may want to get to the point of your
examination.
MR. COUGHLIN:
And I think this is it, Your
Honor, because this right where I think the actions
starts. Sounds like he doesn't have any percipient
recollection prior to that point and everything I'm trying
to elicit from him has been ruled on as hearsay. So
I'm --
THE COURT: Well, let's get it to then.
MR. COUGHLIN: Okay.
BY MR. COUGHLIN:
Q So, next.
A So we were told that somebody had taken a phone
and we thought it was our friend Cory's and we skated over
to the west side of the Center Street bridge.
Q We, meaning who?
A Okay. I take that back. I skated over there
because now that I think about it, I don't remember
skating with anybody else.
Q Okay. But
A Over to you.
Q But the man with the gauged ears who told you --
THE COURT:
He's already -- this has been asked
and answered --
MR. COUGHLIN: Okay. Yes, sir, Your Honor.
THE COURT:
multiple times.
MR . COUGHLIN:
Yes, Your Honor.
BY MR. COUGHLIN:
Q Why did you think it was Cory's?
A Because we had already gotten over there and
they were calling the phone and it was lighting up in your
pocket and he had
Q Hold on, you said we had already gotten over
there but at this point you had not indicated you had
moved from the center of the skate plaza?
THE COURT: He just testified he skated over
there.
MR. COUGHLIN: Okay. From my recollection he
was still in the center of the skate plaza, he reiterated
someone told him something causing to train his attention
on the suspect. And at that point he said we thought it
was Cory's --
THE COURT: He said he skated over there. You
said who skated with you and he said it was actually just
me.
BY MR. COUGHLIN:
Q But back up go back to the center of the skate
plaza why at what point did you form the belief that it
was Cory's?
A Cory had put his cell phone down and it was
taken from the spot that it was and so he went over there
and then we found out about it or I found out about it and
went over there too.
Q Okay.
Earlier you testified you didn't know
whether or not Cory was over there but now it seems as
though you are saying now you do know and Cory was over
there interacting with the suspect? Am I accurately --
I
A Sounds right.
Q Okay. So you're remembering that now?
A A little bit, yes.
Q Okay. I'm sorry if this is obvious, Your Honor,
but how did you know it was Cory's or become aware that
Cory felt it was his or Cory was involved in some way?
A They had told us that the phone was stolen --
Q Who's they?
A The kid with the gauged ears.
Q Okay.
A And Cory had realized that his phone was where
that was at the time that it was taken. So he assumed
that it was his.
Q So earlier when you said you didn't recall who
was with you in that group that you were standing around
or skating with, now it seems apparent that Cory Goble
wouldn't necessarily have to be there?
A Sure. I honestly do not remember him standing
next to me.
Q Okay.
Well, maybe it doesn't mean he had to be
there.
But somehow you became aware that Cory felt
if
Cory was aware that his phone was no longer where he had
set it?
A Uh-huh.
Q And that would have been in the center of the
skate plaza?
A That he set his phone?
Q Yes.
A I think he set it along the edge on the
cement-like seats or whatever they are.
Q Like on top of the ledge or --
A I think. I honestly don't know where his phone
was. It was over there somewhere. I just don't know
where, if it was on the grass, if it was on the ledge or
where.
Q Okay. And then to bring it to where we were,
you are still in the middle of the skate plaza and now
you're aware that something is amis with Cory's phone.
You perceive Cory to be over on the bridge with some other
people or alone with this suspect?
A I think there was one or two other people but
could be wrong.
Q Was one of those people the young man with the
gauged ears?
A I do not remember.
Q Okay. Could be but could also not be?
A Yes, it's possible.
Q But if it was him he would have had to tell you
whatever he told you and then go right over there to --
A Yeah.
I
Q Okay. Was Austin Lichty somewhere in this?
A He was somewhere. I don't know where .
Q You don't know if he was one of the ones
interacting? Okay.
So then what? Did you notice something
amis happening over on the bridge or the situation seeming
to get more urgent in some way?
A A little bit. I noticed that everybody I had
been with was gone over there and then I went over there.
Q Okay. But as far as you are percip as far as
your eyewitnessing things, the suspect from your vantage
point started at the same point on the bridge where he was
essentially arrested later, give or take, I don't know a
couple of feet or something?
A Yes.
Q So he didn't try to leave -- nobody was stopping
him from leaving? What was he doing?
A He was standing there with his bike and his dog
and would not give us the phone back.
Q Was he holding his dog?
A I honestly don't remember.
Q Okay.
So back up to -- you are still at the
center of the skate plaza and you notice more people
there.
I didn't hear you say there was more urgency
that caused you to go over there, but more like more
people were over there?
A Yeah.
Q Therefore you maybe was curious as to why a
crowd was gathering and went over there?
A Yes.
Q Once you approached, were there any police
officers there at that point?
A No.
Q Then what did you notice upon approaching or
hear or notice or see?
A I just heard everybody asking you to give us the
phone back and them repeatedly calling it and saying --
Q Who called?
A I don't remember whose phone called it. I think
it might have been Austin's but I'm not sure.
Q Was it Austin calling it with his phone or with
somebody else's using his phone?
A I don't remember.
Q But you somehow remember somebody was calling it
but you just don't --
A Yeah, I don't know who was calling it.
Q That's a reoccurring thing in this case.
MR. YOUNG:
Objection, Your Honor.
MR. COUGHLIN:
I'm sorry, Your Honor.
MR. COUGHLIN: I withdraw it.
THE COURT: You have three minutes left.
BY MR. COUGHLIN:
Q
Okay. So you say -- how do you know somebody
was calling it? Because you saw them calling it?
A Yeah.
Q Were there -- did you hear the phone buzzing or
anything like that?
A I didn't hear it but I could see the light
through your pant pocket.
Q Did anybody say, Hey, I see that light through
the your pant pocket?
A I think I did, yes.
Q So you made some kind of commentary right when
you saw it?
A Yes.
Q Okay. And then what happened?
A You kept denying that it's not yours or that it
was not ours.
Q How so specifically. What question was asked
and what answer was given?
A I don't remember it.
Q You don't remember anything about that?
THE COURT: He didn't say he didn't remember
anything. He said he didn't remember specifically what
question was asked and answered.
MR. COUGHLIN: Yes, sir, Your Honor.
BY MR. COUGHLIN:
Q Can you give me a little more detail about what
you do remember with respect to that asked and answered?
A I don't know.
Q You can't?
A We were asking you to give us the phone back,
kept lighting up and that's about it.
Q How many times -- did you keep calling over and
over saying, Look. We see it lighting up. It coincides
with us calling. Give it up.
Was it like that or was it you only called one
time?
A I'm pretty sure we called multiple times.
Q You called multiple times and --
A I think so.
Q Did it just keep lighting up everything?
A Yes.
Q So it just like (Indiscernible)?
A Yes.
Q Okay. So you call and then you stop and you
talk some more and you call and you say, Look, it's
lighting up. It's lighting up. And then a little while
goes by and you call and get somebody else or same person
calls again, it lights up again. You say, Come on, look
(Indiscernible), look there is a correlation, was it like
that?
A I wasn't saying it was obvious or anything but
it was lighting up and I don't remember specifically
saying anything to you that it is lighting up. I remember
other people saying that.
Q Okay. And that was on more than one instance
where you are aware that somebody was calling and either
you perceived it light up or somebody announced seeing it
light up or something like that?
A Yes.
Q More than one instance?
A Yes.
Q Okay. Then what happened?
A You kept denying it saying it's not ours and we
called the cops and the cop asked you, Look, do you have
the phone?
If you do, just give it back and we'll drop
all this.
And you said, No, I don't have it. And he
pulled it out of your pocket and asked Cory for the pass
code and Cory gave him the pass code, asked him for his
contact information.
He told the people that were in his
contacts.
Q Okay. When he pulled it out of my pocket, was I
in handcuffs at that point?
A I don't remember.
Q Did you hear the police officer saying anything
to each other?
A No.
Q Did you hear anybody say, Well if it's not in
his right pocket, maybe he switched it over to his left
pocket or anything like that?
A No.
Q Did you see the police officer patted the
suspect down shortly after arrived on the scene?
A Patting you down?
Q Yeah like checking for weapons?
A I don't remember that but I remember them
grabbing the phone.
Q Do you recall hearing the suspect scream or
yell, You are touching my penis or something like that?
A No.
Q Okay. You don't recall hearing any yelling or
anything like that?
A No.
Q Okay.
You testified that the officer said, Do
you have the phone, something like that
THE COURT: Okay. Time is up. I'll give you
one more question. You've gone three minutes, two minute
past so.
BY MR. COUGHLIN:
Q Well, did you -- so how would you describe the
suspect's interaction with the officer or officers, his
demeanor, his level of cooperation?
A Seemed fine. You just told them you didn't have
it.
Q Okay. Was there -- do you think the officer --
do you recall seeing the officer initially pat the suspect
down, check for weapons and do something else for a while
and then come back and place his hand the suspect's leg or
anything like that?
A I don't remember him patting you down, no.
Q You don't even remember the initial pat-down or
anything like that?
A No.
Q Do you recall the one officer yelling at you,
Back off, let us do our job.
Something like that?
A I remember that, yes.
Q Okay.
Do you recall seeing the officer, once he
had arrested the suspect, taken the phone out of his
pocket interacting with Cory some way, taking the suspect
back to his car and then slam the suspect's head on the
back of the trunk of the police vehicle?
A I did not see that.
Q Okay. Do you recall seeing anybody like Austin
Lichty or anybody else kind of make a joking reaching into
the suspect's pocket
THE COURT: Okay. That's more than one
question. That's more than four questions.
So do you have any cross.
MR. YOUNG: I have no cross.
THE COURT: You're free to go, sir. Give me the
pictures.
Who do you want next?
MR. COUGHLIN: Thank you, Mr. Templeton.
Your Honor, if I may call Cory Goble, please,
sir.
THE COURT: All right. Since Mr. Goble
testified before, as I indicated earlier, if you are
asking him to restate anything he said on direct, the
district attorney will have the right to object and so
would suggest that you ask him something new that you
didn't ask him before or wasn't asked of him before.
MR. COUGHLIN: Yes.
THE COURT:
Please raise your right hand, sir.
I
I
CORY GOBLE,
DIRECT EXAMINATION
BY MR. COUGHLIN:
Q Hi, Mr. Goble. Thank you for showing up today.
appreciate it.
Can you describe to me --
Your Honor, if I may give Mr. Goble that picture
as well?
THE COURT: The pictures are all here.
THE COURT: But don't mix in your own
pictures
MR. COUGHLIN: I won't.
THE COURT: with the exhibits.
BY MR. COUGHLIN:
Q Stated for the record, I'm showing Mr. Goble
Exhibit 6 and I'm asking him to take
just hold that,
Mr. Goble, and if you can indicate, sir -- and if you
would hold it up so the honorable Judge Sferrazza will be
able to see it. Kind of angle it a little bit so we can
see it once in a while. Before any indication of any
of the events in question here happened, will you point to
where you were in the skate plaza and indicate what you
were doing.
A Right here in the plaza riding my skateboard.
THE COURT: Okay.
BY MR. COUGHLIN:
Q Will you so that to me, sir?
A The plaza as one area?
Q Yes, sir.
A I was inside the plaza riding my skateboard.
Q Okay. So you were in there riding your
skateboard?
A Yes.
Q Did you drive there that day?
A No, I don't believe I did.
Q What do you drive?
A (Indiscernible) .
Q At that time did you have a vehicle?
A I don't believe I did, no.
Q Did you have a (Inaudible)?
A I might have, I don't know if I was driving.
honestly can't remember if I drove that night or not.
Q Have you ever had a Jeep?
THE COURT: What's the relevance, sir?
I
MR . COUGHLIN: (Indiscernible) to reveal that
now. It's kind of hampering me a bit.
MR. YOUNG: If he's trying to figure out -- same
as asking date of birth or what vehicle he drives, there
is no relevance there.
MR . COUGHLIN: It has relevance and there's
subsequent --
THE COURT: Subsequent has no relevance .
MR. COUGHLIN: -- media that I could introduce
that would bear on the issue.
THE COURT: Subsequent media?
MR. COUGHLIN: Well, media that I could
subsequently introduce into evidence.
THE COURT: Unless it has something to do with
you allegedly
MR. COUGHLIN: It does.
THE COURT: -- taking the cell phone -- state
what it is.
MR. COUGHLIN: Yes, sir, Your Honor. While the
complaint is not that specific in the fact for the
individual elements of the crime and I know we, in a
pretrial memorandum we got into the differences between
Washoe County Code and the NRS but I anticipate Mr. Young
will pursue (Indiscernible) as larceny approach here
unless he goes further, (Indiscernible) that remains to be
seen, there hasn't been that much testimony in that regard
that I recall specifically indicating how the suspect was
alleged to have come into possession. Where Mr. Goble
was, if this is (Indiscernible) abandon deal would bear on
the material facts in issue. Mr. Goble's testimony here
with respect to where he was may indicate veracity issues
with respect to if he's --
THE COURT: All right. It's overruled. The
objection is sustained. Go ahead. Ask your next
question.
MR. COUGHLIN: I am. I'm trying to remember the
question
MR. YOUNG: Did he ever have a Jeep.
MR. COUGHLIN: Okay.
BY MR. COUGHLIN :
Q Your testimony is you don't even recall if you
drove there that night or how you got there. Okay.
A I did have no idea
Q You're pretty much located in the center of the
skate plaza with your skateboard, skateboarding, talking
to people . Okay. Had you set your phone down somewhere
previously?
A Yes.
Q Where was that?
A Inside a blue LA baseball hat on the ledge right
behind this street light.
Q Okay. Can you show that to us and describe it
in verbal terms too because we can't see it back here.
A I just described it in verbal terms and I'll
repeat it again.
Q I'm sorry.
A It was right behind this street light on this
ledge. There is a ledge that circles the plaza, it's a
foot high.
Q Yes, sir.
A And my phone was sitting inside my hat, a
baseball hat that belonged to me and my hat was inside
my cell phone was inside of the hat sitting on the ledge.
Q On this the ledge, not on the ground?
A On the ledge.
