Transcripts - March 20, 2008
1 BEFORE THE WEBSTER COUNTY CIVIL SERVICE COMMISSION
2 CURTIS W. RUBY, )
)
3 Appellant, ) TRANSCRIPT
) OF
4 vs. ) PROCEEDINGS
)
5 WEBSTER COUNTY ) VOLUME II
SHERIFF'S DEPARTMENT, )
6 )
Defendant. )
7 ------------------------)
8 The above-entitled matter came on for
hearing before the Webster County Civil Service
9 Commission, commencing at 8:40 a.m., March 20,
2008, at the Law Enforcement Center, 702 First
10 Avenue South, Fort Dodge, Iowa.
11 Commission Members: JANECE VALENTINE
DARREN DRISCOLL
12 BENNETT O'CONNOR
13 A P P E A R A N C E S
14 Plaintiff by: ROXANNE BARTON CONLIN
Attorney at Law
15 Roxanne Conlin & Associates
319 Seventh Street
16 Suite 600
Des Moines, IA 50309
17 (515) 283-1111
18 Defendant by: BRIDGET R. PENICK
Attorney at Law
19 Dickinson, Mackaman, Tyler &
Hagen
20 699 Walnut Street
Suite 1600
21 Des Moines, IA 50309
(515) 244-2600
22
23
24 Reported by: Nancy S. Warren, C.S.R.
25
268
1 I N D E X
2 BRIAN MICKELSON
3 Examination by: Page
4 Ms. Conlin 271, 340, 352, 361
Ms. Penick 332, 349
5 Ms. Valentine 357
Mr. Driscoll 358
6
LUKE FLEENER
7
Ms. Penick 363, 443
8 Ms. Conlin 402
9 MICHAEL HALLIGAN
10 Ms. Penick 445, 513
Ms. Conlin 469
11
MIKE KENYON
12
Ms. Penick 516
13 Ms. Conlin 535
14 DARREN ROBINSON
15 Ms. Penick 541, 560
Ms. Conlin 554, 566
16
KEVIN KRUSE
17
Ms. Penick 567, 586
18 Ms. Conlin 577
19 JASON BAHR
20 Ms. Penick 588
Ms. Conlin 598
21
DELBERT M. SMITH
22
Ms. Penick 610
23 Ms. Conlin 618
24 JIM O'BRIEN
25 MS. PENICK 622
269
1 Exhibit Marked/Offered/Admitted
2 11 270 270
25 323 323
3 29 270 271
31 423 425 425
4 32 439 439
507 331 331
5 512 314 314
514 271 271
6 517 271 271
525 324 324
7 526 413 413
533 475 475
8 535 290 290
9 Y 624 625
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
270
1 P R O C E E D I N G S
2 MS. VALENTINE: Thank you for
3 agreeing to a little earlier start time, and our
4 apologies for being a little late in dealing
5 with a subpoena.
6 If I recall correctly, we were
7 in the process of cross-examination of
8 Sheriff Mickelson, so continue.
9 MS. CONLIN: But I believe you
10 mentioned that there were exhibits.
11 MS. VALENTINE: Yes, thank you.
12 See, I told you I would forget.
13 As I recall, you had discussed
14 Exhibit 11. Are you offering Exhibit 11?
15 MS. CONLIN: I am.
16 MS. VALENTINE: Any objection?
17 MS. PENICK: No.
18 MS. VALENTINE: Exhibit 11 is
19 received.
20 There was also mention to
21 Exhibit 29. Offering 29?
22 MS. CONLIN: Yes.
23 MS. VALENTINE: Any objection?
24 MS. PENICK: No.
25 MS. VALENTINE: And Exhibit 514,
271
1 are you offering 514?
2 MS. CONLIN: I am.
3 MS. VALENTINE: Any objection?
4 It is the fax from Eva Christiansen.
5 MS. PENICK: No.
6 MS. VALENTINE: 514 is received.
7 With some other stuff, but that's the front page
8 of it.
9 MS. PENICK: It's this
10 (indicating).
11 MS. VALENTINE: And then 517,
12 which part of 517 has already been admitted,
13 but 517 includes the cover sheet.
14 MS. PENICK: No objection.
15 MS. VALENTINE: Okay. All of
16 those exhibits will be received then.
17 You may continue.
18 MS. CONLIN: Thank you.
19 CROSS-EXAMINATION (CONT'D.)
20 BY MS. CONLIN:
21 Q. Good morning, Sheriff.
22 A. Good morning.
23 Q. Yesterday we were discussing the
24 selection of Jim O'Brien, and I want to make
25 clear that you selected him effective
272
1 January 23rd, 2006?
2 A. I am not exactly on the date, but if
3 you looked it up, I would say that's true.
4 Q. Okay.
5 The board of supervisors'
6 minutes, which is a public record --
7 A. Okay.
8 Q. -- indicates that's the effective date.
9 A. Yes.
10 Q. All right.
11 And, then, that's after his
12 brother Chris stepped down?
13 A. Correct.
14 Q. And you were the person who made the
15 selection?
16 A. Correct.
17 Q. We talked also yesterday about the
18 bulletproof vest that someone suggested you
19 wear. When the meeting we are discussing
20 occurred, did you disarm him?
21 A. No.
22 Q. You could have?
23 A. I suppose.
24 Q. In fact, you never, ever took his
25 weapon away until you fired him on
273
1 December 13th?
2 A. No.
3 Q. Let's talk a little bit about your
4 expectations.
5 Were you aware -- Let me withdraw
6 that and begin again.
7 Do you have any notes or
8 documents on the phone calls that you or O'Brien
9 made to Eva Christiansen?
10 A. I do not. Jim might, but I do not.
11 Q. All right.
12 Did you ever speak with her
13 directly?
14 A. Not without Jim present. We usually
15 spoke to her on speakerphone.
16 Q. All right.
17 When there was a -- notice of
18 violation 13 talks about the follow-up that was,
19 according to this, to be arranged, and I'm
20 wondering if it was Chief Deputy O'Brien that
21 you told to call Curt Ruby about following up
22 with the fitness-for-duty examination.
23 A. No. I believe he did that on his own.
24 Q. All right.
25 He made the call?
274
1 A. Yes.
2 Q. Or calls, as the case may be.
3 Did you ever give Curt Ruby a
4 copy of Eva Christiansen's report, which is
5 Exhibit G?
6 A. I did not, no.
7 Q. Let's look now at 13, which is the
8 issue of the follow-up. Did you ever have any
9 further meeting with Sergeant Ruby on the
10 fitness-for-duty examination?
11 A. No, I don't believe I did.
12 Q. Did you ask -- Did you indicate that
13 such a meeting should be arranged?
14 A. I don't remember if I talked to
15 Chief Deputy O'Brien about that or not.
16 Q. We'll move now to the domestic violence
17 issues, number 14, and that is the July 7th one
18 involving Mrs. Carlson.
19 A. Okay.
20 Q. You have no notes of that?
21 A. I didn't take any notes. Well, I
22 took -- Yeah. I wrote something down, but I
23 don't have -- They're here somewhere, that I
24 wrote down what she said.
25 Q. As a part of the official report?
275
1 A. Right.
2 Q. Okay, I have that.
3 Anything else?
4 A. No.
5 Q. And as I recall, you never discussed
6 this domestic violence call with Sergeant Ruby?
7 A. No.
8 Q. In Chief Deputy O'Brien's Exhibit D, he
9 says that Sergeant Ruby never made an attempt to
10 speak with the offender who was inside the
11 residence at the time, and the offender himself
12 lodged a complaint with you for Sergeant Ruby's
13 failure to make contact with him. Do you recall
14 that?
15 A. He said something. He was upset why he
16 didn't talk to him, I guess, yeah. He did say
17 something to me about that.
18 Q. Are you sure?
19 A. I'm pretty sure he said something like
20 that, yes.
21 Q. Well, you --
22 A. I didn't have it written down, but --
23 Q. Well, let's turn to Exhibit R, which is
24 the official police report, and that does have
25 your material in it, Sheriff, and it is at
276
1 page 336 and 337, and take a look. I think
2 those are the only two that are yours, so let's
3 talk about that.
4 A. Okay.
5 Q. I don't see anything about his making
6 any complaint to you. Would you have noted
7 that?
8 A. I probably would have, but I don't --
9 It's vague, and I don't remember a lot about --
10 about his saying that, but I want to say that
11 later on sometime he mentioned he wished he
12 would have come and talked to him too, but I
13 didn't write it down.
14 Q. All right.
15 Let's look at Exhibit N, which is
16 236.12 of the Iowa Code. Have you got it?
17 A. Yes.
18 Q. If you'll look at subsection c, you'll
19 see that you are required to provide an abused
20 person with immediate and adequate notice of the
21 person's rights.
22 A. Correct.
23 Q. And it's supposed to be a statement
24 written in English and Spanish, and you are
25 supposed to ask the person to read the card, and
277
1 ask the person whether or not he or she
2 understands the following rights, and there
3 follows a whole paragraph, some numbered, of
4 things that the card is supposed to contain.
5 A. Correct.
6 Q. Sheriff, do you have such cards?
7 A. Yes.
8 Q. Do you provide them --
9 A. Yes.
10 Q. -- to all the deputies?
11 A. Yes.
12 Q. And when did you start to do that?
13 A. I think we've been doing it for as long
14 as I can remember.
15 Q. How are they provided?
16 A. We've got them in our -- in our office,
17 that they can pick them up anytime when they run
18 low.
19 Q. Where are they located?
20 A. Right now, I'm not 100 percent sure.
21 I'd have to ask Chief Deputy Jim.
22 Q. Let's move to the second domestic --
23 and as I understand it, this note -- number 14
24 is, in your opinion, sufficient by itself to
25 require discharge as a discipline; correct?
278
1 A. It could be, yes.
2 Q. All right.
3 Would that be also true of
4 paragraphs 15 and 16, which are the others
5 dealing with this issue?
6 A. Yes.
7 Q. You never told Sergeant Ruby that he
8 could be fired?
9 A. No, I did not.
10 MS. PENICK: I need a moment to
11 confer, if that's okay.
12 (An off-the-record discussion
13 was held.)
14 MS. VALENTINE: You may continue.
15 MS. CONLIN: Thank you.
16 Q. While we're still on paragraph 14, in
17 the charges, your Exhibit C,nothing happens
18 between October 20th of 2006 until July 25th
19 of 2007. Do you see that?
20 A. Okay. State that again.
21 Q. Sure.
22 The charges -- There's a charge
23 number 13 that is October 20th, I think.
24 A. Yes.
25 Q. Okay.
279
1 The next one, 14, is July 25th;
2 correct?
3 A. Mine says July 7th, but --
4 Q. Well, that's because that's a typo.
5 A. And you say it was July --
6 Q. 25th. Oh, those are our originals.
7 That's all right. Those are not the originals,
8 are they?
9 MS. PENICK: That is the
10 original.
11 Q. Oh, no, don't.
12 A. Okay.
13 Q. So July 25th is the actual date. We
14 agree with that?
15 A. Okay.
16 Q. So that's about nine, ten months;
17 correct?
18 A. Correct.
19 Q. And nothing happened in those nine or
20 ten months that resulted in a charge of
21 misconduct on Sergeant Ruby; correct?
22 A. Yes.
23 Q. When you made the charge with respect
24 to Mrs. Carlson, did you take into account the
25 fact that she told you that she did not want him
280
1 arrested?
2 A. I think she told me that she didn't
3 know what to do.
4 Q. Well, let me see.
5 A. That's what I'm recollecting anyway.
6 Q. Let's look at R again and see. That's
7 not quite my recollection.
8 The bottom of 336, turn to 336 --
9 A. Yes.
10 Q. -- which is your handwritten note.
11 Beginning at the third line from the bottom at
12 the end, "she said" --
13 A. Yes, there you go.
14 Q. Are you there?
15 A. Yeah.
16 Q. "She said she really didn't want to
17 push the issue with the deputy's last night, but
18 now wishes she had."
19 A. Right.
20 Q. Do you agree that the victim himself or
21 herself should have some say in what happens
22 with his or her life?
23 A. Depends on the safety, I guess, of the
24 victim.
25 Q. It's true, is it not, that Victor
281
1 Carlson, that -- Are there any other domestic
2 violence charges against Victor Carlson?
3 A. Not that I'm aware of.
4 Q. Now, let's do Alicia Wardlow. You
5 indicated on your direct examination with
6 respect to paragraph 15 -- that is the Alicia
7 Wardlow matter -- that you had reviewed the
8 police report at some time later; correct?
9 A. Yes. I believe so, yes.
10 Q. You were not aware of it at the time?
11 A. No.
12 Q. Didn't discuss it with Sergeant Ruby?
13 A. No.
14 Q. Didn't tell him he could be fired for
15 it?
16 A. No.
17 Q. Didn't try to correct the behavior that
18 you saw as wrong?
19 A. No.
20 Q. When did you review this?
21 A. I don't remember. It couldn't have
22 been too much after it was brought to my
23 attention.
24 Q. Who brought it to your attention?
25 A. I believe it was -- I believe it was
282
1 Chief Deputy O'Brien. There was a gentleman
2 that came in and wanted to write a statement
3 concerning this, and I asked what was going on,
4 and then they kind of gave me a heads-up.
5 Q. Well, we know when that was because
6 we've got the statement, and it's dated.
7 A. Okay.
8 Q. Again, do you believe that the victim
9 has the right to have a say in whether or not
10 her assailant is arrested?
11 A. And, again, it depends on the
12 circumstances. If I believe that that person
13 was assaulted, I would say no.
14 Q. That's your understanding of the law?
15 A. Yes. If there was bodily injury, I
16 believe that would -- I believe I would say no.
17 Q. The charge here was written by -- it's
18 in the handwriting of Sergeant Fleener. Did you
19 ever discipline Sergeant Fleener for this?
20 A. No, I did not.
21 Q. Exhibit 526, which you don't -- I don't
22 think you have that up there. You may, but
23 don't bother to look for it. That is the
24 police -- or the court file for the Wardlow
25 case. Have you ever seen that before?
283
1 A. No.
2 Q. Move to 16, and that is the Tammie
3 Chase matter. Were you directly involved in
4 that?
5 A. The only involvement I was was later
6 on, attempting to locate the -- the individual
7 that assaulted the victim.
8 Q. Okay.
9 That would be four, five o'clock
10 in the afternoon that same day?
11 A. Yeah, around five o'clock. Yes.
12 Q. And Sergeant Ruby was working six to
13 two on this day; correct?
14 A. Correct.
15 Q. All right.
16 And we've got a big bunch of
17 documents with this. When you said that you
18 were involved in trying to locate him --
19 A. Yes.
20 Q. -- were you part of the --
21 A. Search of the house?
22 Q. Yes.
23 A. Yes.
24 Q. And were you there when he was arrested
25 on Brushy Creek Road?
284
1 A. No. I was still in Duncombe looking.
2 Q. I beg your pardon?
3 A. I was still in the town of Duncombe
4 looking.
5 Q. All right.
6 And as I understand your direct
7 testimony, you thought that what Sergeant Ruby
8 should have done was go to the hospital and
9 check on her; correct?
10 A. Yeah. Taken an incident report, given
11 her her rights, and taken some pictures, and
12 basically make sure that she's safe.
13 Q. All that happened later on in the day,
14 and Delbert Smith did that; correct?
15 A. After she got back to her house, yes.
16 Q. All right.
17 A. I don't know what time.
18 Q. Was she with somebody at the hospital?
19 A. I can't tell you. I don't know.
20 Q. Have you reviewed this report recently?
21 A. No.
22 Q. When the offender was arrested, was --
23 What was he doing?
24 A. I believe he was in his car.
25 Q. Well, was he looking for something or
285
1 someone?
2 A. I couldn't tell you.
3 Q. Do you know when she got out of the
4 hospital?
5 A. That I don't know either.
6 Q. By the time -- By after two, of course,
7 Sergeant Ruby would not be there; correct?
8 A. No.
9 Q. He never met Tammie Chase, as far as
10 you know?
11 A. As far as I know, no.
12 Q. And we don't have any notes or
13 documents or tape recordings about this
14 situation; right?
15 A. No.
16 Q. And as I understand it, the issue here
17 is that Sergeant Ruby did not go to the hospital
18 and conduct an investigation and file a
19 complaint?
20 A. Correct.
21 Q. Do you know why Sergeant Ruby was sent
22 to Duncombe?
23 A. I don't because I didn't -- I wasn't
24 privy to the conversation between him and
25 Lieutenant Stubbs.
286
1 Q. Do you know that he was sent to check
2 on the welfare of Mr. Chase?
3 A. I didn't know that.
4 Q. Did you know that he was -- that the
5 person who called to ask that her husband would
6 be checked on was, in fact, Mrs. Chase?
7 A. I couldn't tell you. I didn't hear
8 that, no.
9 Q. Do you know whether or not Curt told
10 Delbert Smith that an assault had occurred?
11 A. I can't say. I don't know. I was told
12 he didn't, but I can't say for sure.
13 Q. Who told you that?
14 A. I believe Jim O'Brien.
15 Q. Did you talk directly yourself to
16 Delbert Smith about this ever?
17 A. No, I did not.
18 Q. And this -- this too, number 16, is one
19 that he could have been discharged with just by
20 itself?
21 A. Probably, right.
22 Q. Next is the October 9th incident, and
23 that is that he had a spotlight on his patrol
24 car that he got repaired without prior approval.
25 Is that it?
287
1 A. Correct.
2 Q. What do you personally know about that
3 situation, if anything?
4 A. I don't really know anything about it
5 other than what Jim O'Brien told me.
6 Q. Did he tell you that, in fact, the
7 amount at issue was $310?
8 A. He might have. I couldn't tell you for
9 sure.
10 Q. Did you know whether or not he had, in
11 fact, notified Chief Deputy O'Brien through his
12 activity log?
13 A. No, I did not know that.
14 Q. One would want to get the spotlight
15 repaired as soon as it was broken; right?
16 A. Yes.
17 Q. It's important to have a squad car in
18 good working order?
19 A. I agree.
20 Q. All right.
21 If you knew about it, I assume
22 that you would authorize him to get it repaired.
23 A. Correct.
24 Q. All right.
25 Here is Defendant's Exhibit P.
288
1 Would you look in your book? That's the
2 invoice.
3 A. Yes.
4 Q. I'm just curious about this. It
5 says -- have you turn to the second page. It
6 says that you were the contact person for this
7 bill.
8 A. They might have sent the bill to me,
9 but I never -- I don't usually get the bills.
10 They come to Jim O'Brien, and then I look them
11 over, and I sign them.
12 Q. All right.
13 You never asked Sergeant Ruby
14 about this?
15 A. No, I did not.
16 Q. Never told him he could be disciplined?
17 A. No, I did not.
18 Q. The next one is on November 13th of
19 2007, and that is the suicide call. Did you
20 have any direct involvement in that situation?
21 A. No, I did not.
22 Q. You're relying on the report that you
23 got from Jim O'Brien?
24 A. Yes.
25 Q. Who was involved in that situation?
289
1 A. I believe that was Sergeant Ruby and
2 Officer Richardson, and I think Officer Fleener,
3 and then Chief Deputy O'Brien.
4 Q. Okay.
5 Fleener and who else?
6 A. Richardson.
7 Q. Okay.
8 A. And then Curt and Jim.
9 Q. Okay, all right.
10 Again, you never talked to Curt
11 about this?
12 A. No, I did not.
13 Q. Had you decided to fire him by this
14 time?
15 A. No.
16 Well, I don't think so. I
17 don't -- I don't know what time. I doubt it.
18 Q. Again, no discipline?
19 A. No.
20 Q. Never talked to him about it?
21 A. No.
22 Q. Never asked him for his side of the
23 story?
24 A. No.
25 Q. Do you know what happened to the person
290
1 who was at risk for suicide?
2 A. Don't remember what happened.
3 Q. We were provided Exhibit 535 yesterday,
4 and those are the activity sheets for
5 Sergeant Ruby and Sergeant Richardson, and we
6 were not provided with Luke Fleener's activity
7 report, but it would probably also show, or
8 should show that he was at the suicide?
9 A. It should, yes.
10 MS. CONLIN: We would offer
11 Exhibit 535.
12 MS. VALENTINE: Any objection?
13 MS. PENICK: No.
14 MS. VALENTINE: Exhibit 535 is
15 admitted.
16 Q. Did you tell me that the chief deputy
17 was there?
18 A. Yes.
19 Q. Does the chief deputy do activity logs?
20 A. No.
21 Q. How is his time accounted for?
22 A. It's just getting -- He's there every
23 day and getting his work done. That's how his
24 time is accounted for, I guess.
25 Q. 19 is with respect to November 15th,
291
1 and that is your second requirement that he
2 undergo a fitness-for-duty examination; right?
3 A. Right.
4 Q. All right.
5 And did you take anyone in the
6 room with you besides Jim O'Brien and Curt Ruby?
7 A. I don't remember. That one, I guess,
8 is on tape, so --
9 Q. All right.
10 And he was told it was a
11 follow-up examination; correct?
12 A. Correct.
13 Q. Do you know whether, in fact, that was
14 true?
15 A. Yes. I believe it was talking -- end
16 up talking to Dr. Eva. It was -- That's what
17 she was recommending.
18 Q. She was recommending?
19 A. I think she said something like that
20 when we discussed with her.
21 Q. Oh, you called her?
22 A. Yes.
23 Q. And when you called her, what did you
24 tell her?
25 A. Well, just as our concerns that -- and
292
1 if I -- There's some things I can't say that was
2 on the other report, so --
3 MS. PENICK: Can we just make
4 clear, I understand we don't want testimony
5 about what her conclusions were in the report,
6 but discussions and things that were discussed
7 between you and her certainly are okay, aren't
8 they?
9 MS. VALENTINE: I think it just
10 depends on the nature of what was discussed.
11 So if you provided information
12 beyond what's in this record, I think that
13 that's fair game, unless you would be violating
14 somebody else's privacy concerns.
15 A. Well, basically, what I would be saying
16 is what -- I don't think you want to hear. I
17 mean, I think I might be violating his -- if I
18 discuss this too far, I mean, from our
19 discussions that we had with her.
20 Q. Okay.
21 A. Because there's a reason why, and if I
22 said the reason, then it's something that has to
23 do with the report.
24 Q. All right.
25 MS. VALENTINE: Maybe you can
293
1 rephrase the question.
2 MS. CONLIN: I'll try to do that.
3 MS. VALENTINE: Okay.
4 Q. This meeting of November 15th took
5 place 13 months before the -- after the
6 September of 2006 fitness-for-duty examination;
7 correct?
8 A. Yes.
9 Q. Did you anticipate that Curt Ruby would
10 be taking additional tests, having additional
11 testing done?
12 A. I didn't probably anticipate that, no.
13 Q. All right.
14 What was the trigger for this
15 fitness-for-duty examination or requirement?
16 A. I guess it was the items -- A lot of it
17 had to do with the items that we discussed and
18 the recurrence of the -- recurrence of the
19 things that I, again, don't -- When I discussed
20 it with her, I discussed it with some of the
21 things that she had mentioned in that report
22 that I really don't want to say now.
23 Q. Well, if we look at the material, I
24 think that we will find that in terms of the --
25 what had happened immediately prior that we --
294
1 that's charged conduct -- and let's see.
2 The one immediately before he was
3 sent to the fitness-for-duty examination was the
4 possible suicide patient.
5 A. Okay.
6 Q. And what is alleged with respect to
7 that is indifference and disrespect; correct?
8 A. Yes.
9 Q. And there's no indication that he was
10 angry or hostile or anything like that; correct?
11 A. That -- In that instance, no.
12 Q. All right.
13 Well, and the one before that has
14 to do with the spotlight. You think that
15 spotlight thing would justify a fitness-for-duty
16 examination?
17 A. No. I think we did -- I think we ended
18 up discussing with the county attorney shortly
19 after August 8th about what our options were, or
20 we needed to do.
21 Q. All right.
22 Well, I think you told me that
23 you went to him, and he wouldn't give you any
24 advice; right?
25 A. Correct.
295
1 Q. All right.
2 And then before that we have the
3 three domestic violence incidents, so we have a
4 July 7th, an August 8th, and an October 4th --
5 actually, July 25th, August 6th, and
6 October 4th, and none of those -- none of those
7 have anything to do with his being angry or
8 hostile or disrespectful or insubordinate; right?
9 A. None of those do, no.
10 Q. All right.
11 Well, we're clear back to July,
12 and as far as the charging document indicates,
13 the -- we just have two things, and one is the
14 fitness -- or one is the spotlight, and the
15 other is the November 13th incident; correct?
16 A. Correct.
17 Q. And did it take a long time to schedule
18 this second fitness-for-duty examination?
19 A. Yeah, probably did. There was things
20 that she couldn't do and she had to get fit into
21 her schedule, and we had things going, and,
22 yeah, it just -- but that's -- again, was set up
23 by Chief Deputy O'Brien.
24 Q. All right.
25 Do you recall how Sergeant Ruby
296
1 was notified of this requirement that he do
2 another fitness-for-duty examination?
3 A. Just in our office.
4 Q. Again, he had his sidearm?
5 A. Yes.
6 Q. All right.
7 You weren't wearing any
8 bulletproof vest?
9 A. No.
10 Q. And in your direct examination, I
11 believe you indicated there were ongoing
12 complaints about his attitude and behavior.
13 A. Yes.
14 Q. From whom?
15 A. From other deputies.
16 Q. Who?
17 A. I already mentioned Mr. Halligan, and
18 then other ones have contacted Jim O'Brien, so
19 that's -- It was numerous ones. You can ask Jim
20 O'Brien.
21 Q. All right.
22 A. There was also officers in the Fort
23 Dodge Police Department. We've already
24 discussed those. Again, Mr. Lizer, Mr. Thode,
25 Officer Thode, Officer Quentin Nelson. I don't
297
1 know how many others.
2 Q. We have no documentation about these
3 alleged communications; right?
4 A. No.
5 Q. No notes, no videotapes?
6 A. No.
7 Q. No nothing?
8 A. No.
9 Q. And we know, of course, you didn't talk
10 to Curt to get his side of whatever story you're
11 hearing?
12 A. No.
13 Q. And there's no charge even --
14 A. No.
15 Q. -- with respect to this?
16 A. No.
17 Q. In the course of your conversation with
18 Mr. Ruby -- Now, this was that voice-activated
19 tape, the audio/videotape system?
20 A. Yes.
21 Q. And we are going to get that tape?
22 A. Yes.
23 Q. And do we know when that might happen?
24 MS. PENICK: This is the one
25 where we've got video. The audio, we're trying
298
1 to get it to come out.
2 MS. CONLIN: All right.
3 Q. Well, let me ask you this: Do you
4 recall him saying -- you said to him that you
5 did not like his attitude?
6 A. I don't remember.
7 Q. And one of your concerns was that he
8 was avoiding you?
9 A. I could have said that.
10 Q. Was he avoiding you?
11 A. Yeah.
12 Q. Might that be because he didn't want to
13 get in any trouble with you?
14 A. He shouldn't have to worry about that.
15 Q. I agree.
16 Might it have been because he
17 didn't want to get in any trouble with you?
18 A. I suppose he could have thought that.
19 Q. All right.
20 And did you say to him, "I don't
21 know why you are mad at me"?
22 A. We probably did.
23 Q. And did you mention the letter that he
24 sent after the election congratulating you?
25 A. I mentioned the letter, yes.
299
1 Q. Do you recall that he offered to take a
2 lie detector test --
3 A. Yes.
4 Q. -- as long as the complaining person
5 would take one also?
6 A. Yes.
7 Q. Who was the complaining person?
8 A. I don't remember.
9 Q. It's not written down anyplace?
10 A. Complaining person on?
11 Q. That triggered this fitness-for-duty
12 examination.
13 A. I don't know if there was any one
14 complaining person that triggered that.
15 Q. All right.
16 Did he tell you that he had not
17 had any conflict with anybody, not coworkers or
18 not citizens?
19 A. He might have.
20 Q. All right.
21 And did he also say that he felt
22 it was in his best interest not to say too much
23 at that meeting?
24 A. I don't remember. He might have said
25 that too.
300
1 Q. All right.
2 And that -- and you told him that
3 this new fitness-for-duty examination was part
4 of the follow-up from last year?
5 A. I could have said that, yes.
6 Q. Did he tell you that he was going to
7 talk to his attorney?
8 A. I don't recollect. He could have.
9 Q. Did he tell you that he felt this was a
10 political ploy?
11 A. He might have said that too, yes.
12 Q. And that you were out to discredit him?
13 A. That's possible. Yeah, I think he said
14 that.
15 Q. And that you were worried about losing
16 to him?
17 A. He might have said that. I don't know.
18 Q. Well, do you recall that he -- that you
19 said to him that it was -- and this -- I'm not
20 giving exact quotes because I don't have exact
21 quotes, but did you tell him it was a hard job?
22 A. I might have said it's a difficult job.
23 Q. Did you tell him you did not think that
24 he would be able to do it?
25 A. I don't think I said that.
301
1 Q. Well, did he say to you in response,
2 "It might be a good idea for you to step down
3 and let me take over"?
4 A. I think he said something about
5 stepping down. We might -- We should have all
6 that on tape.
7 Q. Here's our problem, Sheriff: We don't
8 have any audio on the tape, and I don't read
9 lips, so --
10 A. Well, I think they're working on that,
11 to get the audio. They're getting upgraded on
12 the audio.
13 Q. Well, in case we don't get it, let's
14 see what you remember.
15 A. Okay.
16 Q. Did you say, "I will do anything to see
17 that you don't get into office"?
18 A. Did I say that?
19 Q. Yes.
20 A. Absolutely not.
21 Q. Did you glare at him and raise your
22 voice?
23 A. Absolutely not.
24 Q. Did Chief Deputy O'Brien read to him
25 from the psychological report of Eva
302
1 Christiansen that is Exhibit G?
2 A. I don't recollect that.
3 Q. He agreed that he would go to that?
4 A. Yes, I believe he did.
5 Q. And he did go to that?
6 A. Yes.
7 Q. And the complaint that you have about
8 this is not that he said he wouldn't go, but,
9 rather, that he was insolent and disrespectful?
10 A. Correct.
11 Q. How do you define insolent?
12 A. Rude, not respecting of the -- of the
13 office. The gestures and the staring, all of
14 that stuff would be considered insolent and
15 disrespectful, and that should come out on the
16 tape.
17 Q. Can we agree that insolent is a
18 subjective word and depends on the perception of
19 the person to whom it's directed?
20 A. I suppose.
21 Q. And that would also be true of
22 disrespectful?
23 A. Correct.
24 Q. The next one is, on November 15th,
25 while retrieving a videotape, Sergeant Ruby
303
1 informed O'Brien that his in-car camera hadn't
2 been working properly.
3 Do you recall that?
4 A. I wasn't involved with that.
5 Q. Who is in charge of the in-car camera
6 tapes?
7 A. The officers are to have their tapes,
8 but the detectives and Jim O'Brien take care of
9 the ones that are -- come out of the cars.
10 Q. Okay. I'm afraid I'm not
11 understanding, perhaps because I'm not familiar
12 with the procedure.
13 You say that the deputies take
14 care of their tapes?
15 A. Inside the car, yes. They have the
16 tapes in the car. They have an extra one or two
17 in the car with them, and then when they're done
18 with them, they go to -- I believe they go to
19 Jim.
20 Q. Okay, all right. Now I understand.
21 Blank tapes they've got in the
22 car?
23 A. Correct.
24 Q. After there is stuff on the tapes, they
25 give it to Jim O'Brien?
304
1 A. Correct.
2 Q. And he's supposed to keep them safe?
3 A. Correct.
4 Q. Do you know how long he's supposed to
5 keep them for?
6 A. I don't know how long he keeps them.
7 Q. Have there been some problems with
8 these tapes?
9 A. Not that I'm aware of.
10 Q. All right.
11 Do you know anything about this
12 system that's used?
13 A. To record the tapes?
14 Q. No. Yeah. You know, like is it -- is
15 there a brand name, anything like that?
16 A. There is. I've got one in my car. I
17 can't tell you what brand name it is.
18 Q. All right.
19 How long has this tape system
20 been in effect?
21 A. That's something you'll probably have
22 to ask Chief Deputy O'Brien.
23 Q. Before you were sheriff, did you have
24 such a thing in your car?
25 A. No.
305
1 Q. So the whole thing started after you
2 became the sheriff?
3 A. Yes.
4 Q. If there was something actually wrong
5 with this taping system, you would have to get
6 it repaired; correct?
7 A. Correct.
8 Q. And Officer Ruby, like all other
9 deputies, they use the same squad car; correct?
10 A. Yes.
11 Q. And that squad car's video system was
12 never repaired; correct?
13 A. I can't tell you that. I don't know.
14 Q. Well, there would be a bill for it?
15 A. Yeah. I still couldn't tell you
16 whether it was repaired. I don't know.
17 Q. Okay.
18 And you didn't check?
19 A. No.
20 Q. 502 is the --
21 MS. PENICK: It's already been
22 admitted.
23 MS. CONLIN: Oh.
24 Q. On the second page, it says that,
25 "Recorded tapes will be maintained for at
306
1 least 6 months."
2 Do you see that?
3 A. Yes.
4 Q. Where would the -- If there was
5 something wrong with the videotaping equipment,
6 where would it get repaired, do you know?
7 A. I believe the people that sold it would
8 have to send some repair person to look at it.
9 Q. Somebody comes here rather than taking
10 the car there?
11 A. Correct.
12 Q. Has anybody ever come here, do you
13 know?
14 A. I don't know.
15 Q. The next incident is number 21, on
16 November 27th, and that is this unnecessary
17 remark at the top of his activity log; right?
18 A. Right.
19 Q. All right.
20 And that unnecessary remark,
21 which is Defendant's Exhibit Q -- are you there,
22 Q?
23 A. Yes, I've seen it.
24 Q. -- that is -- What he says here is,
25 "Note: Used personal cell phone today multiple
307
1 times to enhance job performance."
2 What in the world do you think he
3 meant by that?
4 A. Just what he said.
5 Q. What makes that a chargeable offense?
6 A. You'll have to ask Chief Deputy O'Brien.
7 Q. Do you notice that in connection
8 with 21 there are not any general orders that he
9 violated?
10 A. Right.
11 Q. And you recall that we discussed
12 yesterday that anytime you -- you make -- charge
13 somebody with misconduct, you have to say what
14 general order they violated?
15 A. I think you said that, yes.
16 Q. Well, I didn't say that. Your general
17 order says that.
18 A. Okay.
19 Q. Right?
20 A. Okay.
21 Q. Do you remember that?
22 A. I'll agree with you.
23 Q. All right.
24 Never took it up with him; right?
25 A. No.
308
1 Q. And this is the last noted specific
2 charge before his termination; correct?
3 A. Evidently, yes.
4 Q. The next one is 22, and that is a
5 general one. Can you provide me any specifics
6 for that?
7 A. That's something that you'll probably
8 have to get mostly from Chief Deputy O'Brien.
9 Q. All right.
10 In Chief Deputy O'Brien's
11 statement about this, he talks about the
12 hazardous material training. How long does that
13 last?
14 A. I -- I really -- I think it was a day
15 probably.
16 Q. Well, I mean, does it go all day,
17 because there are three dates listed in
18 Deputy O'Brien's material, the 3rd -- I'm
19 sorry -- the 1st, the 3rd and the 8th of
20 October.
21 A. I think we ended up splitting that up
22 for different officers so they all could attend,
23 or all could go there.
24 Q. All right.
25 So he wouldn't have been at all
309
1 of those?
2 A. You know, and I -- I don't -- That's
3 something you're going to have to ask
4 Chief Deputy O'Brien again too. I can't tell
5 you.
6 Q. What we do know is that you never asked
7 Curt about this situation?
8 A. No.
9 Q. Never found out why he might be at
10 the -- It's this room; right?
11 A. Yes.
12 Q. And these chairs?
13 A. Yes.
14 Q. Last all day?
15 A. Yeah.
16 Q. Okay.
17 A. Pretty much, yes.
18 Q. Do you know who complained about this?
19 A. No, I don't really. No, I don't.
20 Q. Okay.
21 And then -- Actually, I want to
22 return for a moment to this November -- the
23 fitness-for-duty examination, November 15th.
24 A. Okay.
25 Q. The meeting that occurred with respect
310
1 to it.
2 You have now twice sent Curt Ruby
3 to have his head examined, right, so to speak?
4 MS. PENICK: Objection.
5 Characterization.
6 MS. VALENTINE: I would ask that
7 you review the question.
8 MS. CONLIN: Well, let's see.
9 Q. The purpose for this fitness-for-duty
10 examination is to determine whether or not the
11 officer --
12 A. Is fit.
13 Q. -- shouldn't be able to carry a weapon
14 and be a peace officer; right?
15 A. If he's fit to be a peace officer,
16 correct.
17 Q. That's why it's called fitness for
18 duty; correct?
19 A. Correct.
20 Q. And I think that we have agreed that at
21 no time did you ever take Sergeant Ruby's weapon
22 from him; correct?
23 A. Correct.
24 Q. Never took his badge or his squad car?
25 A. No.
311
1 Q. And that's true right up until the day
2 you fired him?
3 A. Correct.
4 Q. He continued to work as scheduled right
5 up to the appointment on September 25th;
6 correct?