Q Because you were skateboarding, phone could fall
out?
A Didn't want it to break, exactly, yes.
Q Okay. And then what happened from there?
A From where? From what, you never gave me a
point of reference. From where?
Q
Okay. From what I understand your phone is on
the ledge on the northerly side of the exterior of the
skate plaza, you were in the center skateboarding or
interacting with, say, friends or somebody. What relevant
event happened next that maybe changed what you were
doing?
A I was going to check on my phone.
Q You went to go check on it?
A Uh-huh.
Q And did you notice it wasn't there or something
like that?
A Yes, I did.
Q You asked if somebody had seen my phone or
something like that?
A I just said out loud, I just said, where the --
excuse my language -- I guess it's not needed but yeah,
said where is my phone out loud, where the F is my phone.
And I said out loud and, yeah. What else?
Q Okay. Previous to that, had you heard any man
holding up a hat and say, "Who's hat is this? Whose hat
is this?" loud enough to --
MR. YOUNG: Objection, Your Honor. Hearsay.
MR. COUGHLIN: Not going to
THE COURT: Well, I will allow that question.
THE COURT: Because it's not offered for the
truth of what he said but --
THE WITNESS: You're asking if I saw an
individual hold up my hat and say, Whose hat is this?
I
BY MR. COUGHLIN:
Q Yes, sir.
A No, sir, I did not see that happen. And I
guarantee if I saw it happen I would have noticed. It's a
bright blue baseball cap and I would have seen someone
waving it around saying, Whose is this. When I was only
at the most 20 feet away, I would have seen that, yes.
Q If that had occurred?
A I would think I would have seen that, yes.
Q So you would have to assume that didn't occur?
A I would --
MR. YOUNG: Objection, Your Honor, calls for.
THE COURT: Yes, it won't -- the objection is
sustained. He can't assume anything.
THE COURT:
He just didn't see it happen that's
all.
MR. COUGHLIN: Okay. Or hear it.
THE COURT: Or hear it.
BY MR. COUGHLIN:
Q Do you have head phones on or anything like
that?
A No, sir.
Q Okay.
At that time had you gone over to
Virginia Street to do anything to anybody's car, hanging
out in any way?
A No, sir.
Q Okay. If there was a 9-1-1 call that you made
that said my Jeep was right there, what would that have
been referring to?
A If it was parked, we parked literally just in
this area where -- with this Jeep -- it's not my Jeep
but -- I don't know if that's a Jeep, but right here where
this car is parked by the mobile home is where we park our
vehicles.
Q So you can park over the curb?
A There is a little opening here. They never
care, like no one ever cares in the first place.
Q Okay: Okay.
A (Indiscernible)
Q So you would have been parked down on Virginia
Street but you would have been -- that kind of mobile
home-ish thing by the -- where the ice rink is in the
winter.
THE COURT:
He's pointing to it in the picture.
THE COURT: Mark the spot --
MR. COUGHLIN: Yes.
THE COURT:
Have him mark the spot if you want a
record.
MR. COUGHLIN: Okay.
THE COURT: Have him mark the pole your phone
was by and put phone and then mark the spot where the Jeep
was by and put Jeep if the Jeep was there.
MR. YOUNG: Your Honor, his testimony is that he
doesn't recall.
THE COURT: I know, but he said if his Jeep was
there, it would have been parked and he pointed to a spot.
MR. COUGHLIN: Okay.
BY MR. COUGHLIN:
Q So where we left off, you went over to check
your where your phone was placed in the hat on the
ledge on the kind of the northerly side of the skate
plaza. You had asked where it was, you were probably
worried about it as most anybody would be, I would
imagine. At that point, what happened next that moved
this along?
A When I realized that my hat, that my phone
wasn't in any hat?
Q Yes.
A I said where is my phone. An individual that
happened to be right next to where my hat was sitting
said, That was your phone? As a question. And I said
yes. And he said that man -- referring to you, you would
be that man -- has it, riding away on the bike and he was
traveling south (Indiscernible).
Q Towards the Center Street bridge --
A Towards the Center Street bridge, yes.
Q -- where the Siena is --
Okay.
THE COURT: When you say south, do you mean
east?
THE WITNESS: I believe it was south because
north Center Street (Indiscernible) I believe.
MR. COUGHLIN: The CalNeva is north, Your Honor.
THE COURT: Oh, he was saying south on Center
Street?
THE WITNESS: He was heading south on Center
right. Just cutting across .
THE COURT: All right . I understand.
BY MR. COUGHLIN:
Q Was it suspect darting off or otherwise seeming
to maybe to flee or get away?
A
I would put it as subtly leaving the scene.
You
didn't bike off super quick.
He kind of was trying to
make it look like nothing was happening as he slowly rode
away.
Q Okay.
Did he take a lap around the park that
you noticed.
A When you say "he," are you referring to you?
Q Yes, yes.
A No, he didn't take a lap.
Q
Okay. That you witnessed?
A Not that I witnessed, no.
Q Okay. Just back up quickly, when you went back
to check your phone, your hat was there?
A Yes, it was.
Q Nobody had given you your hat or anything --
Mr. Zarate hadn't retrieved the hat from a man who had
held it up announced (Indiscernible)?
A Not to my knowledge, no.
Q Okay. Did anybody that night mention to you
that the -- the phone was held up and offered to the
people assembled in the skate park?
MR. YOUNG: Objection, hearsay. There is no
question there that relates to an affect on it here which
Mr. Coughlin keeps falling back to.
THE COURT: Okay. Sustained, objection
sustained.
MR. COUGHLIN:
Well --
THE COURT:
You didn't observe anyone do it?
MR. COUGHLIN:
Just might go to the effect of
whether or not Mr. Goble felt like somebody came up and
snatched and grabbed his phone or whether he realized he
might have been --
THE COURT: I don't think it really matters,
sir. You're charged with in this case either willfully or
unlawfully steal, take away, carry away the personal
property of another.
BY MR. COUGHLIN:
Q So this man who alerted you, talking in
specifics, as to what he told you -- did you know this
man? Oh that was your phone or whatever he said?
A No idea who he was.
Q Have you ever heard the name Peanut assigned to
him?
A Did you say penis?
Q No, peanut?
A No. No, I have not.
Q Okay. Okay. He had gauged ears though?
A I honestly can't even remember. He had like
blondish brown hair and he was white and like my age is
all I know.
Q Okay.
THE COURT:
Wait, wait a second, who had blond.
THE WITNESS:
I know for a fact that he didn't
testify or he didn't sign a witness thing.
I honestly
don't know.
THE COURT: No, no, I mean he's the person who
told you who had the phone?
THE WITNESS: He didn't -- oh, yeah, yeah, yes.
THE COURT: Okay. Go ahead.
BY MR. COUGHLIN:
Q But you had never received a phone call from him
prior to that night or called him or knowing from -- a
stranger?
A No.
Q Did any of your friends did?
A No.
Q That you know of? Okay.
A No.
Q So once he alerted you to the fact that the
suspect who you had indicated was at that point probably
over where if your Jeep was there you indicated it would
have been parked?
A Repeat that.
Q Sorry. I did that. Once you were told about
the suspect, (Indiscernible) point the suspect out to you,
indicate -- can we get into whether he indicated -- he
saw -- the gauged ear man said, I saw him go grab it or
saw him do something else?
THE COURT: No, you can't.
MR. COUGHLIN: Okay. I'm sorry, Your Honor, I'm
I
just trying to
THE COURT: We've already clarified that.
BY MR. COUGHLIN:
Q Okay. What happened next?
A Do you want me to start where I left off?
Q Yes.
A I said that guy has my phone. And I saw you on
the bike slowly pedaling away. And my first instinct was
to come confront you and ask you if you had my phone.
Q Did you jog over there.
A I skateboarded over there as fast as I could.
Q Did anybody join you?
A Not at the very beginning, no. I came all by
myself to you.
Q Okay. And then did anybody join you soon there
after?
A Many people joined me soon after.
Q Was it like two --
MR. YOUNG: Objection. Asked and answered.
Covered this the first time.
THE COURT: All right. That's true. Sustained,
objection sustained.
MR. COUGHLIN: Okay.
BY MR. COUGHLIN:
Q So you went over and would you say you
confronted the suspect?
A Yes.
Q Okay.
THE COURT: He said he confronted you.
BY MR. COUGHLIN:
Q Do you recall exactly what you asked -- tell me
as best you recall what you asked initially and what the
suspect?
A I was like, Hey, did you just take my phone?
That's what I said, something very similar to that.
Q Okay. And then you received some response
that
A I specifically remember, No, I do not have your
phone. I have a phone and you pulled out a different cell
phone and said, I have my phone. And then you put that
away and tried to keep riding away from me. You wouldn't
speak to me. You were completely trying to ignore and
trying to get away from me.
Q
Okay. What would you say would -- this might
not be allowable, Your Honor.
But from your vantage point, what would make the
suspect think he had your phone?
MR. YOUNG: Objection, same objection.
THE COURT: If you keep referring to the
suspect, I don't know who you are talking about anymore .
MR. COUGHLIN: I'm the suspect here, yeah. I'm
trying.
THE COURT: Trying to what?
MR . COUGHLIN: Well, I'm wearing a couple of
different hats. Do you want me to say me and sound less
like an attorney? Is that it?
THE COURT: No. I want to know who you are
talking about
MR. COUGHLIN: There is one suspect here.
THE COURT: You're talking like it's a third
person.
MR . COUGHLIN: Yeah, I know, because it's
prejudicial for me to be constantly sounding like I'm the
defendant when I'm trying to be representing myself.
THE COURT: Well, but. Okay. And he can answer
that it was you, if he wants to I guess.
MR. COUGHLIN: It's confusing when he's not
adopting my terminology. I understand that.
THE COURT: He shouldn't be.
MR. COUGHLIN: I understand, Your Honor. My
apologies.
Your Honor, it sounds like you prefer if I said
me.
THE COURT: You can refer to yourself as the
suspect and you can refer to him as whoever it was or --
MR. COUGHLIN: I'll go with whatever the Court
wants and I'll state me from now on.
THE COURT: You can call yourself suspect.
That's fine.
MR. COUGHLIN: I think you've got it better,
Your Honor, it's clearer that way.
BY MR. COUGHLIN:
Q So at that point, what would you say -- how --
what would make me think, from your point of view at that
point that I had your phone?
MR. YOUNG: Objection, speculation. Asking what
this witness can testify to what Mr. Coughlin is thinking,
that's speculation or reasonable person, that's
speculation.
MR. COUGHLIN: And I'm just --
MR. COUGHLIN: Yes, Your Honor.
BY MR. COUGHLIN:
Q When you said, Do you have my phone or something
like that, did you expect me to know if I had a phone that
it was yours in particular
A I suspected you, yes, and that was mine. When
I'm the individual asking you if you have my phone, yes, I
would expect that you knew it was mine, yes.
Q How would I know that?
MR. YOUNG: Objection, Your Honor. Speculation.
MR. COUGHLIN: I'm asking if it's mine.
THE WITNESS: Should be enough
MR. YOUNG: Speculation.
THE COURT: Objection is sustained.
BY MR. COUGHLIN:
Q Okay. Was I a stranger to you and you to I at
thatpoint?
A Yes.
Q So we didn't have any sort of longstanding
relationship that would develop
A I think not, no.
Q a rapport. Okay.
So if a stranger came up to you and said, You
have my phone, would you expect it was their phone?
MR. YOUNG: Objection. I don't understand that
question.
THE COURT: It's sustained. It's irrelevant,
too.
MR. COUGHLIN: All right, Your Honor.
BY MR. COUGHLIN:
Q At that point, it sounded like you were unhappy
with the answer you were getting. Did the suspect try to
x ~ e e
A Yes.
Q Okay. Earlier did you say he just kept going on
his way?
A Same thing, going on your way, flee. I would
say it's the same thing. You were trying to get away from
us, from me at least. You were trying to get away from
me.
Q Like a mad dash?
A You got to the point that you were trying to
bike off that you were choking your own dog that was tied
to your bike. I specifically remember that.
Q The dog was on the ground, was it?
A You had your dog either tied to your bike or you
were holding it and you were trying to get away so bad
that I specifically remember the dog getting like yanked
and choked on the (indiscernible) when you were trying to
get away.
Q Like the chain was caught up in something?
A I have no idea. I just remember you trying to
get away so bad that the dog was getting somewhat yanked
~ n your bike when you were trying to get away.
Q Okay. But okay but you don't know if the chain
~ a s caught in something or --
A Maybe the chain was caught. I don't know.
Q The dogs chain. Okay.
By that point had you made any indication, Hey,
I want you to stop here and allow me to prove to you that
it was my phone or something?
A I don't think you gave me the opportunity to do
that at all.
Q Okay. So then, what, did you (Indiscernible)
tackle
A My friends saw the situation coming. There was
no tackling whatsoever.
Q Okay.
A They came over and my friend called, I said,
Hey, call me phone, which I've already testified to this
before. I don't know why I'm doing this again. I said
call my phone. He dialed my phone number and we saw it
light up in your pocket and at that point it was clear as
day that my phone was inside of your pocket.
Q Now you saw -- I was, you say, trying to
basically make a mad dash at that pOint yet you were still
able to see the phone lighting up in the pocket?
MR. YOUNG: Your Honor, I object.
Mischaracterize the testimony. There's never the use of
nad dash. Second off, this has all been covered the first
:ime this witness testified.
I MR. COUGHLIN: Your Honor, if I can just say,
don't know that we ever covered the idea of how could he
see the phone lighting up if the suspect was somewhat
fleeing.
THE COURT: Okay.
MR. COUGHLIN: That's the testimony.
THE COURT: You can ask -- I'll allow that
question.
MR. COUGHLIN: Okay.
THE COURT: You only got five minutes.
MR. COUGHLIN: Okay.
THE WITNESS: I can answer the question.
Doesn't bother me at all.
We had to literally circle around you so you
couldn't forcefully bike through us. What I recall, we
circled around you. Then asked -- Tanner called the phone
and we saw it clear as day light up in your pocket.
BY MR. COUGHLIN:
Q Okay. So the suspect wasn't in a leaving type
of movement when you saw the phone light up?
A You were trying to leave the scene. I
I
specifically recall you trying to leave --
specifically remember that. I'll say on the record,
Q Was there some -- okay. Was there some point
~ h i h I stopped trying to leave, as you say, and engaged
1n a conversation with you and maybe mentioned, Hey, let's
be peaceful.
A thirteen year old just -- there was a
murder
A There was definitely no, Let's been peaceful.
It was just you denying, denying, denying, denying you had
my phone.
Q Okay.
A And that was about it. And we restrained you
there and when I called the phone I saw it light up in
your pocket. Couldn't take it anymore and dialed 9-1-1.
Q Okay. And so was there some point at which you
said you just admitted you stole my phone?
A Yes, yes. You said there is something that led
me to believe that -- you said something like, Well, it's
an old 3G. Why do you even care? You said something like
that. I specifically remember that. You were like, it's
like an old 3G. It's like worth 50 bucks, who cares. You
said something like that.
Q And did you tell the officers that it was worth
about 50 to 80 bucks --
A It was like $300 retail value when you first
bought that phone, yes.
Q Did he ask you how much the phone was worth?
A I can't remember.
Q Okay. Did you see him reach in the suspect's
pocket and take out the phone?
A Yes, I did see that.
Q And did you --
A He forcefully had to take it back for me, if
that's what you're asking, yes. You did not willingly
give over the phone. Like I said, I covered this before
to the officer, even gave you the opportunity, he said if
you return the phone we'll drop this now. We have no
problem which I don't understand why the suspect --
BY MR. COUGHLIN:
Q All right. Did the officer -- all right. Did
you ever reach like you were going to grab for the
phone --
A I want to say no. From what I recall, no
because you honestly intimidated the hell out of me.
Q Okay.
A You are extremely tall. I did not know you.
Didn't want you to punch me in the face. I did not --
Q Okay .
A (Indiscernible)
Q Okay. How would you say I interacted with the
officer? Was I cooperative? Was I --
A Not cooperative at all.
Q And how so?
A They asked you very politely to give the phone
back . You denied it.
You said you didn't have it and
they forcefully had to take it.
They had to forcefully
had to take the phone from you. I would say that's not
complying with the police.
Q So you specifically recall me telling the
officer, No, I do not have the phone?
A Something like that, yeah. I don't
specifically -- okay. I don't have specifically remember
you saying no but I do specifically remembering you not
willingly returning it.
Q Do you specifically recall me telling the
officer that I did not have it?
A No idea, I don't know.
Q Okay. So that --
A (Indiscernible) .
Q Okay. Did you see Austin Lichty making a
lunging, grabbing type, joking movement maybe say
A No idea.
Q Did the man with the gauged ears, was he there
by that point?
A I have no idea.
Q Did you testify
A I want to say yes, I want to say yeah, he was.
He came over with the group and he was helping us hold you
back.
Q Was he someone you would characterize as the
most aggressive with Mr. Coughlin?
A I remember him, I want to say he was the one who
held you.
Someone held on to your handlebars so you
couldn't leave.
Q So you say they were holding the handle bars --
A I'm pretty sure it was him.
Q So, Mr. Coughlin, I couldn't leave. It wasn't
because they were saying
A This is a year and a half ago almost. I do
recall someone restraining your bicycle. I'm not sure if
it was the man (indiscernible)
Q For how long?
A -- that you were saying with the gauged ears or
Peanut as you called him. I have no idea if that is to
who it was.
Q Okay. Was it like initially restraining the
bike for like a second and then I stopped and said, you
know, okay, I'm stopping --
A I think we were pretty clear that you were going
to be held there until the police arrived.
Q Did you see me call 9-1-1?
A No.
Q You didn't see me hold the phone and call 9-1-1?
Okay.
A Now that you say that, I think you might have.
You're like, I'm going to call the police.
It was like I
already am.
Q Okay. Did you --
A (Indiscernible) .
Q Okay.
Did you at this point say, Someone just
socked a minor to the 9-1-1 operator?
A I do remember that too. Someone -- I can't
remember. I don't know who but someone was trying to get
back and you did like lay a hand on someone.
Q Okay. So did somebody touch me that night in
the context of confronting about the phone?
A I can't remember. I would assume, yeah.
THE COURT: You have about three minutes left.
MR . COUGHLIN: Yes, sir.
BY MR. COUGHLIN:
Q You can't remember specifically but somebody
did?
A I have no idea.
Q Okay. Was there some point where you said --
A My mind --
Q I got to ask the question. Where you said the
9-1-1 operator, someone just socked a minor?
MR. COUGHLIN: I didn't hear any answer.
MR. YOUNG: Just answered about 10 seconds ago.
MR. COUGHLIN: Okay. He didn't remember.
THE COURT: He said he may have.
MR. COUGHLIN: May have because somebody might
have touched him but then he said he doesn't recall
anybody touching him. So I'm clarifying because it's been
somewhat contradictory but --
THE WITNESS: I honestly wish I could be more
specific about it. My mind, I had so much anxiety and
frustration and flurry that I wish, you know, I mean, I
wish --
BY MR. COUGHLIN:
Q Because it's your phone; right?
A Yeah. I was extremely upset.
Q Private stuff, it's not cool
A Lots of adrenaline --
Q -- if it's your phone, pretty much anybody would
be pissed; right?
A I was upset, yes.
Q Yeah. I think that's normal and reasonable.
Was there any point that night where you felt
like the group with you was kind of overly aggressive and
demanding that
I
A No.
Q -- that I believed, one, that it was your phone
and immediately comply with --
A What are you asking?
Q Was there any point which it occurred to you,
assuming I had the phone, while we're expecting this guy,
one, believe it's our phone and, two, we're being pretty
aggressive in demanding that he turn it over right away?
A I still don't understand the question. Sorry.
Q Did you ever say, I'm going to reach into his
pocket
A No.
Q going to grab the phone out of his pocket
right now?
A No.
Q Okay. Did the officer take the phone out of the
suspect's pocket and then walk over to you?
A Yes, I believe so, yes.
Q And then what --
A I don't know exactly. I do the remember him
taking the phone from you and then they did bring it over
to me and asked me questions about it. They said what's
your pass code. Can you tell us some contacts? And I
told them like a couple of things. I fully described the
phone. Pretty clear as day it was mine.
Q Did you tell them -- was anybody standing with
you when you were interacting with that? Was it the one
officer?
A I believe -- I want to say there was at least
two officers on scene.
Q But that you were interacting with?
A I have no idea which officer I was interacting
with.
Q Not which one, but just whether it was one main
officer who was communicating with you?
A Yeah, yes.
Q Okay. And at some point I would imagine he had
to ask you your phone number?
A Yes, I guess.
Q
Okay. So he asked you your phone
--
A I don't know. I can't answer that. I don't
know if he asked me for my phone number or not.
Q But you know whether he called the iPhone in
question and tried to ascertain whether in fact it was
your phone prior to just searching in the suspect's
pocket?
A What? You are confusing. Your questions are
like confusing.
Q Did the officer just show up and say I think you
got the phone and just grab into the pocket or did he do a
I
few things to try to --
A Well, I want to say, I don't know if they
restrained you or handcuffed or if it was both. But,
don't know. They restrained you, got my phone. One of
the officers came back over and asked me a couple of
questions to see if it was mine. I answered a couple of
questions and he believed it was mine and gave it back to
me.
Q So he had the phone --
THE COURT: All right. Time is up. I'll give
you one more question.
BY MR. COUGHLIN:
Q So he had the phone at that point when he first
came up to you and asked you, is this your phone?
A Are you asking if he had the phone when he asked
me if it was mine?
Q When he first started asking you questions about
the phone, yeah.
A Yes. I guess, yeah. Where else would it have
been?
Q Okay. How's your --
THE COURT: That's your
THE WITNESS: Make it was still in your pocket
when he asked me. I don't know. Maybe it was still in
your pocket when he was asking me questions.
I don't
know.
BY MR. COUGHLIN:
Q
Okay. Did he maybe say, It's not in his right
pocket. Might be in his left pocket?
A What's the difference of which pocket it was in
if he was holding it at the time or not. I just don't see
the relevance of that at all.
THE COURT: Okay. You've gone way over the time
now, so we'll -- I'm going to take a five minute recess.
I need to meet with Judge Salcedo. You have one more
witness and --
MR. YOUNG: Your Honor, I have one or two
questionson cross.
THE COURT: You do. Then go ahead and ask.
MR. YOUNG: I'll be brief.
CROSS-EXAMINATION
BY MR. YOUNG:
Q You testified, sir
THE COURT: I'm sorry, I didn't (indiscernible).
MR. YOUNG: That's okay.
BY MR. YOUNG:
Q You testified at one point that the suspect
--
the person you were talking to, that you identified last
time as Mr. Coughlin, same person?
A Yes, sir.
Q Okay . You stated at one point that Mr. Coughlin
pulled out his cell phone, something along the lines of
See, this isn't your phone or something like that .
A Yes, exactly.
Q Was that your phone that he pulled out?
A The first one?
Q Yes.
A When I first asked him, no.
Q Okay. So he had
A It was like red, completely I couldn't tell
you what it was . It was like a red flip phone. Wasn't an
iPhone.
Q That was different phone than yours that was on
his person?
A Yes.
THE COURT: All right. I'll allow you to
respond to those two questions if you have a question
relevant to those two questions.
REDIRECT EXAMINATION
BY MR. COUGHLIN:
Q Did Mr. Young ask --
THE COURT:
He asked if you were the person who
was the -- who you identified as the suspect.
MR. COUGHLIN: Okay.
THE COURT: And the other question was when he
first stopped you, you showed him a phone that wasn't his
phone. And reiterated it wasn't his phone. It was a red,
what he believed was a red flip phone.
MR. COUGHLIN: Okay. But I can ask a quick
question related --
THE COURT: Relevant to that, yes.
BY MR. COUGHLIN:
Q Did you then say, No, no, I'm talking about and
you describe your phone with more specificity to the
suspect?
A Are you asking if I replied to you after you
pulled that one out?
Q Yes.
A I was like, No, that's not my phone and I've
been told you have my phone, to be honest, something like
that.
Q Okay.
A At that point I could tell you were just being
completely redicul -- tell you're lying.
Q But you didn't indicate more specifically this
was a black or a white iPhone?
A I have no idea what I told you right there.
MR. COUGHLIN: Okay. Thank you, Your Honor.
THE COURT: All right. We'll take a five
minutes recess. When we come back -- well, you have one
more witness on subpoena. So do you want that witness
called then?
MR. COUGHLIN: Yes.
THE COURT: And if you want to testify you'll be
able to.
(A discussion held at the bench.)
THE COURT: Before we proceed any further, I did
order Mr. Leslie to be here as standby counsel. And is
there any objection to him being relieved at this point
because I believe Mr. Coughlin has pretty much complied
with the Court decorum and I don't know there would be any
reason for him to take or the defense. We're almost done.
MR. COUGHLIN: Your Honor, if I may
THE COURT: You wanted him to leave before.
MR. COUGHLIN: Well, I like and respect
Mr. Leslie, Your Honor. But I'll say this, Your Honor,
the only reason I might wish for him to be here is if you
anticipate, if there is a guilty verdict, me being
incarcerated, I might wish to have standby counsel to take
my property rather than have it booked into the jail
setting.
MR. LESLIE:
I don't take possession of personal
property of my clients. I don't think that we're covered
to do that.
MR. LESLIE: We don't have the -- especially
regarding computer equipment I am not willing to do that
for a variety of reasons.
THE COURT: Well, we'll make sure it secured
by -- if that were to happen. And Mr. Young, do you have
any reason that --
MR. YOUNG: Your Honor, I think we're almost
done. But I'll defer to Your Honor. Doesn't matter to me
one way or the other.
THE COURT: All right. I'm going to release
Mr. Leslie unless you feel that you should stay.
MR. LESLIE: Who are you asking?
THE COURT: You--
MR. LESLIE: Well
THE COURT: Since you've been here almost the
whole time.
MR. LESLIE:
Right, as standby counsel I've been
here from the beginning of the proceedings today and in
fact had a couple of interactions with Mr. Coughlin.
It's
up to the Court .
It's your ruling that allowed him to
self-represent and then it was your ruling that appointed
me as standby.
So I don't really think I have --
THE COURT: Well, do you have the rest of the
day you can do it? Because we're probably not going to be
done .
MR . LESLIE: I'm available and I had covered all
my cases.
THE COURT: All right. I'll request that you
stay just because to be save on this in case something
happens.
MR . COUGHLIN: Your Honor, I don't anticipate
acting out any differently than --
THE COURT: I know but if something happens
where you feel that you need someone to represent you the
last minute, he'll be here.
MR . COUGHLIN: I'm conscious of Mr. Leslie's
time. I realize he's got important work to do.
(Indiscernible) .
MR. LESLIE: This is also important and I just
want to be very clear and then I'll sit down. The reason
that I'm hesitate to say I want to leave, I don't want any
of my decisions or actions to work to any detriment to the
client.
I'm here and I'm in the audience and I'm
available.
THE COURT: Well, neither do I. I'll have you
remain then.
I
Okay. Call your witness, sir.
MR . COUGHLIN: Yes, sir, Your Honor. I'll call
Mr. Nathaniel Zarate.
THE COURT: Okay. Come up and be sworn and then
if you'll spell your first and last name for the record.
believe you testified before. So, Mr. Young will have
the right to object if it's something which has already
been testified to before. Raise your right hand.
THE COURT: Would you state and we spell your
first and last names.
THE WITNESS: Nathaniel Zarate,
N-A-T-H-A-N-I-E-L. Last name Zarate, Z-A-R-A-T-E.
THE COURT: All right. Go ahead, Mr. Coughlin.
NATHANIEL ZARATE,
DIRECT EXAMINATION
BY MR. COUGHLIN:
Q Good afternoon, Mr. Zarate. Thank you for being
here today, sir. I am going to ask you, do you recall on
the night in question, August 20th, 2011, someone you
might have referred to earlier as the man with the six
pack holding the iPhone while offering it up to people in
the park?
MR. YOUNG: Your Honor, objection. Hearsay.