7 A. Correct.
8 Q. I'm sorry, not September --
9 A. Well, whenever.
10 Q. That was September 19th, and then he
11 was back on duty September 25th.
12 A. Okay.
13 Q. And the second time he just kept
14 working right straight through; right?
15 A. Yes.
16 Q. And you couldn't have let him back on
17 the street if you really thought he was a danger
18 to anybody; correct?
19 A. Correct.
20 Q. Did you have any conversation with Eva
21 Christiansen after October 20th, 2006, and
22 before you arranged for the second fitness-for-
23 duty examination on November 16th?
24 A. I'm sure we probably did before. I
25 can't remember what was said.
312
1 Q. Well, I want to -- I just want to talk
2 about between October 20th, which is the date
3 that you indicate in the charge was when there
4 was supposed to be some follow-up.
5 A. Okay.
6 Q. Okay.
7 October 20th of 2006, and the
8 time in November when you arranged for the
9 second fitness-for-duty examination in the year
10 2007.
11 MS. PENICK: Objection. I think
12 that that mischaracterizes the testimony. He
13 said he's done it for follow-up, not for a
14 second fitness-for-duty evaluation.
15 MS. CONLIN: All right.
16 Q. Do you know what he was told would
17 happen at this fitness-for-duty evaluation?
18 A. No. I don't -- don't know -- I don't
19 know what you mean.
20 Q. I mean, was he going to take more
21 tests? That would be the full-blown fitness-for-
22 duty examination rather than a follow-up; right?
23 A. I can't tell you. I don't know.
24 Q. Well, do you recall any conversation
25 with Dr. Christiansen that -- in which she told
313
1 you to be sure to document any reasons that you
2 had for disciplining him and to document any
3 actions that you took against him to explain the
4 situation and any policy that he violated?
5 A. I don't recollect that, no.
6 Q. Do you know whether or not any
7 examination was conducted by Dr. Christiansen on
8 November 16th?
9 A. This second time, you mean?
10 Q. Yes, I do.
11 A. I believe there was not.
12 Q. All right.
13 And that was because of this
14 attorney situation, he hadn't had a chance to
15 talk to his lawyer?
16 A. Correct.
17 Q. His lawyer was out of town?
18 A. I don't know. I don't remember what
19 the --
20 Q. All right.
21 They set up a tentative
22 appointment, Curt and Eva, for December 10th;
23 correct?
24 A. And that I'm not aware of either.
25 Q. You don't remember that?
314
1 A. No.
2 Q. All right. Let me -- Is 512 in?
3 MS. VALENTINE: No.
4 Q. I'm having handed to you
5 Plaintiff's Exhibit 512, which is a letter from
6 Dr. Christiansen dated December 18th -- It's
7 actually dated December 18th, 20076, but it is
8 my opinion that it is 2007.
9 MS. PENICK: I'll stipulate to
10 that.
11 MS. CONLIN: All right.
12 Q. And this does not contain any
13 information about Curt Ruby, except it has to do
14 with scheduling, and I give it to you so I can
15 refresh your recollection about this
16 December 10th appointment.
17 MS. CONLIN: We would offer
18 Exhibit 512 at this time.
19 MS. VALENTINE: Any objection?
20 MS. PENICK: No.
21 MS. VALENTINE: Exhibit 512 is
22 received.
23 Q. If you look down at the third line, he
24 accepted a rescheduled appointment for 12-10-07.
25 Do you see that?
315
1 A. Yes.
2 Q. And that was because he wanted to speak
3 with his attorney, and she supported the wisdom
4 of his talking to his attorney before meeting
5 with her. Do you see that?
6 A. Yes.
7 Q. And were you aware of that?
8 A. Yes.
9 Q. The rescheduled appointment was
10 eventually canceled by you; correct?
11 A. By our department, correct.
12 Q. All right.
13 You knew it was being canceled?
14 A. Right.
15 Q. By that time, you had already decided
16 to fire him; right?
17 A. We were in the process of talking to
18 attorneys, yes.
19 Q. But you had decided to terminate Curtis
20 Ruby before December 10th?
21 A. Right.
22 Q. And that's why you canceled the
23 appointment?
24 A. Yes.
25 Q. Did you ever tell Curt Ruby before
316
1 December 10th that the appointment had been
2 canceled?
3 A. I didn't.
4 Q. Do you know if anybody did?
5 A. Jim might have.
6 Q. 23 in the notice of violations talks
7 about "these actions," so I am assuming that
8 "these actions" are the actions recorded in
9 paragraphs 1 through 22. Would that be correct?
10 A. I think that's what Jim meant.
11 Q. All right.
12 I have a new word here,
13 "contemptuous behavior." Do you know what that
14 means?
15 A. Just holding somebody in contempt, I
16 guess.
17 Q. Well, can you explain a little further
18 what you meant by using the word "contemptuous"
19 here?
20 A. You'll have to ask Jim because I did
21 not use that word.
22 Q. Well, you signed this document.
23 A. I signed it, yes.
24 Q. Did you read it before you signed it?
25 A. Yes, I read it.
317
1 Q. Did you ask him what he meant when he
2 said "contemptuous"?
3 A. No, I did not.
4 Q. The court reporter is going to be very
5 annoyed with both of us if you keep talking over
6 me.
7 A. Oh, excuse me.
8 Q. She's very good, but she cannot take
9 two people at once.
10 What he was disrespectful and had
11 disregard for was the Webster County Sheriff's
12 Office and its members; right?
13 A. I believe so, yes.
14 Q. That would include all the members or
15 just --
16 A. I'm guessing a few, not all.
17 Q. Okay.
18 One of those people would be you?
19 A. I'm sure it was.
20 Q. And one of those people would be
21 Chief Deputy O'Brien?
22 A. I'm sure it was.
23 Q. 24 is, again, a summary, and points to
24 the general order pertaining to insubordination
25 in respect to superiors, and so on. Do you have
318
1 any specifics for me in connection with
2 paragraph 24?
3 A. Again, I would suggest that you talk to
4 Jim O'Brien. He would have more specifics than
5 I would probably.
6 Q. Okay.
7 And 25 is, likewise, a general
8 paragraph. Do you have anything to tell me
9 about that?
10 A. Well, I don't want to -- I don't want
11 to say what Jim meant, but I think -- I believe
12 it just was -- just not portray himself as part
13 of the sheriff's department as a sergeant in his
14 conduct.
15 Q. Just misconduct?
16 A. No, in his conduct.
17 Q. Oh, in his conduct. I'm sorry.
18 Well, tell me what you mean by
19 that.
20 A. Well, just insubordinate behavior,
21 being rude and discourteous, and I'm sure Jim is
22 going to be able to expound on it.
23 Q. All right. I will look forward to
24 talking to him.
25 All right. Do you know
319
1 whether there has been any conflict between
2 Deputy Halligan and Curt Ruby based on
3 Deputy Halligan's conduct?
4 A. I can't tell you whether there was or
5 whether there wasn't. I don't know.
6 Q. All right.
7 Did you consider whether or not
8 Deputy Halligan's two statements that he gave
9 us -- that you gave us, which are Exhibit K
10 and L, might have been motivated by personal
11 animosity?
12 A. I guess I didn't think anything like
13 that, no.
14 Q. You received a letter from Monty
15 Fisher, who was Curt's lawyer, on December 5th,
16 and it was Exhibit I. At the time that you
17 received the letter, had you made your decision
18 to terminate him?
19 A. You know, I'm not -- I would think so,
20 but I can't -- I believe so, but I think we were
21 still talking to attorneys, so I don't know if
22 there was an exact moment. I can't tell you for
23 sure.
24 Q. Was that Mr. Fitzgerald?
25 A. No.
320
1 Q. All right.
2 Who were you talking to?
3 A. Mr. Paul Ahlers.
4 Q. Over in Webster City?
5 A. Yes.
6 Q. Did the letter have anything to do with
7 your decision to terminate him?
8 A. This letter?
9 Q. Yes.
10 A. No.
11 Q. All right.
12 He points out there's no
13 complaints by any citizen ever against Curt;
14 right?
15 A. That's right.
16 Q. And he asked to have the meeting
17 postponed so that "we can get to the bottom of
18 what the alleged problem or problems are."
19 Did you ever discuss with Monty
20 Fisher what the alleged problem or problems
21 were?
22 A. No, we did not, or I did not.
23 Q. He does express his willingness to have
24 a consultation with Dr. Christiansen?
25 A. Yes.
321
1 Q. But he didn't want to take any more
2 tests; right?
3 A. Correct.
4 Q. All right.
5 When -- Do you recall when you --
6 what time of day you called? Curt Ruby was
7 working on December 13th; correct?
8 A. I believe so.
9 Q. All right.
10 And did you call him in at
11 about 10:00 in the morning?
12 A. I don't remember.
13 Q. All right.
14 Was he insolent and
15 disrespectful?
16 A. I believe -- I don't remember.
17 Q. He was sad, wasn't he?
18 A. He was -- Yeah. He was a little upset,
19 yeah.
20 Q. You said in your direct examination
21 that you were walking on eggshells because of
22 his temper; right?
23 A. Correct.
24 Q. And yet we have no indication of that
25 in the immediate period before his discharge;
322
1 correct?
2 A. Correct.
3 Q. And one of the things you complained
4 about was he wasn't around in the office very
5 much when you -- when you met with him on
6 November 15th. Do you recall that?
7 A. I never used that as a complaint, no.
8 Q. Well, I think we agreed that you -- you
9 said that he wasn't in your office very much.
10 Maybe I'm misunderstanding.
11 A. No. He just avoided -- I mean, he
12 would have just avoided us. I mean, that was
13 not a complaint that he wasn't in the office too
14 much.
15 Q. Well, I stand corrected. I remember
16 that that is exactly what you said, that he
17 avoided interaction --
18 A. Correct.
19 Q. -- with you and with Chief Deputy O'Brien.
20 A. Correct.
21 Q. All right.
22 Do you know how he was brought
23 into the office?
24 A. I didn't get involved in that
25 situation, no.
323
1 Q. Exhibit 25 in your red book -- or no,
2 I'm sorry -- in your black book, our Exhibit 25,
3 which we would offer at this time.
4 MS. VALENTINE: Any objection?
5 MS. PENICK: No objection.
6 MS. VALENTINE: Okay. It will be
7 received.
8 Q. Did you receive that letter near in
9 time to December 17th and review it?
10 A. Yes.
11 Q. All right.
12 Did you ever respond to it?
13 A. I gave it to our attorney.
14 Q. And here is Exhibit 525, which is
15 a letter from Ms. Penick to me dated
16 February 29th, 2008.
17 I want to be very careful here,
18 Sheriff. I do not want to know what the content
19 of any discussion you may have had with your
20 attorney is. I want to ask you, however,
21 whether or not you discussed with your attorney,
22 when I asked for certain documents, whether or
23 not they existed.
24 MS. PENICK: Object to -- That
25 insinuates the content of the discussion.
324
1 Attorney-client privilege.
2 MS. CONLIN: Let me think about
3 it.
4 MS. VALENTINE: Yeah. I would
5 sustain that objection.
6 MS. PENICK: And I'll further
7 object to this exhibit being admitted as an
8 exhibit, to the extent you're going to offer it --
9 MS. CONLIN: I'm going to offer
10 it.
11 MS. PENICK: This is subsequent
12 to the termination decision. How it is relevant
13 to the proceeding is beyond me.
14 MS. VALENTINE: We'll allow it.
15 It will go to the weight.
16 Proceed.
17 Q. I want to talk with you about some of
18 the general orders. Look at Exhibit A,
19 page 224, and that's called "Public Statement
20 Criticism and Official Reports."
21 Do you see it? Are you there?
22 A. Which number would that be?
23 Q. Look at 224, page 224 of Exhibit 1 --
24 or A. I'm sorry.
25 A. And I've got -- Okay. The policy?
325
1 Q. Yes.
2 A. Okay.
3 Q. Are you there, on page 224?
4 A. Yes, I am.
5 Q. Okay.
6 It says that departmental
7 personnel shall not perform any act or make a
8 statement for publication or otherwise which
9 tends to bring the department or its
10 administrative officers into disrepute or
11 ridicule.
12 Do you see that?
13 A. Yes.
14 Q. And the administrative officers would
15 include you and Chief Deputy O'Brien; correct?
16 A. Correct.
17 Q. In order to run against you, can we
18 agree that it would be necessary to make a
19 statement that would potentially bring you into
20 disrepute or ridicule?
21 A. I don't think so.
22 Q. You don't?
23 A. Huh-uh.
24 Q. Now look at "Criticism," number 3.
25 "Every member of the Department shall refrain
326
1 from making any statements or allusion which
2 discredits or disparages any member except when
3 reporting to Sheriff or Chief Deputy."
4 That means internally; correct?
5 A. Correct.
6 Q. All right.
7 And it forbids maligning any
8 member of the department; correct?
9 A. Correct.
10 Q. Again, how does that fit into running
11 against you?
12 A. That one probably doesn't. It just has
13 to do with morale, I guess.
14 Q. I beg your pardon?
15 A. That one wouldn't have anything to do
16 with -- That would just have to do with morale
17 in the department. That's the way I would take
18 it.
19 Q. Okay.
20 And number 4 is "Uncalled for
21 Remarks," and it forbids any deputy or member of
22 the department "upon the street in any public
23 place to any officer or any members of the
24 department or any other citizen make any remark
25 in regard to any officer or member of the
327
1 department into" -- I think it's supposed to be
2 disrepute "or subject it or them in the
3 sheriff's department to any ridicule."
4 MS. PENICK: I'd like to
5 interpose an objection to these questions
6 regarding these orders. I don't believe they
7 were relied upon in the disciplinary termination
8 notice, and this is going beyond the scope of
9 this hearing.
10 MS. VALENTINE: Overruled.
11 Q. There is also a duty of loyalty;
12 correct?
13 A. Yeah, I guess there is.
14 Q. All right.
15 Forgive me. I can't put my hands
16 on that one, but as I understand the various
17 rules, if Curt Ruby criticized you publicly, he
18 would be in violation of the general orders of
19 the department; right?
20 A. Correct.
21 Q. And he could be discharged for that?
22 A. It's possible, I suppose.
23 Q. The duty of loyalty, which is on
24 page 154, requires that members and employees
25 shall maintain a loyalty to the department and
328
1 their associates; correct?
2 A. Yes, yes.
3 Q. Nobody could run against you, Sheriff,
4 and still be in compliance with these general
5 orders, could they?
6 A. I would say they could.
7 Q. Well, they wouldn't be able to say that
8 you did anything wrong or criticize you in any
9 way; correct?
10 A. They wouldn't have to criticize. All
11 they have to do is say, "This is what I would
12 do," and let the people decide.
13 Q. Okay.
14 So your general orders, in fact,
15 prohibit a person running against you from
16 saying a bad word about you, basically; right?
17 A. They can disagree with me, but they
18 can't -- I mean, it depends on how they say it,
19 I suppose. I mean, if they -- You know, if they
20 just say, well, they're going to campaign, and
21 they want to campaign against me and they want
22 to go head-to-head and say, "This is what I
23 would do," and talk, you know, there's ways of
24 doing it without discrediting or just being --
25 you know, tearing somebody down.
329
1 Q. Sheriff, have you ever heard of the
2 First Amendment to the United States
3 Constitution?
4 A. Yes, I have.
5 MS. PENICK: Objection.
6 Relevance to this hearing.
7 MS. VALENTINE: Overruled.
8 Q. In fact, the general orders prohibit a
9 sheriff's deputy running against you from
10 exercising his or her constitutional rights.
11 Isn't that --
12 MS. PENICK: Objection. Pardon
13 me.
14 MS. CONLIN: I'm not quite done.
15 Q. Isn't that correct?
16 MS. PENICK: Objection. That
17 calls for a legal conclusion.
18 MS. VALENTINE: If the witness
19 can answer it, he can answer it.
20 A. I can't tell you. I don't know.
21 Q. All right.
22 Let's look at Exhibit B. That's
23 entitled "Notice of Discharge From Employment."
24 On the last page of that, Sheriff, second page,
25 you say the following: "If you appeal to the
330
1 Commission, your removal will be stayed and you
2 will be placed on paid leave pending the outcome
3 of the hearing before the Commission"; correct?
4 A. Correct.
5 Q. Then on January 16th, you wrote a
6 letter to Sergeant Ruby that, contrary to your
7 initial commitment to keep him on paid leave,
8 you were going to take him off on January 25th;
9 correct?
10 A. Correct.
11 Q. All right.
12 And then -- then, after you took
13 him off, you tried to prevent him from getting
14 unemployment compensation; right?
15 MS. PENICK: Objection. These
16 are past the termination date. These are beyond
17 the scope of this hearing, and these issues were
18 not appealed.
19 MS. VALENTINE: I'll allow it,
20 but let's not go too far down this path.
21 MS. CONLIN: I'd like to make
22 just a tiny record with respect to this. We
23 think that this conduct indicates hostility
24 directly toward Curt Ruby, and we think that is
25 material, whether or not this man is the one who
331
1 hates is -- I think is of importance and
2 relevance to the hearing.
3 MS. VALENTINE: And, again, I'll
4 allow it, but let's not go too far down this
5 unemployment thing.
6 MS. CONLIN: I'd offer
7 Exhibit 507.
8 MS. VALENTINE: Objection?
9 MS. PENICK: Yes. Objection to
10 relevancy.
11 MS. VALENTINE: Overruled. It
12 will be admitted.
13 MS. CONLIN: I'm done.
14 MS. VALENTINE: Redirect?
15 MS. PENICK: I will, and I
16 will --
17 MS. VALENTINE: Before you
18 proceed with redirect, there's been a request to
19 take a short break. We're going to do 5
20 minutes. Well, maybe 6, so it's five after.
21 (A recess was taken from 10:05 a.m.
22 until 10:13 a.m.)
23 MS. VALENTINE: All right. We'll
24 resume with redirect.
25 MS. PENICK: Thank you.
332
1 REDIRECT EXAMINATION
2 BY MS. PENICK:
3 Q. Sheriff Mickelson, I'm going to ask you
4 a few questions to clarify some items from your
5 cross-examination, okay?
6 A. Okay.
7 Q. You discussed the election that you had
8 in 2003 against Jim Stubbs for the sheriff
9 position?
10 A. Correct.
11 Q. I believe you testified that you didn't
12 know at the time that Curt Ruby was supporting
13 Jim Stubbs; is that correct?
14 A. No. I didn't at the time, no.
15 Q. Did you find out that at some point he
16 was supporting Jim Stubbs?
17 A. After the election was over.
18 Q. When?
19 A. Sometime just shortly after.
20 Q. How?
21 A. There was a note under my door.
22 Q. Explain.
23 A. Well, there was a note under my door,
24 and basically stating that -- I think it was
25 something like, "Hope there's no hard feelings,"
333
1 that, you know, "I was supporting" -- or "I'm
2 sure you knew that I was supporting Jim."
3 But I didn't keep it, so I
4 don't -- You know, it's been such a long time
5 ago, I don't know exactly what it did say.
6 Q. Did you talk with Curt Ruby about the
7 note?
8 A. I believe I mentioned something that
9 there's not -- never would be any hard feelings
10 anyway, so --
11 Q. Do you recall anything else that you
12 said to him or he said to you at that time?
13 A. I don't -- I don't recall.
14 Q. Can you turn to Exhibit A, page 233?
15 It's in the red book. I believe you discussed
16 this on cross-examination, that point 13
17 indicates, "Final departmental disciplinary
18 authority and responsibility rests with the
19 Sheriff"; is that right?
20 A. Yes.
21 Q. And other supervisory personnel may
22 take the following actions or measures, and it
23 indicates four other measures that other
24 personnel can take; is that right?
25 A. Correct.
334
1 Q. What's your understanding as to the
2 type of disciplinary action that Jim O'Brien
3 could take?
4 A. Basically, he could take any -- any of
5 the above steps, A, B, C or D, oral reprimand,
6 written reprimand, emergency suspension, or
7 written recommendation of other penalties.
8 Q. Did you rely upon Chief Deputy O'Brien
9 to do those things?
10 A. Yes.
11 Q. And then point 16 below discusses with
12 regard to when written reports of disciplinary
13 action must be submitted. It indicates that
14 they're not required for oral reprimands; is
15 that correct?
16 A. Correct.
17 MS. CONLIN: I'm sorry. What
18 page?
19 MS. PENICK: I'm at 233.
20 Q. Were there any verbal reprimands, as
21 you would use that term, issued to Curt Ruby?
22 A. I don't believe so.
23 Q. Were there verbal counseling sessions
24 with Mr. Ruby?
25 A. Yeah. I know Jim did, and I did once
335
1 in a while, yes.
2 Q. There were some questions about the
3 incident March 30 of 2006 with covering the --
4 A. Shift.
5 Q. -- missing shift, I suppose the lack of
6 someone to be on shift; right? And you were
7 asked about an unwritten rule that people were
8 expected to follow?
9 A. Correct.
10 Q. Do you know when that rule went into
11 effect?
12 A. It's been in effect as far as -- as
13 long as I've been employed with the sheriff's
14 department.
15 Q. Is that rule followed?
16 A. Yes.
17 Q. Is it followed by the whole department?
18 A. Yes.
19 Q. Has anyone ever questioned how to
20 handle such a situation to you?
21 A. No.
22 Q. Do you have any doubt that all of the
23 deputies know how to cover a shift vacancy?
24 A. I don't have any doubt, yes.
25 Q. And I just want to make clear when
336
1 something like that happens and a change is made
2 to the schedule after it's issued, whose
3 responsibility is it to coordinate those
4 schedule changes?
5 A. The officer in charge.
6 Q. And what do you mean by that?
7 A. Of that shift, the lieutenant or
8 sergeant on that shift.
9 Q. You discussed the September 18th, 2006
10 meeting in which you informed Mr. Ruby that he
11 was going to be sent for a fitness-for-duty
12 evaluation?
13 A. Right.
14 Q. And I think you mentioned at that time
15 on cross-examination that he said, "This is
16 because I'm going to run against you"?
17 A. I believe so, yes.
18 Q. Did he say anything else about running
19 against you during that meeting?
20 A. That was the first time I think he said
21 that he wasn't going to. Then he goes -- It was
22 because he was running against me, but he said
23 he wasn't going to.
24 Q. So he told you, "You think I'm running
25 against you, but I'm not"?
337
1 A. Yeah, I think that's --
2 Q. Did that matter to you?
3 A. No.
4 Q. I also -- I believe you testified --
5 You were asked about whether, if there was any
6 indication of domestic violence, then an arrest
7 would be mandatory?
8 A. Yes.
9 Q. Is that correct?
10 A. If there's any bodily injury.
11 Q. Okay.
12 I'd like you to take a quick look
13 at Exhibit R, the Carlson incident, in your
14 notes. You were asked this morning about
15 the statement that Vic Carlson made to you, and
16 if you'd look at page 336 and 337.
17 A. Okay.
18 Q. You were asked why you didn't include
19 any reference to Vic in these notes. Do you
20 remember that?
21 A. Yes.
22 Q. Do you know when you wrote these notes?
23 A. I believe it was 9:00 in the -- or it
24 was 8:45. It was in the morning of the 26th.
25 Q. On 336?
338
1 A. Right.
2 Q. And on 337, when did you write that
3 one?
4 A. About 10 minutes after the first one.
5 Q. And when did Vic Carlson talk to you?
6 A. He might have -- I'm not sure what time
7 it was. He talked to me numerous times after
8 that, but it might have been right when he was
9 arrested. I can't remember.
10 Q. Was your conversation with Vic after
11 your conversations with his daughter and his
12 wife?
13 A. Yes.
14 Q. And you just don't have a note to those
15 conversations; is that right?
16 A. No.
17 Q. Can you look now at Exhibit -- I think
18 it's 501, the handbook, page 249. You were
19 asked about the disciplinary process and
20 progressive discipline; right?
21 A. Correct.
22 Q. Is it your understanding that
23 progressive discipline is required in every
24 situation?
25 A. No.
339
1 Q. What is your understanding?
2 A. Well, what it says in the handbook,
3 "The County may use whatever discipline it
4 decides is appropriate in any situation, up to
5 and including discharge, without regard to the
6 progressive discipline guidelines explained
7 below."
8 Q. Why did you go right to discharge with
9 Officer Ruby?
10 A. I guess we talked it over. We talked
11 it over with the attorneys.
12 Q. I don't want you to discuss what the
13 attorney recommended, okay?
14 A. Right.
15 But we just -- I mean, we just
16 felt that it was time that we did something, and
17 this is what -- this is what we decided.
18 Q. Did you believe that Officer Ruby would
19 respond to progressive discipline?
20 A. No.
21 Q. Why not?
22 A. Because we tried to -- both Jim and I
23 had tried to talk to Curt numerous times, and
24 when we do, he gets angry, and it's just -- it
25 just wasn't working.
340
1 MS. PENICK: I'm finished.
2 MS. VALENTINE: Any recross?
3 MS. CONLIN: Very briefly.
4 RECROSS-EXAMINATION
5 BY MS. CONLIN:
6 Q. I want to return just a moment
7 to 17, paragraph 17, because I forgot to
8 ask you a question about that. That is the
9 October 9th, having the spotlight repaired on
10 his vehicle.
11 MS. PENICK: I'd object as being
12 beyond the scope of redirect.
13 MS. CONLIN: Then I would move to
14 reopen direct.
15 MS. VALENTINE: Sustained.
16 I'm sorry?
17 MS. CONLIN: Then I would move to
18 reopen redirect.
19 MS. VALENTINE: That would be
20 allowed.
21 Q. 17, had the spotlight on his vehicle
22 repaired. Do you see that?
23 A. I'm getting to that.
24 Thank you.
25 Q. Well, you don't really need to look at
341
1 it.
2 A. Okay.
3 Q. The only question I have is, having
4 the spotlight on his vehicle repaired would not
5 be detrimental in any way to the public, would
6 it?
7 A. No, it would not.
8 Q. And 19 has to do with the meeting that
9 you had with him on November 15th. That would
10 not be detrimental to the public, would it?
11 A. No.
12 Q. Nor would 21 about the unnecessary
13 remark at the top of his activity log?
14 A. No.
15 Q. Nor would -- if 22 is about these
16 hazardous material trainings, 22 would also --
17 isolating himself during the hazardous material
18 training would not be detrimental to the public;
19 is that correct?
20 A. That's correct.
21 Q. Do you take time to drive around in the
22 county?
23 A. Every chance I get, yes.
24 Q. And would you be out regularly?
25 A. No. Not regularly, no.
342
1 Q. How often?
2 A. It's kind of, I guess, once every two,
3 three weeks maybe you'd get out on something.
4 It depends on if there's an accident or if
5 there's something that I can get involved with
6 or I need to help with. I mean, it's just -- It
7 just varies.
8 Q. And the rest of your duty time you
9 spend here?
10 A. Yes.
11 Q. The other deputies are out and about
12 all the time?
13 A. Yes.
14 Q. Patrol deputies; right?
15 A. Yes.
16 Q. And during the election of -- the
17 special election of 2003, you were a patrol
18 deputy; correct?
19 A. Correct.
20 Q. And so you would have been out in the
21 county all during your shift, usually every day?
22 A. Yes.
23 Q. And you would be in Badger?
24 A. Yes, I would go to Badger.
25 Q. Do you know where Curt lives?
343
1 A. Yes.
2 Q. Have you ever driven -- Did you drive
3 by it during the special election process?
4 A. I don't know. I might have.
5 Q. Okay.
6 The oral counseling document,
7 which is Exhibit X, why don't you turn to that.
8 Where was that found?
9 A. This one was -- You mean this report?
10 Where was this report found?
11 Q. Yes.
12 A. That's Jim O'Brien's. He has it, or he
13 had it.
14 Q. All right.
15 You said in connection with your
16 redirect examination that you didn't ever do
17 progressive discipline because you didn't think
18 it would work; right?
19 A. Yes. I guess that would probably be a
20 good answer.
21 Q. And yet yesterday you've told us that
22 after this oral counseling that's documented in
23 Exhibit X, everything was fine about the issue
24 that you talked with him.
25 A. In that case it probably was, yes.
344
1 Q. All right.
2 So the one time that you did oral
3 counseling and documented it, in fact, it did
4 work?
5 A. Yeah. I guess you could say it did in
6 that case, yes.
7 Q. And ordinarily, whether the counseling
8 was oral or written, it would be documented;
9 right?
10 A. Ordinarily, yes.
11 Q. You said that the way that the
12 scheduling was done had been the same for as
13 long as you remember. Do you recall that
14 testimony?
15 A. Yes.
16 Q. In fact, Sheriff, until you came on
17 board and sometime thereafter, the chief deputy
18 granted the vacation time and things like that;
19 right?
20 A. He can, yes.
21 Q. No. I mean that it was up to the chief
22 deputy. He was in charge of scheduling.
23 A. And he still is.
24 Q. At some point, however, there was a
25 change in terms of vacation. Do you recall
345
1 that?
2 A. About the amount of vacation you can
3 take, yes, at one time.
4 Q. The days, the days of vacation.
5 A. No, I don't recall that.
6 Q. All right.
7 So is it your testimony today
8 that Chief Deputy O'Brien was, in fact, in
9 charge of granting vacation days?
10 A. Yes.
11 Q. And that never changed?
12 A. Well, the chief -- the chief deputy,
13 that never changed, no.
14 Q. Okay. Well, I'm not sure what you just
15 told me.
16 A. Well, he hadn't always been the chief
17 deputy.
18 Q. Oh, I do understand that.
19 Okay. But the chief deputy is
20 the person that people go to if they want -- you
21 know, if they want to schedule vacation, a
22 vacation day.
23 A. Correct.
24 Q. Not the sergeant in charge?
25 A. Well, they go through the sergeant
346
1 first, and then it goes to -- then the chief
2 deputy reviews it.
3 Q. All right. I'm sorry that I'm
4 confused, but I am.
5 Was there a time that you recall
6 where the only person involved in granting
7 vacation was the chief deputy?
8 A. No. We always -- we always -- As far
9 back as I can remember, we had a slip that we
10 had to fill out, and then our lieutenant or
11 sergeant would have to sign off on that slip,
12 and then they would give that -- They would go
13 through -- Then it would go through the chief
14 deputy.
15 Q. All right.
16 Yesterday you told me that you
17 understood the law to be that, in cases of
18 domestic violence, all such cases, arrest was
19 mandatory. Do you recall that testimony?
20 A. Yes, I did say that.
21 Q. Today you have changed that testimony?
22 A. Yes.
23 Q. Did you have a discussion with someone?
24 A. Yes.
25 Q. Did you look at the law?
347
1 A. Yes.
2 Q. In fact, you were wrong?
3 A. I was wrong.
4 Q. And, in fact, in order for arrest to be
5 mandatory, there must be bodily injury?
6 A. Correct.
7 Q. How does a deputy determine whether or
8 not there has been bodily injury?
9 A. Well, depends on what's happened. If
10 it's -- if it's a bruise, if it's a cut, if it's
11 a hair-pulling, if it's -- Those would be --
12 those would be considered bodily injuries.
13 Q. By whom?
14 A. By a normal person, I guess.
15 MS. CONLIN: Would you read that
16 answer back?
17 (Requested portion of the record
18 was read.)
19 Q. Do you know of any definition in the
20 law with respect to what constitutes bodily
21 injury?
22 A. There is, but I can't state it
23 verbatim.
24 Q. Can you state it at all?
25 A. No.
348
1 Q. Do you know what questions a -- or what
2 information the deputy needs in order to know
3 whether or not bodily injury occurred?
4 A. Witness statements.
5 Q. No. I'm sorry. Let me clarify before
6 you go on because that's not what I'm asking.
7 What does -- If -- Let me see if
8 I can say it this way: Ordinarily, would you
9 agree with me that in order for arrest to be
10 mandatory under 236.12, it is -- you would
11 expect to see something visible on the person?
12 A. Ordinarily, yes.
13 Q. Okay. I do want to clarify earlier
14 discussion.
15 If a deputy wants a day off and
16 the shift commander, lieutenant or sergeant, is
17 not available, then he or she can go directly to
18 the chief deputy?
19 A. Correct.
20 Q. Okay.
21 MS. CONLIN: That's all I have.
22 MS. VALENTINE: Any further
23 recross -- or redirect?
24 MS. PENICK: I must.
25
349
1 FURTHER REDIRECT EXAMINATION
2 BY MS. PENICK:
3 Q. There was reference in your recross
4 that -- to Exhibit X.
5 A. Okay.
6 Q. The documentation of the discussion
7 that Chris O'Brien and you had with Curt Ruby
8 back in 2004, and you indicated that -- I think
9 you said everything was fine after this event?
10 A. I mean as far as this situation goes,
11 yes.
12 Q. What do you mean; as far as the
13 specific violations identified?
14 A. Yeah. I would say so, yeah.
15 Q. Was everything fine with respect to
16 Officer Ruby's attitude towards you after this
17 event?
18 A. No.
19 Q. Can you explain that?
20 A. It just -- When we discussed things, he
21 just gets mad, so the anger -- the anger just
22 was still there.
23 Q. And forgive me. This event was -- one
24 of the issues discussed in this conversation was
25 the fact that he was going home early; is that
350
1 right?
2 A. I -- If that's what it says. I don't
3 remember, yeah.
4 Q. Do you want to look at it or --
5 A. I can, yes.
6 Oh, okay. Yes, yeah. He just --
7 He was going home early, and evidently he -- for
8 whatever reason, his going home early stopped.
9 Q. And then you had had conversations with
10 him about the reasons, and you're thinking maybe
11 it was a different conversation where you
12 learned about his --
13 A. Yeah. That was probably a different
14 conversation.
15 Q. Let me finish. Where you learned about
16 his mother-in-law's illness?
17 A. Yes.
18 Q. And I believe you testified that it was
19 after the discussions about Mr. Ruby's
20 mother-in-law that you noticed him becoming very
21 angry towards you; is that correct?
22 A. Yeah, I believe so. Yes.
23 Q. Would you say there was a noticeable
24 difference in the behavior at that point?
25 A. Yeah.
351
1 And I guess we -- I tried to find
2 out why, and I couldn't get any -- I mean, he
3 just said it was because of that incident, and
4 we didn't advise -- We didn't know. I didn't
5 know. I had no idea, so I mean -- but just the
6 anger was still there about it.
7 Q. And is it your understanding that the
8 anger stems from that incident?
9 A. I guess that's got to be part of it,
10 yes.
11 Q. Did you hear Officer Ruby say that he
12 would never forgive you because of what you did
13 to Mrs. Ruby?
14 A. I don't know if he told me that or he
15 told Jim O'Brien. I don't know.
16 Q. Now, I want to clarify this discussion
17 about the law and domestic violence, and I
18 don't -- I want the record to be clear as far as
19 when you knew what the law was. You just didn't
20 discover today what the law means, did you?
21 A. No.
22 Q. Was your testimony yesterday a
23 situation in which you simply misspoke?
24 A. Correct.
25 MS. PENICK: I'm finished. Thank
352
1 you.
2 MS. VALENTINE: Any re-recross?
3 FURTHER RECROSS-EXAMINATION
4 BY MS. CONLIN:
5 Q. As I understand what you have just said
6 to us, you -- your excuse for not following
7 progressive discipline with Sergeant Ruby is he
8 got mad if you talked to him?
9 MS. PENICK: I'm going to object
10 that that's beyond the re-redirect.
11 MS. VALENTINE: I think Exhibit X
12 was raised with the progressive discipline, so
13 I'm going to allow it.
14 A. That was probably part of it. I mean,
15 we just didn't -- You know, I really -- I really
16 don't have a good answer to that. I just don't.
17 Q. Okay, all right.
18 Well, even if he got angry, that
19 would not justify not bringing to his attention
20 things like what you say is the failure of him
21 to follow the law.
22 A. You're right.
23 Q. Okay.
24 You would be absolutely required
25 by your duties and your oath to correct him if
353
1 you thought he was not following the law, even
2 if it might make him a little mad, or big mad.
3 A. I suppose.
4 Q. Well, do you have any doubt at all?
5 A. I mean --
6 Q. That's a question that probably can be
7 answered yes or no.
8 A. As far as my oath, you know, that -- My
9 oath is to protect and -- protect the citizens
10 of the county, so I suppose you could say yes.
11 Q. Yeah, because if you've got a deputy
12 that's not doing what he's supposed to do with
13 respect to domestic violence --
14 A. Correct.
15 Q. -- you'd need to do something about it?
16 A. Correct.
17 Q. And you didn't.
18 A. Not at the time, we didn't.
19 Q. Well, you didn't do anything for months
20 afterwards, six about.
21 A. There's -- there's reasons why we went
22 about that maybe slower than we should have.
23 Q. Well, what are they?
24 A. We went through attorneys, and we had a
25 hard time getting somebody to give us
354
1 assistance.
2 Q. Okay.
3 So you went to attorneys to
4 discuss the law of domestic violence, or what?
5 A. We went to our county attorney --
6 MS. PENICK: I'd object to any
7 content of discussions between him and any
8 attorneys.
9 MS. CONLIN: I think I can ask
10 the purpose of the visit.
11 MS. VALENTINE: Right, because
12 privilege would not be appropriate.
13 MS. CONLIN: No, but I think the
14 purpose of the visit, the subject matter
15 generally is allowed.