It's the truest definition of hearsay as I objected to
already.
MR. COUGHLIN: Your Honor, if I could quickly
offer a counter to that.
THE COURT: Well, you can just ask him the
question if recalls some -- you said that you testified to
earlier. You asked him to recite testimony from a prior
proceeding. You can ask him the question, if he saw
someone hold up the phone.
BY MR. COUGHLIN:
Q Did you see -- did someone hold up a phone that
night?
A Yes.
Q He offered up to the people in the park?
MR. YOUNG: Your Honor, again, I object to that,
hearsay.
THE COURT: I'm going to overrule that because
it was asked before and answered by this witness I
believe. If not, it was answered by the officer, one or
the other
BY MR. COUGHLIN:
Q You may answer that, sir.
THE COURT: because I heard that testimony
and I have no way of knowing it except for that.
BY MR. COUGHLIN:
Q Mr. Zarate, will you answer that, please.
A Yes. There was a man holding up a phone.
Q Did the man say something to the affect that
somebody claim the phone or I'll throw it in the river?
MR. YOUNG: Your Honor, I object to that. I
know for a fact that it's not been introduced into
evidence.
MR. YOUNG: And again there's no -- I have not
heard an exception to the hearsay rule provided by
Mr. Coughlin, I think it is clearly hearsay.
MR. COUGHLIN: And Your Honor, may I just offer
a hearsay objection? Exception.
THE COURT: What's the hearsay exception?
MR. COUGHLIN:
I would say I believe that then
existing mental or emotional or physical condition would
apply as would present sense impression.
THE COURT:
I'm going to overrule the objection.
Go ahead.
BY MR. COUGHLIN:
Q You may answer, sir.
A To which question?
Q Did somebody hold the phone up and
(indiscernible) in the river if somebody doesn't claim
(Indiscernible)?
A I don't remember that man specifically saying
I'm going to throw the phone in the river.
Q Anything like that?
A I don't remember him saying anything like that.
Q Do you recall Nicole Watson admitting to hearing
that?
MR. YOUNG: Your Honor, again
THE COURT: That is sustained. This witness can
answer what hearsay is.
MR. YOUNG: Mr. Coughlin knows what hearsay is.
THE COURT: What?
MR. YOUNG: Mr. Coughlin knows what hearsay is.
Throughout the entire day, he's attempted to elicit almost
nothing but hearsay.
THE COURT: That's fine. But that prior
question, the one that he answered I think is an exception
but this one is not and it is double hearsay on top of
that, sir.
MR. COUGHLIN: Okay, Your Honor. It's not
offered to proof the truth of the matter asserted.
THE COURT: Well, I don't care. I've sustained
it.
MR. COUGHLIN: Okay.
BY MR. COUGHLIN:
Q Do you recall seeing me with some cameras and
recording equipment about a week after the arrest
MR. YOUNG: Objection, relevance.
THE COURT: What's the relevance?
MR. COUGHLIN: One, I believe it goes to the
exculpatory material and it's been said that someone -- if
Mr. Zarate heard me ask that question and heard someone
admit to hearing a man say he's going to throw it in the
river
THE COURT: I sustain the objection.
MR. COUGHLIN: Okay. Can I ask Mr. Zarate to
authenticate a recording that was made with him present in
which his voice is on?
THE COURT: You may.
MR. YOUNG:
Your Honor, I would -- if this is a
video taken a week after the incident --
THE COURT:
Oh, a week after?
MR . YOUNG:
Which he was just referring to, I
would object to that.
THE COURT:
Then I sustain the objection.
If it
was contemporaneous with the incident, then I'll allow it.
MR. COUGHLIN: Well, it was a week after the
incident and --
THE COURT: So the objection is sustained.
It's not relevant to this charge today, sir.
MR. COUGHLIN: So if the individual had
percipient knowledge of the events of the night of the
arrest a week later our videotape describing the arrest,
that's not relevant for the event involved?
THE COURT: The arrest is not the issue. It's
whether or not you stole the cell phone.
MR. COUGHLIN: Well, the action incident to the
arrest or resulting in the arrest if they are
testifying -- not go testifying but commenting a week
later on videotape knowing they are being recorded as to
what actions were involved in the arrest, what
precipitated what, that's not relevant?
THE COURT: Sir, tell me specifically
you can
make an offer of proof, a brief one, as to what is
allegedly on this video that deals with the arrest on the
night of the incident.
And I'll just note
quickly, I reviewed the tape of the October 22nd hearing
date and at the 48 minute mark of the second file on that
you note that I'll be afforded the right to waive the
witness fees for subpoenas and therein I would suggest
that my properly serving Nicole Watson incident NRS
174.345
THE COURT: Well, I see that is a proper service
but it's not one she has to obey because it's by mail. So
if she doesn't get it, and if she doesn't sign for it,
then it's not evidence that she was served. It may comply
with the technicality of the statute but it doesn't give
me the power to order, (Indiscernible) or to issue an
warrant for her nonappearance.
MR. COUGHLIN: I do believe it provides a basis
for a continuance.
THE COURT: No, sir, not unless you made a
proper motion based on that.
MR. COUGHLIN: I'm making that now, sir.
THE COURT: It's denied.
MR. COUGHLIN: Okay. Well, as to your prompting
me to issue an offer of proof, this recording, and I have
a video of it and an audio of it swell -- might remember
Mr. Templeton (indiscernible) it will show Mr. Zarate
standing next to Ms. Watson when Ms. Watson admits to
hearing the man with the 6-pack holding the iPhone and
threatening to throw it in the river if somebody didn't
claim it immediately.
MR. YOUNG: How Mr. Coughlin does not see that
as hearsay, Your Honor --
THE COURT: All ri.ght.
MR. COUGHLIN: And I thi.nk i.t's
THE COURT: You are sayi.ng that Ms. Watson sai.d
that on the vi.deo?
MR. COUGHLIN: Yes, si.r, wi.th Mr. Zarate there.
Further I thi.nk i.t's relevant to the extent that
Mr. Zarate then clearly appears to di.ssuade her from
further contradi.cti.ng what he allegedly told the poli.ce
that ni.ght and I beli.eve there i.s i.ndi.cati.ng a moti.ve on
hi.s part to cover up the extent to whi.ch hi.s mi.sstatements
to the poli.ce resulted i.n my arrest.
THE COURT: All ri.ght. I'm goi.ng to sustai.n the
objecti.on. Go ahead.
MR. COUGHLIN: Your Honor, I would note for the
record I do beli.eve I compli.ed wi.th the statute wi.th
respect
THE COURT:
I beli.eve you compli.ed except that
you di.d not provi.de for the wi.tness fee.
But you
i.ndi.cated that I wai.ved i.t whi.ch I sti.ll haven't seen or
heard.
But even i.f I had, the evi.dence i.s that she's no
longer here. So I don't know what
MR. COUGHLIN:
Well, she wasn't here today, i.s
that --
THE COURT:
No, she's no longer i.n thi.s
community.
MR. COUGHLIN: She is. I confirmed that she's a
student at McQueen High School.
THE COURT: According to the testimony earlier
today, there is testimony that she's no longer.
MR. COUGHLIN: Mr. Lichty, I recall him saying
he wasn't aware of -- he hadn't talked to her in a year.
THE COURT: And he also indicated that he
believed that she had moved.
MR. COUGHLIN: I don't recall that. I believe
he indicated to me that no
THE COURT: Okay. Let me look at the --
actually I don't have one for her but I assume you have a
certificate for her. Do you have it with you?
MR. COUGHLIN: I provided it to the Court, Your
Honor.
THE COURT: Well, the one that I have did not
show it.
MR. COUGHLIN: Would it be all right, Your
Honor, if I reviewed
THE COURT:
Well, it doesn't matter right now.
I am ruling that what she would have testified to would
have been hearsay and also probably not relevant to
whether or not it was a theft.
I know your argument
somehow this was found property but what some third party
did or didn't do is not going to be at issue in this case
when we finish it.
MR. COUGHLIN: So if the phone was going to be
in the river but for someone's intervention, that's not
bearing on the fact whether or not, comparing -- someone's
walking up
THE COURT: If somebody said that, I don't know,
No.1, that they did because it hearsay as objected to by
Mr. Young. So I'm sustaining his objection as to hearsay.
But even if it wasn't hearsay, the bottom line is I don't
know, No.1, if the person would have done that or not.
don't know how they came into possession of the cell phone
and, thirdly, you did claim the phone from that person,
according to what I heard.
MR. COUGHLIN: But if you had heard all the
things from me, then you would then perhaps reconsider
allowing this excited utterance or (indiscernible).
THE COURT: No, I ruled.
Okay. I'll allow you to argue it. All right.
You can argue anything you want but the bottom line is the
evidence will be what I decide on and that is not evidence
that the hearsay testimony of someone who's not here and
even if they were here, it would be still be hearsay.
MR. COUGHLIN: Yes, sir, Your Honor. And if
it's not going to offer to prove the matter asserted but
I
rather to demonstrate a bias or motive on this witness'
part to shush anybody who is suggesting something that is
counter to what he told the police in which affected a
wrongful arrest.
THE COURT: Still sustained. I think it's at
best marginally relevant by some tangential issue to this
case which is whether or not -- and I told you this three
times -- whether or not you did willfully and unlawfully
steal, take and carry away the personal property of
another. That's one count.
The other count ~ whether on or about the
20th day of August, you did willfully and unlawful possess
or withheld stolen goods. All right. You can make any
argument you want.
quickly -- this isn't the right time -- but if he could
quickly indicate, Your Honor, respectfully, I believe it
goes to the willfulness aspect of -- and the aspect of
another. If something is going to be in the river, I
think, one, it arguably no --
THE COURT: You can, you're done. All right.
I've already ruled on it twice now .
MR. COUGHLIN: Perhaps it's just my
inexperience, Your Honor
THE COURT: Perhaps it is. But the bottom line
is I have ruled and you can proceed.
MR. COUGHLIN: Granted, but isn't there a
negative
THE COURT: I'm not getting through to you.
MR. COUGHLIN: I'm sorry, Your Honor, but
THE COURT: I've denied -- I've sustained the
objection and denied your request for a continuance to
bring in this witness. All right. Go ahead.
MR. COUGHLIN: And I'm not able to preserve for
the record why --
THE COURT: You already have preserved for the
record. I think it's quite apparent. I understand what
your argument is.
MR. COUGHLIN: I just want to (Indiscernible),
the appellate court might --
THE COURT:
I don't know what the appellate
court would do if you're convicted.
MR. COUGHLIN:
Yes (Indiscernible)
THE COURT: Huh?
MR. COUGHLIN:
Neither do I.
Well, ask your question.
BY MR. COUGHLIN:
Q Was there anything you heard, saw or witnessed
about the events in question that would make you think my
conduct that night was somehow different than someone
running up and grabbing something and running away?
MR. YOUNG: Your Honor, objection. I don't
understand the question. It's irrelevant, calls for
speculation. One point in there he asked anything you
heard, that would call for hearsay.
THE COURT: Okay. Objection sustained.
MR. COUGHLIN: Unless it's a statement against
interest or admission
THE COURT: The statement against interest of
who?
MR. COUGHLIN: Well, I -- maybe somebody else
stole the (Indiscernible). I'm asking a percipient
witness to tell us what he saw or heard.
MR. YOUNG: He's already testified to that.
Asked and answered.
MR. COUGHLIN: I don't believe --
MR. YOUNG: A month or two months ago when he
testified, he testified what he saw.
MR. COUGHLIN: And the Court narrowly
confined
THE COURT: Okay.
I will -- you have 15 minutes
left.
So I'll allow you to ask a question that he had
personal knowledge of at the time, even if it was
repetitive because you have 15 minutes.
So use your 15
minutes as you think best except to the extent that
Mr. Young certainly has the right to object.
MR. COUGHLIN: Yes sir, Your Honor.
BY MR. COUGHLIN:
Q Mr. Zarate, was there anything about my conduct
that night that, according to your morals and belief
system would --
THE COURT: That's not a proper question, sir.
Even without an objection, according to his morals and
belief system. The question is whether you violated the
law of the State of Nevada and Washoe County.
MR. COUGHLIN: Well, the intent goes to that and
culpability goes to that.
THE COURT: Then ask him a question which
deals I don't know how he can read your mind but ask
him a question that has to do with proving your defense.
MR. COUGHLIN: He can read my mind by my actions
that night --
THE COURT:
Well, then ask him about your
actions specific.
MR. COUGHLIN:
That's what I'm trying to do.
THE COURT:
Well, you're not.
You are asking
about morality and of everything else.
MR. COUGHLIN:
Yes, it brings to bear his
feelings on things he testified to.
THE COURT:
It's not his feelings.
You have to
say, Did I do this? Did I do that --
BY MR. COUGHLIN:
Q Did I do something that night
THE COURT: No. Specifically ask him something
that you did or would have done had you been culpable I
guess. I don't know what your argument is but --
BY MR. COUGHLIN:
Q From what you know about my actions that night,
how would you distinguish them from someone who just runs
up, grabs something and steals and leaves?
MR. YOUNG: Objection, Your Honor.
THE COURT: You can ask the question, did I run
up, did I steal it, did I leave, whatever it is that you
are trying to ask.
MR. COUGHLIN: I'm asking
THE COURT: Not what some third person might
have done under the circumstances. Okay. Did I take --
MR. COUGHLIN: That's not my question. I want
to ask more complex question that deals with a deeper
answer.
THE COURT:
Well, I'm not going to allow you to
inquire as to philosophy here, sir, or morality.
It's the
law that we're here --
MR. COUGHLIN:
I know it the law. Philosophy
and morality are the basis of law.
THE COURT: It may be but he's not a philosopher
or a lawyer. I want you to ask a question of fact.
BY MR. COUGHLIN:
Q Did you are you aware of anything I did that
night that factually indicates I ran up and grabbed
something and stole it and ran off?
A Yes. You claimed the phone from the first man
and then you tried to go away.
Q Hold on a second. Did you personally witness me
claim the phone from the first man?
A Yes, I did. I witnessed you claim the phone
from him.