16 MS. VALENTINE: I think if you
17 rephrase your question you'll get where you need
18 to go.
19 MS. CONLIN: All right. Let me
20 think if I can.
21 Q. Whenever -- We don't know when you
22 consulted attorneys; right? We just don't have
23 a clue?
24 A. Right.
25 Q. And I thought yesterday you said that
355
1 was -- I don't recall that you said that was as
2 early as July.
3 A. No, it wasn't.
4 Q. Or August?
5 A. I don't believe so.
6 Q. Or September?
7 A. No. I believe it was sometime in
8 October, I believe, but --
9 Q. That's what I thought you said
10 yesterday as well.
11 So these incidents, these three
12 incidents of domestic violence occurred
13 July 25th; correct?
14 A. Correct.
15 Q. Didn't do a thing?
16 A. Correct.
17 Q. Didn't even talk to him?
18 A. Correct.
19 Q. The second was August 6th, and, again,
20 you're not talking to attorneys then, are you?
21 A. No.
22 Q. Okay.
23 Again, you think he's not
24 following the law. He's on the street, he's a
25 deputy sheriff, and he -- and you say nothing to
356
1 him?
2 A. That's right.
3 Q. And so doesn't that put any woman that
4 he comes into contact with in connection with
5 domestic violence, at least in your mind, in
6 danger?
7 A. That's possible, yes.
8 Q. So, in fact, it was your actions or
9 inactions in this case that endangered the
10 public?
11 A. It could have been, yes.
12 Q. Yesterday I asked you several times
13 about the law of domestic violence. I think the
14 record will reflect at least two or three. Do
15 you recall?
16 A. I don't recall, but I'll take your word
17 for it.
18 Q. And, in fact, on each such occasion,
19 you assured me that any incident of domestic
20 violence was, in fact, cause for mandatory
21 arrest; correct?
22 MS. PENICK: Object. The record
23 speaks for itself.
24 A. I might have said that.
25 MS. VALENTINE: It does, but I'll
357
1 let her proceed with the questioning.
2 MS. CONLIN: All right.
3 Q. And so yesterday you did not know the
4 law. You had to go look it up?
5 A. I knew the law. I misspoke.
6 Q. Three times?
7 A. Evidently.
8 MS. CONLIN: That's all.
9 MS. VALENTINE: Any further
10 redirect?
11 MS. PENICK: No, thank you.
12 MS. VALENTINE: Any questions
13 from the commissioners?
14 MR. O'CONNOR: No.
15 MR. DRISCOLL: Do you have some?
16 MS. VALENTINE: I'm going to have
17 one.
18 MR. DRISCOLL: I'll wait until
19 after you.
20 MS. VALENTINE: I do have one
21 question.
22 EXAMINATION
23 BY MS. VALENTINE:
24 Q. In terms of selecting -- I don't know
25 how to process words. When you choose a chief
358
1 deputy, is that something that people make
2 applications for?
3 A. No.
4 Q. So that's something that's in your sole
5 discretion to appoint?
6 A. Yes.
7 Q. And I guess I said one question. I
8 lied.
9 Is there a historic way of how
10 that happens? Like is somebody that's the
11 longest serving, is that they just automatically
12 get it, or that's not the way that works?
13 A. No, no.
14 MS. VALENTINE: Okay. Thanks.
15 MR. DRISCOLL: I do also have a
16 question, following up on Ms. Valentine's
17 question.
18 EXAMINATION
19 BY MR. DRISCOLL:
20 Q. Does the chief deputy have to be a
21 sheriff's deputy?
22 A. You know, I'm not sure, but I think
23 they have to -- I guess I've never asked --
24 Nobody has ever asked me that question.
25 Q. Was there some question as to whether
359
1 there was anyone else more qualified in the
2 department to be the chief deputy, someone who
3 may have had information about EEOC regulations
4 and the list of things Ms. Conlin had presented
5 to you? Is there anyone else in your department
6 when you appointed Chief Deputy O'Brien who you
7 believe would have had more such experience in
8 administrative duties?
9 A. I don't believe so, but a lot of that
10 has to do with somebody that actually wants the
11 job too. You would not want to force somebody
12 into that position, so --
13 Q. Was there an application process?
14 A. No.
15 Q. It was sort of informal?
16 A. Yes.
17 Q. But no one else in your informal
18 process, at least in your opinion, would have
19 been more qualified for the position of chief
20 deputy than Deputy O'Brien?
21 A. No.
22 Q. Okay. One other question that I have.
23 You said it was sort of an
24 unwritten rule -- I think from a long time ago
25 you said it was an unwritten rule that officers
360
1 would be available 24/7.
2 A. Yes.
3 Q. Is that an unwritten rule, is that
4 a policy somewhere that they should be available
5 24/7 when they're not on duty?
6 A. You know, I don't know. It's just
7 something I was told by Sheriff Griggs when I
8 first started. We would be -- we would be on --
9 we would be -- we would need to be available
10 24/7 if something happens.
11 Q. In your experience, are all your
12 deputies available 24/7 unless there's some
13 notice that they won't be?
14 A. Yes.
15 MR. DRISCOLL: I don't have any
16 other questions.
17 MS. VALENTINE: The witness is
18 excused.
19 Do you have follow-up?
20 MS. CONLIN: Yes, I do.
21 MS. VALENTINE: I suppose, to be
22 proper, Bridget, did you have any follow-up?
23 MS. PENICK: I do not.
24 MS. VALENTINE: Okay, Ms. Conlin.
25
361
1 FURTHER RECROSS-EXAMINATION
2 BY MS. CONLIN:
3 Q. You were asked if there was anybody
4 more qualified. Did you ask anybody else?
5 A. Yes, I did.
6 Q. And did you check personnel files?
7 A. No.
8 Q. Lieutenants would all have
9 administrative management experience; right?
10 A. I suppose you could say that.
11 Q. All right.
12 And sergeants also?
13 A. Yes, you could say that.
14 Q. And Chief Deputy O'Brien was neither a
15 lieutenant nor a sergeant. He was a patrol
16 deputy; correct?
17 A. Yes.
18 MS. CONLIN: And, actually, for
19 the information of the commission, the 24/7 --
20 MS. PENICK: I'd object to
21 testimony by Counsel.
22 MS. CONLIN: You probably want to
23 get to this.
24 MS. PENICK: Okay. You're
25 talking about you're going to cite the code
362
1 section, I'd bring it up with another witness.
2 MS. CONLIN: Well, it is written
3 down.
4 MS. VALENTINE: The commission is
5 aware of that and has located it at page 140.
6 MS. PENICK: Withdraw my
7 objection.
8 MS. CONLIN: I knew you would.
9 MS. VALENTINE: Anything else?
10 MS. CONLIN: No.
11 MS. VALENTINE: Thank you for
12 your testimony.
13 THE WITNESS: You're welcome.
14 MS. VALENTINE: Your next
15 witness?
16 MS. PENICK: We'll grab the
17 witness. There shouldn't be a delay, unless you
18 would like to take a break.
19 MS. VALENTINE: No.
20 And, again, when we're just in
21 this pause between witnesses, remind the parties
22 that you are under time constraints, to use your
23 time wisely.
24
25
363
1 LUKE M. FLEENER,
2 called as a witness, having been first duly
3 sworn, testified as follows:
4 MS. VALENTINE: Your witness.
5 DIRECT EXAMINATION
6 BY MS. PENICK:
7 Q. Sergeant Fleener?
8 A. Hello.
9 Q. Can you state your name for the record,
10 please?
11 A. Luke M. Fleener, F-l-e-e-n-e-r.
12 Q. Can you tell me your educational
13 background?
14 A. I graduated high school from Dayton
15 High School in Dayton, Iowa, in 1986. I
16 graduated from Iowa Central in 1989 in law
17 enforcement, two-year degree.
18 MS. VALENTINE: And sorry to
19 interrupt, but can you raise your voice just a
20 little bit? We've got some machine noise going
21 on, so I want to make sure everybody hears you.
22 Thanks.
23 A. I started my law enforcement career
24 in 1989 working for the Dayton Police Department
25 part time.
364
1 I graduated from the law
2 enforcement academy in 1990, which was the
3 beginning of March, I believe, in April of '90.
4 I was hired by the Fort Dodge Police Department.
5 I worked with the Fort Dodge Police Department
6 until '93.
7 In '93 I was hired by the
8 Hamilton County Sheriff's Department until '95.
9 '95 until present with the
10 Webster County Sheriff's Department.
11 Q. Okay.
12 You were working for the Fort
13 Dodge Police Department from 1990 to 1993; is
14 that right?
15 A. Yes.
16 Q. Was Curt Ruby working for the Fort
17 Dodge Police Department at that time?
18 A. Yes.
19 Q. Did you interact with Curt Ruby while
20 working for the Fort Dodge Police Department?
21 A. My recollection was I worked on an
22 afternoon shift with him for some period of
23 time. I don't recall how long it was.
24 Q. Any concerns or problems while you
25 worked with Officer Ruby at that time?
365
1 A. I was fairly new, so I -- not that I
2 recall. Not any particular incidents, no.
3 Q. You are a sergeant; is that correct?
4 A. I am currently, yes.
5 Q. And when did you become sergeant? You
6 said --
7 A. July of last year, I believe.
8 Q. And what shift do you currently work?
9 A. I'm actually supervisor of the
10 detective division right now.
11 Q. Is that -- Do you have a particular
12 shift then?
13 A. Normally, we work Monday through
14 Friday. Hours may vary. Currently, today and
15 off and on, we fill in on shifts that are short.
16 In this case, the morning shift, which is why
17 I'm in uniform today.
18 Q. Is there a requirement as far as how
19 many deputies need to be on duty at a given
20 shift?
21 A. Depending how many deputies are on each
22 shift. When I first started, not all shifts
23 had four deputies. I believe they do now. Our
24 full staff would be four deputies per shift, and
25 at least two have to be working.
366
1 Q. How do you go about -- I suppose when
2 you were a patrol deputy -- I'm more concerned
3 about right now. How would you go about trying
4 to arrange for a day off? If you didn't have a
5 day off on the schedule and you wanted to take a
6 vacation day, what would you do?
7 A. Days off are approved by your shift
8 supervisor. You fill out a form and submit it
9 to your supervisor.
10 Q. What if there were only two of you
11 scheduled, and you really needed to take a day
12 off? How would you work that out?
13 A. You wouldn't get the day off if there
14 was only two people working, unless you could
15 find somebody to switch with you.
16 Q. There was a situation in March --
17 March 30th to be precise, of 2006, in which it
18 appears there was only one deputy working on a
19 shift. Do you have any knowledge about that
20 situation?
21 A. Yes.
22 Q. What is your -- What do you know?
23 A. My first knowledge of that came that
24 day when Deputy Strait came to work. I think it
25 was an afternoon shift. I'd have to see the
367
1 schedules to be refreshed to my memory, but I
2 know he was working alone, and I had a
3 conversation with Chief Deputy Jim O'Brien about
4 somebody needed to stay and cover the shift with
5 Rod, stay till 10:00, I believe, that night.
6 I don't remember who was off and
7 why there was only one person working, but at
8 that day, that was the first I knew of it.
9 Q. Were you the shift supervisor at that
10 time?
11 A. No. I was just a detective. I wasn't
12 a sergeant of detectives.
13 Q. Do you know who was the supervisor?
14 A. Of the afternoon shift?
15 Q. Yes.
16 A. I don't know if Sergeant Ruby was or if
17 there was a lieutenant assigned to that shift.
18 Maybe Kruse. I don't know. If I saw the
19 schedules, I'd know.
20 Q. Okay.
21 Would you take a look at
22 Exhibit E in that red book, please?
23 A. Okay.
24 Q. Does this refresh your recollection as
25 to who the shift supervisor would be in March of
368
1 2006 for the afternoon shift?
2 A. Well, the top line of each shift is the
3 shift supervisor. In this schedule the morning
4 shift would be Lieutenant Wilson, the afternoon
5 Sergeant Ruby, and Lieutenant Stubbs would be
6 the night shift supervisor.
7 Q. Okay.
8 Did you have any information as
9 to whether Sergeant Ruby was aware that the
10 shift was going to be short a deputy?
11 A. Did I have any information?
12 Q. Uh-huh.
13 A. No.
14 Q. Did anybody tell you that later?
15 A. I learned a day or two later that he
16 had knowledge of that, yes.
17 Q. Can you explain that?
18 A. Mike Buske, who is currently a captain
19 with the police department, I had met him for
20 lunch some days after that 30th.
21 Q. Okay.
22 A. I don't remember how many days. It was
23 two or three, or maybe the following Monday or
24 something.
25 Through general conversation with
369
1 myself and the other officers at the table,
2 there was mention made that Deputy Strait had
3 stopped at his house while he was doing some
4 construction work, and while Deputy Strait was
5 there, Sergeant Ruby had stopped by there and
6 talked to him briefly about did anybody come in
7 and help him with the shift.
8 Q. And you said it was about did anybody
9 come in and help him with the shift?
10 A. My recollection was Mike had -- Mike
11 Buske had informed me that there was
12 conversation about was Rod working by himself,
13 or something like that, or if anybody was called
14 back, and he didn't go into great detail at that
15 time, so --
16 Q. Do you know -- and I know this is what
17 Buske told you.
18 Do you know whether that meeting
19 or the events that Buske and Strait and Ruby
20 were all together was at the time of that shift
21 or on that day that that shift was vacant, or is
22 it your understanding that it was a different
23 time?
24 A. My understanding from what Mike told me
25 was on that day, Rod was in uniform shortly
370
1 after he came to work, and stopped at Mike's
2 house.
3 Q. Okay.
4 A. While Rod was there, Sergeant Ruby had
5 stopped by, off duty, and asked, inquired about
6 if was there anybody working with him. That was
7 the gist of the conversation.
8 Q. Okay.
9 I want to ask you about another
10 incident from November 13th of last year, 2007.
11 There was a suicide call at a trailer court. Do
12 you remember that situation?
13 A. In Coalville, yes.
14 Q. Coalville.
15 What was your involvement with
16 that situation?
17 A. I was working as a detective that day
18 also. I think Chief Deputy Jim O'Brien advised
19 me there was a situation in Coalville where a
20 female had called another person, stated that
21 she had a shotgun, I believe, and was going to
22 kill herself, and she was locked in her trailer.
23 Q. What did you do?
24 A. Myself and Jim O'Brien got in my
25 vehicle, which is an unmarked squad car, and we
371
1 started driving down there. The morning shift
2 was on their way there, or may have been at the
3 trailer court. I don't know at what time they
4 arrived there, but they were waiting there when
5 we got there.
6 Q. What do you mean, "waiting there"?
7 A. As you pulled into the trailer court,
8 Sergeant Ruby and Mike Richardson were waiting
9 at the entrance there.
10 Q. Were they in vehicles?
11 A. Marked patrol cars, yes.
12 Q. Were they in the same vehicle or
13 separate vehicles?
14 A. Separate cars.
15 Q. And you saw them sitting at the
16 entrance of the trailer court?
17 A. Yes. I may have radioed them and told
18 them that I was on my way in, that I was with
19 Jim, and we were coming down there to help them.
20 Q. And what were you planning to do when
21 you got there?
22 A. Determine a course of action or a plan
23 of what we should do to approach that trailer.
24 Q. And were you going to make that
25 decision yourself?
372
1 A. No. General practice would be to meet
2 with everybody involved in deciding what to do.
3 Q. And so I want to make sure I'm
4 understanding.
5 You were at the entrance to the
6 trailer court, and the woman was inside a
7 trailer somewhere within the trailer park?
8 A. There's a trailer park, and there's
9 three different streets that you enter the park
10 from, and her trailer was some distance in from
11 where we were parked at.
12 Q. Okay.
13 And so what happened when you
14 pulled up?
15 A. Well, as we came down the hill, we had
16 obtained the phone number to this female's
17 residence, or her cell phone, so our plan was to
18 try to call her once we got close to the trailer
19 and got set up.
20 And as we pulled up --
21 Q. Let me interrupt you.
22 You said "our plan." Who were
23 you talking --
24 A. Jim and I had discussed it on our way
25 there, and as we pulled up to talk to
373
1 Deputy Richardson and Sergeant Ruby, they just
2 kind of went ahead and pulled away, headed for
3 the trailer. Mike Richardson followed us, and
4 Sergeant Ruby went around to what I would call
5 the south end of the park, on the other side of
6 the trailer, not driving directly in front of
7 it.
8 Q. Did you have an opportunity to confer
9 with Sergeant Ruby and Mike Richardson?
10 A. No. Mike Richardson, once we got to
11 the trailer -- because he followed us. I think
12 Jim O'Brien called Sergeant Ruby on his cell
13 phone when he got to the other end to tell him
14 what the plan is.
15 Q. To tell him what your plan is?
16 A. Uh-huh.
17 MS. CONLIN: Excuse me. I am
18 very sorry, but I missed that. Would you mind
19 just speaking up a little bit? We've got a
20 machine going down here, and it's interfering
21 with my ability to hear you.
22 Would you please read back the
23 answer?
24 (Requested portion of the record
25 was read.)
374
1 Q. And what do you mean by what the plan
2 is?
3 A. Well, if the female was intending to
4 harm herself or us, we tried to formulate a plan
5 that we could get her out of there safely
6 without us being injured, so --
7 Q. Why was this -- The way -- I guess,
8 were you concerned about how this situation
9 played out?
10 A. Well, if you're asking was I surprised
11 that they drove away when we got there, is that
12 the --
13 Q. No. I guess -- Maybe I'll ask you that
14 question. Were you surprised when they drove
15 away when you got there?
16 A. I was not, no.
17 Q. Why not?
18 A. My common knowledge is that, since I
19 was with Jim -- There was tension between him
20 and Sergeant Ruby, and possibly with Mike
21 Richardson, so it didn't strike me as unusual
22 that when I showed up with Jim with me, that
23 they would drive away, and we would just have to
24 go in and do what we had to do.
25 Q. Did it strike you as inappropriate?
375
1 A. Well, it's not tactically safe to do it
2 that way, not have a plan to approach a house
3 where there could be a firearm in there.
4 Q. Did you think it was inappropriate for
5 Sergeant Ruby and Deputy -- I'm sorry,
6 Detective?
7 A. Deputy.
8 Q. -- Deputy Richardson to drive away?
9 A. I just wasn't surprised by.
10 Inappropriate, I don't know.
11 Q. Would you have done it?
12 A. No. I would have -- Most -- most of us
13 would have sat there and figured out what we
14 were going to do, and then we would have gone,
15 but I wasn't surprised at what happened.
16 Q. And you mentioned that there was some
17 kind of -- I don't want to use the wrong word.
18 What was -- what was the issue that you
19 perceived to be between Officer Ruby and
20 Chief Deputy O'Brien?
21 A. It was common knowledge, at least to
22 me, that there was tension between them and the
23 sheriff, administration and Sergeant Ruby.
24 Q. By "administration," you mean sheriff
25 and the chief deputy?
376
1 A. And Jim O'Brien, yes.
2 Q. And can you describe the tension?
3 A. I don't know factual basis for it. I
4 can -- I know that when Sergeant Ruby came to
5 morning shift, which is basically 6 a.m.
6 to 2 p.m., he wasn't one of the deputies that
7 would be around the office when it was open. If
8 he was there, it was before anybody got there.
9 Q. And how was that -- I guess, why is
10 that a concern, or why are you telling me that?
11 A. It's unusual that -- Most of the
12 deputies on this department frequent the office
13 whether they're working or not. The people that
14 have tension with the sheriff and chief deputy
15 usually don't.
16 Q. Did you ever see any interactions
17 between Chief Deputy O'Brien and Sergeant Ruby
18 that supported this belief there was some
19 tension?
20 A. Conversations firsthand, no.
21 Q. Okay.
22 A. Actions like the trailer court, yes. I
23 mean, I guess that's why it didn't surprise me
24 that that happened. I knew when I pulled up and
25 he was with me that that reaction was normal, to
377
1 me.
2 Q. Did you ever see any interactions
3 between Sheriff Mickelson and Sergeant Ruby that
4 supported this theory of tension?
5 A. Not firsthand, no.
6 Q. Did you hear about concerns or issues?
7 A. Well, you always hear about things
8 other deputies say and do and what their
9 perceptions are. You always hear that, but
10 firsthand, no, I did not.
11 Q. Are there any incidents that you've
12 heard that stand out?
13 A. Well, I know that Sergeant Ruby had
14 been in a meeting with our union representative
15 at some point in time. I don't know what time
16 that was, and that that had caused some friction
17 between them about whatever --
18 Q. Friction between whom? I'm sorry.
19 A. The sheriff and Sergeant Ruby.
20 Q. Okay.
21 Anything else?
22 A. I don't -- I don't know any particular
23 incidents that I could tell you. It was just
24 kind of common knowledge that they didn't get
25 along.
378
1 Q. Did you see any tension, as you
2 describe, between Sergeant Ruby and the
3 administration at the Fort Dodge Police
4 Department?
5 A. My recollection is that there was a
6 group of what I would call, at that time, older
7 officers, which I'd probably fit into now, but
8 at that time, the older officers on the police
9 department always had -- You know, they thought
10 the administration was against them, and so
11 there was a group of officers that I would say
12 he was in that particular incident that would
13 classify that. I don't have any, no.
14 Q. And I'm sorry, but something happened
15 outside.
16 Did you say you thought that Curt
17 Ruby was in that group of officers?
18 A. I would say he was. There was a large
19 number of city officers in that group at that
20 time.
21 Q. Okay.
22 I want to ask you about a couple
23 of situations involving domestic calls now. If
24 you'll turn to -- There's Exhibit R in the red
25 book. This is involving an incident July 25th,
379
1 2007, about Virginia and Victor Carlson.
2 A. Yes.
3 Q. And if you'll turn to page 333, and
4 there's numbers on the bottom. Do you see?
5 Okay. Is the second paragraph
6 towards the bottom of the page, is that your
7 handwriting?
8 A. Yes.
9 Q. Okay.
10 What do you remember happening
11 that morning?
12 A. I was working as a detective on that
13 day. When I arrived at work -- I don't remember
14 the time. It was in the morning hours -- I was
15 advised by Chief Deputy O'Brien that
16 Mrs. Carlson had came into the office to talk to
17 them about an assault that had taken place the
18 night before, and that she was wanting to file
19 charges on her husband, Vic Carlson.
20 Q. And did you -- I'm sorry. Who did you
21 say that Mrs. Carlson had called?
22 A. She was there.
23 Q. She was there?
24 A. I think she was in the office with the
25 sheriff, and the chief deputy, Jim O'Brien, was
380
1 in his office, or in with the sheriff, and had
2 informed me what she was doing there and asked
3 me to fill out the paperwork.
4 Q. So you think that Virginia Carlson was
5 there that morning?
6 A. I know she was there.
7 Q. She didn't sign the complaint, though,
8 did she?
9 A. No.
10 Q. You signed the complaint; right?
11 A. Yes.
12 Q. If you look at 334 --
13 A. Yes.
14 Q. -- and if you -- I don't see a
15 statement from Mrs. Carlson in this file. Do
16 you recall her actually writing a statement?
17 A. No.
18 Q. Did you discuss that -- or did you meet
19 with Mrs. Carlson at all?
20 A. No.
21 Q. Did you meet with her daughter,
22 Virleen?
23 A. No. This information that I
24 wrote in that paragraph was relayed to me from
25 Chief Deputy Jim O'Brien.
381
1 Q. Do you know when he first became aware
2 of this situation?
3 A. I would assume that morning. I don't
4 know that.
5 Q. Did he tell you how it came to his
6 attention?
7 A. Probably from her coming into the
8 office.
9 Q. Okay.
10 A. I know he handed me this report while
11 he was talking to her.
12 Q. While he was talking to who?
13 A. To her in Brian's office, I believe.
14 Q. Do you know whether he had reviewed the
15 report before she got there?
16 A. I would assume that he did since she
17 was there.
18 Q. You would assume who did; Jim did?
19 A. Jim O'Brien looked at the report,
20 handed it to me, went in and talked to her some
21 more. I filled out a complaint.
22 Q. This report would have been prepared by
23 Officer Ruby initially; correct?
24 A. Yes.
25 Q. And that would have been done during
382
1 the night?
2 A. The night previous.
3 Q. Right.
4 A. At 11 minutes after 10 is the time on
5 the report.
6 Q. And if you draft reports like this,
7 what do you do with them?
8 A. They're submitted to our clerical staff
9 to be logged.
10 Q. Do you know what happens to reports
11 that you bring in at the end --
12 A. I think they go to the secretaries, who
13 log them in our system.
14 Q. Okay.
15 A. They're in the office in the morning in
16 a basket.
17 Q. Do you know if anybody reviews them?
18 A. The previous shift might when they come
19 on, like, for example, if on this case, if they
20 went home at six in the morning, and the morning
21 shift came on at six, they may look at the
22 reports to see what happened the night before.
23 Q. Do you know whether
24 Chief Deputy O'Brien looks at reports that
25 are --
383
1 A. Yes, he did.
2 Q. He does?
3 A. Yes.
4 Q. So you wrote the second paragraph on
5 page 333; right?
6 A. Yes.
7 Q. Okay.
8 And then you drafted the
9 complaints?
10 A. Yes.
11 Q. And in the complaint, the assault
12 alleged was pulling her hair numerous times
13 while arguing and attempted to slam her leg in a
14 car door more than one occasion; is that right?
15 A. Yes.
16 Q. And then it says that he is verbally
17 abusive to her; is that right?
18 A. Yes.
19 Q. And that information came from where?
20 A. From Virginia.
21 Q. And then what was the next thing that
22 you did after you -- Well, I guess, let me ask
23 the order in which you prepared these, if you
24 know.
25 A. Order in which I prepared the report or
384
1 the complaint?
2 Q. Yes.
3 A. I filled out the complaint.
4 Q. Okay.
5 A. Mr. Carlson, while this was going on,
6 had came into the office wanting to speak to
7 someone in reference of filing charges on his
8 wife.
9 So I prepared this complaint, had
10 it notarized, and then I went out into the lobby
11 and arrested Mr. Carlson for domestic assault,
12 along with Deputy Robinson, who signed the
13 bottom of this. He was with me when we went and
14 talked to Mr. Carlson.
15 Q. Okay.
16 Let me ask, were you surprised,
17 based on the information you put in the
18 complaint, that Mr. Carlson wasn't arrested the
19 night before?
20 A. Surprised is probably not the right
21 word.
22 Q. Okay.
23 What was your reaction?
24 A. It's not totally unusual that that
25 would not happen.
385
1 Q. Can you explain that?
2 A. Depending on the circumstances, I think
3 it's up to, you know, what -- I wasn't at the
4 scene. I don't know what the scene was.
5 Q. All right.
6 A. I don't know what she told
7 Sergeant Ruby and whoever else was there.
8 Q. Okay.
9 A. I know that morning she seemed afraid
10 and wanted charges filed, so that's what I did.
11 Q. Okay.
12 If you look at 332, this is
13 Sergeant Ruby's writing; right?
14 A. Yes.
15 Q. And it says, "Vic Carlson became angry
16 at his wife Virginia and pulled her hair during
17 an argument," and that she was hesitant
18 regarding charges.
19 A. Uh-huh.
20 Q. Isn't that true?
21 A. Yes.
22 Q. And that they decided not to report,
23 and a follow-up with D/SAOC would be okay for
24 now. Do you see that?
25 A. Yes, I see that.
386
1 Q. I guess you had mentioned, you know,
2 you don't know what was told to the officer at
3 the scene, but it appears that he was at least
4 told that hair was being pulled; is that right?
5 A. Yes.
6 Q. And is that -- That's not something
7 that would lead you to an arrest at that point,
8 or is it?
9 A. Normally, it would, yes.
10 Q. "Normally, it would." Can you explain
11 that?
12 A. Domestics are kind of difficult to deal
13 with in the sense that sometimes the victims
14 don't want to be responsible for putting their
15 spouse in jail, or depending on the
16 circumstances. They can vary.
17 Q. Right.
18 A. My personal practice is, if I go to a
19 domestic and someone says they were assaulted, I
20 arrest the person that assaulted them just to
21 eliminate the problem for the night, I guess
22 would be the best answer. That's -- I know the
23 Iowa Code says you shall arrest or you may
24 arrest, depending upon what the degree of the
25 charge is.
387
1 Q. Right.
2 A. I feel it's safer to arrest than not.
3 Q. All right.
4 A. That's my personal feelings.
5 Q. I see.
6 And you said you arrested Vic
7 Carlson?
8 A. Yes.
9 Q. Did you take him to the jail?
10 A. Yes.
11 Q. Did you hear him say anything about
12 what happened while you were taking him to the
13 jail?
14 A. Yes.
15 When we arrived at the jail, I
16 Mirandized him, and I asked him some questions
17 on videotape at the jail.
18 Q. What did he say?
19 A. He admitted to pulling her hair and
20 slamming her leg in the car.
21 Q. I want to talk about another domestic
22 call that you ended up writing a complaint on.
23 If you turn to the next tab, S,
24 this is an incident from Monday, August 6th,
25 2007, at 2:00 a.m. Do you see that?
388
1 A. Yes.
2 Q. And I want you to look at, first, the
3 complaint. You prepared that complaint; is
4 that -- I'm sorry. The incident report, 345?
5 A. Yes.
6 Q. And 346 is the narrative portion?
7 A. Yes.
8 Q. And that indicates that the offender
9 hit the woman in the mouth with a closed fist
10 causing her to spit blood, and that he then
11 grabbed her by the hair and pulled her until a
12 friend stopped him?
13 A. Yes, I wrote that.
14 Q. Where did you get that information?
15 A. She came to our office that morning,
16 and I filled this report out.
17 Q. The following --
18 A. The victim.
19 Q. Later on that morning?
20 A. Yes, on the 8th, the morning of
21 the 8th, I believe.
22 Q. Well, it looks like the event took
23 place August 6th.
24 A. Right, so it would have been two days
25 later, basically.
389
1 Q. A little bit later?
2 A. Yes.
3 Q. And then was somebody -- this Brandon
4 Ubben on page 347, was he with her when she came
5 in, or did he come separately?
6 A. He was with her.
7 Q. Okay.
8 And he prepared a statement as
9 well?
10 A. Yes.
11 Q. And is that your signature as a witness
12 down at the bottom of this statement?
13 A. Yeah, it is.
14 Q. And the arrest report, that does not
15 look like your handwriting, is it, 348?
16 A. My recollection is he was arrested a
17 day or two later, not that day. I couldn't find
18 him that day after I filed this.
19 Q. Then the next page, 349, is -- looks
20 like a document of some sort to Jim from Curt,
21 and I don't see a date on it.
22 Did you see this page 349 before
23 you talked to Alicia?
24 A. I believe I read it before. It might
25 have been brought to my attention when she came
390
1 in that she was here and it's about this, so --
2 and that came from Jim O'Brien.
3 Q. And the way that it reads, this had to
4 have been written after Monday evening because
5 it mentions that the perpetrator had called
6 Sergeant Ruby on Monday evening. Do you see
7 that? It's about halfway down.
8 A. Yes, I see it.
9 Q. Do you know when this -- Well, do you
10 know where this page 349 was -- what happened to
11 it or where it was?
12 A. The original report of this?
13 Q. Yeah, yes.
14 A. This tagged report?
15 I believe the original was left
16 for the chief deputy, Jim O'Brien, to inform him
17 what had taken place on the early morning hours
18 of Monday the 6th.
19 Q. There was no incident report prepared
20 on Monday, August 6th?
21 A. No.
22 Q. Was there?
23 A. No.
24 Q. And there was no incident report
25 prepared on August 7th either, was there?
391
1 A. No.
2 Q. And you prepared one, then, on
3 August 8th?
4 A. When she came to the office, yes.
5 Q. Okay.
6 Do you know whose handwriting is
7 at the bottom of this 349? I'm sorry. You have
8 to flip it over.
9 A. I would only assume that that may be a
10 dispatcher or one of our secretaries that
11 answered the phone and wrote that note.
12 Q. I see. These may have been on sticky
13 notes or something. I can't tell.
14 Do you know if it was actually
15 written on the piece of paper or --
16 A. When I saw this document, it was not on
17 there.
18 Q. Oh, okay.
19 And so you prepared the complaint
20 and the incident report?
21 A. Yes.
22 Q. Were you surprised that this -- that
23 there was no incident report prepared during the
24 incident itself?
25 A. Well, the surprise word again.
392
1 Q. Sure.
2 A. I don't know if that's the correct
3 term.
4 Q. How do you feel about the fact that
5 there was no incident report prepared that
6 night?
7 A. Again, I wasn't there, but at a bare
8 minimum, maybe that should be done --
9 Q. Okay.
10 A. -- to at least document that there was
11 a call there in the event that something else
12 would take place at a later time. I think at a
13 bare minimum that should be done.
14 Q. The contents of page 349 indicates some
15 of the things that typically appear in an
16 incident report; right?
17 A. Right.
18 Q. Do you sometimes just prepare side
19 notes rather than draft a report, a formal
20 incident report?
21 A. Do I?
22 Q. Yes.
23 A. No. In the time it took to type this,
24 there could have been an incident report, is my
25 feeling.
393
1 Q. And then 349 has some descriptions.
2 The second line indicates that, "Christopher was
3 reported as having Alysha in the car and he had
4 assaulted her (no details)."
5 Is -- I'm not certain as far as
6 when you prepare reports. Do you usually use
7 the word "assault" or would you give, you know,
8 a description of what physically happened?
9 A. I would describe what happened in as
10 much detail as possible for court assist, would
11 be my preference.
12 Q. I guess if you read the next -- Well,
13 skip a sentence. "Alysha said she was assaulted
14 but that she had fought back and was worried
15 about what would happen if she pursued the
16 issue."
17 Do you have circumstances where
18 you have that sort of situation where a victim
19 says, "Oh, I fought back. What's going to
20 happen to me?"
21 A. Yes.
22 Q. What do you do in those circumstances?
23 A. Each circumstance is different,
24 obviously.
25 Q. Sure.
394
1 A. But I think while you're there you need
2 to determine who the aggressor is and make an
3 arrest that would eliminate that problem of
4 anything further as far as pursuing charges
5 against her.
6 Q. The Code provides that the officers
7 should determine who the primary aggressor is;
8 right?
9 A. Yes.
10 Q. And you've had to do that on
11 occasion --
12 A. Yes.
13 Q. -- in your 18 years of law enforcement,
14 I suppose, at some point?
15 A. Yes.
16 Q. There's a reference also that -- that a
17 guy struck him in the face when he was
18 assaulting Alicia. Do you see that? A couple
19 of lines down, after -- Oh, gosh. Let me count.
20 Two, three -- like about the 12th line.
21 A. Yes, I see that. "After she left,"
22 that sentence?
23 Q. Yeah. "After she left he was angry and
24 wanted to file charges against a guy that struck
25 him in the face when he was assaulting Alysha."
395
1 And so it appears, does it --
2 Does it appear that Mr. Long had admitted he was
3 assaulting Alicia at that time?
4 A. Yes.
5 Q. Then the next sentence says -- Well,
6 it's a continuation. "I told him no and if he
7 wanted to he could file a report at a later time
8 after he calmed down and sobered up (actually he
9 seemed more 10-200 than drinking)."
10 What's "10-200"?
11 A. Drug usage or drugs, using drugs.
12 Q. And the reference there is to, I guess,
13 the first -- as -- in reference to Mr. Long
14 arriving at the scene in his car, leaving and
15 coming back in his vehicle. Is that -- Do you
16 see that?
17 A. Yes.
18 Q. And if you suspect someone is under the
19 influence of either drugs or alcohol, is there a
20 process that you would do at that point,
21 typically?
22 A. As far as driving?
23 Q. Yes.
24 A. Determine their sobriety level would be
25 appropriate.
396
1 Q. Is there any indication here whether
2 that was done?
3 A. No.
4 Q. Based on the information that
5 Officer Ruby describes as what happened, do you
6 have -- What do you think he would have done in
7 that situation as far as -- Let me be more
8 clear.
9 Do you think that you would have
10 arrested Mr. Long at that time?
11 A. Given the information that -- when I
12 spoke to Alicia on Tuesday.
13 Q. Sure.
14 A. What she told me that day, yes, I would
15 have.
16 Q. Okay.
17 A. I think it's very difficult for one
18 officer to quarterback something that he wasn't
19 present to.
20 Q. I understand that. I appreciate that
21 and understand.
22 A. The information she provided me led me
23 to believe that he should be arrested for
24 assaulting her. The fact that she said her
25 mouth was bloody and he pulled her hair and
397
1 another guy had to stop the whole thing, that
2 led me to believe that he should be arrested.
3 Q. Can you turn one more time, please, to
4 the next tab, T. We've got a situation
5 regarding Tammie Chase and Rickey Chase, and you
6 have a report that you prepared. It's page 360.
7 A. Yes.
8 Q. And it indicated you had overheard
9 radio traffic regarding a welfare check --
10 A. Yes.
11 Q. -- from Sergeant Ruby that he and Mike
12 Kenyon were going to be doing?
13 A. Right.
14 Q. Then the next line said, "There was
15 something said about a previous domestic
16 situation."
17 Do you recall what was said about
18 the previous domestic situation?
19 A. No. It was -- They were out at that
20 house in regards to a previous domestic
21 situation. I was in the office as an
22 investigator again that day and heard that on
23 the scanner.
24 Q. I see.
25 Were you asked to assist with
398
1 that at that point at any -- Let me back up.
2 The end of this paragraph says it
3 was about 1:30 to 1:50 p.m.?
4 A. Yes.
5 Q. Were you called to assist in any way at
6 that time?
7 A. No. That was the first I had heard of
8 anything that we did that day, was at that time.
9 Q. Are there occasions where detectives
10 would go and assist situations that arise out in
11 the field?
12 A. Sure.
13 Q. Were you asked to go to the hospital to
14 visit with Mrs. Chase?
15 A. At that particular time, I didn't know
16 that there was anybody at a hospital, at 1:30,
17 or when they went out there.
18 Q. That's fair.
19 You mentioned the domestic
20 situation. You just didn't know what had
21 happened; right?
22 A. Right. Detective Kenyon was with him,
23 and him being my responsibility, I was
24 inquisitive as to what he was doing, so I spoke
25 to him later.
399
1 Q. Okay.
2 Then that paragraph also has a
3 sentence, it says, "After a short time Sgt. Ruby
4 advised that they were unable to locate the
5 subject and he notified Deputy Robinson that
6 there was no report or charges at this time."
7 What does that mean?
8 A. Deputy Robinson works the afternoon
9 shift.
10 Q. Uh-huh.
11 A. He had just came on during that time
12 frame.
13 Q. Right.
14 A. And I believe Sergeant Ruby had
15 informed him what they were doing at Duncombe,
16 passing on to him that there were no report or
17 charges at this time, that they were just
18 leaving after checking this house for Mr. Chase.
19 Q. And I guess my question is, what does
20 it mean, "there were no report or charges"?
21 A. That neither him or whoever was working
22 that day hadn't filed an incident report on
23 whatever had taken place up to that point.
24 Q. Then the next sentence indicates that
25 at approximately 4:30 p.m. this same day
400
1 Duncombe Police Chief Delbert Smith called and
2 advised that he had taken a domestic assault
3 report from Tammie Chase; is that right?
4 A. Yes.
5 Q. Okay.
6 I don't want to -- Let me -- Do
7 you understand or do you have an understanding
8 as to why there was a delay in getting a report
9 from the wife?
10 A. Yes. At that particular time when I
11 spoke to the police chief of Duncombe, Delbert
12 Smith, he had been notified by Mrs. Chase's
13 employer, which is Mike Simons, who runs the
14 Duncombe Gas & Grocery Store, who had called
15 Delbert to inform him they had made it back from
16 the hospital and she wished to file a report for
17 domestic assault.
18 So he did that, and then notified
19 us, wanting assistance in checking this house
20 for Mr. Chase.
21 Q. Okay.
22 A. There was some conversation or belief
23 that Mr. Chase may be in that house and may be
24 willing to harm himself or others that came into
25 the house.
401
1 Q. So your understanding from Officer --
2 or Police Chief Smith was that he got a
3 second -- he got a call in the later afternoon
4 from Mrs. Chase after she had returned from the
5 hospital?
6 A. Yes.
7 Q. Okay.
8 A. I think Mike Simons had actually
9 notified the police chief.
10 Q. I'm sorry. Thank you.
11 Would it be a normal practice for
12 someone to actually go to the hospital if there
13 was knowledge that the victim was going to the
14 hospital?
15 A. Normal practice would be, yes. I think
16 whoever got the information initially -- and I
17 don't know if that was Sergeant Ruby or whoever
18 was working that day got that. If there was a
19 victim at a hospital, I would deem that
20 important to go find out what caused that person
21 to be at the hospital. That would be important
22 to me, especially to determine the extent of the
23 injuries, if it was life-threatening.
24 Q. And do you know who was in charge of
25 that situation at that time?
402
1 A. That particular minute, I did not. I
2 later learned that Lieutenant Stubbs had
3 received a call that began this process.
4 Q. Okay.
5 And are you aware of any
6 conversations between Lieutenant Stubbs and
7 Officer Ruby about who was going to handle what?
8 A. No. No personal knowledge, no.
9 Q. All right.
10 And the first traffic that you
11 had heard as far as someone actually going out
12 to deal with this incident was the traffic from
13 Sergeant Ruby that he and Kenyon were going out
14 to check the residence earlier, about 1:30 p.m.?
15 A. That was the first I had heard of it,
16 yes.
17 Q. That's the first.
18 MS. PENICK: I'm finished with
19 direct.
20 MS. VALENTINE: Cross?
21 MS. CONLIN: Yes, please.
22 CROSS-EXAMINATION
23 BY MS. CONLIN:
24 Q. In connection with your testimony,
25 Sergeant, did you talk with Brian Mickelson?
403
1 A. Regards my testimony about what?
2 Q. Here.
3 A. Today?
4 Q. Today, uh-huh.
5 A. Not with the sheriff, no.
6 Q. You talked with the chief deputy,
7 O'Brien?
8 A. The counsel.
9 Q. Oh, you talked with the lawyer?
10 A. I have had conversations with her about
11 what I would be asked about, yes.
12 Q. Okay.
13 And did you talk with
14 Chief Deputy O'Brien about your testimony here
15 today or the facts of these incidents?
16 A. Not about my testimony.
17 The facts of these incidents we
18 had talked about as they were going on.
19 Q. In the last couple of weeks, let us
20 say, have you talked with Chief Deputy O'Brien
21 about these incidents?
22 A. No.
23 Q. Did you review any documents in
24 connection with your testimony?
25 A. I believe I've read my report in
404
1 reference to the incident in Duncombe.
2 Q. Anything else?
3 A. No, not that I recall.
4 Q. Okay.
5 When were you promoted?
6 A. July, I believe, of last year.
7 Q. July of 2007?
8 A. Yes.
9 Q. And have you ever conducted any
10 investigation about the conduct of
11 Sergeant Ruby?
12 A. Personal investigations, no.
13 Q. Any investigation.
14 A. I made copies of incident reports at
15 the request of Jim O'Brien one time. I had
16 access to our Sleuth computer, which stores
17 incident reports. That was about my assistance
18 in investigation.
19 Q. Did you ever question any other officer
20 about Sergeant Ruby's conduct?
21 A. No.
22 Q. You talked about this March 30th
23 incident of 2006, which is reflected in
24 Exhibit E. I don't think you really need to
25 refer to it for the questions I'm going to ask
405
1 you, but did -- have you ever known in the past,
2 since Brian Mickelson became sheriff, any other
3 time when only one deputy worked?
4 A. Shortly after he was elected sheriff,
5 our morning shift was short for some reason. I
6 believe somebody was off on job injury. On
7 occasion -- I was working the morning shift in
8 uniform at that time. On occasion, on weekends
9 we would have reserve officers out with myself
10 and two reserve officers or another deputy and
11 two reserve officers, so that would constitute
12 two people working.
13 Q. All right.
14 And so the incident that you
15 remember right after he became the sheriff, can
16 you tell me what shift that happened on?
17 A. On our morning shift.
18 Q. Okay.
19 A. Which is 6 a.m. to 2 p.m.
20 Q. And do you recall who would have been
21 in charge of that shift at that time?
22 A. No.
23 Q. All right.
24 So that when -- You say "shortly
25 after," so it would have been sometime after two
406
1 thousand -- maybe late 2003, early 2004?
2 A. My recollection is '04 because at the
3 time of his election, I was a detective, and
4 then due to change in personnel, I was moved to
5 the morning shift to cover a shift for a couple
6 of years, as it turned out.
7 Q. All right.
8 And the other times that you
9 remember you'd be covered with a couple of
10 reserves?
11 A. I myself worked with a couple of
12 reserves on weekends and holidays.
13 Q. All right. Let's turn to R, if you
14 would, please.
15 In connection with this
16 situation, Sergeant, were you ever disciplined?
17 A. In this incident?
18 Q. Yes, with respect to the Virginia
19 Carlson matter.
20 A. No.
21 Q. Were you ever counseled?
22 A. No.
23 Q. Was your conduct ever questioned?
24 A. No.
25 Q. And when you made the charge that you
407
1 made, were you relying on the Iowa Incident
2 Report, 332 and 333, part of which is yours,
3 part of which is Sergeant Ruby's?
4 A. I'm not sure what the question was.
5 Q. Sorry.
6 When you made the charge that you
7 made --
8 A. Filled out the complaint?
9 Q. Yes.
10 -- were you relying on what is
11 said in the incident report?
12 A. Partially.
13 Q. All right.
14 You had this, you read it, you
15 knew what had happened based on this?
16 A. Right.
17 Q. And you knew that Virginia Carlson did
18 not want charges filed at this -- at that night?
19 A. Based on what was wrote in their
20 report, yes. She was hesitant to, I think is
21 the wording there.
22 Q. And according to Curt, the reporting
23 person, which would be Mrs. Carlson, "and I,
24 decided a report and a follow up w/ DSAOC" --
25 and that's the domestic/sexual abuse shelter;
408
1 right?
2 A. Correct.
3 Q. -- "would be okay for now," and with
4 the understanding if he had to come back, he was
5 going to be arrested; right?
6 A. Right.
7 Q. Did you know Mr. Carlson?
8 A. Yes.
9 Q. And Mrs. Carlson?
10 A. Not so much her. More him.
11 Q. How did you know him?
12 A. From repeated dealings with him.
13 Q. And what kind of dealings?
14 A. Repeated calls to his property in
15 Coleman over parking and other issues.
16 Q. But not domestic violence?
17 A. No, not myself, no.
18 Q. I can't read your writing, so if you
19 would turn to 333 and read the entry that you
20 wrote, I would be very grateful.
21 A. "On Thursday a.m. Virginia Carlson
22 called into the office and spoke with
23 Sheriff Brian Mickelson about the assault that
24 took place Wed. evening. She gave her
25 description of the incident to him and he then
409
1 prepared a report of these details."
2 "I then prepared a report of
3 these details. The listed witness observed the
4 assault take place. She is the daughter of the
5 victim."
6 Q. All right.
7 And then you do not directly talk
8 with Mrs. Carlson; correct?
9 A. No. She was in Sheriff Mickelson's
10 office when I was completing this paperwork.
11 Q. All right.
12 Look at 339. I assume that from
13 the content you prepared this before you did the
14 complaint; correct?
15 A. Yes.
16 Q. All right.
17 A. Did I review this report? Is that what
18 you asked?
19 Q. I'm sorry, I did not hear you.
20 A. What was your question?
21 Q. Okay.
22 Starting again, did you prepare
23 339 before you prepared the complaint?
24 A. I did this report afterwards.
25 Q. Okay.
410
1 You prepared, it says, a
2 complaint, and then you contacted Jennifer
3 Weaver, explained the report to her, and she
4 approved the complaint?
5 A. Yes.
6 Q. So you prepared it before; right?
7 A. The complaint?
8 Q. Yes.
9 A. Yes.
10 Q. All right.
11 And then Carlson came in, and
12 what he wanted to do was file a report against
13 Virginia Carlson; correct?
14 A. Correct.
15 Q. All right.
16 The reason I asked you whether or
17 not you had been disciplined in connection with
18 this is because, in fact, based on what
19 Sergeant Ruby wrote and what Sheriff Mickelson
20 said, you filed a complaint under 708 --
21 708A(2)(a); correct? That would be 334.
22 A. 708.2A(2)(a), yes.
23 Q. That section of the Code absolutely
24 does not require mandatory arrest; correct?
25 A. I believe that's a simple domestic
411
1 assault. That says you may.
2 Q. Okay.
3 So the answer to my question is
4 yes?
5 A. Yes.
6 Q. All right.
7 And you filed this under the
8 nonmandatory section of the Iowa Code; correct?
9 A. Correct.
10 Q. So when you heard all of these details
11 and knew what had happened, your charge does not
12 reflect bodily injury; correct?
13 A. Correct.
14 Q. All right.
15 And you consulted with the
16 assistant county attorney in doing that?
17 A. Yes.
18 Q. And you were not disciplined, you were
19 not counseled, nothing bad happened to you?
20 A. No.
21 Q. Let's look at -- Oh, I'm sorry. Let's
22 look at 526. You really don't need to go
23 through that. I am just wondering -- 526 I
24 believe has already been admitted.
25 MS. VALENTINE: Not by number,
412
1 but it could be -- What is the exhibit that
2 you're referring to?
3 MS. CONLIN: It is the court
4 record for Victor Carlson.
5 MS. PENICK: I don't have it.
6 MS. VALENTINE: It has not been
7 admitted.
8 Q. All I wanted to ask you about this is,
9 were you aware that after you charged under
10 708.2A(2)(a), the charge was reduced to simple
11 assault?
12 MS. VALENTINE: Just for
13 clarification, this is dealing with a different
14 case.
15 MS. PENICK: Right.
16 MS. VALENTINE: Not the Victor
17 Carlson case.
18 MS. CONLIN: I'm sorry.
19 MS. PENICK: You'll probably use
20 that next.
21 MS. CONLIN: That's exactly
22 right. Just keep it, and I'll withdraw that
23 question because it applies to a different case.
24 It applied back to the Wardlow case, so let me
25 ask you now.
413
1 First, I would offer 526.
2 MS. VALENTINE: Any objection?
3 MS. PENICK: No.
4 MS. VALENTINE: It will be
5 admitted.
6 Q. And so with respect to Christopher
7 Long, who is the assailant of Alicia Wardlow,
8 were you aware that his charge had been reduced?
9 A. No.
10 Q. In connection with the Wardlow case, do
11 victims sometimes not trust cops?
12 A. "Do victims," is that what you said?
13 Q. Yes.
14 A. Yes.
15 Q. Have you ever been to the Wardlow-Long
16 residence before?
17 A. Not on a domestic call, no.
18 Q. What kind of calls, do you remember?
19 A. I was there with Department of Human
20 Services on a referral for their children.
21 Q. And were you ever disciplined or
22 counseled with respect to the way that you
23 handled the Wardlow-Long case?
24 A. No.
25 Q. Turn to S, if you would. What is this
414
1 document? I mean, what's the -- What kind of a
2 document is it?
3 A. The first page?
4 Q. Yeah.
5 A. Incident report.
6 Q. Okay.
7 This is an incident. Even though
8 it doesn't say up there --
9 A. Depends what you're looking at.
10 Q. Oh, I'm sorry. This is the incident
11 report.
12 A. That page that you're looking at is the
13 narrative for the incident report.
14 Q. Got it.
15 MS. VALENTINE: Can we have a
16 page number to help us?
17 MS. CONLIN: Yes. It's the first
18 two pages of S.
19 MS. VALENTINE: Thank you.
20 A. 345 is an actual cover sheet that's the
21 front side of an incident report.
22 Q. Okay.
23 A. 346 is the back side. If you flip an
24 incident report over, that's the back side of
25 it.
415
1 Q. I'm sorry. I'm just not as familiar as
2 I will be soon with these forms.
3 In this case you also charged
4 Christopher Long under the nonmandatory section
5 of the Code; right?
6 A. Yes.
7 Q. So if you had been there, you would not
8 have had to arrest him; correct?
9 A. Say that again. If I had been there --
10 Q. If you had been the officer that showed
11 up, you would not -- under the code section that
12 you charged, you would not have had to arrest
13 him.
14 A. On the day I filled out this incident
15 report, it was charged as nonbodily injury
16 because I didn't observe the injuries on her.
17 Q. Oh.
18 Now, are you under the impression
19 that you have to observe injuries in order to
20 file mandatory -- under Section 708.2A(2)(b)?
21 A. That -- Not under the impression. That
22 certainly assisted that determination whether we
23 filed, bodily injury or not.
24 Q. Okay. Let me see if we agree on the
25 law.
416
1 Bodily injury, while it often is
2 visible, is not necessary for charging under the
3 mandatory arrest provisions of 708.2A(2); right?
4 A. That's possible. I'd have to read the
5 Code. I don't know it by heart.
6 Q. Okay.
7 A. I charged simple misdemeanor that day
8 because she didn't appear to have any injuries
9 around her mouth. That's what I did.
10 Q. Did you look inside her mouth?
11 A. Yes.
12 Q. This is just two days after she was
13 hurt?
14 A. Yes.
15 Q. And at that time, you couldn't see
16 anything?
17 A. No.
18 Q. Do you know, Sergeant, that, in fact,
19 what is required is that the victim be hurt, not
20 that there be a visible injury?
21 A. For which charge?
22 Q. 708.2A(2)(b).
23 A. I'd have to refer to the Code for the
24 wording. I don't want to say yes if I haven't
25 seen it. I don't know.
417
1 Q. Did you refer to the Code before you
2 wrote these charges?
3 A. On the simple assault?
4 Q. Yes.
5 A. No.
6 Q. You say in your incident report, 346,
7 that the R.P. -- oh, you know, I'm just going to
8 have to ask you to read this. I did not bring
9 my magnifying glass.
10 And begin, if you would, with,
11 "The R.P. reported this to Sergeant Ruby."
12 A. "The R.P. reported this to Sgt. Ruby at
13 the time this assault occurred, however she was
14 unsure if she wanted charges filed. The R.P.,"
15 which stands for reporting person, by the way,
16 "then called reporting officer," that would be
17 me, "on Tues. a.m. and wanted this report filed.
18 The complaint will be sent to the county
19 attorney's office for approval. At time of the
20 report no injuries were visible on R.P."
21 Q. All right.
22 A. "She also stated the offender has been
23 abusive in the past, however she was afraid to
24 file a report.
25 "The listed witness was present
418
1 during this assault and gave a statement" to
2 this officer, "R.O. of what he observed. See
3 written statement."
4 Q. All right.
5 Turn now, if you could, to 349,
6 which is the document that Sergeant Ruby wrote
7 before he left for the day and gave, apparently,
8 to Jim O'Brien?
9 A. That's my understanding.
10 Q. Jim O'Brien gave it to you?
11 A. At some point I believe when she came
12 in, I read this.
13 Q. Okay.
14 Have you ever been to a scene of
15 domestic violence where it's chaotic?
16 A. Yes.
17 Q. Okay.
18 And in this case, what happened,
19 according to 349 -- and I'm just going to
20 summarize this -- is Sergeant Ruby gets there.
21 She is there, and -- Actually, he drops her off
22 at the location, and then she -- she fought
23 back, and she was worried about what would
24 happen if she pursued the issue.
25 What she wanted was to get out of
419
1 there with her children. Do you see that?
2 A. Yes.
3 Q. That's a pretty legitimate reason not
4 to be standing around questioning the witness in
5 detail. Would you agree?
6 A. If it occurred that way, yes.
7 Q. Okay.
8 And it says, "After she left he
9 was angry and wanted to file charges against a
10 guy that struck him in the face when he was
11 assaulting Alicia."
12 That doesn't indicate that that's
13 a quote from Mr. Long, does it?
14 A. It doesn't indicate anything but what
15 his opinion was.
16 Q. Okay.
17 Well, whose opinion?
18 A. Sergeant Ruby's.
19 Q. Okay.
20 So what Long could have said to
21 Sergeant Ruby is, "Arrest that guy. He hit me";
22 right?
23 A. Correct.
24 Q. Okay.
25 A. It could be anything.
420
1 Q. Is it also your experience, Sergeant,
2 that sometimes victims are -- have concerns
3 about dual arrests; right?
4 A. Dual arrests or retaliation or --
5 Q. All kinds of things.
6 A. -- making somebody mad or -- Yes.
7 Q. Are you also aware that when a couple
8 breaks up, that's the absolutely most dangerous
9 time for the victim?
10 A. I don't think I'm an expert on what
11 that would be. It's not -- Domestics themselves
12 are not good, no matter what time it is.
13 Q. Yeah, I know that.
14 In terms of this dual arrest
15 thing that she was talking about, she hit back,
16 she said. Has it been your experience that
17 these victims are sometimes worried about what
18 will happen if they get arrested is that they
19 will lose custody of their children?
20 A. I've heard that situation arise.
21 Q. Okay.
22 A. I don't know what was said that night.
23 I wasn't there.
24 Q. And then the Chase, the Tammie Chase
25 situation, that is Exhibit T, and turn, if you
421
1 would back to your report, which is 360, at the
2 beginning of which you say you overheard the
3 radio traffic, and that Sergeant Ruby and Kenyon
4 would be out at the above-listed residence, and
5 each of these guys is in their own car; right?
6 A. I don't know that for a fact. I would
7 assume so, yes.
8 Q. And there was something said about a
9 previous domestic situation, and from your
10 earlier testimony, it's my understanding that
11 that radio traffic did not include any
12 information that she was in the hospital?
13 A. Correct.
14 Q. Or at the hospital, as the case may be.
15 I want to ask you now to look at
16 Defendant's Exhibit N. It is a copy of the
17 Code.
18 A. Is that in this book?
19 Q. Yes. It's in the red book.
20 A. N as in Norma?
21 Q. Yes.
22 A. Okay.
23 Q. Do you see the section about the cards
24 that you're supposed to hand out to people who
25 are abused people?
422
1 A. Can you narrow it down?
2 Q. Yes. C says, "Providing an abused
3 person" -- These are what you're supposed to do:
4 "Providing an abused person with immediate and
5 adequate notice of the person's rights," which
6 shall consist of a statement written in English
7 and Spanish, asking the person to read the card
8 and asking the person whether they understand
9 their rights.
10 And then it lists a bunch of
11 rights that the person is supposed to
12 understand.
13 A. Yes.
14 Q. Okay.
15 Do you have those cards?
16 A. Yes.
17 Q. Where do you keep them?
18 A. In the office, and if I'm in uniform,
19 in this (indicating).
20 Q. Okay.
21 A. Do you want one?
22 Q. I'm sorry, I don't understand.
23 If you're in uniform, you have
24 them in the pocket of your -- oh, good.
25 A. If I'm working as an investigator,
423
1 they're in our office in a file, in a drawer.
2 Q. Okay.
3 But you're in uniform today, and
4 you have this in your --
5 A. With me.
6 Q. -- pocket?
7 A. Yes.
8 Q. And this is the D/SAOC card?
9 A. Right.
10 Q. This is the only card you've got?
11 A. Yes.
12 MS. CONLIN: I'm going to mark
13 this Plaintiff's Exhibit something -- 31.
14 (Plaintiff's Exhibit No. 31 was
15 marked for identification by
16 Ms. Conlin.)
17 Q. Plaintiff's Exhibit 31 is the only card
18 you've got; correct?
19 A. Only card of that? No, I have more.
20 Q. No, no. I'm sorry. Let me ask it a
21 better way.
22 This type of card is the only
23 type of card you have?
24 A. Pertaining to D/SAOC?
25 Q. Pertaining to victims of domestic
424
1 violence.
2 A. Yes.
3 Q. Okay.
4 And you're unaware of the
5 existence of any other kind of cards?
6 A. Yes.
7 Q. Okay.
8 Sheriff Mickelson has never told
9 you about any other cards?
10 A. No.
11 Q. Chief Deputy O'Brien has not ever told
12 you about any other cards?
13 A. No.
14 Q. Do you see what this card is supposed
15 to have on it?
16 A. Sure.
17 Q. And this doesn't have anything like
18 that.
19 A. Well, I think on the back, "24-hour
20 crisis line" informs about what they need to
21 know.
22 Q. All right.
23 Well, let's compare. We have
24 only this one copy. We will get more at the
25 break, but what --
425
1 MS. VALENTINE: Ms. Conlin, not
2 to interrupt, but would it be possible --
3 MS. CONLIN: Oh, absolutely.
4 What a good idea. I forgot I had this.
5 Q. Okay.
6 MS. VALENTINE: And did you want
7 to offer Exhibit 31?
8 MS. CONLIN: I did. That would
9 be good too.
10 Plaintiff offers Plaintiff's
11 Exhibit 31.
12 MS. VALENTINE: Any objection?
13 MS. PENICK: No.
14 MS. VALENTINE: Plaintiff's
15 Exhibit 31 is received.
16 Q. Let's just take a look at what the law
17 requires that you hand to every victim.
18 "You have the right to ask the
19 court for the following help on a temporary
20 basis:
21 (1) Keeping your attacker away
22 from you, your home and your place of work."
23 That's not on there?
24 A. No.
25 Q. "The right to stay at your home without
426
1 interference from your attacker."
2 That's not on there.
3 A. No.
4 Q. "Getting custody of children and
5 obtaining support for yourself and your minor
6 children if your attacker is legally required to
7 provide such support."
8 Again, not there?
9 A. No.
10 Q. In fact, not any of these required
11 things, required under Iowa law, not any of them
12 are there?
13 A. Well, number 4 is there.
14 Q. Oh, okay. Sorry.
15 Do you have that card in Spanish?
16 A. No.
17 Q. Let's move to the suicide.
18 Okay. As I understood your
19 direct testimony on this issue, when -- before
20 you got there, O'Brien called Ruby to tell him
21 the plan.
22 A. No, I never said that. Before we got
23 there, I called him on the car radio and told
24 him we were on our way to help them.
25 Q. Well, perhaps I misunderstood.
427
1 A. When we arrived there, we drove down
2 the road, and Deputy Richardson was behind our
3 car. Sergeant Ruby had gone around to the
4 south, or what I would call the south, and that
5 is when Jim O'Brien called him on his cell
6 phone.
7 Q. Okay.
8 So you were in the trailer park?
9 A. We were approaching the trailer at that
10 point.
11 Q. Oh, okay.
12 But, then, in the trailer park?
13 A. Correct.
14 Q. And so -- so it is at that point --
15 you're not at the trailer yet?
16 A. 20 feet from it.
17 Q. Okay.
18 -- that the two of them talk
19 about the plan?
20 A. He was informing him what our plan was,
21 yes.
22 Q. What was your plan?
23 A. Try to make contact with her by phone,
24 see if she would come to the door, determine
25 what to do after that.
428
1 Q. Did he tell Sergeant Ruby to cover the
2 back?
3 A. I don't remember.
4 Q. That would be a perfectly appropriate
5 thing for Sergeant Ruby to do, wouldn't it?
6 A. I don't remember if there was a back
7 door.
8 Q. Whether there was a back door or not --
9 A. Right.
10 Q. -- there are windows on the back?
11 A. Yeah. He was on the other side of the
12 trailer some distance away from us.
13 Q. All right.
14 Do you know what he was doing
15 over there?
16 A. No.
17 Q. Do you know whether or not he talked to
18 the landlord?
19 A. No.
20 Q. Do you remember having information
21 about this situation relayed to you by
22 Sergeant Ruby that he gathered from the
23 landlord?
24 A. To me personally?
25 Q. Yes.
429
1 A. If he did, I don't remember.
2 Q. All right.
3 You, as I understand this
4 situation, got a trailer. You and Richardson
5 and Chief Deputy O'Brien are on the front side
6 of the trailer; right?
7 A. We're on the front of the trailer next
8 to it so we could see the supposed front door of
9 where this person was at.
10 Q. Okay.
11 And Sergeant Ruby was on the
12 other side?
13 A. He was down the street from us. There
14 wasn't really another side to it. There's
15 trailers in a row, so he was down the street
16 from us.
17 Q. With visibility of the back side?
18 A. Eventually, yes. Not immediately, no.
19 Q. Now, I didn't quite understand what you
20 said about him driving away.
21 A. What part?
22 Q. Well, here are my notes: At some point
23 in this event, you were -- I don't know --
24 surprised or concerned or something about
25 somebody driving away.
430
1 A. As myself and Jim approached the
2 trailer court, or trailer park, the entrance
3 into there, that is where Sergeant Ruby and
4 Deputy Richardson were parked next to each
5 other, presumably waiting for us to get there.
6 As I pulled up there, they drove
7 away toward the trailer.
8 Q. Oh, all right. Okay.
9 A. And it was at that point that
10 Richardson went with us to this side.
11 Sergeant Ruby went around another street, and
12 came up the other direction.
13 Q. They were waiting for you for backup;
14 right?
15 A. Yes.
16 Q. All right.
17 You got there, and when you got
18 there, they went to where they were supposed to
19 go; right?
20 A. Ultimately, yes.
21 Q. Well, when you say "ultimately," I mean,
22 did they take a circuitous route or something?
23 A. Normally, we would decide what are we
24 going to do, who's going where, but as it worked
25 out, it was fine.
431
1 Q. Well, could it be possible that
2 Sergeant Ruby thought he ought to get on the
3 way, as long as you were behind him?
4 A. Oh, I would say, yes.
5 Q. Okay.
6 So nothing bad about, when you
7 arrive, him going toward the trailer?
8 A. Tactically not sound. That's what my
9 answer would be.
10 Q. I didn't hear you.
11 A. I don't -- I don't think it's bad. I
12 just don't think it's tactically correct that we
13 don't have a plan before we approach a building
14 where there's -- somebody could be harmed.
15 Q. Well, if he was trying -- if his
16 purpose was in locating the trailer, that would
17 be a legitimate purpose to get on the way;
18 correct? You've got a woman with a gun,
19 threatening to commit suicide. You ought to be
20 in a bit of a hurry.
21 A. We could -- I don't know how you want
22 me to answer it.
23 Q. Just tell the truth.
24 A. Tactically, no, it wasn't correct.
25 Q. Even though you've got a woman with a
432
1 gun?
2 A. Most deputies on our department, we
3 would have decided what we were going to do, and
4 we would have left. That's why it's no surprise
5 to me they left when I got there, because I had
6 Jim with me.
7 Q. Well, did both of them take off?
8 A. We pulled up next to them. They both
9 started down, movement.
10 Q. In two separate cars?
11 A. Yes.
12 Q. All right.
13 Is there some conflict, to your
14 knowledge, between Deputy Richardson and Jim
15 O'Brien?
16 A. Yes.
17 Q. What's the basis of your knowledge of
18 that conflict?
19 A. They don't get along.
20 Q. Do you know why?
21 A. That's not what we're here for.
22 Q. That may well be true. Will you answer
23 the question?
24 A. I don't know why.
25 Q. You don't know why?
433
1 A. Personal knowledge, no.
2 Q. We have hearsay here.
3 A. No, I don't know.
4 Q. All right.
5 Are you aware that
6 Deputy Richardson had a prior experience with a
7 very difficult, bad suicide?
8 A. It wasn't a suicide.
9 Q. What was it?
10 A. He shot himself. He's still alive.
11 Q. Okay.
12 A. He was serving a paper, yeah. I
13 investigated that.
14 Q. So you knew about that?
15 A. Yes. I was there.
16 Q. It was a pretty horrible situation?
17 A. Yeah.
18 Q. Now, what I'm showing you is -- See if
19 this looks like the scene to you. This is
20 something that Sergeant Ruby just drew, and can
21 you see it all right?
22 A. Yes, that looks correct.
23 Q. Okay.
24 So the three of you are right
25 here (indicating)?
434
1 A. Yes.
2 Q. And he's here (indicating)?
3 A. Yes.
4 Q. This (indicating) is the -- this is the
5 front door, this is the back?
6 A. Yes.
7 Q. All right.
8 After these events occurred, with
9 whom did you discuss them?
10 A. Which events?
11 Q. The suicide.
12 A. With Richardson's case?
13 Q. No, no. Well, I guess with anybody.
14 A. You have to be more direct.
15 Q. Okay. I'm trying to be direct.
16 What I'm asking you is, did you
17 and Chief Deputy O'Brien discuss that Curt had
18 done something wrong?
19 A. On this particular incident in the
20 trailer court?
21 Q. Yes.
22 A. We discussed the unusualness of them
23 driving away when we got there, and not deciding
24 what the plan was before we did that. Not that
25 he did anything wrong tactically as far as where
435
1 he was going to position himself, not that that
2 was wrong.
3 Q. You know -- All right.
4 How was the situation resolved?
5 A. I observed her at the front door. I
6 approached her with my weapon drawn and removed
7 her from the house.
8 Q. Okay.
9 A. She started to come out as I started
10 going toward her.
11 Q. And who took her to the hospital?
12 A. Either Sergeant Ruby or Richardson in
13 their marked car.
14 Q. Did you do a report on this incident?
15 A. No.
16 Q. Why not? You just told us, I think, a
17 little bit earlier that on situations with what
18 I understood to be contact with the public,
19 reports should be done. Didn't you say that?
20 A. No, I never said that.
21 Q. This would be on your activity report?
22 A. I don't recall.
23 Q. Did you know that Sergeant Ruby was
24 sent for a fitness-for-duty examination?
25 A. Some time ago?
436
1 Q. Yes.
2 A. Years ago?
3 MS. PENICK: May we interpose an
4 objection being beyond the scope of direct exam?
5 MS. VALENTINE: I'll allow it.
6 A. I had heard that he was asked to take
7 an evaluation of some sort.
8 Q. All right.
9 Would it have been around the
10 September 2006 period?
11 A. It was some time ago. I don't recall.
12 Q. Do you recall shortly before
13 Sergeant Ruby was discharged having a discussion
14 in which you said that, "Ruby isn't going to
15 make it to the election," meaning the election
16 in which he was running against the sheriff?
17 A. That I said that?
18 Q. Yes, you did.
19 Did you, do you remember?
20 A. No, I don't remember saying that.
21 Q. In the -- After Sergeant Ruby's
22 discharge, I think, do you remember the Gailey
23 situation?
24 A. Yes.
25 Q. And you testified in that?
437
1 A. Yes.
2 MS. PENICK: Objection to the
3 relevance to the proceedings here.
4 MS. VALENTINE: I'm not sure
5 where that's going.
6 Q. This is a domestic violence situation
7 in which the conduct of Sergeant Fleener is at
8 issue.
9 MS. VALENTINE: Is this going
10 towards some impeachment, or is it going
11 towards --
12 MS. CONLIN: Well, both
13 impeachment and the issue of how
14 Sergeant Fleener is treated and how
15 Sergeant Ruby is treated when they make a
16 mistake and somebody gets hurt.
17 MS. VALENTINE: All right.
18 We'll allow it, recognizing that
19 it is noon, so I don't know if you want to get
20 going there, or if you want to stop there and
21 start up there.
22 MS. CONLIN: Yeah, that would be
23 better.
24 MS. VALENTINE: Which would be
25 better?
438
1 MS. CONLIN: To stop. I'm sorry.
2 MS. VALENTINE: Okay. Thank you.
3 We will be in recess then
4 until 1:00, and we'll be here promptly at one.
5 (A recess was taken from 12 noon
6 until 1:05 p.m.)
7 MS. CONLIN: Ms. Penick and I
8 have agreed and we stipulate that there is no
9 activity log for Sergeant Fleener for
10 November 13th, 2007.
11 MS. PENICK: I agree.
12 MS. CONLIN: We have agreed also
13 we will substitute copies of 31 and 32 so that
14 they won't get lost, and we have made copies.
15 By that, I mean, instead of marking the original
16 small pieces of stuff that we have.
17 MS. VALENTINE: And what would 32
18 be?
19 MS. CONLIN: 32, which I need to
20 make a record on as well, 32 is the diagram of
21 the scene for November 13th that I showed on the
22 Elmo.
23 MS. VALENTINE: Has that now been
24 marked?
25 MS. CONLIN: Yes, it has been
439
1 marked as 32.
2 Can we stipulate that it is the
3 diagram?
4 MS. PENICK: It is the diagram.
5 MS. VALENTINE: And you're
6 offering that, 32?
7 MS. CONLIN: Yes, I'm
8 offering 32.
9 MS. VALENTINE: And any
10 objection?
11 MS. PENICK: No.
12 MS. VALENTINE: 32 is received.
13 MS. CONLIN: And for 31 I'm
14 substituting, as I said, a copy for the original
15 that was introduced.
16 MS. VALENTINE: Any objection?
17 MS. PENICK: No.
18 MS. VALENTINE: Duly noted.
19 You may continue.
20 CROSS-EXAMINATION (CONT'D.)
21 BY MS. CONLIN:
22 Q. We were just beginning our discussion
23 of the Gailey case, and were you involved in the
24 search warrant issue for his house?
25 A. I wrote it.
440
1 Q. Okay.
2 But you did it too?
3 A. Yes.
4 Q. And who was with you?
5 A. Detective Bahr.
6 Q. Anyone else?
7 A. Sergeant Heesch. There was a couple of
8 other officers that showed up, Halligan and Tony
9 Walter. I'm don't know what point they were
10 there.
11 Q. So five of you?
12 A. Yes.
13 Q. And what had happened? His wife had
14 gone -- He directed his anger toward his wife
15 and children; correct?
16 A. When?
17 Q. Well, he had -- Well, I thought during
18 the entire time. Am I wrong about that, during
19 this entire episode?
20 A. I was there because he had sex with
21 his 13-year-old daughter.
22 Q. And that was discovered, and then he
23 threatened to commit suicide and kill everybody,
24 kill the wife and daughter; right?
25 A. He never threatened to kill her --
441
1 Q. Oh.
2 A. -- till after that day, after the
3 search warrant.
4 Q. Oh.
5 She had gone, the wife had gone
6 to Sioux City, and taken the children with her?
7 A. That weekend, yes.
8 Q. And then she came back?
9 A. Yes.
10 Q. Was she at the house when you were
11 doing the search warrant?
12 A. I called her, and she met me there.
13 Q. And then while the search warrant was
14 being executed and there were three to five
15 deputies there, she had to go to school and get
16 a child; right?
17 A. She decided on her own to go get her
18 kids out of school.