Q So if I have a video of you saying you didn't
personally see it but you inferred it from subsequently
asking the man or seeing me walk away from the man but
that you didn't actually technically, personally witness
the phone changing hands, would that make your testimony
here untruthful?
MR. YOUNG: Objection, Your Honor,
(Indiscernible) .
THE COURT:
Yes, it's just -- again, I told you
before, if you have a prior inconsistent statement or
subsequent inconsistent statement, then ask him precisely
what it is that he allegedly said before.
BY MR. COUGHLIN:
Q That night, about seven days after I was
arrested, (indiscernible) from jail, did you allow me to
video you and ask you some questions?
A I didn't authorize it by any means, but I was
with my friends, yes, when you were asking questions.
Q Okay. Did you answer a question of mine to the
effect of did you --
THE COURT: Not to the effect, exactly what it
is. If you're going to confront him, ask him what it was
that he allegedly stated.
BY MR. COUGHLIN:
Q That night did I ask you whether you personally
witnessed the phone change hands?
A That night I don't recall answering any of your
questions.
Q Did you attempt to shush Nicole watson or
dissuade her from answering any of my questions?
A For the safety of my friends and myself, yes, I
did.
Q How so for the safety of yourself --
THE COURT: Okay. Sir, we're done.
I said you
can ask him specifically what it was that he said that is
contrary to what he's saying today.
MR. COUGHLIN: Okay.
THE COURT: You've yet to do that.
MR. COUGHLIN: And seemed like he -- okay.
BY MR. COUGHLIN:
Q That night about seven days after the arrest,
did you specifically indicate that you personally
eyewitnessed the phone changing hands?
A I don't believe I anything in that
video because I do not recall answering any of your
questions.
MR. COUGHLIN: Again, I would like to for an
offer of proof, Your Honor, I would like to offer a video
wherein Mr. Zarate admits -- and I covered this in my
brief and I typed out the words that were used in that
video and the question --
THE COURT: Well, you have your brief so --
here . You can come up and get it.
MR. COUGHLIN: I don't know if --
THE COURT: Huh?
MR. COUGHLIN: I'm so limited in time, Your
Honor --
THE COURT: Your motion for dismissal,
memorandum of law.
MR. COUGHLIN: Something in the record.
THE COURT: Well, something in the record.
MR. COUGHLIN: I believe the memorandum of law
and it's in the motion of dismissal because I felt it was
so key but, there is a passage in there where there is a
video, I believe it's entitled video 0100 wherein
Mr. Robert Dawson whom I might also quickly just say I
believe I properly subpoenaed him and there is a basis for
a continuance (Indiscernible) and I'll move on wherein he
and Mr. Zarate along with Ms. Watson and Byington,
Mr. Dawson, Colton Templeton are there wherein Mr. Zarate
indicates he didn't personally eyewitness the phone
changing hands with the man with the 6-pack to me but
rather inferred it due to --
THE COURT: Well, ask him that. Did he state
that he didn't personally witness but inferred it.
BY MR. COUGHLIN:
Q Did you?
A Well, this took place a year ago so details are
a little bit fuzzy. However, I do remember Mr . Coughlin
speaking with the man and then a few moments later I
remember him on his bike looking at the cell phone and at
that point we were uncertain of whose phone it was.
After
we started to piece together the information that's when
we went and tried to go claim it from him.
BY MR. COUGHLIN:
Q So would it be fair to say in that response you
admit that you didn't personally witness the phone
changing hands from the man
THE COURT: If he personally witnessed you with
the phone after --
MR. COUGHLIN: That's not what I'm asking. I'm
asking whether -- receiving is one of the elements. There
might be inference of receiving but --
THE COURT: Inference of receiving?
MR. COUGHLIN: Yes.
THE COURT: The Court makes the inferences but
he testified that he saw you talk to the man and he saw
you drive away with the phone afterwards, after the man
had held up the phone.
MR. COUGHLIN: Right but when the
THE COURT: And I have a -- huh?
MR. COUGHLIN: When the D.A. asked him a
question, it's a lot stronger, yes, I -- and you queried
him, Your Honor, and it was very insightful for you to do
so. You said wait a second, you personally eyewitnessed
this and this witness at that time when he was the D.A. 's
witness, it's yes --
THE COURT:
Once again, he's saying in essence,
he made a conclusion but he's clarifying it now for the
record that he made an inference.
MR. COUGHLIN: That's kind of key because you as
the judge in this court asked him under penalty of
perjury, previously, wait, you personally eyewitnessed
this? And at that time this witness who has had a motive
not to be found as someone who affected a wrongful arrest
or --
THE COURT: What motive?
MR. COUGHLIN: Because if I say something that
wrecks somebody's life and gets them arrested wrongfully,
and I -- I will be brought to justice because of it, I
might have a motive to try to prevent that from coming to
light.
THE COURT: If you were arrested wrongfully
which we haven't determined yet, so . But if you stole the
cell phone it wasn't wrongful, right.
MR. COUGHLIN: We don't know now that it was a
snatch and grab job and run off or if somebody found it,
could have thrown it in the river and somebody said, You
know what, rather than have that phone be in the river
(Indiscernible) downtown Reno
THE COURT:
You are arguing and testifying
basically.
MR. COUGHLIN: I know. I'm sorry, Your Honor.
THE COURT:
If you want to testify you are free
;
to testify.
MR. COUGHLIN: I will. I will absolutely
testify.
THE COURT: You have five minute left with this
witness. So do what you want to do.
MR. COUGHLIN: All right. Can I impeach his
testimony by showing some of the video?
THE COURT: I've already concluded that his
testimony today is consistent with what you said you did.
MR. COUGHLIN: Yes, sir, yes, sir.
BY MR. COUGHLIN:
Q Did you see the phone light up -- what happened
initially, where were you (Indiscernible).
A I -- is there any way I can draw a picture?
THE COURT: Well, he has pictures here. There
is one -- did you take my pictures, sir?
MR. COUGHLIN: I don't believe so, Your Honor,
but I have -- if I did, I'll look.
THE COURT: Are there exhibit numbers on the
back?
THE CLERK: Yes.
THE COURT: I have this one. Let me take those
back.
BY MR. COUGHLIN:
Q Mr. Zarate did you testify that --
THE COURT: Hang on, Mr. Coughlin, because the
pictures, are not here.
MR. COUGHLIN: Well, then I'll move on because
my time is limited, Your Honor.
BY MR. COUGHLIN:
Q You testified that --
THE COURT: We have Exhibit 6. So he can look
at that one. That's the one that you referred to but if
we don't have them, you must.
MR. COUGHLIN: Can I just -- can we just use one
of these picture I have
THE COURT: Well, we have Exhibit 6, the one
you're talking about.
MR. COUGHLIN: Okay. Great.
BY MR. COUGHLIN:
Q Can you hold that up, Mr. Zarate, and indicate
where you were at the point in time that it was discovered
that the phone was missing?
A Sure.
I was right around here in this area
across
MR. COUGHLIN:
Let the record reflect that's
probably kind of a north westerly part of the ledge on the
skate plaza.
MR. YOUNG: Looks like the southwestern part--
THE COURT: Which side?
THE WITNESS: I was sitting -- there's that
ledge that runs across next to the ground where I was
sitting, right around here when I first witnessed them
talking.
THE COURT: So the north of the river at the
center of the circle on the upper north edge of the
circle?
THE WITNESS: Yes.
BY MR. COUGHLIN:
Q That would be kind of the north westerly part of
the skate park.
Where was Mr . Goble at that time?
A He, from what I remember, he was up on the other
side around this area closer to the movie theater.
Q So he was on the westerly side?
A Direction.
Q Okay. Near Virginia Street .
Okay. So at that
point you could hear Mr. -- this man see the hat.
Where
did he find the hat?
A The man found it on the ground across from where
Cory was closer to the trailer.
Right around this area.
Q Okay. Show that to the Judge where you are
pointing.
A It was right around here by the trailer.
Q Okay. So was just kind of on the ground there
on the concrete?
A Yes, I believe his phone and his hat were
together.
Q It wasn't on the ledge?
A No. There is not a ledge over there.
Q Okay. So the phone was kind of on the ground,
downtown Reno, 11:30 at night, Saturday, 15 percent four
years in a row. Phone was on the --
phone was on the
ground, downtown Reno?
A Yes, there was
Q Someone picked it up
THE COURT: You have one minute left.
BY MR. COUGHLIN:
Q Someone picked it up and offered it and Cory
didn't hear him offer it up to anybody?
MR. YOUNG: Objection. He doesn't have personal
knowledge of it.
MR. COUGHLIN: Well, he might.
MR. YOUNG: He doesn't.
BY MR. COUGHLIN:
Q Did you see him offer it up and witness whether
or not Cory was aware of it?
A I did not. We recognized Cory's hat and that's
what we saw first and that's when we claimed it for Cory
because we knew it was his. However, we didn't know he
had his phone with him or not and then that's when the man
came in with the same story.
Q Cory didn't appear by his manner be aware enough
or close enough to his phone
A No, he was on the other side of the
(Indiscernible) .
Q
That would be near Virginia Street. Was that
where the Jeep was parked?
A I don't recall where he was parked that night.
Q Okay. And did you make a call -- how did you --
well, I believe you testified you inferred the phone was
taken by. Me and then at that point, what happened? Did
you call somebody or did you run over and do something
with me or what happened?
A We asked you kindly for the phone back and we
would just go our separate ways after that and then you
Q So you went from here and you ran after me?
A No, you started -- you tried to get away on your
bicycle.
Q Who approached me first?
A I believe it was Cory.
Q But not you?
A I did not approach you first, no.
Q Okay. Did you witness the phone lighting up in
my pocket?
A I did.
Q Where were you when that happened?
A On the bridge and I would point that out if you
want me to --
Q That's where you're saying I was?
A That's when I -- that's where you were when I
saw the phone light up in the pocket.
Q Where were you when you saw it?
A I was probably two, three feet away from there.
Q You weren't on the other side of the park?
A No. I was right in front of you.
Q Isn't that what you testified at the previous
trial, that you observed me from the other side of the
park and the phone lighting up in my pocket all the way
over on the bridge?
A I don't believe that, sir. I believe I
mentioned that we encircled you so you could not leave on
the bridge and you had -- and that's when I witnessed my
friend calling Cory's phone and then the phone lighting up
in your pocket.
Q (Indiscernible)?
A I'm not sure, I don't remember.
THE COURT: Okay. Times up. I'll allow one
more question if you have it.
MR. COUGHLIN: Yes, Your Honor.
BY MR. COUGHLIN:
Q What was the full extent of your conversations
with the Reno Police Department that night?
THE COURT: The full extent? You can ask, not a
question.
MR. COUGHLIN: Well, Your Honor, the previous
testimony indicated that it wouldn't take too long to tell
it.
MR. YOUNG: If it previous testimony, it's been
asked and answered.
THE COURT: Well, I'll allow the one question.
THE WITNESS: When the police arrived I
volunteered myself because I knew what happened and after
that I believe he took Mr. Goble and myself aside and I
said witnessed what happened, I'll answer any questions
you have.
But after that I forget, I don ' t know who the
police officer was but he came up and I just filled out a
police report and I didn't discuss any facts of the case
with him .
MR. COUGHLIN:
One follow-up, Your Honor.
THE COURT: No. I said one question.
THE COURT: Wait. The State have any cross?
MR. YOUNG: No, Your Honor.
THE COURT: Are there any other pictures down
there, sir?
THE WITNESS: I don't see them, sir.
THE COURT: You have the copies because none of
them are here.
MR . YOUNG: I believe there were four photos
admitted.
THE CLERK: There were.
MR. COUGHLIN: I'll look for those
THE COURT : We have the one, 6.
MR. COUGHLIN: Possible (Indiscernible)
THE COURT: It's possible because they are
definitely not here and we did not take them.
BY MR. COUGHLIN:
Q Mr. Zarate, is there any kind of milling
about --
THE COURT: I have the discs, the CDs. They
weren't left up here.
THE CLERK: They were CDs. It says right
here --
THE COURT: You need to bring the CDs back up.
MR. COUGHLIN: Yes, sir. Can I just enter them
.
all into evidence?
THE COURT: They are not entered into evidence.
Only part of one of them is so far.
THE CLERK: We only have part of No. 1 into
evidence. I marked more than that .
THE COURT: There were four marked.
THE CLERK: There were four marked and then we
had four photos which three are missing now. And then we
had more CDs marked.
THE COURT: Well, this is the only photo that
was actually talked about.
THE CLERK: I marked four.
THE COURT: I know.
THE CLERK: And entered four into evidence.
MR. COUGHLIN: I had four of one photo. I found
it. I'm sorry.
THE COURT: Those are the exhibits, yes.
MR. COUGHLIN: They are paper, not that glossy
feeling (Indiscernible)
THE COURT: All right. Thank you .
All right. Mr. Young.
MR . YOUNG: I have no questions of this witness.
THE COURT: All right. You're free to go, sir.
MR. COUGHLIN: Thank you, Mr. Zarate.
THE COURT: Do you have any other witnesses?
MR. COUGHLIN: Yes, sir and I have the citation
and the audio cued up and what you told me you go ahead
and waive the witness fees and the 48 minute mark of file
2 on the October 22nd. I'm sorry, Your Honor, I'm
juggling my thoughts and you might have already told me
you ruled on this I would like to call Nicole Watson
and Robert Dawson but they failed to appear despite -- I'm
sorry if you've already ruled on this, Your Honor. I'm
just kind of -- (Indiscernible) I've not got much sleep
lately even though bar hearing was last week, there has
been a lot of post hearing work witness.
THE COURT: Well, they are not here. But
anyhow, let me hear what you have on the tape. You can
play that.
MR. COUGHLIN: Could I play the tape of Nicole
Watson?
THE COURT: No. You have my order. You said --
MR. COUGHLIN: Yes, sir, yes, sir.
THE COURT: You said it was cued up and ready to
go.
(Tape playing.)
THE COURT: Bring it up here.
Do you want me to bring it up there, sir, so I
can hear it.
THE COURT: If I could hear it, I don't care
where it is.
(Tape played.)