19 Q. And she told you that before she left?
20 A. She said she was going to get her kids,
21 yes.
22 Q. And it is at the school -- What
23 happened when she got to the school?
24 A. She picked her daughter up.
25 Q. And anything happen thereafter?
442
1 A. After that she was kidnapped at
2 gunpoint by her husband.
3 Q. Well, it wasn't from her house. It was
4 in the course of --
5 A. It was in Fort Dodge.
6 Q. Was it in the course of her picking up
7 the children?
8 A. After she picked up her first child,
9 yes.
10 Q. So after she picked up -- She left the
11 house where you and several other deputies were
12 conducting a search. She went to the school,
13 and that gave him the opportunity to kidnap her?
14 A. Yes.
15 Q. All right.
16 And no deputy went with her to
17 the school?
18 A. No.
19 Q. You knew that he was at large?
20 A. At large from what?
21 Q. That he was not under arrest?
22 A. For what?
23 Q. He wasn't in jail?
24 A. What would he be under arrest for?
25 Q. For anything.
443
1 A. We had no reason to arrest him.
2 Q. Did his conduct constitute abuse of any
3 kind prior to her kidnapping?
4 A. No.
5 MS. CONLIN: I believe that's
6 all.
7 MS. VALENTINE: Any redirect?
8 MS. PENICK: I do.
9 REDIRECT EXAMINATION
10 BY MS. PENICK:
11 Q. If you would turn to -- It's page 345
12 of the Exhibit S, I believe. You were asked in
13 your cross-examination about filing -- the
14 complaint being filed as a domestic assault
15 simple under 7082A(2)(a), and I want to turn
16 your attention to page 345, the incident report.
17 There's a reference that says,
18 "Domestic Assault" under the "Offense."
19 It says, "State/City Statute."
20 It says "7082A(2)." Do you see that?
21 A. Yes.
22 Q. It doesn't say "a" or "b" in that box,
23 does it?
24 A. No.
25 Q. Why not?
444
1 A. At the time I filled this out, she was
2 there, and I was unsure of what section it would
3 be applicable to. That was later determined by
4 the county attorney.
5 Q. I'm sorry, what did you say?
6 A. The county attorney advised, I believe,
7 when I contacted him on the complaint, to file
8 it as a simple.
9 Q. And then the complaint then, page 350,
10 then includes a simple on 708.2A(2)(a)?
11 A. Yes.
12 MS. PENICK: That was the only
13 clarification I needed. Thank you.
14 MS. VALENTINE: Any recross?
15 MS. CONLIN: No.
16 MS. VALENTINE: Any questions
17 from the commissioners?
18 MR. DRISCOLL: Do you have any?
19 No.
20 MS. VALENTINE: No.
21 You're excused. Thank you for
22 your testimony today.
23 MS. PENICK: Next we'll go get
24 Mr. -- let me get his title -- Detective Michael
25 Halligan.
445
1 MS. VALENTINE: Okay.
2 MICHAEL HALLIGAN,
3 called as a witness, having been first duly
4 sworn, testified as follows:
5 MS. VALENTINE: Your witness.
6 DIRECT EXAMINATION
7 BY MS. PENICK:
8 Q. Can you state your name for the court
9 reporter?
10 A. Michael Halligan.
11 Q. Detective Halligan?
12 A. Yeah.
13 Q. How long have you worked for the
14 Webster County Sheriff's Department?
15 A. A little over six years.
16 Q. And did you have law enforcement
17 experience prior to coming to the sheriff's
18 department?
19 A. I was with the Fort Dodge Police
20 Department four and a half years before that.
21 Q. And what's your current position with
22 the department?
23 A. Narcotics investigator.
24 Q. Did you come on initially as a patrol
25 deputy?
446
1 A. Yep.
2 Q. Where did you do your law enforcement
3 training?
4 A. At the Iowa Law Enforcement Academy.
5 Q. I assume you're familiar with Curt
6 Ruby?
7 A. Yes.
8 Q. Did you work at the same time as
9 Mr. Ruby?
10 A. Yes.
11 Q. Did you -- Tell me about that time
12 frame. When were you working with him?
13 A. Off and on for the past six years.
14 Q. Did you work nights with Officer Ruby
15 at any time?
16 A. Yes.
17 Q. Do you recall when?
18 A. Between 2002 and 2004 sometime, I think
19 it was.
20 Q. Okay.
21 A. I mean, it was -- I've been working
22 narcotics for the past two years. I started
23 in 2002, so what year it was, I'm not for
24 certain.
25 Q. I appreciate that.
447
1 Did you have occasion to talk
2 with Officer Ruby about the nature of the work
3 that the two of you do together?
4 A. Yes.
5 Q. Did Ruby make any comments to you about
6 any difficulties he had with his job?
7 A. On occasion.
8 Q. Can you explain?
9 A. Well, there was numerous times that
10 Curt would come in, and, you know, his
11 statements would be, you know, "Hey, try and
12 keep it quiet tonight. You know, "I'm so
13 stressed out, I just don't know if I can make it
14 through the night" was one of his comments one
15 night, and just things along that line,
16 basically.
17 Q. Did you get the sense that he was
18 joking?
19 A. No.
20 Q. What was his demeanor when he said
21 that?
22 A. Tired, wore out, stressed out.
23 Q. Was there anything that he discussed
24 that triggered the stress, like a stressful
25 situation?
448
1 A. I'm not -- I don't know. I mean, did
2 it -- Do I know what triggered it?
3 Q. Did he tell you, "Hey, I just had to
4 arrest this guy and he resisted," or anything
5 like that?
6 A. No.
7 Q. Was it at the beginning of the shift,
8 middle of the shift, do you know?
9 A. It was usually about the middle of the
10 shift.
11 Q. And was it on one occasion or more than
12 one occasion?
13 A. It was on more than one occasion.
14 Q. How did you respond?
15 A. Just kind of said "Whatever," and went
16 on about my business.
17 Q. You had occasion to work on search
18 warrants with Officer Ruby?
19 A. Yes.
20 Q. Are there any of the search warrants
21 that you worked on with Officer Ruby that --
22 Well, let me, I guess, be specific.
23 Is there a situation at which you
24 thought Officer Ruby got angry with you with --
25 A. Directly at --
449
1 Q. Let me finish.
2 -- directly about a search
3 warrant?
4 A. Directly at me, I don't think it was
5 directed at me. I think it was more an incident
6 where I think he was angry over the whole
7 situation probably.
8 Q. Okay.
9 I think you're speaking about
10 a search warrant that took place about
11 September 8th of 2006 into September 9th?
12 A. Yeah.
13 Q. Tell me what you remember about that
14 situation.
15 A. I had arrested a guy on a parole
16 violation arrest warrant. Had applied for and
17 received a search warrant for the house for
18 narcotics, stolen property.
19 We got into the house, and the
20 amount of property in this house was just way
21 more than -- We ended up having to get an
22 enclosed trailer and six, eight, ten guys to
23 haul all the stolen property out of his house
24 and into this trailer.
25 So we decided -- It was like 2:00
450
1 in the morning. Chief Deputy O'Brien was with
2 me there, helping, and we decided enough is
3 enough for tonight. We'll have the residence
4 secured, and get the manpower and the trailer
5 and the equipment that we needed in the morning.
6 Q. And who was there when you were
7 discussing how you were going to handle the
8 situation?
9 A. Primarily, it was myself and
10 Chief Deputy O'Brien, and later I know that
11 Chief Deputy O'Brien contacted the captain on
12 the Fort Dodge Police Department who was working
13 at the time. Who it was at the time, I don't
14 recall for sure.
15 And then it was decided that --
16 between Chief Deputy O'Brien and the shift
17 supervisor for the police department, that the
18 shift -- the security detail for the evening,
19 basically, from 2:00, 3:00 in the morning until
20 we returned at 8:00, 9:00 in the morning would
21 be divided between both departments, and Curt
22 Ruby was asked to come do the first shift.
23 Q. Did you ask him to come?
24 A. No.
25 Q. Do you know who did?
451
1 A. Chief Deputy O'Brien.
2 Q. And what happened next?
3 A. Curt showed up. It was discussed --
4 explained to Curt what was going on.
5 He said that he would need to go
6 use the rest room, maybe grab a bite to eat and
7 grab some reading material, which was all fine,
8 you know. There was no problem there.
9 And then he brought up something
10 about, "Well, can't you have a reserve deputy
11 sit on it?"
12 I believe that Chief Deputy O'Brien
13 had already checked into that, and then at one
14 time he talked about having a VARDA, which is
15 one of our portable security systems which
16 transmits radio communications over our police
17 radios if there's a break-in or something like
18 that. Wanted to know if he could just put one
19 of those in, which wouldn't qualify at all for
20 keeping chain of custody on that house, so that
21 was not an option.
22 So he left and did his things
23 that he needed to do, and then came back.
24 Q. And was he calm when he left?
25 A. Didn't seem -- He seemed to be angry.
452
1 Q. How -- What makes you think he was
2 angry?
3 A. Just by his attitude, his demeanor, the
4 way he was talking towards other officers, I
5 mean. It was -- He just seemed upset by the
6 whole situation.
7 Q. Did he raise his voice?
8 A. I don't know that -- He didn't like
9 yell and scream or throw a temper tantrum or
10 anything like that. It was just his reactions.
11 Q. And did he come back, then, to sit on
12 the house?
13 A. Yeah.
14 Q. Did you have occasion to talk to him at
15 that point?
16 A. Yeah. Before I left, I -- He was
17 sitting in his patrol car, parked out in front
18 of the residence, reading his magazine, and I
19 walked up to his driver's side window and asked
20 him -- I asked him to start a log as to which
21 officers had control of the scene, and document
22 the times for chain of custody reasons for the
23 warrant.
24 And, basically, he didn't even
25 look up from his magazine. It was a grunt
453
1 towards me, and I figured, well, hopefully, he
2 does it, and I walked away.
3 Q. And did you leave at that point?
4 A. Yeah.
5 Q. And did you go back?
6 A. No. The next morning, but Curt was
7 already gone by that time.
8 Q. Okay.
9 Who -- who was there when you got
10 back the next morning?
11 A. I am not even for certain on that.
12 Q. Were there officers on-scene?
13 A. Oh, yeah. There was officers there,
14 but I don't know which -- I think it was one of
15 the Fort Dodge police guys sitting on it then.
16 Q. Oh, okay.
17 And did you go on into the house
18 to proceed with the warrant?
19 A. Yeah. We -- we left about 3:00 in the
20 morning and came back at 8:30, 9:00 I want to
21 say.
22 Q. And what happened that morning?
23 A. Joel Lizer, who was a Fort Dodge Police
24 Department, approached me, and basically came up
25 and asked me, you know, "What did you do to piss
454
1 Curt off?"
2 And, you know, he's like, "He
3 was" -- you know, I guess Curt was making some
4 comments or somewhere along the lines that Joel
5 Lizer didn't think were appropriate revolving
6 around this whole search warrant, basically.
7 Q. Anybody else talk to you about Curt's
8 demeanor?
9 A. A couple of days later, Bob Thode,
10 who's captain on the police department,
11 approached me, and it was basically the same
12 thing. You know, "What -- what did you do? Why
13 is Curt so upset over this search warrant deal?"
14 You know, "What did you do to piss him off?" or
15 whatever was said.
16 And, apparently, Captain Thode
17 made statements to me about, you know, Curt had
18 came into the law enforcement center later that
19 morning, and was basically complaining about
20 whatever took place for that search warrant.
21 Q. Anything else that you recall about
22 that situation?
23 A. No.
24 Q. Do you know what made Curt Ruby so
25 upset about that warrant?
455
1 A. No.
2 Q. I want to ask you about -- a little bit
3 about the procedures at the sheriff's office as
4 far as scheduling. I understand the schedule is
5 made in advance each month with officers having
6 days off?
7 A. Yes.
8 Q. And if you request a vacation in
9 advance, that would be indicated on the schedule
10 as well; is that right?
11 A. If you're -- If I was to ask for a
12 vacation, I would fill out a form, give it to my
13 shift supervisor, who at this time was Luke
14 Fleener or Jim O'Brien, and it would be penciled
15 into the schedule.
16 There are occasions where, you
17 know, if you're going to use a holiday or a comp
18 day or something like that and you do the
19 request, it might not be penciled in on the
20 daily schedule, but that's in rare circumstance,
21 I guess.
22 Q. What do you mean by that?
23 A. Typically, if -- if you're going to use
24 vacation time, you have to put in a request for
25 it, if it's a vacation day.
456
1 Q. Okay.
2 A. If you're going to use a holiday
3 procedure, we're to put in a request form.
4 Q. Uh-huh.
5 A. There is -- You know, on occasion there
6 will be time where I'll call in and talk to my
7 supervisor, whoever it may be at the time. As
8 long as there's enough guys to cover the
9 shift -- and when you're working the road shift,
10 there's supposed to be two guys covering the
11 shift.
12 Q. Okay.
13 A. Working detectives division, I've got
14 some extra freedoms, I guess you could say. If
15 I've got a day off and it doesn't affect anybody
16 else, there's no minimum requirement as far as
17 how many detectives need to be working on any
18 certain day, so if I call in and say, "Hey, can
19 I burn a comp day," then they usually allow me
20 to do so, unless there's something that they're
21 going to need me for for that day.
22 Q. Thank you.
23 I'd like you to look in that red
24 book there, Exhibit K.
25 A. K?
457
1 Q. K like kite.
2 A. Yeah.
3 Q. Is this a statement that you prepared?
4 A. Yes.
5 Q. And do you know when you prepared it?
6 A. Shortly after the incident took place.
7 Q. And what incident are you talking
8 about?
9 A. The search warrant on 18th Avenue
10 South.
11 Q. Why did you prepare this document?
12 A. Because while we were at the scene that
13 day, you know, I just didn't agree with the
14 way -- how things were -- I didn't agree with
15 Ruby's attitude and the way that things were
16 handled by him.
17 And then after the other officers
18 approached me about what had been taking place
19 and that, I talked to Chief Deputy O'Brien about
20 it and asked if there was anything that could be
21 done to try and make things go more smoothly.
22 It was stuff that I didn't feel was necessary.
23 Q. If you could turn to the second page of
24 this document, there's part of a paragraph on
25 the top and then go down one, two, the third
458
1 full paragraph. It mentions that you've
2 witnessed other incidents involving
3 Sergeant Ruby's attitude towards his job and
4 you're offended almost every time you see him
5 due to his anger and lack of motivation toward
6 the sheriff's department.
7 What do you mean by that?
8 A. There's been other occasions where I
9 thought that Ruby's actions were inappropriate.
10 I'm not saying every time, but there's been
11 numerous occasions where -- for example, in
12 Moorland -- I think it was in 2005 there was an
13 incident where Ruby and Andy Suchan ended up in
14 a wrestling match with a guy.
15 They called for a 78, which calls
16 for another officer to come back them up and
17 help them, and, you know, I got there and they
18 had the guy handcuffed. He was still resisting.
19 He was still trying to get him in the back of
20 the car, and, you know, I could tell that Ruby
21 was rattled over the whole deal.
22 I followed Ruby into the law
23 enforcement center, and basically, as soon as
24 Ruby pulled into the sally port, our garage
25 where we unload our prisoners at, you know, he
459
1 was cussing and saying, you know, "I'm not going
2 to deal with this guy anymore," and left the guy
3 there for everybody else to deal with. And he
4 went in the office, and I never saw him again.
5 Q. Did you say Andy Suchan and Ruby had
6 wrestled with this guy?
7 A. Yes.
8 Q. Was Suchan in the sally port too?
9 A. I think Suchan was still at the scene,
10 taking the report from the victims and that
11 whole deal.
12 Q. And why did you think that the behavior
13 was inappropriate in the sally port?
14 A. You know, I've been in -- I don't know
15 how many wrestling matches with arresting
16 suspects and stuff like that. If you're
17 involved in -- In my mind, if I'm involved in a
18 case, I'm going to finish it. I'm not going to
19 just walk in and say, "I've had enough of this
20 guy. I'm not going to deal with him anymore."
21 You know, if they're -- most of
22 the people that you've fought with are people
23 who are cussing at you, yelling at you, you
24 know, giving you a hard time. You know, I've
25 been punched and kicked, everything else in
460
1 between, but I don't just walk away from an
2 arrest and say, "Here, you guys deal with it."
3 You know, "I'm not going -- This
4 guy has basically pissed me off to the point I'm
5 not going to deal with it," well, I just didn't
6 agree with that.
7 Q. Are there any other examples that you
8 can think of at this point of --
9 A. You know, the statements -- It wasn't
10 nightly, but it was more frequently than I
11 thought necessary about "I don't know how I'm
12 going to get through the night." You know, "I'm
13 so stressed out."
14 And, you know, if you need a
15 vacation, then take a vacation and, you know,
16 relieve your stress or whatever, but go take
17 care of it.
18 Q. Is there a situation that you were
19 involved in with a tow truck with Mr. Ruby?
20 A. Yes.
21 Q. Can you describe that?
22 MS. CONLIN: May I voir dire the
23 witness for the purpose of laying a foundation
24 to make an objection?
25 MS. VALENTINE: You may.
461
1 MS. CONLIN: When?
2 THE WITNESS: September of 2007.
3 MS. CONLIN: Okay. No objection
4 then.
5 MS. VALENTINE: Okay.
6 Q. Go ahead.
7 A. Out on Highway 169 just south of
8 Highway 7 in the northbound lanes, if you're
9 familiar with that area, there was a forklift
10 that had -- It was like one of those four-wheel
11 drive forklifts that they use at construction
12 sites. They were transporting it from one site
13 to another on the road, and the guy lost control
14 and flipped it over upside down into the ditch.
15 I was in plain clothes like I am
16 now. That's how I normally work. My patrol
17 unit is a blue F-150 Ford pickup with -- It has
18 lights, but it's not a normal patrol car.
19 The road guys were busy,
20 including Sergeant Ruby, on some other matters.
21 One of the Fort Dodge police detectives came
22 across this vehicle in the ditch, and I was
23 just -- I happened to be up in that
24 neighborhood, so I swung by and got -- The guy
25 that was driving it had came back. He had left,
462
1 and we were getting a wrecker service all
2 coordinated to get the vehicle towed out.
3 Had to close down traffic on 169
4 for a little while.
5 Ruby ended up showing up
6 eventually, and after he had completed his other
7 tasks that he was taking care of and we got --
8 We ended up getting the vehicle out of the
9 ditch, and we were getting ready to leave.
10 There was Fort Dodge -- I think Matt Wilson with
11 the Fort Dodge Police Department was possibly
12 there, the tow truck driver, the guy that was
13 driving the car. Several people were still
14 there.
15 And we were getting ready to open
16 traffic back up, and I was getting ready to take
17 off, and as Ruby was heading back to his car, he
18 said, "Yeah. I better make it to a rest room
19 real quick before I pee my pants and they think
20 I'm crazy again and make me take another
21 psychological test."
22 And basically yelled it out or
23 blurted it out so everybody could hear it, and I
24 don't know what the reasoning for those
25 statements were.
463
1 Q. Was there another situation as far as
2 transporting a seized vehicle -- Let me back up.
3 Let's just turn to Exhibit L in
4 the red book. Is this another statement that
5 you have written?
6 A. Yes.
7 Q. Do you know when you wrote it?
8 A. Shortly after February 8th of '07.
9 Q. Okay.
10 And what happened on that day?
11 A. We were doing another search warrant,
12 drug-related. There was a vehicle that we had
13 found a large quantity of cash and narcotics and
14 other contraband in that we were going to seize
15 for forfeiture.
16 Again, it had gotten late in the
17 evening, 2:00, 3:00 in the morning. We were
18 wrapping up the search warrant, and we wanted to
19 have this vehicle impounded and taken to our
20 county shed where we store these vehicles for
21 forfeiture.
22 I knew that Officer Kenyon was
23 working that night, and so I called him up on
24 his phone and said, "Hey, can you meet me down
25 at this location" -- we were at Fort Dodge
464
1 here -- "and just follow this vehicle across
2 town to the county shed so the tow truck
3 driver" -- 1, let the tow truck driver in so he
4 can unload it; and, 2, I was busy -- I had all
5 the other evidence and I had a DEA agent with
6 me, that I had to give him a ride to -- back out
7 to Post 7, so I was just trying to have -- get
8 something done that, you know, Officer Kenyon
9 could have easily taken care of.
10 Q. And what happened?
11 A. Word got -- I think, if I remember
12 correctly, Jim O'Brien approached me and said,
13 "Hey, you know, can you -- next time you have a
14 circumstance like that, can you contact the
15 shift supervisor," because, apparently, Curt,
16 again, got upset because I didn't contact him,
17 and that, you know, he might have been stuck
18 taking calls by himself because I was tying up
19 his other road deputy, which occurs pretty
20 regularly. I mean, if the narcotics or any
21 detectives need help with somebody, we're going
22 to call a road deputy to come help us.
23 Q. Why did you write this Exhibit L about
24 this situation?
25 A. Well, I caught a little -- it wasn't
465
1 that I caught heat from Jim O'Brien about it,
2 but I wanted to document why I didn't contact
3 Curt Ruby and ask him permission for Kenyon to
4 come down, because I just felt it was a whole
5 lot easier for me to do it myself, and in the
6 few months prior, it just seemed like it was a
7 whole lot easier just to avoid Ruby and not deal
8 with him than try to work something out with
9 him.
10 Q. Why is that?
11 A. I don't know for sure. I just feel
12 that he had a beef with me over something, and
13 either, A, couldn't let it go, or, B, I don't
14 know what his problem with me was.
15 Q. You said you felt he had a beef with
16 you. Do you have any idea what triggered that?
17 A. 100 percent, no, I don't know.
18 Q. How about 80 percent? I mean, do you
19 have any ideas what was going on here?
20 A. I think -- My belief is -- is that,
21 again, in another search warrant there was an
22 incident. This was, I think, what started most
23 of it anyway. I don't even know what the dates
24 would have been on it. It was back when I was
25 working the road with Ruby.
466
1 I got a search warrant for stolen
2 property at a house. I suspected there was
3 probably going to be drugs in the house as well.
4 They had a pit bull, they had kids.
5 We knocked on the door and
6 knocked on the door and knocked on the door. I
7 mean, we gave 2 or 3 minutes. We rounded the
8 house a couple of times and beating on windows,
9 beating on doors, and no response from the
10 house.
11 So I was going to boot the door.
12 I mean, we were going to force entry.
13 Curt wanted me to wait to tie a
14 string to the doorknob so that he could possibly
15 control the door in case there was a dog or a
16 child standing behind the door, and tactically,
17 I just didn't agree with it. I thought, you
18 know, by now, if there was any dope that I
19 possibly could have seized in the house, it was
20 probably being flushed by now. You know, there
21 was lights on in the house. We suspected they
22 were in there, and so I forced the door.
23 We went in, and, sure enough,
24 there was loaded guns inside the doorway, there
25 was drugs found in the house, there's a meth lab
467
1 found at the house. And apparently -- I don't
2 think that Curt agreed with me making entry
3 that -- you know, the way I did, but tactically,
4 from all the training and experience I've been
5 to from the schools and that, tying a string to
6 the doorknob, I just didn't feel it was going to
7 accomplish anything.
8 Q. What schooling have you had? I didn't
9 ask you that question.
10 A. I've been to several tactical entry
11 schools, search warrant-related schools. I just
12 got back from confidential informant management
13 and control school last week. Meth lab
14 certified, firearms instructor, open sight rifle
15 instructor, drug interdiction schools. I mean,
16 I've been to numerous. I probably can't list
17 them all off the top of my head.
18 Q. Did you go to the law enforcement
19 academy?
20 A. Yes.
21 Q. And are you talking about through,
22 like, continuing education classes you've had to
23 do since then?
24 A. Yes.
25 Q. And are these -- You say "school," and
468
1 I think school as like an institution you go to
2 and stay there for a while, but that's not what
3 you're talking about; right?
4 A. No. These are like anywhere from an
5 average of three-day to two weeks' long schools.
6 Q. Okay, I see.
7 A. You know, full-day schools that average
8 three days to 14 days.
9 Q. Is there a minimum number of hours that
10 you need to take each year of school?
11 A. Yeah, but I don't require what it is --
12 or I don't recall what it is.
13 Q. Do you take the minimum number?
14 A. Yes.
15 Q. Do you take more than the minimum
16 number?
17 A. Yes.
18 Q. I wanted to clarify something you
19 talked about.
20 I think you said when you want
21 time off, you would go to your shift supervisor
22 or Chief Deputy O'Brien, and I know you're a
23 detective now, so I want to make sure I'm clear.
24 When you were a patrol deputy,
25 who would you go to for your vacation requests?
469
1 A. Your sergeant or lieutenant on your
2 shift.
3 Q. And as a detective, who do you go to
4 for your vacation request?
5 A. Luke Fleener, who is a sergeant, if
6 he's around, or I just go directly to Jim
7 O'Brien.
8 Q. Another one of those perks of being a
9 detective?
10 A. Well, for a long period of time, Jim
11 O'Brien was my direct supervisor. Luke was
12 assigned to work the road for a period of time
13 that I was working narcotics, and, you know,
14 just out of habit, it was either Luke or Jim,
15 and whichever one I saw first, here you go, and
16 so --
17 Q. And that's since you've been a
18 detective?
19 A. Yeah.
20 MS. PENICK: I have no further
21 direct exam.
22 MS. VALENTINE: Cross-examination?
23 CROSS-EXAMINATION
24 BY MS. CONLIN:
25 Q. Did you ever talk with either
470
1 Sheriff Mickelson or Jim O'Brien about your
2 testimony here today?
3 A. When?
4 Q. Ever.
5 A. I've talked to Jim O'Brien about both
6 of these incidents that I've documented.
7 Q. Recently?
8 A. Recently?
9 Q. Yes.
10 A. I don't believe so, no.
11 Q. Did you talk to counsel for the county
12 about your testimony?
13 A. Yes.
14 Q. How long did you talk to her?
15 A. Which time? There was two times.
16 Q. Okay.
17 A. One was probably 20 minutes, and the
18 other one was 20 minutes to a half hour. I
19 don't know exactly.
20 Q. Did she show you any documents other
21 than the ones that you have gone over today?
22 A. I did look up the report for the --
23 basically, to get the date of when that incident
24 on Highway 169 took place, and I gave that to
25 Jim O'Brien.
471
1 Q. That was a tow truck incident?
2 A. That was the forklift in the ditch
3 incident.
4 Q. I may have called it something else,
5 but was there a forklift involved -- or a tow
6 truck, I mean?
7 A. In that one -- There was two incidents
8 involving where there was a tow truck involved
9 in the incident. The one was the impound of the
10 forfeited vehicle; the other was the forklift on
11 Highway 169.
12 Q. Is that the one where he said he needed
13 to use the rest room, so to speak, the 169?
14 A. Yes.
15 Q. All right. I'm straight on that then.
16 Let's talk for a moment about the
17 situation in Moorland. When you arrived, he was
18 cuffed; right?
19 A. He was cuffed, and Ruby was giving knee
20 strikes attempting to get him into the back of
21 his patrol car.
22 Q. In other words, he was still
23 struggling?
24 A. He was still struggling. They were
25 trying to get him -- The guy was refusing to get
472
1 into the patrol car, and they were trying to get
2 him into the car when I arrived.
3 Q. All right.
4 And do you know what happened
5 after he got in the car?
6 A. There was -- I think we checked with
7 the people that lived at the house we were at
8 about something.
9 Q. Oh, I'm sorry. I mean what happened in
10 the car.
11 A. I wasn't in the car.
12 Q. Did you hear any radio traffic?
13 A. Not that I recall. I mean, sure, I
14 heard radio traffic, but I don't recall what it
15 was.
16 Q. From that car.
17 A. From Ruby's car?
18 Q. Yes.
19 A. I don't recall if I did or not.
20 Q. And 533 is the incident report on the
21 Thompson matter. I seem not to have very
22 many -- Do you have more than one? No. Well,
23 let's give one to the witness and one to the
24 commissioners, and we'll get some more.
25 Do you recognize Exhibit 533 as
473
1 the Iowa Incident Report on the Thompson matter?
2 Look at the date at the top. That might help
3 you.
4 A. I don't know what date it happened on,
5 so I'm looking at it to make sure --
6 Q. Okay.
7 How about looking at page -- I
8 don't have page numbers on these.
9 A. It appears to be the incident report
10 revolving around that incident, yes.
11 Q. All right.
12 Well, turn two, three, four,
13 five -- to the sixth page, and that's
14 Sergeant Ruby's report of the incident; correct?
15 A. No.
16 Q. Pardon me?
17 A. My page 6 is Andy Suchan's narrative on
18 the incident.
19 Q. Oh, I'm sorry.
20 Yes, Andy Suchan, and turn to the
21 second page of that, and if you'll look down
22 about midway, you will see Andy Suchan's
23 description of what was going on in the squad
24 car. He says, "On the way to jail during
25 transport Tony was livid and was kicking the
474
1 door and window of the squad car. Tony stated
2 clearly over radio transmit that he was going to
3 'come find Sgt. Ruby and'" -- please excuse the
4 language -- "'fuck his fucking ass up.' As
5 Sgt. Ruby arrived to jail he had already
6 notified dispatch to have help there when he
7 arrived for back up with Tony beings he was
8 already such a handful."
9 Does that comport with your
10 recollection?
11 A. Yeah.
12 Q. So when Sergeant Ruby was transporting
13 the guy, he was threatening to him and kicking
14 the back of the seat and trying to kick the
15 window out?
16 A. I suppose so. That's what it -- The
17 reports state.
18 Q. All right.
19 Reports are supposed to be
20 accurate?
21 A. Yeah.
22 Q. You're taught at the Iowa Law
23 Enforcement Academy the importance of both
24 documenting activities and of making those
25 documentations 100 percent accurate?
475
1 A. Yes.
2 Q. And so what happened -- what Ruby had
3 done was notified dispatch of the problems that
4 continued while he was transporting the guy;
5 correct?
6 A. That would be routine, yes.
7 Q. Turn, then, to the supplemental report,
8 the next page of this Exhibit 533, which I think
9 I have failed to offer.
10 MS. CONLIN: May I do that now?
11 I'd offer 533.
12 MR. O'CONNOR: Janece.
13 MS. VALENTINE: I'm sorry, I was
14 busy reading.
15 Is there any objection?
16 MS. PENICK: No.
17 MS. VALENTINE: 533 will be
18 admitted.
19 My apologies.
20 MS. CONLIN: Thank you,
21 Mr. O'Connor.
22 Q. Down at the bottom, this is what
23 Sergeant Ruby is saying. You told Mr. Thompson
24 that he'd be hobbled; correct?
25 Let me -- I'll tell you what we
476
1 can do to help us here with no Bates numbers on
2 these documents that just arrived.
3 "Once up again" -- and I think
4 that means Thompson got up again. After they
5 had been on the ground wrestling around with
6 him, then he got up, and he refused to get in
7 the car until, "Deputy Halligan told him he'd be
8 hobbled."
9 Do you see that?
10 A. Uh-huh.
11 Q. And what does "hobbled" mean?
12 A. Means that he'd be, basically,
13 hog-tied.
14 Q. Okay.
15 A. Keep him from kicking and basically
16 immobilizing him.
17 Q. All right.
18 "He complied somewhat and while
19 I," meaning Ruby, "was driving away with him he
20 continued to cuss at me and began making threats
21 to look me up, at one point he said he'd find me
22 and cut me. At one point I decided to just key
23 the microphone as he let go another threat my
24 direction to record it for evidence. He also
25 kicked the squad door. I radioed in for
477
1 deputies/officers to be ready for us at the
2 Sally Port but by this time when I arrived he
3 had started to calm somewhat."
4 Were you in the sally port when
5 they arrived?
6 A. I don't believe so, no.
7 Q. All right.
8 Are you sure you were behind him
9 during this time?
10 A. I don't think directly behind him. I
11 might have been a minute or two behind him.
12 Q. So you were not observing --
13 A. No.
14 Q. -- what was going on in the squad car?
15 A. No.
16 Q. Do you know whether or not Mr. Ruby had
17 had previous encounters with Mr. Thompson?
18 A. Don't know their past, no.
19 Q. You know that Mr. Thompson has been
20 arrested on -- shall we say many, many
21 occasions?
22 A. I have never seen his -- I had never
23 dealt with the guy myself before. I wasn't
24 aware of who he was at the time. I know now
25 that he's been arrested numerous times, but at
478
1 the time of this incident, I didn't know
2 anything about this guy. I had never even heard
3 of him before.
4 Q. When you -- If you were behind
5 Sergeant Ruby when he -- and not there when he
6 got to the sally port, were you a direct
7 observer of what happened when he got out, "he,"
8 Sergeant Ruby?
9 A. I think I caught the tail end of it
10 when I came in.
11 Q. And what part did you actually observe?
12 A. The -- the storming off, "I'm not
13 dealing with this guy," and leaving.
14 Q. All right.
15 Are you aware of -- and with all
16 your education -- standard police procedure,
17 when there has been a struggle and violence
18 directed toward an officer and threats made to
19 the officer, what the officer is supposed to do
20 with such a subject when possible?
21 A. I don't see what you're getting at.
22 Q. Okay.
23 Is it standard police procedure
24 for an officer involved in a struggle and
25 threats and the like with an arrestee to be --
479
1 to turn that person immediately over to someone
2 else as soon as possible?
3 A. I have never seen that policy or
4 procedure.
5 Q. Okay.
6 When you get in a fight, do you
7 get -- do you get adrenaline?
8 A. Yes.
9 Q. All right.
10 Do you ever cuss or swear --
11 A. Yes.
12 Q. -- on the job?
13 A. Yes.
14 Q. In front of the public?
15 A. On occasion, yes.
16 Q. In front of fellow officers?
17 A. Yes.
18 Q. Sergeant Ruby does not swear very much,
19 does he?
20 A. I would say no more than a lot of other
21 people.
22 Q. Well, actually, wouldn't it be a lot
23 less?
24 A. I can't say that. I mean, I don't keep
25 times of how many times a -- I don't compare him
480
1 to other people, I guess I should say, in the
2 amount of cuss words or swear words that come
3 out of each person's mouth. I can't say more or
4 less.
5 Q. Well, let me put it this way: It is
6 not uncommon for peace officers on the job to
7 use obscenities and vulgarities.
8 A. It is not uncommon, no.
9 Q. Do you ever get agitated?
10 A. Yes.
11 Q. Have you ever needed to calm down after
12 you've been in a fight?
13 A. To the point where I've had to walk
14 away, no.
15 Q. Well, Sergeant Ruby was not leaving the
16 guy unattended; right?
17 A. No.
18 Q. Lots of people there?
19 A. Yes.
20 Q. No reason involving public safety for
21 him not to leave the guy he had just been in a
22 struggle with and who threatened to cut him and
23 his wife with -- in the custody of other
24 officers?
25 A. There's nothing wrong with leaving. I
481
1 just didn't understand why he never came back.
2 I mean, basically, everybody was shuffling all
3 the paperwork and doing everything else for the
4 matter, and I don't really know what Curt was
5 doing at the time.
6 Q. Did you ever ask him?
7 A. Didn't feel it was my place.
8 Q. Do you ever feel unenthusiastic about
9 your job?
10 A. There's high days and low days, yeah.
11 Q. Do you ever complain about your job?
12 A. Yeah. I'd probably say on occasion I
13 have.
14 Q. Have you ever felt tired and stressed
15 out?
16 A. Yes.
17 Q. Have you lacked motivation in terms of
18 your job, ever?
19 A. Yeah, but I haven't gone up to other
20 officers and voiced my issues and problems with
21 them.
22 Q. Well, what you've said is that he has
23 said that he's stressed out; right?
24 A. That's his comments to me, yeah.
25 Q. Okay.
482
1 When you feel stressed out, are
2 you telling me that you don't tell anybody?
3 A. No, I don't.
4 Q. You just keep it all bottled up inside?
5 A. I deal with it, and once it passes,
6 it's gone.
7 Q. So you pent it up?
8 A. Huh?
9 Q. You pent up your stress?
10 A. Pin it up?
11 Q. P-e-n-t, pent up, keep it inside.
12 A. Basically, yeah.
13 Q. Did you make complaints about
14 Sergeant Ruby prior to August of 2006?
15 A. I think that there might have been some
16 verbal speakings with Chief Deputy O'Brien over
17 incidents, but I don't recall 100 percent what
18 was what.
19 Q. What incidents?
20 A. I believe that I might have spoken to
21 him about this Mr. Thompson deal a little bit,
22 and voiced my concerns about what happened
23 there.
24 Q. Anything else?
25 A. I don't recall 100 percent, no.
483
1 Q. All right.
2 Did you ever talk with
3 Sergeant Ruby about his being back on nights,
4 being glad to be back on nights?
5 A. About his being glad?
6 Q. Yes.
7 A. What; me being glad or him being glad?
8 Q. No, him being glad.
9 A. I don't recall.
10 Q. I'm just trying to identify the source
11 of a comment that is a part of Defendant's
12 Exhibit D that Curt Ruby is alleged to have said
13 that he really enjoyed being back on nights as
14 it allowed him plenty of time to park in the
15 cemetery, read books, get out and stretch, and
16 practice tae kwon do moves.
17 A. That wasn't said to me.
18 Q. Okay, all right.
19 Prior to August of 2006, did you
20 complain that Curt Ruby was isolating himself?
21 A. I don't think I complained that he was
22 isolating himself, because to me, it was better
23 that he kind of did stay away from me, because I
24 didn't have to listen to a lot of his comments
25 and remarks.
484
1 Q. All right.
2 Did you complain to
3 administration about open derogatory remarks
4 about the department and members of the
5 department?
6 A. I don't think I did.
7 Q. All right.
8 How about his lack of motivation?
9 Did you complain about that?
10 A. Well, I think I might have made mention
11 to him about that.
12 Q. Sheriff Mickelson?
13 A. Resulting around, revolving around
14 these incidents that we've already talked about,
15 basically.
16 Q. Which ones?
17 A. The one with the search warrant on
18 South 18th, I don't remember if I told -- had
19 mentioned anything to administration about the
20 he's stressed-out comments, anything about that.
21 I don't know.
22 Q. Did you -- Now, the search warrant
23 happened after August of 2006; correct?
24 A. The search warrant on South 18th Avenue
25 South?
485
1 Q. Uh-huh, yes.
2 A. Happened on --
3 Q. Well, I can tell you that it happened
4 on 9-8-06.
5 A. Yeah.
6 Q. And that's the one you're talking
7 about?
8 A. Yeah.
9 Q. And did you complain about him not
10 being accessible at calls?
11 A. No.
12 Q. Did you complain to the administration
13 about him expressing anger and discontent toward
14 Sheriff Mickelson?
15 A. No. Me and Curt didn't speak that much
16 after -- for about the past couple of years,
17 basically.
18 Q. Let's talk a little bit about the night
19 of September 8th, the search warrant, and the
20 first thing I'd like to do is show you documents
21 recently produced to me for the purpose of
22 refreshing your recollection.
23 MS. CONLIN: May we confer?
24 (An off-the-record discussion
25 was held.)
486
1 Q. I want to refresh your recollection
2 about when this situation started.
3 A. Yeah.
4 Q. By "this situation," you mean --
5 A. 5:45 p.m.
6 Q. And you've told us you were there
7 till 2:00 and 3:00. What time did you say in
8 this report that you left?
9 A. It says about 1 a.m. there.
10 Q. And when you left, Sergeant Ruby was
11 already there; correct?
12 A. Yes.
13 Q. You told us, I think, that
14 Chief Deputy O'Brien was there, and was -- Did
15 you tell us Sheriff Mickelson was there also?
16 A. No, I did not.
17 Q. Was Lizer there?
18 A. I believe so, yes.
19 Q. During the entire process?
20 A. No.
21 Q. When, or do you know?
22 A. I think after -- While we were there at
23 the scene, I mean, at some point -- There's a
24 female there that was still there for the
25 majority of the evening. I think that there was
487
1 a Fort Dodge police officer that was assisting
2 in basically standing by with her outside of the
3 residence, and I think that once the police
4 department shift change occurred, I think that
5 Lizer came and relieved whoever the first
6 officer was.
7 Q. Okay.
8 So do they change shifts at the
9 same time you do?
10 A. No.
11 Q. What time do they change their shifts?
12 A. Right now they're working 12 hours, six
13 to six.
14 Q. Then.
15 A. At that time I'm not for certain.
16 Q. And Thode, he was there?
17 A. At one point, yes.
18 Q. Would that be reflected in your report,
19 who all was there?
20 A. Possibly.
21 Q. And was -- When Sergeant Ruby came
22 along, the search had been underway for several
23 hours. Would that be true?
24 A. The incident started -- We got the guy
25 in custody. We went in the front door, he came
488
1 out the back door, put him in custody.
2 Had to spend -- Secured the
3 residence. Had to -- took a couple, three hours
4 to go get a search warrant, and then we,
5 Chief Deputy O'Brien and myself, began searching
6 the residence. We spent a couple of hours,
7 basically, in the upstairs area where most of
8 the -- the illegal narcotics and that were
9 seized, were found, and once we believed that we
10 had most of the narcotics found, we broke for
11 the evening to get the stolen property in the
12 house the next morning.
13 Q. All right.
14 Do you know who else was on duty
15 during the night shift that night?
16 A. I don't recall for sure.
17 Q. There were -- In connection with this
18 search, what I understood you to say earlier was
19 that Sergeant Ruby had several suggestions about
20 the way the situation could be handled rather
21 than him sitting on the house all night?
22 A. Yes.
23 Q. Did you think it was inappropriate for
24 Sergeant Ruby to make those comments?
25 A. It wasn't the comments themselves. It
489
1 was the way that it was gone about, and maybe
2 his tone of voice or his attitude towards the
3 whole thing that I didn't feel was appropriate.
4 Q. Matter of style?
5 A. Could be.
6 Q. In the discussion, did you hear all of
7 it?
8 A. No.
9 Q. How far away were you when the
10 discussion was going on?
11 A. I was standing right next to it,
12 involved in it at points, and I was nowhere near
13 it at points.
14 Q. All right.
15 Were you continuing to conduct
16 your search?
17 A. No. I was dealing with other matters
18 revolving around the search warrant.
19 Q. All right.
20 Did you hear Sergeant Ruby
21 express concern about leaving Deputy Walter all
22 alone on the street on a Friday night?
23 A. I don't recall that, no.
24 Q. Did you hear him suggest it wasn't safe
25 to do that, leave Deputy Walter all alone?
490
1 A. I wasn't involved in that part of it.
2 Q. All right.
3 Do you recall making the comment
4 to Sergeant Ruby, and I quote, "Don't piss on
5 the evidence"?
6 A. No.
7 Q. Do you remember that he went back, to
8 the back of the house to relieve himself?
9 A. He didn't go -- He left and went to a
10 gas station, is my understanding.
11 Q. Oh, I'm sorry. My notes are not clear.
12 Do you know what happened that
13 night after you left?
14 A. No.
15 Q. When Sergeant Ruby left to get whatever
16 he went to get, was there anything -- I think
17 you said it was appropriate for him to do that.
18 A. Sure.
19 I would have done it. I would
20 have asked to go get a pop or, you know, a pack
21 of cigarettes, go use the rest room, whatever.
22 If I know I'm going to be stuck sitting there
23 for a period of time, yeah, I'm going to ask to
24 go do that before I get stuck there, yeah.
25 Q. And do you know how long he was gone?
491
1 A. 15, 20 minutes maybe.
2 Q. And he did, in fact, do what he was
3 asked to do; correct?
4 A. Yes.
5 Q. Would you turn to your Exhibit K,
6 please? You describe on page 1 of that exhibit
7 the discussion that I think you repeated for us,
8 and what -- what you say here is that you felt
9 offended by his attitude; correct?
10 A. Yes.
11 Q. You felt that he was angry about
12 sitting on the residence?
13 A. Yes.
14 Q. You said he was very short and
15 disrespectful towards other officers on the
16 scene.
17 A. Yes.
18 Q. And then you go into the suggestions
19 that he had about reserve deputies and a VARDA,
20 and the Fort Dodge Police Department would be
21 sitting on it in shifts, but between our office
22 and theirs?
23 A. Yeah.
24 Q. Did that happen, do you know?
25 A. I believe so, yeah.
492
1 Q. All right.
2 And if you turn to the next page,
3 you talked about Officer -- is it Lizer?
4 A. Yes.
5 Q. And I think that you told us it was
6 the next day, but, in fact, this says
7 September 10th; right?
8 A. Right.
9 Q. And --
10 A. Which when we left, it was the 9th. I
11 mean, I'm not talking about -- The days
12 overlapped basically.
13 Q. Yes, I know.
14 But it wasn't -- The search was
15 all conducted and everything was done when you
16 talked to Lizer; correct?
17 A. No.
18 Q. Was --
19 A. This was -- when Lizer -- on
20 September 10th when Lizer approached me and
21 voiced his concerns about it, I believe we were
22 at the LEC here, and it was like a day or two
23 later.
24 Q. Okay. That's what I'm getting at.
25 It wasn't like the next morning
493
1 when you went back?
2 A. No.
3 Q. Okay.
4 And you were here at the LEC when
5 you talked with him?
6 A. Yes.
7 Q. And his concern was he thought that
8 Sergeant Ruby wasn't polite?
9 A. Didn't -- I think that his concern was
10 that he wasn't being professional.
11 Q. All right.
12 Did you say that it was -- Well,
13 now, let me deal with that for a minute.
14 By "not professional," is -- That
15 would be based on the perceptions of the people
16 who are -- who are there, and people might have
17 different perceptions; correct?
18 A. Yeah.
19 Q. There's no particular definition of
20 unprofessional?
21 A. I don't know. Might be in the
22 dictionary, but everybody has their own beliefs.
23 Q. Their own --
24 A. Definitions.
25 Q. Well, and their own subjective
494
1 perception of what that constitutes?
2 A. Yeah.
3 Q. Did you say that he asked you what you
4 did or what happened to piss off Sergeant Ruby?
5 A. Did he say that?
6 Q. Yes.
7 A. I believe so, yeah.
8 Q. And what did you say back?
9 A. I didn't know what -- I still to this
10 day don't know 100 percent what I have done to,
11 I guess -- I don't know if I have angered Ruby
12 in some way over the years or I don't know what
13 the circumstances for, I guess, our relationship
14 has become.
15 Q. All right.
16 And then you talked with --
17 the same question you got from Mr. Thode or
18 Officer -- Captain Thode on September 13th;
19 correct?
20 A. Yeah.
21 Q. Now, according to Exhibit 517, which is
22 already in the record, when we looked at the
23 properties, you created this document on
24 September 13th. Does that comport with your
25 recollection? It would have been sometime after
495
1 you talked to Captain Thode that you did this,
2 on the same day?
3 A. I think that the exact day of when
4 this -- when I did this report is, I don't know.
5 Q. All right. Well, we have it in the
6 record.
7 A. It's possible that I started the report
8 on one day and didn't complete it that day and
9 finished it -- saved it and finished it another
10 day. I don't know exactly how -- how many days
11 were involved in completing this report.
12 Q. And you approached O'Brien about it,
13 and he told you to do the report?
14 A. Yeah. He asked that I do one, yes.
15 Q. And you say here that you have
16 witnessed several other incidents involving
17 Sergeant Ruby's attitude towards his job, "and I
18 am offended almost every time I see him";
19 correct?
20 A. Yeah. I'd say that would be a fair
21 statement.
22 Q. And you have concluded, as a matter of
23 your own personal belief, that he does not care
24 to be at work; right?
25 A. That's -- Yeah, that's my belief.
496
1 Q. And you say, "On numerous occasions
2 other deputies have spoke to me about Ruby's
3 attitude and how he is pulling the morale of the
4 department down"?
5 A. Yes.
6 Q. And then you offer this reason
7 for writing the report: "I feel that
8 Sgt. Ruby's actions that I have witnessed are
9 endangering the safety of other officers that he
10 is working with."
11 This is, again, your subjective
12 belief; right?
13 A. Yes.
14 Q. And "I feel that he would not back
15 another officer up when needed."
16 Was there an example of not
17 backing another officer up?
18 A. That's just the way I felt.
19 Q. I know.
20 And so what you tell
21 Chief Deputy O'Brien is that your subjective
22 belief based on no evidence whatsoever is that
23 he's not going to back people up?
24 A. I didn't -- I'm not saying that he
25 won't back everybody up all the time, but I
497
1 do -- I felt that there would be occasion, maybe
2 in my own instance, where maybe I needed
3 something, and I wouldn't have the backup there
4 to support myself, I guess.
5 Q. And it was also your subjective belief
6 that he would rather not do the job; correct?
7 A. That was my belief, yeah.
8 Q. And it was also your subjective belief
9 that this not only affects the officers that he
10 works with, but also affects the public who he
11 is to protect; correct?
12 A. Correct.
13 Q. And in justifying what you wrote about
14 Sergeant Ruby, you talked about the Moorland
15 incident; right?
16 A. Yeah.
17 Q. And Defendant's Exhibit -- the tow
18 truck incident of September 2007, this is
19 before -- "I better use the rest room before I
20 pee my pants and they think I'm crazy again"?
21 A. That was one example of -- There has
22 been numerous occasions that, you know, there's
23 comments made or, you know, just stuff stated or
24 done or, you know, the way a call is handled or
25 whatever that I just felt that he didn't feel
498
1 like he wanted to be there.
2 Q. Well, I want to talk about the tow
3 truck incident of September of 2007. There's no
4 report about that, is there?
5 A. No.
6 Q. And is it -- Can you even allow for the
7 fact that that was Sergeant Ruby's sense of
8 humor?
9 A. I didn't think that -- I didn't think
10 that that was directed towards trying to be
11 funny. I thought that -- It would be funny
12 if -- It would possibly be funny if he said,
13 "Hey, you know, I've got to get to the bathroom
14 before I pee my pants," you know, but when you
15 start throwing remarks back towards, "because
16 they might think I'm crazy" or "might" -- I
17 don't remember the exact quote or how he said
18 it, but it was, "They might think I'm crazy" or
19 "They might make me go take another
20 psychological test," or something. It was
21 something along those lines.
22 To me he was knocking the bosses
23 for apparently having to go have these tests
24 done.
25 Q. Well, you knew that he had had a
499
1 fitness-for-duty examination by that time,
2 didn't you?
3 A. I knew that he had had some type of
4 testing done. I did not know anything about
5 what the actual testing was. I didn't know it
6 was a fit-for-duty or psychological exam, or
7 what exactly it was.
8 Q. All right.
9 And you didn't think it was
10 funny?
11 A. I didn't think it was funny at all, no.
12 Q. Who did you tell?
13 A. I believe I had made mention to it to
14 Jim O'Brien.
15 Q. You talked a lot to Jim O'Brien about
16 Sergeant Ruby?
17 A. That's who I felt was our personnel
18 director and dealt with the issues. And talking
19 to him during the first complaint, he's like,
20 "Hey, if something comes up," you know, "let Jim
21 know," and that's what I've continued to do.
22 Q. Exhibit L is undated, I think, but the
23 Exhibit 518 tells us that you wrote this on
24 February 13th of 2007, so let's take a look at
25 this.
500
1 As I understand it, what had
2 happened this evening -- 3:15 on Thursday
3 morning, February 8th of 2007, so you're writing
4 this five or six days later; correct?
5 A. Probably.
6 Q. All right.
7 You learned that Sergeant Ruby
8 was angry -- "again angry at me" because you had
9 taken one of -- Let me start again.
10 On this night Sergeant Ruby was
11 in charge of the shift; correct?
12 A. I believe so, yeah.
13 Q. He was your --
14 A. I didn't -- I don't think that I even
15 checked who was in charge of the shift prior to
16 that.
17 When I called Mike Kenyon to come
18 help me, I knew that Kenyon was working, and I
19 knew that he was more than willing to come help
20 doing what I needed help with, so I called him
21 up on the phone and said, "Hey, can you come
22 help me out for a little bit?"
23 Simple as that.
24 Q. You had to know somebody was in charge
25 of the shift, and it wasn't Mike Kenyon?
501
1 A. No. Mike Kenyon at the time was the
2 lowest ranking deputy on that shift, but who was
3 working with him or -- I don't recall that I
4 even knew who was working. I basically -- I
5 knew that Kenyon was working. I don't know how.
6 I don't know if I heard radio traffic through
7 him or what, but I dialed him up and said, "Hey,
8 can you come down and help?"
9 Q. Is it correct that if Sergeant Ruby was
10 the shift supervisor, he would be your superior
11 officer; correct?
12 A. He outranks me, yes.
13 Is he my direct supervisor? No.
14 Q. All right.
15 Well, does that mean that the
16 chain of command rules don't apply?
17 A. I'm not saying that, no.
18 Q. Okay.
19 Well, then, you violated them,
20 didn't you?
21 A. I guess so.
22 Q. I guess so.
23 And then you took Mike Kenyon,
24 who's working for Sergeant Ruby -- and assume
25 with me that's true because we've got the
502
1 records. You took him, and you took him away
2 from his assigned duties to help you without
3 talking to his -- the shift supervisor.
4 A. I guess I did.
5 Q. And then Chief Deputy O'Brien spoke
6 with you about that; correct?
7 A. Yeah.
8 Q. But you didn't apologize in here, and,
9 indeed, you didn't say you wouldn't do it again;
10 correct?
11 A. Correct. I probably would have done
12 things the exact same way.
13 Q. Okay.
14 You wouldn't have checked with
15 a -- you would not have followed the chain of
16 command?
17 A. You know, you're going a long ways with
18 this chain of command. My chain of command is
19 Luke Fleener is my sergeant in detectives, and
20 Jim O'Brien is the chief deputy, the sheriff is
21 Brian Mickelson.
22 When we're -- I guess chain of
23 command is kind of used loosely in our
24 department where -- in my beliefs anyway. I
25 don't know what our policy and procedure is.
503
1 I'm going by the way things have
2 been handled or done over the years that me,
3 being in my position as a detective, if I need
4 help from another guy, I'm going to call him.
5 And typically, the supervisors are usually aware
6 of what's going on, and typically, we don't have
7 an issue.
8 Q. All right.
9 So it's your view that during
10 this time frame, it was not necessary for you to
11 check with the shift supervisor in order to take
12 one of his subordinates out of his assigned
13 duties to help?
14 A. Typically, I -- typically, I would have
15 called the supervisor and ask for that
16 supervisor's assistance because I would have
17 known -- I know in my mind that that other
18 supervisor would have came and given me the
19 assistance that I needed.
20 Q. I thought you told me that you didn't
21 even know that Sergeant Ruby was the supervisor
22 that night?
23 A. I didn't know. I told you I knew
24 Kenyon was working, and I called Kenyon.
25 Q. And apparently, Chief Deputy O'Brien
504
1 didn't feel that was an appropriate thing for
2 you to do?
3 A. I believe that what Chief O'Brien
4 believed was, to prevent any future complaints
5 out of Ruby or to try and settle the issue, if
6 Ruby is working, please contact Ruby to clarify
7 or take care of the -- have him take care of the
8 task that needs to be taken care of.
9 Q. All right.
10 In this you say that after
11 Chief Deputy O'Brien expressed his concerns, you
12 say, "I than expressed my feelings that I
13 normally would."
14 What does that mean?
15 A. I then told Jim O'Brien how I felt
16 about the situation.
17 Q. All right.
18 And this is not the only
19 time that you have taken people off of
20 Sergeant Ruby's shift without telling him;
21 correct?
22 A. I don't know. It's very possible.
23 Q. Well, let's talk about -- you remember
24 the Dolliver Park suicide incident?
25 A. No.
505
1 Q. All right.
2 Do you remember a time when you
3 went to look for a suicidal male in Dolliver
4 Park, and he, Sergeant Ruby, was your
5 supervisor?
6 A. You're going to have to be more
7 elaborate. I don't recall a suicidal male in
8 Dolliver off the top of my head.
9 Q. Let me see if this refreshes your
10 recollection: You told the dispatcher to
11 contact you on your cell phone and not to use
12 the radio during this incident. Does that
13 refresh your recollection?
14 A. No.
15 Q. On another occasion you went with
16 Lieutenant Kruse to Callender with, I think --
17 Is it Deputy Roden, R-o-d-e-n?
18 A. Roden.
19 Q. Oh, sorry.
20 Do you remember that incident?
21 A. An incident where I went to Callender
22 with Kruse and Roden?
23 Q. Yes.
24 A. That could be dozens of times or -- I
25 don't recall, no. Based off that information, I
506
1 don't know what you're trying to get at.
2 Q. Okay.
3 Do you remember -- Well, have you
4 ever been insolent or rude or insubordinate
5 directly to Sergeant Ruby?
6 A. If I was, I don't believe that I'm
7 aware of it.
8 Q. And this search warrant incident, did
9 you tell us when that happened?
10 A. Which one? They're all basically
11 search warrant incidents.
12 Q. Oh, I'm sorry.
13 The one with the -- which you
14 said was a string tied to the door.
15 A. I want to say 2004 maybe.
16 Q. And you -- Sergeant Ruby was your
17 superior officer at that time?
18 A. Yes.
19 Q. Right directly over you. No question
20 about who's in the chain of command here?
21 A. No.
22 Q. Are you aware that Sergeant Ruby at the
23 time was a certified emergency medical
24 technician?
25 A. Yeah.
507
1 Q. And it wasn't a string that he had tied
2 to the door, was it?
3 A. He never tied anything to the door.
4 Q. Okay. Well --
5 A. It never got to that point.
6 Q. Well, but was it a string that he was
7 talking about?
8 A. That was my understanding.
9 Q. Not a rope?
10 A. Well, string, rope. I see where you're
11 getting at a string is a lot smaller than a
12 rope.
13 Q. At least that's my understanding.
14 A. Okay, a string or rope. Rope, fine,
15 but that's --
16 Q. Okay.
17 What I heard you say was that he,
18 your superior officer, told you to -- how entry
19 would be made to the house; right?
20 A. I suppose so, yeah. He wanted to tie a
21 string or rope to the door before we made entry.
22 Q. And you didn't like that?
23 A. I didn't believe in it tactically one
24 bit, no.
25 Q. And so you just went and did what you
508
1 wanted to do; correct?
2 A. I guess so.
3 Q. That would be insubordinate; right?
4 A. I guess so.
5 Q. Anybody ever talk to you about it?
6 A. No.
7 Q. You, obviously, didn't get fired for
8 it?
9 A. No, I didn't.
10 Q. All right.
11 A. I was never addressed by Ruby over it
12 either, being my direct superior at the time.
13 Q. All right.
14 Would you please look at
15 Defendant's Exhibit --
16 MS. VALENTINE: Excuse me. We've
17 had a request for like a 15- to 10-minute break.
18 Could that be possible?
19 MS. CONLIN: Could I just get
20 this tied down?
21 MS. VALENTINE: Yes, you can.
22 MS. CONLIN: Thank you. I'm
23 afraid I'll forget, but I thought I could find
24 it right away too.
25 Why don't we go ahead and take
509
1 the break while I organize myself.
2 MS. VALENTINE: Okay. We will be
3 back at quarter till.
4 (A recess was taken from 2:38 p.m.
5 until 2:49 p.m.)
6 MS. VALENTINE: Are we ready to
7 continue?
8 MS. PENICK: Yes.
9 MS. VALENTINE: And if I ever
10 interrupt at an inopportune moment, please let
11 me know that. I'm not intending to do that.
12 Please continue your examination,
13 your cross.
14 MS. CONLIN: Yes, thank you.
15 Q. Turn to Exhibit N, please.
16 In the course of your service,
17 have you handled domestic violence matters?
18 A. Yes.
19 Q. If you will look at 236.12, you will
20 see that under subsection 1c there is a
21 requirement that an abused person be provided
22 with a card that tells them a number of things,
23 like they have a right to ask the court for the
24 following help, keeping your attacker away from
25 you, and so on.
510
1 Do you have those cards?
2 A. Yes.
3 Q. What do they say?
4 A. Basically, they give a phone number for
5 either -- the domestic outreach center, and I
6 think they explain the person's rights.
7 Q. Let me show you our Exhibit 31 and ask
8 you if this is the card you're talking about.
9 Oh, here, let me just put it up
10 here so I won't have to walk too much.
11 It's a -- you know, it's like a
12 business card-sized thing; is that right?
13 A. Yeah.
14 Q. This (indicating) is what you're
15 talking about, Exhibit 31; correct?
16 A. Yeah.
17 Q. And if you compare Exhibit 31 to what
18 you see in front of you, you will see that it
19 does not notify the victim of the -- of most of
20 the rights that a victim is required to be
21 notified of under 236.12; is that correct?
22 A. I guess I don't know.
23 Q. All right.
24 Have you ever seen or been
25 provided by the sheriff with any cards to give
511
1 to domestic violence victims other than
2 Exhibit 31?
3 A. Yes.
4 Q. Well, what other ones, what other cards
5 have you had?
6 A. They're pink and have like a domestic
7 violence narration, and stuff like that. I
8 think I might have some out in my truck,
9 actually.
10 Q. All right.
11 So there are some pink cards?
12 A. They're old. I mean, these are things
13 I've had for six years. I think that those are
14 the newer cards that are now provided.
15 Q. That are now provided rather than the
16 pink cards, whatever they may be?
17 A. I don't know what is -- the actual
18 cards given out nowadays. I don't respond to
19 too many domestics, and I had the cards that I
20 had in my truck, and that's the extent of it.
21 Q. Okay.
22 Well, you say you don't respond
23 to too many domestics, but in the last six
24 months, have you responded to any domestics?
25 A. Not that I recall.
512
1 MS. CONLIN: All right.
2 I would request members of the
3 commission that he be asked to find the pink
4 cards in his truck.
5 MS. VALENTINE: At this very
6 moment?
7 MR. DRISCOLL: At the conclusion
8 of his testimony?
9 MS. CONLIN: Yes.
10 MS. VALENTINE: That would be
11 fine.
12 MS. CONLIN: I would also ask for
13 a sample of the cards that Sheriff Mickelson
14 described this morning that he says conforms
15 to 236.12.
16 MS. VALENTINE: I think he
17 mentioned those cards were in the office.
18 MS. CONLIN: Yes, that's what he
19 said.
20 MS. VALENTINE: Okay.
21 Q. And did you say -- Shortly before the
22 discharge of Sergeant Ruby, did you say, "Ruby
23 isn't going to make it to the election"?
24 A. No, I did not.
25 Q. You didn't say that to Rod Strait?
513
1 A. Not that I recall, no.
2 Q. You don't recall, but you could have
3 said --
4 A. I don't believe I would have said
5 anything like that. I talked to Rod Strait
6 maybe one or two times in the past six months.
7 Q. Are you on the outs with him too?
8 A. No. I just don't see him. We work
9 different shifts, and I very rarely see him.
10 MS. CONLIN: That's all I have.
11 MS. VALENTINE: Redirect?
12 REDIRECT EXAMINATION
13 BY MS. PENICK:
14 Q. I want to ask you again about the
15 February 8th, 2007 incident that you wrote about
16 in Exhibit L when you called Mike Kenyon for
17 assistance.
18 A. Yeah.
19 Q. And it came to your attention later --
20 I think you said through Chief Deputy O'Brien --
21 that Sergeant Ruby was upset that you called
22 Kenyon without talking to him first; is that
23 right?
24 A. Yeah.
25 Q. Did Sergeant Ruby ever talk to you
514
1 about that situation?
2 A. No.
3 Q. Did Sergeant Ruby ever call off Kenyon
4 to tell him to not assist you?
5 A. No.
6 Q. Did Sergeant Ruby ever tell you not to
7 call one of the deputies directly?
8 A. No.
9 Q. And there was some discussion just
10 recently about domestic abuse cards and the
11 language that they contained.
12 When Sergeant Ruby was your
13 commanding officer, did he ever give you any
14 cards to hand to domestic violence victims?
15 A. Directly, no.
16 Q. What do you mean?
17 A. At one time there were cards --
18 Everybody has a mailbox upstairs.
19 Q. Yes.
20 A. At one time there were cards provided
21 to everybody's mailbox.
22 Q. Yes.
23 A. Who provided them, I don't know.
24 Q. And which cards are you talking about?
25 A. I believe they looked like those cards
515
1 that were provided up there, that were shown on
2 the screen by the other counsel.
3 MS. PENICK: Thank you. I'm
4 finished.
5 MS. VALENTINE: Any further
6 recross?
7 MS. CONLIN: No.
8 MS. VALENTINE: Any questions
9 from the commissioners?
10 MR. DRISCOLL: No.
11 MR. O'CONNOR: No.
12 MS. VALENTINE: Witness is
13 excused.
14 If you would be so kind as -- Is
15 your truck here?
16 THE WITNESS: Yeah. I'll go out
17 and try to find them. Like I said, I'm not sure
18 they are there.
19 MS. VALENTINE: If you have a
20 pink card, please come back and give them to us.
21 MR. O'CONNOR: And also, if you
22 could please stop in the sheriff's office and
23 please provide one of the cards that are up
24 there.
25 THE WITNESS: I will try and find
516
1 one.
2 MR. O'CONNOR: Okay, thank you.
3 MS. VALENTINE: Next witness?
4 Are the parties ready?
5 I need to swear the witness in
6 first.
7 MIKE KENYON,
8 called as a witness, having been first duly
9 sworn, testified as follows:
10 DIRECT EXAMINATION
11 BY MS. PENICK:
12 Q. Could you please state your name for
13 the record?
14 A. Mike Kenyon.
15 Q. Mr. Kenyon, I'm Bridget Penick, and I'm
16 the lawyer who is representing the sheriff's
17 office in this matter. I wanted to ask you a
18 few questions today, okay?
19 A. Okay.
20 Q. Can you tell us how long you've been
21 employed by the sheriff's office?
22 A. Since August of 2006.
23 Q. And do you have prior law enforcement
24 experience?
25 A. Yes, I do.
517
1 Q. And what would that be?
2 A. Humboldt Police Department.
3 Q. For how long?
4 A. Approximately four years.
5 Q. What is your current position?
6 A. Detective.
7 Q. And when did you become a detective?
8 A. September '07.
9 Q. Have you had occasion during your about
10 a year and a half with the county to work with
11 Officer Curt Ruby?
12 A. Yes, I have.
13 Q. And did you work on the night shift?
14 A. Yes.
15 Q. Did you have any problems working with
16 Officer Ruby?
17 A. I don't -- No, I wouldn't say so.
18 Q. How is it determined who takes calls
19 that come in while you're working patrol?
20 A. I guess it's up to the officer. If
21 someone arrives first or someone wants to take
22 the call, they discuss it with each other.
23 Q. There's no procedure as to, you know,
24 alternate calls, or anything like that?
25 A. I don't believe so.
518
1 Q. When you were working the night shift
2 with Officer Ruby, do you feel that you took
3 more calls than he did?
4 A. Yes, probably. I was young, and I
5 wanted to take more calls.
6 Q. Do you recall ever telling anybody that
7 you got along fine with Curt, "as long as I took
8 most of the calls"?
9 A. I might have said that.
10 Q. Did you have occasion to interact with
11 Curt face-to-face?
12 A. Yes.
13 Q. And then I assume -- when you were
14 patrolling, would you be in separate vehicles?
15 A. Yes.
16 Q. And how would you communicate at that
17 time?
18 A. Over the radio probably.
19 Q. Are there occasions where you and
20 Officer Ruby didn't talk at all?
21 A. I'm sure there were some occasions,
22 yes.
23 Q. Have you ever characterized
24 Officer Ruby as moody?
25 A. Sure, yes.
519
1 Q. What would you consider to be moody?
2 A. Have a bad day.
3 Q. How often would you say that you felt
4 Officer Ruby would have a bad day?
5 A. I guess I don't know.
6 Q. Had you ever said that he was real
7 moody?
8 A. I might have said that.
9 Q. What would you mean by that?
10 A. He had a really bad day.
11 Q. Are you talking about on one occasion?
12 A. I don't know. I can't remember. If I
13 said that, you mean?
14 Q. Well, yeah, yeah.
15 A. I might have said that, yes.
16 Q. That he was real moody on one occasion?
17 A. I don't think I said one occasion. I
18 don't know.
19 Q. Okay.
20 Well, I'm trying to get a sense
21 what you mean by that because when you say that
22 someone is moody, my interpretation is they're
23 kind of a moody, kind of a down or sullen person
24 generally, and I want to know what you mean by
25 it.
520
1 A. Moody as in they were moody that time
2 when I was interacting with them.
3 Q. Okay.
4 Was there an occasion where you
5 recall Curt being specifically moody?
6 A. Not specifically, no.
7 Q. Well, what did you mean when you told
8 me on the telephone when I interviewed you that
9 Curt was real moody?
10 A. That sometimes he was frustrated at
11 nights. Then he'd be moody, and sometimes it
12 would be a good night for him, and sometimes it
13 would be a bad night for him.
14 Q. Do you understand what he found
15 frustrating, what was frustrating to him?
16 A. Yeah. He said -- or he was frustrated
17 with the department.
18 Q. Can you give me an example?
19 A. I don't think he liked working nights,
20 and I don't think he liked the department.
21 Q. What gave you that impression?
22 A. Just talking to him.
23 Q. Did he say he didn't like the sheriff?
24 A. I don't specifically say -- remember
25 him saying those exact words, no.
521
1 Q. What do you remember him saying about
2 the sheriff?
3 A. I guess I don't remember.
4 Q. Based on the conversations you had with
5 him, was it your impression that Officer Ruby
6 liked Sheriff Mickelson?
7 A. No.
8 Q. Was it your opinion that he disliked
9 the sheriff?
10 A. Yes.
11 Q. But you can't give any examples as to
12 what makes you think that?
13 A. I can't give any specific words, no. I
14 can't remember.
15 Q. I want to ask you about a couple of
16 calls that you handled or that you -- it
17 appears that you were working on, along with
18 Officer Ruby, okay?
19 In July -- on July 25th, 2007,
20 you were still a patrol deputy; right?
21 A. Yes, I believe so.
22 Q. Okay.
23 Do you remember going to the
24 residence of Victor and Virginia Carlson?
25 A. Yes.
522
1 Q. Were you the first to arrive at the
2 scene, first officer?
3 A. I don't think so. I think we arrived
4 at pretty much the same time.
5 Q. And Officer Ruby would have been your
6 superior officer at that point; right?
7 A. Yes.
8 Q. Did some one of you take charge of the
9 scene?
10 A. Yes.
11 Q. Who did?
12 A. Officer Ruby.
13 Q. And what do you recall happening?
14 A. Curt went over and talked to -- I think
15 it was Victoria, the mother.
16 Q. Could it be Virginia?
17 A. Virginia, that's right.
18 And I went and talked to, I
19 think, Virginia's daughter.
20 Q. And when you say went over to, were you
21 a significant distance apart?
22 A. At times, yes.
23 Q. What do you mean by "at times"?
24 A. Well, she was getting angry and yelling
25 and stuff, and I told her to come over here and
523
1 talk to me, and tried to separate the two.
2 Q. So when you first got there, they were
3 both together?
4 A. I believe so.
5 Q. Okay.
6 Did you -- Were the four of you,
7 I guess, standing together, you and Officer Ruby
8 and Virginia and her daughter? Virleen, I think
9 is her name.
10 A. Yes.
11 I think Rod Strait was there too.
12 Q. You think Rod Strait was there.
13 And so you said you think the
14 daughter was getting excited and yelling, and
15 you just tried to pull her away from the
16 conversation a little bit?
17 A. Yes.
18 Q. What did the daughter say to you?
19 A. That Vic hurt Virginia some way, and I
20 can't remember how, but physically -- physically
21 was hurt.
22 Q. Physically hurt her mother?
23 A. Yeah. I don't know how -- I don't
24 remember how, but --
25 Q. Do you remember her saying specific
524
1 instances, and you just can't recall them?
2 A. Yes, yes.
3 Q. Did you hear anything that Virginia
4 said about what had happened?
5 A. I heard parts of the conversation, yes.
6 Q. Can you tell me what you remember
7 Virginia Carlson saying?
8 A. No, I don't remember that.
9 Q. And what did you do after Virleen told
10 you that "my dad hurt my mom"?
11 A. I just basically listened to her, so --
12 Q. Okay.
13 What happened next?
14 A. Curt was talking to her, and then Curt
15 referred her to some -- I think D/SAOC or
16 something, and then we left.
17 Q. Do you know where Mr. Carlson was?
18 A. I believe he was upstairs in the house.
19 Q. Were you informed of that fact by
20 either of these women or --
21 A. I don't know. I don't remember if they
22 told us or someone else told us.
23 Q. You knew he was in the house, though?
24 A. Yes.
25 Q. Did you go into the house?
525
1 A. No.
2 Q. Did Mr. Carlson come out of the house
3 at any time?
4 A. No.
5 Q. Did Officer Ruby go to the house?
6 A. No.
7 Q. You said Rod Strait may have been
8 there. Did he go to the house?
9 A. No.
10 Q. To your knowledge, did anybody talk to
11 Mr. Carlson that night?
12 A. I don't believe so.
13 Q. Do you think that's appropriate?
14 A. I thought that was odd, yes.
15 Q. You thought it was odd?
16 A. Yes.
17 Q. Why?
18 A. I guess I would have handled it
19 differently, I guess, so --
20 Q. What would you have done?
21 A. Probably talked to Vic.
22 Q. Did you make the decision as to whether
23 to arrest Mr. Carlson or not that night?
24 A. No.
25 Q. Who did?
526
1 A. Curt.
2 Q. Why didn't you just go to the door?
3 A. I don't know.
4 Q. Did Officer Ruby tell you to go to the
5 door and interview Vic?
6 A. No.
7 Q. Did you ask him whether you should?
8 A. No.
9 Q. Did you think about it?
10 A. I guess -- That was a while ago, but
11 yeah, I probably did.
12 Q. Why didn't you ask Curt about, "Hey,
13 shouldn't we go talk to the husband"?
14 A. Because I was new, and he has been
15 there for a long time, so --
16 Q. I want to ask you about another
17 situation that involves -- involved a Rickey
18 Chase and a Tammie Chase. It would be in
19 October, October 4th of 2007. Do you recall
20 that incident?