THE COURT: Okay. Sir, what I was talking about
was I would waive the service cost by the sheriff which we
can do through the informa pauperis. We have no means of
waiving a witness fees or providing the witness fees. We
have no fund for that but we do have the ability to order
the sheriff to serve a subpoena without payment. Now
don't even know if you filed a motion for informa pauperis
to waive the service fee.
MR. COUGHLIN: I believe I filed a motion for
informa pauperis and
THE COURT: You filed the motion for informa
pauperis, but whether you filed one since that day
covering the service fees. But be that as it may, I did
not waive the witness fee. In fact, I specifically said
the contrary. If you listen to it.
MR. COUGHLIN: May I believe I heard you
verbatim say, waive the witness fee. Your Honor,
believe
THE COURT:
By that I meant the service fees.
But -- okay. If you listen to that again, you'll hear
what I said.
I
I
MR. COUGHLIN: Okay. Your Honor, I'll preserve
that. I believe I reasonably relied upon the reasonable
interpretation that was not --
THE COURT: Reasonable interpretation when I
said the Court has no funds to pay witnesses?
MR. COUGHLIN: Well, I think that goes to where
you later said that I may defer that and make you pay them
later.
THE COURT: Yeah, I said I may defer it.
MR. COUGHLIN: I believe you said
(indiscernible) me pay it later. But you were definitely
(Indiscernible) to me, sir, allowing me to attempt to get
the truth out there.
THE COURT: Okay .
MR. COUGHLIN: Even though I'm indigent.
THE COURT: But the problem is this, sir. A
witness does not have to respond absent a witness fee
being advanced.
MR. COUGHLIN: Well, sir, I don't have to show
up for Mr. City Attorney's cause emailing me notice of a
hearing but --
THE COURT: You didn't. You didn't have to show
up.
MR. COUGHLIN: Well, he told me you said I did
so I did.
THE COURT: No, I said.
THE COURT: What I said was I wanted to make
sure you were served one way or the other. So I said that
in addition to serving you by regular service that he
attempted to get hold of you by email because I do know
that's how you communicate with the Court.
MR. COUGHLIN: And he seems to have interpreted
that to authorize service --
THE COURT: So you wouldn't have been here, so
you wouldn't have had any say at all. I would have just
granted the order without the say.
MR. COUGHLIN: Well, typically
THE COURT: You wouldn't --
MR. COUGHLIN: (Indiscernible) you said
Well, I wouldn't have been here because you didn't have
you didn't have personal jurisdiction, you couldn't drag
me into the state --
THE COURT: Okay. Sir. So I didn't drag you
into it state. I gave you the opportunity to argue
against a motion which was made --
MR. COUGHLIN: I see where you say that, Your
Honor --
THE COURT: properly and in addition I gave
you a chance to respond by last Thursday and so far as I'm
concerned the response was to some extent okay and to some
extent it was nonresponsive. But to the extent that it
was responsive I did order that those subpoenas I would
reserve ruling on and we're now at that point.
MR. COUGHLIN: And if I --
THE COURT: And I'm finding as a matter of fact
that I did not authorize you to serve subpoenas without
proffering the witness fees. I did indicate that we have
no funds to pay them but that I would allow you to serve
them without cost. The bottom line is I did rule that
these people were served but I am finding that they were
not proffered the witness fees. By your own testimony you
indicated you did not include a check for these people.
MR. COUGHLIN: Your Honor, may I play that
portion again
THE COURT: No, you may not. I already heard
it. You'll have whatever argument you have is reserved
for the future.
MR. YOUNG: Your Honor, one thing for the
purpose of the record that I would like to put on the
record with respect to the motion to continue by
Mr. Coughlin due to Ms. Watson's nonappearance here, one
of the requirements to get a continuance is to show that
the testimony or the purported testimony would have some
bearing on the case.
From everything we've heard from Mr. Coughlin
today, the attempts to get Ms. Watson's testimony, or what
she would say in, I would object to it as hearsay anyway
and it would not be coming in. So in addition to
everything you are saying there is no basis to continue to
get her
THE COURT: I already ruled on that.
MR. YOUNG: I just want that on the record.
THE COURT: -- it was hearsay.
MR. COUGHLIN: To the extent, Mr. Young's making
argument, if I may indicate, Your Honor, that one of the
elements is from another, something that is about to be
thrown in the trash can --
THE COURT: Well, you'll be able to argue that.
Just talking about the -- only thing I'm ruling on right
now, I'm denying your motion to continue. Bring in these
witnesses, the two witnesses.
THE COURT: Do you have any other witnesses,
including yourself if you wish to testify?
MR. COUGHLIN: Yes, sir. And I do intend to
testify but I also would like to put on evidence prior to
that.
THE COURT: Evidence of what, sir?
MR. COUGHLIN: Oh, the videos.
THE COURT: You'll need to testify. So I don't
know what
MR. COUGHLIN: Well, because somebody needs to
authenticate it?
THE COURT: Yeah. Someone needs to authenticate
it. You said you were present when the videos were made
but I would tell you this. Again, any video made after
the fact, unless you can show directly the relevance, I'm
not going to admit it in evidence, all right. Even if you
authenticate it. All right.
MR. COUGHLIN: Okay.
THE COURT: Are you ready to go?
MR. COUGHLIN: Yes . Sir -- okay. Yes. All
right. If I may --
MR. YOUNG: Your Honor, with respect to
Mr. Coughlin testifying, he has indicated that he -- I
believe he indicated he wishes to testify. I would ask
that the Court canvass Mr. Coughlin that he has the
constitutional right to remain --
THE COURT: Well, I thought I already had. But
he --
MR. YOUNG: Well, I'm not sure that we have.
And I understand Mr. Coughlin probably knows his rights
but we
THE COURT: Okay. Sir.
MR. YOUNG: For purposes of this case, we need
to put this on the record.
THE COURT: Sir, I do have a standby counsel
present for one thing and we'll if you wish, I'll allow
you to consult with him before you waive your
constitutional right to remain silent and you understand
you have the constitutional right to remain silent; is
that correct?
MR. COUGHLIN: Yes, sir, I do. The only extent
to which I'm somewhat unclear on that is when a defendant
is proceeding pro se, there is a split in the case law
with respect to whether they are making sworn testimony or
just simply offering argument or questions such as
prosecutors do at times --
THE COURT: Well, if you're offering evidence,
you are testifying. If you are arguing the facts that
have been admitted in evidence, then you are acting as an
attorney pro se.
MR. COUGHLIN: Yes, sir. And I'll just note
that Judge Nash Holmes swore me at the beginning of that
trial at issue because she indicated, I believe, somewhat
some way it kind of hamstrings the defense, that she
notice that the pro se defendants tend to testify --
THE COURT: I don't agree with that position.
My position is you are acting an attorney --
MR. COUGHLIN: I'm not surprised you say that,
Judge.
THE COURT: If you wish, if you wish to argue
the facts that have been admitted in evidence you may do
so without testifying. If you wish to state facts that
are not in evidence then you'll need to testify.
MR. COUGHLIN: I'm not surprised you say that,
sir, and I don't believe you are a lifelong prosecutor
like a lot of judges and that's something I really
appreciate about you, sir.
THE COURT: Okay, appreciate it or not. That's
my ruling. So the bottom line though you have the right
to remain silent. Do you wish to exercise your right to
remain silent?
MR. COUGHLIN: No, I don't think so, sir.
think it's --
THE COURT: Then do you wish to consult with
Mr. Leslie before you make that determination?
MR. COUGHLIN: Normally I would, because
Mr. Leslie is wellspring of information and professional
expertise but it seems as though you set somewhat of an
end point for this and where, to the extent we're running
up against it, I'm just kind of --
I
THE COURT: Well, the end point in your case is
when you testify to something that is not relevant. But
other than that, I will allow you to testify.
MR. COUGHLIN: If --
THE COURT: Mr. Leslie.
MR. LESLIE: I if I may provide some input, Your
Honor. He's been advised of his right to testify or not
testify as his fifth amendment. He's been advised of the
possible consequences and I provided him notification of
that. If he wants to consult with me, frankly, there is
not a lot of rocket science to it. I've consulted with
him previously before you put me as standby counsel so it
wouldn't take more than a minute or two.
THE COURT: Also --
MR. LESLIE: He's had months to mull this over.
THE COURT: Okay. But, also, sir, I'm going to
offer you the opportunity at this time, if you wish, to
have Mr. Leslie act as your attorney for the purposes of
your examination if you want to testify.
MR. COUGHLIN: No disrespect to Mr. Leslie, sir,
but I prefer to proceed as I intended to.
THE COURT: Okay. You understand that if you do
take the stand you can be cross-examined?
MR. COUGHLIN: Yes, sir. Yes, sir, I do.
THE COURT: You understand everything you say
can and will be used against you in these proceedings?
THE COURT: And can be used in your favor as
well, obviously.
MR. COUGHLIN: Yes, Your Honor. I just don't
know to the extent, if the shoe was on the other foot and
Mr. Young sought to introduce a video right now, I'm a
little unclear, would he need a witness to authenticate
it? Could he ask the Court to take judicial notice?
Could he certify it as an officer --
THE COURT: No. He would
MR. COUGHLIN: of the Court.
THE COURT: No, he would have a witness to
authenticate it.
MR. COUGHLIN: He would?
THE COURT: Yes.
MR. COUGHLIN: Even if he himself filmed the
video?
THE COURT: If he himself filmed it, he could
not be the attorney in the case. You are in a different
situation. You can't be an attorney and a witness in a
case normally.
MR. COUGHLIN: Unless you're a one-man band.
THE COURT: Well, like you are.
MR. COUGHLIN: Yes.
THE COURT: But the normal rule is if you know
you're going to be a witness in a case and you're an
attorney, you are supposed to try and withdraw from that
case. That's the normal rule.
MR. COUGHLIN: Yes.
THE COURT: But this is a special situation,
sir. Are you ready to proceed?
MR. COUGHLIN: I am, sir. So if I could just
clarify, I hope the Court sees that I'm trying to brisk up
my pace and be cognizant of the fact --
THE COURT: Actually I don't want to start right
now, we're taking a --
MR. COUGHLIN: Well, here's my position that if
5:00 o'clock comes, is that it? Or --
THE COURT: Sir, I'll determine at that time if
we're doing something that is relevant to this case.
MR. COUGHLIN: Okay.
THE COURT: And you'll be able to testify as
long as you're testifying to something relevant and
otherwise admissible, I'll allow you to testify.
MR. COUGHLIN: Thank you. Your Honor.
THE COURT: But to the extent it's objected to
and I rule, I sustain the objection, then you'll not be
able to testify.
MR. COUGHLIN: Okay. In that vein, Your Honor,
I
I would like to offer into evidence materials I've newly
been provided by the Reno City Attorney, Mr. Skau, in
accord with your direction and he was graciously,
appreciated him giving that Econ --
THE COURT: Sir, you'll need to testify.
MR. COUGHLIN: Okay. So I do need to testify
because
THE COURT: Well, you'll --
MR. COUGHLIN: And that's fair because you would
make Mr. Young have a witness to it so --
THE COURT: Well, if you're going to offer
something in evidence. I just told you that three times.
MR. COUGHLIN: I'm sorry, Your Honor.
MR. YOUNG: For the record, it's not that
Mr. Coughlin himself needs to testify
THE COURT: No, I understand that. He can --
MR. COUGHLIN: For him to admit evidence, he
needs a witness and if Mr. Coughlin has not put this
purported evidence on with any other witnesses he called
then it falls to him. But he has, like you said, the
right to remain silent and that could not be held against
him irrespective of what evidence he wants to put in
there.
THE COURT: And also, sir, the other thing, just
because you testify doesn't make evidence admissible that
would not otherwise be admissible. It's got to be
something that you have personal knowledge of, that you
were either a witness to or otherwi$e. But some of these
documents I may admit I mean if it will expedite
this -- are you talking about the Econ records being the
actual transcript of the phone call -- I mean of the 9-1-1
call?
MR. COUGHLIN: I have the log, the typed-out
logs for sometime. They reveal nothing about a possible
fight. I do have the audio -- I believe
THE COURT: You already played that.
MR. COUGHLIN: No, different, where you said you
would -- the possibility of revisiting your ruling on
motion to suppress and to the extent to which this newly
divulged material which I believe really is a basis for
Mr. Young in that it wasn't divulged incident to
Mr. Goodnight's previous request for such production,
particularly where the State focused so heavily on this
Well, dispatch told RPD a possible fight, particularly
where the arresting officer's wife was working for
dispatch that night and there's nothing in this --
THE COURT:
I don't understand.
Everything I've
heard so far, whether there was another dispatch based on
a possible fight, everything that's been presented had to
do with the theft of a cell phone.
The 9-1-1 call that I
heard was definitely about theft of a cell phone.
MR. COUGHLIN: You said it was theft, not
robbery or a fight and a fight was what Mr. Young -- I
mean (indiscernible) justified the pat-down and the
information culled from the pat-down --
MR. YOUNG: Not Mr. Young --
MR. COUGHLIN: Probable cause for it. That was
in your pleading, you argued it --
THE COURT: Wait, wait a second. You have
what I did in that case, I did grant the motion to
suppress with respect to what was testified to by other
people, hearsay portion of it. But now that's no longer
the case. You actually, you actually got admitted here
today the call itself.
MR. COUGHLIN: No, I'm referring to the
recording of the communication between dispatch and the
RPD which is what Mr. Young focused on and it's what
Officer Duralde focused on. I'm not talking about the
private citizens making the 9-1-1 calls. There's also
recordings (indiscernible) of what the dispatchers are
communicating to the officers. And it repeatedly, the
District Attorney Young and Officer Duralde kept using
that buzz word, Oh, dispatch told us possible fight,
possible fight. Well, of course we had to pat him down.
It's a possible fight. That was -- you got
(indiscernible) possible fight, could be weapons.
Somebody who fights, that's weapons. Plus we heard all
this stuff about noncompliance this and that -- I
don't care
THE COURT: I don't know, when I heard --
THE COURT: on the 9-1-1 calls, sir, was that
you were searched incident to an arrest based upon theft
of a cell phone.
MR. YOUNG: Your Honor, we're wasting time. The
last question that Your Honor had for Mr. Coughlin whether
he wants to exercise his rights to remain silent or
exercise his right --
THE COURT: Okay.
MR. COUGHLIN: to testify. He's hemmed and
hawed. I would ask that we get an answer to that. If he
chooses to testify he should take the stand, be sworn and
testify. We've wasted 10 minutes at least going back and
forth over nothing.
THE COURT: You're right.
Sir, do you want to testify or not.
MR. COUGHLIN: I will answer that right away,
Your Honor, but if I could just make --
MR. YOUNG: No.
MR. COUGHLIN: a lO-second point quickly.
This is what Mr. Leslie and I -- I think it's an
interesting point because Mr. Leslie and I kind of went
back and forth over this --
THE COURT: Well, I don't care what --
MR. COUGHLIN: Whether I made
THE COURT: what Mr. Leslie and you went back
and forth over. You are representing yourself now. So
tell me, do you want to testify or not?
MR. COUGHLIN: But now -- now I'm in a position
where Mr. Leslie was in saying to the client, look, you
have to waive your 5th if you want to admit this video
into evidence. And the client is the same way. I should
get (indiscernible) and have you get that video into
evidence some other way and then decide later if I'm
THE COURT: Video of what, sir?
MR. YOUNG: I don't understand that argument,
Your Honor.
THE COURT: Yeah. I don't even know if you can
even authenticate the video, sir.
MR. COUGHLIN: I believe it a (Indiscernible)
witness in the video cell phone authenticating. And I
believe that the other witnesses today have already
authenticated it.
I think it was one occasion that you
had specifically found that
THE COURT: Wait, wait, sir. What is it -- the
video, no. I thought you were talking about the dispatch.
MR. COUGHLIN: I was, Your Honor, I'm sorry I
got sidetracked.
THE COURT: The dispatch log, I'll allow you to
admit without testifying.
MR. COUGHLIN: Because it's a public record,
business
THE COURT: I'll allow it to be admitted if
that's all you want and then you can go forward
MR. COUGHLIN: I can play that audio?
THE COURT: Huh? I thought you had a disc
transcript of it.
MR. COUGHLIN: No. It's the audio.
THE COURT:
I'll allow that audio to be played
because you can't authenticate it anyhow.
MR. COUGHLIN: Okay.
THE COURT:
And that's
MR. COUGHLIN:
I believe
we have these red
stamps.
I don't know if it's more of a warning than a
certification but --
THE COURT:
But, sir, that's it.
Now do you
want to testify or not? Nothing else is coming in.
MR. COUGHLIN:
Why? Can I put the police report
in evidence?
MR. YOUNG: I object to that.
THE COURT: The police report, they can't even
put it in evidence. You could have cross-examined on the
police report.
MR. COUGHLIN: I can't put the police report in
evidence?
THE COURT: No.
MR. COUGHLIN: I can't?
THE COURT: NO, you can't.
MR. COUGHLIN: That completely contradicts
testimony by all of these witnesses
THE COURT: Well, sir --
MR . COUGHLIN : I'll
THE COURT: that is something you cannot do.
MR. COUGHLIN: It's a business record just --
MR. YOUNG: Your Honor, we've wasted another
five minutes since we -- still don't have a answer whether
he wants to testify or not.
MR. COUGHLIN: You can't put a police report in
evidence?
THE COURT: I just told you you can't. Stop
asking me.
MR. COUGHLIN: All right. Can I testify to what
it says?
THE COURT: No.
MR. COUGHLIN: I'm sorry. I'm not experienced.
THE COURT: Well, yeah, then you should have had
an attorney represent you, sir.
MR. COUGHLIN: Well, he wouldn't have put it in
evidence.
THE COURT: Well, he couldn't. He knows that.
If it's a prior inconsistent statement it can be used for
cross-examination .
MR. COUGHLIN: Well, that's where I'm hamstrung
by the fact that I did get a return (Indiscernible) for
Officer Duralde and I believe the other officers, and I do
have a verbatim indication by you on the record at the 48
minute of it, second audio file on October 22nd that you
were waiving witness fees, not service fees by the
sheriff. You made no mention of service fees there. You
said witness fees. And I reasonably relied upon that.
MR. YOUNG: Your Honor, because Mr. Coughlin is
representing himself, he has the duty of candor to the
Court. This is a complete waste of time and I would ask
that you ask Mr. Coughlin whether he wants to testify or
not, have him give you an answer. If he fails to give you
an answer, hold him in contempt. I have
THE COURT: I'm not going to hold him in
contempt
MR. YOUNG: We will.
THE COURT: I'm just going to conclude the
trial.
MR. YOUNG: However do you want to do it. He's
wasting everyone's time.
THE COURT: Do you want testify or not?
MR. COUGHLIN: I do, Your Honor, but if
THE COURT: Okay. Then take the stand.
MR. COUGHLIN: I'll just preserve for the record
the fact that I feel like --
THE COURT: Take the stand.
MR. COUGHLIN: Okay.
THE COURT: Or we conclude the trial.
MR. YOUNG: For the record, he's (indiscernible)
he just made I'm not coercing him. It's totally his
right --
MR. COUGHLIN: You're asking to put me in jail
again like you did at the (Indiscernible) hearing --
MR. YOUNG: Has nothing to do with whether he
has the right to exercise his right to testify or not
THE COURT: I do not agree with Mr . Young. I
told you if you do not testify we'll conclude the trial.
We're not going to put you in jail for not testifying.
MR. COUGHLIN: I know that, Your Honor --
THE COURT: However, if I convict you you may go
to jail but that's a different story. All right. Please
raise your right hand.
ZACHARY BARKER COUGHLIN,
DIRECT EXAMINATION
THE COURT: Go ahead sit down and proceed, sir.
MR. COUGHLIN: Your Honor, to the extent I'm
testifying that enables me to play videos, should I grab
them?
THE COURT:
I didn't say it enables you to play
videos if you -- first of all, you need to testify as to
what you are proffering because I will give you some
latitude since you're the attorney and the witness. But
you'll need to testify as to something relevant to this
case that's admissible.
MR. COUGHLIN:
Okay.
So the whole kind of
argument is you are saying, Well, we got to get him to
testify
THE COURT:
It's not an argument, sir.
MR. COUGHLIN: By Mr. Young.
THE COURT: I don't care about argument. I
already told you --
THE COURT: if you want to step down, I'm not
going to force you to testify. But once you start, you'll
be subject to cross-examination.
MR. COUGHLIN: Right. But once I start I also
get to adduce -- there is some good that goes along with
things that people might view as bad. I actually welcome
the cross-examination because I don't
THE COURT: I don't want to argue anymore. Are
you going to start or not?
MR. COUGHLIN: Yes, I believe part,
respectfully, Your Honor, I think that means I can bring
up my materials as I'm functioning in a dual role.
Otherwise I'm hamstrung.
THE COURT:
No, I'm not going to read your
materials.
MR. COUGHLIN:
Not read them, bring them up and
implement them --
THE COURT:
Bring them up, put them face down on
top of the table.
If they are admitted in evidence,
you'll be able to testify as to anything that's admitted
in evidence.
. ------- ----
MR. YOUNG: And I may missed it. Was
Mr. Coughlin just sworn as a witness.
THE COURT: Yes, he was .
MR. COUGHLIN: I'm sorry, Your Honor, would it
be possible for me to run out and get a sip of water?
I've just be talking a lot and I'm not --
THE COURT: We will get you some water.
MR. COUGHLIN: Thank you, sir.
THE COURT: Just come up here.
All right. Go ahead, sir.
MR. COUGHLIN: (Indiscernible) my case in chief,
so I'm just trying to confirm that. So I'm asking
myself
THE COURT: Well, you don't have to ask
yourself. You can speak in narrative terms but it's got
to be germane, as I said, and relevant and, further, it
has to be nonobjectionable.
MR. COUGHLIN: Yes, sir. Yes, sir. I
appreciate your allowing me to testify in the narrative.
At my bar hearing they insisted that I do it in a kind of
awkward question and response format with myself.
My recollection of that night are that -- I
don't believe there was a possible fight going on . I
didn't do anything violent towards anyone. In fact, if
I'm able to, I would like to play some videos that
demonstrate that I tried to make the best out of somewhat
of a bad situation and one that I am not proud of
everything I did that night or kind of where I was in my
life or what I did to get there by nobody died, you know.
Nobody did -- somebody did die two months
previously in a tragedy with Stephen Gill over a purse and
I referenced that at the time. I got (Indiscernible) this
Court some, probably legitimate frustration with me and
some of the things that have gone on this year in the
extent to which I have not represented the bar
appropriately especially --
THE COURT:
Well, sir, I can assure you I'm
deciding this case just on the facts of this case.
So not
anything else.
MR. COUGHLIN:
Yes, sir.
And I'm getting to
that, I'm getting to whether or not I have felonious
intent which I believe might be among my strongest
arguments, a felonious intent at the time of the relevant
events in question.
But I would like to get this Econ, it's short,
Your Honor, probably only three minute long and it's just
little clips of -- kind of interesting -- of all the
communications between the dispatchers and the Reno Police
I
Department.
THE COURT: Any objection to the Econ tape?
MR. YOUNG: He can't authenticate it.
THE COURT: Well, I'm going to allow it because
did order that it be produced. The city attorney was
here, indicated that he was going to furnish it.
MR. YOUNG: To be clear, this is the Econ
conversations for the night in question
THE COURT: Just the night in question.
MR. YOUNG: Not a subsequent night.
THE COURT: That's the only thing I'm allowing.
Do you understand that?
MR. COUGHLIN: Yes, sir, yes, sir. And to the
extent there's a, Well, what does it matter.
Someone
might -- Mr. Young might say you already ruled on the
suppression motion, I submit that you --
MR. YOUNG: Your Honor.
MR. COUGHLIN:
-- did leave the door open.
MR. YOUNG:
Argumentative.
He's testifying.
This is for testimony.
THE COURT:
Yes, you are testifying right now,
not arguing.
MR. COUGHLIN:
I'm functioning in a dual role
right now.
THE COURT:
No, no one is objecting to it.
I
said it would be admitted so you don't have to argue.
MR. COUGHLIN: Yes.
THE COURT: Unless it's dealing with a different
night or a different incident.
MR. COUGHLIN: Just to the extent that I need to
cite to you and I believe (Indiscernible) made it where it
was that you indicated that the suppression motion would
not the door was not closed.
THE COURT: I do not want to get into that.
want I to play the tape.
MR. COUGHLIN: But that's where this tape is
relevant, sir.
THE COURT:
I've already allowed it.
You don't
have to argue about relevance.
All right?
MR. COUGHLIN:
But if I won on the suppression
motion it might affect how I proceed with the rest of it.
THE COURT:
You can argue at the conclusion of
the case.
You didn't win -- you won half of the
suppression motion, sir.
You can argue at the conclusion
of the case as to whether you are guilty or innocent -- or
not guilty, I'm sorry.
I'm not going to argue with you.
Play it if you want it.
If not, your time is running out.
MR. COUGHLIN:
Yes, sir .
THE COURT:
I'm not going to waste time --
MR. YOUNG:
Your Honor, has this been marked
I
THE COURT: Let's have it marked then.
(Exhibit ____ was marked for
identification purposes.)
THE COURT: Sir, while you're trying to get it
marked, you can testify to something else .
I heard -- I saw and heard from where I came up
that a corridor along the river from that movie theater on
1st and, I believe, it's Center Street -- no, 1st and
Sierra down there where that movie theater is on the
river. I was down there by that, that kind of plaza by
the bridge, head over to Wingfield park at probably
approximately 11:10 that night.
That was August 20th.
I just had a four and a half year relationship
end in June of that year.
And that would be upsetting to
anyone and I -- it ended a couple of days after she
finally graduated from college and then I subsequently
found out in August, which you might recall because you
sat on the, on the eviction matter that -- and maybe you
could take judicial notice of this because the landlord
testified to it that she had failed to forward -- I give
her my share of the rent each month and things for five
years and she
THE COURT:
I don't know that's relevant to
today but Mr. Young is not objecting.
I
MR . COUGHLIN: If I could just indicate I will
immediately explain how it's relevant to the extent that
that sudden financial upheaval resulted in me not being
able to afford by medications. And I'm probably kind of
not being realistic at this point to the extent I think
still have some privacy in that regard but to whatever
extent the record could later
THE COURT: Sir, we offered you mental health
court in this case which you declined so
MR. COUGHLIN: No, I went over there.
MR . YOUNG: Your Honor, this is not testimony.
MR. COUGHLIN: I would rather use the time
(Indiscernible) --
MR . COUGHLIN:
But I think it goes to intent or
defense.
I mean -- so.
THE COURT:
Well, unfortunately, sir, I've had
you examined twice with respect to your competency.
MR. COUGHLIN:
I don't think I'm arguing --
sorry, sir.
THE COURT:
All right.
MR. COUGHLIN:
I don't know if that's competency
or incapacity or there are different things but
MR. YOUNG:
Your Honor, I would ask that
Mr. Coughlin testify to facts.
That's what we're here
for.
MR. COUGHLIN: Well, going off your medication
is a fact.
MR. YOUNG: I didn't object to that.
MR. COUGHLIN: Not being able to afford
medication is the fact that I'm testifying to.
MR. COUGHLIN: They are psychoactive medications
and I was just briefly asking to the extent if possible
that since I'm not going to testify to it, but if it's
possible to somehow make an in camera later or removed
from the record what medications I'm going to testify to
would appreciate it because there is somewhat of a
prejudicial view in some segments of society about these
medications.
I went off both of my medications at the start
of August due to running out of money and it kind of a --
emotional fallout of about a five-year relationship and
then finding out that she made off with about a two months
rent, now I'm that far behind.
So somewhere I guess maybe I inappropriately
sought to make it up was in my medications and maybe going
on a medication holiday but really I think it was more due
to not having the money.
Quickly I would just say I did attempt to
I
mitigate any negligence attendant to going off those
medications by calling NNAMHS and inquiring as to the
availability of sort of IFP for medications.