21 A. Yes.
22 Q. What do you recall happening first?
23 A. Oh, I was in the office, and
24 Lieutenant Stubbs told me that there was an
25 incident in Duncombe, and I would -- if I would,
527
1 I'd go help Curt at Duncombe.
2 Q. Now, at this point you are a detective?
3 A. Yes.
4 Q. So you're not out on patrol?
5 A. No.
6 Q. And is that pretty typical procedure,
7 if there's a need out in the field, for a
8 detective to just go and assist?
9 A. Yeah.
10 Q. And do you recall what
11 Lieutenant Stubbs said about this situation?
12 A. I -- I just think he said it was a
13 domestic, or some kind of situation in Duncombe,
14 and he requested some backup in Duncombe, so --
15 Q. Okay.
16 And did you go there?
17 A. Yes.
18 Q. And what did you do when you got there?
19 A. I met Sergeant Ruby there, and we went
20 inside and looked through the house.
21 Q. What were you looking for?
22 A. The defendant, I think, Mr. Chase.
23 Q. Did you find him?
24 A. No.
25 Q. Do you know where Mrs. Chase was?
528
1 A. I don't know if I knew at the time, but
2 later on, I believe she was on her way to the
3 hospital.
4 Q. Now, forgive me for having to ask this
5 question, but is a detective -- if you are at a
6 scene and Sergeant Ruby is at the scene, who
7 would trump whom? And maybe I'm not making that
8 clear.
9 Is there a pecking order at that
10 time, or an officer --
11 A. I guess he would because he has more
12 years of experience than I do, so --
13 Q. All right.
14 Is that something that you
15 determine when you arrive at the site of an
16 incident? You can't both be in charge; right?
17 A. That's true.
18 Q. And so is there some automatic process
19 that -- or do you have to actually talk about it
20 and decide who's going to be in control? How
21 does that work?
22 A. I think you just know.
23 Q. So in this situation, you knew that he
24 had -- he had more years of service than you, so
25 he outranked you at that point?
529
1 A. Yes.
2 Q. All right.
3 You said that you heard that the
4 wife was on the way to the hospital?
5 A. I can't remember if I heard that before
6 or after, but later on I heard that she was,
7 yes.
8 Q. Okay.
9 At what point are you -- did you
10 know for sure?
11 A. I think after we got done looking
12 through the house.
13 Q. Do you know if there was any officer
14 going to talk to the victim at that point?
15 A. I don't remember.
16 Q. Were you ever asked to go speak to the
17 wife?
18 A. No.
19 Q. Did you and Sergeant Ruby discuss
20 about, "Well, maybe we need to send somebody to
21 talk to the victim"?
22 A. I don't think so, but I can't remember.
23 Q. Now, why don't we have you look at --
24 look at that red folder there, tab T, look at
25 page 363. Is that your supplemental report
530
1 regarding the incident?
2 A. Yeah.
3 Q. Okay.
4 Do you want to take a minute to
5 review that? Let me know when you're ready.
6 A. Okay.
7 Q. Okay.
8 And it indicates it was
9 about 1300, which is about 1:00 in the
10 afternoon; right?
11 A. Yeah, yeah.
12 Q. That's when Lieutenant Stubbs told you
13 that he had to go to court?
14 A. Yeah.
15 Q. So he was not going to be available to
16 help?
17 A. Yeah.
18 Q. And you agreed to go out and assist?
19 A. Yes.
20 Q. And that second paragraph, looks like
21 you got to the residence, and Sergeant Ruby told
22 you that there was a domestic situation that
23 happened?
24 A. Yes.
25 Q. And that he was going to check on the
531
1 welfare of the male?
2 A. Yeah.
3 Q. Because he had made threats to harm
4 himself; right?
5 A. Yeah.
6 Q. And that Police Chief Delbert Smith
7 arrived and was informed about what was going
8 on; right?
9 A. Yes.
10 Q. And Ruby said he would just pass the
11 information on to Darren Robinson, who was
12 coming on in the afternoon?
13 A. Yes.
14 Q. And shift change would be around 2:00?
15 There's an overlap; right?
16 A. Right, about 1:45, 2:15.
17 Q. So for that half hour, both Robinson
18 and Ruby would have been on duty?
19 A. Yeah.
20 Q. And so your report at this point
21 doesn't say anything about Tammie Chase, does
22 it?
23 A. No.
24 Q. But Ruby did tell you that there had
25 been a domestic situation; right?
532
1 A. Yeah.
2 Q. And then the next paragraph indicates
3 that -- let's see -- you go back to that same
4 address?
5 A. Yes.
6 Q. Okay.
7 And at that point there was a
8 signed complaint for Rickey Chase; right?
9 A. Yes.
10 Q. What kind of complaint, do you know?
11 A. I'm assuming it was a domestic
12 complaint.
13 Q. And that, apparently, Rickey Chase was
14 still on the loose?
15 A. Yes.
16 Q. And then a search ensued for a brown
17 Cadillac?
18 A. Yeah.
19 Q. Were you present when Rickey Chase was
20 arrested?
21 A. I think he was arrested south of
22 Duncombe, and I was still looking in Duncombe,
23 so --
24 Q. Were you concerned that nobody, to your
25 knowledge, when you arrived at the scene was
533
1 checking on the victim?
2 A. I guess I assumed someone was checking
3 on the victim, so --
4 Q. I want to ask you about another
5 situation, that one night you were working, the
6 night of February 8, 2007, and that night Mike
7 Halligan called and asked you to help follow a
8 tow truck to the county shed because of seizing
9 a vehicle. Do you have a memory of that night?
10 A. Is there any more details, I guess?
11 Q. Let's see. The search warrant had been
12 conducted. His vehicle had been seized, and
13 Halligan had to give DEA Agent Greg Fox a ride
14 back to Post 7, and he just asked you, I
15 suppose, to follow the tow truck with the
16 vehicle to the impound lot.
17 A. Okay.
18 Q. Have you done that before?
19 A. February of '07?
20 Q. Yeah.
21 A. Maybe, probably.
22 Q. And that was just about six months
23 after you started; right?
24 A. Yeah.
25 Q. You don't recall that specific
534
1 incident; is that right?
2 A. Vaguely.
3 Q. You do, okay.
4 Did -- apparently, the -- Mike
5 Halligan called you directly to ask for your
6 help that night. Do you remember that?
7 A. He calls my help a lot on the phone,
8 so --
9 Q. And do you help him?
10 A. Yeah.
11 Q. Apparently, Halligan kind of got talked
12 to because he didn't go through your shift
13 supervisor to find out who was available to help
14 before calling you.
15 A. Oh, okay.
16 Q. Did you get any feedback from that
17 incident?
18 A. No.
19 Q. Were you ever informed, "Oh, you should
20 have checked with your shift supervisor before
21 you went to assist Halligan"?
22 A. No, I was never informed that.
23 Q. Did -- and I believe that Sergeant Ruby
24 was the shift supervisor that evening. Did
25 Sergeant Ruby ever tell you not to go assist the
535
1 detective?
2 A. No.
3 Q. Do you feel it would be appropriate for
4 you to go assist a detective if they asked?
5 A. Someone calls for my help, I'm going to
6 help them, so --
7 MS. PENICK: Thank you. I'm
8 finished with direct.
9 MS. VALENTINE: Cross-examination?
10 MS. CONLIN: Yes.
11 CROSS-EXAMINATION
12 BY MS. CONLIN:
13 Q. Good afternoon.
14 Making detective is a promotion;
15 correct?
16 A. Yes.
17 Q. Usually, it takes a lot longer than it
18 took you; right?
19 A. I don't know.
20 Q. Did Sergeant Ruby encourage you to
21 become a detective?
22 A. We talked briefly about it, yeah.
23 Q. And as a detective, you are not --
24 Starting again.
25 Detectives are of a lower rank
536
1 than sergeants; correct?
2 A. That's correct.
3 Q. And there is a chain of command in the
4 sheriff's department; right?
5 A. Yes.
6 Q. I didn't quite understand your
7 statement about getting along fine with
8 Sergeant Ruby as long as you took more calls.
9 Who did you make that statement to?
10 A. I don't remember.
11 Q. Was that really your feeling, or was
12 that a joke?
13 A. I guess I don't remember. I may have
14 made that statement, so --
15 Q. Okay.
16 But you told us earlier, I think,
17 that you were new. The reason you were taking
18 more calls is because you were new; right?
19 A. Yeah. I enjoyed taking the calls,
20 so --
21 Q. Exactly.
22 So I'm wondering if when you said
23 this, if you did that, that could have been in a
24 humorous way rather than seriously.
25 A. It may.
537
1 Q. In dealing with Virginia Carlson, did
2 you become aware that she did not want to have
3 her husband, Victor, arrested that night?
4 A. Parts of it I heard, and, yes, that was
5 parts of it.
6 Q. The daughter did want him arrested;
7 right?
8 A. Yes.
9 Q. And the victim herself did not?
10 A. Yes.
11 Q. And do you think that it is appropriate
12 for a law enforcement officer to respect the
13 wishes of a victim under those circumstances?
14 A. Well, an officer has to choose between
15 the circumstances and what -- the evidence he is
16 presented, I guess, so --
17 Q. Right.
18 And do you recall that they made
19 a safety plan for Virginia, Curt and Virginia
20 made a safety plan for her?
21 A. I know Curt was talking about referring
22 her to D/SAOC and stuff.
23 Q. All right.
24 And you overheard their
25 discussion about what D/SAOC could offer to her;
538
1 correct?
2 A. Parts of it, yes.
3 Q. Did you at that point know that
4 Sergeant Ruby had considerable expertise in
5 domestic violence?
6 A. Yes.
7 Q. And turn, if you will, again to
8 Defendant's Exhibit T, which is the Chase
9 situation, Tammie Chase and Rickey Chase.
10 A. Yeah.
11 Q. I know that it is difficult to remember
12 exactly what happened in the past, but I'm
13 wondering if -- in your report you say that
14 Lieutenant Stubbs was in a court hearing, and he
15 told you that Sergeant Ruby was on his way to
16 Duncombe, and -- Let's see.
17 Did he -- I think he said that --
18 he said -- he, Lieutenant Stubbs said that there
19 was a domestic situation; correct?
20 A. I believe so, yes.
21 Q. And at that point, did you know any of
22 the details of what kind of a domestic
23 situation?
24 A. No.
25 Q. And then you and Sergeant Ruby went in
539
1 to check; correct?
2 A. Yes.
3 Q. And at that point, you did not have a
4 vest?
5 A. That's true.
6 Q. And how was that handled by
7 Sergeant Ruby?
8 A. He gave me a vest or a plate in the
9 back of his patrol car.
10 Q. And did you use that?
11 A. Yes.
12 Q. Is that standard practice, or do you
13 know?
14 A. Standard practice to use a vest?
15 Q. Yes, when you're going in to look for
16 somebody that may or may not be armed, and you
17 don't know what the situation is.
18 A. Well, I didn't have a vest on, so --
19 Q. All right.
20 You knew that he, Rickey Chase,
21 had made threats to harm himself; right?
22 A. Yes.
23 Q. And you say here, "At this time
24 Duncombe police Chief Delbert Smith arrived,
25 Sgt. Ruby explained the situation to Smith";
540
1 correct?
2 A. That's correct.
3 Q. And you said in your direct testimony
4 that you learned she was on her way to the
5 hospital sometime after this -- as I understood
6 it, while you were on the scene?
7 A. Yes.
8 Q. Okay.
9 And was it Delbert Smith who told
10 Sergeant Ruby that?
11 A. I believe so, but I'm not 100 percent
12 correct.
13 MS. CONLIN: All right. That's
14 all I have.
15 MS. VALENTINE: Any redirect?
16 MS. PENICK: No.
17 MS. VALENTINE: Any questions
18 from the commissioners?
19 The witness is excused then.
20 Thank you for your testimony this afternoon.
21 Next witness?
22 MR. DRISCOLL: Could we just take
23 a brief break? I see that the pink slips came.
24 (A recess was taken from 3:26 p.m.
25 until 3:29 p.m.)
541
1 MS. VALENTINE: All right. Then
2 we will continue with testimony.
3 MS. PENICK: Thank you.
4 MS. VALENTINE: And I need to
5 swear you in.
6 DARREN ROBINSON,
7 called as a witness, having been first duly
8 sworn, testified as follows:
9 MS. VALENTINE: Your witness.
10 MS. PENICK: Thank you.
11 DIRECT EXAMINATION
12 BY MS. PENICK:
13 Q. Good afternoon.
14 Can you state your name for the
15 record, please?
16 A. Darren Robinson.
17 Q. I am Bridget Penick. I'm the lawyer
18 for the county sheriff, and I'm going to ask you
19 some questions today, okay?
20 A. Okay.
21 Q. Can you tell me when you were hired
22 with the Webster County sheriff?
23 A. July 16th, 2007.
24 Q. Have you had any previous law
25 enforcement?
542
1 A. I have. Britt Police Department for
2 three and a half years, and the Clarion Police
3 Department for approximately four years.
4 Q. Did you go to the law enforcement
5 academy?
6 A. I did, in 2000.
7 Q. Are you currently driving the patrol
8 car that Officer Ruby used to drive?
9 A. Yes.
10 Q. And are there any problems that you've
11 experienced with the video camera in the car?
12 A. I think it was when it was cold mainly,
13 the radio interfered with it; but other than
14 that, turn it off, turn it back on, and it has
15 worked.
16 Q. Have there had to be any repairs to it
17 that you know of?
18 A. No.
19 Q. I want to ask you about a couple of
20 situations that you handled in your capacity as
21 a sheriff's deputy, okay?
22 One involves an incident last
23 July, July 25th of 2007, at the residence of --
24 well, actually not at the residence, regarding
25 Victor Carlson.
543
1 A. Okay.
2 Q. You were not on-site the night of the
3 incident, were you?
4 A. No.
5 Q. What's your knowledge of the Vic
6 Carlson arrest?
7 A. When I came to work that morning, I was
8 told by Detective Fleener to stay in the office,
9 that we were going to go serve an arrest warrant
10 on Vic Carlson.
11 Q. And did you do that?
12 A. I went with Detective Fleener to the
13 lobby of the LEC where Vic was and served the
14 warrant.
15 Q. And did you do anything further with
16 Mr. Carlson at that point?
17 A. I went up to the jail floor with
18 Detective Fleener and Mr. Carlson.
19 Q. And did Mr. Carlson say anything about
20 what happened the previous night?
21 A. I remember when Detective Fleener asked
22 him what happened, he said, that I could
23 remember, was about that Vic said his wife was
24 in the car, and something about pushing the door
25 on her.
544
1 Q. Anything else that you remember him
2 saying?
3 A. I do not.
4 Q. Was that the extent of your involvement
5 in the Vic Carlson arrest?
6 A. Yes, up to that point.
7 Q. What do you mean?
8 A. We've had several calls between his
9 wife and Vic, violations afterwards.
10 Q. After this incident?
11 A. Yes.
12 Q. Domestic situations?
13 A. No contact order, mainly civil.
14 Q. I want to ask you, then, about a
15 situation that occurred in Duncombe --
16 A. Okay.
17 Q. -- in October of 2007, October 4th.
18 A. Yes.
19 Q. Tell me what you remember about that
20 situation.
21 A. When I came on duty, Sergeant Ruby had
22 called me on the radio, and I don't exactly
23 remember exact words, but that they were doing a
24 welfare check from a domestic situation where a
25 lady was in the hospital in Webster City -- or
545
1 taken there, and that they were looking for the
2 male, and unable to find him, and that chief of
3 Duncombe was there, and in case he needed any
4 help later if the male had shown up.
5 Q. And I'm sorry. How did you get this
6 information?
7 A. Part of that was over the radio, and
8 when Sergeant Ruby had told me that there was a
9 domestic, I had asked him on the radio if we had
10 a domestic with no injuries and no arrest.
11 Sergeant Ruby then said he would call me.
12 Q. And what do you mean by that?
13 A. My understanding, that if there's a
14 domestic situation with injuries, or possible
15 injuries, that there should be an arrest, or
16 there should be an attempt to make an arrest.
17 Q. Okay.
18 My question -- I'm sorry. You
19 said you were on the radio?
20 A. Yes.
21 Q. And then at some point you got off the
22 radio, and he called you?
23 A. Yeah. He said he was going to call me
24 on the radio and explain the information to me.
25 Q. Do you know why you would do that
546
1 versus stay on the radio?
2 A. Either not take up the radio space --
3 Q. Okay.
4 A. That would be my guess.
5 Q. Is that something that often happens as
6 you're trying to communicate information?
7 A. Yeah. We talk a lot on the phone.
8 Q. Okay, all right.
9 And so he said he was going to do
10 a welfare check?
11 A. That they were there and had done a
12 welfare check.
13 Q. Oh, okay.
14 Had done a welfare check, and
15 that the female was in Webster City?
16 A. Yes.
17 Q. And did you ask him, "So there's a
18 domestic with injury, but there's no arrest"?
19 A. Yes.
20 Q. Okay.
21 And did he respond?
22 A. That's, I believe, when he said there
23 wasn't a report, and that he was going to call
24 it and explain it to me.
25 Q. So what did he say when he called you
547
1 on the phone?
2 A. Explained the whole situation, that the
3 owner, I believe, of the grocery store there had
4 called and reported this domestic, or whatever,
5 and was taking the female to the Webster City
6 hospital. And that there hadn't been a report
7 yet, so they were going to check on the male,
8 because he had already threatened himself, but
9 they were unable to find him.
10 Q. Did you ask Sergeant Ruby why no report
11 had been taken?
12 A. When he explained to me that no report
13 had been taken, I guess I didn't understand that
14 part of it, and I had mentioned about the law
15 states, and he told me that he knew what the
16 laws were, and I kind of left it at that.
17 And he said the chief of police
18 was going to handle it, but he was going to be
19 at a meeting. In case he needed help or
20 anything, that's why he was making us aware of
21 it.
22 Q. Okay.
23 So you said a few things I want
24 to follow up on. You said the code -- or the
25 law says -- finish the rest of that sentence.
548
1 What --
2 A. That the law -- what I was going to say
3 is that the law says if there is injuries, you
4 have to arrest, and that's the part I didn't
5 understand at the time, but I was new here and
6 didn't quite know how things worked, I guess.
7 Q. Okay.
8 So when you say, "I didn't
9 understand," do you mean you didn't understand
10 the law?
11 A. No. I didn't understand -- and I
12 wasn't at the house, so I didn't understand what
13 all was going to take place or what all the
14 agreements they had between the chief and him.
15 I guess I didn't understand that part, as to why
16 they were going to pass on the information that
17 wasn't going to be there.
18 Q. All right.
19 And then you said that
20 Officer Ruby said, "I know what the law says"?
21 A. Yes.
22 Q. And what else did he say?
23 A. Just that he knew what the law was, and
24 he explained the whole situation over again,
25 that she's in Webster City at the hospital
549
1 getting checked out. Nobody had came forward
2 and made a report, and that the chief was going
3 to wait for her. I don't remember, but they
4 were looking for the male to check on him, and
5 they were unable to locate him at the house.
6 Q. And you said something about the --
7 something about somebody being in a meeting.
8 A. The chief had a meeting at, I believe,
9 like 3:30, he had to be somewhere.
10 Q. And this chief, Delbert Smith?
11 A. Yes.
12 Q. All right.
13 So Officer Ruby told you that the
14 plan was just to wait until the chief was out of
15 the meeting?
16 A. No. This would have been before the
17 meeting.
18 Q. Okay.
19 A. And Delbert was going to hang around
20 and try to look for the guy.
21 Q. Okay.
22 A. And my understanding was Sergeant Ruby
23 was telling me this information in case Delbert
24 needed help.
25 Q. So Sergeant Ruby didn't ask you to do
550
1 anything at that point; right?
2 A. No.
3 Q. And did he ask you to go check out the
4 victim, or go talk to her?
5 A. No.
6 Q. And I guess at that situation, you were
7 on the job a few weeks; right?
8 A. Yes.
9 Q. And Officer Ruby would have been a
10 ranking officer at that point; right?
11 A. Correct.
12 Q. Now, you were working the subsequent --
13 You were working the afternoon shift; is that
14 right?
15 A. Yes.
16 Q. Okay.
17 Did it seem appropriate to you
18 that nobody had gone to the hospital?
19 A. Yes.
20 Q. It seemed appropriate?
21 A. Inappropriate.
22 Q. Oh, okay.
23 A. Sorry.
24 Q. I want just to make a clarification
25 here.
551
1 If you would turn to, in the red
2 book in front of you, tag T, and there are page
3 numbers at the bottom. It will actually be at
4 the very last page of tab T. This looks like --
5 Oh, sorry. Got it?
6 A. Yes.
7 Q. This looks like your daily activity
8 report for October 4th, 2007?
9 A. Yes.
10 Q. Okay.
11 And you came on shift at what
12 time?
13 A. 1:30.
14 Q. Okay.
15 And the first entry is -- on your
16 log says a 10-41. What does that mean?
17 A. Beginning tour of duty.
18 Q. Okay.
19 Is there any reference in your
20 activity log to the discussion that you and
21 Officer Ruby had?
22 A. No.
23 Q. Okay.
24 Do you know why not?
25 A. It just gives information passed along.
552
1 Q. Okay.
2 Not something that you acted on?
3 A. No.
4 Q. All right.
5 And then later I guess we have at
6 1710, and I see that that receipt kind of
7 overwrote what you wrote, but "Assist 94-46 in
8 Duncombe situation," and some of it is cut off?
9 A. Yes.
10 Q. Did you go back to Duncombe that day?
11 A. Yes.
12 I had went there with
13 Detective Fleener. I'm trying to think who else
14 was there besides -- and Chief Delbert Smith,
15 and then I believe Detective Kenyon also showed
16 up to search the house and try and locate the
17 male.
18 Q. And who is 94-46?
19 A. That would be Chief Delbert Smith.
20 Q. Now, as you -- You currently work what
21 shift?
22 A. Afternoons.
23 Q. Afternoon shift.
24 And who's your current shift
25 supervisor?
553
1 A. Jim Stubbs.
2 Q. If you want to take a day off from work
3 that's not already scheduled off on the
4 schedule, how do you go about doing that?
5 A. Filling out a vacation request
6 or a request form and leaving it for
7 Lieutenant Stubbs.
8 Q. Have you had occasion to do that yet
9 since you've worked here?
10 A. Yes.
11 Q. Is there anything further to the
12 process than that?
13 A. No.
14 Q. Do you know what would happen if, say,
15 only -- Well, let me ask.
16 Is there a number, a minimum
17 number of deputies that are to be patrolling at
18 any given time?
19 A. My understanding is two.
20 Q. Is two.
21 And if there's an occasion where
22 there's only two deputies scheduled and, say,
23 you decide that you need to make some day-care
24 arrangements and you can't work, what do you do?
25 A. Usually fill out a vacation request, or
554
1 I request off and talk to Lieutenant Stubbs, or
2 whoever the shift supervisor is, and they either
3 approve it or not approve it, and then make
4 arrangements to cover the shift.
5 MS. PENICK: Nothing further.
6 MS. VALENTINE: Cross?
7 MS. CONLIN: Yes.
8 CROSS-EXAMINATION
9 BY MS. CONLIN:
10 Q. The squad car that you took over, did
11 you take it over right away after Sergeant Ruby
12 left?
13 A. It was a few days, I believe.
14 Q. And do you know whether or not there
15 had been previous difficulty with that, with the
16 video camera?
17 A. Not to my knowledge.
18 Q. And you said it doesn't work when it's
19 cold?
20 A. That's when I noticed it, but I've only
21 had the car when it's cold. It's been cold.
22 Q. Lord knows.
23 A. It just -- It appears to me -- The
24 camera will turn on fine, everything powers up
25 okay on it, and then every once in a while the
555
1 screen will just go blue. Whether it's
2 recording or not, I haven't played back to see,
3 but there is radio interference on it, and once
4 you turn it off and turn it right back on, it
5 works okay.
6 Q. Have you notified anybody of that
7 problem?
8 A. I have.
9 Q. And has it been fixed?
10 A. I haven't had any problems with it
11 pretty much since then.
12 Q. Oh, so once you reported it, it just
13 straightened out?
14 A. Just -- It doesn't come to a blue
15 screen anymore.
16 Q. Okay.
17 Did somebody fix it, or did it
18 just get well by itself?
19 A. I don't know. Well, I've looked it
20 over, and I don't know whether the connection in
21 the back was loose or it was just radio
22 interference.
23 Q. Who did you report the problem to?
24 A. I reported it on my logs.
25 Q. And, in fact, reporting something like
556
1 that on the log is the tradition, and that's
2 what people do; right?
3 A. To the best of my knowledge.
4 Q. When you want a day off and
5 Lieutenant Stubbs is gone, what do you do?
6 A. Usually, they're put in ahead of time.
7 Q. Oh, has it not happened that
8 Lieutenant Stubbs has been gone and, you know,
9 you need a day off? That's not happened yet?
10 A. Yeah. He's been gone when I've put the
11 request in, and I've put them in his box.
12 Q. What if he's off for a couple of
13 days --
14 A. Sure.
15 Q. -- and you need the second day that
16 he's off for your vacation or a holiday or
17 something? Who would you go to?
18 A. That hasn't happened to me yet, but I
19 would guess it would be another shift supervisor
20 or Chief Deputy Jim O'Brien.
21 Q. All right.
22 I want to talk for a moment about
23 the Chase, Tammie and Rickey Chase. That's the
24 situation over in Duncombe.
25 A. Okay.
557
1 Q. All right.
2 So he -- As I understand it, he
3 was calling you on the radio in order to alert
4 you in case your help was needed by Chief Smith;
5 correct?
6 A. Yes.
7 Q. And it's not at all uncommon to get off
8 the radio in case somebody else needs to use it
9 and communicate by phone?
10 A. Correct.
11 Q. And what he did on the phone with you
12 was he explained the situation to you; correct?
13 A. Yes.
14 Q. And what he was doing there was a
15 welfare check; correct?
16 A. That was my understanding of it, yes.
17 Q. Okay.
18 Do you know who called about
19 Rickey Chase and wanted to check on his welfare?
20 A. No, not on Rickey.
21 Q. All right.
22 And then when you discussed with
23 him what the law says, he said he knew the law?
24 A. Yes.
25 Q. Did he say it in a nasty way, or was he
558
1 just letting you know that he knew?
2 A. I would say he was just letting me
3 know.
4 Q. And were you aware at that time that
5 Sergeant Ruby was considered to have great
6 expertise in handling domestic violence cases?
7 A. No.
8 Q. And one of the things he told you after
9 you discussed that the law required is that this
10 was something that Delbert Smith was going to
11 handle.
12 A. That is my understanding.
13 Q. And what Sergeant Ruby said to you is
14 that she's in Webster City.
15 A. Yes.
16 Q. And the chief was going to wait for her
17 to come back, and then he was going to do the
18 report?
19 A. Yes.
20 Q. When -- I don't know if you're the
21 person to ask this, but when you as a deputy are
22 in a town like Duncombe and the chief of police
23 is handling the situation, do you step back?
24 A. Yes and no.
25 Q. If you think they're really screwing
559
1 up, perhaps you would not step back?
2 A. Yes.
3 Q. But ordinarily, you would leave it in
4 the hands of the local law enforcement, chief of
5 police?
6 A. If they were capable of performing the
7 task.
8 Q. Okay.
9 Do you know Delbert Smith?
10 A. Yes.
11 Q. And is he capable?
12 A. I would say so. He asks a lot of
13 questions.
14 Q. Oh, I don't know what you mean by that.
15 Can you tell me?
16 A. He questions himself, I think, once in
17 a while. I haven't worked with him very much,
18 but on a lot of cases he's called and requested
19 our assistance.
20 Q. All right.
21 And he didn't ask -- He,
22 Sergeant Ruby, did not ask you to go to the
23 hospital and visit with the victim --
24 A. No.
25 Q. -- because -- Well, would the reason
560
1 for that be that Delbert Smith is supposed to be
2 handling this?
3 A. I don't know.
4 Q. And one of the motivations for letting
5 local law enforcement handle situations like
6 this is to preserve law enforcement resources in
7 Webster County; correct?
8 A. Yes.
9 Q. In the sheriff's department?
10 A. Yes.
11 Q. All right.
12 That's perfectly legitimate to
13 want to be sure that sheriff's deputies are
14 available if something else comes up?
15 A. Yes.
16 MS. CONLIN: That's all I have.
17 Thank you.
18 MS. VALENTINE: Redirect?
19 REDIRECT EXAMINATION
20 BY MS. PENICK:
21 Q. Deputy Robinson, if your camera, if you
22 decide it really does need fixed and it happens
23 again, is it okay for you to just take it and
24 get it fixed yourself?
25 A. Yes.
561
1 Q. How do you do that?
2 A. Take it to Electronic Engineering.
3 Q. Have you had occasion to do that
4 before?
5 A. Not with the camera, but with a radio
6 problem or a light problem, yes.
7 Q. Did you get -- Did you talk to anybody
8 at the office before you did that?
9 A. I just asked Chief Deputy Jim O'Brien,
10 and he says, "Just take it in and have it looked
11 at."
12 Q. Okay.
13 You got permission to do it first
14 then?
15 A. I just did that because that's me, but,
16 yes, I did.
17 Q. Are you aware that general orders
18 require you to report equipment to the chief
19 deputy?
20 A. Yes.
21 Q. And that you're supposed to get
22 permission before you --
23 A. Yes.
24 Q. -- get them repaired?
25 A. Yes.
562
1 Q. Do you understand that?
2 A. Yeah.
3 Q. And you got permission?
4 A. Yes.
5 Q. And you say Electronic Engineering is
6 the entity that does the repairs?
7 A. Yes, at that time.
8 Q. Okay.
9 And I just -- I apologize. I
10 want to go back to the Tammie Chase-Rickey Chase
11 one more time, and you said it was your
12 understanding that Sergeant Ruby said Delbert
13 Smith was going to handle the report, but he
14 hadn't done it yet?
15 A. No.
16 Q. Did you find that appropriate?
17 A. No.
18 Q. Why not?
19 A. In a domestic situation, and especially
20 not knowing where the other party is, the
21 defendant -- It probably would have been
22 appropriate for somebody to go to the hospital
23 and check on her and get her injury status in
24 case, you know, something was very wrong or she
25 was going to be transported out. Instead of
563
1 having to go to another facility, you know, to
2 check on their injury right away.
3 Q. And at that point, the offender had not
4 been secured; is that right?
5 A. Yes.
6 MS. PENICK: Nothing further.
7 MS. VALENTINE: Further recross?
8 MS. CONLIN: No.
9 MS. VALENTINE: Any questions
10 from the commissioners?
11 MR. DRISCOLL: I think I have
12 one.
13 MS. VALENTINE: Go ahead.
14 MR. DRISCOLL: I believe you
15 testified that you felt it was inappropriate
16 that -- Well, what was it you thought was
17 inappropriate during this last instance in
18 Duncombe? Was it that there was no complaint
19 filled out?
20 THE WITNESS: The issue with the
21 complaint, that something hadn't been filled
22 out, and nobody had went to the hospital and
23 checked on the victim.
24 MR. DRISCOLL: Okay.
25 MR. O'CONNOR: How are you aware
564
1 that it had not been filled out?
2 THE WITNESS: That's what I was
3 told by Sergeant Ruby, that there wasn't a
4 report.
5 MR. DRISCOLL: Just a follow-up
6 to that.
7 You think it was inappropriate.
8 Do you think it was a violation of
9 Sergeant Ruby's duty not to file a report at
10 that time?
11 THE WITNESS: His or
12 Chief Delbert Smith's yes.
13 MR. DRISCOLL: You believe it was
14 a violation of duty?
15 THE WITNESS: Yes.
16 MR. DRISCOLL: All right.
17 MS. VALENTINE: I have one that
18 may be relevant, may not. I notice these badge
19 numbers are 94-something.
20 THE WITNESS: Yes.
21 MS. VALENTINE: Is the something
22 number, is there some hierarchy to that?
23 THE WITNESS: As far as the --
24 like 94-46 or -- I'm new here. Usually in
25 situations, the lower numbers, and go up.
565
1 The 94-46 would be the Duncombe-Otho officer.
2 Our numbers start at 94-1 and go
3 all the way up.
4 MS. VALENTINE: So the number
5 could imply a location or it could imply a
6 ranking?
7 THE WITNESS: The 94 would not
8 imply a location. The 94 would be an officer.
9 The location would be either a 10 code or an
10 address.
11 MS. VALENTINE: Okay. I'm sorry,
12 my question wasn't clear. When you said --
13 What's the Otho code, the Otho --
14 THE WITNESS: 94-46.
15 MS. VALENTINE: Is that,
16 regardless of who's doing Otho, it's 94-46?
17 THE WITNESS: It's usually the
18 chief, and then like Gowrie, the chief is 94-31,
19 and the reserves are 94-32.
20 MS. VALENTINE: I don't know how
21 helpful that was at all, but -- I didn't know
22 if 1, 2, 3, I mean if it went down the rank that
23 way.
24 THE WITNESS: In our office it
25 does go by rank.
566
1 MS. VALENTINE: Okay, thank you.
2 MS. CONLIN: May I follow up?
3 MS. VALENTINE: You may.
4 RECROSS-EXAMINATION
5 BY MS. CONLIN:
6 Q. In terms of whether or not it was a
7 violation of duty not to go to the hospital and
8 take the complaint, not to do a complaint, your
9 answer to the commissioner was, yes, either he
10 or Smith violated his duty; correct?
11 A. Correct.
12 Q. In your opinion?
13 A. Yes.
14 Q. And if Sergeant Ruby believed that that
15 was something that he was going to handle, then
16 it would be Delbert Smith's violation of duty?
17 A. It would be somebody's, correct.
18 Q. In your opinion.
19 A. Yes.
20 MS. CONLIN: That's all.
21 MS. VALENTINE: Anything further?
22 MS. PENICK: No.
23 MS. VALENTINE: This witness is
24 excused, and thank you for your testimony this
25 afternoon.
567
1 MS. PENICK: May we take a quick
2 break for the next witness, just for convenience
3 purposes?
4 MS. VALENTINE: Yes, we may. How
5 about by 4:00?
6 (A recess was taken from 3:55 p.m.
7 until 4:05 p.m.)
8 KEVIN KRUSE,
9 called as a witness, having been first duly
10 sworn, testified as follows:
11 MS. VALENTINE: Your witness,
12 Ms. Penick.
13 MS. PENICK: Thank you.
14 DIRECT EXAMINATION
15 BY MS. PENICK:
16 Q. Can you please state your name for the
17 court reporter?
18 A. Kevin Kruse.
19 Q. How do you spell Kruse?
20 A. K-r-u-s-e.
21 Q. What is your current position?
22 A. Lieutenant with the Webster County
23 Sheriff's Department.
24 Q. How long have you been with the Webster
25 County Sheriff's Department?
568
1 A. Seventeen years.
2 Q. Did you work in law enforcement before
3 that?
4 A. Yes, three years before that.
5 Q. Where?
6 A. City of Callender.
7 Q. Did you go to the law enforcement
8 academy?
9 A. Yes, I did, in 1988.
10 Q. And you're currently a lieutenant.
11 When did you obtain that rank?
12 A. Oh, I'm not sure. Somewhere around
13 2001, and that's a guess.
14 Q. What was your position when you were
15 hired in 1991?
16 A. Deputy sheriff.
17 Q. Do you know how long you were a deputy?
18 Is it patrol deputy, is that what
19 you call it?
20 A. Yes.
21 Probably around eight, nine
22 years, something like that.
23 Q. And, Lieutenant Kruse, you were
24 employed by the Webster County Sheriff's Office
25 when Sheriff Griggs left office; is that
569
1 correct?
2 A. That's right.
3 Q. And did you have an interest in
4 becoming the sheriff at that time?
5 A. Yes, I put my name in.
6 Q. What do you mean by that?
7 A. At that time we were past the primary,
8 so I threw my name in. Brian Mickelson had put
9 his name in, and we had to run in a caucus.
10 Q. And is that at the party level?
11 A. Yes.
12 Q. What did that entail?
13 A. You gave a speech for 5 minutes, and
14 then the delegates asked you questions, and then
15 the delegates voted.
16 Q. How long between you putting your name
17 in and the decision? How long was there between
18 the time you put your name in and the decision?
19 A. Probably a couple of weeks.
20 Q. A couple of weeks.
21 A. It was pretty short.
22 Q. Was there any kind of campaigning that
23 you did?
24 A. No.
25 Q. And you were not the successful
570
1 candidate, were you?
2 A. No, I was not.
3 Q. Do you feel that Sheriff Mickelson was
4 upset with you for running against him for the
5 sheriff?
6 A. No, I don't believe so.
7 Q. Do you feel that he's held it against
8 you in any way that you were seeking the sheriff
9 at the same time he was?
10 A. No.
11 Q. Have you felt anything that you
12 felt, you considered to be retaliation from
13 Sheriff Mickelson?
14 A. No.
15 Q. Now, you were working for the Webster
16 County Sheriff's Office when Curt Ruby was
17 hired; is that right?
18 A. Yes.
19 Q. And did you have occasion to work with
20 Officer Ruby under Sheriff Griggs' tenure?
21 A. Yeah. It was just right at the end. I
22 want to say about summer of '03, I think. I was
23 acting as detective at that time. I was placed
24 back on the road at nights, and so I worked with
25 Curt for a short time on nights.
571
1 Q. And in 2003, what would your rank have
2 been?