But one of the medications is a, it's -- this
might explain some things with regard to some of the
frustrations of having me before you in court, sir, is
that it's medication for attention deficit disorder. Just
quickly I'll indicate some of the frustration that I know
(Indiscernible) has with me is the inability to do what
you're supposed to be doing when you do it and things
bleed over and not coloring in the lines, you know. And
that's hallmark with people with ADD or ADHD.
A lot of
people don't realize some adults do have that.
The other medication (Indiscernible) -- the
medication for ADD was Adderall.
That's medication, if
you go off it suddenly, you can experience some emotional
fallout.
I'm not suggesting that made me steal and I'm
not suggesting I stole that night.
That's not my
contention.
My contention is that I'm innocent.
And I
did not steal.
But earlier when I was referencing some of the
behavior that night I'm not that proud of, I was more
touching on just some of the attitudinal stuff, some of
the lack of -- I guess regard to feelings of others or the
difficulty of being a police officer and the danger that
Just seeing other
attaches to every night doing that job.
people's viewpoints. I think I was more in a very
self-centered place in large part due to going through
some very significant suffering. Those are what anybody
would feel, incident to the end of probably the most
significant paramour-type relationship I've had in my life
and them on top of that the issues attending to going off
two very powerful psychotropics -- I think they are
(Indiscernible) I don't know. But psychological
medications, Wellbutrin which is for major depressive
disorder which I have been diagnosed with and treated with
for a long time by Dr. (Indiscernible) until he died a
couple of year's ago and then currently by Dr. Usar
(phonetic) .
That's -- I've been taking that since I was
17 primarily for major depressive disorder in somewhat of
an off label used for kind of low grade obsessive
compulsive type tendencies.
And then the Adderall which is commonly known as
amphetamine, it for the attention deficit disorder but
also for treatment of resistant depression and some
that's an accepted secondary off label use. Not to get
too far afield on that stuff anymore. But I do think it
goes to -- I've watched Your Honor throughout this trial
and I haven't noticed a lot of regard for my actions that
night from you.
This is not testifying -- he's not testifying to facts.
THE COURT: Correct. The objection will be
sustained.
MR. YOUNG: I've let it go but this is getting
too far.
THE COURT: I can assure you that I haven't made
a determination as to your action on that night at this
point. So go ahead and testify to the facts, sir.
MR. COUGHLIN: All right. And I'll note there
is District Attorney Young steering it back what is
relevant and that's what people with attention deficit
disorder have doing is color in the lines and I appreciate
him doing that because I'll steer back that, go back to
the material facts in issue.
But why I was going in that
kind long soliloquy is that objectionable, boarish,
self-centered, rude behavior is -- might not be admirable
but that doesn't make it having a felonious intent.
There
is a difference.
And I don't believe I had a felonious
intent that night.
MR. YOUNG:
Objection, argumentative.
THE COURT:
Well, I agree that's argumentative.
You'll be able to argue when you're not testifying __
MR. COUGHLIN:
I thought when I was a lawyer I
was always told I was being argumentative.
THE COURT: Well, sir
MR. YOUNG: Also a misdemeanor.
THE COURT: You are arguing instead of
testifying. So tell the us what happened that night.
MR. COUGHLIN: Yes, sir. The only thing is to
the extent and I think this probably (Indiscernible) for
me because this isn't what you guys want to hear but I'll
just note for the record to the extent that I began doing
that, I waived that which you told me I could do which is
revisit the suppression hearing, particularly the probable
cause analysis attendant to there --
THE COURT: I didn't say --
MR. COUGHLIN:
-- not being a possible fight
which is what the D.A. Young and Officer Duralde based
their whole case on.
MR . YOUNG:
Your Honor, I would object.
He's
not testifying to facts.
This is his time -- I don't know
what he doesn't understand.
He passed the bar.
He
testified that he had --
MR. COUGHLIN:
I get it now.
This is not
closing argument; right?
MR. YOUNG:
That he --
MR. YOUNG:
He's not testifying
THE COURT:
Yes, he did --
MR. YOUNG:
Very simple concept, he's
testified
THE COURT: I understand.
MR. YOUNG: --
the factual
(indiscernible)
THE COURT: I think he understands.
MR. YOUNG: I don't think he does.
THE COURT: Well, if he continues, he will be in
contempt of court.
MR. COUGHLIN: Wait.
THE COURT: This is, sir. It's your opportunity
to testify as to the facts and I have yet -- and it's
been --
MR. COUGHLIN: Okay.
THE COURT: over 15, almost 20 minute since
you started testifying and it was a little after four when
we started deciding whether or not you were going to
testify. So now we're at 4:35 and I haven't heard you
testify as to anything factual relevant to this incident
in question.
MR. COUGHLIN: Going off medication is relevant
to intent.
THE COURT: Okay. That may be.
MR. COUGHLIN: Okay. I see what you're getting
I
at. You want the really, really relevant elements of the
crime.
THE COURT:
Well, you've argued them in your
briefs.
MR. COUGHLIN:
And the only reason I -- I feel
like I keep waiving things and I would be waiving my
ability
THE COURT:
Sir, if you don't focus on the
facts, I'll find you in contempt.
All right?
THE COURT:
You don't need talk about waiver.
You need to talk about the facts.
MR. COUGHLIN: Okay. I did not factually
eyewitness any fight or possible fight that night. I
perceived and felt being attacked by a group of youthful
skateboarders. I witnessed myself being rather docile in
compliance with the officers in my interactions with them
as politely as possible asserting at least the notion that
might have some constitutional rights that might prevent
them from asking me -- or demanding an answer from me with
regard to everything they might want to know or searching
every part of my person that they might feel would be
useful in carrying out their duties, or achieving their
objectives however honorable and however much society
depends upon those.
I would like to factually testify that officer
Duralde and I do not believe he did this on purpose,
but he did touch my penis. It was startling. I had
gained a lot of weight in 2012 following I'll call it
the divorce although we weren't married. I was inhaling
candy. People around the courthouse commented on when I
dropped about 40 pounds earlier this year, why I lost a
lot of weight, once I kind of got over the breakup.
Incident to gaining all that weight and my
somewhat indigency or poverty, I wasn't able to go buy a
new wardrobe. I cut notches into my waistband on some of
my underwear to accommodate my increased waistline and I
think that resulted in what Officer Duralde was following
proper procedure and he testified as to overlapping when
doing a (indiscernible) pat-down, training.
THE COURT: Well
MR. COUGHLIN:
I think it resulted in his hand
and this is captured in a pop on the video, his hand going
along my waistline and where he thought he might have
more --
THE COURT:
Mr. Young, correct me if I'm wrong,
did I not rule that the pat-down search __
MR. YOUNG:
You ruled that inadmissible and the
State did not get into that in its case in chief.
THE COURT:
So it was on the search incident
after the arrest; right?
MR. YOUNG:
You excluded after the motion to
suppress any references to the pat-down search and
subsequently when Officer Duralde testified to calling the
phone hearing it vibrate, you excluded all evidence of
Officer Duralde touching with the palm or back of his
hand, Mr. Coughlin's short pocket and feeling the
vibration.
MR. COUGHLIN :
So that has been excluded.
The
State did not get into that.
Mr. Coughlin is now getting
into that on his own.
THE COURT:
And so, sir, I think you are arguing
a dead horse at this point.
I already ruled in your favor
on that. So the question is, whether there was probable
cause to arrest you or not and that is so far as I'm
concerned all the evidence presented to date that
substantiates that but if you have something that I'm
unaware of that you wish to testify to on that, you may do
so.
MR. COUGHLIN: I do, sir. And largely as I
perceived it throughout the first -- Mr. Young's case in
chief was a large basis for that probable cause to conduct
a search -- an arrest and search incident thereto rested
upon an accusation of noncompliance for demeanor issues or
lack of
THE COURT: Sir --
MR. YOUNG: Your Honor
THE COURT: what it was the witnesses who
were present at the time and who told the officer
basically that you had stolen the phone.
MR. YOUNG: Your Honor, can you once again
instruct Mr. Coughlin to testify to the facts, please.
THE COURT: Yes. I'll instruct you once again
to testify as to the facts.
MR. COUGHLIN: I'm trying to testify as to the
fact relative to whether or not I was cooperative or
screaming about someone touching my penis which --
THE COURT: Okay.
Sir, you are not charged with
being uncooperative.
You were charged with the theft of a
cell phone or possession of a stolen cell phone.
MR. COUGHLIN:
Based upon the fruit from a
search that was largely buttressed upon an accusation of
noncompliance or demeanor issues or non
THE COURT:
I totally disagree and we're done
arguing.
MR. COUGHLIN:
Okay.
THE COURT:
So, you need to proceed.
MR. COUGHLIN:
I understand, sir.
If I could
just in fairness to Officer Duralde quickly, I didn't
think he meant to do that.
THE COURT: I don't care if he meant to do it or
not. Go ahead.
MR. COUGHLIN: All right. I did not yell -- I
do not feel I was yelling about him touching any part of
my body that was not appropriate. I mentioned it. It
might have been in a slightly louder voice than normal but
I did not yell that. I did not yell that in some sort
of -- and this is -- I'm testifying as to this to rebut
what I feel was set forth in his testimony and police
reports where it seems as though he attempted to link the
yelling about the inappropriate touching with the getting
close to where he felt the phone was.
I believe I have evidence and can testify
factually as to the extent that you hear the pop of the
waistband when his hand slips into a private area --
MR. YOUNG:
Your Honor, he's not -- again he's
not testifying to fact.
He just said himself, he said, I
believe I could testify to.
This is his chance to
testify.
So he should testify.
THE COURT:
All right.
Go ahead, sir, what's
your testimony?
MR. COUGHLIN:
That when his hand slipped past
my waistband, that that was a natural, legitimate
expression of mine.
It might have contained a bit of
leveraging it, I'll say that, sir. But it wasn't
completely manufactured incident to his
THE COURT: Sir, I'm having is a tough time with
the relevance of this. I've already ruled in your favor
on the motion to suppress so far as it went to the
pat-down search. So the issue, the facts that are in
issue so far as I'm concerned is whether or not you
violated the statute, the NRS.
MR. COUGHLIN: And I go to that because -- and
this is -- one of my criticisms of the suppression motion
was that it --
MR . YOUNG: Your Honor --
MR. COUGHLIN:
-- failed to argue.
MR. YOUNG:
objection.
MR. COUGHLIN:
-- incident to arrest.
MR. YOUNG:
Your Honor, objection.
MR. COUGHLIN:
You can argue that --
MR. YOUNG: Your Honor,
objection.
He's not
testifying.
THE COURT: All right. We're done. I'm going
to have you taken into custody until tomorrow
morning and
then we will continue with this trial.
MR. COUGHLIN:
Sir, can I --
THE COURT:
And by then you'll testify as to
facts.
MR. COUGHLIN:
Sir, could I have one last chance
to do that?
I promise you'll have no problem --
THE COURT:
No, no.
MR. COUGHLIN:
Please, sir.
THE COURT: No.
MR. COUGHLIN:
I haven't
THE COURT: No.
Can you go tomorrow --
MR. COUGHLIN:
I apologize, Your Honor.
THE COURT: Mr. Young?
MR. YOUNG:
Tomorrow morning?
THE COURT: Yes.
MR. YOUNG:
I'll have to move some things around
but I'll get it done.
MR. LESLIE: Your Honor, if I may, it depends on
the time. I've been subpoenaed to a hearing I think at
10:00 a.m. here but I could appear earlier. I would
request 8:30 if the Court --
THE CLERK: He has a motion hearing tomorrow
morning at 10 with Judge Clifton.
MR. YOUNG: Me?
THE CLERK: No, Coughlin.
THE COURT: We'll do 8:30 tomorrow. And can you
let them know to transport him here at 8:30.
THE CLERK: Yes.
MR. YOUNG: I'll be here at 8:30, Your Honor.
THE COURT: All right. And I don't know what to
do, I've given him as much time as we can and then we'll
go from there.
MR. LESLIE: I hope you understand my
position
THE COURT: I'm going to actually I may O.R. him
right now, but let me think about it.
MR. COUGHLIN: Thank you.
THE COURT: Mr. Coughlin, we're back on the
record.
I'm going to release you but you are to appear
here tomorrow at 8:30 and if you want to proceed, you'll
need to testify is to facts in issue.
MR. COUGHLIN:
Yes, sir.
THE COURT:
If you continue to argue, then I'll
put you back in custody.
Understood?
MR. COUGHLIN:
Yes, sir.
THE COURT:
We'll see you tomorrow morning at
8:30. All right.
MR. COUGHLIN:
Yes, sir, will do.
Can I take my
stuff?
THE COURT:
Your stuff is right there.
THE CLERK:
I need exhibits 1, 2 and 4.
I
THE COURT: Exhibits 1, 2 --
THE CLERK: Just the one that was admitted that
had evidence submitted on. These were all marked but
only one admitted was one.
MR. COUGHLIN: Probably shouldn't have them all
jumbled up like that. (Indiscernible).
THE CLERK: The envelope is marked.
MR. COUGHLIN: Exhibit 1 was marked on the CD
itself.
THE CLERK: Well, you did that, but if that's on
the top and what it should say on the CD, I wrote it on
the corner on the envelope right there.
THE COURT: That's Exhibit 4. Exhibit 1 --
THE CLERK: Should just be a CD.
THE COURT: We have two empty ones.
THE CLERK: Bring me that envelope in your left
hand.
MR. COUGHLIN:
I think that one with the red
marking is what --
THE COURT:
Some of those are exhibits?
THE CLERK:
They are all marked but these were
the only ones admitted.
THE COURT: Okay.
THE CLERK:
So I'm just taking control of the
ones that were admitted.
THE COURT: Okay. I'm taking these, the file.
(Conclusion of JAVS Audio.)
STATE OF NEV'ADA,
) ss.
COUNTY OF WASHOE
I, B. JOHNSON, do hereby state:
That I was NOT present in Department 2 of the
above-entitled court on Monday, November 19, 2012; that
only transcribed the proceedings had and the testimony
given upon the matter captioned within from the JAVS
electronically recorded audio media;
That the foregoing transcript, consisting of
pages 1 through 272, is a full, true and correct
transcription, to the best of my ability, of said JAVS
electronically recorded audio media.
DATED: At Reno, Nevada, this 27th day of
<..... -----------
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