3 A. Lieutenant.
4 Q. And do you know what Officer Ruby's
5 rank would have been?
6 A. I believe he was sergeant at that time.
7 Q. And did you outrank him at that point?
8 A. Yes.
9 Q. Did you have any issues getting along
10 with Officer Ruby while you were both out on
11 patrol?
12 A. When we were on patrol, we got along
13 fine, but there is one instance I remember, I
14 guess, that --
15 MS. CONLIN: May I just interpose
16 an objection? Remote in time.
17 MS. VALENTINE: Overruled.
18 A. At the end of our shift, we hand our
19 activity logs in, and I'd pull up to the west
20 side of the law enforcement center, and I
21 noticed Curt was sitting outside there and he'd
22 take off, which I assumed maybe he had already
23 dropped his activity log off.
24 Well, this went on two or three
25 nights, and about the second or third night I
572
1 looked and noticed that his activity log wasn't
2 in there, so I knew something was wrong.
3 So I called him one of the next
4 few nights and asked him to meet me, and when I
5 pulled up, he started yelling. And I asked him
6 what was going on, and at that time he told me
7 that he was upset about other deputies not
8 taking their share of calls.
9 Q. Do you remember what he said?
10 A. Not really, other than he asked me how
11 it felt the night before.
12 And I said, "What do you mean?"
13 And he said, "Well, you took all
14 six calls."
15 And I said it was fine, you know.
16 I guess I didn't count calls.
17 And then he said something about
18 the night before, the night after, that "I took
19 all three calls that night."
20 And so it upset him, which I
21 guess I didn't understand, is that if he had a
22 problem with it, why he didn't relay that
23 message or problem to me. You know, why did I
24 have to go to him?
25 But that was the only thing I
573
1 ever had with Curt, I guess.
2 Q. What do you mean; a problem with taking
3 calls?
4 A. Well, I guess on our -- our department
5 is not big enough to make sure this deputy takes
6 one call and the other one takes one call. It
7 just -- You take them as it goes, and whoever is
8 close, you take them and --
9 Q. I want to ask you about your
10 involvement in this incident in December of 2005
11 regarding Tony Thompson. What was your
12 involvement with that situation?
13 A. Oh, the day that Deputy Suchan and
14 Deputy Ruby was out taking care of that, I had
15 heard radio traffic about they needed
16 assistance, so I jumped in my car and was
17 heading out there, and in the meantime, halfway
18 out there, Curt was coming in, I was going out,
19 so I turned around and followed him in.
20 And when they got to the law
21 enforcement center, Curt pulled into the sally
22 port, got out of his car, threw his hands up in
23 the air and said, "I'm done with him. You guys
24 can take care of him from now" -- or "from
25 here," something like that, which I thought was
574
1 kind of weird, but --
2 Q. Why did you think that was weird?
3 A. Because it's our job, and you need to
4 follow through with it.
5 Q. And what did -- Did you assist, then,
6 with the --
7 A. Yes.
8 Q. -- rest of that incident?
9 A. Yes, I did.
10 Q. What did you do?
11 A. We ended up taking him out of the car,
12 putting him in the restraint chair.
13 Q. And who -- who was with you doing that?
14 A. I remember Jim O'Brien was there, Brian
15 Mickelson was there, Chris O'Brien, who was
16 employed at that time, was there, and that's the
17 only ones I remember.
18 Q. And had you had occasion to work with
19 Curt Ruby again after that? Did you work on the
20 same shift at any time?
21 A. No.
22 Q. Is there anything else that you thought
23 was -- that concerned you, I guess, as far as
24 your interactions with Officer Ruby?
25 A. No.
575
1 Q. Is there a time frame where you
2 experienced that Curt Ruby wouldn't talk to you?
3 A. Yes, there was one of them.
4 Q. Tell me about that.
5 A. It was about a three-year period that I
6 would walk into the deputies' room, and Curt
7 would be in there and he'd just turn around and
8 walk out. I had no clue what I had done to him,
9 so another deputy told me that he thought I was
10 sabotaging his subpoenas for court.
11 Q. Do you know who told you that?
12 A. Deputy Heesch.
13 Q. Were you?
14 A. No.
15 Q. Do you know what was happening in the
16 mailboxes?
17 A. Well, the 12 years I was a detective in
18 there, back in the day, we used to have to serve
19 civil papers, and I seen the secretaries
20 numerous times go through them boxes to see if
21 there was civil papers in there that were being
22 recalled, and she would start at the top of the
23 box and work her way down all through them,
24 everybody's box, to try to find that civil
25 paper. I seen it numerous times.
576
1 Q. And what do you mean, "papers that were
2 being recalled"?
3 A. Civil papers, as far as, you know,
4 civil papers that we serve.
5 Q. Okay.
6 A. And sometimes them would be recalled in
7 midstream.
8 Q. Does that mean taken -- like you don't
9 have to serve them anymore?
10 A. Right. They'd be taken out, sent back
11 to the clerk of court.
12 Q. Do you know the time frame in which
13 this happened?
14 A. No, I don't.
15 Q. You said it was during that time frame
16 that you felt that Officer Ruby wasn't talking
17 to you for about three years?
18 A. It was about three years.
19 Q. And did he start talking to you again
20 at some point?
21 A. Later. Just right at the end there,
22 yeah, he started kind of talking a little bit
23 there.
24 Q. All right.
25 Do you have to talk to your
577
1 coworkers at times to get tasks accomplished?
2 A. Yes.
3 Q. Did you ever feel that that interfered
4 with the ability for you guys to do your job?
5 A. I don't know. Yeah, it definitely
6 interfered, but -- it was frustrating besides,
7 but --
8 MS. PENICK: I have nothing
9 further.
10 MS. VALENTINE: Cross-examination?
11 MS. CONLIN: Yes.
12 CROSS-EXAMINATION
13 BY MS. CONLIN:
14 Q. In your -- Well, in your caucus
15 process, there -- you said there was no
16 campaign; correct?
17 A. Correct.
18 Q. And you were both Republicans?
19 A. I believe he was actually a Democrat
20 prior to that started, and then he switched to a
21 Republican.
22 Q. Okay.
23 Did he switch to a Republican
24 right before the caucus process?
25 A. That's my understanding, yes.
578
1 Q. Okay.
2 And you gave a 5-minute speech,
3 so there was no period of time in which you as a
4 candidate would be perhaps commenting on the
5 competence of your opponent; correct?
6 A. Correct.
7 Q. Did you mention in your speech that you
8 were a lieutenant, and he was -- had not been
9 promoted?
10 A. No.
11 Q. Do you know why he succeeded, and you
12 did not?
13 A. No, not really.
14 Q. What do you think?
15 A. He definitely knew a lot more people.
16 I mean, he was involved with the D.A.R.E.
17 program. You know, he was on the road a lot
18 longer than I was. I was a detective, and he
19 was out on the road, so he seen, met more people
20 than I did, so that definitely helped.
21 Q. All right.
22 How long a period were you back
23 on the road at nights and you supervised Curt
24 Ruby?
25 A. Time flies.
579
1 Q. I know.
2 A. I want to say about six months, maybe a
3 year, but I'm not even really sure.
4 Q. But your best estimate at this time is
5 someplace between six months and a year; right?
6 A. Right.
7 Q. I don't quite understand this sitting
8 outside of the LEC and not having an activity
9 log. Is it correct that happened a couple of
10 times?
11 A. Yes.
12 Q. And then you set up a meeting with him?
13 A. That's correct.
14 Q. And did you -- and you did have that
15 meeting?
16 A. Yes.
17 Q. Where was it?
18 A. 140th and 169, actually.
19 Q. Outside?
20 A. Yes.
21 Q. Okay.
22 So you could guess it was not the
23 winter?
24 A. I don't remember.
25 Q. At least not this winter?
580
1 A. We basically pulled up car-to-car,
2 side-to-side.
3 Q. Okay. I'm sorry. I've seen that
4 happen, and it just wasn't in my memory bank.
5 Did you -- He told you that he
6 felt that other deputies were slacking off;
7 right?
8 A. Correct.
9 Q. Well, how does that relate to not
10 having an activity log?
11 A. That's how I knew there was a problem,
12 because when I would pull up to drop mine off, I
13 assumed Curt had already dropped his off, but in
14 the meantime, he would take off. I'd come in,
15 and the basket where we threw our activity logs,
16 it was not in there. That's when I knew there
17 was a problem with Curt.
18 Q. Did Curt make a suggestion in the
19 course of that meeting that -- that
20 the two of you should discuss it with
21 then-Chief Deputy Stubbs?
22 A. He very well could have, yes.
23 Q. Did that ever occur?
24 A. Not with me it did not, I mean, as far
25 as the three of us.
581
1 Q. All right. And when you -- Okay.
2 You're car-to-car, and you say he
3 started yelling. Just when you pulled up?
4 A. Right.
5 Q. Did he swear?
6 A. No, I don't remember him swearing or
7 anything like that.
8 Q. Right.
9 And in the six months to a year,
10 that's the only incident that you remember that
11 reflected unfavorably on him?
12 A. That's correct.
13 Q. Once this -- Once you brought it up to
14 him, I take it things changed?
15 A. Yes.
16 And then I went to a couple of
17 the other deputies that were -- He was
18 complaining about. We talked to them and told
19 them they needed to do their share.
20 I guess what upset me or
21 concerned me through the whole thing is Curt had
22 this problem, but yet, you know, I had to figure
23 it out before he had actually came to me and
24 said there was a problem.
25 Q. Okay.
582
1 Did you document this meeting at
2 any point in time?
3 A. No.
4 Q. When you say you put Tony Thompson in a
5 restraint chair, what does that mean?
6 A. It's a chair with straps around it so
7 they can't move, basically. It immobilizes
8 them.
9 Q. Do you use that very often?
10 A. Yes. I mean, it's up in the jail
11 floor, is where it's at, so -- Of course, I'm
12 not up in the jail floor, so a lot of times
13 we're called to assist to use that, but, yeah,
14 it's a fair amount of times.
15 Q. Did you know at the time you made a
16 judgment about Sergeant Ruby's behavior that he
17 had been threatened all the way back from
18 Moorland?
19 A. At one point that threat was even on
20 the radio, so, yes, I knew he had been
21 threatened.
22 Q. And did you know of any history that
23 Sergeant Ruby had with this particular guy?
24 A. No.
25 Q. And when Ms. Penick asked you whether
583
1 you had any other concerns, initially, after
2 discussing the Thompson incident, you said you
3 did not have any other concerns; correct?
4 A. Right.
5 Q. And then you said that there was a
6 three-year period when he would not talk to you;
7 right?
8 A. Correct.
9 Q. Do you mean -- Were you working on the
10 same shift then?
11 A. No.
12 Q. How often would you see him?
13 A. When he worked, maybe we'd run into
14 each other a couple of times a week, three times
15 a week.
16 Q. All right.
17 And would there be other people
18 present in the break room?
19 A. Sometimes.
20 Q. Did you ever -- Can you give us an
21 incident -- I mean, did he -- If it was
22 necessary for your duties together, would he --
23 would he talk with you then?
24 A. No.
25 Q. Would that be because there would -- I
584
1 mean, there wouldn't be interaction between the
2 shifts?
3 A. No. I was on the detective division at
4 that time, so I wasn't even actually on the road
5 shift, if that's what you're asking.
6 Q. Well, I was just kind of wondering how
7 his not talking to you could have affected your
8 ability to do your job as a detective on a
9 different shift.
10 A. Because the road deputies are out there
11 actually taking the burglary reports, the theft
12 reports and them things, and it's kind of
13 important for them to communicate that stuff to
14 us because that ultimately would end up in the
15 detective division.
16 Q. Well, would they communicate while it's
17 going on, or what is the usual practice?
18 A. Usual practice is somebody goes out,
19 takes a report. They bring the report in, and,
20 you know, if it's something that we're going to
21 see, they're going to sit down and talk to us a
22 little bit about it.
23 Q. You said, I think, that you didn't know
24 when the civil papers stopped being served by
25 deputies; right?
585
1 A. Right.
2 Q. Are you going to give us any kind of a
3 time frame at all?
4 A. No. I mean, it was -- I don't know.
5 Q. When it was going on, whenever that
6 was, when the secretaries were into the
7 mailboxes, can you -- can you agree that the
8 secretaries were very careful not to mess up the
9 order?
10 A. No.
11 Q. They were careful or they were not
12 careful?
13 A. They were not careful.
14 Q. Oh, all right.
15 Do you want to name names?
16 A. Mary Condon.
17 Q. Okay, there you go.
18 A. And the poor lady is retired now, so --
19 Q. When did she retire?
20 A. A year ago.
21 Q. Okay.
22 Do you recall an incident when
23 you took two of Sergeant Ruby's deputies off
24 with you to Callender without telling him the
25 reason?
586
1 A. No.
2 Q. Do you remember that when you took
3 those two deputies, he was left alone on the
4 street?
5 A. I don't remember.
6 Q. Do you remember that you -- that he
7 spoke with you about this and asked you not to
8 do it, if possible, because it was -- it
9 conveyed a negative view of him and of his
10 authority?
11 A. Very well could have happened. I don't
12 remember the specific incident.
13 Q. Would you agree that that might
14 convey -- If that happened --
15 A. Sure.
16 Q. -- that would convey kind of a negative
17 attitude by you toward him; right?
18 A. That's correct.
19 MS. CONLIN: That's all.
20 MS. VALENTINE: Any redirect?
21 MS. PENICK: Yes.
22 REDIRECT EXAMINATION
23 BY MS. PENICK:
24 Q. I forgot to ask you something. I
25 forgot to ask you, right now you're a
587
1 lieutenant, and you work what shift?
2 A. Night shift.
3 Q. Night shift.
4 How do you handle situations
5 where officers want time off, if they want to
6 take a vacation day, for example?
7 A. They come to me and ask for the
8 request, and then they fill out a request form,
9 and then it's either okayed or denied.
10 MS. VALENTINE: And, Counsel, I
11 don't want to inhibit your questioning too much,
12 but I think we've covered this territory with
13 other witnesses.
14 MS. PENICK: Well, I think
15 there's some issue as to whether everybody
16 understood and followed that practice, so --
17 MS. VALENTINE: Up to you. I
18 want you to use your time.
19 MS. PENICK: Well, I think the
20 question was answered anyway.
21 MS. VALENTINE: Any recross?
22 MS. CONLIN: No.
23 MS. VALENTINE: Any questions
24 from the commissioners?
25 MR. DRISCOLL: No.
588
1 MR. O'CONNOR: No.
2 MS. VALENTINE: The witness is
3 excused. Thank you for your testimony this
4 afternoon.
5 MS. PENICK: We'll get our next
6 witness.
7 (A recess was taken from 4:27 p.m.
8 until 4:31 p.m.)
9 JASON BAHR,
10 called as a witness, having been first duly
11 sworn, testified as follows:
12 DIRECT EXAMINATION
13 BY MS. PENICK:
14 Q. Can you state your name for the court
15 reporter, please?
16 A. Yes, Jason Bahr.
17 Q. How many years of law enforcement
18 experience do you have?
19 A. Approximately 17 years.
20 Q. What's your current position?
21 A. I am a detective with the Webster
22 County Sheriff's Department.
23 Q. How long have you been with the county?
24 A. I've been here -- It will be ten years
25 in September.
589
1 Q. And do you hold a position with respect
2 to the union?
3 A. Yes, I do.
4 Q. What is that position?
5 A. I'm the union steward.
6 Q. For how long?
7 A. Approximately three years now.
8 Q. And what does your capacity as a union
9 steward entail?
10 A. Just handling contract negotiations,
11 along with the business agent, and then any
12 grievances and so forth. I'm the first contact
13 that the deputies would have pertaining to the
14 union.
15 Q. Do you have opportunity to sit in on
16 any meetings that might result in disciplinary
17 action?
18 A. Yes, I do.
19 Q. Have you had occasion to sit in on any
20 of those meetings?
21 A. Yes, I have.
22 Q. Is that something that's automatic as
23 far as you participating in the meeting?
24 A. If the deputy wishes for me to be
25 present, yes.
590
1 Q. It's up to the deputy?
2 A. Correct.
3 Q. Were you present in any meetings
4 involving Curt Ruby?
5 A. Yes, I was.
6 Q. And do you recall the first time that
7 you were -- I guess how many I should ask.
8 A. One.
9 Q. And do you know when that occurred?
10 A. I don't know the specific date, no.
11 Q. Do you know what year?
12 A. I would assume it would have been
13 in 2006.
14 Q. And who contacted you about the
15 meeting?
16 A. Deputy Ruby.
17 Q. And what did you know about the
18 meeting?
19 A. At the time that Deputy Ruby contacted
20 me?
21 Q. Right.
22 A. Absolutely nothing.
23 Q. So where was the meeting?
24 A. Meeting was in Sheriff Brian
25 Mickelson's office.
591
1 Q. Who was present?
2 A. Present was Sergeant Ruby, myself,
3 Chief Deputy Jim O'Brien, Sheriff Brian
4 Mickelson, and Webster County Attorney Tim
5 Schott.
6 Q. And what happened during the meeting?
7 A. During that meeting, they informed
8 Sergeant Ruby that they were sending him down
9 for a fit-for-duty evaluation.
10 Q. Did Officer Ruby say anything?
11 A. Yes.
12 Q. What did he say?
13 A. I don't recall the entire meeting. It
14 was probably approximately 20 minutes or so.
15 Q. Okay.
16 A. He stated his piece, I guess you could
17 say.
18 Q. What do you mean?
19 A. He talked about they were doing this
20 because of retaliation. I remember there being
21 retaliation mentioned.
22 I only really remember one
23 comment specifically through the whole meeting,
24 and that was Sergeant Ruby told Brian,
25 Sheriff Mickelson, that he was sending the wrong
592
1 person down, and pointed to Jim and stated he
2 should be sent down.
3 Otherwise, I don't -- As far as
4 what specifically was said, I don't recall
5 exactly.
6 Q. Do you recall any comment being made
7 about "watch your back"?
8 A. I remember -- I remember there being a
9 comment to the effect of "You've done it now,"
10 or "Watch out," or "Watch" -- It wasn't -- I
11 didn't take it as a -- per se, a physical, you
12 know, threat, but more of a legal probably
13 threat, is the way I looked at it.
14 Q. And just to be clear, who made the
15 comment?
16 A. Sergeant Ruby.
17 Q. Was it directed towards anybody
18 specifically?
19 A. Sergeant Ruby spoke primarily only to
20 Sheriff Mickelson during that meeting.
21 Q. What was your impression of -- I guess,
22 what was your impression of the meeting?
23 That's a bad way to say it.
24 A. Yeah. I guess I don't know what you're
25 saying.
593
1 Q. How did you react to the comments that
2 Sergeant Ruby made?
3 A. I didn't say anything throughout the
4 meeting. I guess my thoughts at the time were,
5 "I'm going to let Sergeant Ruby speak his mind
6 and speak his piece to a point that it became a
7 problem or that, you know, there was" -- I mean,
8 he was upset, obviously, but, no, I did not
9 interject at all at any time during the meeting.
10 Q. Were you shocked by any of the
11 statements that were made?
12 A. I wouldn't say shocked. A little
13 surprised probably.
14 Q. Why is that?
15 A. Just because he was upset. You know,
16 it was just something that I didn't -- Some of
17 the comments I didn't expect. Mainly just the
18 one that I remember, and that was directed
19 towards Chief Deputy O'Brien.
20 Q. And you didn't say anything during the
21 meeting?
22 A. No.
23 Q. And did Chief Deputy O'Brien say
24 anything that you recall?
25 A. I don't believe so, no.
594
1 Q. And how about -- Did you say the county
2 attorney was there?
3 A. Yes.
4 Q. Did he say anything?
5 A. No, he did not.
6 Q. Did you, as the union steward, have any
7 information regarding the fitness-for-duty
8 evaluation process itself?
9 A. No.
10 Q. And then I want to ask you about last
11 December and upon the discharge notice being
12 given to Officer Ruby.
13 A. Okay.
14 Q. What do you know about that?
15 A. Sergeant Ruby called me. I wasn't
16 working at the time. I couldn't tell you the
17 date, I couldn't tell you, really, the time.
18 I wasn't working, I was at
19 home, and I received a telephone call from
20 Sergeant Ruby, and he just informed me that he
21 had been terminated.
22 I informed him that I would let
23 our business agent with the Teamsters Union know
24 of the fact that took place, and that was the
25 only conversation we had that day.
595
1 Q. Did he indicate that he didn't need the
2 union's help?
3 A. Not at that time, I don't believe.
4 Just to go on forward, he did
5 contact me, I believe, a few days later, made
6 reference to assisting him in writing the
7 appeal, or what needed to be done as far as the
8 appeal process went, so I did meet -- or,
9 actually, I spoke to him on the phone, and then
10 I actually drafted a letter on his behalf for
11 the appeal process, and then met Sergeant Ruby,
12 and we went and delivered it to the Civil
13 Service.
14 Q. Did you have occasion to work with
15 Officer Ruby as an officer?
16 A. Yes, I did.
17 Q. Did you get along well with him?
18 A. Yeah.
19 Q. How would you describe his general
20 demeanor?
21 A. As far as working with him, I mean, we
22 didn't -- I wouldn't consider us to be friends
23 or whatever, but we did work together.
24 Sergeant Ruby, it was no secret,
25 and he made it no secret, that he was not happy
596
1 with the department, so he did complain a lot
2 about the department.
3 Q. Okay.
4 Can you be more specific?
5 A. Most of the time I wasn't paying all
6 that much attention to what he was complaining
7 about, but it was mainly directed, you know,
8 toward the administration. He wasn't happy with
9 them.
10 Q. Was he -- Was it unhappiness with
11 decisions they had made as far as, you know,
12 running of the department, or was it personal
13 issues that you recall?
14 A. Mostly the running of the department.
15 Q. So you can't think of any examples?
16 A. I can't think of any specific examples,
17 no.
18 Q. Have you described Curt before as
19 disgruntled?
20 A. Correct.
21 Q. What would you mean by that?
22 A. Just unhappy, did not --
23 Q. Was it your opinion that nothing that
24 the sheriff would do would be okay with
25 Officer Ruby?
597
1 A. I think that's probably a fair
2 statement. That may not have been the case
3 initially, you know, in the early part of his
4 career with our department, but --
5 Q. Did you believe that Officer Ruby was
6 paranoid about the sheriff being out to get him?
7 A. I would probably have to agree with
8 that. Some of that may be from what other
9 people have told me or hearsay-type thing. I
10 don't recall any specific incident where
11 Sergeant Ruby actually told me he was paranoid.
12 Q. Do you know what "out to get him"
13 means?
14 A. Oh, yeah. If he was to say that, I
15 assume he would refer to they were trying to
16 take his job.
17 Q. You don't mean like physically out to
18 harm him?
19 A. No.
20 Q. Do you have any understanding for the
21 basis of that, the belief that Brian was out to
22 get him?
23 A. No, I don't.
24 MS. PENICK: I'm finished.
25 MS. VALENTINE: Cross-examination?
598
1 MS. CONLIN: Yes, please.
2 CROSS-EXAMINATION
3 BY MS. CONLIN:
4 Q. Would you turn in the red book to
5 Exhibit E, please.
6 On March 30th of 2006 you had a
7 scheduled day off; correct?
8 A. That is correct.
9 Q. And do you recall whether or not you
10 heard from Chief Deputy O'Brien on March 30th
11 of 2006 about coming back to work because Rod
12 Strait was going to be on all by himself?
13 A. No, I don't.
14 Q. Nobody called you that day?
15 A. It's very possible someone did. I'm
16 telling you I don't remember if someone did or
17 not.
18 Q. Oh, I see.
19 And do you remember -- This is
20 probably not even a fair question, but just in
21 case, have any idea what you were doing on
22 March 30th of 2006?
23 A. I would have no idea.
24 Q. Do you remember if anybody asked you?
25 By "asked you," I mean, did anybody ask you what
599
1 you were doing close in time to this event?
2 A. I have no idea. It would be the day
3 after my birthday, if it helps any.
4 Q. Turning to the meeting of September 18,
5 you were not surprised that a police officer
6 required to undergo a fitness-for-duty
7 evaluation would be pretty darn upset.
8 A. I'm sorry, you'll have to repeat that
9 again.
10 Q. Is it correct that you were not
11 surprised that he was pretty upset when they
12 told him he was going to have to undergo a
13 fitness-for-duty evaluation?
14 A. No. I wasn't surprised by that, no.
15 Q. You would expect somebody in that
16 position to be pretty upset?
17 A. Yes, I would.
18 Q. He was not belligerent; right?
19 A. Depends on the definition of
20 belligerent, I guess. Everybody might have a
21 different definition of that.
22 Q. Well, from your definition.
23 A. No, I guess I would not call him
24 belligerent.
25 Q. All right.
600
1 He was loud?
2 A. I wouldn't even say he was really that
3 loud.
4 Q. Oh, all right.
5 But what you remember is how
6 upset he was?
7 A. Correct.
8 My example -- My best example to
9 you is -- Putting it in my perspective, I would
10 not have spoke to my boss the way he did that
11 day. That's the best I can put it.
12 Q. But your boss never sent you for a
13 fitness-for-duty evaluation, did he?
14 A. No, but I don't think that would have
15 ever happened.
16 Q. All right.
17 He was -- He made no threats;
18 correct?
19 A. No physical threats, no.
20 Q. Okay.
21 Well, I think what you said about
22 this -- Ms. Penick suggested to you the words
23 "watch your back," and what you heard was "you
24 should watch out," or something like that;
25 correct?
601
1 A. I remember it being something along
2 that, right.
3 Q. The word "watch"?
4 A. Right. I would have no way to remember
5 enough to quote.
6 Q. And "watch your back" may be a threat,
7 and he didn't make any threats; right?
8 A. He did not make any threats of physical
9 threats.
10 Q. Did he make some kind of threats?
11 A. I guess it's kind of how you want to
12 look at a threat. You could look at it as a
13 threat of there being physical violence or a
14 threat -- I took it from what Sergeant Ruby said
15 that day was more the threat of watch out, there
16 could be legal action from this, or along those
17 lines, I guess is the way I took it.
18 Q. All right.
19 And, in fact, at that time you
20 knew that Sergeant Ruby was planning on running
21 against the sheriff?
22 A. Sergeant Ruby and I did have a
23 conversation pertaining to that. We had one,
24 and I cannot remember if that was prior to this,
25 after this. I can remember the place that we
602
1 had this conversation at, but I can't remember
2 the time frame.
3 Q. Do you recall any discussion that --
4 about Sergeant Ruby's view that this was
5 retaliation for that?
6 A. I remember him stating it being
7 retaliation. For some odd reason, I can't
8 remember if it's because of running for sheriff
9 or because of something else. I don't recall.
10 Q. Let me read a quote to you and see if
11 this sounds familiar. "You are doing this
12 because you think I'm going to run against you,
13 but I'm not."
14 A. I don't remember.
15 Q. He agreed, of course, to do the
16 fitness-for-duty examination?
17 A. Yes.
18 Q. Do you remember that he said, "It's not
19 going to show anything"?
20 A. Do I remember him telling me that?
21 Q. No, telling the sheriff that.
22 A. No, I don't.
23 Q. Do you remember in that meeting that
24 Sheriff Mickelson said that deputies should
25 always feel free to come to him?
603
1 A. I don't recall it in that meeting, but
2 I have heard Brian say that before. I just
3 don't know if it was in that meeting or a
4 different one.
5 Q. I'm going to hand what -- do you
6 remember that in response to that, Sergeant Ruby
7 mentioned the fact that he had gone to the
8 sheriff shortly before this and complained about
9 Chief Deputy O'Brien?
10 A. He stated this in the meeting?
11 Q. Yeah.
12 A. I don't -- That does not ring a bell
13 with me.
14 Q. Okay.
15 Immediately after the
16 meeting was all over, do you recall that
17 Chief Deputy O'Brien pulled you into his office?
18 A. Right after the meeting I spoke to
19 Sergeant Ruby outside.
20 Q. Okay.
21 A. After that, I don't believe I was
22 pulled into any office.
23 Q. All right.
24 Do you remember any attempt by
25 Chief Deputy O'Brien to talk to you about what
604
1 had gone on in the September 18th meeting?
2 A. Was that the date of the meeting?
3 Q. Yeah, it was.
4 A. Okay.
5 I don't recall him ever asking me
6 any questions pertaining to it at the time.
7 Q. Okay.
8 If you'll turn now to Exhibit T,
9 a report in connection with a matter involving
10 Rickey Chase, and it is on page 361.
11 MS. VALENTINE: See the numbers
12 on the bottom?
13 THE WITNESS: Got you.
14 A. Yes, ma'am.
15 Q. Okay.
16 And this report says that you
17 were -- Lieutenant Stubbs came up to you and
18 said he had received a call from Mike Simons,
19 who runs the grocery store in Duncombe; right?
20 A. That's correct.
21 Q. And what Lieutenant Stubbs was told was
22 that he -- he, Mike Simons, was taking an
23 employee to Hamilton County Hospital because she
24 had been assaulted by her husband; correct?
25 A. Correct.
605
1 Q. And then, whether in that call or
2 another call, Sergeant Ruby and Deputy Kenyon
3 had gone to the scene to do a welfare check on
4 the male half because he had made threats to
5 harm himself. This is Lieutenant Stubbs
6 speaking to you all in one session?
7 A. Correct.
8 Q. All right.
9 And at the time you talked to
10 Lieutenant Stubbs, the welfare check was done.
11 They had completed a check of the residence and
12 found that the male in question was not at home?
13 A. Yes, that's correct.
14 Q. All right, all right.
15 And he told you that sometime the
16 female half of the domestic would be contacting
17 law enforcement to file a report. Did that ever
18 happen, to your knowledge?
19 A. Not to my knowledge, no.
20 Q. Now, when you were later in the day
21 dispatched out to, I think, Brushy Creek, or
22 in any event, to Duncombe, I think there were
23 a number of people there, including
24 Sheriff Mickelson, and do you remember anything
25 about this incident other than what's in your
606
1 report?
2 A. No. I -- What would be in my report
3 would be the best.
4 Q. All right.
5 Now, I'm a little confused. If
6 you'll turn to 370, and maybe the -- What shift
7 were you working -- Oh, I'm sorry. Wrong one.
8 Maybe I don't have your -- No, I don't. I
9 thought I had your activity log, but I do not.
10 I want you also to look, if you
11 would, at Defendant's Exhibit L, because I want
12 to call your attention to a situation and ask
13 about it.
14 Are you there, L?
15 A. I'm at L, yes.
16 Q. Have you ever seen that before?
17 A. This appears to be a report by Mike
18 Halligan.
19 Q. Yes.
20 A. No, I've never seen it before.
21 Q. The sheriff's office is governed by the
22 rules of chain of command; correct?
23 A. Correct.
24 Q. And if a lower ranking officer wants to
25 take a -- a deputy out of commission, would it
607
1 be incumbent on the detective, in this case
2 which is what Mr. Halligan was, to let the
3 person in charge of the shift know about that
4 based on chain of command?
5 A. "Out of commission," are you saying --
6 you mean away?
7 Q. Yes, away, going to do something with
8 him.
9 A. That would be a courtesy thing, yes. I
10 would not say that that would be a requirement,
11 depending on what the extent of "taking away"
12 meant.
13 Q. Okay.
14 A. I mean, if you're going to take a
15 deputy into another county or something to
16 assist, then that should be the case.
17 Q. Over the years, you got along well with
18 Sergeant Ruby?
19 A. Yeah.
20 Q. Sometimes you might disagree about --
21 A. Sure.
22 Q. -- things, but nothing that you
23 considered serious at all?
24 A. No.
25 Q. And he never swore in your presence?
608
1 A. Not that I could recall.
2 Q. And you never saw him out of control;
3 is that correct?
4 A. Not that I can recall.
5 Q. On December 13th when you -- I think
6 you talked to him. He called you at home when
7 he was discharged; right?
8 A. This is the termination date?
9 Q. Yes.
10 A. Yes, he did.
11 Q. And did you say that he said he did not
12 need the union's help during that?
13 A. As I said, I can't remember if he told
14 me at that point he did not need the union's
15 help, or at the point that we filed or that I
16 helped him file the appeal. I know he told me
17 at that point that he probably would not need
18 us.
19 Q. Do you know whether or not he had
20 consulted with his attorney at the time he said
21 he didn't need the union's help?
22 A. Yeah, I believe he had.
23 Q. Okay.
24 And did he -- Do you know whether
25 if someone in this situation has to choose
609
1 between a civil service remedy and an
2 arbitration remedy through the union?
3 A. No, I don't know that, I guess. I'm
4 not quite 100 percent sure what you're asking
5 either.
6 Q. Here's what I'm saying: When he said
7 he did not need your help, was it because he had
8 elected to go the Civil Service route rather
9 than arbitration route?
10 A. Yes.
11 MS. CONLIN: Okay. That's all I
12 have.
13 MS. VALENTINE: Redirect?
14 MS. PENICK: No.
15 MS. VALENTINE: Questions from
16 the commissioners?
17 MR. DRISCOLL: No.
18 MR. O'CONNOR: No.
19 MS. VALENTINE: The witness is
20 excused. Thank you for your testimony this
21 afternoon.
22 Next witness?
23 I need to swear you.
24
25
610
1 DELBERT M. SMITH,
2 called as a witness, having been first duly
3 sworn, testified as follows:
4 MS. PENICK: Thank you.
5 DIRECT EXAMINATION
6 BY MS. PENICK:
7 Q. Good afternoon.
8 My name is Bridget Penick, and
9 I'm the lawyer representing the Webster County
10 Sheriff's Office.
11 Can you state your name for the
12 record?
13 A. Delbert M. Smith.
14 Q. What's your position?
15 A. Police officer for the cities of
16 Duncombe and Otho.
17 Q. I want to ask you about a
18 specific incident that happened last October,
19 Chief Smith. If you will look in your red book,
20 there's an exhibit, tab T.
21 I'm going to ask you about the
22 incident with Rickey Chase and his wife, Tammie.
23 Do you recall that incident?
24 A. Yes.
25 Q. I guess, let me just ask you what you
611
1 recall at this time as far as what happened that
2 day.
3 A. Originally, I was off duty in Otho, and
4 I received a call from the Duncombe maintenance
5 man. He was kind of excited, and he said that
6 Tammie Chase had called him, and I believe he
7 said that she had told him that her husband
8 or -- they're separated, but her husband had
9 made threats towards her and a friend of hers,
10 that he was going to kill them, or shoot them or
11 something.
12 And I told Mr. Burnett that I was
13 busy and not working at the time, and he needed
14 to call the law enforcement center and give them
15 the number, tell them what was going on, so if
16 they had somebody in the area, they'd get there
17 quicker.
18 Q. Okay.
19 What happened next?
20 A. After I hung up with him, I called the
21 law enforcement center to see if they had
22 called, and they had, and I advised them that I
23 was going to be going on duty right away, and I
24 would head that way also.
25 They said they had a deputy
612
1 en route, and --
2 Q. Let me ask you, when Scott Burnett --
3 Was it Scott Burnett who called you?
4 A. Yes.
5 Q. When he called you and he said that
6 Mrs. Chase had said that Rickey was going to
7 threaten to kill or harm her, did he tell you
8 that she had already been assaulted?
9 A. No, he did not.
10 Q. Okay, all right.
11 And so then you called the law
12 enforcement center?
13 A. Uh-huh.
14 Q. And then what happened next?
15 A. I finished up what I was doing, went to
16 my residence, changed clothes, and headed for
17 Duncombe.
18 And when I arrived there,
19 Deputy Ruby was just going down the steps,
20 leaving the residence, and I believe
21 Deputy Kenyon was there. He was out on the
22 street by his vehicle.
23 And I talked to Mr. Ruby, and he
24 had told me that he was there to check that -- I
25 guess that Mr. Chase had indicated that he might
613
1 harm himself or something, and he was checking
2 to see if he was okay. Didn't appear to be
3 anybody home.
4 Q. And at that point, did Sergeant Ruby
5 advise you that there had already been a
6 domestic assault?
7 A. No.
8 Q. Go ahead.
9 A. And I believe, if I remember correctly,
10 at that time -- There was a garage there, kind
11 of a two-part garage, and we checked one walk-in
12 door, and it was unlocked. We looked in there.
13 There wasn't any indications that he was there.
14 The other garage door was locked.
15 We couldn't get in, no windows or anything.
16 So I advised Deputy Ruby that I
17 was going to be in the area for a while, and
18 that I would keep checking to see if Mr. Chase
19 showed up or anything, and I think we left the
20 residence then.
21 Q. And what was your next involvement with
22 the situation?
23 A. I kind of -- I was aware of what he
24 drove for a vehicle, and I kind of drove around
25 town looking to see if I could see it, and I
614
1 didn't.
2 I went to the convenience store
3 in Duncombe where Mrs. Chase works to see what
4 she could tell me, and she wasn't there.
5 I asked the clerk that was
6 working at the time where Tammie was, and she
7 said she didn't know, that she thought she had
8 left with Mike Simons, who was the store owner,
9 and I just kept driving around, you know,
10 checking the town, and so forth.
11 Q. Now, did the clerk tell you that
12 Mrs. Chase had been hurt?
13 A. No. She stated that sh
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